Friday, June 11, 2021

Appellate Misadventures

Misadventures In Lawyer: Wrong Case, Wrong Court, Wrong Everything, on David Lat's Original Jurisdiction, covers this weeks' three appellate nightmares, including two already covered on this blog (flipping the bird during oral argument; massively screwing up a notice of appeal). But he leads with a third from here in the 9th Circuit about a lawyer who had two different appeals and began arguing the wrong one. Watch it here and cringe.

[ABA Journal has Several minutes into 9th Circuit online hearing, lawyer realizes he's arguing the wrong case]

Of note today, enjoy this opinion from 2/8, which starts out reading like a Justice Wiley decision (which it is) except it's a lot longer than his usual. (A choice quote: "Felix Frankfurter reputedly said the three rules of statutory interpretation are to read the statute, read the statute, and read the statute. The same wise counsel applies to interpreting every text.") APJ Bigelow concurs in the judgment, but objects that the majority opinion covers too much unnecessary ground. She writes:

I write separately because I would decide this case on the issues as raised by the appellate briefs and the trial court’s ruling. .... I would resolve this matter without using this case as a platform to discuss requirements contracts and without providing a lengthy exposition on the topic, especially given the contract was never referred to as anything other than a service contract and the issue was never briefed in the trial court or on appeal. ....  I would avoid these matters that are not necessary to resolve this dispute, were not discussed below, were not relied on by the trial court in its ruling, and were not argued on appeal.