Tuesday, April 14, 2015
As Michael Wein of the Maryland Appellate Blog reports in some detail, the Maryland Rules Committee has responded to increased media publication of its "unreported decisions" by proposing to: 1) have the court publish the opinions itself and 2) deny the opinions not only precedential authority but also persuasive authority. Further, any attempt to cite an unreported decision may be met with a sanction of striking an entire brief or filing. The rule, as written, would apply also to other jurisdictions' decisions, leading Michael Wein to incisively ask, "So a case can be citable as full precedential or persuasive authority in another state or federal court, yet, when it hits the Maryland border, it suddenly ceases to exist?"
The rule would put Maryland rules at odds with the federal Fourth Circuit practice, which not only permits citation to its unpublished opinions but acknowledges that a such an opinion might have precedential value. The rule would also put Maryland at odds with the trend in state and federal courts toward greater publication, citation, and acceptance of the precedential value of unpublished opinions.
Enacting or maintaining a citation ban that attempts to deny even persuasive value of an appellate opinion ignores the shared experience and reasoning that led to Federal Rule of Appellate Procedure 32.1, which prospectively permits citation to all opinions, however designated, in the federal circuits. When attorneys in your state are telling you that they want to read these opinions to the extent that someone seeks them out and bears the costs of publication, it should be a signal that these opinions do have value for predicting the outcomes of future litigation and the reasoning that was once persuasive on the court will likely be so again. Unless it thinks members of the Maryland Bar are seeking out these opinions to supplement their leisure reading, the Maryland Rules Committee should recognize that no matter how the court labels them, appellate opinions have have a predictive and persuasive value.
Thursday, April 2, 2015
Matthew Stiegler's CA3blog dug into the new AO Court Statistics and found that when it comes to issuing published opinions, the Third Circuit doesn't publish very many of them. It publishes the fewest published opinions of any circuit, and finds itself among the high-volume circuits in terms of the percentage of unpublished opinions. Matthew suggests that judicial vacancy is the the likely reason for the Third Circuit's recent spike in its unpublished opinion rate to 92.3%. That seems accurate, though the Third has been hovering in the high-80s for a while now. Judicial vacancy may have pushed them up to the low-90s where the high-volume circuits are.
I hope that Matthew and others watching their particular circuits of interest continue to report on those courts' publication practices. Seven circuits now publish fewer than ten percent of their opinions.
Thursday, March 19, 2015
The federal appellate courts are currently considering a change to Federal Rule of Appellate Procedure 32(a)(7)(B) that would reduce the word-limit of principal appellate briefs from 14,000 to 12,500. Law blogs, especially those of an appellate bent, have reported on this as comments rolled in over the last several weeks. This blog is far behind on mentioning it, and even now, I don't have a strong opinion on the proposal. But it seemed worth mentioning that the issue has reached the general public in the form of a Wall Street Journal article.
Oddly, what stood out to me in this article was this bit:
Michael Gans, clerk of the Eighth U.S. Circuit Court of Appeals in St. Louis, who oversaw the word-count study, says the process couldn’t have been more painstaking. It was carried out by a high-school graduate who interned at his office and spent a recent summer in a cubicle counting every single word of 200 printed-out briefs that served as the sample. “I felt sorry for her, but that’s what she did all summer,” Mr. Gans said. “She still wants to go to law school.”
Perhaps optical character recognition software could have been used?
hat tip to reader: Professor Jennifer Romig
Tuesday, February 10, 2015
In a post last Monday on Prawfsblawg, entitled, On Not Creating Precedent in Plumley v. Austin, Richard M. Re asks, "what’s so wrong with deliberately declining to create precedent?" By his answer, an implied "nothing" because "[d]oing so conserves scarce resources and reduces the risk of mistaken or sloppy precedent," he seems to be asking, "what's the harm?"
