Tuesday, August 29, 2017
A few weeks ago #appellatetwitter honored women who serve (and have served) as justices on the highest court of their state or on the U.S. Supreme Court. Using the hashtag #WomenJusticeWeek and #WomenJusticeDay, #appellatetwitter filled the twitterverse with posts honoring these women. That same week, the New York Times published an op-ed by Shira Scheindlin, a former federal district court judge in New York. Judge Scheindlin's op-ed discussed a report by the New York State Bar Association's commercial and federal litigation section on women speaking in court. The results were quite disappointing. According to the op-ed:
The report found that women were the lead lawyers for private parties barely 20 percent of the time in New York State’s federal and state courts at the trial and appellate levels. Women were twice as likely to appear on behalf of public sector clients. The offices of the United States attorneys, district attorneys, the state attorney general and the corporation counsel of the City of New York, as well as Legal Aid offices and federal defenders, have achieved some level of gender equality in courtroom appearances.
So, for today's #TwitterTuesday, here are a few women who are adding gender diversity at the appellate level:
Kendyl Hanks (@HanksKendyl) is an appellate practitioner in Texas. She is an active #appellatetwitter participant, and, according to her profile, is a "[d]evotee of dogs, grammar, & flyfishing." She tweets on several issues, including diversity in the legal profession.
Kristine Ellison (@KEllsAppellate) litigates at the trial and appellate level in D.C. She frequently tweets on court of appeals decisions of interest to the defense and business bar.
Jaime Santos (@Jaime_ASantos) is also an appellate attorney in the D.C. area. She tweets on issues of diversity and on big appellate matters. According to her profile she is also the mom of three girls under the age of 4, in addition to being an appellate attorney, and she is "not sure which role has had a greater impact on my oral advocacy/persuasive argument skills."
Friday, August 25, 2017
After a brief summer hiatus, the Appellate Advocacy Blog Weekly Roundup returns and 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 atDReal@Creighton.edu or a message on Twitter (@Daniel_L_Real).
This past week included an important date in the history of appellate practice. August 24, 1965, was the date that Thurgood Marshall was sworn in as the first African-American to hold the office of Solicitor General. Hat-tip to the Lyndon B. Johnson Presidential Library on Twitter (@LBJLibrary).
Practice Tips and Legal Writing:
We have featured #PracticeTuesdays from #AppellateTwitter on our Weekly Roundup on more than one prior occasion. Well, over the summer the folks who run that discussion on Twitter every week decided to think a little bigger and started up the #PracticeTuesday Blog, because sometimes "140 characters just aren't enough.". Check it out for all kinds of great discussions and pointers to improve your practice. This week, the discussion on the blog focused on "paying your dues." Sean Marotta noted that he is "a supporter of dues. And here is why: No matter how much raw talent you may have as a new lawyer, what you don't have is wisdom." And "[d]ues are how lawyers provide value despite having only a very formal knowledge of the law."
Over at Suffolk University Law School's Legal Practice Skills Program blog, Legal Writing Matters, there was a post this week featuring some best practices for legal-writing classes, according to Wayne Schiess-- but those best practices can easily be applied to your writing in practice, too.
Lawyerist.com featured an article this week by Jason Steed with tips for writing briefs for tablets. More and more judges are reading briefs on tablets, and it's important to spend some time thinking about how to make your brief more readable on that electronic platform.
Justice Gorsuch at the Trump Hotel:
Justice Gorsuch is scheduled to appear next month at the Trump International Hotel to address a conservative group, The Fund for American Studies, in a luncheon. That scheduled appearance has generated some debate.
In a Washington Post article, Elizabeth Wydra of the Constitutional Accountability Center has argued that Gorsuch's appearance betrays statements during his confirmation hearing that he takes serious impartiality and the independence and integrity of the judiciary because the appearance could be taken to suggest that Gorsuch is appearing "to help a conservative organization put money into the pockets of the president who nominated him" and might suggest that Gorsuch has "prejudged these critical issues" regarding the several pending lawsuits asserting that President Trump is in violation of the Emoluments Clause.
