Thursday, December 22, 2005

BellSouth Lawyers Concientious or Contentious ?

Happily, the Advocate this morning posted a story that keeps us abreast of the evolving tale of BellSouth's legal attempts to keep Lafayette from building its fiber-optic telecommunications utility.

It's upbeat; Lafayette is still winning. This time by default. The two take-home messages seem to be that 1) BellSouth did not, after all, file an appeal of the PSC regulatory ruling as they had promised, and 2) that the city is going to argue, on December 29th, that among other things, BellSouth filed late before the court trial and so should never had been heard them and should be dismissed now.

So, in both cases, Lafayette wins by default.

I wish I was as confident as the city seems to be. The good news from the story:
Louisiana Public Service Commission rules that would govern Lafayette Utilities Systems' telecommunications project were not challenged in court by the deadline, meaning one more hurdle has been passed for the project to move forward, LUS Director Terry Huval said.
And, about the two lawsuits (now joined) that are coming up for review:

Anyone who disagreed with the proposition should have filed suit within 60 days of the election, Lafayette argues in its briefs to the 3rd Circuit.

Instead, BellSouth waited to file suit against the bond ordinance.

State law says that should no suit be brought within 60 days of an election, "the authority to incur or assume debt … or issue the bonds, the legality thereof … shall be conclusively presumed to be valid, and no court shall have authority to inquire into such matters."

It does sound good, and I'd like to believe our troubles are almost over. But. Maybe it's once burned twice shy but I can't help but notice that BellSouth has filed late before and gotten away with it. That's the only reason we now have that argument to use during the appeal.

If you look back over the history of court deadlines and filings one thing that jumps out is that at every turn BellSouth has filed as late as the law could possibly allow and, often, just a little bit later. The no doubt intended result is to stretch the process out for as long as is humanly possible. So you have to ask is there any way that BellSouth could be trying to manipulate the system to buy more time?

Unhappily, I've asked around and it turns out that there is. Remember the evil sisters Katrina and Rita? Well with the courts in New Orleans and Lake Charles out of commission and with clients and their lawyers scattered to the four corners of the country something needed to be done. The Governor issued an executive order (well three, actually) and the legislature followed up with a law that "suspended" legal deadlines. There are serious questions as to whether these were truly legal, and more questions about whether the legislature broke new, questionable ground in going beyond "suspense" and into "extension." The Supreme Court stepped in to note that, in any case, they intend to try to honor the intent of the Governor and the Lege. The consequence of all this, legal eagles mutter quietly, is that responsible lawyers are queasy about relying on the suspension for any case that matters to their clients (that is to say for any case). However, since the suspension is manifestly justified in many individual instances, especially where the court is in a hard-hit area, lawyers really do not want to challenge the suspension...it does too much good and the state Supreme Court has indicated that it understands all this.

Now both those motivations, for avoiding using the extension, and at the same time for not challenging it, the alert reader will note, apply to concientious, not contentious lawyers. Lawyers who are motivated simply to stretch out time and expensively tie up the other side might not be so ready to help out by avoiding the mess altogether.

Contentious lawyers might view this as an opportunity to work the system yet again. Even though both Lafayette and Atlanta are nowhere near venues that were knocked out by the sisters--the courts in Lafayette and the lawyers in Atlanta and Lafayette scarcely missed a beat--they might still argue that they should be allowed to wait until January the third. I think our BellSouth law department is contentious rather than concientious and so expect to hear from them on the third (or maybe the fourth). Their history so far is to wait to the last minute, to try run out the clock, and I don't expect that to change.

I could be wrong; if I am it will be an indication that BellSouth has decided to start playing fair--and that would be good news indeed. I'll have to wait till January the fourth, though, to find out for sure.

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