Appellate Advocacy Blog

Editor: Tessa L. Dysart
Regent University School of Law

Friday, May 26, 2017

Appellate Advocacy Blog Weekly Roundup May 26 2017


 As  we do every Friday, the Appellate Advocacy Blog presents a few tidbits of news and Twitter posts from the past week concerning appellate advocacy. As always, if you see something during the week that you think we should be sure to include, feel free to send Dan a quick email or a message on Twitter (@Daniel_L_Real).



Supreme Court Rulings:

Cooper v. Harris

On Monday, the Supreme Court ruled in this case challenging North Carolina's congressional districts as having been drawn based on an unlawful reliance on race.  Justice Kagan authored the opinion for the Court, joined by the more liberal Justices on the Court and by Justice Thomas.

Supreme Court Opinion

Washington Post Article

Buzzfeed Article

TC Heartland LLC v. Kraft Foods Group Brands LLC

The Supreme Court, in a unanimous opinion, reaffirmed a prior decision and held again that a domestic corporation resides only in its state of incorporation for purposes of venue in patent cases.  As a result of a Federal Circuit decision in 1990, in which the court held that patent infringement venue was proper in any court having personal jurisdiction over the defendant, over the past two decades there has been a rise of patent-focused cases in venues such as the Eastern District of Texas. As a result of the TC Heartland decision, venue is restricted to where the defendant is incorporated or where the defendant has a regular and established place of business.

Supreme Court Opinion

Patentlyo Article

Immigration Cases

As this article from The Atlantic discusses, there are a number of important immigration cases that are awaiting rulings from the Supreme Court.  The article notes that in the major cases, the Court seemed to lean toward favoring the arguments of the government during oral arguments, but the current political and world climate will make the eventual rulings very interesting.

Other Appellate Court Rulings:

On Thursday, the Fourth Circuit Court of Appeals upheld a nationwide injunction that blocked the Trump administration's efforts to temporarily halt immigration from six majority-Muslim countries.  The ruling is the first appellate court ruling on the second executive order issued by President Trump on the subject.  If the administration wants to seek it, the next step would be to petition the Supreme Court for review.

Fourth Circuit Ruling

Buzzfeed Article

Practice Tips:

Related to the Supreme Court's decision in TC Heartland, a good twitter thread this week touched on the importance of preserving even long-shot arguments, with the venue objection in patent cases in Texas as one example. HT: Sean Marotta.

May 26, 2017 | Permalink | Comments (0)

Tuesday, May 23, 2017

#TwitterTuesday--Legal Writing


Every appellate practitioner should want to improve his legal writing.  Here are a few Twitter accounts to follow that provide helpful legal writing tips:

Follow the University of Virginia Law Writing program (@UVALawWriting) for program news and writing and advocacy tips.  In looking at their page I saw several useful retweets of legal writing guru Bryan A. Garner (@BryanAGarner), which is another great account to follow.

The Legal Writing Institute (@lwionline) tweets about conferences, articles, and news in the legal writing community.

To write well you must also listen well.  Follow Listen Like a Lawyer (@ListenLikeaLwyr) for tips on effective listening practices.

May 23, 2017 | Permalink | Comments (0)

Tuesday, May 16, 2017

#TwitterTuesday--Even More Judges Who Tweet


I am a little late today with #TwitterTuesday.  My blogging has been a little slow the past few weeks, as my husband and I are preparing to move to Tucson, Arizona, where I will be taking a position as the Assistant Director of Legal Writing at the University of Arizona James E. Rogers College of Law.  But, I do have some tweeting judges to highlight today:

Jerod Tufte (@JudgeTufte) is a justice on the North Dakota Supreme Court. He tweets about appellate practice with an occasional beautiful picture of the Dakotas thrown in.

Steve Leben (@Judge_Leben) is a judge on the Kansas Court of Appeals and an Adjunct Professor at KU School of Law.  He is the co-founder of Procedural Fairness, an organization dedicated to “helping judges and courts implement policies and practices that promote procedural fairness in courtrooms and courthouses,” and tweets on this subject and others.

Richard Dietz (@richard_dietz) is a judge on the North Carolina Court of Appeals and a former appellate litigator.  His tweets cover appellate writing and practice and North Carolina judicial elections.

