Monday, April 11, 2016

Writer’s Block is a Litigation Epidemic, but Overcoming it is Nonbillable

Originally published by Kyle White.

Writer Block

We at Abnormal Use are not even immune to the dreaded writer’s block, which is “a condition, primarily associated with writing, in which an author loses the ability to produce new work or experiences a creative slowdown.” Being the aggressive litigators that we are, our first instinct when faced with an issue is to face it head on. So, with this particular case of writer’s block, we decided to see whether writer’s block has appeared in reported case law. And as you might expect, it has.

For example, the great Bob Dylan has been accused of appropriating another author’s work due to a bout with writer’s block. Damiano v. Sony Music Entm’t, 168 F.R.D. 485, 488 (D.N.J. 1996) (“The plaintiff further alleges that Mr. Dylan used the material because Dylan was suffering from writer’s block, regarding which the plaintiff has submitted a transcript of an interview where Dylan allegedly admitted to having writer’s block.”). Similarly, writer’s block was evidence of motive to steal another’s author’s work.  See Price v. Fox Entm’t Grp., Inc., 2007 U.S. Dist. LEXIS 6083, at *32 (S.D.N.Y. Jan. 26, 2007) (“There is evidence that Thurber wrote approximately 90% of his 150-page first full-length draft after the alleged date of access, following months of writer’s block and frustration.”).

Writer’s block has also allegedly caused individuals to miss court deadlines. A gentleman named Leland Huff filed a late administrative appeal and offered the excuse that “he suffers from ‘fairly extreme writer’s block’ finding it difficult to deal with ‘any kind of paperwork.’” Huff v. MSPB, No. 02-3298, 2003 U.S. App. LEXIS 4341, at *2 (Fed. Cir. Mar. 10, 2003). Unfortunately, Mr. Huff’s writer’s block was not “deemed good cause” for the late filing.  Id at *5. Writer’s block has also caused plaintiffs to fail to respond to a motion to dismiss: “The plaintiffs also suggest that their emotional involvement in this case engenders ‘writer’s block,’ which hampers their ability to respond to the defendants’ submission.” Ficken v. Golden, 696 F. Supp. 2d 21, 35 n.15 (D.D.C. 2010) The Court had “difficulty crediting the plaintiffs’ claims of ‘writer’s block,’” though, in light of the “plaintiffs’ voluminous submissions, including rambling twenty-five page oppositions to the defendants’ motions to dismiss, as well as a 179-page complaint.” Id. Similarly, the fact that plaintiff ” loses his train of thought and has writer’s block” was an insufficient basis for an equitable tolling argument. Snoke v. Unknown, No. CV 11-5971-TJH (MAN), 2012 U.S. Dist. LEXIS 123294, at *23 (C.D. Cal. Aug. 28, 2012). Lawyers are not immune to writer’s block-induced late filings either apparently. See, e.g. United States v. Martinez-Vargas, 321 F.3d 245, 248 (1st Cir. 2003) (“In belatedly broaching this subject, the lawyer conceded that he had not objected within the stipulated time frame and ascribed his failure to ‘writer’s block.’”). So, courts do expect lawyers and pro se litigants to overcome the writer’s block in time to comply with deadlines.  However, unfortunately overcoming writer’s block is a non-billable exercise.  Kelly v. Helling, No. 3:13-cv-00551-RCJ-WGC, 2014 U.S. Dist. LEXIS 174801, at *6 (D. Nev. Dec. 16, 2014) (find that legal fees of “approximately 100 hours for preparing the motion for summary judgment, including 4.5 hours for ‘[s]tewing the writer’s block’” were unreasonable).

Notwithstanding the fact that courts are reluctant to give litigants a pass for writer’s block-induced slip ups, they have wished writer’s block on motion-heavy litigants: “One suspects that neither side would shed a tear should the other come down with a crippling case of writer’s cramp or an immobilizing onset of writer’s block, although the Court itself would be grateful for the respite in the deluge in pleadings such events would produce.” Pepsico, Inc. v. Cent. Inv. Corp., No. C-1-98-389, 2002 U.S. Dist. LEXIS 25765, at *14 n.2 (S.D. Ohio Feb. 1, 2002). And of course, litigants have also come down with medical malpractice-induced writer’s block: “Mariano argued that he suffered damages from the procedure, including a lengthy recovery period, lack of appetite, difficulty hearing, negative impacts on his employment opportunities and social life, and ‘writer’s block.’” Mariano v. Swedish Cardiac Surgery, No. 68924-0-I, 2013 Wash. App. LEXIS 2709, at *2 (Ct. App. Nov. 25, 2013).

What is the takeaway?  Writer’s block is not a valid excuse for an out of time filing, nor is it a valid time entry. Deal with it on your own time, and deal with it in a timely fashion.

Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.

from Texas Bar Today
via Abogado Aly Website

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