Appellate Advocacy Blog

Editor: Tessa L. Dysart
The University of Arizona
James E. Rogers College of Law

Tuesday, June 20, 2017

#TwitterTuesday--Themeless in Arizona

TwitterTuesdays

Welcome to #TwitterTuesday.  Alas, I have no great theme today.  But, I do have three great Twitter feeds that you can follow!

Ross Guberman (@legalwritingpro) is the author of several books on legal writing, including Point Made: How to Write Like the Nation's Top Advocates (which I enjoyed) and Point Taken: How to Write Like the World's Best Judges.  He tweets primarily on legal writing.

Bryan A. Garnar (@BryanAGarner) is pretty much the go-to guru for all things legal writing.  He is the editor-in-chief of Black's Law Dictionary and the Redbook, interviewer of justices and judges, and co-author of at least two books with the late-Justice Scalia, including a book on appellate advocacy Making Your Case:  The Art of Persuading Judges.

Megan E. Boyd (@LadyLegalWriter) blogs on legal writing at ladylegalwriter.blogspot.com. She has some great tweets on writing in general and legal writing in particular.

 

 

June 20, 2017 | Permalink | Comments (0)

Monday, June 19, 2017

Should the Justices Cancel Their Summer Plans?

Under the Rule 10 of the Supreme Court Rules, the Court will only grant a petition for a writ of certiorari for “compelling reasons.” In Rule 10, the Court provides three examples that “indicate the character of the reasons” that the Court considers in granting certiorari:

(a) a United States court of appeals has entered a decision in conflict with the decision of another United States court of appeals on the same important matter; has decided an important federal question in a way that conflicts with a decision by a state court of last resort; or has so far departed from the accepted and usual course of judicial proceedings, or sanctioned such a departure by a lower court, as to call for an exercise of this Court's supervisory power;

(b) a state court of last resort has decided an important federal question in a way that conflicts with the decision of another state court of last resort or of a United States court of appeals;

(c) a state court or a United States court of appeals has decided an important question of federal law that has not been, but should be, settled by this Court, or has decided an important federal question in a way that conflicts with relevant decisions of this Court.

On June 1, the Trump Administration filed a petition for a writ of certiorari, asking the Court to hear the case Trump v. International Refugee Assistance Project, which is the Fourth Circuit case challenging President Trump’s Executive Order on visas from certain countries, commonly referred to as the travel ban.  There is also a case in the Ninth Circuit challenging the ban.  In both cases, the respective district courts enjoined the ban and the circuit courts largely affirmed those decisions. 

Should the Court grant certiorari in these cases?  My friend Professor Josh Blackman has argued in a June 11 op-ed in the New York Times that the Court should indeed grant certiorari and provide “finality.”  Professor Blackman argues that the Court should hear arguments promptly and issue a decision “as soon as practicable.” He cites a several examples of separation of powers cases that were decided quickly by the Court (within about a month), including the Pentagon Papers Case, the Steel Seizure Case, and Bush v. Gore.  Professor Blackman argues:

The legal status of President Trump’s executive order, and indeed that of his entire administration, needs finality, sooner rather than later. Even if five justices plan to strike down the executive order, they should do so now, and not in the fall, or worse, one year from now. The lower courts desperately need guidance. Should judges look to Mr. Trump’s Twitter feed to determine his true intent? Should the judiciary privilege statements from the commander in chief that conflict with those of the Justice Department? Are all of Mr. Trump’s actions that affect Muslims, at home and abroad, perpetually tainted by his campaign statements? If the Supreme Court signals that the answer to those questions is yes, then the lower courts may declare open season on this administration in contexts far beyond the travel ban. If a more circumspect Supreme Court signals that the answer is no, then, perhaps, the lower courts will fall into line.

Under Professor Blackman’s reasoning, the Court is facing “compelling reasons,” envisioned in Rule 10—namely, “an important question of federal law that has not been, but should be, settled by this Court.” 