And, a post on tweeting judges would be incomplete without a Texas judge!  Brett Busby (@BrettBusby) is a justice on the Texas Court of Appeals, 14th District.  He is not a frequent tweeter, but has started highlighting some of the work of the South Texas College of Law.  We hope to see more tweeting out of him in the future.


May 16, 2017 | Permalink | Comments (0)

Friday, May 5, 2017

Appellate Advocacy Blog Weekly Roundup May 5 2017



 As  we do every Friday, the Appellate Advocacy Blog presents a few tidbits of news and Twitter posts from the past week concerning appellate advocacy. As always, if you see something during the week that you think we should be sure to include, feel free to send Dan a quick email or a message on Twitter (@Daniel_L_Real).


U.S. Supreme Court Rulings:

Bank of America v. City of Miami and Wells Fargo & Co. v. City of Miami:

A divided Court ruling on Monday that the City of Miami counts as an aggrieved "person" entitled to standing to file suit claiming harm from discriminatory lending practices of banks.  Chief Justice Roberts joined liberal justices Breyer, Ginsburg, Sotomayor, and Kagan in the majority; Thomas dissented, joined by Kennedy and Alito; Gorsuch did not participate.


National Law Journal Article reviewing the decision

Reuters Article reviewing the decision

Work Remaining for SCOTUS This Term:

Although the Supreme Court has completed hearing oral argument in cases for this term, much work remains to be done.  More than half of the cases on this term's docket remain pending, and the Court has the task of finalizing them before the end of term in late June.  That includes resolution of a number of noteworthy cases involving immigration, trademark arguments that impact the Washington Redskins trademark, cases against federal law enforcement officials, and religious liberty.

Bloomberg Article.

 Developments in Appeal of Travel Ban Case:

The United States Court of Appeals for the Fourth Circuit is scheduled to hear arguments next week challenging the latest version of the Trump administration's travel ban.  When that case is heard, however, Judge J. Harvie Wilkinson III will be recused because his son-in-law, the acting Solicitor General, is a lead lawyer for the administration.  Wilkinson was nominated to the bench by President Reagan and confirmed in 1984, and he is one of the most prominent conservative federal appeals judges in the country.  His recusal appears to further tip the balance of the panel that will hear the appeal toward a more liberal balance, widening the margin of judges appointed by Democratic presidents over Republican presidents.

BuzzFeed article.

UCLA Clinic Wins SCOTUS Case:

The Daily Bruin ran a great article this week covering a recent victory before the United States Supreme Court for UCLA law professor Stuart Banner and Supreme Court Clinic students.  The case, Nelson v. Colorado, involved issues related to court fees.  In Colorado, defendants convicted of crimes are required to pay restitution and fees, and they are not entitled to have those expenditures returned if their convictions are overturned on appeal.  Instead, Colorado law provides that they must bring a separate proceeding and "prove" their innocence.  Banner and his students successfully argued that the Colorado procedures were unconstitutional.

 Practice Tips:

The Bar Association of the Fifth Federal Circuit is consistently a great source for useful practice tips.  This week, the BAFF Twitter Account reminded followers that the Fifth Circuit website offers a vast array of practitioner guides and samples to make appellate practice in that court easier. Just see the links under "Forms, Fees & Guides" to start exploring.

Of Interest:

This week, the New York Times ran an article covering a book, "Hemingway Didn't Say That: The Truth Behind Familiar Quotations," in which Garson O'Toole (a pseudonym for former teacher and Johns Hopkins researcher Gregory F. Sullivan).  The book compiles some of the most popular posts from the popular website Quote Investigator, where O'Toole has traced the origins of numerous well-known sayings and identified misattribution of many famous quotes.

Appellate practitioners -- and appellatetwitter members, in particular -- love a good quote.  Better be sure the attribution is correct!


May 5, 2017 | Permalink | Comments (0)

Tuesday, May 2, 2017

#TwitterTuesday--Oh Michigan


I hear that it has been cold up north.  So, for those of you who might be snowed in and looking for some good Michigan appellate Twitter feeds to follow, here you go!

