August 23, 2016 Articles

Silly Lawyer Tricks V

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 – August 23, 2016

The latest column in our continuing series on real mistakes and misdeeds by real lawyers (or wannabes) on appeal.

In re Crawford, No. B270705, 2016 Cal. App. Unpub. LEXIS 3895 (May 24, 2016)
This case arises in an unusual posture—a decision finding contempt by counsel before an appellate court. The shocking facts set out in the opinion demonstrate that the ultimate imposition of only a fine—without the imprisonment that the state statute also authorized—can only be viewed as magnanimous.

The opening paragraphs describing the history of the case grab the reader’s attention. The decision reports that during a deposition in the trial court, the attorney (who represented himself) “threatened opposing counsel with pepper spray and a stun gun.” Id. at *1. When the defendant moved to dismiss the action as a sanction for this outrageous conduct, the attorney “filed an opposition that was openly contemptuous of the trial court.” Id. The trial court granted the defendant’s motion and the court of appeals affirmed. Then the attorney filed his petition for rehearing, which became the basis of the contempt charge.

Under the heading “Count 1: Impugning the Integrity of the Court,” the opinion goes on for pages quoting the repeated slurs against the court that appear in the attorney’s petition for rehearing. Id. at *2–10. The attorney created his own derogatory name for the panel—“the Granddads of Anarchy”—and then repeated it continuously. The petition accused the judges of “purposefully misstating . . . the facts and bastardizing California law,” which the attorney claims is “evidence of their endless corruption, bias and senility.” Id. at *2. The petition referred to the judges as “feeble-minded nincompoops,” “corrupt, pathetic, low-life scum of human refuse,” “crusty, old corrupt codgers,” “disgusting old, white corrupt Justices,” and “corrupt, senile and morally bankrupt individuals.” Id. at *2–6. (The opinion also quotes the attorney’s repeated scatological references, which need not be repeated here.) The petition then attacked “this Reviewing Court’s perverted bias, prejudice and unquestionable alliance [with the defendants],” and concluded by charging “that these three corrupt politicians spawn anarchy to the populace with their genuine lack of respect for the law specifically, and flaccid respect for humanity, in general.” Id. at *7, *10.

As if that were not enough, the court’s opinion includes a second series of quotes from the petition for rehearing under “Count 2: Falsely Stating the Appellate Justices Accepted a Bribe.” Id. at *10–13. The attorney was not subtle in making this claim. He stated that the errors in the initial opinion were so numerous, one has to “wonder out loud how much the Grandads of Anarchy were bribed by [the appellee].” Id. at *11; see also id. at *11–12 (“The only question left outstanding is ‘how much,’ dear, old Grandads of Anarchy, did [the appellees] pay you to write this fiction-based fecal opinion?”).

The decision points out that all these “statements were not made in the heat of a courtroom battle, but were deliberately made in a petition for rehearing.” Id. at *14–15. Based on all this evidence, the appellate court had no difficulty in finding the attorney in criminal contempt, fining him the maximum $1,000, and referring the matter to the state bar. Only the report that the attorney was receiving “intensive treatment for various underlying issues,” id. at *15, appears to have saved him from jail.

Ritchie Capital Management LLC v. Costco Wholesale Corp., No. 15-3294, 2016 U.S. App. LEXIS 12114 (2d Cir. July 1, 2016)
This case concerns the more prosaic, yet not unimportant, question of preserving issues for appeal. In the trial court, the defendant corporation successfully moved to dismiss for lack of personal jurisdiction. On appeal, the plaintiff made only one argument—that personal jurisdiction existed because the defendant was registered to do business in the state. However, the Second Circuit points out, “[i]t is undisputed that [the plaintiff] did not raise this argument below.” Id. at *2. Because the plaintiff “has presented no explanation for why it did not make this argument before the district court,” the court held the argument was waived and affirmed the decision below. Id. at *3.

