WELCOME TO THE OFFICIAL RICHARD E GERSTEIN JUSTICE BUILDING BLOG. THIS BLOG IS DEDICATED TO JUSTICE BUILDING RUMOR, HUMOR, AND A DISCUSSION ABOUT AND BETWEEN THE JUDGES, LAWYERS AND THE DEDICATED SUPPORT STAFF, CLERKS, COURT REPORTERS, AND CORRECTIONAL OFFICERS WHO LABOR IN THE WORLD OF MIAMI'S CRIMINAL JUSTICE. POST YOUR COMMENTS, OR SEND RUMPOLE A PRIVATE EMAIL AT HOWARDROARK21@GMAIL.COM. Winner of the prestigious Cushing Left Anterior Descending Artery Award.

Monday, November 18, 2019

A MONSTROSITY OF AN APPELLATE BRIEF

There is good writing and bad writing. Some people like Shakespeare, others like Dashell Hammett. Personally, outside of "The Old Man and the Sea" we do not care for Hemingway. Writing, like cuisine, is in the eye of the beholder. McDonalds for some, Per Se and Eleven Madison Park  for us.

But no lawyer wants to see this in the start of an opinion in McCurry v. Kenco, from the Seventh Circuit:

We affirm. McCurry doesn’t challenge the judge’s decision to enforce the local summary-judgment rule. As a result, and unsurprisingly, the uncontested record contains no evidence to support a viable discrimination or conspiracy claim. Indeed, the appeal is utterly frivolous and McCurry’s monstrosity of an appellate brief is incoherent, so we also order her lawyer, Jordan T. Hoffman, to show cause why he should not be sanctioned or otherwise disciplined under Rules 28 and 38 of the Federal Rules of Appellate Procedure.

"Surely you jest Rumpole. It cannot be that bad", you say. We report- you decide:

McCurry’s response to the defendants’ motions... was instead a disorganized, rambling, hard-to-decipher mess. 

"But what about the arguments in the brief, Rumpole? Surely they must have had some legal merit?" 
Well, in what may be a first in US jurisprudence, the brief did not have (steady now) ...an arguments section!!
Although McCurry did not include an argument section in her brief, her arguments were scattered randomly throughout her 62-page response, in probable violation of Local Rule 7.1(D)(5), which (by crossreference to Rule 7.1(B)(4)) limits the argument section of a response brief to 15 pages or 7,000 words. 

And file this part of the opinion under the "tell us how you really feel judge" file: 
Her appellate arguments are insubstantial to the point of incoherence and had no chance of prevailing in this court. “The result has been the harassment of opposing parties, insult to judicial officers, and waste of limited and valuable judicial resources.” 

And now to the fun part: 
The patently frivolous nature of this appeal isn’t the only thing that troubles us. The hopelessness of McCurry’s cause didn’t deter her lawyer, Jordan Hoffman, from signing and submitting a bizarre appellate brief laden with assertions that have no basis in the record and arguments that have no basis in the law.

McCurry’s brief, which spans 86 interminable pages, is neither concise nor clear.  It is chock-full of impenetrable arguments and unsupported assertions, and it is organized in ways that escape our understanding. Here is a representative sample: 

The brief includes a section entitled “GAMESMANSHIP ,” which contains the following assertion: “Defendants have been ‘gaming’ the system.” There is nothing else in the “gamesmanship” section.

The brief contains many sentences like this one (all errors in original): McCurry experiences a change in fringe benefits; harsher scrutiny; failure to be promoted; lack of opportunities; lack of professional standing; economic sanctions; hostile work environment that led to an employee being shot on the premise, various verbal and physical assaults of AfricanAmericans by Caucasian employees of use of gun violence, vehicular assault, amongst other forms of violence, the ever looming threat that a racially motivated altercation or riot may ensue and physical damage to McCurry’s auto amongst actions/activities/ conduct.

This just hurts: 
There is more, but the point is made. Bad writing does not normally warrant sanctions, but we draw the line at gibberish

And this hurts even more:
Because we have a duty to “maintain public confidence in the legal profession” and “protect[] the integrity of the judicial proceeding,” Doe v. Nielsen, 883 F.3d 716, 718 (7th Cir. 2018) (quotation marks omitted), we confronted Hoffman about his brief at oral argument. He replied that he is a “solo practitioner” who tries “to get the help of … clients and whoever can provide help to [him]” and then “merge[s] that information.” Whatever that means, it in no way excuses this unprofessional conduct. 

Rumpole. who routinely rejects all proffered help from clients and the "whoevers" of the world, says: "OUCH!" And we don't really merge information. If anything, we fight the merging of information by big brother, amongst others. 

FN 4 of the opinion is the cherry on the sundae: 
4 He signed the brief on behalf of “plaintiff-appellant Mary Madison,” who is not a party in this case. This is yet another way in which the brief is “out of the ordinary.” 

The whole, scathing, scalding opinion is here for your perusal:


10 comments:

Anonymous said...

And even with this body slam of an opinion, they miss the most grievous error: the repetitive and unnecessary use of the semi-colon, every writer's favorite way to show off a supposed superior knowledge of syntax.

Anonymous said...

Anonymous said...

I think this guy was head of PD appeals for a while before heading out to Chicago....ba dum bum.


Fake Hoffman, Esq said...

Hey, I may be a bad lawyer, but I got an opinion baby. No PCA for me. How many of you hacks can say that?

Anonymous said...

The only thing missing from the bad brief was the requisite bad-brief-Shakespeare cite that drives appellate judges nuts.

Anonymous said...

Talking about brevity, it took the 7th circuit 16 SIXTEEN pages to deny the appeal.
Um, guys, you coulda shoulda been able to do it in less then ten. Just sayin...

Real Fake Blecher said...

I'm just guessing here, but no motion for rehearing? That would have made this guy my hero. A motion for re-hearing would have take HUGE set of brass cojones.

Come-on man--- do it.

Anonymous said...

12:31:00 had my falling down and laughing.

Real Fake Former Judge said...

RFB is the man

Real Fake Blecher said...

No you da man