Deadlines are important. As a result, it is important to know when a deadline falls. Fed.R.Bankr.P. 9006(a) explains that the last day of a period is not counted if it falls on a Saturday, Sunday or legal holiday. In that instance, the time period “runs until the end of the next day which is not one of the aforementioned days.” This is straightforward when the period runs forward. Thus, if an action is required to be taken 25 days after a given date and the last day falls on Sunday, the deadline would expire at the end of Monday unless Monday was a legal holiday. In this case, the 25 day period becomes an 26 day period. However, what happens when time is counted backwards? Assume that an action must be taken 25 days before a set date and the last day falls on a Saturday. Does the deadline expire on Friday (in which case the deadline is expanded to 26 days) or on Monday (in which case the deadline is truncated to 23 days).
San Antonio Bankruptcy Judge Leif Clark recently ruled that “next day” means Monday, not Friday. While acknowledging that “both conclusions are reasonable under the circumstances” he noted that “alas, there can be only one deadline.” He stated that, “Because the calculation of this deadline requires counting backward, the court finds that the determination of this ‘next day’ should continue counting backward. Therefore, when, as was the case here, the 25th day falls on a Saturday, Sunday or holiday, the deadline must be the next countable day before the 25th day.” In re Russell Keith Dick, No. 05-56196 (Bankr. W.D. Tex. 1/11/08).
Counting backward is a trap for the unwary. When counting forward, the rule protects the person taking the action who gets another day. However, when counting backward, the rule protects the person who is waiting for the action to be taken. Thus, the next day is actually the prior day when viewed on the calendar.
Thursday, February 21, 2008
Ten Day Rule Protects Trustee
Most bankruptcy lawyers find the arcane details of the Federal Rules of Civil Procedure to be deadly dull. However, for Austin Bankruptcy Trustee Dan Roberts, the difference between Fed.R.Civ.P. 59 and 60 proved to be very important. In re Geneva Peterson Berg, No. 06-11933 (Bankr. W.D. Tex. 2/7/08)(Judge Frank R. Monroe).
In the Berg case, the estate included a mineral interest which appeared to have little value. The Debtor valued it as $6,987 in her schedules, but was only willing to offer $3,000 to purchase it. When the Trustee contacted the operator, he found out that there was a well upon the mineral interest and that it was expected to produce $5,260 per year. Based on this information, the Trustee negotiated a sale to the operator for $25,000. After the Debtor offered more and an auction ensued, the court approved a sale for $34,000 and the sale closed. At this point, the Trustee should have felt very good, having increased the original offer by ten-fold.
Three days after the sale closed, the Trustee received a check for $10,190.80 representing one month’s production. It turns out that the operator had failed to mention that two new wells had been drilled on the lease as a result of a farm-out the previous year. The operator apparently gave the trustee accurate information about the existing well, but apparently took an attitude of “don’t ask, don’t tell” about any other wells which might be drilled. Based upon the new production, the value of the mineral interest was estimated at $180,000 to $300,000.
The Trustee was not amused and filed a prompt motion to reconsider the order approving the sale. The motion was filed less than ten days after entry of the initial order, which proved to be important.
The Bankruptcy Court noted that a motion filed within ten days was governed by Fed.R.Civ.P. 59, as incorporated by Fed.R.Bankr.P. 9023. Rule 59 allows relief from a judgment “for any reason for which a new trial has heretofore been granted in a suit in equity.” On the other hand, Fed.R.Civ.P. 60(b) allows relief up to one year from entry of an order, but is limited to the specific grounds listed within the rule (such as mistake inadvertence, surprise, excusable neglect, fraud and newly discovered evidence). Judge Monroe pointed out that while a motion was Rule 59 was subject to “much more stringent time limitations than a comparable motion under Rule 60(b),” it was not subject to “the same exacting substantive requirements.”
In practice, the standards under Rules 59 and 60 may be very similar. In fact, in the Berg case, Judge Monroe analyzed the motion to reconsider based on newly discovered evidence, which is a specified ground under Rule 60(b)(2). However, in this case, the tipping point may have been the interest in protecting the finality of bankruptcy sales. Where the motion to reconsider was filed within ten days of entry of the order, it was unlikely that the purchaser would have significantly relied upon the order. On the other hand, had the motion been filed six months or a year later, the prejudice to the buyer could have been significant. Thus, while motions under Rules 59 and 60(b) may consider the same or similar grounds, the court is much more likely to grant an equitable do-over under Rule 59 than Rule 60.
