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Calendar glitch or calendar goof?

Lurking among Monday’s unpublished opinions of the 4th U.S. Circuit Court of Appeals is a cautionary tale for appellate lawyers who like to play it close to the deadline with their court filings.

A lawyer tried to explain his one-day-overdue notice of appeal by reference to an alleged computer glitch.

In his account, the attorney was counting the days while looking at the month of December 2009 on Windows Calendar (an application that came with Windows Vista). When he changed the month from December to January to continue his count, he failed to notice the year was still 2009, not 2010.

Accordingly, since the 30-day appeal period appeared to end on Jan. 4 (a Sunday in 2009) the lawyer figured the actual deadline was Monday, Jan. 5.

Unfortunately, Jan. 5, 2010, was a Tuesday and the lawyer’s notice was a day late under the rules.

This explanation was accepted as “excusable neglect” by Alexandria U.S. District Judge Anthony Trenga, but the 4th Circuit panel was not so forgiving. “[T]his neglect is precisely the sort of ‘run-of-the-mill inattentiveness by counsel’ that we have consistently declined to excuse in the past,” wrote the panel in a per curiam opinion.

The court eased the sting of that holding in a footnote. Even though the appeal was dismissed for lack of jurisdiction, the panel expressly noted it would have affirmed the judgment anyway on the ground that Trenga’s findings were not erroneous.

Such a footnote undoubtedly makes it easier to place that call to the malpractice insurer.

By Peter Vieth

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