Read this opinion. It's only two pages, but addresses that age-old question: how strict is that deadline?
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1. Posted by Jeff Lipshaw on February 10, 2006 @ 6:07 | Permalink
The real question, it seems to me, is whether the motion to strike was unethical. I would argue that it was, whether or not sanction is available. Note: shameless self-promotion to follow. I've just posted an article on SSRN (abstract=881066) making the argument this kind of hyper-legalism is law's process of rationalization and justification gone wild. Interestingly, the magistrate judge's response tracks my suggested cure: Hyperphase's second reaction (after the first greedy one) should have been a second-personal "there but for the grace of God go I" and that is the remedy ordered.
I've been on a Lincoln kick recently. All lawyers should be required to memorize Lincoln's Second Inaugural Address and to recite it out loud before undertaking petty tactics.
2. Posted by kristine on February 10, 2006 @ 8:39 | Permalink
I love a snarky judge.
3. Posted by tRJ on February 10, 2006 @ 8:50 | Permalink
My favorite part: "Counsel used bolded italics to make their point, a clear sign of grievous iniquity by one's foe."
4. Posted by Gordon Smith on February 10, 2006 @ 12:40 | Permalink
I failed to mention that one of my students, Rachel Graham, brought this case to my attention.
These folks deserved a snarky magistrate.
5. Posted by Drive By Poster on February 10, 2006 @ 13:59 | Permalink
Hyperphrase actually got more than it may first appear. Even though Microsoft filed its last supporting document 71.25 minutes after the midnight deadline, the court gave Hyperphrase 72.00 minutes *after an initial 4.50-minute grace period* -- in total 76.50 minutes -- in which to file its late supporting documents. The magistrate judge was a tiny bit more than even-handed.
6. Posted by Scott Moss on February 10, 2006 @ 21:19 | Permalink
I once sent an outraged letter brief -- basically, a motion to strike -- to the Second Circuit noting my discovery that opposing counsel had blatantly flouted (I doubt I used those words) the various of the Circuit's rules: they (a) evaded the page limits by (b) using 11.5 rather than 12-point font and (c) using 1.8 spacing rather than double-spacing. I figured this out by retyping one of opposing counsel's paragraphs and holding it up to the light with their copy. Somehow, the Second Circuit didn't agree with me that this was a travesty of justice. An experienced appellate lawyer in the Seventh Circuit swears that the Seventh wouldn't ignore my opposing counsel's disregard for the rule of law, but somehow I doubt it....
7. Posted by Josh on February 13, 2006 @ 19:05 | Permalink
If the client wanted to file the motion and you as the lawyer did not, that is (a) unethical (b) potentially malpractice. There are countless opinions out there where courts enforce their deadlines. Don't blame the lawyer, blame the law.