We now interrupt your regularly scheduled programming of Charney v. Sullivan & Cromwell to bring you some embarrassing news about another ultra-prestigious New York law firm: Simpson Thacher & Bartlett.
From Decision of the Day:
From the “it can happen to anyone” file, the Second Circuit dismisses a cross-appeal by Travelers Insurance Company because its law firm filed the notice of appeal one day late. After the losing party in the district court filed a notice of appeal, Travelers had 14 days to file its notice of cross-appeal. However, the firm calculated the 14 days from the date it received the notice, not from the date the notice was actually filed. The district court denied Traveler’s motion to extend the deadline by one day, explaining that this was a case of “garden variety attorney inattention” and not excusable neglect. The Second Circuit affirms (PDF).
The law firm that made this rookie mistake was one of the whitest of the white shoes, the venerable Simpson Thacher & Bartlett. The partners on the brief have stunning resumes, and the fifth-year associate has done plenty of litigating, given that he is admitted to practice in three jurisdictions and thirteen courts. So, yes, it can happen to anyone. (And in case you’re wondering, no, STB did not reject me.)
Decision of the Day is too nice to name the STB lawyers on the brief, but we have no such qualms. These are matters of public record. The attorneys who screwed up here are partner Barry R. Ostrager, partner Andrew T. Frankel, and associate Robert J. Pfister.
Barry Ostrager, by the way, is routinely named as one of the country’s top business litigators and trial lawyers. See, e.g., here, here, and here. He’s not particularly nice; as one litigator diplomatically observed, Ostrager “doesn’t suffer from the need to be loved.” But he has been very successful for his clients.
Given Ostrager’s stellar reputation, this latest defeat is particularly embarrassing. It’s one thing when you litigate a case as best you can, then lose because the law just isn’t on your side. It’s another thing when a federal trial judge finds you guilty of “garden variety attorney inattention,” and then an appeals court affirms, holding that your “attorney inadvertence” — a charitable phrasing — does not constitute “excusable neglect.” Great litigators, after all, are supposed to be careful, attentive, and detail-oriented.
But this is not Barry Ostrager’s only lapse. His failure to pay attention to detail extends to the men’s room — as we have had the misfortune of observing, firsthand.
Read all about it, if you dare — don’t say we didn’t warn you — after the jump.
When we were at Wachtell Lipton, we worked on the monster Larry Silverstein / World Trade Center insurance litigation. Wachtell Lipton represented developer Larry Silverstein, the insured, and a gaggle of big law firms represented the insurers. The lead insurer, Swiss Re, was represented by Simpson Thacher. Barry Ostrager led the STB team.
We combed through some of our saved emails and found this gem, which we wrote to some fellow WLRK associates on August 7, 2002. It was written after we attended a hearing — summary judgment? — at the federal courthouse, 500 Pearl Street. It contains no client confidences, and it was not composed on billable time, so we feel at liberty to publish it here.
We wrote this message to our fellow associates:
During the ten-minute recess at the hearing, the men’s room on the 15th floor [of 500 Pearl Street] was understandably quite busy — a veritable Grand Central Station… While Seth Schafler and Jay Levin monopolized the two urinals, engaging in animated discussion of the Federal privilege log as they relieved themselves, men were going into the stalls to urinate as well.
As the person with the rare privilege of using a stall immediately after Barry O., I learned that Barry O. doesn’t lift up the toilet seat when he urinates into a toilet bowl. Of course, I did not follow his discourteous behavior. I gingerly raised the toilet seat before taking care of business, taking are to avoid touching the drops of Ostragerian urine that were splattered liberally along the rim.
Barry Ostrager may be a genius in the courtroom. But in the bathroom, not so much.
Simpson, Thacher & Schadenfreude [Decision of the Day Blog]
In re Johns-Manville Corp. [Second Circuit (PDF) via Decision of the Day Blog]
Barry Ostrager bio [Simpson Thacher & Bartlett]
Barry R. Ostrager [Chambers USA Guide]