Friday, March 4, 2011

First Appellate Brief Deemed "As Brazen A Piece Of Misrepresentation As We Have Ever Seen"

A recent public reprimand is summarized on the web page of the Massachusetts Board of Bar Overseers:

Beginning in 2006, the respondent represented a window company in litigation with a homeowner concerning the installation of replacement windows. After a district court trial in July 2007, the court entered a judgment for the window company on the contract, and a judgment on the homeowner’s counterclaim for breach of contract with double damages and attorney’s fees under M.G.L. c. 93A. The specific facts found to warrant c. 93A damages were the company’s unauthorized charge on the homeowner’s credit card and a collection telephone call made to the homeowner’s husband while hospitalized.

Upon reconsideration, the trial court rescinded the c. 93A damages and attorney’s fees on the sole basis that the homeowner had failed to serve a c. 93A demand letter on the window company detailing the unfair and deceptive acts that warranted c. 93A relief. The homeowner appealed to the Appellate Division of the District Court from the decision rescinding the c. 93A damages.

The respondent filed the window company’s brief and a supplementary appendix in August 2008. In the statement of facts section, the respondent falsely stated: “For purposes of the appeal, the plaintiff will rely upon and adopt the findings of fact set forth in the trial judge’s Amended Decision and Order. Those findings are as follows….” There followed nearly three pages of single-spaced and indented text purporting to recite the trial court’s findings of fact. In introducing and formatting the statement of facts in this fashion, the respondent intended to state and imply that the statement included a full verbatim copy of the trial court’s findings. However, the respondent’s recitation of facts did not include all of the trial court’s findings. Among other things, the respondent intentionally left out all reference to the hospital telephone call, and references to the credit card charge as “unauthorized”, without the use of ellipsis or other indication of editing.

After a hearing before the Appellate Division of the District Court on November 7, 2008, the court issued an opinion. The court agreed that c. 93A, § 9(3), exempts counterclaims from the requirement of filing a demand letter, but upheld the lower court’s decision to rescind double damages because the window company did not have sufficient notice of the basis of the c. 93A claim.

The court further found that the respondent engaged in “as brazen a piece of misrepresentation as we have ever seen,” by deleting “certain words, phrases and sentences without use of an ellipsis, or any other indication of editing.” The court imposed double costs of the appeal upon the window company, to be paid by the respondent to the homeowner, and awarded appellate attorney’s fees to the homeowner.

The respondent’s conduct in falsely representing that the statement of facts was a complete presentation of the findings of the lower court violated Mass. R. Prof. C. 8.4(c), (d) and (h).

In mitigation, the respondent had never filed a brief on appeal before this. The deletions from the facts of the unauthorized credit card charge and the telephone call to the client’s hospitalized husband seeking payment were intended as argument. In further mitigation, the respondent frequently referred to the unauthorized credit card charge and the telephone call to the client’s hospitalized husband in the statement of the case and the argument section of his brief. The court recognized the disparity in the facts and there was no harm.

(Mike Frisch)

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The discipline meted out by the Board of Bar Overseers -- public reprimand -- fit the misdeed in this matter. As the Board noted in mitigation, the young lawyer, in his first appellate brief, frequently referred to the elided facts in various parts of his brief. Nonetheless, this case underscores the need for appellate lawyers, and indeed all advocates, to be scrupulously accurate in their use of quotations of authority. As an appellate practitioner for more than 25 years and now a teacher of legal writing and appellate skills, I have constantly reminded my juniors (and now my students) of the importance of retaining one's credibility with the tribunal in both written and oral advocacy.

Some legal arguments may be strong, others weak and still others a stretch under precedent. But none should be so unsupportable that it causes an attorney to lose his or her credibility before the judges who will rule on the case. The same is true when relying upon findings of fact or evidence. We advocates should do nothing to cause a court to disbelieve us about anything, because it could result in the court disbelieving us about everything.

When I teach the proper (and improper) use of ellipses, I make the exaggerated point that one cannot, for example, elide the word "not" when quoting a source in an effort to turn an adverse holding into a favorable one. (As in: "The court held that the plaintiff had . . . met her burden and was therefore . . . entitled to summary judgment.") But as the Massachusetts case demonstrates, even less obvious elisions are improper. And they inevitably will be found out. Indeed, besides being unethical, it is downright foolish to think that we can fool everyone involved in a case and get away with disingenuous alterations in quotes or even paraphrases of authority. For one should never assume that an opponent, a law clerk or a judge – or all of them – won’t pick up on such attempts at sleight of hand.

In his own way, the young Massachusetts lawyer in this case forgot that an advocate's stock in trade is his ethos. If the court cannot trust what we write, what we say and the authorities upon which we rely, our advocacy is meaningless. We will have failed not only our profession, the tribunal and ourselves, but the very clients for whom we sought a victory.

Frank Gulino
Associate Professor of Legal Writing
Director of Student Advocacy Programs
Hofstra University School of Law
Hempstead, New York

Posted by: Frank Gulino | Mar 11, 2011 8:40:00 AM

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