Appellate Advocacy Blog

Follow the Rules!

I recently received a link to a Seventh Circuit in-chambers opinion that I thought was worth sharing.  On July 10, Chief Judge Diane Wood issued an in-chambers opinion striking briefs in two cases.  The briefs, one a respondent brief from the Attorney General and the other an appellee brief from the Air Line Pilots Association, were stricken for failing to comply with court rules.  So what court rule did these parties fail to follow?  Circuit Rules 3(c)(1) and 28 on jurisdictional statements. 

This is surprising, as the briefs that were stricken were from an appellee and a respondent.  As Chief Judge Wood explains, however, appellees and respondents have responsibilities too when it comes to the jurisdictional statement.  While appellees and respondents are exempted “from filing a jurisdictional statement unless it is ‘dissatisfied’ with the appellant’s statement,” Seventh Circuit Rules “direct[] that ‘[t]he appellee’s brief shall state explicitly whether or not the jurisdictional  summary in the appellant’s brief is complete and correct.  If it is not, the appellee shall provide a complete jurisdictional summary.’”

As the Chief Judge points out, “The job of the appellee is to review the appellant’s jurisdictional statement to see if it is both complete and correct. These terms are not synonyms.”  So where did the briefs of the Attorney General and the Air Line Pilots Association fall short?  With respect to the Attorney General’s brief, the jurisdictional statement only said that the appellant’s statement was correct, not that it was complete.  Chief Judge Wood explained, “If the Department [of Justice] concludes that Mr. Baez‐ Sanchez’s jurisdictional statement is both complete and correct, it should say so in the amended brief.”  As for the Air Line Pilots Association, while their statement said that the appellant’s statement was complete, but mentioned nothing about correctness.  Chief Judge Wood directed the Association to “review the appellants’ jurisdictional statement for both completeness and correctness, and if the statement is wanting on either score, . . . supply a comprehensive statement that complies with FRAP 28(a) and Circuit Rule 28(a).”

So what is the moral of this story?  Follow the rules. In both cases, the jurisdictional statements would have been perfectly acceptable if they had two additional words. Now, the parties will have to incur the costs (both in time and money) of filing amended briefs. 

Filing a brief that comports with the rules of the jurisdiction should not be such a difficult endeavor.  As Chief Judge Wood notes in her opinion, the Seventh Circuit even provides a checklist to assist litigants follow the rules.  Other legal writing books or courts provide similar lists or examples.  As lawyers, we can, and should, do better.   

#TwitterTuesday--Legal News

For the most up-to-date appellate happenings, follow these legal news sources:

Appellate Law360 (@AppellateLaw360)--I enjoy my daily Law360 emails, full of great news stories.  The Appellate Law360 twitter account covers "late-breaking developments in appellate litigation."

National Law Journal (@TheNLJ) aptly describes itself as "[p]roviding in-depth coverage of the issues that mean the most to the legal community."  I couldn't say it better myself!

Bloomberg BNA (@BloombergBNA)--Bloomberg and its team of editors and correspondents cover a wide array of issues, including legal/appellate matters. Their SCOTUS reporter, @KimberlyRobinson, is top notch!

 

Law360 Top Appellate Attorneys Under 40

Last week Law360 named its "Rising Stars for 2017," which features accomplished attorneys under the age of 40 who have achieved significant career accomplishments in their respective fields.  The list is broken up into 35 areas, one of which is appellate.  The four "rising [appellate] stars" are listed below:

Paul W. Hughes--Paul Hughes is a partner at Mayer Brown in the firm's Supreme Court & Appellate practice.  He has argued twice before the U.S. Supreme Court and has argued before several of the federal circuit courts.  He also lectures at Yale Law, where he is the co-director of Yale's Supreme Court Advocacy Clinic.  He is a graduate of Yale Law School and clerked on the Fourth Circuit for Judge Diana Gibbons Motz.

Erin E. Murphy--Erin Murphy is a partner at Kirkland Ellis, having come over to Kirkland with the Bancroft crew.  She has argued three cases in front of the U.S. Supreme Court and has also argued before most of the federal circuit courts.  She is a graduate of Georgetown Law, and she clerked for Chief  Justice John G. Roberts, Jr., and Judge Diana Sykes.

Thomas G. Saunder--Tom Saunders is a partner at WilmerHale.  He has argued (and won) two cases before the U.S. Supreme Court.  Like the others on this list, he has also argued  before several federal circuit courts.  He is a Yale Law graduate, and he clerked for Justice Ruth Bader Ginsburg and Judge Pierre Leval.

