When the first sentence of an appellate opinion is ‘[t]his is an appeal run amok,” you know there’s trouble ahead for the appellant’s lawyer. And when the next sentence is “[n]ot only does the appeal lack merit, the opening brief is a textbook example of what an appellate brief should not be,” you know it’s not going to be pretty.
The court didn’t pull any punches in its assessment of the appellant’s brief in In re S.C.. 138 Cal. App.4th 396 (2006). In that case. the county filed a dependency petition on behalf of a minor with Down’s Syndrome, based on the minor’s allegations that she had been sexually molested by her stepfather and her mother’s failure to protect her from continuing abuse. The trial court judge declared the minor dependent and found it would be detrimental to return her to her mother’s custody. The mother appealed.
The court explained:
In 76,235 words, rambling and ranting over the opening brief’s 202 pages, appellant’s counsel has managed to violate rules of court; ignore standards of review; misrepresent the record; base arguments on matters not in the record on appeal; fail to support arguments with any meaningful analysis and citation to authority; raise an issue that is not cognizable in an appeal by her client; unjustly challenge the integrity of the opposing party; make a contemptuous attack on the trial judge; and present claims of error in other ways that are contrary to commonsense notions of effective appellate advocacy—for example, gratuitously and wrongly insulting her client’s daughter (the minor in this case) by, among other things, stating the girl’s developmental disabilities make her “more akin to broccoli” and belittling her complaints of sexual molestation by characterizing them as various “versions of her story, worthy of the Goosebumps series for children, with which to titillate her audience.”
The court did lay some responsibility at the feet of the presiding justice, who granted the appellant’s request for leave to file an oversized brief. Nevertheless, it concluded that “[h]aving reviewed the issues raised in the opening brief, and having examined the record, we now can say that nothing in this case required the filing of an oversized brief, and surely nothing required filing such an unprofessional and, in many respects, virulent brief of 76,235 words.”
In Part 2 of this article, we’ll further examine the court’s criticisms of the brief, and I’ll reveal the consequence the offending attorney faced.