While I sympathize with the argument, I worry that “haste makes waste” or, more accurately, bad constitutional law.  Many of the cases that been rushed through the Court on big separation of powers issues result in highly fractured decisions (think the Pentagon Papers Case, the Steel Seizure Case, and Bush v. Gore) and/or a lack of acceptance by a significant portion of We the People (think Bush v. Gore).  I fear that any overly speedy SCOTUS decision in the travel ban cases would end up with a reputation like Bush v. Gore.  Perhaps even a non-speedy decision would suffer the same fate.  At a minimum, if the Court does decide to take the case, I hope that they devote all summer to it, not just July, even if it means August in D.C.  I emailed this post to Professor Blackman before posting it and he said that he does not mind the Court taking August to decide the cases either, but he does not want to see the issue linger on for six months.  Either way, we should know soon (maybe even later today) if the Court plans on hearing the case.

June 19, 2017 in Appellate Procedure, Federal Appeals Courts, United States Supreme Court | Permalink | Comments (0)

Thursday, June 15, 2017

Justice Gorsuch's first Supreme Court opinion is unanimous

This week, the newest justice on the United States Supreme Court issued his first authored opinion, Henson v. Santander Consumer USA Inc. The topic was debt collection, perhaps not a scintillating topic for most, but Justice Gorsuch opened with a catchy couple of lines - the most colorful of the opinion: 

Disruptive dinnertime calls, downright deceit, and more besides drew Congress’s eye to the debt collection industry. From that scrutiny emerged the Fair Debt Collection Practices Act, a statute that authorizes private lawsuits and weighty fines designed to deter wayward collection practices.

The rest of the decision centers on statutory interpretation, and following in the footsteps of Justice Scalia as he does, Justice Gorsuch's textual approach does not diverge from that of the late justice. The issue in the case was whether a third party purchaser of a debt can fall within the statutory definition of a "debt collector." Because the Fair Debt Collection Practices Act defines a debt collector as one who collects a debt on behalf of another, the defendant in the case could not be called a debt collector, and so did not violate the Act. The petitioner sought to use grammatical reinterpretations of the Act's wording that did not comport with the plain meaning, and failing that, asserted policy arguments. But Justice Gorsuch did not buy it, saying:

All this seems to us quite a lot of speculation. And while it is of course our job to apply faithfully the law Congress has written, it is never our job to rewrite a constitutionally valid statutory text under the banner of speculation about what Congress might have done had it faced a question that, on everyone’s account, it never faced. See Magwood v. Patterson, 561 U. S. 320, 334 (2010) (“We cannot replace the actual text with speculation as to Congress’ intent”). Indeed, it is quite mistaken to assume, as petitioners would have us, that “whatever” might appear to “further[ ] the statute’s primary objective must be the law.” Rodri- guez v. United States, 480 U. S. 522, 526 (1987) (per curiam) (emphasis deleted). Legislation is, after all, the art of compromise, the limitations expressed in statutory terms often the price of passage, and no statute yet known “pur- sues its [stated] purpose[ ] at all costs.” Id., at 525–526. For these reasons and more besides we will not presume with petitioners that any result consistent with their account of the statute’s overarching goal must be the law but will presume more modestly instead “that [the] legis- lature says . . . what it means and means . . . what it says.” Dodd v. United States, 545 U. S. 353, 357 (2005) (internal quotation marks omitted; brackets in original).

The opinion writer has been criticized for not being sensitive to a broader policy of consumer protections, and while that may be true, it was a unanimous Court that agreed the statute's definition of debt collector did not include the type of defendant before the Court. The Court, all nine now, agreed upon one thing - the plain meaning of the statute as written. Further, the Court did not veer off the beaten path. It affirmed the decision of the Fourth Circuit, which had affirmed the decision of the lower district court. It seems that this reading of the statute wasn't any rogue opinion, and instead placed the responsibility of writing clear law back in the hands of Congress. 

June 15, 2017 in Current Affairs, United States Supreme Court | Permalink | Comments (0)

Tuesday, June 13, 2017

#TwitterTuesday--The Heartland of America

TwitterTuesdays

I am sorry that #TwitterTuesday has been sporadic this summer.  I have been moving across the country and, apparently, having technical problems.  I was 99% sure that I posted this #TwitterTuesday last week, but, alas, I was wrong.  So, in honor of my drive across America, today we are featuring appellate twitter feeds to follow from the heartland of America!

