The kitchen sink has no place on appeal

We’ve all heard of doctors lamenting the need to order lots of tests for the most mundane symptoms in order to protect themselves from malpractice lawsuits. Are lawyers exhibiting equivalent behavior?

Last week, a post at the Lawyerist blog (Want To Destroy Your Case? Throw In The Kitchen Sink.) featured a federal district court decision adopting the recommendations of the magistrate judge to order sanctions all around in a sexual harassment lawsuit — i.e., all of the attorneys on both sides had monetary sanctions imposed against them. On the plaintiff’s side, the attorneys were sanctioned for what Lawyerist called “evidence-free sexual harassment and retaliation allegations.” On the defense side, the attorneys representing the employer objected that they were being sanctioned merely for aggressively defending their client, but the district court noted that “there is a difference between a vigorous, effective defense and the kind of gross overlitigation and unreasonable and vexatious multiplication of proceedings which occurred here.”

Aside from sanctions, the litigation tactics summarized by the district court ( and detailed in the magistrate judge’s report) posed the risk that the better points in each side’s case got lost in the noise of all the unnecessary chatter.

That risk is also quite high, and arguably higher, when similar tactics are adopted in an appeal. In trial proceedings, various “overlitigation” tactics might be employed piecemeal over time, and the occasional golden nugget has a chance to stand out because it is presented in relative isolation. In an appeal, however, the appellant’s opening brief hits the appellate court with all of his arguments at one time, which might make it harder for the decent argument to stand out from the clutter.

While I suspect that the problem of raising too many issues in an opening brief arises most often when trial attorneys continue to represent their clients on appeal and are unable to “let go” of certain pet issues that have no place in the appellate court, or when the appellant has an inexperienced lawyer or is self-represented on appeal, even veteran appellate lawyers have to struggle with issue selection. Any time I come up with more than three or four arguments to make in an appeal, I get suspicious of my own analysis, and I consider very carefully whether all of the issues should be raised.*

I think that lawyers that forego any careful consideration of how to narrow the issues, and wind up throwing in the kitchen sink, might be depending on the good graces of the appellate court to pluck the meritorious needles out of the legal haystacks presented in their briefs. Appellate judges don’t simply throw up their hands and discount every argument raised by an appellant every time an opening brief contains a lot of different arguments that seem unmeritorious at first. Aside from the matter of professional integrity, there’s also the matter of having to justify their ruling in a written opinion, so you can bet they spend time trying to decide if there is a meritorious argument in the bunch.

Perhaps you’re thinking, As long as the court is going to look for my best arguments anyway, what’s the risk? I’ll throw in everything and let the court sort it out. The risk is that you might actually conceal your best arguments. Appellate judges (and their research attorneys) are smart, but they are not infallible. Clutter your brief enough, and the one argument that actually stood a chance at winning might not be recognized. And, if none of your arguments is any good, I suspect you are better off minimizing their number. A brief containing 15 meritless arguments is probably more likely to draw monetary sanctions than a brief containing just one or two meritless arguments, as the court will consider the former a greater waste of its time and the number of meritless arguments may be seen as evidence of the frivolousness of the appeal.

UPDATE (9/29/15): At his Briefly Writing blog, Alabama appellate lawyer Michael Skotnicki shares some related thoughts. In a post called The Risks of a “Hinge Point” Appellate Argumenthe comments on the ultimate narrowing of issues: asserting a single issue on appeal.

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*In some complex cases, of course, more complex briefing is required. Consider, for example, the brief proffered on appeal by the defense team for former Enron CEO Jeff Skilling: the Fifth Circuit Court of Appeals gave them permission to file a brief 58,922 words long — more than four times as long as normally permitted under the rules — which generated quite a bit of buzz on legal blogs. But Skilling was convicted of 19 counts after a three-month trial and the record on appeal approached 47,000 pages; your average appeal is not going to be that complex. (To put the length of Skilling’s brief in perspective, consider that George Orwell’s Animal Farm is less than 30,000 words long, and Lord of the Flies is less than 63,000 words long; of course, some novels are hundreds of thousands of words long.)

