Trials & Litigation

Several minutes into 9th Circuit online hearing, lawyer realizes he's arguing the wrong case

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Social Security claimants lawyer Chad Hatfield didn’t realize his goof until several minutes into an argument last Monday before the 9th U.S. Circuit Court of Appeals at San Francisco.

Hatfield, a lawyer from Washington, was talking about fibromyalgia symptoms when judges said they were looking at a case concerning diabetes, manic-depressive disorder and social phobia.

“Check to make sure you’ve got the right case in front of you,” said one of the judges.

At that time—about five minutes and 10 seconds into the video—Hatfield realized that he was arguing the wrong case.

Original Jurisdiction blogger and Above the Law founder David Lat has the story, while litigator Ted Frank posted the video on Twitter.

Hatfield explained that he was scheduled to argue two cases this month. His “scheduler” had put down the fibromyalgia case to be argued that day and the other case for next week, he said.

“I have them flip-flopped,” he said.

“Many judges would have berated Hatfield,” according to Original Jurisdiction, “benchslapping him to high heaven, but this panel handled the situation graciously.”

Hatfield was given a 10-minute break to prepare for the other case. Hatfield came back and delivered “a solid argument,” and he might prevail, the blog said.

Hatfield did not immediately reply to the ABA Journal’s request for comment.

Original Jurisdiction also chronicled a mistake in a different case involving different lawyers, originally pointed out on How Appealing.

Two Missouri lawyers from Montgomery & Newcomb filed notices that they are appealing two separate but identical cases. The notices said the appeals are from the “United States District Court for the Southern District of Missouri” to the “United States Court of Appeals for the Southern District of Missouri.”

Original Jurisdiction pointed out two errors: First, there is no “Southern District of Missouri”—there are only federal courts for the Eastern and Western districts of Missouri. Second, the appeals court name should be the 8th U.S. Circuit Court of Appeals, which is based in St. Louis.

The 8th Circuit tossed the appeals based on lack of jurisdiction.

“These notices of appeal are entirely deficient,” the 8th Circuit wrote. “They appeal an order entered on a day when no order issued, from a district court that does not exist, to a court of appeals that does not exist.”

Montgomery & Newcomb represents clients seeking to exit their timeshare agreements. The cases before the 8th Circuit concerned a timeshare company’s allegations that the two lawyers were tortiously interfering with its business and the lawyers’ allegations that the company’s tort suit amounted to abuse of process.

One of the law firm’s name partners, M. Scott Montgomery, told the ABA Journal in an email Tuesday that, “This is a case of national significance that is closely followed within the timeshare pushing industry. … Regarding the notice of appeal in the case before the 8th Circuit, I regret the author’s proofreading errors. He should have said ‘8th Circuit,’ but he said ‘Southern District.’ He stated ‘Southern’ when he should have stated ‘Western.’ … The author of the notice of appeal is no longer with the firm. The attorney who authored the notice of appeal clearly used a template from a prior appeal and made a mistake and failed to correct the references to the incorrect court.”

Montgomery said none of his clients were harmed by the ruling, and the firm is considering filing a petition for rehearing en banc.

Original Jurisdiction sees a lesson in both flubs: “Check, check and double-check.”

Updated June 15 at 1:56 p.m to include comments from M. Scott Montgomery.

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