Saturday, February 15, 2014
I am sure many advocates will agree that after spending countless hours hashing out arguments in a 20-30 page brief, followed by the painstaking task of crafting an accurate table of authorities, not to mention putting together a clear, concise and persuasive table of contents, the last thing one wants to spend a vast amount of time on is the appendices. In fact, this section is typically an afterthought. After adding the opinion below and the relevant statutes, many advocates stop there (dare I say some even neglect to do the before-mentioned necessities?!). A recent decision should have all appellate advocates reconsidering the attention paid to the appendix section and the relevant FRAP and Circuit rules.
As a nice addition to Professor Burch's post on 7th Circuit Judge Posner, Judge Easterbrook has also openly expressed his frustration about counsel. In the case of United States v. Johnson, decided February 6, 2014, Judge Easterbrook's opinion dedicated approximately four (4) pages towards analyzing and deciding the appeal, followed by almost an equivalent amount of pages blasting Johnson's counsel for his failure to follow Circuit Rule 30(a), 30(b)(1), and 30(d).
Circuit Rule 30 deals with the appendices.
30(a) provides that:
a) Contents. The appellant shall submit, bound with the main brief, an appendix containing the judgment or order under review and any opinion, memorandum of decision, findings of fact and conclusions of law, or oral statement of reasons delivered by the trial court or administrative agency upon the rendering of that judgment, decree, or order.
30(b)(1) provides that:
b) Additional Contents. The appellant shall also include in an appendix:
(1) Copies of any other opinions, orders, or oral rulings in the case that address the issues sought to be raised. If the appellant's brief challenges any oral ruling, the portion of the transcript containing the judge's rationale for that ruling must be included in the appendix.
30(d) provides that:
(d) Statement that All Required Materials are in Appendix. The appendix to each appellant's brief shall contain a statement that all of the materials required by parts (a) and (b) of this rule are included. If there are no materials within the scope of parts (a) and (b) of this rule, counsel shall so certify.
Judge Easterbrook took counsel to task on these rules. Specifically, he indicated that counsel violated 30(a) and 30(b)(1) by failing to file the transcript of the trial judge's decision on the motion germane to the appeal. Counsel's contention that this oversight was due to being recently retained counsel was found unpersuasive because the transcript could have been supplemented in the Reply Brief if not ready when the initial brief was filed. When counsel certified, pursuant to Rule 30(d), that the brief contained all of the required parts pursuant to 30(a) and (b) mandates, he subsequently violated that rule as well.
It is the violation of 30(d) that seems to bring the most harsh words from Judge Easterbrook. Because the Judge deemed counsel to be knowledgeable about the omission of the critical transcript, he not only sanctioned counsel $2,000 for the violation, but also left him with some strong words to consider:
"Brindley may not have set out to develop a reputation as a lawyer whose word cannot be trusted, but he has acquired it. This opinion serves as a public rebuke and as a warning that any further deceit will lead to an order requiring Brindley to show cause why he should not be suspended or disbarred."