Thursday, May 7, 2015
Of interest on the topic of writing...
First, Bryan Garner has a column on the ABA Online, "First impressions endure, even in brief writing." In it, Garner makes use of social science research and the work of Nobel laureate Daniel Kahneman to support three basic principles regarding good (legal) writing: "(1) little errors in a brief betoken bigger mistakes, (2) less is more, and (3) good briefs demand little physical or mental effort from the reader." While the advice isn't novel, the use of psychology and economic principles to support these ideas may be compelling to some readers.
Second, in a similar vein, "10 top writing tips and the psychology behind them," offers ten discrete pieces of writing advice and discusses why it matters, why we often fail to heed the advice, and how to fix our processes to follow that advice more consistency. The advice is mostly applicable to legal writing and the format, which tries to pull back the curtain on why we make the errors we do, is especially helpful.
Third, some amazing filings: dismissal of a complaint filed in D. Nebraska against "Homosexuals" and a filed in N.D. Georgia, a "Notice to F*ck this Court and Everything It Stands For."
Friday, March 20, 2015
Congratulations to Savannah Law School Professor Caprice Roberts who was recently cited by Justice Thomas in his dissent in Kansas v. Nebraska, 135 S. Ct. 1042 (2015). The case involved a dispute between the states of Nebraska and Kansas over the apportionment of river water. In his dissent, Justice Thomas disagrees with the majority’s reliance on Restatement (Third) of Restitution §39 (2010). This section “proposes awarding disgorgement when a party’s profits from its breach are greater than the loss to the other party.” Kansas, 135 S. Ct. at 1068 (J. Thomas, dissenting). Thomas asserts that the Court has never relied on Section 39 because the theory of disgorgement is not supported in law. His analysis relies on Professor Roberts’s description of Section 39 as a “’novel extension’ of restitution principles that ‘will alter the doctrinal landscape of contract law.’” Id. at 1068-69(quoting Roberts, Restitutionary Disgorgement for Opportunistic Breach of Contract and Mitigation of Damages, 42 Loyola (LA) L. Rev. 131, 134 (2008)). According to Justice Thomas, the majority’s decision has in fact altered the doctrinal landscape of contract law.
Tuesday, February 3, 2015
Just a real quick tip that in yesterday's NY Times online, Adam Liptak penned a piece about the practice of the federal courts issuing unpublished decisions and what their effect is. In the piece, Liptak quotes the Appellate Advocacy Blog's own David Cleveland on the subject, a subject David has written extensively about. The piece touches on the recent Supreme Court opinion that David wrote about last week.
The link for Liptak's article: http://www.nytimes.com/2015/02/03/us/justice-clarence-thomas-court-decisions-that-set-no-precedent.html?_r=0
The Nebraska Supreme Court recently issued an opinion concerning the Keystone XL oil pipeline proposed in 2008 by TransCanada Keystone Pipeline, L.P., to carry crude oil products from Canada to the Texas coastline. The opinion is not interesting because of any actual resolution of the highly charged political questions surrounding the pipeline. Rather, the opinion, found at https://supremecourt.nebraska.gov/sites/supremecourt.ne.gov/files/sc/opinions/s14-158.pdf, is interesting because of the highly unusual interplay between jurisdictional standing requirements and constitutional limitations on the authority of the Court to declare legislative action unconstitutional.
Background of the Lawsuit:
TransCanada's original proposal called for the pipeline to pass through Nebraska's Sandhills, which raised concerns about potential environmental damage. At least partly in response to those concerns, Nebraska's Governor in 2011 called a special session of the Nebraska Legislature to discuss enacting siting legislation to specify standards to govern eminent domain power for oil pipelines. The Nebraska Legislature responded in the special session by enacting legislative bills that amended existing Nebraska law regarding approval of proposed pipeline routes crossing Nebraska.
Without detailing all of the legislative procedural history, it suffices to note that the Nebraska Legislature eventually passed a legislative bill that allowed a pipeline carrier to seek approval of a proposed pipeline route from the Governor or to comply with other legislative provisions requiring approval through the Nebraska Public Service Commission. The legislation also included provisions appropriating funds from the state's general fund to the Nebraska Department of Environmental Quality to carry out various duties related to the approval process.
TransCanada eventually submitted for approval a proposed route for the pipeline that would have avoided the Nebraska Sandhills. TransCanada submitted its request through the Nebraska Department of Environmental Quality and sought approval from the Nebraska Governor, rather than through the Nebraska Public Service Commission. In January 2013, the Nebraska Governor approved the proposed route.
