Appellate Advocacy Blog

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

Tuesday, September 26, 2017

#TwitterTuesday--#NationalPunctuationDay

TwitterTuesdays

Sandwiched between Checkers Day and Comic Book Day, September 24 marks the all important holiday--National Punctuation Day.  For #TwitterTuesday today, we are featuring some great grammar twitter resources to ensure that your appellate briefs and the love notes that you might write today, Love Note Day, are free of grammar mistakes.

Mignon Fogarty (@GrammarGirl). Grammar Girl is one of my favorite grammar resources.  Her explanations are spot on and easy to understand.  Her twitter feed is great too (and current).  On Sunday, in the midst of the NFL protests, she tweeted on "kneeled" v. "knelt."

Grammarly (@Grammarly) is another great grammar and writing resource. Grammarly has a great website and offers a Chrome extension to help you spot grammar mistakes in your online writing.

Grammar Monkeys (@GrammarMonkeys). The news editors at The Wichita (Kansas) Eagle tweet about grammar and language tips at Grammar Monkeys. They also have some great retweets on new words and various spelling mistakes.

September 26, 2017 | Permalink | Comments (0)

Monday, September 25, 2017

Justice Kagan on the Benefits of the Supreme Court Bar

As we get closer to the start of the Supreme Court's October 2017 term, it is time to think once again about the lawyers that we will likely see before the Court.  Undoubtedly veteran Supreme Court advocates like Paul Clement and Neal Katyal will make an appearance.  As the National Law Journal recently reported, Clement is set to argue a set of important labor cases.  And as Jennifer noted earlier this week, we will certainly see Noel Francisco, the newly confirmed Solicitor General, before the Court this term.  Francisco has successfully argued three cases before the Court.

Is the existence of a veteran Supreme Court Bar a good thing?  In a recent talk to students at the University of Wisconsin Law School, Justice Elena Kagan complimented the Supreme Court Bar, noting that it is "'pretty much a nightmare'" to argue before the high court, but that Supreme Court Bar is of "'extremely high caliber.'" She praised the veteran advocates for knowing what the Court likes.

It is undisputed that arguing before the Court can be a difficult venture. The late-Justice Antonin Scalia has been credited for changing oral argument, especially with respect to the number of questions asked. As Justice Kagan explain to the Wisconsin law students,

"It's very rapid fire. You have to have really thought through stuff before you get to the podium. Often the justices aren’t really asking you questions; they don’t really care about the answers you give. They're making points to their colleagues. I say this not in a pejorative way. I do it all the time, and I think it's actually an important part of the process that we're talking with each other up there. But it makes it extremely hard for the lawyers who want to occasionally interject at some point. It's a good thing to realize so let's give these people a little bit of a break."

While Justice Kagan is supportive of the Supreme Court Bar, not everyone agrees.  In reporting on Justice Kagan's talk, Marcia Coyle of the Legal Times noted that a 2008 Reuters investigation "said the repeated appearance of the same advocates 'has turned the Supreme Court into an echo chamber—a place where an elite group of jurists embraces an elite group of lawyers who reinforce narrow views of how the law should be construed.'"

Despite legal scholars' criticism of the Supreme Court Bar, there is evidence that hiring a veteran litigator increases your chance of success.  Perhaps it is a self-fulfilling prophecy, but is likely one that is here to stay.

September 25, 2017 | Permalink | Comments (0)

Friday, September 22, 2017

Appellate Advocacy Blog Weekly Roundup September 22, 2017

WeeklyRoundupGraphic

Each week, the Appellate Advocacy Blog Weekly Roundup 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).

 

SCOTUS:

A variety of items in the news this week concerned the Supreme Court.

Green Bag published Erwin Chemerinsky's review of the 2016 term of the Court, titled, "Waiting for Gorsuch."

Adam Feldman had a post on his blog, Empirical SCOTUS, providing "A Primer on The Government's Participation Before the Supreme Court at the Start of the 2017 Term."

Politico had a feature on Hogan Lovells partner Neal Katyal and his role in battling the Trump administration's travel orders in the appellate courts, including his upcoming 35th appearance before the Supreme Court, which will break Thurgood Marshall's record for minority lawyers arguing before the high court.

For #AppellateTwitter members, Adam Hanson posted a tweet this week providing a sneak peak of the new Justice Alito bobblehead, courtesy of the Green Bag.

Judge Posner in Appellate News:

As Jennifer discussed recently on this blog, Judge Posner rather unexpectedly announced his retirement earlier this month.  But that has not kept him from being a topic of appellate practice news.

Slate has been "running a series of monthly dialogues between" Posner (formerly of the 7th Circuit bench) and U.S. District Judge Jed Rakoff, moderated by Joel Cohen.  This month's dialogue was published earlier in the week and is titled, "Should a Judge Rely on the Law or His Own Common Sense?" 

Along with his sudden retirement, Posner also released a new book earlier this month, discussing conflict within the 7th Circuit concerning the handling of pro se appeals.  Matthew Stiegler reviewed the book on his blog, CA3blog earlier this week, in a post titled, "Posner's new book is bananas, but you might want it anyway."

