Patterico's Pontifications


The Case of the Fired Litigation Associate

Filed under: General — Patterico @ 5:41 pm

Howard Bashman reports on the case of a fired litigation associate.

Oh, sure, that’s not what he says the post is about.

But it is.

As Howard explains, the Second Circuit has affirmed a district court decision refusing to allow the filing of an appeal because it was one day late:

Today’s opinion explains that the deadline by which Travelers Indemnity Company had to file its notice of cross-appeal was no later than fourteen days after the opposing party had filed its appeal. Unfortunately, Travelers, represented on appeal by the Simpson Thacher & Bartlett law firm, filed the notice of cross-appeal one day too late because its counsel waited until what they thought was the last day for filing the notice but had “inadvertently calendared the first notice of appeal on their office records as of the day it was received in the lawyers’ office, April 27, 2006, rather as of the day it was filed, April 26, 2006, the date made relevant by Rule 4(a)(3).”

A link to the opinion is available at Howard’s post, if you’re interested.

This is the type of thing that used to haunt my dreams as a civil lawyer.

19 Responses to “The Case of the Fired Litigation Associate”

  1. well maybe the soon-to-be fired associate could find him or herself a legal job in the public sector where the standards aren’t so high (prosecutor, perhaps?).

    Seriously, as a client, I would be wild p***ed at anyone and everyone who had anything to do with this f***up… and a public sacrificing of the responsible associate would not even begin to come close to mollifying me. Corporate attorneys (at least the ones I use) charge big bucks.. and for that kind of money, they don’t get to make mistakes. In this case, I hope their insurance premiums are paid up (and how twistingly fitting would it be if their client was the provider of their malpractice insurance?).

    And yes, that was a cheap shot at government attorneys, some of whom I realize probably do a decent job for the big bucks they get paid… but I am way too immature to restrain myself.

    steve sturm (d3e296)

  2. I see that.

    Patterico (a8fa4a)

  3. I don’t know anything about this firm but it might be the fired litigation legal assistant or secretary. I know of law firms where legal assistants and sometimes secretaries maintain the litigation calendar using calendaring software, and this is an example of why that might be a bad idea (although frankly some attorneys might not maintain the calendar any better). Calendar software programs are great but there’s no substitution for redundancy (e.g., 2 people schedule deadlines) when it comes to legal deadlines.

    DRJ (51a774)

  4. DRJ,

    It is always the attorney’s responsibility.


    Patterico (a8fa4a)

  5. Is there any good reason to wait until the last day to file this notice?

    James B. Shearer (fc887e)

  6. Deadlines for filing notices of appeal are jurisdictional. In criminal cases as well as civil, BTW. Nothing that can be cured. Maybe this attorney should consider a different line of work. It has nothing to do with charging big bucks. That’s just a question of what kind of clients you want (and can get). The “standard of care” for attorneys is the highest standard of professionalism, competence and care. It is the attorney’s responsibility to manage his practice in such a way that he provides it to every client. Maybe fewer clients, maybe more associates, maybe farming out some types of cases.

    nk (32c481)

  7. I agree that ethically it should always be the responsibility of the attorney whose name is first on the file. My point was that some firms established calendaring systems that override individual responsibility, primarily because the theory is the whole firm might be subjected to liability when one attorney blows a deadline. (Some firms rely on PLLCs or other corporate shields.) When the firm has set up a superceding system, it’s harder to blame one attorney when a deadline is missed.

    DRJ (51a774)

  8. Filing appeals late in Washington as an Attorney General, costing the taxpayers $17.8 million, gets you elected governor.

    munsey (085be7)

  9. I’m with James B. As a dummy, I always get my bills in at least 2 days before the due date, cause there’s a penalty if I’m late. Shouldn’t attorneys do this too, or is there a tactic to holding everything to the very last minute/second?

    ManlyDad (d62cf6)

  10. the practice of law is following 10,000 arcane, funny rules which, when you know them, make you a priest of the legal arcana justifying that big hourly fee. at least california has ccp 473 “mistake, surprise, inadvertence or excusable neglect.” guess the federal system doesn’t, too bad, so sad. a big firm is as competitive as any african savannah with lions, hyenas and wildebeests; this is just one way a body can end up getting tossed out.

    assistant devil's advocate (827970)

  11. I don’t have any knowledge about this case but my guess is the parties were involved in settlement negotiations and the possibility of filing a cross-appeal was useful in those negotiations.

    And while I agree it’s not a good idea to wait until the last minute when deadlines are involved, we don’t know if the attorneys or the client was driving the decision-making. However, I assume the attorneys were negligent in missing the deadline or in failing to warn their client the deadline was imminent. The fact that they filed an excusable neglect motion supports that assumption but there might be more to the story.

    DRJ (51a774)

  12. The surprising part about this decision for laymen (and for some attorneys) might be the excusable neglect holdings by the courts. The district court held that missing deadlines like this is “… garden variety attorney inattention that fails to rise to excusable neglect” and the appellate court affirmed, stating “… the District Court correctly ruled that, absent extraordinary circumstances, attorney inadvertence is not excusable neglect.”

