Appellate Advocacy Blog

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

Monday, October 31, 2016

Visual Aids in Briefs & at Argument

Last week I was working on the oral argument chapters of the third edition Winning on Appeal.  The book, which was originally written by Judge Ruggero Aldisert, is published by NITA.  It serves as a great practical guide to appellate advocacy and includes tips from state and federal judges on effective appellate advocacy.  As I was updating the quotes, I saw several judges refer to visual aids at argument.  As a federal appellate law clerk, I never saw anyone bring a chart or graph or other visual aid into court.  However, it does apparently happen often enough that judges commented on it, and other bloggers have written on the subject.

Generally, while some judges thought that visual aids could be used effectively, such as to walk through complicated statutes or regulations, the judges noted that some attorneys fail to remember that the visual aids can be hard to read from a distance.  Therefore, if your jurisdiction permits, you should bring copies of any visual aids to give to the judges.  If you can't bring copies, you need to be sure that you are using a font that can be read from a distance.  If your visual aids involve technology (such as PowerPoint), be sure that you have it set up to work, or else you could waste valuable argument time playing with technology.  Finally, as Georgia attorney Scott Key has noted, using visual aids as a demonstrative can take away from the discussion between the judges and the attorney.  Remember, one of the main points of oral argument is to answer the judges' questions, not demonstrate your Prezi designing skills.  Anything that distracts from answering judges questions should be eliminated from an argument.

So what should you do if you have something that is better explained with a picture?  I think that it is best to include that picture or graphic in your brief.  My experience is that nearly every appellate judge takes the briefs with her to the bench during argument.  Thus, pointing the judges to a graphic in your brief can be really effective.  In Reed v. Town of Gilbert, a case challenging the constitutionality of a town sign ordinance, the attorneys representing the parties challenging the ordinance used graphics in their brief to effectively compare and contrast the nuances of the complicated sign ordinance and show how the ordinance was, in fact, contest-based.  I am not sure that the ways that the sign ordinance differentiated between different types of signs would have been conveyed as well without the graphics--especially with respect to the different sizes of signs and the duration that they could be displayed.

One word of caution:  If you are going to use graphics in a brief, however, be sure that you don't go overboard, like this attorney did several ago in an antitrust case.  Moderation is the key.

October 31, 2016 | Permalink | Comments (0)

Friday, October 28, 2016

Appellate Advocacy Blog Weekly Roundup

WeeklyRoundupGraphic

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).

Continuing Impacts of the Supreme Court Vacancy 

This week, Lyle Denniston (@lylden) took a look at three Supreme Court cases that were accepted right before Justice Scalia's death, but haven't received an oral argument date yet.  Denniston noted that the cases have intentionally been bypassed as hearings have been scheduled, and argued that the most likely reason for the intentional bypassing of these three cases – which have been waiting the longest to be argued – is that the Justices are inclined to think that they would wind up in 4-to-4 splits. 

One of the cases, Trinity Lutheran Church v. Pauley, is about school access to a state government program for turning tires into playground sufaces.  The case implicates state constitutional clauses in more than 30 states that deny equal access to government benefits for an organization that is a house of worship or is directly affiliated with one. 

The second case, Murr v. Wisconsin, involves the question of how private property is defined when the government seeks to prevent or regulate development because of environmental concerns. 

The third case, Microsoft v. Baker, involves suit by a group of consumers in Washington against Microsoft, in which they complain that the Xbox 360 had a defect that caused its optical disc to damage the machine to the point that it was unplayable.  Although the plaintiffs in the suit were denied class action status, they managed to get the case dismissed in a manner that allowed them to appeal as a class. 

Each of the three cases involves matters in which Justice Scalia had been outspoken in decisions in recent years.  

Posner Declares the Supreme Court "Awful" 

Judge Richard Posner of the Seventh Circuit Court of Appeals made headlines again this week.  This time, the headlines stemmed from a recent appearance at the Seminary Co-op Bookstore in Chicago, in connection with the launch of a biography on Posner. 

