July 19, 2011
Recently, the 7th Circuit has demonstrated a willingness to
sanction attorneys who have behaved badly while representing their clients on appeal. On July 11, 2011, that same court showed a softer side to an attorney who failed badly when representing his clients on appeal in
Harvey v. Town of Merrillville, ___ F.3d ___ (7th Cir. 2011), Case No. 11-1041.
less..
Harvey involved multiple parties, all of whom filed cross-motions for summary judgment. On December 2nd, the district court granted summary judgment to some of the defendants. It granted summary judgment to the remaining defendant on December 3rd, in an order that referenced the previous day's order. On December 28th, the plaintiffs filed a notice of appeal as to the December 2nd order (but not the December 3rd order), but mentioned all of the defendants.
On appeal, the defendant who was granted summary judgment on December 3rd argued that the Court could not exercise jurisdiction over him because the notice of appeal did not reference the December 3rd order. The Court agreed that the notice of appeal was technically deficient, but held that this did not make a difference in this case.
Warmelink makes quite a fuss about the residents' failure to comply with Rule 3, but conspicuously absent from his argument is any allegation that he was misled or otherwise prejudiced by the imprecision of the residents' notice of appeal, which explicitly named him as an appellee. ... Because "the notice afforded by a document ... determines the document's sufficiency as a notice of appeal," ... and Warmelink was plainly "apprise[d] ... of the issues challenged," ... we conclude that we have jurisdiction over the appeal as to him .
Bu this was not the plaintiffs' only error. It appears that the brief was poorly written as well.
The residents' briefing, while not exemplary by any means, discusses Warmelink and includes in its appendix the Rule 58(a) judgment he requested. It also implicitly addresses Warmelink inasmuch as the residents' claim against him rises or falls with their claims against the other defendants. That is enough, barely.
...
It is true that the residents' briefing leaves much to be desired. Portions of the facts section have a decidedly argumentative tinge (there are eight sentences beginning with "Consistent with the other irregularities ...", and several featuring conclusory statements like "the town did not hold [Innsbrook developer] Washburn to the requirements of the law"), several propositions lack citations, and many of the unusually formatted citations that are included do not actually support the propositions they purport to. These deficiencies render both the residents' and our jobs more difficult than they ought to be. Perhaps most troubling is the residents' reliance on allegations made in their complaint as "evidence" to support their claims on summary judgment, which is "not the proper standard for summary judgment."
We nevertheless decline appellees' invitations to strike the residents' brief. We caution counsel, however, that flouting the rules in the future may well lead to striking or even sanctions.
Unsurprisingly, the appellants lost this appeal.
While we trust that our readers are astute enough not to submit a brief that would fit the Court's description of the appellants' brief in this case, there are still lessons to be learned. Avoid making your facts section too argumentative. While a facts section can be an important persuasive tool, this works best when you effectively use that section to tell a story, rather than making conclusions. Second, be familiar with the Appellate Rules when practicing in an appellate court. You should not rely on the good graces of the Court to avoid sanctions.
Lesson:
- Make the facts section of your brief persuasive, rather than argumentative.
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