f/k/a archives . . . real opinions & real haiku

January 20, 2004

trying too hard to get paid

Filed under: pre-06-2006 — David Giacalone @ 7:30 pm

The wise lawyer knows that the maxim “Try, try again” is likely to annoy rather than impress most judges.  An appellate panel in Florida found attorney Thomas D. Stokes to be trying, indeed, in rejecting his Motion for Rehearing on the issue of fee recovery after a personal injury case.   Rather than granting rehearing, the 5th Circuit judges penned an opinion, saying “we only write to explain our reasoning for issuance of a show cause order directed to Appellant’s attorney.”   They ordered Lawyer Stokes to explain why monetary or other sanctions should not be imposed, and they also referred the matter to the Florida Bar.
judge mercy Stokes’ primary sin was filing a motion for rehearing that “simply re-argues the merits of the court’s opinion, in violation of [Florida Rule of Appellate Procedure] 9.330(a).”   Amador v. Walker, ___ So.2d ___ (Fla. 5th DCA, No. 5D02-2454, 12/5/2003) (thanks to sunEthics for the pointer).  Along the way, he also:
  • attacked a case that he had agreed at oral argument was controlling

  • failed to remember the basic notion that “When the supreme court construes a statute, we are bound by its construction.
  • proposed an alternate reading of the statute that would require “useless” and counterproductive actions by plaintiff’s attorney
  • accused the panel of distorting the law, and making no sense
  • claimed the existence of a split in the circuits (on an issue settled by the Supreme Court!), by citing a case totally consistent with the court’s decision
  • made procedural errors in filing the Motion

The court summed up its distress:

“When we issued a per curiam affirmance, citing White, it should have been obvious that we agreed with Defendants’ interpretation of White, yet Plaintiff’s counsel filed a fourteenpage Motion for Rehearing that presents absolutely nothing new. In fact, save for the inclusion of some new verbs like overlook, contort and misapprehend and phrases expressing displeasure with our ruling, the Motion simply repeats, in large part verbatim, Plaintiff’s briefs, as if to suggest to the court that we did not read the briefs the first time.

“Although much has been written to discourage the use of rehearing motions in this manner, apparently the written word is not penetrating enough to get the point across.”

The court also noted that, should Lawyer Stokes’ written response not be adequate, it would require his personal appearance.

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