No matter how long you practice law in a California or federal court, you can still make mistakes. Many of them are minor and do not affect the outcome of the case or cost your client money.
On the other hand, some mistakes could result in negative consequences that end up jeopardizing your license. One of those is missing deadlines. Fortunately, if it happens in a federal case, you may be able to fix it if you act fast enough.
You could try this
The Federal Rules of Civil Procedure provide you with a potential fail safe. Unfortunately, these “excusable neglect” provisions don’t offer a clear path to resolve your issue. Instead, the judge will review the facts in your situation and make a ruling. One of the primary considerations concerns whether allowing you an extension of the deadline will somehow unduly prejudice the other side.
The more time that passes, the greater the chances are that could happen. Therefore, as soon as you realize a deadline passed without you addressing it, file a Fed. R. Civ. P. 6(b)(1)(B) or Fed. R. Civ. P. 60(b)(1) motion alleging inadvertence, surprise mistake or excusable neglect. The prevailing standard when it comes to excusable neglect includes the following:
- Whether you acted in good faith could affect the outcome.
- How long the delay was and its possible effect on the proceedings makes a difference.
- Whether you had reasonable control over the delay does not often play a major role, but it is an important question.
- Whether the delay unduly prejudices the other side often serves as a deciding factor.
Of course, filing such a motion alerts your client and the other side that you missed the deadline. As is the case with any other motion, the other side receives the opportunity to respond. That response will most likely allege undue prejudice or that the length of the delay adversely affects the proceedings.
You may try approaching the other side to ask for consent to your filing late. Even if you receive consent, that does not mean you don’t need to file the appropriate motion with the court. It only lets the court know that the other side doesn’t object, which intimates no harm done. The other side may give consent to gain favor with the court because it shows reasonableness and professionalism, so you need to understand that could happen. That doesn’t mean you shouldn’t try, however.
When you file your motion, have the late filing ready to go since this shows the court that you are prepared to rectify the situation immediately.
What happens if it doesn’t work?
If your efforts fail, then you could face another problem. Many complaints filed against attorneys have to do with missing deadlines. As soon as you discover you are under investigation, you may want to contact an attorney who routinely deals with these issues instead of attempting to represent yourself. The agency runs by its own set of rules and procedures, and any misstep could result in you losing your license, even temporarily.