Appellate Advocacy Blog

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

Tuesday, January 31, 2017

#TwitterTuesday--Legal Writing


Happy #TwitterTuesday.  Just two more days until the SCOTUS pick.  While we wait to see if the ever tweeting Justice Willett will have to give up his Twitter account, let's highlight a few legal writing resources on Twitter:

The Legal Writing Institute (@LWIonline) is an “organization dedicated to improving legal communication by supporting the development of teaching and scholarly resources establishing forums to discuss the study, teaching, and practice of professional legal writing.”

Alexa Chew (@aznchew) is a teaches an assortment of legal writing and advocacy courses at the University of North Carolina School of Law (@unc_law) and has co-authored a book on legal writing.

Legal Communication & Rhetoric: JALWD (@JALWD),  a publication of the Association of Legal Writing Directors, is a journal focusing on the study of professional legal writing for practitioners and law students alike.

January 31, 2017 | Permalink | Comments (0)

Monday, January 30, 2017

The Rise of the State Solicitor General

This past week, the law school where I teach hosted West Virginia Solicitor General Elbert Lin for a talk to the students.  SG Lin is a graduate of Yale Law.  He has an impressive resume--DOJ Federal Programs, SCOTUS clerkship, BigLaw, and the first solicitor general for the state of West Virginia.

SG Lin's talk covered the rise of state SGs across the country and the different roles they play.  I was surprised to learn that in 1909 there was only 1 state solicitor general (New York).  In 1987, there were only 8 states with a solicitor general.  Today 41 states have a solicitor general, and 6 additional states have a person whose role is functionally equivalent to a solicitor general.  SG Lin attributed the rise to a number of things, including the prominence of now Sixth Circuit Judge Jeffrey Sutton, who served as Ohio's solicitor general in the 1990s.

According to SG Lin, the state SG offices vary in the duties performed.  For example, some state SGs are political, while other serve in a career role.  Some offices handle all appeals, some just the important ones, and others divide on civil v. criminal appeals.

SG Lin sees the state SGs continuing to play an important role in their states and in the country as a whole.  For example, they can serve as a check on the administration by reinforcing federalism principles.  We have certainly seen this with respect to Texas's challenge to former-President Obama's immigration policies.  I imagine there will be no shortage of states checking President Trump's actions as well.

Another interesting factor that SG Lin mentioned was that state SGs can help level the playing field for states at the appellate level.  There is increasingly a very specialized appellate bar, particularly at the Supreme Court level.  Hiring an SG with appellate experience, like Lin, can give the state a leg-up in brief-writing and advocacy.

I really appreciate SG Lin coming to campus and speaking to our students.  His talk was informative and engaging.  

January 30, 2017 | Permalink | Comments (0)

Friday, January 27, 2017

Appellate Advocacy Blog Weekly Roundup January 27 2017



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).


SCOTUS Rejects Texas Voter ID Appeal

The U.S. Supreme Court declined an appeal by Texas seeking to revive voter-identification requirements in Abott v. Veasey.  In 2016, the 5th U.S. Circuit Court of Appeals ruled that the Texas law imposing the requirements was violative of federal law barring racial discrimination in elections.  On Monday, SCOTUS declined to hear Texas' appeal.  Chief Justice Roberts issued a statement, noting that litigation on the matter continues in the lower courts and that all the legal issues presented can be raised on appeal at a later time.




Constitution Daily Blog

 Microsoft Victory in Warrant Case Upheld

In July, Microsoft won a victory in Microsoft v. U.S. when the United States Court of Appeals for the Second Circuit RULED that Microsoft could not be forced to turn over emails stored on an overseas server when the emails were sought for a domestic narcotics case.  Microsoft was the first US company to challenge a domestic search warrant seeking data being stored abroad.

This week, the Second Circuit let stand that July decision in a 4-4 decision refusing to reconsider the prior ruling.




 Supreme Court Short List Narrows

According to CBS News, sources close to President Trump indicated this week that Trump's short list of potential nominees to fill Justice Scalia's vacancy has been trimmed to two names:  U.S. Court of Appeals Judge Neil Gorsuch and U.S. District Court Judge Thomas Hardiman.  Trump is expected to announce his nominee next week.


