I have a matter that is coming up on two years old. Trial is scheduled for January.
Client was injured at work and has been out of work for the last 10 months. He worked in finance, $175,000 per year and now is on Worker's Comp receiving $3,200 per month and is fighting to get a long term disability policy that will hopefully eventually pay him $6,000 per month. Currently has a $7,000 per month p.l. order.
Obviously, this is a huge, huge change from the facts that existed months ago. The extent of the injury wasn't obvious at first, it's evolved (or devolved) and gotten worse. It doesn't look like he'll return to employment.
Understandably, the judge isn't eager to adjourn the trial, regardless of the merits of the request.
Client has legitimate basis to file for bankruptcy, the "nuclear option" of adjournments, but is trying to avoid it.
I'm finishing a motion, one point of which asks for an adjournment. I'm tempted to offer (at least in a footnote) that the parties might be best served by "dismissing and refiling" the complaint, preserving all current orders under the new docket.
I've only done this once before, a long time ago, before a different judge.
Is there any law, case, rule, anything to discuss on when this is the appropriate way to go? Someone once said it's ethically dicey to do it, but I don't see how that's true. It resets the clock with the court and gives us time. No one dropped the ball here, it was an evolving situation.
Any thoughts or suggestions? Thanks as always.
<x-sigsep></x-sigsep> David Perry Davis, Esq.
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