Hear Ye, Hear Ye! If you are used to traditional methods of communication wise up quickly, or get out of the way before your client, and you, personally, have a very bad experience.

Doubling down on last month’s stern e-mail technology lesson to attorneys on Friday the First District Court of Appeal denied appellant’s motion for rehearing, rehearing, and for certification in Emerald Coast Utilities Authority v. Bear Marcus Pointe, LLC, Case No. 1D15-5714 (Fla. 1st DCA, October 6, 2017).

Instead, a substitute opinion went far beyond a tweak here and there. Adding pages to its original opinion, the court reinforced its directive that counsel’s e-mail systems must be designed to do more than just deliver most email, and do more than implying that attorneys need to know how their messages are handled if they have a shot at claiming a failure amounts to excusable neglect. Two duties of care were projected.

Counsel has a duty to have sufficient procedures and protocols in place to ensure timely notice of appealable orders. This includes use of an email spam filter with adequate safeguards and independent monitoring of the court’s electronic docket. In cases where rendition of an appealable order has been delayed for a significant period of time, it might also include the filing of a joint motion for a case management conference to ensure that the order has not slipped through the cracks. Odom & Barlow made no effort to do any of these things, reflecting an overall pattern of inaction and disengagement.

One duty involves the need to have a properly working e-mail system. The second duty described is for an attorney to move the court’s docket when there is no apparent reason for delay.

Driving home that this is not a new issue, a five year old Alabama decision was used seemingly to flog the technologically inept:

An inability to manage an office e-mail system to properly receive notices of filing does not qualify as excusable neglect.

Crocker v. Child Dev. Sch., Inc., No. 3:10-CV-759-WKW, 2011 WL 4501560, at *5 (M.D. Ala. Sept. 29, 2011). Nailing down the message, citing to the Southern District of New York:

The fact is that all sorts of things go awry in the electronic universe in which we now live, and lawyers are obliged to protect their clients’ interests even if that requires something more than blind reliance on the proper and timely transmission, receipt and filing of computer generated electronic mail. Thus, even if one were to characterize as excusable the error attributed to the IT staff, the lawyer’s failure to check the docket sheet, knowing that he had a motion pending before the magistrate judge and that an adverse recommendation would have to be objected to within fourteen days of its entry, was not.

Pinks v. M & T Bank Corp., No. 13 Civ. 1730(LAK), 2014 WL 2608084, at *1 (S.D.N.Y. June 5, 2014).

The message seems to be: no more reliance on the same methods of snail mail, not to say that waiting for the town crier to bring you news is definitely passé. Further, perhaps to ensure catching your attention, old methods maybe below the standard of care.

The concept of an attorney pushing the trial court’s docket is new, at least in print. Each of us has recounted the year waiting for a judgment or order, and being hesitant to make another call to the judicial assistant out of concern of creating a fear of retribution. While not absolutely mandating a duty to call out the judge, respectfully of course with a proper motion, the substitute opinion places pressure on the Bar’s rules committees to set a process that will inevitably become a standard of care.

In essence, the District Court announces that the time for pussyfooting around the electronic age has ended. If you are participating in the legal system you literally must be up to speed and connected!

In other words, the unsupported assertion that my spam folder ate my important e-mail will no longer fly! The courts want the technological equivalent of the chewed document, and perhaps proof that not only did you feed the monster recently, but fed it well!

The original decision can be found at: Emerald Coast Utilities Authority v. Bear Marcus Pointe, LLC, ___ So. 3d ___, 42 Fla. L Weekly D 1753, (Fla. 1st DCA, August 10, 2017).

Many thanks to Susan Spurgeon for providing the decision on rehearing promptly. [Obviously she has been monitoring her email!]

Have a great week.

Michael J. Gelfand

Past Chair

Real Property, Probate and Trust Law Section

of The Florida Bar

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Michael J. Gelfand

Florida Bar Board Certified Real Estate Attorney

Florida Supreme Court Certified Mediator:

Civil Circuit Court & Civil County Court

Fellow, American College of Real Estate Attorneys