You are posting a comment about...
Appellate Motions -- Think Twice Before Filing
Judge Easterbrook of the Seventh Circuit published his opinion denying a motion to strike portions of the appellant’s brief and gave some advice for lawyers who are thinking about filing similar motions. The motion was directed to specific sentences of the appellant’s brief, complaining about improper citations, incorrect factual statements and lack of supporting evidence.
The motion came to Judge Easterbrook because he was the motion judge of the week when the motion was filed. In a published opinion, he points out that the appellate rules do not provide for motions to strike whole briefs or portions of a brief (even though motions may be appropriate in unique situations). Moreover, motions are directed to the motion judge, not the panel that will decide the case, thereby calling “on the court to increase from three to four the number of judges who must dig through the record and understand the legal issues.” Nonetheless, even though such motions “are not only unnecessary (from the parties’ perspective) but also pointless (from the judiciary’s), they are filed all the time.”
When similar motions came before Judge Easterbrook in the past, he has treated them as a “form of ‘advance’ on the allowance of pages or words used for the party’s appellate brief.” Up to this point, however, he had not explained his rationale in a published opinion. “Now notice has been given – and [Judge Easterbrook has] decided to raise the stakes and deduct from the brief double the number of words in a motion to edit an opponent’s brief or any other equivalently absurd, time-wasting motion.”
Thanks to Judge Easterbrook for explaining his position on motions and giving fair notice of the consequences of filing an inappropriate motion. The notice will certainly make all lawyers think before filing any kind of appellate motion. The explanation helps us make a reasoned decision about whether to file a particular motion. Here are some things to consider.
• Think about how the system works. As Judge Easterbrook pointed out, a motion is directed to the motion judge, not the judges who will decide the case on the merits. Is the point you want to make in the motion significant enough to require the motion judge to explore the file to decide your motion? Is the subject of your motion something that you want to bring to the attention of the judges on your panel? If so, a motion likely will not get their attention and it would be better to address it in your brief on the merits.
• Think about whether the motion gets you anywhere toward resolution of the case in favor of your client. In other words, if you win the motion, are you closer to that goal? Is this an efficient use of your client’s resources? Is consideration of the motion an efficient use of the court’s resources?
• Think about alternatives. Judge Easterbrook pointed out the most obvious alternative – raise the point in your brief on the merits. This option has practical benefits. First, your brief is directed to the judges who will rule on your case; if your point is significant to resolution of the appeal, those are the judges who should know about it. Second, if your point is really significant, your opponent will have to address it in reply, leaving fewer words to address the merits of the appeal.
Be warned but also remember that some motions should be filed.
Thanks to
Decision of the Day.
