Monday, January 31, 2005

Back Again

The Silence Is Broken!

To those of you who have been checking this place for new content over the past {mumble} uh - few days, my apologies. Assuming anyone other than Ken Lammers has been. In the last post I explained how I finally got some downtime where I wasn’t pounding the keyboard all day and all night for people who give me money and expect something in return, unreasonable bastards that they are.

{Aside - WordPerfect’s spelling checker doesn’t recognize bastards as a word - it suggests "bastardy" "brassards" "bustards" "dastards" and "bastardize" interesting - on the other hand, Word’s does. One point to Microsoft on the curse word front.}

Anyway, shortly after my last post, my secretary received a nice call from one of the deputy clerks at the Capitol City office of our intermediate appellate court. Were we going to submit a brief in a certain case? Huh? My secretary, who knows the policies of the office as well as I do, maybe better, told her we submit a brief in every actual appeal. Was this, she asked, a petition to appeal or an honest-to-God case before the court? The latter, it seems. She informs the clerk that we have the initial appointment of appellate counsel, which also serves as the notice of appeal, and a ton of stuff from the defendant himself, but no brief on appeal, no motions, no pleadings of any sort from appointed counsel. Well, says the clerk, it was filed with the court in June and your reply brief was due in August. (Mind, this is shortly after New Year’s that this conversation took place.) The case is not yet on a call (that is, not yet scheduled to be reviewed and decided by a panel of judges) but it was in the queue and would go to a panel Real Soon Now. Would we like her to fax us a copy of the appellant’s brief? Oh, yes.

You may wonder, particularly those of you who are lawyers, what the Hell happened. An odd double failure of systems, as near as I can tell. Worthy opposing counsel, per the proof of service included with his brief, sent all his service copies of everything to a non-existent address, listing the elected prosecutor by name, rather than office. The PA doesn’t live in the city where our offices are, nor has he had a private practice there for a couple of decades or so, leaving the post office pretty much clueless. God alone knows where it wound up.

In most cases, heck, all cases before this one, the court itself would have alerted us that something was amiss long before now. For years, the policy has been to send out nasty-grams to counsel 30 days after the date their brief was to be filed. I’ve never been late as an appellant, but as an appellee, those letters set a 21 day deadline to submit a reply brief or it won’t be accepted and the case will go to the panel with only the appellant’s brief. The letter never went out. When my secretary asked about that, the clerk said that’s why she was calling. When they started to pull files and check paper work for the upcoming calls they found this case had more of less fallen through the cracks. Because appellant was late, he didn’t have oral argument. Because we were late, we didn’t have oral argument. So the case was moved from the local office to the Capitol City office to equalize the workload between offices. In the process, no one bothered to send out the 21 day letter. Because, in the final analysis, the significant screw up was the court’s they would accept my reply brief right up to the time the case was set to be heard, when ever that was going to be.

So, there I was, passing through 5,000 feet in a flat spin. . . wait, that’s another story, but similar thoughts and feelings were running through my mind. Including the desire to get a good gun lock on opposing counsel with a GAU-8. The brief was junk, but in my line of work junk is often, almost always harder to answer than a real, substantive, on point issue. And the statement of facts was impossible. When you get an honest, or mostly honest, statement of facts from opposing counsel, you can just accept it, noting any real problems or omissions in the body of your arguments, and save a lot of time writing the reply brief. Not in this case.
It took me about four MisterDA days to write the thing and another half day to do the motion to extend time and proof it and get it ready for my secretary to FedEx to the Capitol City clerk’s office. In actual elapsed time, about eight days because nothing else went away while I worked on this thing. The usual flow of motions for re-sentencing, motions for new trials, and cries for assistance from the trial staff continued, unabated.

Of course, when I wrapped up the Brief From Out of the Void, all my slack time was gone and the February deadlines were looming (looming?! They were charging in mass!) So, that’s what I’ve been doing. It’s much like attempting to keep your head above water in a whirlpool.

Oh, yeah. About three days after we send out the reply brief the court docketed the case for February 1. Last Friday, I get a call from the clerk's office, telling me they granted my motion to extend time and 10 minutes for oral argument. The catch is that the Capitol City offices of the court are about twice as far away, time-wise, as the Major Metropolitan Area offices where my cases are usually argued. To make things even more fun, my case is dead last on a call with a bunch of civil cases where everyone and her brother has been listed for oral argument. Sigh. This means, based on grim experience, that I'll be standing up at least two hours after the call has started. Then the grim drive home. So, in essence, the day, between travel time, waiting time, and finding lunch time, will be totally consumed by one ten minute, unopposed argument on a pointless case. Sigh. Sigh. ‘Cause the brief elves are not going to finish any of the other things due this week and next while I’m gone. Sigh.

More on why we do this later.

11 comments:

Anonymous said...

Hang in here! I for one enjoy reading your blog and find your posts, even such as these, illuminating as to your practice.

Keep posting, even if only to rant. I'll enjoy reading it.

Mister DA said...

Thanks. It's nice to know I'm not talking to myself. Not that that would stop me. Talking to youself is a known hazzard of appellate practice.

Gideon said...

My question is this: Why do you have to make a motion for 10 minutes for oral argument? I'm assuming you made a motion to truncate the time allocated? Here we get 15 minutes in the appellate court and 30 in the supreme court.

Mister DA said...

Because, technically, the brief was late. However, the court granted the motion to extend the time for filing to the date it was actually received. Now, that is supposed to preserve my right to oral argument which, given that opposing counsel did not have argument, either, should have been 15 minutes. Why they granted the motion to extend time but specifically limited me to 10 minutes escapes me.

As it turned out, I didn't go. Sat down with the my boss and the Boss and decided that six hours of my time in the office was worth more, in this particular case, than showing up for a solo argument. The main factor, from my point of view was the fact that I was number 10 on the call with nine civil cases, four of them multi-party cases, ahead of me. All of them with at least two parties certified for oral argument. That means, in theory, a potential of nine hours of argument! Not that it every works out that way, but experience led me to estimate a minimum of two hours before I got my turn. Maybe even as much as three, depending on the issues in the other cases. So, we called the court and said thanks, but due to the short notice, we can't make it.

Anonymous said...

Aha! It all makes sense now. My experience at the Appellate court hasn't been as bad as 9 hours (potentially) but at the Supreme Court, the usual wait does end up being 2-3. Which is 2-3 hours wasted. Unless you bring work with you, which you obviously then can't focus on.

Mister DA said...

Indeed. When we were discussing this my boss asked if a county laptop would be useful in dealing with those long, drawn out docket waits. My mind boggled. Setting aside the impossibility of concentrating on anything other than the case you are waiting to argue, I flashed on an image of one of our intermediate appellate judges, known to appellate attorneys the state over as the Angriest Judge On Earth, dealing with lawyer clicking away on a laptop during oral argument! Needless to say, I dissauded him of that idea!

Gideon said...

A laptop? I'm afraid to bring anything to an appellate court (if I'm not arguing). I'm afraid if I have a piece of paper and it rustles, I'll get thrown out. I've seen people listen to oral argument and react audibly. Needless to say, it really antagonizes the judges on the bench.

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Josh Green Rock said...

The main factor, from my point of view was the fact that I was number 10 on the call with nine civil cases.
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