Appellate Advocacy Blog

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

Monday, June 26, 2017

Lexis Acquires Ravel Law

Earlier this month, LexisNexis announced that is has acquired Ravel Law. My guess is that many of our readers have not heard of Ravel Law.  According to their website:

Ravel is analytical research, a new category of intelligent tool that combines legal research and analytics. Powered by expert legal knowledge, machine learning, and comprehensive caselaw from the Harvard Law Library, Ravel is built by digital natives for 21st Century practice.

Ravel enables lawyers to find what's important, understand why it's important, and put that information to use in the most persuasive way possible. In short, we turn legal information into legal insights.

Ravel's intuitive array of data-driven tools are built from the ground up for the hardest questions, transforming how lawyers understand the law and prepare for litigation.

I first heard of Ravel a year or so ago.  I was particularly impressed by their Judge Analytics.  They market the product as helping you "[u]nderstand how judges think, write, and rule." I think that description is spot-on.  Judge Analytics allows you to find "cases, circuits, and judges your judge finds most persuasive" and "rules and specific language your judge favors and commonly cites."  For appellate advocates appearing before an unfamiliar court, this is an incredibly important research tool.  It is also useful for students applying for clerk-ships.  It collects all of your judge research in one place. 

I don't have a lot to say about Ravel's other features.  I, personally, did not find Ravel's case research to be as useful, but that might be because I did not spend enough time reviewing it.  The connections and graphs were a little too much for me.  I suspect, however, that millennials might really like that feature.

Unfortunately, integrating Ravel into Lexis is going to take some time.  When I called Lexis Advance to ask about the time frame, I was told that the integration would be complete in the first quarter of 2018.  Congratulations to Lexis and Ravel--I suspect that this will be a great deal for both organizations.

June 26, 2017 in Appellate Advocacy, Appellate Practice, Legal Writing | Permalink | Comments (0)

Tuesday, June 20, 2017

#TwitterTuesday--Themeless in Arizona

TwitterTuesdays

Welcome to #TwitterTuesday.  Alas, I have no great theme today.  But, I do have three great Twitter feeds that you can follow!

Ross Guberman (@legalwritingpro) is the author of several books on legal writing, including Point Made: How to Write Like the Nation's Top Advocates (which I enjoyed) and Point Taken: How to Write Like the World's Best Judges.  He tweets primarily on legal writing.

Bryan A. Garnar (@BryanAGarner) is pretty much the go-to guru for all things legal writing.  He is the editor-in-chief of Black's Law Dictionary and the Redbook, interviewer of justices and judges, and co-author of at least two books with the late-Justice Scalia, including a book on appellate advocacy Making Your Case:  The Art of Persuading Judges.

Megan E. Boyd (@LadyLegalWriter) blogs on legal writing at ladylegalwriter.blogspot.com. She has some great tweets on writing in general and legal writing in particular.

 

 

June 20, 2017 | Permalink | Comments (0)

Monday, June 19, 2017

Should the Justices Cancel Their Summer Plans?

Under the Rule 10 of the Supreme Court Rules, the Court will only grant a petition for a writ of certiorari for “compelling reasons.” In Rule 10, the Court provides three examples that “indicate the character of the reasons” that the Court considers in granting certiorari:

(a) a United States court of appeals has entered a decision in conflict with the decision of another United States court of appeals on the same important matter; has decided an important federal question in a way that conflicts with a decision by a state court of last resort; or has so far departed from the accepted and usual course of judicial proceedings, or sanctioned such a departure by a lower court, as to call for an exercise of this Court's supervisory power;

(b) a state court of last resort has decided an important federal question in a way that conflicts with the decision of another state court of last resort or of a United States court of appeals;

(c) a state court or a United States court of appeals has decided an important question of federal law that has not been, but should be, settled by this Court, or has decided an important federal question in a way that conflicts with relevant decisions of this Court.

On June 1, the Trump Administration filed a petition for a writ of certiorari, asking the Court to hear the case Trump v. International Refugee Assistance Project, which is the Fourth Circuit case challenging President Trump’s Executive Order on visas from certain countries, commonly referred to as the travel ban.  There is also a case in the Ninth Circuit challenging the ban.  In both cases, the respective district courts enjoined the ban and the circuit courts largely affirmed those decisions. 

