Appellate Advocacy Blog

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

Tuesday, August 30, 2016

Twitter Tuesday--Judges to Follow

I (@TessaDysart) recently received an email from Professor Jennifer Romig (@JenniferMRomig) at Emory Law suggesting that this blog cover some of the great appellate advocacy discussions on Twitter.  What a great idea!  I asked my research assistant--Adam Burton (@AdamTylerBurton)--to help me put together a list of appellate lawyers and judges who are on Twitter.  My hope is to post a few names each week on #TwitterTuesday.  

Today, because it has been a busy day, we will cover a few judges to follow:

Justice Don Willett (@JusticeWillett) serves on the Supreme Court of Texas and is the self-proclaimed “Tweeter Laureate” of Texas. This former bull rider provides great (and sometimes hilarious) commentary on contemporary issues in the legal community. Justice Willett often shares articles for practicing attorneys, including one on Lawyer’s using Twitter!

Judge Stephen Dillard (@JudgeDillard) is a Vice Chief Judge for the Court of Appeals of Georgia. Judge Dillard provides fun commentary on appellate cases, support for Samford University football, and even offers advice to budding appellate attorneys.  Judge Dillard recently used Twitter to announce that he was not interested in pursing an appointment to the Supreme Court of Georgia.

Judge Carla McMillian (@JudgeCarla) serves  on the Georgia Court of Appeals. Judge McMillian often tweets background news and history of the court as well as information and opportunities for law students, particularly in the Peach State.

What judges do you follow on Twitter?  We would love to add to this list!

August 30, 2016 | Permalink | Comments (0)

Friday, August 26, 2016

To Swear or Not to Swear, that is the Question....

Should judges and lawyers quote profanity in their opinions, briefs, and oral arguments?  Zoe Tillman tackled this touchy issue in a recent article on  The article, aptly entitled "In Quoting Profanity, Some Judges Give a F#%&. Others Don't," Tillman includes several quotes from federal judges on the use of profanity in judicial opinions.  Well some try to avoid it at all costs, others don't mind including it, especially if it is relevant to the case.

Tillman notes:

Profanity has become increasingly prolific in court opinions. Since 2006, the word “fuck” was quoted in approximately 445 federal appeals court opinions, according to a search of court records. That’s nearly as many as the preceding four decades combined.

While judges may have the freedom to quote profanity in an opinion, what should an attorney do in writing a brief or in oral argument?  With respect to oral argument, one option is to call the court in advance and notify the court that you plan on using profanity.  According to First Circuit Judge Bruce Selya, who was interviewed for the article, his court always gives permission when attorneys ask.

With respect to briefs, I think that calling the court to ask how these issues have been handled in the past is always a good option.  It also doesn't hurt to do your homework and know the tenure of the court that you will appear before.  Finally, ask yourself if it is truly relevant to use the profanity in the brief.  

Apparently the Washington Redskins included a fair amount of profanity in their brief to the Fourth Circuit over the team's trademark.  According to a post on the Business Law Basics blog,

In support of the latter argument [that the Patent & Trademark Office arbitrarily enforces offensive trademarks], the team provides extensive lists of wildly offensive trademarks that the PTO has issued.  Certainly many of the issued trademarks mentioned in the brief are so salacious, crass, sexist and/or racist that we hesitate, on this family-friendly blog, to list them here.  Indeed, this opening brief is notable in being one of the most [not inappropriately] profanity-laden court filings we have ever seen, and is worth a look for that reason alone. 



August 26, 2016 in Appellate Advocacy, Appellate Practice, Federal Appeals Courts, Legal Writing, Oral Argument | Permalink | Comments (0)

Monday, August 22, 2016

Keeping it Brief

On December 1, 2016, several important changes to the Federal Rules of Appellate Procedure will go into effect (assuming Congress doesn't act in the interim).  Among other things, these changes impact the length of federal appellate briefs, particularly those filed under the word limit listed in Rule 32(a)(7)(B).  Under the current rule, briefs must not "exceed 30 pages," contain "more than 14,000 words," or contain "more than 1,300 lines of text" using a "monospaced face."  Under the new rule, the first and third options remain the same; however, the word limit decreases to 13,000 words.  Why?

Attorney John E. Roberts explains:

In support of the rule change, the Advisory Committee noted that the current 14,000-word limit resulted from an attempt in 1998 to convert the 50-page limit then in effect into a cap on words. At that time, the Committee concluded that briefs generally contained about 280 words per page — and 280 words-per-page times 50 pages equaled 14,000 words. Now, the Committee has revised its view and concluded that appellate briefs prior to 1998 actually had closer to 250 words per page, which in its view justified reducing the word limit to 12,500 words. Pushback from appellate practitioners resulted in the new limit being upped from 12,500 to 13,000 words.

