Established Norms

I was informed in October that Angus was going to be replaced as Rogers' lawyer by a lawyer called Joseph C. D'Angelo. Joe D'Angelo is the head of Lang Michener's commercial litigation group and a partner at Lang Michener with 17 years of practice under his belt.

D'Angelo's first approach to dealing with Rogers and Me was to offer to settle my claim in total - which meant for Lang Michener that Rogers would pay $5,000 of my $10,000 claim. I presented a counter-offer indicating that I would take $5,301 in monetary compensation and, as part of the settlement agreement, ask Rogers to sign off on four non-pecuniary terms. My counter-offer was rejected and, as per D'Angelo's projection, he took out a motion for summary judgment on the grounds that half of the total claim in fact constituted the total claim. He lost that motion.

Two weeks later, I got an email from D'Angelo indicating that Rogers wanted to enter a discussion with me about a settlement discussion, but he wanted a confirmation from me first that any settlement discussion we had would not be posted on my web site or in any other public forum.

As that confirmation was never granted to D'Angelo's satisfaction, the following discussion about a settlement discussion surely cannot be taken, itself, as a settlement discussion, the latter of which, arguably, should not go on the web site as doing so could conceivably be construed as telling the trial judge about settlement negotiations through the back door. This is the discussion we had about a discussion:

First, some context:

When I got D'Angelo's offer to settle, it came by way of an email with the words "confidential" written in the subject heading. The attached offer had the phrase "With Prejudice" written across the top of it. As the conjuncture of those two phrases baffled me, I sent D'Angelo an email response that said

"You write "With Prejudice" at the top of the offer. And you also enter the word "Confidential" in the email's subject heading. I wonder if you could tell me what is intended by those formulations? especially what is meant by both in conjunction with each other?"

D'Angelo responded to my query as follows:

"The "confidential" designation on my email means what it says: ie. my communication to you is intended to be confidential, and I trust you will treat it as such. The "with prejudice" designation on the letter means that, if we ultimately have to go to court for a motion, the offer can be referred to in our material."

Still baffled (as were my colleagues), I emailed back:

"My understanding is that what you are suggesting to do in a motion, namely refer to or enter anything pertaining to settlement negotiations in the court record, is precluded by law. So that's where my confusion arises. My understanding is that the phrase "without prejudice" that one frequently sees on settlement communications is without meaning as the law, in any event, precludes parties from entering all communications relating to settlement matters into the court record (so every communication relating to settlement will automatically be "without prejudice"); a fortiori "with prejudice" is without meaning. I may well be missing something. This is not my area of specialization.

And then, further, if you refer to settlement matters in the court record, then it no longer remains confidential as it is part of the court record. So that's where my confusion arises as you seem to be both wanting to keep things private and then in short order make them public (and in doing so, it would appear, violate the law).

Can I just ask, in light of the above confusion, how it is that you could see legally entering settlement negotiations into the court record? The phrase "with prejudice" has baffled most people I've asked.

D'Angelo didn't want to engage any further in the paradox of Rogers' asking me to keep a confidence over exchanges, the content of which Rogers announced, in the very next breath, it was prepared to break the law to disclose:

I do not think it is productive to engage in a debate over the meaning of legal terminology. It is puzzling that you are so focused on whether or not the offer can be disclosed. Surely the real issue is whether or not you are interested in settling. Rogers has made a settlement offer to pay the balance of your claim with a view to concluding this litigation on an amicable basis. Do you wish to accept it?

Consistent with the research agenda of this web site, I replied:

On the merits of debating legal terminology, please bear in mind that while working with the law is your bread and butter, fascination with the way the law works is mine.

And the rest of that motion is history.

That history sets the context for the discussion about a settlement discussion that took place between Joe D'Angelo and me two weeks after he lost the motion for summary judgment he said he'd pursue if I didn't accept Rogers' offer.

Would I confirm, D'Angelo wanted to know two weeks later, that any settlement discussion between Rogers and me would be without prejudice and be treated as private and confidential (ie. not to be publicized on my website or in any other public forum)?

