Season 1 Episode 1. Release date October 15, 2021
Bob is joined by Andrea Martin to discuss her groundbreaking case of UMNV 205 – 207 Newbury LLC v. Caffe Nero Americas, Inc. They also discuss how swimming led to this momentous application of the doctrine of frustration of purpose in the middle of a pandemic.
Episode Highlights
19:30
“I’m sort of glad that you mentioned… kind of the aggression, the aggressive litigation tactics, because that’s something else that I think jumped out. You know, it wasn’t just the, from your briefing papers in particular. It wasn’t just the landlord here that was taking a hard line. You know, you actually mentioned the name of the law firm in in your briefing papers on this particular motion. And, you know, look, as you’d mentioned, attorneys, sometimes they can be unreasonable.
And I’m not saying this happened in this particular instance, but sometimes they can be unprofessional. But there’s always sort of a fine line when deciding how to address that in briefs and oral argument. And I think you handled it masterfully in this case now. You know, for instance, I saw recently an attorney get chastised for hurling attacks at opposing counsel during a hearing, and that attorney, I’m convinced for that reason alone, lost the motion. So, it happens. It’s a fact of litigation, but it’s often difficult to handle in an appropriate manner and briefings and in oral argument.”
26:59
“I think at some point we would have to have… well, we first of all, would have had to add a counterclaim. That that was going to be our first order of business after the decision, because we strategically did not… when we answered the complaint back in August, we didn’t add a counterclaim at that time. We thought about it. We kicked it around. I won’t give away the whole farm, but we decided not to at that time. But we would have had a counterclaim for obviously improper termination. But then also attorney’s fees for the whole mess because the lease, like most leases, says, you know, if you’re the prevailing party and yadda, yadda. So we would have had a counterclaim.”
31:22
“The takeaway from Caffé Nero is not abandon your responsibilities, abandon your obligations, and, you know, like I said, leave your landlord in a lurch.”
35:24
“I remember reading their moving papers and I remember reading them and saying, if you read this, you wouldn’t even know that Covid had happened, you would never know there was a pandemic, you’d never know anything other than tenant did not pay. And so what I needed to do was I needed to get right away the judge reading our side and saying, ‘Wait a second, this is not your basic someone didn’t pay case.'”
DECISION
UMNV 205 – 207 Newbury LLC v. Caffe Nero Americas, Inc.
news LINKS
Judge rules restaurant can’t be forced to pay rent for the months it was ordered closed during pandemic, The Boston Globe
Office Tenants Can Learn Lease Lessons From Trial Court Retail Rulings, Bloomberg Law
Excused contractual non-performance based on COVID, New England IN-House
Score Another Win for the Tenants’ Bar in the Wake of COVID-19 Shutdown Orders, American Bar Association
Episode Transcript
| Bob Stetson: | On March 11th, 2020, the American public faced a stark reality. The toll of the novel coronavirus COVID 19 would be unavoidable for months or perhaps longer. The World Health Organization declared COVID 19 a global pandemic. Then President Trump went on primetime television and announced travel bans. People were dying and the illness spread at a rapid, largely uncontrolled pace. States responded with shutdown orders. Here in Massachusetts on March 23, 2020, Governor Baker ordered that all non-essential businesses would be shut down. The retail and restaurant industry were hit particularly hard by these orders. Restaurants were not permitted to operate in person dining under these orders, and many failed. In Boston, one high end coffee chain, Caffé Nero, was temporarily shuttered as a result of Governor Baker’s orders and furloughed nearly everyone in the company as a result. Come April 1st, Caffé Nero was unable to make rent. However, in all instances but one – so this is 29 out of the company’s 30 locations – the chain was able to work out deals with its landlord to adjust the rental expectations and move forward with a reopening once the pandemic orders were relaxed. Negotiations went differently on Boston’s famous Newbury Street. There, Caffé Nero’s landlord, UMNV 205 to 207, Newbury LLC, was unwilling to negotiate. The landlord sent out a notice of default. And after Caffé Nero failed to cure the payment default, the landlord terminated the lease. The landlord then proceeded with eviction and collection proceedings for past to rent and also for liquidated damages under the lease. In response, Caffé Nero contended that it was legally excused from paying rent under a principle that most of us lawyers haven’t examined since law school. The doctrines of impossibility or frustration of purpose. In essence, Caffé Nero claimed that the pandemic, and in particular Governor Baker’s orders, destroy the entire purpose of the lease, thereby excusing the Caffé from its rental obligations. How would the courts address the pandemic in the context of an entire industry that was ravaged by government shutdowns? This is UMNV 205–207 Newbury, LLC v. Caffé Nero Americas, Inc. |
