Appellate Advocacy Blog

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

Tuesday, October 20, 2020

Tales of Terror! (Or, Waiver at Trial and on Appeal)

Hieronymus_Bosch_-_Death_and_the_Miser_-_Google_Art_Project (cropped)

Few words strike more terror into the hearts of appellate practitioners than the word "waiver." It is the monster that lurks under the bed and hides in the closet of those who strive to have issues resolved substantively on appeal rather than simply dismissed.

Waiver can occur at two primary levels: at trial and on appeal. But whenever it rises, it can cause nightmares for you and your client.

Waiver at Trial - The Monster Under the Bed.

At trial, waiver can arise in a variety of ways. It often arises from a failure to preserve error meticulously. Did you get a ruling but fail to make an offer of proof so the court knows what was excluded? Waived! Did you think that the ruling on your motion in limine was good enough, so you didn't renew the objection at trial? Waived! Did you object to an improper or omitted instruction but fail to offer an accurate instruction in its place? Waived! The list goes on and on.

And then there is the infamous Rule 50. Federal of Civil Procedure 50 was practically written by the boogeyman. Rule 50(a) provides that, at the close of evidence, a party challenging sufficiency of the evidence must move for judgment as a matter of law (JMOL) by specifically pointing out the law and facts that entitle that party to judgment. This is presumably so that the challenged party has an opportunity to correct any defect in proof. Rule 50(b) then provides that, after judgment, the sufficiency argument must be renewed if it was not granted the first time.

The traps caused by this two-step requirement have left many appellate practitioners with little to argue. If you did not move for JMOL at both points in the trial, your sufficiency challenge is waived. If your 50(b) points do not match your 50(a) points, many circuits will also find any differing points waived.

Recently, the Fifth Circuit recognized an entirely new Rule 50 monster. In Edwards v. 4JLJ, L.L.C., --- F.3d ---, No. No. 19-40553, 2020 WL 5628689 (5th Cir. Sept. 21, 2020), the appellant filed a JMOL and Motion for New Trial (MNT) on March 12, 2019. The trial court entered judgment March 27th without addressing that motion. The appellant then filed another JMOL/MNT after the judgment that was identical to the first, which was denied on May 20, 2019, and then filed a notice of appeal on June 12, 2019.

Appellants thought they had filed everything on a timely basis. They had filed the JMOL appropriately and avoided the Rule 50 traps. And they thought that filing the second JMOL/MNT had extended their deadline to file the notice of appeal until 30 days after it was decided under Rule 4. They even filed their notice of appeal a bit early.

But not early enough, according to the Fifth Circuit. Instead, the court held that the JMOL/MNT had been implicitly overruled by the trial court when it had entered judgment. Then, since the JMOL/MNT filed after judgment was identical to the implicitly-overruled motion, it was really a motion for reconsideration, and did not extend appellate deadlines. As such, the notice of appeal was not timely, and the court did not have jurisdiction over most of the issues in the case.

Waiver on Appeal - The Monster in the Closet.

Waiver on appeal can be even more insidious. In federal court, the issue technically becomes one of waiver (an intentional relinquishment) versus forfeiture (an unintentional omission). See Wood v. Milyard, 132 S. Ct. 1826, 1832 (2012). But whatever they call it, waiver can arise not only because the issue was not addressed at trial, but because it was not adequately addressed in the brief. Thus, some courts have found waiver where the issue was raised but only in a footnote, or in a page or less of briefing, or without citation to supporting authority. See Barry A. Miller, Sua Sponte Appellate Rulings: When Courts Deprive Litigants of an Opportunity to Be Heard, 39 San Diego L. Rev. 1253 (2002).

This is the type of waiver that can catch even the most astute legal writer. As professionals writing to a very specific audience, we listen closely when that audience speaks. And that audience repeatedly tells us that they are tired of reading our work. "Shorter is better" seems to be the recurring theme. I have even attended conferences where a justice will admonish the audience to stop citing them to authorities everyone knows, like the standard of review.

Shorter is better, but there is a shadowy place where short and concise transitions over into waiver. In the quest to cut the argument down to its finest form, we must not cut too deeply, lest the court determine there is not enough flesh left on the bones. See United States v. Dunkel, 927 F.2d 955, 956 (7th Cir. 1991) ("A skeletal 'argument', really nothing more than an assertion, does not preserve a claim. . . . Especially not when the brief presents a passel of other arguments . . . . Judges are not like pigs, hunting for truffles buried in briefs.").

Indeed, this is part of what makes briefing waiver (or forfeiture) so terrifying. What one justice finds pleasing may cause another justice to find waiver.

And then there is the timeliness of the argument. We consider it a general rule that issues not raised and decided in the trial court should not be considered on appeal, or that issues raised for the first time in a reply brief are forfeited. But the Supreme Court has been careful to preserve the discretion of courts to take up issues, and refuses to pronounce any such "general rule." See Singleton v. Wulff, 428 U.S. 106, 121 (1976).

As a result, one can never be sure when an issue that seems to be dead will suddenly lurch back to life. See Melissa M. Devine, When the Courts Save Parties from Themselves: A Practitioner's Guide to the Federal Circuit and the Court of International Trade, 21 Tul. J. Int'l & Comp. L. 329 (2013). If the court decides that the issue is important, or is required by justice, or involves "basic" issues of pure law, it can resurrect a dead argument sua sponte. Id. Even worse, if you did not address an issue because you considered it waived, you can be deemed to have "forfeited the forfeiture" or "waived the waiver." Cook v. Rockwell Int’l Corp., 618 F.3d 1127, 1139 (10th Cir. 2010).

Waiver and forfeiture really are boogeymen. They can ambush you at trial, trick you into making mistakes in your briefing, and even raise dead issues back to life. If you want to sleep well, keep the above issues in mind when preserving error or writing your next brief.

(Image credit: National Gallery of Art: Death and the Miser, c.1485/1490. Bosch, Hieronymus, Netherlandish, c.1450-1516).

e

Singleton v. Wulff, 428 U.S. 106, 121, 96 S. Ct. 2868, 2877, 49 L. Ed. 2d 826 (1976)

 

 

fore

Edwards v. 4JLJ, L.L.C., No. 19-40553, 2020 WL 5628689, at *2 (5th Cir. Sept. 21, 2020
fore

Edwards v. 4JLJ, L.L.C., No. 19-40553, 2020 WL 5628689, at *2 (5th Cir. Sept. 21, 2020)
fore

Edwards v. 4JLJ, L.L.C., No. 19-40553, 2020 WL 5628689, at *2 (5th Cir. Sept. 21, 2020)
n

Edwards v. 4JLJ, L.L.C., No. 19-40553, 2020 WL 5628689, at *2 (5th Cir. Sept. 21, 2020)

October 20, 2020 in Appellate Advocacy, Appellate Practice, Appellate Procedure, Federal Appeals Courts, Legal Writing, United States Supreme Court | Permalink | Comments (0)

Friday, October 9, 2020

Appellate Advocacy Blog Weekly Roundup Friday, October 9, 2020

6a00d8341bfae553ef01b8d274d5bd970c-pi (960×720)

Each week, the Appellate Advocacy Blog Weekly Roundup 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 a quick note to either (1) Dan Real at DReal@Creighton.edu or on Twitter @Daniel_L_Real or (2) Catharine Du Bois at DuBoisLegalWriting@gmail.com or on Twitter @CLDLegalWriting.

US Supreme Court Opinions and News

  • The 2020-21 Supreme Court term began this week on Monday, October 5. Why does the new term begin on the first Monday of October? Well, it’s a congressional mandate. For more on how the Court’s sessions were set and what happens on the first day, see The National Constitutional Center. Here’s the list of cases for the October, November, and December sittings. And for commentary on the new term, see reports from NPR, CBS, LA Times, The Hill, The ABA Journal, and CNN.

  • The Court refused to hear the appeal of the former Kentucky clerk, Kim Davis, who gained national attention after she refused to issue marriage licenses for same-sex couples citing her religious convictions. Two of the affected couples sued her for violating their constitutional rights. A lower court ruled the suit could go forward because the couples made a plausible allegation that Davis violated their established right to marry and because Davis was not entitled to qualified immunity as a city official. Although the Court rejected the petition without statement, Justice Thomas, joined by Justice Alito, published a statement reasserting their objections to the landmark case Obergefell v. Hodges, the 2015 case that found a Fourteenth Amendment right to same-sex marriage; the Justices reassert the claim that recognizing a right to marriage could have “ruinous consequences for religious liberty.” See the statement here, and reports from The Washington Post, Bloomberg, The Hill, and The New York Times.

  • The Court refused to reinstate a federal requirement that women appear in person to a medical facility to receive medication to end their pregnancies. The requirement was suspended by a lower court that issued a nationwide injunction in light of the pandemic because needless trip to a medical facility during a health crisis likely imposed an undue burden on the constitutional right to abortion. The Court returned the case to the trial court for a ruling within 40 days, opining that “a more comprehensive record would aid this court’s review.” See the order. For more on this, see The New York Times, The Hill, and Reuters.

