Assistant’s Goof Results in Late Brief, Costs Lawyer $5,000

7th Circuit

Assistant’s Goof Results in Late Brief, Costs Lawyer $5,000

Posted Jun 12, 2008, 11:10 am CDT
By Debra Cassens Weiss

Updated: A federal appeals court has fined a lawyer $5,000 for filing a brief too late.

The Chicago-based 7th U.S. Circuit Court of Appeals had granted litigant Clarence Gross several extensions to file the brief, first due in January 2007, while the case was in mediation, the Wisconsin Law Journal reports. He was given a last and final deadline of April 21 this year, which his lawyer missed by four days.

The court, in a June 6 opinion (PDF) by Chief Judge Frank Easterbrook, imposed the fine, half of which would be paid to the defendants in the case and half to the court. The lawyer is not named in the opinion, but other court records identify her as Dana L. Kurtz of Lockport, Ill.

“We do not pretend that $5,000 is a figure reached by exact calculation,” Easterbrook wrote, “but it is enough to lead to more care in the future, without being too large in relation to the normal legal costs of handling an appeal.”

The court at first dismissed the case because of the blown deadline. Gross’ suit contests his firing as chairman of the Board of Police and Fire Commissioners in Cicero, a Chicago suburb.

Gross asked for reconsideration after his appeal was first tossed. His lawyer’s motion to reconsider says a paralegal was supposed to ship the brief by FedEx on April 21, but delegated the task to an assistant who did not do it. A footnote in the motion says it is not the first time the lawyer has had past issues with the assistant, who has since been disciplined.

The opinion says the motion "does not reveal why counsel herself did not ensure that an employee, known to be unreliable, had dispatched the brief."

In an interview, Kurtz says she has paid the fine and she takes responsibility for what happened. “Ultimately the responsibility lies on the lawyer. I acknowledge that," she told ABAJournal.com. "That’s why it’s important to have good employees that you can trust.”

Kurtz says both she and her paralegal were out of the office at the time of the filing deadline, and the assistant who did not FedEx the brief has been fired. "Mistakes happen," she said. "Sometimes you get employees who don’t work out.”

Kurtz has argued a case before Easterbrook, and she likes him and admires his intellect. “Easterbrook is a stickler for procedures," she says. "If you know the law and you’re prepared, he treats you with respect."

Lawyer George Spataro, whose Westchester, Ill., law firm represents Cicero in the case, says Easterbrook had already warned Kurtz the appeal would be dismissed if the deadline was missed, so he's surprised the judge is allowing the suit to continue. "I've never seen a ruling quite like this," Spataro told ABAJournal.com.

"We’re just stunned by the fact that Judge Easterbrook sets a deadline, makes it a do-or-die deadline, dismisses the case and then reinstates it by setting a contingency of payment. That’s kind of odd."

Updated at 11:15 a.m. on 06-13-2008 to add comments from Kurtz and at 8:55 a.m. on 6/16/2008 to add comments from Spataro.

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Posted by Phoenix - 2 months, 3 weeks, 2 days, 23 hours, 48 minutes ago

The paralegal or assistant should not have been mentioned in her excuse for missing the deadline for filing the brief. She is the lawyer and she is responsible for reviewing and supervising the work of her support staff.
Posted by Chiron613 - 2 months, 3 weeks, 2 days, 20 hours, 10 minutes ago

I agree - whatever else applies, the attorney is responsible for ensuring that documents are filed in a timely manner. Blaming an employee doesn’t excuse the attorney.

Unfortunately, when a lawyer screws up, the client may wind up suffering for it.
Posted by df - 2 months, 3 weeks, 2 days, 8 hours, 38 minutes ago

Who was the assistant, Bartleby? Although a lawyer is responsible for supervision there are circumstances in which no reasonable person could anticipate certain behaviour from an employee (e.g. “I just found out my employee is insane, this was the first time..."). However, given the history of delays, it probably wasn’t too credible that it wasn’t the lawyer’s fault. The story notes that “A footnote in the motion says it is not the first time the lawyer has had past issues with the assistant, who has since been disciplined.” I’ve never seen a footnote in an affidavit, which would seem to suggest that the allegation of past improper behaviour and discipline was not introduced as sworn evidence?

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