There are a couple other bases for finding the practice "wrong," such as whether the practice is legitimate, constitutional, or just. But first, what's the harm in treating some circuit decisions as non-precedential? This is something I discuss in my works on the topic, especially: Overturning the Last Stone: The Final Step in Returning Precedential Status to All Opinions, 10 J. App. Prac. & Process 61 (2009) and Draining the Morass: Ending the Jurisprudentially Unsound Unpublication System, 92 Marq. L. Rev. 685 (2009).
First, deliberately declining to create precedent creates fewer precedents. Fewer precedents means a less definite law. At least since the time of Lord Coke, the law has been viewed as refined by renewed applications. With each new decision, the law is broadened, narrowed, or simply reaffirmed. The common law treats each case as binding but is also concerned about the accrual of such cases and the varying facts to which the rule is applied. This the understanding of precedent of Coke, Blackstone, Kent, Marshall, Story, and Llewellyn. It's how the common law, in principle, works. Never before in common law history has a court been able, at the time of decision, to remove its holding from the body of precedent. And no matter how the court phrases its opinion, it has ultimately been up to the later court to decide whether and how earlier opinions applied.
I am partial to Karl Llewellyn's explanation: "We have discovered that rules alone, mere forms of words, are worthless. We have learned that the concrete instance, the heaping of concrete instances, the present, vital memory of a multitude of concrete instances, is necessary in order to make any general proposition, be it rule of law or any other, mean anything at all." Karl Llewellyn, The Bramble Bush, 66-69 (1930).
The problem is not that there are too many precedents but that there are too few. Judge Posner wrote as much in The Federal Courts: Challenge and Reform, and his experience is echoed in the experiences of the federal judiciary. In a 1998 survey of federal district judges, about a third identified some area of circuit law as inconsistent or difficult to know on account of lack of binding circuit decisions on point. But even more telling than what judges say is what they do. The survey also revealed that nearly two-thirds of lawyers surveyed reviewed unpublishd opinions either generally within their practice area or in researching specific cases. During the citation ban era (1974-2006), courts and litigants frequently cited to unpublished and allegedly non-precedential opinions even in violation of the ban. They were, as Lord Coke might have described it, looking for greater refinement in the law that only comes by seeing it applied. Or as Llewellyn might have said, they saw the published, precedential grains of sand, but they wanted to see the heaps. The citation ban finally ended because it ran counter to a basic understanding of precedent shared by American lawyers and judges alike: each case has value in determining the scope of the law.
More applications of the principles of law to facts, such that those principles are tested and refined, improves our understanding of those principles and gives greater certainty to those seeking to conform their conduct to them. "Mistaken or sloppy precedent" can be corrected by more judicial oversight to their drafting, or should that fail, by the normal processes of the court. While conserving limited resources is important, expediency should not be our highest value. The federal judiciary, a co-equal third branch of our government is allocated a mere two-tenths of one percent of the total federal expenditures. Instead of asking our courts to do with less, we should give them the funds to do more.
Second, issuing some decisions as non-precedential creates the potential for blatantly conflicting published and unpublished opinions. A court may decide in favor of a party today but next year, on the exact same issue, decide exactly the opposite. If the earlier decision is unpublished, the later panel need not acknowledge the earlier decision or give a reason for the change. This was the case in a pair of cases in which the Dallas Area Rapid Transit authority (“DART”) received diametrically opposed decisions from the Fifth Circuit without explanation in a span of just three years. In 1999, a federal district court in the Fifth Circuit held that, “DART is a political subdivision of the state of Texas, and is therefore immune from suit under the Eleventh Amendment," which the Fifth Circuit affirmed without comment in an unpublished opinion. Anderson v. Dallas Area Rapid Transit, No. CA3:97-CV-1834-BC, 1998 U.S. App. LEXIS, 15493 (N.D. Tex. Sept. 29, 1998) aff’d Anderson v. Dallas Area Rapid Transit, 180 F.3d 265, (5th Cir. 1999) (per curiam) (unpublished), cert. denied 529 U.S. 1062 (1999).
