December 19, 2019 Articles

Silly Lawyer Tricks XVIII

Failing to follow procedural requirements for a brief can torpedo an entire appeal.

By Tom Donlon

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

Callahan & Blaine v. Volger, 2019 WL 3311722 (Cal. Ct. App. 4th Dist. July 24, 2019) (unpublished)

This case offers an abject lesson on the potential consequences of forgoing a reply brief. Silence may mean concession to the appellate court.

The case involved a contract dispute for failure to pay attorney fees and costs owed. A law firm originally represented an insured in a suit against its insurer for water damage. After litigating the case for over a year, the firm withdrew due to a conflict of interest. The insured acknowledged a debt of $114,000 for fees and costs, and the firm filed a notice of lien. Under successor counsel, the case settled for $1.5 million. To obtain a release of the firm’s lien, which the insurance company required, the insured and successor counsel entered into an agreement to pay the original law firm $82,000 from the insurance settlement. When successor counsel later refused to pay, the firm sued for breach of contract. The trial court awarded summary judgment to the firm.

On appeal, successor counsel argued that the trial court erred both procedurally and substantively. The appeals court pointed out that successor counsel had failed to file a reply brief to address the original law firm’s arguments. The court noted that “although deciding not to file a reply brief is not, in and of itself, an admission, we take [the] election to not file a reply under these circumstances, as a concession of [the firm’s] counterargument. . . .” Id. at *4.

The appeals court analyzed the substantive elements of the breach of contract claim. At each step, the court repeated that the failure to file a reply constituted a concession as to that element. See id. at *5, *7, *8. In addition, the court pointed out that successor counsel had failed to cite any legal authority for the arguments in the initial brief and had made new arguments not raised at trial, which “should not be considered on appeal.” Id. at *7.

Finally, the court criticized, as “trying to be clever,” successor counsel’s argument that “because he didn’t pay as promised, [plaintiff] was not damaged.” Counsel contended that because the lien would only have been extinguished by payment, the failure to pay meant that the firm still had the lien. Id. at *8. Not only was this argument ridiculed and rejected, the court pointed out that in the absence of a reply brief, successor counsel offered no answer to the firm’s argument that it obviously was damaged in the amount of $82,000. This and other arguments by successor counsel in the initial brief proved not clever enough to outweigh the lack of a reply.

Davis v. Detroit Downtown Redev. Auth., — F. App’x —, 2019 WL 3543170 (6th Cir. Aug. 5, 2019) (unpublished)

This case involves a common mistake—appellate counsel’s reliance on conclusions and attacks without supporting legal arguments. Failure to actually make arguments—especially in the context of legally irrelevant attacks—risks raising the court’s wrath.

The initial case involved two residents who sued to stop taxpayer funding of a new arena in Detroit for the NBA Pistons. Although the residents dropped their suit within a month, their attorney’s conduct had already triggered two sanctions motions. The first involved the attorney’s motion to strike a defendant’s response to a temporary restraining order (TRO) request, based on the claim that the filing exceeded the page limit. However, the attorney had incorrectly counted the cover page, table of contents, and table of authorities, which were excluded under the court rules. Second, after the complaint was dismissed, the defendants sought separate sanctions for filing a frivolous lawsuit. The district court granted both sanctions requests in part. Id. at *1.

The attorney’s appeal resulted in more criticism. The appeals court pointed out that, rather than offering reasons why the court should reverse, the brief only supplied conclusions. The attorney contended that the lawsuit was not frivolous, “[y]et he never tells us why that’s so.” Id. at *2 (emphasis in original). The attorney argued that the district court incorrectly allowed recovery for fees incurred in other defense filings, but, again, “he never explains why the district court erred. . . .” Id. (emphasis in original).

The court went on to observe that the attorney “quickly runs out of conclusions, so he shifts to misrepresentations,” including once against miscounting the pages in the defendant’s papers, the “very type of misrepresentation that the district court sanctioned [him] for making.” Id.

The court concluded that the “appeal, then, is full of legally meaningless attacks and diversions. . . . A party may not present a skeletal argument, leaving the court to put flesh on its bones, . . . and here [he] has not presented any argument at all—much less a skeletal one.” Id. at *3 (citations omitted).

E.A. & J.A. v. Gardner, 929 F.3d 922 (7th Cir. 2019)

This case showcases the old adage that an attorney who represents himself—in this case, a father in claims arising out of a custody battle—has a fool for a client.

 An attorney father, appearing pro se, brought a section 1983 action against the court-appointed psychologist who had recommended against him in three prior state court custody actions. The district court dismissed the case for lack of jurisdiction because any alleged constitutional violations were the result of state court orders, not actions of the psychologist.

In addressing jurisdiction on appeal, the attorney father contended that the psychologist had no standing, arguing instead that the state should be defending the appeal. The court of appeals pointed out that the state was never sued—and cannot be sued under section 1983 as that type of action is only possible against state officials in their personal capacity. Id. at 925. Thus, the father’s “argument amounts to an admission that he has sued the wrong party,” which alone was enough to sustain the district court.

The court concluded that “[t]his is abusive litigation” as the father “concedes—indeed he trumpets—that he sued someone who he knows is not responsible. . . .” Id. at 926. The court ordered the father to show cause why he, as an attorney, should not be sanctioned, and to pay attorney fees. In addition, the court sent a copy of the opinion to the bar to determine whether the attorney father’s “misuse of the legal process calls into question his fitness to practice law.” Id.

Hernandez v. First Student, 37 Cal. App. 5th 270 (Cal. Ct. App. 2d Dist. 2019)

This case is an example of how failing to follow procedural requirements for a brief can torpedo an entire appeal.

