Rules of Professional Misconduct

Seventh Circuit: “We Draw the Line at Gibberish”

Generic legal document—do not imitate

FYI, here are some words and phrases that you would prefer not be associated with either your case or any brief you might file in support of it:

  • utterly frivolous
  • monstrosity of an appellate brief
  • incoherent
  • disorganized
  • a rambling, hard-to-decipher mess
  • woefully noncompliant
  • the judge showed remarkable patience
  • sprawling
  • even more rambling
  • baseless
  • clearly not enough
  • a shameful waste of judicial resources
  • the violations are multiple and flagrant
  • insubstantial to the point of incoherence
  • had no chance of prevailing in this court
  • patently frivolous
  • the hopelessness of [plaintiff’s] cause didn’t deter her lawyer from
  • bizarre
  • assertions that have no basis in the record
  • arguments that have no basis in the law
  • 86 interminable pages
  • chock-full of impenetrable arguments and unsupported assertions
  • organized in ways that escape our understanding
  • the term “brief” … seems inapt here
  • also a typographical nightmare
  • five different fonts
  • including three different fonts in one sentence
  • capitalizes words seemingly at random
  • outrageous
  • (all errors in original)
  • overly long, borderline-unintelligible
  • frustrated
  • shockingly irresponsible
  • far below the reasonable standards of practice

and

  • bad writing does not normally warrant sanctions, but we draw the line at gibberish

You might want to print out this list and tape it up next to your monitor. That way, should the screen display any sentence or document that falls within the penumbra of any of these descriptions, you will know right away and can instantly hurl your monitor out of the window before what’s on it is communicated to anyone, especially a federal court of appeals.

You could also just delete what you wrote, but it’s better to be sure. Besides, that monitor is now irrevocably tainted.

I should point out that these are not things I have compiled during my years of practice. All of them appear in a single opinion, issued yesterday by the Seventh Circuit. McCurry v. Kenco Logistics Services, LLC, No. 18-3206, 2019 WL 5797184 (7th Cir. Nov. 7, 2019) (embedded below). You don’t need to read the opinion to know that McCurry, who accused her employer of discrimination, did not prevail. And I suppose you don’t need to read it now to know that her lawyer is in some trouble. In fact, because the court found the appeal was frivolous and the “monstrosity of an appellate brief” he filed was “incoherent,” it ordered him to show cause why he should not be sanctioned for filing it, and sent a copy of its opinion to the Illinois Bar.

Now that, my friends, is a bad brief.

Unfortunately for the lawyer, he chose to show up at oral argument, during which, the court notes, it “confronted” him about the matter:

He replied that he … tries “to get the help of … clients and whoever can provide help to [him]” and then “merge[s] that information.” Whatever that means, it in no way excuses this unprofessional conduct.

Further FYI: as we have seen before, letting the client (or “whoever”) write their own brief and then trying to blame the client for the resulting disaster is not a thing you can do without risking and probably receiving sanctions. See Court: Obligation to Make Sense May Not Be Delegated to Client” (Mar. 24, 2015) (the U.S. Supreme Court, no less).

To be fair (if that’s the right word) to McCurry’s lawyer, the brief in that case was arguably even worse than his.

Cf. Luxuriate in the Octopoid Embrace of These Legal Postulations” (Feb. 15, 2017) (invigilating an equally obfuscatory piece of writing by the Indian Supreme Court).