In March 2013, a group of Nebraska landowners filed an operative complaint seeking a declaratory judgment that the legislative bill allowing the Governor, rather than the Nebraska Public Service Commission, to approve a proposed pipeline route was unconstitutional. The taxpayers alleged that the bill violated equal protection, due process, and separation of powers provisions of the Nebraska Constitution; unlawfully delegated to the Nebraska Governor powers exclusively belonging to the Nebraska Public Service Commission and/or to the Nebraska Legislature; and unlawfully allocated taxpayer money to implement unconstitutional laws. In response, the State alleged in part that the taxpayers lacked standing to bring the action.
The trial court concluded that the taxpayers bringing the action had failed to demonstrate that their property was located in the path of the proposed pipeline and that, accordingly, they had failed to establish traditional standing to bring the lawsuit. The court concluded, however, that they had established taxpayer standing and that the challenged legislation was unconstitutional. The State appealed the ruling to the Nebraska Supreme Court.
Nebraska Supreme Court's Decision:
The Nebraska Supreme Court's decision in this case did not ultimately resolve the question of whether the underlying legislative bill was constitutional. Rather, the Supreme Court's decision ended up turning on the result of an unusual interplay between state law requirements concerning the Supreme Court's ability to rule legislative action unconstitutional and determinations of standing. In essence, the Court was split on the matter of whether the taxpayers had standing to challenge the legislative bill's constitutionality and, although a majority of the court ruled that there was standing, the majority was not sufficient in number to rule on the constitutionality of the legislation. As a result, because a minority of the Court concluded that there was a lack of standing and refused to consider the constitutionality of the legislation, the Court was unable to issue a ruling one way or the other on the matter.
The first issue that the Nebraska Supreme Court had to resolve was the specific challenge to the taxpayers' standing to bring the suit in the first place. On that issue, a majority of the court concluded that the taxpayers had standing; a minority of three justices disagreed.
The second issue, then, to be addressed was the challenge to the constitutionality of the legislation. It is at that point that the Nebraska Supreme Court's opinion takes some unusual and interesting twists and turns.
Nebraska Constitution article V, section 2, provides in relevant part that "[a] majority of the members [of the Nebraska Supreme Court] sitting shall have authority to pronounce a decision except in cases involving the constitutionality of an act of the Legislature" and that "[n]o legislative act shall be held unconstitutional except by the concurrence of five judges."
The three justices who concluded that the taxpayers lacked standing concluded that their decision with respect to the standing issue prevented them from expressing an opinion, one way or the other, on the constitutionality claim. Their reading of the Nebraska Constitutional provision noted above was that it required at least five members of the Court to (1) conclude that the Court had jurisdiction to hear the case (including that the parties had standing to bring the case) and (2) determine on the merits that the legislative action is unconstitutional.
The four judges and justices who concluded that the taxpayers had standing concluded that the justices who disagreed were "out-voted" on the jurisdictional question of standing and could, as a result, express an opinion on the underlying substantive issue of the constitutionality of the legislation. The majority's reading of the Nebraska Constitutional provision noted above was that it required a supermajority only on the actual issue of constitutionality, not on the preceding issue of jurisdiction.
The unusual result is that, in this case, four members of the Court believed that the Court had jurisdiction to act and expressed an opinion that the underlying legislation was unconstitutional. The remaining three members did not suggest that the legislation was constitutional, but, rather, refused to express an opinion at all, believing that a supermajority was required to even have jurisdiction to consider the merits of the constitutional challenge. So, at the end of the day, three members of the Court concluding that there was a want of jurisdiction were able to preclude any substantive ruling on the merits of the action.