Federal Appellate Court Opinions and News

  • The Second Circuit ruled that the Manhattan district attorney can enforce the subpoena seeking Donald Trump’s personal and corporate tax returns. The court rejected the arguments that the subpoena was too broad and that it qualified as harassment. The decision will likely be appealed to the Supreme Court. See the order and reports from The New York Times, AP News, and Bloomberg.  

  • The Ninth Circuit ruled that AT&T must face a lawsuit alleging its affiliate DirectTV violated consumer protection laws by making robocalls to a consumer's cell phone, rejecting an argument that the suit belonged in arbitration. The court ruled that the customer was not bound by AT&T’s arbitration clause, which requires its customers to submit to arbitration any claims against AT&T or its affiliates, because AT&T had not acquired DirectTV when the customer had signed the agreement. See the order and reports from Bloomberg Law (subscription required) and Digital News Daily.

  • The Ninth Circuit upheld a lower court decision allowing the 2020 census count to continue through October. The administration had attempted to end the count on September 30. See order and reports from the San Francisco Chronicle and AP News.

State Appellate Court Opinions and News

The Pennsylvania Superior Court ruled that the federal Protection of Lawful Commerce in Arms Act is unconstitutional and has allowed a suit against gun manufacturers and sellers to continue. The suit alleges a gun that accidentally killed a teenage boy discharged due to a manufacturing defect. Under the Act, the manufacturer and seller would be immunized against the suit. The decision, a first in the country, found that that Act is “constitutional overreach” and violates the Tenth Amendment, which gives power, such as the tort reform intended by the act, to individual states. The court ruled the Act an overreach because it immunizes “the gun industry from every conceivable type of joint and comparable liability known to the common law” even if a product is faulty and causes harm and “regardless of how far removed from interstate commerce the harm arises.” See the order and reports from Reuters, CNN, and The Hill.

October 9, 2020 in Appellate Advocacy, Appellate Practice, Appellate Procedure, Federal Appeals Courts, State Appeals Courts, United States Supreme Court | Permalink | Comments (0)

Saturday, September 26, 2020

A Fairy Tale Brief Teaches Clarity and Form

Once again, we find ourselves at the end of a week full of heavy news.  While we mourn the passing of Justice Ruth Bader Ginsburg and the staggering loss of so many to COVID-19, and worry about the rampant injustice made even more evident this week, we might also take a mental break for something lighter.  If you are looking for a fun piece on briefing to take your mind off the news of the day, check out this sample from the California Court of Appeal:  https://www.courts.ca.gov/documents/2DCA-eFiling-Sample-Brief.pdf

In a cheerful, light-hearted way, the Court’s sample brief helps pro se litigants, but also reminds us all to make our briefs simple and clear.  See https://www.law.com/supremecourtbrief/2019/03/06/this-8-page-cert-petition-caught-the-justices-eyes-clarence-thomass-many-doubts-meet-the-last-supreme-court-crier/ (discussing a more “real life” example of short, clear writing in a successful eight-page cert petition).  The sample also helps litigants include all opening brief sections required by the California Rules of Court.

For example, the Court’s Statement of the Case provides a truly brief summary of the key facts, with no unneeded detail or argument.  In two sentences, the sample summarizes the parties’ status and introduces the important facts: 

The Three Bears filed a complaint in August 2001 alleging Goldilocks had trespassed on their property by entering their home when they were not at home, consuming a meal and falling asleep in a bed. The complaint alleged that Baby Bear had suffered physical and mental damages as a result of being frightened upon discovering Goldilocks. (CT 1-4.) 

The brief also shows proper record cites to the Clerk’s and Reporter’s Transcripts in all sections, something too often missing from briefs. 

Goldilocks SOC

The sample brief continues with a very straightforward recitation of the facts. including the fun note Baby Bear’s treating doctor was an “expert bear cub psychologist, Dr. Dramatic.”  In five paragraphs, the Court’s sample outlines the testimony from the parties, Dr. Dramatic, and a neighbor, Gloria Gardener.  For example, “Goldilocks testified she was looking for a boarding facility to take a rest, the Bears' house was very large, there was no fence to indicate this was private property, the door of the house was open and there was a mat at the front door that said ‘WELCOME.’  (RT 25-26.)”   Since Goldilocks “thought this was a commercial boarding establishment, as large amounts of food were set out as if for guests, “ she “looked for someone to ask about spending the night[,] saw several sets of chairs and beds all in different sizes (RT 27-28.),” and fell asleep.

As this image shows, the Argument section of the sample brief has three subsections, including the separate sections required in California and many jurisdictions on the standard of review and the elements of the action: 


Goldilocks arg

While the Court’s sample is not perfect, and I would remove passive voice and add more express application of the law to the underlying facts, the brief still follows a clear CRAC format.  Finally, the brief concludes briefly, as all appellate writing should.  Instead of an overly argumentative or detailed conclusion, the sample very quickly summarizes and then asks for specific relief:  “Goldilocks respectfully asks that this Court reverse the decision of the trial court and vacate the award of damages.”

Hopefully, the fairy tale context of the Court’s sample will make you smile.  But on a deeper level, the brief helps unrepresented litigants and law students with basic brief format.  The Court’s brief also reminds experienced practitioners to always check local rules and keep our briefs as straightforward and simple as possible.

September 26, 2020 in Appellate Advocacy, Appellate Practice, Appellate Procedure, Humor, Legal Writing, State Appeals Courts | Permalink | Comments (1)

Thursday, August 6, 2020

Appellate Review of Video Evidence

This is a post by the Hon. Pierre H. Bergeron, a judge on the Ohio First District Court of Appeals.  Judge Bergeron will be joining us as a regular blogger.

We live in an era of instant replay.  Every sports fan, when witnessing a close play in a game, reflexively thinks, “I wonder what the replay will show?”  In our instant replay culture, with video coverage of almost every move we make, this begs the question of what standard of review should appellate courts use when assessing video evidence.  In days gone by, several witnesses might have testified at trial as to what they saw when the crime occurred, and appellate courts rightly deferred to the jury or trial judge in their assessment of credibility of these witnesses.  But now, in many cases, we have video evidence of the crime (or other critical events) that we can watch.  As video evidence becomes an almost indispensable element of the modern trial, what does that mean for the modern appeal?   

Some appellate courts apply a deferential standard of review to the trial court’s findings, rooted in how appellate courts historically have reviewed evidentiary matters, whereas other courts gravitate towards de novo review, as a pragmatic response to the power of video evidence.  I would submit, though, that, more often than not, many courts do not squarely acknowledge the standard of review on this point and probably (maybe reflexively) default to a Potter Stewart-esque “know it when you see it” perspective.  The debate on this point is real and legitimate but it is important to have it in the open.  Our appellate courts should be asking the question of how should we review video evidence. 

Courts applying deferential review generally do so on grounds that largely mimic accepted justifications for deferential review of a trial court’s credibility and factual determinations generally.  Because video-recorded evidence may be susceptible to varying interpretations, reviewing courts typically highlight the trial court’s unique vantage point for resolving these conflicts. Courts also justify deferential review because it preserves a trial court’s role within the judicial system as the factfinder. Finally, appellate courts remain leery about the danger of making litigants essentially retry issues on appeal, needlessly squandering judicial time and resources.  State v. S.S., 162 A.3d 1058, 1060 (N.J. 2017); Robinson v. State, 5 N.E.3d 362, 366 (Ind. 2014).

By contrast, when selecting de novo review over a more deferential approach, appellate courts begin their analysis with a cautionary tale about providing deference to a trial court’s factual determinations. Trailing closely behind this point is usually a caveat: when the appellate court sits in a similar position to review the content or significance of video evidence as the trial court below, the appellate court may independently evaluate that evidence under de novo review. Now what appellate courts deem a “similar” position is up for debate, but ordinarily courts consider whether the trial court primarily relied upon the video evidence, whether controlling facts contained within the video are in dispute, and the thoroughness of the trial court’s factual findings (some cases without factual findings pave the way for de novo review).  See State v. Binette, 33 S.W.3d 215, 217 (Tenn. 2000); People v. Madrid, 179 P.3d 1010, 1014 (Colo. 2008).

I know there are at least a couple of cases during my tenure as an appellate judge when the video evidence swayed me from affirm to reverse (or vice versa).  In these instances, the power of the video evidence was simply impossible to ignore, regardless of what standard of review governed. Even the staunchest supporters of deferential review would probably have allowed for such meddling with the trial results when the video paints a decisive picture.  Powerful policy justifications certainly animate both sides of this debate.  And, overall, there is some need for flexibility here.  The important take-away is that, whatever side of this debate you prefer, courts need to be candid about this standard of review point.  After all, the standard of review in a lot of these cases can prove dispositive. The parties need to understand what they have to work with, and the trial courts likewise need to internalize what is being asked of them (for example, if the appellate court faults the trial court for a lack of findings).  I look forward to seeing this debate unfold, and to potential new and innovative ways to approach this evidence that is becoming prevalent in the modern appeal.