| Intro Music | |
| Bob: | Welcome to Legal Judg(e)ments, where we tackle litigation and trial strategy by analyzing and talking about real legal cases. I’m your host, Bob Stetson, a Boston based trial lawyer at Bernkopf Goodman. Today, we’re looking at a case that sent shockwaves through the landlord tenant industry. UMNV v. Caffé Nero. With me is Andrea Martin, a litigator and trial lawyer at Burns and Levinson. She is a partner and co-chair of the firm’s business litigation practice. Andrea successfully represented Caffé Nero in this case. Welcome, Andrea. Thanks for joining. |
| Andrea Martin: | Hi, Bob. Thanks for having me. |
| Bob: | So, let’s start with the summary judgment decision in favor of your client, Caffé Nero. This decision stemmed from the landlord’s motion for summary judgment. The court found that the doctrine of frustration of purpose legally excused your client from its rental obligations as a result of Governor Baker’s pandemic orders, and therefore that the notice of default and termination notice was invalid. However, the court went a step further and actually entered summary judgment in your client’s favor, even though you hadn’t filed a motion for summary judgment on behalf of your client. This was a remarkable decision on so many different levels, and it really has reshaped and continues to reshape the landlord tenant landscape in terms of negotiations and litigation in the wake of the pandemic. I can tell you that I was in the same session in Suffolk Superior Court recently arguing about the Caffé Nero case. And although this podcast likely won’t be published for a couple of months, The Boston Globe, again, just this week published an article about how this case has shaped landlord tenant negotiations. But this decision was not a foregone conclusion and it was not necessarily consistent with the approach taken by courts in other parts of the country. So, Andrea, what did you see in this case when it first came through the door? And what was your approach? |
| Andrea: | Good question, because this client of ours goes back many years. So we had the benefit of when this case percolated up to litigation to already have a great working relationship with the client. And indeed, we had negotiated this lease in my real estate department. So we had the benefit of knowing what the purpose of this lease was. And I say purpose on not just a very narrow scale. I mean, purpose in the sense that this Newbury Street location was supposed to be a big flagship location and big in the sense more of sparkle and design. Not big in square footage necessarily. But it was it was a big deal for Caffé Nero to get onto Newbury Street. They are a UK company and they started building out in Boston. I don’t recall exactly, but let’s call it five or so years ago. So when this lease offer, Newbury Street, was negotiated, it was with the intent that Caffé Nero was going to spend a lot of money building this space out. It was going to be tourists and other people coming from other parts of America, you know, USA, coming on Newbury Street and say, oh, Caffé Nero, you know, taking that knowledge home to wherever they lived with an impression of Caffé Nero on Newbury Street, you know, among all the high end stores. And I say that because going forward, you know, skipping around, but going forward in the summary judgment papers, that was a that was a theme we really hammered home. That this wasn’t just your basic lease that that two-party signed with, you know, not a lot of forethought. Indeed, the landlord knew that this was going to be a flagship. So I’ll take it back to the shutdown orders. We made concerted efforts to try to reach out to this landlord. And when litigation really took off, we continued to press that in communications with the landlord, that, “Hey, guys, remember, this was going to be a big deal for us. Remember, this was going to be a joint business venture. Listen, you win when we win.” And in the early stages of trying to negotiate a resolution, our client at all times was not trying to, you know, make the landlord sit around with empty pockets. It’s it was a way to say, “Hey, we all know this could take off. So let’s try to figure out how to take off together.” And when Caffé Nero was able to reopen just minimally in June 2020, we started writing down what the sales were every week. And we put that to the landlord. And then we ultimately put that to the court to say, “Listen, when the government allowed us to reopen, here’s how our sales ticked up, up, up. And if you let us, you know, stay in a space, they were only going to continue.” So to answer your original question, you know, what made this case different or what did I see when it first came in is that I saw something special in this landlord tenant relationship, that it wasn’t you know, it was it was more it was a cap in your flagship. This was something we were invested in. And we spent a million dollars outfitting it. And that became a real narrative to make sure the judge took back to his office when he wrote the decision, you know, really, really colorful. I, I could go on and on. So I’ll wait for your next question. But hopefully that answer that one. |
