Appellate Law & Practice

GA: Jefferson contempt coverage reversed

Detail-oriented real lawyers (i.e. our fans) will recall our coverage of Sherri Jefferson.   (Even more of our coverage here.)  Well, A Public Defender tells us that the contempt conviction of public defender, Sherri Jefferson was reversed by the George Supreme Court. As the real lawyers amongst us will recall, Ms. Jefferson, was a public defender in a fairly new office in a jurisdiction which has not really worked out what it is like to have a static public defender agency.  Strangely, rather than just telling the trial court to stop being so petty (or at least stop using the power of contempt to fight its political battles), the George supremes lay out some guidelines (and provide an overview of the substance of the law of contempt) for when trial courts can hold lawyers in contempt.

 

...And Russians take a break from producing spam and pretending they have a democracy to make this cool video of Gmail.

CA1: Two issues, two courts of appeal, two trials, two notices of appeal and no sanctions

Cytologix Corp v. Ventana Medical, No. 07-2629.  Okay, we got a couple of large law firms fighting it out over some fairly minor procedural issues.  My guess is that they spent lots of billable hours on this, so if you ever have a similar issue, you can get the briefs.  Anyway, there were two lawsuits filed.  There was no formal order of consolidation, but “After two trials, both combining claims from each action, the district court entered final judgment on all claims....the district court later entered an order stating that, in actuality, the cases were consolidated for trial and ordering that they be consolidated, nunc pro tunc, as of the commencement of the first trial.” 

Then Cytologix filed identical notices of appeal in the First Circuit and Federal Circuit (since there were patent cases).  Okay, covering all the bases.  Not bad.  Ventana moves to dismiss and, of course, asks for sanctions. 

CytoLogix suggests that the patent issues be transferred to the Federal Circuit. But, the First says that this isn’t necessary because they already filed a notice of appeal there, and therefore “However, because an identical appeal is already pending there, we will simply dismiss the appeal mistakenly filed here, without prejudice.” 

The First then adds that this wasn’t frivolous, so no sanctions are in order.

CA1: notices of appeal can be born nullities and blossom into things that means something

Malloy v. WM Specialty Mortgage, No. 07-1026.  This case is the height of appellate practice nerdery.  After not responding to discovery requests or complying with various motions to compel, the District Court entered a really long order, which said “the court grants the present motion to the extent that it seeks dismissal of this action. This order is an interlocutory one; it will become final on December 8, 2006, unless, on or before that date, the plaintiffs show cause why this case should not be dismissed.”  Essentially, it put the clerk on autopilot.  But, the clerk entered a judgment, anyway.  The plaintiffs moved to vacate it, arguing that it was premature.  Before a ruling came out on the motion to vacate the plaintiffs filed a notice of appeal.  After the notice was filed the District Court denied the motion to vacate without comment.

The First concludes that although the notice of appeal was premature when filed, it became effective when the court denied the motion to vacate.  Therefore, the First has juriscition.

Anyway, on the merits, the First says that the discovery violations were “relatively severe” and there was no good excuse for them.   There was not much prejudice to the defendant, but that doesn’t matter: they were not honoring court orders.  Finally, 1) the First notes that the District court had tried everything, so lesser sanctions don’t matter; and 2) the plaintiffs had plenty of notice.

The 10th Circuit in Oliver

Decision of the Day reported on Committee on the Conduct of Attorneys v. Oliver, 07-4097 (10th Cir.,  Dec. 18, 2007).  In this case, ex-Judge Cassell "filed a sealed complaint referring Oliver for professional disciplin because Oliver had missed deadlines and violated court orders in twenty-seven cases."  For those of you that don't have first-hand knowledge of the inner workings of any court, many judges usually look down upon counsel, expecting them to not only comply with every order in the way they expect, but also expecting them to supply facts that they would expect.  And those are the good judges.  Truth be told, this is probably human.  We all like to feel superior and lawyers are no exception.  Lawyers bash for being "bad" each other like there is no tomorrow.  Law clerks, the kind that have no experience, seem to delight in saying how they would do a better job than any lawyer regardless of the facts, law, resources, or clients.  (Yes folks, sometimes there are bad facts, bad law, limited resources, and just plain uncooperative clients. Oh by the way, witnesses (including cops) lie, too.)               

CA1: is there any procedural justice in CDP hearings?

