Chosing to Sit in the Dark is Not Professional reports this morning on an attorney whose case was dismissed because he missed a notice of motion for summary judgment due to computer problems. More precisely though the problem was that he chose not to deal with the problem. 

A federal appeals court has upheld dismissal of a wrongful termination case granted after the plaintiff’s lawyer experienced computer problems and never got e-mail notice of a motion for summary judgment.

Lawyer Charles Everage of Charlotte, N.C., said his computer was afflicted by a malware virus and other problems. As a result he never learned of the motion and he didn’t respond to it. A trial judge dismissed the suit Everage had filed on behalf of a fired worker, and denied the lawyer’s motions to reinstate it.

The Richmond, Va.-based 4th U.S. Circuit Court of Appeals affirmed. Everage was aware of his computer troubles, the court said, and should have checked the court docket or informed the judge and opposing counsel of the situation.

Everage was “willfully blind,” the court said in a 2-1 opinion (PDF), and he can’t obtain relief from the consequences of his choices. The majority opinion by Judge Allyson Duncan noted Everage had testified that he chose not to call opposing lawyers because he didn’t want to alert them to the court’s deadline.

Everage “made the affirmative decision to remain in the dark,” Duncan wrote. A concurring opinion by Judge Andre Davis elaborated, referring to “counsel’s unwise and misplaced strategic choice to litigate, ostrich-like, with his head in the sand.”

Apparently Everage needed a good, professional, empowered paralegal who could identify the problem,  and analyze and implement solutions such as those suggested by the court. The professional paralegal does not simply complain about a problem or ignore a problem. Rather she or he takes control. If the problem cannot be solved, plans are made and implemented to determine and minimize the ill effects of the problem. A good paralegal, assuming Everage was willing to listen and work as a team with that paralegal, could have helped him arrive at solutions much better than role-playing an ostrich.

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