I’m assisting trial counsel in a case in which the other side filed and set a no-evidence and traditional motion for summary judgment. We put together a response and filed it seven days before the hearing, which was set for the Tuesday morning after a Monday holiday.
Around 4:00 p.m. on the Monday holiday, after I’d spent much of the day preparing to argue, opposing counsel emailed and said they were passing the hearing and would reset it for a later date.
Oh, no you don’t…
Under the local practice, hearings cannot be passed except by the agreement of all counsel. Local Rule 2.11(b) requires the parties to notify the court administrator of an agreement to pass a setting. And the docket-call announcement form required to confirm a setting states:
YOU MAY NOT PASS ANY TRIAL OR HEARING
EXCEPT BY AGREEMENT OF
For reasons specific to the case, we didn’t want the hearing to be rescheduled. So, we let our opposition know that we were not agreeing to pass the hearing and that we intended to appear.
When we showed up at the courthouse the next morning, the other side wasn’t there, and the case had been taken off the docket. We were shocked to learn our opposing counsel (through a legal assistant) had called the court administrator’s office and represented that the setting was passed by agreement.
We let the court administrator know that wasn’t true and stuck around. The court eventually reached us, but was understandably concerned about proceeding with a hearing ex parte. In the end, the trial judge took the motion under submission and told us she intended to rule on it. The judge asked us to let the other side know.
Our opposition stood their ground, first arguing we were wrong and they could pass the hearing unilaterally, and later claiming they didn’t tell their poor legal assistant to convey that the hearing was being passed by agreement. Within a couple of days, though, they had withdrawn their summary-judgment motion, which was almost as good as an order denying it.
This is a good lesson in knowing your local rules. Some lawyers may not care if the opposition wants to pull a hearing off the docket. But if you’re primed to go, really want a motion ruled on, and get an eleventh-hour email like we did, you don’t have to give in. You can tell your opponent “no,” show up for the hearing, and let the court administrator know you didn’t agree to pull the setting down.