Frivolity - In the Eye of the Beholder

A lawyer's job includes zealously advocating for clients. That's advocating when a claim isn't strong, trying to make the best of a weak hand, and at times fighting uphill battles. At the same time, lawyers have an ethical duty not to pursue frivolous claims. How and, as it pertains to this column, when, do we draw the line? A case that arguably may be meritorious at trial may lack merit on appeal, and as a recent 8th Circuit decision demonstrates, a case that has legs when appealed may lose them as the case progresses.

Last month, we noted that appellate practice is technical, requiring knowledge that cannot always be gleaned from a casual reading of the rules. Eric J. Magnuson & Lisa Lodin Peralta, "Briefly: The Ethical Duty of Competence on Appeal," Minn. Lawyer (Jan 18, 2016). This month, we pick up that same strand, but focus on how misunderstanding the game of appellate litigation can come back to bite an overzealous attorney.

Meyer v. U.S. Bank Nat'l Ass'n., No. 14-1560 (8th Cir. July 6, 2015), provides an example of the pitfalls of pursuing a theory too doggedly and in being too single-minded. Meyer was a lawsuit over bank loans and a trust. It was contentious and complicated. The plaintiffs lost in the district court. Not only did they lose, but the district court imposed Rule 11 sanctions. Plaintiffs appealed, challenging the merits decision and the sanction award. Afterward, the 8th Circuit described the appeal this way "We conclude the appeal was not frivolous but was frivolously argued." How did the appeal drift over the line?

Appeals of sanctions orders are not themselves frivolous, a fact recognized by the 8th Circuit. "[T]he Trust's appeal of the district court's sanctions order, though unsuccessful, was not frivolous. Discretionary orders imposing sanctions on a party or its attorneys are often appealed and are given careful review by this court." But as the appeal progressed, the appellants tried to make a silk purse out of a sow's ear, or to mix metaphors even more, put lots of makeup on the pig, makeup not supported by law or fact. Instead of arguing from current law, appellants cited old cases decided prior to an unfavorable amendment to Rule 11. The appellate court castigated appellants and their counsel for mischaracterizing the law, and making completely irrelevant arguments. In the end, the court decided that the conduct of the appellant and his counsel warranted an award of double costs under Fed. R. App. P. 38.

Federal Rule of Appellate Procedure 38 provides that "[i]f a court of appeals determines that an appeal is frivolous, it may … award just damages and single or double costs to the appellee." If you aren't sure what makes an appeal frivolous at the outset, this isn't much to go on. The commentary provided with the rule proves no more enlightening. Nowhere does it mention the substantive standard of conduct required by the rule. Often it is hard to judge when an argument crosses the border from tough to frivolous. "Frivolity, like obscenity, is often difficult to define." WSM, Inc. v. Tenn. Sales Co., 709 F.2d 1084, 1088 (6th Cir. 1983).

In keeping with the common law tradition, we can probably best get an idea of the substance by examining how Rule 38 has been applied. Tactics and arguments that have been held frivolous crystalize into two categories. To use the 8th Circuit's terminology, appeals may be "frivolous as filed" or "frivolous as argued." And the context of a case makes a lot of difference. As the court said in Meyers, "Frivolousness is determined . . . not in the abstract but in relation to the arguments actually made by the appellant."

A claim is frivolous as filed if it is so completely lacking in merit and the judgment below so plainly correct that there is really no appealable issue. Since appellate courts are courts of review, and hope springs eternal that a fresh perspective might yield a different result, this is a pretty low bar. The various sins of filing frivolous appeals include seeking to relitigate issues already adjudicated, International Ass'n of Machinists & Aerospace Workers v. Boeing Co., 833 F.2d 165 (9th Cir. 1987); appealing against individuals for whom there is no basis to appeal, McConnell v. Critchlow, 661 F.2d 116 (9th Cir. 1981); or rearguing positions already ruled frivolous at the district court, Optyl Eyewear Fashion Int'l Corp. v. Style Cos., 760 F.2d 1045 (9th Cir. 1985).

So what makes an appeal frivolous as argued? Specifics differ, but broadly an attorney should avoid basing an appeal on the irrelevant or illogical, or stretching beyond recognizable the law, the facts, or the opinion below. Appellate arguments that fail to explain how the lower tribunal erred are the most obvious tripwire here. Spiegel v. Continental Illinois Nat'l Bank, 790 F.2d 638 (7th Cir. 1986) (sanctioned attorney appealed a finding of res judicata without mentioning the doctrine). Likewise, briefs making no attempt to address the elements requisite for reversal run afoul of Rule 38. Olympia Co. v. Celotex Corp., 771 F.2d 888 (5th Cir. 1985) (sanctioned attorney appealed a finding of no antitrust injury by highlighting affidavits claiming injury only through competition). Appeals offer a chance for a second opinion on a dispute, but specific standards of review make what might be an arguable position at trial less than tenable on appeal, where it might be subject to a "clearly erroneous" or "abuse of discretion" standard.

More pernicious still is misrepresentation. As the Federal Circuit has noted, "[b]y forcing the court to expend extra time and effort in carefully double-checking every reference . . . lest we be misled, such argumentation threatens the integrity of the judicial process and increases the waste of resources." Romala Corp. v. United States, 927 F.2d 1219, 1224 (Fed. Cir. 1991). Misrepresentation can include assertions of fact not supported by the record, or specious arguments relying on misstatement of a clear lower court ruling, the vice indulged in Meyer.

Several state courts have adopted rules that more clearly define frivolous appeals. Many also include separate provision on bad-faith appeals, which seems to indicate that good faith is not relevant to appeals that are completely without merit in law, or that make material misstatements. Most federal courts have agreed that "Rule 38 … has nothing to do with the mental state of the person sanctioned." 927 F.2d at 1226.

What could Meyer's attorney have done to ensure the appeal didn't stray into frivolous argument? As the appellate court noted, it was poor argumentation that pushed the appeal over the edge. Appellants doggedly claimed the district court improperly dismissed the case under Rule 12(b)(6), even after being repeatedly informed that the ruling was on summary judgment. The brief arguing Rule 12 law was completely inapposite.

The second mistake is more difficult to read charitably, but certainly easier to correct. The court of appeals found that, in arguing that Rule 11 did not cover frivolous litigation brought in state court and later removed, appellants relied on a glaring misrepresentation of governing law. They cited only precedent from before an amendment to Rule 11 explicitly covered "later advocating" state-court filings. Given that the amendment was made in 1993, it is hard to accept that this was anything other than an attempt to pull a fast one on the court. While counsel may have thought that there was no avenue to success under the current law, and maybe, just maybe, they could get away with fast and loose play, that gambit failed, as it does in virtually every case it is tried. Eliding two decades of relevant law in a long shot attempt to win an appeal is not just bad strategy, it is sanctionable.

A reading of Rule 38 provides only limited illumination to an attorney in the dark about ethical obligations. But a quick tour of cases where attorneys have pushed too far helps clarify, and in the end, the rules are pretty simple. Don't make arguments that are irrelevant or merely waste the time of the court; be honest about the state of the law; and argue the facts you have, not the facts you want. The best way to ensure we follow these rules is to do exactly what Rule 11 already asks at the trial level: take a second to stop, think, and reflect before putting pen to paper.

Reprinted with permission of Minnesota Lawyer ©2016

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