Above The Law (information on Gursuch and Hardiman, as well as Pryor)

SCOTUS Justices' Gendered Interactions

Adam Feldman and Rebecca Gill have a paper discussing the interactions of SCOTUS justices during oral argument.  According to the abstract, in the paper the authors examined whether gender dictates the nature of interactions between justices during oral arguments, when they are vying with one another to interact with attorneys and with each other.  They concluded that male justices interrupt female justices at a significant level, while the opposite does not hold true.

Legal Writing Tip:  Avoid Use of Intensifiers

Joe Fore posted a link on Twitter this week to a series of blog posts by Wayne Scheiss.  The series looks at the overuse of intensifiers in legal writing, notes why it is problematic, and provides tips for avoiding overuse.  Clearly, this is good advice.



January 27, 2017 | Permalink | Comments (0)

Thursday, January 26, 2017

President Trump will make his Supreme Court nomination next week

Nearly one year after the death of Justice Scalia, the U.S. Supreme Court is finally closer to returning to a full panel of nine justices. While President Obama did nominate Judge Merrick Garland to fill the spot, election year politics doomed his nomination from proceeding as usual. 

Now President Trump reports there are three judges he is considering

Neil Gorsuch, Colorado, 10th Circuit. At 49 the youngest of the group, Gorsuch is the most natural replacement for the late Justice Antonin Scalia. He is a strict adherent of originalism, Scalia’s belief that the Constitution should be interpreted based on the intent of the Founders. He also has much of Scalia's flair as a writer.

Gorsuch has the type of academic credentials common to high court justices: Columbia, Harvard Law, even Oxford. He clerked for Justices Byron White and Anthony Kennedy, then practiced law in Washington and did a stint at the Justice Department.

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William Pryor, Alabama, 11th Circuit. He’s been the conservatives’ justice-in-waiting for years, and at 54, the former Alabama attorney general comes straight out of central casting. Likely in his corner: U.S. attorney general-designate Jeff Sessions, who preceded Pryor as Alabama’s top law enforcement official.

But Pryor is controversial: He once criticized the Supreme Court’s 1973 decision in Roe v. Wade, which legalized abortion, as “the worst abomination of constitutional law in our history.” And he even has taken flak from conservatives concerned about a ruling he joined in favor of transgender rights.

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Thomas Hardiman, Pennsylvania, 3rd Circuit. A dark horse among the finalists, Hardiman, 51, isn’t unfamiliar to Trump. He sits on the same U.S. Court of Appeals for the 3rd Circuit as the president’s sister, Maryanne Trump Barry.

Hardiman’s career as a judge is marked by law and order. He has maintained a solidly conservative record on issues involving guns, searches, police officers and prison guards – more so than Scalia, who often sided with criminal defendants against overzealous prosecutors. In that sense, Hardiman is much like Justice Samuel Alito, who came from the same appeals court.

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The process for confirmation requires only a simple majority of Senators' votes, however, 60 votes would be needed to cease debate and invoke cloture. Currently Republicans have only 52 senators, so they would need the help of Democrats to allow the vote to go forward if a filibuster was invoked. It is a safe bet to say that confirmation of any nominee is going to be an arduous process since the Democrats have pledged to fight Trump every step of the way.

In response, President Trump has threatened to remove the filibuster rule (using the nuclear option), a shredding started by Senator Harry Reid who led Democrats to remove the 60 vote rule for lower court nominees. He used Republican obstructionism as his justification for weakening the rule. The Republicans may now find Reid's argument persuasive if Democrats engage in the same tactics. 

January 26, 2017 | Permalink | Comments (2)

Tuesday, January 24, 2017

#TwitterTuesday--From Sea to Shining Sea


It is a new week, a new president, and a new #TwitterTuesday.  While we all wait for a SCOTUS nominee, here are some practitioners across this great nation that you can follow on Twitter:

Emil J. Kiehne (@EmilKiehne) is an appellate lawyer at Modrall Sperling. Besides tweeting about the latest appellate news from the Supreme Court and the Court of Appeals for the Tenth Circuit, Kiehne publishes the New Mexico Appellate Law Blog.