| Bob: | Yeah, it absolutely does. And I want to circle back to the strategy in a moment. But during your answer, you mentioned, of course, the lease a couple of times. And I want to spend a moment on the force majeure provision in the lease. Now, in the business and legal world, I’m putting this in air quotes, “force majeure describes uncontrollable events like war, labor stoppages, governmental shutdown orders.” And these are typically things that are not the fault of any party, but that make it difficult, if not impossible, to carry out business. So oftentimes businesses will insert these types of clauses into a contract to address what the party’s obligations are in the event of a force majeure situation. Now, from a legal perspective, because the doctrines of impossibility, frustration of purpose, because those legal concepts so closely mirror the purpose of a force majeure clause, if the contract addresses force majeure in some fashion, generally speaking, the doctrines of impossibility and frustration of purpose do not apply. Now, this lease contained a force majeure provision. But interestingly, it stated that in no event does that force majeure provision preclude the tenant from their obligation to pay rent. So given the legal principles involved and the fact that there was a force majeure provision here, how did you get around that provision in this litigation? |
| Andrea: | Right, that was definitely a concern of ours in the summary judgment briefing. I remember specifically putting a footnote in our summary judgment briefing about the force majeure clause, because we decided in our summary judgment strategy to not focus on that clause and to focus instead on, again, the real purpose of the lease, to wedge ourselves into the frustration of purpose doctrine. I have to go back to the actual decision to recall how Judge Salinger tiptoed around that. But my recollection is that the force majeure was going to apply if there was a true shutdown. You cannot do anything based on some government treaty act otherwise. But what happened with the Covid orders was a little different, because what Governor Baker said was you could operate as takeout and that wasn’t in line with what Caffé Nero was designed, you know, what were the purpose of the lease was for, There was another clause in the lease, and I’d have to go back to make the case sorry, the decision to remember where Judge Salinger cited this section also. But there was another provision to lease that mentions something along the lines of if landlord is unable to perform, then tenant shall only pay a portion related to that inability to perform. And that was another way that we shifted the court’s focus on that provisional lease and away from the force majeure, because, again, as we all know, you have to read these – and a lease, like any contract, you had to read in totality. And so we took we I had a crackerjack associate, as we all… none of us can succeed without them, Mike Dialis. And he combed through that lease for any semblance of a tenant favorable clause. So and he put them all together and we strung them throughout our papers so that while we did have a footnote and by you know, by the way, there’s a force majeure clause. Here’s all the other places in the lease where it’s anticipated that perhaps we don’t have to pay 100 percent of the rent. And so I think the issue going back to April 2020 was when the government shutdown order happened, it was inappropriate then for the landlord to demand full payment under the lease. No exceptions made, you know, no wiggle room whatsoever, because under the lease there, there had to have been some other way forward. And so I think the judge was trying to say, “Listen, this isn’t something that either of you anticipated. Tenant, you didn’t take on the risk alone that this was a mutual or indeed a mutual risk no one saw coming.” So we had some luck that there were some other little tiny, tiny things in the lease that that we just tried to really run with. |
| Bob: | So that kind of brings back to some of the thematic elements of your briefing papers. I know earlier you mentioned the concept of flagship location and how that played into your theme. But one of the most eye-popping facts from your briefing papers, and I mentioned it in the opening, was that in 29 out of 30 instances where Caffé Nero reached out to landlords for some sort of accommodation, they were able to reach a deal, except in this case. And in your briefing papers, you know, you mentioned, quote, “aggressive landlord unwilling to even negotiate in the midst of crisis.” This language is so powerful and, you know, it’s so persuasive, particularly if you were going to be in front of a jury. |
