Part 2: How to Hold Your Opponent Accountable For a Frivolous Appeal (and Avoid One Yourself)

In this two-part series, we are exploring frivolous appeals in the Colorado appellate courts. Part one of this series discussed how to spot a truly frivolous appeal under Colorado law and what the effects of such an appeal may be. Part two discusses how to avoid filing a frivolous appeal, as well as how to hold the opposing party accountable when the appeal is frivolous as filed or frivolous as argued.

How to Avoid a Frivolous Appeal – A Simple Self-Assessment

Attorneys should not file frivolous appeals. The easiest way to avoid doing so is simply to do your job. Perform a proper appellate analysis. Read and follow the Colorado Appellate Rules. Behave professionally.

Yet there are situations that may concern you. Perhaps you worry that because the trial court found your case below was frivolous, the appellate court will do the same. Or maybe you are arguing for an extension in the law where there is no case law on point. In these (and all) cases, ensure that there is a good-faith, rational argument that justifies the appeal. In the appellate court, this means looking at whether the trial court erred in a legally significant way. While there may be arguments that are ultimately unsuccessful, if there is a rational basis in the law or in the facts for making the argument, the appeal is most likely not going to be deemed frivolous as filed. Appellate courts have traditionally given litigants a lot of leeway to make arguments on appeal. Generally, what gets people into trouble is misconduct in arguing the appeal, and that can easily be avoided by following the rules and behaving responsibly.

Still unsure? Consider performing a simple self-assessment:

• Are my legal arguments supported by case law?

• Does my argument have any basis in law or fact?

• If I am arguing for an extension of the law, do I have a good-faith basis for doing so that I can articulate to the Court?

• Have other courts previously held that the arguments I am asserting are frivolous? Can I distinguish my case?

• Am I filing this solely to harass or delay?

• Have I followed all the applicable appellate rules?

• Do I cite more than two cases and are they relevant authorities?

• Is my brief free from disparaging comments about opposing counsel or questioning the integrity of the trial court judge?

If you have any doubt about the right answers to these questions, you may want to revise the brief (or hire another counsel to review) before hitting “submit.” But attorneys who are trying to follow the rules should be somewhat reassured by a review of the appellate court’s published cases on frivolous appeals. In those cases, the frivolous label is reserved for the truly horrendous, such as careless pleadings that shock judges or force them to wade through incoherent verbiage to find an argument. And it is not uncommon in the published cases about frivolous appeals to see that the attorney at fault had racked up previous strikes.

Better to be safe than sorry, of course! Follow the rules, check yourself, and always appeal responsibly.

Responding to a Frivolous Appeal

If you happen to be opposing counsel to an attorney who has submitted a brief with some of the more questionable “elements” discussed above, how should you respond? Here are a few practical suggestions for responding to a frivolous appeal.

If a Brief Includes a Personal Attack

Point out that the attorney’s personal attacks are unprofessional and contrary to the lawyer’s ethical responsibility. If the allegations are sufficiently serious, you may need to simply add that the attacks are unfounded, in addition to being improper. But don’t waste your precious word count defending your honor where it is clear to the Court what is occurring. Cite to Castillo v. Koppes-Conway, 148 P.3d 289 (Colo. App. 2006), request sanctions, and move on. Sometimes, an appellate court will, on its own motion, award attorney fees when an appeal is sufficiently irksome. But make the court’s job easier by requesting any sanctions in your brief.

You may want to make clear to the appellate court where the blame lies for the frivolous appeal. The Court of Appeals has held that where an appeal is frivolous “for reasons that lie solely within the control of counsel, an appellate court may direct that an award of fees and costs be paid by counsel alone.” Examples of such are when the quality of the research and briefing itself is poor, the brief flagrantly violates the appellate rules, or it makes arguments that have no basis in law.

If It Is Obvious to You That the Appeal Is Filed Only to Harass or Delay

If the appeal looks like it was really filed only to harass or delay, suggesting it was frivolous as filed, make sure this evidence is in the record. Recall that the appellate court is not a fact-finding court. If facts outside the record demonstrate the appeal is frivolous as filed, the proper course would be a request to the appellate court to remand to the trial court to make the factual findings, and if made, to order sanctions. But the appellate court will not weigh evidence.

If the Brief Does Not Follow the Colorado Appellate Rules

Consider whether the variation from the rules is truly egregious. If your opponent’s brief did not follow the order indicated in Rule 28 but otherwise included the required elements, you will probably lose credibility by claiming the appeal is frivolous as argued and asking for appellate attorney fees. If, on the other hand, the opposing party is represented by counsel and it is clear the brief significantly flouts the rules, devoting a short section to point out these violations may be worthwhile.

If a Party Tries to Dismiss its Appeal After You Point Out It Is Frivolous

The Colorado Court of Appeals has held that “[a]n appellant cannot ‘escape the sanctions prescribed by law for the filing of a frivolous appeal by voluntarily dismissing the case when it becomes apparent that he faces such sanctions.’” If a party sees the writing on the wall and tries to dismiss an appeal after briefing has been completed, consider asking the court to hear the case if only for the purpose of awarding sanctions. In some cases, the court will oblige.

When They Go Low

Finally, remember First Lady Michelle Obama’s mantra during last year’s contentious presidential election: “When they go low, we go high.” Regardless of where you fall on the political spectrum, these words are good advice in appellate briefing. Don’t let yourself get dragged into the mud with an opponent who wants to make it personal. At the same time, it is permissible to hold accountable lawyers who engage in such tactics. Address inappropriate behavior in a professional manner.

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¹ See Castillo v. Koppes-Conway, 148 P.3d 289, 291 (Colo. App. 2006) (“Plaintiff’s brief cites only one rule of procedure . . . and only two cases . . . . None of these authorities is relevant to the trial court’s rulings.”).

² Id. at 293.

³ See Calvert v. Mayberry, 2016 COA 60, ¶¶ 50-52.

⁴ Rose L. Watson Revocable Trust v. BP Am. Prod. Co., 2014 COA 11, ¶ 16 (quoting Ormsby Motors Inc. v. Gen. Motors Corp., 32 F.3d 240, 241 (7th Cir. 1994)).

⁵ See id.