Jonathan Eisenman (@JHEisenman) is an appellate attorney at Greines, Martin, Stein & Richland focusing on civil appeals and writs. His current work focuses on appeals in California state court, the Ninth Circuit Court of Appeals, and the United States Supreme Court.

Neal Katyal (@Neal_katyal) is a Supreme Court lawyer at Hogan Lovells in Washington, D.C. The former Acting Solicitor General of the United States has argued over 30 cases before the Supreme Court and already has nearly half a dozen arguments set before the Court this term alone.

January 24, 2017 | Permalink | Comments (0)

Friday, January 20, 2017

Appellate Advocacy Blog Weekly Roundup January 20 2017


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).

Supreme Court Nomination Podcast

"Advice & Consent," a Supreme Court Nomination Podcast, has a new podcast including some in depth discussion of the people on President-Elect Trump's short list to fill the open Supreme Court seat.  The podcast is from a liberal perspective, but provides some good insight and information about the potential nominees that is likely of interest to appellate court watchers.  You can also follow @scotuscast on Twitter for future podcasts.

President-Elect Meets with Pryor

President-elect Trump met with Judge William Pryor, one of the judges on the short list to fill Justice Scalia's vacant seat. ABC reported on the meeting.

The End to Chevron Deference?

The House of Representatives passed a package of bills midweek this week concerning regulatory agencies.  One of the bills combined various provisions from previous bills to repeal the "Chevron deference" standard of courts deferring to agency interpretations of statutes.  Law360 has a good overview of the news HERE.  Hat-tip to Jason Steed.

SCOTUS Considers Trademark Battle

The Supreme Court heard a trademark case this week in which an Asian-American rock group called, "The Slants," challenges federal trademark law barring registration of marks that are disparaging to groups and individuals.  Attorneys on both sides faced heated questioning during the case.  NPR provides a summary of the argument HERE.


January 20, 2017 | Permalink | Comments (0)

Tuesday, January 17, 2017

#TwitterTuesday--A Great Advocate & Law Professors


Before I get to #TwitterTuesday for today, I wanted to take a moment to comment on Martin Luther King, Jr. Day.  Yesterday we remembered Dr. King and his great contributions to civil rights in this country.  While Dr. King was not an attorney, he was a superb writer and gifted speaker.  Two of his more famous works demonstrate this quite well--his "I have a dream" speech and his "Letter from a Birmingham Jail," where he provided a cogent defense of  his actions supporting the civil rights movement.  All law students, and lawyers, should read Dr. King's work!

Now on to #TwitterTuesday.  Today, I want to feature legal writing professors.  There are several out there who tweet frequently on appellate advocacy topics (some of whom blog here!).  Here are a few law professors to follow:

Joe Fore (@Joe_Fore) is currently a Legal Analysis, Researching, and Writing professor at the University of Virginia School of Law (@UVALaw). This avid Duke Blue Devils fan has also taught a class on Advanced Oral Advocacy and often tweets about interesting trends and the latest news regarding legal writing.

Jennifer North is a legal writing professor at Charleston Law (@CharlestonLaw). In addition to grading all those Legal Analysis, Research and Writing papers, Professor North writes articles relating to appellate practice for the Appellate Advocacy Blog.

Megan Boyd (@LadyLegalWriter) is a legal writing professor at Georgia State University College of Law. In addition to teaching, Boyd has a blog, the Lady Legal Writer, with an assortment of articles to help with the writing process.

Daniel Real (Daniel_L_Real) is a professor at Creighton Law (@CreightonLaw). His tweets focus primary on ways to improve written and oral advocacy. Professor Real writes The Weekly Roundup for the Appellate Advocacy Blog.

Jennifer Romig (@JenniferMRomig) is a legal writing professor at Emory Law (@EmoryLaw). In addition to teaching, Professor Romig writes a blog called Listen Like a Lawyer (@ListenLikeaLwyr) which is an excellent resource for law students and lawyers alike.

January 17, 2017 | Permalink | Comments (0)

Friday, January 13, 2017

Appellate Advocacy Blog Weekly Roundup January 12 2017


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).

