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Silly Lawyer Tricks XXV

Thomas J Donlon

Silly Lawyer Tricks XXV
Dann Tardif via Getty Images

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

Frank v. Good Samaritan Hosp. of Cincinnati, 848 F. App’x 191 (6th Cir. 2021)

This is an appeal that went bad from the start—and only got worse for the attorney.

The case began as a medical malpractice action, seeking class-action status, claiming the hospital had a duty to retain medical records for a minor until age 21. The trial court denied class certification and granted judgment under Federal Rule of Civil Procedure 54(b) against the plaintiff’s claim of negligent destruction of medical records. See Frank v. Good Samaritan Hosp., 2019 WL 6877647 (S.D. Ohio Dec. 17, 2019). Plaintiff’s counsel took an immediate appeal.

The appeal was initially dismissed for failure to pay the filing fee. See Frank v. Good Samaritan Hosp., 2020 WL 1488767 (6th Cir. Jan. 24, 2020). Plaintiff’s counsel moved to reinstate the appeal, claiming to have paid the fee. However, that motion was denied because the district clerk had been unable to process the claimed payment. Three months later, counsel again moved to reinstate the appeal, having finally paid the fee. Over the hospital’s objection, the appeal was reinstated six months after initially filed. After five motions for extension of time, plaintiff’s counsel filed his principal (and only) brief in November 2020.

After canceling oral argument, the Sixth Circuit issued a one-paragraph opinion denying the appeal because counsel “failed to make any argument that Ohio recognizes such a tort [of negligent destruction of medical records].” See Frank v. Good Samaritan Hosp., 843 F. App’x 781 (6th Cir. 2020). The court stated the “striking legal emptiness of his brief means he abandoned the argument and forfeited his appeal.” Id.

The hospital then moved for attorney fees as a sanction for filing a frivolous appeal. The Sixth Circuit granted the sanctions request, noting that “[w]hen an attorney files a brief that is largely devoted to frivolous argumentation, one that waste[s] our time and his adversary’s money, we may sanction him. . . .” 848 F. App’x at 191 (quoting Waldman v. Stone, 854 F.3d 853, 855 (6th Cir. 2017)). Referencing its comment concerning “legal emptiness” in denying the appeal on the merits, the court observed that the appellant’s brief “provides fifteen pages of argument that have no bearing whatsoever” on the issue on appeal. Id. As further evidence that the appeal was frivolous, the court pointed out that counsel had failed to file a reply brief after the hospital had “presented a compelling argument that [appellant] had forfeited the sole issue on appeal by failing to argue it below.” Id. Counsel’s “conduct fell short of the obligations owed by a member of the bar,” so the court granted the motion for sanctions. Id. at 192 (quoting Saenz v. Kohl’s Dep’t Stores, 834 F. App’x 153, 158–59 (6th Cir. 2020)).

Counsel was not done, however. He submitted a motion to reconsider the sanctions order. Counsel claimed that in fall 2020, he had primary responsibility for his 96-year-old mother, who was diagnosed with COVID-19 and died in late November 2020, contemporaneously with the filing of his brief. See Case No. 19-4262, Doc. No. 58-1 (6th Cir. 2021). Counsel apologized for the quality of his performance but contended it was the result of these personal matters. Id. The Sixth Circuit denied this Hail Mary effort. Id. at Doc. No. 61-2.

Conboy v. U.S. Small Bus. Admin., 992 F.3d 153 (3d Cir. 2021)

This is a case that demonstrates modern technology can be a sword as well as a shield.

The appellant plaintiffs first made a bad investment and compounded it with a bad lawsuit. After defaulting on a Small Business Administration (SBA) loan, the borrowers sued the SBA and the assignee for collection in state court. The defendants removed the case to federal court, which granted summary judgment to the defendants but denied the assignee’s motion for sanctions. Id. at 156.

The borrowers then appealed. The court of appeals noticed something unusual in their brief—references to the jurisdiction and venue in the district court. Id. at 157. Then, in the argument section, the brief asserted that “summary judgment should be denied.” Id. There followed 15 pages that did not address any error by the district court. Id. The appellate court decision noted, “This left us with the suspicion that something was amiss with counsel’s brief.” Id. After investigation, the court’s suspicions were confirmed: counsel had simply copied, with minor changes, the argument from his opposition to summary judgment in the district court.

