Metropolitan News-Enterprise


Tuesday, November 16, 2004


Page 1


Attorney’s Delegation of Calendaring No Bar to Relief From Late Filing, Ninth Circuit En Banc Panel Rules


By DAVID WATSON, Staff Writer


A lawyer’s reliance on a calendaring clerk to determine the deadline for filing a notice of appeal may be excusable neglect from which a court can grant relief if the subordinate miscalculates, an en banc panel of the Ninth U.S. Circuit Court of Appeals ruled yesterday.

The panel, by an 8-3 margin, reversed a December 2003 ruling by a three-judge panel, which had said the delegation of “a professional task to a nonprofessional to perform” was unacceptable and could not constitute excusable neglect under Rule 4(a)(5) of the Federal Rules of Civil Procedure, which allows an extension of time to file an appeal if it is sought within 30 days and the moving party shows “excusable neglect or good cause.”

Writing for himself and Judge Kim M. Wardlaw last year, Senior Judge John T. Noonan declared:

“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.”

The en banc decision revives an appeal of a judgment for nearly $9 million dollars won by Hall of Fame jockeys Laffit Pincay Jr. and Chris McCarron against their former money managers. After more than 14 years of litigation, the three-judge panel voted 2-1 to overturn an order by Senior U.S. District Judge Wm. Matthew Byrne that allowed defendants Vincent and Robert Andrews to appeal that judgment.

In moving to extend the time to appeal, the defendants’ attorney filed a declaration stating that he had relied on a calendaring clerk, who had notified him by e-mail of the deadline. The clerk’s calculation was inaccurate, a fact the attorney said he did not become aware of until the deadline expired.

The clerk, according to the declaration and supporting evidence, mistakenly calculated the time to appeal as 60 days, rather than 30 days, from entry of judgment. A 60-day deadline would only apply if the government were a party, the en banc panel noted yesterday.

In his dissent last year, Judge Andrew T. Kleinfeld accepted “the majority’s exasperation at an experienced lawyer from a large and well-staffed firm carelessly delegating the reading of appellate rules to a nonlawyer and failing adequately to supervise,” but said his colleagues owed greater deference to the district judge.

Kleinfeld also warned of a possible unintended consequence of the ruling:

“Good lawyers commonly give their adversaries stipulations relieving them of inadvertent errors not going to the merits. The rigid per se rule the majority creates today will make it difficult for them to do so. Our court thereby damages the mutual civility and accommodation that characterizes the practice of law at its best. This unnecessary rule will be career-destroying for decent lawyers who make inadvertent errors.”

Yesterday the en banc majority—which included Kleinfeld—agreed with that dissenting view.

Chief Judge Mary M. Schroeder said the U.S. Supreme Court’s 1993 decision in Pioneer Investment Services Co. v. Brunswick Associated Ltd. Partnership, 507 U.S. 380, which she described as the “leading authority on the modern concept of excusable neglect,” was “not consistent” with per se rules that particular types of conduct constitute inexcusable neglect.

Byrne, Schroeder said, properly considered the factors enumerated in Pioneer—prejudice, length and impact of delay, reason for delay, and good faith—before making his ruling, and did not abuse his discretion in finding the neglect excusable.

She went on to take issue with Noonan’s conclusion that delegating the task of reading court rules and calendaring deadlines was unprofessional.

“In the modern world of legal practice, the delegation of repetitive legal tasks to paralegals has become a necessary fixture,” Schroeder asserted. “Such delegation has become an integral part of the struggle to keep down the costs of legal representation. Moreover, the delegation of such tasks to specialized, well educated non-lawyers may well ensure greater accuracy in meeting deadlines than a practice of having each lawyer in a large firm calculate each filing deadline anew.”

Schroeder conceded that appellate decisions interpreting Pioneer, both in the Ninth Circuit and in other circuits, have exhibited “confusion” over the issue of when neglect can be excusable.

While the mistake in this case was “egregious,” Schroeder said, and “a lawyer’s failure to read an applicable rule is one of the least compelling excuses that can be offered,” she reasoned that the task of balancing the Pioneer factors “should be entrusted to the discretion of the district court because the district court is in a better position than we are to evaluate factors such as whether the lawyer had otherwise been diligent, the propensity of the other side to capitalize on petty mistakes, the quality of representation of the lawyers..., and the likelihood of injustice if the appeal was not allowed.”

The chief judge added:

“Had the district court declined to permit the filing of the notice, we would be hard pressed to find any rationale requiring us to reverse.”

Judges Sidney R. Thomas, Barry G. Silverman, Ronald M. Gould, Marsha S. Berzon, Johnnie B. Rawlinson, and Consuelo M. Callahan, as well as Kleinfeld, joined in Schroeder’s opinion.

Berzon also filed a concurring opinion, arguing that Pioneer does not absolutely bar relief no matter how inadequate the excuse presented under that case’s “reason for delay” factor.

“[A] district court may find neglect ‘excusable’ if it is caught quickly, hurts no one, and is a real mistake, rather than one feigned for some tactical reason—even if no decent lawyer would have made that error,” she suggested.

Judges Alex Kozinski, Pamela Ann Rymer, and M. Margaret McKeown dissented.

Kozinski, writing for the three, conceded that the Andrews’ attorneys “need not have offered a terribly good countervailing reason to make their neglect excusable,” but said they failed to present any explanation that a court could “say with a straight face” meets even the most lenient standard.

The rule setting the 30-day deadline is “as clear as legal rules get,” Kozinski argued, noting that the defendants’ appellate attorneys themselves described the error as “inexplicable.”

“In such circumstances, I have trouble seeing how the balance can tilt in favor of excusability,” the jurist commented, declaring:

“While delegation may be a necessity in modern law practice, it can’t be a lever for ratcheting down the standard for professional competence. If it’s inexcusable for a competent lawyer to misread the rule, it can’t become excusable because the lawyer turned the task over to a non-lawyer. Errors made by clerks performing lawyerly functions are probably less excusable than those made by the lawyer himself; they certainly can’t be more so.”

He added:

“[I]f this mistake is excusable, I can’t imagine a mistake that isn’t.”

Pincay and McCarron were represented on appeal by Neil Papiano and Patrick McAdam of Iverson, Yoakum, Papiano & Hatch in Los Angeles. The Andrews were represented by David Boies and Robert Silver of the New York firm Boies, Schiller & Flexner.

The case is Pincay v. Andrews, 02-56577.


Copyright 2004, Metropolitan News Company