How to make your mediation brief effective

There are some big differences between appellate mediation and mediation while your case is still pending in the trial court. But appellate and trial lawyers can both benefit from reading mediator Rande Sotomayor’s excellent article, “Effective Mediation Briefs,” in this month’s California Lawyer. I know Rande through my networking group, The Esquire Network (there’s my full disclosure), and have seen her present on other topics. I know her to be a very thoughtful mediator, and it shows in this article.

What I found particularly persuasive was her advice that lawyers should get over their penchant for keeping the entirety of their mediation briefs confidential:

Many lawyers submit “confidential” briefs to the mediator, hoping to avoid premature disclosure of their position. But if the brief is confidential, how can the information impress the folks sitting across the table?

A productive strategy is to deliver the message ahead of time, thereby promoting a worthwhile – and mutual – premediation evaluation of the case.

This approach conveys not only your (hopefully) winning arguments, but also what it will take to persuade your client to settle. Sharing a thoughtful brief in advance also allows everyone to discover unanticipated areas of agreement. Then, the parties can drill down to the real areas of disagreement at the heart of their dispute.

A lot of lawyers are going to have a problem with this advice, out of fear that the adverse party will approach the mediation as a chance to learn how best to manage the case rather than as a meaningful effort toward settlement. You can mitigate the chances of this by making your mediation brief effective in other ways (more tips on that in the article).
Lawyers may likewise fear tipping off the other side even if they are confident the other side is engaging in mediation in good faith. But is there any real danger here? Any opposing counsel worth his salt is going to figure out the bulk of your strategy anyway, either through papers filed during the course of the litigation or through effective discovery:
An interrogatory is not objectionable because an answer to it involves an opinion or contention that relates to fact or the application of law to fact, or would be based on information obtained or legal theories developed in anticipation of litigation or in preparation for trial.

(Code Civ. Proc., § 2030.010, subd. (b).) Similar information can be obtained through requests for admissions. (Code Civ. Proc.,  § 2033.010.) Unless you plan to stonewall or be cagey in discovery — or your opposing counsel is not sharp enough to utilize all the discovery tools at his disposal — you are not going to keep your strategy a complete secret anyway.
I think the advice to disclose one’s position goes double for appellate mediation, especially for the appellant. The appellant might have been on an equal footing with the respondent during the trial court proceedings, but with statewide reversal rates hovering around 20%, the appellant starts out as a huge underdog in the appeal.  The appellant’s most important task during the mediation is to convince the respondent that the appellant’s chances of succeeding are far higher than that 20% average. An appellant can’t do that without disclosing at least some of his strategy. I don’t worry about giving the respondent additional lead time to consider those arguments before my appellant’s opening brief is filed. The easy availability of extensions and the “grace period” for filing the respondent’s brief is going to give the respondent plenty of time in any event.

Rande’s piece has a lot of great tips. Read it for advice on how to communicate with the mediator and the adverse party, through your mediation brief and otherwise.

Opposing the pro se appellant

I think a lot of people might think that any time the appellant is a lay person representing himself (i.e., appearing “pro se”), the respondent has a pretty easy time of it. Is that the case?

I was reminded of this issue by an article on pro se plaintiffs in the Daily Recorder (subscription only link) titled “Pro Se Suits No Picnic for Defense Lawyers,” which described the difficulties of litigating against pro se plaintiffs at the trial court level. I think some of those difficulties can carry on through appellate proceedings, but overall I think a defendant-respondent in the court of appeal has an easier job opposing a pro se plaintiff-appellant in the Court of Appeal than the defense lawyer has in the trial court.

First, let’s look at how the article characterized suits brought by pro se plaintiffs: “Suits filed by the unlawyered are often frivolous. Some allege outlandish conspiracy theories, while others fail to make a recognizable legal claim.” None of that is likely to get any better by the time the case reaches the Court of Appeal (except, perhaps, where the pro se plaintiff has successfully amended the complaint to state a cognizable cause of action). The appellant’s opening brief may likewise be frivolous and a conspiracy theorist’s dream, but on appeal, there is an extra tool to combat those characteristics: the standard of review, which can often render irrelevant whole swaths of argument devoted to contested versions of the facts.

The article goes on to note that suits brought by pro se plaintiffs can be lengthy and costly because such plaintiffs are usually unwilling to settle and the trial court gives the pro se plaintiff leeway in complying with the rules of court that the court would not grant to a represented litigant. I have not seen either of those factors affect an appeal much.

