Oral argument using ASL

Don’t recycle your trial-court brief in the appellate court

Last week, the U.S. Third Circuit penalized a lawyer for filing an appellate brief that, in the court’s view, was no more than a “cut-and-paste” version of his district-court brief. Conboy v. U.S. Small Business Admin., No. 20-1726 (3d Cir. Mar. 19, 2021). The same lawyer responded to a motion for sanctions in the Third Circuit by recycling his argument against sanctions in the district court. Id., slip op. at 8. The court faulted the lawyer “for recycling meritless arguments without engaging the District Court’s analysis.” Id., slip op. at 9. Attached to the court’s opinion are redlines showing the differences (or lack of them) between the lawyer’s district-court brief and his Third Circuit filings.

From time to time, probably all of us have recycled trial-court arguments for appellate briefs and writ applications. When you do that, make sure to adapt them for the appellate court. The lawyer in Conboy didn’t do that. Remove stuff that has become irrelevant or moot, and add whatever is necessary to respond to the district court’s judgment or your opponent’s argument. Uncritical copying and pasting is not a good way to win an appeal; in some courts (like the U.S. Third Circuit), the result may be worse than merely losing the appeal.

I’ll close this post with some closing words from the Third Circuit:

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-paste jobs before us reflect a dereliction of duty, not an honest mistake.

 

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