Bill Schuette (@SchuetteOnDuty) serves as Michigan’s Attorney General. The twitter feed helps inform the public about the current projects and reports issued by the Department of Attorney General.

Bridget McCormick (@BridgetMaryMc) serves as a justice on the Michigan Supreme Court (@MISupreme Court).

A colleague of Justice McCormick’s, Justice David Viviano (@JusticeViviano) also serves on the State’s highest Court.


May 2, 2017 | Permalink | Comments (0)

Monday, May 1, 2017

An En Banc Conundrum

Several weeks ago a reader sent me a copy of an order from the District of Columbia Court of Appeals denying rehearing en banc in a multi-appellant case.  Pretty run of mill, or so it seemed at first glance.  Courts deny rehearing en banc all the time.  But this order was far from ordinary.  According to the order, the case was before the following judges of the District of Columbia Court of Appeals:  "Washington, Chief Judge; Glickman, Fisher, Blackburner-Rigsby, Thompson, Beckwith, and Easterly, Associate Judges."  That is 7 judges.  Judge McLeese did not participate in the the cases.  Although there are 9 seats on the District of Columbia Court of Appeals, one of the seats has been vacant for several years, making for normally 8 active judges.  

Of the 7 active judges participating in the case, 4 voted for rehearing en banc with respect to two appellants, yet the petitions were all denied.  How can that be?  I emailed some with the tipster, and we agreed it was probably because the District of Columbia Court of Appeals requires a majority of active judges to vote in favor of a petition.  In the case of the District of Columbia Court of Appeals, that would be 5 judges.  After looking at the court rules, that is in fact the case.  So, even though one judge was recused, and a majority of the active, non-recused judges voted for rehearing en banc, the petition was denied.

I must admit, I had not heard of such a situation before, and my tipster was equally baffled.  As it turns out, Howard Bashman has written on the topic before, arguing that recused judges should not be counted as a no vote.  Howard's piece, written in 2001, noted that the federal rules were unclear on how recused judges should be counted in the en banc voting process and that the federal appellate courts were divided on how the language should be interpreted.  Federal Rule of Appellate Procedure 35 now makes it clear that it is a majority of active judges "who are not disqualified" participate in the decision whether to take a case en banc.  Sounds like the District of Columbia Court of Appeals needs to update it rules!



May 1, 2017 | Permalink | Comments (1)

Friday, April 28, 2017

Appellate Advocacy Blog Weekly Roundup April 28 2017



 As  we do every Friday, the Appellate Advocacy Blog presents a few tidbits of news and Twitter posts from the past week concerning appellate advocacy. As always, if you see something during the week that you think we should be sure to include, feel free to send Dan a quick email or a message on Twitter (@Daniel_L_Real).


Salazar-Limon v. Houston:

The Supreme Court denied cert this week in Salazar-Limon v. Houston, a case in which the trial court granted summary judgment in favor of the State on a qualified immunity claim related to an allegation of excessive force by a police officer who shot a man in the back.  The denial of cert drew extra attention because Justice Sotomayor authored a strong dissent, in which she asserted that the trial court and the Fifth Circuit had acted improperly in granting summary judgment and argued that the Supreme Court does not evenly consider appeals from the State and from citizens in such cases.  Justice Alito also authored a separate opinion, concurring in the denial of cert.

Some links discussing the decision and the policy implications related to the development of qualified immunity law in such cases:

Justice Alito's concurrence and Justice Sotomayor's dissent.

Will Baude post on Volokh Conspiracy at the Washington Post about the Court's "Double Standard for Qualified Immunity Cases."

Raffi Melkonian blog post arguing that Sotomayor missed the mark with the reasoning in her dissent.

Supreme Court Arguments:


Monday the Supreme Court heard argument in McWilliams v. Dunn, addressing the question of whether an indigent defendant's entitlement to meaningful expert assistance includes a requirement that the expert assistance be independent from the prosecution.

NPR Article previewing the oral argument

NPR Article about Justices appearing to be split during oral argument

SCOTUSblog page for McWilliams

Bristol-Meyers Squibb Co.

Tuesday the Supreme Court heard oral argument in Bristol-Meyers Squibb Co. and in BNSF Railway Co., addressing the Constitutional law governing where injured people and others can sue companies.  The cases could mark further changes in the recently evolving law of personal jurisdiction.

