Appellate Advocacy Blog

Editor: Tessa L. Dysart
The University of Arizona
James E. Rogers College of Law

Monday, December 30, 2013

Subheaders for the Facts Section

Following up on Tonya's recent post re: organizing the statement of the case, I thought I'd share some additional sources and thoughts on using subheaders for breaking up the facts section. 

Two of the best sources I've seen on this topic are Ross Guberman's Point Made and Noah Messing's The Art of Advocacy.  Guberman says that "[n]early all the top advocates break up their fact sections through headings."  Then he uses one of the DOJ's briefs in United States v. (Martha) Stewart to illustrate how it can be done:

  1. "Get Martha on the Phone"
  2. "Peter Bacanovic Thinks ImClone is Going to Start Trading Downward"
  3. Stewart Sells Her ImClone Stock
  4. "Something is Going on With ImClone and Martha Stewart Wants to Know What"
  5. Stewart's Conversation With Mariana Pasternak
  6. The Investigation Begins
  7. The Tax Loss Selling Cover Story
  8. January 3, 2002: Faneuil Lies to Investigators
  9. Bacanovic Changes the Cover Story
  10. January 7, 2002: Bacanovic Lies to Investigators
  11. Stewart Alerts Bacanovic's Telephone Message
  12. February 4, 2002: Stewart Lies to Investigators
  13. February 13, 2002: Bacanovic Lies in Sworn Testimony
  14. March 7, 2002: Faneuil Lies to Investigators Again
  15. April 10, 2002: Stewart Lies to Investigators Again
  16. Stewart's False Public Statements
  17. Faneuil Reveals the Truth
  18. Bacanovic's Defense Case
  19. Stewart's Defense Case
  20. The Government's Rebuttal Case
  21. Judgment of Acquital on Count Nine
  22. The Verdict

These headings (alone) tell the Government's story.  And notice how they aren't neutral; they're argumentative.  Nothing wrong with that.  Messing, for example, says that "an argumentative heading tells readers exactly what to expect."  

Also, notice how all of the verbs are in present tense.  Guberman says it's a good idea to "strive for novelistic effect" in the facts section and that using present tense verbs in the headings is "another way to give your headings a novelistic feel." 

If you want to see more examples of how subheadings can help in the facts section, take a look at Point Made and The Art of Advocacy.  Both books are worth having on your shelf. 

December 30, 2013 | Permalink | Comments (1)

Thursday, December 26, 2013

Posner on Appellate Motions to Seal Settlement Agreements

Today, Seventh Circuit Judge Richard A. Posner denied a pair of motions seeking to seal settlement agreements. It is rare for a decision on an appellate motion to get much attention, but this one is worth a read. It discusses the general premise of open proceedings and the theoretical arguments for and against sealing settlement agreements. Ultimately though, Judge Posner ruled against sealing either settlement agreement. Locked FileIn one case, Goesel v. Boley International Ltd., Judge Posner found that the issue on appeal, modification of the settlement agreement by the district judge, would be obscured by sealing the agreement and, morever, "no good reason—in fact no reason at all—has been given for thinking that concealment of the information would serve some social purpose." In the second case, Massuda v. Panda Express, Inc., the underlying settlement was so heavily redacted, even the in the record below, that is seems the district judge wasn't privy the details. Judge Posner expressed considerable confusion about the appellees' half-hearted attempt to conceal a document already devoid of detail, particularly given that it was publicly filed as part of their appendix.

At the trial level, parties can privately resolve civil litigation by settlement agreement and stipulated dismissal without making the details part of the court file. However, once a settlement agreement is made part of the public record, parties must overcome the presumption of public access to have or keep it sealed. While this does not seem to be a terribly strong presumption, Judge Posner's decision in the Goesel and Massuda cases serves to remind advocates that half-hearted, unsupported, or self-defeating requests will not suffice.

Hat tip: How Appealing / Image: Laurel Russwurm

December 26, 2013 | Permalink | Comments (0)

Tuesday, December 24, 2013

Law Professor Wins Case For Release Of Bar Exam Data

A battle that seems to have lasted the past decade will continue well into the next one.  in 2004, UCLA Law Professor Richard Sander published a controversial article in the Stanford Law Review surmising that affirmative action was harmful to minority law school applicants.  Based upon the data he reviewed at the time, he concluded that minority students would be best served by eliminating preferential admission standards.  His findings were criticized as being both not substantiated by adequate data collection and problematic to the growth of minority lawyers in a post-civil rights era.  

In order to get the vast data necessary to support his hypothesis, in 2008 Professor Sander requested data from the California State Bar, which has data on race, passing statistics, and law school grade averages of the approximate 15,000 annual exam takers.  When the bar association refused to release the records, a lawsuit followed.

On December 19, 2013, the California Supreme Court ruled that the records must be released as long as the identity of the examinees remains confidential.  It seems that Professor Sander has agreed to cover the costs associated with redacting names.

