Friday, November 4, 2016
Here are a handful of tidbits on appellate practice from around the web this past week. As always, if you see something during the week that you think we should be sure to include, feel free to send Dan a quick email atDReal@Creighton.edu or a message on Twitter (@Daniel_L_Real).
#AppellateTwitter Threads of the Week:
BobLoeb, of Orrick's Supreme Court and Appellate Litigation practice, started a thread on Twitter this week asking for training or advice tips that were useful to appellate practitioners when they first got started. Lots of great appellate advocates weighed in with some great tips.
While the #AppellateTwitter hashtag has really started to take off, one of its contributors, UNC Law Professor Gurvich, announced plans to start a #PracticeTuesday hashtag for weekly conversations about discussions related to best practices and tips for effective appellate practice. Readers of this blog will surely want to look for that hashtag and tune in.
Just before this past week (Friday, October 28), the Supreme Court announced that it would hear a challenge to a Virginia school district's anti-transgender restroom policy. The case, Gloucester County School Board v. G.G., arises out of a school district policy mandating that students use the restroom matching their biological sex. A transgender student sued, with the support of the ACLU. The trial court ruled in favor of the school district, but the 4th Circuit Court of Appeals ruled in the student's favor. More information available at the ACLU website and at SCOTUSBlog.
The Miami Herald reported this week on an interesting case where the United States and Venezuala are joining on the same side against a U.S. oil company. The case, Bolivarian Republic of Venezuala v. Helmerich & Payne International, was heard on Wednesday of this week. In the case, the U.S. Court of Appeals for the D.C. Circuit determined whether U.S. courts have jurisdiction over a lawsuit against a foreign government by looking only at whether the claim was insubstantial or frivolous. More at SCOTUSBlog.
Earlier this week, the Supreme Court rejected an appeal for Alabama death row inmate Bill Kuenzel. The case involved Kuenzel's claims that evidence was withheld by prosecutors, and gained some national attention when former Attorney General Edwin Meese weighed in and suggested that Kuenzel is "very likely actually innocent." The AP reported.
Finally, Billboard magazine reported this week that the Supreme Court has asked for the U.S. Solicitor General to provide the government's view about a nearly decade-old dispute between a mother who posted a 29-second video clip on YouTube of her toddler dancing to the Prince hit, "Let's Go Crazy." She received a takedown notice, and the mother sued and raised misrepresentation of copyright and fair use issues. Neither side was satisfied with the mixed opinion of the 9th Circuit Court of Appeals. The Supreme Court has not yet granted review in the case, but the request of the Solicitor General suggests there is a possibility that such a grant could be forthcoming.
Obama's Judicial Legacy:
Law.com ran a feature this past week, including lots of graphics, analyzing how President Obama's judicial appointments have shaped the federal courts and where changes have started to be evident. Charleston Law professor Jennifer North wrote about that topic right here at the Appellate Advocacy Blog earlier this week.
Friday, August 26, 2016
Should judges and lawyers quote profanity in their opinions, briefs, and oral arguments? Zoe Tillman tackled this touchy issue in a recent article on Law.com. The article, aptly entitled "In Quoting Profanity, Some Judges Give a F#%&. Others Don't," Tillman includes several quotes from federal judges on the use of profanity in judicial opinions. Well some try to avoid it at all costs, others don't mind including it, especially if it is relevant to the case.
Profanity has become increasingly prolific in court opinions. Since 2006, the word “fuck” was quoted in approximately 445 federal appeals court opinions, according to a search of court records. That’s nearly as many as the preceding four decades combined.
While judges may have the freedom to quote profanity in an opinion, what should an attorney do in writing a brief or in oral argument? With respect to oral argument, one option is to call the court in advance and notify the court that you plan on using profanity. According to First Circuit Judge Bruce Selya, who was interviewed for the article, his court always gives permission when attorneys ask.
With respect to briefs, I think that calling the court to ask how these issues have been handled in the past is always a good option. It also doesn't hurt to do your homework and know the tenure of the court that you will appear before. Finally, ask yourself if it is truly relevant to use the profanity in the brief.
In support of the latter argument [that the Patent & Trademark Office arbitrarily enforces offensive trademarks], the team provides extensive lists of wildly offensive trademarks that the PTO has issued. Certainly many of the issued trademarks mentioned in the brief are so salacious, crass, sexist and/or racist that we hesitate, on this family-friendly blog, to list them here. Indeed, this opening brief is notable in being one of the most [not inappropriately] profanity-laden court filings we have ever seen, and is worth a look for that reason alone.