Drake v. CIR, No. 06-2507.  Oh good.  A Tax case.  The earlier proceedings were important to tax practitioners because they involved the extent to which Appeals Officers could engage in ex parte contacts with other parts of the service.  There was a remand by the Tax Court to the IRS.  He attempts to raise these issues again, but the First says that the remand purged the taint.

Starting with the worst part of the opinion: The First holds, without any real analysis that “the circuits that have all agree that a prevailing party must prevail in the final outcome of the case.”  Therefore, he doesn’t get attorneys fees.  Pathetically the First cites three cases.  One isn’t even under the Internal Revenue Code (which has its own fee-shifting provision), and the two are not directly on point with the petitioner’s argument – that he was entitled to fees for the initial tainted proceedings that the IRS botched. Instead, they deal fee issues relating to whether someone “substantially prevailed.”  I don’t know why the First dropped the ball on this.

You should like totally read on.

CA1: First vacates jury award for lost leg

Vazquez-Fillippetti v. Banco Popular, Nos. 05-2372, 06-1432. Let me start with the more interesting issue?  Okay?  Good.  Your permission is important to me.

The First holds that pursuant to Puerto Rico’s rules of civil procedure allowing for an award of attorneys fees when one party acts frivolously or badly, when the prevailing party below, by virtue of the appeal becomes no longer the prevailing party they are not entitled to such fees, anyway.  Since the non-appealing (and losing) co-defendants didn’t engage in that same behavior, he still loses his fees.

Okay, on to the substance.  Oh wait.  I want you to look below the fold.

CA1: First really bends to affirm a disciplinary proceeding

In Re: Alexander Zeno, Nos.07-8017, 07-2065.  After not doing anything for awhile, the First slowly stirs.  This first case is a reciprocal disciplinary matter.  The lawyer was punished (though not disbarred) by the District Court.

But, the underlying facts don’t seem too egregious.  He seems to have bashed the prosecutors and judges in a motion.  He accused them of laughing at his legal arguments.  The District Court said he had a “chronic tendency” to use "belligerent and insulting prose in addressing members of this court," which amounted to a violation of Rule 3.5(d) of the ABA Model Rules of Professional Conduct.

Tax Court on work product protection for IRS attorneys in sanctoins and attorneys fees context

TaxProfBlog and Bryan Camp (Texas Tech) point to Ratke v. Commissioner, 129 T.C. No. 6 (9/5/07).  This case seems to hold that in the context of a “dispute over attorneys fees and possible sanctions against the IRS trial attorney” the best a taxpayer can do is get in camera review of a “trial memo” (sent by the attorneys to DC).  I am not sure where I need to put this into my “brain file.”

Hyde Act recovery

WCCPF points to an order in which a defendant manages to recover under the Hyde Act. Naturally, the order reads:

The United States Attorney indicted an Oklahoma businessman in conscious indifference to the legal and factual basis of the charges that they brought against him.

...

Some would characterize this as a raid on the treasury. The government can
prevent these raids by choosing to be responsible – stopping their own raid of wasting the
resources entrusted them for careful, reasonable expenditure in sound pursuit of the
legitimate public interest. The misbehavior of the prosecutors costs the taxpayers twice;
once in the consumption of their salaries and other expenses in not doing their job, and
once in restoring the person whom they injured. “Protecting” the treasury only defends
governmental excess – not the public.

The order follows below.  From an “Attorneys Fees” perspective there are a lot of interesting things in there, including praise for the defendant’s wife (whose enthusiasm helped lower the amount of requested attorneys fees).  Also, the order is a good roadamp to Hyde Act recoveries.

CA1: how many angels can dance on a Target(and be awarded sanctions)

Mag Jewelry Co., Inc v. Cherokee, Inc., Nos. 06-1556; 06-2127.  The plaintiff claims that Target (or its designer) stole their design for “angel” jewelry. The defendants say defendants say their version of an angel was designed by someone else.  The defendant won a judgment as a matter of law, because they had not presented evidence that the designer had access to the plaintiff’s design.  God I hate IP law.  And really, is society that much better off if angel jewelry is subject to a copyright?

The First also reveres a denial of fees to the defendant, because it holds that the plaintiff’s position was not reasonable, and a shift in theories so demonstrated.  (And that there was nothing inequitable awarding fees even though the defendants might have violated some copyright.)  That’ll teach them not to look for stolen designs at Target.