Daniel Schramm (@daniel_schramm) is an appellate attorney in St. Louis, Missouri.  He tweets about Missouri appellate practice, legal writing, and national legal issues.

Rox Laird (@roxlaird16) is a contributor to the blog On Brief: Iowa's Appelate Blog. He tweets about cases coming from the Iowa appellate courts and the Eighth Circuit.

For appellate news out of Kansas, follow Foulston Appeals (@FoulstonAppeals).  Foulston also tweets about national appellate matters, including the confirmation of Justice Gorsuch.

June 13, 2017 | Permalink | Comments (0)

Monday, June 12, 2017

Shout-out For Clear Writing

Last week it seemed like the only thing on cable news was former FBI Director James Comey's testimony before Congress.  While the content of Comey's written and oral testimony has received a lot of press, one surprise feature of the hearing was the praise Comey received for his writing.  Here is the exchange Comey had with Senator James Risch from Idaho:

RISCH:  Yesterday, I got, and everybody got, the seven pages of your direct testimony that’s now a part of the record, here. And the first — I read it, then I read it again, and all I could think was, number one, how much I hated the class of legal writing when I was in law school.

And you were the guy that probably got the A, after — after reading this. So I — I find it clear, I find it concise and, having been a prosecutor for a number of years and handling hundred — maybe thousands of cases and read police reports, investigative reports, this is as good as it gets.

And — and I really appreciate that — not only — not only the conciseness and the clearness of it, but also the fact that you have things that were written down contemporaneously when they happened, and you actually put them in quotes, so we know exactly what happened and we’re — and we’re not getting some rendition of it that — that’s in your mind. So...

COMEY: Thank you, Senator.

RISCH: ... so you’re — you’re to be complimented for that.

COMEY: I had great parents and great teachers who beat that into me.

While it is a shame that Senator Risch disliked legal writing in law school (and that he mentioned the fact at a hearing that was nationally televised), I appreciate the shout-out for the importance of clear and concise writing (and parents and teachers who encourage such writing).  

Over at the Lady (Legal) Writer blog, Prof. Kirsten Davis has an excellent post on why she thinks Comey's testimony is "A" worthy.  All of her comments are spot on.  A few of the comments pertain directly to appellate writing, such as organizing information chronologically (almost always a great strategy in the statement of facts) and showing how his ideas connect together.  She also notes the effective nature of the introductory paragraph that Comey uses and how he could have improved it.  I appreciate Kirsten's insight, and I am considering using Comey's testimony in my Advanced Legal Writing course this fall when we discuss the statement of the case.

 

June 12, 2017 in Current Affairs, Legal Writing | Permalink | Comments (0)

Sunday, June 4, 2017

Job Posting--University of Georgia School of Law

For those of you interested in making a career move to academia, I received the following posting from the University of Georgia School of Law:

  • The University of Georgia School of Law seeks to hire a full-time legal writing instructor beginning in the Fall 2017 term. Initial course package will include first-year legal writing and two additional legal writing courses based on the needs of the Law School. A Juris Doctor from an accredited university is required. Interested applicants should submit a letter, resume and list of three references at http://facultyjobs.uga.edu/postings/2239 no later than June 9, 2017. The University of Georgia is an Equal Opportunity/Affirmative Action employer. All qualified applicants will receive consideration for employment without regard to race, color, religion, sex, national origin, disability, sexual orientation, gender identity or protected veteran status.

June 4, 2017 | Permalink | Comments (0)

Friday, May 26, 2017

Appellate Advocacy Blog Weekly Roundup May 26 2017

 WeeklyRoundupGraphic

 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).

 

 

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

TwitterTuesdays

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

TwitterTuesdays

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

 

WeeklyRoundupGraphic

 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).

 

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.

Links:

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

TwitterTuesdays

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

 

WeeklyRoundupGraphic

 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).

 

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:

McWilliams

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

TwitterTuesdays

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

TwitterTuesdays

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

TwitterTuesdays

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).

Washington

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.

Oregon

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

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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).

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

 

Medium.com 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.

Fourth-Circuit-Court-Appeals-Article-201704051810

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)