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Indiana Lawyer Reamed for 'Abject Failure' at Appellate Briefing

By Casey C. Sullivan, Esq. on October 27, 2015 | Last updated on March 21, 2019

If you make a mistake in court filings, you can always ask for leave to correct it. It's embarrassing, sure, but it's common enough. What you shouldn't do, of course, is use the court's leave to correct as a way to sneak in 37 pages of new arguments. You especially shouldn't pretend that those pages are just a table of contents and expect that no one will notice.

But that's exactly what happened to one Indiana lawyer, who submitted appellate briefs that were, in the court's opinion, "an abject failure." The court's response? Call her out, of course, in a scathing benchslap that thanks the attorney's opponents for putting up with her and that considers requiring her to take a CLE on appellate practice before submitting any more briefs.

From Apartment Complexes to Appellate Court

The scathing benchslap from the Indiana Court of Appeals stems from a spat between Eric Brazier and Maple Lane Apartments. Brazier claimed he performed about $60,000 in painting services for Maple Lane without being paid, the Indiana Lawyer reports in a story that came to us through Above the Law.

At court, Brazier submitted a series of invoices for the work. Under oath, however, he admitted that he created the invoices only after meeting with his attorney, Kristin R. Fox. Whoops. Brazier lost and Fox was sanctioned, since she had repeatedly asserted the authenticity of the invoices and failed to correct any misrepresentations. Not willing to give up so easily, Brazier and his attorney appealed.

Not Your Typical Table of Contents

Appellate court was where things really turned bad for Fox. The attorney, apparently unfamiliar with the rules of appellate practice, submitted a brief which suffered from a host of page number and citation errors. Fox was given leave to amend the brief in order to correct those issues. With the amended brief, a one page table of contents grew to be an amazing 37 pages long. Yes, that's 37 pages. For a table of contents.

Of course, calling it just a typical TOC is disingenuous, as we're sure Fox knew. Indeed, it was a whole host of new arguments in full paragraph form and with citations to the record, and simply titled "Table of Contents." It included headings from A to ZZ. Meanwhile, the brief's actual argument section included no subheadings whatsoever.

The court was not amused. In a brilliantly snarky footnote, Judge Margret Robb rips Fox apart. It's worth quoting in full:

Counsel's failures to follow even the simplest rules regarding the content of an appellate brief have made our review of this case unnecessarily difficult. We commend Maple Lane for largely refraining from comment on the quality of the brief and endeavoring to respond to the legal arguments. Were it within our purview to do so, we would order Brazier's counsel to verify to this court her attendance at a continuing legal education program regarding appellate practice before submitting any further briefs to this court. Although it would be within our purview to order counsel to show cause why she should not be held in contempt for willful violation of this court's order granting leave to amend the brief to correct technical errors only and specifically prohibiting any substantive changes, counsel does not appear to frequently represent clients on appeal nor has she been previously cited for poor briefing practices. Therefore, we have chosen not to take such extreme measures at this juncture. Nonetheless, we admonish counsel in the strongest possible terms to carefully review the appellate rules and fully conform her briefs to their requirements in the future

Though the court didn't require it, it might be a good idea for Fox to take that CLE after all, we think.

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