Appellate Advocacy Blog

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

Wednesday, April 30, 2014

Supreme Court Argument on Cellphone Searches

Oral arguments in Riley v. California and United States v. Wurie have revived the discussion about the future of cellphone searches by law enforcement. Amy Howe over at SCOTUSblog has an excellent plain English summary of the arguments. Cellphones by Adrian Clark

In a pair of posts last fall (here and here), I discussed examining the issue with my Advanced Appellate Advocacy class. These cases present a question of when law enforcement may search a cellphone seized at the time of arrest without seeking a warrant. I noted then that one way to conceptualize the debate is to attempt to categorize the cellphone as either an "item associated with the arrestee" (which may be freely searched) or merely an "item within the arrestee's control" (which may be searched only with some justification). The government in these cases, particularly Wurie, seemed to employ a bright-line classification argument. That is, the government proposed that a cellphone in the possession of an arrestee should be classified as an "item immediately associated with the arrestee," similar to a wallet or pager, and, therefore, subject to search without limitation. The litigation history at that time suggested the government pushed hard for this classification with very little attention devoted to a fallback or alternative argument. This was in contrast to the defense approach, again, particularaly in Wurie's appellate briefing, of providing alternative arguments for rejecting cellphone searches.

The recap at SCOTUSblog suggests that the Justices did not seem inclined to credit either party's categorical classification argument. Instead, they seemed to be searching for a logical way to draw a line between a permissible and impermissible search. As Howe explains:

Given the lack of support for either bright-line rule, it comes as no surprise that the Justices spent a good chunk of the two hours today mulling over a possible middle ground.  But here too there wasn’t much in the way of consensus, as the Court struggled to find a compromise that would genuinely protect privacy.

While the pull of a strict categorical approach is strong, (it was especially strong for my students as new advocates), judges concerned with practical application and balancing the interests often seek out some middle ground. This is even more true in areas of the law concerned with balancing interests, such as the Fourth Amendment's reasonable search arena. Ultimately, the Court in Riley and Wurie will have to find that consensus position, even if it did not find it among the advocates' arguments yesterday.


Photo Credit: Adrian Clark

April 30, 2014 in Appellate Advocacy, Appellate Practice, Federal Appeals Courts, Oral Argument, United States Supreme Court | Permalink | Comments (0)

Tuesday, April 29, 2014

5th Circuit Again Considers Abortion Laws

At the beginning of this month, I blogged about the 5th Circuit's Texas decision - applauded by some as responsibly upholding legislation that supports women's health and criticized by others concerned that it will cause an undue burden on access to abortions and possibly hinder health by causing some women to dangerously take matters into their own hands.  Here we are at the end of the month and the 5th Circuit is once again facing the same issue.  However, this time it may answer some questions left unanswered in the prior case.

While the prior case upheld the legislation requiring abortion clinics to have admitting privileges at a hospital, it also held that the issue of undue burden was not ripe for consideration; after all, there still exists multiple options for abortions throughout the state.  However, the state of Mississippi is down to only one abortion clinic.  Surely this fact was discussed during oral arguments yesterday. When you couple the lack of access to clinics, especially if this last clinic is forced to close, with the concern raised in the Texas case that allowing hospitals to have control over providing admitting privileges to abortion clinic practitioners might effectively kill off all abortion clinics, it is clear to see the dilemma.  Jackson Women's Health Organization, the clinic in question, has stated that it has requested, and been denied, admitting privileges by thirteen different medical facilities.  Similar laws are being pushied in Louisiana, Oklahoma and Alabama, causing at least one media outlet to question if this is the beginning of end of abortion access in the South.

Of note, this is a different three judge panel than the one presiding over the Texas case.  I suspect SCOTUS will eventually be weighing in on this debate.

