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)
Friday, August 29, 2014
Michael Doyle, McLatchy Washington Bureau, has a brief blog post today comparing the opening lines of these D.C. Circuit opinions issued today. He juxtaposes two fact-oriented openings, one that makes terrific use of short, declarative sentences, with a law-oriented opening containing multiple mid-sentence citations.
It’s an interesting dichotomy. This eye-catching difference invites further inquiry into: 1) what is the standard model of judicial opinion writing and 2) what difference does it make in the application of the law. Perhaps further study is warranted by some enterprising scholar, beyond the single day’s anecdote out of the D.C. Circuit, but it seemed worth passing along.
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.
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)
Friday, July 11, 2014
Marin K. Levy (Duke) has a new article, Judging Justice on Appeal, 123 Yale L. Journal 2386 (2014), a review of the 2012 monograph, Injustice on Appeal: The United States Courts of Appeals in Crisis by William M. Richman and William L. Reynolds.
Richman and Reynolds are well-known and prolific authors on the federal appellate courts and the caseload crisis that dominated the late-twentieth century. As Levy explains:
Over the past thirty years, no one has contributed more to this field than two court scholars together—William M. Richman and William L. Reynolds. Through a series of critical articles, Richman and Reynolds were able to pinpoint the precise effects of the caseload crisis, both on litigants and the system as a whole. Furthermore, they were able to show the interplay of these various effects, providing a holistic account of the problem in a way that no one else had done. Their recent book, Injustice on Appeal: The United States Courts of Appeals in Crisis, stands as a culmination of their earlier work, bringing together vital analysis of the caseload crisis, the ways in which appellate review has suffered as a result of that crisis, and potential solutions. More broadly, Injustice on Appeal stands as one of the most comprehensive and thoughtful accounts of the largest problem facing the federal judiciary today.
For the most part, Levy's review agrees with Richman and Reynolds' evaluation of the recent history, and present problems facing, the federal judiciary. Chief among these problems are the continued high volume of cases in the federal appellate courts and the case management practiced by the federal courts over the last forty years to manage that higher volume. Where Levy parts ways with the book's authors is in the possible solutions to the federal courts' problems. While Richman and Reynolds prescribe large-scale changes, such as enlarging the federal judiciary, and look skeptically on the kinds of internal changes the courts have been doing for decades, Levy views the large-scale changes as unrealistic and smaller process changes as more fruitful.
As I discuss in my recent piece, Post-Crisis Reconsideration of Federal Court Reform, 61 Clev. St. L. Rev. 47 (2013), the federal courts over the last forty years have adopted many internal reforms to deal with the increase in caseload volume, but they have also left many proposed reforms on the table. Large-scale systemic reforms have been politically unpopular, and smaller scale internal reforms have raised questions about the quality of appellate justice. It is possible that the disagreement between the book's authors and Professor Levy is the difference between a normatively preferable approach, a systemic fix, and a more pragmatic solution, continuing case management reform.
I certainly agree with Levy that the area is ripe for the next wave of scholars, and I would add, reformers, to make a difference in the post-"caseload crisis" era. Richman and Reynold's latest work is a terrific collection and summarization of their extensive research and thoughtful commentary in the area, and Levy's review is a useful focus on solutions and an interesting challenge to the field.
I highly recommend both works to anyone interested in the appellate courts.
Friday, May 23, 2014
Almost a month ago, Legal Ethics Forum mentioned an AP story out of Washington about The Center for Public Integrity's conflict check on the federal appellate courts. CPI examined the last three years of financial disclosure reports of federal appellate judges and the federal appellate cases before each judge. The review found twenty-six cases involving sixteen judges where the a judge had a financial interest in one of the parties or in a law firm appearing before court. Such a small number of cases in the large volume of appeals suggests a reasonably functioning screening system, but even this small number of conflicts calls into question the outcomes in those cases and threatens the public perception of the judiciary as unbiased.
CPI notes that all sixteen judges have now informed the litigants in these cases of the conflict. Litigants whose cases are still pending have some chance at relief, recusal and perhaps a substitute judge added to their panel. Litigants whose cases are closed may have a tougher time of things. Those still in the window for en banc review may seek that rare remedy and getting the Supreme Court to review the cases seems even more remote.
Relatedly, our sister blog, the Civil Procedure and Federal Courts Blog, posted yesterday that the National Law Journal has issued a Special Report on Judicial Transparency and made available in digital format the 2012 disclosure statements of 257 federal appellate judges. Having this data publicly available increases the opportunity for the kind of conflict checking done by CPI as well as allowing for a scholarly or journalistic examination of judges' extra-judicial income. Of course, it also allows for the all-too-human poking our noses into other people's business, should anyone be interested in doing that.
Wednesday, April 30, 2014
Oral arguments in Riley v. California and United States v. Wurie have revived the discussion about the future of cellphone searches by law enforcement. Amy Howe over at SCOTUSblog has an excellent plain English summary of the arguments.
