Appellate Advocacy Blog

Editor: Tessa L. Dysart
Regent University School of Law

Friday, December 9, 2016

Appellate Advocacy Blog Weekly Roundup December 9 2016

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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 atDReal@Creighton.edu or a message on Twitter (@Daniel_L_Real).

Ruling in Samsung v. Apple

On Tuesday, a unanimous Supreme Court ruled in favor of Samsung in Samsung v. Applethe patent infringement suit brought by Apple, sending the case back to the Federal Circuit for further consideration.  In the case, Apple alleged that Samsung infringed on patents covering specific design elements of Apple's iPhone, including the rectangular front face with rounded corners and colorful grid of icons. Federal law provides that companies found to have infringed design patents on an "article of manufacture" are liable for their total profits. The lower court had awarded Apple $399 million in damages for Samsung's design patent infringement.  In the Supreme Court opinion, Justice Sotomayor wrote that the operative phrase in the statute, "article of manufacture," could sometimes be the entire product (the phone) and sometimes be the components found to have infringed the design patent. The Supreme Court opinion held that the Federal Circuit erred in ruling that the "article of manufacture" must always be the end product (the phone), but did not resolve whether the article of manufacture in the case was the whole phone or parts of it. 

Coverage:

New York Times

Reuters

SCOTUSBlog

Ruling in Salman v. United States

On Tuesday, the Supreme Court unanimously ruled in Salman v. United States, a significant insider trading case that raised the question of whether gifts of confidential information from business insiders to family members without direct financial benefit violate securities law. The Court ruled in favor of prosecutors, ruling that gifts to friends or relatives, whether in the form of cash or a tip of information, sufficiently "benefit" the insider to be considered a violation of securities law.

Coverage:

New York Times

Fortune

Bloomberg

SCOTUSBlog

 

Takeaways from 2016 SCOTUS Oral Arguments So Far:

Adam Feldman writes on the Empirical SCOTUS blog about "Four Takeaways From this Term's 2016 SCOTUS Oral Arguments" so far. There is a wealth of great information about the Justices' interactions with one another and with advocates during the first 1/3 of this term's oral arguments, including which Justices tend to speak the most (or the least), the issues that interest the Justices the most, and the tendencies of some of the best and most frequent advocates to appear before the Court.

Highlights from Appellate Twitter:  #PracticeTuesday

On Tuesdays the brilliant tweeters of #AppellateTwitter post a variety of useful tips, strategies, guidelines, advice, etc.  Here are a few of the highlights from this week, where the topic was mythbusting -- conventional wisdom with which experienced appellate practitioners disagree:

  • Sean Marotta (@smmarotta) argued against the myth that a law student should take "any" clerkship, regardless of location, judge, etc.  He argued that young graduates should definitely consider costs to family, significant others, and other factors when deciding whether a clerkship is really the right opportunity to pursue.
  • Rachel Gurvich (@RachelGurvich) argued against one of my personal favorite myths, that being on Law Review is some kind of prerequisite to a successful legal career. I always tell students that law review is not for everyone and is not a magic bullet -- the key is to find something that catches a potential employer's eye and once you get your foot in the door, you can explain why you didn't go the law review route.
  • Bryan Gividen (@BryanGivi) argued against the myth that a young associate should never so no to an assignment -- because if you don't learn how to say no to assignments that you cannot perform well, you are sure to start alienating colleagues and clients with poor work product.
  • Jennifer Romig (@JenniferMRomig) argued against one that is dear to my heart, as an educator -- the myth that law school conclusively reveals whether someone will be a good lawyer.  I've known many students who were "average" or even below in performance in law school, but went on to be fine and highly successful members of the legal community -- even some who took a couple of tries to pass the bar exam. I've known students who excelled in classes, but not so much in the real world. There's just more to it than that.
  • Finally, Supreme Court Places (@SCOTUSPlaces) called for the debunking of a myth that is near and dear to the hearts of anyone who has ever clerked for an appellate court -- "There must be a case for that simple, seemingly incontrovertable proposition."  It's amazing how often you think that but research seems to come up empty!

December 9, 2016 in Appellate Advocacy, Appellate Practice, Current Affairs, Federal Appeals Courts, United States Supreme Court | Permalink | Comments (0)

Thursday, December 8, 2016

Asian-American rock band, The Slants, seek its day in Court

January 18, 2017. That's the day the rock band, The Slants, gets to make its case on trademark to the United States Supreme Court.

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The band has been battling the U.S. Patent and Trademark Office since 2006 in its quest to trademark the name of the band. The USPTO has refused to grant the trademark on the grounds that "slant" is a racist slur. 

"For us, this case has always been about civil rights." The trademark office rejected the band's trademark application, citing a section of the Lanham Act that prohibits registration of trademarks that may disparage "persons, living or dead, institutions, beliefs or national symbols, or bring them into contempt or disrepute." The Slants claim the provision violated the First Amendment. After losing before a three-judge panel of the U.S. Court of Appeals for the Federal Circuit, the en banc court in December 2015 sided with The Slants and struck down the ban on disparaging marks as an unconstitutional regulation of speech.

The Slants seek to protect its First Amendment rights, but underlying the case is the idea of reclamation. Words that have been historically used to disparage minorities are sometimes, and to some degree, reclaimed by those groups as a sign of empowerment. Simon Tam, the band's leader is the named party in the suit, makes the following point in reclaiming, or reappropriating, insulting words:

Tam's brief in the case Lee v. Tam defends the name as part of "the long tradition of 'reappropriation,'" whereby minority groups reclaim insulting words and turn them into "badges of pride." Words like "queer" and "nigger" have been transformed in that way, to varying degrees.


"The Slants' fans are not racists eager to denigrate Asian-Americans," the brief states. "Only an uninformed philistine could find the band's name disparaging."

The Slants' members are all Asian-American and assert that it is their right to use this word as representative of their freedom of expression and celebration of their heritage. They've also written an open letter to the USTPO contesting its decision here.

To get the word out and seek funding, The Slants released the video above and have also released a new song to gain exposure. A few words:

There's no room/ For your backward feelings/ And your backyard dealings/ We're never gonna settle/ We're never gonna settle.... So sorry if you take offense/ But silence will not make amends/ The system's all wrong/ And it won't be long/ Before the kids are singing our song.