Adam G. Unikowsky--Adam Unikowsky is a partner at Jenner & Block.  He has won five cases before the U.S. Supreme Court, arguing at least 4 of them.  A 2007 graduate of Harvard Law, he left Jenner in 2010 to clerk for Justice Antonin Scalia.  He also clerked for Judge Douglas Ginsburg on the D.C. Circuit.

Congratulations to the rising stars!

#TwitterTuesday--Utah

Looking to follow appellate law in Utah?  Here are a few Twitter accounts to follow:

Ken Reich (@LexUtah) is a Salt Lake City practitioner.  He tweets on a variety of issues, including decisions of the Utah Supreme Court.  His primary area of focus is business law.

The Utah State Bar (@UtahStateBar) tweets out information useful to all state bar members, including information about the Utah Court system and judicial openings.

Last, but certainly not least, follow my law school friend Aaron Nielson (@Aaron_L_Nielson), a professor at BYU Law, for information on federal courts and administrative law.  Aaron also blogs for the Yale Journal on Regulation, which you can follow @YaleJREG.

 

Should SCOTUS Justices Have a Mandatory Retirement Age?

According to Law360, Seventh Circuit Judge Richard Posner (age 78), advocated for mandatory judicial retirement ages in a recent interview published by Slate.  Judge Posner suggested setting the retirement age at around 80 years old, saying "[t]here are loads of persons capable of distinction as Supreme Court justices; no need for octogenarians."  Currently, Justice Kennedy is 80 years old (he turns 81 in just a few days--happy birthday Justice Kennedy), and Justice Ginsburg is 84.

The notion of a mandatory judicial retirement age is not new.  In fact, many states have such rules, although most states set the age at 70.  The problem with a federal judicial retirement age is that Article III of the Constitution states judges "shall hold their Offices during good Behaviour," which has been read to confer life tenure on federal judges.  Article III, however, is not an obstacle for Judge Posner who, according to the article, reads the clause "as simply meaning judges can be fired at any age for bad performance."

Interestingly, there have been efforts to increase state mandatory judicial retirement ages in recent years, due in part to the fact that life expectancies are increasing.  These efforts, however, have largely been rejected by voters in the past. In fact, Oregon voters recently rejected an effort to remove the mandatory judicial retirement age of 75.  On the other hand, last year Pennsylvania voters, by a rather narrow margin, approved an increase in the mandatory retirement age from 70 to 75.  

 

#TwitterTuesday--Nevada

In keeping with my west coast focus, today's #TwitterTuesday features Twitter accounts to follow out of the great state of Nevada.

Jordan T. Smith (@NevadaAppellate)--According to his profile, Jordan Smith is an appellate litigator in Nevada.  He was "[r]ecognized by Best Lawyers as the 2016 Appellate Practice Lawyer of the Year in Las Vegas."  He tweets on Nevada Supreme Court opinions and other appellate items of interest.

State Bar of Nevada (@nevadabar)--The State Bar tweets on a host of topics, including legal writing, important legal news in the state, and developments in appellate law.

NV Attorney General (@NevadaAG)--This staff run account tweets out news from the AG's office, including the office's litigation efforts.

 

The Chief's Advice to Young Graduates

Chief Justice John Roberts made headlines last week.  It wasn’t a hot-button 5-4 opinion at the end of the SCOTUS term that caught the media’s attention this year.  But, it was a piece of writing that the Washington Post called “[t]he best thing Chief Justice Roberts wrote this term.”  So, what was it?  Well, it was a graduation speech delivered to the graduating class at Cardigan Mountain School, where the Chief’s son Jack was graduating ninth grade.

It is hard to believe that the Chief’s son is graduating ninth grade.  I remember seeing him “dance” at the press conference in July 2005, when President Bush announced John Roberts’ nomination to the SCOTUS.  You can watch the video here.  Apparently, young Jack was impersonating Spiderman.

What makes this speech so great? It is certainly funny (see this line:  “You’ve been at a school with just boys. Most of you will be going to a school with girls. I have no advice for you.”). But that is not what makes the speech stand out.  What makes the speech so unique, and what has drawn attention, is the section of the speech where Chief Justice Roberts tells the students that he hopes that they will be “treated unfairly” and have “bad luck.” He says:

Now the commencement speakers will typically also wish you good luck and extend good wishes to you. I will not do that, and I’ll tell you why. From time to time in the years to come, I hope you will be treated unfairly, so that you will come to know the value of justice. I hope that you will suffer betrayal because that will teach you the importance of loyalty. Sorry to say, but I hope you will be lonely from time to time so that you don’t take friends for granted. I wish you bad luck, again, from time to time so that you will be conscious of the role of chance in life and understand that your success is not completely deserved and that the failure of others is not completely deserved either. And when you lose, as you will from time to time, I hope every now and then, your opponent will gloat over your failure. It is a way for you to understand the importance of sportsmanship. I hope you’ll be ignored so you know the importance of listening to others, and I hope you will have just enough pain to learn compassion. Whether I wish these things or not, they’re going to happen. And whether you benefit from them or not will depend upon your ability to see the message in your misfortunes.

