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Jerold S. Solovy Robert L. Byman

You etymology buffs-or maybe you Civil War buffs-know the derivation of “deadline.” During the Civil War, a line was drawn around prison camps. If a prisoner crossed the line, he would be shot. Nothing ambiguous there. Live or die by the deadline. As lawyers, we live with all sorts of deadlines. All sorts, because some of them really have life-and-death consequences; some of them are meant to be observed but allowed to be varied from; some are merely guidelines, more often ignored than followed. The full spectrum of missing deadlines Jurisdictional deadlines are usually just that. If you miss a statute of limitations or jurisdictional filing date, your client can literally end up dead. In Coleman v. Thompson, 501 U.S. 722 (1991), Roger Coleman’s lawyers filed a notice of appeal from the denial of his state habeas corpus proceeding after a murder conviction. But they filed 33 days after judgment, while the deadline was 30 days. And because he missed that deadline (well, his lawyers missed it), the U.S. Supreme Court refused to grant federal review of his conviction, despite what some objective observers might describe as substantial evidence of innocence. See, Tucker, May God Have Mercy (W. W. Norton 1997). Three days had life-and-death consequences for Coleman. The spectrum has another end. In Hyperphrase Tech. v. Microsoft Corp., No. 02-C-647-C (July 1, 2003), Microsoft electronically filed its motion for summary judgment 4 minutes and 27 seconds after midnight of the deadline date; so Hyperphrase moved to strike the motion as untimely. “Counsel used bold italics to make their point” that the motion was filed late. “Wounded though this court may be by Microsoft’s 4 minutes and 27 second dereliction of duty, it will transcend the affront and forgive the tardiness.” The court did grant relief to Hyperphrase-it gave Hyperphrase a “get out of deadline free card,” allowing it on some future occasion to make a filing 4 minutes and 30 seconds late. Somewhere between the absurd notion that a filing ought to be stricken because it is a few minutes late-and the equally absurd notion that a possibly innocent man might be executed because his lawyers can’t count-there are the everyday deadlines that we must faithfully observe but a few of which we will inevitably miss. In Pincay v. Andrews, 2003 U.S. App. Lexis 24811 (9th Cir. 2003), after a multimillion-dollar judgment was entered for Pincay, a lawyer asked his docketing clerk to compute the time for filing. The clerk responded that Fed. R. App. P. 4 allowed 60 days from the date of entry of judgment. The lawyer told the clerk that “to be safe” the appeal date should be docketed three days earlier. Better safe than sorry. Uh, one slight problem-the clerk got it wrong. Fed. R. App. P. 4 provides 30 days, not 60 days. Oops. But when the lawyer finally read it for himself, he no doubt took comfort from the built-in expiation in the rule. Fed. R. App. P. 4 allows a district court to extend the time for filing a notice of appeal on a showing of “excusable neglect or good cause.” Good cause, obviously, would cover external events; excusable neglect, presumably covers honest mistakes. So Andrews’ lawyer filed a timely motion for an extension of time, citing his clerk’s mistake as the basis for excusable neglect. The district court agreed, and granted the additional time. But the 9th Circuit reversed, dismissing the appeal. Not exactly life or death, but a multimillion dollar judgment became final because a clerk’s negligence was not, in the 9th Circuit’s view, excusable neglect. What are the possible reasons someone would miss a deadline? Well, you might deliberately miss the deadline, just to show those courts and rule-makers who is the boss. Uh-huh, sure. Or you could be innocently prevented from complying by unavoidable external circumstances, such as having your office beset by wild dogs who, of course, eat your homework. Or you could miss the deadline because you made a mistake. You can’t expect much relief where you miss a deadline on purpose. You have a right to expect relief when external forces out of your control make your performance impossible. But when is carelessness or downright neglect excusable? The Supreme Court attempted to answer in Pioneer Inv. Serv. Co. v. Brunswick Assocs. L.P., 507 U.S. 380 (1993). By empowering the courts to accept late filings for excusable neglect, the court reasoned, “Congress plainly contemplated that the courts would be permitted, where appropriate, to accept late filings caused by inadvertence, mistake or carelessness.” Id. at 388. “The determination is at bottom an equitable one, taking account of all relevant circumstances surrounding the party’s omission. These include . . . the danger of prejudice . . . the length of the delay and its potential impact on judicial proceedings, the reason for the delay, including whether it was within the reasonable control of the movant, and whether the movant acted in good faith.” Id. at 395. Applying that standard, how could the 9th Circuit have concluded that the honest mistake of the clerk did not fall within the definition of excusable neglect? Well, the circuit focused on other language in the Pioneer opinion: “Although inadvertence, ignorance of the rules, or mistakes construing the rules do not usually constitute ‘excusable neglect,’ it is clear that ‘excusable neglect’ . . . is a somewhat ‘elastic concept.’ “ The 9th Circuit pounced on the language. Mistakes do not usually constitute “excusable neglect” as if the words “although” and “elastic concept” were not in the same sentence. In the circuit’s view, the delegation of rule interpretation to a clerk is simply inexcusable. “Knowledge of the law is a lawyer’s stock in trade. Bureaucratization of the law such that the lawyers can turn over to nonlawyers the lawyer’s knowledge of the law is not acceptable for our profession.” Pincay at 5. Was the problem that the lawyer delegated the job of reading the rule to a clerk? What if the lawyer read the rule himself and got it wrong? After all, Fed. R. App. P. 4(a)(1)(A) says 30 days, but half an inch away in 4(a)(1)(B) the government gets 60 days. It’s a mistake to read 60 rather than 30, but in the scheme of things it’s not as bad as brown shoes with a blue suit, is it? If the lawyer hadn’t had the arrogance to assign his job to a clerk, would the 9th Circuit have shown greater mercy? Probably not. The Pincay court reminisced on its decision in Kyle v. Campbell Soup Co., 28 F.3d 928 (9th Cir. 1994), in which a Fed. R. Civ. P. 6(e) motion for attorney fees was two days late, but the district court found excusable neglect because the plaintiff’s attorney had misinterpreted the rule. Not so fast. The 9th Circuit found the misinterpretation of the rules to be an inexcusable mistake of law and reversed. Pioneer was a 5-4 decision; Pincay was a 2-1 decision. These courts were divided, because reasonable minds can differ on whether deadlines are really deadlines, and why not? We are not sure that the 9th Circuit got the Pioneer case right; we are not sure that misinterpretation of a rule is not exactly what the U.S. Supreme Court thinks is excusable neglect. But we are sure of this: What the 9th Circuit thinks is one heck of a lot more important than what we think, especially when our case is pending there. So we’re going to read the rules ourselves. And reread them. The nondeadlines deadlines are discovery Most of us are smart enough to know that filing deadlines-deadlines like filing notices of appeal-must be strictly observed. But discovery deadlines-well, gosh, that is a phrase in the running for the Oxymoron Hall of Fame-are usually not deadlines at all. “The party upon whom the request is served shall serve a written response within 30 days after the service of the request.” Fed. R. Civ. P. 34. But if that language seems mandatory and finite, the ensuing sentence turns concrete to mush: “A shorter or longer time may be directed by the court or, in the absence of such an order, agreed to in writing by the parties.” We rarely meet the 30-day deadline because 30 days are rarely enough, and even when they are, we extend discovery out of rote. But some discovery deadlines are clearly meant to be observed. Federal Rule 26(a) imposes a duty to disclose 30 days prior to trial, without any request, the identity of all witnesses and documents a party may use at trial. At the same time, Rule 37 contains a self-executing sanction for failure to make the Rule 26(a) disclosures; if the disclosures are not made in a timely fashion, the evidence is barred. But the sanction only applies if the failure to disclose it is “without substantial justification” and failure to disclose “is harmless.” In Rowland v. American Gen. Fin. Inc., 340 F. 3rd 187 (4th Cir. 2003), American filed its disclosures 28 days prior to trial rather than 30. At trial, American was permitted to call a witness disclosed those two days late; and it was also allowed to call a witness who had never been identified. Because Rowland did not argue that she was prejudiced there was no cause to bar the witnesses. Yet in Burlington Ins. Co. v. Shipp, 2000 U.S. App. Lexis 10609 (4th Cir. 2000), the same 4th Circuit affirmed the exclusion of witnesses who had not been disclosed in a timely fashion pursuant to Rule 26, refusing to allow Burlington to add witnesses six days before trial. Courts that have discretion exercise it. And appellate courts, at least outside the 9th Circuit, usually defer to that exercise. So here’s our advice. Do not delegate to others the task of calculating deadlines. And when, as all humans and especially lawyers do, you make a mistake, throw yourself on the mercy of the court; better yet, don’t make deadline mistakes. Jerold S. Solovy and Robert L. Byman are fellows of the American College of Trial Lawyers and partners at Chicago’s Jenner & Block. Solovy can be reached at [email protected]. Byman can be reached at [email protected].

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