Saturday, January 12, 2008
In the months ahead, law students across the country will venture into the world of appellate advocacy. Too often, they approach the briefs as they approach final exams--trying to spot every possible issue, demonstrating how thoroughly they know the law, as revealed by string citations to dozens of authorities, whether mandatory, relevant, or something else. What many do not learn in law school--or after law school--is the importance of appellate procedure. For example, appellate courts are constrained by the record. If an issue was not raised in the trial court, the appellate court will not review it. There is an important exception, however: issues regarding the court's appellate jurisdiction. The question of the jurisdiction of the court to consider a case may be raised at any point in the proceedings.
Prowling the Internet for a good example to share with my students, I ran across this 2004 response from Seventh Circuit judge Frank Easterbrook to one of the questions on Howard Bashman's 20 Questions for Appellate Judges site. Describing a rule that he always enforces, Judge Easterbrook wrote:
Determining whether jurisdiction exists should be the first order of business for every federal judge. Without jurisdiction, judges are just pundits. . . . Lawyers who ignore these requirements--or, worse, seek to pull a fast one--are imposing intolerably on their adversaries, on the courts, and on other litigants farther back in the queue for judicial attention.
Last year my clerks gave me a sketch, done by a cartoonist, that captures my attitude: a lawyer is disappearing through a trap door, which I opened by pushing a button on the bench. On his way down (way, way down; the Seventh Circuit's courtroom is on the 27th floor of the Dirksen Courthouse) the lawyer exclaims: "BUT, YOUR HONOR, JURISDICTION WASN'T RAISED BELOOOOOWWW...!" No, indeed; but lawyers who follow national and local Rules 28(a) will cover the subject on appeal. (I often use the metaphor when speaking to groups about appellate advocacy. The phrase "Your Honor, I wasn't trial counsel so I don't know what's in the record" also opens the trap door. A voice-activated switch should automate the process, but I can't persuade the General Services Administration to install a trap door. GSA expresses concern about disrupting ongoing trials if an appellate lawyer should pass through district courts on the way to the street.)
Friday, January 11, 2008
A blog named Legal Process Outsourcing has a guest post by a gentleman named Tariq Hafeez, describing services his company offers for those wishing to outsource legal research and writing (shortened by Hafeez to the acronym "LR&R," which reminds me of the old triumvirate of education: reading, 'riting, and 'rithmatic). Or perhaps those who employ the service intend to enjoy some rest and relaxation from the drudgery of research and drafting.
The post's title has another unusual use of English--unless "verbing" nouns has now become standardized--"Offshoring of Legal Research and Writing." Thanks to Law Librarian Blog for bringing this one to our attention.
Professor Orin Kerr at George Washington University has written an excellent article to include in whatever packet of reading material is snail-mailed or electronically posted for your incoming 1L's over the summer: How to Read a Legal Opinion, 11 Green Bag 2d 50 (Autumn 2007). The very clear, basic explanations of what is in a written judicial opinion might also be helpful for family, friends, or clients who are not lawyers.
hat tip: Professor James Duggan, Southern Illinois University
Thursday, January 10, 2008
As noted in an earlier post, the Arkansas Supreme Court on Thursday, January 10, 2008, issued a per curiam opinion concerning proposed amendments to several court rules. One of the proposals sought to change a provision in Arkansas Supreme Court Rule 5-2, which prohibits citation to unpublished opinions of the Arkansas Court of Appeals. (In contrast, under current rules, all signed opinions of the state's supreme court are published--and thus citable precedent.) I've received a number of e-mails requesting more information. Here it is.
The proposed amendment to the rule would have done a number of things:
- required the Reporter of Decisions to publish and maintain a "searchable library" on the court's website of all opinions issued after January 1, 2000;
- let both courts decide which opinions to publish (or not) in the state's official reporters;
- whether an opinion was published or not, would have treated it as "precedent [which] may be relied upon and cited by any party in any proceeding";
- mandated particular citation formatting for Arkansas opinions available only in online sources;
- changed Rule 4-2, which covers contents of the brief, to require Bluebook formatting for citations to authorities from other jurisdictions.
There are many things which could have been found objectionable in the proposal, with the most likely candidate the provision making unpublished opinions precedential. The per curiam opinion did not, however, state the reasons for the court's decision to "decline, by a vote of 4 to 3, to approve the [Arkansas Supreme Court Committee on Civil Practice's] proposed change to Rule 5-2."
If I discover more information about the court's decision to reject the amendment, I'll post it here.
Today the Arkansas Supreme Court published a per curiam opinion adopting and declining to adopt various proposed changes to the Arkansas court rules. Among the changes the court declined to adopt was a proposed amendment to Arkansas Supreme Court Rule 5-2, which would have, among other things*, mandated certain unique citation formatting for Arkansas citations and changed another court rule to require Bluebook citation format for citations to cases from other jurisdictions.