The song is titled "From the Heart." 

December 8, 2016 in Appellate Advocacy | Permalink | Comments (0)

Tuesday, December 6, 2016

#TwitterTuesday--Sunny States

TwitterTuesdays

It is starting to feel like winter, even in Virginia.  So, let's feature some #AppellateTwitter accounts to follow from sunnier spots:

California

At the Lectern (@Atthelectern) provides commentary and news from Horvitz & Levy (@horvitzlevy) on the practice of law before the California Supreme Court. The tweets provide links to their articles on atthelectern.com.

 Check out Sedgwick LLP’s (@SedgwickLLP) appellate law blog The Appellate Strategist for “insights on appellate issues, trial consultations, and evaluating appeals.”

Florida

FloridaSupremeCourt (@flcourts) is a great resource to find quick access to the latest news from the Sunshine state’s highest court.

Fla. AG Pam Bondi (@AGPamBondi), as well as her person Twitter account, @PamBondi, will keep you informed on the latest legal news with links to articles found at myfloridalegal.com.

 

December 6, 2016 | Permalink | Comments (0)

Monday, December 5, 2016

New Federal Rules of Appellate Procedure

On December 1, 2016, several amendments to the Federal Rules of Appellate Procedure took effect.  I blogged about the changes in August.   Lee Peifer of the 11thCircuitBusinessBlog.com has shared a summary by the United States Court of Appeals for the Eleventh Circuit of the important changes. One of the most significant amendments is the change to Rules 28.1 and 32 limiting the length of principal briefs to 13,000 words (down from 14,000).  Peifer noted that some of the courts of appeals, including the Second, Seventh, Ninth, and Federal Circuits have opted out of the lower word limits.

While the lower limits were generally opposed by the appellate bar, I am not surprised at the change.  In working on an update to the book Winning on Appeal, I have had the opportunity to read comments from many federal appellate judges on the state of appellate briefs.  They almost uniformly agree that briefs are just too long.  

The truth is, it takes more time to write a short brief than it does a long one.  That extra step of carefully editing your work and cutting out the fat is very time consuming.  I have certainly seen this in student assignments that are either right at the page limit or overlength.  Often these students failed to leave sufficient time in their schedule to edit their work.  Lawyers run into this problem too.  The Federal Circuit dismissed an appeal when counsel tried to get around the word limit by eliminates spaces between words and citations.

The late Richard Wydick's book Plain English for Lawyers offers some excellent tips for attorneys (and law students) who struggle with cutting the surplusage in their briefs.  In this new age of shorter briefs, we are going to need them!

December 5, 2016 | Permalink | Comments (0)

Friday, December 2, 2016

Appellate Advocacy Blog Weekly Roundup December 2 2106

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After a brief holiday hiatus, the Appellate Advocacy Blog Weekly Roundup returns today with 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 atDReal@Creighton.edu or a message on Twitter (@Daniel_L_Real).

Garland Returning to Bench

Judge Merrick Garland has been in or on the fringes of the news for months now, ever since President Obama nominated him to fill the Supreme Court seat vacancy created by the death of Justice Scalia.  With the recent election results, the possibility of any confirmation hearing ever happening for Judge Garland is all but gone.  So now, for the first time in months, he'll put his robe back on and return to the bench as the Chief Judge of the U.S. Court of Appeals for the District of Columbia Circuit.  The Salt Lake Tribune wrote about it this week.

Supreme Court News

This week saw several pieces of Supreme Court news.

First, on Tuesday, November 29, the Court issued its first opinion of the term.  In Bravo-Fernandez v. U.S., the Court held that the issue-preclusion component of the double jeopardy clause does not bar the government from retrying a defendant after a jury has returned irreconcilably inconsistent verdicts of acquittal and conviction if the conviction is later vacated for legal error unrelated to the inconsistency. The Court's decision was an 8-0 unanimous decision.  See more at SCOTUSBlog.

Also on Tuesday, the Court heard argument in Moore v. Texas, concerning the Eighth Amendment and standards for intellectual disability  and medical standards for determining whether an individual may be executed. You can find more about this case and the arguments at SCOTUSBlog.

On Wednesday, November 30, the Court heard arguments in Jennings v. Rodriguez, a case involving whether aliens seeking admission to the U.S. who are subject to mandatory detention must be afforded bond hearings.  You can find more about this case and the arguments at SCOTUSBlog.

New Federal Rules

Orin Kerr (@orinkerr) noted on Twitter this week that new amendments to a variety of federal rules, including the appellate rules, are now in effect.  See the US Courts rules and forms page for more.

Sean Marotta (@smmarotta) reviewed the major changes to the FRAP, so check that out for a quick reference.

Appellate Practice

Lisa Solomon (@lisasolomon ), founder and CEO of Now Counsel Network, had an article on ARAG about using fiction techniques to write more persuasive fact sections in appellate briefs. Relying on the work of Brian Foley and Ruth Anne Robbins, Solomon advocates focusing only on relevant facts, including accurate citations to the supporting evidence, and using storytelling techniques to boost the persuasive force of the facts section.

December 2, 2016 | Permalink | Comments (0)

Tuesday, November 29, 2016

#TwitterTuesday--Legal Levity

TwitterTuesdays

After a brief holiday hiatus, #TwitterTuesday is back.  With the election over and exams for students (and exam grading for professors) fast approaching I thought our readers might need some legal levity.  So. if you need a laugh or smile, here are a few folks to follow on Twitter:

“A Crime a Day” (@CrimeADay) keeps the Twitter-verse informed on some of the most surprising statutes on the books. The tweets provide both comic relief and numerous “shake-my-head” moments at the seemingly random subject matter of the United States Code (see e.g., laws regarding the curvature of pineapple slices in fruit cocktail).

The United Kingdom Law Students’ Organization (@UKLSA) has some great memes about law school. Whether you are still in school or you want to remanence about your law school experience, check out UKLSA for a good laugh.

For some funny tweets (and some more thought provoking as well) about lawyers and the law in general, check out Best Lawyer Jokes (@bestlawyersjoke).

And in case you miss our inaugural #TwitterTuesday post (which you should check out here), if you are wanting law-related humor, you should definitely follow Justice Don Willett (@JusticeWillett) of the Texas Supreme Court. You will not be disappointed in following him.

