How flexible is that midnight electronic filing deadline in federal court?

The witching hour approaches (Image courtesy of

When I was a young lawyer, my mentor told me, “Practice law as if the rules will always be strictly enforced against you but will never be strictly enforced against the adverse party.” Wise words.

Last week I posted about a party that applied for a 15-minute extension of time to file its documents with the federal district court in Ohio because of some technical difficulties it encountered with the electronic filing. In doing so, it lived out the first half of my mentor’s adage, as it did not assume that it would get a break of even 15 minutes without explicitly requesting such relief.

In Hyperphrase Technologies, LLC, et al. v. Microsoft Corporation, a patent infringement case in a Wisconsin federal district court, Microsoft electronically filed its summary judgment motion about 4-1/2 minutes after the midnight deadline, and did not complete uploading the supporting papers until 1:11 in the morning. Microsoft did not ask for an extension, thus ignoring the rule to “practice law as if the rules will always be strictly enforced against you.”

Hyperphrase moved to strike Microsoft’s summary judgment motion as untimely. The magistrate judge had great fun in his order denying the motion to strike:

Microsoft’s insouciance so flustered Hyperphrase that nine of its attorneys, [listed by name], promptly filed a motion to strike the summary judgment motion as untimely. Counsel used bolded italics to make their point, a clear sign of grievous iniquity by one’s foe. True, this court did enter an order on June 20, 2003 ordering the parties not to flyspeck each other, but how could such an order apply to a motion filed almost five minutes late? Microsoft’s temerity was nothing short of a frontal assault on the precept of punctuality so cherished by and vital to this court.

I’m hardly the first blogger to note this 14-year-old order, and many people have no doubt gotten a good laugh from it. Allow me to be a killjoy and inject some seriousness.

At first glance, it might appear that Hyperphrase ignored the rule to “practice law as if the rules . . . will never be strictly enforced against the adverse party.” But did it?  This adage does not mean that a lawyer should ignore rules infractions by the other side, only that a lawyer should weigh the seriousness of the infraction within the context of the case before committing the client’s money to an effort to make the adverse party pay a price for that infraction.

I suspect Hyperphrase’s lawyers made that analysis, and the decision to move to strike was carefully considered rather than a reflex reaction. This was a patent infringement action against Microsoft targeting two of Microsoft’s flagship products, Word and Excel. There had to be many millions, perhaps hundreds of millions of dollars, at stake. Would you not at least be tempted to move to strike the summary judgment motion as untimely? Would you let the risk of looking silly stop you from taking every conceivable step to get the case in front of a jury? And even if you were reluctant to move to strike, how do you think your client, with many millions of dollars on the line, would react to you saying you would not move to strike the motion because you did not want to look petty? Maybe the magistrate judge had a reputation for being a stickler on timeliness. Finally, maybe Hyperphrase’s attorneys believed the motion would be impossible to beat on the merits and saw the motion to strike as the only reasonable shot at derailing it. (The district judge granted the motion.)

Consider also this occurred in 2003, when electronic filing was relatively new. (I don’t believe mandatory electronic filing was in place in California until a few years later.) With little or no history to go on, who knew how strictly the midnight deadline would be enforced? If one hour and eleven minutes past midnight is OK, how about 2 a.m.? 3 a.m.? The judge is almost certainly still in bed at those times, and the courthouse is still hours from opening. At what point is tardiness inexcusable?

There are judges who take untimely filing, even by a matter of minutes, seriously. Since you never know how your judge will view it, perhaps the safe course is to ask for an extension when your filing will be even a few minutes late and to move to strike anything of significance filed late, even if it is just by a few minutes.

If you have experience with missed electronic filing deadlines (in either federal or state court) in the early morning hours, please share your story in the comments.

A light-hearted Friday post: what is the standard of music on appeal?

I wrote last year about In re Christopher B., case no. C077467 (3rd Dist. Sept. 28, 2015), a cautionary tale about a trial court’s “clarification” of its order (read: “void modification for lack of jurisdiction”).

Justice Butz’s concurring opinion opened with this sentence: “With apologies to Dolly Parton, here I go again, concurring with myself.” I like it when judges write colloquially, but I think I would have used a different musical reference if I were in Justice Butz’s place:

What can I say? I loved the 80s!

Friday Appellate Humor

Here’s the graphic from a good New Yorker cartoon about appeals:


Click the image for the punchline

To avoid exceeding fair use, I’ve left off the punchline. Here’s a clue: there’s only one judge on the bench, so you know this cartoon depicts the trial court instead of the appellate court.

To see the punchline, click here or click the image. If you have any ideas for your own punchline, why not share them in the comments?

The secrets to using humor in the courtroom

There aren’t any. Well, maybe one: don’t do it. (Though, as you’ll see below, not everyone agrees.)

On the “don’t do it” side is Litigator Rex. Via a post at Southern California Appellate News, I ran across Litigator Rex’s post counting down “Argument Misdemeanors – Five Ways to ruin your oral argument.” The countdown starts with this no-no:

5. Familiarity or humor. The judges are not your friends, they are an institution. While judges have their own personalities, foibles and attitudes on the bench, the role they play in the system demands a certain level of decorum.  Charm, humor, or insouciance rarely work and often irritate the judges. This informality not only comes across in the spoken word but also through your actions, leaning on the lectern, body language, standing to the side of the lectern or podium, all convey an air of inappropriate informality, which can cross the line into disrespect, whether intended or not.

This is not to say you should be rigid, impassionate or humorless, but there is a level of formality that should be respected.  Resist attempts at humor, especially if it’s “off the cuff.”  Remember, you are not as charming as you think you are nor as funny.  Stick to the facts and the law: get the job done.

I know only one lawyer who has a recurring tendency to go against the tide of advice regarding humor in the courtroom. Marty Rudoy, a California attorney, was a stand-up comic and wrote jokes for the likes of Jay Leno, Arsenio Hall and George Herbert Walker Bush (yes, President 41). As such, Marty is wont to run the risk of telling a joke or two in the courtroom. He’s got some advice for potential stand-up litigators: know your judges. If it seems like your judge has a sense of humor, set it up so the judge gets a laugh first. That way, the judge establishes that he or she is human and funny, and you don’t usurp the court’s authority over the courtroom by turning it into a mini-comedy club. Once the judge gets a laugh, then you have free reign to do a follow-on joke or a tag.  Sometimes, Marty plans it so that the judge’s joke sets him (Marty) up for a short routine. Having a sense of humor, Marty says, humanizes the attorney, too, and can make you more likable (and more  credible) than your dour opposing counsel.

Another thing Marty does is insert humor selectively in his legal briefs. “Judges like reading interesting observations and wry asides.  I know it works, since at oral argument judges ask me about the things I bring up, whether it’s a Shakespearean reference or a quote from the Art of War. It’s all got to be in context, though, and reinforce a point you’re trying to drive home in the brief.”***

Something funny in The Art of War? I didn’t realize Sun Tzu was such a cut-up. I read Sun Tzu when I was a Marine officer, but I thought National Lampoon was funnier. (Insert rimshot here.)

So, in closing . . . a judge, a prosecutor, and a criminal defense lawyer walk into a bar . . .

***I know, I know, half of you are wondering why I wrote “free reign” instead of “free rein,” and the other half thinks the first half is crazy. As a budding equestrian, I would ordinarily go with “rein,” but used “reign” to illustrate the point that even though one form is apparently correct and the other is not, that apparently that doesn’t matter much anymore.