A recent NLJ story, “In $500K Fee Fight, Winston & Strawn Defends Win Based on Missed Deadline,” reports that, what began as a simple fee fight pitting Winston & Strawn against a former client—albeit one with nearly $500,000 on the line—has morphed into a technical dispute over what judges should do when a litigant misses a court deadline.

The U.S. Court of Appeals for the D.C. Circuit heard arguments in Winston & Strawn's lawsuit against James McLean Jr., who hired the firm to represent another individual, Edward Warneck.  The firm says McLean never paid any of the bills, which totaled $494,760 by the time Winston & Strawn stopped doing work for Warneck in early 2013.

Whether or not McLean owed the firm money isn't before the D.C. Circuit.  Instead, the court will decide if the lower court judge was correct to rule in favor of Winston & Strawn and award the firm the fees it asked for after McLean missed a deadline to file court papers.

Arguments before a three-judge appeals panel focused on tension between a local court rule—one that just applies to the D.C. Circuit—and a federal procedural rule that applies across the judiciary.

The local rule, 7(b), says district court judges can treat a motion as conceded if the other side files a late response.  The federal rule, 56(e), says that if one side fails to respond to an opponent's arguments, the court can grant summary judgment "if the motion and supporting materials—including the facts considered undisputed—show that the movant is entitled to it."

D.C. Circuit Judge Harry Edwards appeared to be leaning toward McLean's contention that U.S. District Judge Emmet Sullivan was wrong to grant Winston & Strawn's motion under the local rule without first addressing whether the firm's request for summary judgment met the requirements of the federal rule.

Edwards said he wasn't suggesting that Winston & Strawn's lawyers had done anything wrong, or that the firm wouldn't ultimately win against McLean, but rather that Sullivan's order was premature.

Paul Maloney of Carr Maloney, arguing for Winston & Strawn, said that the federal rule gives judges discretion to act under the circumstances they're presented with, which is what Sullivan did.

McLean represented himself in the district court, but the D.C. Circuit appointed Miller & Chevalier to represent him on appeal.  Senior associate Michael Skopets, arguing for McLean, said there was no evidence that McLean acted in bad faith or that Winston & Strawn was prejudiced by his late filing.

According to court records, McLean's response to Winston & Strawn's summary-judgment motion was due on Aug. 18, 2014.  On that day, McLean electronically served his response on Winston & Strawn and put a copy in the mail to the court.  It arrived at the court two days later, so the court deemed it late.  Skopets said it was an abuse of discretion for Sullivan not to consider the circumstances that led to the late filing.