Bloomberg Article previewing the oral argument

ABA Journal Article by Erwin Chemerinsky previewing Bristol-Meyers Squibb Co. and its potential impact

SCOTUSblog page for Bristol-Meyers Squibb Co.

 Maslenjak v. United States

Wednesday the Supreme Court heard oral argument in Maslenjak, addressing whether a naturalized American citizen can be stripped of citizenship status in a criminal proceeding based on an immaterial false statement.

SCOTUSblog page for Maslenjak

NY Times article reviewing the oral arguments and the apparent concern by the Court for the government's very hard-line position that any criminal offense, no matter how minor and no matter whether ever resulting in arrest or other consequence, could be the basis for revoking citizenship.


Appellate Practice:

This week's #PracticeTuesday discussion on Twitter was all about career changes -- when, how, and why.  It was hosted by Raffi Melkonian.  As always, a lot of great discussion and advice.  Check out the main thread HERE or search for the hashtag on Twitter for additional posts.

This week, Jason Steed shared a blog post from last April on the subject of "Choosing the Right Word."  It's a great read and emphasizes somef quality legal writing stand-bys, such as avoiding the overuse of adverbs and adjectives and, instead, using carefully chosen simple nouns and verbs.

Georgia Court of Appeals Chief Judge Dillard had a discussion going this week on Twitter about concessions during oral argument.  Among the responses that don't appear directly in the thread are a series of thoughts from Steve Klepper, giving the litigants' perspective.

April 28, 2017 | Permalink | Comments (0)

Tuesday, April 25, 2017

#TwitterTuesday--The Grand Canyon State


We have had a cold, rainy weekend in Virginia.  So, the warm sunshine of Arizona, where I will be moving to soon, is on my mind.  For #TwitterTuesday today we are featuring some accounts to follow for appellate matters in Arizona.

The Arizona Supreme Court (@AZCourts) has its own twitter account that provides easy access to case summaries and decisions as well as other news and information about the Court.

The Attorney General of Arizona, Mark Brnovich (@GeneralBrnovich), is both country music fan and an avid tweeter about the opportunities his office has to engage with the public and on issues such as protecting victims.

 Osborn Maledon, P.A. (@OsbornMaledon) is an Arizona law firm that runs the AZAPP blog which provides case summaries and news from appellate courts in the Grand Canyon State.

April 25, 2017 | Permalink | Comments (0)

Tuesday, April 18, 2017

#TwitterTuesday--AGs of New England


Today for #TwitterTuesday I would like to feature some of the AGs in the Northeast.

Maura Healey (@MassAGO) is the Attorney General of Massachusetts. On top of tweeting about the Boston Celtics or the Boston Marathon, the AG tweets about their work regarding opioid addiction and sexual violence.

 George Jepsen (@AGJepsen) currently serves as the Attorney General for Connecticut. Jepsen’s tweets contain helpful links to find the current projects going on in The Constitution State, including his statements on the activities of President Trump.

Peter Kilmartin (@AGKilmartin), Attorney General of Rhode Island, provides a convenient link in his tweets to helpful information contained in a newsletter from his office.

T.J. Donovan (@TJforVermont) currently serves as the Attorney General for the State of Vermont (@VTAttorneyGen). His tweets often correlate to events his office is holding around the state as well as a way to introduce topics of discuss and hear feedback from constituents.

April 18, 2017 | Permalink | Comments (0)

Monday, April 17, 2017

Should you correct a judge's pronunciation?

For those of you on the edge of your office chair waiting for the answer, it is no.  You should not correct a judge's mispronunciation of a word.  

The long (although not too long) answer can be found in my colleague James Duane's recent article May it Please the Court?: The Perils of Correcting a Justice's Pronunciation, which is being published by the Seton Hall Circuit Review.  In the article, Jim recounts a trip to the United States Supreme Court that we took with several of our students to hear oral argument and meet with Justice Kagan.  During argument in the case, one of the justices asked a question that mentioned the last antecedent rule.  The justice pronounced "antecedent" in an unconventional manner.  The advocate, who was quite skilled, used the more common pronunciation of the word "antecedent" in her response.  