| Andrea: | Did I write that? |
| Bob: | That is what you wrote. Good stuff! I am going to ask you about your process and your crackerjack associate. But when you’re trying to paint the picture here and you know, you are on a summary judgment, you’re in front of a judge. It’s really hard to tell whether you’re not whether or not you’re scoring points on, you know, the sort of human-interest elements. But then again, in this case, you didn’t move for summary judgment. And yet the judge took the extraordinary step of granting it in your favor. So at the end of the day, I mean, what role do you think the landlord’s conduct played both in this litigation as well as ultimately the judge’s decision? |
| Andrea: | Right. I mean, they were… that phrase that I used, exactly, aggressive something like that. That’s exactly how they were, and it started in that the BMC in an eviction case, so they first… actually I think they simultaneously, either at first or simultaneously, filed for possession and money damages the possession case in traditional summary process court and then the money damages in Suffolk Superior. And in the summary process matter for possession. It was unbelievable how aggressive they were being even in that and that I remember them serving that right around the Fourth of July last year. And, you know, we all as litigators know whether we want to be nice to somebody or we want to, you know, drop some papers on them before a holiday weekend. And I have specific memory in the summary process case of presenting my defense. And I serve them with Discovery. They refused to respond. I did a very quick and dirty motion to compel. We were in the summary process court multiple times, constantly fighting. And so that those few first few months, so were in July into August. The summary process really wasn’t resolved until October. They were so needlessly aggressive in that eviction proceeding that I knew, ok, this Suffolk Superior experience is going to go the same way. So I think, I hope, from the papers, I try to lay that all out for the judge so that, again, he would be tipped off that, again, this wasn’t just the basic, you know, landlord tenant. And you didn’t pay, I didn’t pay, OK? It was like, no, I need to I didn’t make this more interesting. And like I said, this client, Caffé Nero, has been a long-term client and the principal who I worked with, I mean, I could I can close my eyes and tell you where I was on certain times last summer, talking to him and saying, “Okay, here’s what we going to do. And yeah, I know, okay, this is a great location, but we can’t stay in this space anymore.” And I really got to know him and I really got to know what he envisioned for the space and how upsetting this was, honestly, to him, because like it was a dream to be on Newbury Street. So when they when they moved for summary judgment, they didn’t have to. This case could have just dottle along the regular track. And they had… in the BLS, you have to go to court to ask to move for partial summary judgment. And we are before Judge Sanders at the time and I in fact oppose that, because I said there’s no need for you to – you already have possession. Why do you need to have summary judgment on the money damages right away? And Judge Sanders said, “Oh, well, no, let’s let them let’s let them argue this.” And I thought, “Well, okay, you’re going to be aggressive on this, too. Okay then let’s do it.” So we did. |
| Bob: | I’m sort of glad that you mentioned… kind of the aggression, the aggressive litigation tactics, because that’s something else that I think jumped out. You know, it wasn’t just the, from your briefing papers in particular. It wasn’t just the landlord here that was taking a hard line. You know, you actually mentioned the name of the law firm in in your briefing papers on this particular motion. And, you know, look, as you’d mentioned, attorneys, sometimes they can be unreasonable. And I’m not saying this happened in this particular instance, but sometimes they can be unprofessional. But there’s always sort of a fine line when deciding how to address that in briefs and oral argument. And I think you handled it masterfully in this case now. You know, for instance, I saw recently an attorney get chastised for hurling attacks at opposing counsel during a hearing, and that attorney, I’m convinced for that reason alone, lost the motion. So, it happens. It’s a fact of litigation, but it’s often difficult to handle in an appropriate manner and briefings and in oral argument. How did you walk that line in this case? |
