A Very Disturbing Appellate Sanction Story

Jay O’Keeffe, in his blog reports that he is bothered by a recent development involving a lawyer who has been summoned to show cause and explain comments he made in a lower court transcript about the Virginia Supreme Court.

Bothered is a mild way to describe my reaction to the story. Put more accurately, I think I feel hot water in the back of my mouth, and I don’t even practice law in Virginia. The story is the ultimate in “there but by the grace of God go I” cautionary tales for lawyer like myself.

So, here’s the story. A lawyer in Virginia was representing someone on a criminal case that was appealed successively. When the lower court asked the lawyer about an issue that the appellate court never reached on appeal, the lawyer responded that the appellate court had decided to “stuff it” because it “did not have the guts to handle it.”

Low and behold, the matter reached the Virginia Supreme Court and the powers that be read it. They were not amused and have summoned the lawyer to appear and explain himself in person. Did I mention the hot water in the back of my mouth?

The problem is that law is all about analyzing what and how judges and courts rule. Every brief contains those things more or less. One court revisits the analysis of a previous court. In fact, law could be reduced down essentially to a bunch of people criticizing each other. I’m not defending the “stuff it” language, but would he be in trouble had he said that the issue was a hot potato, and the Court did not appear to want to touch it.

Court of Appeals Rule 10

Under Georgia Court of Appeals Rule 10, “Personal remarks, whether oral or written, which are discourteous or disparaging to any judge, opposing counsel, or any court, are strictly forbidden.” I did some research, and it turns out that Rule 10 has only come up once in a published opinion. In Hampton v. Bank of LaFayette, a party tried to have the other side sanctioned for personal remarks made in a brief, and the Court declined to do so. They didn’t even include the remarks for our voyeuristic reading pleasure (although, I am sure the most honorable Court had a very wise reason for doing so, because our appellate court is very wise. We also have the most attractive court in all the land).

Our appellate bench seems to be a little more thick skinned than Virginia’s. Keep in mind, Virginians have always been about honor. I sure hope that the lawyer isn’t handed a dueling pistol when he arrives for his hearing.

 My Shameless Attempt to Capitalize in the Past.

A few years ago, an opponent was being obnoxious to me in a motion for new trial hearing. He was getting personal in one of those cases where it seemed kind of pointless to be that way. I had nothing. It was one of those cases that makes you miss Anders briefs. But I was getting annoyed by the gratuitous “go for the jugular” approach opposing counsel was taking.

Then came a little gift from the prosecutor. He turned his attention from me to appellate courts, and he commented that he could do his job if “those courts in Atlanta would just get their foot off my neck.”

With little else to argue on this appeal, I devoted a good portion of the statement of facts to his comments about the Court of Appeals. In fact, I think the brief began with a quotation about the appellate courts and a neck and some feet.

The Court affirmed the conviction without so much as a peep about the lawyers statement. Oh, to have been in Virginia. However, if I had made a comment like that, I wonder if it would have made a splash?

Conclusion

Of course, in Georgia I wouldn’t press my luck. There can sometimes be a fine line between criticism and being insulting. The key, I think, is to be critical of reasoning, application of precedent, and judgment without discussing motivations and personalities.

For instance, in motions for reconsideration, I always ask for reconsideration because I was unclear and failed to communicate the law in a good way. If the Court reached an erroneous decision, it came as a result of a failure in advocacy on my part.

I don’t think being passive aggressive is actionable under Rule 10. And I’m sure the ole malpractice carrier loves this language.