The whole package of rules changes can be viewed here.  Most of the changes do concern the length of filings.  As one can imagine, the changes have been opposed by some practitioners and bar associations.  As Roberts notes, "[t]he Rules do allow the Circuit Courts to extend word limits in particular cases or even in all cases by local rule."  It will be interesting to see if that happens.  Based on my experience, most federal appellate judges believe that even under the current rules briefs are just too long.  While there is that occasional complex case that might warrant a brief length extension, that is the exception and not the norm.  

Perhaps making the length of briefs a congressional campaign issue is the only option appellate practitioners have left!

August 22, 2016 | Permalink | Comments (0)

Monday, August 15, 2016

Appellate Advocacy Meme Contest

With classes starting up again at law schools around the nation and the October 2016 Supreme Court term fast approaching, we could all use some levity.  Thankfully, the Appellate Section of the State Bar of Texas is offering just the thing--an Appellate Advocacy Meme contest.  Here is the information that I received about the contest:

Reminder to send in your submission to the Appellate Meme Contest:

There’s still time to participate in the Appellate Section's meme contest. Here’s a link to one meme generator site, but there are many such free apps and websites that make it easy to create your own appellate meme. Just find an appropriate photo, upload it, add your creative, funny, snarky, or “appealing” caption, and click “generate meme.” Then right click on your image and save it to your desktop.

All submissions are due by August 31 and should be sent to Jeff Levinger [[email protected]] and April Farris [[email protected]]. Winners will be announced at the Appellate Section annual meeting on September 8, 2016, during the first day of the Advanced Civil Appellate Practice Course in Austin.

I hope that the Appellate Section will share the winning meme with us!

If memes are not your thing, Scholastica is hosting a haiku contest on Twitter.  They are asking people to tweet their best haikus about the law review submission process using the hashtag #LawRevHaiku.

August 15, 2016 | Permalink | Comments (0)

Thursday, August 11, 2016

Congratulations and changes at the Appellate Advocacy Blog

David Cleveland, the Founding Editor of the Appellate Advocacy Blog, has been appointed Associate Dean for Academic Affairs at Valparaiso University Law School.  Congratulations David on your appointment!  Due his increased duties, he has decided to step down as Managing Editor of the blog.  I am honored to fill his shoes and thank him for all the work that he did in getting this blog off the ground.  The editorial team here at the Appellate Advocacy Blog hopes that we can continue to keep you informed on current topics in the courts of appeal and appellate practice.  We also hope that David will still contribute a post when he has time!

August 11, 2016 | Permalink | Comments (1)

Monday, August 1, 2016

SEALS 2016

The Southeastern Association of Law Schools 2016 Conference kicks off on Wednesday, August 3, in Amelia Island, Florida.  As always, Prof. Russell Weaver from the University of Louisville Brandeis School of Law has put together an excellent program.  

There are several panels that may interest readers of this blog, including:

  • A discussion group on Equality & Identity in a Post-Scalia World (Wednesday, Aug. 3)
  • A discussion group on Justice Thomas after 25 years on the bench (Wednesday, Aug. 3)
  • Supreme Court Update:  Business, Administrative, Securities, Tax, and Employment Issues (Thursday, Aug. 4)
  • Supreme Court Update: Individual Rights (Thursday, Aug. 4)
  • The Scalia Legacy (Friday, Aug. 5)
  • Understanding the Effects of Judicial Selection on State Courts (Saturday, Aug. 6)
  • The First Amendment and the Changing Supreme Court (Sunday, Aug. 7)

I will be on a panel on Monday, August 8, called "The Road to Scholarship as Seen by Newer Professors," which was organized by Prof. Suzanne Rowe from University of Oregon School of Law.  This panel is designed to offer advice to newer law professors on what to do (and of course what not to do) to establish a good scholarly agenda.  SEALS typically offers great programming for new law professors and for those thinking about entering academia.

I encourage all those attending to check out the full program here.

Special recognition to Prof. Tim Zinnecker at Campbell for the most creatively named panel:  "God created the world out of nothing in six days; I'm only the academic dean."


August 1, 2016 in Appellate Advocacy, Federal Appeals Courts, Law School, Legal Profession | Permalink | Comments (0)