November 29, 2016 | Permalink | Comments (0)

Monday, November 21, 2016

Justice Scalia and Legal Writing

Last week I was in Washington, D.C., for the Federalist Society's National Lawyers Convention.  This year the Society honored the legacy of Justice Antonin Scalia, who was a great friend of the Society. 

One of the panels, which was hosted by the Society's Litigation Practice Group, was entitled "How Justice Scalia's Writing Style Affected American Jurisprudence."  A video of the panel is available here, and I highly recommend watching it.  It is one of the best panels I have seen at Convention.

The panel featured several former Scalia clerks, including the moderator, Justice Joan Larsen of the Michigan Supreme Court.  The clerks talked about Justice Scalia's approach to drafting opinions. Kannon Shanmugam, a partner at Williams & Connolly, called Scalia "the king of the syllogism."  He emphasized the importance that Scalia put on sound reasoning.  He also recalled Scalia's desire to write concise opinions.  He recalled how Scalia once took some time to edit a draft opinion from 14 pages to 10.

While several of the panelists noted that Scalia was careful to not too personally criticize his colleagues on the bench, Prof. Toni M. Massaro did discuss how Scalia's writing style, particularly some of his caustic one-liners, might offend the general public and be the type of writing we do not want students to emulate.

The other panelists, Prof. Brian T. Fitzpatrick and Judge Jeffrey S. Sutton, provided great insight into how Scalia's chambers were run.  For example, the clerks had to pull from the library all of the sources used in an opinion and sit down with Justice Scalia and the other clerks to carefully go through each opinion to check the accuracy of the substance of the citations.

Rather than recount all of the fun stories provided in the panel, I will just once again commend it to you.  The whole panel is less than an hour and a half long.  It is well worth the time!

 

November 21, 2016 | Permalink | Comments (0)

Friday, November 18, 2016

Appellate Advocacy Blog Weekly Roundup November 18

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The Appellate Advocacy Blog Weekly Roundup will be on a brief hiatus until after Thanksgiving.  Thanks for following the Appellate Advocacy Blog, and look for a new Weekly Roundup on December 2.

November 18, 2016 | Permalink | Comments (0)

Tuesday, November 15, 2016

#TwitterTuesday--Lonestar Judges

Judges in the Lonestar State are perhaps some of the most active on Twitter.  Some may attribute that to Justice Don Willett--the Tweeter Laureate of Texas.  Whatever the reason, here are a few more Texas Supreme Court Justices to follow:

Justice Jeff Boyd (@JeffBoydTX) of the Texas Supreme Court was elected to his first term in 2014. Justice Boyd is a balanced tweeter between pertinent information regarding the Texas Justice system and the more lighthearted jokes.

Justice Debra Lehrmann (@JusticeLehrmann) is also serves on the Supreme Court of Texas. This former trial judge is a relative new-comer to the Twitterverse, but does showcase opportunities she has to speak at different conferences across the Lone Star state.

Justice Eva Guzman (@JusticeGuzman) made history by being the first Latina to serve on the Supreme Court of Texas. Justin Guzman, who just won reelection to the bench, serves as a great to catch up on all the big news of the day.

Justice Jeff Brown (@judgejeffbrown) is (you guessed it) a Justice on the Supreme Court of Texas.  Justice Brown tweets about all things Texas, from law to politics and of course sports.  

November 15, 2016 | Permalink | Comments (0)

Monday, November 14, 2016

2016 Election Recap--State Supreme Courts

Last week I blogged on the impact of the 2016 presidential election on the U.S. Supreme Court.  On Friday, once the results were in, Dan linked to several articles discussing the results.  Today I want to focus on the impact of the election on the state supreme courts by looking at the 2016 state supreme court elections:

Alabama:  In Alabama, Michael F. "Mike" Bolin (Republican), Tom Parker (Republican), and Kelli Wise (Republican) won reelection as an Associate Justice on the state supreme court.  

Alaska:  Supreme Court Justices Joel Bolger and Peter J. Maassen won retention elections in Alaska.  Both men were originally appointed by Republican governors.

Arizona:  State Supreme Court Justice Ann A. Scott Timmer won retention election.  She was appointed by a Republican governor.

Arkansas:  Arkansans elected two Supreme Court Justices in the March 2016 primary.  John "Dan" Kemp, a circuit court judge, defeated Associate Justice Courtney Goodson for the chief justice seat.  Circuit Court Judge Shawn Womack defeated Clark Mason, a Little Rock attorney, in the other state supreme court election.

Colorado:  William W. Hood won a retention election to continue service on the Colorado Supreme Court.  He was appointed by a Democratic governor.

Florida:  Chief Justice Jorge Labarga, Justice Charles Canady, and Justice Ricky Polston all won retention election.  All three were appointed by a then-Republican governor (Charlie Crist).

Georgia:  David Nahmias won a retention election to hold his seat on the Georgia Supreme Court in May of this year.  Additionally, on November 9, Republican Governor Nathan Deal appointed three justices to the states supreme court—Solicitor General Britt Grant and Court of Appeals Judges Michael Boggs and Nels Peterson. 

Idaho:  Attorney Robyn Brody defeated Republican State Senator Curt McKenzie for a seat on the Idaho Supreme Court.

Iowa:  Chief Justice Mark Cady and Associate Justices Daryl Hecht and Brent Appel won retention election.  Chief Justice Cady was appointed by a Republican governor and Justices Hecht and Appel were appointed by a Democratic governor.

Kansas:  Chief Justice Lawton Nuss and Justices Marla Luckert, Carol Beier, Daniel Biles, and Caleb Stegall were all retained.

Kentucky:  State Appeals Court Judge Larry VanMeter, a registered Republican, defeated another state appellate judge, Glenn Acree, a registered Democrat.

Louisiana:  Incumbent Marcus Clark (Republican) won an unopposed election for the Fourth District seat on the state supreme court.  Additionally, Republican James Genovese defeated Republican Marilyn Castle for the Third District seat. 

Michigan:  Incumbent Republicans David Viviano and Joan Larsen survived election challenges to remain on the state supreme court.

Minnesota:  Incumbent Natalie Hudson beat attorney Michelle L. MacDonald for a seat on the Minnesota Supreme Court.  Justice Hudson was appointed by a Democratic governor.