In Anderson, and two other unpublished opinions, the Fifth Circuit held that DART was a governmental unit or instrumentality of the State of Texas entitled to qualified immunity. The law on this point seemed so clear that in Williams v. DART, the district court felt this point was "firmly established." The Fifth Circuit disagreed and rejected DART's immunity claim dismissing the unpublished opinions as "neither binding nor persuasive," but failing to give any reason for the different treatment. Williams v. Dallas Area Rapid Transit, 256 F.3d 260, 261 (5th Cir. (Tex.) 2001). This decision drew a strong dissent noting that this kind of unreasoned about-face exposed a flaw in the concept of non-precedential opinions.
A conflict like this between two precedential opinions would be resolved by the second panel distinguishing the present matter from the prior one, or if that proved impossible, by an open declaration of conflict followed by a resolution by the court en banc. Which leads to a third category of harm non-precedential opinions cause.
Third, issuing some decisions as non-precedential increases the likelihood of intra-circuit conflict. Such conflict was especially acute in the citation ban era, because a litigant perceiving a conflict in a circuit's unpublished opinions was prohibited by rule from raising it with the court. For example, in the wake of the U.S. Supreme Court's ruling in Almendarez-Torres v. United States, 523 U.S. 224, 118 S. Ct. 1219 (1998), an ambiguity arose about how to treat a defendant convicted of illegal entry following deportation. Over a two-and-a-half-year period, twenty Ninth Circuit panels ruled on this issue and split three different ways (most remanding for resentencing, some remanding for amendment of the original judgment, and a few foisting the responsibility for determining the proper course of action on the district court). The split continued for over two years, with identically situated defendants receiving different answers from the Circuit. The ongoing intra-circuit conflict was revealed only when a panel in United States v. Rivera-Sanchez, 222 F.3d 1057 (9th Cir. 2000) ordered a litigant to violate the Circuit's non-citation rule and provide a list of these unpublished opinions.
A circuit that does not view its unpublished opinions as binding can simply ignore those decisions for purposes of whether to hear an issue en banc. Yet, the unpublished opinion may be cited for persuasive effect (in all circuits since 2007), which merely increases the chance of creating the separate, conflicting lines of authority as in the Riveria-Sanchez scenario.
Fourth, inter-circuit conflict become more likely, too. In much the same way that intra-circuit conflict can arise undetected or unacknowledged within a circuit, such conflicts can arise between circuits. During the citation ban era, such conflicts were effectively hidden, because citation bans prevented their being raised. But even now, if the unpublished opinion is not treated as establishing the law of the circuit, it can be disregarded within its own circuit and by the other circuits. The Supreme Court takes only a tiny fraction of the cases seeking review each year. Just as with en banc panels, a case that does not establish the law of the circuit is unlikely to be the basis of an apparent conflict even if the conflict it creates is real. In that way, a conflict can exist indefinitely in a manner much like that described in Rivera-Sanchez.
Fifth, declaring some opinions non-precedential allows them to evade Supreme Court Review. As noted above, one line of authority, if present only in unpublished opinions can obscure or deemphasize the nature of the conflict. Two Justices believed that was the case in Waller v. U.S., where Justices White and O'Connor dissented from denial of cert noting that a circuit split existed if one took into account unpublished opinions. 504 U.S. 962, 964-65, 112 S. Ct. 2321 (1992) (White J. and O’Connor J., dissenting) (Mem); see also Hyman v. Rickman, 446 U.S. 989, 990-92 (1980) (Blackmun, Brennan, and Marshall, J., dissenting) (Mem) (dissenting from denial of certiorari on the grounds that the unpublished circuit opinion was in conflict with other circuits on the issue of right to appointed counsel). While the conflict was sufficient to catch individual Justices' attention, it was not sufficient to prompt Supreme Court review, similar to the result in Plumley v. Austin.
Supreme Court review is also less likely due to the signal an unpublished opinion sends. A circuit’s decision not to publish a given decision signals that that decision is routine, even when it is not. For example in United States v. Edge Broad. Co., the Fourth Circuit declared a federal statute limiting lottery advertising unconstitutional in an unpublished opinion. 956 F.2d 263 (per curiam) (4th Cir. 1993). In its reversal of that decision, the Supreme Court expressed surprise and dismay that the Circuit Court could perceive such a ruling as unworthy of publication. 509 U.S. 418, 425 n.3 (1993) (“We deem it remarkable and unusual that although the Court of Appeals affirmed a judgment that an Act of Congress was unconstitutional as applied, the court found it appropriate to announce its judgment in an unpublished per curiam opinion.”)
