Monday, November 30, 2015

Yes, even yours truly has been benchslapped

A lawyer way out of her league gets benchslapped by a frustrated judge:

>>In a lengthy footnote, [Appellate Judge] Robb wrote, “Counsel’s failures to follow even the simplest rules regarding the content of an appellate brief have made our review of this case unnecessarily difficult. We commend [the opposing party] Maple Lane for largely refraining from comment on the quality of the brief and endeavoring to respond to the legal arguments. Were it within our purview to do so, we would order Brazier’s counsel to verify to this court her attendance at a continuing legal education program regarding appellate practice before submitting any further briefs to this court."

In the case above, this lawyer didn't understand the requirements and limitations of drafting an appellate brief.  Little things like the scope of the brief and the maximum number of pages.  Ouch.

I once wrote a brief on a hotly contested issue, while I had the flu. By the date of oral argument, I was feeling much better.

[This actually happened, although I'm abbreviating the exchange so I don't put everyone to sleep here.]

Judge: “Mr. X [defense counsel], this brief is very eloquent and well-argued.”

Defense counsel: “Thank you, Your Honor.”

Judge, glaring at me: “I wish I could say the same thing about Plaintiff's brief.”

Me, mentally: Hey now! I wrote that brief while I had the flu. Gimme a break.

Me, audibly: “Yes, Your Honor.”

Judge: “Defendant's brief makes a surprisingly good argument about X [the issue we were contesting].”

Defense counsel: Gloats

Judge: “Does the defense wish to add anything today?”

Defense counsel, with sideways smirk at me: “No, Your Honor. Defendant's brief states all of Defendant's arguments, which I am aware Your Honor has already read and understood.”

Judge nods, turns to me: “Counsel, if you're ever looking for employment, I don't recommend using this brief as a writing sample.”

Me: “Yes, Your Honor.”

Judge: “However, I did find one reasonably coherent argument in Plaintiff's brief, on page 12, lines 8-21.”

Me: “Thank you, Your Honor.”

Judge: “Does Plaintiff wish to add anything today?”

Me, flipping to page 12 [which thankfully was the main thrust of the argument]: “Thank you, Your Honor. Plaintiff would just like to draw the court's attention to Plaintiff's reasonably coherent argument on page 12, lines 8-21, which although not as eloquent as Defendant's brief, is a concise and accurate statement of the law [more accurate than the Court of Appeal, although I didn't say that], and is Plaintiff's position.”

Judge: “Submitted?”

Both of us: “Submitted.”

Judge: “Well, as much as Defendant makes a very eloquent and creative argument on this issue that I've never considered before, Plaintiff's argument, although definitely not the best-written argument I've ever read [raises eyebrow at me], does accurately state the interpretation of this issue as I understand it from the Court of Appeal. I'm ruling in favor of Plaintiff.”

So, which brief won?


  1. Sounds like you won but by a hair's breadth. A good legal secretary could have formatted that for you to be in compliance with the court's rules *wink wink*.

    1. I agree, a good paralegal and/or legal secretary is worth his/her weight in gold. Fortunately, my brief didn't suffer from the formatting etc that the brief in that article did! Mine suffered from what can euphemistically be called "disjointed concepts". My sentences didn't quite flow. But at least it did its job of convincing the judge =)

      Thanks for stopping by and saying hello!