Biglaw

Two Biglaw Firms Get Benchslapped As Federal Judge Questions 'Integrity'

Ouch, that's gotta hurt.

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If you were to imagine the worst thing a federal judge could say to an attorney during a hearing, I’d have to imagine, “The court has serious concerns with the integrity of your brief. There are statements and representations that we view as inaccurate and misleading to an unusual degree,” would be very, very high on the list.

That’s exactly what Ninth Circuit Judge William A. Fletcher told lawyers from DLA Piper and Munger Tolles & Olson. The firms are representing BNSF Railway Co. in litigation against the Swinomish Indian Tribal Community over shipping crude oil through reservation land.

The lower court ruled in favor of the tribe, and BNSF appealed. In the hearing on the railway’s appeal, the Ninth Circuit had some… issues with the briefing. As reported by Law360, some of the problems the 9th Circuit has with the brief are as follows:

Of the eight examples cited by the court in its written order Wednesday, four involve prior cases, with the court highlighting key context that the brief glossed over or seemingly tried to hide.

In one instance, the brief quoted text from a Ninth Circuit decision in a tribal railway dispute in 1991 and used ellipses to omit an order by the court that the U.S. Army “obtain a right-of-way across the reservation.” In another example, the brief characterized a decision as being about the use of land, as opposed to a dispute over the use of tracks, the panel said.

In two other examples, BNSF’s brief omitted passages from case law that specified the decision applied to states or to state law, framing the decisions as broader than they were, the Ninth Circuit said.

The court also highlighted the fact that the brief claimed that the easement agreement allowed “at minimum” one eastbound and one westbound train per day with up to 25 cars each, when in fact, the panel said, the text of the easement said that one 25-car train in each direction was the maximum allowed per day.

During the hearing, Benjamin Horwich of Munger Tolles said he was “disappointed to hear” the panel had issues with the brief. The Ninth Circuit gave BSNF four weeks to respond and explain how the brief “candidly represents” the referenced documents.

headshotKathryn Rubino is a Senior Editor at Above the Law, and host of The Jabot podcast. AtL tipsters are the best, so please connect with her. Feel free to email her with any tips, questions, or comments and follow her on Twitter (@Kathryn1).

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