    DRJ (51a774)

  13. Maybe they should put a calendar question on the bar exam. Maybe a few math question.

    Gerald (f6e342)

  14. 11

    Sure but you could always file the appeal and then drop it if the case settled. Why wait to the last minute?

    As for “excusable neglect” I would think it covered things like your spouse is seriously injured in a traffic accident and you deal with that instead of filing the appeal.

    James B. Shearer (fc887e)

  15. James B. Shearer,

    I think your definition of excusable neglect is consistent with the Second Circuit’s definition. Nevertheless, having seen 3 or 4 cases where excusable neglect was an issue, not all trial judges impose this standard. As I read the courts’ opinions, the judges felt their hands were tied under recent case law once the opposing party objected to the late-filed notice of cross-appeal. Absent that, we might have seen a different result.

    As for the filing deadline, obviously it’s not good to miss a deadline – this case is an example of why that’s so. But there might be reasons to wait until the last moment to file a cross-appeal. Maybe the attorneys were waiting on the client’s authorization (unlikely, given the allegations in the motion to permit the late-filed appeal, but I’ve seen delays like this especially with insurance clients).

    As I mentioned earlier, they could have used the threat of a cross-appeal as an incentive to induce the opposing party to settle (once you file, the incentive is gone plus in large cases, different attorneys may handle settlement negotiations than handle the appeal so it would be inconsistent for one set of attorneys to file an appeal while others were still negotiating, especially in a complicated mass tort case involving layers of attorneys). With multiple attorneys, they might have need extra time to get everyone on board for tactical and cost-sharing purposes, and because filing an appeal or cross-appeal starts additional appellate deadlines that have to be met.

    In addition, there might be bankruptcy or subrogation issues that impacted the strategy of the defense and that required time to consider issues and formulate strategy after reviewing the lower court’s verdict. (For example, if there is bankruptcy court oversight, they needed to obtain permission from the bankruptcy court to hire the attorneys to handle the appeal.) Or perhaps the parties wanted to prevent disclosure of certain post-verdict changes/information (although that might be less likely if there is bankruptcy court oversight involved).

    Appellate cases frequently involve interesting legal theories but they aren’t entirely theoretical. There is an overlay of practical client issues that can propel a bad case forward and stop a good case in its tracks. And sometimes cases fall apart because attorneys make mistakes, although I’m not saying that did or didn’t happen here. This was just a cross-appeal. The case is still going up.

    It will be interesting, however, to see what happens next. I assume they will appeal the excusable neglect ruling but, if not or if they are not successful on appeal, the attorneys may have to step aside – not simply because of their mistake (although the client may want them to step aside) but because now their interests would be adverse to their client’s interests. As I understand it, the remedy for a missed deadline is to put the client in the position it would have been in if the deadline had not been missed. The goal will be to calculate what it cost the client to not have a cross-appeal. That means someone will have to calculate the worth of that claim. The client probably thinks it was a great claim; The opposing party probably thinks it was a poor claim, and now the client’s attorneys are in the unenviable position of (possibly) wanting their client’s claim to be poor and thus not worth much. So the attorneys’ interests are more aligned with the opposing party’s interests than with their own client’s interest.

    Maybe I’m looking at this wrong. There are some smart people (attorneys and non-attorneys) who blog, read and post here. Feel free to set me straight if I’ve overthought this.

    DRJ (51a774)

  16. Why pick on the poor associates? Who says it wasn’t a partner’s fault? :-)

    Phil (88ab5b)

  17. It is the fault of every attorney on that particular case and I would not exclude the managing partner of the entire firm either.

    nk (47858f)

  18. I agree. I’m not trying to say they aren’t responsible but I understand how it can happen. This/these attorneys might have had 200-300 things to do in the 2 weeks they had to file a notice of cross-appeal. They probably did 299 of them on time. It’s hard to imagine why they let this one get away from them, especially since it involves so much money, but I’ve seen things like this happen with competent attorneys.

    DRJ (51a774)

  19. I almost had this happen to me in a criminal appeal. For some reason or other the trial attorney neglected to timely file a notice of appeal. Genius that I am, I noticed it and immediatedly brought a motion for an extension of time within which to file the notice of appeal. The State did not notice that the 30 days had already expired and did not object and the court granted my motion. When I subsequently filed the notice of appeal, the State finally noticed and objected. The appellate court ruled that it would consider their objection along with the merits of the appeal. Which means my appeal was heard. I believe a large factor in the appellate court’s decision was that by turning down the appeal they would immediately send the case to collateral proceedings, i.e. claim of ineffective assistance of counsel for failing to timely file the notice of appeal, which by all fairness should be granted, and they would have to hear the case on its merits sooner or later anyway. (So I suppose that somewhat contrary to what I said in my first comment, in criminal cases these instances may sometimes be curable.)

    nk (5a2f98)

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