Appellate Advocacy Blog

Editor: Tessa L. Dysart
The University of Arizona
James E. Rogers College of Law

Monday, May 15, 2023

On Deadlines

On Tuesday, May 2, the United States Court of Appeals for the Third Circuit amended its local rules to create a uniform filing deadline of 5 pm eastern time. Robert recently posted about the change.

The Third Circuit gives several reasons for the change, including:

  • Equalizing deadlines between pro se litigants and attorneys;
  • Allowing the Court’s Helpdesk to help with technical issues;
  • Eliminating the need for attorneys to check for after hour filings; and
  • “alleviating confusion by equalizing the filing deadlines for electronically filed and non-electronically filed documents in most cases.”

As Robert noted in his post, the court’s move was opposed by several groups, including the Pennsylvania Bar Association, the Third Circuit Bar Association, and a group of 43 appellate attorneys that included Howard Bashman, who I greatly respect.  I found this third letter to be the most persuasive.

All of the opposition letters argue that the rule change will not improve attorney quality-of-life. The letters note that solo practitioners and young attorneys who like to leave work early to be with kids and then work after hours will be negatively affected. The letter from the appellate attorneys also mentioned that the rules change will make it harder for clients in Alaska and Hawaii to review filings.

While I sympathize with some of the concerns raised in the letters (I often work after my young kids are in bed), I ultimately have no problem with the rule change.

As a professor, I have had to set deadlines for my students for over a decade. Early in my teaching career, my students had to turn in their papers both in person and electronically by a certain time for their student briefs to be “timely filed.” For the last 6 or so years, I have only required “electronic” filing.  While I am confident that many students find deadlines in legal writing classes to be “arbitrary,” I assure you that they are not.  Rather, they are the product of significant thought, experience, and even coordination.  For example, while students might like an 8:00 am deadline that gives them all night to work, are such deadlines fair to professors who teach morning classes? Are deadlines set in the university’s time zone fair to students taking online classes in other time zones? Do you give students the weekend to work, or do you set deadlines on Thursdays or Fridays to give yourself time to grade over the weekend?

In setting deadlines for assignments, I try to keep a few things in mind.  First, I aim for consistency—assignments are typically due on the same days of the week. My major assignments are usually due on Thursdays, with minor assignments following a set weekly schedule of Tuesday and Friday.  Second, I aim for clarity. My assignments are due at 11:59 pm Arizona time.  I find a midnight deadline to be too confusing. I could easily pick an earlier time in the day, but I haven’t since I moved to pure electronic submission.  Third, I want to encourage good habits. For me this means encouraging my students to develop clear timelines for producing their assignments. I post an extremely thorough syllabus at the beginning of the year with all of the major and minor deadlines clearly listed. This allows students to develop a briefing schedule for submitting their assignments.  If they are working with a partner to submit a final paper, and that partner is going to be busy the evening an assignment is due, they need to figure out how to get that assignment finished early.  And guess what, nine times out of ten that is exactly what they do. They plan ahead and get the work done.

Here, the Third Circuit has set a deadline. While it may seem arbitrary, I find the reasons that they give to be related to their decision and thus, not arbitrary. And while some might not like deadline, it is one that attorneys can easily adapt to and work around. It means that attorneys will have to finish filings sooner, which might be burning that midnight oil the night before the filing is due so that the client in Alaska can review the brief first thing in the morning.

While adapting schedules can be hard, it is what we as attorneys should be able to do best. We pivot to meet the needs of our clients, the court, and the profession.

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