Wednesday, September 24, 2014
My experience with Nevada courts is limited to involvement with some cert petitions from the Nevada Supreme Court to the U.S. Supreme Court, but my sense is that the Nevada Supreme Court is overworked and could use the relief and reflection that an intermediate appellate court could provide. I'd be interested in opinions of Nevada appellate attorneys.
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)
Monday, September 1, 2014
Professor Coleen Barger was recently named as the Ben J. Altheimer Distinguished Professor of Law at the University of Arkansas at Little Rock William H. Bowen School of Law. Readers of this blog may know Colleen as a founding member of the peer-edited Journal of Appellate Practice and Process. Colleen has served continuously as the Journal’s Developments Editor since its inaugural volume in 1998.
Coleen is also the author of the newly revised ALWD Guide to Legal Citation (5th ed. 2014). She has served the legal writing community in many other capacities over the last two decades, providing hard work, leadership, and support. Colleagues at UALR report that she has repeatedly won school excellence awards for both her teaching and service.
Congratulations on the much deserved honor, Colleen!
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)
Monday, July 14, 2014
It should, according to lawyers for detainees at Guantanamo, in arguing motions last week filed with the D.C. District Court on behalf of two hunger-striking detainees in the wake of Burwell v. Hobby Lobby Stores, Inc. The motions seek rulings that the detainees are protected "person[s]" within the meaning of the Religious Freedom Restoration Act (RFRA). In particular, the motions seek to prevent the Government from depriving the detainees of the right to participate in communal prayers during the Islamic holy month of Ramadan which began on June 28.
In Rasul v. Myers, 563 F.3d 527 (D.C. Cir. 2009), the D.C. Circuit Court of Appeals held that Guantanamo detainees do not have religious free exercise rights as protected "person[s]" because, in the Court's view, RFRA does not apply to non-resident aliens. The D.C. Circuit upheld Rasul as law of the circuit in Aamer v. Obama, 742 F.3d 1023 (D.C. Cir. 2014). Hobby Lobby changes all that, the detainees' lawyers argue, because the position taken by the D.C. Circuit in Rasul and Aamer is inconsistent with granting religious free exercise rights to for-profit corporations such as Hobby Lobby.
In support of the motions, a defense lawyer for the detainees argued that "[i]t is truly grotesque for the Obama folks to insist that a for-profit corporation is a person, but a flesh-and-blood human being at Guantanamo Bay is not."
In her already-famous dissent in Hobby Lobby, Justice Ginsburg warned that "approving some religious claims while deeming others unworthy of accommodation could be 'perceived as favoring one religion over another,'" (citation omitted), and that the Court majority, by doing so, had "ventured into a minefield." Stay tuned.
Saturday, July 12, 2014
One of the rookie mistakes every lawyer makes at some point is confusing persuasion for argument. Merriam-Webster says that argument is “a statement or series of statements for or against something; a discussion in which people express different opinions about something; an angry disagreement.” Persuasion is defined as “the act of causing people to do or believe something; the act or activity of persuading people.” The latter implies some knowledge on the part of the persuader about what matters to or motivates the audience, whereas the former implies an aggressive imposition of ideas without regard for the audience. Here are five concrete tips for avoiding mere argument.
- LISTEN. By listening, an advocate learns what matters to its audience. Before an oral argument, the judges often have not yet made up their minds. They are primed to be persuaded, and if the advocate tunes into the questions appropriately, the advocate can learn valuable information about the judges’ concerns. Similarly, when it comes to brief writing, advocates should listen to the arguments of their opponents so that they can adequately address the competing concerns in the case and explain why one side nevertheless prevails.
- ELIMINATE EXAGGERATORS. Words like blatant, clearly, and obviously can be tempting to throw into a brief, but they offer little in the way of substance. Seriously, if a resolution were so clear, would the case have even gotten this far? Focus instead on the substance of the argument. If the issue is in fact so clear, the judges will see it on their own. It is the advocate’s job to make the issue seem clear cut, but slapping the word “clearly” on the argument is not likely to be taken at face value by a learned judge who is investing hours in the resolution of a case. There needs to be meat there to back it up.