Appellate Practice Jobs:

The United States Attorney's Office, Appellate Division, in the District of Colorado is accepting applications for an Assistant US Attorney to serve in Denver, Colorado, as part of the Appellate Division.  Details HERE.

Practice Tips:

The I Object! blog, a blog on preservation of error, had a post this week about the importance of "knowing when the clock starts running on your deadline to appeal."

September 22, 2017 | Permalink | Comments (0)

Thursday, September 21, 2017

Meet Noel Francisco, the new Solicitor General, just in time for First Monday

On September 19, 2017, Noel Francisco was confirmed, 50-47, as the new Solicitor General of the United States. As the Supreme Court is set to begin arguments on October 2, Solicitor General Francisco will have a busy next few days. 

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Francisco has had a distinguished career in both the public and private sector. He most recently joins the DOJ from Jones Day's government regulation practice where he served as chief, but he previously served in the Bush 43 administration from 2001-2005 in the offices of counsel for the president and of the Department of Justice. Francisco was a law clerk for Fourth Circuit judge, J. Micheal Luttig, and for Supreme Court justice, Antonin Scalia. He is a graduate of University of Chicago, BA, and University of Chicago Law School.

Francisco has argued in front of the Supreme Court three times with an overall record of success. He presented the case of McDonnell v. United States, involving federal bribery statutes, resulting in an 8-0 win, the NLRB v. Noel Canning case on recess appointments, with a 9-0 win, and achieved a 4-4 tie in the Zubik v. Burwell case regarding the application of Religious Freedom and Restoration Act (RFRA) to insurance coverage, leaving the lower court's ruling intact.

While working in private practice for the Jones Day law firm, Francisco, 48, successfully argued before the Supreme Court against the constitutionality of President Barack Obama’s recess appointments to the National Labor Relations Board, winning a 9-0 decision.

He also gained a 4-4 tie at the high court after arguing for the Little Sisters of the Poor, a Catholic order of nuns, against Obamacare’s mandate requiring employers to cover contraception and abortion-inducing drugs in employee health plans.

In another widely publicized case that made its way to the high court, Francisco helped overturn the conviction of former Virginia Gov. Bob McDonnell, a Republican, on charges of public corruption.

As Solicitor General, he himself will likely argue up to nine or ten cases per term, with the rest of the office arguing in the neighborhood of seventy or so cases this year. In this office, Francisco has the final say on both whether to assert appeals when the government loses at trial, and when making appeals, guiding appellate strategy. The Solicitor General has an office at the Supreme Court, and maintains a close relationship with the Court. Frequently the Court will take into account the SG recommendation when deciding which cases to grant certiorari.

The new Solicitor General has many cases of significance on his calendar. Upcoming cases concern separation of powers, religious freedom (baker cases), and immigration (travel ban).

Jonathan Turley, law professor at George Washington University, said the confirmation will also bring needed relief to Attorney General Jeff Sessions, who has been leading the Justice Department with “a truly skeleton staff.” Mr. Francisco will now be able to help shape courtroom strategy for the department.

“From amnesty cities to DACA to travel bans to transgender bans, the Trump Administration faces defining moments before the court. It needs a solicitor general at the helm that supports its policies and priorities,” Mr. Turley said.

This time of year, with First Monday right around the corner, tends to be an exciting one, at least for those in academia who get to introduce this yearly opening to brand new law students. The confirmation of a new Solicitor General adds to the occasion this year. There are a few occasions of First Monday in popular culture, (I just learned), and here they are to satisfy your interest: First Monday in October - the movie (see trailer below), 

First Monday in October - the play upon which the movie is based, First Monday - the TV show, and finally, First Mondays - the podcast. which looks to be the very best of the selections.

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The participants host a weekly podcast every week the Court is in session, and have a special summer session. The podcast could be a quick and fun way to keep up to date on the happenings at the Court. Happy First Monday, whether you are in academia, public, or private practice. The Court has a new composition, and the Solicitor General's office has a new leader at the helm. It will be an interesting year. 

September 21, 2017 in Appellate Practice | Permalink | Comments (0)

Wednesday, September 20, 2017

Oral Argument: Lisa Blatt & the Power of Knowing Your Client's Business

I'm thrilled to join the team at the Appellate Advocacy Blog. I am, literally, a professor of appellate advocacy; I teach and direct the Ilana Diamond Rovner Program in Appellate Advocacy at IIT Chicago-Kent College of Law. I will post about oral argument, psychology and persuasion, snappy legal writing, and other things that fascinate me about appellate courts and the stuff lawyers do to move them.

In an especially excellent episode of the always-great First Mondays podcast, Dan Epps and Ian Samuel interview Lisa Blatt of Arnold & Porter Kaye Scholer (the interview begins at about the 33:30 mark). The interview is full of useful insights about appellate advocacy, particularly oral argument preparation. And it helped me wrap my mind around Blatt's 33-2 record in argued SCOTUS cases; she is brilliant and self-aware, and she has crafted an advocacy style and preparation process that play to her strengths.

 The coolest exchange in the interview is about a snippet in the Supreme Court's Guide for Counsel (pdf):

Know your client's business.... For an excellent example of a counsel who was intimately familiar with her client’s business, see the transcript of argument [pdf link] in United States v. Flores-Montano, 541 U. S. 149 (2004). The case dealt with the searching of vehicle gas tanks by customs agents at an international border. Government counsel had a total grasp of why and how the agents conducted the searches and provided convincing explanations to all questions posed by the Court.

