Appellate Advocacy Blog

Appellate Advocacy Blog Weekly Roundup December 30 2016

The Appellate Advocacy Blog Weekly Roundup will be on a brief hiatus until after the New Year.  Thanks for following the Appellate Advocacy Blog, have a wonderful and safe New Year's, and look for a new Weekly Roundup on January 6.

Appellate Advocacy Blog Weekly Roundup December 23 2016

The Appellate Advocacy Blog Weekly Roundup will be on a brief hiatus until after the New Year.  Thanks for following the Appellate Advocacy Blog, have a wonderful Christmas and New Year's, and look for a new Weekly Roundup on January 6.

Private attorney makes last ditch effort on behalf of Merrick Garland

Merrick Garland, Chief Judge of the United States Court of Appeals for the D.C. Circuit, was nominated as the next U.S. Supreme Court Justice on March 16, 2016, upon the vacancy left by Justice Scalia's death. His nomination is the longest pending in history. But Judge Garland will not become a Supreme Court Justice.

Judge Garland had the misfortune of being nominated during one of the most rancorous election seasons ever. In addition to the heavy partisanship permeating the presidential campaign, the seat Garland would have filled was previously held by one of the strongest conservative voices the Court has ever seen, and Judge Garland appears to be more of a moderate - not a cookie cutter replacement in other words. Add to that the fact that the Senate, who must do the work of confirming the nominee, was held by the party that did not do the nominating. All of this made for the perfect negative storm which Judge Garland must have anticipated many months ago. 

When he made his speech following President Obama's nomination, Judge Garland displayed great humility and gratitude for the nomination. If he is also a wise judge, he knew then that his rise to the High Court was a long shot, through no fault of his own. The times did not cooperate for him. 

But recently a private lawyer in New Mexico tried to make it happen. Steven Michel made application to the Supreme Court asking for injunctive relief in the form of an order to the Senate to vote on Garland's nomination. Chief Justice Roberts, circuit justice for the D.C. Circuit, denied the application without referral to the Court. Michel was not surprised:

"Asking Chief Justice Roberts to require a Senate vote on the Garland nomination was an extraordinary request. So although I’m disappointed by his refusal, I’m not surprised," Michel said Monday. "The Senate’s judicial confirmation process is broken. I hope it can be fixed before too long, because our democracy depends on it."

There are no mandates regarding the confirmation process and the regular course of action can vary depending on Senate leadership. The Supreme Court continued to function with the vacancy, but the result was probably not ideal in many people's eyes. The Court split in some decisions leaving the ruling of the lower courts in place, but did not provide binding pronouncements on the law. This is somewhat unsettling, because there is a desire to have stability within the law.

The vacancy will soon be filled however. The President-Elect now has the great power to insert his choice of nominee, and that person will likely resemble Justice Scalia much more than did Judge Garland. 

President-Lawyers as Communicators and Writers

It is the "most wonderful time of year" for law professors--grading season!  So, the blogging may be a little light over the next few weeks. Still, I wanted to blog on what I have been reading when I am not reading exams.

I have been on a mission to read a biography of every president. I was inspired by Stephen Floyd, an investment banker who has been reading and reviewing presidential biographies since 2012. The Washington Post also has a list of good presidential biographies. Reading presidential biographies has added a lot to my teaching, especially in constitutional law. I was thinking the other day, however, about our early president-lawyers and effective communication.

Three of our four first presidents were trained in the law--John Adams, Thomas Jefferson, and James Madison.  These three men were gifted writers and credited with drafting (or playing a significant role in drafting) our country's most foundational documents. Jefferson (with Adams' help) drafted the Declaration of Independence, and Madison is often called the "father of the Constitution." Madison is also well-known for his writings related to Virginia politics.  

Of these three men, however, only Adams was a gifted speaker. Jefferson, Madison, and Washington, were all terrible public speakers.  When they delivered public addresses to Congress people often had to strain to hear them.

With the advent of radio and television, we put much greater emphasis today on our presidents being excellent public speakers.  Bill Clinton--another president-lawyer--was known as the great communicator.  President Obama too is effective at pubic speaking.  While these men have written books as well, as have many past presidents, these books tend to be more of the autobiographical genre, rather than the political philosophy that our early president-lawyers wrote on.

