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Lawyer’s Computer Virus Doesn’t Excuse Missed Dismissal Motion, 4th Circuit Says

Posted Apr 5, 2010 6:00 AM CDT
By Debra Cassens Weiss

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A federal appeals court has upheld dismissal of a wrongful termination case granted after the plaintiff’s lawyer experienced computer problems and never got e-mail notice of a motion for summary judgment.

Lawyer Charles Everage of Charlotte, N.C., said his computer was afflicted by a malware virus and other problems. As a result he never learned of the motion and he didn't respond to it. A trial judge dismissed the suit Everage had filed on behalf of a fired worker, and denied the lawyer's motions to reinstate it.

The Richmond, Va.-based 4th U.S. Circuit Court of Appeals affirmed. Everage was aware of his computer troubles, the court said, and should have checked the court docket or informed the judge and opposing counsel of the situation.

Everage was “willfully blind,” the court said in a 2-1 opinion (PDF), and he can’t obtain relief from the consequences of his choices. The majority opinion by Judge Allyson Duncan noted Everage had testified that he chose not to call opposing lawyers because he didn’t want to alert them to the court’s deadline.

Everage “made the affirmative decision to remain in the dark,” Duncan wrote. A concurring opinion by Judge Andre Davis elaborated, referring to “counsel’s unwise and misplaced strategic choice to litigate, ostrich-like, with his head in the sand.”

Writing in dissent, Judge Robert King said the majority had created a new duty to monitor court filings and had itself “opted to engage in willful blindness” toward the adverse implications of its holding.

The decision will increase the risk that defendants will escape responsibility and "will increase the exposure of lawyers to malpractice liability,” King wrote.

Everage did not respond to a request for comment on the decision.

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