The hiding of cases from Supreme Court review also occurs because unpublished cases tend to create a less thorough record, which itself discourages Supreme Court review. For example, in County of Los Angeles v. Kling, the Supreme Court granted cert and issued a summary reversal on a case the Ninth Circuit had decided in a brief, unpublished, non-citeable opinion. 474 U.S. 936, 937-39 (1985). Justice Marshall dissented calling the Ninth Circuit’s practice “plainly wrong” and noting, "the Court of Appeals would have been well advised to discuss the record in greater depth. One reason it failed to do so is that the members of the panel decided that the issues presented by this case did not warrant discussion in a published opinion that could be 'cited to or by the courts of this circuit, save as provided by Rule 21(c).' That decision not to publish the opinion or permit it to be cited-like the decision to promulgate a rule spawning a body of secret law-was plainly wrong."
Justice Marshall continued by chastising the Court for engaging in the same type of shortcut decision making: "The brevity of analysis in the Court of Appeals' unpublished, noncitable opinion, however, does not justify the Court's summary reversal….For, like a court of appeals that issues an opinion that may not be printed or cited, this Court then engages in decision-making without the discipline and accountability that the preparation of opinions requires."
Even when both parties agree that a Circuit decision makes new law, the status of a decision as unpublished can discourage Supreme Court review. In Family Fare, Inc. v. NLRB, both parties agreed that the Sixth Circuit had departed from its previous law in an unpublished opinion. 2006 U.S. Briefs 1536 cert. denied Family Fare, Inc. v. NLRB, 127 S. Ct. 2991 (2007). NLRB liked the change and sought publication or a Supreme Court affirmance to solidify the new interpretation. Family Fare disliked the change and viewed it as exactly the kind of surreptitious change in the law of the circuit that Justice Thomas alludes to in Plumley. Ultimately, The Supreme Court denied cert, probably in significant part because as an unpublished opinion, it was not the formally law of the circuit and did not truly represent a shift in the law. Yet, Family Fare was treated differently than prior litigants, and NLRB likely relied on the decision in future cases to show that the law had changed.
Sixth, creating an opinion on which no one can rely (and which for years no one could even cite) is an invitation to poor reasoning or even strategic, result-based reasoning. Justice Stevens expressed "that occasionally judges will use the unpublished opinion as a device to reach a decision that might be a little hard to justify." Jeffrey Cole & Elaine E. Bucko, A Life Well Lived: An Interview with Justice John Paul Stevens, 32 No. 3 Litigation 8, 67 (2006).
This concern was also expressed by the late-Judge Richard Arnold and quite directly by Judge Wald of the D.C. Circuit: "I have seen judges purposely compromise on an unpublished decision incorporating an agreed-upon result in order to avoid a time-consuming public debate about what law controls. I have even seen wily would be dissenters go along with a result they do not like so long as it is not elevated to a precedent." The Rhetoric of Results and the Results of Rhetoric: Judicial Writings, 62 U. Chi. L. Rev. 1371, 1374 (1995).
A study of asylum cases in one circuit and found considerable strategic decision making surrounding the outcomes of cases and the publication of opinions: "voting and publication are, for some judges, strategically intertwined: for example, judges may be prepared to acquiesce in decisions that run contrary to their own preferences, and to vote with the majority, as long as the decision remains unpublished, but can be driven to dissent if the majority insists upon publication" David S. Law, Strategic Judicial Lawmaking: Ideology, Publication, and Asylum Law in the Ninth Circuit, 73 U. Cinn. L. Rev. 117 (2005).