Monday, November 24, 2014
Check out this post on Strategically Withholding Dissent which examines Justice Sotomayor’s decision to forcefully dissent in Fisher v. Texas. Some say timing is everything, and in the law that statement is more often true than not. Historically, we can see how attorneys have strategically filed appeals throughout history, particularly in the context of the civil rights movement. Consider, for example, Plessy v. Ferguson, Brown v. Board, Gideon v. Wainwright, and Loving v. Virginia, to name just a few. We can also see how the justices use the dissent and concurring opinions strategically to advance certain agendas, sway votes, or undermine the legal arguments of the majority. But the notion of strategically withholding dissent entirely is a curious one that requires analysis of the real impact of a dissent. In this blog post, the author concludes that Sotomayor’s dissent influenced the Court in such a way that it necessarily avoided ruling on the merits of Fisher back in 2013. The question now becomes what difference, if any, does a couple of years make? Maybe the Court will rule in exactly the same way it would have back in 2013 had it not been for Sotomayor’s dissent. Perhaps Sotomayor just bought some time since, without her dissent, the Court would likely have rendered a merits decision back in 2013. In which case, it may be that Justice Sotomayor accomplished the very purpose intended, and the only purpose that could have been—to delay an inevitable merits decision in Fisher. I guess only time will tell…
Thursday, November 6, 2014
Today the Sixth Circuit issued its decision in DeBoer v. Snyder and created the circuit split that the Supreme Court has presumably been waiting for. In a carefully reasoned opinion, the Sixth Circuit narrowly interpreted precedent and the most recent line of Supreme Court decisions on marriage and sexual relations. Early in its opinion the Court stated, “What we have authority to decide . . . is a legal question: Does the Fourteenth Amendment to the United States Constitution prohibit a State from defining marriage as a relationship between one man and one woman?” On this question, the Court ruled in favor of the State.
In the opinion, the Sixth Circuit walks through the role of the intermediate appellate courts and the requirement to defer to U.S. Supreme Court precedent. Looking to Baker v. Nelson, 409 U.S. 810 (1972), the court reasoned that it had not been overruled either explicitly or implicitly by United States v. Windsor, 133 S. Ct. 2675 (2013). In fact, it determined that Windsor was not a case about the right to marry, but rather a case about the right to enjoy a privilege granted by a state. The court went as far as to reconcile the two cases stating that “Windsor invalidated a federal law that refused to respect state laws permitting gay marriage, while Baker upheld the right of the people of a State to define marriage as they see it.” In support of its decision, the Court also relied on originalism and rational basis review.
Boiled down, the Sixth Circuit basically views the question as one that ought to be decided through the state democratic processes rather than through the courts. These three lines sum it up best: “History is replete with examples of love, sex, and marriage tainted by hypocrisy. Without it, half of the world’s literature, and three-quarters of its woe, would disappear. Throughout, we have never leveraged these inconsistencies about deeply personal, sometimes existential, views of marriage into a ground for constitutionalizing the field. Instead, we have allowed state democratic forces to fix the problems as they emerge and as evolving community mores show they should be fixed.”
Monday, October 20, 2014
For those of you working on developing an appellate brief problem for this academic year, take a look at City of Los Angeles v. Patel. The U.S. Supreme Court just granted the petition for writ of certiorari today, and it has the trappings of a good problem for two reasons. First, the two issues, one jurisdictional and the other substantive, are well-separated. Second, it involves an intriguing question about Fourth Amendment protection of hotel guest registries. I could see a fun and interesting pop-culture problem developing out of these issues.
When creating good appellate brief problems, it can sometimes be difficult to manage the ripeness factor. You want to choose a current issue, but not one that will necessarily be resolved before your students complete the assignment. You also want to be careful about creating a problem where your students will have easy access to professionally-written briefs. These potential pitfalls can easily be avoided, though, by creative fact development.
When creating a problem from a recent cert. grant, the first step is to outline the issue(s) you want to use. Next, you should identify how the split(s) have come down. Once you have broken apart the pending case, you have a good framework for rebuilding a problem that has sufficient legal similarities without too much factual similarity. The students can then find many relevant legal sources for solving the problem, but they won't be able to just pull legal arguments out of professionally-written briefs because the facts will be too nuanced for the legal analysis to hold up verbatim in the simulated setting. Additionally, when the facts are sufficiently distinct from the original problem, the issue you have created may still be ripe or resolvable even if the Supreme Court rules on the actual case before the end of the semester.
Though problem-creation can seem like an intimidating challenge, it is a highly rewarding aspect of our work as law professors. Have fun as you create a packet that will be enjoyable and interesting for both you and the students. Be inspired.
Tuesday, September 30, 2014
The Washington Post has reported that yesterday five of the U.S. Supreme Court Justices agreed to enter an Order granting the State of Ohio’s Application for Stay and Request for Preliminary Injunction to stop enforcement of a court order preventing implementation of Ohio’s plan to reduce early voting. Earlier this year, the State of Ohio’s legislature enacted a plan to reduce the number of early voting days from 35 to 28. Opponents of the law argue that the reduced number of early voting days will discourage voter turn-out. This matter came before U.S. District Court Judge Peter C. Economous earlier this month. He ruled against the State reasoning that the poor and persons of color are disproportionately negatively impacted by the reduction in early voting days because these populations tend to vote early and in-person more often than white voters. Justices Ginsburg, Breyer, Sotomayor, and Kagan would have denied the application for stay.
