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1st Cir. Slams Lawyer for Rule Noncompliance, Dismisses Case

"This case provides an important reminder to lawyers and litigants alike: substantial noncompliance with important appellate rules, in and of itself, constitutes sufficient cause to dismiss an appeal," said the 1st Circuit Court of Appeal on November 21, 2012, in the case Rodriguez-Machado v. Shinseki.

The case involved plaintiff's claim against her former employer for discrimination, retaliation, and hostile work environment under the Age Discrimination in Employment Act (ADEA). The lower court entered summary judgment in favor of the defendant employer, and plaintiff appealed.

The appellate court lamented that the law in certain areas can be incredibly complex and often fact specific. Moreover, judges have limited time and resources to devote to each case, which is why appellate rules of procedure are so helpful. "They provide the means by which we gain the information we require to set the issues in context and pass upon them." Citing the case Reyes-Garcia v. Rodriguez & Del Valle, Inc., 82 F.3d 11, 14-15 (1st Cir. 1996), the court stated, "[w]hen a party seeking appellate review fails to comply with the rules in one or more substantial respects, its failure thwarts this effort and deprives us of the basic tools that we need to carry out this task."

The scathing opinion then took plaintiff's attorney to task for what the appellate court referred to as her "lackluster way," and advised that her briefs were "textbook examples of how not to litigate a case on appeal."

Some mistakes that that the appellate court noted:

  • Plaintiff made only one broad argument on appeal -- that district court erred by premising dismissal on disputed facts, without providing any specifics.
  • Plaintiff's opening brief offered no specific record to support her version of the facts, and Federal Rule of Appellate Procedure 28(a)(7) requires a Statement of Facts. The court advised that it could not simply accept the plaintiff's version of facts as true without support and would not mine the record itself to find the answers.
  • The appellate court was even more shocked that Plaintiff's brief did not include necessary case law, or reasoned analysis to support her theories. Fed. R. App. P. 28(a)(9) mandates that "appellant's brief must contain an argument" section, laying out (among other things) appellant's contentions and the reasons for them, with citations to the authorities and parts of the record on which the appellant relies... "


Continuing its reprimand, the appellate court went on to say that defendant's brief actually clued plaintiff into problems in her brief, and yet to no avail, as her "reply brief is not really any better than her first." Noting that she did include some record cites, she cited no case law at all.

Clearly frustrated, the appellate court advised that the work was not of the quality that would allow it to decide difficult questions, and the court doing her work for her was not an option, since that would divert precious judge-time from other litigants who could have their cases resolved thoughtfully and expeditiously because they followed the rules.

"Judges are not like pigs, hunting for truffles," the Court said.

The court concluded that attorneys are human and can make occasional mistakes, and if they do not create unfairness to the other side or impair the court's ability to comprehend a party's papers, they will not result in severe consequences. However, major breaches will, and the violations in this case were certainly major, "given that they cripple any attempt to review the issues intelligently," said the Court.

The appellate court therefore dismissed plaintiff's appeal with prejudice, and made sure to underline and bold the words "with prejudice," just in case anyone happened to miss just how annoyed it was.

Attorneys are reminded that failure to comply with rules of the court will result in significant consequences for their clients, like here, where plaintiff will not be allowed to re-file her claim.

Given the analysis by the 1st Circuit court, one can only assume that a malpractice action may be looming in this attorney's very near future.

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