Practice Tip: Don’t recycle briefs (at least not the same brief in the same case)

By: Peter J. Gallagher (LinkedIn)

It has become a staple of teen/tween movies: Younger sibling has the same teacher as older sibling. Younger sibling hands in the same paper that older sibling used for that teacher a few years prior. Younger sibling gets caught, parents are called, awkward meeting with principal follows, younger sibling is punished, hilarity ensues. Minus the hilarity ensuing, we now have the legal version of this trope.

In Conboy v. SBA, the U.S. Court of Appeals for the Third Circuit criticized appellant’s counsel for “fil[ing] a brief that was essentially a copy of the one he filed in the District Court.” To be clear, the Third Circuit was not suggesting that Appellant made the same arguments on appeal as he made in the District Court, rather it held that that Appellant essentially cut-and-past the exact same brief. Concluding that the “substance of [the] appeal [was] as frivolous as its form,” the Third Circuit denied the appeal and affirmed the District Court’s decision.

Conboy was a debt collection case. Appellant took out an SBA loan. When he defaulted, the SBA assigned the note to a debt collector. Appellant sued the debt collector and others, asserting violations of the Fair Debt Collection Practices Act and other state and federal statutes. At the close of discovery, Appellees moved for summary judgment and sanctions. The district court granted summary judgment but denied the motion for sanctions. Appellants appealed.

On appeal the Third Circuit noted that Appellant’s brief began “with a proper introductory sentence arguing that the District Court should not have granted summary judgment,” but then “quickly [went] awry in the next paragraph.” Rather than describing how the District Court erred, Appellant described why the District Court had jurisdiction and why venue was proper in the District Court (not in the past tense, since neither was at issue on appeal, but in the present tense as if the case were still pending in the District Court); and then argued why “summary judgment should be denied” (again, not in the past tense as in “the district court should have denied summary judgment,” but in the present tense as if the case was still pending in the District Court).

These issues left the Third Circuit “with the suspicion that something was amiss with counsel’s brief.” And, “unfortunately,” its “suspicions were confirmed.” According to the Third Circuit , Appellant “simply took the summary judgment section of his District Court brief and copied and pasted it into his appellate brief, with minor changes such as swapping ‘Defendant’ for ‘Appellee.’” (The Court even attached a redlined copy of Appellant’s brief to its decision to show the similarities.) The Court concluded that “[t]his [was] not proper appellate advocacy.”

On the merits, the Court held that Appellant’s “lack of appellate argument reflect[ed] the correctness of the District Court’s summary judgment” and affirmed the District Court. It also granted Appellee’s motion for sanctions under Rule 38 of the Federal Rules of Appellate Procedure, even though the District Court denied Appellee’s motion for sanctions under Rule 11 of the Federal Rules of Civil Procedure. (The Court noted that Appellant’s response to the sanctions motion was, “[r]egrettably . . . yet another copy-and-paste job.”) The Court held that these sanctions should be placed on counsel, not the client, because counsel was “to blame for recycling meritless arguments without engaging the District Court’s analysis.”

The Court ended its opinion with a final admonition:

It’s not easy to become a lawyer. The practice of law is challenging, and even the best lawyers make mistakes from time to time. So we err on the side of leniency toward the bar in close cases. But the copy-and-past jobs before us reflect a dereliction of duty, not an honest mistake. We will therefore affirm the District Court’s summary judgment and grant [Appellee’s] motion for Rule 38 sanctions after counsel for [Appellee] files an appropriate fee petition and counsel for Appellants has a chance to respond.

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