Appellate Advocacy Blog

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

Friday, April 28, 2017

Appellate Advocacy Blog Weekly Roundup April 28 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).


Salazar-Limon v. Houston:

The Supreme Court denied cert this week in Salazar-Limon v. Houston, a case in which the trial court granted summary judgment in favor of the State on a qualified immunity claim related to an allegation of excessive force by a police officer who shot a man in the back.  The denial of cert drew extra attention because Justice Sotomayor authored a strong dissent, in which she asserted that the trial court and the Fifth Circuit had acted improperly in granting summary judgment and argued that the Supreme Court does not evenly consider appeals from the State and from citizens in such cases.  Justice Alito also authored a separate opinion, concurring in the denial of cert.

Some links discussing the decision and the policy implications related to the development of qualified immunity law in such cases:

Justice Alito's concurrence and Justice Sotomayor's dissent.

Will Baude post on Volokh Conspiracy at the Washington Post about the Court's "Double Standard for Qualified Immunity Cases."

Raffi Melkonian blog post arguing that Sotomayor missed the mark with the reasoning in her dissent.

Supreme Court Arguments:


Monday the Supreme Court heard argument in McWilliams v. Dunn, addressing the question of whether an indigent defendant's entitlement to meaningful expert assistance includes a requirement that the expert assistance be independent from the prosecution.

NPR Article previewing the oral argument

NPR Article about Justices appearing to be split during oral argument

SCOTUSblog page for McWilliams

Bristol-Meyers Squibb Co.

Tuesday the Supreme Court heard oral argument in Bristol-Meyers Squibb Co. and in BNSF Railway Co., addressing the Constitutional law governing where injured people and others can sue companies.  The cases could mark further changes in the recently evolving law of personal jurisdiction.

Bloomberg Article previewing the oral argument

ABA Journal Article by Erwin Chemerinsky previewing Bristol-Meyers Squibb Co. and its potential impact

SCOTUSblog page for Bristol-Meyers Squibb Co.

 Maslenjak v. United States

Wednesday the Supreme Court heard oral argument in Maslenjak, addressing whether a naturalized American citizen can be stripped of citizenship status in a criminal proceeding based on an immaterial false statement.

SCOTUSblog page for Maslenjak

NY Times article reviewing the oral arguments and the apparent concern by the Court for the government's very hard-line position that any criminal offense, no matter how minor and no matter whether ever resulting in arrest or other consequence, could be the basis for revoking citizenship.


Appellate Practice:

This week's #PracticeTuesday discussion on Twitter was all about career changes -- when, how, and why.  It was hosted by Raffi Melkonian.  As always, a lot of great discussion and advice.  Check out the main thread HERE or search for the hashtag on Twitter for additional posts.

This week, Jason Steed shared a blog post from last April on the subject of "Choosing the Right Word."  It's a great read and emphasizes somef quality legal writing stand-bys, such as avoiding the overuse of adverbs and adjectives and, instead, using carefully chosen simple nouns and verbs.

Georgia Court of Appeals Chief Judge Dillard had a discussion going this week on Twitter about concessions during oral argument.  Among the responses that don't appear directly in the thread are a series of thoughts from Steve Klepper, giving the litigants' perspective.

April 28, 2017 | Permalink | Comments (0)

Tuesday, April 25, 2017

#TwitterTuesday--The Grand Canyon State


We have had a cold, rainy weekend in Virginia.  So, the warm sunshine of Arizona, where I will be moving to soon, is on my mind.  For #TwitterTuesday today we are featuring some accounts to follow for appellate matters in Arizona.

The Arizona Supreme Court (@AZCourts) has its own twitter account that provides easy access to case summaries and decisions as well as other news and information about the Court.

The Attorney General of Arizona, Mark Brnovich (@GeneralBrnovich), is both country music fan and an avid tweeter about the opportunities his office has to engage with the public and on issues such as protecting victims.

 Osborn Maledon, P.A. (@OsbornMaledon) is an Arizona law firm that runs the AZAPP blog which provides case summaries and news from appellate courts in the Grand Canyon State.

April 25, 2017 | Permalink | Comments (0)

Tuesday, April 18, 2017

#TwitterTuesday--AGs of New England


Today for #TwitterTuesday I would like to feature some of the AGs in the Northeast.

Maura Healey (@MassAGO) is the Attorney General of Massachusetts. On top of tweeting about the Boston Celtics or the Boston Marathon, the AG tweets about their work regarding opioid addiction and sexual violence.

 George Jepsen (@AGJepsen) currently serves as the Attorney General for Connecticut. Jepsen’s tweets contain helpful links to find the current projects going on in The Constitution State, including his statements on the activities of President Trump.

Peter Kilmartin (@AGKilmartin), Attorney General of Rhode Island, provides a convenient link in his tweets to helpful information contained in a newsletter from his office.

