It is axiomatic that in litigation procedural deadlines are generally enforced and should not be ignored. The skilled litigator should be familiar with the rules of procedure in the jurisdiction in which the case is pending, any local and chamber rules, and any local practices.
The failure to demonstrate competency in this regard is not merely folly but could amount to attorney malpractice.
Counsel should proceed with caution as to deadlines to, among other things, file pleadings, assert defenses, comply with discovery, make a jury demand, file an appeal, or seek reconsideration.
Some deadlines are jurisdictional such that a court cannot extend them. Even where a court has discretion, absent good cause shown a court may not forgive missing a deadline where it may prejudice an adverse party or where it would delay the proceedings.
Important deadlines were missed, by choice or omission, in separate lawsuits against former president Donald Trump and Rudy Guliani.
The N.Y. Attorney General Lawsuit against the Trump Empire
Trump and his co-defendants failed to demand a trial by jury. In certifying the case ready for trial, the New York Attorney General filed a form in June 2023 electing for a trial without a jury. Under N.Y. CPLR 4102, most parties can demand a trial by jury within 15 days of such a notification. Defendants did not file a form demanding a jury trial. This was a conscious decision by Trump’s legal team, which based their analysis that a jury trial was not available on one precedent where the Attorney General sued under the same law. However, that case may have been distinguishable in that only an equitable relief may have been sought in the other case. In contrast, both money damages and equitable relief are being sought by the Attorney General in the current trial. (See “When are you entitled to a jury trial?”) The better practice would have been to file the jury demand and litigate over whether the jury demand should be stricken.
In early December 2023, Trump’s defense team missed a deadline to have an appeal to a higher court from the reinstated gag orders heard that same week. Judge Engoron had imposed two gag orders preventing Trump from publicly talking about his court staff. An appellate court temporarily stayed the gag orders. Two weeks later the gag orders would be reinstated. In this instance, the failure only resulted in a delay rather than a waiver of the right to appeal.
The Second E. Jean Carroll Lawsuit
On December 13, 2023, the U.S. Court of Appeals for the Second Circuit upheld a lower court’s decision rejecting Trump’s claim of presidential immunity on the grounds that he had waited too long to raise the defense.
The lawsuit, in which Carroll seeks $10 million as damages for defamatory comments Trump made in June 2019, was commenced in November 2019. Trump waited until December 2022, i.e. more than three years, to raise the defense.
Ordinarily affirmative defenses are raised in the answer to a complaint. With few exceptions, affirmative defenses are waived by a party that fails to timely assert them, particularly when the information necessary to raise the defense is available to the party that would assert it.
The lower court had rejected the defense on the grounds that Trump had waited too long to invoke it and due to the public’s interest in accountability.
The Election Workers’ Defamation Lawsuit Against Giuliani
In August 2023, U.S. District Judge Beryl Howell entered a default judgment on liability against Rudy Giuliani as a sanction for his failure to comply with her discovery orders. Freeman v. Giuliani, — F.Supp.3d —-, 2023 WL 5600316 (D.D.C. Aug. 30, 2023).
The entry of a default judgment is a particularly draconian punishment for contempt and reserved for the most egregious discovery failures and likely after a party has been directed to comply, is warned that they may be held in contempt, and given an opportunity to purge their contempt.
Earlier in the case Giuliani stated, he “does not contest the factual allegations” made by Ruby Freeman and Shaye Moss regarding his statements. Instead, he claimed that his statements were “constitutionally protected.”
Following a determination of liability, the Court scheduled a trial on damages. Notwithstanding that Giuliani had been on notice for nearly two-years that the matter would be tried before a jury, Giuliani waited until after jury instructions had been agreed upon to the eve of trial to request that the matter proceed without a jury. The court rejected his request.
The jury ultimately awarded Freeman and Moss $148 million dollars.
David’s Dicta: A litigator has a fundamental obligation to research, calendar and communicate to clients important deadlines in a case. Such deadlines should be calendared with multiple reminders as law office failure will not always constitute good cause to excuse a failure to comply with a deadline, procedure or rule or extend a deadline after the fact.