Jeff Fabian, J.D.

Former lawyer, professional writer for law firms and the legal industry with interests beyond the law.

Category: Legal Ethics

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Fast and Loose with Footnotes—Maybe Not Such a Good Idea

Do you have a tendency to rely on substantive footnotes in your briefs? If so, consider this a warning.

A Stern Warning from the Bench

It is generally advisable not to bury key points in footnotes or rely on references to other documents in briefs. But, when a tribunal says something like the following, it is definitely time to take notice:

“Incorporation by reference amounts to a self-help increase in the length of the brief and is a pointless imposition on the court’s time.  A brief must make all arguments accessible to the judges, rather than ask them to play archeologist with the record.”

These are the words of the Patent Trial and Appeal Board (PTAB) in its recent influential decision, Cisco Sys., Inc. v. C-Cation Techs., LLC, Case IPR2014-00454 (PTAB, Aug. 29, 2014), quoting DeSilva v. DiLeonardi, 181 F.3d 865, 866-67 (7th Cir. 1999) (internal quotations omitted).

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Is this the Worst Lawyer in History?

Is this the Worst Lawyer in History?

It isn’t often in my research that I come across something that I find truly hard to believe. But, while researching an article for a law firm that represents attorneys facing disciplinary action for ethics violations, I found one recent case that would put even the most imaginative script writers to shame. In this article , I discuss a case in which an attorney gets disbarred for among many, many other things, falsely telling his opposing counsel that he was, “in a hospital room watching a loved one die of cancer.”

“The seriousness, scope, and sheer brazenness of Respondent’s misconduct is [sic] outrageous.”

While researching an article for a firm that represents attorneys facing disciplinary actions, I came across a state supreme court opinion that I have to believe (and hope) reflects one of the most egregious attorney misconduct cases in history. The opinion is dated December 1, 2015, and reflects the actions of an attorney who had been admitted to practice in the state since 2003.

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