August 6, 2020 in Appellate Advocacy, Appellate Practice, Appellate Procedure, Legal Profession, State Appeals Courts | Permalink | Comments (0)

Saturday, August 1, 2020

Appellate Advocacy Blog Weekly Roundup Saturday, August 1, 2020

6a00d8341bfae553ef01b8d274d5bd970c-pi (960×720)

Each week, the Appellate Advocacy Blog Weekly Roundup 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 a quick note to either (1) Dan Real at DReal@Creighton.edu or on Twitter @Daniel_L_Real or (2) Catharine Du Bois at DuBoisLegalWriting@gmail.com or on Twitter @CLDLegalWriting.

US Supreme Court Opinions and News

  • The Supreme Court refused to lift a July 2019 order that stayed a permanent injunction against the use of Pentagon funds to build the border wall. The Ninth Circuit had affirmed the injunction, finding that the administration’s “transfer of funds here was unlawful.” The Ninth Circuit reasoned that “the Constitution delegates exclusively to Congress the power of the purse” and that “[t]he executive branch lacked independent constitutional authority to authorize the transfer of funds.” In July 2019, the Supreme Court stayed that injunction pending the resolution of the administration’s appeal. This order denies a request to lift that stay, allowing construction to continue. See the order here and reports from The New York Times, CNN, The Washington Post, and Reuters.

  • The Court rejected another church challenge to Covid-19 restrictions, this one to Nevada’s 50-person limit to religious services. The challenge argued that churches faced tougher restrictions than casinos. The decision was without explanation and Justices Alito, Gorsuch, and Kavanaugh dissented. See the order here and reports from The New York Times, The Associated Press, and Reuters.

  • UCI held its 10th Annual Supreme Court Term in Review discussing the key cases from the Court’s October 2019 term. The event is available at this link.

  • Justice Breyer spoke with ABA President Judy Perry Martinez on July 29 during the organization’s annual meeting.  Find the discussion at this link.

Federal Appellate Court Opinions and News

  • The First Circuit vacated the Boston Marathon bomber’s death sentence, finding that the lower court did not adequately consider the effect of publicity on the jury that recommended the sentence. The order affirmed most of the conviction but ordered a new trial over only the sentence of death. The  order concludes: “But make no mistake: Dzhokhar will spend his remaining days locked up in prison, with the only matter remaining being whether he will die by execution.” See the order and reports from The Washington Post, Reuters, and The Wall Street Journal.  

  • The D.C. Circuit ordered a rehearing en banc on the dismissal of the case against Michael Flynn and vacated a decision that dismissed the case. The order directs the parties to “be prepared to address whether there are ‘no other adequate means to attain the relief’ desired,” which presumably relates to the principle argument that the writ of mandamus that directed the trial judge to dismiss the case was unwarranted because an alternative was available. The court will hear argument on August 11. See the order and reports from APNews, The New York Times, Reuters, and Bloomberg News.

State News

The Times-Picayune of New Orleans reports that Louisiana is among the states that have granted diploma privileges in light of concerns about sitting the Bar exam during the pandemic. Diploma privileges allow recent law school graduates to practice without taking the Bar exam. States have handled the concerns in a variety of ways, including administering the exam as usual, postponing the exam, offering the exam online, and granting diploma privileges. For a full list of the status of the 2020 bar by state, see this link

August 1, 2020 in Appellate Advocacy, Appellate Practice, Appellate Procedure, Federal Appeals Courts, Legal Profession, United States Supreme Court | Permalink | Comments (0)

Tuesday, July 28, 2020

Manageability Is For Suckers

Much of the initial commentary on the Supreme Court’s fractured opinion in June Medical Services v. Russo focuses on the future of abortion rights, delving into the analytical choices made by Justices Breyer, Roberts, and Alito. But one overlooked theme from the opinion came from Justice Gorsuch’s brief discussion of justiciability. In his dissenting opinion, Gorsuch alluded to a broad requirement for manageable standards—even in cases not previously considered political questions—that could render the Court’s footprint in constitutional litigation significantly smaller over time.

Justiciability was not the only focus in Justice Gorsuch’s dissent. He primarily critiqued the plurality for improperly equating the factual record in June Medical Services with the factual record in Whole Woman’s Health v. Hellerstedt, decided four years earlier.[1] Gorsuch argued that Whole Woman’s Health included a fully-developed factual record specific to the medical and economic realities of Texas; the plurality erred by relying on that same record to find that the admitting privileges law at issue offered no benefit to the health of women in Louisana.[2]

But Gorsuch’s critique went beyond the way the plurality applied the wrong facts to a legal test that required states to show that their laws accrued some benefit to women’s health. Instead, he critiqued that test directly as one that was so malleable as to be hardly a legal test at all, or at least not the sort of test that the Supreme Court should promulgate in good conscience.[3]

Justice Gorsuch argued that any legal test created by the Court should at least be “replicable and predictable,” making it easier for lower courts to follow the Supreme Court’s jurisprudence.[4] Gorsuch then noted that “an administrable legal test even lies at the heart of what makes a case justiciable.”[5] The plurality’s test was not sufficiently manageable; Gorsuch equated its “all-things-considered balancing of benefits and burdens” to a “hunter’s stew,” whereby judges with wide discretion would combine any factual details that “look interesting” into a decision.[6] Driving home his point, Gorsuch quoted last term’s opinion in Rucho v. Common Cause—where the Court found that extreme partisan gerrymandering is a non-jusiticable political question because allegedly there are no “judicially discoverable and manageable standards for resolving” the issue.[7] This component of the political question doctrine, which the Court typically deploys to avoid deciding issues the Justices feel are best resolved by other branches, was thus central even to constitutional questions concerning individual rights under Gorsuch’s formulation.

If the Court deploys a strict understanding of the political question doctrine’s manageability requirement to any legal test, it could undermine many of the Court’s malleable, yet effective, legal standards. Gorsuch’s manageability requirement would seem to prohibit any test that examines the totality of the circumstances or even a wide array of nuanced factors sure to vary from case to case. The manageability requirement urges the Court to generate more bright-line rules that remove discretion from the lower courts, possibly at the expense of carefully-constructed rulings that improve accuracy in individual cases.

A broad manageability requirement could quickly take hold on the Court. In his own dissent in June Medical Services, Justice Thomas argued that stare decisis did not apply to Roe v. Wade and its progeny, in part, because “poorly reasoned precedents that have proved themselves to be unworkable” are ripe for overruling.[8] Though Thomas’s workability language varies slightly from Gorsuch’s manageability requirement, the sentiment is the same; the Court should not intervene in issues where the only legal tests available are too malleable for lower courts to implement in “replicable and predictable” decisions.[9]

The Supreme Court should strive to give the clearest directives possible to lower-level actors. But a broad manageability requirement in all cases would seemingly preclude the Court from resolving many of the pressing problems on its docket, even when the questions they present are in no way political. Whether Justice Gorsuch and others press for such a manageability requirement should be at the forefront of court-watchers’ minds, both in abortion litigation and elsewhere, for years to come.

 

[1] June Medical Serv. v. Russo, 591 U.S. __ (2020) (Gorsuch, J., dissenting) (slip op. at 14-15).

[2] Id. at 14-15

[3] Id. at 16-18.

[4] Id. at 16.

[5] Id.

[6] Id. at 17.

[7] Id. at 16 (quoting Rucho v. Common Cause, 588 U.S. ___ (2019) (slip op. at 11)).

[8] Id. (Thomas, J., dissenting) (slip op. at 18).

[9] Id. (Gorsuch, J., dissenting) (slip op. at 16).

July 28, 2020 in Appellate Justice, Appellate Practice, Appellate Procedure, Federal Appeals Courts, State Appeals Courts, United States Supreme Court | Permalink | Comments (0)

Saturday, July 4, 2020

Appellate Advocacy Blog Weekly Roundup Saturday, July 4, 2020

6a00d8341bfae553ef01b8d274d5bd970c-pi (960×720)

Each week, the Appellate Advocacy Blog Weekly Roundup 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 a quick note to either (1) Dan Real at DReal@Creighton.edu or on Twitter @Daniel_L_Real or (2) Catharine Du Bois at DuBoisLegalWriting@gmail.com or on Twitter @CLDLegalWriting.

Happy Independence Day!

 

US Supreme Court Opinions and News

  • The Supreme Court issued a much-anticipated order on abortion this week, striking a Louisiana law that required doctors performing abortions to have admitting privileges at nearby hospitals. The Louisiana law was “almost word-for-word identical to Texas’ admitting privileges law,” which the Court struck in 2016 in Whole Woman’s Health v. Hellerstedt. Justice Breyer penned this order, joined by Justices Ginsburg, Sotomayor, and Kagan, and found the Louisiana law to be an unconstitutional inference with a woman’s right to obtain an abortion. Like in the 2016 decision, the ruling finds that the law’s requirements have no medical benefit. Justice Roberts, who dissented in the 2016 Texas decision, concurred in the judgement, writing that he still believed the 2016 ruling to be “wrongly decided” but that stare decisis compelled this decision. See opinion and a sampling of the many reports from The New York Times, The Wall Street Journal, The Washington Times, and NPR.