Often in such cases, it is hard to know if the appellate counsel made a mistake in raising a new argument, or did so intentionally realizing he or she had nothing else on which to rely. Sometimes an appellate court will allow a party to get away with raising new arguments, but the practice is fraught with danger because almost every court has settled precedent allowing them to reject arguments not presented below. Here, the Second Circuit did not let counsel get away with it.

En-Tech Corp. v. City of Newark, No. A-4360-13T2, 2016 N.J. Super. Unpub. LEXIS 1053 (May 9, 2016)
This case involves the related, but even more universally disfavored, practice of raising a new argument in a reply brief. The plaintiff contractor was the low bidder on a municipal contract to rehabilitate city sewers. As often occurs in such cases, over the term of the contract, disputes arose whether some additional work was outside the scope of the contract or due to jobsite conditions different than described in the bid materials. The contractor eventually sued the city and the company serving as the city’s engineer on the project. The engineering company was granted summary judgement, and the contractor appealed.

On appeal, the contractor asserted “for the first time in its reply brief” that the engineering company had exceeded the scope of its agency on behalf of the city. Id. at *3. The appellate court dealt with this succinctly, noting “an argument raised for the first time in a reply brief is not properly before the court.” Id. The contractor “did not properly raise this issue in its initial brief,” and thus the court concluded “this argument is waived.” Id.

While raising an argument for the first time on appeal may be a tactical decision, raising a new argument in a reply brief is simply a mistake. Whether the counsel held something back so the appellee would not be able to respond, or missed the argument until after seeing the opponent’s brief, the result is the same. What might have been a persuasive argument is simply ignored by the appellate court.

In re Arunachalam, No. 2016-1560, 2016 U.S. App. LEXIS 9696 (Fed. Cir. May 27, 2016)
This decision deals with another common problem in appeals—the requirement of finality. On reexamination of a patent, the Patent Trial and Appeal Board (PTAB) affirmed the examiner’s rejection of certain claims, but designated a new ground for rejecting one claim. As allowed under the patent statutes, the (self-represented) patent holder elected to return the matter to the examiner. When the examiner once more rejected the claims, the patent holder filed an appeal in the Federal Circuit, rather than go back to the PTAB.

The Federal Circuit quickly dismissed this appeal. Holding that only a PTAB decision is an appealable final judgment, the court stated, “there can be no doubt that the Patent Office’s actions are non-final for the purposes of judicial review and that Dr. Arunachalam’s appeal is premature.” Id. at *2.

This patent holder has not had a good year before the Federal Circuit. As noted in earlierSilly Lawyer Tricks columns, this same party had an appeal dismissed last year by the Federal Circuit when she tried to avoid the word count limits by compressing phrases and citations in the brief into a single word. Just last January, the U.S. Supreme Court denied her petition for certiorari in that case. Perhaps, this patent holder would be better served in the future by not continuing to represent herself on appeal.

Miller v. Appellate Court, 136 A.3d 1198 (Conn. 2016)
The final case returns to the difficult topic of attorney discipline. An attorney was suspended from practice before the state appellate court for her conduct in four separate appeals. The attorney then sought review of the order by the state supreme court. The supreme court’s decision went through each of the four appeals, addressing in detail the attorney’s numerous errors. Her conduct constitutes a veritable what not to do list.

In the first appeal, the attorney was cited for failure to meet deadlines and to follow court rules regarding timely filing of her brief. The attorney claimed that she had filed timely and that someone in the appellate clerk’s office “has deliberately manipulated [the] electronic website information to justify the claim that no filing has been made.” Id. at 1199–1200 (alteration in original). When informed that she had failed to file the necessary certifications of service, resulting in the electronic brief being rejected by the clerk, the attorney claimed no one told her the certifications had not been filed. The decision, however, points out that the attorney was sent two separate notices advising her the brief had to be resubmitted with the certifications. Id. at 1200.

