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No one likes losing a case.  And it can get particularly frustrating when the loss is attributable to the court's misinterpretation of the governing facts and law. 

But a 12-page opinion recently released by the state of Utah's highest court reinforces that it's never a good idea for an advocate to allow that frustration to manifest itself in the form of scathing attacks and disparaging remarks which impugn the court's integrity.

Paul Kimball Dyer -- a law professor at the University of Utah's S.J. Quinney College of Law -- prosecuted two cases on behalf of property owners who were disputing the legal basis of certain levies or assessments that were being charged to them as a result of roadway maintenance and other subdivision improvements.  Dryer (and his clients) lost at the District Court level and that outcome was affirmed at Utah's intermediate level appellate court, the Court of Appeals.

The affirmance sparked Dyer's ire, because it concededly contained errors in fact and law. Apparently the Court of Appeals's decision misidentified the signer of a plat and misstated the holding of an appellate case.  Instead of using these mistakes as a basis for seeking reversal, on appeal to Utah's highest court, Dyer ascribed evil motives and insisted (without any evidentiary support) that the errors were "intentional" and comprised a "fabrication of evidence."

That strategy backfired.  Big time.

Rather than provide a disposition on the merits, Utah's highest court opted to strike Dyer's briefs and denied review of the appeal.  Additionally, the case was remanded to the District Court for a determination as to the amount of legal fees to be awarded to Dyer's opponent.

Here are just a few of the inappropriate and offensive "arguments" which made their way into Dyer's briefs:

• [I]f judges start with decision [sic] they want to reach for reasons of prejudice, bias, corruption or whatever, and then work backwards to the evidence, they may fabricate the evidence they need to make their decisions plausible.

Petitioner respectfully asks the Court to judge for itself what happened in this case.

[The authoring judge] needed evidence to justify her decision that W. Brent Jensen was the trust beneficiary in 1965. There was no such evidence, so she simply fabricated it sua sponte.

• This was no innocent mistake.

• [F]or the Court of Appeals to dispose of a case on the basis of prejudice, bias, corruption or any basis other than the actual evidence in the record was to deny Petitioner due process of law.

• The Court of Appeals then goes on to say that Security transferred title to the lots in Plat D to Deseret to develop, but that is another fabrication.

• No reasonable person could have drawn the Court of Appeal's holding from the actual holding of this Court. It is beyond the range of "innocent mistake" or even "negligent mistake." The truth is sometimes a matter of degree -- as when the defendant claimed he didn't know the revolver was loaded when he accidentally shot his wife -- six times.

Petitioner respectfully asks this Court to think about the question of why the Court of Appeals so mischaracterized this Court's holding. The degree of falsity is on a par with its holding that W. Brent Jensen signed the plat for Security Title when the document was actually signed by Leo D. Jensen. Could any Utah judge write the words "[W. Brent] Jensen signed on behalf of both Security and Deseret" without reading the plat? Could any Utah judge write the words "holding beneficial interest in real property could encumber that interest" without reading this Court's opinion? If the Court of Appeals did read the plat and the opinion, why did it make these false statements? (Alteration in original).

• [T]he false claim that W. Brent Jensen signed the plat on behalf of Security Title originated with [the authoring judge].

Courts of law sit in judgment on other professions. Suppose a doctor operated on "Leo D. Jensen" when the true patient was "W. Brent Jensen." The doctor might become the defendant in a court of law. Doctors are expert in medicine. What are judges expert in? Does what [the authoring judge] did in this case meet this Court's professional standards?

Dyer clearly crossed the line from "zealous advocacy" to "fanaticism," and Utah's highest court was having none of it.  Here's the advice it shared with Dyer and future appellants:

There is a misconception among some lawyers and clients that advocacy can be enhanced by personal attacks, overly aggressive conduct, or confrontational tactics. Although it is true that this type of advocacy may occasionally lead to some short-term tactical advantages, our collective experience as a court at various levels of the judicial process has convinced us that it is usually highly counterproductive. It distracts the decision-maker from the merits of the case and erodes the credibility of the advocate. Credibility is often directly tied to civility and professionalism. Judges, jurors, and other lawyers are more likely to believe a lawyer who is courteous and treats others with dignity and respect. Counsel in the case at bar would have been far more effective had he focused exclusively on the facts and the law without making his additional commentary disparaging and insulting the judiciary.

You would think that a law professor would know better.  (Go figure.) 

Luckily, Dyer doesn't teach appellate advocacy.

For a copy of the Supreme Court of the State of Utah's decision in Peters v. Pine Meadow Ranch Home Association, please click on the following link: http://www.utcourts.gov/opinions/supopin/Peters011207.pdf

For more information on Professor Dyer, please click on the following link; http://www.law.utah.edu/faculty/displayProfile.asp?id=59&name=Dyer,Boyd