Affirmative action continues to be a hotly contested issue.  It is hard to say whether the release of this data will be a good or bad thing for the future growth and development of minority lawyers.  What it will do is provide Professor Sander, and I assume others with this topic on their scholarly agenda, with much greater data to analyze.  I am certain we will see an updated article from him on the topic in the coming years.  The interesting thing about affirmative action is that we will never know whether it is still needed until it no longer exists.  The problem:  if affirmative action is ended and we later find that it was essential and is still necessary, what is the probability of affirmative action being reinstated?  Highly unlikely.

Hat tip to ABA Journal.

December 24, 2013 in Current Affairs | Permalink | Comments (0)

Thursday, December 19, 2013

Organizing the New Statement of the Case

Recently, several outlets reported on the new FRAP 28 and its consolidation of the facts and procedural history into a single statement of the case. For cases with a mixture of procedural and substantive issues on appeal, the unified statement of the case has the potential to get pretty messy. To keep information easy for the court to locate, consider using subheaders to topically divide the material. For a helpful primer on subheaders for fact statements, see Kenneth F. Oettle's "Subheadings in the Statement of Facts Guide and Persuade" from the New Jersey Law Journal.

And finally, a word of caution: don't forget to check your local rules to see how your home circuit may have added its own requirements to the new statement of the case format. 

Hat tips: How Appealing; Sixth Circuit Blog

December 19, 2013 | Permalink | Comments (0)

The Impact Of Arbitration On Appellate Advocacy

Yesterday, Professor Cleveland posted about a 9th Circuit ruling which underscored the premise that freedom of contract does not extend to reducing or eliminating federal court jurisdiction to review arbitral awards pursuant to FAA § 10.  Last week, our friends at ADR Prof Blog posted about how mandatory arbitration seems to amount to claim suppression.  This is especially true when one considers consumer arbitration of relatively nominal dollar value claims.  Because 90% of arbitration clauses limit or outright prohibit class arbitration, most people will simply walk away from the claim rather than deal with the process.  Claim suppression realized. 

While I commend the 9th Circuit for disallowing parties to contractually reduce a court's ability to review an arbitral award, I believe that the basis for vacatur under FAA § 10 (arbitrator corruption, fraud, misconduct, exceeding or imperfectly executing powers) is too limiting in itself.  Essentially, a party needs to show that the arbitrator "manifestly disregarded the law" in order to succeed in getting an award vacated (note that some consider this a disfavored common law reason for vacating an award, but the Supreme Court in Hall Street did not specifically eviscerate this as a reason and, as such, it is still used by some circuits).

Manifest disregard of the law - as well the reasoning articulated in § 10 - is tantamount to an abuse of discretion standard of review.  When appellate courts are reviewing an award under this standard of review, the court is not to substitute its opinion for that of the decision-maker and the award is to be upheld absent the ability to show that no reasonable person would have reached such a conclusion.  Obviously, this is a huge and almost impossible burden for an appellant to meet.  

As it relates to arbitration, having such a limiting standard of review is exacerbated by the fact that arbitrators are encouraged by the American Arbitration Association (AAA) not to provide written opinions in order to prevent the possibility that the award will be overturned on appeal.  This disadvantages appellants in an appeal from an arbitral award much greater than appellants from a trial/district court decision, the latter generally being the recipients of both a reasoned opinion from the lower court judge and a de novo standard of review on appeal.

During the golden days when arbitration was a contracted process agreed upon by businesses to resolve commercial disputes, the stringent standard of review made sense.  This fits the mold of freedom of contract, especially when two parties with assumedly equal bargaining power agreed to the terms of the contract.  But now that arbitration has encroached upon the world of consumer and employee contracts, involving statutory rights, waivers of class actions, and seemingly impairing the rights of individuals with little to no bargaining power, perhaps the standard of review should be revisited.  

The Arbitration Fairness Act of 2011 (reintroduced in May 2013), does not appear to be headed for enactment anytime soon.  This Act would invalidate pre-dispute arbitration agreements  involving consumer and employee matters.  A less radical approach might be to simply require that the appellate review of these disputes must be de novo.  While this is just food for thought, it is unlikely the current Congress will be willing to dine on it anytime soon.

December 19, 2013 | Permalink | Comments (0)

Wednesday, December 18, 2013

Ninth Circuit Rules Against Contracting Away Judicial Review Under FAA

In an opinon issued yesterday, the Ninth Circuit ruled that parties' freedom of contract does not extend to contracting away federal court jurisdiction conferred under § 10 of the Federal Arbitration Act (FAA). In re Wal-Mart Wage & Hour Employment Practices Litig., 11-17718, 2013 WL 6605350 (9th Cir. Dec. 17, 2013). Section 10 of the FAA states the bases for court vacatur of an arbitration decision, such as fraud, corruption, arbitral misconduct, and exceeding arbitral authority.