As he reflects in the article, Jim told us after the argument that he has "never contradicted a judge about the pronunciation of any word while arguing a case. I would instead either mimic the judge's mistaken pronunciation, or simply not use that word in my answer."  Sound advice.  Jim also avoids mentioning the particular justice and advocate in his article, but he provides a link to the oral argument.  Tony Mauro, in this write up on Jim's article, includes a link to the audio. 

This article is not Jim's only foray into the perilous task of appellate pronunciation. He also has a delightful (and short) piece in The Green Bag on how the Supreme Court is split on pronouncing the word "certiorari."

April 17, 2017 | Permalink | Comments (0)

Tuesday, April 11, 2017

#TwitterTuesday--Final Four


Yes, I am a week late, but for #TwitterTuesday this week we are featuring the four schools that made it to the final four:

North Carolina

Josh Stein (@JoshStein_) is the 50th Attorney General of the Tar Heel State (@NCAGO), serving alongside current governor and University of North Carolina School of Law graduate, Roy Cooper (@RoyCooperNC).


Mary Fairhurst, a Gonzaga School of Law graduate, was sworn in as the Chief Justice to the Washington Supreme Court (@WACourts) in January. Follow the state supreme court on Twitter for updates and even a little history from the State’s highest court.


Ellen Rosenblum (@EllenRosenblum) is a graduate of the University of Oregon School of Law and has the distinction of serving as Oregon’s first woman Attorney General.

South Carolina

Alan Wilson (@AGAlanWilson), a University of South Carolina School of Law graduate, is the current Attorney General for the Palmetto State (@SCAttyGenOffice).

April 11, 2017 | Permalink | Comments (0)

Monday, April 10, 2017

Back to a Full Bench

After 14 months of operating with only 8 justices, on April 17, 2017, the Supreme Court of the United States will hear oral arguments with a full bench.  Judge Neil Gorsuch has been confirmed by the United States Senate to fill the vacancy on the high court created by the death of Justice Antonin Scalia last February.  Judge Gorsuch will be sworn in today.

Judge Gorsuch's confirmation process was not without controversy.  Senate Democrats, upset that former-President Obama's pick to replace Justice Scalia did not receive a hearing, filibustered Gorsuch's nomination on the Senate floor.  Republicans responded by using the "nuclear option" to change the Senate rules and require only 51 votes (not 60) for Judge Gorsuch's nomination to move forward.  Senate Democrats had similarly used the "nuclear option" in 2013 to remove the filibuster for executive and federal appellate nominees.

Justice Gorsuch's first week as a justice will be likely spent prepping for the cases the Court will hear his second week on the bench.  The Court is sent to hear argument in seven cases from April 17 to April 19.  His vote is likely to be critical in some the cases still facing the Court this term.


April 10, 2017 | Permalink | Comments (0)

Friday, April 7, 2017

Appellate Advocacy Blog Weekly Roundup April 7 2017


 As  we do every Friday, the Appellate Advocacy Blog presents a few tidbits of news and Twitter posts from the past week concerning appellate advocacy. As always, if you see something during the week that you think we should be sure to include, feel free to send Dan a quick email or a message on Twitter (@Daniel_L_Real).

Confirmation of Judge Gorsuch to SCOTUS

Items Related to Gosuch Confirmation Votes, Filibuster, Nuclear Option:

Washington Post evaluation of the votes as of Monday morning

Washington Post on Democrats securing votes to block nomination and setting up potential "nuclear option"

Reuters article: Democrats amass support needed to block confirmation vote with filibuster article on "The Strategic Case Against the Democratic Filibuster of Neil Gorsuch"

USN&WR article on "A Supreme Mistake in the Making" about how Republicans could harm the country and themselves by breaking the filibuster with the "nuclear option"


HowAppealing links to variety of articles and stories about Senate Republicans deploying the "nuclear option" to break the filibuster and clear the path for Gorsuch's confirmation.


