Last Friday, the Fifth District Court of Appeal  reminded  practitioners that the Florida Rules of Appellate Procedure are not just helpful suggestions.  In Hagood v. Wells Fargo, 5D12-2016, (Fla. 5th DCA May 17, 2013), the Fifth took three attorneys to task for a parade of errors that ran afoul of the Rules, issuing this general disclaimer for unsuspecting readers:

[WARNING:] The quality of the legal work performed by [the] attorneys in this case is disturbing.

How disturbing is it, you ask?  Well, at the end of its opinion, the Fifth asked the attorneys for the Appellant, Mr. Hagood, to show cause why they shouldn't be sanctioned.  While we don’t derive any schadenfreude from the mistakes of our fellow officers of the court, we do try to learn from those mistakes and pass on that knowledge to others, because there, but for the grace of God, go us all.

That being said, Appellant's counsel made not one, but three potentially sanctionable errors:

Accordingly, pursuant to Florida Rule of Appellate Procedure 9.410, each attorney for Appellant named on the briefs shall, within 10 days, show cause in writing why sanctions should not be imposed for [1] violating the appellate rules of procedure regarding the provision of record support for facts, [2] for misrepresenting the facts in the initial brief, and [3] for filing a legally untenable and therefore frivolous reply brief.

Let’s take these errors one at a time.  First, Florida Rule of Appellate Procedure 9.210(b)(3) provides that when drafting the statement of the case and facts, “[r]eferences to the appropriate volume and pages of the record or transcript shall be made.”  This means citing to the record in order to support “each material statement of fact.”  2 Fla. Prac., Appellate Practice § 16:16 (2013 ed.).  Not only will you avoid sanctions by following this rule, you will also help your case by providing clarity to the court.  But Appellant’s counsel completely disregarded this rule:

Like Appellant’s initial brief, the reply brief fails to properly cite to the record on appeal to support any factual assertions.

Second, an attorney’s duty of candor to the court actually extends to appellate process too!  Not only did the Appellant’s counsel misrepresent facts, they misrepresented the facts in a painfully conspicuous way:

The brief repeatedly asserts the total lack of notice — a fact that Appellant represented was “uncontroverted."

Appellant’s own counsel, however, controverted the lack of notice themselves in their lower court papers.  In support of a motion for rehearing and to vacate, Appellant’s counsel attached an affidavit “attesting to the fact that the notice of hearing had been received but not calendared due to a clerical error.”

“Uncontroverted" is a very powerful adjective that will send up red flags to the reader (be it a judge or opposing counsel).  It is good practice for counsel to double (nay, triple) check any fact he asserts is uncontroverted, because the reader will certainly check for herself.  

And check they did.  Appellee’s counsel reminded Appellant’s counsel of their lower court admission that notice had, in fact, been received.  Unfortunately, even after being called out, Appellant's counsel remained steadfast in their misrepresentation:

Again inexplicably, rather than attempt to correct the initial brief, Appellant’s counsel filed a reply brief, ignoring the discrepancy in the initial brief and attempted to raise for the first time the issue of whether the denial of the motion to vacate was an abuse of discretion.

That leads us into our third and final sanctionable error, filing a frivolous brief.  Appellant’s reply brief (i) contained an argument not raised in the initial brief, (ii) failed to correct factual errors, and (iii) was devoid of any citations to the record.  Appellate Rule of Procedure 9.210(d) dictates that the “reply brief shall contain argument in response and rebuttal to argument presented in the answer brief.” 

When drafting a reply brief, counsel must hew closely to the arguments raised in the initial and answer briefs.  Failure to do so could result in the brief being stricken.  And the Fifth DCA sent a signal in Hagood that it might also consider any reply brief that presents new arguments, or that is devoid of response and rebuttal, to be frivolous — possibly subjecting its authors to sanctions. 

Moral of the story:  It should go without saying, but before filing any pleadings in Florida’s appellate courts, counsel would do well to read through the Florida Rules of Appellate Procedure, paying close attention to Rules 9.210 on Briefs, and 9.300 on Motions.  And then, counsel should strive to follow those Rules.  As the Fifth DCA pointed out in Hagood, failure to abide by the rules could result in sanctions — and possible bar complaints.

(Speaking of bar complaints, why is the Florida Bar questioning the author of the JAABlog?  South Florida Lawyers, the Southern District of Florida Blog, and the Justice Building Blog have a joint post on this budding First Amendment issue.)