  • The Court ruled that a Montana tax break that excluded religious institutions discriminated against religious schools, finding that states must allow religious schools to participate in programs that provide scholarships.  See opinion and a report from The New York Times.

Federal Appellate Court Opinions and News

  • The Seventh Circuit, after a three-year delay, reinstated some Wisconsin limits on voting, including laws on voter ID and early voting procedures. The court overruled the lower court that found that many of Wisconsin’s election laws disproportionately affected the ability of minorities to vote. The court found no evidence that lawmakers intended to discriminate against minorities, finding “[t]his record does not support a conclusion that the legislators who voted for the contested statutes cared about race; they cared about voters’ political preferences.” And the court found that the limits did not violate the First Amendment or the Voting Rights Act because “they leave all voters with equal opportunities to participate.” See the opinion and reports from The Milwaukee Journal Sentinel, The Courthouse News, and  The Election Law Blog.
  • A panel of the D.C. Circuit ordered the immediate dismissal of the criminal case against Michael Flynn.  See reports from The New York Times, The Associated Press, and The Hill.

State News

The Pennsylvania Supreme Court ruled that the state legislature cannot unilaterally end the governor’s pandemic shutdown orders. Specifically, the ruling determined that the lawmakers resolution to end the orders was a “legal nullity” because it was not presented to the governor for signature or veto. See reports from The Associated Press and The Patriot-News of Harrisburg.

July 4, 2020 in Appellate Advocacy, Appellate Practice, Appellate Procedure, Federal Appeals Courts, State Appeals Courts, United States Supreme Court | Permalink | Comments (0)

Monday, June 8, 2020

Practice in Place: My Interview with David Lat

Two weeks ago I shared an interview that I did with Sean Marotta and Raffi Melkonian.  Today I am sharing an interview that I did recently with David Lat.  David is the founding editor of the popular blog Above the Law.  He is also now a managing director at Lateral Link. In this interview, David talks about his personal, near death experience with COVID-19.  He also shares his thoughts on the future of the legal practice post-COVID, the future of oral arguments in the appellate and Supreme Court, and which Justice he thinks would have the best Zoom background.  Thanks David for joining me for the interview!

Edited: Sorry about the video issues, I think that it is fixed.

 

 

 

 






 

 

 

June 8, 2020 in Appellate Advocacy, Appellate Court Reform, Appellate Practice, Appellate Procedure, Current Affairs, Federal Appeals Courts, Legal Profession, United States Supreme Court | Permalink | Comments (0)

Monday, May 25, 2020

An Interview with Sean Marotta and Raffi Melkonian

My colleague, Prof. Susie Salmon, recently started a podcast called Practice in Place:  Law and Justice Go Viral.  You can find the first episode here.  The premise of the podcast is as follows:

[H]ow does a profession governed by precedent respond to the unprecedented? Practice in Place investigates how the practice of law and the administration of justice have adapted under the abrupt constraints of the COVID-19 era, how that has affected how and whether we achieve justice, and how those changes and that experience might or should change the practice, the profession, and its procedures forever. Produced by University of Arizona, James E. Rogers College of Law and hosted by Professor Susie Salmon and the Legal Writing Program.

I am pretty excited about the project.  For a forthcoming episode, I interviewed Sean Marotta, a partner at Hogan Lovells, and Raffi Melkonian, a partner at Wright Close & Barger, for their thoughts on the pandemic and the future of appellate practice.  For those who would like to hear our full discussion, I have posted the video below.  Sean and Raffi had insightful tips on surviving the pandemic, keeping your kids occupied, what they saw legal practice looking like in the next few months, and keeping sane.  I also provide my  insights on the going rate for finding typos in briefs.  Enjoy!

 



 



May 25, 2020 in Appellate Court Reform, Appellate Practice, Appellate Procedure, Current Affairs, Legal Profession, Oral Argument | Permalink | Comments (0)

Wednesday, May 13, 2020

A Toast to Those in the Courts Who Were Ready for This Pandemic

 

This blog post might provide you with information you already know.  The information is new to me, which made me think sharing it might assist others as well.  As I was looking at the Louisiana Supreme Court’s website recently, a reference caught my eye.  That reference was to the publication, “Preparing for a Pandemic: An Emergency Response Benchbook and Operational Guidebook for State Court Judges and Administrators.”  The publication can be downloaded here: https://ncsc.contentdm.oclc.org/digital/collection/facilities/id/194

A team from the Conference of Chief Justices and the Conference of State Court Administrators worked on a Pandemic and Emergency Response Task Force to create this document, which was published by the National Center for State Courts in 2016!  That date caught my eye because, like so many of you, I have been stunned over the past few months (yes, months that sometimes feel like years) by what has been going on in the world: stunned by the magnitude of this pandemic.  And now, I am stunned by the fact that this group created this resource four years ago that is so relevant to what the world is experiencing in 2020.

The benchbook/guidebook urges state courts to create their own books tailored to their states in which they include both federal and state laws that will be relevant should a pandemic occur.  It raises issues to be considered in a pandemic, such as maintaining constitutional protections during a pandemic; operating courts during a pandemic; searches, seizures, and other government actions to maintain public health; and jurisdiction of public health issues.  It suggests that courts create certain model orders and court rules to use in the event of a pandemic.  It also provides a resources list that includes citations to state courts that already had such plans back then.  From back in 2016, it discusses and suggests many of the things that we are now discussing and suggesting.

I highly recommend you review this document, if you have not already seen it.  Perhaps it will be helpful to you in your law practice, in your law school, in your court, and even in your personal life as you grapple with and consider issues that do not often present themselves.  Thank you to the National Center for State Courts https://www.ncsc.org/, the Conference of Chief Justices https://ccj.ncsc.org/, and the Conference of State Court Administrators https://cosca.ncsc.org/ for thinking ahead.  I only wish we did not need your good book. 

May 13, 2020 in Appellate Advocacy, Appellate Court Reform, Appellate Justice, Appellate Practice, Appellate Procedure, Current Affairs, Legal Profession, Oral Argument, State Appeals Courts | Permalink | Comments (2)

Friday, May 8, 2020

Appellate Advocacy Blog Weekly Roundup Friday, May 8, 2020

6a00d8341bfae553ef01b8d274d5bd970c-pi (960×720)

Each week, the Appellate Advocacy Blog Weekly Roundup 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 a quick note to either (1) Dan Real at DReal@Creighton.edu or on Twitter @Daniel_L_Real or (2) Catharine Du Bois at DuBoisLegalWriting@gmail.com or on Twitter @CLDLegalWriting.

US Supreme Court Opinions and News

  • This week, the Supreme Court resumed oral argument but, for the first time, it heard argument via telephone and allowed the public real-time access. Some of the many reports include those from The Washington Post, NPR, NBC News, and The Associated Press.  Find the first telephonic oral argument here in U.S. Patent and Trademark Office v. Booking.com B.V.   Because argument was held via telephone, Justice Ginsberg, who was hospitalized this week, was able to participate in oral argument on Wednesday from her hospital bed.  See reports from CNN, BBC, and USA Today.
  • The Supreme Court overturned the fraud convictions of the public officials in New Jersey’s "Bridgegate" scandal. The Court confirmed that the public officials did in fact realign toll lanes in New Jersey to cause traffic problems to “punish the mayor of Fort Lee for refusing to support the New Jersey Governor’s reelection bid.” However, because the officials did not obtain money or property, the Court unanimously held that these actions were not criminal under federal law. See the opinion and reports from CNN, Politico, and The Atlantic

  • The Court dismissed a Second Amendment challenge to a New York City gun ordinance. Instead of ruling on the merits, the Court determined that the challenge was moot because New York has repealed the ordinance. See reports from The Wall Street Journal, The Associated Press, Reuters, and The New York Times.  

  • The Court ruled that insurances companies are entitled to collect under the Affordable Care Act. The Court held that the government was obligated to honor the promise to protect insurance companies against the risks they took in participating in the exchanges established by Act.  See the opinion and reports in The New York Times, The Washington Times, The Associated Press, and Bloomberg News.

Federal Appellate Court Opinions and News

  • The Tenth Circuit upheld the federal bump-stock ban against a challenge arguing that the executive branch had no authority to issue the ban. The court rejected this argument, accepting instead the ATF determination “that semiautomatic rifles equipped with bump stocks are ‘machineguns.’” The court found the statutory definition of “machinegun” to be ambiguous and the ATF’s interpretation to be reasonable, thus upholding the ban. See the opinion and reports from The Associate Press and Bloomberg Law

  • The Seventh Circuit sided with Chicago in a sanctuary city fight, holding that the Justice Department cannot withhold federal grants from cities that extend protections to undocumented immigrants. The ruling recognizes that “states do not forfeit all autonomy over their own police power merely by accepting federal grants” and that “the attorney general’s perception of the urgency of immigration enforcement does not corral for the executive branch the powers entrusted to the legislative branch.” See the opinion and reports from The Chicago Tribune and Reuters.

