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L.Steven Emmert
Virginia Appellate News & Analysis by L. Steven Emmert - Inside the Case Decisions, RUlings & Opinions



[Posted March 25, 2015] For the first time in the 21st Century, the Supreme Court of the United States has issued a show-cause order to a lawyer, threatening to sanction him for conduct in the course of appellate litigation. The Court directed a lawyer at the megafirm Foley & Lardner to explain why some of the language in his cert petition was – get this – hard to understand.


That may sound benign to you. And indeed, I suspect that the justices at Ninth and Franklin get that kind of brief all the time; they’re rolling their eyes now at the concept.


Here’s the lowdown: SCOTUS’s rules require that cert petitions be written “briefly and in plain terms.” Rule 14.3. But this was a highly technical case involving intellectual-property claims and artificial intelligence.


If that were all, we might not have an issue. After all, one of the requirements of appellate advocacy is to be able to express complicated subject matter in terms that legal generalists (that would be the justices) can understand without having to spend a lot of time looking up terms. Using English instead of technology-ese (or even legalese) helps a lot.


But this case was different because of the client, a German inventor who insisted upon retaining control over the content of the brief. The client sculpted the problematic portions of the brief himself – probably to ensure that the lawyer wouldn’t screw things up in a technical subject – and the lawyer signed and filed the petition. Now we have a problem.


I’ll let you know that it all ends happily; the Court dismissed the show-cause on Monday, so the lawyer can breathe more easily. He does, however, now have to pay Paul Clement’s bill for representing him in the show-cause proceeding.


I have a couple of observations about this highly unusual proceeding. First, I earnestly hope that the SCV justices and the CAV judges don’t derive any inspiration from this, that they can threaten to sanction lawyers for filing 35 pages of mush. In truth, I really doubt they’ll follow suit; but don’t think that it hasn’t crossed their minds by now.


Second, I deal with this situation in a way that probably wasn’t available to the Foley & Lardner lawyer: In all of my appeals, I insist that I’ll have the final say in all briefs that I file. That isn’t negotiable; if my signature is going on the brief, I won’t let anyone else compel me to say anything a particular way. I solicit input and comments from my clients and customers all the time, of course; but in the end, a ship can have only one captain.


Reading between the lines, I suspect that the lawyer in this IP case was put on terms to agree to the client’s authorship. Major clients can and sometimes do exert that kind of pressure on lawyers – do it my way, or I’ll take my business to another law firm. In such situations, it falls to the lawyer to use a bit of diplomacy – backed by a fair dose of professional courage – in advising the client that it’s not in the client’s interest to do things that way.


I can guarantee you that Foley & Lardner has that policy firmly in place by now.




[Posted March 5, 2015] This morning, the Fourth Circuit announced its ruling in Elyazidi v. SunTrust Bank, a published panel decision. The opinion is just over 22 pages long, and contains useful rulings on the Fair Debt Collection Practices Act.


But today’s sermon is about the first paragraph, in which the court first telegraphs and then summarily announces the ruling in six sentences. Let’s walk through it together.


Mounia Elyazidi (“Appellant”) overdrew her checking account when, despite having only a few hundred dollars in the account, she cut herself a check for nearly $10,000.


Here’s our first clue: “cut herself a check.” That’s a casual phrasing of the appellant’s actions in drafting, endorsing, and presenting a negotiable instrument. It foreshadows that the court doesn’t think highly of what the appellant did here, beyond merely bouncing a check.


A debt collector, acting on behalf of the bank, took her to court in Virginia and won.


Nothing really untoward here; this is a neutral description of the procedural posture. But wait; here come the fireworks:


Appellant, not content to pay the judgment and let the matter drop, filed this lawsuit against the bank and its lawyers (collectively, “Appellees”).


The phrase about her being “not content to … let the matter drop” clearly suggests that the court thinks that doing just that would have been the wisest course. At this point, midway through the first paragraph, you should have no doubt how this appeal is going to come out. Still, we have a bit more procedural posture to recite:


Her suit alleges that Appellees violated Maryland consumer protection laws, and that the bank’s lawyers violated the Fair Debt Collection Practices Act (“FDCPA”). The federal district court dismissed Appellant’s suit for failure to state a claim pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure.


Again, this is a neutral phrasing, showing that the panel thinks there’s nothing at all wrong with the bank’s actions. The court does that uniformly throughout today’s opinion, in contrast with what I view as some transparent exasperation with the appellant’s approach. One last step:


We affirm.


No kiddin’. The opinion goes on to evaluate the appellant’s five appealed claims, and agrees that the district court properly dismissed them. But unless you’re really good at suspension of disbelief, this paragraph will tinge your entire reading of the remainder of the opinion.

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