In law school we focus heavily on teaching our students to be effective legal writers. Sadly, this task is getting more difficult each year. Twitter, Snapchat, Facebook, and the like are changing how our students think about writing and communicating. However, we must not got weary in our task. So, grade on law professors, grade on!

Appellate Advocacy Blog Weekly Roundup December 16 2016

As  we do every Friday, the Appellate Advocacy Blog presents a few tidbits of news and Twitter posts from the past week concerning appellate advocacy. 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[email protected] or a message on Twitter(@Daniel_L_Real).

End of Year Updates From The Legal Intelligencer

Howard Bashman (@howappealing), of How Appealing, authors articles on The Legal Intelligencer, where he provides a variety of articles on important developments and practice ideas related to appellate practice throughout the year.  This week, he provided an article updating a number of subjects that had been addressed in the Intelligencer over the past year.  Topics include the 2016 amendments to the Federal Rules of Appellate Procedure, impact of the 2016 elections on the Supreme Court, and developments related to access to appellate oral argument audio and video. You can also access archives of past articles on a variety of interesting and useful topics.

Mere Dictum or Binding Alternative Ruling?

Jason Steed (@5thCircAppeals), recently named partner and new head of Supreme Court & Appellate Practice Group at Bell Nunnally & Martin LLP and #appellatepractice regular on Twitter, had a brief piece this week on his blog, forma legalis, explaining that "[i]n the Fifth Circuit, 'alternative holdings are binding precedent and not obiter dictum.'" Useful information if you practice in the Fifth about how you might use alternative rationales for decisions.

Justice Breyer's Dissent on Death Penalty

A popular topic of legal news and twitter this past week was Justice Breyer's dissent in Sireci v. Florida. In just under three pages, Breyer espoused his view that "the time has come to reconsider the constitutionality of the death penalty."  He reasserted his argument that "individuals who are executed are  not the 'worst of the worst,' but, rather, are individuals chosen at random, on the basis, perhaps of geography, perhaps of the views of individual prosecutors, or still worse on the basis of race."

More on Breyer's Dissent and SCOTUS action on the death penalty:

• Richard Wolf (@richardjwolf), Supreme Court reporter for USA Today, had this article.

Death of Judge Myron Bright

Judge Myron Bright, the longest-serving working judge on the U.S. Court of Appeals for the Eighth Circuit, passed away at the age of 97 on Monday.  As an article on INFORUM noted, Bright was "a champion of equal rights for minorities and women" and had a long history of demonstrating his concern for people who lacked influence and power.  

"Moneyball" for Judges:  Data Tools for Predicting How Judges Might Rule

The Wall Street Journal had an article this past week that detailed a variety of services now being offered to attorneys that compile a variety of data about tendencies and ruling habits of courts and judges.  The information tends to be information that has always been "available," but new resources have made it far easier and less time-consuming to access.

Marijuana in Your Trash?  Not Enough for Probable Cause.

As discussed at the Volokh Conspiracy this week, a divided Sixth Circuit panel held in United States v. Abernathy "that finding evidence of marijuana use in the trash placed outside a particular home does not (without more) generate probable cause to believe there is marijuana in the home."

iPhone User Can be Forced to Produce Passcode

Also discussed at the Volokh Conspiracy this week, a Florida Court of Appeals handed down a ruling this week in which the court concluded that an iPhone user who had been accused of surreptitiously taking photos up the skirt of a female shopper in a clothing store could be ordered to disclose the passcode to his phone, so long as the government can demonstrate that the user knows the passcode.

 Supplemental Briefing Ordered in SCOTUS Immigration Case

SCOTUS heard arguments in Jennings v. Rodriguez two weeks ago.  I included it in the Weekly Roundup back on December 2, noting that the case involved whether aliens seeking admission to the U.S. who are subject to mandatory detention must be afforded bond hearings.

This week, SCOTUS directed the parties to file supplemental briefs addressing several questions.  Lyle Deniston wrote about the impact of the briefing order, arguing that the briefing order "suddenly turned an important case on government detention of foreign nationals from a review of federal statutes into a full-blown constitutional controversy."  The briefing order directs the parties to file new briefs on the same issues already argued, "but this time on how to answer them under the Constitution."

