Friday, September 30, 2016
Here are a handful of tidbits on appellate practice from around the web this past week. As always, if you see something during the week that you think we should be sure to include, feel free to send Dan a quick email atDReal@Creighton.edu or a message on Twitter (@Daniel_L_Real).
Upcoming SCOTUS Term
SCOTUS kicks off its new term on the first Monday in October. As a result, the week before usually results in quite a bit of chatter, speculation, and discussion about the coming term and what can be expected. Here are a few tidbits in that regard:
SCOTUS Order List:
On Thursday, SCOTUS released an Order List adding eight cases to its new term, to start next week. SCOTUSblog provided a good / quick writeup about the list and a little preview of each case.
SCOTUS 2016 Term: By the Numbers
Bloomberg broke down the upcoming term "by the numbers" -- including how many cases had been docketed at the beginning of the week (out of the 75 or so likely to make up the full docket for the year), the number being heard on direct appeal vs. discretionary grants of cert, original jurisdiction, etc. The article also breaks down civil vs. Criminal cases on the docket, the possibility of the 9th Circuit becoming the most reversed court for this term, etc.
5 Facts about the Supreme Court
Pew Research Center summarized five facts about how Americans view SCOTUS as this year's term looms on the horizon. Americans' opinions of the Court hit a 30-year low last year, but have rebounded; there is a significant partisan gap in views of the Court; those partisan views include sharp divisions about how the Court should interpret the Constitution; voters closer to the conservative end of the Republican spectrum or the liberal end of the Democratic spectrum (as opposed to moderates) view court appointments as more important to their vote in the upcoming presidential election; and most Americans disagree with the current Senate's decision not to hold hearings on the nomination of Merrick Garland. See the article for more in-depth explanation of these five points.
Hat Tip: Robert Barnes (@scotusreporter)
How Clinton's or Trump's Nominees Could Affect the Balance of the Supreme Court
Adam Liptak and Alicia Parlapiano had an article in the NY Times that provided an interactive guide and links to a new study prepared by Lee Epstein of Washington University in St. Louis, Andrew D. Martin of the University of Michigan, and Kevin Quinn of the University of California-Berkeley, discussing predictions about each candidate's potential nominees.
Hat Tip: Howard Bashman (@howappealing)
This week's edition of #TwitterTuesdays here at the Appellate Advocacy Blog focused on Supreme Court related Twitter accounts to keep you informed about all thing SCOTUS.
Judge Clears Path for PACER Overcharge Suit
An article on Law.com this week highlighted that a U.S. Court of Federal Claims judge has denied the government's request to dismiss a class action suit alleging that a computer glitch caused the Public Access to Court Electronic Records (PACER) system to erroneously overcharge users for accessing and viewing federal court docket information. The basis for the government's claim was an assertion that the plaintiffs in the suit were required to exhaust administrative remedies before pursuing the action in court; the judge disagreed. The underlying action is based on "claims for breach of contract, breach of an implied covenant of good faith and fair dealing, and illegal exaction."
Thursday, September 29, 2016
This week the west coast firm of Munger Tolles & Olson LLP announced that well-known former Solicitor General Donald Verilli will lead the opening of its new Washington, D.C., office. Verilli is moving back into private practice after several years at the Department of Justice. He plans to continue his appellate practice but also to build an office that is broad in its reach regarding regulatory issues, counseling, and negotiation.
For Verrilli, heading to Munger Tolles represents a return to private practice. Before his time in government, he worked for Jenner & Block LLP, where he chaired the telecommunications, appellate and Supreme Court practices and developed expertise in areas such as patent law, technology, content and copyright, health care and energy. He also served as deputy White House counsel, and as an associate deputy attorney general at the U.S. Department of Justice before his June 2011 confirmation.
Verilli argued some of the biggest cases ever before the Court:
As the nation’s 46th solicitor general, Verrilli argued the landmark 2012 National Federation of Independent Business v. Sebelius decision, in which a 5-4 majority upheld the constitutionality of most parts of the Affordable Care Act. That, along with 2015's King v. Burwell decision over state health care exchange subsidies, are some of his proudest moments from his service, Verrilli said.
