Appellate Advocacy Blog

Editor: Tessa L. Dysart
The University of Arizona
James E. Rogers College of Law

Monday, March 25, 2024

Be accurate in your case citations

Last weekend I gave a talk on appellate advocacy to a group of law students interested in public interest work. It was a great crowd. As a former public interest lawyer, it was especially interesting to think about what I might say differently about appellate advocacy to students interested in public interest work.

One point that I didn't change in my standard advocacy talk was Tip #5--Be Professional. When I talk to attorneys and students about professionalism and appellate advocacy I tend to emphasize two points. First, I talk about the importance of being accurate in how you represent cases and the record.  When we surveyed judges for Winning on Appeal, we found that complaints about the misstating the law or the record was probably the second most common complaint that judges had about brief writing (the first being that briefs are too long). The second point I emphasize is the importance of not attacking the judge below or opposing counsel.

As I sat in my hotel room doing my final prep before my talk, I received an email from a legal writing professors listserv that provided me with a prime example on this point. Just a few days ago the Ninth Circuit issued an opinion dismissing an appeal and striking a brief because the appellant's brief "represent[] a material failure to comply with [the court's] rules." Ouch. The primary problem with the brief was that it fabricated caselaw and cited cases that did not stand for the propositions for which they were cited. From the opinion:

Here, Appellants filed an opening brief replete with misrepresentations and fabricated case law. For example, the brief states that Hydrick v. Hunter, 669 F.3d 937 (9th Cir. 2012), “examined a claim of false imprisonment brought by a parent whose child was unlawfully removed from the home by government officials.” Hydrick, however, discusses no such claim. The case instead concerns a conditions of confinement claim brought by a class of persons civilly committed under California’s Sexually Violent Predator Act. Id. The words “parent” and “child” appear nowhere in the opinion. Similarly, Appellants’ brief states that Wall v. County of Orange, 364 F.3d 1107 (9th Cir. 2004), “addressed intentional infliction of emotional distress claims against police officers who unlawfully removed a child from her parent.” Wall instead concerns allegations of excessive force, false arrest, and false imprisonment brought by a dentist who was arrested after an altercation at an auto shop. Id at 1110–12. The words “parent” and “child” are, once again, absent from the opinion. Beyond Hydrick and Wall, Appellants also misrepresent the facts and holdings of numerous other cases cited in the brief. See, e.g., Smith v. City of Salem, 378 F.3d 566 (6th Cir. 2004); Yvonne L. v. N.M. Dep’t of Hum. Servs., 959 F.2d 883 (10th Cir. 1992); Smith v. City of Fontana, 818 F.2d 1411 (9th Cir. 1987); Wilkins v. City of Oakland, 350 F.3d 949 (9th Cir. 2003); Harris v. Roderick, 126 F.3d 1189 (9th Cir. 1997); Mattos v. Agarano, 661 F.3d 433 (9th Cir. 2011); Henderson v. City of Simi Valley, 305 F.3d 1052 (9th Cir. 2002); Johnson v. City of Seattle, 474 F.3d 634 (9th Cir. 2007); Brooks v. City of Seattle, 599 F.3d 1018 (9th Cir. 2010); Devereaux v. Perez, 218 F.3d 1045 (9th Cir. 2000); Wallis v. Spencer, 202 F.3d 1126 (9th Cir. 2000). 

It gets worse. The Court issued a focus order before argument asking the parties to discuss two cases that were cited in the brief but did not appear to exist. At oral argument, "[c]ounsel . . . did not acknowledge the fabrications" and failed to provide other "meaningful support for Appellants' claims." The opinion even includes a colloquy with the court on these issues. It isn't great for the attorney. 

As I pointed out to the students, this is bad. Things like this ruin your reputation with the court and the judges for your entire career. In fact, the court was so upset by the attorney's actions that it PUBLISHED the opinion. Yes, it published it.

So, let this be a lesson to be accurate in your case citations. Your reputation depends on it.

(Thanks to Cory Webster for sharing the opinion and Prof. Sarah Ricks for disseminating it on the listserv).

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