I wrote to the court during the comment period, expressing my concerns about the proposed requirement and urging the court to accept citations prepared in either Bluebook or ALWD Citation Manual format. This flexibility is important because students in the state's two law schools learn citation from both manuals (Bluebook in Fayetteville, ALWD in Little Rock). Moreover, when citations are rendered in practitioner format, it's pretty much impossible to tell which citation manual the writer followed.
Another person opposing the change was the court's Reporter of Decisions, one of my former students, who was in my legal writing class the year the first edition of the ALWD Citation Manual was published. As she wrote to the court, she still consults the ALWD Citation Manual to clean up citations in the opinions drafted by Arkansas's appellate courts before publication.
*As reported on this blog on May 30, 2007, the other things included a proposal to allow citing of unpublished opinions as precedent, probably a far more important aspect of the amendment, which I'll treat in a separate posting.
Wednesday, January 9, 2008
That is, resolutions about writing. :)
I often have my students write a list of resolutions for improving their writing after they get back their memo the first week of the spring semester. Resolutions help students to focus and gives us a chance to talk about ways to improve one's writing. Plus, having a plan gives them something to hold onto.
(See, e.g., writing columnist Stephen Wilbers)
What to say to your students?
1. Give them a context for assessing their grades. Do grades evaluate their worth as people? As students? As future lawyers?
2. Give them helpful anecdotes. I tell them about what I remember most clearly from my first year after grades came out: the change in speaking patterns in the classroom. Suddenly some spoke with a voice of authority, and others stopped speaking entirely. Alas, neither change enriched the classroom experience. Getting good grades doesn't make one's comments inherently more valuable, nor low grades, less.
3. Help them to plan. What resources are available, what should they change--or not, how should they be? Because regardless of their grades and their newfound confidence or disappointment, they are still 1-L's, they are still novices, and they are still ours to nurture.
Tuesday, January 8, 2008
I recently received a comp copy of a legal writing book from a publisher, which is not unusual for a legal writing professor. This one is called Writing a Legal Memo, by Professor John Bronsteen at Loyola University in Chicago. It's a practical guide on memo-writing, not unlike the nutshells or little-book-on-xyz type books I've seen over the years. What was unusual about this otherwise perfectly fine book was the odd, sinking sense of deja vu I got while skimming through it. I saw many more books like this when I first started teaching, circa 1990 -- how-to books focusing on the form of legal writing, while almost ignoring the process, doctrine, and analysis inherent in legal writing. But we've come a long way in the field of legal writing and now have many fine books that include instruction on all these aspects of legal writing. Suspicious, I googled Prof. Bronsteen (you can just click on his name above) and had my suspicions confirmed: he's had an elite education all around. And that's where my beef lies, not with him or his book or even the facts of his academic pedigree. It's the assumptions behind the legal education and early exposure to teaching that he received from some of the nations' top law schools that make me want to shout to those schools: "Wake up! You are a couple of decades behind the curve when it comes to teaching legal skills in general and legal writing in particular." Okay, I've gotten that off my chest. I feel better. And I truly hope I haven't offended the author; his book could be helpful for a 1L who has a memo due soon and needs a to-the-point, practical guide.
Like many of you, I'm not quite through grading the last batch of papers from the fall (although the end is in sight, particularly with grades being due on Monday). Yesterday's post about IM legalese got me thinking. I wonder whether the day will ever come that we'll just IM our grading comments to students. Here are some I fantasize about using:
LIU Look it up.
EHOS? Ever hear of spellcheck?
RUSURTC? Are you sure you read the case?
3CC I needed three cups of coffee to get through this paper.
L4YIAG Lucky for you it’s anonymous grading.
Monday, January 7, 2008
Among the many fine pieces chosen by Green Bag 2d as 2007's exemplary legal writing is a short piece by Roger W. Hughes, titled "Legalese in the Age of IM (Instant Messaging)." Originally published in the Texas Bar's Appellate Advocate newsletter, it is also reproduced here. It's worth a read. Among the suggested IM forms of legalese are these:
The article contains many other clever acronyms, but my favorites are probably those suggested for use by the courts (e.g., Aff'd ULBLoGOI = affirmed, you lost below get over it).
From a 7th Circuit opinion in Richman v. Sheahan, by Judge Richard Posner:
"This lawsuit, a simple tort case, is in its tenth year. It is high time the district judge, who has presided over it from the beginning, grabbed it by the neck, gave it a good shake, and placed it on the path to a speedy decision."
hat tip: Howard Bashman, How Appealing