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.
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.
Friday, May 16, 2014
Last week I posted about Savannah High School’s moot court reenactment of the Brown v. Board case. After participating in that event as a judge, I became curious about whether other high schools participated in appellate advocacy training. Of course, high school debate and mock trial are pretty common, but I had not yet seen any high school programs that focused on appellate advocacy.
In my research, I came to discover that American University Washington College of Law hosts an annual high school moot court competition. In preparation for competition, high school students study a problem comprised of judicial opinions, the party briefs, case law, and articles. Over the course of two days in the Spring, students present oral arguments on the issues presented by the moot court problem. The competition is open to all students, even those who are home schooled, and there is no requirement of prior experience with moot court or mock trial.
This type of program is positioned to impart a number of skills upon the students. Aside from the obvious ones like poise and public speaking, the studying of cases and defending a position through oral expository argument engages the brain in sophisticated problem-solving thought processes. Furthermore, asking young students to contemplate social justice issues and policy concerns in the context of legal precedent creates opportunities to ignite passion for the law and respect for its power.
I know many attorneys and academics seek opportunities to give back to their communities. Partnering with a high school to train students for appellate advocacy is an excellent way to give back by passing along attorney-specific knowledge to a younger generation.
Tuesday, May 6, 2014
I was recently asked to participate as a judge in a high school “moot trial” competition amongst three of our local high schools. I was intrigued by the notion of a high school “moot trial,” so I of course began asking questions about the event.
It turns out the students had been studying Brown v. Board of Education, and our local Board of Education wanted to host a capstone event to celebrate that study. What they really wanted was to host a debate on the issues in Brown, and I think they really meant moot court, not moot trial. While it was a good idea, the implementation became problematic as the organizers, who were not lawyers, could not understand the full vision or magnitude of the task assigned to the students. After some conversation with me and other professors, however, the vision narrowed to a more manageable scope for the students. In the end, the students basically reconstructed the oral arguments from Brown and delivered them in a moot court style.
I have to admit, I was skeptical going in about the ability of the students to grasp the issues without having had any formal guidance or legal training. The students, however, were nothing short of amazing. Don’t get me wrong—they aren’t ready to argue at the Supreme Court, but these students showed great potential as blossoming appellate advocates. They were poised, confident, thoughtful, and prepared. Until hearing them, I would have thought it unproductive to use Supreme Court precedent in this fashion at the high school level. Surely high schoolers are not open to learning about important historical developments in our law through the reading of the actual cases and briefs, right? Now, though, I see a number of opportunities for awakening social justice issues by engaging in brief studies of major Supreme Court decisions, and I think the context of the cases and briefs is exactly what the students need to stimulate a desire to learn and understand the issues of the day.
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
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.
Friday, March 21, 2014
The show must go on. This is the lesson that Illinois attorney Michael Joseph Finn learned. He was accused and later admitted to faking an illness in order to get out of doing an oral argument before the 7th Circuit Court of Appeals.
On the day in question, he alerted the court that he was sick and had vomited earlier that morning. He later reiterated the story once questioned by the ethics board before finally admitting that he was simply unprepared to present that day. This admission led to the Illinois Supreme Court issuing an order on March 14, 2014 suspending his license for 60 days. He also received a $1,000 fine and was ordered to pay restitution of $5,000 to the client.
The moral to the story: be prepared. If you are not prepared, timely request a continuance. If it is too late to make such a request, do not fake an illness to avoid your responsibility to your client. The better route is to pull and all-nighter preparing, show up and do your very best, and then vow that you will never put yourself in such a precarious situation again.
Hat tip to ABA Journal.
Friday, March 14, 2014
Uncertainty. Second-guessing. This week I have (once again) watched it unfold. While this situation involves a team preparing for a moot court competition next week, the scenario is certainly apropos to anyone in this preparation situation.
Best practices dictate that it is important to "vet" your argument in front of valued sources. By letting them hear your argument, it is surmised that you will get good feedback on what to include and remove from it - thus coming away with a pristine presentation worthy of Supreme Court Justice admiration. But sometimes I cannot help but wonder if this process does just as much harm as it does good.
Let's take my moot court team for example.
