While most attorneys strive to write well-argued briefs on substantially justified legal theories (yes, I am an optimist), I don’t believe even the most conscientious of us realized that years ago, the Ninth Circuit created the “Slubby Mass” rule regarding the filings of appellate briefs:
"In order to give fair consideration to those who call upon us for justice, we must insist that parties do not clog the system by presenting us with a slubby mass of words rather than a true brief." N/S Corp v. Liberty Mutual Ins. Co. (9th. Cir 1997) 127 F.3d 1145, 1146. (Emphasis added.)
Have Opinion Will Travel does a great job of summarizing this esteemed line of jurisprudence here, and bears no repeating. However, the First District has apparently adopted the Ninth Circuit’s impatience with frivolous appeals.
On Friday, the First District ruled that appellant’s arguments in Gong v. Kwong (2007) were in bad-faith and frivolous.(.pdf) The court dismissed the appeal outright and ordered sanctions in favor of both the respondent and the clerk of the court to the tune of $21,000 to be paid jointly by both the appellant and his attorneys. The court was not pleased by appellant’s “creative” arguments to avoid his child support award:
"[They] have taken a phrase or two and have fashioned from them an argument that attempts to subvert the trial court’s intent in order to deny support to Kwong’s children and interest on his obligation his former wife for a nine-month period."
These cases actually highlight an oft overlooked area of appellate practice – the filing of motions at the appellate level. While it in no way compares with motion practice at the trial court level, the procedural rules at the appellate level do offer some opportunities for arguing that a case should be dismissed, or sanctions issued, without necessarily waiting for the entire briefing process to be completed. In certain instances (e.g. when you are facing a “slubby mass”) these motions can be an opportunity to save a client some money, and time, before jumping into the often long briefing process in appellate court.