All of this is based upon the oral argument from Tuesday.
Represented by Sidley, AT&T loses $40m verdict at trial. The parties file post trial motions. Sometime later, 18 lawyers at Sidley and its local counsel received notice that the district court had entered several orders. Many were sealing and other administrative orders. One was the denial of AT&T’s motion for judgment as a matter of law notwithstanding the jury’s $40m verdict against it.
No one read the orders — though apparently some folks billed as much as .25 an hour to reading the email — until about two months later, which was long past the deadline for appealing. The district court denied relief to AT&T, basically saying that the text of a docket entry isn’t what matters; it’s the order, and lawyers have a duty to read every order. (That’s the gist.)
The appeal in Two-Way Media LLC v. AT&T was heard yesterday at the CAFC. The oral argument is here. It’s a fascinating listen: two former trial judges (O’Malley and Wallach) were not sympathetic, at all, to Sidley’s position; Judge Dyk seemed to be bending over backwards to try to get one of those two to join him in granting some form of relief.
Stay tuned…. I’m guessing there will be either a rule 36 affirmance or a 2-1 decision with Dyk dissenting.
Here’s a thought: Does this case now give lawyers grounds to bill for having multiple people read every routine-seeming document thoroughly? I mean after all, they could now plausibly say they risk malpractice if they simply assume their colleagues read it and/or it otherwise wasn’t necessary, etc.
Ouch.
The district court denied relief to AT&T, basically saying that the text of a docket entry isn’t what matters; it’s the order, and lawyers have a duty to read every order.
I don’t see how it could be any other way.
Judge Wallach at one point said something like “as a district judge, aren’t I entitled to rely on the fact that lawyers will read my orders?”
Agreed. Even though tedious, uses trees, and can produce cubic feet of paper, I always print all documents to make sure noting is overlooked. What’s amazing is that none of the 18 lawyers thought to inspect more carefully, even on screen. Safety in numbers, I guess.
Amen. As a professor I tell students to always print out and read on paper. It is amazing how difficult it is for us to read — really read — on screen, I think — even those raised on them…
It seems to me that it would be pretty easy to detect a denial of a motion for JMOL on your computer screen, if you bothered to open the file. And you certainly don’t need (and shouldn’t want) 18 attorneys printing out every paper filed in the case. This fiasco suggests a more fundamental problem with internal processes – apparently nobody was actually responsible for looking at the documents, which meant that everybody could assume that somebody else looked at them. That’s a recipe for malpractice.
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