10 Major Errors The Appellant Attorney Made With Her Filing, Number 2 Will Shock You!

I won a landlord-tenant case at a Zoom trial earlier this year on behalf of the landlord and received a nice $19,000 judgment for unpaid rent as well as possession back. Tenant lied her tail off in court and it was readily apparent to everyone, not to mention her own text messages to the landlord contradicted her claims in court.

The attorney on the other side was, well, interesting would be a word. 

She's a newer attorney and did some questionable stuff at trial.  This included appearing for trial from her car and often having her video off, which is professional as all heck.  She also added exhibits during trial which is not allowed, and she kept trying to confuse the actual issues that were at trial. But, I still won handily.

She then filed a motion for reconsideration after the judgment, but she filed it late, and she never served me with it.  

These are two major problems. 

This combination of non-service and lack of filing timeliness would be a recurring practice.

The first moment that I learned she had filed the motion was when the judge sent out an order dated March 9, 2021 denying it as it was a complete failure of a motion and didn't actually conform to the rules regarding a motion for reconsideration.  

In short, it was a word salad bringing up things that were never litigated. This too would be a recurring practice.

Her appeal starts off with quite a fatal flaw - she's a day late, and more than a dollar short.  The last day she could file an appeal is 21 days after the denial on March 9, so March 30 was the cut off, not  March 31.  She missed it by that much. That alone should get it kicked.

Next, I found out that she has filed an appeal only when I get an email from her on April 8 that she had filed an appeal on March 31. No, you cannot file an appeal and wait a week to serve the other side.  You also cannot falsely put on your claim of appeal that you served the other side on March 31 when you did not.

I look through the appeal and it is absolutely done wrong.  The claim of appeal form itself alone has 5 major false statements made on it.  

She even has the parties listed wrong on the form with her client as the plaintiff rather than the defendant. No can do.

She fails to even file the order/judgment she is appealing from, while falsely stating that she had.  She fails to order the transcript, while falsely stating that she had. She even claims she filed a bond and filed an empty bond form with no actual bond, so she's lying about that too.

But wait, there's more!

She files a brief that is totally in the wrong format, and as you can guess it was a word salad almost completely bringing up things that were never litigated in court.

You cannot expand issues beyond what was litigated at the trial court.  You cannot come up with new arguments that you never raised at the trail court.  An appeal is not a do-over, it's supposed to fix any errors a lower court judge may have made.  You cannot make new arguments you never raised before and expect an appeals court to deal with them.  Her appeal is 95% new arguments and new "facts".

She also files exhibits with her appeal that were never filed in the trial court at trial. No, that's really not allowed either.

I point out to her that her appeal is totally wrong and a frivolous appeal and she can't wait a week to serve me with it while claiming to the court she served me a week before. She doesn't care.

So, I draft and file a motion on Wednesday pointing out all these issues to the court and ask her appeal to be dismissed for all these errors or at least all the documents with the errors be stricken which would do about the same thing.  

The court is currently requiring everyone to email for a hearing date rather than the next Wednesday as is normal.  I email after filing the motion Wednesday morning, and the Judge's Clerk replies back in the afternoon that he's working on an order and will get it to me soon.

An hour later, on Wednesday afternoon, I get an order from the Court.

The order does not set a hearing date. 

Instead, the Court issued an order completely dismissing her appeal without a hearing, using the proper caption for the appeal right from my motion.

This almost never happens. Normally, the other side gets to file a response and we argue it on the record.  Her appeal was so bad the Court had the authority to, and did, simply dismiss it out of hand after these issues were pointed out.

Wish I was a fly on the wall when she gets to explain to her lying client why her appeal was dismissed.

What Is Best In Life? Watching Your Opponents Hose Themselves.

Civility, professionalism, and excellence are all qualities a good lawyer should strive to attain.

My opponent today apparently missed that memo.

So there we are, in a pre-trial conference with the Judge's administrator.

Yes, we have difficult clients and yes, it's a bit of a thorny problem but there's no reason why it can't be resolved once the emotion is removed from the equation and the matter hammered out. If we can't settle it today, the court will send it to mediation and if that doesn't do it, then its on to trial. Of course each of these steps cost money so it makes a lot of sense to settle it here and now.

Unfortunately he doesn't seem to want any of it.  After all he's an older attorney and apparently thinks he's all that.

He rudely states that the offer I'm making on behalf of my clients won't settle it as his clients want their attorney's fees for the case.  Yeah and I'm sure my clients would love his clients to pay their fees too, and if wishes were fishes....

I and the court administrator both point out that it doesn't work that way, after all under the standard rule, each side bears it's own attorneys fees.  Since he's mister big experienced attorney he knows this or should know this as well.  In other words he's just posturing instead of really trying to work toward a settlement.

He doesn't seem to care, and he claims my clients' claims are frivolous, which they aren't, and the court administrator points out he didn't file any motion for Summary Disposition which should have been done if they were.  Of course he didn't, because while factually intensive its a pretty darn good claim on a complicated problem.

He ends up declaiming that it will take that payment of his clients fees  to settle the case and then he starts shouting -- including at the Court administrator and trying to talk over her and throw his weight around.

Big mistake and she's having none of it.

You can, if you're so ineptly inclined, be a jerk to opposing counsel (not a good idea as it really doesn't help things, but sadly lots of attorneys do it).

But, being rude, obnoxious and shouting at a Judge's administrator? You're shouting at the one who has the Judge's ear and has been there and done that, and it is not going to win you any points with the Judge nor the Judge's staff.   In any case it is quite unacceptable behavior from an attorney.

So while we sadly didn't settle the case, we did manage to establish to the court's knowledge that opposing council is an ass, and that he is unwilling to work towards settling a case and as such not acting in the real best interests of his clients.

Will this matter?  Probably it won't sway things all that much, but he certainly made a big and unfavorable impression on the court, and that sure can't hurt any.