  • The Tenth Circuit upheld the lower court and struck Kansas’s voter ID law, finding its proof of citizenship requirement to be unconstitutional. Kansas argued that the law was necessary to protect against voter fraud. The court however noted the significant burden on the over 31,000 voters who had their registration applications cancelled or suspended and found that interests of the state do “not justify the burden imposed on the right to vote.” This decision binds not only Kansas but all states within the jurisdiction of the Tenth circuit, including Oklahoma, New Mexico, Colorado, Wyoming, and Utah. See opinion and reports from The New York Times,  The Courthouse News Service, and an ACLU press-release.

  • In Wisconsin, four strip clubs suing for relief related to the COVID-19 shut down have won preliminary injunction in a First Amendment case. The strip clubs claimed discrimination in violation of the First Amendment after their applications for emergency federal loans were denied due to the sexual nature of the businesses. The injunction preserves the clubs’ eligibility for small business loans. The ruling concluded that the plaintiffs would likely succeed in demonstrating that their businesses are not prurient and that the regulation violates the First Amendment. See opinion and a report in The Milwaukee Journal Sentinel.

May 8, 2020 in Appellate Advocacy, Appellate Practice, Appellate Procedure, Federal Appeals Courts, United States Supreme Court | Permalink | Comments (0)

Friday, April 24, 2020

Appellate Advocacy Blog Weekly Roundup Friday, April 24, 2020

6a00d8341bfae553ef01b8d274d5bd970c-pi (960×720)

Each week, the Appellate Advocacy Blog Weekly Roundup 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 a quick note to either (1) Dan Real at DReal@Creighton.edu or on Twitter @Daniel_L_Real or (2) Catharine Du Bois at DuBoisLegalWriting@gmail.com or on Twitter @CLDLegalWriting.

US Supreme Court Opinions and News

The Supreme Court issued (from home) a number of opinions this week, including:

  • Barton v. Barr: The Court affirmed the lower court’s decision holding that a US permanent resident of over 30 years was ineligible to have his deportation cancelled. The case concerned the interpretation of an immigration law that allows immigrants who were deemed “deportable” based on the commission of certain crimes to petition to have their deportation cancelled. The decision interpreted a statutory provision known as the “stop-time” provision, which requires that an immigrant can only be eligible for deportation cancellation if the immigrant has been a continuous resident for at least seven years without committing a serious crime (the crime that renders an immigrant “deportable” can apparently have been committed at any time). The issue came down to whether the “serious crime” in the stop-time provision has to be one of the “certain crimes” that renders an immigrant “deportable.”  The Court affirmed the lower court’s interpretation of the statute and ruled that the crime did not need to be one of the crimes that is listed as a deportable crime. See reports at The Jurist and Bloomberg Law.
  • County of Maui v. Hawaii Wildlife Fund: The Supreme Court broadly interpreted the “functionally equivalent” test in the Clean Water Act. The law requires a permit for a direct discharge of pollutants into federally regulated rivers and oceans or its functional equivalent. The issue was whether Maui County violated the Act by injecting wastewater underground without a permit. The Court concluded that a permit is required “if the addition of the pollutants through groundwater is the functional equivalent of a direct discharge from the point source into navigable waters” and retuned the case to the circuit court.  See reports at The Hill, The Jurist, USA Today, The Associated Press, and The National Law Review.

  • Ramos v. Louisiana: This decision affirms that non-unanimous jury verdicts for serious crimes is unconstitutional and that the requirement applies to states cases as well as federal, which overturns precedent from the 1970s. The decision affects only two states: Louisiana, where the case originated and whose recent law barring non-unanimous jury decisions only applies to verdicts from after 2018, and Oregon, the only state that still allows non-unanimous verdicts. The decision recognized that allowing convictions with non-unanimous juries was rooted in racism, noting that Louisiana had adopted the rule as a way to maintain the “supremacy of the white race” and that the Oregon law could be traced to efforts to dilute “the influence of racial, ethnic, and religious minorities” on juries. Many see this 6-3 decision (and its concurrences and dissents) on what may seem to be a straightforward issue as illuminating on the issue of the role of precedent in future cases. See some of the many reports at The Los Angeles Times, The Wall Street Journal, The Associated Press, Reuters, and the New York Times from Adam Liptak and Linda Greenhouse.
  • Ramos is also noteworthy (especially for legal writers) as being possibly the first Supreme Court decision to have footnoted all citations (there have been dissents that have previously footnoted citations). See Twitter discussion on both sides of that debate here and here.

Other opinions issued this week can be found here: Thryv, Inc. v. Click-To-Call Technologies, LP; Atlantic Richfield Co. v. Christian; and Romag Fasteners, Inc. v. Fossil, Inc.

Federal Appellate Court Opinions and News

  • The Sixth Circuit ruled that “the Constitution provides a fundamental right to a basic minimum education,” which it defined as an education that “plausibly provides access to literacy.” This decision allows students in Detroit’s public schools to go forward with their claims that they have been denied access to literacy. Though the Supreme Court has discussed this issue, it has never decided it. See opinion and reports at The ABA Journal, The Detroit Free Press, and The National Review,  and see a 2018 New Yorker article on the issue.

  • In Tennessee, a US District Court has blocked the state’s order prohibiting procedural abortions during COVID-19.  The opinion recognizes that “[d]elaying a woman's access to abortion even by a matter of days can result in her having to undergo a lengthier and more complex procedure that involves progressively greater health risks, or can result in her losing the right to obtain an abortion altogether.”  See report in The Tennessean, The Associate Press, and CNN.  But in Arkansas and Texas this week, state bans have been upheld or reinstated. In Arkansas, the Eight Circuit dissolved a judge’s restraining order that had allowed surgical abortions to continue after the AR department of health told clinics to stop performing procedures unless needed to protect the life or health of the mother.  See opinion and reports at The Associate Press, The Jurist, and Law360. And, in Texas, the Fifth Circuit has reinstated most of Texas’s abortion ban, ruling that medication abortions (those induced with pills) may also be restricted, but only as applied to those who would reach Texas’s 22-week gestational limit for a legal abortion while the ban was in place. This ruling comes less than a week after it had allowed them to continue.  See opinion and reports from Fort Worth Star-Telegram, Reuters, The Hill, and Bloomberg.

  • In the face of a Second Amendment challenge, the Fifth Circuit confirmed the validity of a statute that prohibits the possession of a firearm by a person who is subject to a restarting order due to a conviction for domestic violence.  See opinion.

Appellate Practice Tips

A recent Texas Appellate Law Podcast this week covered tips for using an iPad as appellate lawyer with guest Jeff Richardson, whose blog is iPhone J.D. Thanks, Jeff for the email!

April 24, 2020 in Appellate Advocacy, Appellate Practice, Appellate Procedure, Federal Appeals Courts, United States Supreme Court | Permalink | Comments (0)

Wednesday, April 22, 2020

Phantom Precedents in Ramos v. Louisiana

If stare decisis really is for suckers, the Supreme Court’s decision in Ramos v. Louisiana[1] was an unremarkable end to the anachronistic Apodaca v. Oregon[2] decision permitting states to convict criminal defendants without unanimous jury verdicts. But for those that have argued for a strong stare decisis tradition and defended the doctrine’s importance, the Ramos opinion’s sustained discussion of when to overrule a precedent is a fascinating read.

