Many trial lawyers have done it. The issues on appeal were briefed in the trial court. The facts, legal research, case citations, analysis—they are all there in a Word document. You’re busy. There isn’t time to write an appellate brief.
So you cut and paste the summary judgment brief and submit it as your appellate brief.
Is that efficient? Yes. Is it a smart move? No.
In Conboy v. U.S. Small Business Admin., No. 20-1726 (3d Cir. Jan. 21, 2021), counsel for the appellant “filed a brief that was essentially a copy of the one he filed in the District Court.” Appellee moved for sanctions under Fed. R. App. P. 38. Counsel used the same technique to respond to the sanctions motion.
The Third Circuit held that counsel’s “copy-and-paste appeal” “was a dereliction of duty, not an honest mistake.”
After concluding that “the substance of this appeal is as frivolous as its form,” the Court not only affirmed the district court, but granted appellee’s Rule 38 motion for damages.
So the next time you are tempted to cut-and-paste an appellate brief, be careful. It could be a costly mistake.