Finally, the system of unpublished, non-precedential opinions is harmful to both the courts and the litigants before them. It's harmful to the courts, which have been drawn into this very unjudicial exercise of prospectively dividing "worthy" cases from "unworthy" ones. For hundreds of years, a court was expected to abide by, or explain the difference from, a prior case, and a court knew that its decision created a similar obligation on later courts. Now, unmoored from that, they are engaged in a very different process. As the recent article by Adam Liptak suggests, the public concern with unpublished opinions is that a court can issue one-off rulings that it need not every follow again.
It also harms litigants, who look at prior adjudications in the form of unpublished opinions but have no assurance that they will be treated the same or that any explanation will be given for the difference. And often they are not. Individual litigants like those in the cases mentioned above and all the many similar cases they represent, have not been treated equitably or according the system most people believe exists.
But as noted at the outset of this post, these harms are the middle ground problems with non-precedential opinions. One could accept the practice in principle and have serious concerns with the manner in which it is carried out. Or, more deeply, it's fair to question what authority the federal circuits have for ex ante precedent-stripping and whether that practice is constitutional or just. But those will have to wait for other excessively long posts.
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.
Thursday, January 8, 2015
So I've appreciated some of the discussion on this blog about the importance of appellate oral argument and arguments for a more robust oral argument docket. But as a full-time appellate public defender, I have wondered if this analysis is different depending on the type of appeal and litigant. In that light, I thought I would break down the costs and benefits of oral argument and then see if they are different for different types of appeals and litigants. If they are, it may lead to more nuanced policy recommendations. Let's start with benefits.
Judges. As aptly noted elsewhere, there are a lot of tangible and intangible benefits for appellate judges stemming from oral argument. They (hopefully) are able to ask questions that allow them to craft their decisions better (even if not affecting the disposition). It allows them time to sort through potential ramifications of decisions that might be lost without discussion at oral argument. They may be able to hold parties accountable in different ways (i.e. verbally embarrassing a prosecutor for improper argument or causing a lawyer discomfort for procedural missteps). Oral argument may be the only time some appellate judges sit together in a room, so it may foster collegiality. And it is an opportunity for extremely isolated judges to interact with lawyers and an opportunity to act "judgey." So from the point of view of judges, there are many benefits, regardless of the type of case or litigant.
Lawyers. Do lawyers (not their clients) benefit from oral argument? Retained counsel (or even appointed counsel who bill by the hour) would seem to benefit financially from oral argument. These lawyers would get to bill for the preparation, travel, and argument itself, which would seem to be beneficial for most lawyers who value billable hours. For public defenders like me, there is no financial benefit to oral argument. I would get exactly the same pay if I had two oral arguments a year and if I had twenty. There are intangible benefits for lawyers too. Practice at oral argument can help lawyers get better at their craft (both brief-writing and subsequent oral arguments) and enhance their professional reputation (if they are competent anyway). And for full-time appellate lawyers, it is also an opportunity to interact with judges and act like lawyers. So from the point of view of lawyers, there are at least some intangible benefits for all appellate lawyers, but the direct financial benefits only attach to lawyers who are able to bill for the oral argument time.
Media/public. The media and public benefit from oral argument because it is the only time that the "outside world" gets to see the appellate process at work. Without oral argument, appellate litigation would be a largely faceless and mysterious process. The intermediate appellate court in which I practice (the Kansas Court of Appeals) travels around the state, conducting oral argument in community colleges, high schools, and local courthouses. Part of the benefit of these dockets is that they allow local students and the public the opportunity to attend an appellate case and see a little more of how appeals works. Every opportunity to enhance confidence in the judiciary is beneficial, regardless of the case or litigant. I don't know if oral argument actually benefits the media. It sometimes gives them a story to report, which I guess is beneficial (although, except for Nina Totenburg, I rarely find reporters that do a good job of really reporting on the essence of oral arguments). Certainly for high profile cases, being able to report on the oral argument would enhance the completeness of the reporting about the case.
