Legal Question in Appeals and Writs in California

My attorney missed the filing deadline by one day to serve the opening brief to

The opening brief to the 9th Circuit deadline was 1 day late. Apparently the printing service did the excerpts/exhibits all wrong and there was not enough time to fix it. My attorney has already requested one extension of time, which was granted. I was told that he was ''reasonably certain'' that the court would accept the appeal one day late,as he was sending some kind of motion with an affidavit explaining what happened, but he couldn't guarantee it. I'm in shock about it, since we have an excellent case and my future is hanging in the balance. If the 9th rejects our appeal due to being one day late, do i have any recourse? Are clients protected by this kind of negligence?


Asked on 3/18/03, 4:38 pm

1 Answer from Attorneys
Edward Hoffman Law Offices of Edward A. Hoffman

Re: My attorney missed the filing deadline by one day to serve the opening brief

The Ninth Circuit will likely accept the brief a day late under the circumstances you have described, and the fact that it arrived late will be long forgotten when the time comes to decide the case. The judges who ultimately decide the case may not even know that this happened, and if they do know they won't care.

In the unlikely event that the court rejects the brief due to the missed deadline, your attorney can still try to get them to reconsider. If he is unable to get them to consider the case, you can bring a malpractice action against him. Missed deadlines are a very common ground for such claims.

In order to win such a case, you will have to show not only that the lawyer messed up but also that you would have won -- and you will have to show how much you would have won *and* that you would have been able to collect it. Depending upon the specifics of your case these may be easy matters to prove or difficult ones.

But for now, try to relax. The chances of your brief being rejected are very slim.

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Answered on 3/18/03, 4:51 pm


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