4/3 publishes this opinion today that takes a detour from the merits to discuss appellate brief-writing ethics:
But before we more fully discuss the search and seizure issues, there is another issue we need to address in this opinion: the respect attorneys owe to trial court judges when challenging their rulings on appeal.
It is also a long-standing rule that an appellate brief “containing matter manifestly disrespectful toward the trial judge is to be deemed contempt of the appellate court.”
At oral argument, the district attorney’s deputy (not the author of the briefs) was challenged about the propriety of using the word “fabricated” when referring to the trial court’s ruling. The deputy theorized that the “purport” of his colleague’s written argument was that the trial court’s ruling “was inconsistent with or contrary to established precedent.” When pressed further, the deputy went on to say, “I’m certain that we didn’t intend to suggest that the court had bad faith in making its ruling.”
We accept the representation of the district attorney (through his deputy) that he did not intend to suggest that the trial court had acted in bad faith when making its ruling. Indeed, the prosecutor who appeared at the hearing on the motion (and authored the appellate briefs) was gracious and respectful to the trial court judge. However, the written assertions in the district attorney’s briefs that the trial court “fabricated” a legal theory are nonetheless subject to misinterpretation and are unacceptable.
We advise the district attorney in the future to be more cautious and consider his language more carefully when challenging a ruling of a trial court in an appellate brief, or he may be subject to sanctions. Words are to lawyers, as scalpels are to surgeons. They are tools to be used with precision.
Along these same lines, see footnote 22 of this 9th Circuit opinion published last week:
Counsel for [Appellant] is advised to review Federal Rule of Appellate Procedure 28 and our corresponding Circuit Rules, which require parties to present accurate and reliable support for their claims on appeal. Grant v. City of Long Beach, 96 F.4th 1255, 1256 (9th Cir. 2024).