February 21, 2019

February 21, 2019

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February 19, 2019

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Appellate Briefs Are Not the Place to Incorporate Material from Someplace Else by Reference

Buried in a footnote in the February 7 opinion in a criminal appeal is a helpful reminder for all advocates in the Seventh Circuit, including those handling civil appeals. In United States v. Moody, No. 18-1837 (7th Cir. Feb. 7, 2019), Mr. Moody sought to incorporate an argument by reference from the appellate brief of a trial court co-defendant whose appeal had not been consolidated with his.

The court declined to consider the argument, in part because, in the absence of consolidated appeals, “Moody was not permitted to incorporate by reference his codefendant’s arguments.” Slip op. at 2, n.1.

The court of appeals cited two of its prior decisions to emphasize this point: “Albrechtsen v. Bd. Of Regents of Univ. of Wisconsin Sys., 309 F.3d 433, 435–36 (7th Cir. 2002) (‘[A]ppellate briefs may not incorporate other documents by reference.’)” and “Parker v. Franklin Cty. Cmty. Sch. Corp., 667 F.3d 910, 924 (7th Cir. 2012) (rejecting defendants’ attempt to incorporate by reference arguments in their prior district-court brief).”

Judge Amy Barrett wrote for the court. Chief Judge Diane Wood and Judge Kenneth Ripple joined her opinion.

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Thomas L. Shriner, Jr., Foley Lardner, Bankruptcy, Commercial Litigation lawyer
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Thomas L. Shriner, Jr. is a partner with Foley & Lardner LLP. Mr. Shriner concentrates his practice in commercial and public law litigation and has an extensive appellate practice in both state and federal courts. He also has substantial experience in the bankruptcy courts and regularly speaks on creditor-debtor law subjects. Mr. Shriner is a member of the firm’s Business Litigation & Dispute Resolution, Appellate, and Bankruptcy & Business Reorganizations Practices.

Mr. Shriner has litigated disputes over business acquisitions and...

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