In the second appeal, in which no brief was filed, the attorney claimed that she discovered, only shortly before the brief was due, that pages of the transcript were missing. The supreme court noted that the attorney had received two prior extensions to submit this brief—one of four months and the second of six months. Six weeks after the second extension expired, she submitted another request for extension citing the missing transcript pages. This third request for extension was denied because requests have to be submitted before the date the brief is due. Even then the appellate court gave her two more weeks to file the brief before the case was dismissed. Months later, at her show cause hearing, she still had not filed the brief. Id. at 1201.

In the third appeal, the attorney failed to obey an order to inform the appellate court when the trial transcript would be finished. The attorney, a solo practitioner, said she was out of the country when the order arrived and did not return until after the time to respond had expired and the appeal was dismissed. When asked at her hearing by the appellate court what assurance she could provide that this would not happen again, the attorney stated that she would try to have someone cover for her on a pro bono basis, and that she should be “commended,” not sanctioned, for taking on pro bono appeals. Id. at 1201–02. The appellate court did not agree.

The final matter involved a frivolous appeal. In the initial civil case, the plaintiff (who the attorney represented) was nonsuited for failure to respond to a defense motion. The attorney filed a motion to open the judgment, and then unsuccessfully appealed denial of that motion. The attorney then refiled the original case, seeking to take advantage of the state’s accidental failure of suit statute. In opposing the defendant’s subsequent motion for summary judgment, the attorney stated “as a solo practitioner, she had no one to teach her the ‘ins and outs’ of Connecticut practice, and, as a result, she was ‘ignorant’ of the rules of practice.” Id. at 1202. The trial court granted summary judgment because the first nonsuit was not the result of “mistake, inadvertence, or excusable neglect,” and specifically found that the second action was meritless and not brought in good faith. Id. at 1202–03. When the attorney appealed this second decision by the trial court, the appellate court granted dismissal of the appeal as “frivolous” and commenced the sanctions action that led to her suspension. Id. at 1203.

Noting that disciplinary proceedings are “for the purpose of preserving the courts of justice from the official ministration of persons unfit to [practice] in them,” the supreme court concluded that the attorney’s suspension for “her repeated failure to meet deadlines, to comply with the rules of practice, and for filing a frivolous appeal” was not an abuse of discretion. Id. at 1205 (alteration in original). The court noted that the attorney’s arguments “reveal a disturbing disregard for or ignorance of the facts underlying this case,” and in particular pointed to her “persistence in making such reckless allegations” against the appellate clerk “when even a cursory review of the [record] reveals that they are wholly unfounded.” Id. at 1207. (In Connecticut, the appellate clerk’s office also serves as the clerk of the supreme court, so the attorney was effectively accusing the supreme court’s own clerks of this serious misconduct without any evidence.) The supreme court stated, “[The attorney’s] repeated assertion that the brief and appendix were removed from the website in an effort to damage her credibility with the Appellate Court underscores the propriety of the Court’s determination not only that [the attorney’s] handling of her cases threatened the vital interests of her clients, but also that she had demonstrated a regrettable inability to accept personal responsibility for her professional mistakes.” Id.

The supreme court’s opinion concludes in affirming the appellate court’s referral of the attorney to the state bar disciplinary counsel to inquire if other unacceptable conduct might have occurred during the attorney’s representation of other clients. While the supreme court says it does not know if such conduct will be discovered, “in light of the number and nature of [the attorney’s] transgressions,” id. at 1209, the appellate court was justified in making the referral.

The attorney in this case may have felt that she had nothing to lose in seeking review of the order suspending her—and in fact the state supreme court did not increase her punishment. The resulting opinion, however, cannot help but further damage her reputation in the bar and in her community. Further, no matter how circumspect its language, the opinion’s strong endorsement of the referral to the disciplinary counsel does not bode well for this attorney’s future.

Keywords: litigation, appellate practice, error, contempt, new argument, briefing, finality, attorney discipline

Tom Donlon is counsel with Robinson+Cole LLP in Stamford, Connecticut. A former cochair of the Committee, Tom continues to serve as a vice-chair.

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).