The Guide nails it. In the interview, Blatt details how and why she acquired such expertise: she traveled to a U.S. Customs facility in Virginia to immerse herself in the nitty-gritty of border searches; she worked with agents as they took a gas tank apart; she learned reams of out-of-record information touching on the issues of drug trafficking and border searches; she does this to develop deep empathy with—and to better channel—her client. It's a great story.

And speaking of story: Blatt's command of the information lets her tell a full and convincing story to the Court. As the audio recording of the Flores-Montano oral argument makes clear, her well-packaged explanations of gas-tank searches and border crossings and "wonderful pieces of equipment" that let officers probe upholstery without leaving a mark do more than establish her credibility as a Knower of Many Obscure Things. They help vividly tell the legal story that matters in the case. The issue, after all, was whether customs officers must have reasonable suspicion to remove, disassemble, and search a vehicle's gas tank for contraband. In the all-things-considered Fourth Amendment stew, the details matter. The details linked to law persuade (and one detail made it into Justice Breyer's concurring opinion). And the whole package makes for a nifty object lesson in world-class advocacy. Listen if you can.

September 20, 2017 in Appellate Advocacy, Oral Argument | Permalink | Comments (0)

Tuesday, September 19, 2017

#TwitterTuesday--State Supremes

TwitterTuesdays

Last week I saw some big news on Facebook.  The Georgia Supreme Court is now on Twitter!  Most #appellatetwitter followers are familiar with the tweeting Georgia Court of Appeals Chief Judge Stephen Dillard (@JudgeDillard).  Now we get to hear from the high state court as well.  Follow @SupremeCourtGA for the latest news about the state supreme court. 

The Georgia Supreme Court is not the only state supreme court on Twitter.  You can follow the Texas Supreme Court at (@SupremeCourt_TX), the Florida Supreme Court at (@flcourts.org), and the Illinois Supreme Court at (@illinoiscourts).

Know another state high court on Twitter?  Feel free to share it below!

September 19, 2017 | Permalink | Comments (0)

Thursday, September 14, 2017

Learned Thursdays: Let go the idea that legal analysis involves neatly boxing information.

This post is from one of our new co-editors, Ruth Anne Robbins, Distinguished Clinical Professor of Law, Rutgers Law School.  Look for new co-editors in the upcoming weeks

For seventy-five years, with the release of Snow White and the Seven Dwarves, Disney began categorizing its female characters as “princesses,” “fairies,” or “evil queens.” The Disney Princess Collection as a marketing endeavor has become ubiquitous enough in our American consciousness, that you might already know that Disney schedules character “coronations” for those female characters in the marketing set. In contrast, the Evil Queen collection sports powerful women with destructive magical capabilities. Disney Princesses have no magical powers of their own. Disney held fast to these categories until 2013, when it broke its own mold in the movie, Frozen, by introducing a powerful queen with destructive magic powers—who was also a protagonist. Per the 2014 ABC News piece, The Story of Frozen, Making a Disney Animated Classic, Disney fretted for seventy years about the screenplay of the Snow Queen story: the villain is a queen who can freeze anything in her path. The “evil queen” formula was abandoned when the songwriters charged with Queen Elsa’s solo song engaged in Peter Elbow’s methodological believing: a queen with destructive magical powers, kept or forced into isolation, might simply be misunderstood and still good at heart. Breaking the rigidity of their own categories earned Disney a billion dollars in the year following the movie’s release.

The idea of legal categories is spotlighted in for-practitioner scholarship by Professor Lucy Jewel, a woman whose very name evokes another good-but-magical literary queen adapted for the screen by Disney. Professor Jewel discussed the negatives that can happen in lawyering when categories become rigid boxes. Old-School Rhetoric and New-School Cognitive Science: The Enduring Power of Logocentric Categories, 13 Legal Comm. & Rhetoric: JALWD 39 (2016). Legal categories tend to form based on a classical rhetoric view of information: everything has a place grounded upon its “essence,” and the “essence” fits into a bivalent, and mutually exclusive concept of organization. Membership in a category, according to Aristotle’s principles, is a bivalent and exclusive process; belonging members versus not belonging members. Aristotle believed that we think in what Jewel calls “neat boxes.”

In modern day, however, cognitive scientists have visually mapped out how we think, when we think categorically. Dr. Eleanor Rosch’s work from the 1970’s[1] allowed people like Professor David F. Chavkin to write another wonderful article for lawyers, Fuzzy Thinking: A Borrowed Paradigm for Crisper Lawyering, 4 Clinical L. Rev. 163 (Fall 1997). Members of a set are situated differently within a fuzzier boundary, with stronger members of the set situated in the center, and weaker members situated near the fuzzy boundaries. A robin is a central member of the set “birds,” whereas an ostrich is situated closer to the boundaries.