At the event, Posner said that he was working on a new book about the federal judicary. He said that he had "about ten pages on the strengths and about 320 pages on the weaknesses."  Posner continued to say that he was "very critical" and that he does not "think the judges are very good. [He thinks] the Supreme Court is awful. . . . Probably only a couple of the justices, Breyer and Ginsburg, are qualified. They're okay, they're not great." 

Posner criticized federal judges, including the Supreme Court Justices, as lacking intellect – suggesting that they are appointed for appearance purposes and use clerks to do much of their work.  He asserted that the Supreme Court Justices lacked extensive trial experience.  And he criticized their writing, suggesting that Breyer and Ginsburg are the only ones who author readable opinions.  He also took issue with formalisms like res judicata and continued reliance on precedent. 

Posner even took issue with the fact that judges call their offices "chambers," attributing the practice to fourteenth century French language. 

(Video of Posner's Comments )

(Hat Tip:  Above the Law @atlblog )

Clarence Thomas' Majority by Dissent and Jeffrey Toobin's Disdain 

Adam White had a piece this week at the Weekly Standard where he discussed Jeffrey Toobin's latest critical piece about Justice Clarence Thomas.  Toobin's latest piece in the New Yorker reflected on Justice Thomas' 25-year anniversary with the Supreme Court. White noted that Toobin's premise in the latest piece is that Thomas does not write any significant majority opinions and instead focuses mostly on dissenting from others' opinions and has been "on a Court of his own" for his career with the Supreme Court.  

White disagrees with the premise.  White notes that Thomas has written dozens of majority opinions, including ones in cases "on questions of state sovereignty, the First Amendment, antitrust, and . . . administrative law." White also contends that it doesn't matter how many majority opinions he has written – because Thomas authors concurrences and dissents, spelling out his own reasoning, and emphasizing his view of original intent in Constitutional thinking. Thomas also notes that while Toobin has praised other justices, like Ginsburg, for being "influential in different ways," he seems to turn a blind eye to that same thought when looking at Justice Thomas. 

 

Adnan Syed's Lawyers Motion for Bail 

Adnan Syed, whose murder case was spotlighted on the popular podcast, "Serial," in 2014, has remained incarcerated despite a ruling more than three months granting him a new trial. This week, his lawyers filed a motion asking that he be released on bail. The filing asserted that "Syed has now served more than 17 years in prison based on an unconstitutional conviction for a crime he did not commit." 

(NY Times Article

ABA's Unease Over Trump Article Results in First Amendment Debate 

A media lawyer in California, Susan Seager, authored an article reviewing Donald Trump's history as a libel plaintiff.  In the article, Seager called Trump a "libel bully" and a "libel loser," because of his record of losing such cases.  Her article was originally supposed to run in Communications Lawyer, a quarterly newsletter of an ABA member group.  In mid-October, however, discussion between ABA deputy executive director James Dimos, the newsletter's editors, and Seager, resulted in Seager pulling the piece and having it published online at medialaw.org. 

Among the suggested edits were recommended deletions of "direct references to Trump as a bully, a description of Trump as 'orange haired and orange tinged,' and a statement that Trump lacked a sense of humor."  Additionally, the suggested edits included changing the proposed title of the article from "Donald J. Trump is a Libel Bully but also a Libel Loser," to "Preseidential Election Demonstrates Need for anti-SLAPP Laws." 

Although the ABA disputes that its expressed concerns and suggested edits to Seager's language amounted to blocking the initial publication, media lawyers have expressed concern and called the situation an example of censorship. 

According to the ABA, the concerns expressed about the language of the article were based on concerns about whether the pointed language in the article amounted to "[n]ame calling and questioning Mr. Trump's mental capacity," were "ad hominem attacks [that could] increase the risk of the ABA being sued by Mr. Trump," and were inconsistent with the ABA's strong policy of being a nonpartisan organization. 

(Article

SCOTUS Celebrity News 

Apparently Chief Justice Roberts and his wife recently purchased a second home on an island off the midcoast of Maine.  Although the price was not disclosed, a 15-year mortgage for $1Million was filed.  

