I posted yesterday about Lehman Bros. v. Gateway Funding, a provocative decision that threw out an appellant’s claim for failure to include the relevant transcript.

Yesterday evening, Howard Bashman posted a lengthy comment critical of the decision on How Appealing. Bashman’s post describes the ruling as “harsh” given that the failure to include the transcript was a minor transgression that did not disadvantage the panel because the appellee filed the transcript. He suggested the panel might have been wiser to grant oral argument so it could “deliver[] in-person a message that likely would not be forgotten for quite some time, if ever,” and:

Instead of deeming the issue forfeited, the panel could have simply ordered the appellant to reimburse the appellee for the costs of obtaining and providing the transcript to the court. And the panel could have imposed far more substantial sanctions if the panel believed that any effort to deceive the panel was intentional.

Bashman noted the concern that the ruling could lead to unfair results in future cases:

In a footnote, the appellate court notes that it probably would have reached the same outcome even if the appellant had provided the necessary transcript, whose existence the appellant claims not to have been aware of (although the Third Circuit questioned the credibility of this assertion). Nevertheless, because the panel’s actual holding is that the appellant’s failure to provide the transcript forfeited the issue, in a subsequent case this holding could operate to the detriment of a party that in fact truly was unaware of the existence of the transcript.

He closed:

In the past, the Third Circuit had been hesitant to impose significant sanctions for relatively minor transgressions. Today’s ruling, from three of that court’s newer judges, may indicate that the Third Circuit’s previous forgiving approach toward errors affecting form but not substance has come to an end.

I basically agree with Bashman’s criticism of the opinion, but my take is a little different.

In my opinion, it is not at all far-fetched that a lawyer would think that no transcript would be available for a telephone call with a district judge. Especially this lawyer: judging from his web page, Gateway’s lead counsel is a construction lawyer. True, he’s an experienced lawyer, admitted in 1988 and listed on Super Lawyers the past several years, but it is not obvious that his practice has him in federal court very often, let alone dealing with appeals and transcripts. His name does not show up in Google Scholar’s case database for a single Third Circuit case. He has no record of professional discipline in PA (although he was hit with a big sanction in a 2011 E.D. Pa. case for having “in bad faith unreasonably and vexatiously multiplied the proceedings”).

I don’t know the guy, but nothing I’ve seen suggests he was lying when he said he didn’t realize a transcript of the phone call was available, and I think it would have been better had the panel given him a chance to respond beyond his reply brief before throwing haymakers in a published opinion. And I agree with Bashman that, regardless of whether the transcript omission was innocent here, the panel’s opinion could be a dangerous precedent for the future. But I may be less concerned about that because the opinion was careful to describe this as an unusual situation.

I also question whether forfeiture of the claim was the right sanction. The direct victim of a claim-forfeiture ruling is the not the lawyer, it’s the party. Nothing in the opinion suggests the party did anything wrong here. Maybe the panel figured that difference didn’t matter in this case, but the court would have been on stronger ground if it had focused on punishing counsel instead of their client.

Having said all that, I don’t think the panel was wrong to be upset. I just don’t think that the failure to get the transcript is the real issue. The real issue is that, thinking there was no transcript, counsel presented an argument that the panel saw as deceptive. The lower court ruled that counsel had abandoned an issue during the call. Counsel made the choice to challenge that abandonment ruling, and apparently to do so without candor: counsel argued that there was no record to support abandonment, and apparently they did not acknowledge what happened on the call. It turns out that the judge gave counsel many chances to argue that issue, finally asking, “There’s nothing about [the argument at issue] that I should be concerned with, is that right?” And counsel responded, “Not that I can see, Your Honor.”

So if counsel was going to argue on appeal that they had not abandoned the issue below, and if counsel thought the transcript was not available, the brief should have acknowledged counsel’s statements and argued why they did not constitute abandonment. (Well, and if abandonment was a central issue, counsel should have confirmed whether a transcript was available.) Just pretending those statements didn’t exist and arguing “no record” (if that is in fact what appellant did, I haven’t read the briefs), was a very bad strategy.

One of the take-home lessons of this case, in my view, is the importance of appellate counsel. The mistakes counsel apparently made here are mistakes I would never expect from an appellate specialist. Sticking to what you’re good at may cost you some fees, but that’s a small price to pay to avoid a starring role in F.3d.