“We were defending social policy of enormous consequence and the stakes could not have been higher,” Verrilli said. “I thought in both those cases, the lawyering really made a difference in the case, and I’m very proud of that work and that I had a chance to do it.”
Arguing cases defending the right to marriage equality was an "enormous privilege," Verrilli said. During his tenure, he argued against the federal ban on same-sex marriage in the Defense of Marriage Act in the 2013 U.S. v. Windsor case and against state bans on same-sex marriage in the 2015 Obergefell v. Hodges case, in which the majority found a constitutional right to same-sex marriage.
Verilli, formerly of Jenner and Block - a Supreme Court powerhouse law firm - is bringing some legal firepower to the new office. Michael DeSanctis, a former partner at Jenner and Block, and Chad Golder, at DOJ and formerly at Wilmer Cutler Pickering Hale and Dorr, will be joining Verilli at the D.C. office. Verilli is also known for his skill in building talented legal teams.
While this "start up" might be a little new to the scene to make the Appellate Hot List for this year, it will likely be a frontrunner before long. The National Law Journal is currently taking nominees for law firms that have done exemplary, cutting-edge appellate advocacy:
Potential nominees must be able to point to least one significant appellate win since January 2015, plus an impressive track record overall. A "significant win" means prevailing before the U.S. Supreme Court, a U.S. circuit court of appeals or a state court of last resort when the financial stakes were high or an important legal principle was at stake.
Munger Tolles & Olson with Verilli at the helm will likely lead the contenders in years to come, but who are your picks for this year?
Tuesday, September 27, 2016
We are one week away from the first arguments of the Supreme Court's 2016 Term. So, for #TwitterTuesday this week, I wanted to focus on the Supreme Court related Twitter accounts that you should follow to be stay in the know about all things SCOTUS related.
By far, my favorite source for SCOTUS news is SCOTUSblog.com. They provide detailed information on pending cases and cert petitions and liveblog the release of opinions. Follow them on Twitter (@SCOTUSblog) to access their content and discuss the latest SCOTUS news with other appellate enthusiasts. Just remember--it isn't the real Twitter account of the Supreme Court! That account is (@USSupremeCourt).
Tony Mauro (@Tonymauro) is a Supreme Court correspondent for Law.com and the National Law Journal (@The NLJ) and tweets about all things SCOTUS. For a look at the Court that goes beyond its rulings, make sure to follow Mr. Mauro.
After working in a firm, Kimberly Robinson (@KimberlyRobinson) is a legal editor for U.S Law Week and is that publication’s lead reporter at the Supreme Court. She also blogs for Bloomberg BNA on matters concerning the High Court.
Oyez (@Oyez) is Chicago-Kent's multimedia Supreme Court archive. It has some great historical tools for SCOTUS followers.
Don’t forget to check out Supreme Court USA (@iSupremeCourt) for information regarding potential cases and recent decisions before the Supreme Court.
Monday, September 26, 2016
Last week Tony Mauro posted a story on Law.com about his attempt to inquire about the health status of the eight justices on the United States Supreme Court. Chief Justice John Roberts sent a polite, but short response, informing Mauro that he "can expect to see an able and energetic Court when we reconvene in October."
While I have a lot of respect for Mauro, I am surprised and disappointed with this fixation with the health of the justices on the Court. While it may be quite relevant to know the basic health of a presidential candidate, who is elected to serve a 4 year term leading the free world, a judge or justice's job is not intended to be all that important. Remember, Hamilton called the Court the "least dangerous branch." Judges decide cases. Yes, that involves a certain amount of discretion, but it is very different for the discretion and power that is given to the president.
Furthermore, judges and justices are appointed for life. That means that they are going to get old and, at some point, die. At the circuit court level, many judges take senior status when they are ready for a slower pace of life. Some judges even voluntarily resign at a certain age. Unless we want to amend the Constitution, an aging judiciary is just a fact of life.
