Eighteen lawyers at two different law firms received ECF notifications of orders denying their client’s post-judgment motions. But the ECF notifications did not accurately describe the content of those orders. The attorneys relied on the incorrect descriptions in the ECF notifications and did not open the orders or realize that the post-judgment motions had been denied. As a result, they missed the 30-day deadline to appeal a $40 million judgment entered against their client. The Federal Circuit has now affirmed the trial court’s refusal to extend or reopen the deadline to appeal under Federal Rule of Appellate Procedure 4(a)(5) and (6).
This cautionary tale highlights a simple point: a lawyer should open and read every document received by ECF notification. Lawyers who rely on the clerk’s description in notifications do so at their own risk.
The Administrative Office of the United States Courts released its 2014 federal court statistics this month and it reveals some interesting aspects of the Ninth Circuit’s workload. Not only is the Ninth Circuit the largest circuit geographically, it remains by far the busiest, with 13,868 cases pending in 2014. By contrast, the next busiest circuit—the Fifth—had 4,717 cases pending in 2014. Based on these caseload statistics, it is not surprising that appeals take longer in the Ninth Circuit than in the other Circuits. As the statistics indicate, the Ninth Circuit’s median time from Appellee’s brief to oral argument in civil appeals is 13.6 months, and from notice of appeal to decision is 21.3 months (and that is just the median time.) By contrast, the next slowest circuit—the DC Circuit—handles civil appeals in 5.5 months from Appellee’s brief to oral argument, and 12.7 months from NOA to decision.
Partner Rob Palumbos in Philadelphia will speak at the Pennsylvania Bar Association Civil Litigation Section Retreat to be held from April 17, 2015 to April 19, 2015 at The Hotel Hershey in Hershey, Pennsylvania. Mr. Palumbos will be speaking about “Legal Writing for the 21st Century” on Saturday, April 18 from 9:00 a.m. to 12:15 p.m.
For more information about the event, please visit the event page on the Duane Morris website.
Duane Morris is pleased to announce that partner Paul J. Killion of the firm’s San Francisco office will receive a Burton Award for Legal Achievement at a gala ceremony to be held on June 9, 2014, at the Library of Congress in Washington, D.C. This honor is given to only 30 authors selected from entries from the nation’s 1,000 largest law firms.
Killion was selected as a 2014 Distinguished Legal Writing Award winner for an article he wrote about how to use Internet sources in legal writing. “Warning: The Internet May Contain Traces of Nuts (Or, When and How to Cite to Internet Sources)” appeared in California Litigation: The Journal of the Litigation Section, State Bar of California, last spring.
Continue reading “San Francisco Partner Paul Killion Receives National Legal Writing Award”
Judge Posner’s recent opinion in Mitchell v. JCG Industries, Inc. enters a Twilight Zone of appellate decisionmaking that is truly bewildering. The issue was whether the FLSA requires poultry workers to be paid overtime for “donning and doffing” protective clothing at the beginning and end of their lunch breaks. Judge Posner answered that question, in part, by timing how long it took three of the court’s staff to don and doff the clothing. The parties had submitted conflicting testimony about this precise issue at the summary judgment stage. Nonetheless, Judge Posner, joined by Judge Kaanne, affirmed the grant of summary judgment in the employer’s favor based in part on the results of the in-chambers experiment.
Continue reading “The Limits of Common Sense in Judicial Decisionmaking”
Can a lawyer obtain appellate review of a sanctions order by piggy-backing on her client’s notice of appeal? The Court of Appeals for the First Circuit raised this question sua sponte in a decision issued on March 26, 2014, In re Joannie Plaza-Martinez.
A federal public defender appealed a sanctions order against her as well as her client’s sentence in a single notice of appeal. The notice of appeal was “unarguably proper” as to the client. Whether it was also proper as to the public defender’s appeal of the sanction order was “an unresolved jurisdictional question.”
Continue reading “How to Appeal a Sanctions Order”
Duane Morris congratulates Thomas R. Newman on being named the New York City “2013 Appellate Practice Lawyer of the Year” by Best Lawyers. Those honored as the “Lawyer of the Year” in their specialty have received impressive voting averages amongst their peers, and are a select group, with only a single lawyer in each practice area and metropolitan area being recognized as such. Mr. Newman has also been recognized by Best Lawyers in America for both Appellate Practice and Insurance Law since 2007, and is listed in Chambers USA: America’s Leading Lawyers for Business in Insurance: Dispute Resolution, both in New York and Nationwide.
Duane Morris partner Robert Byer will lead an ALI-CLE video webcast on the subject of “What Trial Lawyers Can Learn from Appellate Lawyers: Effective Appellate Advocacy Actually Begins at Trial” on Thursday, October 4, 2012.
Appellate advocacy and adjudication are fundamentally different from what transpires in trial courts. The failure to recognize critical differences, including how the perspective of an appellate judge differs from that of a trial judge, can result in the loss of an otherwise winnable appeal. This hour-long webcast examines those differences, and provides tips for how to prevent issues that may be critical in the appeals process. Click here to learn more about this seminar.
I disagree with the premise of the opening sentence of your September 12 editorial, “Absence of Seventh Justice Impairs Court’s Ability to Act.” You write that the suspension of Justice Joan Orie Melvin “left the court divided equally with three Democrats and three Republicans, creating the possibility of 3-3 split decisions.”
I agree that there is a possibility of evenly divided decisions, and that as a result the Pennsylvania Supreme Court should exercise its power to assign a temporary justice. However, I disagree that this has anything to do with political party registration.
Click here to read the entirety of Robert Byer’s article from The Legal Intelligencer.
The Pennsylvania Supreme Court unanimously found that plaintiffs cannot rely on the theory that “every breath” is a substantial contributing factor in causing an asbestos-related disease in an asbestos case involving friction exposures, i.e., brakes and clutches. The May 23, 2012, ruling in Diana K. Betz v. Pneumo Abex LLC (“Simikian”) overturns the en banc decision of the state Superior Court, which the Pennsylvania Supreme Court found to be based on an “unduly cramped perspective.” This decision changes the face of asbestos litigation in Pennsylvania and may have farther-reaching impact. Plaintiffs can no longer lump together exposures and say all exposures contributed to disease. This brings asbestos litigation in line with the mainstream causation requirements for other substances—plaintiffs must be able to prove that each product was a substantial factor in their disease. (Note: Duane Morris represented defendant Ford in this case.)
To read the rest of this alert, please visit the Duane Morris website.