In another Washington Post article, however, Jonathan Adler responded and has argued that Gorsuch's speech does not raise any serious ethical issues. Adler noted that the sponsor of the event is not a party to any litigation likely to reach the court, and the actual event itself was not likely to be implicated in any litigation. The mere location of the event, according to Adler, should not raise ethical concerns.
In a New York Times article, Adam Liptak wrote that the scheduled appearance received mixed opinions from experts in legal ethics, with some concluding that the appearance was problematic and others concluding that it was not.
Civics education is vitally important. If you are a teacher or have the opportunity to get involved in civics education of today's youth and tomorrow's members of adult society, you might want to take a look at some of the resources available on the official website of the United States Courts, USCourts.gov, which has all kinds of great materials to help spread the word about the U.S. Courts and how they impact our daily lives.
Thursday, August 24, 2017
One hundred seventy-four service members have consolidated their appeals into 167 cases. They hope to have the U.S. Supreme Court review their cases, not for substantive error, but for an unusual procedural error. The legitimacy of some of the judges who heard these cases is being challenged. And even more unusual is that the challenge comes under a Civil War era law that has never been interpreted by the Court.
Some military JAG officer serve in the capacity as a judge on courts-martial. Four were also appointed to the Court of Military Commission Review (CMCR) - a commission that reviews Guantanamo Bay proceedings on their way to the D.C. Circuit. This is considered a civilian office. Where this runs afoul is that the 1870 statute prohibits military judges from concurrently holding a nonmilitary office unless the judge has specific permission to do so.
The 1870 statute, which the Supreme Court has never interpreted, prohibits active-duty military officers from concurrently holding a civil office, unless Congress expressly authorizes the dual office-holding. Congress enacted the law to ensure civilian control of the government. The remedy for dual office-holding was to sever immediately the military officer's service connection.
Military judges are executive branch inferior officers for purposes of the appointments clause. But because the CMCR—unlike military courts of criminal appeals—is not subject to supervision within the executive branch, its judges are principal officers who require appointment by the president, with the advice and consent of the Senate. And CMCR judges hold a "civil office" by virtue of its creation as an Article I federal court, the challengers allege.
A 1979 Justice Department Office of Legal Counsel memo on the dual office-holding statute concluded: “Where Congress wishes to permit a military officer to occupy a civilian position … without forfeiting his commission, it has done so explicitly.”
Most convicted service-members never have the opportunity for the U.S. Supreme Court to review their cases. The military justice system is maintained separate and apart from the civilian system, complete with its own court of last resort - the U.S. Court of Appeals for the Armed Forces. Each service has its own intermediate court of appeals for review of the trial level court-martial.
If the U.S. Supreme Court were to grant review on these cases, it would represent a unique circumstance even beyond the substantive necessity of reviewing a previously unremarkable, nearly 150 year old statute. The Court has not reviewed a court-martial in over twenty years.
With the concept of civilian control over the military becoming more prominent in political philosophy discussions, this issue may have a good chance of being granted review by the Court.
Monday, August 21, 2017
The issue of splitting the United States Court of Appeals for the Ninth Circuit into two or more judicial circuits is not a new one. However, as Law360 recently pointed out, "proponents of a split may be gaining more traction this congressional term, with both houses of Congress controlled by the GOP, which has long been more open to dividing the court." In fact, Arizona Senators John McCain and Jeff Flake have introduced the Judicial Administration and Improvement Act of 2017, which would split the 9th Circuit by creating a new 12th Circuit, consisting of Alaska, Arizona, Idaho, Montana, Nevada, and Washington. President Trump, who has publicly criticized the circuit, would almost certainly sign a split bill if it passed Congress.
Should the circuit be split? That is a tough question. Complaint's about the circuit's reversal rate, en banc process, workload, and operating speed have been around for many years. The Law360 article carefully looks at each of these concerns, outlining the arguments on each side. I was especially impressed by the graphics in the article showing workload per judge and reversal rate.
As the article points out, judges on the court are mixed when it comes to splitting the circuit. Over the years, several judges have chimed in on the controversy, either through written or oral testimony before Congress or in the news media. A House subcommittee hearing in March 2017 on the topic featured testimony from 5 current Ninth Circuit judges.