The team has just completed its 15th oral argument practice session. The first 8 or 9 sessions involved just the team working with me as coach. Together, we analyzed the issues and talked ad nauseam about appropriate responses to anticipated complex questions. This process seemed to have formulated what we thought was a solid argument with few, if any, holes. But then we invited in guest judges (a mixture of law professors, practitioners, and law students who have taken course(s) in the subject matter) to observe the practices, ask questions, and offer feedback.
Let the uncertainty begin.
I was told once that opinions are like a$$holes, everyone has one. This is true. It is especially true in the legal profession where we are paid to have, and share, our opinions. What happened was inevitable. The first group of judges didn't like the introductory remarks and thought that the argument on behalf of the plaintiffs was too over the top. It was too much to paint the corporation as a greedy overlord bent on destruction of the weak. Ok, this made some sense, so the advocates tweaked the argument.
In came the next set of judges. "Where is the passion?" They wanted to know. Their opinion was that the corporation's motive was suspect and the plaintiff needs to exploit this issue before the Court. "You mean paint them as the evil greedy corporation determined to screw the masses?" "Yes."
Now it is time to re-work the argument again. Or is it?
Last night, a few more practices in and only 5 days away from travelling to the competition, yet another guest judge offered suggests to "tweak" the argument. Of course, these suggestions ran counter to what prior judges mentioned. The problem at this point becomes whether it is wise to once again re-work the argument so close to "game time." The goal right now should be perfecting the current road-map, not mapping out a new path.
What are you supposed to do with advice?
It is time for me to share with the team another bit of wisdom shared with me long ago. If you are walking down the street and someone tells you that you have a tail, ignore the person. If a second person also says you have a tail, you should start to wonder. If a third person tells you that you have a tell, you should turn around and look because you probably do have a tail!
The moral to that story is to take advice with a grain of salt until it merits serious consideration. I do believe in getting feedback on oral argument before going "live." However, if one person disagrees with the chosen path, it might be best to chalk it up as a difference of opinion not warranting a change in the argument. But if more than one person doesn't like the approach, the advocate should be much more inclined to change it. After all, two or three brains are smarter than one, and the advocate should not let ego get in the way of excellent advocacy.
I hope the students preparing for oral argument hear and receive this message loud and clear.
Tuesday, February 25, 2014
A recent piece in the Legal Intelligencer by Howard Bashman examines the issue of what denial of oral argument means for the likelihood of a reversal. He's exactly right (the answer is "dismal" but not impossible) and for the right reasons (multifarious factors go into deciding an appeal).
I would add, though, that the main reason for being denied oral argument in the federal appellate courts is that the case has been tracked in a way that gets less process and less Article III judge attention overall.
The column is certainly worth a read.
Monday, February 17, 2014
Catching up on some blog reading over the weekend, I noticed that the Sixth Circuit Appellate Blog has a recent post on the issue, Practitioner Perspective: Oral Arguments. How timely. The post is an interview with Sixth Circuit Appellate Blog Editors, Pierre Bergeron and Phil Calabrese, and it covers several different issues related to oral arguments. The pair gives some great advice, particularly on preparation and directness. As this blog has previously noted, appellate courts expect a high level of preparation and expect you to respond to their questions and address their issues. Being unprepared or unresponsive is a recipe for disaster.
What interested me most, though, were the first couple paragraphs about the importance of oral argument. As I'm sure my last post made clear, I think it's very important, and at a systemic level, it bothers me that both the number and duration of oral argument has been diminshed. So I was interested in the practitioner's perspectives:
What is your view on the current importance of oral arguments?
Pierre: For the average appeal, oral arguments are less important today than they used to be. And you see courts cutting back on the number of oral arguments in recognition of that fact, instead relying on the briefs. But the flipside of courts cutting back on the number of oral arguments is that when you are scheduled for oral argument it suggests some significance. So you could also view oral arguments today as being more important than ever because if the court schedules your case for argument then it has probably decided that something in the oral argument could help its decision.
I agree. As a descriptive matter, fewer oral arguments means that orality is less important to appeals than briefing. But when you are granted oral argument, it takes on greater importance than in the average appeal. It signals that oral argument may allow one to influence the court.
Going beyond the descriptive, oral arguments are important for several reasons, including providing litigants: 1) engagement in the decisionmaking process; 2) an opportunity to be heard; 3) an opportunity to affect the outcome; and 4) the opportunity to affect the scope or breadth of the decision, even if the outcome is unchanged. There are also benefits to the judiciary and legal system such as greater legitimacy, transparency, and judicial engagement.