Sunday, September 28, 2014
Brown Bettman on Ohio v. Quarterman on Failure to Preserve Constitutional Issues for Appellate Review
The Ohio Supreme Court issued an opinion last week in State v. Quarterman regarding the failure to preserve constitutional issued for appellate review. Marianna Brown Bettman (University of Cinncinnati) has this post detailing the decision on Legally Speaking Ohio. She does an excellent explication of the case: describing the details of the case, the arguments at both levels of appellate review, and the Ohio Supreme Court's decision.
The case involved serious issues regarding Ohio's mandatory bind-over statutes for juveniles - statutes that allegedly conflict with growing state and U.S. practice regarding the treatment of juveniles. That the Ohio Supreme Court rejected the appeal on procedural grounds should warn trial and appellate advocates about the importance of preserving issues on appeal and raising issues (such as alleging plain error) early and clearly.
Brown Bettman's post provides a valuable and detailed discussion of the case with several useful citations and links. It's worth a read by appellate advocates.
Friday, September 19, 2014
This week my first year students are learning the basics of legal research, and I asked our librarians to present a session on free/economical electronic legal research tools as part of the training. I always love hearing from the librarians because they are familiar with the latest and greatest, and I always learn something new. This year was no different, I am happy to report. The librarians introduced us to Ravel, an online search engine that provides graphical histories of cases.
For appellate attorneys, this resource is particularly helpful in quickly identifying the key cases related to a given legal question. The graphical interface is much more user-friendly as compared to the linear lists provided through most other commercial database providers. Ravel also includes at least four filters so that practitioners can sort information in a way that is most pertinent and useful to a particular project.
Here are some of the pros:
- Demonstrates a case’s historical relevance at a glance
- Free for all federal cases
- User-friendly interface
- Hyperlinks to full-text of cases
- Places footnotes beside the relevant text for easy on-screen reference
This database is a good supplement to other research engines because it saves an attorney significant time when wading through precedent and subsequent history to find the most important cases. There are other packages of state case materials available for a subscription fee. As of now, Ravel does not include citators or statutory or secondary sources, so it is not currently comprehensive enough to replace other commercial databases. They are constantly adding new materials and indexing systems, though, so it is definitely a resource to keep your eye on.
Wednesday, September 17, 2014
This is the kind of basic advocacy blunder that is hard to believe, but it's being reported that BP's counsel fiddled with the formatting to file an over-length brief without permission.While this happened in federal district court, it's a fundamental advocacy issue worth reporting here. In a filing related to the Deepwater Horizon oil rig spill in 2010, BP's counsel tried to slip one past Eastern District of Louisiana Judge Carl Barbier. He was not fooled or amused.
After noting that it had already allowed BP to file a brief ten pages longer than the usual twenty-five-page limit, the Court explained:
"BP’s counsel filed a brief that, at first blush, appeared just within the 35-page limit. A closer study reveals that BP’s counsel abused the page limit by reducing the line spacing to slightly less than double-spaced. As a result, BP exceeded the (already enlarged) page limit by roughly 6 pages. The Court should not have to waste its time policing such simple rules—particularly in a case as massive and complex as this. Counsel are expected to follow the Court’s orders both in letter and in spirit. The Court should not have to resort to imposing character limits, etc., to ensure compliance. Counsel’s tactic would not be appropriate for a college term paper. It certainly is not appropriate here. Any future briefs using similar tactics will be struck."
Judge Barbier was far more generous than I would have been. Still, even without a harsh penalty, this will make good material for my appellate advcocacy class lesson on ethos in a few weeks. For a company that wants to be viewed as one that follows the rules and cares about details, this kind of angle-shooting by its counsel seems counter-productive.
A former clerk for Judge Barbier, Alabama Law Professor Montré Carodine, reads between the lines to suggest: "The subtext seems to be Judge Barbier saying, 'Look, every time I give you an inch you take a mile, and I'm tired of it,'" (as quoted in the NPR piece on the matter). I'm not sure what evidence exists to show repeated offenses, but fiddling with the formatting after being allowed to increase your brief by 40% does seem to be the kind of presumptious greed Carodine's idiom suggests.