Should the Court grant certiorari in these cases?  My friend Professor Josh Blackman has argued in a June 11 op-ed in the New York Times that the Court should indeed grant certiorari and provide “finality.”  Professor Blackman argues that the Court should hear arguments promptly and issue a decision “as soon as practicable.” He cites a several examples of separation of powers cases that were decided quickly by the Court (within about a month), including the Pentagon Papers Case, the Steel Seizure Case, and Bush v. Gore.  Professor Blackman argues:

The legal status of President Trump’s executive order, and indeed that of his entire administration, needs finality, sooner rather than later. Even if five justices plan to strike down the executive order, they should do so now, and not in the fall, or worse, one year from now. The lower courts desperately need guidance. Should judges look to Mr. Trump’s Twitter feed to determine his true intent? Should the judiciary privilege statements from the commander in chief that conflict with those of the Justice Department? Are all of Mr. Trump’s actions that affect Muslims, at home and abroad, perpetually tainted by his campaign statements? If the Supreme Court signals that the answer to those questions is yes, then the lower courts may declare open season on this administration in contexts far beyond the travel ban. If a more circumspect Supreme Court signals that the answer is no, then, perhaps, the lower courts will fall into line.

Under Professor Blackman’s reasoning, the Court is facing “compelling reasons,” envisioned in Rule 10—namely, “an important question of federal law that has not been, but should be, settled by this Court.” 

While I sympathize with the argument, I worry that “haste makes waste” or, more accurately, bad constitutional law.  Many of the cases that been rushed through the Court on big separation of powers issues result in highly fractured decisions (think the Pentagon Papers Case, the Steel Seizure Case, and Bush v. Gore) and/or a lack of acceptance by a significant portion of We the People (think Bush v. Gore).  I fear that any overly speedy SCOTUS decision in the travel ban cases would end up with a reputation like Bush v. Gore.  Perhaps even a non-speedy decision would suffer the same fate.  At a minimum, if the Court does decide to take the case, I hope that they devote all summer to it, not just July, even if it means August in D.C.  I emailed this post to Professor Blackman before posting it and he said that he does not mind the Court taking August to decide the cases either, but he does not want to see the issue linger on for six months.  Either way, we should know soon (maybe even later today) if the Court plans on hearing the case.

June 19, 2017 in Appellate Procedure, Federal Appeals Courts, United States Supreme Court | Permalink | Comments (0)

Thursday, June 15, 2017

Justice Gorsuch's first Supreme Court opinion is unanimous

This week, the newest justice on the United States Supreme Court issued his first authored opinion, Henson v. Santander Consumer USA Inc. The topic was debt collection, perhaps not a scintillating topic for most, but Justice Gorsuch opened with a catchy couple of lines - the most colorful of the opinion: 

Disruptive dinnertime calls, downright deceit, and more besides drew Congress’s eye to the debt collection industry. From that scrutiny emerged the Fair Debt Collection Practices Act, a statute that authorizes private lawsuits and weighty fines designed to deter wayward collection practices.

The rest of the decision centers on statutory interpretation, and following in the footsteps of Justice Scalia as he does, Justice Gorsuch's textual approach does not diverge from that of the late justice. The issue in the case was whether a third party purchaser of a debt can fall within the statutory definition of a "debt collector." Because the Fair Debt Collection Practices Act defines a debt collector as one who collects a debt on behalf of another, the defendant in the case could not be called a debt collector, and so did not violate the Act. The petitioner sought to use grammatical reinterpretations of the Act's wording that did not comport with the plain meaning, and failing that, asserted policy arguments. But Justice Gorsuch did not buy it, saying:

All this seems to us quite a lot of speculation. And while it is of course our job to apply faithfully the law Congress has written, it is never our job to rewrite a constitutionally valid statutory text under the banner of speculation about what Congress might have done had it faced a question that, on everyone’s account, it never faced. See Magwood v. Patterson, 561 U. S. 320, 334 (2010) (“We cannot replace the actual text with speculation as to Congress’ intent”). Indeed, it is quite mistaken to assume, as petitioners would have us, that “whatever” might appear to “further[ ] the statute’s primary objective must be the law.” Rodri- guez v. United States, 480 U. S. 522, 526 (1987) (per curiam) (emphasis deleted). Legislation is, after all, the art of compromise, the limitations expressed in statutory terms often the price of passage, and no statute yet known “pur- sues its [stated] purpose[ ] at all costs.” Id., at 525–526. For these reasons and more besides we will not presume with petitioners that any result consistent with their account of the statute’s overarching goal must be the law but will presume more modestly instead “that [the] legis- lature says . . . what it means and means . . . what it says.” Dodd v. United States, 545 U. S. 353, 357 (2005) (internal quotation marks omitted; brackets in original).

