The response to the case I linked to in this post, has been pretty impressive, both here at HOWT and around the blawgosphere generally. One post over at Appellate Law & Practice deserves a response. S. Cotus doesn't understand why California's Third District Court of Appeals is making such a fuss. He opines: "I don'’t see the reason to act insulted that someone, and perhaps their lawyer, feels quite angry, and has the nerve to ask permission to file a long brief, files a long brief (which contains rhetoric and constructions of the law, like all briefs), and loses. This happens every day."
That, of course is precisely the point. While it is true that someone has to lose in an appeal, this lawyer's lack of professionalism insured that her client would lose. And S. Cotus is right. It does happen every day and it shouldn't. Moreover, it will keep happening every day because if there is one inexorable truth about the practice of law, it is this: Lawyers will do whatever judges let them get away with. Until judges draw the line in the sand, there will be more and more lawyers out there who will push the professionalism envelope in the wrong direction.
On a related note, in response to the preceding post, I received a couple of e-mails from other appellate judges who echoed my sentiments that there was an awful lot of substandard appellate advocacy going on out there and a couple of them even supplied some pretty persuasive examples.
And so, in the event more examples may be forthcoming, I will hold off naming any "winners" of the Appellate Practice Foot-in-Mouth Award but for your edification and enlightenment - what the heck, let's not ignore the entertainment value - here are the first two nominees:
In the Really Bad Brief category, comes this entry (MS Word file) from the Aloha State.
Here is an excerpt from just before the Supreme Court of Hawaii announces that it is referring the appellant's attorney for disciplinary action:
The opening brief, which was filed in this case, is an egregious example of the substitution of rancorous rhetoric for legal and factual analysis in appellate briefs. Not only does this burden the court, but, more importantly, it is adverse to the client's interests, and we view such matters with dismay. It is sound legal and factual argument, rather than vituperative sniping, that is compelling to the court. When an attorney, in briefing the court, foregoes the former to engage in the latter, the client is deprived of an opportunity to persuade the court of the merits of his or her position.In addition to exhibiting contempt for the lower court judges, ignorance of the Rules of Court and a general lack of professionalism, the Supreme Court's opinion notes that, despite the existence of arguable precedent, the only authority counsel for appellant cites in favor of his position was this:
In exercising their power on behalf of the people and in fulfillment of their responsibilities, obligations and service to the people, ... judges of the appellate, circuit, and district courts may contemplate and reside with the life force and give consideration to the "Aloha Spirit.Help me out here. Is the "Aloha Spirit" sort of like the Common Law?
And now in the Really Bad Oral Argument category we have this little gem (mp3 file) sent to me by a colleague in Utah.
Keep those nominations coming.
4 comments:
I have read the entire 46 page opinion in the California case of In re S.C.. For many reasons, I'm having a hard time understanding the objections to the opinion posted over on the Appellate Law & Practice blawg. For example, and I'll only mention this point here, I don't find the opinion to be "somewhat vague, so it is difficult to tell what sins the lawyer commits, besides using interesting rhetoric (like calling a child with developmental disorders 'akin to broccoli.')."
The opinion demonstrates an appellate court going to a great deal of work here. It had to, and did, plumb the depths of a stupendously overlong, overwrought and vituperative brief in search of any legitimate legal and factual arguments which the author as appellate counsel might be making on behalf of her client. Although pointing out that "it is not the role of an appellate court to carry appellate counsel’s burden," slip opinion, p. 21, the court nevertheless paid careful attention to the case, involving a developmentally disabled child and allegations of rape - including combing the written record and viewing the child's videotaped statement.
This went some way to mitigate the effects on appellant of her own counsel's gross malpractice, rather than carelessly compounding it by a short decision merely affirming the trial court on the merits.
I don't think the opinion is unjustified. The main justification for lawyers to have licenses, and the privileges those licenses carry, is that we have professional skills of advocacy, beyond mere ranting.
We earn our fees because we know how to temper our passion for our client's cause with the detachment and objectivity that lets us find the best legal points in favor of our case, and combine them with the facts in the record to create persuasive and (we hope) logical arguments to convince the court to rule in our client's favor.
What was the goal of the appellant's lawyer in the case here? How did spewing gratuitous venom advance the cause? Did the woman want to regain custody of her daughter, or was all of the legal maneuvering really in aid of protecting the stepfather from criminal prosecution for rape?
I do wonder what the real agenda was, because appellant's counsel's handling of the case appears to guarantee that appellant's child will continue to be in the state's custody.
Before coming to law school, I was a Physics major. We had a tradition of pointing out silliness (or stupidity) with Lymmericks. In that vein, here's my stab.
We note with displeasure your briefing,
That is now the page limit exceeding,
Assenting in earnest,
It came back to burn us,
We therefore reject your poor pleading.
In every case that you cite,
Missing points to your left and your right,
This court finds no way,
To rule as you pray,
Or to suage the Appelant's great plight.
You cite the low court for its error,
Our eyes, they recoil in grave terror,
For personal attacks,
Throughout this great stack,
We affirm and chastise the fool bearer.
Your record, of late, is quite marred,
Though this case was just not very hard,
Your cause will not stand,
We therefore remand,
With Instructions to have you disbarred.
I might defend the poor guy in the audio clip. There's something to be said for futilely raising arguments below in the hopes of getting it up to the Supreme Court and getting a reversal. Unlikely as that prospect is, I don't think it's disciplinariable to try, and then be honest at the oral argument.
Still should've at least TRIED to distinguish the case though. Geez.
For better or worse, Aloha spirit is defined in Hawaii law at HRS section 5-7.5. So the lawyer is not totally in left field on this point.
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