Bad Lawyering vs. Bad Judging

The Appellant’s brief in support of its Motion for Rehearing or Certification to the Supreme Court in the decision of the United States Fifth District Court of Appeals, in Marion v. Orlando Paint and Rehabilitation surely does counsel no credit.

That said, it does a Court no credit when its practice is to dismiss cases on their merits without issuing reasons.

Counsel’s brief in Marion commenced:

1.  Oh.

2.  Please forgive in advance if, through the words of this Motion you can hear the author screaming, but I  cannot overcome my indignation engendered by this Honorable Court’s per curiam affirmance of the lower court’s order.  I understand that Motions for Rehearing are seldom granted by appellate courts, and for good reason.  However, I must believe that if I correctly state the facts of this case, the court will retract its opinion and reconsider the issue.  I assume that  I failed in my obligation in the initial briefs.

Counsel then went on to state that the Appellees are “proven con artists”, without offering any evidence in the record (or elsewhere, for that matter), and declaring that if the Appellees are to succeed in this case, then counsel has “lived too long”.

The Court found that the brief contained no analysis on the issues in the motion, and states:

In short, it is naked re-argument at best  and an emotional tirade at worst, neither of which have any place in this Court.

Suffice it to say that cries of anguish and the gnashing of teeth are the sorts of things best omitted from appellate briefs. It’s silly, it looks unprofessional, and it is ineffective.

The Court ordered Appellant’s counsel to appear and show cause why sanctions should not be imposed. That is probably the appropriate thing to do under the circumstances here.

However.

What gave rise to counsel’s anguish was something that, in my mind, at least, does the Court no credit either. Here, the Court dismissed the appeal without issuing reasons.

I must say that I take no small issue with the Court’s statement

We have repeatedly admonished the bar regarding the impropriety of motions such as this.  See Amador v. Walker, 862 So. 2d 729 (Fla. 5th DCA 2003), and cases cited therein.  Motions for rehearing are not to be used  for the purpose of venting counsel’s frustrations with  the form or substance of the court’s decision.   Id.  They are rarely, if ever, warranted when the decision is without opinion.  See Snell v. State, 522 So. 2d 407 (Fla. 5th DCA 1988) (absent a written opinion, motion for rehearing cannot direct court to matters overlooked).

Perhaps it’s my own Canadian sensibilities, since I have never practiced in the United States. Up here, we are unaccustomed to having the Courts dismiss a matter on its merits without so much as a set of short oral reasons delivered from the bench.

Litigants pay their lawyers a lot of money to prepare written argument, and then appear before the appellate courts. That money is after even more money was paid to have the case argued in a trial court.

When the matter finds its way into an appellate court, it should be obvious that the issue is of no small importance to the parties, and the Court, I suggest, owes it to the litigants to say something about why it is taking the action that it is taking.

Rather than castigate the Bar like petulant schoolchildren, it might save the Courts some frustration and anguish of their own to issue even some brief oral reasons from the bench, like

We have had the benefit of reading the Reasons for Judgment prepared by the learned trial judge. Having read counsel’s briefs, and having heard counsel’s arguments before us, we are satisfied that the trial judge has committed no reversible error. We would affirm the decision in the court below. The appeal is dismissed.

Even something as skeletal as that would be far better than leaving counsel in the awkward position of having to tell a client that despite the fees paid, the case was dismissed, and that he really doesn’t know exactly why, since the Court didn’t say.

h/t: A Georgia Lawyer and Erin Russell