Supreme Court Does Not Tolerate Computer Viruses

The Supreme Court recently issued a resolution saying that a computer virus does not excuse a lawyer from filing court pleadings beyond the permitted period. The Court in this case upheld the dismissal an appeal. Here’s the Court press release in PDF or HTML. Apparently, the lawyer was supposed to file a Petition before the Court of Appeals but failed to do so within the allowed time because his computer was infected by a virus which deleted the word processing file containing the Petition. According to the rules, the lawyer could have been granted another extension if he had a “most compelling reason.” By dismissing the appeal, the Court ruled that a computer virus is not a compelling reason for failing to file the Petition in time.

We agree with the Court of Appeals that the reason stated in her second motion is not compelling. Petitioner’s counsel should have been systematic in his legal work. He should have saved the encoded petition in a diskette and have it printed. Had he followed this procedure, he would not have encountered a problem when his computer was infected by virus.

I can understand it if the Court had said that it was the duty of each lawyer to take measures to guard against viruses.  It’s quite another thing to say that lawyers are required to make back-ups of their work on a daily basis.  In effect, anything less would be considered malpractice for a lawyer.  As a practicing attorney and knowing the average technical abilities of my fellow brothers and sisters in the profession, I am confident that 99% of us do not even make regular back-ups of our data.  Still, I find myself quite happy about this development.

Now I have an excuse to go out and buy one of those one-button back-up drives that I’ve always wanted but have been restrained by my fiscally-responsible administrative partner.

That aside, I think the Supreme Court might not have fully appreciated the nature of a computer virus attack.  I’ve experienced it once when I foolishly opened an attachment in an email from someone I didn’t even know.  My computer froze and I had to initialize my drive thereby destroying all my data.  Then I had to reconstruct everything from back-ups.  It was a good thing I had just backed-up my filed.  Otherwise, I would have lost everything. 

Still,  the question remains:  Is a virus infection a “compelling reason” to be excused from making a filing on time?  I think it is. 

Virus infections can be characterized as force majeure — something which cannot be foreseen.  Since many lawyers in this country (and I venture, most Senior Partners in law firms and many Supreme Court justices) treat their computers as expensive and flashy paper weights,  the Court should be more sympathetic to instances of virus infection.  Many if not most lawyers probably don’t know how to get effective virus protection.  For those who have them, they may not religiously update their virus definition files.  The net result is that many lawyers have computers that are vulnerable.  In stark contrast, hundreds of viruses make their way through the Net everyday and more than a handful of script kiddies are out there making more.

While computers are amazing machines,  they’re still not as reliable as the cheapest motorcycle in the market.  Computers will hang, freeze, fail, shut down, reboot or restart for no reason whatsoever — a level of performance you will never tolerate from a vehicle. 
So, I hope the courts will be more understanding than the Supreme Court when it comes to computer glitches that may happen to the lawyers appearing before them.