December 07, 2017 Articles

Silly Lawyer Tricks X

Even an appeal on a hot-button issue with substantial public interest can be sabotaged by failure to follow basic appellate requirements.

By Tom Donlon – December 7, 2017

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

James v. Albert Einstein Med. Ctr., 2017 Pa Super. 293 (Pa. Super. Ct. Sept. 12, 2017)

An appellate court may criticize an attorney for procedural mistakes or for stylistic ones. When a court does both, the attorney and the client are in real trouble.

This appeal arose from a defense verdict in a medical malpractice case, involving a claim of failing to properly diagnose a deadly cancer. The court’s decision began by noting that, “at seventy-eight pages, Appellant’s brief is more than two and a half times” the safe-harbor length allowed by the rules. Id. at *1. Although counsel certified that the brief was “twenty-nine words less than the specified limit,” the court’s own “independent examination” confirmed that counsel “misstated the count by over 4500 words,” resulting in a “brief about a third longer than the maximum permissible length, without permission.” Id.

The court pointed out that it could have issued an order to show cause and rejected the brief as a sanction but, based on judicial economy, elected not to do so. Then, having highlighted counsel’s failure to abide by the rules of appellate procedure, the decision went on to criticize his writing before delivering the final rejection based on the substance of his arguments.

The opinion stated that “[w]hile the brief is excessively rambling, and could have benefited from more careful editing, nothing in the record suggests that reworking the existing materials would furnish any proper basis to disturb the jury’s verdict.” Id. at *2. Rather than burden appellees’ counsel with another round of briefing “and merely delay the inevitable,” the court chose to “review Appellant’s non-compliant brief on the merits, despite the obvious procedural defects.” Id. While counsel momentarily might have thought he dodged a bullet, the decision proceeded to methodically reject each of appellant’s arguments and affirmed the decision below.

Not only did this counsel submit a brief that violated the rules and was poorly written, but the arguments were unpersuasive as well—a trifecta in the loss column.

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