As litigators, we are often called on to summarize facts in one way or another. On appeal, we must summarize the facts of a trial below. What happens when we slant those facts? Good advocacy requires that we slant facts to some degree. But, if we go too far, then we have committed a deception on the court. That is what happened to a lawyer with Gibson, Dunn & Crutcher, a national, silk-stocking law firm.

Gibson Dunn submitted an appeals brief after losing trial in a California district court. The lawsuit concerned allegations that Gibson Dunn’s client, Zovio, Inc. and Ashford University, engaged in unfair competition and false advertising. Zovio lost the trial. The trial judge entered findings of fact. But, Gibson Dunn mis-stated those facts. In the brief, the Gibson Dunn lawyer:

  • Highlighted favorable testimony while minimizing or ignoring contrary testimony
  • Said the university sought to be a “place of opportunity” for disadvantaged students, while downplaying that the trial court found Ashford had deceived those same disadvantaged students
  • Said the role of admissions counselors was to “help and educate,” while ignoring the fact finding by the trial court that the admissions counselors were sales persons who were pressured to persuade potential students to enroll

Practice Guides

The appellate court noted the advice in a leading practice guide suggesting the brief should state fairly the critical facts, free of bias. But, the California Fourth Court of Appeals found Gibson Dunn’s brief to actually distort the facts. Yet, the appellants were not arguing sufficiency of the evidence. The facts found by the trial judge were not at issue.

The appellate court also noted the brief was peppered with statements that have no citation to the trial record. The defendant also argued that Zovio suffered financial ruin, which claims was based on material outside the trial record. The court of appeals said it was ignoring unsourced material and assertions based on evidence outside the trial record.

That is a rookie mistake, a string of rookie mistakes, to cite to evidence not actually in the trial record. It is equally blatant to not mention directly contrary facts. Many lawyers commit these errors. But, few commit this many errors in one brief. See ABA Bar Journal report here. This sort of tongue-lashing from a court of appeals is quite rare.