Check out the whole post, it's a quick read with some good practitioner insights.
Thursday, February 13, 2014
Just over a year ago, Steve Wisotsky and I published an article documenting, and to be frank, bemoaning, the decline of oral argument in the federal courts of appeals. The Decline of Oral Argument in the Federal Courts of Appeals: A Modest Proposal for Reform, 13 J. App. Prac. & Process 119 (2012). Oral argument is just one of a number casualties of the caseload crunch of the 1970s and 80s. Oral argument has gone from being routinely granted and thirty minutes per side to rarely granted and often fifteen minutes or fewer per side. This dramatic reduction coincides with an increase in early tracking of cases into those that receive more appellate process and those that recieve less. The decline oral argument also coincides with a significant decline in reversal rates across all categories of federal appeals. Sacrificing oral argument on the altar of efficiency both reveals and causes a significant diminishment of appellate values. Or so Steve and I argue.
So it was with great interest that I read Joshua Stein's article, Tentative Oral Opinions: Improving Oral Argument Without Spending a Dime, 14 J. App. Prac. & Process 159 (2013), in which he offers an idea for improving the quality of oral arguments. The abstract:
This article explores use of the tentative opinion, two types of which were pioneered by California appellate courts. In 1990, the Second Division of California’s Fourth District Court of Appeal (which sits in Riverside) began disseminating written draft opinions in advance of oral argument. The measure received acclaim from appellate advocates, but did not beget imitation by other courts. In late 2011, however, an appellate court in Los Angeles (the Eighth Division of the Second District) began issuing tentative opinions orally at the beginning of argument. This approach, referred to here as the “oral tentative,” represents an attractive alternative to the written version, which has failed to catch on in other courts.
I was only passingly familiar with this practice, so it was interesting to read about its use in two districts within the California appellate system. I'm not persuaded that it could, or should, be adopted more widely, though. Issuing a tentative opinion a week or so before the oral argument offers advocates the opportunity to tailor their oral arguments to the judge's concerns at cost of requiring courts to review the case in advance and write a tentative opinion. I understand how this benefits the advocate, and perhaps improves the quality of the oral argument, but it does so by shifting the cost of assessing the most important and persuasive arguments to the courts.
An oral tentative opinion, offered immediately prior to the argument, comes too late to offer advocates an ability to focus their oral arguments. I fail to see how a tentative opinion offered in the moments prior to the argument offers any significant advantage over a judge asking questions or even offering such opinions during argument. The only one that comes to mind is that the oral tentative time doesn't come out of the advocates' very limited oral argument time.
I come away thinking that these practices are a result of the California system's requirement that appeals be resolved within ninety days of submission. This "ninety-day rule" forces judges to issue opinions close on the heels of oral argument. Because the system forces judges to prepare a nearly final draft prior to the oral argument, there is little additional cost to distributing that in some form to the advocates. But for any system without such a built-in requirement, I'm skeptical of its utility or desirability. Still, I recommend Stein's article and invite your opinions on the practice.
February 13, 2014 in Appellate Advocacy, Appellate Court Reform, Appellate Justice, Appellate Practice, Appellate Procedure, Federal Appeals Courts, Oral Argument, State Appeals Courts | Permalink | Comments (1)
Sunday, January 26, 2014
This is when it gets fun...and intense. As soon as the brief has been submitted to the competition chair, most teams immediately begin practicing their oral argument. The practices are usually conducted daily (sometimes even twice a day) for the entire 2-3 week period leading up to the competition travel date. This process usually begins with committing key portions of the brief submitted to memory, and then repeatedly tweaking it through Q&A sessions with the coach(es) until the argument is as close to perfect as it is going to get, and also far enough away from the initial draft that it will not be delivered in a robotic and memorized fashion.
The process is repeated as the advocates also have to learn the off-brief (or opposite) argument as well, due to the fact that competitions require the advocates to argue on both sides of the issue during the preliminary rounds. While some students cringe at the thought of this because they have usually grown to appreciate the side of the argument that corresponds with the brief they submitted, I see this as one of the most invaluable parts of the moot court experience. After all, once they leave the "moot" world and enter into practice, a lawyer should not have tunnel vision and only analyze and dissect the argument in a light favorable to his/her client. A good lawyer spends almost the equivalent amount of time assessing the opposing argument. This exercise helps the good lawyer deal with the holes in his/her case more effectively when dealing with motion practice and oral advocacy before the court.
