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Silly Lawyer Tricks XXXIV

Thomas J Donlon

Silly Lawyer Tricks XXXIV
Noppawat Tom Charoensinphon via Getty Images

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

Al-Qarqani v. Chevron Corp., No. 19-17074, slip op. (9th Cir. June 26, 2023)

This is a short opinion, but it packs in a lot of information (particularly when the rest of the docket is viewed). The case began as an arbitration in Egypt. In 2021, the U.S. Court of Appeals for the Ninth Circuit ruled that the arbitration award was not enforceable in the United States. See Al-Qarqani v. Chevron, 8 F.4th 1018 (9th Cir. 2021), cert. denied, 143 S. Ct. 62 (2022). While the case was before the Ninth Circuit, appellants’ counsel filed a motion to attach a supplemental exhibit—a supposed article from the Saudi Sun. Al-Qarqani, No. 19-17074, slip op. at 1.

In response, appellees’ counsel informed the court that there was no indication that the Saudi Sun even exists and raised the question of whether the document was prepared by the appellants’ counsel as a fraud on the court. On the same date as the court issued the decision on arbitration enforcement, the court issued an order for appellants’ counsel to show cause why sanctions should not be imposed, “finding the article to be suspicious—and apparently ‘fabricated for the purposes of this litigation.’” Id. After reviewing counsel’s response, the panel appointed a special master to “determine the legitimacy of the article” and to consider what sanctions, if any, should be imposed on appellants’ counsel. Id.

The special master held a hearing, “at which [appellants’ counsel] did not appear,” and concluded that counsel fabricated the article “with the intent to mislead the court” and “perpetrated a fraud on the court.” Id. at 2. The special master recommended that sanctions be imposed and that the matter be referred to counsel’s state bar.

The Ninth Circuit, rejecting counsel’s procedural and substantive objections, ordered counsel to pay Chevron’s attorney fees and remanded the matter to the district court to determine the amount. The court of appeals also directed the clerk to transmit the order, as well as the special master’s report and recommendation, to the state bar for possible disciplinary proceedings. In January 2024, the district court determined that counsel should pay fees of $251,000 and $17,000 in costs.

The initial violation—fabricating evidence—was egregious enough. As the Ninth Circuit docket reveals, however, counsel exacerbated the situation after discovery of the fabricated article. Counsel claimed that the “article” was only supposed to be a demonstrative exhibit. He also contested the court of appeals’ jurisdiction to deal with an attorney’s conduct after the mandate issued—and, worse, accused the chief judge and the special master of ethical violations. Counsel then attempted to excuse his refusal to appear for the hearing under the state ethics provision against assisting a violation of the rules of judicial conduct.

Counsel’s conduct throughout clearly showed that he was not going to be deterred. Others, however, can still learn from this (although the attorney’s initial misconduct was so extreme that it is unlikely to be repeated).

Smith v. Sch. Bd. of Concordia Par., 88 F.4th 588 (5th Cir. 2023)

This case teaches the hard lesson that the rules pertaining to forfeiture of arguments on appeal are not—as this appellant claimed—“nothing more than technical sophistry.” Id. at 596.

A charter school in Louisiana had entered a consent order with the school board and the United States to comply with a 50-year-old desegregation order. In 2017, the charter school operator, Delta, sought to modify the consent order to eliminate the requirement to give highest preference to Black students. The district court denied the request, rejecting Delta’s last-minute claim that the order was unconstitutional based on a 2007 U.S. Supreme Court case. The district court’s ruling was affirmed by the U.S. Court of Appeals for the Fifth Circuit. See Smith v. Sch. Bd., 906 F.3d 327 (5th Cir. 2018). This led to a 2018 consent order, which continued the racial preference in admissions.

Four years later, Delta sought to modify the 2018 consent order, citing the same 2007 U.S. Supreme Court decision. The district court again refused, and Delta appealed. 88 F.4th at 593. During briefing on this second appeal, the U.S. Supreme Court decided Students for Fair Admissions v. President & Fellows of Harvard College, 600 U.S. 181 (2023), striking down race-based admissions. The Fifth Circuit requested supplemental briefing on the Harvard decision’s effect. 88 F.4th at 593.

In ruling on Delta’s second appeal, the court observed, “We begin, and end, this appeal by considering whether Delta has even preserved any argument” relied upon. Id. at 594. The Fifth Court pointed out that a party forfeits an argument by failing to brief it adequately. Delta’s “opening brief barely address[ed] the district court’s analysis and wholly neglected to ‘explain how it erred.’” Id. Further, while the district court held that Delta did not demonstrate a change in the fact or the law, Delta failed to argue any changed facts in its opening brief (and any mention of that in reply or supplemental briefing would still forfeit the argument). Delta “likewise forfeited any argument that the district court abused its discretion by failing to consider a significant change in the law” because it relied on the prior 2007 U.S. Supreme Court decision. At oral argument, Delta’s counsel stated that the 2023 Harvard decision did not change, but merely clarified, the 2007 decision. Although “there are a handful of related grounds for modification, . . . Delta has forfeited all of those, too.” Id.

Delta attempted to avoid the “technical” forfeiture rules by asking the court to ignore the Rule 60 standard. The court refused, noting that “[o]ur authority is not so freewheeling.” Rather, the court said, forfeiture rules “bind us and all parties alike. We cannot grant special absolutions. . . .” Id. at 596. Because Delta had forfeited all arguments against the district court’s decision, the Fifth Circuit affirmed without ever reaching the merits.

Some may think that forfeiture and waiver on appeal are harsh remedies. Nonetheless, appellate courts will enforce them. Also, appellate advocates must be careful what they concede at oral argument. Often, a decision will rely on oral concessions—to the advocates’ dismay and detriment.

Uyanik v. Wawanesa Gen. Ins. Co., No. 22-16685, slip op. (9th Cir. Nov. 30, 2023)

This is another case where an attorney was sanctioned by the court of appeals.

The appellant claimed that an insurance company breached its contract by failing to cover diminution of vehicle value and loss of vehicle use. The appellant contended that such “exclusions are void and unenforceable under California law as against public policy.” Id. at 2. The Ninth Circuit held that these claims were grounded in “plainly incorrect” statements of California law. As for the appellant’s claims of fraud, they were conclusory and did not meet the heightened pleading standard. Similarly, the appellant’s claims under the California Consumers Legal Remedies Act failed to state a claim because insurance does not fall within the act.

Having quickly disposed of the merits, the Ninth Circuit turned to the question of sanctions for a frivolous appeal. This did not require much analysis either. The decision notes that appellant’s counsel had filed multiple cases raising identical claims on appeal and that “we explicitly rejected the same statutory claims based on virtually the same facts and legal theories asserted here.” Id. at 5 (citing Tufano v. State Farm Mut. Ins. Co., 854 F. App’x 134, 136–37 (9th Cir. 2021)).

The court awarded sanctions against appellate’s counsel—but not his client—because counsel “should have known that the legal claims and arguments that he asserted were frivolous based on the prior cases he has handled.” Id. at 5.

We all reuse arguments at various times, even after a loss or two at trial. Some attorneys even use this approach in an attempt to build a niche practice. Once you have lost an appeal, however, it is time to find a new niche. Otherwise, you could be joining counsel here by reaching for your checkbook or credit card.