I usually don't discuss unpublished opinions, in part -- quite honestly -- because, unlike the published ones, I don't necessarily read every single one of them. There are simply too many. Reading all the published ones is a difficult enough task itself!
But I thought that this one deserved at least brief mention. Within the first two paragraphs, Justice Sims (HLS '68) insults the "poor lawyering" of appellate and trial counsel. The opinion then continues to highlight the inadequacy of the lawyers throughout. By my count, Justice Sims insults the attorneys sixteen separate times; indeed, virtually every footnote -- and there are fourteen of them -- contains a slam on counsel.
They aren't absurdly mean insults, and for the most part, the critiques appear well-founded. Plus, not only does Justice Sims not publish the opinion, but he also never even names the attorneys. So Justice Sims is hardly as harsh as he could be. (Of course, I'll do exactly the opposite, and both publish and name names. Donald Stevenson is the attorney for Hendrix, and Mark Thiel is counsel for Stockton.)
My only additional comment is that at least some of the inadequacy of the lawyers here may well be due to the low amount in controversy. Both the appeal and the underlying dispute at trial concern only $20,000 or so in unpaid fuel bills. Many attorneys won't take a dump for $20,000, much less litigate a case both at trial and on appeal. Given that only $20,000 was at stake, it's not surprising that the lawyers might -- indeed, perhaps should -- attempt to cut some corners in an attempt to litigate the matter efficiently.
Admittedly, that's no excuse for violating various appellate rules (like having to cite to the record). Much less it is an excuse to (as Donald Stevenson allegedly did) use out-of-context quotes (here, from Witkin). That said, I slightly wish that Justice Sims had expressly recognized the underlying systemic problem here. It's virtually impossible in our legal system for parties to competently litigate $20,000 disputes. The candle simply isn't worth the wick. (Less colloquially, the recovery generally isn't worth the transaction costs, at least when the case isn't likely to settle.) So parties who have such disputes are forced to settle for less-than-stellar counsel, who in turn are compelled to litigate the matter in an overly efficient manner, lest their fees alone swamp the substantive amount at issue. That's a pervasive problem with the American civil system: the inability of mid-sized (to most Americans, at least) disputes to justify employing any counsel, much less competent counsel. A phenomenon worthy of mention.
