At the Supreme Court, the Seventh Time is Not a Charm [Ed.--Justices Call Lawyer Out About Honesty of Statements in His Brief]

Seven may be Eric Brunstad Jr.'s unlucky number. Brunstad, who works out of Bingham McCutchen's Hartford Conn., office, has been building an impressive Supreme Court practice in recent years by taking on out-of-the-way bankruptcy and estate law cases � one of which, Marshall v. Marshall, turned into a very high-profile case because he was representing J. Howard Marshall, the late Anna Nicole Smith's ex-husband, who lost. That was the 2006 case, if you recall, that probably brought the high court more publicity than any case since Bush v. Gore in 2000.

Brunstad's ability to grow a Supreme Court practice from outside of the nation's capital recalls the prowess of Jeffrey Sutton, the former Jones Day partner who dominated that firm's Supreme Court litigation from his Columbus, Ohio office before becoming a federal appeals judge in 2003.

Today marked Brunstad's seventh oral argument, and it was a doozy, with justices hitting him harder than almost any lawyer in recent memory.

The case was Preston v. Ferrer, an arbitration case that also has a modicum of celebrity appeal because of the identity of Brunstad's client. Brunstad was arguing on behalf of Alex Ferrer, a former Florida judge who stars in the syndicated "Judge Alex" TV show in which, ironically enough, he arbitrates disputes between ordinary folks over issues like falling trees and damaged furniture. The dispute that attracted the Supreme Court's attention was between Ferrer and his former California agent Arnold Preston over their management agreement which contains an arbitration clause. The issue was whether the dispute should be handled under the Federal Arbitration Act or under a special California law that governs talent agents' contracts.

Justices were unusually friendly toward Preston's Beverly Hills lawyer Joseph Schleimer of the firm Schleimer & Freundlich, who argued that the federal law should preempt the state law.

So by the time Brunstad rose to argue, he was already in a deep hole that was hard to climb out of. But you would not know it, given Brunstad's confident style, broad smile and booming voice. The justices hammered away hard at his position against preemption, however, arguing in essence that allowing state intervention would thwart the purpose of arbitration. Brunstad's smile vanished. Then it got ugly when Justices Anthony Kennedy and Ruth Bader Ginsburg started questioning the accuracy of statements he had made in his brief.

Kennedy challenged Brunstad to amend or "qualify" two statements he had made about the record in the case. Brunstad gamely defended what he had said, but eventually � no doubt to move off the subject � Brunstad agreed to a "factually accurate addition" to his brief. Ginsburg also piled on, pointing out another seeming contradiction between what Brunstad had said from the podium and what was in his brief. Brunstad again confessed error: "I wish to clarify that." Kennedy dealt the harshest blow, telling Brunstad, "If you have repeated statements in your brief that require qualifications... shouldn't we view with some skepticism what you tell us?" Brunstad soon sat down, looking deflated.

Standing outside the Court a few minutes later, Brunstad seemed stunned and weary but he stayed outwardly positive. He insisted that everything in his brief was accurate, noting that the point that Ginsburg disputed was actually something he had drawn from the lower court opinion. "It was a little strange," Brunstad said of his experience, adding with a smile, "Some days are harder than others." But he won't have much time to mope. Soon he will begin preparing for his next Supreme Court argument, in March or April. He'll represent the respondent in a bankruptcy case, Florida v. Piccadilly Cafeterias, Inc.
BLT Blog Post

I have found that appellate justices each possess the uncanny ability to find factual flaws in briefing. Like rats on cheese, they find the errors and attack! For the few appellate justices who do not innately possess this ability, I belive they teach a class on the topic at "new judges school."

The solution for all practitioners, on both sides of the podium, is to always follow any sentence in one's brief that asserts a fact (whether critical or non-critical) with a direct citation to the record (clerk's record, reporter's record, or both--the latter being preferable). This process forces the author to test the accuracy of every assertion by comparing the argument with the record citation's substance, and this process ultimately results in a better brief (in my opinion.) Many appellate justices prefer to see such citation in both the statement of facts and in the main argument sections of the brief. (In other words, don't make the judge do extra work by flipping back and forth from the main body to the SoF just to find the citation. Make things easy by providing all the information in one tidy location.)

