Monday, November 26, 2012

How not to practice law: on appeal, prepare a lousy brief in which you don't discuss the law or support your position

Continuing our running list of examples on how not to practice law, here is a link to a brand new opinion from the Court of Appeals for the First Circuit in a case called Rodriguez-Machado v. Shinseki, (available here) in which the court (per curiam) says that "the plaintiff's briefs are textbook examples of how not to litigate a case on appeal." In support of this conclusion, the court explains that
...plaintiff's opening brief offers no specific record cites to support her version of the facts, which, again, she alleges are in dispute... Essentially, she is asking us to do one of two things: accept what she says as gospel or mine the record ourselves to confirm the truth of her story – and there is no reason for us to do either.  ...Shockingly still, plaintiff's principal brief provides neither the necessary caselaw nor reasoned analysis to support her theories...
Later, the court adds that what the plaintiff has done "is not the type of serious effort that allows us to decide difficult questions ...and doing her work for her is not an option ..."

Given the bad quality of the appeal, the court decided to dismiss the appeal with prejudice.

The court makes clear that this is a drastic measure, but that it was within its discretion to take it.  However, obviously, when the court refers to "the plaintiff" in all this, it is really referring to her lawyer.  The drastic measure the court chose to take was really against the client.  Was this really a case where the client should suffer the consequences of the ineptitude of her lawyer?  Wouldn't it be more fair for the court to take action against the lawyer while giving the client a second chance? 

UPDATE 11/26/12 (9:30pm):  When I wrote my comment above, I was commenting on the court's opinion, not on the briefs the court criticizes.  I have not read the briefs.  However, over at Litigation and Trial, Max Kennerly has - and has posted a link to them so you can read them too.  Having read them, he also questions the court's decision but for different reasons than me.  He argues that, although the briefs do make a number of mistakes, it is a bit of an exaggeration to say, as the court does, that they are so bad they “cripple any attempt to review the issues intelligently.”  You can read his full comment here.

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