I’m pretty sure that written discovery is the worst part of being a trial lawyer. I know for a fact that jurisdictional deadlines are the worst part of being an appellate lawyer.

But just in case you needed further convincing, the Fourth Circuit–as reasonable and user-friendly an appellate court as you will find–just dropped an unpublished opinion, Symbionics v. Ortlieb, dismissing an appeal because counsel filed a notice of appeal one day late. (HT: Peter Vieth at VLW.)

In Symbionics, the district court entered final judgment on December 4, 2009.

Symbionics’ lawyer tried to manually calculate the notice of appeal deadline using his “Windows” calendar (I assume that means Outlook?), but when he toggled to January, Windows took him to January 2009–not January 2010. As a result, Symbionics’ calculations were off, and it filed its notice a day late.

No worries, said the district court. It found excusable neglect under F.R.A.P. 4(a)(5)(A), and extended the notice of appeal deadline.

On appeal, the Fourth Circuit reversed. It found that the district court had abused its discretion, and that there was nothing excusable about Symbionics’ neglect–it was a run-of-the-mill oversight, not the sort of earth-shattering event that warrants extension of a mandatory and jurisdictional deadline. As such, the Fourth Circuit dismissed the appeal. In a footnote, it acknowledged the “potential hardship” of being denied an appeal, but assured the parties that Symbionics would have lost on the merits.

This case is a perfect example of why I haven’t had a decent night’s sleep since 2006.

What can we learn from Symbionics?

  1. Don’t procrastinate. It takes about as long to draft and file a notice of appeal as it does to calendar the deadline for filing a notice of appeal. Just get on file. Only bad things can happen if you wait until the last minute. Computers crash, the power goes out, Manchester United wins the Premier League.
  2. Use technology. Symbionics got tripped up by manually counting days on an electronic calendar. Outlook’s GoToDate feature will do that for you, automatically and correctly. Use the tools at your disposal.
  3. But don’t trust technology. Every once in a while, the bastards in Redmond will throw you a curveball which is why all right-thinking people use Macs. In Symbionics, the Fourth Circuit focused on the appellant’s total reliance on a computer program that it did not understand as a key element of its negligence. That’s bad. (Another diabolical trap that Gates has laid for the appellate bar: the way Word’s word count treats footnotes. See generally DeSilva v. DiLeonardi, 185 F.3d 815 (7th Cir. 1999).) As the great man said, “Trust, but verify.”

Ultimately, “mandatory and jurisdictional” means “mandatory and jurisdictional.” The Fourth Circuit is as user-friendly a court as I’ve ever seen. Even so, a lawyer misses its deadlines at his peril.