Mississippi:  Three incumbents won reelection to the Mississippi Supreme Court.  Incumbent Jim Kitchens beat State Appellate Court Judge Kenneth Griffis.  Incumbent Dawn Beam beat Michael Shareef.  Incumbent James D. Maxwell won an unopposed election.  Additionally, Robert P. Chamberlin won a four-way race for the state supreme court.

Missouri:  Justice Richard Teitelman, a Democrat appointee, was retained for his seat on the state supreme court.

Montana:  In June, Chief Justice Mike McGrath and Justice Jim Shea both ran unopposed for their seats, which was treated per Montana law as a retention election.  Shea had been appointed by a Democratic governor.  Additionally, on November 8, Kristen Juras beat Dirk M. Sandefur for the vacancy caused by Justice Patricia O’Brien Cotter’s retirement.

Nebraska:  Chief Justice Michael Heavican and Justices John Wright and William Cassel all were retained.  Chief Justice Heavican and Justice Cassel were appointed by Republican governors, while Justice Wright was appointed by a Democratic governor.

Nevada: Justices James Hardesty and Ron Parraguirre were both retained on the state supreme court.

New Mexico:  Justice Barbara J. Vigil, a Democrat, was retained to the state supreme court and Republican incumbent Judith Nakamura, a recent appointee, defeated Democrat Michael Vigil.

North Carolina:  Incumbent Justice Bob Edmunds, a Republican, lost to Mike Morgan, a Democrat, in North Carolina’s nonpartisan supreme court election.  This gives Democrats a majority on the state supreme court, but the state legislature is allegedly considering expanding the size of the court.

North Dakota:  Justice Lisa Fair McEvers, an incumbent, ran unopposed for her seat on the state supreme court.  Jerod Tufte defeated Robert V. Bolinske, Sr., to replace Justice Dale Sandstrom on the state supreme court.

Ohio:  Republican Justice Maureen O’Connor won an unopposed election for the chief justice seat.  Republican Pat DeWine defeated Democrat Cynthia Rice for a seat on the Supreme Court.  Republican Pat Fischer holds a narrow lead over Democrat John O’Donnell in the other supreme court race.

Oklahoma:  Justices James R. Winchester and Douglas L. Combs were both retained to the state supreme court.

Oregon:  Justice Lynn Nakamoto won an unopposed election to remain on the state supreme court. In May, Justices Rives Kistler and Jack Landau also won unopposed elections.

Tennessee:  Three state supreme court justices were retained in August—Justices Holly Kirby, Jeff Bivins, and Roger A. Page.  All three were appointed by a Republican governor.

Texas:  Texas has two high courts—the state supreme court and the Court of Criminal Appeals.  For the state supreme court, the three Republican incumbents—Debra Lehrmann, Paul Green, and Eva Guzman—defeated their Democratic challengers Mike Westergren, Dori Contreras Garza, and Savannah Robinson.  On the Court of Criminal Appeals Democrat incumbent Larry Meyers was defeated by Republican Mary Lou Keel.   Incumbent Republican Michael Keasler defeated Democrat Robert Burns.  For the open seat, Republican Scott Walker defeated Democrat Betsy Johnson.

Washington:  Incumbents Mary Yu, Barbara Madsen, and Charlie Wiggins defeated challengers David DeWolf, Greg Zempel, and Dave Larson to remai on the state supreme court.

West Virginia:  In May, incumbent Republican Brent Benjamin faced a five-way race for his seat involving two Republicans and three Democrats.  He lost to Republican Beth Walker.

Wisconsin:  In April, incumbent Rebecca Bradley defeated JoAnne Kloppenburg to remain on the state supreme court.

Wyoming:  Justices Kate M. Fox, William U. Hill, and Keith G. Kautz, all appointed by Republican governors, were retained.

November 14, 2016 in Appellate Advocacy, Current Affairs, State Appeals Courts | Permalink | Comments (0)

Friday, November 11, 2016

Appellate Advocacy Blog Weekly Roundup

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Here are a handful of tidbits on appellate practice from around the web this past week.  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 atDReal@Creighton.edu or a message on Twitter (@Daniel_L_Real).

Presidential Election and the Courts:

The Presidential election dominated news this week, in blogs, online news sites, and Twitter.  As a result, the biggest discussion point this week regarding appellate practice was the variety of thoughts about how Donald Trump's election will impact the courts -- the Supreme Court and other federal courts.

Here at the Appellate Advocacy Blog, Tessa posted on the topic in a post on Monday:  The Election and the Courts.  But that discussion ramped up even more starting midweek, after the election and Donald Trump's victory.  Discussions of how the Supreme Court is likely to change under a Trump presidency made headlines at The Economist, Bloomberg, the New York Times, NPR, and other sites. A list of the potential candidates from which Trump might pick a replacement for Justice Scalia (and other potential vacancies) is on the Trump/Pence website.  The National Law Journal expanded the discussion to remind us of the 52 nominees for open federal court seats already put forth by President Obama but not acted on.

Appellate Judges Education Institute:

The 2016 Appellate Judges Education Institute Summit begins today in Philadelphia. The annual summit provides a variety of educational opportunities specifically designed for appellate judges, lawyers, and staff attorneys.  When I worked for the Nebraska Court of Appeals, I was fortunate enough to attend the summit one year, and it is without a doubt one of the best appellate-specific educational opportunities there is.

#AppellateTwitter Swag:

If you are an appellate practice person -- lawyer, judge, casual fan -- you are likely already aware of the Twitter hashtag #AppellateTwitter.  It's continuing to grow, and is a source of some really great Twitter users, posts, and practice tips and discussion.  Jason Steed (@5thCircAppeals) recently indicated an interest in creating some #AppellateTwitter swag -- starting with coffee mugs.  And he's following through on it. He posted on Twitter this week how you can order your own #AppellateTwitter coffee mug, paying through Paypal.  Sign me up.

November 11, 2016 in Appellate Advocacy, Appellate Court Reform, Current Affairs, Federal Appeals Courts, United States Supreme Court | Permalink | Comments (0)

Monday, November 7, 2016

The Election and the Courts

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It is almost over folks!  Well, sort of.  Although the election is just a day away, the impacts of the election on the federal courts will be felt for years, even decades, to come.  The next president will have the chance to make a major mark on the Supreme Court and the Courts of Appeal--if the Senate cooperates.  Let's look at some of the key changes that we might see post-election.

