What I Really Meant to Say Was …

There’s an old saying among appellate lawyers that there are three arguments in every appeal — the one you plan, the one you give and the one you wish you had given. There probably isn’t a lawyer alive who has not wished at one time or another that he or she could get a “do over” on at least part of an argument.

If something unexpected comes up after briefing is complete in state or federal appellate court, there is the option under the rules to submit supplemental authority, both before and after an oral argument. FRAP 28(j) and Minn. R. Civ. App. P. 128.05 specifically authorize the submission of supplemental authorities to the court after the brief has been filed. While clearly intended to allow parties to call to the attention of the court newly decided cases, the rules are not so limited by their terms. If you come across a really good case that you didn’t find before you submitted your brief, you can still call it to the court’s attention. Better late than never.

Of course, lawyers being lawyers, the court has placed a limit on how much you can say about the case when you send it to the court. Technically, the rules require you to cite a case, tell the court where it should have gone in the brief and be done. Prior versions of the federal rule admonished lawyers to avoid argument in making these supplemental submissions, but since that rule was hardly ever honored by the lawyers, the current version of the federal rule instead places a strict limit on the number of words lawyers may use, no matter how argumentative. The Minnesota rule has not followed form, and provides that the submission “must state without argument the reasons for the supplemental citations.” The rule goes on to say that any response must be “made promptly and must be similarly limited.” This is more than just a suggestion. The effectiveness of a supplemental citation can be undercut dramatically if the lawyer tries to squeeze in inappropriate argument. While the appellate courts appreciate zealous advocacy, at a certain point, enough is enough, and too much is too much. As the Minnesota Supreme Court said once, “The spirit of controversy seems to be an ever-present obsession. The present appeal furnishes abundant proof of just such mental ailment.” Walsh v. Dahl, 195 Minn. 36, 37, 261 NW476, 476 (Minn. 1935). No one wants that kind of comment on their resumé.

Interestingly, while the federal rule limits both the submission and response to 350 words, Minnesota rule does not contain a length limit. Again, lawyers being lawyers, some submissions may be quite lengthy. Finally, in both federal and state court, this is one of the few provisions that authorizes a submission to the court in the form of a simple letter.

But what if something came out of your mouth at oral argument that you really want to take back? Or better yet, what if something came out of your opponent’s mouth that you want them to take back?

Clearly, neither the federal nor state court rules regarding citation to supplemental authority apply to that circumstance. So what authority is there for correcting statements made during oral argument or, even better, making your opponent correct what they said? The short answer is some, but not much.

It is probably entirely appropriate for a lawyer, as an officer of the court, to make a written submission following argument to correct a misstatement. Often lawyers will offer to provide supplemental record citations when a question comes up during argument and they just don’t know the answer. Generally, that offer is left on the table by the appellate panel, although from time to time they will ask the lawyer to give them that help. I have had more than one occasion to make such offers, and ultimately to make such submissions. In addition, I have submitted post-argument letters to the court correcting something that was a clear misstatement on my part. But I’ve never had anyone try to make me take back something I’ve said.

Not too long ago, the Court of Appeals was faced with an interesting request to require a lawyer to either retract or restate part of her argument on appeal. According to her opponent, a “fundamental confusion” arose during oral argument “as to which of two mutually exclusive factual positions” the complaint alleged. The case presented a single issue for appeal: whether the receipt and access code the appellant-purchaser received after buying a car wash from the respondent-gas station was a “gift certificate” within the meaning of Minn. Stat. § 325G.53, subd. 2 (2010), which makes it unlawful to “sell a gift certificate that is subject to an expiration date.” During oral argument, the court asked the parties to state their positions regarding whether the complaint alleged that the appellant purchased (1) value to be applied toward a car wash, so that if the price later rose, he would have to accept a lesser car wash or else pay more to get the car wash he originally intended to purchase, or (2) a specific car wash, so he was entitled to that wash regardless of a later price increase. The gas station claimed the latter and understood the appellant to assert the former. Based on follow-up questions from the court, the gas station believed this disagreement was material to the ultimate decision.

Following three letters to appellant’s counsel requesting formal clarification of the appellant’s position, the gas station filed a “Motion for Clarification of the Record,” citing the court’s “inherent power to control the handling of matters before [it]” pursuant to Minn. R. Civ. App. P. 103.04 and 127. In response, the appellant’s counsel explained she did not believe any dispute existed as to what was said at oral argument. Appellant’s lawyer first noted that no legal mechanism existed for the gas station to seek clarification of what was said during oral argument. Then, appellant’s counsel acknowledged that she and the lawyer for the gas station may draw different conclusions from the record, abut that those differing interpretations did not create “fundamental confusion” as to the record itself.

The court agreed. It denied the motion, concluding the relief it sought was “unauthorized and unnecessary,” and explaining that no matter how the gas station understood appellant’s claims at oral argument, the court would “independently review the existing record, including the allegations contained in the complaint.”

As a lawyer presenting oral argument, you may find yourself in a situation where, for any number of reasons, a thought is expressed poorly. An inaccurate reference to the record, a misstated citation or a less than complete description of case law may inadvertently ignite distracting controversy over an inconsequential matter. The best advice is probably to recognize that the courts realize that the lawyers who come before them are human, and hardly ever present perfect oral arguments. And in the end, it is the record of the proceedings below that guide the appellate court in deciding what issues are before it, and how they should be resolved.

The bottom line — if you make a truly serious misstatement to any court, you should correct it at the earliest possible date. But the ability to submit supplemental information to an appellate court should never be seen as a chance to continue the argument once it is over.

Reprinted with permission of Minnesota Lawyer © 2013