The Ninth Circuit previously held, and the Supreme Court, agreed, that parties cannot contractually expand the federal courts' jurisdiction under § 10 an § 11.  Hall St. Assocs., L.L.C. v. Mattel, Inc., 552 U.S. 576 (2008) ("[W]e granted certiorari to decide whether the grounds for vacatur and modification provided by §§ 10 and 11 of the FAA are exclusive….We agree with the Ninth Circuit that they are"). Nor under the In re Wal-Mart Wage decision may parties' eliminate (or reduce) review under § 10. This holding is consistent with other circuits' decisions, which have ruled that parties may use the phrase "binding, non-appealable arbitration" to preclude judicial review of the merits of the arbitration, but they cannot prevent the federal courts from reviewing the arbitration for the statutory bases for vacation under § 10 of the FAA.

The Appellee's argument against jurisdiction relied heavily on the "binding, non-appealable" language and did not confront the distinction between review on the merits and review for reasons stated in § 10. Appellees ably and persuasively presented the authority from other circuits that that contractual language has been interpreted to bar only review on the merits and not review under § 10.

Ultimately, the Ninth Circuit held broadly that, "the statutory grounds for vacatur in the FAA, may not be waived or eliminated by contract." It reasoned that the FAA strikes a balance between promoting arbitration as a method of efficiently resolving disputes and ensuring a minimal level of due process. If parties can contract out of § 10, federal district courts would be forced to confirm arbitral decisions tainted by fraud or corruption and parties would have no safeguards against arbitral abuse.

Interesting, the In Re Wal-Mart Wage court did not extend its holding to § 11, the provisions for federal court modification of an arbitration award. It seems to me that the same principles apply to an attempt to contract out of § 11, perhaps with even greater force, given that § 11 involves correcting miscalculations or mistakes of form.


December 18, 2013 | Permalink | Comments (0)

Saturday, December 14, 2013

Lawyers Cannot Hide Behind Concepcion Ruling

Last week, I posted about the ongoing impact of the SCOTUS Concepcion decision.  In an interesting twist, the 9th Circuit (the same circuit that was overturned in Concepcion) carved out an exception to that case and its negative impact on class arbitration .   In a December 12, 2013 Smith v. JEM Group Inc. decision, the court held, in finding the arbitration contract procedurally unconscionable, that law firms cannot hide behind arbitration provisions that prohibit class arbitration in instances where the clients are not properly advised on the ramifications of the provision.  

Alison Frankel provides a very good case analysis in her Reuters opinion post here.

December 14, 2013 in Current Affairs | Permalink | Comments (0)

Friday, December 13, 2013

Searching Questions, Part II

As I mentioned in my prior post, my Advanced Appellate Advocacy class grappled with the issue of whether a cellphone search incident to arrest but after a delay is constitutional. On the one hand, the California Court of Appeals in California v. Riley has held such a search valid on the grounds that a phone located on a person is “immediately associated with the arrestee” and therefore searchable on the scene or later without any exigency requirement. California v. Riley, 2013 WL 475242, D059840, (Cal. Ct. App. Feb. 8, 2013) (unpublished). On the other, U.S. v. Wurie held such a search invalid absent some showing that officer safety, evidence preservation, or other exigency exists. United States v. Wurie, 728 F.3d 1 (1st Cir. 2013). Both cases are currently before the U.S. Supreme Court.

In August, as I reviewed these two appellate cases and their attendant briefings, I was interested in the approaches these advocates took. In particular, in Wurie, the state argued entirely, without alternative or fallback, that the item was on Wurie’s person and was therefore “immediately associated” with him. No attempt was made to deal with: 1) the possibility that the First Circuit might classify it otherwise; 2) the broader arguments regarding the underlying issues of reasonable expectation of privacy; or 3) the lack of justifications for a search incident to arrest required by prior Supreme Court cases. There’s a sense of confidence and clarity in this approach. It provides an easy to follow legal analysis and a consistent narrative of how these searches are and should be viewed. Certainly, there are lower court analyses that support this reading of the law. Wurie’s counsel took a more layered approach providing the court with multiple avenues for providing the relief requested. While there are cases supporting these positions, they are fewer and more fragmented. Ultimately, the First Circuit took a very restrictive view of the search incident to arrest exception regarding cellphones.

My students took a variety of approaches at their oral arguments, which were held prior to submission of the briefs for educational reasons. (In my experience, preparing for oral arguments brings focus and understanding of the case that students rarely reach while writing the brief.)

