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Proposed Third Circuit Filing Deadline Draws Litigator Dissents

Jan. 25, 2023, 9:45 AM

Welcome back to Opening Argument, a reported column where I dig into interesting legal controversies and questions that have divided circuit courts. Today: a look at court filing deadlines and a proposed change.

If you want to get a bunch of lawyers to all agree on something, try changing a court’s filing deadline from midnight to 5 p.m.

That’s what the US Court of Appeals for the Third Circuit is proposing for electronic and in-person filings, and practicing attorneys overwhelmingly hate the idea.

“It’s unnecessary,” said Virginia Hinrichs McMichael, founder of Appellate Law Group LLC. “Having practiced for almost 40 years now, I really try to avoid filing things at the eleventh hour and on the last day.”

But the work day can get busy. There are client meetings, court hearings, and briefs due in other cases. Having the flexibility to work after business hours is just more convenient sometimes, McMichael said.

The proposal is the brainchild of Chief Judge Michael Chagares, who has led the Philadelphia-based court since 2021. Though the change would only impact the Third Circuit covering Pennsylvania, New Jersey, Delaware, and the Virgin Islands, he’s been pushing for the federal judiciary to look at this idea for some time.

The main goal is to give attorneys, paralegals, and law firm staff a better quality of life.

“It may be that the midnight deadline has negatively impacted the quality of life of many, taking these people away from their families and friends as well as from valuable non-legal pursuits,” Chagares said in a letter to a committee of the Judicial Conference, which is the rulemaking arm of the federal judiciary.

Chagares was chair of a separate Advisory Committee on the Appellate Rules when he was recommending a study be done on rolling back the deadlines.

Improving work-life balance is a laudable goal for any profession and flexibility to work remotely is something many workers are pushing for after a global pandemic showed just how much can be done out of the office. As well-intentioned as the proposed change may be, attorneys say the court is stepping in where it shouldn’t.

Howard Bashman, an appellate lawyer based in Pennsylvania, said there’s no need for the courts to micromanage how attorneys are balancing their work and personal lives. He called the motivation behind the proposed rule a bit paternalistic and outdated.

“The rule seems to think there’s these men who are forced to be away from their families. Like there’s a spouse at home cooking dinner for the family and kids, and wouldn’t it be nice if this male lawyer was able to get out of the office at a reasonable hour,” he said. “I just think the realistic life of attorneys these days doesn’t revolve around the kind of fifties ideal of what family life was like.”

If adopted, the Third Circuit would be the first federal appeals court to have an evening filing deadline. In two federal trial courts—the districts of Delaware and Massachusetts—filings are due by 5 p.m. In the US District Court for the Eastern District of Arkansas, they’re due by 6 p.m.

The Federal Judicial Center found most filings across the judiciary hit their respective court dockets between 8 a.m. and 5 p.m. About 10% of the docket entries in the courts of appeals and the district courts were made after 5 p.m., and about 20% after 6 p.m., according a report the FJC released last year designed to help the Judicial Conference decide whether to change the deadline for all federal courts. It’s a proposal the Administrative Office of the US Courts said the Advisory Committees on Appellate, Bankruptcy, Civil, and Criminal Rules are still considering.

The Third Circuit is now going it alone. The proposed change is only to its local rules and attorneys seem frustrated that its objective has nothing to do with the court itself.

“This proposal is not based upon any desire to enhance the operations of the court,” said Robert Byer, a partner at Duane Morris whose practice concentrates on appellate litigation. “The court’s not keeping people there till midnight waiting for filings.”

The deputy circuit executive wouldn’t answer questions about whether the change would impact court staff and Chagares wasn’t available for an interview. The 2019 letter speaks for itself, the court deputy said.

At that time, Chagares said an earlier filing deadline could help pro se litigants, those who represent themselves, and eliminate the ability of one party to “sandbag” another by depriving them of hours that could be used to form a response to litigation.

Byer said pro se litigants in the Third Circuit can already sign up for electronic filing and the court could give parties an extra business day to reply when a brief comes in after hours.

“There are other ways that local rules dealing with filings can promote lifestyle without creating the stress that this rule will create,” he said. “It seems to be the intent is to prevent lawyers from having to work late nights and it won’t do that at all. It will simply move the late night to the day or two preceding filing.”

Comments are due by Feb. 18, but it’s safe to say the court is likely to hear a resounding no from attorneys on this one.

Know of an issue worth writing about? Email me at lwheeler@bloombergindustry.com. To read more Opening Argument, sign up for our newsletter The Brief. You’ll get Bloomberg Law’s top stories delivered free to your Inbox every weekday afternoon and catch this column when it runs.

To contact the reporter on this story: Lydia Wheeler in Washington at lwheeler@bloomberglaw.com

To contact the editors responsible for this story: Seth Stern at sstern@bloomberglaw.com; John Crawley at jcrawley@bloomberglaw.com