Additionally, any questions about the health of a judge or justice are best considered at the nomination and confirmation stages, where they can be handled in executive session away from the prying eyes of the public. Having worked nominations at the Department of Justice and the Senate, I have seen how both branches address sensitive issues of concern without making them a public news story. Justice Scalia had every right to keep his medical records private, just like I do. The fact that we have made the Supreme Court so political shouldn't change that fact.
If you do want to know the most up-to-date public information about the Justices health, Mauro has outlined that information here. Not much here is new (other than the fact that Justice Kagan wears a fit bit). It shows that the Court has some older members. But, the more politicized we make the Supreme Court and nominations to that Court, the more likely members of that Court will stay in their seats as long as possible. Since the politicization of the Court is unlikely to change any time soon, we should just rely on the good judgment of the president, Senate, and Court to handle this issue privately--the way it should be handled.
Friday, September 23, 2016
Here are a handful of tidbits on appellate practice from around the web this past week. As always, if you see something during the week that you think we should be sure to include, feel free to send Dan a quick email at DReal@Creighton.edu or a message on Twitter (@Daniel_L_Real).
Will the Supreme Court's Vacancy Issues Ever Become an Election Issue?
Chris Geidner had an article on BuzzFeed News this week asking the question. The article recounted how, for a brief moment last weekend, it appeared as if the topic of the vacancy on the Supreme Court and Congress's decision not to consider and vote on President Obama's nominee to fill the vacancy would became a real issue in this year's Presidential election. Hillary Clinton was asked a question about it; a member of Donald Trump's campaign allegedly had been told that he would be a nominee in a Trump administration; Senator John Cornyn (chair of the Judiciary Committee's subcommittee on the Constitution) spoke about hopes of confirmation for a set of lower court nominees back by Republican senators. But the focus quickly shifted away, again. Nonetheless, as the article notes, there are still some key dates coming up that might shift focus back to this topic as a key in the race for the White House, including the Court's new term opening in October, as well as upcoming debates.
Related, Jason P. Steed (@5thCircAppeals) tweeted a link to his April blog post about "Duty" and the Constitution, discussing the debate over whether the Constitution imposes a "duty" on Congress to consider and vote on a nominee to fill a vacant seat on the Court. The post raises some great discussion points about the intersection between whether the Constitution specifically imposes such a duty and whether it's acceptable to conclude that it does not if that conclusion arguably threatens the very function of the Constitution itself.
Finally, Cornell Law Professor Michael Dorf had a post on Justia.com titled, "The Future of the Supreme Court, Regardless of Who Wins the Election." In the piece, he makes the case that although "it is tempting for those of us who follow the work of the high Court to play a waiting game" and acknowledges that "with respect to some important issues, uncertainty . . . warrants caution" he also argues that "Supreme Court watchers who are fearful about the outcome of the 2016 election can take comfort from the fact that it may not matter as much as we expect." He argues that there are "vast swaths of our public life about which the Court has almost nothing to say" and that "[s]ome areas of Supreme Court jurisprudence will likely be unaffected by the next appointment(s) because they rest on broad cross-ideological consensus." While acknowledging that "who appoints the next several justices to the Supreme Court is [not] an unimportant question" he argues that we should not think "that everything is up for grabs" because, at the end of the day, "the Court still decides many more cases unanimously than by a single vote" and also points out that history should tell us that "[e]ven when we know who will apoint justices . . . [and] even when we know who those justices are," their ultimate voting habits with the Court are often unexpected.
Dorf on Twitter: https://twitter.com/dorfonlaw
Oral Argument Preparation Thoughts
Bryan Gividen (@BryanGivi) started a good twitter discussion about oral argument preparation process and tips. David Feder (@davidjfeder) had previously posted an image showing the Solicitor General's process for oral argument prep in cases before SCOTUS. The comments and responses to both provide some great practical thoughts from folks who regularly engage in oral argument preparation.