Some features were common to nearly all arguments. Nearly every student, prosecution and defense alike, categorized the underlying drug transaction as a “small-time” drug deal. This was relevant to the case because it suggested how likely the defendant was to have accomplices who might pose a danger to officers or remotely destroy evidence on the phone. Similarly, most advocates bought into the dichotomy between “item immediately associated” and “item within the arrestee’s immediate control” emphasized by the district court opinion being appealed. Most students attempted to navigate the existing precedents, analogizing and distinguishing in a straightforward manner, and occasionally making forays into factual or legal curiosities within the case. Some made very effective cases for classifying the cellphone in one way or another.

I was impressed by two students who took approaches that relied less on this classification issue.  One student echoed the Wurie opinion’s historical argument and the analogy between cellphones and one’s entire home or warehouse. That argument very ably compared the government’s proposed rule as a limitless right to search similar to a general writ. If the categorical approach taken by Riley is adopted, the argument goes, any item becomes subject to search regardless of the privacy the owner or society attaches to it. A cellphone, a laptop, a terabyte hard drive, Google Glass, a FitBit (a device that records one’s physical state for fitness purposes), and anything else, however personal, become searchable not just by the officers on the scene but by a full team of law enforcement techs forever. Rather than argue about the classification of this item, whether because of its characteristics or location, the student sought to undermine the opponent’s proposed rule.

Another student, without tracking back quite so far in history or toward first principles, made a persuasive argument that the entire jurisprudence of classifying items as associated with a person or in one’s immediate control is misguided or at least misapplied. The right to search incident to arrest, the argument goes, is limited to the scope described by Chimel v. California, 395 U.S. 752 (1969) and United States v. Robinson, 414 U.S. 218 (1973), to preserve evidence and for the protection of officers. This is, essentially, the reasoning behind the Wurie decision. This student’s argument explored this premise to suggest that a warrantless search of items removed from the arrestee’s control for any significant period of time simply cannot meet the requirements of Chimel. This is particularly true where that period of time is equal or greater than that required to obtain a warrant.

Some students representing the state sought to argue that officer protection or evidence preservation was at issue, a difficult claim given the facts of Mr. Zach's case, but an interesting expansion beyond what the government in Wurie argued. Others got involved in whether the cellphone was classified as a container, a fact that matters in some of the precedents and which is an interesting metaphysical question. What does it mean to be container? To “contain” something else? Is the intangible data or means of access one can find in a cellphone “things” that can be contained in something else?  Ultimately, while these questions were interesting, they didn’t get at the root of the matter and even students who engaged with them moved on to more fundamental issues.

Perhaps the most interesting factual argument was over the nature of a smartphone and the police techniques available for preserving one until a warrant can be obtained. Coincidentally, the two students most informed on the capacity, capabilities, limitations, and prevalence of cellphones were pitted against each other in a lively argument about the nature of cellphones. For example, they debated whether any expectation of privacy was subjectively or objectively reasonable given cellphones’ computer-like features, lack of standard security measures, expansive personal data contained, significant personal access they allow, and widespread use. Likewise, they dug deep into the possible law enforcement alternatives to a delayed, warrantless search. Both employed considerable, well-supported facts, which helped educate the bench.

Finally, two advocates surprised me, albeit in different ways. One government counsel essentially argued the party line from Wurie, but he did so in an incredibly articulate manner, employing the phrases “characteristic-based principle” and “area-based principle.” The student argued both the precedential support for an area-based principle and the logic of it. When taken down the garden path of how broad this principle might be applied, he willingly walked all the way to the end, arguing the characteristics of the item were not determinative.  When pressed on whether safety or evidence preservation exigencies were required, he suggested they were not because a person has no reasonable expectation of privacy regarding items on his person at the time of arrest. While much of this tracks the state’s argument in Wurie, it was capably presented and cogently reasoned, and he developed a theme that was consistent and compelling.

The other surprising argument was also from a government counsel. She urged rejection of a special rule for cellphones noting that if cellphones were entitled to special protection that an address book or paper records were not, it would discriminate against lower income defendants, entitling the poor to lesser rights simply because they did not have the newest technology. I had not expected a social justice argument in favor of broad searches incident to arrest.

Overall, the students did quite well, and I was pleased with the variety and creativity of the arguments. I look forward to reading the briefs and, ultimately, hearing what the Court thinks about this issue.

December 13, 2013 | Permalink | Comments (0)

Two setbacks for LGBT rights in overseas appellate courts, but with silver linings

  450px-Gay_Marriage_Card_Mr._&_Mr.This week, The Guardian reported on two key high court decisions on gay rights from Australia to India. First, the High Court of Australia struck down a state statute legalizing gay marriage because it conflicted with a federal "one man-one woman" statute. Surprisingly, however, the Court dropped a strong suggestion that the national legislature has the constitutional power to pass an act to the contrary. That "hint" has led to a movement among liberal MPs to back new legislation, especially as the main argument raised previously by conservatives was that a gay marriage act would be unconstitutional. 