Potential SCOTUS Nominee Profile:

SCOTUSBlog had a profile summary of one of President-Elect Donald Trump's potential nominees to fill the vacant seat on the Supreme Court.  Judge William H. Pryor of the U.S Court of Appeals for the 11th Circuit is considered by many to be the front-runner for the open seat.  

Twitter Discussion About Typeface Conventions for Emphasis:

Jennifer Romig, of, pointed in a Twitter post this week to an April 2016 blog post by Jason Steed, of Bell Nunnally & Martin, about whether it is preferable to use italics, or bold, or boldface italics to emphasize text.  Steed had taken a Twitter poll, in which italics won by a landslide, with bold slightly edging boldface italics as the next preference.  Steed argued in the blog post that this was a bit surprising, inasmuch as italics is already used as a convention for a variety of other aspects of legal writing, such as citations and foreign-language terms, while bold is rarely used for anything else. Romig's Twitter post also included responses from Michael Skotnicki, of the Briefly Writing blog, pointing to a couple of his blog posts about the value of using less typeface convention for emphasis instead of more and about alternative ways to place emphasis on important information.

 SCOTUS Hears Case on Disabled Children and Public Schools:

The Supreme Court heard argument this week in a case concerning the level of education support that must be provided to disabled children in public school systems.  The case specifically dealt with the concept of "free appropriate public education," guaranteed to disabled children under the Individuals with Disabilities Education Act (IDEA). The case is Endrew F. v. Douglas County School District

Read More:


LA Times

Constitution Center Blog

Unwritten Opinions:  Oregon Court of Appeals:

The Oregon Court of Appeals -- like other state appellate courts -- disposes of a percentage of its cases in decisions that are affirmed without opinion.  Oregon is somewhat unusual in that a relatively high percentage of its business is done through "decisions affirmed without opinion" or AWOPs -- roughly 65 percent, in fact.  According to the chief judge, Rick Haselton, a big reason for the high percentage in Oregon is the lack of people to write all of the opinions that would be needed to bring the rate down. An interesting article discussing the situation, as well as some possible remedies, appeared at Investigate West, a nonprofit journalism watchdog.

January 13, 2017 | Permalink | Comments (0)

Tuesday, January 10, 2017

#TwitterTuesday--Appellate Journals


Happy #TwitterTuesday.  Perhaps one of your goals this year is to read more.  Well, here are a few appellate advocacy journals that you can follow:

Suffolk Law School (@Suffolk_Law) publishes the Journal of Trial and Appellate Advocacy. The Journal provides not only scholarly research, but also practical wisdom on current litigation issues.

The Journal of Appellate Practice and Process by the William H. Bowen School of Law (@Bowenlaw) publishes articles “exclusively on issues, practices, and procedures of appellate court systems, both federal and state, both American and international.”

The American Bar Association Section of Litigation (@ABALitigation) publishes the Appellate Practice journal four times a year. With article topics ranging from the Supreme Court to building an appellate practice, the journal has a wealth of knowledge for appellate advocates.    

January 10, 2017 | Permalink | Comments (0)

Monday, January 9, 2017

Best Appellate Movies

It was a snowy/icy/cold weekend in Virginia.  In fact, I saw something on Sunday that said there is snow on the ground in every state except Florida. Sounds like perfect weather for a movie.

There are several lists out there on the best legal movies, including one by JD Journal and another by the ABA Journal. Most of the greats, however, are courtroom dramas.  Think about it, To Kill a Mockingbird, A Few Good Men, My Cousin Vinny--all courtroom dramas.  