First, Ramos reiterated that a relatively weak tradition of stare decisis is in vogue on the Supreme Court. In a process that culminated in 2018’s Janus v. AFSCME opinion,[3] the Court has recently moved towards a version of stare decisis that focuses on the poor quality of a precedent’s reasoning, even permitting the Justices to overrule on that basis alone. In contrast, a strong stare decisis tradition sets “poor reasoning” as a condition precedent to stare decisis analysis, not a ground for reversal; such reversals occur only if there is a special justification, such as unworkability, strong reliance interests, new legal developments, or vastly changed facts. Writing for the Court, Justice Gorsuch quoted the weak version of stare decisis in Franchise Tax Board of California v. Hyatt—which in turn relied upon the formulation in Janus—to emphasize that the quality of a decision’s reasoning is the primary consideration within stare decisis analysis.[4] His argument against Apodaca then focused on its “gravely mistaken” reasoning, which made it an outlier in the Court’s Sixth Amendment and incorporation jurisprudence and engendered the reliance of only two states.[5] In addition to the three Justices that joined Gorsuch’s opinion in full, two concurring Justices, Cavanaugh and Thomas, would likewise make the quality of a precedent’s reasoning the primary consideration, if not the singular consideration, in the stare decisis tradition.[6] And even the three-Justice dissent made its argument in defense of Apodaca on the weak stare decisis tradition’s terms. The dissent—an unexpected alignment of Justices Alito, Roberts, and Kagan—argued that Apodaca was not nearly as poorly reasoned as the majority would have it, but was silent on whether such poor reasoning should be a reason to overrule.[7] The dissent’s silence on that point was even more thunderous given Kagan’s prior insistence that “it is not enough [to overrule because] five Justices believe a precedent wrong.”[8]

Second, Ramos introduced a new facet to the stare decisis debate. Can some precedents be so fractured and incomprehensible as to be no precedent at all, becoming a “phantom precedent?”[9] Three Justices that joined the primary opinion in full argued that Apodaca was just such a jurisprudential apparition. For that trio, Apodaca failed to supply a “governing precedent” because its controlling opinion came from a single Justice, Powell, supporting a theory of “dual-track” Sixth Amendment incorporation that a majority of the Apodaca Court itself rejected.[10] And while Sotomayor wrote separately without adopting that portion of the primary opinion, her own view was remarkably similar. She claimed Apodaca was a “universe of one” that was so “irreconcilable with . . . two strands of constitutional precedent” that its precedential value was minimal, if not evanescent.[11]  

Those opinions offered little insight into how to identify the phantom precedents within the many fractured opinions the Court issues each term. Perhaps Apodaca was uniquely unable to generate precedential value; without any guiding principles to identify why that decision was a phantom, it is hard to tell. Perhaps the view that Apodaca is a phantom precedent merely expresses discomfort with the rule in Marks v. United States that the Court’s holding in a fractured opinion is “that position taken by those Members who concurred in the judgments on the narrowest grounds.”[12] Powell’s Apodaca opinion seems to fit that bill, but perhaps the Ramos Court marks the start of a new method to measure the holding of fractured opinions. Or perhaps Ramos intimates the Supreme Court’s desire to allow some of its opinions to have little or no precedential effect, much like the now commonplace unpublished decisions that I have discussed elsewhere on this blog.

Ramos is a complex decision with many layers to unpack beyond the few I’ve mentioned here. But its take on stare decisis is utterly fascinating. In future years, it may mark an important turning point for a doctrine whose death has been reported with great exaggeration.

 

[1] 590 U.S. ___ (2020).

[2] 406 U.S. 404 (1972).

[3] 585 U.S. __ (2018).

[4] Ramos, 590 U.S. ___ (2020) (slip op., at 20).

[5] Id. (slip op., at 20-22).

[6] Id. (slip op., at 7-8, 10-11) (Kavanaugh, J., concurring) (suggesting that the first factor in stare decisis analysis is whether the precedent is “grievously wrong,” which Apodaca was); Id. (slip op., at 2-3) (Thomas, J., concurring) (claiming that “demonstrably erroneous” decisions must be overturned irrespective of any practical stare decisis considerations).

[7] Id. (slip op., at 13-15) (Alito, J., dissenting).

[8] Knick v. Township of Scott, 588 U.S. __ (2019) (slip op., at 16) (Kagan, J., dissenting) (citing Kimble v. Marvel Entertainment, LLC, 576 U.S. __ (2015) (slip. op., at 8)).

[9] Ramos, 590 U.S. ___ (2020) (slip op., at 7) (Alito, J., dissenting).

[10] Id. (slip op., at 16).

[11] Id. (slip op., at 2) (Sotomayor, J., concurring).

[12] 430 U.S. 188, 193 (1977).

April 22, 2020 in Appellate Advocacy, Appellate Court Reform, Appellate Justice, Appellate Practice, Appellate Procedure, Federal Appeals Courts, Rhetoric, United States Supreme Court | Permalink | Comments (0)

Sunday, April 12, 2020

Tips for Giving An Effective and Persuasive Online Oral Argument

Given the unprecedented and challenging times that have arisen due to the coronavirus, many courts (and law schools) are now conducting oral arguments online (e.g., via Zoom). For many lawyers and most law students, this is likely the first time in which they have been required to deliver oral arguments online.

Below are several tips (some rather obvious) to help lawyers and law students deliver effective and persuasive online oral arguments.

1.    Make sure that you are positioned correctly

When giving an oral argument – or any presentation – online, be sure to observe the following guidelines.

First, whether you are seated or standing, make sure that the camera on your computer is at eye level. Second, you should position yourself so that you are approximately at arm’s length from the camera. Third, to ensure that you are making eye contact with the judge (or professor) always look straight into the camera and avoid looking at the screen. Fourth, make sure that your volume is at the appropriate level so that you can be heard clearly.

2.    Choose a professional background

Be sure to position your desk and computer in an area that includes a professional background and that omits any distracting images. Additionally, eliminate all excess noise.

Also, make sure that the lighting is properly set. For example, if there is too much light in the background, it can cast a glare on the screen and distract the person to whom you are speaking. Finally, be sure to dress professionally.

3.    Avoid Unnecessary Physical Gestures

When presenting your argument, avoid unnecessary movements (e.g., hand gestures), particularly those that will take you out of the camera’s range. Unnecessary movements will distract your audience and detract attention from the substance of your argument.

4.    Get to the point quickly – the judge (or professor, or anyone) may get more easily distracted in an online format

In an online oral argument, there is an increased possibility that a judge (or professor, or anyone) may get distracted more easily, particularly if the environment within which a judge or professor is hearing the argument is less than ideal (e.g., in a home where other family members are present in the immediate vicinity). As such, you should prepare a short, one-page outline that contains the strongest legal and factual arguments supporting the remedy you seek and state them at the beginning of your argument. Indeed, the most persuasive oral arguments include a powerful beginning where an attorney: (1) states clearly the outcome and remedy that the attorney seeks; and (2) explains why the law and facts support that outcome. In doing so, be sure to omit extraneous or irrelevant facts and legal authority. 

5.    Follow all of the rules regarding oral argument as if you were giving the argument in person

You should approach online and in-person oral arguments in the same way. For example:

  • Have a powerful introduction and roadmap
  • State clearly the outcome you seek and begin with the most favorable law and facts that support this outcome
  • Address weaknesses in your case (e.g., unfavorable law and facts) and explain why they do not affect the outcome you seek
  • Answer the judge’s questions directly
  • Be prepared to adjust your argument strategy depending on the questions and concerns expressed by the judge (or judges)
  • Always be honest – never mislead the court or attempt to hide unfavorable law or facts
  • Don’t be a jerk – never attack your adversary and never use over-the-top words or unnecessary adjectives

6.    Be prepared for technical issues

Technical issues sometimes arise when using online platforms such as Zoom or Skype. For example, when I was interviewed via Skype for a faculty position several years ago, my screen suddenly went black and I could not see the faculty members who were interviewing me (although they could still see me). If any technical issues arise, be sure to maintain your composure and go with it. Indeed, in the interview where my screen went black, I still got the job.

7.    Remember that this is new for everyone

Don’t be intimidated or overly concerned about performing an effective online oral argument. This is a new experience for many judges and law professors. At the end of the day, just be yourself – speak conversationally and remember that the skills needed to deliver excellent in-person oral arguments are largely the same as those needed to deliver excellent online oral arguments. And appreciate that, in delivering an online oral argument, you are learning a new skill that may prove valuable in the future.

April 12, 2020 in Appellate Advocacy, Appellate Practice, Appellate Procedure, Law School, Legal Profession, Moot Court, Oral Argument | Permalink | Comments (0)

Monday, March 30, 2020

Clear is Kind When It Comes to Scheduling During a Pandemic

Tomorrow is the last day of March, and if internet memes are to be believed, this month has felt a lot longer than its 31 days. It certainly has for me. At the beginning of March, I was still teaching classes in-person, still eating out, still thinking we would be finishing our semester in-person. Some Supreme Court advocates thought they would argue before the Court; litigants thought their cases would be heard. COVID-19 appeared only a distant threat.

As Spring Break at my University stretched on, we were on a rollercoaster (as many of you were, too), not knowing if we were coming back after Spring Break, then an extension on Spring Break, then online teaching until April 3rd, and then finally we received word that we would be teaching online for the rest of the semester. While it has all been challenging, I have felt my anxieties lessen as I have more of a concrete sense of what work will look like, even as COVID-19 has become a growing, terrible reality. Knowing that we will be staying home and working remotely for an extended period of time has given me an ability to focus, which was elusive in the middle of the month when everything was up in the air.

Seeing this headline today on CNN, “Spring cases in limbo without Supreme Court guidance on arguments during pandemic” gave me real empathy for the litigants and attorneys whose cases are in limbo. While the Supreme Court issued another order on March 19, 2020, lengthening deadlines for filing petitions and stating that motions for extensions would be granted as a matter of course, these “modifications to the Court’s Rules and practices do not apply to cases in which certiorari has been granted or a direct appeal or original action has been set for argument.” Some cases are still scheduled for arguments in late April, despite President Trump’s extension of the social distancing orders though the end of April. Additionally, there have been no announced plans for when the already-cancelled oral arguments from March will be held. Some are criticizing the Court’s unwillingness to adopt new technology, as many other courts are doing, in order to hear some of the important cases scheduled. Perhaps this pandemic will be what shifts some of the Court’s traditions, but there has been no indication of that so far.

