Has this ever happened to you? You missed the deadline for an important court filing˗˗maybe an answer or a brief. Opposing counsel stands smugly by as the judge glares at you, waiting for an explanation. You suddenly have the dizzying sensation that all this has happened before.
It has! It was back in grade school when you failed to turn in your homework. Some goody-goody teacher’s pet gazed on angelically as your teacher stared stonily at you, awaiting your explanation.
The difference is that back then, you knew exactly what to say. Every grade-schooler did. You said either, “The dog ate my homework,” or “I left it in my locker.” They were all-purpose, go-to excuses. True, they weren’t fool-proof, and the second one carried the risk of triggering the dreaded response, “Then go get it.” But they were something to say when your back was to the wall.
In the courtroom, facing the judge, you would have given anything for a go-to explanation like the dog or locker excuse, but neither of them was available in the modern legal profession.
Well, now they are! Ohio attorney Kimberly Valenti has reformulated the two all-purpose excuses to explain delinquent or missing legal work. Wisely, she has retained the essence of the grade school classics, while adjusting them to fit the legal profession and today’s technology.
It happened when she was called before the Ohio Supreme Court’s Board of Professional Conduct to answer charges.
The court had appointed Ms. Valenti to represent Dick Doak after he was convicted and sentenced to life without parole. She sought and received three extensions for her appellate brief but failed to meet any of them. The court gave her 14 more days. She filed on the 14th day but didn’t file a reply to the State’s brief.
When the time came for oral argument, Ms. Valenti chose to waive oral argument and stand on her brief. That astounded the judge, who observed that her brief was “52 pages of the most difficult reading” he had ever encountered, noting that her citations and abbreviations “made no sense.” Speaking very directly, he reminded Ms. Valenti that a brief should set forth arguments coherently, with citations to authority for each alleged error.
Armed with that feedback, Ms. Valenti requested a continuance and two-week extension to file a reply brief. When the two weeks were up, Ms. Valenti sought and was granted another extension, but failed to meet the extended deadline.
The court had had enough. It replaced Ms. Valenti as Dick’s counsel. The docket entry stated that her brief was “inadequate, incoherent, and unintelligible” and that she had been unprepared for oral argument.
Ms. Valenti was called before the Ohio Board of Professional Conduct, accused of failing to competently and diligently represent Mr. Doak. Why, the Board demanded of Ms. Valenti, had she filed a nearly incomprehensible brief?
Without hesitation, Ms. Valenti invoked a variation of the locker excuse. “I left the brief in my computer,” she explained. And “I inadvertently filed a rough draft of the brief rather than the actual brief, which remained in my computer.”
As noted above, the locker excuse carries the risk of the then-go-get-it response. And, indeed, the Board asked Ms. Valenti why she hadn’t filed the actual brief when she realized her error.
Nimbly, Ms. Valenti countered with a variation on the dog excuse. “The computer ate my brief,” she explained. “I couldn’t file the brief because my USB flash drive broke off.”
In the blink of an eye, Ms. Valenti had tailored both the locker excuse and the dog excuse to fit 21st century law practice.
Alas, the Board ruled against Ms. Valenti and recommended a six-month suspension, stayed on condition she complete six hours of CLE in law office management with a focus on calendar management and technology. The Ohio Supreme Court affirmed, adding a requirement of six hours of criminal appellate law CLE.
The case is Disciplinary Counsel v. Valenti, Slip Op. 2021-Ohio-1373, Ohio Sup.Ct.
