Lawyer Mess-Up Dooms Appeal

Blawgletter thinks we can all agree that no lawyer wants to see this sort of reference to him or her in a court ruling:

The failure to [do something important] was entirely and indefensibly the fault of [litigant's] counsel.

Communications Network Int'l, Ltd. v. MCI WorldCom Communications, Inc. (In re WorldCom, Inc.), No. 10-4588(l), slip op. 3 (2d Cir. Jan. 24, 2013).

The mis-step in question involved a failure to file a timely notice of appeal from an order awarding MCI $2.4 million from CNI for telecom services. Why did it happen? Because CNI's lawyer changed his email address, listed the new one in papers he filed with the district court, but didn't tell the ECF system to update its records so that notices it sends our electronically would go to the new address.

The dissenting judge felt the majority's decision unduly punished a client for a "garden variety" lawyer error.

What do you think? Did the majority (per District Judge Lewis A. Kaplan) get the ruling right? Or do you agree with the dissent (per Circuit Judge Gerard E. Lynch)?

We note that the lawyer-in-error appears to have argued the case to the court. And we bet it wasn't pretty.

Comments

[Max Kennerly]

I saw this same problem this morning while waiting for my turn in state court. The verdict loser's counsel failed to file for post-trial relief because his father had just revealed, after 35 years of marriage, that he had a second family, and so the counsel was emotionally distraught and missed the deadline.

Unsurprisingly, counsel for the verdict winner was sympathetic, and said, if it was up to him, he'd excuse it, but that there was case law in his favor, and so he felt obligated to make the objection on behalf of his client. The judge seemed strongly inclined to excuse the error.

The part that shocks me is how the Court of Appeals here overruled the District Court's exercise of discretion in permitting the late filing. I wonder when's the last time these judges did that and reversed a District Court's exercise of discretion in not permitting the late filing.