| Perspective |

An Unappealing End

Litigation attorneys often feel as if their lives are bounded by lines drawn between points in time — filing deadlines that is. Due to a recent failure concerning one such line lawyers at one major law firm may be having professional “near death” experiences. They collectively missed a strict deadline to appeal a $40 million patent verdict against their client AT&T and a Texas federal court has refused their plea to bring the appeal back to life.
Despite its grave implications the origin of the word “deadline” isn’t so ominous. The “dead” part of the word reflects the archaic English sense of “nonmoving.” But almost any court deadline can be moved if all concerned ask the judge nicely (ideally before the deadline passes). Judges are surprisingly patient with missed deadlines aware of the time pressure faced by busy litigators.
This is not so however concerning the deadline to preserve the right to appeal from a final judgment which is done by filing a notice of appeal. This document is one sentence long and merely states an intention to pursue an appeal. In federal court it must be filed within 30 days of final judgment. The task is simple. But if the filing deadline is missed the consequence is also simple — and brutal: litigation death.
AT&T had gone to trial in this patent case and lost big. But AT&T’s 18 lawyers the cream of one of the country’s biggest firms kept at it. Fighting off final judgment they filed a raft of posttrial motions: one requesting that the court throw out the verdict another asking it to render a different one a third one asking that the case be retried and a fourth one requesting a reduction in the damages award. AT&T’s lawyers doubtless knew they were unlikely to prevail on these motions but they also knew that there could be no final judgment until they were decided. Only after an e-mail notified the team the motions were denied and judgment was final would there be reason to turn to the prompt filing of a notice of appeal.
As they monitored their e-mail notices however the AT&T lawyers failed to realize that in fact their motions had been denied. Judgment was in fact final and their client’s time to appeal was drawing to a close. Notices came and went indicating the entry of various orders but there was no mention of a “final judgment.” Unfortunately what emerged later was that a number of these posttrial orders were described inaccurately or incompletely in the e-mail notifications. The orders themselves were clear — AT&T lost its motions and would now have to seek relief in the court of appeals — but the summaries were not.
Astonishingly none of the AT&T lawyers read the actual orders just the notifications. Waiting for notification of a final judgment that was already entered they missed the deadline to file a notice of appeal not even realizing it until weeks after it passed.
Fifty-two days after final judgment more than three weeks after the “drop dead” date in the rules AT&T asked the court to resurrect its appeal rights by retroactively extending the filing deadline. The error it argued was excusable. If the e-mailed notifications did not tell its lawyers that final judgment had been entered how could they even know that the 30-day period for filing a notice of appeal had started much less ended?
Not on your life responded the court. It observed that 18 lawyers fully aware that a $40 million judgment had already been entered against their client and awaiting action on posttrial motions received a series of e-mails indicating that a series of new court orders had been issued. Yet not one of them took the trouble to download these orders themselves and see them as they say in yeshivah “inside.” AT&T’s appeal was doomed therefore because attorneys are strictly responsible to know the contents of every order issued in their cases.
That is after all what they are supposed to do for a living.—

Oops! We could not locate your form.