August 28, 2018 Articles

Silly Lawyer Tricks XIII

There are mistakes, and then there are really big mistakes.

By Tom Donlon – August 28, 2018

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

Indep. Bank v. Baarstad, No. 2-170496, 2018 IL App. Unpub. LEXIS 592 (Ill. App. Ct., 2d Dist. Apr. 9, 2018)
There are mistakes, and then there are really big mistakes. The ones in this case led to an entire brief being struck—and the reversal of a win at the trial court.

A debtor appealed the trial court’s decision that his IRA account had lost its exempt status due to allegedly disqualified withdrawals. In the debtor’s appeal, the bank filed an appellee’s brief “replete with procedural errors that we cannot possibly overlook” (id. at *3, ¶ 16) and that failed “to comply in the most basic sense to the substantive requirement” of the state supreme court rules. Id. at *5, ¶ 21.

The brief begins by incorporating by reference all of the bank’s written and oral submissions to the trial court “as if the same were argued herein verbatim.” Id. at *3, ¶ 15. The court’s decision noted that this would result in 122 additional pages of argument, which would circumvent the rule limiting briefs to 50 pages and result in “a vague and unacceptable effort to address the issues below without making cogent legal arguments with citations to authority.” Id. at *4, ¶ 18.

In addition, the bank’s statement of facts was improper. The court said this 19-page section was “argumentative, misrepresents facts from the record, offers facts irrelevant to the issues on appeal, and provides citations to the record that do not support the facts as stated.” Id. Thus, the statement of facts “does nothing to aid this court in our effort to properly address the merits of the appeal.” Id.

While these mistakes might have been enough to warrant striking the brief, the court found that “[t]here are additional deficiencies in [the bank’s] brief, which include failing to “articulate a cogent legal argument that is responsive to the issues” raised by the appellant, failing to mention any of the applicable statutes, and citing “no relevant legal authority in its argument section.” Id. at *4, ¶ 19.

The court noted that “Supreme Court rules are not aspirational suggestions, but requirements that carry the force of law.” Id. at *4, ¶ 20. While its decision to strike the brief was “a harsh sanction,” the court stated that the bank’s “lack of compliance here actually hinders our review of the issues.” Id.

Recognizing that “there is now effectively no appellee’s brief,” the court proceeded to review the debtor’s arguments. Id. at *5, ¶ 22. Finding that the debtor presented a prima facie case for reversible error on the merits, the court reversed the trial court’s decision in the bank’s favor.

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