- TAME EMOTIONS. It is hard not to get emotional about our cases. First, we get to know the ins and outs of the cases, and we often develop intense relationships with our clients. They are often in desperate situations and the lawyer might be their only hope for resolution of the conflict. Second, when we invest time in developing an argument, writing a brief, and preparing for oral argument, it can feel like wasted time when we lose. Pushing anger, disappointment, frustration, sadness, and other emotions aside can be challenging, but it is essential. An overly emotional response makes an attorney seem inappropriately biased, and the judge is less likely to trust that the attorney has considered all sides of the issues and is advancing a sound and thoroughly researched argument. On a related note, avoid overt appeals to the judges’ emotions. Judges pride themselves on making logical decisions separate from their personal emotions and feelings, so an overt appeal to the judge’s emotions can not only irritate the judge, it is likely to also insult the judge.
- AVOID AD HOMINEM ATTACKS. Incorporating a personal attack against opposing counsel is a sure-fire way to make a judge think that no sound legal theory supports your position. Let the law and facts speak for themselves by telling a compelling story about your client and showing the court how the law supports a resolution in favor of your client.
- DON’T TALK BACK. At all costs, avoid the phrase, “But your Honor!” Also think long and hard before filing a motion for rehearing or a motion for reconsideration. Unless there is a legal basis for filing such a motion (like there is precedent the court did not have before it or new facts have come to light), they are usually a waste of time. Handling these types of motions drains the court’s time and resources, and quite often these motions are unwarranted because there is no legal basis to justify the court changing its mind. There is value in respecting the finality of judgment in a court. If you disagree with the court’s ruling, appeal it to a higher court, but don’t argue about whether the decision was right by filing frivolous motions for rehearing and reconsideration.
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.
Sunday, July 6, 2014
Today's post is a guest piece by Daniel L. Real, a career judicial staff attorney for the Nebraska Court of Appeals since 1995 and a legal research and writing professor at Creighton University since 1999. Dan's prior work is on the issues of appellate practice and judicial independence. He shares his thoughts with us on the U.S. Supreme Court's recent decision in Wheaton College v. Burwell:
There has been plenty of quick commentary on the U.S. Supreme Court's decision from last week in Burwell v. Hobby Lobby Stores, Inc., 573 U.S. ___ (2014). You can form your own opinions on whether the decision was correct, where you stand on the subjects of the Affordable Care Act (ACA) and religious freedom. I don't have an interest in discussing those specific topics here. Something related, however, did catch my eye this weekend.
I suspect that there will be quite a bit of discussion in the next week or so about the Supreme Court's last-minute ruling on the application for injunction filed by Wheaton College in Wheaton College v. Burwell, but for now there has not been a particularly wide-ranging discussion of it. Perhaps the lateness of the ruling on July 3, coupled with the July 4 holiday, caught some off guard. Nonetheless, it was a noteworthy ruling that is worth looking at and considering.
In Hobby Lobby, the Court held that certain closely-held corporations could assert the same religious freedoms as individuals and addressed whether certain provisions of the ACA requiring employers to provide health-insurance coverage for specific methods of contraception that violated the sincerely held religious beliefs of the companies' owners were in violation of the Religious Freedom Restoration Act (RFRA). The Court held ACA provisions concerning four specific contraception methods imposed a substantial burden on the religious freedom of the closely-held corporations. Under the RFRA, such a substantial burden would be permissible only if the government could show a compelling state interest and if the government's action constitutes the least restrictive means of serving that compelling interest.
The Court assumed, without specifically deciding, that the government had a compelling interest in guaranteeing cost-free access to the particular contraceptive methods. The Court held, however, in a 5-4 decision, that the challenged ACA provisions did not constitute the least restrictive means of serving that interest and held that the ACA provisions violated the RFRA with respect to the closely-held corporations.
In explaining why the ACA provisions did not constitute the least restrictive means, the Court had to make a decision that often faces appellate courts and had to discern how much explanation to provide to support the Court's conclusion. In writing for the majority, Justice Alito noted at least two "less restrictive" ways for the government to achieve its compelling ends. First, the Court noted that "[t]he most straightforward way . . . would be for the Government to assume the cost of providing the four contraceptives at issue to any women who are unable to obtain them under their health-insurance policies due to their employers' religious objections." Burwell v. Hobby Lobby Stores, Inc., 573 U.S. ____, *41 (2014).
