In the Gospel of John, the Pharisees tried to trick Jesus by presenting a woman charged with adultery. The Pharisees reminded Jesus that under Mosaic law, adultery is an offense punishable with death by stoning. The Pharisees then challenged Jesus to judge the woman. If Jesus rejected the stoning, the Pharisees could accuse him of disobeying Jewish law; if Jesus approved the stoning, the Pharisees could accuse him of breaking Roman law, which prohibited Jews the right of summary capital punishment. Jesus paused for a moment, and—in an extraordinary example of reframing the issue presented—said "Let the one among you who is without sin be the first to throw a stone at her." After a brief examination of conscience, the gathered crowd dispersed, and Jesus instructed the woman to go and "from now on do not sin any more."
Jesus's advice in this Biblical passage applies equally to the appellate practitioner tempted to throw any of the following "stones" in an appeal brief:
"In an attempt to mislead this Honorable Court, the appellant . . ."
"The appellant deliberately mischaracterizes the lower court record by asserting . . ."
"Appellee miscites and misuses authority to divert this Court's attention from the issues at hand . . ."
"The trial court's bias toward appellee is amply demonstrated by the illogic of its opinion, where . . ."
The recitation of these examples is not to suggest that an accomplished appellate lawyer would ever say such scandalous things in an appeal brief (pause for a brief examination of conscience), but rather to question the wisdom of throwing linguistic stones as a form of advocacy. This article discusses punitive reasons to refrain from throwing such stones, then suggests a more persuasive alternative.
Your Brief May Be Dismissed
The most severe way to punish an advocate who disparages the lower court or opposing counsel is dismissal. Does this sound far-fetched? Think again. In January, the Utah Supreme Court dismissed an appeal for just that reason.
The plaintiffs in two consolidated appeals in Peters v Pine Meadow Ranch Home Association, Case No 20050806, were trying to block the Home Association from levying fees to pay for roadways and other subdivision improvements. The trial court granted summary disposition to the Association, and the Utah Court of Appeals affirmed, then denied a petition for rehearing.
In briefs filed in the Utah Supreme Court, the plaintiffs' attorney—a University of Utah S.J. Quinney College of Law professor—got angry, stating that "good judges never fabricate evidence," and that the Court of Appeals' opinion was "no innocent mistake." The attorney continued, "So, if a court fabricates evidence, whether intentionally, negligently or through innocent mistake, it destroys the moral premise of the legal system." Just in case this stone was not explicit enough, the attorney went on: "A judge who fabricates evidence, even from a sincere motive to do justice in a particular case, has no moral standing whatsoever."
The Utah Supreme Court threw out the case, not on the merits, but on the basis of the attorney's behavior. "Petitioners' briefs in each case are replete with unfounded accusations impugning the integrity of the court of appeals panel that heard the cases," wrote the Court. "These accusations include allegations, both direct and indirect, that the panel intentionally fabricated evidence, intentionally misstated the holding of a case, and acted with improper motives. Further, petitioners' briefs are otherwise disrespectful of the judiciary." The Court struck the plaintiffs' briefs, affirmed the Utah Court of Appeals' rulings, and assessed attorney fees, even though the Court agreed that the Court of Appeals had committed some of the errors identified in the plaintiffs' briefs. The message was clear: do not throw stones at the lower court.
Your Oral Argument May Be Wasted
After spending countless hours preparing for oral argument, an appellate advocate stands before the Michigan Court of Appeals, ready to address the intricacies of every cited case and with full command of the trial court record. After the advocate confidently declares "May it please the court," the presiding judge immediately interjects and asks, "Counselor, have you reported your opposing counsel to the Bar for an ethics violation?" Counsel, unsure where this question is headed, responds a bit nervously, "Excuse me?"
The judge continues: "Counsel, Rule 3.3 of the Michigan Rules of Professional Conduct states that an attorney shall not knowingly:
make a false statement of material fact or law to a tribunal;
fail to disclose to a tribunal controlling legal authority in the jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel; or
offer evidence that the lawyer knows to be false.
