May
07

A Click Away From Disaster?

News that yesterday's near Wall Street meltdown might simply be the result of a keystroke error hardly reassures. The market is supposed to reflect value, correct? It still looks from afar as though it has more in common with a casino. Can the economy really tumble as a result of equations no one really understands?

I suppose the answer is yes, it can. And so, too, can the doors of justice come slamming shut. We live in a digital world.

My office has been having a load of trouble with the United States Court of Appeals for the Second Circuit this week. The problem is trying to file an appearance on a form the court will accept.

Lawyers out there know that this is supposed to be the simplest of acts. An appearance is simply a piece of paper alerting the court and counsel that a lawyer is taking responsibility for a party in a piece of litigation: The lawyer appears on behalf of a party. Contrary to popular misconceptions, a lawyer can't simply quit a case. Once you have appeared, you are only out of the case once a judge let's you out. So lawyer beware. Appearing is an act fraught with consequences.

I filed a notice of appeal in a case not long ago. When I filed the notice, paperwork was sent to the Court in New York. The fact that I had an appearance in the District Court file and was appealing from that court's judgment was not enough to alert the Second Circuit that I was handling the appeal. They want their own form, and in their own way. So we filed one.

Of course, the court would not accept it. We got a notice back saying that the appeal would be dismissed unless we used their form and e-filed it. I called the clerk, wondering what in the world I had done now. I've taken dozens of appeals in the Second Circuit. This was more than the usual turbulence in getting a case off the ground.

I needed to file using a form on their web site, and I should send it to the court electronically from the web site itself. I pulled the web site up. I could not find out how to send it. So I thanked the clerk, and turned to my office manager. After fussing with the page for an hour or so, she could not get the form sent as well. So we consulted a young paralegal. Same result, and now we are hours into this task.

Unbeknownst to me, my office manager in frustration simply put everything on a disc and sent it to the court. How hard can it be, right?

The Second Circuit returned it. Now I am in danger of default. We have not complied. I call the case manager, and I speak to my office manager and my paralegal. We are unable to send the document. A couple of days of phone-calling goes on. The Second Circuit calls again. Tech support this time. After more time wasted trying to file an appearance, we are finally told that we need some additional software. So we call our computer guru, who will now need to get into the mix at an hourly rate.

I estimate my office has now spent several hours and hundreds of dollars worth of time trying to tell the court that I am handling the case. Of course, the irony is that I have already participated in a teleconference with staff counsel about the merits of the case. There's no mystery about how represents the appellants in this case. The only folks who refuse to accept the fact that I am in the case are in the clerk's office, and I doubt they read the law.

I am a keystroke or two from disaster and I still don't know why. I guess the courts are no better than Wall Street when it comes to elevating arcane form over substance. Would Shakespeare have wanted all the lawyers killed were he writing today? Or would his wrath be better directed at court clerks?
Comments (3)
Posted on May 7, 2010 at 10:38 am by Norm Pattis
It really is enough to make another career look at...
It really is enough to make another career look attractive.

Norm

Posted on May 7, 2010 at 10:33 am by Kate
I loved your post! I just had the exact same prob...
I loved your post! I just had the exact same problem... I felt like I had hit a new low when I couldn't even get an appearance filed!! We used our scanner to convert the appearance form to a word document, then we had to spend an hour reformatting the word document, and then we converted it into a text-searchable pdf through word. Not sure if that helps at all. Good luck!

Posted on May 7, 2010 at 5:48 am by William Doriss
This explains perfectly why so many of us are frus...
This explains perfectly why so many of us are frustrated by the so-called legal system, at all levels. It also explains what Ann Coulter meant when she said in answer to the question, Should I become a lawyer?..."Yes, if you want to stand next to a Xerox machine for the rest of your life!?!"

That of course was a metaphorical reference to the tediousness of the whole bloody enterprise, implying that no one would go into this line of work unless he was glutton for punishment, or mentally deranged.

I guess that the answer to your current problem is to suggest that your client do his own appeal, pro se, because the docketing standards are supposedly easier. And then you have the Supreme Court, where the formatting is strictly spelled out in a fifty-five page booklet. For the record, I did my own 2nd Circuit appeal and got my appeal of that decision docketed with the USSC, #08-6378.

Justice is difficult to achieve in Amerika at any level. They just won't let you win. It just gets worse rather than better. And yet we continue to ourselves that we have the best justice system in the world. When 7,900 cases docketed with the Supreme Court are dismissed outright without explanation. Why on god's green earth do we continue to revere these phantoms in robes? Books and more books about the S.C. and S.C justices, a golden goose for the book publishers, never-ending money-maker.

I would rather read The Framing of Abu-Jamal than another book about the Supreme Court.
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About Norm Pattis

Norm Pattis is a Connecticut based trial lawyer focused on high stakes criminal cases and civil right violations. He is a veteran of more than 100 jury trials, many resulting in acquittals for people charged with serious crimes, multi-million dollar civil rights and discrimination verdicts, and scores of cases favorably settled.

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I believe that the state is a necessary fiction and that failing to combat it is the first step toward tyranny.
– Norm Pattis

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Nothing in this blog should be considered legal advice about your case. You need a lawyer who understands the context of your life and situation. What are offered here are merely suggested lines of inquiry you may explore with your lawyer.

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