In the Berg case, the estate included a mineral interest which appeared to have little value. The Debtor valued it as $6,987 in her schedules, but was only willing to offer $3,000 to purchase it. When the Trustee contacted the operator, he found out that there was a well upon the mineral interest and that it was expected to produce $5,260 per year. Based on this information, the Trustee negotiated a sale to the operator for $25,000. After the Debtor offered more and an auction ensued, the court approved a sale for $34,000 and the sale closed. At this point, the Trustee should have felt very good, having increased the original offer by ten-fold.
Three days after the sale closed, the Trustee received a check for $10,190.80 representing one month’s production. It turns out that the operator had failed to mention that two new wells had been drilled on the lease as a result of a farm-out the previous year. The operator apparently gave the trustee accurate information about the existing well, but apparently took an attitude of “don’t ask, don’t tell” about any other wells which might be drilled. Based upon the new production, the value of the mineral interest was estimated at $180,000 to $300,000.
The Trustee was not amused and filed a prompt motion to reconsider the order approving the sale. The motion was filed less than ten days after entry of the initial order, which proved to be important.
The Bankruptcy Court noted that a motion filed within ten days was governed by Fed.R.Civ.P. 59, as incorporated by Fed.R.Bankr.P. 9023. Rule 59 allows relief from a judgment “for any reason for which a new trial has heretofore been granted in a suit in equity.” On the other hand, Fed.R.Civ.P. 60(b) allows relief up to one year from entry of an order, but is limited to the specific grounds listed within the rule (such as mistake inadvertence, surprise, excusable neglect, fraud and newly discovered evidence). Judge Monroe pointed out that while a motion was Rule 59 was subject to “much more stringent time limitations than a comparable motion under Rule 60(b),” it was not subject to “the same exacting substantive requirements.”
In practice, the standards under Rules 59 and 60 may be very similar. In fact, in the Berg case, Judge Monroe analyzed the motion to reconsider based on newly discovered evidence, which is a specified ground under Rule 60(b)(2). However, in this case, the tipping point may have been the interest in protecting the finality of bankruptcy sales. Where the motion to reconsider was filed within ten days of entry of the order, it was unlikely that the purchaser would have significantly relied upon the order. On the other hand, had the motion been filed six months or a year later, the prejudice to the buyer could have been significant. Thus, while motions under Rules 59 and 60(b) may consider the same or similar grounds, the court is much more likely to grant an equitable do-over under Rule 59 than Rule 60.
Saturday, February 02, 2008
Impressions of Jury Duty
As a lawyer, I never expected to be selected for jury duty. Although I have gone through voir dire several times in the past, I had always been struck or not reached. As a result, when I was called for service in County Court at Law #7, I expected to be back in the office by the end of the afternoon.
When I was seated in the jury pool, the odds were still against being selected. I was seated in position #12. A misdemeanor jury consists of six jurors. That meant that in order to be picked, five people ahead of me would have to be struck and I would have to avoid being struck myself.
Voir dire was both a warm-up for the trial itself and an interesting examination of the human condition. This case involved a misdemeanor DWI charge. Out of the randomly selected jury panel, there were several people with DWI arrests and one person who had lost a family member to a drunk driver. There several panel members who expressed distrust of police in general. Balancing them out was a jury member who volunteered that he had not had a drink since the 1970s. There was also a medical doctor who was familiar with a specific test which would prove to be important later on.
There were several interesting moments during jury selection. The prosecutor asked the panel for a show of hands to see how many people had driven under the influence of alcohol. At least half the hands on the jury panel went up. At this particular moment, the defendant chose to stretch and thus raised his hand as well in subconscious answer to the prosecutor's question. When we were seated, there was a box of girl scout cookies poised on the edge of the railing between the jurors and the lawyers. Finally, when it was time for the defense lawyer to ask his questions, he picked up the box of cookies and used it to prop up one of his charts, prompting a collective "aha" moment from the jury panel. Those cookies had no doubt been on everyone's minds throughout the prosecutor's questions.