In addition, Rule 8.3 states that a lawyer having knowledge that another lawyer has violated the Rules of Professional Conduct shall inform the Attorney Grievance Commission. In the introduction to your brief, you state quite plainly that opposing counsel has mischaracterized the record and miscited the relevant cases in an effort to mislead this Court. So I ask you again, have you reported your opposing counsel to the Bar for an ethics violation?"
The advocate, after wasting many precious and flustered minutes, never fully recovers and fails to present a cogent appellate argument. While some would view the judge’s inquisition as harsh and an overly aggressive application of the Rules of Professional Conduct, the lecture certainly falls within the plain language of the Rules. Again, the potential consequences should provide more than enough incentive to set down the linguistic stones.
Your Credibility May Be Shot
Can you remember the last time you shopped for a vehicle at a used car lot? Chances are high you encountered a pushy salesperson, and the more the salesperson pushed you to buy a particular car, the more you did not want to buy it. As Professor James McElhaney counsels trial court attorneys, the more you try to "sell" your case, the more your audience will see you as a used car salesperson—and run in the opposite direction.
The same holds true in the appellate courts. The more an advocate tries to persuade the court that opposing counsel is mischaracterizing the facts and law, the greater the risk the court will be turned off by the approach. Moreover, throwing stones at opposing counsel imprudently takes the Court’s focus off of the merits and places it on the behavior of counsel. This is not effective advocacy.
A Better Approach
Instead of throwing stones and telling the court what it should think, simply share the story as it unfolds and let the court respond to it. Indeed, showing the discrepancies between an opponent's brief and the record or established case law is no different than showing a client’s substantive story on appeal.
The difference in approach is slight, but strikingly effective. Consider some examples:
Example 1: Opposing counsel mischaracterizes the record when he asserts that the contract was executed in the name of the corporation rather than an individual.
Alternative: Plaintiffs assert that the contract was executed in the name of the corporation rather than an individual. But that is not what the record reflects. The contract’s execution page is attached as Exhibit A, and it shows that Mr. Smith signed the contract individually, not on behalf of the corporation.
Example 2: The lower court completely made up facts in its unprecedented attempt to ensure that the defendant was granted summary disposition.
Alternative: The lower relied on three 'facts' in granting the defendant summary disposition. But each fact is either not present in the record or subject to conflicting testimony that only a jury can resolve. First . . .
Example 3: Plaintiffs attempt to mislead this Court in characterizing the holding in Smith v Jones as supportive of their preemption argument.
Alternative: Plaintiffs cite Smith v Jones in support of the lower court’s holding that the city ordinance is preempted. But in Smith, this Court declined to hold that a local ordinance was preempted, and for reasons that apply with particular force here.
In each example, the focus subtly shifts from opposing counsel’s conduct to the merits of the argument. And if presented with enough examples, the court will conclude on its own that opposing counsel is playing fast and loose with the record and authority and respond accordingly.
There is little to be gained from throwing linguistic stones on appeal, but much to be lost. Showing how an opponent has misread the record or miscited a case is far more effective than telling the court that it happened. With the admonishment of the Utah Supreme Court in mind, go, and from now on, do not sin any more.
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John J. Bursch chairs the Appellate Practice Group at Warner Norcross & Judd LLP. A former federal appellate judicial clerk, he is Treasurer of the Michigan Appellate Practice Section, Publications Chair and Executive Committee Member of the ABA's Council of Appellate Lawyers (CAL), and Chair of the Supreme Court Cases Subcommittee of the ABA's Section of Litigation. Mr. Bursch routinely assists other practitioners in proceedings before the Michigan Court of Appeals and Michigan Supreme Court. He can be contacted by telephone at 616.752.2474, by e-mail at firstname.lastname@example.org, or through the Firm's Web site at www.wnj.com.
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