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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.

In re Marriage of Chase, No. C078694, 2016 Cal. App. Unpub. LEXIS 5612 (July 29, 2016)
Another counsel was taken to task here, where the decision stated that “this appeal represents an abandonment of the duty of professional appellate advocates.” Id. at *3. The court continued that the lawyer, in raising 28 issues in 35 pages,

repeatedly ignores evidence in support of the trial court’s rulings, makes abbreviated “arguments” lacking any analysis, fails to identify portions of the record crucial to her contentions or mischaracterizes the record, and frequently leaves us flipping back and forth between her arguments and her statement of facts as we attempt to piece together the evidentiary underpinnings of her contentions, a practice this court has previously condemned.

Id. The decision then goes though the issues in an “attempt to respond as best we can to this briefing.” Id.

In affirming the trial court’s order that the appellant pay the other party’s legal fees, the court of appeals stated that the payment “was more than warranted . . . on the basis of [appellant’s] trial tactics, as confirmed for us by his appellate tactics.” Id. at *42.

After all of this, amazingly, the court still ruled for the appellant on one issue and remanded the case for its resolution. While this Pyrrhic victory may have been some consolation, the language in the opinion will not help to bring in new clients for the lawyer.

SkyHawke Techs. LLC v. Deca Int’l Corp., 828 F.3d 1373 (Fed. Cir. 2016)
In this case, the appellant patentee had actually won before the Patent Trial and Appeal Board. Nonetheless, it sought to appeal, claiming that the ruling in its favor was too narrow.

In granting the appellee’s motion to dismiss, the decision references the “prudential rule that the prevailing party in a lower tribunal cannot ordinarily seek relief in the appellate court.” Id. at 1375. The court observed that “[w]ith the present appeal, SkyHawke is merely trying to preempt an unfavorable outcome that may or may not arise in the future and, if it does arise, is readily appealable at that time.” Id. at 1377. Thus, the matter was dismissed, with the client stuck for the costs of bringing the appeal and of opposing the motion.

One hopes that appellate counsel had advised the client of the general rule and the very limited chances for success on appeal.

Mahan v. Roc Nation LLC, 634 F. App’x 329 (2d Cir. 2016)
The appellant here had initially sued rapper Jay Z’s company, claiming co-ownership of the copyright to certain songs. The trial court dismissed the case as time barred and awarded defendants attorney fees because the “claims were objectively unreasonable” and to “deter similarly frivolous lawsuits.” Id. at 330. On appeal, the Second Circuit affirmed and awarded additional attorney fees for the appeal, stating that appellant’s “arguments here are as frivolous as those he made below.” Id. at 331. The court remanded for the district court to calculate the amount of attorney fees on appeal.

On remand, Mahan v. Roc Nation, LLC, No. 14-cv-5075, 2016 U.S. Dist. LEXIS 122822 (S.D.N.Y. Sept. 9, 2016), the appellees sought more than $160,000 in attorney fees. The appellant objected, claiming “approximately 75% of [the] appellant brief was literally ‘cut and paste’ from what he filed in the district court.” Id. at *7. In granting almost the full amount requested, Judge Lorna Schofield (former chair of the Section of Litigation) rejected the cut-and-paste argument, making an important point for all appellate lawyers: “While the crux of Defendants’ arguments may have remained the same, the substance and style of briefing and oral argument differ between trial and appellate courts and competent lawyers will work hard to defend against even frivolous appeals.” Id. at *8.

Appellate attorneys may wish to keep that language handy for discussions with clients about billing.

Tilton v. SEC, No. 15‑2103, slip op. (2d Cir. July 14, 2016)
Sometimes a simple summary order hides a significant underlying error. On its face, the two-sentence order here merely struck the appearances of certain attorneys on behalf of the appellant.

The backstory is far more interesting. It concerns a prominent national firm that was retained to handle a petition for rehearing on a significant case involving the constitutionality of the SEC’s in-house court. Somehow, the firm failed to consider that one of its former partners was a member of the panel that had issued the decision for which rehearing was sought. Pointing out the more egregious nature of this oversight, the summary order includes a cite to an earlier Second Circuit decision disqualifying the same firm from representing an appellant seeking rehearing of a decision by a panel including the same judge. Although a number of years had passed, one would think that embarrassment would have been remembered.

The bottom line (besides lost income to the firm) was that the appellant had to find a third different appellate counsel within a two-week period.

SEC v. Jones, No. 16‑10716, slip op. (5th Cir. July 22, 2016)
Another summary order masked an even worse error by counsel. The case involved an appeal of a $1.77 million judgment in a fraud action. The order, in a single sentence, granted a motion to dismiss. The basis of the dismissal (not stated expressly in the order) was that the appeal was untimely, having been filed after the 60-day statutory limit for appeals involving the United States.

In opposing the motion to dismiss, the appellant’s attorney had argued—unsuccessfully—that the appeal was timely because the 60-day limit was tolled by the appellant’s intervening bankruptcy filing. Counsel could have avoided dismissal by simply filing a protective notice of appeal within 60 days and subsequently litigating the effect of the bankruptcy. His failure had severe financial consequences for his client.

Newegg, Inc. v. Ezra Sutton, P.A., No. 15-cv-01395, 2016 U.S. Dist. LEXIS 124891 (C.D. Cal. Sept. 13, 2016)
This district court decision actually arises out of the prior conduct of appellate counsel. The defendant attorney had represented a coappellee before the Federal Circuit. Prior to filing, the plaintiff company sent the defendant attorney a copy of its draft brief. The defendant attorney promptly copied the draft brief and submitted it on behalf of his client. The problem was that the company obtained a copyright on its draft brief. The company than sued the attorney for copyright infringement. The district court rejected the attorney’s fair use claim and granted summary judgment to the company.