The interesting point is how the court confirmed its suspicions. It ran an electronic comparison of the appellants’ brief with their brief in the district court and created a redline showing that they were effectively identical. The court of appeals then attached both the appellants’ brief in the district court and the redline as appendices to the published decisions. Id. at 159.

Counsel compounded his mistake. The assignee had moved for sanctions on appeal under Federal Rule of Civil Procedure 38. Counsel’s response was “yet another cut and paste job,” copying its response to the sanctions motion below. Id. at 158. The assignee had sought sanctions below under a different Federal Rule of Civil Procedure provision, however. Even though the court of appeals held that the district court did not abuse its discretion in denying sanctions, it granted sanctions on appeal. The court concluded that “[i]t’s not easy to become a lawyer . . . and even the best lawyers make mistakes from time to time.” Id. at 158. “But the copy-and-paste jobs before us reflect a dereliction of duty, not an honest mistake.” Id.

Modern computers and word processing make it much easier to reuse prior work. They also offer tools to catch those who are improperly cutting corners.

Newcomb v. Wyndham Vacation Ownership, 999 F.3d 1134 (8th Cir. 2021)

Originality in appellate briefing is a good thing—but an advocate can go too far.

Here, counsel represented individuals in Missouri who were seeking to exit their time-shares and sued the time-share company in state court alleging fraud. The time-share owner then sued the plaintiffs’ attorneys in Florida federal court alleging tortious conduct. The Missouri attorneys responded by suing the time-share owner and its Missouri process server in state court for abuse of process. The time-share company removed that action to Missouri federal court, claiming fraudulent joinder, and moved to dismiss. The federal district court granted dismissal, and the attorneys appealed. Id. at 1135–36.

The Eighth Circuit did not have to unravel this complicated procedural web. On appeal, the issue was reduced to this: Did the appellant attorneys meet the basic jurisdictional requirement of a proper notice of appeal? The court of appeals decision repeated verbatim the text of the attorneys’ notice:

Notice is hereby given that W. Todd Newcomb, plaintiff in the above-named case, hereby appeals to the United States Court of Appeals for the Southern District of Missouri from an order dismissing the case entered in this action on the 27th day of September, 2019.

Id. at 1137. The court found the notice “entirely deficient,” pointing out it “appeal[s] an order entered on a day when no order issued, from a district court that does not exist, to a court of appeals that does not exist.” Id. The Eighth Circuit concluded that the “complete failure by parties who are engaged in multi-state litigation to comply with multiple essential elements of [Federal Rule of Civil Procedure 3] . . . is an absolute bar to appeal.” Id. at 1138. In a footnote, the decision added that the appellants filed their brief out of time, so the court did not consider “what they might otherwise add to this inquiry.” Id. at 1137 n.2.

If you do not get step one—the notice of appeal—correct, your appeal has no chance.

Robb v. Conn. Bd. of Veterinary Med., 204 Conn. App. 595 (Conn. App. Ct. 2021)

Appellate courts across the country commonly require an issue to be adequately briefed before it will be considered. Here, failure to comply with that requirement had serious consequences.

This case arose out of a state board’s administrative discipline of a veterinarian who made a practice of giving small dogs only one-half the dose of a rabies vaccine prescribed by regulation. The veterinarian argued that giving a full dose to dogs weighing less than 50 pounds increased their risk of injury. Id. at 609. While the court considered the statutory and regulatory requirements, it declined to consider other claims “because plaintiff has failed to brief them adequately.” Id. at 611. The court pointed out that the appellant sought to incorporate in his brief the 66-page verified complaint as “the foundational document upon which [his] brief is built.” Id. at 612. The court rejected this attempt to circumvent the page limit on the appellant’s brief and rejected the underlying legal claims as not independently and adequately briefed. Id.

Similarly, the court refused to review two other arguments where the appellant “provided no substantial legal analysis or citation to legal authority in his principal appellate brief to support [his] claim.” Id. at 613. Further, the court rejected the appellant’s attempt to remedy this failure in his reply brief, stating that an appellant “cannot use his reply brief to resurrect a claim that he has abandoned by failing to adequately brief in his principal appellate brief.” Id. at 613 n.23.

Appellate advocates are constantly advised to limit the number of issues in briefs. Attempting to fit in those that do not make the cut by merely mentioning them without full argument and analysis is not a solution to that problem.