Appellate Advocacy Blog

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

Tuesday, November 29, 2016

#TwitterTuesday--Legal Levity


After a brief holiday hiatus, #TwitterTuesday is back.  With the election over and exams for students (and exam grading for professors) fast approaching I thought our readers might need some legal levity.  So. if you need a laugh or smile, here are a few folks to follow on Twitter:

“A Crime a Day” (@CrimeADay) keeps the Twitter-verse informed on some of the most surprising statutes on the books. The tweets provide both comic relief and numerous “shake-my-head” moments at the seemingly random subject matter of the United States Code (see e.g., laws regarding the curvature of pineapple slices in fruit cocktail).

The United Kingdom Law Students’ Organization (@UKLSA) has some great memes about law school. Whether you are still in school or you want to remanence about your law school experience, check out UKLSA for a good laugh.

For some funny tweets (and some more thought provoking as well) about lawyers and the law in general, check out Best Lawyer Jokes (@bestlawyersjoke).

And in case you miss our inaugural #TwitterTuesday post (which you should check out here), if you are wanting law-related humor, you should definitely follow Justice Don Willett (@JusticeWillett) of the Texas Supreme Court. You will not be disappointed in following him.

November 29, 2016 | Permalink | Comments (0)

Monday, November 21, 2016

Justice Scalia and Legal Writing

Last week I was in Washington, D.C., for the Federalist Society's National Lawyers Convention.  This year the Society honored the legacy of Justice Antonin Scalia, who was a great friend of the Society. 

One of the panels, which was hosted by the Society's Litigation Practice Group, was entitled "How Justice Scalia's Writing Style Affected American Jurisprudence."  A video of the panel is available here, and I highly recommend watching it.  It is one of the best panels I have seen at Convention.

The panel featured several former Scalia clerks, including the moderator, Justice Joan Larsen of the Michigan Supreme Court.  The clerks talked about Justice Scalia's approach to drafting opinions. Kannon Shanmugam, a partner at Williams & Connolly, called Scalia "the king of the syllogism."  He emphasized the importance that Scalia put on sound reasoning.  He also recalled Scalia's desire to write concise opinions.  He recalled how Scalia once took some time to edit a draft opinion from 14 pages to 10.

While several of the panelists noted that Scalia was careful to not too personally criticize his colleagues on the bench, Prof. Toni M. Massaro did discuss how Scalia's writing style, particularly some of his caustic one-liners, might offend the general public and be the type of writing we do not want students to emulate.

The other panelists, Prof. Brian T. Fitzpatrick and Judge Jeffrey S. Sutton, provided great insight into how Scalia's chambers were run.  For example, the clerks had to pull from the library all of the sources used in an opinion and sit down with Justice Scalia and the other clerks to carefully go through each opinion to check the accuracy of the substance of the citations.

Rather than recount all of the fun stories provided in the panel, I will just once again commend it to you.  The whole panel is less than an hour and a half long.  It is well worth the time!


November 21, 2016 | Permalink | Comments (0)

Friday, November 18, 2016

Appellate Advocacy Blog Weekly Roundup November 18



The Appellate Advocacy Blog Weekly Roundup will be on a brief hiatus until after Thanksgiving.  Thanks for following the Appellate Advocacy Blog, and look for a new Weekly Roundup on December 2.

November 18, 2016 | Permalink | Comments (0)

Tuesday, November 15, 2016

#TwitterTuesday--Lonestar Judges

Judges in the Lonestar State are perhaps some of the most active on Twitter.  Some may attribute that to Justice Don Willett--the Tweeter Laureate of Texas.  Whatever the reason, here are a few more Texas Supreme Court Justices to follow:

Justice Jeff Boyd (@JeffBoydTX) of the Texas Supreme Court was elected to his first term in 2014. Justice Boyd is a balanced tweeter between pertinent information regarding the Texas Justice system and the more lighthearted jokes.

Justice Debra Lehrmann (@JusticeLehrmann) is also serves on the Supreme Court of Texas. This former trial judge is a relative new-comer to the Twitterverse, but does showcase opportunities she has to speak at different conferences across the Lone Star state.

Justice Eva Guzman (@JusticeGuzman) made history by being the first Latina to serve on the Supreme Court of Texas. Justin Guzman, who just won reelection to the bench, serves as a great to catch up on all the big news of the day.

Justice Jeff Brown (@judgejeffbrown) is (you guessed it) a Justice on the Supreme Court of Texas.  Justice Brown tweets about all things Texas, from law to politics and of course sports.  