I wonder how often this occurs. Does it slip past judges with any frequency? Is there any creditable explanation for changing the formating? Any one want to defend the practice?
Hat tip to reader Maryanne Heidemann
Friday, September 12, 2014
Professor Joel Schumm noted on The Indiana Law Blog that the Indiana Supreme Court recently rejected a proposal to permit citation of memorandum decisions for as "persuasive precedent." The Indiana high court rejected even this compromise position without a single dissenting vote, making this the official Indiana position for the foreseeable future.
The proposal, which had the support of three sections of the Indiana Bar, is consistent with the modern trend of allowing citations of all court opinions. For example, Federal Rule of Appellate Procedure 32.1 permits citation of all opinions issued after its passage. By rejecting the proposal, the Indiana Supreme Court continues to support "a rule that defies the modern reality of 'memorandum decisions' being easily accessible." I would add that it defies the historical reality: denying precedential value to some of a court's decisions flies in the face of the common law system. It also denies the practical reality that both judges and lawyers recognize the value of all decisions and will find ways to cite them regardless of the written rules. The federal appellate system's experience with a citation bar should be Exhibit A.
Joel Schumm's blog post offers Indiana lawyers some creative ideas for how to deal with the restriction. I find all of them to be fair game, but then, I question whether any U.S. court has the authority to: 1) bar citation of its own opinions or 2) strip a decision of precedential value at the time of its issuance. Such actions seem to run afoul of various constitutional provisions and the fundamental nature of judicial power.
The late Judge Richard S. Arnold predicted that the federal rule against citation was doomed to fail. He recognized, long before others did, that judicial decisions were the very stuff of our system of justice. There is no substitute for them, and they are the kind of information that even a gag rule cannot fully suppress. He was right. In the federal system, unpublished opinions were routinely cited by both advocates and courts, and ultimately, the citation ban was abolished as untenable and undesirable.
One can hope that Indiana's Supreme Court will come to a similar conclusion the next time it confronts the issue. For now, however, Indiana appellate advocates will have to contend with Appellate Rule 65. I predict that Indiana appellate decisions marked "not for publication" will continue to be cited by advocates and judges alike, and the more that courts decide to sanction lawyers for violation of Appellate Rule 65, the louder opposition to the rule will grow.
Saturday, September 6, 2014
Appellate practitioners know the more common exhaustion and abstention doctrines, such as exhaustion of administrative remedies. Few are aware, however, that similar concepts operate between federal and tribal courts and even between state and tribal courts, and that they can arise out of comity, court rule, or other sources, depending on the jurisdiction. Ignorance of those concepts can sometimes lead to inadvertent or even open disregard for tribal judicial systems.
Turtle talk reports this week on a current example from the Tenth Circuit, which deferred to the Muskogee Tribal Court when litigants in an election dispute tried to jump ship to federal court. See the post regarding Thlopthlocco Tribal Town v. Stidham on Turtle Talk.
Thursday, September 4, 2014
Just nine days after hearing argument, the Seventh Circuit has issued its opinion in Baskin v. Bogan. Unsurprisingly, the court affirmed the district court judgments “invalidating and enjoining . . . prohibitions of same-sex marriage.” In the 40-page opinion, Judge Posner took time to address the ineffectiveness of the arguments advanced by the petitioners. He wrote, “the only rationale that the states put forth with any conviction—that same-sex couples and their children don’t need marriage because same-sex couples can’t produce children, intended or unintended—is so full of holes that it cannot be taken seriously.” (emphasis in original). Even though the states had significant legal precedent on their side, at the time of the oral arguments it did not seem like the Seventh Circuit was likely to be persuaded by any of those arguments. This opinion is final confirmation.
The opinion is lengthy but well-written and soundly reasoned. I’d like to highlight just a few characteristics. First, it is an excellent example of issue-framing to achieve a desired result. Rather than getting too bogged down in the minutiae of rational basis, Judge Posner effortlessly frames the question in such a way as to mandate a higher level of scrutiny. Specifically, he reasons that “more than a reasonable basis is required because this is a case in which the challenged discrimination is . . . ‘along suspect lines.’” Second, Judge Posner ably relies on scientific (non-law) data to support his conclusions. He even relates that data, through the “kin selection hypothesis” (or “helper in the nest theory”), to evolution by arguing that “[a]lthough it seems paradoxical to suggest that homosexuality could have a genetic origin, given that homosexual sex is non-procreative, homosexuality may, like menopause, by reducing procreation by some members of society free them to provide child-caring assistance to their procreative relatives, thus increasing the survival and hence procreative prospects of these relatives.” Finally, Judge Posner makes effective use of tabulation to smoothly advance the argument and signpost the logical connections of his reasoning. It’s a fantastic exemplar of writing that simplifies complex legal arguments in a sophisticated and accessible way. Definitely a fascinating and worthwhile read.