(Hat Tip:  Howard Bashman @howappealing) 

#AppellateTwitter Weighs in on Golden Rules of Legal Writing 

Joe Fore (@Joe_Fore), Co-Director of the UVALaw legal writing program, asked for #AppellateTwitter's help this week in boiling down legal writing into aa few golden rules – broad take-homes – for his legal writing class.  And #AppellateTwitter did not disappoint. 

(Twitter Thread)

 

October 28, 2016 in Appellate Advocacy, Appellate Practice, Current Affairs, United States Supreme Court | Permalink | Comments (0)

Tuesday, October 25, 2016

#TwitterTuesday--Old Dominion Edition

TwitterTuesdays

For #TwitterTuesday this week we are focusing on the great Commonwealth of Virginia.  Virginia is, of course, home to one the greatest appellate minds of all time--Chief Justice John Marshall, as well as Marshall's political opponent Thomas Jefferson.  While Virginia was a major player in the history of our nation, and in the development of legal history, it is underrepresented in the Twitterverse when it comes to the topic of appellate advocacy.  Nonetheless, we found some great Twitter accounts to follow for those interested in Virginia law in general and appellate advocacy in particular:

Virginia Supreme (@VASupremeCt) provides easy access to Virginia Supreme Court opinion summaries from Justia (daily.justia.com).

The Virginia State Bar (@VAStateBar) is an agency of the Supreme Court of Virginia. The Bar Association tweets about tips, latest news and events, and even some history of profession in Virginia, including appellate advocacy.

Norman Thomas (@NormanThomasLaw) is an appellate lawyer in Richmond, Virginia. With more than thirty years of experience, Thomas shares his knowledge of Virginia law through his tweets and articles he writes regarding appellate news.

VA Bar Association (@VABarAssn) provides an “independent voice” for Virginia lawyers by “advancing the highest ideals of the profession through advocacy [and] volunteer service.” Their tweets serve as great reminders for new learning and networking opportunities provided by the Bar Association.

Jay O’Keeffe (@jayokeeffe) is an appellate and business litigation lawyer in Roanoke, Virginia and publishes articles for “DeNovo: A Virginia Appellate Law Blog.” O’Keeffe, named one of Virginia’s “Rising Stars” from 2008-13, keeps the twitter-world informed about the latest posts on the blog as well as current news in politics and cycling.

Jim Guy (@VirginiaBarPrez) is the 128th President of the Virginia Bar Association. Follow Guy for interesting news concerning Virginia law, interesting cases, and a more personal perspective of the events sponsored by the Virginia Bar Association.

October 25, 2016 | Permalink | Comments (0)

Monday, October 24, 2016

Predicting the Big Court

Let's face it--lawyers are competitive.  We love to win our cases, our office fantasy football league, and the interoffice softball games.  In 2009, Professor Josh Blackman from South Texas College of Law (now Houston College of Law) took lawyer competition to a new level with the creation of FantasySCOTUS.  

FantasySCOTUS is "the leading Supreme Court Fantasy League. Thousands of attorneys, law students, and other avid Supreme Court followers make predictions about cases before the Supreme Court. Participation is free and Supreme Court geeks can win cash prizes up to $10,000."

Participants can create their own leagues to play against friends and colleagues.  I usually create a league for my constitutional law classes and offer a little extra credit to my students who participate.  FantasySCOTUS keeps them interested and engaged in the current Supreme Court term.

In addition to allowing people to predict the outcome of Supreme Court cases, FantasySCOTUS features {Marshall}+, "a revolutionary algorithm that can accurately predict Supreme Court cases."  {Marshall}+ was created by LexPredict, which now runs FantasySCOTUS.  According to the FantasySCOTUS website, "{Marshall}+ was able to predict every case decided since 1953 at 70% accuracy."

So, forget the softball league and start thinking about FantasySCOTUS this year!

 

October 24, 2016 | Permalink | Comments (0)

Friday, October 21, 2016

Appellate Advocacy Blog Weekly Roundup

WeeklyRoundupGraphic

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).

Presidential Debate:  SCOTUS as a Topic

The third and final debate between Hillary Clinton and Donald Trump was this week, hosted by Chris Wallace.  And SCOTUS was a topic.