Bear in mind, this question (I confirmed over the phone) was not a request that I provide confidentiality on an eventual settlement agreement. This was a request for confidentiality on settlement discussions. My email response was a follows:

I am prepared to negotiate with Rogers in good faith to arrive at a settlement of our dispute. Further, I can confirm that any settlement discussions we may have will be treated in a way that is fully respectful of the law as regards the confidentiality of the communications between us.

Commiting myself to the law and good faith was apparently insufficient for D'Angelo:

Just for clarity, I am not sure what you mean when you say our discussions "...will be treated in a way that is fully respectful of the law as regards the confidentiality of the communications between us."

Does that mean you are agreeing that our discussions will be without prejudice and treated as private and confidential (ie. not to be publicized on your website or in any other public forum)?

Feeling I had little recourse but to tangentially re-enter the vexed subject of semantics, I replied as follows:

As I've tried to articulate, I don't think it is meaningful to label settlement negotiations "without prejudice" or "with prejudice". The law precludes parties from entering settlement negotiations into the court record.

I suspect you will agree that re-entering that discussion is not going to be fruitful so I would prefer to avoid that language altogether. In the place of this phrasing, I again offer my affirmation that I will commit myself to respecting the privilege in settlement discussions to which the law holds me and that I consider myself bound to negotiate with Rogers in good faith.

Are you asking me to provide you with a commitment over and above the obligations of the law and good faith?

It was at this juncture that Joe D'Angelo sent me the first of his expressions of dismay at how vexatiously legalistic I was being:

I initially contacted you because of the unequivocal statement you made to me in court that if Rogers paid the whole claim, then the whole case would go away. As I did not want to see any of our discussions published on your website or referenced in a press release, I requested your confirmation that any discussions we might have concerning a possible settlement be on a confidential and without prejudice basis. This is entirely consistent with established norms for the conduct of litigation. Given that you are a professor of law, I had thought you would understand the significance of my request.

However, I have no choice but to interpret your highly technical responses as an indication that you wish to be free to publish or otherwise disclose such portions of our discussions as you so choose.

Yikes. To be chastised as a law professor by a lawyer! For a law professor not to know the "established norms for the conduct of litigation." Even more shameful: for a legal anthropologist not to have sussed out the "established norms", the very phenomena that are the essential grist of the ethnographic mill; those unwritten conventions that are the way things "really" work; the "society" part of the law and society equation; the amorphous things that everyone who is someone knows. Unlike the law, that is the mundane stuff of statute and case law, the established norms are the very essence of the law, the stuff that has been groomed and massaged by years and years of practice, the regular, and therefore regularized expectations around what is (to use that most ineffable of words) "appropriate" and what is, ehem, not.

Only a neophyte, someone unschooled in law, someone who is less than a member of the Law Society of Upper Canada, would hold a lawyer to the law. Didn't I know that? How terribly disappointing.

One of the striking things about D'Angelo's response is that, in his reference to my "highly technical responses", he seems to be voicing a complaint that surely - were it not coming from the head of Lang Michener's Commercial Ligitation Group - suggests that what is most disappointing for him is that I have provided him with a "lawyerly" response. "Pleading the law and good faith," he seems to huff. "I thought that, as I was conversing with a law professor, you and I were above all of that."

This little exchange was the beginning of the ways in which I appear to have "puzzled", "disappointed", and "surprised" Mr. D'Angelo. I believe a deeper layer of those ellusive and inscrutable "established norms for the conduct of litigation" may well be disclosed by scrutinizing the psychological undercurrents of those minor emotional ejaculations:

The discussions about a settlement discussion, as can be inferred, went nowhere further: we were stalemated by my "highly technical" insistence that I would be bound by the law.

So, after a reasonable period of calm, I sent D'Angelo an email on Novemer 11, 2006 indicating that I had reserved a motion date that I was hoping that Rogers' cooperation would preclude me needing to use:

I assume that when Angus Pseudonymous passed my small claims court file over to you, he indicated that at my June 8 motion, the judge instructed Angus to have his client produce documentation that I was requesting. I provided Angus with the following list of requested documents and/or figures and asked him to provide me with the materials by the end of July, beginning of August.

