U.S. Second Circuit - The FindLaw 2nd Circuit Court of Appeals Opinion Summaries Blog

Lawyer's Tardiness Should Not Result in Case Dismissal

A small group of plaintiffs are all breathing a collective sigh of relief thanks to a recent Second Circuit decision vacating the dismissal of their case. The case was dismissed sua sponte by the federal district court after the plaintiffs' attorney failed to show up on time for a pretrial conference.

After waiting just under half an hour for the late lawyer to show, the lower court dismissed the matter with prejudice, despite the fact that the case was through discovery and motions and basically ready for trial. The attorney on the matter, a solo practitioner, had tried to attend three different hearings all in different courthouses all in one morning. Clearly, it did not work out for him, even though the plaintiffs did prevail in this appeal.

Hate the Lawyer, Not the Client

As the Second Circuit explicitly acknowledged, the federal district court should not have penalized the plaintiffs for the failings of their attorney which were unrelated to the merits of the case. The appellate court vacated the dismissal, and advised the lower court that the attorney can be personally sanctioned for being late, but it is inappropriate to extend that sanction to the parties.

The appellate court noted that rather than calling to notify the court of his tardiness, the attorney attempted to chance it that he could just show up late. And while many judges, particularly those with a packed calendar, can and will just pass a case over and let it trail the calendar when counsel is not present, if there are no other lines on the court's docket, that simply isn't pragmatic nor possible. As the appellate court explained, the attorney did not even make an attempt to notify the court of his packed morning and almost certain tardiness.

The big takeaway from this case is to always notify the court if you are running late. While judges can be very tough, they, like their staff, are regular people too. They understand that sometimes those lame excuses are legitimate, and it is way less likely that you'll be sanctioned if you call the court clerk as soon as you know that you'll be late.

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