| Andrea: | So, I really did try, especially at oral argument, which was in January 2021, not to personally attack counsel, that’s never my goal. I really tried to focus more at that time on my client, who, again, this is actually the benefit of Zoom hearings, I suppose, is because my clients face is on the screen the whole time. It’s lovely, as opposed to sitting in the back of the gallery. And, you know, we to all stand up and say, “Oh, judge, my client is in the back, you know, wave your hand a little bit,” and the judge probably never sees them again. But I, I think my wording was necessary in the papers. But then at oral argument, again, I shifted away from that because it didn’t need to be so pointed in the argument, but it was very helpful to have my client there. I think there was that human element. I can tell you, I remember writing that affidavit. It was one of those – I needed to be in like the best space possible to get myself into his shoes, like into his mindset. You know, I didn’t actually go to Caffé Nero and start sipping a latte, but I came pretty close. Like I’m both a lawyer and a patron. So I could tell you six or seven locations off the top of my head that I’ve that I’ve been to. And I really am a big fan of the client’s space and what they do, and I think it’s just a cool location. So I tried to channel him best I could and I wrote this affidavit. It was like right around Christmas. And I had a real story to tell. You know this again. I told you the company coming over here and the whole thing with Newbury Street. And I, I really do think Judge Salinger listened. I really do enjoy appearing before him, not just because of this decision, but just historically. I feel like every time before him he’s actively listening and actively looking to counsel us with pointed questions. And this was one of those oral arguments that it was a hot, it was a hot day. You know, it was I think I was in my office, but still on zoom. And it was question, question, question, question. And my associate was on the zoom also. And I remember calling him afterward and saying, “Did I do that right? Did I answer that right? What happened, Mike? What did I say?” Because what I’m in oral argument, I do not remember what I what I said when…I’m so in the zone that unless someone if then sometimes I’ll read a transcript afterward and say, “Oh, good. As a good point.” I don’t remember doing that because I’m you know, I’m the tunnel vision. So, I remember calling Mike afterwards saying, “You know, Judge Salinger, you asked me a question. I think I said yes. Was that right?” “Yep. No, that was good.” I said, “Okay, great.” So it was it was a it was a hot, hot argument. |
| Bob: | Well, I mean, obviously, it worked out for your clients. Now, you mentioned being a patron and the fact that Caffé Nero did start to reopen and that that’s something that I think is a little bit different in this case as opposed to some of the other cases that I’ve seen in the wake of the pandemic. You know, after Governor Baker started to lift those orders, not only did Caffé Nero start to reopen, I saw in the briefing papers there was there were offers to continue paying certain rent and things of that nature. Now, ultimately, as you mentioned, Nero relinquish that space in October of 2020, presumably under the weight of the landlord’s continued efforts to remove them. But the court’s decision really only addressed that three-month period from March through June, when Governor Baker’s orders basically addressed a complete shutdown of restaurants, sit down restaurants. Now, I know ultimately you settle this matter, and I’m not going to ask you anything about that, but I want to ask you a hypothetical. If this case was still ongoing, given the fact that Nero ultimately relinquished the space and stopped paying rent after Governor Baker’s orders, how do you think this litigation would have played out? |
| Andrea: | Is your hypothetical that we’re still there? Are you just saying hypothetically, if we didn’t settle, what would be going on? |
| Bob: | Exactly. Because you moved you moved out after -so let me rephrase. Good point. Let me clarify. Nero moved out of the space in October and presumably at that point, stop paying rent. However, the doctrines of frustration of purpose and impossibility, at least as addressed in Judge Salinger’s order, only address that time period when Governor Baker’s orders were applicable from March through June. And now here you are after the governor’s orders and you’re no longer operating. How does that fact play out in this litigation? |