Wednesday, September 3, 2014
There is an interesting post today at Legal Research & Writing Pro Blog about how judges read appellate materials in the ever-expanding age of electronic resources. As the post notes, as federal courts and an increasing number of state courts have moved to electronic filing, judges have also moved toward reading materials, including briefs, on electronic devices such as laptops and iPads.
The post notes that changes in how judges are reading briefs -- from paper to electronic -- comes with a potential for real differences in impact. There are studies suggesting that readers tend to skim electronic materials more than they do paper materials, but also that active engagement with the electronic material can substantially improve comprehension.
As the post suggests, there are also some potential new advantages to the prevalence of electronic resources in appellate practice. Citations can be hyperlinked to research sources so that judges can quickly and effectively jump right to the authority; similarly, annotations to the appellate record can be hyperlinked to the relevant part of the record in jurisdictions that have invested in the necessary software. An April post on Cite Blog included thoughts about those kinds of hyperlinks.
A couple of years ago I presented at a symposium at Washburn Law School where there was a presentation from an attorney who did a great deal of practice in various federal courts across the country. He talked about embedding digital information in briefs, including hyperlinks to video excerpts from video depositions, hyperlinks to exhibits, etc., in addition to the more conventional hyperlinks that could appear to authorities. It certainly seems that the continuing development of digital practice would point to a future with vast opportunity to connect the appellate materials in profound ways.
For some additional thoughts, see a post from back in January over at Volokh Conspiracy, with additional discussion in the comments.
Thoughts? Is the increased use of digital resources by courts impacting the way you present arguments in your appellate briefs? Have you seen this as a good development, or one with significant pitfalls? And is legal education keeping up with these kinds of trends? Share your thoughts in the comments!
September 3, 2014 in Appellate Advocacy, Appellate Practice, Appellate Procedure, Federal Appeals Courts, Law School, Legal Profession, Legal Writing, State Appeals Courts, Web/Tech | Permalink | Comments (1)
Wednesday, August 27, 2014
Yesterday the 7th Circuit heard argument in Baskin v. Bogan, a case involving Indiana’s same-sex marriage ban. These arguments provide some noteworthy lessons in decorum. Appellant’s counsel began his argument by articulating a precise roadmap in simple, comprehensible terms. He was barely able to finish the first sentence of his first point, however, before being interrupted by one of the judges. Certainly interruptions are to be expected during oral arguments. This interruption, however, initiated a parade of horribles so grand that it left appellant looking like a monster. Throughout the argument, appellant’s counsel struggled to finish a single response before getting pounced with additional questions. When he attempted to advance his own argument in response to a question, he was immediately admonished to answer the question. At one point, another judge even explicitly said the court had no intention of allowing him to advance his own argument. Curiously, the court was not interested in the rich logos arguments appellant was attempting to advance. The judges wanted to know about the pathos arguments like the psychological impact on the children of same-sex couples and the various sociological, anthropological, and psychological literature available on the issue.
Appellant’s counsel professionally withstood the barrage of questions, although his frustration at times was evident in his voice. Toward the end of the argument, though, he became much more adamant in his disagreement with the court’s hypotheticals. His frustration showed both in his word choice and tone of voice. By comparison, both attorneys for the appellee came across much more composed. Granted, the court appeared to favor that side, so their argument was more readily received. The moral of the story is that attorneys should be prepared to frame logos arguments in pathos terms when the logical argument leads to a necessary result the court is reluctant to adopt.
Sunday, August 24, 2014
As Mauro pointed out, what makes this particular amicus brief potentially noteworthy is not any particular argument it advances on behalf of either party in the case, nor is it the underlying issues of the case itself. What makes this particular amicus brief potentially noteworthy is that it may be the first amicus brief ever submitted to the Supreme Court by a law firm on behalf of no client and in support of neither side. Instead, Goldstein authored and submitted the brief to test the waters concerning the utility of the bar providing assistance to the Court in unconventional ways, rather than simply as an advocate for a particular party or outcome in the case.