Law.com ran a story early in the week, in which it reported on the results of efforts by Law.com reporters to reach out to Supreme Court practitioners and other lawyers about what the candidates should be asked about SCOTUS.  The ARTICLE highlighted some of the responses.

Law.com followed up after the debate with a review of how the topic was actually handled.  Although SCOTUS was scheduled as one of six, 15-minute topics for the debate, moderator Chris Wallace struggled to get the candidates to provide much in-depth discussion about where the Court might go in the next several years and how they viewed the Constitution.   Clinton emphasized that she hopes to see the Court "not reverse marriage equality, not reverse Roe v. Wade, and . . . stand up against Citizens United." Clinton also urged Congress to go forward with the process of considering Merrick Garland's nomination to the Court. Trump's vision for the Court included observations that "[t]he justices [he's] going to appoint will be pro-life, they will have a conservative bent, they will be protecting the Second Amendment . . . [and] will interpret the Constitution the way the Founders wanted it."

More on the intersection of the election and SCOTUS and the future of the Court can be found in this week's Thursday Round-Up at SCOTUSblog.

Follow-Up on Donald Trump vs. The New York Times

Last week's Weekly Roundup included the "disagreement" between Donald Trump and the NYT concerning the Times article about women accusing Trump of inappropriate behavior.  The letters exchanged between Trump's lawyer and the Times' lawyer went viral

This week, the author of the Times response to Trump, David McCraw, penned a piece for Times Insider, in which he described his reactions to the response letter going viral.  See:  "I Hardly Expected My Letter to Donald Trump to Go Viral."  McCraw notes that he wrote the response letter "in about 45 minutes . . . between a meeting on the company's emergency operations plan and a conference call about a new patent suit." After that, McCraw and three colleagues from the Legal Department spent "about 30 minutes, talking about whether the overall point and tone were right, whether words should be tweaked, whether the ending was right." McCraw notes that when he was ready to publish the letter, he jokingly told his legal department colleagues to "[s]tand by [their] Twitter accounts." Then the letter went viral.

McCraw took note of the Internet debate over things like his comma usage and whether there should be one or two spaces after a period. he received hundreds of emails in response to the letter, mostly from strangers but also from former students, colleagues, and law school classmates. He noted that his intent was not to get into politics, but to focus on the basics of press freedom, in a way merited in many cases removed from the spotlight of Donald Trump.  But he also heard from a number of women who felt his letter was also speaking on their behalf, standing up for the women who had come forward to make the accusations against Trump.

According to McCraw, his "favorite email was the one that ended: 'As my sister put it, I've never wanted to hang a paragraph from a lawyer on my fridge before.'"

Washington University Law's Supreme Court Database

First Mondays (@FirstMondaysFM), a seasonal podcast on the Supreme Court, hosted by Ian Samuel (@isamuel) of Harvard Law School and Dan Epps (@danepps) of Washington University St. Louis Law, discussed this resource from Washington University Law in this week's podcast.

The Supreme Court Database is described on Washington University Law's website as "the definitive source for researchers, students, journalists, and citizens interested in the U.S. Supreme Court." It "contains over two hundred pieces of information about each case decided by the Court between the 1791 and 2015 terms."

Put a couple of logs in the fireplace, make some hot cocoa, and settle in for a fall weekend of browsing this resource if you are a fan or follower of SCOTUS.  There's just so much great information there.

Hat Tip:  Bob Loeb (@BobLoeb).

On the Lighter Side

Jason Steed (@5thCircAppeals) rejoiced this week at discovering a California appellate court published an opinion using Century Schoolbook font.  See SoCal Appellate News Blog.

 

 

October 21, 2016 in Appellate Advocacy, Appellate Practice, United States Supreme Court | Permalink | Comments (0)

Tuesday, October 18, 2016

#TwitterTuesday--Professor Edition

TwitterTuesdays

After a week hiatus we are back with #TwitterTuesday--Professor edition.  There are a host of professors who frequently tweet about various aspects of appellate practice.

Randy Barnett (@RandyEBarnett) is a professor at Georgetown Law. When not writing Constitutional Law textbooks or other related works, Barnett, a relative new-comer to the world of Twitter, tweets about SCOTUS related matters.

