This is the latest column in our continuing series on real mistakes and misdeeds by real lawyers in cases on appeal.
Cotto v. City of New York, Case No. 17‑2845, slip op. (2d Cir. May 19, 2020)
If just showing up is 90 percent of success, the opposite is true as well—as one attorney learned to his sorrow.
This order arose out of the plaintiff’s appeal of the dismissal of her section1983 action against the New York City police. The appellant’s counsel requested oral argument, which the Second Circuit placed on the calendar. On Friday, two days before the scheduled argument, the appellant’s counsel moved to adjourn. The court denied the motion and ordered the case submitted on the briefs—unless the appellant’s counsel “decides to appear for argument.” If so, counsel was ordered to “immediately notify the clerk of the court and counsel for appellee,” and then oral argument would proceed. The appellant’s counsel called both the clerk and opposing counsel, saying that he would appear for argument on Monday.
The attorney for the appellee, City of New York, appeared on Monday morning and waited several hours, but the appellant’s counsel never showed. Four days later, the appellant’s counsel sent a letter to the court saying he understood that the case was ordered submitted on the briefs without argument, “notwithstanding that he had called both the Clerk of the Court and opposing counsel . . . to confirm that he would appear for oral argument the following Monday.”