You Got Benchslapped!*
A benchslap is when a judicial opinion makes it clear, in no uncertain terms, that a party has done something that was not appreciated.
Via How Appealing, here is a great example of a benchslap that also makes an imortant point about appellate practice. This comes courtesy of the Hon. Richard A. Posner of the United States Court of Appeals for the Seventh Circuit:
"We'll state the facts as favorably to the plaintiffs as the record permits, as we must given the procedural posture. The statements of facts in the defendants' briefs present the evidence they'd like a jury to accept, rather than just the evidence that, being unrefuted or irrefutable, provides a permissible basis for a grant of summary judgment. Such a mode of presentation is unhelpful to the court."
This was an appeal of the entry of summary judgment against the plaintiffs. On summary judgment, the trial court can only consider undisputed material facts and is obliged to view those facts in the light most favorable to the non-moving party. The defendant's statement of facts on appeal should have recited only those undisputed material facts that would have permitted the entry of summary judgment. Instead the defendant included disputed facts that no doubt would have been more favorable.
This is a bad call for a few reasons.
First, it makes the appellate court's job tougher, because it has to sift through the facts recounted by each side and those relied upon by the trial court to determine: 1) what undisputed material facts the trial court relied on; and 2) whether those facts were legally sufficient to permit the entry of summary judgment.
Second, this approach really hurts your credibility with the appellate court. When you pull disputed facts into a case in this procedural posture, you can't be surprised if the court takes that as a tacit admission that you know that you don't win on the undisputed facts.
Third, as Howard Bashman points out, not considering the standard of review in reciting the facts can really hurt your chances of success on appeal. Essentially (this is me, not Howard), it's bad lawyering. The standard of review decides many, many cases on appeal. If you are handling that appeal, you have to know that and tailor the brief to the applicable standard.
The standard of review is a prime strategic consideration in an appellate practice. As an appellant, it affects whether to file the appeal in the first place. You won't see me filing many appeals that will be reviewed under an abuse of discretion standard. And no matter what side you are on, the standard of review is a consideration in settlement negotiations while the appeal is pending, because it affects the chances of prevailing.
Good lessons if appeals are part of your practice.
* To get the full effect of the title of this post, you have to read it aloud using the voice of Chris Tucker's character Smokey in the 1995 movie Friday ("You got knocked the **** out!").
** It is as yet undetermined whether Judge Posner "got mind control on Deebo," but I wouldn't put it past him.