November 15, 2016 | Permalink | Comments (0)

Monday, November 14, 2016

2016 Election Recap--State Supreme Courts

Last week I blogged on the impact of the 2016 presidential election on the U.S. Supreme Court.  On Friday, once the results were in, Dan linked to several articles discussing the results.  Today I want to focus on the impact of the election on the state supreme courts by looking at the 2016 state supreme court elections:

Alabama:  In Alabama, Michael F. "Mike" Bolin (Republican), Tom Parker (Republican), and Kelli Wise (Republican) won reelection as an Associate Justice on the state supreme court.  

Alaska:  Supreme Court Justices Joel Bolger and Peter J. Maassen won retention elections in Alaska.  Both men were originally appointed by Republican governors.

Arizona:  State Supreme Court Justice Ann A. Scott Timmer won retention election.  She was appointed by a Republican governor.

Arkansas:  Arkansans elected two Supreme Court Justices in the March 2016 primary.  John "Dan" Kemp, a circuit court judge, defeated Associate Justice Courtney Goodson for the chief justice seat.  Circuit Court Judge Shawn Womack defeated Clark Mason, a Little Rock attorney, in the other state supreme court election.

Colorado:  William W. Hood won a retention election to continue service on the Colorado Supreme Court.  He was appointed by a Democratic governor.

Florida:  Chief Justice Jorge Labarga, Justice Charles Canady, and Justice Ricky Polston all won retention election.  All three were appointed by a then-Republican governor (Charlie Crist).

Georgia:  David Nahmias won a retention election to hold his seat on the Georgia Supreme Court in May of this year.  Additionally, on November 9, Republican Governor Nathan Deal appointed three justices to the states supreme court—Solicitor General Britt Grant and Court of Appeals Judges Michael Boggs and Nels Peterson. 

Idaho:  Attorney Robyn Brody defeated Republican State Senator Curt McKenzie for a seat on the Idaho Supreme Court.

Iowa:  Chief Justice Mark Cady and Associate Justices Daryl Hecht and Brent Appel won retention election.  Chief Justice Cady was appointed by a Republican governor and Justices Hecht and Appel were appointed by a Democratic governor.

Kansas:  Chief Justice Lawton Nuss and Justices Marla Luckert, Carol Beier, Daniel Biles, and Caleb Stegall were all retained.

Kentucky:  State Appeals Court Judge Larry VanMeter, a registered Republican, defeated another state appellate judge, Glenn Acree, a registered Democrat.

Louisiana:  Incumbent Marcus Clark (Republican) won an unopposed election for the Fourth District seat on the state supreme court.  Additionally, Republican James Genovese defeated Republican Marilyn Castle for the Third District seat. 

Michigan:  Incumbent Republicans David Viviano and Joan Larsen survived election challenges to remain on the state supreme court.

Minnesota:  Incumbent Natalie Hudson beat attorney Michelle L. MacDonald for a seat on the Minnesota Supreme Court.  Justice Hudson was appointed by a Democratic governor.

Mississippi:  Three incumbents won reelection to the Mississippi Supreme Court.  Incumbent Jim Kitchens beat State Appellate Court Judge Kenneth Griffis.  Incumbent Dawn Beam beat Michael Shareef.  Incumbent James D. Maxwell won an unopposed election.  Additionally, Robert P. Chamberlin won a four-way race for the state supreme court.

Missouri:  Justice Richard Teitelman, a Democrat appointee, was retained for his seat on the state supreme court.

Montana:  In June, Chief Justice Mike McGrath and Justice Jim Shea both ran unopposed for their seats, which was treated per Montana law as a retention election.  Shea had been appointed by a Democratic governor.  Additionally, on November 8, Kristen Juras beat Dirk M. Sandefur for the vacancy caused by Justice Patricia O’Brien Cotter’s retirement.

Nebraska:  Chief Justice Michael Heavican and Justices John Wright and William Cassel all were retained.  Chief Justice Heavican and Justice Cassel were appointed by Republican governors, while Justice Wright was appointed by a Democratic governor.

Nevada: Justices James Hardesty and Ron Parraguirre were both retained on the state supreme court.

New Mexico:  Justice Barbara J. Vigil, a Democrat, was retained to the state supreme court and Republican incumbent Judith Nakamura, a recent appointee, defeated Democrat Michael Vigil.