| Andrea: | All right. That’s a good question, because with his with Judge Sanders order in February, he essentially said that in so many words, we didn’t have to pay rent or we, you know, we weren’t in default, I guess I should say it that way. It’s not that we didn’t have to pay rent in April, June, and have… sorry, April, May, half of June. It’s that we were in default for not paying the rent. And that then they were in default for terminating us. So, I think at some point we would have to have… well, we first of all, would have had to add a counterclaim. That that was going to be our first order of business after the decision, because we strategically did not… when we answered the complaint back in August, we didn’t add a counterclaim at that time. We thought about it. We kicked it around. I won’t give away the whole farm, but we decided not to at that time. But we would have had a counterclaim for obviously improper termination. But then also attorney’s fees for the whole mess because the lease, like most leases, says, you know, if you’re the prevailing party and yadda, yadda. So we would have had a counterclaim. I don’t think we would have had you know, we couldn’t put ourselves back in the space so it’s not like, you know, the lease was basically at that point ripped to shreds. I don’t know, I honestly don’t know what the what the rest of litigation would’ve looked like, it would have come down to, okay, well, what happens with those months we didn’t pay? You know, then we are they are operating July, August, September, we didn’t pay for those, but we were willing to. So could we cure that? I think it was going to turn into a bigger mess than it already was. So that, you know, having them leave the space while not my clients dream or goal made the possession a non-issue and isn’t possession, what is it, nine tenths of the law? That’s the rule. I think so. You know, with that piece of it solved and I, I always enjoy these process matters because I always want to go to space now and say, “What’s going on? You get a new tenant? How’s that working out for you? Hope it’s a good one.” |
| Bob: | I want to I want to ask another… |
| Andrea: | Hypothetical? |
| Bob: | Yeah. I do, but I want to I want to start by reading your intro. |
| Andrea: | Oh, I love this intro. |
| Bob: | I do, too. So, here’s the quote: “There can be no clearer frustration of purpose of a lease than where the exact permissible use of the space is barred by government restriction. Here, the lease states permitted use the operation of a “Caffé Nero themed café” under Tenant’s trade name, and for no other use or purpose. The parties operated under that lease without issue for almost two years. Then on March 23, 2020, due to the pandemic, Governor Baker issued COVID 19 order Number 13, which prohibited all non-essential business from operating and shut down in-person dining of any kind. The effect of the governor’s order was to make the permitted use of the premises impossible under the lease.” Now, that reasoning, that intro paragraph that was adopted by the court and what I found striking was how much the court’s decision focused on that use, the permitted use a sit down restaurant that was frustrated. But I think the question it’s a hypothetical. The question on everyone’s mind is what are the ramifications for this decision on other industries, you know, beyond the restaurant industry? |
| Andrea: | That’s a question that I get asked a lot about this decision. And I will go back to an earlier point which you made, which was that Caffé Nero did reopen when they were able to. And I think that is difference between them and a lot of tenants. A lot of tenants just said, “I can’t, I can’t do anything. I’m you know, I’m not even try.” So going back to your question of know, what has its effect to have on other industries, I think it’s the same thing. So if you have any sort of space that you’re that your tenant is in, if it’s completely unusable, will then yeah, I understand you can’t go in there at all, but if there’s some way to at least salvage it… I think so, we talk a lot about the ramifications of this decision on landlords and all. You know, they’re so everything’s changed for landlords. I think everything changes for a little bit for tenants to that. The takeaway from Caffé Nero is not abandon your responsibilities, abandon your obligations, and, you know, like I said, leave your landlord in a lurch. I believe what tenants should take away from this in terms of all sectors is, number one, try to work with your landlord. Open lines of communication, do the best you can or show how doing the best you can would be economically not, you know, not feasible and show how you’re crunching the numbers. Because let’s be honest, most landlords care about numbers most of all. And, you know, I think landlords care about numbers and the tenants care about the vision, you know. You know, I’m opening this thing and landlords like, “That’s fantastic. Pay me what your do.” So I, I have seen this theme play out in other specific… one good example is the Soul Cycle, I think they’re still, I know they’re still fighting that. Have you been following that? They had a very… I had the benefit of, you know, talk about sort of karmic happenstance or whatever you believe in, but one of the Caffé Nero locations that we ultimately resolved, but it did start at summary process, was the one over here on Seaport Boulevard or Northern Ave. or whatever, the Fort Point Channel one is. So they had filed summary process, the landlord, but we resolved it. But the court still made us appear on the record to report the resolution. We appeared on Zoom, and