Woe be unto he or she who attempts to misrepresent or even "shade" the facts in a case. Appellate justices (and their staff) keep track of attorneys who misrepresent the record. Some justices are able to remember the exact case and context; others resort to written lists. All remember.

Even if a lawyer has never been before this particular court before (i.e. a transferred case), never forget that appellate justices from one court talk to justices at other courts. (And federal judges and justices talk to state judges and justices.)

Just some free advice.

While this is certainly not an excuse to deviate from the above recommended behavior, these same judges also have their moments of inaccuracy. It can be galling sometimes.

Just how far should we go in pointing out statements in briefs that are less than honest? The TRAP rules used to require you to point out innacuraccies, but that is now limited to civil cases. TRAP 38.1(f). The Supreme Court still has such a rule. See Rule 15.2.

Do you only try to correct material mis-statements? How do you determine whether a mistake or lie is material? How do you point it out to the court?

My practice has usually been to soft pitch stuff like that when the fact in question mattered: "Appellant claims the officers had no reason to stop him. The record shows, however, that the officers noticed Appellant's car because of its loud muffler and stopped him because of a regional warrant hit on his license plate."

If the other side keeps harping on something that is clearly wrong, however, I have done something like this: "Rule 3.03 of the Texas Rules of Disciplinary Professional Conduct provides that a lawyer shall not knowingly 'make a false statement of material fact or law to a tribunal.' Tex. Disciplinary R. Prof. Conduct 3.03(a)(1). The Application, returnable to the Court of Criminal Appeals and filed in the ____________Court of ____________ County, Texas, states that Applicant�s trial team did not do things that the record definitively shows they did. (Application at 50-51 n.9). Accordingly, Respondent expects that Applicant will take appropriate remedial measures regarding these egregious mistatements. See Tex. Disciplinary R. Prof. Conduct 3.03(b)."

Prior to that, I set out in detail how the record refuted the statements in question. The other side, of course, just replied "we didn't lie, we didn't lie" and essentially ignored the problem. I won, but the courts did not tag the other side for their big lies. On one occaision, I have had a Court admonish opposing counsel for stating in his brief, repeatedly, that a victim did not identify the defendant in court even though the victim had.

We presume the appellant's statement of facts is, at best, incomplete, and simply present our own, accurate and complete version of the facts. Over time, I believe appellate judges come to recognize who is trustworthy.

I always do my own, too. You can't let the other side choose the battlefield that way.

I was really trying to see what other people do about controlling what the other side says. I agree that the State's Statement of Facts is generally sufficient to control things. But at what point should we go past that and point out the other side's fouls?

[This message was edited by JohnR on 01-29-08 at .]

I ahve found that I generally must always supply a Statement of facts which may be, on its face, a dry recitation of the facts in the case but is a factual basis for the court to judge the arguments of the briefs on both sides because some members of the defense bar have changed the facts so much it is hard to believe they are reading the same transcripts that I am or that they are reading about a different trial altogether.

I'm currently deep in the middle of a brief where the Appellant's attorney says that the mother of a dead child 1) only claimed to love her daughter, 2) cried out of guilt not love, 3) botched her dead daughter's life and now it's too late to repair it. He then attacked her as being an unfit mother because one of her adult daughter's had a child out of wedlock and criticized her for not loving her daughter enough to seek child support from her ex-husband. He basically says that she deserved to have her daughter killed by the defendant, a friend who let the child ride on the front of her truck. (The child fell off and her head was crushed by the truck tire.)

This is just the tip of the iceberg. If this guy made the arguments and mischaracterizations he's made in this brief in front of a jury, he'd be crucified. Additionally he makes claims that the poor mother was shrieking and sobbing in the courtroom. Not only does the record not support this, it just didn't happen. This thing reads like a cheap novel.

Originally I had planned on following the advice of my mother and my grandmothe before her, and rising above, but I had to address some of his false claims to answer one of the points of error. I have just refered to the record and pointed out that the events described didn't happen, so they couldn't have been the grounds for any error.

But my tongue is getting sore from all the biting I've been doing. And the backspace key on my keyboard is getting a workout from all the inappropriate responses that I've deleted.