In a pair of posts last fall (here and here), I discussed examining the issue with my Advanced Appellate Advocacy class. These cases present a question of when law enforcement may search a cellphone seized at the time of arrest without seeking a warrant. I noted then that one way to conceptualize the debate is to attempt to categorize the cellphone as either an "item associated with the arrestee" (which may be freely searched) or merely an "item within the arrestee's control" (which may be searched only with some justification). The government in these cases, particularly Wurie, seemed to employ a bright-line classification argument. That is, the government proposed that a cellphone in the possession of an arrestee should be classified as an "item immediately associated with the arrestee," similar to a wallet or pager, and, therefore, subject to search without limitation. The litigation history at that time suggested the government pushed hard for this classification with very little attention devoted to a fallback or alternative argument. This was in contrast to the defense approach, again, particularaly in Wurie's appellate briefing, of providing alternative arguments for rejecting cellphone searches.
The recap at SCOTUSblog suggests that the Justices did not seem inclined to credit either party's categorical classification argument. Instead, they seemed to be searching for a logical way to draw a line between a permissible and impermissible search. As Howe explains:
Given the lack of support for either bright-line rule, it comes as no surprise that the Justices spent a good chunk of the two hours today mulling over a possible middle ground. But here too there wasn’t much in the way of consensus, as the Court struggled to find a compromise that would genuinely protect privacy.
While the pull of a strict categorical approach is strong, (it was especially strong for my students as new advocates), judges concerned with practical application and balancing the interests often seek out some middle ground. This is even more true in areas of the law concerned with balancing interests, such as the Fourth Amendment's reasonable search arena. Ultimately, the Court in Riley and Wurie will have to find that consensus position, even if it did not find it among the advocates' arguments yesterday.
Photo Credit: Adrian Clark
Tuesday, April 29, 2014
At the beginning of this month, I blogged about the 5th Circuit's Texas decision - applauded by some as responsibly upholding legislation that supports women's health and criticized by others concerned that it will cause an undue burden on access to abortions and possibly hinder health by causing some women to dangerously take matters into their own hands. Here we are at the end of the month and the 5th Circuit is once again facing the same issue. However, this time it may answer some questions left unanswered in the prior case.
While the prior case upheld the legislation requiring abortion clinics to have admitting privileges at a hospital, it also held that the issue of undue burden was not ripe for consideration; after all, there still exists multiple options for abortions throughout the state. However, the state of Mississippi is down to only one abortion clinic. Surely this fact was discussed during oral arguments yesterday. When you couple the lack of access to clinics, especially if this last clinic is forced to close, with the concern raised in the Texas case that allowing hospitals to have control over providing admitting privileges to abortion clinic practitioners might effectively kill off all abortion clinics, it is clear to see the dilemma. Jackson Women's Health Organization, the clinic in question, has stated that it has requested, and been denied, admitting privileges by thirteen different medical facilities. Similar laws are being pushied in Louisiana, Oklahoma and Alabama, causing at least one media outlet to question if this is the beginning of end of abortion access in the South.
Of note, this is a different three judge panel than the one presiding over the Texas case. I suspect SCOTUS will eventually be weighing in on this debate.
Tuesday, April 15, 2014
Joan Steinman, Distinguished Professor of Law at Chicago-Kent School of Law, posted a piece on SSRN: The Puzzling Appeal of Summary Judgment Denials: When are Such Denials Reviewable? Steinman is a co-author of the excellent text, Appellate Courts, Structures, Functions, Processes and Personnel (2d ed. & 2009 Supp.). In this article, she examines the fractured state of the law regarding appeals of summary judgment denials, in particular those appeals brought after a trial and final judgment. She identifies both inter-circuit and intra-circuit splits on the appealability of such denials and some confusion over which types of denials are appealable. She notes that the U.S. Supreme Court weighed in on the issue in dicta in Jordan v. Ortiz, 131 S.Ct. 884 (2011), but argues that:
the Court’s approach was off-the-cuff, its thought process superficial and in some respects flatly in error, and its dicta seriously misguided, with the result that the intermediate federal courts of appeals were left in a quandary over whether to follow the dicta. An additional layer of splits among the circuits resulted. Few legal scholars have made a foray into this morass.
Steinman wades into the morass and offers observations, criticism, and a proposed approach to summary judgment appeals. This thoughtful piece is recommended to trial and appellate advocates alike.
Saturday, April 12, 2014
Appellate advocates, and attorneys in general, need to be mindful that while it is important to know the jargon and "shop speak" relative to your client's industry, it might not be apropos to utilize this jargon in written and oral advocacy before the court. If jargon must be used, the attorney should define key terms and generally educate the judge about them.
