If you look at my appellant brief, one of the key points ignored by the court was my contention of bias on the part of the district judge--who cited my key evidence 1/10 as much as that of the defendants and who sat on the case for nearly 2 years before issuing what I considered a faulty opinion, as did the magistrate who held on to it for one year.
I read your brief. And while it is obvious that you felt strongly about your case and that you evidently put time on the brief, it was, well, a mess. Forgive the characterization, for I do not wish to be unkind, but that’s the best word I can think of for it right now.
Let me start by saying that a really good brief stands on its own. The judge (or clerk) reading the brief should not have to go outside the brief to understand the argument and be persuaded it is correct. The citations to the record and to legal authority are not for the purpose of making the judge have to go ferret out the case or the item from the record to understand what you are talking about. Rather, the citations are there to enable the judge to verify what you have said. The citations give it authority. As I read your brief, I had a great deal of trouble trying to piece together your arguments as the brief did not stand on its own. I’d have had to dig through the record and the cases and then from that try to figure out what your argument was. That is not a good persuasive brief.
You did indeed claim bias because the district court cited only one-tenth of your stuff compared to the defendant’s material and because of the time it took for the court to issue it’s opinion. The problem is that you never explained
why those two things must compel the conclusion that the judge was biased against you. You seemed to assume that bias is obvious given those facts. But that assumption is wrong.
There are all kinds of reasons why a court opinion may take a long time to get issued. It is not all that unusual especially given the workloads of most federal judges. In one Tax Court case of mine the court took 5 years after the trial to issue its opinion. But that delay certainly did not indicate any bias towards either the taxpayer or the government. It was simply a product of a complex case in a federal court that hears more cases than any other. So why is it that a 2 year time to issue an opinion must compel the conclusion of bias to exclusion of any other explanation? You don’t explain that in your brief, and I can't think of any logical argument that would make that work.
Similarly, you do not explain why the fact that the court cited to more of the defendant’s stuff than yours must compel a conclusion that the court was biased. After all, one the reasons for that, and the one that is by far the most common, is that the defendant had the better part of the case than the other party did. You needed to explain why bias had to be the reason and not something else.
You didn't explain why the delay and the fact that the court cited to more of the defendant’s stuff than yours must point to bias. You simply stated those facts and claimed it was bias. But without a good argument for why that is bias it not surprising the court did not address it.
In addition that, you did not point to where you raised the issue of bias with the trial court nor did you point to any rule or 2nd circuit opinion that would let you raise the issue of bias for the first time in the appeal.
That's just one of the many problems with the brief.
You complained in your brief that as a pro se plaintiff you should not be expected to know that the law of a foreign jurisdiction might apply for some issues while a federal or state law might apply to others without doing a bunch of research for which you evidently did not have the time. Well, the problem with that is that pro se plaintiffs, though they get a little leeway in some things, for the most part must be as capable as a lawyer in trying their case. They must know the law and argue it properly. The court cannot do that for you and does not have to give you tons of time to keep amending your pleadings to try to get it right. It is not a surprise to me that the court did not see fit to address that in any detail. Again, please forgive the characterization, but it came across a bit to me like you were whining about having to do all this research for your case. If that's the impression the judges had, too, that would obviously not go over well.
In my view you really didn't do a good job laying out a coherent, logical argument. The brief wanders in many places, jumping back and forth from one thing to the next. You make a lot of conclusory statements for which you do not show the logical steps needed to arrive at those conclusions. A court is not going to go through and meticulously address unsupported conclusions.
You characterized the short opinion as being evidence that the court did not really take the time to look at your case, stating that the judges are lazy and the clerks incompetent. That is, frankly, a somewhat arrogant assertion on your part. You are saying that your brief must have been so good that it warranted a long detailed opinion. You evidently have not considered the possibility that court’s short opinion and the failure to discuss each and everything you put in your brief might actually be because the brief was poor and much of it not really worth taking the time to delve into in detail.
Federal court clerkships are coveted positions; they tend to go to the top graduates of the best schools even though the pay is substantially less than they would make a big law firm. Why? Because the experience is invaluable and because lawyers that have clerked for judges then make even more money when they go to private practice than had they spent that same time in private practice right out law school.
I clerked for a federal district court judge myself. I graduated from a top tier law school with highest honors and then obtained a LL.M degree from one of the top two programs in the nation. I didn't clerk for the money, but rather for the experience. Among other things, I learned a lot about writing effective briefs after reading many, many briefs and seeing what made the difference between the good ones and the poor ones.
The judges would have read your briefs. While their clerks would do much of the research, the clerks work under the supervision of the judges and would discuss the case with the judge as they went along. The clerk might even write the basic opinion, but the judge will review it to ensure it reflects his/her views. Your assumption that the judges simply didn't read it and basically ignored your brief is almost certainly not correct. Rather, they likely read it but found it not very persuasive or even very helpful in understanding the case. I had more questions than answers about your case after reading the brief, and that’s not what you want to leave the judge with after he/she reads the brief.
Okay, I'm not a lawyer, but I'm not an idiot either. Anyone with a reasonable education can read the law and make a persuasive case.
No, they can’t. I have seen many pro se briefs and even some briefs by attorneys that were quite poor and were not persuasive. And some of those people were very smart. What they lacked was some training and experience in writing briefs. Your own brief is proof that not just anyone with a “reasonable education” can write a persuasive brief. It seems clear that you are reasonably educated and fairly bright. But it takes a lot more than that to write a great brief. It is a developed skill like much else in life. You cannot expect to walk out on a tennis court and play like a pro your first time out. Same here. Persuasion is an art, one that takes a variety of skills to do effectively.
Seems incredible to me that 3 appellate judges could have reviewed all the briefings, the opinions, and the key evidence in a week when it took two lower-court judges 3 years to do so. Why do I say "one week"? There was a court filing just one week before the issuance of the summary order that assigned the case to these particular 3 judges.
Again, you have reached a conclusion without going through the logical steps to prove it. You evidently assume something that is not correct: that the court works exclusively on one case, doing all the work for it and then issues its opinion, then turns to the next case and does the same thing. The judges and clerks do not do that. They work multiple cases at the same time, batching related work, to keep a smooth flow of things. It was more efficient for me to do research on several cases at once, for example, than work one case to completion before picking up the other. I liked to set aside days just for writing so I could get into a good writing mindset. Those are just two examples but I trust they suffice to make the point. So they didn’t just pick your case up cold and in a week cranked out the opinion. They worked your case alongside others that were in the court at the same time.
As I said at the start, I realize you have a very strong belief in your case and that you put a lot of time in on it and I’m sorry you ended up with a disappointing result. But the fact that you lost is almost certainly not because the judges and clerks were lazy or biased. Rather, you simply didn’t make the case for your claims. The case wasn’t the strong one you thought it was. I don’t see you getting an en banc review or Supreme Court review of your case, though you are of course free to try for them if you want.