Wednesday, August 5, 2009

My Argument in the Second Circuit

Yesterday I appeared at oral argument in the United States Court of Appeals for the Second Circuit on behalf of three law firms which are appellees in an appeal which seeks to have the firms pay the legal fees of an adverse party. The three firms brought me into the case solely for the oral argument.

The three firms--two from Florida and one from New York--represent a car dealer who sued General Motors and the General Motors Acceptance Corporation in the United States District Court for the Eastern District of New York. The suit alleged fraud, breach of fiduciary duty, and related claims. The District Judge granted GMAC's motion for summary judgment, and the Second Circuit later reversed a $2.3 million jury verdict against GM.

GMAC then moved pursuant to 28 U.S.C. § 1927 to sanction the law firms for bringing a frivolous suit by imposing on the firms GMAC's legal bills which exceed $600,000. The touchstone of § 1927 is bad faith litigation. The District Judge denied the motion for sanctions and GMAC appealed to the Second Circuit.

What made the case interesting for me is that I did not write the appellees' brief and I did not know anything about the case until the three firms asked me to appear for oral argument. The briefs and joint appendix are about 1800 pages long. While I have argued many appeals, it was an unusual experience for me to take on an appeal just for the oral argument: the appellees' brief was excellent, but I had to shape the oral argument along lines I would be comfortable presenting to the court. The firms say they are pleased with the result. Now let's see what the judges say!

1 comment:

  1. Lately I've been wondering why a party would bring in outside counsel only to argue the appeal. In the few arguments I've watched, I've noticed that there are some issues where the attorney arguing the appeal didn't appreciate the context. And as a result the arguments were butchered. Have you ever seen something like this?

    Obviously, this has nothing to do with this case.