The 7th Circuit Court in Consolidated Coal Co. v. Director, OWCP reminded counsel of this issue in its 2013 decision when it stated "we take this opportunity to remind lawyers that federal judges are generalists who are not necessarily familiar with the industry-specific jargon that lards the briefs in this case (732 F.3d 723). The judge went on to explain that lawyers should not assume they are knowledgeable about every area of law. Using phrases like "working at the tipple", "drove a gob truck", and "on the dragline" only serve to confuse the bench and make the issue(s) convoluted.
How many of you readers know what these terms mean? Unless you work in the coal industry you probably do not. The judge doesn't work in the coal industry either. Remember that you are the expert and you are expected to know the area of law better than the judge. The best advocate is usually the one who not only knows the law and the relevant industry but is also the best at explaining it in such a way that the adjudicator (be it the judge or jury) can understand.
Hat tip to attorney and appellate advocate Ryan Gilligan for sharing this case at a Black Lung CLE presentation today.
Wednesday, April 2, 2014
As readers have probably already determined, I have a particular interest in orality and oral argument. Two recent items caught my attention and seemed worth sharing. First, Listen Like a Lawyer, an excellent blog about a important skill that receives far too little attention, had a post Oral Argument as an Improvised Conversation. It takes the common bromide that advocates should think of oral argument as a conversation with the bench. That leads the author to two inquiries. First, "how can it be an authentic conversation when the power dynamics are so skewed toward the judges and when the attorney is ethically bound to advocate for the client?" This is worth exploring further. Second, if we accept that oral argument is a conversation, albeit one with skewed power dynamics, are there lessons oral advocates can learn from modern sales practices? The blog post and the monograph it examines certainly think so.
Second, PrawfsBlawg had an April 1 post, Orality in Litigation, suggesting The Reappearing Judge (forthcoming in Kansas Law Review) by Steve Gensler (Oklahoma) and U.S. District Judge Lee Rosenthal, which proposes greater contact between trial judges and attorneys. Having documented (and bemoaned) the decline of oral argument at the appellate level, I'm obviously a very receptive audience for these authors. Gensler and Rosenthal offer some excellent ideas about the benefits, obvious and subtle, of increased (or as they call it "reappearing") judicial involvement in real-time, face-to-face meetings with attorneys.
Tuesday, April 1, 2014
Last year Roe v. Wade celebrated her 40th Birthday. However, it seems the party is far from over. The big news last year involved Texas state senator and gubernatorial candidate Wendy Davis making national news during her 12 hour filibuster of HB2, a Texas law that many feared would limit access to abortions in the state. While her filibuster was ultimately unsuccessful in stopping passage of the bill, their was a brief moment of success when the district court held that parts of the bill were unconstitutional. However, on March 27, 2014, the 5th Circuit in Planned Parenthood et. al. v. Attorney General Abbott reversed and rendered judgment in favor of the State.
The debate is an interesting and important one.
One one side of the debate, the State is arguing that abortion doctors should have admitting privileges to a hospital in order to perform abortions. Their concern seems rooted in the health of the woman to ensure that she receives proper care in the instance where the procedure necessitates emergency medical attention. They argue that simply handing the patient off to the emergency room might lead to misdiagnosis, lack of knowledge on critical specifics about the patient, and the increased risk of problems surfacing.
On the other side of the debate, Planned Parenthood argues that requiring these doctors to have admitting privileges will create an undue burden on a woman's access to an abortion. This requirement essentially puts the fate of abortionists and their patients in the hands of hospitals, which will then have the power to control the industry and shrink it merely by denying admitting privileges to these abortionists. It seems that there might be some merit to the argument due to the fact that over one-third of the abortion clinics in the state have shut down since the implementation of the law.
Is this causing an undue burden?
The court saw this argument as premature, and not ripe for consideration at least until there is additional evidence that more abortionists are being denied admitting privileges, more clinics are closing doors, and as a result there is clear evidence that abortions are not easily attainable by women. Does this truly rise to the level of an unlawful undue burden? Given the split in the circuits that have looked at this issue in the last couple of years, it is likely that the case will be headed to the Supreme Court.
Sunday, March 23, 2014
The Sixth Circuit Appellate Blog has an interesting piece on when it's acceptable for advocates and appellate judges to go beyond the appellate record to do internet research (or even live reenactments). I think that all such outside references present a problem, but the issues are different depending on whether the advocates or court is doing the extra-record research. When the parties make extra-record references, those references are subject to the adversarial process. As the Sixth Circuit Appellate Blog post notes, a motion to strike can be considered and pursued or waived depending on the importance of the content and egregiousness of the extra-record reference. When the court does its own research, whether that's internet research or live reenactments, the action is not subject to the adversarial process. A party's only recourse is to seek hearing en banc or Supreme Court cert, both exceedingly rare audiences to obtain.
As outside research becomes easier, particularly through the internet, the boundaries of such research should be carefully considered and enforced.