Jewel does not suggest that categorization is always problematic. The West Key Number system very effectively uses categories to organize legal materials for practitioners. But, she counsels, categories can also lead to injustice through distortions. Boxed legal categories do not help practitioners think through legal problem-solving because we do not actually think in those crisp terms. When lawyers understand the actual way, we process and organize information, new possibilities arise in problem-solving. Being willing to challenge the assumptions of crisp, neat boxes, permits a lawyer to adapt and manipulate the categories as well as the sense of membership hierarchy within a set. Rejecting rigid categorization makes for better client representation. Jewel’s article outlines specific ways lawyers may engage in that kind of unpacking.

The article is worthwhile reading for any practitioner, as is watching her TED-style talk produced by LegalED. The topic alone is interesting, but Jewel’s prominence also adds credibility. The article was recently selected as the inaugural recipient of the Legal Writing Institute’s Phelps Award, chosen out of more than a dozen nominations. In a category of strong scholarship, hers is the exemplar.

*Thank you to my guest research assistant, S.E. Robbins.

 

[1] Eleanor Rosch, Cognitive Reference Points, 7 Cognitive Psychol. 532 (1975).

September 14, 2017 | Permalink | Comments (0)

Monday, September 11, 2017

Guest Post: Dreamers or Illegal Aliens? Framing and Persuasion

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This is a guest post by UNLV Law Professor Linda Berger and Temple Law Professor Kathy Stanchi.

This week, Attorney General Jeff Sessions announced the end of Deferred Action for Childhood Arrivals (DACA). This announcement caused a public outcry, as well as a response from former President Obama, whose administration had spearheaded the program.

Sessions and Obama spoke of DACA in very different terms, no doubt trying to persuade those who were still undecided, but also trying to connect with those who already agreed with them. Their two short statements illustrate core principles of legal persuasion because their words created network of favorable connections in the minds (and hearts) of their audiences.

Sessions, for example, referred to the program as “DACA”, a flat, bureaucratic acronym. Is there anything drearier than an acronym? The word “DACA” sounds like something worth getting rid of – whatever it is. Moreover, using “DACA” allowed Sessions to characterize the program as borderline illegal -- “an open-ended circumvention of immigration laws” that allowed “800,000 mostly-adult illegal aliens” to remain in the U.S. In Sessions’ statement, it is easy to dismiss the DACA participants as “other” – as people breaking the law -- not like “us.”

Contrast “DACA” with the program’s popular name, the “Dreamers.” Whereas DACA sounds emotionally flat, “Dreamers” triggers one of the most evocative and compelling cultural stories we have, the American Dream. James Truslow Adams described the American Dream in the early 1930s as the idea that "life should be better and richer and fuller for everyone, with opportunity for each according to ability or achievement" regardless of social class or circumstances of birth.

Imagine how dissonant Sessions’ message would have been if he’d said the “Dreamers” were “mostly-adult illegal aliens.” Such a semantic and emotional flub might have damaged Sessions’ message even with those inclined to agree with him. No American wants to connect the “American Dream” with “illegal” behavior.

By contrast, Obama’s statement took the American Dream connection and ran with it. He called the Dreamers “young people who grew up in America -- kids who study in our schools, young adults who are starting careers, patriots who pledge allegiance to our flag.” Not “other” people but “kids” “Americans” and “patriots” just like “us” (or our kids). More than that, these young “Dreamers are Americans in their hearts, in their minds, in every single way but one: on paper.”

Like these political rhetoricians, lawyers and judges are effective in legal persuasion when they help their audiences make favorable connections. Those connections can be semantic (illegal versus patriot) or they can be emotional (we are all Dreamers). They can prime our biases (those people are illegal or my grandparents were immigrants). In the end, the way we talk about the “dreamers” provides a powerful example of persuasion -- of how to forge connections that allow us to influence others.

UNLV Law Professor Linda Berger and Temple Law Professor Kathy Stanchi are the authors of Legal Persuasion: A Rhetorical Approach to the Science (Routledge), a book that explores how legal persuasion results from making and breaking mental connections, using examples from law and politics.

September 11, 2017 in Current Affairs, Legal Writing, Rhetoric | Permalink | Comments (0)

Thursday, September 7, 2017

Judge Posner - A Very Memorable Jurist!

As Tessa wrote earlier this week, Judge Posner, a staple of the Seventh Circuit Court of Appeal, surprised more than a few folks when he announced his immediate retirement this week. 

The influential Chicago judge [is] known for his wit, no-nonsense writing style and his provocative commentary on law, politics and society—which he offered both on and off the bench. Unlike most federal judges, Posner gave interviews and rarely held back—even when the topic was the U.S. Supreme Court.

Judge Posner is 78, and plans to descend the bench by this Saturday. He was appointed by Ronald Reagan in 1981 and served as chief judge from 1993-2000.

I am proud to have promoted a pragmatic approach to judging during my time on the Court, and to have had the opportunity to apply my view that judicial opinions should be easy to understand and that judges should focus on the right and wrong in every case,” Posner said in a statement. He noted that he had written more than 3,300 opinions during this time on the bench.

He said he looks forward to teaching and publishing “with a particular focus on social justice reform.”

As a few notable jurists before him, Judge Posner stands out through his clear prose and frequently humorous writing. He was not a fan of the Bluebook - which depending on who you talk to could be seen as heresy within the profession:

“At the level of form, the first thing to do is burn all copies of the Bluebook, in its latest edition 560 pages of rubbish, a terrible time waster for law clerks employed by judges who insist as many do that the citations in their opinions conform to the Bluebook.”

