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Hey #AppellateTwitter, is it okay to blow appellate deadlines in your state? Not file your brief when it’s due, wait for the court's letter threatening default, and then file on the last day before default? Because it (often) is in California, and I still find that weird. (1/x)
I’m not talking “okay” as in you probably won’t get sanctioned, but rather that it’s common and accepted practice among experienced civil appellate litigators.
I’ve worked on multi-billion-dollar appeals where both sides missed the court-set deadlines and filed their briefs on the very last day before default.
We often PLAN to miss the court-set deadlines.
And it’s not the sort of thing we’re sheepish about. In one case our (out-of-state) opposing counsel sent a letter to the court complaining our brief was filed late, and our reaction was “lol the judges will laugh at them for not understanding California practice.”
This odd situation comes about because of an innocuous-looking rule providing the clerk must notify parties when they are at risk of default. https://www.courts.ca.gov/cms/rules/index.cfm?title=eight&linkid=rule8_220
When calendaring cases, we refer to the regular deadline set by the rules (e.g., 30 days for a respondent's brief) or by the court (e.g., if there’s been an extension) as the “soft deadline.”
If you don’t file your brief by the soft deadline, the clerk’s office will send you a letter telling you that if you don’t file the missing brief within 15 days the court can dismiss the appeal (if the appellant defaults) or decide it without any input from respondent.
The end of that 15 day period—the day before default—we call the “hard deadline.”
Some clerks send out these default letters right away, others wait weeks (or occasionally months) before sending. So you might have anywhere from 16 days to a few months after the soft deadline.
Oddly, the rule regarding notice of default only applies to the appellant's opening brief and the respondent's brief, not the reply brief. So you don’t get the default/grace period for replies.
AND DO NOT DO THIS WITH A NOTICE OF APPEAL! OMG do NOT mess around with missing that deadline. Ever.
But you do get a default period for some other appellate filings, like procuring the record. (But obv check to be sure before you miss any deadlines).
The odd thing here is how much this practice depends on a collective agreement by litigators and judges that it’s fine to do. I could easily see a situation where, with the same rule in place, it was frowned on to take the default period.
At least one court has said there's no need to seek a formal extension if you can file within the default period, and the commentary on the rule agrees, so just using the default period has become accepted.
But if even a single judge started telling litigants that they considered it bad form for parties to take the default period, my guess is the practice would swiftly change.
(Please don’t do that, in case you’re a California judge with a burner Twitter account. We all like the extra time).
Interestingly, I’ve been told the practice is different for criminal appeals.
Even though a similar rule applies (and criminal appeals actually get 30 days after the clerk sends a default notice) I know some criminal appellate lawyers consider it bad form to use the default period.
Not sure how that civil/criminal split developed (or even if it exists—I mostly do civil appeals, and would love to hear from California criminal lawyers about whether they use the default period).
But anyway, California appellate practice is quirky in many respects (writs! so many writs!), but this is generally the one I find elicits the most shock and disbelief when we work with out-of-state lawyers.
But perhaps that’s just because we’re generally working with attorneys used to federal court practice? Do other states have similar rules?
