Saturday, May 10, 2008

Annals of appellate practice

The Where's Travis McGee? blog has posted a hilarious excerpt from an unpublished Fifth Circuit opinion. Here's a link to the blog post and here's a link to the opinion itself. Hartz v. Adm'rs of the Tulane Educ. Fund, No. 07-30506 (5th Cir. Apr. 16, 2008).

The opinion concludes with the following spanking of the appellee's counsel along with a requirement that he put himself on report with his client:

Finally, and completely separate and apart from the issues raised on appeal, we would be remiss if we did not comment on the conduct of Roger Phipps, counsel for Hartz, during oral argument in this case on Tuesday, March 4, 2008. Phipps' conduct towards the Court during argument was unprofessional. Even more serious was his admission that during his work on the case (including his preparation for argument), he had not read a key Supreme Court case. His cavalier disregard for his client's interest and for his obligation to the Court was both troubling and disgraceful. Accordingly, we are ordering Phipps to provide his client, Hartz, a copy of our opinion immediately after it is released. In order to ensure compliance, we are further directing him to supply our Court with proof of service.
Hartz, slip op. at 14 (footnote omitted).

The Fifth Circuit dropped a footnote setting out "[a]n example" of the appellee's counsel's behavior:

Phipps: . . . so that's about all I have to say, Your Honor. I don't have anything other than that. You know, my client lives in Chicago. We communicate occasionally on the phone, she sent me the documents. And um, she's a doctor. She continues to earn a living, and she's generally unavailable if you call her because she, she's sort of a traveling doctor.
Judge: That's not much of thing you come in here and tell us, I guess.
Phipps: Well, my attitude is, the [district court] judge got it right . . . . And as far as whether even Ricks should apply, I don't think it should.
Judge: What do you do about Morgan?
Phipps: I don't, I don't, I don't know Morgan, Your Honor.
Judge: You don't know Morgan?
Phipps: Nope.
Judge: You haven't read it?
Phipps: I try not to read that many cases, your Honor. Ricks is the only one I read. Oh, Ledbetter, I read Ledbetter, and I read that one that they brought up last night. I don't know if that's not Ledbetter, I can't remember the name of it. Ricks is the one that I go by; it's my North star. Either it applies or it doesn't apply. I don't think it applies.
Judge: I must say, Morgan is a case that is directly relevant to this case. And for you representing the Plaintiff to get up here — it's a Supreme Court case — and say you haven't read it. Where did they teach you that?
Phipps: They didn't teach me much, Your Honor.
Judge: At Tulane, is it?
Phipps: Loyola.
Judge: Okay. Well, I must say, that may be an all time first.
Phipps: That's why I wore a suit today, Your Honor.
Judge: Alright. We've got your attitude, anyway.
Id., slip op. at 14 n.4 (alterations in original).

Perhaps unsurprisingly, the 5th Circuit reversed the plaintiff-appellee's victory below.


Anonymous said...

CAAFlog, we are all anxiously awaiting your review of the Scalia, Garner book.

I hear that Scalia and Garner fight it out over the footnote question. Scalia prefers the old fashioned line citatations; Garner wants the case itself in the text, but other clutter out of the narrative and the cites out of the way.

I did not know that Scalia's father was a master of Romantic language. Scalia says that most legal writing, even by judges, is mediocre (lacking,for example, basic organizational structure and topical paragraphs), but lawyers confuse its legal authority for its writing authority.

Anonymous said...

What is the worst performance people have seen at CAAF? (Please don't use names of counsel.)

Anonymous said...

Why would that matter? CAAF is not a place for "performance" unless an appellate court it theater. Also, newer counsel tend to be less sure of themselves and may appear to be unprepared but usually are. Why would it matter? My subjective take on an argument might be much different than yours and totally opposite of the Judges. As long as counsel doesn't forget the words to "Mr. Tambourine Man" they would do well?

Christopher Mathews said...

Ah, Mr. Phipps. Did they not teach you at Loyola that ignorance of the law is no defense?