Nor was he a fan of the class action lawsuit:

    “The realistic alternative to a class action is not 17 million individual suits, but zero individual suits, as only a lunatic or a fanatic sues for $30.”

Ostrich Lawyer

He made quite a stir with his ostrich opinion (the lawyer in the case didn't think it was very funny, or befitting of a legal opinion):

"The ostrich is a noble animal, but not a proper model for an appellate advocate," Posner wrote in a November 2011 ruling that featured an illustration of a man in a suit burying his head in the sand.

Judge Posner's blunt writing style might be held up against Justice Scalia's - not really for their similarity, but for their ability to make readers take notice. Judge Posner made waves when he criticized Scalia for seemingly undermining his staunch aversion to allowing legislative history to creep into his interpretation in Heller:

“[Antonin] Scalia is a pertinacious critic of the use of legislative history to illuminate statutory meaning; and one reason for his criticism is that a legislature is a hydra-headed body whose members may not share a common view of the interpretive issues likely to be engendered by a statute that they are considering enacting. But when he looks for the original meaning of eighteenth-century constitutional provisions—as he did in his opinion in District of Columbia v. Heller, holding that an ordinance forbidding people to own handguns even for the defense of their homes violated the Second Amendment—Scalia is doing legislative history.”

Judge Posner's humor, banter, and incisive writing will certainly be missed. Congratulations on to him on such a monumental career as a jurist and here's to many more years of being an influential force in the legal profession. 

September 7, 2017 in Federal Appeals Courts | Permalink | Comments (0)

Tuesday, September 5, 2017

#TwitterTuesday--Houston Strong

TwitterTuesdays

Last week my heart broke as I saw the flooding and devastation in Houston.  At the same time, however, I was heartened by how the Houston community and the country rallied around those in need.  Today's #TwitterTuesday features some #HoustonStrong appellate accounts to follow:

April Farris (@farris_april)--April is an appellate practitioner in Texas.  While she has lived and practiced in several parts of the state, she is currently in Houston.  She is very involved in the State Bar of Texas Appellate Section and was recently recognized by Thomson Reuters's Super Lawyers as a 2017 "Rising Star."

Raffi Melkonian (@RMFifthCircuit)--Raffi is an appellate practitioner in Houston with Wright & Close LLP, with a focus on the Fifth Circuit.  He is an avid member of #appellatetwitter.

Josh Blackman (@JoshMBlackman)--Josh teaches constitutional law at South Texas College of Law Houston.  He is an avid tweeter and blogger on the Supreme Court, and he is the creator of one of my favorite tools--Fantasy SCOTUS.

Finally, although not appellate law related, I wanted to give a #TwitterTuesday shout-out to Gallery Furniture (@GFToday) and Mattress Mack (@MattressMack). Jim "Mattress Mack" McIngvale is the founder of Gallery Furniture.  As flood water ravaged the city of Houston, he opened his two furniture warehouses to serve as shelters for those in need.  Thank you Mattress Mack for your generosity! 

September 5, 2017 | Permalink | Comments (0)

Monday, September 4, 2017

Judge Richard Posner Retiring from the Seventh Circuit

Friday afternoon I received startling news in the form of a Law360 email alerting me that Judge Richard Posner of the United States Court of Appeals for the Seventh Circuit, was retiring over the weekend.  According to the article:

U.S. Circuit Judge Richard A. Posner, one of the most prolific and influential legal thinkers of the past half-century, is retiring from the Seventh Circuit over the weekend, the court announced Friday.

Posner, 78, has served on the bench for three and a half decades, and said in a press release issued by Seventh Circuit that he will step down officially on Saturday. He said he looks forward to continuing to teach and publish, with a particular focus on social justice reform. He’s a senior lecturer at the University of Chicago School of Law.

Judge Posner has certainly been an influential, and at times controversial, jurist.  Just recently he was reversed by his own court.  In February 2016, Judge Posner sat by designation as a trial judge in a witness tampering case.  According to an ABA Journal article, the Seventh Circuit

reversed the witness tampering conviction because Posner refused to instruct jurors that prosecutors had to prove Edwards had “corruptly” attempted to persuade another person to interfere in a government investigation.

Posner had refused to include the word “corruptly” in his instruction, telling lawyers in a pretrial conference: “No one knows what ‘corruptly’ means. Then there’s a definition, a person acts corruptly if he or she acts with the purpose of wrongfully impeding the due administration of justice. Well, that doesn’t help. You don’t need ‘corruptly.’”

Defense counsel had protested that eliminating “corruptly” would lower the government’s burden of proof, but Posner disagreed. He said leaving out the word would not harm the defense, “unless you’re counting on obscurantism in leading [the jury] to acquit.”

The appeals court disagreed with Posner’s decision, calling “corruptly” proof an essential element of the witness tampering charge.

Despite the reversal, Judge Posner's policy of taking an occasional district court case is commendable. We wish Judge Posner a happy retirement and thank him for his years of service.