April 29, 2014 in Current Affairs, Federal Appeals Courts | Permalink | Comments (0)

Friday, April 25, 2014

Spotting bad science in social science research

Jmmgogwf3dvruracdu13One long-running debate in our field is how much appellate lawyers can use non-record social science evidence in their briefs. While there may be a little wiggle room, it's best to be extremely cautious when testing judges' patience. Poor research can harm an attorney's reputation and also lead to a restriction of that little big of wiggle room we have to help build a stronger case theory through social science "evidence." Appellate attorneys should take care to make sure they are using sound, widely accepted research. 

I'll be posting more on this over the next several days, but in the meantime, even if it's been a long time science your last college science class, a great place to get your quick refresher is this handy, full-sheet PDF graphic by Compound Interest

Hat tip: Lifehacker

A postscript: The blog's been quiet for several days but we are still here. Our host, TypePad, faced several hacker attacks last week. Fortunately, things seem to be humming again. 

April 25, 2014 | Permalink | Comments (0)

Tuesday, April 15, 2014

Steinman on Appellate Review of Summary Judgment Denials

Joan Steinman, Distinguished Professor of Law at Chicago-Kent School of Law, posted a piece on SSRN: The Puzzling Appeal of Summary Judgment Denials: When are Such Denials Reviewable? Steinman is a co-author of the excellent text, Appellate Courts, Structures, Functions, Processes and Personnel (2d ed. & 2009 Supp.). In this article, she examines the fractured state of the law regarding appeals of summary judgment denials, in particular those appeals brought after a trial and final judgment. She identifies both inter-circuit and intra-circuit splits on the appealability of such denials and some confusion over which types of denials are appealable. She notes that the U.S. Supreme Court weighed in on the issue in dicta in Jordan v. Ortiz, 131 S.Ct. 884 (2011), but argues that:

the Court’s approach was off-the-cuff, its thought process superficial and in some respects flatly in error, and its dicta seriously misguided, with the result that the intermediate federal courts of appeals were left in a quandary over whether to follow the dicta. An additional layer of splits among the circuits resulted. Few legal scholars have made a foray into this morass.

Steinman wades into the morass and offers observations, criticism, and a proposed approach to summary judgment appeals. This thoughtful piece is recommended to trial and appellate advocates alike.

April 15, 2014 in Appellate Advocacy, Appellate Practice, Appellate Procedure, Federal Appeals Courts, United States Supreme Court | Permalink | Comments (0)

Sunday, April 13, 2014

Advice To Advocates From The Bench

As a follow-up to yesterday's post, another presenter at the Black Lung CLE was Judge William S. Colwell, a lifetime appointed federal Associate Chief Judge with the U.S. Department of Labor.  Judge Colwell shared the following advice to advocates:

  • Read and "follow" all court orders
  • Comply with evidence deadlines and resolve issues with other party
  • When submitting a large amount of records, paginate and identify the relevant portions
  • Briefs should cite to specific document(s) and page(s)
  • Be careful not to focus too much on the law to the detriment of specific fact analysis
  • Better briefs identify critical evidence and distinguish contrary evidence
  • Deal with unfavorable evidence; this is your chance to shape the case
  • Use pinpoint cites
  • Don't wait until the last minute to file motions or present surprise issues
  • Don't present issues if you lack the evidence to support them
  • If it is an elements test, have proof available for "all" elements
  • Don't put cases in briefs that have been overruled
  • Avoid multiple continuance requests
  • Avoid requests for post-hearing submissions if possible, as it shows lack of preparation
  • Don't over-paper the case

While I am sure most of you are aware of these tidbits for effective advocacy, a friendly reminder is always helpful!

April 13, 2014 in Appellate Advocacy, Appellate Practice, Appellate Procedure, Legal Writing | Permalink | Comments (0)

Saturday, April 12, 2014

Keep Jargon Out Of Your Brief And Argument

Appellate advocates, and attorneys in general, need to be mindful that while it is important to know the jargon and "shop speak" relative to your client's industry, it might not be apropos to utilize this jargon in written and oral advocacy before the court.  If jargon must be used, the attorney should define key terms and generally educate the judge about them. 

