Read the rules.
Let’s say it again: Read. The. Rules.
On February 16, the U.S. Court of Appeals for the Federal Circuit issued a strong reminder to attorneys about the importance of reading the applicable rules of court and admitting a mistake when given the chance.
In Promptu Systems Corp. v. Comcast Cable Communications, LLC, U.S.C.A Fed Cir. No. 2022-1093, counsel for one of the appellees incorporated by reference in a footnote nearly 2,000 words from a prior brief filed in a related case. Counsel argued this was done to “enhance efficiency,” “streamline the briefing,” and “save the time and resources of the Court.” The problem, however, is that it runs afoul of Appellate Rule 28. In cases involving multiple appellants or appellees, Rule 28 allows the parties to join in a brief or adopt by reference a part of another’s brief. The rule does not address incorporating briefs filed in separate cases. Also, the Federal Circuit Court of Appeals repeatedly has held that incorporating arguments by reference cannot be used to exceed the word count limits.
The appellant’s reply brief pointed out the appellee’s improper argument. Counsel for the appellee took no action to correct the error. At oral argument, the court issued an Order to Show Cause as to why sanctions should not be entered against counsel for attempting to incorporate by reference multiple pages of argument from the brief in one case into another.
Counsel argued he was unaware of the cases prohibiting incorporating a brief from a different case and exceeding the word limit by the incorporation. The court found that the appellee’s counsel’s position was unreasonable given the court’s prior opinions, including one nine years earlier admonishing that lawyer’s firm for the same improper conduct. Nevertheless, the court opted not to award sanctions, but made it clear future litigants should appreciate it is improper to incorporate material from one brief by reference into another unless compliance with Fed.R.App.P. 28(2), and in no event is such incorporation permitted if it would result in exceeding the applicable word count.
Critically, the court advised, “When it becomes apparent that a lawyer has violated a court rule, as an officer of the court, it would be best for that lawyer to bring it to the court’s attention and withdraw the improper argument.” Had that occurred here, the attorney would not have been forced to face potential sanction.
This is a good reminder to review applicable rules, including local rules, before filing any document. The courts expect compliance and while most courts recognize that mistakes are inevitable, they expect counsel to acknowledge the error and take appropriate steps to fix it. Failing to own up to the mistake can turn a small correctable problem into a much larger one, leading to the potential of avoidable repercussions.