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Thursday, December 13, 2012

Ind. Courts - A New Unwritten Policy on Late Brief Filings at the Indiana Court of Appeals?

Commentary by Joel Schumm, professor at Indiana University's Robert H. McKinney School of Law

I attended a legal writing conference in Texas last week. Some professors at a law school there told me assignments that are more than two hours late earn a zero. I assume the tough policy helps law students become prepared for eventual practice. After all Texas is where, a few years ago “Michael Wayne Richard was executed at approximately 8:20 p.m., a little over three hours after a court official, at [Judge Sharon] Keller's direction, told his counsel that the clerk's office would not stay open approximately 20 minutes after its usual closing time to accept a late filing in his case ....” As the saying goes, don’t mess with Texas.

What about deadlines in Indiana? As hopefully every lawyer knows, the timely filing of a notice of appeal is a jurisdictional requirement. Blowing that deadline in a civil case generally means a lawyer better call his or her malpractice carrier; the appeal is forfeited. In criminal cases, Post-Conviction Relief Rule 2 allows belated appeals under certain circumstances.

There are numerous other deadlines throughout an appeal. If the clerk doesn’t file a notice of completion of the transcript within 90 days of filing a notice of appeal, failure by counsel to seek an order compelling completion within fifteen days “shall subject the appeal to dismissal.” The Appellant’s Brief must be filed within 30 days of completion of the transcript. A petition for transfer is due within 30 days of the Court of Appeals’ opinion. Responses to motions must be filed within 15 days of service of the motion. And so on.

One would assume all these deadlines are firm, and blowing a deadline is a bad thing with possible consequences. The Clerk’s office has long marked late filings “received” instead of filed, and counsel was then required to file a separate motion requesting the Court accept the late filing. The vast majority of these were likely accepted, as long as a good reason was provided.

I was recently told of an apparently new, unwritten policy allowing the late filing of briefs within five days of their actual due date. Some docket entries offer support, as the following three docket numbers all show (1) a late brief marked “received” by the clerk followed within a couple of days by (2) a sua sponte order from the Court of Appeals directing the clerk to file the brief as of the date of the order:

49A02-1108-CR-00721 (Appellee’s Brief filed one day late)

49A02-1207-CR-000528 (Appellant’s Brief and Appendix filed one business day late)

49A04-1207-CR-00372 (Appellant’s Brief and Appendix filed four days late)

Call me a curmudgeon, but I actually like deadlines. Deadlines bring useful predictability to any process. My first-year legal writing students know that a paper that is a minute late will earn a 10% penalty. This avoids the discussion of “it was only [fill in the blank, two, five, etc.] minutes late.” Late is late. There are no exceptions barring an emergency.

If the Court of Appeals truly does have an unwritten policy allowing briefs filed one to five days late, it seems likely a day or few late may become the new norm for filing. When trying to wrap up an appellate brief at 3:00 or 4:00 p.m. on the due date, there's no reason to work late and Rotunda-file a brief; just finish it up in the next day or two.

But questions persist about the reach of the purported policy. If counsel is given a “final” extension on a brief, does counsel actually have five days beyond that deadline? Will late filings be accepted just for briefs or for other types of filings, such as motions? What about Rule 35(C), which prohibits extensions of time on petitions for rehearing, petitions for transfer, and appeals involving termination of parental rights? Can those filings also be tendered a few days late? (And is the Indiana Supreme Court onboard with the same policy?)

Consistently enforcing all deadlines would obviate those questions. I’m not suggesting that an appeal should be dismissed when a lawyer makes a calendaring error and files something a day late. (Thirty-eight days, however, has been held to be too late.) But it’s not unreasonable for a late-filing lawyer to experience a healthy “oh, $%#&!” moment when a deadline is blown, followed by a motion that explains the error that will hopefully never be repeated.

If blown deadlines are instead greeted as a matter of routine with polite orders accepting the late filing, one might expect many more late filings--and some lawyers confused and upset if a late filing is at some point not accepted or the unwritten policy changes.

Posted by Marcia Oddi on December 13, 2012 09:05 AM
Posted to Indiana Courts