It doesn't help much on appeal, either.

Anonymous said...

I saw an appellate defense counsel faint at the podium once.

Anonymous said...

Not to excuse Mr. Phipp's lack of preparation (or concern) and I know I will anger many with this observation, but most of the showbiz commentary about appellate practice is irrelevant. It reflects lawyers positioning themselves in an imaginary hierarchy.

Court's will rule they way they will in probably 90% of the cases based on the facts and the law regardless of the attorneys' performance. Even if Mr. Phipps had read the Supreme Court case, he would have attempted an unpersuasive distinction, but lost his case anyway.

In truly close clases, attorneys make the difference.

45alum said...

"Court's will rule they way they will in probably 90% of the cases based on the facts and the law regardless of the attorneys' performance."

Especially if they haven't even bothered to read the attorney's briefs or hold oral argument.

Anonymous said...

45alum: Are you suggesting NMCCA does not read briefs before deciding cases?

Anonymous said...

I don't think anybody believes this assertion. While I fault NMCCA for sometimes needlessly cranky language, and I believe it MAY have glossed over a defense brief or two, failing to give it the close-reading of the King James version, I don't think its in the court's selfish interest to ignore the defense brief.

I don't suppose 45Alum is willing to provide the case cite and what facts or law he/she believes indicates that the defense brief was put aside.

(Or is this a "sabateur posting" by appellate government to give 45 a bad rap?)

Anonymous said...

45alum -- please place your real name here, before you castigate an appellate court.

Anonymous said...

45 gets a bad rap all on its own; it doesn't need help from appellate government. Are the working hours still 8-3?

Anonymous said...

Last anon, longer hours = more assignments of error.

A 3:00 quitting time for your opponent is your best friend.

You have the luxury of copying-and-pasting a template response, going for a long lunch, then to the gym, knock out a couple of appointments, and then hitting the print button at 4:30.

Do you still have a policy against responding to affidavits?

45alum said...

My post had nothing to do with NMCCA; I was simply stating that an attorney has no chance to influence a judge if his/her pleadings are not read and there is no oral argument. Thus, appeals are unlike trial work, where you know to a certainty that the finder-of-fact is there and listening to you. There is no such certainty on appeal. I don't see this observation as an "attack."

And as for NMCCA, upon consideration I guess it would be nice for a current or former judge to provide reassurance that they have never signed on to an opinion without first having read the pleadings.

But I truthfully don't think that is necessary, as we know from United States v Jenkins, 60 M.J. 27(C.A.A.F. 2004) that they most definitely pay close attention to the pleadings.

Anonymous said...

Seriously, when you name yourself
"45alum" and say crap like that, you smear all of us former Code 45attorneys with your apparent bitterness.

I personally thought my clients got a fair shake at NMCCA, and they reversed a fair number of convictions and set aside a fair number of punitive discharges.

Anonymous said...

I agree. 45Alum should change his/her name or be more specific with the criticism.

NMCCA has intelligent judges and issues a large set of reasonably fair and well-written opinions. My complaint is the needless crankiness - by usually just a select few of the judges who have never had defense responsibilities. These comments are sprinkled out to appellate defense counsel who are doing their jobs by putting on the BEST defense possible for their clients.

I do think that NMCCA should change its rules to be explicit about whether all 3 judges on a panel are required to read the pleadings. It is not unfair to wonder when the court itself perpetuates the ambiguity.

Anonymous said...

When I was at 46, we weren't sure anyone at 45 did anything original, based on the number of cut and paste briefs we got, some of which changed the name of the appellant and some did not.

Anonymous said...

This silly back-and-forth between 45 and 46 should stop. Both sides have different clients and different responsibilities. The work is not the same. Both sides cut-and-paste and both sides make mistakes. Even NMCCA issues sloppy decisions (go to its website, begin opening the cases, and see how the pagination, fonts, and footnotes are screwed-up).

And to not cut-and-paste with today's technology would be a waste of resources. One should not brag about being old-fashioned.