Settlement on appeal is not unheard of, but it is far less frequent than in trial court in any event (it is not even always discussed), so a particularly stubborn plaintiff is not likely to skew settlement statistics in appellate proceedings. In fact, a pro se plaintiff-appellant might even be more willing to settle on appeal (and for a nuisance value) than he was in the trial court if he can be made to realize that the reversal rate is less than 1-in-5.

I haven’t seen pro se appellants given extra leeway, either (though I am always sure to cite case authority stating that they should not be given any). While it is true the Court of Appeal will make sure that pro se appellants get a fair shake, that approach usually manifests itself not in granting leniency with rule compliance, but in giving the the pro se appellant a respectful hearing, even where it is obvious he is wasting the court’s time. There are usually so few procedural steps in an appeal that there are few occasions for the appellant to invoke leniency in any event. The closest I ever saw was a pro se appellant who moved for leave to file an opening brief of nearly 50,000 words — the length of a short novel, and more than three times the usual limit. She was denied relief.

I think one of the biggest challenges in opposing pro se appellants can be to decipher their arguments. Briefs I have seen from pro se appellants (not always in cases in which I represent the respondent) tend to be long-winded, repetitive, and convoluted. A respondent must spend a good deal of time untangling the opening brief to clarify the arguments being made before starting on the respondent’s brief. If a respondent forgoes that initial analysis, he risks drafting a respondent’s brief that is likewise wordy, repetitive, and convoluted — at least in its first draft.

I can’t quantify this next point or offer any specific evidence for it (other than the anecdotal evidence in the article of pro se plaintiffs’ general unwillingness to settle), but I believe that pro se appellants are far more likely than represented appellants to appeal for reasons so personal and important to them that they are blinded to the realities of an appeal. Thus, I think they are more likely to pursue frivolous appeals, make arguments that don’t take into account the standard of review (even if they are familiar with the concept of a standard of review), and even appeal in situations where success could make them worse off.

All that said, one should resist the temptation to think that all pro se appellants are doomed to failure. Sometimes, they win, even against big companies with top-notch representation.

When winning is risky

Sometimes, an appeal doesn’t make sense to me. This can be true even if there are better-than-average odds of winning. When an appeal doesn’t make sense to me, I ask why the party wants to appeal. I’m sure that most of the time, the reaction is to think, “Isn’t it obvious? Because I lost!” But to my mind, that’s not always a good enough reason. As a matter of effective client relations, I get curious about motives when it seems to me, as an outsider, that a win on appeal would yield a negligible benefit or even risk making the appellant worse off.

An example of the latter situation is Department of Fair Employment and Housing v. Ottovich, case no. A136607 (1st Dist.  June 30, 2014), where I think the appellant potentially had a whole lot to lose by winning the appeal.

The appellant was the defendant below, where the trial court struck his answer and entered his default as sanctions for discovery misconduct. Judgment for more than $240,000 was entered after the prove-up hearing. The defendant successfully moved to set aside the default judgment (and underlying default) based on the plaintiff’s failure to serve a statement of damages, but the court left the answer stricken, granted summary judgment on liability based on the allegations of the complaint, and held a jury trial on damages, which resulted in a judgment for the plaintiff of only $8,500. If I were the defendant, I think I would have been thankful for avoiding that judgment of nearly a quarter million dollars, counted my blessings that my liability was only $8,500, and called it a day.

Not so for the appellant here, who contended that when the default judgment was vacated, his answer was revived as a matter of law. Clearly, the appellant wanted the issue of liability tried, and wanted to pay zero.

The appellant lost his appeal, but suppose he had won. What’s the up side? Sure, the case gets to proceed on the merits. But appellant, if found liable, would be facing a new damages determination. Who’s to say that a less-friendly jury or better lawyering for the plaintiff the next time around wouldn’t result in a judgment against the appellant far in excess of $8,500?

I have to think there was something besides money driving the decision to appeal in this case. . . or maybe I’m wrong about the process after reversal and there would be some way to avoid having damages tried again (if you think so, shoot me an email, and I will happily correct the post, if warranted). But going solely by what I can glean from the decision, I would have advised against the appeal.