The case involved the death of a young boy who was struck by a school bus while riding his bicycle. Much of the trial focused on whether the bus driver was impaired by the prescription medication that she was taking. Both the driver and the deceased were found negligent. The damages portion of the bifurcated trial revealed evidence of his mother’s drug abuse, incarceration, and immigration status. The jury ultimately awarded the estranged parents $250,000. The trial court subsequently denied the parents’ motion for a new trial.

On appeal, the parents argued that evidentiary errors and misconduct by the defense counsel warranted a new trial. At the outset, the appeals court highlighted the critical errors in the parents’ argument. They did not “cite to or quote the trial court’s written ruling on their motion [for a new trial] or explain why the trial court abused its discretion” in ruling against them. Id. at 276. Furthermore, “[t]hey frequently provide no record or legal citations to support their claims of error.” Id. As a result, by “failing to provide adequate record citations or make any cognizable claims of error . . . , appellants have waived any challenge to the denial of their motion for a new trial.”

The court then went through each of the parents’ claims of error and, in almost every instance, ruled that the “claims are forfeited.” Id. at 278. For example, the parents raised 11 claims of evidentiary errors, and the court found that they forfeited eight of them. For the others, the court found that the trial judge did not abuse her discretion. The appeals court similarly found that the parents forfeited most of their claims of defense counsel misconduct, again by failing to provide record citations. Id. at 286–89. As to the others, the parents failed to demonstrate prejudice.

While the opinion in this case is extensive, it just repeats the same mantra for each claim of error—the claims were forfeit because the arguments were not supported by record citations and authorities.

Pierce v. Hansen Eng’g & Mach. Co., 95 Mass. App. Ct. 713, 130 N.E.3d 812 (2019)

This case involves the stark consequences that ensue when trial and appellate counsel fail to coordinate filing a notice of appeal. Under the controlling statute, an appeal must be filed within 30 days, but the trial court can grant leave to file late for “excusable neglect.” Id. at 814–15.

In an affidavit, appellate counsel claimed that he reviewed the trial record and recommended filing an appeal before departing on vacation to Thailand. He stated “that he ‘had a good faith belief and understanding that . . . trial counsel would file the Notice of Appeal’ in his absence.” Id. at 815. The trial counsel (allegedly, as trial counsel did not submit an affidavit) “had a ‘good faith belief and understanding’” that appellate counsel would file the notice. Id. In the end, neither one did.

Although the trial judge granted leave to file late, the appellate court reversed. The court relied on an earlier decision, in which a partner and an associate for local counsel each thought the other was to inform out-of-state lead counsel that the judgment had been entered. Id. at 816 (citing Shaev v. Alvord, 66 Mass. App. Ct. 910, 911 (2006)). As a result of this mix-up, lead counsel did not learn of the judgment until after the time to appeal had passed. While the trial court considered this excusable neglect, the Shaev court disagreed, saying that it was only “‘garden-variety oversight.’” Id. at 816 (quoting Shaev, 66 Mass. App. Ct. at 911). The court in Pierce likewise determined that the miscommunication between appellate counsel and trial counsel was merely “garden-variety oversight.” Id.

It may seem unusual that there are two decisions on such an issue. However, it appears that this is a recurring problem that has spawned a whole body of case law in that jurisdiction regarding “garden-variety oversight.” See, e.g., K.C.C. v. C.D., 95 Mass. App. Ct. 1109 (2019) (holding that where trial counsel and appellate counsel each assumed the other would file necessary papers, the mistake was “garden-variety oversight,” not good cause). While the involvement of an appellate specialist is often desirable, proper coordination with the trial counsel is essential everywhere—especially in Massachusetts.

Provencio v. Intel Corp., 772 F. App’x 617 (10th Cir. 2019) (unpublished)

Failure to relate an appeal to arguments raised in the trial court usually results in waiver or forfeiture of those arguments. This case recounts this common tale.

The plaintiff brought a claim of retaliation under New Mexico law. She had provided information as a witness concerning a discrimination complaint. Subsequently, she claimed that supervisors retaliated against her by reducing her responsibilities, cutting her out of new projects, and ignoring her emails. The district court granted summary judgment, ruling that she did not produce evidence that she had been constructively discharged.

On appeal, the plaintiff argued that the district court applied the wrong legal standard to determine whether she had suffered an adverse employment action. Id. at 621. However, the court of appeals pointed out that “[t]here is a problem with [the plaintiff’s] asserted legal theory: she did not present it in the district court.” Id. A review of the record showed that the defendant’s summary judgment motion argued that a certain standard applied. In her response, the plaintiff relied on the same case law as the defendant, “accepted the standard advanced by [her employer],” and argued that she met that standard. Id. (emphasis in original). The court noted that a “theory that was not raised in the district court is forfeited” because

[o]ur adversarial system endows the parties with the opportunity—and duty—to craft their own legal theories for relief in the district court. It is the significant but limited job of our appellate system to correct errors made by the district court in assessing the legal theories presented to it, not to serve as a second-shot forum where secondary, back-up theories may be mounted for the first time.

Id. at 622.

The plaintiff’s counsel attempted to cure this problem in the reply brief by arguing that the plaintiff also met the standard used by the district court. However, by then it was too late. The plaintiff’s “failure to address this issue in her opening brief deprived [her employer] of the opportunity to respond to her belated factual assertions and arguments,” and thus she forfeited that argument. Id.

Often, appellate counsel, after studying the record, will find a new approach or theory—that is why they hire us. The challenge is finding at least something in the trial record on which to hang the assertion that the issue was raised below. Some counsel skip over that step, hoping that the court will consider their argument anyway. This case demonstrates why such an approach is a bad idea.

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


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