Thursday, July 14, 2011

Appellate pointers you hopefully didn't need

When the first paragraph of the Fifth Circuit's decision in your case calls it "a petty squabble, masquerading as a civil rights matter, that has no place in federal court or any other court," that kinda signals that you are unlikely to have prevailed on appeal.

Unfortunately, it gets worse for the appellant (and her counsel):
These sentences are so poorly written that it is difficult to decipher what the attorneys mean, but any plausible reading is troubling, and the quoted passage is an unjustified and most unprofessional and disrespectful attack on the judicial process in general and the magistrate judge assignment here in particular. This may be a suggestion that Magistrate Judge Stickney is incompetent. It might be an assertion that all federal magistrate judges are incompetent. It could be an allegation that only Article III judges are competent. Or it may only mean that Magistrate Judge Stickney’s decisions in this case are incompetent, a proposition that is absurd in light of the correctness of his impressive rulings. Under any of these possible readings, the attorneys’ attack on Magistrate Judge Stickney’s decisionmaking is reprehensible.
Probably best not to be remembered by the panel's judges as the attorney who made a "reprehensible" argument.

And then the footnote:
Usually we do not comment on technical and grammatical errors, because anyone can make such an occasional mistake, but here the miscues are so egregious and obvious that an average fourth grader would have avoided most of them. For example, the word “principals” should have been “principles.” The word “vacatur” is misspelled. The subject and verb are not in agreement in one of the sentences, which has a singular subject (“incompetence”) and a plural verb (“are”). Magistrate Judge Stickney is referred to as “it” instead of “he” and is called a “magistrate” instead of a “magistrate judge.” And finally, the sentence containing the word “incompetence” makes no sense as a matter of standard English prose, so it is not reasonably possible to understand the thought, if any, that is being conveyed. It is ironic that the term “incompetence” is used here, because the only thing that is incompetent is the passage itself.
Ladies and gentlemen, Judge Jerry E. Smith. (Via.)

2 comments:

  1. ow!

    I should have kept reading it.

    ReplyDelete
  2. The VC thread has the link to the oral argument, which I'm told begins with the panel's demanding an explanation of the offending paragraph. Oy.

    ReplyDelete