Courts and lawyers have trouble counting, as this criminal case points out.

Tillmon was accused of various drug violations. His trial was set for October 3. On September 13 he filed a Motion to Dismiss, arguing racial profiling. The trial judge denied it because it had not been made “more than twenty days prior to the trial date.” The rule (Criminal 16.1(b)) requires that the motion be made “no later than twenty days prior to trial.”  Convicted at trial, he appealed the denial of his motion.

The Court of Appeals had to figure out how far September 13 is from October 3. Relying largely on civil rule and precedent, it pointed out that you count backward from the trial date, which is not included in the calculation, to the twentieth day, which is. It is not true that you have to have twenty days in between the motion and the trial, i.e., twenty “clear days.” But some earlier criminal cases had apparently made this mistake or been sloppy about it.

Tillmon’s motion was timely. But the Court of Appeals “conditionally affirmed” his conviction. He had also argued on appeal that there wasn’t enough evidence to convict him. The court said that there was, so his conviction would be affirmed unless the trial court decided on remand to grant the dismissal motion.

You don’t count the first day, you count the last day, and both the statute (A.R.S. 1-243) and the rule (6(a)) say so. Many civil lawyers have apparently never read either and have only the same hazy memory this trial court did about whether a given rule says “more than,” “no less than,” etc. But the real moral is that if you wait until the last minute you take your chances – or, rather, you make your client take chances he shouldn’t have to. Lawyers who wait until the last minute – and then try to get a continuance or some excuse to go beyond that limit – invite this sort of problem but a lot of people nowadays think that’s the way law is practiced.

This case is about whether an alleged defamation was privileged. Although based on a particular statute, it has some language and guidance useful in similar cases.

Tri-City’s Dr. Kaplan wrote to the Arizona Medical Board alleging that Arizona Cardiac doctors were implanting stolen pacemakers and ones they bought on eBay. Arizona Cardiac sued for defamation.

A statute (32-1451A) requires doctors to report things to the Board, similar to the way we have to report things to the Bar. The statute creates a privilege for doing so. The first issue was whether the privilege is absolute or conditional. Arizona Cardiac argued, based on a fairly technical reading of certain changes to the statutory language over time, that it was absolute for those required to report to the Board (i.e., doctors) and qualified for others providing information to it. The opinion holds that it is qualified even for doctors – a privilege applies, according to the statute, if the information is provided “in good faith.”

The question then became whether there was evidence that Kaplan had abused the privilege. This happens, said the court, when there is actual malice or excessive publication. One would have thought that it happens, under the terms of this statute, when the actor did not act in good faith. But the court cited cases about other privileges and said that a qualified privilege is abused when there is actual malice or excessive publication.

Arizona Cardiac argued that Kaplan didn’t do enough to check on the truth of the information he reported. The court said that the burden was on Arizona Cardiac, not Kaplan, and that the issue is not whether Kaplan did enough to check but whether he “actually entertained serious doubt” about the truth of what he reported. (The latter part is a bit hard to follow since there is some sort of typo in paragraph 14.) Negligence is not the standard in the case of a qualified privilege, the standard is actual malice or excessive publication.

The moral, however, is: always ask to see the doctor’s receipt.