September 4, 2017 | Permalink | Comments (0)

Friday, September 1, 2017

Appellate Advocacy Blog Weekly Roundup September 1, 2017

 WeeklyRoundupGraphic

Each week, the Appellate Advocacy Blog Weekly Roundup 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).

Hurricane Harvey:

Obviously a large portion of the news this past week was consumed with Hurricane Harvey and its impacts.  Relevant specifically to the legal world, the Texas Supreme Court issued an emergency order allowing out-of-state lawyers to assist Hurricane victims in Texas.

Link:  

TX Supreme Court Order

Travel Ban in Appellate Court Again:

President Trump's Administration's travel ban was back in the appellate court again this week.  On Monday, the Ninth Circuit Court of Appeals heard arguments about how broadly the  ban can be implemented while awaiting Supreme Court review and decision on the ban.  A June order from the Supreme Court declared that the ban could not be enforced against people with a “bona fide relationship” with the United States, and a federal district court subsequently ruled that the Administration was interpreting the exemption too narrowly to exclude people whose relatives in the United States are grandparents or cousins.

Links:

Politico Article Concerning Arguments

How Appealing compilation of links about the arguments, their aftermath, predictions, etc.

Circuit Splits:

Jason Steed maintains a list on his blog keeping track of some of the issues for which there is currently a split among the federal circuit courts of appeal.  Jason Steed.

Link:

Circuit Splits

Employment Listings:

Looking for work in the appellate world?  Consider this posting from the New York Supreme Court, Appellate Division, Third Judicial District, for an Appellate Court Attorney:

Link:

Job Posting

Tips:

Practice tips this week are for judges!  Here's an article on lessons for judges who use social media:

Link:

Article on Social Media Use for Judges  (Hat Tip to Chief Judge Dillard)

                

September 1, 2017 | Permalink | Comments (0)

Tuesday, August 29, 2017

#TwitterTuesday--Women in the Law

TwitterTuesdays

A few weeks ago #appellatetwitter honored women who serve (and have served) as justices on the highest court of their state or on the U.S. Supreme Court.  Using the hashtag #WomenJusticeWeek and #WomenJusticeDay, #appellatetwitter filled the twitterverse with posts honoring these women.  That same week, the New York Times published an op-ed by Shira Scheindlin, a former federal district court judge in New York. Judge Scheindlin's op-ed discussed a report by the New York State Bar Association's commercial and  federal litigation section on women speaking in court.  The results were quite disappointing.  According to the op-ed:

The report found that women were the lead lawyers for private parties barely 20 percent of the time in New York State’s federal and state courts at the trial and appellate levels. Women were twice as likely to appear on behalf of public sector clients. The offices of the United States attorneys, district attorneys, the state attorney general and the corporation counsel of the City of New York, as well as Legal Aid offices and federal defenders, have achieved some level of gender equality in courtroom appearances.

So, for today's #TwitterTuesday, here are a few women who are adding gender diversity at the appellate level:

Kendyl Hanks (@HanksKendyl) is an appellate practitioner in Texas.  She is an active #appellatetwitter participant, and, according to her profile, is a "[d]evotee of dogs, grammar, & flyfishing."  She tweets on several issues, including diversity in the legal profession.

Kristine Ellison (@KEllsAppellate) litigates at the trial and appellate level in D.C.  She frequently tweets on court of appeals decisions of interest to the defense and business bar.

Ruthanne Deutsch (@RuthanneDeutsch) is an appellate practitioner in the D.C. area.  According to her firm's website, they are "committed to serving our clients with sharp analysis and clear writing."

Jaime Santos (@Jaime_ASantos) is also an appellate attorney in the D.C. area. She tweets on issues of diversity and on big appellate matters.  According to her profile she is also the mom of three girls under the age of 4, in addition to being an appellate attorney, and she is "not sure which role has had a greater impact on my oral advocacy/persuasive argument skills."

 

August 29, 2017 | Permalink | Comments (0)

Friday, August 25, 2017

Appellate Advocacy Blog Weekly Roundup August 25 2017

 WeeklyRoundupGraphic

After a brief summer hiatus, the Appellate Advocacy Blog Weekly Roundup returns and 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).

History:

This past week included an important date in the history of appellate practice.  August 24, 1965, was the date that Thurgood Marshall was sworn in as the first African-American to hold the office of Solicitor General.  Hat-tip to the Lyndon B. Johnson Presidential Library on Twitter (@LBJLibrary).

Practice Tips and Legal Writing:

We have featured #PracticeTuesdays from #AppellateTwitter on our Weekly Roundup on more than one prior occasion.  Well, over the summer the folks who run that discussion on Twitter every week decided to think a little bigger and started up the #PracticeTuesday Blog, because sometimes "140 characters just aren't enough.".  Check it out for all kinds of great discussions and pointers to improve your practice.  This week, the discussion on the blog focused on "paying your dues."  Sean Marotta noted that he is "a supporter of dues.  And here is why:  No matter how much raw talent you may have as a new lawyer, what you don't have is wisdom."  And "[d]ues are how lawyers provide value despite having only a very formal knowledge of the law."

Over at Suffolk University Law School's Legal Practice Skills Program blog, Legal Writing Matters, there was a post this week featuring some best practices for legal-writing classes, according to Wayne Schiess-- but those best practices can easily be applied to your writing in practice, too.