Second, the Supreme Court of India reinstated a colonial-era anti-sodomy law, reversing a high court that had declared it invalid. The Supreme Court of India is usually seen as a bastion for civil rights, which made the decision rather shocking to advocates who expected an easy affirmance. According to the Times of India, the silver lining for the law's opponents is that the LGBT movement is rallying strongly and expects to prevail someday soon, capitalizing on rapid social change nationally.

December 13, 2013 | Permalink | Comments (0)

Thursday, December 12, 2013

Guns And Roses

As we approach the one-year anniversary of the horrific Sandy Hook Elementary School shooting this weekend (it seems that so far the news media outlets are honoring the community request to stay away), we are no closer to gun reform.  Of course, some would applaud this, arguing that there should be no encroachment on our 2nd Amendment right to bear arms. 

Gun rights advocates are certainly applauding the December 10, 2013 decision from Florida's 1st District Court of Appeal.  The case involved the University of North Florida's (UNF) gun ban on campus.  A student challenged the university policy that guns could not be stored in vehicles that are parked on campus.  The majority 12-3 opinion held that the policy was unlawful, especially considering UNF is a state institution.  Florida law allows guns to be stored in vehicles, and the court indicated that this law trumps the policies and regulations of local governments and universities.  The court also differentiated guns on college campuses from those on public school district grounds, where they are disallowed by law.

This story resonates with me because I have mixed feelings on the issue.  After all, my law school was the site of a tragic and fatal shooting in 2002.  While I was not teaching here at the time, the story that I have heard entails the shooter being subdued by a fellow student who retrieved a gun from his car.  Advocates for guns would say that allowing guns on campuses likely saved lives due to the actions of this heroic student.  On the other hand, opponents would argue that greater gun control measures might have prevented the shooter from getting access to the gun in the first instance. 

As more shootings like Newtown occur, gun control will certainly become a heavily litigated issue.  But for now, if you are not in the vicinity of Newtown CT this weekend to place a rose at the shooting site or on the grave of one of the 26 victims, perhaps planting a rose in remembrance is apropos. 

December 12, 2013 in Current Affairs | Permalink | Comments (0)

Wednesday, December 11, 2013

Searching Questions

Robert Zach was arrested one evening during a marijuana deal. Mr. Zach was in the process of selling a one-ounce bag of marijuana when two police officers interrupted the transaction, causing the buyer to drop the drugs and flee. Mr. Zach was accompanied by a third man who also fled the scene. Mr. Zach complied with the police officers’ demand to halt, and they arrested and searched him. The officers relieved Mr. Zach of his pocketknife, two other one-ounce bags of marijuana, and his cellphone. Then, the officers put Mr. Zach into the patrol car and returned to the station where he was booked.

Razr SmartphoneAt the station, one officer attended to Mr. Zach’s booking while the other helped manage a mass booking of protestors brought in by other officers. Forty-five minutes later, and roughly an hour after the arrest, one of the officers searched Mr. Zach’s phone. She searched his recent messages, contacts, and photos. Finding child pornography among his photos, she alerted the federal authorities, and Mr. Zach was charged with violating 18 U.S.C. § 2252A(b)(1).

Mr. Zach argued in a motion to suppress that the search violated the Fourth Amendment. The government defended the search as being incident to arrest. The district court acknowledged the split of authorities on how to classify the cellphone, noting that:

  1. most treat a cellphone as “an item immediately associated with a person,” similar to a wallet, piece of clothing, pager, or cigarette pack, which is broadly searchable, and
  2. only a few cases treat a cellphone as “an item within an arrestee’s immediate control,” which is searchable only when contemporaneously with the arrest or when some other exigency exists.

The district court classified Mr. Zach’s phone as an item associated with his person and found the search incident to arrest despite the time delay. Accordingly, it denied the motion to suppress.

What happened on appeal was not determined by a panel of circuit court judges or even by appellate counsel. It was the responsibility of my Advanced Appellate Advocacy students. This fictional case (based on terrific hypothetical by Professor Leslie Rose at Golden Gate Law) served as the semester-long project for my students. Arguments were held the week before Thanksgiving and briefs were due last Friday, which is an interesting coincidence given that the Supreme Court allegedly took up two related cases at its conference that day. (Note: Well, it was calendared, but consideration was delayed while the Court obtains the lower court record in Riley. My students recieved no such extension.)

Those two cases, U.S. v. Wurie and Riley v. California, present reviews of searches of cellphones incident to arrest. In Wurie, law enforcement conducted a very limited search (opening the phone, viewing its wallpaper image, and checking the call log) of an older model flip phone. In Riley, law enforcement conducted a broader search (text messages, photographs, and videos with audio) of a modern smartphone.

In Riley,the California Court of Appeals upheld the warrantless search because the cellphone taken from Riley was in his pocket and therefore “immediately associated with his person.” Being classified as an “item immediately associated with his person,” the court held the cellphone could be searched as incident to arrest, regardless of any delay or lack of exigency. People v. Riley, 2013 WL 475242, *6, D059840, (Cal. Ct. App. Feb. 8, 2013) (unpublished), review denied (May 1, 2013).

