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WHY? Why do judge’s even set deadlines for the submission of Memoranda of Law?

Jan 10, 2013 | NYS Workers Compensation

I have a claim where the judge directed submission of briefs on the outstanding issues on a very complicated case including compensability and fraud, which came and went four weeks ago without a submission from Claimant’s counsel. The original date was earlier, but neither the claimant’s attorney nor I were able to meet that deadline because one of the transcripts was not ready, so I prepared a joint request for an extension of time which was granted by Notice of Decision.

I dutifully submitted my brief on behalf of the employer, but have yet to see one from Claimant. I have since asked for preclusion, but it doesn’t seem likely that that remedy will be granted.

I understand that people are very busy, but it seems to me that a unilateral request for an extension of time could have and should have been requested by Claimant’s counsel. Yet that was not done, and I don’t think that will ultimately affect whether the law judge accepts and considers Claimant’s position paper if and when one is submitted. This laxity likely leads Claimants’ attorneys to treat deadlines as suggestions rather than as absolutes.

I am also annoyed because Claimant has had my Brief for four weeks and has the advantage of being able to respond to my position instead of having to advance his position independently. I intend upon asking for an opportunity to reply if and when a brief is submitted.

I could file an RFA and request for a hearing, and if I really wanted to be aggressive, a request for a hearing on the issue of 114-a could be submitted, on the basis that the conduct is dilatory, but that would likely just lead to another “deadline” for submission being set and runs the risk of annoying the judge.

The failure to adhere to a deadline without requesting an extension should come with some real threat of repercussion, such as reduction of the fee if one is granted, or a penalty to be paid by Claimant’s counsel. There are avenues available to request these very remedies, but in the 15 years I have been practicing I have not seen these provisions enforced. If they were this might help change the character of a”deadline” from a mere hope to something meaningful.

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