The lawyers did a good job of using voir dire to preview their case to the point where the opening statements the next day were almost superfluous. Based on the questions that were asked by both sides, it was possible to deduce that this was a case where the defendant was not falling down drunk, that his performance on a field sobriety test would be important to the case, that he had refused to take a blood alcohol test and that the burden of proof to show guilt beyond a reasonable doubt (as opposed to just being probably guilty) would be important.
I was questioned several times by both the prosecutor and the defense attorney. This made me feel like my time in sitting through jury selection was not being completely wasted, since at least my presence was being acknowledged. I managed to flub my answer to the question of what preponderance of the evidence meant, saying that it meant more reasonable than not, instead of more probable than not. I also got to be the defense lawyer's straight man when he asked what you call someone who doesn't speak up in jury selection. (The correct answer was "a juror.").
Although I was not trying to get selected (I had about a million other things to do), I was not completely disappointed when Judge Elisabeth Earle announced that I would be "one of the lucky six." After we were sworn in, the court reminded us that a lot of people had died for our right to be sitting in the jury box. While the civics lesson was a little trite, it helped reinforce that what we were doing was important business rather than just a personal inconvenience.
The trial itself last just one day and consisted of a single witness, a police officer from the DWI Enforcement Unit. It was clear that the police officer and the defense lawyer were well acquainted with each other. While a bankruptcy lawyer can build up experience appearing before a specific judge, it struck me that a criminal defense lawyer could build up experience sparring with a specific officer. In many respects, the case was a battle between the officer and the defense lawyer rather than between the two attorneys (which is not to minimize the prosecutor who put on a very professional and organized case).
This was a case where the visual evidence played an important role. The entire sequence from when the police officer decided to pull over the driver to the moment where he was walked up the ramp into the jail was recorded. As a result, the jury could see the exact tests which the officer conducted to determine intoxication. It was one thing to hear the officer testify that on a certain test that six out of eight clues for intoxication were present. It was far more powerful to see the actual test being performed. We watched the tape of the arrest backwards and forwards, at regular speed and at fast forward. One factor which became important in the trial was whether the defendant had swayed. When the tape was played at fast forward, the defendant could be seen standing straight as a ramrod while the officer swayed like a hula dancer. It may have been an unfair comparison, but it was effective.
This was also a case where common sense prevailed over expert testimony. Because the defendant had refused to take the breathalyzer test (thus subjecting himself to suspension of his driver's license), the legal standard (as given in the court's charge) was whether he had lost the "normal" use of his mental and physical faculties. Since "normal" is subjective (as opposed to .08 blood alcohol content, which is objective), the jury was given leeway to consider how normal the defendant appeared.
The evidence showed that the only things that the defendant did wrong prior to being pulled over was to drive 11 mph over the speed limit on a stretch of road where the limit was not posted (and where many people drive over the speed limit) and making a wide turn. When the officer lighted him up, the defendant made a safe and controlled turn into a nearby parking lot.
After the driver admitted that he had had "a couple of beers," the officer walked him through a field sobriety test. According to the officer, the defendant flunked each test that he was given. However, to the layman's eye, the defendant performed reasonably well on each part of the test. While the defendant stumbled a few times and could not walk heel to toe keeping his feet within half an inch of each other, the very nature of the tests being performed was abnormal. For example, there was one test where the defendant had to make a turn while keeping one foot planted on the ground. The defendant was not able to do this (which would be a very unusual way to turn), but made a smooth pivot at the other end of the test.
After the defendant was arrested, his main concerns were ensuring that his girlfriend got home safely and wondering when he could get bonded out (both showing the normal use of his mental faculties). At the very end of the tape, the defendant was able to walk smoothly up a ramp with his hands handcuffed behind his back (showing the normal use of his physcial faculties).
As a result, the expert testimony established that the defendant was clearly intoxicated, since he had failed every test that he was given. However, the layman's eye saw that the defendant was in possession of reasonably normal mental and physical faculties except when he was being asked to peform abnormal tests. The fact that some study somewhere established that this was a reliable method to establish intoxication was not sufficient to overcome the fact that the defendant did not look or act intoxicated (even when keeping in mind that intoxicated was a lesser standard than drunk).