Focusing back on the issue presented in this blog post, many schools prepare students for oral argument by using a faculty coach who leads the students through the entire practice process, perhaps bringing in other faculty, students, alums and other practitioners to periodically play the role of guest judge. While conventional wisdom suggests that the students should practice before as many practitioners and professors versed in the relevant area of law as much as possible, it is equally important to have the students practice a few times before novice judges unfamiliar with the law.
Don't Forget the Simple Concepts
For example, one year I spent a lot of time getting my students up-to-speed on the law in preparation for the Wagner labor and employment law competition. While I had them prepared to deal with virtually any question asked, I had not stopped to think about the simple questions. During the competition, one of the judges asked one of my students what the plaintiff/petitioner wanted. The student recognized this was a remedies question, but since the fact-pattern didn't provide a copy of the complaint or discuss what the terminated employee sought for relief, I neglected to go over such a simple premise with the students. Of course, the student's lack of experience working for corporations also meant it was not possible to easily to come up with an answer off-the-cuff. But the student tried, responding that the client sought reinstatement. The client "might" have wanted this, but what the student did not think about and the judge further inquired about (with a less than adequate response), was that important pot of gold called back wages and perhaps front pay. The money didn't cross the student's mind, only the loss of the job - because the job loss - and legal issues surrounding it - was all we focused on in practice. It was my fault. I was thinking too high-level in practices and didn't bring in the novice judges to ask the simple yet important questions that a novice judge at the competition might want to know.
On a final note, one thing that I have been seeing more of is students totally committing their arguments to memory. Indeed, at the competition they approach the podium with no folder containing the road map and a cheat-sheet to help them if they get caught with a question they were not 100% prepared to answer. In a competition format, this is very impressive to the judges when the student successfully responds to all the questions without looking down once. While this certainly is better than the student that takes too much material to the podium and mostly reads to the judges between questions, I wonder if this is preparing them for the realities of practice. While I see this memorization technique yearly at competitions, I have not seen this the non-moot court world. Even skilled advocates who know the argument inside and out still approach the podium with their folder of materials and are unafraid to periodically look down to find a key point that needs stressed before the court. I have not required this level of memorization of my students, thinking it is better to make sure they know 90+% of it (and certainly have the introduction and conclusion committed to memory, because it can be fatal when an advocate does not start or finish strong), and they can save the other 10% of their brain focusing on other law school courses during the moot court practice daily grind. However, sometimes I wonder if I should join the world of rote memorization. After all, while I do not think real judges expect this (but check out this post from Prof. Cleveland on reading to the court) , it seems to really impress moot court judges.
Wednesday, January 22, 2014
Which person is best-suited to handle an appeal, the original trial attorney or a specially-retained appellate attorney? Arguments can certainly be made for either.
The obvious benefit for the trial attorney handling the appeal is his/her intimate familiarity with the client and the facts of the case. having likely been involved with the case for many months, if not years, this person is most likely to know the facts better than anyone besides the client. This person will also have a good understanding regarding how those facts intertwine with the prevailing law.
However, there is something to be said about having an appellate attorney handle the case. After all, this person is intimately familiar with the procedural nuances of appellate advocacy and is more likely to develop a better brief and present an oral argument in the style and fashion that the bench desires. Indeed, this attorney likely knows the judges and their idiosyncrasies very well given his/her repeated appearances before the court. This familiarity may help the attorney get the benefit of the doubt in close-call cases. Credibility before the court can be very persuasive.
During my days practicing before the court, both the defense firm I worked for and also my sole practice I started shortly thereafter utilized the same attorney for both trial and appellate work. While I am not sure why the defense firm decided this was the best route, I did it primarily because I tended to believe I would be competent enough to handle the appeals work as well. Not wanting to pay or share proceeds with an appellate attorney probably played a role in my decision-making as well. I am somewhat of a cheapskate.
Overtime, I have started to change my thinking, and after I started teaching appellate advocacy I developed a greater appreciation for the specialization needed to be effective at appellate advocacy. While a trial attorney certainly "could" handle the appeal, a competent appellate attorney may be a better option. Not only does it free up the trial attorney to work on other matters, it also alleviates the urge to simple reformat the motion(s) filed before the trial court and submit a substantially similar document on appeal (of course, renaming it a "brief"). Also, an appellate attorney can look at the facts with fresh eyes and may see a flawed approach or develop an alternative strategy to make the argument more persuasive.
To see more analysis on the topic, check out the California Blog of Appeal.