While experts debate the impact and value of oral argument, there is no dispute that for many courts it remains a significant part of the appellate process. It is wise, therefore, for the advocate to prepare—or at least show up.
In this case, the appellants’ counsel was publicly reprimanded for failure to do just that. On a Monday morning, “[w]hen the appeal of this case was called for oral argument . . . [counsel] did not appear.” The court ordered counsel to show cause why she should not be disciplined. In response, counsel replied that because the case settled the Friday before argument, she relied on opposing counsel to inform the court. “[S]he then chastise[d] opposing counsel for what she calls an inaccurate statement about how the settlement handles appellate costs and fees.”
In fact, appellants’ counsel was far more responsible than her self-righteous attempt to shift the blame to her opponent would indicate. On the Friday afternoon before the argument, she called the Seventh Circuit to say that the case settled and asked that oral argument be canceled. The clerk’s office responded that unless a motion to dismiss was filed—and granted—argument would proceed. After the close of business Friday, counsel filed a motion, not joined by opposing counsel and not specifying how costs were to be resolved, as Seventh Circuit procedures required. As the motion was both late and incomplete, it was not granted over the weekend. Her failure to appear the next Monday, the court noted, “frustrated” its ability to inquire as to the terms of the agreement, including the allocation of costs.
The court of appeals rejected counsel’s response that once the case settled, she was “free to rely on the other side’s lawyer to explain matters to the court.” As the opinion pointed out, “it is the court’s power, not that of counsel, to decide when a case requires argument.” While many courts might be happy that the parties agreed to settle before oral argument or even if parties want to waive argument, counsel should not presume to make that call.
In this case, counsel made the right choice to call the clerk to ask but made the wrong choice by not following the clerk’s advice.
This sanction decision resulted not from an attorney’s failure to show up for oral argument, but from the unwelcome appearance of too many.
When the Federal Circuit returned from COVID closure to in-person oral argument, it instituted strict limits on participants. Under the court’s protocols, only the arguing counsel and one other person (second-chair attorney, client, or paralegal) were permitted access to the courthouse. Each attorney on entering had to execute a form saying that she or he was scheduled for arguments and was either vaccinated or had a negative COVID test within the previous 48 hours. A separate form required a declaration by arguing counsel that she or he was responsible for ensuring that all accompanying persons had read and complied with the protocols—and that failure to do so could subject the attorney to discipline.
A junior partner was scheduled to argue an appeal. A more senior partner and special counsel wished to attend and observe. A few days before the argument, they filed a motion asking for permission for two additional counsel to attend. That motion was denied.
Nevertheless, on the day of argument, the arguing junior partner and an associate designated as second chair appeared—accompanied by the senior partner and special counsel. All four signed the required form and entered the courtroom, where the nonarguing partner and counsel took seats in the back. Shortly thereafter, the clerk summoned the two and informed them they could not be present. Eventually, they were escorted out of the building.
The Seventh Circuit issued a show-cause order for three attorneys to explain their conduct—the two who sat in the back as well as arguing counsel, who the protocols said was responsible for everyone’s compliance. In response, the attorneys argued that their violation of the protocols was not intentional as they came to court to seek clarification and permission to attend the argument.
The court held that there was no ambiguity in the protocols, which the very form that the attorneys signed reinforced. Further, and “more troubling” to the court, was the fact that the attorneys’ request to exceed the two-person limit was denied only two days prior. The court dismissed as unreasonable the attorneys’ claim that they were only seeking permission.
However, the attorneys escaped punishment because they “expressed earnest remorse, have not previously been accused of misconduct, and because this situation has not arisen before.” The court’s decision added, however, that “the bar is on notice that this court takes compliance with these protocols very seriously and that sanctions will likely be imposed if a future violation of the protocols takes place.”
The three attorneys were very lucky that the court was so generous in letting them off the hook. This was not a mistake or casual violation. Not only had they filed a motion showing they knew the protocol limitations, but they had to sign the form acknowledging the protocols upon arrival. The court could have, and perhaps should have, imposed some penalty.
An advocate who actually appears for oral argument, and who does not violate the court’s rules on access, should be prepared to answer the court’s questions—which is the purpose of oral argument.
