I’m beginning to wonder if I should start a new blog post category for “bad briefs.” I’ve told you about the Ninth Circuit dismissing a case as a sanction for briefing deficiencies and the California Court of Appeal explaining why a poorly written opening brief made it nearly impossible to discern the arguments being made. Now comes the “cut-and-paste” brief. As described by the First Circuit in the unpublished Rusli v. Mukasey, case no. 06-1941 (1st Cir. June 27, 2008) (citations omitted):
The brief filed by petitioners’ counsel, Yan Wang, is a “cut and paste” affair that appears to present the facts of another case — notably for a person of a different gender than Rusli, who had different experiences, in different years, and appeared before a different immigration judge. This substantive failure to comply with Federal Rule of Appellate Procedure 28 alone justifies dismissal. Further, the brief, by definition, offers no developed argument directed to petitioners’ claims, with the necessary consequence that the claims are waived.
Hat tip: Appellate Law & Practice.
Melody A. Kramer, Co-Founder of National Association of Freelance Legal Professionals
I like your idea for a cataloging of “bad briefs.” There has been discussion on various blogs in recent days (Wall Street Journal Law Blog, Adam Smith, Esq., NAFLP, etc.) regarding how to identify quality of attorneys. This could be part of that process of letting potential clients see the quality (or lack thereof) of work product.
Talk about cut-and-paste. How about just paste? I was a self-represented plaintiff in a case within the past three years where a lawyer who still practices in Palm Springs filed a CEB form as an anti-SLAPP motion. All the brackets were still there, stating what facts he should put in, which choice he should make on the issue being covered, and such. He was not sanctioned or anything by Judge Bert Swift in Joshua Tree, much less embarrassed. Within the past year I was served by a process server with a summons and complaint that were just drafts–no case number, so no notice of the fist CMC, no clerk’s seal or signature, no ADR info, no civil case cover sheet. Obviously this had not been filed, and the lawyer had not even glanced at what he sent out for service. How do people get clients who do such bad work?
In Pro Per
While this was not in the appeals court, it is just too funny to not mention it for worst brief and reply ever in a single case..
ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
BRADSHAW v. CORONADO, et al…
Before proceeding further, the Court notes that this case involves two extremely likable lawyers, who have together delivered some of the most amateurish pleadings ever to cross the hallowed causeway into Galveston, an effort which leads the Court to surmise but one plausible explanation. Both attorneys have obviously entered into a secret pact–complete with hats, handshakes and cryptic words–to draft their pleadings entirely in crayon on the back sides of gravy-stained paper place mats, in the hope that the Court would be so charmed by their child-like efforts that their utter dearth of legal authorities in their briefing would go unnoticed. Whatever actually occurred, the Court is now faced with the daunting task of deciphering their submissions. With Big Chief tablet readied, thick black pencil in hand, and a devil-may-care laugh in the face of death, life on the razor’s edge sense of exhilaration, the Court begins.
Defendant begins the descent into Alice’s Wonderland by submitting a Motion that relies upon only one legal authority. The Motion cites a Fifth Circuit case which stands for the whopping proposition that a federal court sitting in Texas applies the Texas statutes of limitations to certain state and federal law claims. See Gonzales v. Wyatt, 157 F.3d 1016, 1021 n.1 (5th Cir. 1998), cert. denied, 528 U.S. 1118 (2000). That is all well and good–the Court is quite fond of the Erie doctrine; indeed there is talk of little else around both the Canal and this Court’s water cooler. Defendant, however, does not even cite to Erie, but to a mere successor case, and further fails to even begin to analyze why the Court should approach the shores of Erie. Finally, Defendant does not even provide a cite to its desired Texas limitation statute. 2 A more bumbling approach is difficult to conceive–but wait folks, There’s More!
Plaintiff responds to this deft, yet minimalist analytical wizardry with an equally gossamer wisp of an argument, although Plaintiff does at least cite the federal limitations provision applicable to maritime tort claims. Plaintiff “cites” to a single case from the Fourth Circuit. Plaintiff’s citation, however, points to a nonexistent Volume “1886” of the Federal Reporter Third Edition. It is almost as if Plaintiff’s counsel chose the opinion by throwing long range darts at the Federal Reporter (remarkably enough hitting a nonexistent volume!).
Despite the continued shortcomings of Plaintiff’s supplemental submission, the Court commends Plaintiff for his vastly improved choice of crayon–Brick Red is much easier on the eyes than Goldenrod, and stands out much better amidst the mustard splotched about Plaintiff’s briefing. But at the end of the day, even if you put a calico dress on it and call it Florence, a pig is still a pig.
Take heed and be suitably awed, oh boys and girls–the Court was able to state the issue and its resolution in one paragraph . . . despite dozes of pages of gibberish from the parties to the contrary!
After this remarkably long walk on a short legal pier, having received no useful guidance whatever from either party, the Court has endeavored, primarily based upon its affection for both counsel, but also out of its own sense of morbid curiosity, to resolve what it perceived to be the legal issue presented. Despite the waste of perfectly good crayon seen in both parties’ briefing (and the inexplicable odor of wet dog emanating from such) the Court believes it has satisfactorily resolved this matter. Defendant’s Motion for Summary Judgment is GRANTED.
At this juncture, Plaintiff retains, albeit seemingly to his befuddlement and/or consternation, a maritime law cause of action versus his alleged Jones Act employer, Defendant Unity Marine Corporation, Inc. However, it is well known around these parts that Unity Marine’s lawyer is equally likable and has been writing crisply in ink since the second grade. Some old-timers even spin yarns of an ability to type. The Court cannot speak to the veracity of such loose talk, but out of caution, the Court suggests that Plaintiff’s lovable counsel had best upgrade to a nice shiny No. 2 pencil or at least sharpen what’s left of the stubs of his crayons for what remains of this heart-stopping, spine-tingling action.
In either case, the Court cautions Plaintiff’s counsel not to run with a sharpened writing utensil in hand–he could put his eye out.
IT IS SO ORDERED.
DONE this 26th day of June, 2001, at Galveston, Texas.
SAMUEL B. KENT
UNITED STATES DISTRICT JUDGE