Another factor which was important was the burden of proof. In voir dire and again in closing, the defense lawyer used a very effective graphic illustrating the various levels of proof from no evidence through probable cause, preponderance of the evidence, clear and convincing and beyond a reasonable doubt. Had our case involved a lesser standard of proof, it would have been much more difficult. However, the defendant's actions both before and after the field sobriety test were normal enough to raise a reasonable doubt. Had we been asked to decide more likely than not, we could easily have ruled for the prosecutor. However, the jury did not have a problem understanding and applying the higher standard of beyond a reasonable doubt.
When we retired to the jury room, there were initially four votes to acquit and two undecided votes. However, after an hour of deliberation we were able to bring back a verdict of not guilty. The defendant may well have been intoxicated that night. However, because the evidence was close, he was let off with a good scare and a hefty legal bill.
On a final note, both lawyers in the case gave a good impression. Both sides represented their clients zealously. However, they remained professional in that they avoided unnecessary sniping between themselves and didn't pull any stupid lawyer tricks (such as referring to things which not in evidence or trying to contradict the court's charge). They also tried their case efficiently and did not waste our time. While it is unlikely that I will be selected as a juror again, I would not hesitate to rule in favor of the earnest, young prosecutor in a case with stronger facts. I also would not hesitate to refer a client to the defense attorney (whose card I forgot to get).
When I was seated in the jury pool, the odds were still against being selected. I was seated in position #12. A misdemeanor jury consists of six jurors. That meant that in order to be picked, five people ahead of me would have to be struck and I would have to avoid being struck myself.
Voir dire was both a warm-up for the trial itself and an interesting examination of the human condition. This case involved a misdemeanor DWI charge. Out of the randomly selected jury panel, there were several people with DWI arrests and one person who had lost a family member to a drunk driver. There several panel members who expressed distrust of police in general. Balancing them out was a jury member who volunteered that he had not had a drink since the 1970s. There was also a medical doctor who was familiar with a specific test which would prove to be important later on.
There were several interesting moments during jury selection. The prosecutor asked the panel for a show of hands to see how many people had driven under the influence of alcohol. At least half the hands on the jury panel went up. At this particular moment, the defendant chose to stretch and thus raised his hand as well in subconscious answer to the prosecutor's question. When we were seated, there was a box of girl scout cookies poised on the edge of the railing between the jurors and the lawyers. Finally, when it was time for the defense lawyer to ask his questions, he picked up the box of cookies and used it to prop up one of his charts, prompting a collective "aha" moment from the jury panel. Those cookies had no doubt been on everyone's minds throughout the prosecutor's questions.
The lawyers did a good job of using voir dire to preview their case to the point where the opening statements the next day were almost superfluous. Based on the questions that were asked by both sides, it was possible to deduce that this was a case where the defendant was not falling down drunk, that his performance on a field sobriety test would be important to the case, that he had refused to take a blood alcohol test and that the burden of proof to show guilt beyond a reasonable doubt (as opposed to just being probably guilty) would be important.
I was questioned several times by both the prosecutor and the defense attorney. This made me feel like my time in sitting through jury selection was not being completely wasted, since at least my presence was being acknowledged. I managed to flub my answer to the question of what preponderance of the evidence meant, saying that it meant more reasonable than not, instead of more probable than not. I also got to be the defense lawyer's straight man when he asked what you call someone who doesn't speak up in jury selection. (The correct answer was "a juror.").
Although I was not trying to get selected (I had about a million other things to do), I was not completely disappointed when Judge Elisabeth Earle announced that I would be "one of the lucky six." After we were sworn in, the court reminded us that a lot of people had died for our right to be sitting in the jury box. While the civics lesson was a little trite, it helped reinforce that what we were doing was important business rather than just a personal inconvenience.