The Supreme Court:  The unexpected passing of Justice Scalia in February 2016 left the high court short one justice.  President Obama's nomination of Merrick Garland to fill the vacancy has languished in the Senate for over 200 days.  While Supreme Court nominations are usually a topic in presidential elections, they have been at the forefront this time around.  Not only is Justice Scalia's seat vacant, but there are currently three justices on the Court over the age of 75.

Republican nominee Donald Trump has released two lists of possible Supreme Court nominees (the combined list can be viewed here).  The second list was provided after some criticized his original list as not sufficiently diverse.  While his list includes some noted conservatives legal minds, noticeably absent are judges from the D.C. Circuit or practitioners in the D.C. area.

Democratic nominee Hillary Clinton has not released a list of potential nominees.  Lydia Wheeler of The Hill has interviewed "well-connected groups" about Clinton's potential picks and come up with a list that is not too different from President Obama's list to replace Justice Scalia.  Merrick Garland, Sri Srinivasan, and Paul Watford all appear on the list.

Libertarian nominee Gary Johnson has also supplied a list.  His list features noted libertarian legal scholars, like Randy Barnett and Jonathan Turley, and D.C. Circuit Judge Janice Rogers Brown.

These list may not be worth much, however, if the Senate refuses to cooperate.  In recent days there has been speculation that Senate Republicans will try to shrink the size of the Supreme Court if Clinton is elected president and they keep the Senate.  Since there is no way that they could do this through the regular law-making process (Clinton would surely veto any attempt to amend 28 U.S.C. § 1), they would have to accomplish it by simply not confirming any nominees.

Lower Courts:  According to the Administrative Office of the United States Courts, there are 13 pending vacancies to the Courts of Appeal and 80 pending vacancies to the District Courts.  The new president will get a chance to fill these vacancies and any others that occur during the next four years. Depending on their length of service, federal judges can start retiring at the age of 65.  According to 2014 Congressional Research Service report, at the end of 2013, "32.5% of active circuit court judges were eligible, based on age and length of service as Article III judges, to assume senior status."  Nearly half of these judges were appointed by President Bill Clinton, which means that replacing these judges with Republican nominees would potentially change the ideology of the federal circuit courts.  Once again, whichever party controls the Senate will have the opportunity to influence how these seats are filled.

Tomorrow will be a big day. 

November 7, 2016 | Permalink | Comments (0)

Friday, November 4, 2016

Appellate Advocacy Blog Weekly Roundup

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Here are a handful of tidbits on appellate practice from around the web this past week.  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 atDReal@Creighton.edu or a message on Twitter (@Daniel_L_Real).

#AppellateTwitter Threads of the Week:

BobLoeb, of Orrick's Supreme Court and Appellate Litigation practice, started a thread on Twitter this week asking for training or advice tips that were useful to appellate practitioners when they first got started.  Lots of great appellate advocates weighed in with some great tips.

While the #AppellateTwitter hashtag has really started to take off, one of its contributors, UNC Law Professor Gurvich, announced plans to start a #PracticeTuesday hashtag for weekly conversations about discussions related to best practices and tips for effective appellate practice.  Readers of this blog will surely want to look for that hashtag and tune in.

SCOTUS:

Just before this past week (Friday, October 28), the Supreme Court announced that it would hear a challenge to a Virginia school district's anti-transgender restroom policy.  The case, Gloucester County School Board v. G.G.,  arises out of a school district policy mandating that students use the restroom matching their biological sex.  A transgender student sued, with the support of the ACLU.  The trial court ruled in favor of the school district, but the 4th Circuit Court of Appeals ruled in the student's favor.  More information available at the ACLU website and at SCOTUSBlog.

The Miami Herald reported this week on an interesting case where the United States and Venezuala are joining on the same side against a U.S. oil company.  The case, Bolivarian Republic of Venezuala v. Helmerich & Payne International, was heard on Wednesday of this week.  In the case, the U.S. Court of Appeals for the D.C. Circuit determined whether U.S. courts have jurisdiction over a lawsuit against a foreign government by looking only at whether the claim was insubstantial or frivolous. More at SCOTUSBlog.

Earlier this week, the Supreme Court rejected an appeal for Alabama death row inmate Bill Kuenzel.  The case involved Kuenzel's claims that evidence was withheld by prosecutors, and gained some national attention when former Attorney General Edwin Meese weighed in and suggested that Kuenzel is "very likely actually innocent."  The AP reported.

Finally, Billboard magazine reported this week that the Supreme Court has asked for the U.S. Solicitor General to provide the government's view about a nearly decade-old dispute between a mother who posted a 29-second video clip on YouTube of her toddler dancing to the Prince hit, "Let's Go Crazy." She received a takedown notice, and the mother sued and raised misrepresentation of copyright and fair use issues.  Neither side was satisfied with the mixed opinion of the 9th Circuit Court of Appeals.  The Supreme Court has not yet granted review in the case, but the request of the Solicitor General suggests there is a possibility that such a grant could be forthcoming.

Obama's Judicial Legacy:

Law.com ran a feature this past week, including lots of graphics, analyzing how President Obama's judicial appointments have shaped the federal courts and where changes have started to be evident. Charleston Law professor  Jennifer North wrote about that topic right here at the Appellate Advocacy Blog earlier this week.

 

November 4, 2016 in Appellate Practice, Legal Profession, Legal Writing, Oral Argument, United States Supreme Court | Permalink | Comments (0)

Thursday, November 3, 2016

Lower Court Judges Start to Make Their Mark on the Law

An issue looming large in this election year is the ultimate composition of the Supreme Court. The newly  elected president could have up to three or four opportunities to make judicial appointments. That is significant considering that with the current composition of the Court only one is enough to potentially swing it in either ideological direction. This is already the current situation as Judge Merrick Garland stands by waiting for the Senate to act on his nomination from earlier this year.

From corpcounsel.com, collage of Obama's judicial appointees since 2009:

Obama-Court-Collage-Article-201611011502

But the Supreme Court is not the only court to watch with regard to political influence. President Obama has made 55 appointments during his term as president and 31 of those judges have replaced Republican nominees. Have these appointments had any effect on the decisions in the lower courts?

