Effective Appellate Advocacy - NOT!

One of my colleagues on the California Court of Appeals was kind enough to give me a heads up on this opinion released this past Friday.

To say that the panel of judges who heard this case are upset with the level of appellate advocacy by the appellant's attorney would be an understatement. To give you a flavor for the reasons why, here is how the opinion opens:

This is an appeal run amok. Not only does the appeal lack merit, the opening brief is a textbook example of what an appellate brief should not be.

In 76,235 words, rambling and ranting over the opening brief’s 202 pages, appellant’s counsel has managed to violate rules of court; ignore standards of review; misrepresent the record; base arguments on matters not in the record on appeal; fail to support arguments with any meaningful analysis and citation to authority; raise an
issue that is not cognizable in an appeal by her client; unjustly challenge the integrity of the opposing party; make a contemptuous attack on the trial judge; and present claims of error in other ways that are contrary to common sense notions of effective appellate advocacy....

In these days of "pit bull" advocacy (both at the trial and appellate levels), some may not understand what the fuss is over. Some might say this is just an example of a lawyer zealously representing a client. To answer any who feel this way, I cannot improve upon the reasons given by Justice Scotland in this opinion:

These comments are harsh but deservedly so. An opening brief like the one filed in this case has many consequences. For starters, it undoubtedly is costly to the client to file such a brief that is long on words but short on substance. And by attacking the integrity of individuals involved in this case, the brief in effect falsely tells the client that she has been the victim of a grave injustice perpetrated by a corrupt system. In reviewing the case, this court will be able to see through such hyperbole. But having heard the message from her counsel, the client might give up on the system and not take the steps necessary to be able to reunify with her daughter. There also is a cost to those who have been so personally attacked by the brief. Everyone who toils in the juvenile courts recognizes that dependency proceedings often involve difficult and contentious matters pertaining to family relationships, and that emotions can run high. However, this does not mean they all have developed such thick skins that unjustified personal attacks against them create no harm. Certainly, portraying appellant’s developmentally disabled daughter in such a cruel way undermines, rather than advances, appellant’s relationship with her daughter, when a positive relationship is necessary to achieve appellant’s goal of reunification with her.

Another cost of the opening brief in this case is the need for respondent to file its own oversized brief, at undoubtedly great cost, to respond to every argument and show why, in the words of respondent’s counsel, the opening brief “misstates the facts or
includes facts not in the record, misstates the law, and/or fails to prove the claims made in [the opening brief].” In addition, the nature of the opening brief has caused this court to spend more time than it would have taken if the brief had not been so overwrought and over the top.

Amen.

How would you like to explain that opinion to your client? The world's longest brief might get you into the Guinness Book of World Records but it won't help your client and having your name forever linked to an opinion like this, for all the world and generations of lawyers to come to see, is definitely not my idea of a sound career move. I'm glad to see more appellate courts trying to both educate lawyers who really should know better and at the same time, nip this kind of unprofessional conduct in the bud.