In 2019, the Kentucky Supreme Court rendered Commonwealth v. Roth, 567 S.W.3d 591 (Ky. 2019). The subject of the case is essentially the challenges faced by a prosecutor. The court's decision leads with an outstanding paragraph quoting earlier decisions, one dating to the 1970s. The decision is worth reading in the context of understanding the appellate process, and frustrations with the process. However, the broader context of lawyers and procedural rules is worthy regardless of the specific context.
The analysis begins with:
"It is a dangerous precedent to permit appellate advocates to ignore procedural rules. Procedural rules ‘do not exist for the mere sake of form and style. They are lights and buoys to mark the channels of safe passage and assure an expeditious voyage to the right destination. Their importance simply cannot be disdained or denigrated.’"
The Court's sentiment is perhaps right on the mark. These thoughts are conspicuously specific as to "appellate advocates." The Court proceeds, however, in a more general manner:
"Enforcement of procedural rules is a judicial responsibility of the highest order because without such rules ‘[s]ubstantive rights, even of constitutional magnitude . . . would smother in chaos and could not survive."
That is a bit colorful perhaps, "smother in chaos?" Perhaps some poetic license, but no doubt there is a kernel of truth in that statement. It would perhaps not be fair to discount it too readily.
In appellate court proceedings, it is common for each party to prepare a brief. This is simply a written explanation of why that party believes the trial judge was wrong; it documents what happened in the trial court, and explains why the party believes that the appellate court should provide relief. Writing an appellate brief can be a chore, a lesson I learned more than a few times in my legal practice. I recently looked through some of my old briefs and cringed periodically. I was not beyond the challenges of hyperbole, and perhaps even approached sarcasm at times.
There are two parties (at least) in cases, and that remains true in the appellate setting. The "appellant" is seeking action by the court, the "appellee" is likely asking the court to allow the trial decision to stand. However, there are times that the appellee is as upset as the appellant and seeks more than simply denial of the appellant's desires. In those settings, the appellee may also be the "cross-appellant," defending in some manner, but seeking relief in others.
Regardless of which role a party or attorney undertakes, there is genuine strength in clarity, brevity, and articulation. In this particular case, the appellate court noted that its rules required a "Statement of the Case" in which the appellant is to "recit(e) the facts of the case 'with ample references to the specific pages of the record.'" This allows the court to readily verify the facts by reference to that record. The Court noted that such references within the "argument" section are also advisable.
The casual reader might cringe at such a requirement. Facts are facts, you might say. And, it might seem incredible that some party or lawyer might misstate or mistake some fact in the course of an argument, but that does happen. Reference to the record is critical for the court, but making those citations is critical in the writing also as it causes the author (lawyer or party) to verify that what they recall or perceive is actually there in the record. It is an exercise in fact-checking, and is valuable.
What the court noted in this case that the "The Commonwealth’s brief. . . plainly failed to comply" with the rule regarding record citations. The court found this inappropriate under its rules, and concluded that the best course was "to strike the . . . brief." That resulted in there being no written argument in support of the appellant's (the state's) request (appeal) for the appellate court to take action. Therefore, the court concluded it was "necessarily require(d) (to) . . . dismiss the Commonwealth’s appeal." The state lost its appeal because its' lawyer did not follow the rules.
It is possible that the absence of record citations alone might not have led to this result. However, the court recited a series of other small errors that were documented in the process that led to its review. This included mistaken labels, failures in clerical work, and not providing the court with sufficient copies of documents. But, the primary focus of the court's opinion is on the absence of citation to the record. It was critical, noting that the attorney "did not make a single citation to the record in support of (the state's) factual assertions."
The court noted its "obligations" when reviewing a "trial court proceeding." It strongly reminded that "It would be an abdication of our constitutional duty as a reviewing court were we to accept on faith the factual assertions as summarized in the decisions of the reviewing courts below." It is in support of that obligation to verify and confirm that the "rules requir(e) pinpoint citation to the record." Without that, the "court 'must sift through a record to [find] the basis for a claim for relief.'" And, that "sifting" is simply not the job of the appellate court.
The opinion is not unanimous. The dissent explains that dismissing the appeal was within the court's authority. However, the dissent essentially argues that despite the authority to do so the court should not. This judge argues that the record in this case was not voluminous and that the trial court's conclusions were documented. The judge therefore found "the Court’s response here disproportionate and inappropriate." Without "condon(ing) or ignor(ing) deficient practice," the dissenting judge suggested that some other sanction, financial or directive, would be more appropriate.
Reading the court's analysis and the dissent brings back many memories of trials. I can recall so many lawyers who elected not to follow the Rules of Procedure for Workers' Compensation Adjudications. There were many who elected to ignore the requirement to file a trial memorandum (60Q6.116(7)). I recall the lawyers who would submit hundreds of pages of medical records, often duplications, and would have no reasonable justification of argument to do so (60Q6.121(4)). The "sifting" required by voluminous records significantly distracts the trial judge, wastes time, and violates the rules. Is it so unreasonable to require parties to spell out the trial issues, and to provide necessary documents without reams of duplicative, irrelevant, materials?
There are many examples documented of failure to follow procedural rules. But, the Florida workers' compensation law is intended to be decided on the merits. Perhaps all laws are? The Florida courts have periodically reminded the judges of compensation claims of that as regards workers' compensation. A good example is the Supreme Court in U.S. Sugar Corp. v. Henson, 823 So. 2d 104, 109 (Fla. 2002)(“the specific intent of the Legislature that workers' compensation cases . . . be decided on their merits.”).
There is perhaps room for discussion regarding sanctions for rule violations. On one hand, it is troublesome to see a party's case or appeal decided by their (or their lawyer's) failure to follow the rules. However, it is often reasonably simple to read and follow those rules. To the extent that judges do not enforce those procedural rules, those "lights and buoys" are arguably diminished for the offending party and for all. One wonders if the Kentucky Court is correct that the outcome of such acquiescence is that we all "smother in chaos and could not survive?"
One may wonder if we would actually smother, and about "justice." Is it justice when a party loses for failure to follow rules? It is justice when a party ignores rules to the detriment of other parties and the litigation system? Perhaps it is our balancing process that leaves much to parties' perceptions and causes angst to all? It is an interesting discussion and worthy of consideration.