Clients. Do clients benefit from oral argument? Systemically, this is probably the most important question and it, in some part, turns on the related perennial question, does oral argument matter? I love hearing different judges answer this question, ranging from an unequivocal "no" to an ambiguous "often." I think it is important to be precise in this question, though. The question shouldn't be "does oral argument matter?" or "does oral argument ever change the opinion?" It should be "does oral argument ever change the disposition of a case?" That is the most pressing issue for most clients: "Do I win or not?"
Notwithdstanding many judges' response to the question, I am pretty skeptical that oral argument changes the disposition in any significant number of cases. Why do I think that? How many legal malpractice or ineffective assistance of appellate counsel cases do you know of that turn on poor oral argument or even missing oral argument? About nine months ago, Kendall blogged about a Seventh Circuit case where a lawyer missed oral argument, apparently lied about it, and was chastised by the court. But if there was a reasonable probablity that oral argument mattered to the outcome of the case, why did the appellate court proceed to decide the case (as opposed to appointing new counsel and resetting the oral argument after enough time to prepare)? And would that client have been able to sustain an ineffective assistance of appellate counsel claim? He would have been able to show deficient performance; but I can't imagine how any similarly situated client would be able to show a reasonable probablity that the outcome would be different. I did a cursory review and could not find any cases finding ineffective asssistance of appellate counsel or legal malpractice (leading to damages) based on poor or missing appellate oral argument. Maybe some readers can comment if they are aware of any such cases.
Admittedly, this is an nuance that can vary depending on the client. Some institutional clients are not just worried about winning a particular case. Actually, the particular case may be of very little interest. But the law that evolves from the case may be very important. For those litigants, oral argument that leads to a refined legal decision may be quite beneficial. But most of my indigent clients don't really care about the evolving state of the law--they only care about whether or not their appeal will be successful. I'm not an issue advocate--I'm a client advocate.
Finally, there may be some intangible benefits for clients from oral argument. Even if it doesn't matter, it can make a client feel like he or she has had a "day in court" in a way that summary disposition probably does not. So, from the point of view of clients, aside from the intangible, whether clients particularly benefit from oral argument can depend on the type of litigant. Institutional litigants are probably more likely to receive a benefit than a case-specific litigant, for whom there is no reasonable possibility of a different outcome.
There may be other actors/institutions that stand to benefit from oral argument. But when considering the benefits, it seems that institutional litigants (and the lawyers that represent them billing by the hour), likely benefit much more than case-specific litigants and litigants that are primarily interested in the disposition of the case (rather than the development of the law). The judiciary and the public benefit from oral argument in both types of cases about equally.
Next month. Costs.
Tuesday, January 6, 2015
Jason Rantanen has a new post entitled, "The Federal Circuit and Judicial Transparency," on PatentlyO raising specific concerns regarding the availability of opinions and the state of transparency in the Federal Circuit. The post provides examples of transparency problems as well as some possible work-arounds. It's an informative, if sigh-inducing, read.
hat tip: Howard Bashman
Thursday, October 30, 2014
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 15, 2014
A trio of cases were posted recently as working papers on SSRN dealing with various issues related to the operation of the U.S Court of Appeals:
The most recent is Andrew Hewitt Smith's The Effect of Ideology and Proportionality of the U.S. Courts of Appeals on the Likelihood of Supreme Court Reversal (August 3, 2014) available at SSRN: http://ssrn.com/abstract=2475631. Abstract:
Although much work has been done on the interaction between the United States Courts of Appeals and the United States Supreme Court, few studies have examined how the ideological compatibility of the lower court and the proportion of cases heard from a federal circuit court affects the likelihood of the Supreme Court reversing that circuit. Using data from the Roberts Court (2005-2011), I examine whether greater levels of ideological disagreement and the proportion of appeals from a circuit that are granted certiorari affect the likelihood of Supreme Court reversal. I conclude that the proportion of cases reviewed by the Court does not significantly increase the likelihood of reversal, but greater ideological distance between the lower court and the Supreme Court significantly increases the likelihood of reversal.
