10th Circuit, Benchslaps, Federal Judges, Litigators, Practice Pointers, Quote of the Day

Benchslap of the Day: You Can't Fight City Hall (or Adverse Precedent)

How should you handle adverse precedent when litigating an appeal? The Tenth Circuit has some thoughts on what you should NOT do....

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The issues presented in this appeal have been previously decided. Counsel were given an opportunity to distinguish our prior cases but Appellant’s counsel used that opportunity to criticize, rather than distinguish, them. There is nothing more to say. AFFIRMED.

— A unanimous panel of the U.S. Court of Appeals for the Tenth Circuit, in a non-precedential order disposing of the appeal in Commonwealth Property Advocates v. U.S. Bank National Association.

(This unpublished order reminded me of two prior benchslaps, discussed below.)

In its harshness, it reminded me of this painful benchslap by Judge Jed Rakoff (S.D.N.Y.):

Not only am I dismissing your case — WITH PREJUDICE — but I am also referring you to the grievance committee, and will personally recommend that you are sanctioned. You lied to this Court, and that will not be countenanced. Now please leave my courtroom.

In its focus on how to handle adverse authority, it reminded me of this Thanksgiving benchslap, by Judge Richard Posner (7th Cir.) (citation omitted):

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The ostrich is a noble animal, but not a proper model for an appellate advocate…. The “ostrich-like tactic of pretending that potentially dispositive authority against a litigant’s contention does not exist is as unprofessional as it is pointless.”

These points seem obvious. But perhaps they bear repeating, in light of the benchslaps discussed above. When it comes to unfavorable precedents, try not to argue that they were wrongly decided, and try not to ignore them.

What should you do if you find yourself litigating an appeal where the existing case law clearly goes against your side? I’d think about whether you should be moving forward with such an appeal in the first place.

If you have other ideas about how to handle such a situation — maybe your client insists that you move forward with a weak appeal, and there’s enough ambiguity that you can do so without being sanctioned — please feel free to share them in the comments.

Earlier: Quote of the Day: I Award You No Points, And May God Have Mercy On Your Soul.
A Bonus Benchslap from Judge Posner

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