This decision on its face resolves the legal issue of whether a part-time public defender for misdemeanor cases qualifies as a “public official” under New York Times v. Sullivan. The learning experience, though, is what happened at oral argument. Unlike some prior cases, the Georgia Supreme Court’s decision in American Civil Liberties Union v. Zeh did not discuss what happened. Courtesy of the court’s posting of its oral arguments, however, we know. Oral Argument Video, Am. Civ. Liberties Union v. Zeh, Video No. S20G1473 (Aug. 24, 2021).
Zeh, the public defender, had brought a defamation case against the American Civil Liberties Union for a blog post calling him “crooked.” In the trial court and before the court of appeals, Zeh had avoided dismissal under Georgia’s anti-SLAPP statute. Counsel was defending those decisions before the Georgia Supreme Court, which was plainly concerned with the constitutional limits on defamation, when he rose to speak. Counsel’s first statement signaled trouble ahead: “I have not felt this inadequate to make an argument since . . .” Id. at 17:14. The chief justice responded that counsel has “more than once” said he was “not fully prepared to argue.” Id. at 17:42, 17:44.
Counsel’s argument went downhill from there. Replying to questions about whether plaintiff Zeh set policies for public defense in the jurisdiction, counsel was forced to admit his answer was “a guess.” Id. at 20:01. Confronted by another hypothetical, counsel said, “I don’t know the answer to that. So you can chastise me for not knowing the answer.” Id. at 22:15. Later, counsel said, “I am not answering your questions that well,” confessing, “I can’t keep up with you on this stuff.” Id. at 35:14. Counsel concluded his argument by recognizing what he should have known before it began—that in the future “I am going to get somebody to argue appellate stuff that does better than me.” Id. at 36:26.
One can imagine a number of courts outside of Georgia where that would not have been the end of this story. Perhaps if more clients were exposed to the Zeh video, they would appreciate the need for retaining an appellate specialist.
Finally, a case that did not involve oral argument—because counsel never got that far. The panel deciding the appeal did not even need to hear argument before slamming the door on this attorney.
The Department of Justice (DOJ) sued a company for fraud based on the conduct of Patel, the officer/shareholder of the company’s merger partner. Patel was in a “rent-a-vet” scheme, using a disabled veteran as a front man to get government set-aside contracts. After the company settled with the DOJ, it sued Patel in California federal court. Patel’s counsel successfully got the case dismissed on the basis of an arbitration clause in the merger agreement (so far, so good).
The company then filed a demand for arbitration with the American Arbitration Association in Delaware, as the merger agreement specified. Reversing course 180 degrees, counsel now argued—and convinced the arbitrator—that the company’s claims were not covered by the arbitration agreement.
“Twice foiled,” the company filed a new action in Delaware federal district court seeking to compel arbitration. When counsel moved to dismiss that case, again arguing the claims were not subject to arbitration, the company sought Rule 11 sanctions. The district court agreed and first ordered the counsel and client separately to pay reasonable attorney fees and costs. When counsel contested the fees, the district court entered a second order setting the fees and costs at $89,776.62.
Counsel appealed. The problem was that he filed a notice of appeal of the first order before the second order was issued. He did not file another notice of appeal of the second order. Under Third Circuit jurisprudence, a sanctions order is not final and appealable until after the amount has been set. Without a final order, there was no jurisdiction. Counsel argued that exceptions applied, including Federal Rule of Appellate Procedure 4(a)(2), which deals with notice of appeal after decision but prior to entry of judgment. However, the court of appeals noted that the U.S. Supreme Court had previously held that Federal Rule of Appellate Procedure 4(a)(2) does not apply to a Rule 11 sanctions order. The Third Circuit held that no exceptions applied and dismissed the appeal, leaving the sanctions award in place.
Counsel’s attempts to manipulate the system finally caught up with him. It is poetic justice that a failure to understand and follow the procedural requirements on appeal sealed his fate for trying to skate around procedural rules below.
This is the latest column in our continuing series on real mistakes and misdeeds by real lawyers in cases on appeal.
