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Attorney faces sanctions for frivolous appeal, missing spaces in brief

By: Erika Strebel, [email protected]//June 14, 2017//

Attorney faces sanctions for frivolous appeal, missing spaces in brief

By: Erika Strebel, [email protected]//June 14, 2017//

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In the form it was turned in, an appellate brief filed by the Chicago-based lawyer Robert McCoy came in below the 16,500 word limit.

With proper spacing, though, it easily exceeded 17,000 words.

This alleged lax observance of spacing rules now has various sanctions hanging over the head of McCoy, of the Cascino Vaughn Law Offices. At the heart of McCoy’s troubles is the legal representation he provided to six former employees of a Marshfield plant that had produced fire doors.

The employees had developed mesothelioma after being exposed to asbestos. In 2014, they filed a lawsuit against several defendants. Eventually, those defendants were narrowed down to two: Owens-Illinois, the owner of the patent for the fire door, and Weyerhaeuser Co., which owned and operated the plant.

U.S. District Court Judge William Conley had dismissed the claims against both firms, and a three-judge panel of the U.S. Seventh Circuit Court of Appeals agreed last week that Conley’s orders were proper.

But the appeals court handed the plaintiffs more than a second loss on appeal. In an opinion written by Judge Daniel Manion and dated June 6, McCoy – who is licensed to practice in Wisconsin – was taken to task for filing frivolous claims and for exceeding a word limit.

McCoy had certified that his 77-page brief did not exceed the already extended 16,500-word limit placed on his principal brief. But there was one huge anomaly: Every citation in the brief was missing spaces, an ommission the court considered deliberate.

The court noted that, without spaces, one string citation had been counted as a single word. Once the proper spacing was inserted, it came to 68 words.

With proper spacing, the brief’s total length would have exceeded 17,000 words.

“A practitioner before this circuit can take one look at the briefing in this case and observe that its bulk is out of the ordinary; no reasonable attorney could have, in good conscience, certified compliance with the type-volume requirements,” wrote Manion.

The court also found that the plaintiffs had filed frivolous appeals of the claims against Owens-Illinois, noting that no decision supporting the plaintiffs’ arguments existed.

Making matters worse, according to the court, was the plaintiffs’ attempt to keep Owens-Illinois in the suit – even when claims against the firm were dismissed with prejudice in a joint stipulation from 2015.

The court ordered McCoy to show cause concerning why he should not be sanctioned. He has until June 26 to respond.

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