Fifth Circuit to Texas Lawyer's Creative Brief: 'Two Can Play This Game'
The Fifth Circuit's Court of Appeals decided to play the game of a Texas Attorney who moved for a panel rehearing. A motion itself is nothing new, but the way Texas attorney Chad Flores attempted to make his point certainly bears reflection. He presented the court with a hypothetical conversation between an attorney and his disappointed client in order to demonstrate to the court how silly it would be to affirm the lower court decision.
We've read Flores' petition and credit ought to be given where credit is due. The petition is easy to read and the point of the paper is well taken. Unfortunately, for Flores and his client, the Fifth Circuit denied his petition and did so with a little of Flores' style.
This Is How You Do Your Job
"Sometimes," Flores began "in deciding a case, the court ought to put itself 'into the shoes of the attorney' before it." The petition for a panel rehearing submitted by Flores quickly moves into a hypothetical conversation between a lawyer bearing bad news and his worried client whose attitude is that of skepticism for the American justice system.
Flores, indirectly but very obviously, wags his finger at the court for not at least addressing the issue of personal jurisdiction in affirming the lower court's earlier decision. The problem, Flores contended, was that the district court never made any conclusions as to the issue of personal jurisdiction.
Therefore, it was against the rules for the circuit court to affirm conclusions of fact and issues that essentially do not exist as to the issue of personal jurisdiction. In his petition for a rehearing, Flores also asked for a completely fresh hearing on the issue of jurisdiction to settle the issue once and for all.
The Fifth Circuit noted Flores' approach and called it a "strange hypothetical conversation." Where Flores saw an issue, the circuit saw a non-issue and chose to communicate this to Flores and his client in a manner that mirrored Flores' style. "Sometimes," the panel began, "in litigating a case, lawyers ought to put themselves in the shoes of the judges before them." The following is the conversation the Circuit included in its ruling (sourced from Above the Law):
Judge 1: Did you see Appellants' petition for rehearing?
Judge 2: No, what do they say?
Judge 3: Well, they begin the petition with a strange hypothetical conversation between a lawyer and client.
Judge 1: I cannot imagine why they thought that was a good idea.
Judge 2: What's their argument?
Judge 3: They say that we made a mistake by not expressly addressing their personal jurisdiction argument.
Judge 2: That's silly. It goes without saying that there was personal jurisdiction here.
Judge 1: I agree. The company reached out to Appellee in Texas, traveled to Texas to negotiate the contract, and entered into a contract with a Texas corporation.
Judge 2: So what do you think we should do about their petition?
Judge 1: Deny it.
Judge 3: I agree. Deny.
Judge 2: Sounds right.
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