The case, M&G Polymers USA v. Tackett, involves health-care coverage for retirees and whether such coverage continues indefinitely when the underlying collective bargaining agreement governing the benefits is silent on the issue. In his amicus brief, Goldstein sought to provide the Court with data that he believed might not be presented by the parties or more traditional amici, including the results of a survey he conducted of collective bargaining agreements and different provisions reviewed by lower courts in similar cases.
Mauro quoted Goldstein as stating that "he didn't 'attempt to give the court any advice at all. It's just a bunch of data. I don't care who wins this case.'" Goldstein indicated that he felt the data he was providing might not be fully presented by the parties or more traditional amici with an interest in having the Court resolve the case one way or the other, but the data could be very useful to the Court in providing a workable rule.
Amicus Curiae is Latin for "friend of the court." The term has come to reflect briefs filed by a person or group who is not a party to the lawsuit, but has a strong interest in the resolution of the controversy presented by the case. As Goldstein noted in Mauro's article, however, sometimes amici are not truly acting as a friend of the court and, instead, "[t]hey have an ax to grind, a dog in the fight." Goldstein highlighted the uniqueness of his amicus brief in this case in the brief's opening paragraph, where he called it a "rare true 'amicus' brief" that was submitted "with no agenda or desire to direct the outcome of the case."
This caught my eye this weekend as I was preparing to teach a new batch of 2L students about appellate practice and advocacy at Creighton School of Law. In my view, to be a successful appellate advocate it is crucial to always keep in mind that your primary goal is to help the court find a way to rule in favor of your client. That overarching focus underlies the importance of thorough research, of thoughtful organization, of painstaking editing, and, really, all aspects of presenting the appellate brief and argument. If you can present the court with a well-thought "map" of exactly how the court could rule in your favor and explain its reasoning in a subsequent opinion, supported by authority and sound analysis, you are in a far better position than if you are simply urging an outcome that the court might find worthwhile but difficult or impossible to support in an opinion.
Amicus briefs can often serve those same purposes and assist the court. As Goldstein noted, however, most amicus briefs may be submitted as "friends of the court" and provide assistance, but ultimately are assisting the court to rule a particular way. What makes this brief by Goldstein unusual is that it may truly provide meaningful assistance to the Court in a broader sense and without an eye to helping either side succeed.
It will be worth watching to see how the Court treats this kind of brief and, then, watching to see whether anyone else jumps on the bandwagon to author similar briefs in the future. As Mauro's article noted, there may not be a clammoring of already busy attorneys to sit down and author briefs just to help the Court and not to further the interests of an actual client.
Goldstein's Amicus Brief in M&G Polymers USA, LLC v. Tackett. Hat Tip to Howard Bashman at How Appealing who reported the Mauro article last week. Tony Mauro's National Law Journal article, also available via Google News.
August 24, 2014 in Appellate Advocacy, Appellate Practice, Appellate Procedure, Current Affairs, Federal Appeals Courts, Law School, Legal Profession, Legal Writing, United States Supreme Court | Permalink | Comments (0)
Thursday, August 21, 2014
Howard Bashman has a new post on How Appealing examining the new proposal to reduce the word limit for principal briefs in the U.S. Courts of Appeals. The proposal is to reduce the current 14,000 word limit to 12,500. Allegedly, the current 14,000 word limit was based on a misunderstanding about how many words fit on a printed page.
Is this a beneficial reduction that will promote concision and clarity? Or another limitation on the role of advocacy before the courts of appeals?
The preliminary draft of proposed changes and call for comments is available here, and Howard invites comments, pro or con, through his site. This seems to me to be yet another procedural reform that streamlines, and arguably reduces, appellate advocacy and judicial consideration. I welcome your thoughts on the issue as I consider whether to comment.
Friday, August 1, 2014
Helen A. Anderson at University of Washington Law has a new article on SSRN: Frenemies of the Court: The Many Faces of Amicus Curiae. Given the rise in the number of amicus briefs, the phenomenon seems ripe for closer scrutiny. Anderson does just that by breaking up the singular concept of an amicus curiae brief into types that can be examined separately.
Amicus curiae occupy a unique place in the courts: non-parties who are nevertheless advocates, who are not bound by rules of standing and justiciability, and who can present the court with new information and arguments. Amicus participation has increased dramatically in recent years, and threatens to alter the adversarial process. Yet scholars and courts treat amicus curiae as a single category, not fully recognizing that this friendly term actually covers several very different types, ranging from court appointed advocates of a particular position, to friends of a party (sometimes paid by the party), to persons or groups who just missed qualifying as interveners.