The 7th Circuit Court in Consolidated Coal Co. v. Director, OWCP reminded counsel of this issue in its 2013 decision when it stated "we take this opportunity to remind lawyers that federal judges are generalists who are not necessarily familiar with the industry-specific jargon that lards the briefs in this case (732 F.3d 723).  The judge went on to explain that lawyers should not assume they are knowledgeable about every area of law.  Using phrases like "working at the tipple", "drove a gob truck", and "on the dragline" only serve to confuse the bench and make the issue(s) convoluted.

How many of you readers know what these terms mean?  Unless you work in the coal industry you probably do not.  The judge doesn't work in the coal industry either.  Remember that you are the expert and you are expected to know the area of law better than the judge.  The best advocate is usually the one who not only knows the law and the relevant industry but is also the best at explaining it in such a way that the adjudicator (be it the judge or jury) can understand.

Hat tip to attorney and appellate advocate Ryan Gilligan for sharing this case at a Black Lung CLE presentation today.

April 12, 2014 in Appellate Advocacy, Appellate Practice, Federal Appeals Courts, Legal Writing, Oral Argument | Permalink | Comments (0)

Tuesday, April 8, 2014

Further affiant sayeth . . . not!

MC900240755Like all jargon, our profession uses some words and phrases so much (and so traditionally), that we often don’t stop to think about their origins.  Here are a few examples from The Party of the First Part by Adam Freedman (Henry Holt & Co. 2007). Freedman demonstrates that most are also legalese.

Boilerplate: The most prevalent story has it that the word is a newspaper term dating back to the time when typesetters had to use metal plates, and kept standard material on permanent plates.

Further affiant sayeth naught: Freedman cautions that incorrectly modernizing the archaic “naught” to “not” results in a slightly more negative meaning. Because “naught” means nothing, as opposed to “does not” or “will not,” I suppose he means that it sounds like the witness is refusing to testify further, rather than merely stopping at that point.

Indenture: This word sometimes appears at the top of contracts, but for no good reason; it used to mark the spot where notches in the paper would be cut to show that copies had been executed at the same time and were true copies.

Know all men by these presents: the “presents” refers to the Latin presens scriptum, or “these writings.”

“ss.” (in the venue header for affidavits). No one seems to be able to claim for certain what “ss.” stands for anymore, although it’s been posited that it comes from the Latin scilicet, or “one may know.” Apparently, when read aloud, it is read in English as “to wit.”

Subpoena: If you studied Latin, you may already know that this word literally means “under penalty.”

Freedman’s entertaining book also contains chapters on jargon from various doctrinal fields, such as Torts, as well as a history of the debate between plain legal English advocates and their moral enemies, the “Precision school.” 


April 8, 2014 | Permalink | Comments (0)

Sunday, April 6, 2014

More Winners On The Moot Court Competition Circuit

Congratulations to the following teams for doing well in recent 2014 competitions.  The students deserve a lot of praise for taking extra time to hone their oral and written advocacy skills.  Their coaches also deserve a lot of kudos for taking the time to work with the students, often simply for the love of it and without any compensation or praise.  

Elon University Billings, Exum & Frye National Constitutional Law Competitions

Champion:  Southwestern Law School

Runner-up:  Florida Coastal School of Law

Best Briefs:  Petitioner - Regent University, Respondent - Southwestern

Best Oral Advocate:  Kathy Spurlock, Florida Coastal

Albany Law School Gabrielli National Family Law Competition

Champion:  University of Mississippi School of Law

Runner-up:  Seton Hall School of Law

Best Brief:  Seton Hall

Best Oral Advocate:  Shannon Daugherty - Brooklyn Law School

National Native American Law Student Association Moot Court Competition

Champion:  William & Mitchell

Runner-up:  University of Hawaii

Best Brief:  William & Mitchell

Best Oral Advocate:  Andy Casey - University of Oklahoma

Capital University National Child Welare & Adoption Moot Court Competition

Champion:  Florida Coastal School of Law

Runner-up:  Loyola University Chicago School of Law

Best Brief:  Loyola University Chicago

Best Oral Advocate:  Jordan Griffin - Charlotte School of Law

St John's University Duberstein Bankruptcy Moot Court Competition

Champion:  Georgia State University College of Law

Runner-up:  Mississippi College School of Law

Best Brief:  University of Memphis School of Law

Best Oral Advocate:  Jennifer D'Augustinis - Florida Coastal School of Law


April 6, 2014 in Law School, Moot Court | Permalink | Comments (0)