Deniston notes that the Constitutional issues were present when the case was brought and argued, but that Chief Justice Roberts and other Justices insisted at the time that the Constitutional issues were not before the Court because the government had raised only statutory questions resolved by the Ninth Circuit -- and normally Consitutional questions that are not resolved by the lower tribunal cannot be raised and resolved for the first time in the Supreme Court.  Nonetheless, the Supreme Court has broad authority to ask a new question on its own or rewrite the questions that an appellant has sought to raise.

The new briefs are due January 17, with amicus briefs due January 27 and reply briefs due February 6.  Happy holidays to all of the attorneys involved in the case!

#TwitterTuesday--Substance & Mechanics

For some substance on a variety of legal issues, make sure to follow the Volokh Conspiracy (@VolokhC) for the latest articles. With relevant topics, both politically and legally, ranging from the legal implications of fake news to warrantless email surveillance, there are always new subjects to explore.

Orin Kerr (@OrinKerr) is a law professor at George Washington University, a part-time lawyer, and blogger for the Volokh Conspiracy. While tweets include some of the latest articles on the blog, Kerr also shares newsworthy court decisions in important appellate cases as well as other articles related to appellate practice.

For procedure and the mechanics of appellate practice, check out Counsel Press (@CounselPress), an appellate services provider who shares updates concerning both state and federal appellate courts. Tweets include information from preservation of issues to brief writing and more.

Appellate Advocacy Blog Weekly Roundup December 9 2016

As  we do every Friday, the Appellate Advocacy Blog presents a few tidbits of news and Twitter posts from the past week concerning appellate advocacy. 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[email protected] or a message on Twitter (@Daniel_L_Real).

Ruling in Samsung v. Apple

On Tuesday, a unanimous Supreme Court ruled in favor of Samsung in Samsung v. Apple, the patent infringement suit brought by Apple, sending the case back to the Federal Circuit for further consideration.  In the case, Apple alleged that Samsung infringed on patents covering specific design elements of Apple's iPhone, including the rectangular front face with rounded corners and colorful grid of icons. Federal law provides that companies found to have infringed design patents on an "article of manufacture" are liable for their total profits. The lower court had awarded Apple $399 million in damages for Samsung's design patent infringement.  In the Supreme Court opinion, Justice Sotomayor wrote that the operative phrase in the statute, "article of manufacture," could sometimes be the entire product (the phone) and sometimes be the components found to have infringed the design patent. The Supreme Court opinion held that the Federal Circuit erred in ruling that the "article of manufacture" must always be the end product (the phone), but did not resolve whether the article of manufacture in the case was the whole phone or parts of it. 

Coverage:

New York Times

Reuters

SCOTUSBlog

Ruling in Salman v. United States

On Tuesday, the Supreme Court unanimously ruled in Salman v. United States, a significant insider trading case that raised the question of whether gifts of confidential information from business insiders to family members without direct financial benefit violate securities law. The Court ruled in favor of prosecutors, ruling that gifts to friends or relatives, whether in the form of cash or a tip of information, sufficiently "benefit" the insider to be considered a violation of securities law.

Coverage:

New York Times

Fortune

Bloomberg

SCOTUSBlog

 

Takeaways from 2016 SCOTUS Oral Arguments So Far:

Adam Feldman writes on the Empirical SCOTUS blog about "Four Takeaways From this Term's 2016 SCOTUS Oral Arguments" so far. There is a wealth of great information about the Justices' interactions with one another and with advocates during the first 1/3 of this term's oral arguments, including which Justices tend to speak the most (or the least), the issues that interest the Justices the most, and the tendencies of some of the best and most frequent advocates to appear before the Court.