Lawyerist.com  featured an article this week by Jason Steed with tips for writing briefs for tablets.  More and more judges are reading briefs on tablets, and it's important to spend some time thinking about how to make your brief more readable on that electronic platform.

Justice Gorsuch at the Trump Hotel:

Justice Gorsuch is scheduled to appear next month at the Trump International Hotel to address a conservative group, The Fund for American Studies, in a luncheon.  That scheduled appearance has generated some debate.  

In a Washington Post article, Elizabeth Wydra of the Constitutional Accountability Center has argued that Gorsuch's appearance betrays statements during his confirmation hearing that he takes serious impartiality and the independence and integrity of the judiciary because the appearance could be taken to suggest that Gorsuch is appearing "to help a conservative organization put money into the pockets of the president who nominated him" and might suggest that Gorsuch has "prejudged these critical issues" regarding the several pending lawsuits asserting that President Trump is in violation of the Emoluments Clause.

In another Washington Post article, however, Jonathan Adler responded and has argued that Gorsuch's speech does not raise any serious ethical issues.  Adler noted that the sponsor of the event is not a party to any litigation likely to reach the court, and the actual event itself was not likely to be implicated in any litigation.  The mere location of the event, according to Adler, should not raise ethical concerns.

In a New York Times article, Adam Liptak wrote that the scheduled appearance received mixed opinions from experts in legal ethics, with some concluding that the appearance was problematic and others concluding that it was not.

See, also, Money & Politics Report Editor Ken Doyle on Bloomberg Radio discussing the topic on SoundCloud.

Education:

Civics education is vitally important.  If you are a teacher or have the opportunity to get involved in civics education of today's youth and tomorrow's members of adult society, you might want to take a look at some of the resources available on the official website of the United States Courts, USCourts.gov, which has all kinds of great materials to help spread the word about the U.S. Courts and how they impact our daily lives.

August 25, 2017 | Permalink | Comments (0)

Thursday, August 24, 2017

Will the U.S. Supreme Court soon be reviewing 167 courts-martial?

One hundred seventy-four service members have consolidated their appeals into 167 cases. They hope to have the U.S. Supreme Court review their cases, not for substantive error, but for an unusual procedural error. The legitimacy of some of the judges who heard these cases is being challenged. And even more unusual is that the challenge comes under a Civil War era law that has never been interpreted by the Court.

Some military JAG officer serve in the capacity as a judge on courts-martial. Four were also appointed to the Court of Military Commission Review (CMCR) - a commission that reviews Guantanamo Bay proceedings on their way to the D.C. Circuit. This is considered a civilian office. Where this runs afoul is that the 1870 statute prohibits military judges from concurrently holding a nonmilitary office unless the judge has specific permission to do so.

The 1870 statute, which the Supreme Court has never interpreted, prohibits active-duty military officers from concurrently holding a civil office, unless Congress expressly authorizes the dual office-holding. Congress enacted the law to ensure civilian control of the government. The remedy for dual office-holding was to sever immediately the military officer's service connection.

....

Military judges are executive branch inferior officers for purposes of the appointments clause. But because the CMCR—unlike military courts of criminal appeals—is not subject to supervision within the executive branch, its judges are principal officers who require appointment by the president, with the advice and consent of the Senate. And CMCR judges hold a "civil office" by virtue of its creation as an Article I federal court, the challengers allege.

A 1979 Justice Department Office of Legal Counsel memo on the dual office-holding statute concluded: “Where Congress wishes to permit a military officer to occupy a civilian position … without forfeiting his commission, it has done so explicitly.”

Most convicted service-members never have the opportunity for the U.S. Supreme Court to review their cases. The military justice system is maintained separate and apart from the civilian system, complete with its own court of last resort - the U.S. Court of Appeals for the Armed Forces. Each service has its own intermediate court of appeals for review of the trial level court-martial.

If the U.S. Supreme Court were to grant review on these cases, it would represent a unique circumstance even beyond the substantive necessity of reviewing a previously unremarkable, nearly 150 year old statute. The Court has not reviewed a court-martial in over twenty years.

With the concept of civilian control over the military becoming more prominent in political philosophy discussions, this issue may have a good chance of being granted review by the Court. 

August 24, 2017 in United States Supreme Court | Permalink | Comments (0)

Monday, August 21, 2017

Will the 9th Circuit be Split?

The issue of splitting the United States Court of Appeals for the Ninth Circuit into two or more judicial circuits is not a new one.  However, as Law360 recently pointed out, "proponents of a split may be gaining more traction this congressional term, with both houses of Congress controlled by the GOP, which has long been more open to dividing the court."   In fact, Arizona Senators John McCain and Jeff Flake have introduced the Judicial Administration and Improvement Act of 2017, which would split the 9th Circuit by creating a new 12th Circuit, consisting of Alaska, Arizona, Idaho, Montana, Nevada, and Washington.  President Trump, who has publicly criticized the circuit, would almost certainly sign a split bill if it passed Congress.

Should the circuit be split?  That is a tough question.  Complaint's about the circuit's reversal rate, en banc process, workload, and operating speed have been around for many years.  The Law360 article carefully looks at each of these concerns, outlining the arguments on each side.  I was especially impressed by the graphics in the article showing workload per judge and reversal rate.