Gividen Twitter Discussion Link: https://twitter.com/BryanGivi/status/777896705161170944
David Feder Twitter Post: https://twitter.com/davidjfeder/status/777650613114974208
How Many Issues to Raise on Appeal
Mike Skotnicki (@MSkotnicki) tweeted a link to a 2014 blog post he wrote about determining how many issues to raise on appeal. In the post, he discusses striking the balance between raising every issue that you can possibly find and only raising one or two really good arguments, arguing in favor of raising "every argument deemed to have real potential to be found meritorious" and capable of passing the "'red face test' (would you blush raising the argument during questioning at oral argument?)"
Tuesday, September 20, 2016
It is time again for #TwitterTuesday. Today we are featuring some of the best folks to follow for Texas Appellate Practice.
The Texas Supreme Court (@OslerSCTX) is the Twitter handle to go to for information on cases, the Court, Justices, and other news pertinent to lawyers in the Lone Star State.
Between the official Texas Attorney General Twitter (@TXAG) and Ken Paxton’s person account (@KenPaxtonTX), news regarding some of the most high-profile appellate advocacy cases are just a few tweets away.
The State Bar of Texas Appellate Section (@TexAppOrg) is a must follow for appellate advocacy news and entertainment. Besides offering continuing education and other information to help enhance appellate practice in Texas, the Appellate Section has also been known to sponsor appellate memes contests to provide some much need humor amongst attorneys.
Follow TX Appellate Law (@TXAppellateLaw) for the latest “insight and commentary on Texas civil appeals and litigation,” compliments of D. Todd Smith (@dtoddsmith) and the Smith Law Group (@SmithLawGroup).
Finally, for some excellent writing tips and up-to-date information on the Fifth Circuit follow David Coale (@600camp).
If you follow the State Bar of Texas Appellate Section you can see the results of the Appellate Meme Contest. In interest of full disclosure, I came in second with this great meme:
The winning meme came from Jody Sanders of Kelly Hart & Hallman. It is epic:
Monday, September 19, 2016
Making workplaces more family friendly has been on the minds of people as different as Justice Ruth Bader Ginsburg and Republican presidential candidate Donald Trump. Last week Trump, with the help of his daughter, introduced child-care policies. According to the National Law Journal, last Wednesday Justice Ginsburg had a related issue on her mind when she "chided law firms for not taking more steps to improve the balance between home and work for lawyers with young children." Her remarks came in a conversation with former Solicitor General Ted Olson before the D.C. chapter of the Association of Corporate Counsel.
In fact, a recent Huffington Post blog post listed being a lawyer as the ten worst jobs for work-life balance. On their top ten best list--hairstylist and data scientists--skills that probably don't appeal to lots of attorneys (in fact the data scientist description mentioned the need for lots of math). However, a 2014 Forbes list of best work-life balance jobs included being a law clerk, a career that can involve balance if your judge is on board with the idea.
While work-life balance is not specifically an appellate law topic, it is certainly an issue that appellate attorneys must consider. Stringent briefing deadlines, preparatory moots, and traveling to courts across the country for arguments can make it difficult to live a balanced life. What are the best appellate positions for work-life balance? My guess would probably be government appellate work or, perhaps, some non-profits who engage in limited appellate litigation. According to an article last year in The Atlantic, there is a new set of law firms cropping up that are striving to provide more flexible schedules for men and women. Perhaps more big law firms will follow Justice Ginsburg's advice and the model of these other firms and offer more work-life balance options for their attorneys.
Friday, September 16, 2016
This is the first edition of a new regular feature here at the Appellate Advocacy Blog: The Weekly Roundup. Each Friday, we’ll post links to some of the best appellate practice content that we’ve come across in the past week. If you see something during the week that you think we should be sure to include, feel free to send Dan a quick email at DReal@Creighton.edu or a message on Twitter (@Daniel_L_Real).
