Too big Abner


In keeping with the unfortunate theme of my last entry, a poster child for attorney misbehavior vis-a-vis appellate briefing was memorialized in a decision from the Seventh Circuit yesterday, Abner v. Scott Memorial Hospital  [].

This was an appeal from a qui tam dismissal.  The drafter of the opinion was Judge Posner.  The appellant submitted a brief 4000 words over the word count.  The appellee pointed this out in a footnote in its brief.  In reponse to an order to show cause that then issued from the Court (the appellant filed no reply brief), the appellant said he “inadvertently considered only the words included in the argument section of the brief as part of the Rule 32(a)(7)(B)(iii) requirement (the word count also did not factor in citations made within parentheticals).”  He did not then apologize and seek to file a compliant brief, but rather "insist[ed]" that the 18,000 word brief be allowed.

As you might suspect, Judge Posner was not amused.  He noted how the mistake could not have been inadvertent since the rule is unambiguous, and struck the brief.  He noted:

?We could go further. As the Supreme Court pointed out in  Chambers v. NASCO, Inc., 501 U.S. 32, 44-45 (1991), a court has the authority “to fashion an appropriate sanction for conduct which abuses the judicial process,” including the “particularly severe sanction” of dismissal.

?While the court couldn't find "any cases in which a court dismissed an appeal for violation of Rule 32 alone," Judge Postner said that "our court and other courts of appeals as well have done so for violations of Rule 30 (or have summarily affirmed the judgment appealed from, as a sanction for such violations), which specifies requirements for the form and content of appendices to briefs."  This was followed by a long string cite. 

In making this point about the scope of sanctions from other courts, one of the cases cited was Ortiz-Lopez v. Sociedad Espanola de Auxilio Mutuo y Beneficiencia de Puerto Rico, 248 F.3d 29, 37 (1st Cir. 2001), a case involving dismissal from discovery abuses. []. 

Again, there should be no excuse for not following rules, or at least the ones that are clear, like this one.  Even more obviously, there's no excuse for not fixing things and making them right if you have screwed up.  "Insisting" on things with a court is usually not the way to go.