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Busy Attorneys Must Prioritize

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December 09, 2016, 08:51
Martin Peterson
Busy Attorneys Must Prioritize
Try to bend a rule too far and you will break it. Everyone knows that the 30-day deadline for timely filing an appellant's brief stated in TRAP 38.6(a) has become meaningless because almost any explanation of the need for more time will be accepted as "reasonable" under TRAP 10.5(b)(1)(c), at least in criminal cases. And the remedy under TRAP 38.8(b)(2), (3) is cumbersome and only causes further delay (since the clerk's notice may not be promptly generated and a satisfactory response to it generally is not provided within 10 days). The neglect of appellate counsel rarely is tied to a lack of desire by the appellant to continue to prosecute the appeal.

But, the excuse that the appellant's attorney is busy on other matters begins to pale with each request for more time. The Eastland Court expressed its exasperation in an interesting way yesterday. Having denied the attorney's request to postpone his "deadline" from November 22 to December 22 eight days earlier, without prompting the attorney's completion of a brief, the court ordered the brief to be filed within 32 hours. Now that is a "git r done" order! And probably a record for the shortest extension allowed. The order did not threaten initiation of a contempt proceeding, but that is obviously implied. I am not sure I would even stop to eat, if pressed that hard, that suddenly. To be noted is the fact that the deadline is 5 p.m. on a Friday. Maybe that has something to do with the fact that the attorney had stated in his motion that much of his work on the brief had occurred on weekends. Work Order
December 09, 2016, 10:44
Andrea W
Wow! Interesting to see the court being that particular about it.
December 18, 2016, 15:01
Martin Peterson
The attorney provided a more explicit and detailed explanation of why it is taking so long. Will be interesting to see how the court responds. Maybe this should be interpreted as: "with each subsequent request for more time, be more specific and complete in stating your need." Certainly proves that unrealistically shortening the deadline can be meaningless (even though scary). Letter
December 19, 2016, 07:45
Larry L
While the letter is certainly more detailed, it also reveals that counsel has spent 40 hours on the case during the initial 30 day time period for filing the brief AND approximately 120 additional days from prior extensions, for a total number of days of approximately 150. So - a total of approximately 16 minutes per day. Counsel states that approximately 10 additional hours are needed to complete review of the transcript, and then 10-20 hours for the brief. Splitting the difference in the brief time (= 15 hours), it looks like counsel will need about 25 hours of work time to submit the brief. At the historical rate of 16 minutes per day, that is more than 93 additional days. No doubt the court will NOT grant that much additional time. There is at least some irony in counsel making clear how important this case is, while having spent a mere 40 hours on the case over a period of 5 months.
December 19, 2016, 08:56
Martin Peterson
What was missing from the latest explanation was any description of any effort to comply with the "work order" during the 32-hour allotted time. The attorney got off on the wrong foot by not filing his initial request for more time on time. That resulted in a harsh ten-day deadline.
See attached.

The wording of that order gives me the feeling the attorney must have some delay history with the court. Another interesting issue is why an attorney in Abilene gets an appointment in Midland County. A final point is the allocation of time between 1) reviewing the record and 2)research and writing. That seems out of kilter to me. I would expect the brief to be filed very soon or some real fireworks.

December 22, 2016, 08:53
Eastland is my district, I've an increasing number of "smackdown" letters and orders from the Eastland COA for late briefs or one too many extension requests(one accidentally sent due to clerical error, followed by a sincere apology). The gist in most seems to be that the Court is tired of being told they're second place to trial court settings. I'm afraid that telling the Court that you're working on your brief intermittently when your schedule permits is going to make steam shoot out of their ears.
March 16, 2017, 20:05
Martin Peterson
The steam from the ears turned to a cool mist. The brief, not particularly complex (raised only sufficiency of the evidence), finally got filed on February 22. The final motion for extension was granted, without comment, today. I am not sure how often an attorney would be so lucky. Probably better/safer to keep one's nose a little closer to the grindstone. The court seems to have followed sound precedent: Proverbs 16:32 and 19:11.
April 04, 2017, 11:20
Looks like the 7th COA's patience is at its end with one out-of-district attorney. The court is looking to initiate contempt proceedings:
In the Matter of Rosalind A. Kelly, Attorney
April 07, 2017, 08:43
Martin Peterson
The time-limit rules are designed to secure an orderly and more prompt final disposition. The process, however, breaks down at various steps for various reasons. It is nevertheless ironical whenever courts give the appearance of demanding more than they expect of themselves.

While there are many examples of lassitude by the courts, one recent example by the Eleventh Court is found in Munoz. There, the parties' briefing was completed on October 19, 2014. Submission did not occur until October 1, 2015. A unanimous, memorandum opinion was not completed until April 6, 2017. To carry my theme forward, courts must strive to do better too. It is only right that you practice what you preach. That seems to be why the rules of appellate procedure include rule 40.2, even though it was likely a statement of aspiration rather than a true commandment.
February 10, 2019, 09:19
Martin Peterson
The time limits have finally caught up with a State's attorney as well. Not sure every court will be this demanding, but it seems there may be a new "outer limit" based on the multiplication tables.

"Move along counsel"
March 02, 2019, 09:36
Martin Peterson
Re: my post of April 7, 2017.

I feel certain that what I said had no influence in what happened, but what has to be a new record for time elapsed between date of submission and disposition has been set in Waco (where there was a lot of delay in dispositions during the time that Chief Justice Gray and Justice Vance were the only members of the court).

In Rodriguez v. State, No. 10-18-00162-CR, there was the almost typical delay by both parties in filing their briefs (the appellant took 136 days rather than 30, and the State took an additional 63 days thereafter, technically postponing the ultimate decision by 139 days or 332%).

But, the court did its best to offset the lackadaisical attitude of the parties. The case was set for submission just 55 days later and the result determined by an opinion delivered on the day of submission. Now, I guess that proves the briefs are read well before submission and perhaps a decision reached, but it begs a question about circulation of opinions among the other panel members. Anyway, "problem solved," at least in that case.
March 18, 2019, 14:52
Andrea W
I've noticed that my Waco cases have a very short gap between submission date and opinion. Some cases have spent a LONG time waiting for a submission date, but usually it gets resolved pretty quickly after that!
March 29, 2019, 11:46
Martin Peterson
In the clerk's letter acknowledging filing of an Appellant's Brief and notifying the State's attorney of the due date for the Appellee's brief, the 11th Court now includes this statement:

"The Court notes that motions for extension of time to file brief alleging only that counsel is busy will no longer be accepted as a reason for an extension. Pursuant to TEX.R.APP.P. 38.6 and 10.5b, any motions for extension will need to be in detail, and include an explanation why your other work takes precedence over this case. A motion requesting an extension of more than 60 days to file a brief and successive motions for extensions of time to file a brief are disfavored and will rarely be granted."