How Not to Argue About Extrinsic Evidence
600 Camp – a blog about commercial litigation before the U.S. Court of Appeals for the Fifth Circuit – had a brief post on September 12 about the Fifth Circuit’s unpublished opinion in SmithGroup JJR, PLLC v. Forrest General Hospital. The brief opinion addressed the importance of preserving at the trial level arguments to be raised on appellate review. The particular issue at hand involved the admission and use of extrinsic evidence in the interpretation of a contract.
Blog Post: 600 Camp Blog Post
Fifth Circuit Opinion: SmithGroup v. Forrest General Hospital Opinion
Hat Tip: @David Coale
The 5 Edits I Make Most Frequently
Mark Herrmann, formerly a partner at a leading international law firm and now responsible for litigation and employment matters at a large international company, authored a post at Above the Law this week recounting common editing moves in the writing of briefs. There is a wealth of good advice there, based on real experience.
Blog Post: Above the Law Blog Post
Hat Tip: Raymond P. Ward
A Worthwhile, Four-Day Appellate CLE Is Coming to Philadelphia
Howard Bashman (featured in this week’s “Twitter Tuesday” has written a great post discussing the annual Appellate Judges Education Institute Summit, an annual four-day program hosted by the judicial division of the ABA and the Southern Methodist Dedman School of Law. In a lot of ways it is like a big CLE over several days, featuring a large group of judges and appellate practitioners. This year’s event is being held in Philadelphia in November. If it fits your schedule, it’s a highly beneficial event to attend and participate in.
Blog Post: Bashman Blog Post
Hat Tip: @howappealing
Combination of Clement/Bancroft firm with Kirkland & Ellis
A big news item this week concerns the breaking news that Paul Clement and the Bancroft firm are going to combine with Kirkland & Ellis. This news was reported and discussed in a variety of places, including an article in the National Law Journal, where another prominent SCOTUS bar practitioner was quoted as calling it “the biggest shake-up in the Supreme Court bar since [Clement] left King & Spalding in 2011.”
Article: National Law Journal Article
Hat Tip: @tessadysart
Twitter Thread About Getting Into Appellate Practice
Jason Steed, who was recently mentioned in our Twitter Tuesday feature and who is an appellate practitioner who blogs and tweets about appellate practice (especially in the 5th Circuit), started a twitter thread and discussion about getting into appellate practice that has some great discussion and thoughts. You can follow Jason’s other posts about appellate practice at @5thCircAppeals.
Thursday, September 15, 2016
Do we really need the United States Supreme Court to be fully staffed with nine justices? Eric Segall at The Daily Beast says, "No." This answer is a direct affront to the traditional idea that having an uneven number of justices is good for cleanly resolving disputes. Avoiding a tie is the most important thing. Or is it?
The legal outcome when justices vote 4-4 on an issue is simply that the result from the court below stands, and no precedent is made. The case ends for the parties involved, but the effect of the ruling also remains restricted to that jurisdiction. In a day and age when politics seem to cloud every serious issue or casual conversation, this is certainly a new way to think about the operational power of the Court.
Segall says the benefits to leaving the Court with only eight seats filled would be that no one political party could have too much influence over the outcome of controversial cases. Historically, the Court has been criticized for leaning too far one way or the other. In doing so, the Court, which is ideally a non-political entity, since justices are not elected, might be able to maintain or regain some of the aura of a disinterested neutral body.
But leaving the Court in this status really only addresses our current highly politicized process, and assumes that half the Court will always be conservative and the other half liberal. The Court can still shift to having a majority of conservative or liberal leaning justices even if the total number of justices remains at eight. Of course, other political ideologies may also come to dominate as well.
Further, while 4-4 decisions put the brakes on creating law that could be too partisan leaning, extended periods of deadlocked opinions could also do more harm than good. The Supreme Court should be able to break ties in order to unify disparate approaches amongst the lower courts. Allowing 4-4 "sides" to continue could perpetuate the perceived political nature of the Court. This would ultimately only serve to fuel the existing divisiveness in the population and the erosion of public trust in our judicial system.
