In this
published 9th Circuit opinion today, the panel takes counsel to task for misrepresentations in briefing:
After oral argument in this case, our panel ordered
BNSF’s attorneys to explain the manner in which they quoted
these cases in their brief. In their letter in response, after
defending their selective quotations from CSXTransportation
and Association of American Railroads, BNSF’s attorneys
wrote, “Responding to the Court’s inquiry has led Counsel to
appreciate, however, that we could have made explicit when
first citing CSX and AAR that, even though these cases arose
in a distinct context involving state and local law, BNSF
contends they nonetheless supply the appropriate principles
of law in this case. We regret not taking that approach.” We,
in turn, regret that BNSF’s attorneys wrote only that they
“could have made explicit,” and that they “regret not taking
that approach,” instead of acknowledging straightforwardly
that they misrepresented in their brief what the STB and our
court had written in those cases. We expect better from the
attorneys who appear before us.
Another example today,
here, of "deficient briefing" (part of a caption heading) is an unpub from 4/3, which states:
[Appellant's] opening brief includes a statement of facts that
can charitably be characterized as highly deferential to her own view of the facts. Less
charitably, it could be described as completely ignoring any fact unfavorable to her. ....
Thus, [Appellant] was given notice of her
failure to brief properly and a chance to rectify matters somewhat in her reply brief, but
instead of doing so, she doubled down on her error.
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