We have reached that point in man’s development where any reasonably advanced technology is indistinguishable from magic – Sir Arthur C. Clarke.
I’m dancing as fast as I can – Juice Newton.
These two quotes, uttered by two people who have about as much in common as chipmunks and whales, pretty much sum up my efforts to move into the 21st Century. We’re 17 years in now, and I’ve adjusted to it about as well as I used to adjust to curveballs: I can see the spin, I know what’s coming, but I still spend a lot of time sitting on the bench mumbling about my inability to handle it.
I am not a complete Luddite. I’m comfortable with my computer. Word processing has made me a better, more careful writer. And the intertubes have enabled me to retrieve my photos, watch my grandchildren skiing and play in fantasy baseball leagues against competition from strangers all over the country. I like all of that.
But it’s still indistinguishable from magic for me. I have no idea how this stuff gets into the tubes where I find it, I have no idea how it gets out of the tubes and into my home or office, and I’m having to dance like crazy to keep up with it.
Every few months an IT maven comes into my chambers and tells me I have to learn a new operating system … or replace my phone … or rammelfratz my thingamabob—all of which will require either four hours of training or six months of cursing and kicking the water cooler. My choice.
Granted, this is not an entirely new experience. I used to have the same problem with mechanics. “Your Johnson rod has worn through the Knudsen nut and they both have to be replaced, along with the Iskenderian carburetion valves. It’ll run about $800 plus parts and labor. Or you could just let your daughter keep driving it until it blows up.”
But if worse came to worst with the mechanic, I could take a bus to the office. It’s different with electronics. I can’t do my job anymore unless I understand how to use this stuff.
Our court has electronic filing now. Briefs don’t come on paper unless some Neanderthal hikes out to the forest and chops down a tree. Instead, they come in little electronic blips, a gazillion zeroes and ones that tiny little diodes and chips and Iskenderian carburetion valves translate into words that appear on my screen as magically as crocuses popping up through the snow.
I no longer try to understand this. I belong to a religion that believes in flaming shrubberies that talk, people who live inside the belly of a whale, and tripartite divine beings. You can’t stay in that club if you’re uncomfortable with mystery. So I’m fine with not understanding how these characters appear on the electric box above my keyboard.
But dealing with them once they appear is another matter entirely. That I need to be able to handle. And it’s requiring an adjustment.
I can find the cited cases—which, as I understand it, lurk inside my monitor like a colony of over-educated termites—but reading them on the screen is an entirely different matter.
For some reason, I retain much less of what I scroll through than I do of what I turn pages through. So I find the citations in the ether of my monitor and then walk across my chambers to pull down a book so I can actually read and understand the case. This is the legal equivalent of hiring a French chef to pour the milk onto your cereal.
I’m going to a seminar next week to learn about e-discovery. We didn’t have e-discovery when I practiced, and I just know I’m going to be expected to make some kind of definitive pronouncement about it someday soon, so I have to go get Professor Iskenderian to show me where the on/off switch is.
Oh, and those electronically filed briefs I mentioned? They’ve changed filing deadlines, too.
It used to be that no judge got through his career without having to field a few motions for relief for default that revolved around an attorney’s declaration that included the plaintive lament, “Your honor, we were late filing but it wasn’t our fault. We were late because there was an accident on the freeway that delayed our attorney service. The clerk’s office closed three minutes before we got there.”
Now, with electronic filing, the deadline has been changed to midnight. No freeways, no accidents, no problems, right? Well … not exactly.
Our rule actually requires the brief to be filed by 11:59. If you file AT MIDNIGHT, you’re in violation of Rule of Court 8.77 and your brief will “be deemed to have turned into a pumpkin which was received the next court day.” It’s just a matter of time—so to speak—before some poor judge has to sort that one out.
Actually, a similar thing has already happened. In Utah. In the federal district court. In a case called Amy G. v. United Healthcare, a lawyer filed his opposition to a summary judgment motion 18 minutes late. At 12:18 a.m.
His motion for relief from default said nothing about freeways or traffic accidents. It said he would have been on time except that his favorite basketball team, the Utah Jazz, blew a 25-point lead in their playoff game against the Oklahoma City Thunder and he was so devastated he couldn’t finish in time.
That’s right: The playoffs ate my homework.
According to his motion, the prospects for timely submission of his opposition were “excellent,” until the Jazz tanked. “But the emotional effect of an eventual Jazz loss (which began at approximately 10 p.m.) was, to say the least, dispiriting. The pallor cast on counsel’s mind eventually led to submission of a written product that was twice as long and half as strong as it would have been had the Jazz emerged victorious. As well as 18 minutes tardy.”
Senior U.S. Judge Bruce Jenkins granted the motion for relief from default (by extending the deadline for filing). Jenkins is 90 years old. da Vinci said, “Old age has wisdom for its food,” and Jenkins is apparently a big eater.
It also didn’t hurt that opposing counsel, from a firm called Dorsey & Whitney in Minneapolis, didn’t object. There are still a lot of lawyers who understand that ours is a profession, not a business. Not enough, but a lot.
So kudos to parties and a judge who solved a 21st century dilemma with a little 19th century decency and commonsense. May they keep on dancing this fast.
 Yes, that is a plural. I am a baseball degenerate.
 My daughter, of course, could no more take a bus to school than she could flap her wings and fly there, but that’s another story.
 Probably not the best simile for a primarily California audience, but you’ve gotten used to making allowances for me, right?
 Which, by the way, is not attached to a single wire, and which I can carry across the room just like magicians used to pick up their top hat and wave it in the air before pulling six rabbits and a cockatoo out of it. Magic, indeed.
 I’ll pause here so you can make up your own joke about having known for some time that I was having difficulty reading. Let me know when you’re ready to start up again.
 The pterodactyls drove it away.
 Pay attention. This is the MCLE portion of today’s lecture.
 OK, not an exact quote, but you get my drift. (The codes would look a lot different if I’d been a legislator instead of a judge.)
 I’m giving them a shoutout because they earned it. Not that the approbation of a California judge is going to do them a whole helluva lot of good in Minneapolis.
William W. Bedsworth is an associate justice of the California Court of Appeal. He writes this column to get it out of his system. He can be contacted at firstname.lastname@example.org. And look for his latest book, “Lawyers, Gubs and Monkeys,” through Amazon, Barnes & Noble, and Vandeplas Publishing.