specially concurring:
I specially concur to underscore what I perceive to be the unjustified harshness of *81the rigid application of a generally unknown and outmoded rule. The rigid application of this rule is not necessary to serve its intended purpose. If this rule were well known and followed by attorneys, a more than slight administrative burden would be imposed upon the courts.
I concur only because I believe that the majority is correct in its conclusion that the cases of this circuit require the result reached here. I urge en banc consideration.
The facts are well stated in the majority opinion. It is my opinion that the attorneys here were not, in the practical sense, guilty of a lack of diligence, certainly when judged by work-day standards of lawyers practicing in the real world. A busy attorney does not daily inquire about a case that he only recently argued to a busy court, and here it was not a lack of diligence not to inquire about the status of this case within two months of the motion for new trial when the case had been held under advisement for a year and a half.
Fed.R.Civ.P. 77(d) was apparently adopted for the purpose of assuring that finality of judgments would not be threatened by indiscriminate judges. The rule need not be applied rigidly to accomplish that result at the expense of fairness and justice. A fair application of the rule can serve its intended end just as well.
And finally, the truth is, in my opinion, that most attorneys are not consciously aware of Rule 77(d) and its application under our cases. If they were, the clerks’ offices would have a deluge of calls on a daily basis inquiring about every motion argued or case tried which was thirty days old and older. Indeed, every attorney best maintain daily contact with the clerks’ offices with respect to all matters that he has pending in the district court if he is to be held fully accountable, as here, for the clerks’ errors.
I concur because our cases, in my opinion, seem to require this result. I write this concurrence to call attention, I hope, to the need for en banc review.