Nice Takedown
Confusion in the Eighth Circuit Court of Appeals: Grayson v. Ross

Clueless in Omaha

Clients are helpless without lawyers.  Incompetent lawyers prevent courts from hearing just claims. Thus, excessive force cases like Elder-Keep v. Aksamit, No. 05-399 (here) are only slightly less infuriating than cases involving judicial activism.  Elder-Keep was litigated by a lawyer (Michael Kratville) who didn't seem to understand basic civil procedure. 

First, he filed affidavits that were unsworn and unsigned.  Because the affidavits were unsworn, the trial court refused to consider them and granted the defendant's motion for summary judgment as to some, but not all, of the defendants.

Then, 25 days after the judges' decision, the lawyer filed the wrong motion!  He filed the wrong motion because he didn't understand the difference between a final and non-final order.  It gets a little tricky here, but the mistake was still obvious. 

Under FRCP 60, a person who makes a clerical error (say, by submitting unsigned affidavits) can ask the trial court to reconsider it's judgment.  However, Rule 60 only applies to final orders.

What rule does apply?  A local court rule, which requires that motions for reconsideration be filed within 10 days of a non-final order.  Since partial dismissals are non-final orders, the deadline was missed.

Oh, there's more.  Under the Eighth Circuit's local rules: "A digital version of each brief, excluding the Addendum, must be furnished to the court at the time the paper brief is filed, unless counsel certifies that filing a digital version is not practicable."  Given that it takes about 5 minutes to convert the brief to a .pdf and save it to a disk, rarely will it be "[im]practicable" to file a digital version of the brief. 

When I went to read the appellant's brief (after all, I like to give everyone a fair shake) I saw, true to form, that this lawyer was determined to screw things up whenever possible.  Instead of seeing a brief, I read: "We received the brief without a diskette."

Was Mr. Elder-Keep the victim of police misconduct?  We'll never know - thanks to his lawyer.

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