In Re SC is unnecessary

(By the way, nothing from the First on Monday)

There has been some buzz about this opinion from California's Third Appellate District, in which the court says many bad things about the author of an oversized brief.  Most of the blogopshere seems to get a good chuckle over it, but Criminal Appeal has a different take and argues that: 1) rebuke in a published opinion is not the proper forum to insult attorneys for doing things a judge doesn’t like; and 2) if someone committed an actual ethical violation it could be dealt with.

The more I read it, the more I think that this court, while perhaps correct, is just beating on a member of the bar for being less than subtle.

In this case, the lawyer didn’t file the oversized brief would permission.  They asked for, and were granted permission to file an opening brief exceeding the page limitations.  But, the court concludes that since it doesn’t like this overly large brief that the application to file an oversized brief must have been misleading.  (Ironically, in some courts applications to file oversized briefs or motions are the norm.)

Attorneys love to call each other bad writers.  The court acknowledges its comments are harsh.  Lest one think that the comments are undeserved, the brief say that the comments are “deservedly” harsh.  So, when I see judges call a lawyer a bad writer, I usually conclude that they are more insulted at not having their “rules” followed, and rarely think that they are declaring certain advocacy to be bad.  As a practical matter, most judges wouldn’t be able to tell really good advocacy if they saw it, since “good advocacy,” in my book sneaks up on people and lulls them into coming to exactly the same conclusion that the advocate urges.  If an advocate is really good, people that have not read the brief scream that the result is “activism.”

The opinion itself is somewhat vague, so it is difficult to tell what sins the attorney commits, besides using interesting rhetoric (like calling a child with developmental disorders “akin to broccoli.”)  It declares personal attacks to be bad.  But guess what?  Personal attacks are the norm in many courts.  As a rule of thumb: the poorer the client the more subject to personal attacks they are.  Do you really think that poor “participants” in the court system are really treated (or viewed) with respect by judges, prosecutors, or any lawyer?  Let’s face it: many prosecutors delight in maligning criminal defendants, convicted or not.  In the civil arena, plaintiffs are usually condemned as being out for “the money” and it seems a bit of a game to demean anyone that would dare contact an attorney to resolve a matter.

When the court does get to the substance of the appeal, it is very deferential to the government, who the judges seem to have an immense amount of sympathy for because – gasp – they had to file a response. 

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].”

Awwe.  1)  They don't need to file a response -- and based on this opinion it seems the government still would have won; 2) government attorneys are paid to do this.  Indeed, some government attorneys have been known to act like filing any response is too much.  But they are just lazy.  Also, they can have their unpaid interns do it.

For example, the court writes:

In passing, appellant’s counsel uses a number of pages to vent, as she did in the juvenile court, about [Sacramento County Department of Health and Human Services] “failure to produce discovery.” But again it is mere surplusage because, in those pages of her brief, she raises no claim of discovery error.

This is hardly “in passing.”  But the court also then discusses a video (which it doesn’t say whether it was turned over to counsel), which seems to address the very issues that colorfully counsel was raising on appeal.  (In this case, a child witness recants a statement that she was molested, by the trial court, and the court of appeals doesn’t think much of that recantation.  Children always tell the truth the first time.)  Therefore, since everyone found the child’s recantation (in a video which may or may not have been produced in advance) to be not credible, I think the court is ruling that it wasn’t prejudicial.

Then the court complains about the lack of pin cites.  But some on.  If a court is going to “carefully” consider the arguments of a party, they should, and they usually do, read all the cases referred to.  Sure, courts like to have things handed to them on a silver platter, and sure, it is better form to not only have pin cites, but parenthetical citations, but that doesn’t mean that an argument is waived.  It also isn’t a license to insult counsel.

Ironically, the court does address the points that it claims are waived, and decides they lack merit.   Couldn't they have done without insulting the lawyer?

The opinion also contains these charmers.

• It is a fundamental rule of jurisprudence that courts do not issue advisory opinions.  (And therefore it addresses issues where there was prejudice.)

This isn’t true.  First, in many states, advisory opinions are possible.  E.g. Opinion of the Justices to the Senate.  There is nothing “fundamental” about the “controversy” clause.  Second, some courts are actually specifically tasked with writing advisory opinions.  See, e.g., 28 U.S.C. Sec. 2509.  Third, just because there is no prejudice doesn’t mean that there is no error to review based on “harmless error” analysis.  While the question of whether a showing of prejudice is required to attain a remand or a reversal varies between courts, simply by declaring that there is no prejudice does not mean that there is a structural error which a reviewing court cannot bypass.  SL&P gives an example of how the Supremes are addressing a similar issue.

• While exaggeration may not violate rules of court and standards of review, it is not an effective tool of appellate advocacy.

Only if counsel isn't subtle.

• Counsel should never misrepresent the holding of an appellate decision.

No.  But counsel should construe it in their client’s favor.  Whatever the case, it is for the court to figure out what a binding decision means.

• Disparaging the trial judge is a tactic that is not taken lightly by a reviewing court.

This probably isn’t the best tactic, but the government has been doing this quite a bit lately.  Often in public.  See somehow government attorneys never get referred to the bar for this type of behavior.   (See, e.g.,  United States v. Awadallah ) Even if they, like this attorney, lose.

• 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.

I think the client probably thinks that they suffered an “injustice.”  He doesn't think it is "false."  Indeed, even sophisticated clients think that a court system that rules against them is “corrupt.”  Of course, sophisticated clients – the kinds that don’t get accused of sexually abusing their children – hire PR firms and blame everything on “trial lawyers” and “frivolous litigation.”  Everyone else is stuck with trying to petition courts for relief. 

In reading this opinion, I can see how a father can easily conclude that the system is biased against him, maligned him as a sexual molester, despite the fact that his daughter denies it, and denies him the right to visit his daughter, etc.  Maybe he is completely wrong.  Maybe he deserves what he gets.  But, 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.