There used to be a British comedy show featuring a comic named (it may have been his character) Reginald Perrin. In one episode, Perrin’s uptight boss is looking very offended, and says, in a very cold voice, that Perrin has “left undone those things that ought not to be left undone.” He is referring to the fact that Perrin forgot to do up his fly…
I felt sort of like this yesterday when I, my co-counsel, and our supervising attorney were in Small Claims court. The issue was that a Mr. A had owned a business at which Mr. B (our client) worked. Toward the end of the business’s life, Mr. A started to underpay Mr. B. When the business closed, Mr. A wrote out a note to Mr. B labeled “back pay” with an dollar figure written down.
Last semester, Mr. B came to the Clinic to see if, after two years of reminding Mr. A to pay, he could make him pay. Our predecessor students in the clinic filed the case in small claims, citing double damages under the appropriate Connecticut statute, against Mr. A.
But what they left undone–
1. The client had been paid in part with cash, in part with checks from C., LLC. So the suit should have been brought against not only Mr. A, as a person, but against C, LLC, as a corporation.
2. They had service performed at Mr. A’s (other) business address, and it should have been at his “abode.”
So there we were yesterday–me, my co-counsel, our supervising attorney, Mr. B, and an interpreter (Mr. B spoke only Spanish). And no Mr. A. Now, the judge looked at this and raised both of the points above–why had Mr. A not appeared? First, he pointed out that we had not sued the LLC (we should have, but we were somewhat prepared for this–we had a case that showed that in certain circumstances, it was possible to ‘pierce the corporate veil.’). Second, and more important, service was arguably inadequate…there was no way to show that Mr. A had in fact ever been notified that there was going to be a trial.
So we went through our opening argument, the direct examination with Mr. B, and the closing. But as Mr. A was never there, we had no opportunity to cross, and while the magistrate took it under consideration, there is very good reason to think that what we did yesterday was essentially meaningless…because Mr. A was not there, and we couldn’t prove that he knew he was supposed to be there. Sigh.
We should have realized what was left undone, and we could have fixed it. We could have found Mr. A’s abode using LEXIS and the Secretary of State’s listing for the LLC. We could have ensured service. We didn’t. We left undone the things that ought not to have been left undone.
Fortunately for us, in cases like this there’s a good chance that we can get back into court (there are provisions in federal labor law for a third year extension of the statute of limitations, otherwise two years).
But we should have seen this coming, and it’s frustrating that we didn’t.
To add insult to injury, my co-counsel was driving today and found himself behind a truck from Mr. A’s (other) business. So it goes…