Has anyone here ever filed such an animal? I have received a brief that is so multifarioius and convoluted that I can't make enough sense of it to answer. In addition, the appellant has attached a number of exhibits to the the brief that are clearly inappropriate. It has been suggested that I file a motion to quash the brief. Is this just going to annoy the appellate court, or might they actually grant it? This attorney is a particularly troublesome thorn in my side, and I hate to stir up all the ill will that the motion will generate if there is little chance of it being granted.
Any suggestions or ideas?
Just answer it as best you can or point out in your brief why you cannot respond and let the court (without your prompting) decide whether it complies with the rules or should be ordered re-drafted. Courts claim they never consider anything inappropriately included in the appendix, so just ignore that or cite a case which says it is not part of the record. The attorney is actually a thorn in his client's side.
On those occasions where the Appellant�s brief is so poor that the complaint is actually difficult to address, I have urged for a summary dismissal on the grounds that it is inadequately briefed. See TEX. R. APP. P. 38.1(h); Cardenas v. State, 30 S.W.3d 384, 393 (Tex. Crim. App. 2000). Judging from the frequency Courts have been dismissing grounds on that basis (mostly unpublished) in the last few years, it is a good argument.
Unfortunately, I still feel compelled to address the merits. However, before attempting to address his �perceived claim�, Its worth pointing out that the State�s ability to respond is prejudiced and the answer is based on the best guess at what Appellant is claiming.
Unless you really cannot make any response to the claims, I agree that the Court should decide on its own whether to strike a brief. After all, one way or the other, they still need to reach an opinion, so the most that will result is an order requiring Appellate to redraft (else he would lose his appellate rights). Why seek to force counsel for Appellant to improve his brief? Let him file a reply brief.
I usually try to answer it if it is at all possible. I've never filed a motion to quash just on the basis of it being hard to figure out. I have included a sentence or two as an alternative reply suggesting it was inadequately briefed, but our court is generally reluctant to find that in an opinion.
If you can't figure out what he's arguing, the court probably won't be able to either. I use a bad brief as an opportunity to define the issues for the defendant. In other words, I pick the interpretation of his argument that is most favorable to me & then answer that. I've had pretty good luck doing that. I think that because the courts are generally busy, they don't want to have to decipher a convoluted argument & if someone has done it for them, they'll go with that to save some time.
I've only had one brief where someone attached something that was not in the record. I didn't think that it would affect the outcome of my case, so I didn't file a formal motion. However, I did put in a paragraph reminding the court that they could not consider it. I cited Brown v. State, 866 sw2d 675, 678 (Tex. App.--Houston [1st Dist.] 1993, pet. ref'd). If it was a really important thing they attached, I'd go ahead & file a motion to strike it. By the way, which Court of Appeals is your case in?
I agree with the other responses. One situation where we do file a motion to strike the brief is where the defense files a consolidated brief for multiple cases but does not raise a claim for each case. We consider that to be an inadequate Anders brief for the cases where no claims are made. The Dallas Court of Appeals will strike the brief for the cases for which no claim was made and force the attorney to rebrief. I'm fairly sure that Eastland or El Paso has done it for us, too.
|Powered by Social Strata|
© TDCAA, 2001. All Rights Reserved.