Smith, a PhD candidate at the University of Tennessee, tests the interesting hypothesis of whether ideological distance between the appellate judges and Supreme Court judges affects the rate of reversal. The data-driven analysis turns on existing, and controversial, measures of judicial ideology, and reveals some interesting results. Examining decisions of the Roberts Court (which has seen a shifting membership throughout its six terms) does limit the results somewhat, but the results confirm earlier analyses and suggest further analysis of other panels of the Court may prove useful.
Second, Jeremy D. Horowitz's posted an analysis based on an interesting and under-used source, dissents from denial of rehearings: Split Circuits: Analyzing Polarization on the U.S. Courts of Appeals Using Dissent from Denial of Rehearing En Banc Coalition Data (July 21, 2014) available at SSRN: http://ssrn.com/abstract=2469237. Abstract:
Are the federal courts of appeals polarizing along with the rest of the government and American society more generally? This paper explores that question by exploiting a novel source of data: dissents from denial of rehearing en banc (DDRs). A DDR is a published opinion, often attracting concurrences from other judges, in which a judge criticizes her court for choosing not to rehear a case -- one the initial circuit panel ostensibly decided wrongly. DDRs have no precedential effect but offer a judge the opportunity to publicize her disagreement with the court’s result. As such, they are a pure expression of judicial preference. Using an original dataset of information collected from nearly 1,300 DDRs published between 1943 and 2012, I evaluate the ideological nature of DDR usage focusing specifically on two aspects of DDRs: the colleagues a judge joins with, and the panel authors she mobilizes against. I use these measures to examine the different patterns among the circuits, among different presidential cohorts, and in different decades to show trends in circuit court polarization and to explore the connection between polarization in the judiciary and in the elected branches. The paper finds that although the circuits vary widely in the way they use DDRs, a substantial number of them do so in a polarized fashion. Evaluating judicial cohort behavior over time indicates that the nominating presidents -- more than the increasingly polarized environment in the Senate and the general public’s own tendency toward ideological division -- are the primary force driving judicial polarization.
Another graduate student working paper, this time from University of California at San Diego, the article makes a compelling case for the revelatory power of DDRs. It is limited, as all work in this area, by challenge of establishing judicial political ideology for individual judges. That said, it takes the commonly accepted judicial ideology measurement and applies it sensibly. It builds on Horowitz's earlier work, Not Taking "No" for an Answer, 102 Georgetown Law Journal 59 (2013), which also looks at the utility and meaning of DDRs.
Finally, Mark A. Lemley and Shawn P. Miller have posted If You Can't Beat 'Em, Join 'Em? How Sitting by Designation Affects Judicial Behavior (June 12, 2014) as part of the Stanford Public Law Working Paper series. It's available at SSRN: http://ssrn.com/abstract=2449349 or http://dx.doi.org/10.2139/ssrn.2449349 . Abstract:
Judges, lawyers, and scholars have long decried the high reversal rate district judges face in patent cases. Many have suggested greater district court specialization as a solution, and Congress in 2011 enacted legislation to promote such specialization. In this paper, we investigate the impact of a novel measure of experience – whether a district court judge has sat by designation on a Federal Circuit panel in a patent claim construction appeal – on the likelihood a district judge’s subsequent claim constructions are reversed. Before sitting by designation, judges who later do so actually have a slightly higher claim construction reversal rate than judges who never do so. After sitting by designation, the reversal rate of district court judges on subsequent claim construction appeals decreases by 50 percent. This decrease is not fully explained by other measures of experience, including the number of prior patent cases or years on the bench. Nor is it fully explained by the timing of the appeal, the particular district court judge or various other characteristics of the patents, the parties and the litigation. Our results suggest a simple way to reduce the reversal rate in patent and perhaps other sorts of cases. However, our evidence suggests this increased agreement is due to increased Federal Circuit trust in the decisions of individual judges who have sat by designation and not increased district judge understanding of claim construction.
This article makes a significant claim that the lower court judge's rate of reversal drops due to greater trust of the appellate panels rather than the lower court judge's better understanding of claim construction. Whether this greater trust is a legitimate or illegitimate reason to affirm a lower court's decision is certainly an interesting question.