Tuesday, August 04, 2015

Blixseth v. Yellowstone Mountain Club (9th Cir. - Aug. 4, 2015)

When the Ninth Circuit -- and Judge Kozinski in particular -- issues an order to show cause and issues an opinion that says that you might well have brought an appeal in bad faith, an attempt to "double down" and insist that what you did was completely right is probably not your best option.

That's what transpired here.  The client, Timothy Blixseth, and one of his attorneys, Michael Flynn, respond to the OSC by continuing to insist that they did nothing wrong and continuing the type of advocacy that got them in trouble in the first place.  So the Ninth Circuit spanks them, and imposes a fee and cost award, plus another $500 to the Ninth Circuit for good measure.

By contrast, four of the other attorneys on the case "allowed their names to be placed on briefs that presented frivolous and inflammatory arguments."  But those lawyers responded to the OSC with a nuanced mea culpa that distanced themselves as much as possible from what transpired.

Those lawyers avoid sanction altogether.  Apart from having their names published in the Federal Reporter, anyway.

That's a better decision.