North Carolina:  Incumbent Justice Bob Edmunds, a Republican, lost to Mike Morgan, a Democrat, in North Carolina’s nonpartisan supreme court election.  This gives Democrats a majority on the state supreme court, but the state legislature is allegedly considering expanding the size of the court.

North Dakota:  Justice Lisa Fair McEvers, an incumbent, ran unopposed for her seat on the state supreme court.  Jerod Tufte defeated Robert V. Bolinske, Sr., to replace Justice Dale Sandstrom on the state supreme court.

Ohio:  Republican Justice Maureen O’Connor won an unopposed election for the chief justice seat.  Republican Pat DeWine defeated Democrat Cynthia Rice for a seat on the Supreme Court.  Republican Pat Fischer holds a narrow lead over Democrat John O’Donnell in the other supreme court race.

Oklahoma:  Justices James R. Winchester and Douglas L. Combs were both retained to the state supreme court.

Oregon:  Justice Lynn Nakamoto won an unopposed election to remain on the state supreme court. In May, Justices Rives Kistler and Jack Landau also won unopposed elections.

Tennessee:  Three state supreme court justices were retained in August—Justices Holly Kirby, Jeff Bivins, and Roger A. Page.  All three were appointed by a Republican governor.

Texas:  Texas has two high courts—the state supreme court and the Court of Criminal Appeals.  For the state supreme court, the three Republican incumbents—Debra Lehrmann, Paul Green, and Eva Guzman—defeated their Democratic challengers Mike Westergren, Dori Contreras Garza, and Savannah Robinson.  On the Court of Criminal Appeals Democrat incumbent Larry Meyers was defeated by Republican Mary Lou Keel.   Incumbent Republican Michael Keasler defeated Democrat Robert Burns.  For the open seat, Republican Scott Walker defeated Democrat Betsy Johnson.

Washington:  Incumbents Mary Yu, Barbara Madsen, and Charlie Wiggins defeated challengers David DeWolf, Greg Zempel, and Dave Larson to remai on the state supreme court.

West Virginia:  In May, incumbent Republican Brent Benjamin faced a five-way race for his seat involving two Republicans and three Democrats.  He lost to Republican Beth Walker.

Wisconsin:  In April, incumbent Rebecca Bradley defeated JoAnne Kloppenburg to remain on the state supreme court.

Wyoming:  Justices Kate M. Fox, William U. Hill, and Keith G. Kautz, all appointed by Republican governors, were retained.

November 14, 2016 in Appellate Advocacy, Current Affairs, State Appeals Courts | Permalink | Comments (0)

Friday, November 11, 2016

Appellate Advocacy Blog Weekly Roundup


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 or a message on Twitter (@Daniel_L_Real).

Presidential Election and the Courts:

The Presidential election dominated news this week, in blogs, online news sites, and Twitter.  As a result, the biggest discussion point this week regarding appellate practice was the variety of thoughts about how Donald Trump's election will impact the courts -- the Supreme Court and other federal courts.

Here at the Appellate Advocacy Blog, Tessa posted on the topic in a post on Monday:  The Election and the Courts.  But that discussion ramped up even more starting midweek, after the election and Donald Trump's victory.  Discussions of how the Supreme Court is likely to change under a Trump presidency made headlines at The Economist, Bloomberg, the New York Times, NPR, and other sites. A list of the potential candidates from which Trump might pick a replacement for Justice Scalia (and other potential vacancies) is on the Trump/Pence website.  The National Law Journal expanded the discussion to remind us of the 52 nominees for open federal court seats already put forth by President Obama but not acted on.

Appellate Judges Education Institute:

The 2016 Appellate Judges Education Institute Summit begins today in Philadelphia. The annual summit provides a variety of educational opportunities specifically designed for appellate judges, lawyers, and staff attorneys.  When I worked for the Nebraska Court of Appeals, I was fortunate enough to attend the summit one year, and it is without a doubt one of the best appellate-specific educational opportunities there is.

#AppellateTwitter Swag:

If you are an appellate practice person -- lawyer, judge, casual fan -- you are likely already aware of the Twitter hashtag #AppellateTwitter.  It's continuing to grow, and is a source of some really great Twitter users, posts, and practice tips and discussion.  Jason Steed (@5thCircAppeals) recently indicated an interest in creating some #AppellateTwitter swag -- starting with coffee mugs.  And he's following through on it. He posted on Twitter this week how you can order your own #AppellateTwitter coffee mug, paying through Paypal.  Sign me up.

