"Woefully Deficient"​ Appellate Argument Failed to Comply with Appellate Rules, Leading to Affirmance

Timothy Kowal, Esq.
  •  
January 12, 2021

Last week, Bryan Garner's LawProse lesson was on succinctness, noting that the late Justice Ruth Bader Ginsburg once told him that "Eye fatigue sets in well before page 50."

The appellant in Semmerling v. Bormann, No. 19-3211 (7th Cir. Jan. 5, 2021) was not in danger of reaching page 50. Instead, he kind of went a whole other direction on this.

First, Semmerling's statement of facts and procedural history did "not even come close to meeting" the requirements of Federal Rule of Appellate Procedure 28(a)(6), requiring "a concise statement of the case setting out the facts relevant to the issues submitted for review, describing the relevant procedural history, and identifying the rulings presented for review, with appropriate references to the record."

Keeping things brisk, Semmerling also nipped and tucked Rule 28, which requires that the legal argument section of the brief contain the "appellant's contentions and the reasons for them, with citations to the authorities and parts of the record on which the appellant relies." Instead, Semmerling's brief "is, oxymoronically, devoid of any legal argument whatsoever." In the parsimonious 2-1/2 pages devoted to his legal arguments, Semmerling "makes incoherent claims," fails to "identify and critique the key points in the district judge's analysis," and cites no legal authority except "disjointed sources for an utterly irrelevant proposition."

Appellant's argument, in short, "is woefully deficient."

Semmerling had been "generously offered" an opportunity to file a new brief, but "[c]ounsel passed on the chance for a fresh start." Committed to his theory of maniacal economy in briefing, counsel also dispensed with the reply brief.

Affirmed.

The rule is the same in the Ninth Circuit as well. Arguments made in passing, indistinctly, inadequately briefed, or in a perfunctory manner, may be deemed waived or abandoned. United Nurses Assocs. of Cal. v. NLRB, 871 F.3d 767, 780 (9th Cir. 2017) (arguments "fleetingly allude[d] to" deemed waived); Halicki Films, LLC v. Sanderson Sales & Mktg., 547 F.3d 1213, 1230 (9th Cir. 2008); Carmickle v. Comm'r Soc. Sec. Admin., 533 F.3d 1155, 1161 n.2 (9th Cir. 2008); Paladin Assocs., Inc., 328 F.3d at 1164 (issues not specifically and distinctly contested in a party’s opening brief are considered waived).

And also in California state courts. From a recent (unpublished) decision in California v. Ass'n of Bay Area Governments, A159235, at *2 (Cal. Ct. App. Dec. 18, 2020), deeming an argument abandoned for failure to adequately brief it: “We dismiss as abandoned plaintiffs' appeal from a post-judgment order striking their request for costs as appellate " 'review is limited to issues which have been adequately raised and briefed.' " (Golightly v. Molina (2014) 229 Cal.App.4th 1501, 1519.) ”

Tim Kowal helps trial attorneys and clients win their cases and avoid error on appeal. He co-hosts the Cal. Appellate Law Podcast at www.CALPodcast.com, and publishes a newsletter of appellate tips for trial attorneys at www.tvalaw.com/articles. Contact Tim at tkowal@tvalaw.com or (714) 641-1232.