Not so fast


Since for some reason lawyers seem interested in cases involving lawyer boo-boos, I shall report on the SJC's decision finding that a district court abused its discretion by dismissing a case because one side failed to show up for a pre-trial conference:  UNIFUND CCR PARTNERS v. JUDY G. DEMERS; 2009 ME 19

The other side didn't brief the appeal and didn't oppose the motion to reconsider before the District Court, making it even more difficult than usual to try to draw any bright line conclusions out of the decision.  It does appear, however, that, similar to the Court's reasoning in Baker's Table, Inc. v. City of Portland, 2000 ME 7, 743 A.2d 237 (cited in Unifund), the SJC is going to take pause at a dismissal as the appropriate sanction for a party's first transgression.  While you may not get one free bite, you shouldn't be put to sleep for your first mistake.  

The lesson for lawyers on the other side of the coin – dealing with someone who isn't obeying the rules – is, I think, to use the frog in the frypan approach – ask for a sanction short of dismissal and then turn the heat up if the  misbehavior continues.  In Unifund, the SJC cited with approval a case where, when a plaintiff failed to appear for a pretrial conference, the court issued an order requiring the plaintiff to produce the record on appeal.  When he didn't, the dismissal for failing to follow that subsequent order was upheld.  Lerman v. Inhabitants of the City of Portland, 406 A.2d 903, 904 (Me. 1979).