November 11, 2016 in Appellate Advocacy, Appellate Court Reform, Current Affairs, Federal Appeals Courts, United States Supreme Court | Permalink | Comments (0)

Monday, November 7, 2016

The Election and the Courts


It is almost over folks!  Well, sort of.  Although the election is just a day away, the impacts of the election on the federal courts will be felt for years, even decades, to come.  The next president will have the chance to make a major mark on the Supreme Court and the Courts of Appeal--if the Senate cooperates.  Let's look at some of the key changes that we might see post-election.

The Supreme Court:  The unexpected passing of Justice Scalia in February 2016 left the high court short one justice.  President Obama's nomination of Merrick Garland to fill the vacancy has languished in the Senate for over 200 days.  While Supreme Court nominations are usually a topic in presidential elections, they have been at the forefront this time around.  Not only is Justice Scalia's seat vacant, but there are currently three justices on the Court over the age of 75.

Republican nominee Donald Trump has released two lists of possible Supreme Court nominees (the combined list can be viewed here).  The second list was provided after some criticized his original list as not sufficiently diverse.  While his list includes some noted conservatives legal minds, noticeably absent are judges from the D.C. Circuit or practitioners in the D.C. area.

Democratic nominee Hillary Clinton has not released a list of potential nominees.  Lydia Wheeler of The Hill has interviewed "well-connected groups" about Clinton's potential picks and come up with a list that is not too different from President Obama's list to replace Justice Scalia.  Merrick Garland, Sri Srinivasan, and Paul Watford all appear on the list.

Libertarian nominee Gary Johnson has also supplied a list.  His list features noted libertarian legal scholars, like Randy Barnett and Jonathan Turley, and D.C. Circuit Judge Janice Rogers Brown.

These list may not be worth much, however, if the Senate refuses to cooperate.  In recent days there has been speculation that Senate Republicans will try to shrink the size of the Supreme Court if Clinton is elected president and they keep the Senate.  Since there is no way that they could do this through the regular law-making process (Clinton would surely veto any attempt to amend 28 U.S.C. § 1), they would have to accomplish it by simply not confirming any nominees.

Lower Courts:  According to the Administrative Office of the United States Courts, there are 13 pending vacancies to the Courts of Appeal and 80 pending vacancies to the District Courts.  The new president will get a chance to fill these vacancies and any others that occur during the next four years. Depending on their length of service, federal judges can start retiring at the age of 65.  According to 2014 Congressional Research Service report, at the end of 2013, "32.5% of active circuit court judges were eligible, based on age and length of service as Article III judges, to assume senior status."  Nearly half of these judges were appointed by President Bill Clinton, which means that replacing these judges with Republican nominees would potentially change the ideology of the federal circuit courts.  Once again, whichever party controls the Senate will have the opportunity to influence how these seats are filled.

Tomorrow will be a big day. 

November 7, 2016 | Permalink | Comments (0)

Friday, November 4, 2016

Appellate Advocacy Blog Weekly Roundup


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 or a message on Twitter (@Daniel_L_Real).

#AppellateTwitter Threads of the Week:

BobLoeb, of Orrick's Supreme Court and Appellate Litigation practice, started a thread on Twitter this week asking for training or advice tips that were useful to appellate practitioners when they first got started.  Lots of great appellate advocates weighed in with some great tips.

While the #AppellateTwitter hashtag has really started to take off, one of its contributors, UNC Law Professor Gurvich, announced plans to start a #PracticeTuesday hashtag for weekly conversations about discussions related to best practices and tips for effective appellate practice.  Readers of this blog will surely want to look for that hashtag and tune in.


Just before this past week (Friday, October 28), the Supreme Court announced that it would hear a challenge to a Virginia school district's anti-transgender restroom policy.  The case, Gloucester County School Board v. G.G.,  arises out of a school district policy mandating that students use the restroom matching their biological sex.  A transgender student sued, with the support of the ACLU.  The trial court ruled in favor of the school district, but the 4th Circuit Court of Appeals ruled in the student's favor.  More information available at the ACLU website and at SCOTUSBlog.

The Miami Herald reported this week on an interesting case where the United States and Venezuala are joining on the same side against a U.S. oil company.  The case, Bolivarian Republic of Venezuala v. Helmerich & Payne International, was heard on Wednesday of this week.  In the case, the U.S. Court of Appeals for the D.C. Circuit determined whether U.S. courts have jurisdiction over a lawsuit against a foreign government by looking only at whether the claim was insubstantial or frivolous. More at SCOTUSBlog.