Items Related to Midweek Plagiarism Allegation:

Business Insider article about the allegations

Politico piece asserting that the evidence supports conclusions of plagiarism

Bloomberg piece asserting that the alleged plagiarism examples are embarrassing


 Not Directly About Gorsuch, But About Judicial Nominations, Vetting, and Confirmation

NY Times article about the White House ending the ABA's role in vetting judges


Noteworthy Appellate Rulings

7th Circuit Court of Appeals ruling in Hively v. Ivy Tech Community College of Indiana:

The 7th Circuit Court of Appeals became the first federal appeals court to rule in favor of protection for sexual orientation-based discrimination under existing federal law when it ruled in an 8-3 ruling that existing civil rights laws protect against such discrimination.

Reuters article about the 7th Circuit decision

AP/Buzzfeed article about the ruling, including court's actual opinion

HowAppealing Links, Part 1

HowAppealing Links, Part 2


Analysis of Appellate Work and History

Empirical SCOTUS analysis of "The Most Powerful Justices Across Time" 


Practice Items

Reuters  on judge sanctioning firm over line spacing and font

#AppellateTwitter's #PracticeTuesday thread this week about tips, processes, advice on finalizing briefs

Twitter:  Trial by Combat denied


April 7, 2017 | Permalink | Comments (0)

Thursday, April 6, 2017

The Fourth Circuit's inboxes are overflowing with unsolicited emails

Here is an interesting tactic that I had not heard about before, and seems so out of the realm of possibility I had never considered it: Fourth Circuit judges have received thousands of unsolicited emails urging a particular outcome in a pending case. As lawyers, we understand and live by the idea that ex parte communications are not allowed. Normally we think of this in terms of the other party involved in the case. No one wants opposing counsel to have the judge's ear without being able to respond. The rule preserves the fairness of the process.


But what if those who are not party to the case have something to say? Well, there is a process for that too - the amicus brief. Usually, interested parties must have permission from the court, and sometimes the actual parties, in order to submit this type of information. Other methods of submitting information to the court, particularly in an unorganized or decentralized fashion is not a "thing." Maybe now it is.

The current email campaign is coming from the Florida Family Association who is urging the court to uphold President Trump's travel ban (the court will be hearing the case in a few weeks). The FFA has engaged in similar campaigns in the past and feels that this type of communication can be persuasive for the court. The group promotes this communication by providing a template for individuals to copy and send on their own, not unlike the types of campaigns used by advocacy groups to communicate with elected officials. 

FFA founder and president David Caton said he believes email campaigns are an effective tool to sway judicial decisions.

"We feel there is a flavor that is missing in most courts, which is, what is really the will of the American public?" Caton said. "When there is injustice, there needs to be a mechanism to communicate from the people who are frustrated when they see the injustice."

But others, which I would guess includes most lawyers, have a different opinion.

"I can't think of a better way to make a judge mad than to flood his or her email box with a bunch of advocacy statements," [Russell] Wheeler said. [Wheeler is an expert in courts and law at the Brookings Institute].

Considering the way communications have changed over the last several years, and with the rise of social media where everyone has an opportunity to voice his or her opinion, this action doesn't seem so out of the mainstream anymore. Public, and formerly private, figures can all suddenly be subject to the admonitions of the crowd. And those communications are probably protected by the First Amendment unless it were to become harassment. While this kind of behavior stretches the boundaries of expected decorum, if the tactics are perceived as effective, this kind of action will continue to happen. Further, the continued politicization of the judicial branch will encourage advocacy groups to try influence court outcomes in ways that skirt the traditional judicial process. 

It is important that we have and cultivate a public discourse, but I can't say I am in favor of channeling that discourse into every judge's inbox. Speaking from within the legal bubble, I agree that receiving unsolicited email would not make me more likely to find in their favor. However, the more our courts continue to appear to be swayed by political ideology, and not by adherence to the law, the more this tactic and others like it will be employed to influence outcomes. I do not believe this is a good development for our legal system, but it appears to be directly connected with frustration and disappointment in the system itself. 

April 6, 2017 | Permalink | Comments (0)

Tuesday, April 4, 2017

#TwitterTuesday--Midwest Supreme Courts


Spring is in the air!  In honor of warmer weather, for #TwitterTuesday this week we are featuring the Twitter accounts of the high courts of some cold Midwestern states.

The Minnesota Judicial Branch (@MNCourts) is the official Twitter account of the State’s courts, including its Court of Appeals and the Supreme Court. Information about the latest decisions from various courts or news about the legal community in the state can be found here.

