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Lawyer "Flip-Flops" and Argues Wrong Case in Front of the U.S. Court of Appeals - Appellate Practice News

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Appellate Practice News


Posted on: Jul 11, 2021

By Libby Yin Goodknight, Krieg DeVault LLP

A lawyer from Washington State recently experienced the appellate practitioner’s version of the proverbial nightmare of sleeping through a final exam. On June 7, 2021, the lawyer was presenting at a virtual oral argument before the United States Court of Appeals for the Ninth Circuit. A few minutes into the argument, the lawyer discovered he was arguing the wrong case. A video recording of the oral argument in Rule v. Saul, Case No. 20-35618, can be found here. At about 2:55 minutes into the argument, the judges on the panel begin expressing confusion because the lawyer’s recitation of the facts does not match up with their notes. At approximately 4:42 minutes into the argument, it finally dawns on the attorney that he has “flip-flopped” two cases he is handling before the Ninth Circuit, and is arguing another matter that is scheduled to be heard by a different panel of judges the following week. The lawyer ultimately agrees to a ten-minute recess so he can prepare himself and transition to the case that is actually scheduled to be heard that day. The panel of judges could not have been more gracious under the circumstances. (Sadly, opposing counsel was participating in the oral argument via audio only, without the video feed, so we cannot see his reaction as the events unfold). 

This nightmarish mishap is a reminder of the importance of accurate calendaring, especially when it comes to hearings and oral arguments. Check, double-check, and triple-check! Filing the requisite acknowledgment of order setting oral argument under Rule 52(C) of the Indiana Rules of Appellate Procedure is not just a procedural hoop, but also an important backstop that can ensure the attorneys and judges alike are on the same page as to which case is scheduled for oral argument. Interestingly, the lawyer in Rule v. Saul tried to blame his “scheduler” multiple times for the snafu. This serves as another reminder that, although the practice of law entails a lot of non-legal administrative support, we as lawyers are still responsible for our own calendars. As Rule 5.3 of the Indiana Rules of Professional Conduct states, a lawyer shall be responsible for the conduct of non-lawyer assistants that would be a violation of the Rules of Professional Conduct if engaged in by a lawyer. 

Let’s hope this never happens to you!    

If you would like to submit content or write an article for the Appellate Practice Section, please email Kara Sikorski at ksikorski@indybar.org.

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