While all lawyers may benefit from widespread electronic access to briefs, we should remember the lesson from grammar school: Don’t copy other people’s work.

Follow-up: In re Crawford, No. B270705, 2016 Cal. App. Unpub. LEXIS 3895 (May 24, 2016)
In a follow-up of a case discussed in a previous column, In re Crawford, the attorney who had threatened opposing counsel during deposition with a stun gun has been disbarred. Continuing the type of contemptuous conduct that resulted in the imposition of sanctions in the Crawford decision, the attorney walked out of his own disciplinary hearing and failed to return the next day. Interestingly, the charges presented at the disbarment hearing did not include his statements to the court in the Crawford appeal.

Pro Se Lawyers, Real Mistakes
This column usually only looks at the mistakes of real attorneys. However, some recent appellate decisions where a party proceeded pro se teach some meaningful lessons as well.

Vega v. Tsuboi, No. A146397, 2016 Cal. App. Unpub. LEXIS 6060 (Aug. 16, 2016)
This case began as a petition to establish parentage. The petitioner sought visitation of “Kid Vega,” born on September 4, 2013. The respondent moved to dismiss the petition because “no such child exist[s].” Id. at *1. The respondent’s motion papers informed the trial court that she “did not give birth to any child on September 4, 2013, as alleged by Petitioner. Indeed, it would be biologically impossible for Respondent, having given birth to her son Everett on July 25, 2013.” Id. at *2 (emphasis in original). The respondent stated that Everett was her son by her husband and that she never had a personal relationship with the petitioner, whom she only met once when she interviewed him as a fan at a baseball game three years earlier. Based on that brief interaction, the petitioner became her stalker and the subject of multiple restraining orders. The respondent pointed out that in the petition, the petitioner himself stated he had “not been in close personal contact with Respondent since 2010,” but “by way of an elaborate plan and continuing hoax, Respondent stole his semen from a trash can.” Id. The lower court dismissed the petition with prejudice.

On appeal, the petitioner filed a 51-page brief, which cited no cases. More significantly, he never claimed any error by the lower court judge. Denying his appeal, the decision stated, “Vega’s brief has no argument, indeed no legal authority. And it does not even attempt to show that Judge Wiley committed any error. It is manifestly deficient—and deserving of sanctions,” id. at *10, which the court of appeals awarded.

Basic v. Amouri, 58 N.E.3d 980 (Ind. Ct. App. 2016)
The pro se appellants here had initially brought claims stemming from removal as members of the board of the Islamic Society of Michiana. The trial court dismissed their claims for lack of both standing and subject matter jurisdiction, and they appealed. The court of appeals’s decision affirming the dismissal recites a laundry list of things not to do on appeal.

The appellants’ appendix included a copy of a complaint, but not the one in the court record. The copy of the order from which the case was appealed “includes their own handwritten negative commentary throughout. In fact, the order is so heavily marked up with Appellants’ scrawlings as to impede our review.” Id. at 984 (citation omitted).

Turning to the appellants’ brief, the court stated that it not only contained “improper content but we also found [the arguments] to be largely incoherent.” Id. “As for the smattering of cases cited within their argument section, Appellants fail to use them to develop coherent arguments” but rather used them to refute cases relied on by the trial court, “often in a pejorative and condescending manner.” Id. at 985.

The court also criticizes the brief as “unnecessarily hostile in tone throughout and impugn[ing] the motives of opposing counsel, Appellees, and the trial court.” Id. As examples, the court includes the following “snapshots of the invective” from the appellants’ brief:

(1) Appellants accuse Appellees’ counsel of “obfuscatory mouthing’s [sic],” “Sophistic wrangling’s [sic],” and being “well-versed in the art of obfuscation”; (2) Appellants accuse Appellees of being “intellectually” and “morally corrupt,” engaging in “nefarious schemes,” and running the organization “as if it were a ‘third world’ dictatorship”; and (3) Appellants accuse the trial court of conducting a “courtroom farce” and “sham proceedings,” characterize the trial court’s findings as “snidely” stated and creating “straw-man or bogey-man argument,” and impugn the court’s legal knowledge. . . .


Finding the brief “replete with defects,” the court not only affirmed the lower court decision but imposed sanctions, stating that “we can cut Appellants no slack simply because they have no formal legal training.” Id. at 986 (internal brackets and quotation marks omitted).

While other courts may be more generous with a pro se litigant, the decision would be good reading for all attorneys preparing their first brief.

Keywords: litigation, appellate practice, silly lawyer tricks; pro se; Trude v. Peterson Earth Movers, Inc.In re Marriage of ChaseSkyHawke Techs. LLC v. Deca Int’l Corp.Mahan v. Roc Nation LLCTilton v. SECSEC v. JonesNewegg, Inc. v. Ezra Sutton, P.A.Vega v. TsuboiBasic v. AmouriIn re Crawford

Tom Donlon is counsel with the firm of Robinson + Cole LLP in Stamford, Connecticut. A former cochair of the Appellate Practice Committee, Tom continues to serve as a vice-chair while also serving as cochair of the Section of Litigation’s Amicus Curiae Briefs Committee.

Copyright © 2016, American Bar Association. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or downloaded or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. The views expressed in this article are those of the author(s) and do not necessarily reflect the positions or policies of the American Bar Association, the Section of Litigation, this committee, or the employer(s) of the author(s).