Here is a Caroline Elephant blog blurb on the 7th Cir’s problem with briefs. 

"Hey 7th Circuit — Why Not Cut Lawyers Some Slack?

Howard Bashman, author of How Appealing, warns in an article ("Commentary: Have 7th Circuit Judges Gone Off the Deep End?") that the 7th Circuit judges Posner and Easterbrook risk becoming "fusspots and nitpickers" when they berate or sanction attorneys for minor and inconsequential mistakes. If you think that Bashman’s use of words like "fusspots and nitpickers" is a bit harsh, bear in mind that he’s merely quoting the honorable Judge Posner.

Bashman’s column discusses a recent 7th Circuit decision, Smoot v. Mazda Motors, that Bashman first wrote about in depth here at his blog. In accordance with the federal rules of appellate procedure and the Seventh Circuit’s local rules, the parties were required to set out a statement of jurisdiction and specify the basis for diversity jurisdiction and the amount in controversy. In Smoot, neither the plaintiffs nor the defendants provided an accurate statement of jurisdiction, so the court ordered the parties to provide supplemental statements describing jurisdiction. Again, as Bashman describes, the parties erred:

One of the statements said that the amount in controversy was $75,000, even though the applicable statute requires that the amount in controversy exceed $75,000 in order for diversity of citizenship jurisdiction to be proper. And because the insurance company defendant had its headquarters outside of the United States, and was created under the laws of another country, the basis for establishing diversity of citizenship was a bit more complex than in the average case.

The errors, albeit minor to many, caused Judge Posner, joined by Chief Judge Easterbrook to lash out at counsel:

We have been plagued by the carelessness of a number of the lawyers practicing before the courts of this circuit with regard to the required contents of jurisdictional statements in diversity cases. It is time … that this malpractice stopped. We direct the parties to show cause within 10 days why counsel should not be sanctioned for violating Rule 28(a)(1) and mistaking the requirements of diversity jurisdiction. We ask them to consider specifically the appropriateness, as a sanction, of their being compelled to attend a continuing legal education class in federal jurisdiction.

Judge Evans dissented, disagreeing with his colleagues’ characterization of the lawyers’ errors. Evans wrote:

Sure, the plaintiffs should have said the amount in controversy exceeds $75,000, not that it is $75,000. And sure, both sides stumbled on their declarations regarding the dual citizenship of the corporate defendants. But, at best, these are low misdemeanors; yet the court treats them like felonies. I would not label these minor flaws as ‘blunders,’ nor would I come close to saying this is ‘malpractice’ which must be stopped."

Bashman recognizes the importance of enforcing jurisdictional limits, but ultimately, he supports Evans’ approach. Bashman writes that there’s no reason to berate attorneys or elevate minor mistatements to the level of malpractice. Bashman also suggests that responsibility for ensuring jurisdiction lies with the federal district court and that judges should review the district court’s opinions to determine whether jurisdiction has been properly established.

Posted by Carolyn Elefant "