Wednesday, April 2, 2014

Oral Argument Style and Value

As readers have probably already determined, I have a particular interest in orality and oral argument. Two recent items caught my attention and seemed worth sharing. First, Listen Like a Lawyer, an excellent blog about a important skill that receives far too little attention, had a post Oral Argument as an Improvised Conversation. It takes the common bromide that advocates should think of oral argument as a conversation with the bench. That leads the author to two inquiries. First, "how can it be an authentic conversation when the power dynamics are so skewed toward the judges and when the attorney is ethically bound to advocate for the client?" This is worth exploring further. Second, if we accept that oral argument is a conversation, albeit one with skewed power dynamics, are there lessons oral advocates can learn from modern sales practices? The blog post and the monograph it examines certainly think so.

Second, PrawfsBlawg had an April 1 post, Orality in Litigation, suggesting The Reappearing Judge (forthcoming in Kansas Law Review) by Steve Gensler (Oklahoma) and U.S. District Judge Lee Rosenthal, which proposes greater contact between trial judges and attorneys. Having documented (and bemoaned) the decline of oral argument at the appellate level, I'm obviously a very receptive audience for these authors. Gensler and Rosenthal offer some excellent ideas about the benefits, obvious and subtle, of increased (or as they call it "reappearing") judicial involvement in real-time, face-to-face meetings with attorneys.

April 2, 2014 in Appellate Advocacy, Federal Appeals Courts, Oral Argument | Permalink | Comments (0)

Tuesday, April 1, 2014

5th Circuit Upholds Texas Law Potentially Limiting Access To Abortions

The Famous Wendy Davis' Filibuster Shoes

Last year Roe v. Wade celebrated her 40th Birthday.  However, it seems the party is far from over.  The big news last year involved Texas state senator and gubernatorial candidate Wendy Davis making national news during her 12 hour filibuster of HB2, a Texas law that many feared would limit access to abortions in the state.  While her filibuster was ultimately unsuccessful in stopping passage of the bill, their was a brief moment of success when the district court held that parts of the bill were unconstitutional.  However, on March 27, 2014, the 5th Circuit in Planned Parenthood et. al. v. Attorney General Abbott reversed and rendered judgment in favor of the State.

The debate is an interesting and important one.  

One one side of the debate, the State is arguing that abortion doctors should have admitting privileges to a hospital in order to perform abortions.  Their concern seems rooted in the health of the woman to ensure that she receives proper care in the instance where the procedure necessitates emergency medical attention.  They argue that simply handing the patient off to the emergency room might lead to misdiagnosis, lack of knowledge on critical specifics about the patient, and the increased risk of problems surfacing.

On the other side of the debate, Planned Parenthood argues that requiring these doctors to have admitting privileges will create an undue burden on a woman's access to an abortion.  This requirement essentially puts the fate of abortionists and their patients in the hands of hospitals, which will then have the power to control the industry and shrink it merely by denying admitting privileges to these abortionists.  It seems that there might be some merit to the argument due to the fact that over one-third of the abortion clinics in the state have shut down since the implementation of the law.   

Is this causing an undue burden?

The court saw this argument as premature, and not ripe for consideration at least until there is additional evidence that more abortionists are being denied admitting privileges, more clinics are closing doors, and as a result there is clear evidence that abortions are not easily attainable by women.   Does this truly rise to the level of an unlawful undue burden?  Given the split in the circuits that have looked at this issue in the last couple of years, it is likely that the case will be headed to the Supreme Court.  

April 1, 2014 in Appellate Advocacy, Appellate Practice, Current Affairs, Federal Appeals Courts | Permalink | Comments (0)