The committee is starting a new regular feature. (The title is an homage to recently retired David Letterman.) Often there is as much to be learned from watching other people’s mistakes (and hoping not to repeat them) as from seeing the very best in action. Sometimes appellate mistakes make the news, as when the Supreme Court threatens to sanction a counsel for a certiorari petition full of unintelligible acronyms or when a firm misses the deadline to file a multimillion dollar appeal. Usually, however, such mistakes are less widely reported, serving only as cautionary tales for the local bar.
This column will share lessons from across the country with our members, reporting real mistakes made by real appellate lawyers, frequently with disastrous results for their clients. The committee would like this feature to be interactive. So we invite all of you to send us for publication in upcoming issues any cases involving mistakes by lawyers on appeal.
Nixon v. City & County of Denver, 784 F.3d 1364 (10th Cir. Apr. 30, 2015)
In this tale of woe—or, as the court describes it, “a tale of apparent injustice”—the lawyer left a critical element out of his brief: the argument. Id. at 1366. The opinion reports that the lawyer recited at length the story of injustice done to his client but never stated why the district court’s decision was wrong. The court points out that, unfortunately, lawyers often waive an argument by failing to adequately brief it, but the court distinguishes this as the rare case in which no pertinent issue was adequately briefed. Id. at 1368.
The court ultimately identified a single sentence (in an 18-page brief) that it treated as relevant argument, while noting that the sentence “fails to satisfy minimal standards for intelligibility.” Id. at 1370. The court generously addressed what it believes the attorney was trying to argue in that sentence—and then succinctly rejected it. The injustice to his client about which the attorney expressed such concern may have been surpassed by the injustice done by the attorney on appeal.