A few years back I went to a PLI seminar on section 1983 litigation and one of the speakers was a lawyer from Connecticut named John R. Williams, and he gave an effective presentation and I still have the written materials within arm's reach of my desk.
Today I read this opinion from the Second Circuit, which concludes with the following passage:
"Plaintiffs’ appellate briefs, much like their summary judgment submission to the district court, consists of an eleven-page primer on municipal liability doctrine with almost no application of the law to the facts of this case. Although the brief does assert that plaintiffs’ evidence is sufficient to satisfy one or another theory of municipal liability, it does so in a conclusory fashion, simply stating, without a single citation to the record, that plaintiffs have demonstrated the requisite legal elements of their claim. Moreover, although plaintiffs challenge the district court’s exclusion of numerous documents and affidavits, they utterly fail to provide citations to the pages of the appendix at which the documents at issue appear. Plaintiffs’ brief is therefore little more than “a doctrinal recapitulation masquerading as a legal argument,” “tantamount to an invitation [for us] to scour the record, research any legal theory that comes to mind, and serve generally as an advocate for appellant.” Sioson v. Knights of Columbus, 303 F.3d 458, 460 (2d Cir. 2002) (per curiam) (internal quotation marks omitted) (alterations in original).
Plaintiffs’ appendix is also deficient. It contains roughly five hundred pages of affidavits and other documentary evidence that plaintiffs submitted to the district court in opposition to the Town’s summary judgment motion. There is no table of contents listing the page on which a particular affidavit may be found; the only way to find any one of the sixty submitted affidavits is to hunt through the sizable record page by page. Moreover, although some demonstrators submitted two or more affidavits, plaintiffs do not distinguish between them, and for no apparent reason, some affidavits are included twice in the appendix. Finally, as the district court noted, many of the affidavits themselves are handwritten, illegible, contain numerous hearsay statements, or lengthy religious exhortations that are irrelevant to the operative issues. While the Federal Rules do not require that affidavits be submitted in any particular form, we are of the opinion that plaintiffs’ presentation of their evidence is at best unprofessional, and at worst, detrimental to their chances of prevailing on their claims.
The deficiencies in plaintiffs’ submissions are all the more troubling because plaintiffs’ counsel, John R. Williams, has repeatedly disregarded the rules of both this Court and the district courts in which he practices. Indeed, we have repeatedly cited his utter failure to include legal argument in his briefs and his carelessness with his submissions and arguments. On occasion, we have gone so far as to decline consideration of the merits of his client’s appeal as a result. See, e.g., Sioson, 303 F.3d at 459-60 (stating that “[p]erhaps counsel for Appellant [Williams] intends that we form an argument for him . . . [b]ut that is simply not our job, at least in a counseled case,” and dismissing the appeal for failure to comply with Fed. R. App. P. 28); Linardos v. Fortuna, 157 F.3d 945, 948 (2d Cir. 1998) (noting “the several erroneous legal arguments advanced by [plaintiff’s] counsel in the district court and on this appeal”); see also Quoka v. City of West Haven, 64 Fed. App. 830, 832 (2d Cir. 2003) (unpublished decision) (noting that Williams failed “to comply with Local Rule 56(a)(3), which requires that each assertion in a Rule 56(a) statement be followed by a citation to an affidavit or admissible evidence supporting the assertion”); MacGovern v. Hamilton Sunstrand Corp., 50 Fed. App. 59, 60 (2d Cir. 2002) (unpublished decision) (deciding the appeal in spite of the fact that “[w]e rather doubt that the Appellant’s Brief meets the requirements of [Fed. R. App. P.] 28(a)” because “the brief barely applies that law to those facts”); Miner v. Sheridan, 199 F.3d 1322 (2d Cir. 1999) (unpublished decision) (affirming district court’s grant of summary judgment against plaintiff because of William’s failure to provide a statement of material facts in dispute).
Williams’s failure to comply with Rule 28 is sufficiently serious to convince us that we would be within our discretion to summarily dismiss this appeal. We opt, however, to consider the merits of this appeal because plaintiffs’ claims are substantial enough to merit a trial, and declining to consider this appeal would unfairly penalize plaintiffs for Williams’s failings as an advocate. See Fed. R. App. P. 2 (providing that this Court may suspend the operation of the Rules of Appellate Procedure in a particular case for good cause). Of course, plaintiffs have been, and continue to be, prejudiced by Williams’s unprofessional conduct of this lawsuit, since no small portion of the delay involved in the lawsuit’s twelve-year history is due to counsel’s continued failure to present his clients’ claims and evidence in a manner that is conducive to adjudication. More importantly, Williams has hardly acted as an effective advocate for his clients by presenting briefs so haphazardly prepared that they contain almost no legal argument.
Williams is now on notice that his continued failure to comply with Rule 28 or any other of the Rules of Appellate Procedure will result in discipline, up to and including suspension or disbarment from practice before this Court. See Fed. R. App. P. 46(b), (c) (providing for discipline or disbarment for attorneys who commit “conduct unbecoming a member of the bar” or who “fail to comply with any court rule”). While this Court has so far refrained from disciplining Williams, the sheer number of cases in which his unprofessional conduct has been cited indicates that judicial expressions of disapproval alone have not succeeded in convincing him to alter his behavior. If Williams continues to ignore this Court’s rules, however, the Court will not be so forbearing in the future, and will impose sanctions against him."
The Court added in a footnote: "We note that, at oral argument, Williams asserted that 'the brief that has been presented here . . . fully complies with' the requirements of Rule 28. Since Williams is apparently laboring under the false impression that this brief is an adequate and effective piece of advocacy, we suggest that Williams take advantage of the bar’s educational programs on brief writing."
How Appealing has this post about the opinion and Construction Law Blog has this post on the opinion.