After analyzing potential objections to the theoretically viable creation of a new government-funded program to provide the contraceptives, however, the Court concluded that it "need not rely on the option" to conclude that the ACA provisions were not the least restrictive alternative. The Court noted that "[Health and Human Services (HHS)] itself has demonstrated that it has at its disposal an approach that is less restrictive than requiring employers to fund contraceptive methods that violate their religious beliefs." Id. at *43. The Court noted that "HHS has already established an accommodation for nonprofit organizations with religious objections," wherein the organization can self-certify that it opposes providing insurance coverage for the particular contraceptive services and require the organization’s insurance issuer or third-party administrator to provide coverage for the contraceptive services without any cost-sharing by the objecting organization. Id.
The Court specifically cautioned that it was not deciding whether this option "complies with RFRA for purposes of all religious claims," but very specifically held that "[a]t a minimum . . . it does not impinge on the plaintiffs' religious belief that providing insurance coverage for the contraceptives at issue here violates their religion." Id. at *44. In footnote 40, the Court even responded to the dissenting opinion's characterization of the Court as being noncommittal about the viability of this alternative and the Court commented that "[T]he less restrictive approach we describe accommodates the religious beliefs asserted in these cases." Id.
There has been much discussion about the Hobby Lobby decision, its implications, whether it is the start to a "slippery slope," how it might impact the ACA as a whole. But what has potentially gone largely unnoticed to this point is what happened just three days later, when the Court issued its ruling on Wheaton College's application for injunction in Wheaton College v. Burwell, 573 U.S. ___ (2014).
The "less-restrictive" alternative described by the Court in Hobby Lobby allows groups with a religious objection to the ACA mandates to self-certify a religious objection and pass the obligation to pay for coverage for the contraceptives to the insurer or third-party administrator. To obtain this accommodation, however, groups are required to fill out a federal form to register their objections. As the Washington Post noted in a July 3 article (http://www.washingtonpost.com/politics/courts_law/2014/07/03/622f7b12-02f8-11e4-8572-4b1b969b6322_story.html?hpid=z1), a number of colleges, including Wheaton, objected to the requirement to complete the form. The colleges alleged that the act of signing the form and authorizing third parties to provide the contraceptive coverage made the colleges complicit in the action of providing the contraceptives and that even that offended the college's religious beliefs.
In its ruling on Wheaton's application for injunction, the Court held that Wheaton need not fill out the previously required form and, instead, need only notify the government "that it meets the requirements for exemption from the contraceptive coverage requirement on religious grounds." Wheaton v. Burwell, 573 U.S. ___, *2 (2014). The Court noted that "[n]othing . . . precludes the Government from relying on this notice, to the extent it considers it necessary, to facilitate the provision of full contraceptive coverage under the Act." Id.
Justice Sotomayor authored a dissent to this ruling, in which Justices Ginsburg and Kagan joined. The dissent noted that earlier in the week the Court had described the very accommodation that Wheaton was challenging as being an alternative that was less-restrictive than the ACA provisions in achieving the government's compelling interests. The dissent characterized the ruling in Wheaton as "evinc[ing] disregard for even the newest of [the] Court's precedents and undermin[ing] confidence in the institution." Id. at *4.
The apparent conflict between what the Court suggested in Hobby Lobby—that the accommodation was a legitimate and permissible means for the government to achieve its compelling interests that demonstrated that the ACA provisions were not the least-restrictive alternative—and what the Court suggested three days later in Wheaton—that the accommodation itself imposes a sufficient burden on religious freedom to merit injunctive relief—has been discussed briefly in a few articles, and they are a good starting point if you're interested in a more thorough look at the Wheaton dissent.
Dahlia Lithwick and Sonja West addressed it for Slate in an article titled, "Quick Change Justice." (http://www.slate.com/articles/news_and_politics/jurisprudence/2014/07/wheaton_college_injunction_the_supreme_court_just_sneakily_reversed_itself.html). Robert Barnes addressed it for the Washington Post in an article titled, "Supreme Court Sides with Christian College in Birth Control Case." (http://www.washingtonpost.com/politics/courts_law/2014/07/03/622f7b12-02f8-11e4-8572-4b1b969b6322_story.html?hpid=z1). Adam Liptik addressed it for the New York Times in an article titled, "Birth Control Order Deepens Divide Among Justices." (http://www.nytimes.com/2014/07/04/us/politics/supreme-court-order-suspends-contraception-rule-for-christian-college.html?_r=1). And Daniel Fisher addressed it for Forbes in an article titled, “Hobby Lobby Decision Begins to Contort Under its Own Logic.” http://www.forbes.com/sites/danielfisher/2014/07/04/hobby-lobby-decision-begins-to-contort-under-its-own-logic/).