Highlights from Appellate Twitter:  #PracticeTuesday

On Tuesdays the brilliant tweeters of #AppellateTwitter post a variety of useful tips, strategies, guidelines, advice, etc.  Here are a few of the highlights from this week, where the topic was mythbusting -- conventional wisdom with which experienced appellate practitioners disagree:

• Sean Marotta (@smmarotta) argued against the myth that a law student should take "any" clerkship, regardless of location, judge, etc.  He argued that young graduates should definitely consider costs to family, significant others, and other factors when deciding whether a clerkship is really the right opportunity to pursue.
• Rachel Gurvich (@RachelGurvich) argued against one of my personal favorite myths, that being on Law Review is some kind of prerequisite to a successful legal career. I always tell students that law review is not for everyone and is not a magic bullet -- the key is to find something that catches a potential employer's eye and once you get your foot in the door, you can explain why you didn't go the law review route.
• Bryan Gividen (@BryanGivi) argued against the myth that a young associate should never so no to an assignment -- because if you don't learn how to say no to assignments that you cannot perform well, you are sure to start alienating colleagues and clients with poor work product.
• Jennifer Romig (@JenniferMRomig) argued against one that is dear to my heart, as an educator -- the myth that law school conclusively reveals whether someone will be a good lawyer.  I've known many students who were "average" or even below in performance in law school, but went on to be fine and highly successful members of the legal community -- even some who took a couple of tries to pass the bar exam. I've known students who excelled in classes, but not so much in the real world. There's just more to it than that.
• Finally, Supreme Court Places (@SCOTUSPlaces) called for the debunking of a myth that is near and dear to the hearts of anyone who has ever clerked for an appellate court -- "There must be a case for that simple, seemingly incontrovertable proposition."  It's amazing how often you think that but research seems to come up empty!

Asian-American rock band, The Slants, seek its day in Court

January 18, 2017. That's the day the rock band, The Slants, gets to make its case on trademark to the United States Supreme Court.

The band has been battling the U.S. Patent and Trademark Office since 2006 in its quest to trademark the name of the band. The USPTO has refused to grant the trademark on the grounds that "slant" is a racist slur. 

"For us, this case has always been about civil rights." The trademark office rejected the band's trademark application, citing a section of the Lanham Act that prohibits registration of trademarks that may disparage "persons, living or dead, institutions, beliefs or national symbols, or bring them into contempt or disrepute." The Slants claim the provision violated the First Amendment. After losing before a three-judge panel of the U.S. Court of Appeals for the Federal Circuit, the en banc court in December 2015 sided with The Slants and struck down the ban on disparaging marks as an unconstitutional regulation of speech.

The Slants seek to protect its First Amendment rights, but underlying the case is the idea of reclamation. Words that have been historically used to disparage minorities are sometimes, and to some degree, reclaimed by those groups as a sign of empowerment. Simon Tam, the band's leader is the named party in the suit, makes the following point in reclaiming, or reappropriating, insulting words:

Tam's brief in the case Lee v. Tam defends the name as part of "the long tradition of 'reappropriation,'" whereby minority groups reclaim insulting words and turn them into "badges of pride." Words like "queer" and "nigger" have been transformed in that way, to varying degrees.

"The Slants' fans are not racists eager to denigrate Asian-Americans," the brief states. "Only an uninformed philistine could find the band's name disparaging."

The Slants' members are all Asian-American and assert that it is their right to use this word as representative of their freedom of expression and celebration of their heritage. They've also written an open letter to the USTPO contesting its decision here.

To get the word out and seek funding, The Slants released the video above and have also released a new song to gain exposure. A few words:

There's no room/ For your backward feelings/ And your backyard dealings/ We're never gonna settle/ We're never gonna settle.... So sorry if you take offense/ But silence will not make amends/ The system's all wrong/ And it won't be long/ Before the kids are singing our song.

The song is titled "From the Heart." 

#TwitterTuesday--Sunny States

It is starting to feel like winter, even in Virginia.  So, let's feature some #AppellateTwitter accounts to follow from sunnier spots:

California

At the Lectern (@Atthelectern) provides commentary and news from Horvitz & Levy (@horvitzlevy) on the practice of law before the California Supreme Court. The tweets provide links to their articles on atthelectern.com.

 Check out Sedgwick LLP’s (@SedgwickLLP) appellate law blog The Appellate Strategist for “insights on appellate issues, trial consultations, and evaluating appeals.”

Florida

FloridaSupremeCourt (@flcourts) is a great resource to find quick access to the latest news from the Sunshine state’s highest court.

