An order from the Honorable Sam Sparks of the United States District Court for the Western District of Texas came across my inbox earlier today. This order does not involve any of the numerous cases that I am currently handling, but is surely worth the read.

Let me set it up for you: a third party was allegedly, improperly served with an overly broad and unduly burdensome subpoena and, instead of trying to work out the issues with the requesting party, filed a motion to quash with the court.

In response, the court issued an “invitation of its own” for all involved to come to a “kindergarten party” that “will feature many exciting and informative lessons,” including:

• How to telephone and communicate with a lawyer
• How to enter into reasonable agreements about deposition dates
• How to limit depositions to reasonable subject matter
• Why it is neither cute nor clever to attempt to quash a subpoena for technical failures of  service when notice is reasonably given
• An advanced seminar on not wasting the time of a busy federal judge and his staff because you are unable to practice law at the level of a first-year law student

Some may think that the judge overreached in this opinion and should not merely set a date for the hearing. I am not one of those people.

During the course of anyone’s practice, there will be a time when a motion or filing or subpoena is technically wrong. You will be faced with a couple of decisions: go full-bore litigation or make a call to opposing counsel to work out the issue.

The latter will save your client money and time and usually will put you in the same or a better situation than the full-bore litigation. Further, there is always the option of full-bore litigation in the event that the telephone call does not mutually resolve the problem.

With the ever-changing way we communicate (from actual conversations to written letters to faxes to emails), there should be a reason for why you are communicating in a specific fashion. Emails and letters may be used during the course of litigation to prove an attorney has met her good faith requirement or has provided notice.

Actual conversation, however, is the best way to resolve actual issues and seems to be a lost form of communication.  It is easier to hide behind a written motion or email, and it also gives the drafter an opportunity to organize his thoughts, but with that form of communication, the reader may inadvertently make incorrect assumptions.

It is not often that an attorney gets publicly reprimanded by the court in the way that Judge Sparks has done here.  Unfortunately for these parties and their attorneys, their dirty laundry has been aired virally for others to see.

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