March 04, 2016 Articles

Silly Lawyer Tricks III

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

This is the latest in our continuing series reporting on real mistakes made in appeals by real lawyers. Similar examples probably appear in your local jurisdictions. If you are aware of any such cases, please send them in so we can share them with the rest of the committee.

We Care Transportation v. Branch Banking & Trust Co., 2015 Ga. App. LEXIS 638 (Nov. 5, 2015)
In this case, the appellate court was concerned not only with procedural errors but also with attorney misconduct that merited sanctions. The appeal arose from the grant of summary judgment to a lender in a foreclosure action. The appellate court pointed out that although the appellant received an extension of time to file its brief, it failed to meet the new deadline and filed only when the appellees moved to dismiss the appeal. Even then, the appellant’s brief did not comply with several of the court’s rules, including required citations to the record and setting out proper standards of review. Id. at *5. Beyond these procedural failings, however, the court was concerned with the “utterly frivolous” nature of the substantive arguments. Id. at *10.

Nor was this a one-time misstep. The court observed that appellate counsel “has repeatedly engaged in similar misconduct in his representation of other clients,” asserting “the same meritless arguments and commit[ing]the same procedural defaults.” Id. at *11. The opinion notes that counsel had filed more than 65 cases that year, nearly a third of which were dismissed, as were most of his petitions for discretionary appeals. The court tellingly pointed out that these particular appellants’ claims may have had some merit, “just as it may be that other appeals filed by [counsel] on behalf of other clients have some merits,” but that counsel failed to convey any such merit within the framework of the court’s rules. Id. at *13. After awarding sanctions against the lawyer—but not his clients—the court noted that counsel had 17 other appeals pending and he “would be well advised to diligently and expeditiously examine them to determine if they are similarly frivolous.” Id. at *14.


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