Friday, August 12, 2016

Rules Matter -- Cuevas v. Hartley and Kozinski's Dissent

Run of the mill ... ho hum.  Cuevas v. Hartley is just another habeas case.  But it represents much more -- a practice that Judge Alex Kozinski labels a game of "dare."  From the former Chief Judge's perspective, attorneys file oversized briefs at the last minute with a motion to permit the filing of a brief that violates the court rules that just dare the court to reject the brief and say "no." 

The passive-aggressive posture adopted by counsel that disrespects the court's case load.  A judicial officer has to manage his/er docket.  That is job number one.  Attorneys for a party must act ethically first, as the fiduciary to the client second, and to facilitate the court as a third priority.  I saw this in an order from the Eastern District of California last month, Salinas v. Colvin

The government attorney asked for a third extension of time to file a brief in opposition.  The court did not find good cause and took the matter under submission.  Judge Grossjean previously warned: "extensions based on demands of other cases are disfavored" and that "no further extensions will be permitted absent extraordinary circumstances." The court noted that the extension would put the matter 90 days behind schedule, did not articulate good cause, and got filed after the due date for the brief. 

Cuevas and Salinas may mark a turning point where the courts correct the relationship -- attorneys facilitate the courts' management of their docket; courts do not facilitate attorneys' management of time.  Some balance is in order but filing for a fat brief the day it is due or filing for a late brief after it was due are just disrespectful.  Rules matter, try to comply. 

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