Appellate lawyers say it’s too early to see major swings in the law, but individual rulings on labor, class actions and administrative law show signs of a shift to the left.
“Over the last eight years the courts of appeals have become decidedly less friendly to business overall, though the Supreme Court has served as something as a check on those courts,” said Kannon Shanmugam, who leads the appellate practice at Williams & Connolly.

Obama's appointments count for almost a third of all active judges on the circuit courts. That is a sizable number but it might not be enough for a definite shift in the law to occur unless similar changes happen at the Supreme Court.

Rex Heinke, co-leader of the appellate practice at Akin Gump Strauss Hauer & Feld, said he hasn’t observed an overhaul in areas of law affecting business over the past eight years, although the president’s nominees to the bench “are certainly more liberal than the judiciary when he came into office.”

“There would be a dramatic shift if there were liberal justices added to the Supreme Court,” Heinke said.

While all eyes focus on the Supreme Court, the presidential appointments of lower court judges will carry significant political influence over the long term. 

November 3, 2016 in Federal Appeals Courts | Permalink | Comments (0)

Tuesday, November 1, 2016

#TwitterTuesday--Correspondents to follow

The presidential election is just a week away.  It seems like everywhere we turn these days we are bombarded with news.  So, for #TwitterTuesday, we decided to just go with it and feature some of our favorite correspondents who write on topics related to appellate practice (basically the Supreme Court):

Adam Liptak (@adamliptak) is a Supreme Court reporter for The New York Times (@nytimes). Besides being a Pulitzer Prize finalist, this Yale Law grad is an avid tweeter about the Court’s latest decision and news about our favorite Justices.

Michele Olsen (@AppellateDaily) is an attorney that reports on Supreme Court and federal circuit court cases. The @JonesDay alum provides important (and sometimes fun) context to the many cases being decided.

Jess Bravin (@JessBravin) is a Supreme Court correspondent for The Wall Street Journal (@WSJ). When not writing news articles or books on current legal topics, Bravin’s tweets prove that the Supreme Court Justices are interesting people in the Court and out of it (see the picture of Justice Thomas at a @ColbieCaillat concert).

Robert Barnes (@scotusreporter) has covered the Supreme Court for The Washington Post (@washingtonpost) since 2006. On top of finding all the notable and quirky lines of oral arguments and opinions, Barnes has been known to tweet about how the world of politics and the Supreme Court collide.

November 1, 2016 | Permalink | Comments (0)

Monday, October 31, 2016

Visual Aids in Briefs & at Argument

Last week I was working on the oral argument chapters of the third edition Winning on Appeal.  The book, which was originally written by Judge Ruggero Aldisert, is published by NITA.  It serves as a great practical guide to appellate advocacy and includes tips from state and federal judges on effective appellate advocacy.  As I was updating the quotes, I saw several judges refer to visual aids at argument.  As a federal appellate law clerk, I never saw anyone bring a chart or graph or other visual aid into court.  However, it does apparently happen often enough that judges commented on it, and other bloggers have written on the subject.

Generally, while some judges thought that visual aids could be used effectively, such as to walk through complicated statutes or regulations, the judges noted that some attorneys fail to remember that the visual aids can be hard to read from a distance.  Therefore, if your jurisdiction permits, you should bring copies of any visual aids to give to the judges.  If you can't bring copies, you need to be sure that you are using a font that can be read from a distance.  If your visual aids involve technology (such as PowerPoint), be sure that you have it set up to work, or else you could waste valuable argument time playing with technology.  Finally, as Georgia attorney Scott Key has noted, using visual aids as a demonstrative can take away from the discussion between the judges and the attorney.  Remember, one of the main points of oral argument is to answer the judges' questions, not demonstrate your Prezi designing skills.  Anything that distracts from answering judges questions should be eliminated from an argument.

So what should you do if you have something that is better explained with a picture?  I think that it is best to include that picture or graphic in your brief.  My experience is that nearly every appellate judge takes the briefs with her to the bench during argument.  Thus, pointing the judges to a graphic in your brief can be really effective.  In Reed v. Town of Gilbert, a case challenging the constitutionality of a town sign ordinance, the attorneys representing the parties challenging the ordinance used graphics in their brief to effectively compare and contrast the nuances of the complicated sign ordinance and show how the ordinance was, in fact, contest-based.  I am not sure that the ways that the sign ordinance differentiated between different types of signs would have been conveyed as well without the graphics--especially with respect to the different sizes of signs and the duration that they could be displayed.

One word of caution:  If you are going to use graphics in a brief, however, be sure that you don't go overboard, like this attorney did several ago in an antitrust case.  Moderation is the key.

October 31, 2016 | Permalink | Comments (0)

Friday, October 28, 2016

Appellate Advocacy Blog Weekly Roundup

WeeklyRoundupGraphic

Here are a handful of tidbits on appellate practice from around the web this past week.  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 atDReal@Creighton.edu or a message on Twitter (@Daniel_L_Real).

Continuing Impacts of the Supreme Court Vacancy 

This week, Lyle Denniston (@lylden) took a look at three Supreme Court cases that were accepted right before Justice Scalia's death, but haven't received an oral argument date yet.  Denniston noted that the cases have intentionally been bypassed as hearings have been scheduled, and argued that the most likely reason for the intentional bypassing of these three cases – which have been waiting the longest to be argued – is that the Justices are inclined to think that they would wind up in 4-to-4 splits. 

One of the cases, Trinity Lutheran Church v. Pauley, is about school access to a state government program for turning tires into playground sufaces.  The case implicates state constitutional clauses in more than 30 states that deny equal access to government benefits for an organization that is a house of worship or is directly affiliated with one. 

The second case, Murr v. Wisconsin, involves the question of how private property is defined when the government seeks to prevent or regulate development because of environmental concerns. 

The third case, Microsoft v. Baker, involves suit by a group of consumers in Washington against Microsoft, in which they complain that the Xbox 360 had a defect that caused its optical disc to damage the machine to the point that it was unplayable.  Although the plaintiffs in the suit were denied class action status, they managed to get the case dismissed in a manner that allowed them to appeal as a class. 