As the article points out, judges on the court are mixed when it comes to splitting the circuit.  Over the years, several judges have chimed in on the controversy, either through written or oral testimony before Congress or in the news media.  A House subcommittee hearing in March 2017 on the topic featured testimony from 5 current Ninth Circuit judges.

I recently heard the a Senate Subcommittee will be holding a field hearing in Phoenix, Arizona, on splitting the circuit.  Here is the information I received:  "The Senate Committee on the Judiciary, Subcommittee on Privacy, Technology and the Law has scheduled a field hearing entitled: 'Rebooting the Ninth Circuit: Why Technology Cannot Solve Its Problems' for August 24, 2017 at 10:00 a.m. PDT, at the Sandra Day O’Connor United States Courthouse, Ceremonial Courtroom, 401 West Washington Street, Phoenix, Arizona 85003."

Interested parties should contact the subcommittee to confirm the hearing date, time, and location.

UPDATE:  There is now an announcement about the hearing on the Senate Judiciary Committee website.  It lists the starting time as 1:00 pm, but I suspect that is the time it starts on the east coast.  I suggest you call ahead if you are interested in attending.

 

August 21, 2017 | Permalink | Comments (0)

Tuesday, August 15, 2017

#TwitterTuesday--Legal Poetry

TwitterTuesdays

Sometimes Twitter can provide you with a great grammar or appellate advocacy tip.  Sometimes it can make you smile.  And sometimes it can do both.  For #TwitterTuesday this week we are following @RuleHaiku.  Rule Haiku converts the Federal Rules in to Haiku for, according to the account's profile, "no real reason."  Last week Rule Haiku featured the FRAP. So, if you need a smile, or a FRAP refresher, follow @RuleHaiku.

August 15, 2017 | Permalink | Comments (0)

Monday, August 14, 2017

Supreme Court to Require E-Filing

The Supreme Court recently announced that on November 13, 2017, its electronic filing system will be up and running. Thankfully, the Court’s program will not be part of the PACER system.  Rather, according to the National Journal, the Court’s main page will include a button for “Electronic Filing.” The filings will be “accessible without cost to the public and legal community.”

While this is a huge step forward for the Court, it will not, initially, eliminate the requirement that parties file paper copies.  According to the Court’s press release,

Initially the official filing of documents will continue to be on paper in all cases, but parties who are represented by counsel will also be required to submit electronic versions of documents through the electronic filing system. The filings will then be posted to the Court’s docket and made available to the public through the Court’s website. Filings from parties appearing pro se will not be submitted through the electronic filing system, but will be scanned by Court personnel and made available for public access on the electronic docket.

E-filing has been around for some time, and is mandatory in most, if not all, federal courts.  It is slowly taking over in the state courts too.  The National Center for State Courts provides information on the state of e-filing in the states, including links to the various court rules.

While e-filing certainly has its strengths, it doesn’t mean that one can procrastinate to file a brief until minutes before it is due.  Be sure to understand the requirements for e-filing in your jurisdiction, including any size limitations and the amount of time it takes to get a login.

August 14, 2017 in Appellate Practice, United States Supreme Court, Web/Tech | Permalink | Comments (0)

Tuesday, August 8, 2017

#TwitterTuesday--Law School Legal Writing Departments

TwitterTuesdays

When it comes to appellate writing, you can find some great tips from some of the nation's leading legal writing scholars by following the Twitter accounts of law school legal writing departments.  Here are a few accounts to follow:

University of Arizona College of Law (@UALawLeglWritng)--Arizona Law is starting the year strong with several new faces in their legal writing department (in the interest of full disclosure, I am one of the new faces).  The UA Law Legal Writing program tweets about legal research and writing tips, as well as things NOT to do (like try to fudge the rules).

University of Virginia Law Writing (@UVALawWriting)--Follow UVA Law Writing for information on their program and writing and oral argument tips.

For those wanting an international focus, follow Maties Legal Writing (@StelliesLaw), which is the twitter account for Stellenbosch University, Western Cape, South Africa.  The law faculty at Stellenbosch provides great tips on legal writing and other topics.

August 8, 2017 | Permalink | Comments (0)

Monday, August 7, 2017

Making a Murderer Dassey Case Headed to En Banc 7th Circuit

Somehow I missed this news last week, but the Seventh Circuit has announced that it will rehear, en banc, the case Dassey v. Dittman.  If you watched the Netflix documentary "Making a Murder," you were probably shocked by Brendan Dassey's conviction, which certainly appeared coerced.  

A split panel of the Seventh Circuit had upheld the district court's decision overturning Dassey's conviction.  Now the whole Seventh Circuit will have a chance to opine.  Eugene Volokh's post has some statistical information about the Seventh Circuit, including the number of judges appointed by Republican and Democratic presidents and the gender make-up of the court. Based on the actions of the panel, Prof. Volokh doesn't think that the typical stereotypes apply to this case. This is certainly a case that will attract significant media attention, so it will be interesting to see how it comes out on appeal.

August 7, 2017 in Appellate Advocacy, Current Affairs, Federal Appeals Courts, Film | Permalink | Comments (0)