Upgrade your account to a Community Supporter account and remove most of the site ads.

Reply to thread

Message: <blockquote data-quote="Snarf Zagyg" data-source="post: 9430910" data-attributes="member: 7023840">Okay. I went through it quickly, and ... yeah I will not inflict that on anyone else by making it a separate explainer post. There's too much wrong with it to use as an explainer about appellate issues. So I will very briefly describe my problems with it.1. It doesn't follow the requirements of an initial brief under FRAP (Federal Rule of Appellate Procedure) 28. There is supposed to be a jurisdictional statement (Br. 9-10), and while it kinda sorta does the timeliness thing, it doesn't have the basic "this is the district court's jurisdiction, this is the appellate court's jurisdiction, this is the final order that disposed the claims." Basic stuff.2. The facts section. OMG. First, you get a little play to have an introduction or a preliminary statement. But this? It's seven pages (Br. 10-17) of rambling, with legal citations (NO!) making a policy argument that asserts facts with no citations to the record (NO!) and made me cry a little inside. It was painful.3. Then, the detailed fact section (Br. 17-24). Again, there are factual statements that do not have citations to the record. There are references to things that are not in the record. Many times! Over and over! You can't do that. And the fact section is just argument- you can certainly arrange your facts to make an argument, but you can't simply argue in your fact section.4. The final fact section (Br. 24-28), the decision by the district court, is again argumentative. In addition, it makes the error of trying to personalize the issue. Never attack the trial court; just point out what the decision states.In short, I am already regretting reading this. This is poor appellate advocacy. Very poor.Next, the arguments. As I previously stated, the worst thing you can do as an appellant is to kitchen sink it- if you have bad issues, then don't raise them.Let's start with the thing that immediately was noticeable. When you appeal, you always tell the Court what the standard for the appeal is. So when I got to pages 30-33 of the brief, I was mortified. You don't tell the appellate Court what the district court's standard is. You say, "The standard of review is de novo, as the lower tribunal dismissed the complaint for failure to state a claim."Next, the first argument (about service) is terrible. It shouldn't have been made, and it's worse because it's the first thing the appellate court sees. The argument should be that the lower court should have allowed time to serve, not that no service is service.The second argument (defamation) makes the classic mistake of not sticking to the order being appealed, and instead makes a general free-roaming argument. And it's filled with bizarre footnotes that don't help. This could have been a good argument- and it's the one that might have merit, but I couldn't follow it. At all. It's terrible.IIED and prima facie? Ugh.Finally, the leave to amend argument. Again, the problem with this is that instead of focusing on the issue in the order on the MtD (failure to request leave, etc.), this is just a bizarre attempt to re-argue the service argument. NO. ARGHH! There is a lot of good case law on leave to amend, this is something that should have been competently argued. Not even close.TLDR Appeals are about raising specific issues. It's not about the airing of grievances. This is a terrible brief. It doesn't mean that it is destined to lose, but a brief like this makes it so much harder to win an appeal. The appellate court doesn't care about your case. They want to know what specific legal issue are you raising, and what are the specific facts in the record.ETA- I should add that I regret looking forward to this. I thought it would be fun! Instead, it wasn't comedy gold, but it also was bad enough to make me cringe repeatedly.</blockquote>

Verification