T.J. Donovan (@TJforVermont) currently serves as the Attorney General for the State of Vermont (@VTAttorneyGen). His tweets often correlate to events his office is holding around the state as well as a way to introduce topics of discuss and hear feedback from constituents.

April 18, 2017 | Permalink | Comments (0)

Monday, April 17, 2017

Should you correct a judge's pronunciation?

For those of you on the edge of your office chair waiting for the answer, it is no.  You should not correct a judge's mispronunciation of a word.  

The long (although not too long) answer can be found in my colleague James Duane's recent article May it Please the Court?: The Perils of Correcting a Justice's Pronunciation, which is being published by the Seton Hall Circuit Review.  In the article, Jim recounts a trip to the United States Supreme Court that we took with several of our students to hear oral argument and meet with Justice Kagan.  During argument in the case, one of the justices asked a question that mentioned the last antecedent rule.  The justice pronounced "antecedent" in an unconventional manner.  The advocate, who was quite skilled, used the more common pronunciation of the word "antecedent" in her response.  

As he reflects in the article, Jim told us after the argument that he has "never contradicted a judge about the pronunciation of any word while arguing a case. I would instead either mimic the judge's mistaken pronunciation, or simply not use that word in my answer."  Sound advice.  Jim also avoids mentioning the particular justice and advocate in his article, but he provides a link to the oral argument.  Tony Mauro, in this write up on Jim's article, includes a link to the audio. 

This article is not Jim's only foray into the perilous task of appellate pronunciation. He also has a delightful (and short) piece in The Green Bag on how the Supreme Court is split on pronouncing the word "certiorari."

April 17, 2017 | Permalink | Comments (0)

Tuesday, April 11, 2017

#TwitterTuesday--Final Four


Yes, I am a week late, but for #TwitterTuesday this week we are featuring the four schools that made it to the final four:

North Carolina

Josh Stein (@JoshStein_) is the 50th Attorney General of the Tar Heel State (@NCAGO), serving alongside current governor and University of North Carolina School of Law graduate, Roy Cooper (@RoyCooperNC).


Mary Fairhurst, a Gonzaga School of Law graduate, was sworn in as the Chief Justice to the Washington Supreme Court (@WACourts) in January. Follow the state supreme court on Twitter for updates and even a little history from the State’s highest court.


Ellen Rosenblum (@EllenRosenblum) is a graduate of the University of Oregon School of Law and has the distinction of serving as Oregon’s first woman Attorney General.

South Carolina

Alan Wilson (@AGAlanWilson), a University of South Carolina School of Law graduate, is the current Attorney General for the Palmetto State (@SCAttyGenOffice).

April 11, 2017 | Permalink | Comments (0)

Monday, April 10, 2017

Back to a Full Bench

After 14 months of operating with only 8 justices, on April 17, 2017, the Supreme Court of the United States will hear oral arguments with a full bench.  Judge Neil Gorsuch has been confirmed by the United States Senate to fill the vacancy on the high court created by the death of Justice Antonin Scalia last February.  Judge Gorsuch will be sworn in today.

Judge Gorsuch's confirmation process was not without controversy.  Senate Democrats, upset that former-President Obama's pick to replace Justice Scalia did not receive a hearing, filibustered Gorsuch's nomination on the Senate floor.  Republicans responded by using the "nuclear option" to change the Senate rules and require only 51 votes (not 60) for Judge Gorsuch's nomination to move forward.  Senate Democrats had similarly used the "nuclear option" in 2013 to remove the filibuster for executive and federal appellate nominees.

Justice Gorsuch's first week as a justice will be likely spent prepping for the cases the Court will hear his second week on the bench.  The Court is sent to hear argument in seven cases from April 17 to April 19.  His vote is likely to be critical in some the cases still facing the Court this term.


April 10, 2017 | Permalink | Comments (0)

Friday, April 7, 2017

Appellate Advocacy Blog Weekly Roundup April 7 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).

Confirmation of Judge Gorsuch to SCOTUS

Items Related to Gosuch Confirmation Votes, Filibuster, Nuclear Option:

Washington Post evaluation of the votes as of Monday morning

Washington Post on Democrats securing votes to block nomination and setting up potential "nuclear option"

Reuters article: Democrats amass support needed to block confirmation vote with filibuster article on "The Strategic Case Against the Democratic Filibuster of Neil Gorsuch"

USN&WR article on "A Supreme Mistake in the Making" about how Republicans could harm the country and themselves by breaking the filibuster with the "nuclear option"


HowAppealing links to variety of articles and stories about Senate Republicans deploying the "nuclear option" to break the filibuster and clear the path for Gorsuch's confirmation.


