Part of an occasional series. As part of my deliberate practice for writing, I download the briefs of some of the best appellate lawyers in the state and try to improve on their work. Below is a response to a jurisdictional statement in a petition for review that was written by one of the best.
Widget's petition advances no argument worthy of this Court's time or attention. The court of appeals' waiver holding is neither unprecedented nor unjustified. It is Widget who reaches for an inequitable result contrary to this Court's long-standing principle that "a litigant cannot ask something of a court and then complain that the court committed error in giving it to him. The rule, ground in even justice and dictated by common sense, is that he is estopped. [citation omitted].
Widget asks this Court to ignore this long-standing principle and adopt a rule of rewarding gamesmanship. According to Widget, a plaintiff should be able to: encourage a trial court to render judgment for $60-plus million, argue against the defendants' motions for a new trial, force the defendants to post large supersedeas bonds and incur the expense of an appeal—argue for a new trial. And because, according to Widget, a new trial is always lesser-included relief to an affirmance, the plaintiff does not even have to have mentioned its request for a new trial in the trial court in order to argue for a new trial when it loses on appeal.
The court of appeals' waiver holding does not conflict with any of this Court's opinions—including [citation omitted]. The court of appeals correctly applied the well-settled rule that a party who requests entry of a judgment cannot on appeal take a position inconsistent with its requested judgment.
Working only from the jurisdictional statement (I didn't look at any other parts of the brief), here's a rewrite:
The court of appeals rightly applied the well-settled rule that a party who requests the entry of a judgment can't complain of the judgment on appeal. In its petition for review, Widget asks this Court to supplant the rule with one that would render its motion for judgment meaningless. It argues that a plaintiff should be allowed to fight for the entry of a judgment over a motion for new trial and then, if he later loses on appeal, he should get a new trial—the very relief that he had originally resisted. A litigant can't ask something of a court and then complain that the court committed an error in giving it to him has been the law of the state for well over fifty years. Because Widget hasn't advanced a novel reason as to why this long-standing rule shouldn't remain the law, its petition should be denied.
A few remarks about my edits:
- The first quotation is a little long in the tooth. I've shortened it a bit, but preserved the point.
- I didn't care for the reference to "gamesmanship." In my experience, a lawyer who speaks of gamesmanship is usually thought to be doing his own.
- I excised the references to the supersedeas bond and costs of appeal because I didn't believe they supported the argument (costs are costs).
- I recast the sentences in plain English and used contractions for readability.
Maybe not perfect, but I think it's an improvement.