The trial itself last just one day and consisted of a single witness, a police officer from the DWI Enforcement Unit. It was clear that the police officer and the defense lawyer were well acquainted with each other. While a bankruptcy lawyer can build up experience appearing before a specific judge, it struck me that a criminal defense lawyer could build up experience sparring with a specific officer. In many respects, the case was a battle between the officer and the defense lawyer rather than between the two attorneys (which is not to minimize the prosecutor who put on a very professional and organized case).
This was a case where the visual evidence played an important role. The entire sequence from when the police officer decided to pull over the driver to the moment where he was walked up the ramp into the jail was recorded. As a result, the jury could see the exact tests which the officer conducted to determine intoxication. It was one thing to hear the officer testify that on a certain test that six out of eight clues for intoxication were present. It was far more powerful to see the actual test being performed. We watched the tape of the arrest backwards and forwards, at regular speed and at fast forward. One factor which became important in the trial was whether the defendant had swayed. When the tape was played at fast forward, the defendant could be seen standing straight as a ramrod while the officer swayed like a hula dancer. It may have been an unfair comparison, but it was effective.
This was also a case where common sense prevailed over expert testimony. Because the defendant had refused to take the breathalyzer test (thus subjecting himself to suspension of his driver's license), the legal standard (as given in the court's charge) was whether he had lost the "normal" use of his mental and physical faculties. Since "normal" is subjective (as opposed to .08 blood alcohol content, which is objective), the jury was given leeway to consider how normal the defendant appeared.
The evidence showed that the only things that the defendant did wrong prior to being pulled over was to drive 11 mph over the speed limit on a stretch of road where the limit was not posted (and where many people drive over the speed limit) and making a wide turn. When the officer lighted him up, the defendant made a safe and controlled turn into a nearby parking lot.
After the driver admitted that he had had "a couple of beers," the officer walked him through a field sobriety test. According to the officer, the defendant flunked each test that he was given. However, to the layman's eye, the defendant performed reasonably well on each part of the test. While the defendant stumbled a few times and could not walk heel to toe keeping his feet within half an inch of each other, the very nature of the tests being performed was abnormal. For example, there was one test where the defendant had to make a turn while keeping one foot planted on the ground. The defendant was not able to do this (which would be a very unusual way to turn), but made a smooth pivot at the other end of the test.
After the defendant was arrested, his main concerns were ensuring that his girlfriend got home safely and wondering when he could get bonded out (both showing the normal use of his mental faculties). At the very end of the tape, the defendant was able to walk smoothly up a ramp with his hands handcuffed behind his back (showing the normal use of his physcial faculties).
As a result, the expert testimony established that the defendant was clearly intoxicated, since he had failed every test that he was given. However, the layman's eye saw that the defendant was in possession of reasonably normal mental and physical faculties except when he was being asked to peform abnormal tests. The fact that some study somewhere established that this was a reliable method to establish intoxication was not sufficient to overcome the fact that the defendant did not look or act intoxicated (even when keeping in mind that intoxicated was a lesser standard than drunk).
Another factor which was important was the burden of proof. In voir dire and again in closing, the defense lawyer used a very effective graphic illustrating the various levels of proof from no evidence through probable cause, preponderance of the evidence, clear and convincing and beyond a reasonable doubt. Had our case involved a lesser standard of proof, it would have been much more difficult. However, the defendant's actions both before and after the field sobriety test were normal enough to raise a reasonable doubt. Had we been asked to decide more likely than not, we could easily have ruled for the prosecutor. However, the jury did not have a problem understanding and applying the higher standard of beyond a reasonable doubt.
When we retired to the jury room, there were initially four votes to acquit and two undecided votes. However, after an hour of deliberation we were able to bring back a verdict of not guilty. The defendant may well have been intoxicated that night. However, because the evidence was close, he was let off with a good scare and a hefty legal bill.
On a final note, both lawyers in the case gave a good impression. Both sides represented their clients zealously. However, they remained professional in that they avoided unnecessary sniping between themselves and didn't pull any stupid lawyer tricks (such as referring to things which not in evidence or trying to contradict the court's charge). They also tried their case efficiently and did not waste our time. While it is unlikely that I will be selected as a juror again, I would not hesitate to rule in favor of the earnest, young prosecutor in a case with stronger facts. I also would not hesitate to refer a client to the defense attorney (whose card I forgot to get).
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