To understand the reality of amicus practice, this article develops a taxonomy of amicus based on the relationship to the court and the parties. The article supports this taxonomy with a look at the history of amicus, and a survey of the rules and judicial attitudes in different jurisdictions. I also explore the persistence of a myth that amicus should be “disinterested,” a myth that has led to confused reasoning about the proper role of amicus.
The modern increase in friend of a party amicus has taken us far from the origins of amicus as one with special expertise or knowledge relevant to the litigation. The article concludes that the Supreme Court’s open-door amicus policy should not be mindlessly copied by our other courts. Friend of a party briefs by ambitious law reform and business advocates may exert great influence, particularly on elected courts. The growth in amicus briefs can lead to distorted views of appellate decision-making, so that a court’s work is seen more like legislation and amicus briefs more like lobbying. To preserve the usefulness of the amicus institution, courts should exercise their gatekeeping authority.
What do you think? Is the increasing amicus briefing giving appellate courts a more legislative, lobbying-susceptible character?
August 1, 2014 in Appellate Advocacy, Appellate Court Reform, Appellate Justice, Appellate Practice, Appellate Procedure, Federal Appeals Courts, State Appeals Courts, United States Supreme Court | Permalink | Comments (0)
Saturday, July 12, 2014
One of the rookie mistakes every lawyer makes at some point is confusing persuasion for argument. Merriam-Webster says that argument is “a statement or series of statements for or against something; a discussion in which people express different opinions about something; an angry disagreement.” Persuasion is defined as “the act of causing people to do or believe something; the act or activity of persuading people.” The latter implies some knowledge on the part of the persuader about what matters to or motivates the audience, whereas the former implies an aggressive imposition of ideas without regard for the audience. Here are five concrete tips for avoiding mere argument.
- LISTEN. By listening, an advocate learns what matters to its audience. Before an oral argument, the judges often have not yet made up their minds. They are primed to be persuaded, and if the advocate tunes into the questions appropriately, the advocate can learn valuable information about the judges’ concerns. Similarly, when it comes to brief writing, advocates should listen to the arguments of their opponents so that they can adequately address the competing concerns in the case and explain why one side nevertheless prevails.
- ELIMINATE EXAGGERATORS. Words like blatant, clearly, and obviously can be tempting to throw into a brief, but they offer little in the way of substance. Seriously, if a resolution were so clear, would the case have even gotten this far? Focus instead on the substance of the argument. If the issue is in fact so clear, the judges will see it on their own. It is the advocate’s job to make the issue seem clear cut, but slapping the word “clearly” on the argument is not likely to be taken at face value by a learned judge who is investing hours in the resolution of a case. There needs to be meat there to back it up.
- TAME EMOTIONS. It is hard not to get emotional about our cases. First, we get to know the ins and outs of the cases, and we often develop intense relationships with our clients. They are often in desperate situations and the lawyer might be their only hope for resolution of the conflict. Second, when we invest time in developing an argument, writing a brief, and preparing for oral argument, it can feel like wasted time when we lose. Pushing anger, disappointment, frustration, sadness, and other emotions aside can be challenging, but it is essential. An overly emotional response makes an attorney seem inappropriately biased, and the judge is less likely to trust that the attorney has considered all sides of the issues and is advancing a sound and thoroughly researched argument. On a related note, avoid overt appeals to the judges’ emotions. Judges pride themselves on making logical decisions separate from their personal emotions and feelings, so an overt appeal to the judge’s emotions can not only irritate the judge, it is likely to also insult the judge.
- AVOID AD HOMINEM ATTACKS. Incorporating a personal attack against opposing counsel is a sure-fire way to make a judge think that no sound legal theory supports your position. Let the law and facts speak for themselves by telling a compelling story about your client and showing the court how the law supports a resolution in favor of your client.
- DON’T TALK BACK. At all costs, avoid the phrase, “But your Honor!” Also think long and hard before filing a motion for rehearing or a motion for reconsideration. Unless there is a legal basis for filing such a motion (like there is precedent the court did not have before it or new facts have come to light), they are usually a waste of time. Handling these types of motions drains the court’s time and resources, and quite often these motions are unwarranted because there is no legal basis to justify the court changing its mind. There is value in respecting the finality of judgment in a court. If you disagree with the court’s ruling, appeal it to a higher court, but don’t argue about whether the decision was right by filing frivolous motions for rehearing and reconsideration.