ILNews

Court: Attorney mistake 'inexcusable neglect'

Jennifer Nelson
January 1, 2008
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The 7th Circuit Court of Appeals dismissed a woman's appeal following the denial of Social Security benefits because the woman's attorney failed to file the appeal in time under the Federal Rules of Civil Procedure.

In Janet L. McCarty v. Michael J. Astrue, Commissioner of Social Security, No. 07-2104, Janet McCarty's application for disability insurance benefits and Supplemental Security Income was denied by the Social Security Administration and an administrative law judge.

She appealed to the U.S. District Court in the Southern District of Indiana, Indianapolis Division, which issued its final order March 9, 2007, affirming the ALJ's decision. Sixty-three days later, McCarty's attorney, whose name does not appear in the Circuit Court's opinion, filed a notice of appeal, and later filed a motion requesting a three-day extension to file the notice of appeal and supportive memorandum.

The memorandum stated McCarty's attorney misunderstood a paragraph in the Administrative Policies and Procedures Manual for the Southern District of Indiana, Fed. R. Civ. P. 6(e). The U.S. District Court granted the extension to which Astrue filed a motion for reconsideration. The U.S. District Court denied the motion for reconsideration. McCarty filed this appeal arguing evidence fails to support the ALJ's conclusion that she didn't qualify for disability benefits.

The 7th Circuit Court of Appeals judges didn't even discuss the case in regards to whether the ALJ erred because McCarty's attorney failed to file a timely notice of appeal, which is a prerequisite to appellate review, wrote Judge William Bauer.

A notice of appeal must be filed within 60 days of the entry of a judgment or order being appealed as per Fed. R. App. P. 4(a)(1)(B). A District Court can extend the time if a party can show excusable neglect for the tardiness.

"The attorney's understanding that Federal Rule of Civil Procedure 6(e) provided him with three extra days to file a notice of appeal is inexcusable. An unaccountable lapse in basic legal knowledge is not excusable neglect," the judge wrote.

The distinction between "entry of judgment" and "service of a notice" is unambiguous to any trained attorney. In addition the 7th Circuit has explicitly stated that rule only applies to documents "served" on opposing counsel, not to documents such as notices of appeals, Judge Bauer wrote.

McCarty's attorney is an experienced litigator of more than 30 years. This mistake amounts to inexcusable neglect, the judge wrote, so the U.S. District Court shouldn't have granted the extension of time to file a notice of appeal.
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  1. Why in the world would someone need a person to correct a transcript when a realtime court reporter could provide them with a transcript (rough draft) immediately?

  2. If the end result is to simply record the spoke word, then perhaps some day digital recording may eventually be the status quo. However, it is a shallow view to believe the professional court reporter's function is to simply report the spoken word and nothing else. There are many aspects to being a professional court reporter, and many aspects involved in producing a professional and accurate transcript. A properly trained professional steno court reporter has achieved a skill set in a field where the average dropout rate in court reporting schools across the nation is 80% due to the difficulty of mastering the necessary skills. To name just a few "extras" that a court reporter with proper training brings into a courtroom or a deposition suite; an understanding of legal procedure, technology specific to the legal profession, and an understanding of what is being said by the attorneys and litigants (which makes a huge difference in the quality of the transcript). As to contracting, or anti-contracting the argument is simple. The court reporter as governed by our ethical standards is to be the independent, unbiased individual in a deposition or courtroom setting. When one has entered into a contract with any party, insurance carrier, etc., then that reporter is no longer unbiased. I have been a court reporter for over 30 years and I echo Mr. Richardson's remarks that I too am here to serve.

  3. A competitive bid process is ethical and appropriate especially when dealing with government agencies and large corporations, but an ethical line is crossed when court reporters in Pittsburgh start charging exorbitant fees on opposing counsel. This fee shifting isn't just financially biased, it undermines the entire justice system, giving advantages to those that can afford litigation the most. It makes no sense.

  4. "a ttention to detail is an asset for all lawyers." Well played, Indiana Lawyer. Well played.

  5. I have a appeals hearing for the renewal of my LPN licenses and I need an attorney, the ones I have spoke to so far want the money up front and I cant afford that. I was wondering if you could help me find one that takes payments or even a pro bono one. I live in Indiana just north of Indianapolis.

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