Getting relief for a late petition for review might not be a hopeless cause

On the list of appellate lawyer nightmares — an appropriate topic considering that Halloween is only a few days away — forgetting to file a timely notice of appeal probably ranks first.  (For literal nightmares, first place might be approaching the court lectern and realizing you have no idea what the case you’re there to argue is about.  I really hate that one.)

Near the top of the nightmare list, however, is missing the deadline for filing a petition for review and having to ask the Chief Justice for relief under rule 8.500(e)(2).  Our understanding was that such relief is extremely hard to come by.  However, we’ve seen a couple of recent cases indicating that things might be loosening up a bit.

In Keshtgar v. U.S. Bank, the appellant was three days late with his petition for review.  (Hat tip to Robert Cooper for noticing the case.)  In his relief motion a few months ago, the appellant’s counsel offered a rather lame excuse:  most of his practice is in the trial court, decisions in three of his appellate cases (which he didn’t even bother to name) “were issued within a short period of time,” and he drafted two rehearing petitions in addition to the Keshtgar petition for review.  The petition for review was late, he said, because of his “unexpected surprise of having much appellate work to complete in a short period of time.”  The Supreme Court filed the petition.  It then granted relief again when counsel’s reply to the answer to the petition for review was 10 days late.  The reason for this tardiness?  He read the wrong rule, looking at the 20-day period to file a reply brief on the merits after review is granted instead of the 10-day period to file a reply to an answer to a petition for review.  To top it off, the court granted review.  (It’s a grant-and-hold case.)

There’s also last year’s Barry v. State Bar, in which the court granted relief to file a petition for review 18 days late.  (We haven’t seen the relief application in that case.)  The Supreme Court granted review in that matter, too.

Whether or not there’s actually a softening trend toward relief for late filings in the Supreme Court, here’s some advice:  don’t try this at home, unless you thrive on nightmares.