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.

Your RSS feed reader is not malfunctioning

That’s right, this really is a new post. I didn’t plan to go for more than a month without posting — the longest time I’ve ever had between posts without first announcing a hiatus —  but events got the best of me. Which is OK.  Between clients and the blog, it’s not a close call.

I do plan to get a substantive post up this week and get back on a regular posting schedule soon.  Just wanted you all to know the blog has not been abandoned.

As a welcome back treat, allow me to share a couple of blawg items I found interestting.

First, I just ran across a blog called “EvilEsq,” which I discovered when its author started following me on Twitter.  Here’s an image from it, which, along with the title, is probably enough to tell you that you don’t want your name to show up there:


Second, the blog of Fresno criminal defense lawyer Rick Horowitz has one of the best subtitles ever, at least if you’re an appellate guy:  Probable Cause: The Legal Blog with the Really Low Standard of Review.

Back to work, everyone.

Does it Matter Who’s On Your Panel?

Our local appellate court in Ventura (Second District, Division Six) can be a good place to hang out if you’re looking for a chuckle. I don’t think I’ve ever left a session there without having at least once laughed, or at least smiled — just not in my own case. No, I don’t laugh at anybody . . . I laugh with them.

At a recent session, a somewhat mischievous question from the presiding justice brought some grins to those waiting and provided food for thought.

Presiding Justice Arthur Gilbert is well known for his wit, and recently it even came out during the criminal case calendar. Usually, all four justices in the division are on the bench, and Justice Gilbert will announce with each case called which of the four justices are on the three-justice panel for that case. One appellant’s counsel took the podium and asked if Justice Gilbert could repeat which of the three justices were on the panel. After repeating the names, Justice Gilbert asked the attorney how she was going to do anything different now that she knew. It seemed like a mischievous question.

Wanting to know who’s on your panel, though, isn’t all that bizarre a request, especially if you’ve become familiar (or at least think you have) with the idiosyncrasies of each justice. Everyone’s heard experienced (and sometimes not-so-experienced) attorneys offer such sage wisdom as “If you draw Justice Razzamatazz, remember that he’s still bitter that the Supreme Court reversed him in Folder v. Screen, so he’s susceptible to arguments that situations shouldn’t be be governed by Folder.” True or not, attorneys act on such “revelations.” (One of the other Justices even quipped in response to Justice Gilbert’s question that if swing Justice Kennedy were on the panel, he’s the only justice the lawyer would have bothered to address.)

In fact, Justice Gilbert may have inadvertently been on to something. A while back, Tom Caso highlighted a study noting that certain substantive areas of the law draw more opinions from some judges more than others. In the words of the author “opinion specialization [is an] unmistakable part of every day judicial practice.” Tom took note of the practical implications:

If true, this suggests a more focused approach for the federal appellate lawyer. One of the difficulties for the appellate practitioner is not knowing the audience for the brief. If, however, opinions are assigned based on the specialities of the individual judges, the brief can be written with those individual judges in mind. This population of potential opinion writers is still larger than the ultimate panel that will hear the case. Nonetheless, by studying whether a particular subset of judges in your circuit write most of the opinions in your area of the law, you have the opportunity of focusing your presentation to address the concerns of those particular judges.

I think a lot of lawyers put too much stock in what they think they know of a judge’s biases. Most of the time a lawyer expresses a negative opinion about the judge, I find it is due to sour grapes over a loss.

However, a judge’s legal approach to things is certainly a fair factor to take into account. For instance, it’s probably not wise to rely on the aforementioned “Justice Razzamatazz’s” purported “bitterness,” but it strikes me as practical to look at his reasoning in the Folder case to see if you can craft an argument that is more likely to persuade him.

Reblog this post [with Zemanta]

Ever Felt Like Using an Expletive at Oral Argument?

I imagine swear words are material to cases quite often, especially in defamation or employment cases (the latter being the first time I had to put one in a brief).  But I suspect they are rarely the focus that they will be in oral argument in this case before SCOTUS.  Apparently, “Justice Roberts is undecided on whether or not he should even allow the lawyers to use the words — and if so, whether to allow the argument’s audio to be played on C-SPAN.”

Judge Bybee Pokes Fun (Update: He’s Not Alone)

When the Ninth Circuit Court of Appeals judges convened for their conference last year, they did so amid a lot of buzz about whether the circuit should be split up. If there is a similar cloud surrounding this year’s conference, I haven’t caught on to it.

But a lack of press buzz is no barrier to discussing the circuit’s checkered reputation. Law Blog summarizes Judge Bybee’s funny presentation about how the Ninth is viewed through the eyes of various institutions.

Update (8/1/08): Judge Bybee isn’t the only judicial joker this week.  Tenth Circuit Judge Michael McConnell earned some laughs this week by noting that the Constitution refers to his court as an “inferior” one.  His remark came during a recent panel discussion that included SCOTUS Justice Alito, which will be the subject of a separate post later today.  Thanks to Ben Shatz.