 The Michigan Supreme Court (@MISupremeCourt) has an extensive twitter outreach. Tweets from the State’s highest court include history of the legal system, information about legal services and opportunities, recent Court decisions and latest legal trends.

@OHSupremeCourt is the official Twitter account of the Supreme Court of Ohio. The Twitter feed includes announcements from the Court, recent decisions, and important deadlines for practitioners in the state.

April 4, 2017 | Permalink | Comments (0)

Tuesday, March 28, 2017

#TwitterTuesday--Lone Star Litigators


Today on #TwitterTuesday we are featuring lawyers from the Lone Star State.

David Walsh (@AppealsCRKA) is an appellate lawyer (and partner) at Chamblee Ryan in Texas. Over his career, Walsh has handled appeals on a wide-range of topics, including the right against self-incrimination, admissibility of expert testimony, insurance coverage, and civil rights.

Kirsten Castaneda (@Texapp) is Board Certified in Civil Appellate Law by the Texas Board of Legal Specialization. Castaneda works in Dallas with the firm of Alexander Dubose Jefferson Townsend and often tweets helpful advice for fellow lawyers.

Tate Hemingson (@Tate_Hemingson) is a commercial litigator and appellate attorney with Strasburger & Price in Dallas. This self-described “grammar nerd” also writes articles, like one recently published with the Dallas Bar Association.

March 28, 2017 | Permalink | Comments (0)

Friday, March 24, 2017

Appellate Advocacy Blog Weekly Roundup March 24 2017


As  we do every Friday, the Appellate Advocacy Blog presents a few tidbits of news and Twitter posts from the past week concerning appellate advocacy. As always, if you see something during the week that you think we should be sure to include, feel free to send Dan a quick email or a message on Twitter (@Daniel_L_Real).

Judge Gorsuch Nomination and Hearing:

The biggest news item of this past week, as it relates to appellate practice, was surely the confirmation hearing held over several days for Supreme Court nominee Judge Neil Gorsuch.  It appears that the vote on his confirmation will take place in early April, so it will likely continue to be a big news item over the next couple of weeks, as well.

Here are links to a variety of items of interest concerning Judge Gorsuch, his nomination, and the confirmation hearing:

 ABA Live Blog of Day 1 of the hearing

ABA Live Blog of Day 2 of the hearing

ABA Live Blog on Day 3 of the hearing

ABA Live Blog of Day 4 of the hearing


University of Virginia Law School Creation:  Neil Gorsuch Project -- including links to opinions, speeches, etc.


CNN Article: Gorsuch on issues

NPR Article: Assertions made regarding Gorsuch on Maternal Leave

Washington Post Article: Some key Gorsuch rulings 

Reuters Article: Democtrats' Plan to Fight Nomination

Trump's Travel Ban:

This week, Judge Alex Kozinski authored an opinion in which he defended President Trump's travel ban against assertions that the ban is contrary to the First Amendment.  That opinion gained some publicity:

Kozinski opinion

 Supreme Court Rulings

The Supreme Court issued a couple of important rulings on meaningful cases this week.

Endrew F. v. Douglas Cty. Sch. Dist.

Regarding standards for what schools must do under the Individuals with Disabilities in Education Act to provide appropriate services for students.  In the Supreme Court's unanimous decision, the Court ruled that schools must do more than provide a "merely more than de minimis" education program.

Education Week Blog Article about Opinion

 Link to Supreme Court Opinion

Bloomberg summary of oral argument from January

Star Athletica v. Varsity Brands

Regarding copyright law protections for "decorative features" on cheerleading uniforms.

ABA Journal Article about Opinion

Link to Supreme Court Opinion

March 24, 2017 | Permalink | Comments (0)

Tuesday, March 21, 2017

#TwitterTuesday--Empire State


Today's #TwitterTuesday comes from the great state of New York.  Here are a few folks/courts to follow for #appellatetwitter in NY:

The New York Court of Appeals, the highest court in the state, has its own Twitter account (@NYCourtsCOA). The Court’s tweets provide information regarding their calendar and recent decisions. 

New York Attorney General Eric Schneiderman (@AGSchneiderman) keeps us up to date on what is happening in the Department of Law.

