Appellate Practice

'I forgot' isn't acceptable excuse for missing oral arguments, 2nd Circuit tells lawyer

  • Print


Image from

A New York lawyer who failed to show up for oral arguments will have to pay his opponent’s attorney fees for the time that he wasted at the courthouse.

The 2nd U.S. Circuit Court of Appeals at New York sanctioned lawyer Conway Martindale II in a May 19 opinion, Law360 reports. Martindale had maintained that he didn’t show up because of a mistaken belief based on a mistaken memory about the sequence of events.

Martindale represented a woman who says she was beaten by New York police during a drug arrest. The substance did not turn out to be illegal. A judge tossed the case.

At first, Martindale sought oral arguments “only if at least one other party does,” according to the 2nd Circuit opinion. Then he sought oral arguments no matter what the opposing party wanted.

The 2nd Circuit set oral argument for March 2. On Feb. 28, Martindale filed a motion to adjourn oral argument that said the attorney who would argue the case was unavailable that day, according to the 2nd Circuit’s March 10 order to show cause.

The 2nd Circuit denied the motion same day. The court said the appeal would be taken on submission of briefs, unless Martindale gave notice that he would argue the case.

Later that day, Martindale informed the court clerk and opposing counsel that he would appear for arguments, according to the 2nd Circuit.

Martindale explained his failure to appear in a letter to the court. He said he understood the court’s Feb. 28 order to mean that the case would be decided based on briefs, notwithstanding his call to the clerk and opposing counsel.

Martindale said he “mistakenly remembered the sequence of events incorrectly” and thought that he “could still rest on the appeal previously submitted.”

The 2nd Circuit wasn’t satisfied with the explanation.

“While we accept Martindale’s representation that his failure to appear was not intentional or malicious, attorneys are required to keep track of their professional obligations,” the 2nd Circuit said. “Particularly where, as here, oral argument had been restored to the calendar at Martindale’s specific request, just one business day before the scheduled appearance, ‘I forgot’ is not an acceptable excuse.”

Martindale told the ABA Journal on Thursday that he had no comment on the sanction.

Updated on Thursday to report that Martindale had no comment.

Give us feedback, share a story tip or update, or report an error.