Briefly: When life happens during an appeal

Erica A. Holzer (left) and Katie Barrett Wiik

Our lives as lawyers are governed by deadlines, caseloads, and client needs. While we do our best to balance our personal and professional commitments, how many of us have had to explain to disappointed family members and friends that we would have to miss a planned dinner, a birthday celebration, a concert, soccer game, or other important event due to work? How many of us have worked during a family vacation, or while sick, suffering a migraine, or managing family care obligations? How many of us have put off doctors’ visits, exercise, or engaging in hobbies because we were too busy or unwilling to step away from work?

We may think we have no other choice but to put our professional commitments before our personal lives, or we may just chalk it up to the hazards of the job, but there can be real harms in doing so. A 2017 report from the National Task Force on Lawyer Well-Being included staggering and rather dismal statistics regarding the status of lawyer well-being. The report noted myriad issues impacting lawyer well-being including depression, anxiety, stress, and problem drinking. Among the “parade of difficulties” impacting attorneys’ well-being was a consistent complaint of “work-life conflict.”¹

While these tensions between our human and professional selves are not unique to the practice of law, we cannot bring our best selves or our best work to our clients if we are unwell.

Judges and other leaders within our profession are inviting us to do better. In June 2022, the Minnesota Supreme Court and the United States District Court for the District of Minnesota hosted an event titled, “Renewing the Call to Action on Well-Being: The World Has Changed.” During the program, Chief Justice Lorie Gildea, Justice Natalie Hudson, Former Justice David Lillehaug, Chief Judge John Tunheim, Judge Donovan Frank, Attorney General Keith Ellison, and others discussed the importance of preventing, recognizing, and mitigating lawyer stress and illness, and shared their perspectives on the importance of well-being in the legal profession. The program also addressed the need to destigmatize requesting accommodations for reasons of personal or family health and to challenge the idea that making such requests is a display of weakness or unprofessionalism.²

It’s time to prioritize these issues and consider potential solutions for improving lawyer well-being. Because this column is focused on appeals, we wanted to make one small effort toward this end by ensuring that attorneys handling civil appeals in Minnesota know what to do, and what sort of accommodations might be available if illness, a personal or family emergency, the birth or adoption of a child, or a similar life event occurs during an appeal.

Some of these personal and professional conflicts can be avoided by proactively managing deadlines. One benefit of appellate work is that the tasks and deadlines involved in most appeals are predictable. Under Rule 134.02, when filing the party’s initial brief, counsel must provide the court notice of any conflicts that limit counsel’s availability for oral argument. These conflicts need not be limited to professional commitments. Conflicts due to personal or family obligations, including parenting leave, may be included.

Other than the deadline for initiating the appeal (which is fixed and jurisdictional),³ the Court of Appeals and Supreme Court may extend or suspend any of the deadlines or requirements prescribed by the rules. See Minn. R. Civ. App. P. 102, 126, 131.02. An attorney seeking an accommodation, such as a briefing deadline extension, must file a motion under Rule 127. As long as the motion demonstrates good cause and the request for a corresponding accommodation is reasonable, such extension requests are routinely granted.

Again, facts that can demonstrate good cause include not only deadlines for other clients but also personal or family obligations such as long-planned travel, a leave of absence, or recovering from a health condition. It is a best practice to include these facts in an attorney declaration accompanying the motion, but an attorney need not feel obligated to disclose private health or overly personal information to demonstrate good cause — a general description of the issue should suffice.

In addition, although it is not required, asking your opponent if they will consent to — or, at least not oppose — your motion is good practice and can allow a motion to be presented to the court as unopposed.⁴ In our view, lawyers unreasonably opposing reasonable requests for an accommodation do far more harm to their reputation than do the lawyers requesting the accommodation.

Now, what happens if you are faced with an unexpected illness or emergency and there is not time to file a motion? What if you test positive for COVID-19 or come down with the flu the morning of oral argument, or have a car accident en route to the court? What if you have a family emergency the day before your brief is due?

In such situations, you (or someone acting on your behalf) should notify the Clerk of Appellate Courts as soon as possible, by phone (651-291-5297) or email (via the contact form on the court’s website).⁵ If you email or leave a voicemail after business hours, your message will be returned by court staff the next business day. You should also notify opposing counsel right away, especially if your illness or emergency prevents you from appearing as scheduled for oral argument or meeting a key deadline. If you cannot verify your message was received, and if you or someone in your office is able, follow up by filing a short letter via E-MACS explaining you had a last-minute crisis or family emergency outside your control and documenting when and how you reached out to inform the court and counsel. Importantly, this makes your outreach to explain your unexpected unavailability part of the record.

The clerk’s office will provide further direction in these emergency situations. For example, if you are able to argue, but cannot appear in person (e.g., due to a contagious illness), the court may convert the in-person oral argument to take place via Zoom. If you are unable to argue, the court may reschedule the argument for a later date.⁶

In sum, acknowledging and respecting that lawyers are human is something our clients and newer members of the profession are demanding of us. Regardless how one feels about the pursuit of work-life balance, knowing when and how to request assistance or appropriate accommodations is an indispensable part of a lawyer’s duty of competence.

Erica Holzer is a partner and co-chair of the Appellate Practice Group at Maslon LLP, where she represents clients in complex commercial disputes, products liability litigation, and insurance coverage actions.

Katie Barrett Wiik is a partner in the Minneapolis office of Saul Ewing LLP and a Vice-Chair of the firm’s national appellate practice group. Her practice focuses on appeals and commercial litigation.

Endnotes

1. https://lawyerwellbeing.net/wp-content/uploads/2017/11/Lawyer-Wellbeing-Report.pdf.
2. Video recordings of the program, well-being research, and resources can be found at https://www.mncourts.gov/lawyer-well-being.aspx.
3. If possible, we recommend filing any jurisdictional filings, such as a notice of appeal or petition or review, at least a day or two in advance of the deadline. This not only allows time to correct any filing glitches but also to accommodate any unexpected personal or family emergencies.
4. Seeking an accommodation from the court may not be appropriate in all cases or situations. For instance, if an extension or delay would be prejudicial to your client, finding substitute counsel may be a more appropriate alternative.
5. https://www.mncourts.gov/Clerk-of-Appellate-Courts/ContactClerkofAppellateCourts.aspx.
6. See https://www.mncourts.gov/mncourtsgov/media/Appellate/Court%20of%20Appeals/Oral-Argument-Protocol.pdf.