In Wurie, the First Circuit held the warrantless search unreasonable after a lengthy review of the Supreme Court and other federal jurisprudence on the issue. The First Circuit reasoned that searching a cellphone after a delay is no longer incident to arrest because it is not justified by either of the policy reasons for permitting a warrantless search: officer protection and evidence preservation. Moreover, the First Circuit found a significant expectation of privacy in cellphones, which it notes, are akin to a large container or luggage, which cannot be searched without a warrant once reduced to officers’ control, but rhetorically, the court went further and analogized cellphones to the “homes and warehouses” of America’s early colonists, the searches of which on general writs, prompted the passage of the Fourth Amendment in the first place. The First Circuit left open the possibility that where law enforcement could articulate either officer protection or evidence preservation, it might justify a search, but it viewed such instances as exceptions to the general rule that warrantless searches of cellphone contents are unlawful. United States v. Wurie, 728 F.3d 1, 6-13 (1st Cir. 2013).

The government’s appellate argument in Wurie was a formalist one: a cellphone taken off the person of an arrestee is “immediately associated with the arrestee’s person,” and therefore, searchable at any later time without any exigency. This is the same classification argument that succeeded in Riley. This approach is apparent in the Table of Contents of the government’s brief on appeal, which notes, “Wurie's cell phone was an item or 'container' immediately associated with his person.…Wurie's cell phone was seized from his person, not his reaching area; thus, its limited, warrantless search required no additional justification.” United States v. Wurie, Brief, 2012 WL 3546655, i-ii (1st Cir. 2013). It was also apparent at oral argument, when the state’s counsel conceded that the phone posed no threat to the officers (and seemingly that the possibility of evidence destruction was more arguable than actual). The state seemed to rely entirely on the distinction that the item was on his person and not merely in his reach. As such an item, the state asserted an “unqualified authority” to search the phone’s contents. Id. at 15-16.

Wurie’s counsel argued that the reasonable expectation of privacy in one’s cellphone contents is “very high” and that cellphone searches permit access by law enforcement into the most private details of one’s life, well-beyond that of other “items associated with a person.” United States v. Wurie, Brief, 2012 WL 1963650 (C.A.1). Wurie’s argument on appeal provided several bases to find the search unlawful, including: 1) treating cellphones as sui generis, or at least unlike prior “items associated with a person;” 2) rejection of the categorical approach that would treat all items on an arrestee as “items associated with the arrestee” because some items, such as cellphones, laptops, or other items are significantly broader or different than prior items classified this way; 3) treating the item as container, which would not be searchable after a delay and extended possession of the item by law enforcement; 4) reemphasizing the centrality of the warrant requirement, the requirement of an exception to be justified, and the touchstone of reasonableness in justifying any invasion of privacy.

I am interested to see how the Supreme Court resolves this issue, whether along the formalist classification lines of Riley or along the policy justification limitation lines of Wurie. I was also quite interested to see how my students would argue the issue. Would they follow the government’s classification argument? Would they attempt to distinguish the facts of Mr. Zach’s case by arguing officer safety or evidence destruction? Are there any creative alternatives that help the state? Can the defendant’s counsel overcome the weight of authority that hold differently than Wurie on a variety of analyses?

The students’ oral arguments revealed some interesting rhetorical and analytical approaches, which I’ll share in my next post. Before I do, what do you think is the reasonable expectation of privacy in your cellphone contents? How do you think the Supreme Court will (or should) resolve the issue? How would you approach this case as advocate for the state? For the defendant?


Photo: Wikimedia Commons; Conrad Longmore

December 11, 2013 | Permalink | Comments (0)

Tuesday, December 10, 2013

What Is So Appealing About Appellate Court Mediation?

Most appellate courts have court-connected mediation programs.  Sometimes it is voluntary, and in other courts it is mandated.  I am generally a proponent of mediation, even of the mandatory variety.  Why?  Because mandating that parties discuss possible resolution does not compel them to actually agree to anything.  The parties are free to walk away from the table at any moment that the talks become unfruitful.  Mandating mediation also forces the parties - who might otherwise perceive it as a weakness to introduce the topic of settlement to the opposition - to discuss resolution without a feeling of losing strength.  While some argue that the cost of paying counsel to attend a mediation the party is uninterested in attending is problematic, I disagree.  The mediation is still valuable in that it gives the attorney and his/her client another opportunity to discuss and develop case strategy, and it also gives them a window to look more closely at the opposition's case and strategy.  Thus, even if the mediation reaches impasse, the process was likely still valuable to everyone involved.  