The Third (@NYAppDiv3) and Fourth (@NYAppDiv4) Judicial Departments of the Supreme Court - Appellate Division have their own Twitter accounts to keep followers informed and even providing the opportunity to see cases live.

Robert Rosborough IV (@NYSAppeals) is an “#AppellateTwitter Litigator” with Whiteman, Otherman & Hanna LLP. Rosborough’s tweets include a wide range of topics from appellate law in New York and around the country to the confirmation hearings for Judge Neil Gorsuch.

March 21, 2017 | Permalink | Comments (0)

Monday, March 20, 2017

To "Um" or Not--A Discussion of Disfluencies for Lawyers, Professors, and Students

As a moot court coach, I teach my students to not use disfluencies like "um" or "uh" in their oral arguments. According to Prof. Barbara Gotthelf's article, A Lawyer's Guide to Um, my dislike of these disfluencies is not unique, but it might be wrong.  After hearing a moot court judge critique an advocate for her use of "uh" and "um," Prof. Gotthelf "began consulting books on public speaking, including texts written specifically for lawyers, and they all gave the impression that using uh and um might be the single worst thing any speaker could do." Having previously heard from a psycholinguist that "using uh and um was not only 'perfectly normal,' but also helpful in furthering effective communication," Prof. Gotthelf dug even further into the literature and found "a body of scientific literature that supports Dr. Shriberg’s views and demonstrates that, contrary to public perception, uh and um are not only inevitable, but actually useful bits of communication."

Prof. Gotthelf's response to the "um fixation" is expressed in the article, which was published by Legal Communication & Rhetoric: JALWD and is available here.  I haven't had a chance to review it in depth, but I look forward to doing so soon (at least in advance of the below event).

In addition to publishing the article, Legal Communication & Rhetoric: JALWD is holding a live Facebook discussion of the article.  Below is the announcement that I received regarding the event.  I am sure that it will be, uh, a great discussion.

Gearing up for spring oral argument competitions? Join Legal Communication & Rhetoric: JALWD for a live Facebook chat-based discussion of Professor Barbara Gotthelf’s article, The Lawyer’s Guide to Um. This article about disfluencies like “um” and “uh” should be of particular interest to moot court advisors, practitioners, law students, and anyone who teaches oral argument. Should verbal fillers be vilified? Read the article and come weigh in!

The chat will take place on Thursday, April 6 at 3pm Eastern. Professor Jennifer Romig of Emery University School of Law will moderate. To participate in the discussion, join the LC&R Discussion Group here: You may join at any time in advance of the chat. When you join, you can check out the archives of our previous discussions.

 Professor Gotthelf’s article can be found here on the Journal’s website:

The Group invites participation by lawyers, law professors, professors from communications and other fields, legal professionals, law students, and anyone with an interest in law and legal communication. It is a forum for the free exchange of ideas with civility and mutual respect.


March 20, 2017 in Appellate Advocacy, Appellate Practice, Moot Court, Oral Argument | Permalink | Comments (0)

Monday, March 13, 2017

Full Citizenship Project

Last week, on International Women's Day, the Legal Writing Institute (LWI) and the Association of Legal Writing Directors (ALWD) announced the "Full Citizenship Project for All Law Faculty" campaign.  According to the press release, the project is "aimed at correcting gender and related disparities among U.S. law faculty." The press release explains:

 As law faculty status and salaries decrease, the percentage of women faculty increases. Based on available data, roughly—and only—36 percent of tenured or tenure track faculty are female, whereas 63 percent of clinical faculty and 70 percent of legal writing faculty are female. This disparity is due to faculty teaching in skills-based areas often being denied the opportunity to earn the same security of position and academic freedom that traditional law faculty enjoy. Yet security of position and academic freedom are needed for a robust classroom and innovative teaching in all areas of law.

The press release has been featured on the blog for the Society of American Law Teachers (SALT) and on Prof. Paul Caron's TaxProf Blog.  Additionally, a article discusses the project and features a nice supporting quote from Denise Roy, the co-president of SALT.  Finally, for a more personal perspective, a clinical professor has written about her experiences in academia here.


March 13, 2017 in Law School, Legal Profession | Permalink | Comments (0)