Rachel Gurvich (@RachelGurvich) is a professor of writing and advocacy courses at the University of North Carolina at Chapel Hill. The former appellate litigator tweets about crafting briefs, tips for surviving law school, and things related to Hamilton: The Musical.

Josh Blackman (@JoshMBlackman) is a professor at the Houston College of Law (@HOUcollegeoflaw) and the President of the Harlan Institute (@HarlanInstitute). If Blackman is not working on FantasySCOTUS or writing on Constitutional Law issues, he tweets about the latest certiorari grants, notable cases in state and federal courts, and answers to people’s constitutional law questions.

Jennifer Romig (@JenniferMRomig) is a legal writing professor at Emory Law. When this “Advocate of checklists and listening skills” is not writing for listenlikealawyer.com, she tweets legal writing tips and critics with great information for law students and practitioners alike.

October 18, 2016 | Permalink | Comments (0)

Friday, October 14, 2016

Appellate Advocacy Blog Weekly Roundup

WeeklyRoundupGraphic

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).

US Law Week Blog Weekly Recap of SCOTUS 

As noted in our last roundup, October brings us the new term for SCOTUS.  And that means that for the foreseeable future there will be plenty of SCOTUS discussion going on across the Internet – previews of upcoming cases, recaps and discussion of oral arguments, predictions of outcomes, and eventually discussion of opinions as they get released. 

Kimberly Robinson (@KimberlyRobinsn) provides a weekly breakdown of the week's oral arguments on Bloomberg BNA's US Law Week Blog.   Her blog post for the first week was published there on October 6  and her blog post for this week was published there on October 13. (insert cite)  It's a great, quick recap of the highlights every week, with links to the cases and other resources for additional information when you want to dig a little deeper. 

SCOTUS High Points 

Earlier this week, SCOTUS heard arguments in the appeal by Samsung Electronics of a $400 million verdict in favor of Apple for Samsung's infringement of the design of Apple's iPhone.  SCOTUSblog has all the details you need about the case, including links to the major filings and a preview of the argument. 

LINK:  http://www.scotusblog.com/case-files/cases/samsung-electronics-co-v-apple/?wpmp_switcher=desktop 

 

Another big case at SCOTUS this past week was Pena-Rodriguez v. Colorado, involving a Colorado man's appeal of Colorado's "no impeachment rule," which bars courts from inquiring about matters or statements occurring during jury deliberations. In Pena-Rodriguez, after the jury issued a verdict convicting Pena-Rodriguez of assaulting two teenage sisters at a racetrack, defense lawyers questioned jurors who were willing to discuss the deliberations and two of the jurors informed defense lawyers that one juror, a former law enforcement officer, had repeatedly expressed bias toward the defendant and his alibi witness because they are Hispanic.  The jurors provided affidavits, in which they quoted statements made during deliberations. 

The trial judge in the case ruled that the jurors could not be questioned to provide a basis for a new trial because of the Colorado rule barring inquiry into what happens in the jury room.  The Colorado Supreme Court affirmed. 

LINKS: 

http://www.npr.org/2016/10/11/497196091/top-court-hears-case-on-racial-bias-in-jury-deliberations?utm_campaign=storyshare&utm_source=twitter.com&utm_medium=social 

http://www.scotusblog.com/2016/10/argument-analysis-court-poised-to-strike-down-state-ruling-barring-evidence-of-juror-bias/ 

Interesting Aspects of Appellate Court Ruling on Consumer-Watchdog Agency 

This past week, the U.S. Court of Appeals for the District of Columbia issued a ruling limiting the broad discretion granted to the Consumer Financial Protection Bureau, created by the 2010 Dodd-Frank law.  The Obama administration has pushed for the agency to be granted broad independence as a response to the recent financial industry crisis; Republican critics have pushed legislation that would limit the agency's authority. 

