Last week the First Circuit dismissed an appeal due to the appellant attorney’s failure to cite the record in the brief. Here is the Court’s opinion in Rodriguez-Machado v. Shinseki.
The opinion is a good read. Some of the noteworthy passages:
Unfortunately, plaintiff’s briefs are textbook examples of how not to litigate a case on appeal, infracting some important procedural rules….
Yet plaintiff’s opening brief offers no specific record cites to support her version of the facts, which, again, she alleges are in dispute…Essentially, she is asking us to do one of two things: accept what she says as gospel or mine the record ourselves to confirm the truth of her story – and there is no reason for us to do either…
And despite the fact that defendant’s responsive brief clued her in to some of these problems, plaintiff’s reply brief is not really any better than her first: she does serve up a smattering of record cites there, but not enough to make a difference – too late and too little, we say; and, incredibly, she cites no caselaw at all….
To wrap up: Plaintiff’s lackluster way offends some major appellate procedural rules and controlling caselaw.
My point in writing about this case is to urge plaintiff lawyers to not write this kind of brief. I don’t know exactly how common it is for a brief like this to be filed in Mississippi, but I’ve seen enough to know it’s not uncommon.
Citing the record is not particularly hard work. But it can be exceedingly time consuming, particularly for a tried case.
I’m not sure if lawyers sometimes don’t cite the record because they don’t know better; or if it’s that they procrastinated on the brief and don’t have time to do it properly. My sense is that it’s the latter.
A technically deficient brief hurts the lawyer in at least two ways. First, it all but guarantees a loss in this case.
Some would say it can also get you sued. Those fears are largely over-blown in this setting because the client was likely to lose the underlying case anyway. But a bad brief has negative implications for a lawyer regardless of whether his client sues him.
Second, it will not be forgotten by opposing counsel or the judges. They will then peg the lawyer in the lazy category and deal with her accordingly in the future. This will hurt the lawyer and her clients in future cases.
Do it right or don’t do it all. Doing it wrong is worse than not doing it at all.
You don’t have to appeal when you lose at the trial court level. Even if you think the trial court got it wrong, there may not be anything to legitimately appeal. Sometimes you have to let it go and move on to something else.
If you must appeal and don’t have time, then pay someone to write the brief or at least mine the record for citations. There are plenty of lawyers out there who would do this on a contract basis.