Each of the three cases involves matters in which Justice Scalia had been outspoken in decisions in recent years.  

Posner Declares the Supreme Court "Awful" 

Judge Richard Posner of the Seventh Circuit Court of Appeals made headlines again this week.  This time, the headlines stemmed from a recent appearance at the Seminary Co-op Bookstore in Chicago, in connection with the launch of a biography on Posner. 

At the event, Posner said that he was working on a new book about the federal judicary. He said that he had "about ten pages on the strengths and about 320 pages on the weaknesses."  Posner continued to say that he was "very critical" and that he does not "think the judges are very good. [He thinks] the Supreme Court is awful. . . . Probably only a couple of the justices, Breyer and Ginsburg, are qualified. They're okay, they're not great." 

Posner criticized federal judges, including the Supreme Court Justices, as lacking intellect – suggesting that they are appointed for appearance purposes and use clerks to do much of their work.  He asserted that the Supreme Court Justices lacked extensive trial experience.  And he criticized their writing, suggesting that Breyer and Ginsburg are the only ones who author readable opinions.  He also took issue with formalisms like res judicata and continued reliance on precedent. 

Posner even took issue with the fact that judges call their offices "chambers," attributing the practice to fourteenth century French language. 

(Video of Posner's Comments )

(Hat Tip:  Above the Law @atlblog )

Clarence Thomas' Majority by Dissent and Jeffrey Toobin's Disdain 

Adam White had a piece this week at the Weekly Standard where he discussed Jeffrey Toobin's latest critical piece about Justice Clarence Thomas.  Toobin's latest piece in the New Yorker reflected on Justice Thomas' 25-year anniversary with the Supreme Court. White noted that Toobin's premise in the latest piece is that Thomas does not write any significant majority opinions and instead focuses mostly on dissenting from others' opinions and has been "on a Court of his own" for his career with the Supreme Court.  

White disagrees with the premise.  White notes that Thomas has written dozens of majority opinions, including ones in cases "on questions of state sovereignty, the First Amendment, antitrust, and . . . administrative law." White also contends that it doesn't matter how many majority opinions he has written – because Thomas authors concurrences and dissents, spelling out his own reasoning, and emphasizing his view of original intent in Constitutional thinking. Thomas also notes that while Toobin has praised other justices, like Ginsburg, for being "influential in different ways," he seems to turn a blind eye to that same thought when looking at Justice Thomas. 

 

Adnan Syed's Lawyers Motion for Bail 

Adnan Syed, whose murder case was spotlighted on the popular podcast, "Serial," in 2014, has remained incarcerated despite a ruling more than three months granting him a new trial. This week, his lawyers filed a motion asking that he be released on bail. The filing asserted that "Syed has now served more than 17 years in prison based on an unconstitutional conviction for a crime he did not commit." 

(NY Times Article

ABA's Unease Over Trump Article Results in First Amendment Debate 

A media lawyer in California, Susan Seager, authored an article reviewing Donald Trump's history as a libel plaintiff.  In the article, Seager called Trump a "libel bully" and a "libel loser," because of his record of losing such cases.  Her article was originally supposed to run in Communications Lawyer, a quarterly newsletter of an ABA member group.  In mid-October, however, discussion between ABA deputy executive director James Dimos, the newsletter's editors, and Seager, resulted in Seager pulling the piece and having it published online at medialaw.org. 

Among the suggested edits were recommended deletions of "direct references to Trump as a bully, a description of Trump as 'orange haired and orange tinged,' and a statement that Trump lacked a sense of humor."  Additionally, the suggested edits included changing the proposed title of the article from "Donald J. Trump is a Libel Bully but also a Libel Loser," to "Preseidential Election Demonstrates Need for anti-SLAPP Laws." 

Although the ABA disputes that its expressed concerns and suggested edits to Seager's language amounted to blocking the initial publication, media lawyers have expressed concern and called the situation an example of censorship. 

According to the ABA, the concerns expressed about the language of the article were based on concerns about whether the pointed language in the article amounted to "[n]ame calling and questioning Mr. Trump's mental capacity," were "ad hominem attacks [that could] increase the risk of the ABA being sued by Mr. Trump," and were inconsistent with the ABA's strong policy of being a nonpartisan organization. 

(Article

SCOTUS Celebrity News 

Apparently Chief Justice Roberts and his wife recently purchased a second home on an island off the midcoast of Maine.  Although the price was not disclosed, a 15-year mortgage for $1Million was filed.  

(Hat Tip:  Howard Bashman @howappealing) 

#AppellateTwitter Weighs in on Golden Rules of Legal Writing 

Joe Fore (@Joe_Fore), Co-Director of the UVALaw legal writing program, asked for #AppellateTwitter's help this week in boiling down legal writing into aa few golden rules – broad take-homes – for his legal writing class.  And #AppellateTwitter did not disappoint. 

(Twitter Thread)

 

October 28, 2016 in Appellate Advocacy, Appellate Practice, Current Affairs, United States Supreme Court | Permalink | Comments (0)

Tuesday, October 25, 2016

#TwitterTuesday--Old Dominion Edition

TwitterTuesdays

For #TwitterTuesday this week we are focusing on the great Commonwealth of Virginia.  Virginia is, of course, home to one the greatest appellate minds of all time--Chief Justice John Marshall, as well as Marshall's political opponent Thomas Jefferson.  While Virginia was a major player in the history of our nation, and in the development of legal history, it is underrepresented in the Twitterverse when it comes to the topic of appellate advocacy.  Nonetheless, we found some great Twitter accounts to follow for those interested in Virginia law in general and appellate advocacy in particular:

Virginia Supreme (@VASupremeCt) provides easy access to Virginia Supreme Court opinion summaries from Justia (daily.justia.com).

The Virginia State Bar (@VAStateBar) is an agency of the Supreme Court of Virginia. The Bar Association tweets about tips, latest news and events, and even some history of profession in Virginia, including appellate advocacy.

Norman Thomas (@NormanThomasLaw) is an appellate lawyer in Richmond, Virginia. With more than thirty years of experience, Thomas shares his knowledge of Virginia law through his tweets and articles he writes regarding appellate news.

