If an appellate brief doesn't follow the court’s rules, it’s likely to be thrown out. That’s according to the Missouri Supreme Court, which rejected a petition for rehearing in a case it dismissed three months ago over technical issues.
On March 15, the court had not yet reviewed the merits of Michael Lexow v. Boeing when it ruled that Lexow’s pleading violated Rule 84.04 of Missouri Civil Procedures concerning how an argument is framed.
“It underscores what has long been a rule is that the requirements of Rule 84.04 of the Missouri rules of civil procedure concerning briefing are to be taken very seriously,” said David Eisenberg, an attorney with Baker Sterchi Cowden & Rice and editor of the firm's Missouri Law Blog.
The Missouri Rule of Civil Procedure 84.04 governs how points of appeal in a brief should be worded, how cases are cited for each point they control, and how to cite the record in each of the matters.
“It's unusual that the case went to argument before they looked at the brief,” Eisenberg told the St. Louis Record.
Lexow’s counsel, Thomas Gregory of Mogab & Hughes in St. Louis, subsequently asked the state’s highest court to reconsider but to no avail. On May 17, the court denied rehearing.
“Missouri appellate cases have gone on for decades talking about the fact that we have very demanding rules for how a brief should be written,” Eisenberg said. “If you don't follow them, you can be an experienced law firm or a pro se plaintiff but it doesn't matter, the court doesn’t need to accept your appeal.”
Underlying the appeal is the Labor and Industrial Relations Commission denying Lexow’s workers' compensation claim for permanent total disability benefits, according to media reports.
“If you call up the clerk's office at the different courts of appeal and at the Supreme Court, and tell them, ‘I'd like to give you a copy of our brief about a week before the due date and it'll be in near-final form. Would you be willing to look at it and to tell us if it appears to be proper as to form?’ They will generally do that,” Eisenberg said. “The court is very nice about that.”
High-profile attorneys, including Michael Wolff, a former Supreme Court judge, plead with the court in a motion that requested the brief be allowed to be rewritten but the court upheld its initial ruling.
“I am not terribly surprised that the Supreme Court was not swayed by this,” Eisenberg said. “They meant what they said the first time and they thought about it and they unanimously ruled that the appeal was dismissed.”
Eisenberg added that pursuing a malpractice claim is among Lexow's avenues of recourse.
“You would have to show that you were prejudiced because had the case been presented properly, you would have prevailed,” he said. “I don't believe this case and others like it should come as a surprise to practitioners in Missouri. Cases of this type have been handed down for years and years and years and Missouri lawyers should be keenly aware of the requirements and pitfalls of Rule 84.04.”