Any litigation, including an appeal, involves risk. Consider that reversal rates hover around 20% and that you may be throwing good money after bad. There is enough risk in the possibility of losing. Why pursue an appeal where winning could make you worse off?

Huge Error, No Prejudice

Too many people go into an appeal so certain that the trial court erred so obviously that reversal must result. This is rarely because the attorney doesn’t know that the error must have resulted in prejudice to warrant reversal, but because the attorney gives insufficient thought to the question of whether the error was genuinely prejudicial. As a result, the question o prejudice is not presented very well in the brief.

I’m not sure exactly what was going through the mind of the attorney representing the defendant/appellant in Twenty-Nine Palms Enterprises Corporation v. Bardos, case no. E051769 (Fourth Dist., Nov. 13, 2012). He might have had some very reasonable arguments that prejudice resulted from the error, and might even have presented a thorough argument in the appellant’s brief. For many, however, the  sheer magnitude of the asserted error — that the trial court abused its discretion by summarily sustaining 48 pages of objections to the appellant’s evidence submitted in opposition to a motion for summary judgment, without any reasoning in support of the ruling — might tempt some lawyers, and certainly many parties, into believing that there just had to be some resulting prejudice, without giving sufficient thought to the matter.

The Court of Appeal agrees that the trial court abused its discretion in summarily sustaining the objections, but finds there was no resulting prejudice. Even giving consideration to all of the evidence the appellant introduced below, the appellant still failed to raise a triable issue that would preclude entry of summary judgment.

Clients (and some attorneys) need to be reminded: it’s not error that will get you a reversal, it’s prejudicial error that will get you a reversal.

Narrowing Appellate Issues

D. Todd Smith makes a good point at Texas Appellate Law Blog in the context of explaining why he likes oral argument:

[O]ne of my favorite aspects of oral argument is that it forces you to distill your case down to the barest elements. As the appellant, if you can’t persuade the court based on your best two or three points—which should all be covered thoroughly in your brief—you’re probably going to lose.

Hear, hear.

I think the same approach pays off in briefing. Rarely do you read an opinion that refers to a “scattershot” or “shotgun” approach by the appellant where those terms aren’t used (at least implicitly) insultingly or, more importantly, where the appellant actually prevails on any of those issues.

This is often a battleground between lawyers and their clients at both the trial and appellate stages. Clients want to include every last morsel of how they may have been wronged, while attorneys — good ones, at least — recognize that simpler is better, especially if it means letting go of of weak arguments.

Ray Ward posed this question at the top of his post at the (new) legal writer warning about the dangers of the “kitchen sink” approach:

When we try to narrow down the issues and arguments in a brief, throwing out the weak ones and keeping the strong ones, we take a risk: the risk that we may be getting rid of something that would have persuaded the judge. So should we get rid of those weak issues and arguments?

Citing some other writers, Ward offers some compelling reasons for answering “yes.” Not only does he offer the negative consequences of presenting weak arguments, he also offers reasons (besides the remote possibility of success) why we come up with them in the first place and then why we are reluctant to get rid of them.

I don’t think it is possible to set a hard and fast rule on the cutoff point, i.e., that point at which the odds of prevailing on any given argument reach so low a level that it should be dropped. That will obviously vary from case to case. I suppose there are cases where an appellant might raise 7, 8, or even 10 strong issues — but I haven’t run across one.

I generally approach the issue from the opposite end. Rather than start with every conceivable issue and then determine which ones to drop, I start with those same issues, pick the best two or three, then determine which of the remainder to add. In other words, instead of looking at how weak an argument has to be before I drop it, I ask how strong an argument has to be before I include it. That’s a tougher test for those remaining issues, and it helps prevent the pride of authorship in an early draft (one of the obstacles noted in Ward’s post) from getting in the way.

We’re paid to use our judgment. Is there a risk that one of the arguments that was raised during your brainstorming stage but never made it into the brief might have persuaded the judges? Absolutely. But using that possibility — often a very remote one — as an excuse to include every argument is asking for trouble.

By the way, for a personal anecdote on a misadventure resulting from including a weak argument mandated by my supervising partner against my protest early in my career, see this earlier post of mine.