Appellate Advocacy Blog

U.S. Supreme Court Grants Stay on Early Voting Issue in Ohio

The Washington Post has reported that yesterday five of the U.S. Supreme Court Justices agreed to enter an Order granting the State of Ohio’s Application for Stay and Request for Preliminary Injunction to stop enforcement of a court order preventing implementation of Ohio’s plan to reduce early voting.  Earlier this year, the State of Ohio’s legislature enacted a plan to reduce the number of early voting days from 35 to 28.  Opponents of the law argue that the reduced number of early voting days will discourage voter turn-out.  This matter came before U.S. District Court Judge Peter C. Economous earlier this month.  He ruled against the State reasoning that the poor and persons of color are disproportionately negatively impacted by the reduction in early voting days because these populations tend to vote early and in-person more often than white voters.  Justices Ginsburg, Breyer, Sotomayor, and Kagan would have denied the application for stay.  

Related articles

Supreme Court Blocks Order to Restore 7 Days of Voting in Ohio

Brown Bettman on Ohio v. Quarterman on Failure to Preserve Constitutional Issues for Appellate Review

The Ohio Supreme Court issued an opinion last week in State v. Quarterman regarding the failure to preserve constitutional issued for appellate review. Marianna Brown Bettman (University of Cinncinnati) has this post detailing the decision on Legally Speaking Ohio. She does an excellent explication of the case: describing the details of the case, the arguments at both levels of appellate review, and the Ohio Supreme Court's decision.

The case involved serious issues regarding Ohio's mandatory bind-over statutes for juveniles - statutes that allegedly conflict with growing state and U.S. practice regarding the treatment of juveniles. That the Ohio Supreme Court rejected the appeal on procedural grounds should warn trial and appellate advocates about the importance of preserving issues on appeal and raising issues (such as alleging plain error) early and clearly.

Brown Bettman's post provides a valuable and detailed discussion of the case with several useful citations and links. It's worth a read by appellate advocates.

/hat tip Professor Jeremy Telman @ Contracts Prof Blog

Nevada Ponders Intermediate Appellate Court

The November ballot in Nevada will include the opportunity to vote for a constitutional amendment to create an intermediate appellate court.

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.

A similar proposal was narrowly defeated in 2010 (53% against/47% in favor).

Cool Tool for Legal Research - and it's FREE!

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.

Related articles

A New Way to Look at Law, With Data Viz and Machine Learning

Cutting Edge Research Alternative Ravel Law

BP Counsel Fiddles With Line Spacing in Federal Filing

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

Indiana Supreme Court Refuses to Allow Citation of Memorandum Decisions

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.

Tenth Circuit orders exhaustion of remedies in Muskogee (Creek) Tribal Court

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.

Image: bradleypjohnson, cc by 2.0 license

 

The Opinion Is Out In Baskin v. Bogan

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.

Judges Reading Appellate Materials on Electronic Devices

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!

Colleen Barger Named Ben J. Altheimer Distinguished Professor of Law

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!