Under Fed. R. App. P. 38, a federal appellate court may award damages for a frivolous appeal. How bad does an appeal have to be to incur Rule 38 sanctions? The U.S. Fifth Circuit answered that question in depth in Coghlan v. Starkey, 852 F.2d 806 (5th Cir. 1988). In that case, the appellant’s counsel filed a brief that “cite[d] only two cases, and fail[ed] to explain even those two.” Id. at 813. The brief also failed to address any of the controlling authorities cited in the lower court’s judgment. Said the Fifth Circuit, “This is poor appellate practice and an abuse of the appellate process.”
The lesson for the rest of us: don’t ignore adverse controlling authorities—especially when they’re cited in the trial court’s reasons for judgment.