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COA Offers Brief Berating

Posted on Monday, May 14, 2018

To an attorney who does not make a living writing briefs, the recent COA decision in In re D.A.S., Minor, will almost surely go unnoticed. Yet those of us who toil in the appellate arena should see it as a glaring reminder that the quality of our representation is judged almost solely on our briefing........and it better be good!


Although the panel in D.A.S. found no reversible error, the opinion lambasted the work of the relatively experienced appellate attorney (the attorney was listed as lead counsel on at least 14 appeals and has been practicing for a number of years). The Court’s language warrants a long post here:


Although the trial court did not err when it terminated both respondents’ parental rights to De’Zyre, we feel compelled to express our concerns regarding the quality of the brief filed on behalf of respondent Javon Frederick Martin. This case, like all cases regarding the termination of parental rights, involves serious allegations of abuse and neglect leading to the termination of parental rights. The termination of parental rights involves one of the more severe actions that the State can take against an individual, and implicates an individual’s fundamental liberty interest in raising one’s child. See Santosky v Kramer, 455 US 745, 758-759; 102 S Ct 1388; 71 L Ed 2d 599 (1982). Thus, there is an important constitutional right at issue in every such appeal. Adding to that already important feature, in this case the trial court heard significant expert and medical testimony regarding the circumstances surrounding Hunter Sims’ death.


Also at issue is which of the two respondents actually inflicted these injuries on Hunter. Despite the detailed facts and important legal principles, the brief filed on behalf of Mr. Martin was deficient in all respects. For one, the statement of facts comprised no more than a page and a quarter of respondent’s brief. Not that length is always necessary or encouraged, but after seven days of trial and numerous lay and expert witnesses on the cause of death, one would expect something more than just over a page of essentially conclusory statements and procedural comments. The court rules certainly require more. See MCR 7.212(C)(6).


Additionally, the brief’s argument section failed to comply with MCR 7.212(C)(7). There was not a single citation to a statute or case, no citations to the record, and the three arguments, including headings, comprised approximately one page. Indeed, the entirety of respondent’s second argument, which challenged whether there was clear and convincing evidence that it was in the best interests of the child to have her father’s rights terminated, simply states, “father Javon Martin was bonded to his daughter . . . and it was not in her best interest to have his parental rights Terminated (sic).” In the next and final argument, which was entitled “[w]as the court’s decision clearly erroneous,” respondent simply argued that one of the witnesses testified that the death could have been caused by an accident and that no evidence attributed the injuries to the father. Again, these are merely conclusory statements made without any citation to law or fact.


This is unacceptable, and counsel is advised to either submit any forthcoming briefs to this Court in full compliance with our court rules, or face further action.1

This opinion should remind us that we work in a genre where there is little opportunity for a “do-over.” Although turning in one bad brief may not change the course of our day to day lives, it is important to remember that the same my not be true for the effect of one bad brief on the life of the client we represent.

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