Thursday, December 4, 2014

BigLaw Missed Appeal Deadline: Now Trying To Dodge A Bullet

Here is a very interesting case.  A small company named Two-Way Media sued AT&T for patent infringement. Lots of stuff happened, and then Two-Way won a jury verdict plus enhancements totaling $40 Million against AT&T. So unless AT&T can get that decision reversed on appellate review, AT&T has to pay Two-Way Media $40 Million.

Unless you are a lawyer, you may not know that there is a pretty hard and fast deadline for filing an appeal of a trial court's decision.  Under the Federal rules, a losing party must file their "notice of appeal" within 30 days of lots of things, but for the purpose of this discussion, it must have been filed within 30 days of the trial Judge submitting his decision on both parties' several post-trial motions (motions both sides file to try and change what happened at trial).

In this case, the trial judge entered his decision on both parties' post-trial motions in November. But the notice of the decision that was emailed to the lawyers apparently wasn't a model of clarity. None of AT&T's lawyers (18 of them) actually looked at the decision. So none of those lawyers made a note of when AT&T was required to file its notice of appeal.

Oops. You must see where this is going.

A couple of months goes by, and someone on AT&T's side finally notices that the judge's decision was entered months earlier, and no one had filed a notice of appeal.

So AT&T's lawyers asked for permission to file the notice of appeal late, saying that the email from the court was misleading so it wasn't their fault that none of AT&T's 18 lawyers actually read the order attached to the email. The trial judge had none of it, and refused to let AT&T file the notice late.

AT&T then appealed the trial judge's refusal to grant AT&T more time to file a notice of appeal. So AT&T is asking the Federal Circuit (the court that reviews the trial judge's decision) to essentially force the trial judge to allow AT&T extra time to file its notice of appeal.

In other words: AT&T's lawyers blew the deadline for filing a notice of appeal. When they realized what happened, they asked the trial judge to give them more time to file the notice of appeal. The trial judge said no, so AT&T is asking the higher court force the trial judge to give AT&T more time. AT&T's justification for more time is that the email notification of the trial judge's decision was unclear about what the decision covered, and since the email was unclear none of AT&T's 18 lawyers read the actual decision.

I can't wait to see how this turns out. There was an oral argument yesterday at the Federal Circuit where lawyers for both sides answered some questions that the appellate judges had.

The most interesting line of questioning was right out the gate where one of the appellate judges asked AT&T's lawyers if they had billed AT&T any time for reading the trial judge's decision even though they now claim none of them did. AT&T's lawyer admitted that there were several time entries (of between six minutes and fifteen minutes) for reviewing something from the trial judge. AT&T's lawyer tried to argue that it was just for reading the email itself, not for the underlying decision.

Really?  Fifteen minutes to read an email which you say is so unimportant that you didn't even bother to read the attachment? Really?

It's statements like that which bring to mind the "churn baby churn" email fiasco that Mr. Victor had to endure. Law firms churning bills while not doing what they say they are doing. It's no wonder in house counsel are trying so hard to get their outside counsel's bills down.


I don't know exactly what to think about this situation. I'm very anxious to see if the Federal Circuit let's the big firm skirt by after blowing one of the most important deadlines in all of civil litigation. I also wonder if they would have the same leniency if it were a small firm that made the same mistake.

The case is Two-Way Media v. AT&T, 5:09-cv-00476, in the Western District of Texas; and AT&T v. Two-Way Media, 14-1302 in the Federal Circuit.