The opinion writer has been criticized for not being sensitive to a broader policy of consumer protections, and while that may be true, it was a unanimous Court that agreed the statute's definition of debt collector did not include the type of defendant before the Court. The Court, all nine now, agreed upon one thing - the plain meaning of the statute as written. Further, the Court did not veer off the beaten path. It affirmed the decision of the Fourth Circuit, which had affirmed the decision of the lower district court. It seems that this reading of the statute wasn't any rogue opinion, and instead placed the responsibility of writing clear law back in the hands of Congress. 

June 15, 2017 in Current Affairs, United States Supreme Court | Permalink | Comments (0)

Tuesday, June 13, 2017

#TwitterTuesday--The Heartland of America

TwitterTuesdays

I am sorry that #TwitterTuesday has been sporadic this summer.  I have been moving across the country and, apparently, having technical problems.  I was 99% sure that I posted this #TwitterTuesday last week, but, alas, I was wrong.  So, in honor of my drive across America, today we are featuring appellate twitter feeds to follow from the heartland of America!

Daniel Schramm (@daniel_schramm) is an appellate attorney in St. Louis, Missouri.  He tweets about Missouri appellate practice, legal writing, and national legal issues.

Rox Laird (@roxlaird16) is a contributor to the blog On Brief: Iowa's Appelate Blog. He tweets about cases coming from the Iowa appellate courts and the Eighth Circuit.

For appellate news out of Kansas, follow Foulston Appeals (@FoulstonAppeals).  Foulston also tweets about national appellate matters, including the confirmation of Justice Gorsuch.

June 13, 2017 | Permalink | Comments (0)

Monday, June 12, 2017

Shout-out For Clear Writing

Last week it seemed like the only thing on cable news was former FBI Director James Comey's testimony before Congress.  While the content of Comey's written and oral testimony has received a lot of press, one surprise feature of the hearing was the praise Comey received for his writing.  Here is the exchange Comey had with Senator James Risch from Idaho:

RISCH:  Yesterday, I got, and everybody got, the seven pages of your direct testimony that’s now a part of the record, here. And the first — I read it, then I read it again, and all I could think was, number one, how much I hated the class of legal writing when I was in law school.

And you were the guy that probably got the A, after — after reading this. So I — I find it clear, I find it concise and, having been a prosecutor for a number of years and handling hundred — maybe thousands of cases and read police reports, investigative reports, this is as good as it gets.

And — and I really appreciate that — not only — not only the conciseness and the clearness of it, but also the fact that you have things that were written down contemporaneously when they happened, and you actually put them in quotes, so we know exactly what happened and we’re — and we’re not getting some rendition of it that — that’s in your mind. So...

COMEY: Thank you, Senator.

RISCH: ... so you’re — you’re to be complimented for that.

COMEY: I had great parents and great teachers who beat that into me.

While it is a shame that Senator Risch disliked legal writing in law school (and that he mentioned the fact at a hearing that was nationally televised), I appreciate the shout-out for the importance of clear and concise writing (and parents and teachers who encourage such writing).  

Over at the Lady (Legal) Writer blog, Prof. Kirsten Davis has an excellent post on why she thinks Comey's testimony is "A" worthy.  All of her comments are spot on.  A few of the comments pertain directly to appellate writing, such as organizing information chronologically (almost always a great strategy in the statement of facts) and showing how his ideas connect together.  She also notes the effective nature of the introductory paragraph that Comey uses and how he could have improved it.  I appreciate Kirsten's insight, and I am considering using Comey's testimony in my Advanced Legal Writing course this fall when we discuss the statement of the case.

 

June 12, 2017 in Current Affairs, Legal Writing | Permalink | Comments (0)

Sunday, June 4, 2017

Job Posting--University of Georgia School of Law

For those of you interested in making a career move to academia, I received the following posting from the University of Georgia School of Law:

  • The University of Georgia School of Law seeks to hire a full-time legal writing instructor beginning in the Fall 2017 term. Initial course package will include first-year legal writing and two additional legal writing courses based on the needs of the Law School. A Juris Doctor from an accredited university is required. Interested applicants should submit a letter, resume and list of three references at http://facultyjobs.uga.edu/postings/2239 no later than June 9, 2017. The University of Georgia is an Equal Opportunity/Affirmative Action employer. All qualified applicants will receive consideration for employment without regard to race, color, religion, sex, national origin, disability, sexual orientation, gender identity or protected veteran status.

June 4, 2017 | Permalink | Comments (0)