VA Bar Association (@VABarAssn) provides an “independent voice” for Virginia lawyers by “advancing the highest ideals of the profession through advocacy [and] volunteer service.” Their tweets serve as great reminders for new learning and networking opportunities provided by the Bar Association.

Jay O’Keeffe (@jayokeeffe) is an appellate and business litigation lawyer in Roanoke, Virginia and publishes articles for “DeNovo: A Virginia Appellate Law Blog.” O’Keeffe, named one of Virginia’s “Rising Stars” from 2008-13, keeps the twitter-world informed about the latest posts on the blog as well as current news in politics and cycling.

Jim Guy (@VirginiaBarPrez) is the 128th President of the Virginia Bar Association. Follow Guy for interesting news concerning Virginia law, interesting cases, and a more personal perspective of the events sponsored by the Virginia Bar Association.

October 25, 2016 | Permalink | Comments (0)

Monday, October 24, 2016

Predicting the Big Court

Let's face it--lawyers are competitive.  We love to win our cases, our office fantasy football league, and the interoffice softball games.  In 2009, Professor Josh Blackman from South Texas College of Law (now Houston College of Law) took lawyer competition to a new level with the creation of FantasySCOTUS.  

FantasySCOTUS is "the leading Supreme Court Fantasy League. Thousands of attorneys, law students, and other avid Supreme Court followers make predictions about cases before the Supreme Court. Participation is free and Supreme Court geeks can win cash prizes up to $10,000."

Participants can create their own leagues to play against friends and colleagues.  I usually create a league for my constitutional law classes and offer a little extra credit to my students who participate.  FantasySCOTUS keeps them interested and engaged in the current Supreme Court term.

In addition to allowing people to predict the outcome of Supreme Court cases, FantasySCOTUS features {Marshall}+, "a revolutionary algorithm that can accurately predict Supreme Court cases."  {Marshall}+ was created by LexPredict, which now runs FantasySCOTUS.  According to the FantasySCOTUS website, "{Marshall}+ was able to predict every case decided since 1953 at 70% accuracy."

So, forget the softball league and start thinking about FantasySCOTUS this year!

 

October 24, 2016 | Permalink | Comments (0)

Friday, October 21, 2016

Appellate Advocacy Blog Weekly Roundup

WeeklyRoundupGraphic

Here are a handful of tidbits on appellate practice from around the web this past week.  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 atDReal@Creighton.edu or a message on Twitter (@Daniel_L_Real).

Presidential Debate:  SCOTUS as a Topic

The third and final debate between Hillary Clinton and Donald Trump was this week, hosted by Chris Wallace.  And SCOTUS was a topic.

Law.com ran a story early in the week, in which it reported on the results of efforts by Law.com reporters to reach out to Supreme Court practitioners and other lawyers about what the candidates should be asked about SCOTUS.  The ARTICLE highlighted some of the responses.

Law.com followed up after the debate with a review of how the topic was actually handled.  Although SCOTUS was scheduled as one of six, 15-minute topics for the debate, moderator Chris Wallace struggled to get the candidates to provide much in-depth discussion about where the Court might go in the next several years and how they viewed the Constitution.   Clinton emphasized that she hopes to see the Court "not reverse marriage equality, not reverse Roe v. Wade, and . . . stand up against Citizens United." Clinton also urged Congress to go forward with the process of considering Merrick Garland's nomination to the Court. Trump's vision for the Court included observations that "[t]he justices [he's] going to appoint will be pro-life, they will have a conservative bent, they will be protecting the Second Amendment . . . [and] will interpret the Constitution the way the Founders wanted it."

More on the intersection of the election and SCOTUS and the future of the Court can be found in this week's Thursday Round-Up at SCOTUSblog.

Follow-Up on Donald Trump vs. The New York Times

Last week's Weekly Roundup included the "disagreement" between Donald Trump and the NYT concerning the Times article about women accusing Trump of inappropriate behavior.  The letters exchanged between Trump's lawyer and the Times' lawyer went viral

This week, the author of the Times response to Trump, David McCraw, penned a piece for Times Insider, in which he described his reactions to the response letter going viral.  See:  "I Hardly Expected My Letter to Donald Trump to Go Viral."  McCraw notes that he wrote the response letter "in about 45 minutes . . . between a meeting on the company's emergency operations plan and a conference call about a new patent suit." After that, McCraw and three colleagues from the Legal Department spent "about 30 minutes, talking about whether the overall point and tone were right, whether words should be tweaked, whether the ending was right." McCraw notes that when he was ready to publish the letter, he jokingly told his legal department colleagues to "[s]tand by [their] Twitter accounts." Then the letter went viral.

McCraw took note of the Internet debate over things like his comma usage and whether there should be one or two spaces after a period. he received hundreds of emails in response to the letter, mostly from strangers but also from former students, colleagues, and law school classmates. He noted that his intent was not to get into politics, but to focus on the basics of press freedom, in a way merited in many cases removed from the spotlight of Donald Trump.  But he also heard from a number of women who felt his letter was also speaking on their behalf, standing up for the women who had come forward to make the accusations against Trump.

According to McCraw, his "favorite email was the one that ended: 'As my sister put it, I've never wanted to hang a paragraph from a lawyer on my fridge before.'"

Washington University Law's Supreme Court Database

First Mondays (@FirstMondaysFM), a seasonal podcast on the Supreme Court, hosted by Ian Samuel (@isamuel) of Harvard Law School and Dan Epps (@danepps) of Washington University St. Louis Law, discussed this resource from Washington University Law in this week's podcast.

The Supreme Court Database is described on Washington University Law's website as "the definitive source for researchers, students, journalists, and citizens interested in the U.S. Supreme Court." It "contains over two hundred pieces of information about each case decided by the Court between the 1791 and 2015 terms."

Put a couple of logs in the fireplace, make some hot cocoa, and settle in for a fall weekend of browsing this resource if you are a fan or follower of SCOTUS.  There's just so much great information there.

Hat Tip:  Bob Loeb (@BobLoeb).

On the Lighter Side

Jason Steed (@5thCircAppeals) rejoiced this week at discovering a California appellate court published an opinion using Century Schoolbook font.  See SoCal Appellate News Blog.

 

 

October 21, 2016 in Appellate Advocacy, Appellate Practice, United States Supreme Court | Permalink | Comments (0)