Angus indicated he would go over the list with Rogers and, if there was greater specificity that Rogers required, he would instruct me within a couple of weeks as to a narrower formulation.

I haven't received any of those materials to date, nor any explanation as to why I haven't heard back from Rogers on this point.

The new trial date has been set for late February. Could you please see that Rogers provides the materials that I asked for in June and am here again requesting.

I have booked a motion date for January 9 in order to ask the court to order production of the material. But I am hoping that both of us can avoid yet another motion date by having Rogers honour Angus' undertaking and the motion judge's instructions.

This email was the trigger for a further bout of disappointment. Amongst other things said, D'Angelo had this to convey:

As for your planned motion on January 9, 2007, first, I am surprised and disappointed that you arbitrarily scheduled the motion date without first checking my availability. I would have thought that, as a legal professional, you would have extended such courtesy to me. (The court advises that you scheduled your motion back in October; it is puzzling that you waited until November 22 to advise me.) In any event, I will be out of the country during the first two weeks of January, so I
will have to arrange for someone else to attend.

Yikes again. Surprise, puzzlement, disappointment, and a clear rebuke for discourteous behaviour unbecoming a "legal professional". There appears to be something, indeed, vaguely inhumane about my comportment. If it should irk me as a "legal professional" not to have sussed out conventional expectations about how the law "really" works, then a fortiori it should irk me as a legal anthropologist not to have picked up on the subtleties of rudimentary propriety. And so I responded as follows:

I'm sorry if I caught you off guard with the motion date. I booked it on October 26 when we were at Rogers' motion. In light of the discussion we had been having about settlement just following that motion, I had been operating under an assumption that both a trial and motion would likely be unnecessary. Once it seemed that those negotiations were not, at that juncture, proceeding any further, I notified you of the motion date.

I'm also sorry if I didn't consult with you about the date; given that Lang Michener didn't consult with me as to my availability prior to booking the October 26 motion date, I had been assuming that it was not standard practice to do so.

I've checked with Small Claims Court and there are other Thursdays before the trial that are currently open for motions, starting on January 25. Would you prefer a date that is later?

To which Joe D'Angelo responded:

Thank you for your email.

Regarding your statement that Lang Michener did not consult you as to your availability prior to booking the Oct 26th motion, as I recall, that date was the original trial date. It is my understanding that you agreed to an adjournment of that trial date, and that you also agreed that our motion could proceed on that date instead.

In any event, at this point, I am booked for a lengthy arbitration hearing in late January to early February, so it is probably best that we proceed with the motions on January 9th. I will have someone else from my firm attend.

Hmm. Apart from the obvious fact that, unlike a self-represented party, lawyers from Lang Michener are fungible and can apparently be replaced on a whim, hadn't there been a practical point regarding the motion date beyond the idle, yet pointed, expression of surprise, disappointment, and puzzlement? The established norms are elusive and apparently infinitely plastic and malleable. But it is apparently not done to let a questionable statement pass, and so, following suit, I responded as follows:

The long scheduled trial was set for September 11. Although I indicated in July that I would make myself available for ad hoc motion dates throughout August so that your colleague Donald Plumley could bring the motion to quash which he seemed determined to pursue, I got a letter from Mr. Plumley on August 21 asking for my consent to an adjournment, failing receipt of which (I was informed) he would seek an adjournment from the court directly. I was informed in that same letter that he had reserved the October 26 motion date so he could bring a motion to quash my summons of Ted Rogers.

Unlike you, I was not terribly disappointed that your colleague had arbitrarily scheduled a motion date without first checking my availability; nor that, as a legal professional, Mr. Plumley had not extended a courtesy to me which you find basic. Perhaps that's because I was not terribly surprised.

I suppose being a "law professor" rather than a "lawyer" gives me a slightly thicker skin for the discourtesies of the "legal profession".

And apparently, it matters terribly that these kinds of assertions about the normal expectations of courtesy between legal professionals are set exactly straight, because I got another email from Joe D'Angelo on this topic. Bear in mind that, unlike my missives, the following response from D'Angelo also constitutes a billable fraction of time:

While I regret having to prolong this discourse, I must address your comments about the October 26th motion date. You suggest that my partner, Don Plumley, arbitrarily picked the Oct 26th motion date without checking your availability and you refer to his letter of August 21, 2006.

