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Avoiding Mistakes on Appeal
Practical Law Legal Update w-000-6229 (Approx. 4 pages)
Avoiding Mistakes on Appeal
by Practical Law Litigation
| Published on 06 Oct 2015 • USA (National/Federal) |
As demonstrated by a recent Seventh Circuit opinion, it is imperative to ensure that any appeal is based on a legal argument that is not meritless and the papers submitted on appeal comply with all relevant procedural rules. Failure to do so may result in dismissal of the appeal and court sanctions. Practical Law has numerous resources designed to help attorneys working on appeals in the federal appellate courts.
Before appealing a final order to an appellate court, it is imperative to ensure that the appeal is based on a legal argument that is not meritless and the appellant has complied with the relevant procedural rules when drafting and submitting the appellate papers. As demonstrated by a recent opinion from the US Court of Appeals for the Seventh Circuit, failure to do so will likely result in dismissal of the appeal, as well as possible sanctions under FRAP 38.
In Boutros v. Avis Rent a Car System, LLC, a former Avis employee brought suit in the US District Court for the Northern District of Illinois against Avis for employment discrimination, retaliation and subjecting him to a hostile work environment (No. 14-1511, , at *1 (7th Cir. Sept. 23, 2015)). After the jury found in favor of Avis on all claims, Boutros filed a "boilerplate, multipurpose posttrial motion" seeking a judgment as a matter of law, a new trial or relief from the judgment (Boutros, , at *4).
After the district court denied Boutros's motion, he appealed the order to the US Court of Appeals for the Seventh Circuit, arguing that the district court improperly:
Based on the facts and procedural history of the case, however, the Seventh Circuit rejected Boutros's arguments because:
- Boutros did not object to the admission of the employees' out-of-court statements on FRE 403 grounds, so his claim on appeal was unpreserved. Additionally, any prejudicial effect caused by the admission of the challenged statements offered to demonstrate Avis's intent when firing Boutros did not substantially outweigh their probative value.
- Boutros had stipulated to the submission of facts from his previous lawsuit filed against Avis, which undermined his argument that the court improperly limited testimony regarding the previous lawsuit.
- Boutros's motion for a new trial was a boilerplate motion that did not contain any meaningful content and was filed in an attempt to obtain an extension of the deadline imposed by FRCP 59(b).
For these reasons, the Seventh Circuit affirmed the district court's denial of Boutros's motion, found the appeal frivolous and issued an order to show cause why the court should not impose sanctions on Boutros (Boutros, , at *7).
In addition to finding the appeal frivolous, the Seventh Circuit also indicated it would have dismissed the appeal because of procedural errors in the Boutros's submissions to the court had it not ruled on the appeal's merits. Despite having been prepared by counsel, the appellant's brief violated numerous appellate and circuit rules, including:
- A lack of citations to the record in the statement of facts (see FRAP 28(a)(7) and 7th Cir. R. 28(c)).
- Failure to include a copy of the judgment with complete transcripts of the evidentiary rulings at the heart of the appeal and a transcript of the post-trial hearing when the district court denied the FRCP 59 motion (see FRAP 10(b)(2) and 30(a) and 7th Cir. R. 30(a) and (b)).
While Avis raised these procedural deficiencies and provided the relevant transcripts in its papers, Boutros argued that he had complied with the essence of the appellate and circuit rules. The Seventh Circuit disagreed, stating that Boutros's rules violations were grounds for dismissal of his appeal before evaluating it on the merits (Boutros, , at *5).
This opinion highlights the importance of properly evaluating a party's arguments that underlies the appeal, as well as strict compliance with the FRAP and circuit court rules when drafting and submitting the appellate papers, to avoid almost certain dismissal of the appeal and possible sanctions for bringing a frivolous appeal.
Practical Law has numerous resources designed to assist attorneys working on appeals to federal appellate courts, including the US Court of Appeals for the Seventh Circuit, such as:
Additional resources specific to other US Courts of Appeals are also available on the Practical Law website.