when it was time for our court session, the Soul Cycle eviction was going on. The one on Cambridge Street over by MGH, if you know the area. So I essentially sat video off on mute through that whole hearing. And that, you know, the summary process, there’s no written decision of it. But I did attach it to our papers. And the whole theme of that decision was, well, Soul Cycle, if they tried to reopen, it would cost them this much money. That’s why they couldn’t reopen. That’s what was the whole purpose of the lease was. And so I think that’s a theme for every tenant is show how the math would or would not make sense for you and then for the landlord and what can you do together? And at least if you crunch those numbers and present it to the landlord, even if the landlord’s going to be super aggressive and evict you and sue you anyway, you’re going to look good to the court to say, “Yeah, no, I understand they need to get paid. Here’s how I was going to suggest that happens.” And so that, that sort of… I don’t say ethical is not the right word but showing that you’re a business minded tenant. I think applies across all sectors. |
| Bob: | Well, it just it goes to show that you’re I mean, I hate to put it in such simple terms, but it shows that you’re being fair. You’re putting something tangible down that shows that you’re not just, like you said, shirking your responsibilities here, that you’re actually taking a considered and measured approach to a very difficult situation. And I think that’s I think that’s excellent advice, Andrea. And I really appreciate that you shared that with us today. Now, I do have one last question, and I wanted to go back to something you mentioned at the top of the podcast, which is your crackerjack associate. You sort of mentioned… I want to talk about your process. If you could just you know, you mentioned remembering specifically where you were when you drafted the affidavit. How did you approach this writing assignment and in particular, the preparing for the oral argument in this case? |
| Andrea: | So, I remember reading their moving papers and I remember reading them and saying, if you read this, you wouldn’t even know that Covid had happened, you would never know there was a pandemic, you’d never know anything other than tenant did not pay. And so what I needed to do was I needed to get right away the judge reading our side and saying, “Wait a second, this is not your basic someone didn’t pay case.” And I, so I think your question was about my process or whatever that means. And I try to really spend a lot of time reading everything over, taking notes and then almost throwing it all away and waiting until I have that buzz sentence. Because without that, I don’t know what I’m writing. Without that theme, you know, you go back to like eighth grade English or something. It was like, you need a theme sentence. Well, if you don’t have the theme, what are you just slopping words on a page? So, this was one that I procrastinated and put off writing, and I kept not writing it because I didn’t know what that theme was going to be. And so this is going to sound really hokey. But I, I started swimming again. I used to swim my whole life and I took it back up. This is like a benefit of Covid. You can see I’ve got wet hair today. I don’t have to be anywhere. |
| Bob: | I’m not going to take offense to that. |
| Andrea: | Now, in the pool, I spend a lot of time just like letting sort of like thoughts come together and trying to spend more time, you know, going for a run, taking a walk, whatever, because that’s when those theme sentences will come to me, as opposed to sitting at my desk and like, right, reading case law. A theme sentence, is not going to pop up out of case law. It’s going to come while I’m swimming or running or doing something else. So, this was this was like a really powerful motion, I’m sorry, summary judgment, opposition to write and my process, and then half the other time I’m talking to Mike on the phone, “Am I crazy? This is what I’m going to argue.” I had another partner of ours doing extra research. We were combing 50 states to find out, am I missing something? I hate that feeling. Am I missing something? So, I need someone to do that. I’m missing something piece of it, and I’ll work on the theme piece of it. |
| Bob: | I just love that most of the time I get my inspirational themes when I’m in the shower. |
| Andrea: | There you go. For some reason, that’s what most people say. Most people say the shower. I don’t think I take long enough showers to have that happen. That’s yeah… It’s usually I forgot to buy milk today, so. |
| Bob: | Andrea, thank you so much for your time. Congratulations on the tremendous victory. |
| Andrea: | My pleasure. |
| Bob: | That’s our show. Check out our show notes for more information on today’s case. Also, if you were involved in an interesting civil case or know about one that you think would be a good topic, reach out to me at rstetson@bg-llp.com. Thanks for listening. |