Wednesday, September 14, 2016
I received an email with the following hiring announcement that may be of interest to our readers:
Professor and Director of Trial Advocacy
SAMFORD UNIVERSITY’S CUMBERLAND SCHOOL OF LAW is seeking applicants to fill the position of Professor and Director of Trial Advocacy. The Director will oversee the law school’s Trial Advocacy program beginning in the 2017-2018 academic year. Ranked 14th in the nation by the U.S. News & World Report, Cumberland’s Trial Advocacy program demands a strong commitment to excellence from students seeking to develop exceptional advocacy skills. This faculty member will teach courses in Trial Advocacy and others subject to the candidate’s areas of interest and curricular needs. This is a tenure-track position. Applicants should have superior academic credentials and a demonstrated record of, or the potential for, excellence in teaching, legal scholarship and service. Prior teaching experience is advantageous but not required. The committee is particularly interested in candidates with significant trial and litigation experience, including the use of technology in the courtroom. Salary and rank are commensurate with the candidate’s experience and skills. Samford University is an Equal Opportunity Employer and does not discriminate on the basis of race, color, gender, national or ethnic origin, disability or age in its hiring. In furtherance of our strong institutional commitment to a diverse faculty, we particularly welcome applications from minorities, women, and others who enrich and diversify our faculty. Please forward a letter of interest, a resume or Curriculum Vitae, and a list of three references to: Professor Jill E. Evans, Cumberland School of Law, Samford University, 800 Lakeshore Drive, Birmingham AL 35229 or via email to email@example.com.
Tuesday, September 13, 2016
It is time for another #TwitterTuesday. This Tuesday we will highlight three appellate attorneys with blogs. By following these attorneys on Twitter, you can get easy access to their most recent appellate advocacy blog posts.
Jason P. Steed (@5thCircAppeals) is an “English prof turned appellate lawyer” who works at a firm based in Dallas, Texas. While not representing clients or writing articles for his website (Forma Legalis), he avidly tweets about criminal and civil cases, SCOTUS decisions, and the occasional political quip.
Howard Bashman (@howappealling) is an appellate attorney, author, and creator of “The Web’s first blog devoted to appellate litigation.” Bashman tweets about everything from constitutional law questions, intellectual property cases, and shifting trends in Circuit Court appointees.
Steve Klepper (@MDAppeal) is an appellate attorney in Maryland and the District of Columbia. While not serving as the Editor-in-Chief of the Maryland Appellate Blog, Klepper often tweets about politics, Maryland courts, and the current hot-button issues in law.
Monday, September 12, 2016
Last week Judge Stephen Dillard of Georgia Court of Appeals tweeted that his court is now live streaming oral arguments. The court's website contains a link that will take interested viewers to the live feed.
The issue of cameras in the courtroom has been divisive, especially at the United States Supreme Court level. Some justices feared that oral argument would become more about soundbites and less about the law. There is also concern about statements from justices being taken out of context and the public not understanding court procedures. So, while the audio from United States Supreme Court arguments is available, usually a few days after the argument is over, video cameras have not been allowed.
From an advocates standpoint, however, live streaming of oral arguments is a great learning tool. It allows an attorney to preview how different courts, and different judges or justices, operate without making a potentially costly trip to visit a particular court. It is also a great learning tool for students of appellate advocacy. Most law schools are not located near a federal appellate court, or the United States Supreme Court for that matter! Allowing students to watch arguments without the time and expense of traveling to a federal courthouse is a great tool for professors.
As it turns out, many state supreme courts offer live streaming of their oral arguments, including, Arkansas, Arizona, California, Colorado, Delaware, Indiana, Kansas, Kentucky, Maine, Michigan, Nebraska, New Jersey, Ohio, Oregon, South Carolina, West Virginia, and Wyoming. Some of these states, and other states, also include court of appeals arguments. At the federal level, the Ninth Circuit offers live streaming audio of appellate arguments. It seems likely that other federal courts will follow suit.