Items Related to Midweek Plagiarism Allegation:

Business Insider article about the allegations

Politico piece asserting that the evidence supports conclusions of plagiarism

Bloomberg piece asserting that the alleged plagiarism examples are embarrassing


 Not Directly About Gorsuch, But About Judicial Nominations, Vetting, and Confirmation

NY Times article about the White House ending the ABA's role in vetting judges


Noteworthy Appellate Rulings

7th Circuit Court of Appeals ruling in Hively v. Ivy Tech Community College of Indiana:

The 7th Circuit Court of Appeals became the first federal appeals court to rule in favor of protection for sexual orientation-based discrimination under existing federal law when it ruled in an 8-3 ruling that existing civil rights laws protect against such discrimination.

Reuters article about the 7th Circuit decision

AP/Buzzfeed article about the ruling, including court's actual opinion

HowAppealing Links, Part 1

HowAppealing Links, Part 2


Analysis of Appellate Work and History

Empirical SCOTUS analysis of "The Most Powerful Justices Across Time" 


Practice Items

Reuters  on judge sanctioning firm over line spacing and font

#AppellateTwitter's #PracticeTuesday thread this week about tips, processes, advice on finalizing briefs

Twitter:  Trial by Combat denied


April 7, 2017 | Permalink | Comments (0)

Thursday, April 6, 2017

The Fourth Circuit's inboxes are overflowing with unsolicited emails

Here is an interesting tactic that I had not heard about before, and seems so out of the realm of possibility I had never considered it: Fourth Circuit judges have received thousands of unsolicited emails urging a particular outcome in a pending case. As lawyers, we understand and live by the idea that ex parte communications are not allowed. Normally we think of this in terms of the other party involved in the case. No one wants opposing counsel to have the judge's ear without being able to respond. The rule preserves the fairness of the process.


But what if those who are not party to the case have something to say? Well, there is a process for that too - the amicus brief. Usually, interested parties must have permission from the court, and sometimes the actual parties, in order to submit this type of information. Other methods of submitting information to the court, particularly in an unorganized or decentralized fashion is not a "thing." Maybe now it is.

The current email campaign is coming from the Florida Family Association who is urging the court to uphold President Trump's travel ban (the court will be hearing the case in a few weeks). The FFA has engaged in similar campaigns in the past and feels that this type of communication can be persuasive for the court. The group promotes this communication by providing a template for individuals to copy and send on their own, not unlike the types of campaigns used by advocacy groups to communicate with elected officials. 

FFA founder and president David Caton said he believes email campaigns are an effective tool to sway judicial decisions.

"We feel there is a flavor that is missing in most courts, which is, what is really the will of the American public?" Caton said. "When there is injustice, there needs to be a mechanism to communicate from the people who are frustrated when they see the injustice."

But others, which I would guess includes most lawyers, have a different opinion.

"I can't think of a better way to make a judge mad than to flood his or her email box with a bunch of advocacy statements," [Russell] Wheeler said. [Wheeler is an expert in courts and law at the Brookings Institute].

Considering the way communications have changed over the last several years, and with the rise of social media where everyone has an opportunity to voice his or her opinion, this action doesn't seem so out of the mainstream anymore. Public, and formerly private, figures can all suddenly be subject to the admonitions of the crowd. And those communications are probably protected by the First Amendment unless it were to become harassment. While this kind of behavior stretches the boundaries of expected decorum, if the tactics are perceived as effective, this kind of action will continue to happen. Further, the continued politicization of the judicial branch will encourage advocacy groups to try influence court outcomes in ways that skirt the traditional judicial process. 

It is important that we have and cultivate a public discourse, but I can't say I am in favor of channeling that discourse into every judge's inbox. Speaking from within the legal bubble, I agree that receiving unsolicited email would not make me more likely to find in their favor. However, the more our courts continue to appear to be swayed by political ideology, and not by adherence to the law, the more this tactic and others like it will be employed to influence outcomes. I do not believe this is a good development for our legal system, but it appears to be directly connected with frustration and disappointment in the system itself. 

April 6, 2017 | Permalink | Comments (0)

Tuesday, April 4, 2017

#TwitterTuesday--Midwest Supreme Courts


Spring is in the air!  In honor of warmer weather, for #TwitterTuesday this week we are featuring the Twitter accounts of the high courts of some cold Midwestern states.

The Minnesota Judicial Branch (@MNCourts) is the official Twitter account of the State’s courts, including its Court of Appeals and the Supreme Court. Information about the latest decisions from various courts or news about the legal community in the state can be found here.

 The Michigan Supreme Court (@MISupremeCourt) has an extensive twitter outreach. Tweets from the State’s highest court include history of the legal system, information about legal services and opportunities, recent Court decisions and latest legal trends.

@OHSupremeCourt is the official Twitter account of the Supreme Court of Ohio. The Twitter feed includes announcements from the Court, recent decisions, and important deadlines for practitioners in the state.

April 4, 2017 | Permalink | Comments (0)