Fla. AG Pam Bondi (@AGPamBondi), as well as her person Twitter account, @PamBondi, will keep you informed on the latest legal news with links to articles found at myfloridalegal.com.

 

New Federal Rules of Appellate Procedure

On December 1, 2016, several amendments to the Federal Rules of Appellate Procedure took effect.  I blogged about the changes in August.   Lee Peifer of the 11thCircuitBusinessBlog.com has shared a summary by the United States Court of Appeals for the Eleventh Circuit of the important changes. One of the most significant amendments is the change to Rules 28.1 and 32 limiting the length of principal briefs to 13,000 words (down from 14,000).  Peifer noted that some of the courts of appeals, including the Second, Seventh, Ninth, and Federal Circuits have opted out of the lower word limits.

While the lower limits were generally opposed by the appellate bar, I am not surprised at the change.  In working on an update to the book Winning on Appeal, I have had the opportunity to read comments from many federal appellate judges on the state of appellate briefs.  They almost uniformly agree that briefs are just too long.  

The truth is, it takes more time to write a short brief than it does a long one.  That extra step of carefully editing your work and cutting out the fat is very time consuming.  I have certainly seen this in student assignments that are either right at the page limit or overlength.  Often these students failed to leave sufficient time in their schedule to edit their work.  Lawyers run into this problem too.  The Federal Circuit dismissed an appeal when counsel tried to get around the word limit by eliminates spaces between words and citations.

The late Richard Wydick's book Plain English for Lawyers offers some excellent tips for attorneys (and law students) who struggle with cutting the surplusage in their briefs.  In this new age of shorter briefs, we are going to need them!

Appellate Advocacy Blog Weekly Roundup December 2 2106

After a brief holiday hiatus, the Appellate Advocacy Blog Weekly Roundup returns today with a few tidbits of news and Twitter posts from the past week concerning appellate advocacy. 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[email protected] or a message on Twitter (@Daniel_L_Real).

Garland Returning to Bench

Judge Merrick Garland has been in or on the fringes of the news for months now, ever since President Obama nominated him to fill the Supreme Court seat vacancy created by the death of Justice Scalia.  With the recent election results, the possibility of any confirmation hearing ever happening for Judge Garland is all but gone.  So now, for the first time in months, he'll put his robe back on and return to the bench as the Chief Judge of the U.S. Court of Appeals for the District of Columbia Circuit.  The Salt Lake Tribune wrote about it this week.

Supreme Court News

This week saw several pieces of Supreme Court news.

First, on Tuesday, November 29, the Court issued its first opinion of the term.  In Bravo-Fernandez v. U.S., the Court held that the issue-preclusion component of the double jeopardy clause does not bar the government from retrying a defendant after a jury has returned irreconcilably inconsistent verdicts of acquittal and conviction if the conviction is later vacated for legal error unrelated to the inconsistency. The Court's decision was an 8-0 unanimous decision.  See more at SCOTUSBlog.

Also on Tuesday, the Court heard argument in Moore v. Texas, concerning the Eighth Amendment and standards for intellectual disability  and medical standards for determining whether an individual may be executed. You can find more about this case and the arguments at SCOTUSBlog.

On Wednesday, November 30, the Court heard arguments in Jennings v. Rodriguez, a case involving whether aliens seeking admission to the U.S. who are subject to mandatory detention must be afforded bond hearings.  You can find more about this case and the arguments at SCOTUSBlog.

New Federal Rules

Orin Kerr (@orinkerr) noted on Twitter this week that new amendments to a variety of federal rules, including the appellate rules, are now in effect.  See the US Courts rules and forms page for more.

Sean Marotta (@smmarotta) reviewed the major changes to the FRAP, so check that out for a quick reference.

Appellate Practice

Lisa Solomon (@lisasolomon ), founder and CEO of Now Counsel Network, had an article on ARAG about using fiction techniques to write more persuasive fact sections in appellate briefs. Relying on the work of Brian Foley and Ruth Anne Robbins, Solomon advocates focusing only on relevant facts, including accurate citations to the supporting evidence, and using storytelling techniques to boost the persuasive force of the facts section.