I have checked with Mr.Plumley, and his file reflects a telephone discussion with you on August 17, 2006 - four days before his letter. In that telephone discussion he advised you that we wished to bring a motion, but that we could not get a motion date before the scheduled trial date. The first available motion date was October 26th. Pursuant to that discussion, we understood that you both agreed and consented to the adjournment of the trial date so that a motion could be scheduled on October 26.

I have already caught on that the "established norms for the conduct of litigation" have little to do with the law. In the alternative, apparently these little dances of words are fairly constitutive of the conventions that govern the yin and the yang of law suits, the parries and thrusts that bring the action to its inevitable denoument, shifting the balance of propriety and haughtiness in such a way that one's character can be eventually laid bare, naked as a worm, at the bench of the ultimate trier of fact. Why else would a $500-$700/hour lawyer spend his time making sure I understood that his huff had a foundation?

Far be it from me to decline to dance when to engage enhances my ability to see how the deeper intricacies of the legal profession work:

Yes, I had been advised by a letter from Mr. Plumley on June 19, 2006 that, should I serve a summons to witness on Ted Rogers, Mr. Plumley would get a motion to quash it.

When I attempted to serve David Miller and Jan Innes personally with summonses to witness in the week of August 14, 2006, they declined to come down to the lobby of Rogers' corporate head offices to take receipt of them. When I returned home, I had a message from David Miller's secretary, Carmencita, telling me that Donald Plumley would take receipt of both summonses in lieu of personal service and she asked me to call Mr. Plumley to confirm the arrangements; which I promptly did. Those arrangements were the purpose and content of the call that you refer to.

I'll take your note that Mr. Plumley also told me in that conversation that he could not get a motion date prior to the September 11 trial (although my records do not reflect this) - I had told him as much in my letter to him of June 28, 2006.

Did I consent in that phone call to an adjournment? No - although my prior correspondence and subsequent behavior indicated that I didn't have a problem with an adjournment if Mr. Plumley thought it might facilitate his case. That the August 17 phone call did not consist in Mr. Plumley getting my consent to an adjournment (as per your last email) is confirmed not only by my records but also by Mr. Plumley’s August 21 letter seeking my consent to an adjournment and simultaneously telling me that he would seek one directly from the court should I fail to provide it - not exactly the approach of one who is of the conviction that consent to adjourn had already been fully given on August 17.

And in my opinion, Mr. Plumley noting that a motion would be sought in the future, and then instructing an associate to unilaterally secure one and subsequently inform me about it, is not quite the same thing as checking with me as to my availability for dates in advance.

Not to worry though. If I was unable to accommodate Rogers’ October 26 motion date, I presume the appropriate thing to do would have been to alert you to my lack of availability. And I can only retrospectively hope that Lang Michener would have been as accommodating to me in those circumstances as I was to you following your recent expression of surprise, puzzlement, and disappointment.

Apparently my thrust on that round was conclusive. I didn't hear back from Joe D'Angelo. And a new lawyer was assigned for my motion: Shane Hardy.

I suspect that it would, indeed, have been much easier for Joe D'Angelo if I had been a lawyer. No lawyer would dare transform a colleaugue into an object of study, would post these conversations to a web site, would behave with such a striking lack of decorum, unbecoming a legal professional.

There is a gift economy in the legal profession that has a long and deep memory. Only someone who didn't care about ever again earning their daily bread in that particular market place would behave in such an incommensurate manner.

But I'm not a lawyer. Though I have four law degrees, I'm not a member of the Law Society of Upper Canada. I've never written the bar exams. I've never articled. I have no lawyer's insurance, the precarity of which is perilously poised. I have no propsective clients to lose. And yet I still have a handsome living that I am oterhwise earning with the law. I have no connections to the social or professional networks that need to be perpetually massaged. More significantly, I don't even have aspirations for these things.

I'm a wee bit hard to reach with expressions of disappointment from a lawyer regarding his expectations of how legal professionals ought appropriately to behave.