I recently heard the a Senate Subcommittee will be holding a field hearing in Phoenix, Arizona, on splitting the circuit. Here is the information I received: "The Senate Committee on the Judiciary, Subcommittee on Privacy, Technology and the Law has scheduled a field hearing entitled: 'Rebooting the Ninth Circuit: Why Technology Cannot Solve Its Problems' for August 24, 2017 at 10:00 a.m. PDT, at the Sandra Day O’Connor United States Courthouse, Ceremonial Courtroom, 401 West Washington Street, Phoenix, Arizona 85003."
Interested parties should contact the subcommittee to confirm the hearing date, time, and location.
UPDATE: There is now an announcement about the hearing on the Senate Judiciary Committee website. It lists the starting time as 1:00 pm, but I suspect that is the time it starts on the east coast. I suggest you call ahead if you are interested in attending.
Tuesday, August 15, 2017
Sometimes Twitter can provide you with a great grammar or appellate advocacy tip. Sometimes it can make you smile. And sometimes it can do both. For #TwitterTuesday this week we are following @RuleHaiku. Rule Haiku converts the Federal Rules in to Haiku for, according to the account's profile, "no real reason." Last week Rule Haiku featured the FRAP. So, if you need a smile, or a FRAP refresher, follow @RuleHaiku.
Monday, August 14, 2017
The Supreme Court recently announced that on November 13, 2017, its electronic filing system will be up and running. Thankfully, the Court’s program will not be part of the PACER system. Rather, according to the National Journal, the Court’s main page will include a button for “Electronic Filing.” The filings will be “accessible without cost to the public and legal community.”
While this is a huge step forward for the Court, it will not, initially, eliminate the requirement that parties file paper copies. According to the Court’s press release,
Initially the official filing of documents will continue to be on paper in all cases, but parties who are represented by counsel will also be required to submit electronic versions of documents through the electronic filing system. The filings will then be posted to the Court’s docket and made available to the public through the Court’s website. Filings from parties appearing pro se will not be submitted through the electronic filing system, but will be scanned by Court personnel and made available for public access on the electronic docket.
E-filing has been around for some time, and is mandatory in most, if not all, federal courts. It is slowly taking over in the state courts too. The National Center for State Courts provides information on the state of e-filing in the states, including links to the various court rules.
While e-filing certainly has its strengths, it doesn’t mean that one can procrastinate to file a brief until minutes before it is due. Be sure to understand the requirements for e-filing in your jurisdiction, including any size limitations and the amount of time it takes to get a login.
Tuesday, August 8, 2017
When it comes to appellate writing, you can find some great tips from some of the nation's leading legal writing scholars by following the Twitter accounts of law school legal writing departments. Here are a few accounts to follow:
University of Arizona College of Law (@UALawLeglWritng)--Arizona Law is starting the year strong with several new faces in their legal writing department (in the interest of full disclosure, I am one of the new faces). The UA Law Legal Writing program tweets about legal research and writing tips, as well as things NOT to do (like try to fudge the rules).
University of Virginia Law Writing (@UVALawWriting)--Follow UVA Law Writing for information on their program and writing and oral argument tips.
For those wanting an international focus, follow Maties Legal Writing (@StelliesLaw), which is the twitter account for Stellenbosch University, Western Cape, South Africa. The law faculty at Stellenbosch provides great tips on legal writing and other topics.
Monday, August 7, 2017
Somehow I missed this news last week, but the Seventh Circuit has announced that it will rehear, en banc, the case Dassey v. Dittman. If you watched the Netflix documentary "Making a Murder," you were probably shocked by Brendan Dassey's conviction, which certainly appeared coerced.
A split panel of the Seventh Circuit had upheld the district court's decision overturning Dassey's conviction. Now the whole Seventh Circuit will have a chance to opine. Eugene Volokh's post has some statistical information about the Seventh Circuit, including the number of judges appointed by Republican and Democratic presidents and the gender make-up of the court. Based on the actions of the panel, Prof. Volokh doesn't think that the typical stereotypes apply to this case. This is certainly a case that will attract significant media attention, so it will be interesting to see how it comes out on appeal.