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Lawyer Blames Junk Email for Missed Deposition

By William Vogeler, Esq. | Last updated on

It's hardly news when a lawyer misses an important email because it happens all the time, right?

After all, what with all the junk mail from vendors and others, it's easy to overlook an important email once in a while. But what if that important email went straight to the junk mail?

Attorney Stan Davis, whose case could be dismissed over it, is asking a judge to decide the issue. But many lawyers know the answer because they have been there, done that.

Excusable Neglect

Some mistakes are so common the law has an answer for that. In California, for example, it's Code of Civil Procedure Section 473 -- perhaps the only section not on the bar exam that every practicing attorney has memorized.

It provides that a party may be relieved of a default for mistake, inadvertence, surprise, or excusable neglect. Judicial relief is discretionary, unless the erring attorney admits the mistake. Then a set-aside is mandatory.

In Wisconsin, Davis is hoping the judge will give him a break for missing the deposition notice attached to an email. Wisconsin's excusable neglect statute, Section 806.07(1)(a), may help his case.

Davis sued the University of Wisconsin on behalf of a coach who claims he was forced out of his job for reporting a sexual assault to police before telling university officials. The university is asking the court to dismiss the case because Davis and his client didn't show up for a deposition.

Whose Fault, Really?

Attorney Katherin Spitz, who is arguing for dismissal, blamed Davis for missing the deposition. The university also sent the deposition by regular mail, she said in a motion.

Davis, in response, says the university's representatives never called him after he missed the deposition. He implied that it was their fault.

"It is almost as though the defendants knew, or at least suspected, that the plaintiff had not received the notice," he said.

The excusable neglect law doesn't work that way, however. It dictates a set aside only if the lawyer accepts responsibility.

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