Chief Justice Roberts does offer the students some advice that I think relates to appellate advocacy.  He reminds the students that, although they are “privileged,” they should not act like it.  Rather, when they get to their new schools, they should “walk up and introduce [themselves] to the person who is raking the leaves, shoveling the snow or emptying the trash. Learn their name and call them by their name during your time at the school.” He also told them to smile and say “hello” to people that they do not recognize when taking walks.  He said, “[t]he worst thing that will happen is that you will become known as the young man who smiles and says hello, and that is not a bad thing to start with.”

This exhortation to treat others with kindness is a lesson that many attorneys could stand to learn.  When I was clerking, there was a story told around the courthouse about some attorneys looking for a courtroom.  One of the judges, who was not in his robe, stopped to help them.  But, when he told them that he only knew the courtrooms by carpet color (which is how all the judges, clerks, and court staff referred to the courtrooms) and not number, the attorneys were quite rude to him.  He wasn’t on their panel, but I do believe that he spoke to the judges who were.  A little kindness to the clerk’s office, the marshals, the janitorial staff, and the unknown person offering help, goes a long way!

The Chief offers some other great advice, so I encourage you to read his full remarks here.

Job Posting--Legal Research & Writing Visiting Professor at Pepperdine Law

Below is a job posting that might be of interest to some of our readers.  If sunny Malibu isn't enough of a draw, don't forget that Paul Caron, "the Owner and Publisher of the Law Professor Blogs Network," is now dean at Pepperdine.  Dean Caron is a prolific scholar and blogger, and he is a well-respected figure in legal academia.  I suspect that he will be a great leader at Pepperdine.

Legal Research and Writing Visiting Professor (2017-2018)

Pepperdine University School of Law seeks a LEGAL RESEARCH and WRITING VISITING PROFESSOR for one year to teach for the 2017-2018 academic year. Applicants must have a J.D. from an ABA-accredited law school, have excellent academic credentials, be committed to teaching Legal Research and Writing, and support the goals and mission of the University. Applicants should have at least two to three years of post-J.D. experience in a position or positions requiring substantial legal writing. The position comes with a market-competitive salary, employment benefits, and the title of Assistant Visiting Professor of Legal Research and Writing.

The School of Law is an ABA accredited, AALS member law school located in Malibu, California. Pepperdine is a Christian university committed to the highest standards of academic excellence and Christian values, where students are strengthened for lives of purpose, service, and leadership. The School of Law welcomes applications from people of all faiths and is particularly interested in receiving applications from candidates who may bring greater racial, ethnic, and gender diversity to the faculty of the School of Law.

For further information about Pepperdine University and the School of Law, please visit the law school's website. The deadline for submission is July 19, 2017.

Please download and complete the attached application, and send to [email protected].

Pepperdine University, School of Law
24255 Pacific Coast Hwy
Malibu, CA 90263
310-506-4676

You can also find the posting here.

 

#TwitterTuesday--The Centennial State

While the State of Colorado is known for many things, such as this, the state nickname that you probably learned in elementary school is the "Centennial State," since Colorado became a state in 1876, 100 years after the Declaration of Independence, which we celebrate today!  So, in honor of the Fourth of July and the Centennial State, here are a few Colorado Appellate Twitter Feeds to follow:

Colorado Bar CLE (@cleincolorado) is the "[n]onprofit continuing legal education provider and publisher for the Colorado Bar Association."  They tweet on legal issues in the state, including 10th Circuit cases and cases from the Colorado Appellate Courts. You can also find helpful practice and appellate information on their website:  http://cbaclelegalconnection.com/ 

Law Week Colorado (@LawWeek) tweets on appellate decisions out of the 10th Circuit and the state supreme court, as well as the latest in legal news and happenings.

Christopher Jackson (@COAppeals), was forward thinking enough to get the best Colorado Appellate Twitter handle. He tweets about appellate matters and election law, with a focus on Colorado.