So, what are the best Appellate Legal Movies.  I have combed the lists and offer these suggestions (with help from this list by Missouri appellate attorney Jonathan Sternberg):

  1.  Reversal of Fortune (1990).  This movie is on the ABA Journal list and focuses on the true story of Claus von Bulow who was accused of the attempted murder of his wife. Alan Dershowitz and a group of Harvard Law students helped with von Bulow's defense.
  2. Amistad (1997).  This movie makes all of the lists and follows the 1841 case about a slavery ship uprising.
  3. The People vs. Larry Flynt (1996). In addition to following the rise of Larry Flynt, this film follows the famous First Amendment case, ultimately decided by the Supreme Court, Hustler Magazine v. Falwell.
  4. Bridge of Spies (2015).  Sternberg had this movie on his list.  I had forgotten that the movie briefly covered Rudolf Abel's appeal to the U.S. Supreme Court.  This really was an interesting movie, even though the legal aspect was pretty minor.
  5. The Pelican Brief (1992). Every legal movie/book list needs to include at least one John Grisham book.  This is a great film that qualifies under the appellate category given the fact that it involves the murder of Supreme Court justices.

I am sure that I have missed some.  What is your favorite appellate movie?

January 9, 2017 in Film | Permalink | Comments (2)

Friday, January 6, 2017

Appellate Advocacy Blog Weekly Roundup January 6 2017


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).

Roberts Recusal from Patent Case

Life Technologies Corp. v. Promega Corp. was argued last month before the Supreme Court.  The case involves a statute imposing liability on companies exporting "all or a substantial portion of the components of a patented invention" to actively induce overseas action to combine components in a way that would amount to infringement if done domestically.  It turns out that Chief Justice Roberts owns shares of stock in a company, Thermo Fisher Scientific, which in turn owns the petitioner company, Life Technologies.  As a result of the late discovery of the conflict, Roberts has recused himself from resolution of the case.




Insider Practice Instruction from the 5th Circuit

The 5th Circuit Court of Appeals has provided some helpful videos on Youtube concerning practice instruction in the circuit.  In one video, the clerk of the court explains the process for scheduling oral arguments.  In another video, the chief judge discusses what attorneys can expect when presenting oral argument.

Useful Grammar Twitter Follows

Real Simple (@RealSimple) this week posted "7 Twitter Accounts English Grammar-Lovers Should Follow." Inasmuch as appellate practice involves a great deal of careful writing, these are all useful follows for appellate practitioners, as well.

President's Article in Harvard Law Review

This week President Barack Obama had a commentary appear in the Harvard Law Review.  The commentary, titled "The President's Role in Advancing Criminal Justice Reform," provides a discussion of the current criminal justice landscape and the need for meaningful reform, the role played by the President in driving significant reform at both the federal and state/local levels, and a look ahead to reforms that could be implemented soon. 

Brief Odds and Ends

#AppellateTwitter made the United States Law Week -- in a piece calling it "Appellate Law Enthusiasts' 'Nerdy' Forum."

A new keyboard just for legal writers has hit the market -- the Legal Keyboard -- including buttons for section, paragraph, and copyright symbols, among other features.  Only $65.





January 6, 2017 | Permalink | Comments (0)

Tuesday, January 3, 2017

#TwitterTuesday--Who will be SG?


Happy New Year!  2017 is sure to be a big one as the country faces a new presidential administration and at least one SCOTUS vacancy.  For today we will focus on possible Solicitor General picks.

Erin Murphy, a partner at Kirkland & Ellis (@Kirkland_Ellis), focuses on Supreme Court and other appellate cases. This former law clerk for Chief Justice John Roberts, Jr., successfully argued on behalf of the House of Representatives in Texas v. United States and briefed for high-profile cases such as NFIB v. Sebelius.

Michael Carvin, partner at Jones Day (@JonesDay), has been characterized as having a “take no prisoners” argument style, seen in his work on behalf of the National Federation of Independent Bsuiness in NFIB v. Sebelius.

Kannon Shanmugam (@KannonShanmugam) heads the Supreme Court and appellate litigation practice at Williams and Connelly and, as evidenced in his tweets, is an avid Kansas Jayhawks fan. Shanmugam has argued before the Supreme Court of the United States eighteen times and in all thirteen Federal Circuit courts.

Another name that is being thrown around for SG is George Conway (@gtconway3d), a partner at Wachtell and husband of Kellyanne Conway, a senior Trump adviser.  Mr. Conway is a graduate of Yale Law School and Harvard College.  He clerked for Judge Ralph K. Winter, Jr., on the Second Circuit. 

January 3, 2017 | Permalink | Comments (0)