While the Hobby Lobby decision will be the subject of much commentary, the very quick development of a potentially contrary ruling of the Court later the same week is somewhat remarkable. As is the lengthy dissent signed by the Court's three female justices on an unsigned order in Wheaton. It's a safe bet that the discussion and debate is only beginning.
Thursday, June 26, 2014
The briefs in this week’s landmark Riley v. California cellphone search decision showcase the choices lawyers must make when framing the issues. They also demonstrate how injecting some factual context into an issue statement can dramatically increase its persuasive value.
In the Riley cert petition, defendant’s counsel chose a classic “whether” statement:
"Whether or under what circumstances the Fourth Amendment permits police officers to conduct a warrantless search of the digital contents of an individual’s cell phone seized from the person at the time of arrest."
It’s a good, clear issue statement that partially meets audience needs by identifying what legal question the Court will resolve if it accepts the case. It’s also the type of issue statement most of us were taught to write in law school (if we were taught), and it is particularly appropriate for issues involving pure questions of law. Like most legal questions, however, the cellphone cases involve mixed questions of law and fact—even just the details about how smartphones work are important facts that played heavily into the reasoning in Riley and Wurie. Looking at the facts in Riley’s cert petition, the events highlighted most prominently in the statement of facts were:
- "The phone was a Samsung Instinct M800 “smartphone” – a touch-screen device designed to compete with Apple’s iPhone, capable of accessing the internet, capturing photos and videos, and storing both voice and text messages, among other functions."
- "First, Officer Dunnigan scrolled through the phone’s contents at the scene. He noticed that some words (apparently in text messages and the phone’s contacts list) normally beginning with the letter 'K' were preceded by the letter 'C.' Officer Dunnigan believed that the 'CK' prefix referred to 'Crip Killers,' a slang term for members of a criminal gang known as the 'Bloods.'"
- "The second search of petitioner’s phone took place hours later at the police station. After conducting an interrogation in which petitioner was nonresponsive, Detective Duane Malinowski, a detective specializing in gang investigations, went through petitioner’s cell phone. The detective searched through “a lot of stuff” on the phone “looking for evidence.” Detective Malinowski found several photographs and videos that suggested petitioner was a member of a gang. Pet. App. 4a, 6a-7a. He also found a photo of petitioner with another person posing in front of a red Oldsmobile that the police suspected had been involved in a prior shooting."
(Emphasis added.) By adding a couple of sentences containing the highlighted information, the need for a warrant becomes plain. For those still skeptical about the power of adding facts to issue statements, I recommend looking at the question presented in the government’s response brief:
"After petitioner’s lawful arrest for possession of loaded firearms, officers twice examined the contents of his cell phone, on his person at the time of his arrest, for evidence linking him to the firearms. The first examination, a cursory one of text entries, occurred at the scene of the arrest; the second, which included viewing photographs and videos, occurred a couple of hours later at the police station. The question presented is: Whether the officers’ searches of the cell phone seized incident to petitioner’s arrest were lawful under the Fourth Amendment."
Notice how the facts frame the issue here: “officers twice examined the contents of his cell phone . . . for evidence linking him to the firearms,” and the first search was “cursory.” It’s clear from Riley’s facts that the officers were searching much more generally—and thoroughly—for evidence of gang activity, not only for evidence related to “the [two] firearms” found in his car. But the Court has to read all the way down to the statement of facts to see that discrepancy.
In a less prominent case with a less pressing social issue, the government might have made a much stronger first impression on the Court, not only in the final decision, but also in whether to accept the case for review in the first place.
Thursday, June 12, 2014
Following the Adam Liptak piece on Professor Richard Lazarus' new study, that I mentioned in my last post, a clever coder has developed a way to monitor, identify, and publicize any changes to U.S. Supreme Cout opinions. David Zvenyach, general counsel to the Council of the District of Columbia, has launched @SCOTUS_servo, to help identify any changes. The Twitter feed reports the result of comparison of the prior verison of court opinions to those now appearing. The code that does this, a crawler, checks every five minutes for a change and makes an automated post to the Twitter account reporting any change that has been made. Zvenyach then makes a manual tweet detailing and highlighting the actual change.
This is a useful service for forcing transparency regardless of how important any individual change might be to the followers of@SCOTUS_servo. More details available at this Gigaom post by Jeff John Roberts.