A Little Bit Funny, Mostly Not

When I found this Youtube video, I was hoping to send everyone off on their weekend with a good laugh. Then I watched it.  Don’t get it.  At all.  Which is why I’m not embedding it here, and you’ll have to follow the link. If you think you get it, leave a comment.

Nonetheless, I looked at part 2 of the video, and that one does have a pretty funny sequence starting around the 1:20 mark, and another starting at about 3:30. Since this appears to be a legitimate research training video with a laugh track added, and the humor arises (presumably unintentionally) from the dialogue in the training video, I think these sequences are even funnier. (Just so you don’t have to sit through part 1: the man in these scenes is an attorney updating a case cited by his adversary in an appellate brief.)

Have a good weekend!

Not Really Appellate Stuff . . .

blog-announce.jpg. . . but it concerns a legal blog — or at least a blog that likes to criticise the legal system — so what the heck.

You know that annoying “404 Not Found” message you get when you try to access a web page that is no longer there? Of course you do. Royal Pingdom shows that they don’t have to be boring. Among the 17 such pages honored in that post is the one at Overlawyered, which gave me a chuckle.

This Case Name is Worth Blogging About After All

Several weeks ago, I clued everyone in to what I think is the best law firm name of all time. And I’ve also mentioned when an unusual case name has caught my eye.

Then I ran across a case out of the Ninth Circuit this morning that I almost blogged about just because of the name. But it’s an in rem action, where names are often a little weird (usually currency, as in United States v. $1,201,894.38 in U. S. Currency”). Then I thought, “Nah, I just don’t get out much. Everyone’s going to think I’m crazy that this name is so unusual.”

Then Robert Loblaw at Decision of the Day blogged about it, and he thinks its the Best Case Name Ever. So there you go.

UPDATE (3/20/09):  I should have mentioned that Decision of the Day also addresses the substance of the decisions, as do (briefly) How Appealing and Split Circuits.

PrawfsBlawg Looking for “Screwed” Nominations

PrawfsBlawg is seeking nominations for “most screwed victims in case law history.”  The post has already collected quite a few nominations in the comments.

Surely, the readership of this blog has something to contribute.  For lawyers who represent a lot of appellants, virtually everyone who walks into their office feels like they have been “screwed” — and many of them have.

A Legal Classic Spoofed, and Well

I doubt you can find a lawyer unfamiliar with the scene in the movie “A Few Good Men” in which the defense lawyer, played by Tom Cruise, grills the witness, a Marine colonel played by Jack Nicholson, over the disciplinary practices at the Marine Barracks at Guantanamo Bay.  (You know the one: “You can’t handle the truth!”)

There’s a terrific spoof of that scene over at PrawfsBlawg.  Substitute a congressman for the Tom Cruise character, 7-time Cy Young award winner Roger Clemens for the witness, and the subject of steroids and human growth hormone for discipline at the Marine Barracks, and you have a wonderfully entertaining spoof.  (Just a script, unfortunately; no actual video.)

Best Law Firm Name of All Time

I was reminded of the best law firm name ever when I saw the firm as counsel of record in a Ninth Circuit decision Wednesday. I am familiar with them from my days in Orange County (in fact, I interviewed with them around the time I interviewed with and became an associate at the late, great, Brobeck, Phleger & Harrison).

The best real law firm name I’ve ever run across: Payne & Fears, LLP.

As good as, or better than, the fake firm names in your law school exams (like Dewey, Screwem & Howe or Low, Ball & Lynch).

UPDATE (2/15/08): Several commenters point out that Low, Ball & Lynch IS a real law firm. That’s really embarrassing (for me).  They have my apology. But did they ever consider Ball, Lynch & Low?

Try Tackling All of This Case Law

“S. COTUS” at Appellate Law & Practice suggests heading over to this link at, where, according to Robert Ambrogi, more than 1.8 million pages of case law have been released in what AL & P calls “somewhat raw form” (raw enough to title his post “XML case law”), apparently as an invitation to developers to catalog them in more usable form.  He adds there are some “fun” videos there as well, and includes a link to a re-enactment of Marbury v. Madison.

Lawyer Advertising Pit Bulls, uh, Make That Pitfalls

Not that you’d ever know it from reading this blog, but I’m a pretty funny guy. So I like things about humor and the law.

A front page article in last Thursday’s Wall Street Journal documents how badly some state bars lack a sense of humor (subscription required — if that link doesn’t work, go to this post at the Law Blog, which appears to allow non-subscribers to link to the article). Take the opening few paragraphs:

Syracuse, N.Y., attorney James Alexander ran a TV spot for his firm showing lawyers offering counsel to space aliens who had crashed their UFO. He also did one with lawyers towering like giants over Syracuse.

Not amused, New York court officials said the ads contained “patent falsities.”

“It cannot be denied,” wrote assistant New York Attorney General Patrick MacRae in a court filing, “that there is little likelihood that [the lawyers] were retained by aliens, have the ability to leap tall buildings in a single bound, or have stomped around downtown Syracuse, Godzilla-style.”

