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An attorney who delegates calendaring responsibilities and then misses a filing deadline because a nonlawyer misreads a clear rule is not automatically barred from getting more time, an 8-3 en banc panel of the 9th U.S. Circuit of the Court of Appeals has ruled. The flexible interpretation of “excusable neglect” in the context of Federal Rules of Civil Procedure 4(a)(5) is a win for litigator David Boies and his firm, Boies, Schiller & Flexner, in their fight to overturn a $9 million breach of contract award to jockeys Laffit Pincay Jr. and Chris McCarron. The Nov. 15 opinion reverses a divided 2003 appellate ruling that pre-empted Boies’ attempt to appeal the verdict on behalf of his clients, Vincent Andrews Management Group, a corporation that manages jockeys’ business investments. The majority opinion, by Chief Judge Mary M. Schroeder, cites a 1993 Supreme Court decision, Pioneering Investment v. Brunswick Associated, 507 U.S. 380. Calling the blown deadline “a lawyer’s nightmare,” and noting “disarray” in the circuits’ interpretation of Pioneering, Schroeder said that creating a per se rule against delegation to paralegals or any rigid rule involving missed filing deadlines “is not consistent.” Pincay v. Andrews, No. 02-56577. Voice of dissent In dissent, Judge Alex Kozinski, criticized the majority for “ratcheting down the standard for professional competence,” and added “If this mistake is excusable, I can’t imagine a mistake that isn’t.” The majority and the minority agreed the Andrews’ defense attorney was careless but acted in good faith. The opinions do not identify the neglectful attorney or firm by name, but call them “sophisticated” and “experienced.” Neil Papiano of Los Angeles’ Iverson, Yoachem & Papiano, representing the jockeys, said he hopes his clients will agree to appeal the case. Boies’ secretary said on Nov. 17 that he was out of town and would not return calls. She referred questions to a firm partner, Andrew Hayes, who was unavailable. “We all delegate to associates and hope they know what they’re doing,” said Ronald E. Mallen, a San Francisco lawyer who is co-author of Legal Malpractice. He said that the American Bar Association has found that missed time limitations account for 40% of claims against lawyers. Mallen added that he does not find the latest ruling in Pincay surprising, given California’s predilection against “visiting the sins of the attorneys upon the clients.” “It’s a reaffirmation of the district courts’ discretion and maybe should be read as no more than that,” said Anthony E. Davis of Chicago, past president of the Association of Professional Responsibility Lawyers. “Lawyers should not take too much comfort in the fact it didn’t result in a nonsuit,” he said. ” . . . It doesn’t change much the duty to supervise.”

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