Norm Pattis: Notes From The Forgotten Pile
Most practitioners live in fear of dismissal notices from the various courts before whom they practice. There are deadlines for almost everything. Miss a statute of limitations, and call your malpractice carrier. Fail to respond to a motion within a period prescribed by law, and find yourself at the mercy of court's discretion. But what rules govern the timely performance of a court duty?
I filed a lawsuit in the Connecticut District Court for a local police officer in May 2009. Thereafter, the lawyers for the other side and I engaged in discovery and motion practice. The defendants filed a motion for summary judgment, whereupon the trial court ruled, permitting the action to proceed to trial in late December 2011. All of this was done with the usual fuss and bother of civil litigation.
Thereafter, the defendants filed a notice of appeal in the United States Court of Appeals for the Second Circuit. They claimed the District Court erred in refusing to grant summary judgment. We filed a motion to dismiss the appeal in April 2012, whereupon the defendants replied. At issue was whether the appeal was timely. Didn't it break the rule against filing interlocutory appeals? No, the defendants said: denial of summary judgment sought on grounds of qualified immunity need not await a final judgment for appellate review. We claim they are appealing factual issues, not legal issues.
On and on the lawyers go, ragged dogs chewing on the law's dirty socks.
The point is that this case has been sitting on the docket of the United States Court of Appeals for the Second Circuit, one of the most prestigious courts in the land, a heartbeat away from the Supreme Court, briefed and ready for decision for almost two years.
My client calls from time to time to inquire about the status of her case. I tell her we are awaiting argument, or a decision, on our motion to dismiss. If we lose that motion, then the parties will have the opportunity to fully brief the underlying issues, resulting in another year or more of delay before arguments on the merits finally take place. If we win the motion to dismiss, the case will be sent back to the District Court, we will get to trial some time before global warming transforms the Arctic Circle into beachfront property.
My client is patient, even kind.
Not long ago, we got a notice from the District Court inquiring about the status of the case. We doubled-checked the Second Circuit docket. Phew. The case is still alive. We called the clerk's office. What can we do to get the matter heard? We got the cryptic response Greeks used to hear when awaiting word from the Oracle at Delphi. We alerted the District Court that we are in Lady Justice's holding pattern.
The courts are busy. I get it. There is only so much the judiciary can do. I get that, too, although I wonder why the court is so stiff-lipped when asked to acknowledge the strains under which lawyers work.
My client called again the other day. I asked her permission to write about the case, hoping that someone on the court might read this and do something to move her case from the forgotten to the active pile. She gave permission.