I’m a fan of the Brené Brown idea that “clear is kind, unclear is unkind,” and in times of uncertainty it is especially true. We know leaders do not have all the answers, but our institutions, including the Supreme Court, need to make and publish clear guidance on how that institution will function. Over-communicate in a time of crisis. More guidance and clarity from the Court will allow litigants, attorneys, and the entire country to adjust as quickly as possible, just as we are all adjusting to staying at home.


March 30, 2020 in Appellate Practice, Appellate Procedure, United States Supreme Court | Permalink | Comments (0)

Friday, March 27, 2020

Appellate Advocacy Blog Weekly Roundup Friday, March 27, 2020

6a00d8341bfae553ef01b8d274d5bd970c-pi (960×720)

Each week, the Appellate Advocacy Blog Weekly Roundup 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 a quick note to either (1) Dan Real at DReal@Creighton.edu or on Twitter @Daniel_L_Real or (2) Catharine Du Bois at DuBoisLegalWriting@gmail.com or on Twitter @CLDLegalWriting.

US Supreme Court Opinions and News:

  • The Supreme Court ruled that states can eliminate the insanity defense for accused criminals who suffer from mental illness. The ruling upholds a Kansas law that prevents defendants from arguing that diminished mental capacity impaired their ability to understand right from wrong. The court rejected the claim that the law was unconstitutional.  See the opinion and report from the Wall Street Journal, Reuters, Hill, NPR, and APNews.

  • The Supreme Court ruled that states may not be sued for copyright infringement. Specifically, the Court held that the Copyright Remedy Clarification Act was an unconstitutional abrogation of state sovereign immunity. The ruling prohibited an underwater videographer’s suing North Carolina for using his copyrighted videos of a submerged ship used by Blackbeard. See the opinion and reports from NPR, Reuters, Bloomberg, ArsTechnica, and National Law Review.

  • The Supreme Court unanimously ruled that a lower court used the wrong legal standard in a racial discrimination lawsuit. The Court ruled that, for his discrimination case to survive, media mogul Byron Allen must show that race was the determining reason that Comcast refused to carry his channels and sent the case back to the Ninth Circuit for reconsideration. Legal experts and civil rights groups warned that the Comcast victory could make it more difficult to bring racial discrimination cases by setting a high bar. See the opinion and reports from Reuters, Bloomberg, CNBC, and The Hill.    

    The three decisions were issued remotely this week. See reports on the three decisions from The New York Times, the Washington Post, and the Wall Street Journal.

Federal Appellate Court Opinions and News:

  • The Second Circuit affirmed the ruling that the president’s practice of blocking critics from his Twitter account violates the First Amendment. The court will not rehear the case despite a request from the Justice Department. See the ruling and reports from The Washington Post, Politico, The Washington Times, The Associate Press, and CNN.

  • The First Circuit upheld a ruling that the Justice Department cannot compel cities to comply with federal immigration authorities as a condition of receiving federal grants. The cities of Providence and Central Falls had sued the Department of Justice for requiring that recipients of a federal criminal-justice grant cooperate with authorities in the enforcement of federal immigration law. The ruling states that the statutory formula outlining how the grant can be allocated “simply does not allow the DOJ to impose by brute force conditions on [such] grants to further its own unrelated law enforcement priorities.“ See the ruling and reports from Bloomberg and Providence Journal.

COVID-19 and the Courts

  • More courts are holding virtual oral arguments and some are making those arguments available online.  For example, see the Eleventh Circuit’s announcement, the Ninth Circuit’s announcement, the DC Circuit’s announcement, and the Second Circuit’s announcement.
  • New York has issued a wide-ranging order suspending statutes of limitation.  The  executive order temporarily suspended statutes of limitations, service, and other legal time periods through April 19, 2020.

  • Montana Supreme Court Chief Justice has asked state judges to release nonviolent inmates to protect against the spread of Covid-19. See report.

Advocacy tips

Tips from practitioners on telephonic oral argument:

March 27, 2020 in Appellate Advocacy, Appellate Practice, Appellate Procedure, Federal Appeals Courts, Oral Argument, United States Supreme Court | Permalink | Comments (0)

Saturday, March 21, 2020

One Successful Process for Zoom Moot Court Competitions

I hope everyone is staying safe as we navigate our new COVID-19 reality.  In response to the virus, some law schools are canceling oral arguments and moot courts, while others are considering moving arguments online. 

At Pepperdine Caruso School of Law, we just successfully held the preliminary rounds of our annual first-year moot court competition via Zoom.  We are one the first schools to take such a large tournament--with multiple levels of rounds and cash prizes--online.  As I helped move us to an online format in one crazy week, so many people inside and outside of Pepperdine gave me incredible support.  In an effort to pay that support forward, I am sharing our process here.  I hope our lessons can help other schools and moot court competitions make this transition.  Our experience was very positive.  The students are grateful we gave them a formal oral argument opportunity, and many sent thank you emails and even fun Zoom screen shots to us. 

In practice, many of us have appeared via video or phone for short hearings, and even for appellate oral arguments.  See https://www.ca9.uscourts.gov/content/view.php?pk_id=0000000995 (video and audio recordings of the Ninth Circuit argument in Sierra Club v. Trump, 929 F.3d 670 (9th Cir. 2019), where Judge Wardlaw appeared via Zoom).  Currently, courts all over the country are holding their oral arguments online.  See, e.g., https://www.courts.ca.gov/2dca.htm (California Court of Appeal website noting: “Counsel will appear remotely via video conference, by telephone conference, or by other electronic means as available and arranged by the Clerk's Office”).

We knew we wanted to give our students the traditional moot court experience in these new circumstances, and we chose to conduct arguments using Zoom.  We made one major change from the past, as we decided to let students opt out of the arguments to help students who had to leave our dorms quickly or who were otherwise struggling.  Happily, about half of our first-year students still chose to participate. 

We usually have two teams of two advocates each, or four students, argue in each room of our preliminary argument rounds.  With about 90 students arguing this year, we placed 4 students and 2 judges in each of our 23 Zoom "courtrooms." 

To run courtrooms at more or less the same time, we needed 23 Zoom host judges who could create Zoom meetings open to anyone with the links.  These judges also kept time, though we had the students run timers on their phones too.  We suggested on-screen timers shared to the whole courtroom, but the students were concerned the timers would take too much screen space, even with Zoom’s side-by-side view.

Once we identified trusted members of our community to be the Zoom host judges, we created and shared a step-by-step guide for making an open Zoom link.  We asked hosts to name their meetings "Courtroom One 4:15," and so on.  We then collected the hosts' Zoom links and added them to our Google Sheet listing all the students, courtrooms, and argument times.  We shared the sheet with the courtroom assignments and links to all of our first-year competitors.   

We had great support from our faculty, who joined some Moot Court Team members and Law Review students, as well as a few alums, to be our roughly 40 judges.  Some judges helped with multiple rounds, and many judges told us this was almost as fun as in-person arguments.

We ran three preliminary rounds, to spread out the ability for our Moot Court Board and me to “Zoom in” to meetings and help as needed.  We used ten courtrooms each during two evening rounds, and we needed to pop in to only two courtrooms to help.  The next morning, our three courtrooms ran without a hitch.  Having trusted judges as hosts really helped, and we recommend this approach.

We made our score sheet into a Google Form for the judges.  It was fun to watch the scores roll in after the rounds.  Moreover, our competition co-chairs had a spreadsheet right away with the score sheet data.  These chairs could quickly identify our top four teams for the semi-final round, unlike when they type in scores from paper forms.

We will have four teams in our semi-final round Monday night, and then the top two will go to our final round Wednesday night.  We will share the Zoom link for our final round courtroom with our whole school, and we will have sitting judges serving on our final round bench.  We made the judges a separate deliberation room Zoom meeting, to be doubly sure their voting discussion will be confidential. 

In our law school virtual classrooms today, we can still give our students a traditional first-year highlight by moving oral arguments online.  Many of our courts are doing the same thing, and after holding these successful digital arguments at Pepperdine, I can promise you will be glad you saved moot court by moving online too. 

March 21, 2020 in Appellate Advocacy, Appellate Practice, Appellate Procedure, Current Affairs, Law School, Legal Profession, Moot Court, Oral Argument, Web/Tech | Permalink | Comments (0)

Friday, March 13, 2020

Appellate Advocacy Blog Weekly Roundup Friday, March 13, 2020

6a00d8341bfae553ef01b8d274d5bd970c-pi (960×720)

Each week, the Appellate Advocacy Blog Weekly Roundup 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 a quick note to either (1) Dan Real at DReal@Creighton.edu or on Twitter @Daniel_L_Real or (2) Catharine Du Bois at DuBoisLegalWriting@gmail.com or on Twitter @CLDLegalWriting.

