Tuesday, November 8, 2011

Yet another major benchslap from the 7th Circuit for poor brief writing

Remember this one?  The Seventh Circuit just benchslapped another attorney for filing a "wretched" brief that "massacred" his client's claim. The case, Cathleen R. Sambrano v. Ray Mabus, No. 10-3430, slip op. (7th Cir. Nov. 8, 2011), is an employment discrimination matter brought by a former employee of the Navy.  When the plaintiff's lawyer let the case lay dormant for more than a year, the trial court, sua sponte, dismissed the complaint for want of prosecution. In response, plaintiff's counsel filed a motion for relief from judgment that the Seventh Circuit (C.J., Easterbrook) called "preposterous."

The motion asserts that Local Rule 41.1 is unconstitutional but does not contain a legal argument in support of that dubious contention. (Link v. Wabash R.R., 370 U.S. 626, 632–33 (1962), holds that the Constitution permits federal courts to dismiss dormant suits for failure to prosecute.) The district judge denied the motion under Local Rule 5.3 because Sambrano’s lawyer deliberately failed to serve the defendant.

An appeal followed including a brief that Judge Easterbrook called "almost unintelligible." 

There's more:

Here is the brief’s entire summary of argument:
1) Property interest in employment.
2) Due process of law.
3) Motion for judgment on the pleadings under FRCP Rule 12c.
That isn’t a summary of argument or even the conclusion of an argument. The “argument” section of the brief, which runs one and a half pages, is little better; it contains a few platitudes but does not attempt to show how the district judge erred. And here’s the brief’s statement of the standard of review: “The constitutionality or propriety of the District Court’s Local Rule 41.1 insofar as it relates to appellant’s right to due process under the 5th Amendment to the U.S. Constitution.” That might be an effort to frame an issue for appellate review, but it has nothing to do with the standard of review.

But the court was just getting warmed up:

The remainder of the brief is similarly wretched. For example, the statement of appellate jurisdiction is incoherent. It invokes Circuit Rule 28(a)(3)(ii), which is not a  source of appellate jurisdiction, and the Cohen collateral-order doctrine, even though the district court entered a final decision ending the suit. Counsel also violated Circuit Rules 30(a) and (d). Rule 30(a) requires the appellant to include, “bound with the main brief, an appendix containing the judgment or order under review and any opinion, memorandum of decision” or other equivalent statement of reasons.

This appeal is frivolous. It bypasses the only possible argument (that the district judge abused his discretion by dismissing the suit without first warning Joaquin about the risks of procrastination) while advancing an argument with no prospect of success (that Local Rule 41.1 is unconstitutional, a contention unsupported by argument or any attempt to address Link).
. . . .
We have no idea whether Sambrano had a good claim against the Navy—but we do know that, if she had, Joaquin massacred it.
His conduct in this case implies that Joaquin is not competent to protect the interests of litigants in the federal courts.

The court ordered plaintiff's counsel to show cause why he should not be subject to monetary sanctions as well as why he should not be "censured, suspended, or disbarred on account of his apparent inability to practice competently and diligently in the federal courts."

Ouch.

Hat tip to Chris Wren.

(jbl).

http://lawprofessors.typepad.com/legal_skills/2011/11/yet-another-major-benchslap-from-the-7th-circuit-for-poor-brief-writing.html

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