Pit Bull Lawyer Ad

Things aren’t any better in Florida:

[The Florida State Bar] filed a complaint in 2004 against Fort Lauderdale personal-injury attorney Marc Andrew Chandler over ads [pictured left] that featured a pit bull wearing a spiked collar. The Florida Supreme Court sided with the bar in 2005, ruling that pit bulls conjure up images of viciousness. “Were we to approve,” the court wrote, “images of sharks, wolves, crocodiles, and piranhas could follow.”

What’s their point? Why not find that their appearance is likewise offensive? A lawyer in a muscle shirt?

The ads are funny.  The crackdowns, not.

Another thing definitely not funny was something I ran across a year or more ago, before I started this blog, about a state (I could have sworn it was New York or Florida, but I could be wrong) that requires lawyer ads to be approved by the bar before the lawyer can run them, since there are many types of attorneys and injury attorneys as Ask 4 Sam New York City do their own kind of marketing. Bad enough. But the state bar was proposing that blogs be counted as advertising. And not just the blog itself, but each post on the blog would have been considered a new advertisement requiring approval before it could be posted. I’m pretty sure that proposal died a quick death.

The State of Legal Research Presented in Three Minutes and Thirty-One Seconds

Via Legal Writing Prof Blog comes this short, silent, and mildly amusing film on legal research made by some students at Stanford Law School. Where did these students find the time?

Legal Acronyms for the Communication Age

Legal Writing Prof Blog has an amusing synopsis of an article titled “Legalese in the Age of IM (Instant Messaging).” If you are internet savvy and familiar with such acronyms as “rotfl” (rolling on the floor laughing) or “omg” (oh my God), then you’ll get a kick out of law-specific acronyms like OFG, 2SL, WADR, and others. Can you guess what they are before looking?

The Legal Value of a TV Comedy

Ob-Ah271 Lb Car 20070214123651Thanks to this post at Law Blog, I (and you) know about the blog ?That?s What She Said,? which follows the TV show “The Office,” a comedy featuring an outrageously inept, offensive, and politically incorrect boss. Here’s how describes the blog:

It has a clever gimmick: [blogger Julie Elgar, a labor lawyer at Ford & Harrsion in Atlanta] puts a price tag on each episode, estimating how much the politically incorrect behavior would cost real companies to defend. Last night her approximate legal bill came to $450,000.

Maybe there’s an HR Director or General Counsel out there trying to figure out how to work episodes of The Office and blog posts from That’s What She Said into their training programs.

So Your Child Wants to Be a Lawyer

Coloringbook-2If you’re determined to set your kid on the path to lawyering at an early age, you might consider The ABA Journal U.S. Supreme Court Coloring and Activity Book.  That link leads to a description that includes this more-than-likely true statement: “It’s the first SCOTUS-centric publication to come with its own box of crayons.”  The ABA post includes links for purchase and PDF downloads of sample pages featuring Sandra Day O’Connor and John Marshall.

Prawfsblog Looking for Worst Legal Arguments

Here’s our second contest of the day related to bad legal skills.  Well, not a contest really, since there doesn’t appear to be a plan to announce a winner or award prizes. 

Prawfsblawg is soliciting examples of “the weakest legal argument you’ve ever heard.”  Add your contribution to the comments at this post at Prawfsblawg.  As of this posting, there were 56 comments already.

Appellate practice offers a whole new area of bad argument: the argument that was proper at trial but has no place at all in the court of appeal even if legally correct.  Using emotion-laden arguments, arguing credibility and relative weight of the evidence are some examples.

I haven’t seen it much, but a couple of justices have told me that an unbelievable number of attorneys attempt to re-try their cases in the court of appeal rather than argue the applicable standard of review.  What might have been a great, compelling argument in the trial court may be entirely inappropriate in the Court of Appeal.  But that doesn’t stop lawyers inexperienced in appeals from making them.

UPDATE (8/15/07): Oh, yeah. Thanks to Appellate Law & Practice for the link.

Bad “Legalese” Can Earn an Award

Have you run across a particularly egregious case of “legalese” lately?  It may win you some prizes.  Go to the blog The Party of the First Part for details on submitting your entry for the newly announced “Golden Gobbledegook” award, learn where the word “gobbledegook” came from and the prizes the winner and two runners up will win.

POFP offers this encouragement (besides the prizes): “Looking for inspiration? Check out the Legalese Hall of Shame at POFP’s website.”

Legal Antics Announces Legal Humor Law Blog Poll Winners

That was fast.  Legal Antics announced the winners in its “Top 10 Funniest Law Blogs” contest that it announced less than two weeks agoSixteen blogs were nominated.  In order to generate traffic to Legal Antics, I’m not going to disclose the winning blog here.  (A link to the post disclosing the winners is below the teaser quote.)  Here’s the teaser:

[Winner], a web site that, upon information and belief, doesn’t even consider itself a blog, let alone a law blog, has won the “Funniest Law Blog” contest by a landslide.

Go here for the complete results.

By the way, all of the sixteen nominated blogs that weren’t already on my Legal Humor blogroll have been added to it (except for one that, as far as I could tell, had nothing to do with the law).  I haven’t looked closely at any of them, so I can’t personally vouch for the quality of the humor on any of them.