The ruling itself garnered some attention this week, with a wide variety of news sources reporting on it – see How Appealing

Stuart Benjamin, the Douglas B. Maggs Professor of Law, Associate Dean for Research, and co-director of the Center for Innovation Policy at Duke Law School, authored an article on the Washington Post's Volokh Conspiracy that was of particular interest to appellate practice, however.    In the article, Benjamin highlights that the appeals court, in rejecting as unconstitutional the for-cause removal protection of the agency's head, relied on historical practice and found inapposite examples of other agency single heads with similar removal protection. One of those examples is the independent counsel law discussed in the Supreme Court's opinion in Morrison v. Olson. In that case, Justice Rehnquist wrote the majority opinion, but Justice Scalia authored a dissent that is widely recognized as one of his best pieces of writing.  Benjamin argues that the appeals court in the current case essentially treated Scalia's dissent as the precedent, dismissing the majority opinion and noting that "the independent counsel experiment ended with nearly universal consensus that the experiment had been a mistake and that Justice Scalia had been right . . .." 

 

WSJ Newsroom Transformation Memo 

A WSJ newsroom transformation memo captured the attention of #appellatetwitter for a brief time earlier this week.  In the memo, Gerard Baker (@gerardtbaker) urged reporters and editors to strive for sharper focus in their writing.  He noted that reporters and editors "write too many long stories and aren't nearly creative enough about how to tell stories in ways that engage [the] readers" and cautioned that "busy readers are looking to [the WSJ] to help them understand what is important and what not."  Thus, he urged writers and editors to "be vigilant" in seeking concise and sharp writing.  What really caught the attention of #appellatetwitter, though, was this sentence: 

"There's no excuse for a single otiose word or punctuation mark in our writing." 

HT:  ThusIncantedAnderson (@ThusBloggedA) 

 

50 Years of Stupid Grammar Advice 

This past week, I came across a tweet from @JenniferRomig referencing a fairly scathing review of the venerable The Elements of Style by Strunk & White.  In the review, Geoffrey K. Pullum, head of linguistics and English language at the University of Edinburgh, argued that The Elements of Style "does not deserve the enormous esteem in which it is held by American college graduates."  He then proceeded to demonstrate numerous instances in which the guide and style book provides arguably incorrect advice and flaunts examples counter to the very rules being espoused.  The review is actually quite old, from April 17, 2009.  But it remains quite entertaining – and interesting to appellate practice folks, for whom writing and style are cornerstones of daily practice. 

HT:  Jennifer Romig (@JenniferMRomig)

October 14, 2016 | Permalink | Comments (0)

Thursday, October 13, 2016

Notorious RBG sits down with Katie Couric

It's always interesting when Supreme Court justices speak "off the record" and outside of their regular mode of communication - the Court opinion. Lately, Justice Ruth Bader Ginsburg has made a few newsworthy statements, and this week a lengthy interview with Katie Couric gives us even more insight to the Notorious RBG.

B5b1d2620931981bd6eb82267dfd6143

Topics discussed were Colin Kaepernick's National Anthem protest, her relationship with Scalia, whether she would discuss a potential ban on Muslims, and some thoughts on confirming Merrick Garland for the empty seat on the Court. See the full interview here.

 

October 13, 2016 in United States Supreme Court | Permalink | Comments (0)

Tuesday, October 4, 2016

#TwitterTuesday--Practitioners to Follow

TwitterTuesdays

It is a big Tuesday today--the first arguments of the Supreme Court's 2016 Term.  Last week we previewed some great SCOTUS-themed twitter accounts. Today we will focus on appellate practitioners to follow.  There are some great appellate lawyers out there on Twitter.  Today we will profile three who are active on Twitter:

Sean Marotta (@smmarotta) is a Senior Associate for Hogan Lovells in Washington, D.C. Morotta is a self-described nerd with an Appellate and Supreme Court Practice. Marotta often responds with insightful answers to tweeted questions.

Raffi Melkonian (@RMFifthCircuit) is an appellate lawyer in Houston, Texas. Melkonian often tweets regarding the quality of briefs and is known for trying to create “artisanally crafted, locally sourced, appellate risk” for his opponent’s client to force a settlement. 

Bob Loeb (@BobLoeb) works at a firm in Washington, D.C., “specializing in high stakes and complex litigation.” The former DOJ Civil Appellate lawyer tweets about all things appellate advocacy and frequently shares news from his firm, Orrick.

 

October 4, 2016 | Permalink | Comments (0)