However, my love-fest with mediation starts and stops at the trial court level.  Mediation is a wonderful  tool for resolving disputes before a lawsuit is filed.  It is great for resolving disputes during discovery and before dispositive motions are filed.  It is apropos for resolving disputes just prior to trial, especially if an unpredictable jury is involved.  But what about after the verdict?  What about after the case is dismissed on summary judgment?  Is there any value in appellate court mediation?

I suppose if the appellate court mediation is voluntary, there is no problem.  However, when it is compulsory, I see less efficacy in it.  Even considering the statistical evidence suggesting that approximately 40% of appellate court mediation's will resolve the case (roughly half the settlement rate of those that take place prior to the case reaching the appellate court level), I still wonder if the potential benefit trumps the frustration that can emanate from the process.  

The primary issue is that by the time the case reaches the appellate court level, one party has won and the other has lost.  This naturally emboldens the winning party to retract any prior settlement offers on the table in order to present a much more inferior offer.  This, in turn, tends to frustrate the already frustrated losing party and makes him/her more prone to continue the fight, despite the fact that the odds of getting the trial court's decision overturned is likely about 10-15%.  Another issue is that the odds are fairly high that at some point prior to the appeal the parties had already attempted to negotiate or mediate the case one or more times.  Is mandating another attempt at resolution simply overkill?

While it is understandable why some appellate courts would experiment in mandatory mediation processes (reducing the docket being an important consideration), it seems that for the 60% of cases that do not settle,  the tension between the parties will only be heightened by the futile attempt.  Perhaps mandatory mediation is best suited for pre-appeal disputes.  

What say you? 



December 10, 2013 | Permalink | Comments (1)

Thursday, December 5, 2013

Nelson Mandela, South Africa's Advocate

Nelson Mandela, a legendary advocate, died today at age 95.

So much could be said about him and so many of his great accomplishments and deeds could be recounted here. I'm certain they will be elsewhere, and I'm certain there will be those who will take time to remind us of his failings, too. It is tempting to engage in that biographical recollection and examination, but others will do it better. It is tempting to share my perceptions of Nelson Mandela through the years, and what he meant to me as a young man studying history, politics, and the world, in the 1990s, but that seems too personal, too narcissistic. Perhaps it is best if I merely share a few of the man's own words.

In his address on receiving the Gandhi Peace Prize, he offered this powerful lament:

"It demeans all of us as human beings that here at the beginning of the third millennium we are still locked in so much strife and conflict all over the globe. What has become of our rationality, our ability to think? We have used our reason to make great advances in science and technology, though often using those for warfare and plunder. We have placed people on the moon and in space; we have split the atom and transplanted organs; we are cloning life and manipulating nature. Yet we have failed to sit down as rational beings and eliminate conflict, war and consequent suffering of innocent millions, mostly women, children and the aged."

I fear we will never acheive these goals, and I fear that they are, in truth, beyond our power. But Nelson Mandela believed otherwise. He believed in our rationality, in our compassion, and in our ability to transform the world. Of course, then, he embodied these things. We could each (and all) do no better than to believe as he did and work to make his vision a reality.

December 5, 2013 | Permalink | Comments (0)

Still Feeling the Effects of Concepcion

Arbitration began as a simple dispute resolution mechanism to help businesses resolve contractual issues.  At some point, someone had the brilliant idea to force arbitration provisions into consumer contracts.  When that worked to perfection, the next obvious step was to infuse arbitration into the adjudication of statutory rights.  A logical outgrowth of this rapid developing forum was to quell class actions, a la Concepcion, by using arbitration provision language, or lack thereof, to allow for a waiver of class actions.  

In June, the Italian Colors case taught us that a waiver of class action is perfectly fine, even if the end result meant that the plaintiffs had not true remedy available (see analysis by our friends at ADR Prof Blog).  Now, following the lead of SCOTUS in Concepcion and Italian Colors, the 5th Circuit yesterday dealt another blow to plaintiffs by asserting in Horton that the super-statute Federal Arbitration Act (FAA) trumps the National Labor Relations Act (NLRA).  Specifically, the court rejected the National Labor Relation Board's (NLRB) argument that to disallow class arbitration was tantamount to taking away employees' Section 7 & 8 rights to concerted activity (see a full analysis by our friends at Workplace Prof Blog).  

Why would the 5th Court issue such a ruling?  Perhaps it is because the Supreme Court has repeatedly ruled in fashion that makes the FAA appear to be the mightiest statute in the land.  The 2nd Circuit came to a similar conclusion when it recently held in Duran that its "unusual" pro-arbitration conclusion is premised upon Supreme Court precedent. 

This is not to say that arbitration is bad.  It has many wonderful attributes.  But allowing businesses to prevent class action arbitration under the convenient - but power-balance impaired - 'freedom of contract' principle has resulted in inexplicable outcomes.    

