A few days after we filed and served the four motions to compel discovery, the attorney who had in open court promised responses two weeks ago faxed a letter to me.
In the letter, the attorney stated that I had not conferred with the attorney about the failure to respond - apparently forgetting the discussion at the court in front of the judge. Then the attorney threatened to file a motion requesting sanctions against me for filing the motion requesting answers to discovery prior to the quasi-criminal contempt trial.
The letter also demands that I take the motions off calendar immediately based on the promise to get the discovery responses to me in two weeks.
So, then, I ask myself, what would the ethical and reasonable attorney do in response to such a letter?
Should I tell the attorney that a separate motion would not be necessary - the judge can issue sanctions against me while hearing my own motions if I have behaved badly in filing the motions. While file a motion when you can bring the matter up in your opposition papers? Will it save my client time and money responding to yet another separate motion if I just help the opposition out by explaining how to properly raise the issue?
Should I remind the attorney again that we did discuss the discovery in front of the judge while on the record? Will this cause the attorney to realize that opposing the motions is fruitless, resulting in a stipulation that the opposing party will pay my legal fees incurred (about $1,600 so far on these motions) and timely discovery responses, without having to go to court and argue the motion?
Should I inform the attorney of the appellate decisions stating that there is no need to meet and confer where discovery is overdue - that is, there's nothing to confer about. Will this cause the attorney to "give up" opposing the motions, convince the client to pay the fees incurred, and give me complete discovery responses?
In the end, I decide to write a letter merely stating that the letter is factually and legally inaccurate, and reminding the attorney that I have already offered to take the motions off calendar if I receive timely responses and a payment of fees incurred to date on the motions. In effect, I draft a letter that I think the judge or any attorney familiar with the discovery process will understand, but if the attorney truly is ignorant and can't recall discussing the matter, the attorney will miss. In a way, I am testing the good faith of the attorney.
This is causing my client's attorney's fees to skyrocket, and one might think my client would be upset (the client is very upset) and that the client would stop cooperating with the other parent wherever possible.
I am so proud of my client! Since filing the contempt, the client has bent over backwards to accommodate the other parent - when the other parent went on vacation and couldn't show up at the designated place and time for visitation, my client allowed the other party to pick up the child the next day without so much as a peep of complaint. It would have been easy to insist that I file a contempt motion, at least obtain a police report (remember, my client is supposed to go to the police station for the visitation exchange) showing the client was not there to pick up the child. Must have been a superhuman effort to avoid even complaining about it.
Seeing the wonderful good faith of my client, the ability to place the needs of the child ahead of the emotional needs to strike back at the other party, I am proud to be an attorney, and proud to be representing such a person.
It makes me proud to be able to shield my client from some of the irrational and unreasonable behavior of the other party and that party's attorney.
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