Thursday, April 4, 2013

Crossing the line?

As a former NHL goal judge, 4/3's Justice Bedsworth has a keen eye for seeing when something moving fast crosses the line. In yesterday's decision of AAA Blueprint v. Vasquez, he brings that skill to bear on an appellant:
While we agree that appellants’ briefs are dismal specimens of appellate advocacy, we must be careful not to equate poor lawyering with frivolousness.

We agree that appellants’ briefs could be used in law school classes on appellate advocacy as examples of how not to do an appellate brief.
Body check!
Violations of the rules of court and of accepted appellate practice occur on almost every page. For example, appellants repeatedly cite to documents (i.e., defense trial exhibits) that are not in the record before us. [cite] Appellants do not give a comprehensive summary of the evidence presented at trial, as they are obliged to do when they identify insufficient evidence as an issue. [cite] The sole case on which they rely to support their lack of standing argument ... has almost nothing to do with the issue.
But not checkmate! Sanctions are narrowly avoided because "However ineptly, appellants raised issues not totally devoid of merit. We therefore deny the motion for sanctions."

Reader Charles Hokanson points out that Respondent takes a blow as well, in footnote 5:
We should also point out that, while appellants cited to documents not in the record, [Respondent] committed the worse sin of misrepresenting what the record said and did so often enough to create a pattern of misrepresentation. [cite]
We could properly commend all of the briefs to our hypothetical appellate advocacy class as cautionary examples.