August 16, 2015
The practice of law, especially appellate litigation practice, mandates boatloads of patience, as is illustrated by this remarkable article in the Wall Street Journal: Appeals Court apologizes for misplacing case for five years.
The appellate grind
The common appellate practice is: You work hard to brief and argue a case before a Court, and then you wait. Some waits are mercifully short. For example the average turn-around time in the Hamilton County Court of Appeals after oral argument is among the shortest in the nation at about 40 days (that may be as much as 12 months from filing of the appeal). We won our 9-0 U.S. Supreme Court decision in the Susan B. Anthony List case in 54 days. It is sometimes really is remarkable. But other courts — and decisions in specific cases — can take what seems to the litigants to be interminable amounts of time. We had two decisions issued earlier this year that each took the Ohio Supreme Court just under a year after full briefing to decide.
Waiting for a pot to boil
But, of course, it’s like watching for a pot of water to boil. The wait times seem lengthy to the clients and their attorneys who are anxious for a decision, but it’s just another day at the office for the Courts — the Judges and their clerks.
The gentle nudge
And the way it works for litigators waiting for a decision is that you can call the Clerk and gently inquire about the status of a decision, and the answer is almost always the same: “we are working on it;” “it will come out soon.” And sometimes you wonder . . . are they really working on it? Is it really coming out soon? Did that clerk even really check to see that it’s not lost somewhere in the office under a stack of papers? Hmmm.
My first appellate case
My very first appellate argument involved what I thought was a pretty simple, straightforward matter. The facts were agreed and the record was very thin. The single legal issue was not at all complex. It just needed a decision from a panel of three wise judges. After a year of waiting for a decision, I called the clerk for the Court of Appeals who thought a year was especially long to write an opinion too. So, he checked. He called me back and said “when I realized that that case was assigned to Judge so-and-so, I knew what the problem was. I have handled it; it will be out soon.”
And sure enough, after about two or three days we finally had a decision.
It turns out that Judge so-and-so was nearing the end of his appellate career, and his cases had started to languish. But an alert Clerk got it “unstuck” and magically we had a decision within a few days.
Thus, all these memories came flooding back when I read the Wall Street Journal story.
The 5-year wait in the Chicago case
First, a nod to the Court for admitting their mistake, and apologizing for it. It showed some strength of character for the Judges — who could just as easily have brushed the error under the rug — to address the matter head-on.
But, you will note in the story that the clerks did get the phone calls from counsel, and the clerks gave them the standard brush-off responses. No one from the Clerk’s office apparently followed up and checked on the status of the case. So, we have answered that question: No, sometimes the Clerk has no idea of the status of your case, and did not check, before telling you “we are working on it” and “it’s coming out soon.” Hopefully the Court in that case does follow through and fix their procedures to assure this does not happen again.
The bazooka: A writ of procedendo
There is another option for litigants waiting too long for decisions — they can file for a writ of procedendo to a court of superior jurisdiction. The writ of procedendo is a prerogative writ from a higher court ordering the lower court to make a decision. Essentially, you can “sue” the trial court or appellate judges to force them to make a decision. For a decision sitting at the Common Pleas Court, one can file at the Court of Appeals. For a Court of Appeals decision, you can file at the Supreme Court. I don’t think there is anything you can do to speed decisions from the Ohio or U.S. Supreme Court.
We actually filed for one!
So, how do writs of procedendo typically work out?
Our team had a case before the Franklin County Common Pleas Court that was not the easiest of decisions — the issues of law were evolving. But the record was short and the issues fairly narrow — the Judge just needed to decide. Further, we knew the issue would ultimately be decided in the courts of appeals, perhaps the United States Supreme Court. The case had been pending 24 months, and we had fully briefed cross motions for summary judgment some 14 months earlier. We called and gently inquired about timing to the Judge’s clerk — to no avail. So, I called my co-counsel and said: “Do you really want to go your whole career and never file for a writ of procedendo? Let’s go for it!”
Well, magically, it worked! We got the attention of the Common Pleas Court Judge. Within about 10 days of the filing of the appellate pleading, the Judge in the Common Pleas Court issued a decision alright — and he ruled against our client. The matter presently is pending on appeal to the 10th District Court of Appeals.
The common wisdom is that this typically is how undertaking writs of procedendo work — you get a decision alright. It’s like my mother used to tell me: If you want a decision right now, the answer is “no.”
So, generally you just wait, . . . and wait and wait.
Sometimes it is a short wait; other times you wonder if you will get a decision while you are still here on this earth.
But when the pot finally boils, you mostly forget all about the wait and either lick your wounds of a loss, or celebrate your win. The wait fades as a distant memory.