SOMETIMES, EVEN AN EXONERATION CAN BE
[Posted March 25, 2015] For
the first time in the 21st Century, the Supreme Court of the United States
has issued a show-cause order to a lawyer, threatening to sanction him for
conduct in the course of appellate litigation. The Court directed a lawyer at
the megafirm Foley & Lardner to explain why some of the language in his
cert petition was – get this – hard to understand.
That may sound benign to
you. And indeed, I suspect that the justices at Ninth and Franklin get that kind of brief all the time;
they’re rolling their eyes now at the concept.
Here’s the lowdown: SCOTUS’s
rules require that cert petitions be written “briefly and in plain terms.” Rule
14.3. But this was a highly technical case involving intellectual-property
claims and artificial intelligence.
If that were all, we might
not have an issue. After all, one of the requirements of appellate advocacy is
to be able to express complicated subject matter in terms that legal
generalists (that would be the justices) can understand without having to spend
a lot of time looking up terms. Using English instead of technology-ese (or
even legalese) helps a lot.
But this case was different
because of the client, a German inventor who insisted upon retaining control
over the content of the brief. The client sculpted the problematic portions of
the brief himself – probably to ensure that the lawyer wouldn’t screw things up
in a technical subject – and the lawyer signed and filed the petition. Now we
have a problem.
I’ll let you know that it
all ends happily; the Court dismissed the show-cause on Monday, so the lawyer
can breathe more easily. He does, however, now have to pay Paul Clement’s bill
for representing him in the show-cause proceeding.
I have a couple of
observations about this highly unusual proceeding. First, I earnestly hope that
the SCV justices and the CAV judges don’t derive any inspiration from this,
that they can threaten to sanction lawyers for filing 35 pages of mush. In
truth, I really doubt they’ll follow suit; but don’t think that it hasn’t
crossed their minds by now.
Second, I deal with this
situation in a way that probably wasn’t available to the Foley & Lardner
lawyer: In all of my appeals, I insist that I’ll have the final say in all briefs
that I file. That isn’t negotiable; if my signature is going on the brief, I
won’t let anyone else compel me to say anything a particular way. I solicit
input and comments from my clients and customers all the time, of course; but
in the end, a ship can have only one captain.
Reading between the lines, I
suspect that the lawyer in this IP case was put on terms to agree to the
client’s authorship. Major clients can and sometimes do exert that kind of
pressure on lawyers – do it my way, or I’ll take my business to another law
firm. In such situations, it falls to the lawyer to use a bit of diplomacy –
backed by a fair dose of professional courage – in advising the client that
it’s not in the client’s interest to do things that way.
I can guarantee you that
Foley & Lardner has that policy firmly in place by now.
HOW TO READ BETWEEN THE LINES
FOURTH CIRCUIT EDITION
[Posted March 5, 2015] This
morning, the Fourth Circuit announced its ruling in Elyazidi v. SunTrust Bank, a published panel decision. The opinion
is just over 22 pages long, and contains useful rulings on the Fair Debt
Collection Practices Act.
But today’s sermon is about
the first paragraph, in which the court first telegraphs and then summarily
announces the ruling in six sentences. Let’s walk through it together.
Elyazidi (“Appellant”) overdrew her checking account when, despite having only
a few hundred dollars in the account, she cut herself a check for nearly
Here’s our first clue: “cut
herself a check.” That’s a casual phrasing of the appellant’s actions in
drafting, endorsing, and presenting a negotiable instrument. It foreshadows
that the court doesn’t think highly of what the appellant did here, beyond
merely bouncing a check.
debt collector, acting on behalf of the bank, took her to court in Virginia and won.
Nothing really untoward
here; this is a neutral description of the procedural posture. But wait; here
come the fireworks:
not content to pay the judgment and let the matter drop, filed this lawsuit
against the bank and its lawyers (collectively, “Appellees”).
The phrase about her being
“not content to … let the matter drop” clearly suggests that the court thinks
that doing just that would have been the wisest course. At this point, midway
through the first paragraph, you should have no doubt how this appeal is going
to come out. Still, we have a bit more procedural posture to recite:
suit alleges that Appellees violated Maryland
consumer protection laws, and that the bank’s lawyers violated the Fair Debt
Collection Practices Act (“FDCPA”). The federal district court dismissed
Appellant’s suit for failure to state a claim pursuant to Rule 12(b)(6) of the
Federal Rules of Civil Procedure.
Again, this is a neutral
phrasing, showing that the panel thinks there’s nothing at all wrong with the
bank’s actions. The court does that uniformly throughout today’s opinion, in
contrast with what I view as some transparent exasperation with the appellant’s
approach. One last step:
The opinion goes on to evaluate the appellant’s five appealed claims, and
agrees that the district court properly dismissed them. But unless you’re
really good at suspension of disbelief, this paragraph will tinge your entire
reading of the remainder of the opinion.