Straw Person Jurisprudence

Abstract

Under the Standards for Appellate Conduct, Texas attorneys are admonished not to attribute to opposing counsel a position not taken. See Lawyers' Duties to Lawyers, ¶9. (“Counsel will neither ascribe to another counsel or party a position that counsel or the party has not taken.”).

But what if an appellate justice does this herself? -- Imputes upon a represented appellant a position not taken, and then knocks it down and resolves the appeal against that party? Or puts her stamp of approval on her law clerk’s strawman-whacking handiwork? Is that a violation of professional standards, given that both the authoring justice and the law clerk are Texas attorneys? Is it merely a matter of setting a bad example? Or does it, perhaps, establish a new precedent for the legitimate use of strawman-type reasoning as a justificatory stratagem in the disposition of appeals, in which the higher court must render an opinion explaining the reasons for its decision?

Rather than venturing an answer at this point of the appellate game, this commentator urges by way of amicus letter brief that Kem Thompson Frost, Chief Justice of the Court of Appeals for the 14th Appellate District of Texas, revisit her panel’s opinion, and reconsider the rationale belabored to affirm the judgment for American Express Bank, FSB, a federal savings bank that incidentally no longer even exists, as it has been merged into American Express National Bank.

Case cite: SAMEERA ARSHAD and ALMORFA, LLC, v. AMERICAN EXPRESS BANK, FSB, No. 14-17-00676-CV (Tex.App.-Houston [14th Dist.] July 25, 2019, no pet. h.).

Keywords: appellate decisionmaking, results-oriented jurisprudence, rationalizing appellate dispositions, professional ethics

JEL Classification: K10, K12, K19