December 5, 2013 in Current Affairs | Permalink | Comments (0)

Tuesday, December 3, 2013

Adam Liptak on Paroline v. United States (restitution for victims of child pornography)

Here's a link to Liptak's preview of Paroline v. United States, a case affecting restitution to victims of child pornography.  The Fifth Circuit awarded the victim in this case the full amount of her claimed damages, applying "joint and several" liability and telling the defendant to pay what he could while seeking contributions from the other people who viewed the victim's images.  The Supreme Court will hear arguments on whether that was the correct approach next month. 

December 3, 2013 | Permalink | Comments (2)

United States v. Gomez, Attorney General Holder, and "Mandatory Minimum" Sentences

Here's an article from The Atlantic on Gomez v. United States, a case recently decided by the First Circuit that the defendant has asked the Supreme Court to review.   The case involves a "mandatory minimum" sentence that was based (in part) on a charge the prosecutors didn't bring.  Here are links to the cert briefs for Gomez and the government.  The Atlantic's article points out that Attorney General Holder has recently been advocating for increased fairness in federal sentencing, then it argues that a "gap...exists between the sentencing reform he heralds on the stump and the harsh sentencing policies his lawyers seek to justify in court." 

December 3, 2013 | Permalink | Comments (0)

Monday, December 2, 2013

HBO Puts a Spin on Clay v. United States

If you subscribe to HBO, you might find Muhammad Ali's Greatest Fight a very interesting movie to watch.  Besides the fact that it chronicles, in part, the sometimes politically-controversial boxing career of Cassius Clay Muhammad Ali,  it takes a look inside the deliberations behind Ali's court fight against being drafted into to U.S. Military.  

The case Clay v. United States begins with Clay losing an administrative appeal.  While Clay argued that he met one or more elements of the 3-part test (1. that he is conscientiously opposed to war in any form, 2. that this opposition is based upon religious training and belief, and 3. that this objection is sincere) used to determine whether an individual's objection to being drafted is afforded religious freedom protection, the Justice Department, then headed by Solicitor General Thurgood Marshall, believed that his objection was rooted in political rather than religious ideology.   As such, he was tried and convicted of willfully refusing to be drafted.  After losing on appeal, the case finds its way to the Supreme Court.

By the time the case arrives on the Court's doorsteps, Thurgood Marshall is now a Justice and, due to his involvement at the beginning of the case, recuses himself.  The movie uses this as an opportunity to showcase Justice Marshall as a proponent of integration and a believer that Muhammad Ali is promoting a segregationist agenda as a member of the Nation of Islam (black Muslims).  

The movie also dramatizes the inner workings of the Supreme Court.  The movie follows a seemingly fictional and liberal-minded law clerk championing the Court's consideration of hearing the Clay case.  The law clerk, from Missouri Law, is met with opposition from not just John Harlan, the Justice supervising him, but also from elitist and more conservative fellow law clerks with higher pedigrees from Harvard, Yale and Columbia Law.  

Initially there is great opposition to hearing the case, but eventually the Court agrees.  After oral argument, the Justices seem to be headed towards a 5-3 decision affirming the conviction.  However, the protagonist law clerk does some exhaustive research, finds a case that seems to mirror the premise in the Clay case but involves the Jewish faith, and then approaches Justice Harlan with a draft of an opinion in favor of Clay - regardless of the 5-3 decision and the fact that John Harlan had charged the law clerk with drafting an opinion against Clay.  After looking at the possible racial impact of a decision against Clay and the Muslim religion when the facts seem to suggest that his conscientious objector argument should be successful, the Justices eventually reverse course and come to terms on how to carry out issuing an 8-0 decision.  The last twist to the movie chronicles how they crafted the decision so that it would not create precedent, but would be narrowly construed to the facts presented.  Specifically, since the Appeals Board issued its decision without clearly articulating the grounds for the decision (which elements of the conscientious objector test Clay failed to meet), the Court ruled that such an ambiguous conviction could not stand.  

The movie is interesting in how it shows the "case behind the case."  Watching the deliberations of the Justices, the jockeying of the law clerks and their role in influencing the minds on the Court, and the politics that came into play in what should be a non-political judicial branch was fascinating.  It really makes one think about the fact that advocates need to focus on not just persuading the panel of neutrals, but also must keep an eye towards how to influence the law clerks and the other people with political, social, or other interests in the case outcome.  

If you get the opportunity, do take time to watch this movie.  It will be time well spent.

December 2, 2013 in Current Affairs, Film | Permalink | Comments (0)

Sunday, December 1, 2013

Novel Florida Professionalism Code Examined by Prof. Kristen Davis

256px-Alligator_mississippiensis_01 (2)Concerned about a decline in good professional behavior, the Florida Supreme Court adopted its Code for Resolving Professionalism Complaints last June. In a new essay available on SSRN, Professor Kristen Davis of Stetson Law School examines the novel program's strengths and weaknesses so far.

Photo: Wikimedia

December 1, 2013 | Permalink | Comments (0)