Sometimes litigants don’t want to settle but they don’t want to appear at a deposition or appear for trial.  Sometimes lawyers aren’t prepared, are afraid of trying a case or have other reasons that they don’t want to appear, either.  Like teachers who have heard the “dog ate my homework” excuse one too many times, I am sure that judges also hear every excuse under the sun to delay a matter.  Should they just grin and bear it and give the brief adjournment or should they force the issue?  If they don’t grant the adjournment and the party still does not appear, should a court proceed without them (even if the court warned that that is what would happen)?  What happens then? Should the other side consent to the adjournment?

 

These issues recently came up in the case of Ross v. Ross, an unreported (non-precedential) Appellate Division decision that reversed a trial decision because the trial court disbelieved the defendant’s (wife) doctor’s note and proceeded at a trial without her.  In this case, the wife was pro se.  After 4 trial adjournments, the trial finally started.  When it did, defendant told the court that she was having a medical emergency but was willing to stay.  The trial was supposed to resume two days later but on the following day, defendant’s doctor faxed the judge a note saying:

… is suffering from menorrhagia Started hormonal treatment today. I advise bed rest for then [sic] next 2-3 days, until her bleeding stops.

The Appellate Division was kind enough to add the following footnote, because we really needed to know:

Menorrhagia is the medical term for abnormally profuse menstrual flow. Webster’s Ninth New Collegiate Dictionary 741 (9th ed. 1988)

The judge apparently never called the doctor, on the record, or otherwise, to get to the bottom of the issue.  Rather, the trial judge denied the request for an adjournment, (1) because of defendant’s prior history seeking adjournments; (2) because the note was handwritten on a prescription pad, and because he was unaware of whether the doctor even saw defendant before writing the note.

Defendant appealed and the Appellate Division reversed noting:

Here, the note defendant’s doctor faxed to the court identified the condition from which defendant was suffering and specified the treatment required (bed rest for two to three days, or until the bleeding stopped). The judge questioned the legitimacy of the treatment the doctor recommended, because the note did not indicate whether the doctor had physically examined defendant or whether his conclusions and recommendation were based merely upon defendant’s “self-report.”

What information the doctor needed to have before making his recommendation is not common knowledge … Without input from a medical expert, or the doctor himself, the judge did not know that the doctor possessed insufficient information to have given the advice he did. …  Absent further inquiry, such as a telephone call to the doctor in the presence of the parties and on the record, the judge should not have concluded the treatment the doctor ordered was invalid.

The trial court also discounted the worthiness of the note because it was handwritten on a sheet from a prescription pad. There is, however, nothing about a handwritten note which undermines the substantive content of such note, per se. Certainly, the fact the note was handwritten does not detract from its authenticity. …

The Appellate Division recognized the trial judge’s frustration and the fact that people sometimes scam the system to delay things.  That said, there was no way to determine that in this case.  The Court noted:

We are mindful there are litigants who stoop to unscrupulous conduct in an endeavor to delay court proceedings. We do not suggest there are not instances when there is a reasonable basis to reject the authenticity of a doctor’s note or the legitimacy of a doctor’s recommendation that a litigant be excused from appearing in court. Each case is fact sensitive and must be examined on its own merits.

Here, however, there was not a reasonable basis to reject as unreliable the note from the doctor indicating defendant was suffering from a malady requiring bed rest. Given the absence of any evidence the doctor and defendant colluded to “game the system” or that the contents of the note were otherwise unworthy of belief, it behooved the judge to grant a short adjournment of the trial until defendant was well enough to attend court. Under the factual circumstances presented, we are constrained to conclude that the denial of the adjournment request was a mistaken exercise of discretion. Given our disposition, we need not reach the other points raised by defendant in this appeal.

Reversed and remanded for a new trial.

The opinion doesn’t say whether plaintiff objected to the adjournment or not.  If he did, all that got him was the expense of a new trial.  If he didn’t, the take away here is that maybe, in these situations, counsel might want to suggest that the doctor be contacted before disregarding the note and proceeding without a litigant present.

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Eric Solotoff is the editor of the New Jersey Family Legal Blog and the Co-Chair of the Family Law Practice Group of Fox Rothschild LLP. Certified by the Supreme Court of New Jersey as a Matrimonial Lawyer and a Fellow of the American Academy of Matrimonial Attorneys, Eric is resident in Fox Rothschild’s Roseland and Morristown, New Jersey offices, though he practices throughout New Jersey. You can reach Eric at (973)994-7501, or esolotoff@foxrothschild.com.

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