December 06, 2016 Articles

Silly Lawyer Tricks VI

Sharing lessons from across the country with our members, reporting real mistakes made by real appellate lawyers, frequently with disastrous results for their clients.

By Tom Donlon – December 6, 2016

This is the latest column in our continuing series on real mistakes and misdeeds by real lawyers in cases on appeal.

Real Lawyers, Real Mistakes
The following cases are the traditional cases that this column presents: cases showcasing mistakes by real lawyers.

Trude v. Peterson Earth Movers, Inc., Nos. A15-0378/1863/1864, 2016 Minn. App. Unpub. LEXIS 796 (Aug. 15, 2016)
You know you are in trouble when the appellate court’s opinion describes your arguments as “baloney.” 

This case involved a suit by a bank over defaulted loans and the bank’s subsequent attempt to recover the earthmoving equipment collateral from multiple defendants. The trial court entered default judgment against two defendants as a sanction for their repeated violations of the court’s orders. In addressing their appeal, the decision stated: “Counsel for JBI and Trude represented at oral argument to this court that the district court did not give clear warnings about potential or impending sanctions. Our review of the extensive record leads us to deem those representations baloney.” Id. at *24. The decision goes on to quote six written orders where the district court expressly stated that failure to abide would result in sanctions. The court of appeals notes that counsel raised “several other meandering issues on the merits of the underlying claim on which they defaulted,” which the court refused to address. Id. at *31.

Counsel for two other defendants did not fare much better. They raised four issues on appeal, but the appellee bank pointed out that they did not raise any of these “in their answer, during discovery, in a pretrial statement, at trial or in post trial motion.” Id. at *32. Thus, defendants “deprived the district court of the ability to assess or remedy any alleged errors” by “switch[ing] theories on appeal” after years of litigation. Id. The court of appeals, noting that defendants’ reply brief contained no response to the bank’s waiver argument, held that they could not “raise questions on appeal that were not raised in a post trial motion and not properly raised at trial,” and thus they had forfeited all of these arguments. Id. at *33–34.

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