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A Plague O’ Both Your Houses

Estate of Brianna Kriefall v. Sizzler USA Franchise, Inc., 2011 WI App 101

court of appeals decision (recommended for publication); case activity

¶24 n. 7:

On page 36 of its brief responding to Excel’s main appellate brief, E&B asserts:  “[n]ot a single non-Kriefall [Pierringer] settlement agreement” is in the Record.  That is not true, as Excel’s reply brief points out.  One of the many Pierringer releases executed by the non-Kriefall claimants is in the Record and was put there by E&B’s trial lawyer.  We caution appellate counsel for E&B that justice can only be done under accepted legal principles if all parties to a dispute take care not to exaggerate or mislead.  See Wisconsin Natural Gas Co. v. Gabe’s Constr. Co., Inc., 220 Wis. 2d 14, 19 n.3, 582 N.W.2d 118, 119 n.3 (Ct. App.1998) (“misleading statements in briefs” violate “SCR 20:3.3, which requires candor toward tribunals.”).  At the very least, counsel for E&B should have sent a letter to us and all other counsel apologizing for the misstatement, or acknowledged at oral argument the misstatement.  They have not.

¶82 n. 27:

On page 31 of its brief responding to Sizzler USA Franchise’s main appellate brief, Excel asserts:  “Sizzler [USA Franchise] ultimately entered into a separate settlement with the Kriefalls and thus, pursuant to this express agreement with the Kriefalls, Sizzler [USA Franchise] forfeited its contractual set-off.  (Exh 9067, 9068; A[ppendix]24–31).”  This is not true; the cited documents are not settlement agreements between Sizzler USA Franchise and the Kriefalls, as Sizzler USA Franchise points out in its reply brief.  We caution counsel for Excel, as we cautioned counsel for E&B, that justice can only be done under accepted legal principles if all parties to a dispute take care not to exaggerate or mislead.  See Wisconsin Natural Gas Co., 220 Wis. 2d at 19 n.3, 582 N.W.2d at 119 n.3 (“misleading statements in briefs” violate “SCR 20:3.3, which requires candor toward tribunals.”).  At the very least, counsel for Excel should have sent a letter to us and all other counsel either apologizing for the misstatement or, if the agreement Excel’s brief describes exists, pointing to where it is in the Record. They have done neither.  Further, counsel for Excel did not correct the misstatement during oral argument.

Guess what? It doesn’t help your client’s cause if the court sees you as less than candid. ‘Nuff said. But if misery loves company, On Point is glad to lend a hand, Girl Scouts of Manitou Council, Inc., v. Girl Scouts of the United States of America, Inc., CTA7 No. 10-1986, 5/31/11:

That completes our analysis, except to note certain unprofessional features of the brief filed in this court by the law firm of Hogan Lovells US LLP on behalf of the national organization.

For the proposition that “an expressive group’s message and structure are critically linked,” the brief cites Eu v. San Francisco County Democratic Central Committee, 489 U.S. 214 (1989). …

Here is what the Supreme Court actually said …. The brief distorts the Court’s meaning, and this could not be accidental.

This is not, however, company you will want to share.

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