Earlier this week, the Supreme Court rejected an appeal for Alabama death row inmate Bill Kuenzel.  The case involved Kuenzel's claims that evidence was withheld by prosecutors, and gained some national attention when former Attorney General Edwin Meese weighed in and suggested that Kuenzel is "very likely actually innocent."  The AP reported.

Finally, Billboard magazine reported this week that the Supreme Court has asked for the U.S. Solicitor General to provide the government's view about a nearly decade-old dispute between a mother who posted a 29-second video clip on YouTube of her toddler dancing to the Prince hit, "Let's Go Crazy." She received a takedown notice, and the mother sued and raised misrepresentation of copyright and fair use issues.  Neither side was satisfied with the mixed opinion of the 9th Circuit Court of Appeals.  The Supreme Court has not yet granted review in the case, but the request of the Solicitor General suggests there is a possibility that such a grant could be forthcoming.

Obama's Judicial Legacy: ran a feature this past week, including lots of graphics, analyzing how President Obama's judicial appointments have shaped the federal courts and where changes have started to be evident. Charleston Law professor  Jennifer North wrote about that topic right here at the Appellate Advocacy Blog earlier this week.


November 4, 2016 in Appellate Practice, Legal Profession, Legal Writing, Oral Argument, United States Supreme Court | Permalink | Comments (0)

Thursday, November 3, 2016

Lower Court Judges Start to Make Their Mark on the Law

An issue looming large in this election year is the ultimate composition of the Supreme Court. The newly  elected president could have up to three or four opportunities to make judicial appointments. That is significant considering that with the current composition of the Court only one is enough to potentially swing it in either ideological direction. This is already the current situation as Judge Merrick Garland stands by waiting for the Senate to act on his nomination from earlier this year.

From, collage of Obama's judicial appointees since 2009:


But the Supreme Court is not the only court to watch with regard to political influence. President Obama has made 55 appointments during his term as president and 31 of those judges have replaced Republican nominees. Have these appointments had any effect on the decisions in the lower courts?

Appellate lawyers say it’s too early to see major swings in the law, but individual rulings on labor, class actions and administrative law show signs of a shift to the left.
“Over the last eight years the courts of appeals have become decidedly less friendly to business overall, though the Supreme Court has served as something as a check on those courts,” said Kannon Shanmugam, who leads the appellate practice at Williams & Connolly.

Obama's appointments count for almost a third of all active judges on the circuit courts. That is a sizable number but it might not be enough for a definite shift in the law to occur unless similar changes happen at the Supreme Court.

Rex Heinke, co-leader of the appellate practice at Akin Gump Strauss Hauer & Feld, said he hasn’t observed an overhaul in areas of law affecting business over the past eight years, although the president’s nominees to the bench “are certainly more liberal than the judiciary when he came into office.”

“There would be a dramatic shift if there were liberal justices added to the Supreme Court,” Heinke said.

While all eyes focus on the Supreme Court, the presidential appointments of lower court judges will carry significant political influence over the long term. 

November 3, 2016 in Federal Appeals Courts | Permalink | Comments (0)

Tuesday, November 1, 2016

#TwitterTuesday--Correspondents to follow

The presidential election is just a week away.  It seems like everywhere we turn these days we are bombarded with news.  So, for #TwitterTuesday, we decided to just go with it and feature some of our favorite correspondents who write on topics related to appellate practice (basically the Supreme Court):

Adam Liptak (@adamliptak) is a Supreme Court reporter for The New York Times (@nytimes). Besides being a Pulitzer Prize finalist, this Yale Law grad is an avid tweeter about the Court’s latest decision and news about our favorite Justices.

Michele Olsen (@AppellateDaily) is an attorney that reports on Supreme Court and federal circuit court cases. The @JonesDay alum provides important (and sometimes fun) context to the many cases being decided.

Jess Bravin (@JessBravin) is a Supreme Court correspondent for The Wall Street Journal (@WSJ). When not writing news articles or books on current legal topics, Bravin’s tweets prove that the Supreme Court Justices are interesting people in the Court and out of it (see the picture of Justice Thomas at a @ColbieCaillat concert).

Robert Barnes (@scotusreporter) has covered the Supreme Court for The Washington Post (@washingtonpost) since 2006. On top of finding all the notable and quirky lines of oral arguments and opinions, Barnes has been known to tweet about how the world of politics and the Supreme Court collide.

November 1, 2016 | Permalink | Comments (0)