Although the parties and their lawyers had no direct contact in the months that had passed since trial, the flames of bitterness burned brightly on appeal. The amount in controversy was large.
Feelings were hard. Appellate briefs and motions asserted charges and countercharges of straying outside the record and misrepresenting the facts. Counsel accused each other of advancing “specious,” “outrageous,” and “disingenuous” arguments, founded on “wholesale misrepresentations” if not outright “lies.” An extreme scenario? Yes. Typical of appellate practice? No. But such counterproductive diversions occur with disturbing frequency, even in cases involving experienced and skilled appellate lawyers—lawyers who should know better.
There is no shortage of well-written and informative articles identifying such unprofessional, if not unethical, conduct. The focus of this Article is to suggest specific responses when opposing appellate counsel approaches or crosses the line.