Silly Lawyer Tricks XXI. If just showing up is 90 percent of success, the opposite is true as well

• Date: 01 September 2020
• Author: Tom Donlon

Appellate Practice

Summer 2020, Vol. 39 No. 4

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September 03, 2020

Silly Lawyer Tricks XXI

If just showing up is 90 percent of success, the opposite is

true as well.

By Tom Donlon

This is the latest column in our continuing series on real mistakes and misdeeds by real lawyers

in cases on appeal.

Cotto v. City of New York, Case No. 17-2845, slip op. (2d Cir.

May 19, 2020)

If just showing up is 90 percent of success, the opposite is true as well—as one attorney learned

to his sorrow.

This order arose out of the plaintiff’s appeal of the dismissal of her section1983 action against

the New York City police. The appellant’s counsel requested oral argument, which the Second

Circuit placed on the calendar. On Friday, two days before the scheduled argument, the

appellant’s counsel moved to adjourn. The court denied the motion and ordered the case

submitted on the briefs—unless the appellant’s counsel “decides to appear for argument.” If so,

counsel was ordered to “immediately notify the clerk of the court and counsel for appellee,” and

then oral argument would proceed. The appellant’s counsel called both the clerk and opposing

counsel, saying that he would appear for argument on Monday.

The attorney for the appellee, City of New York, appeared on Monday morning and waited

several hours, but the appellant’s counsel never showed. Four days later, the appellant’s counsel

sent a letter to the court saying he understood that the case was ordered submitted on the briefs

without argument, “notwithstanding that he had called both the Clerk of the Court and opposing

counsel . . . to confirm that he would appear for oral argument the following Monday.”

Ordered to show cause why he should not be sanctioned to reimburse opposing counsel for her

time incurred in preparation for argument and several hours waiting for the case to be called,

counsel compounded his problems. First, he misfiled his response as a motion. Then, as an

excuse, he claimed he “mistakenly remembered the sequence of events incorrectly.” He

explained that after talking to a colleague about the case over the weekend, he decided that his

client would be better served by the court deciding the case on the briefs (she might have been)

and thought he “could still rest on the appeal previously submitted.”