US Supreme Court Opinions and News:

  • The Supreme Court will hear a case from Mississippi that looks at the constitutional limits of sentencing juvenile offenders to life in prison without parole, specifically whether it is a constitutional violation to impose the sentence absent a finding that the defendant is incapable of rehabilitation. See report from the Hill and the NY Times.

  • This week, the Supreme Court granted an emergency request to lift a Ninth Circuit block on an administration immigration policy. The ruling leaves in place the policy that requires thousands of people seeking asylum to wait in Mexico while their claims are adjudicated. See Reuters report.

  • A recent study from Yale looks at the practice of the Supreme Court that gives the solicitor general oral argument time as a “friend of the court.”  The study looks at the history of the practice and its effect on the adversarial process.  See the study and a report in the NY Times.

Federal Appellate Court Opinions and News:

  • The US District Court for the District of Columbia upheld the lower court and held that the Justice Department must release the secret grand jury evidence lawmakers are seeking in the ongoing investigations into the president. See the opinion and a sampling of the reports from the Washington Post, the NY Times, Bloomberg, the Hill.

  • The Ninth Circuit ruled in favor of Led Zepplin in the appeal of a copyright suit claiming the ever-popular “Stairway to Heaven” copied a song by the band Spirit. The en banc opinion of the 11-judge panel affirmed the jury decision that the songs were not substantially similar. The court also took “the opportunity to reject the inverse ratio rule, under which [the Court has] permitted a lower standard of proof of substantial similarity where there is a high degree of access.” The Court ruled that this “formulation is at odds with the copyright statute and we overrule our cases to the contrary.” Some claim that this may be a “precedent-setting win for musical acts accused of plagiarism.” AP News. See a sampling of the many reports here: Rolling Stone, the LA Times, the NY Times, Reuters, Bloomberg, Law.com’s site “The Recorder” (subscription), the Wall Street Journal (subscription).

  • The US District Court for the District of Columbia determined that it lacked the expertise to evaluate a Guantánamo Bay prisoner to determine whether he qualifies for medical repatriation in consideration of his writ for habeas corpus. Instead, in a first for federal courts, the Court ordered a mixed medical panel of American and foreign physicians to evaluate the mental health of the prisoner, Mohammed al-Qahtani, a Saudi Arabian man held at Guantánamo for more than 18 years. See the ruling and reports from the NY Times, the Washington Post (subscription), and the ABA Journal.

COVID-19 and the Courts

COVID-19 is, of course, affecting court operations. Many courts are closing or restricting public access. The Supreme Court has closed its doors to the public as of March 12; the closure will not extend case filing deadlines under Supreme Court Rule 30.1.  For general information about other court closures and restriction, Law360 has an updating list of closures and restricts here. For specific courts, see individual court websites, many of which include statements specific to COVID-19 procedures.

March 13, 2020 in Appellate Advocacy, Appellate Justice, Appellate Practice, Appellate Procedure, Federal Appeals Courts, United States Supreme Court | Permalink | Comments (0)

Tuesday, March 3, 2020

Make the Standard of Review Work for You

Black’s Law Dictionary defines “Standard of Review” as, “The criterion by which an appellate court exercising appellate jurisdiction measures the constitutionality of a statute or the propriety of an order, finding, or judgment entered by a lower court.”[1] But the standard of review is more than that. The applicable standard of review may determine whether a case is appealed and if so, what issues are raised. And the standard of review may determine whether the trial court’s judgment is affirmed or reversed.[2] Judge Patricia Wald of the United States Court of Appeals for the D.C. Circuit has said, “Appellate courts have to decide what the ‘standard of review’ is, and that standard more often than not determines the outcome.”[3] Given the importance of the standard of review, appellate advocates should seek to convince the court to apply the standard of review that is most likely to lead to success for their client.

In any appeal, appellate counsel will spend hours deciding whether to appeal and if so, what issues to raise. Appellate counsel will devote considerable time and resources to researching the substantive law applicable to the case, reviewing the record, and drafting the brief. But how much time do we spend thinking about the standard of review and how we can make the standard of review work for our client? Is the standard of review section of the brief just copied from an earlier brief? If so, are we missing a chance to shape the standard of review and find arguments for a less deferential standard of review (or more deferential standard of review if you’re appellee’s counsel) that might help us win our client’s case? What if we could turn an issue that is, at first blush, reviewed for an abuse of discretion into one the court reviews de novo? That’s what happened in West Branch Local School District Board of Education v. West Branch Education Association.[4]

West Branch involved the non-renewal of a teacher’s contract.[5] The West Branch Local School District Board of Education and the West Branch Education Association were parties to a collective bargaining agreement that included a grievance and arbitration procedure.[6] A grievance was defined as a claim that there had been a violation, misrepresentation, or misapplication of the terms of the collective bargaining agreement.[7]

The collective bargaining agreement also contained a teacher evaluation procedure that superseded the evaluation procedure in the Ohio Revised Code.[8] In April 2013 the school board notified a teacher that it intended to non-renew her teaching contract and gave her a statement of reasons for the non-renewal.[9] The school board gave the teacher a hearing on her non-renewal and then voted to non-renew her teaching contract.[10]

The Association thought the school board had violated, misrepresented, or misapplied the collective bargaining agreement’s teacher evaluation procedures, so it filed a grievance.[11] The school board's superintendent denied the grievance and the association then submitted a request for arbitration.[12] That prompted the school board to file a lawsuit to enjoin the association from going to arbitration.[13] The trial court granted a permanent injunction in favor of the school board.[14] The association appealed the trial court’s judgment.[15]

The issue on appeal in West Branch was whether the trial court erred in granting a permanent injunction--a decision that would generally have been reviewed for an abuse of discretion.[16] The association, however, argued that the court of appeals should review the trial court’s judgment de novo.[17]  The association contended that the substantive legal issue that led to the permanent injunction involved the application of the terms of a contract—the collective bargaining agreement.[18] The association said that the terms of the collective bargaining agreement were unambiguous, so the application of the contract was a question of law, and questions of law are reviewed de novo.[19] The court of appeals agreed, reviewed the contract issue de novo, and reversed the trial court’s judgment,[20] a result that would have been unlikely had the court of appeals reviewed the trial court’s judgment for an abuse of discretion.

 

[1] Standard of Review, Black's Law Dictionary (11th ed. 2019).

[2] Timothy J. Storm, The Standard of Review Does Matter: Evidence of Judicial Self-Restraint in the Illinois Appellate Court, 34 S. Ill. U. L. J. 73, 74 (Fall, 2009).

[3] Patricia M. Wald, The Rhetoric of Results and the Results of Rhetoric: Judicial Writings, 62 U. Chi. L. Rev. 1371, 1391 (1995).

[4] 35 N.E.3d 551 (Ohio 7th Dist. Ct. App. 2015).

[5] Id. at 553.

[6] Id. at 552.

[7] Id. at 555.

[8] Id. at 555-58

[9] Id. at 552.

[10] Id.

[11] Id. at 553.

[12] Id.

[13] Id.

[14] Id.

[15] Id.

[16] Id.

[17] Id.

[18] Id.

[19] Id.

[20] Id. at 554-59.

March 3, 2020 in Appellate Advocacy, Appellate Practice, Appellate Procedure, Legal Writing, State Appeals Courts | Permalink | Comments (0)

Friday, February 28, 2020

Consider Doing Initial Oral Argument Preparation As You Finish Your Brief

 Every appellate practitioner knows oral argument rarely changes a case outcome.  See, e.g., Ruggero J. Aldisert, Winning on Appeal: Better Briefs and Oral Argument 305 (2d ed. 2003).   However, whether you are a first-year law student, certified appellate specialist, or advocate between those levels of experience, you probably still spend a great deal of time prepping for oral argument.  This time can be hard to justify to clients, but an advocate must be prepared for oral argument.  See generally Cal. Rules of Ct., R. 1.1, 1.3 (2018).

In my last post, I suggested ways to use off-brief oral argument techniques to improve your brief writing.  For this post, I propose using an early, short, oral argument prep before filing the brief as a way to streamline your oral argument preparation while also improving your brief.  Using this technique can make your oral argument preparation time more useful, shorter, and easier to justify to clients.

In my advocacy classes, I tell my students to distill their oral argument points to one piece of paper, or something very similar.  My “one piece of paper rule” forces students to take the main points from their briefs and organize their arguments in one place.  This process requires students, and counsel, to review the briefs and record, reread key cases, and be familiar enough with all aspects of the case to synthesize their points on one page.  Along with the paper, I recommend students have one binder with their case charts, all briefs, copies of any key pages from the record, and extra paper for notes during the opponent’s argument.  The binder should be tabbed and organized for very quick reference.   The process of making the binder is also very useful for both final brief editing and oral argument preparation.

On a practical level, my one piece of paper rule also keeps students from reading from their briefs or reading a longer, prepared statement to the court.  Since most courts either ban or strongly disfavor counsel reading from briefs or papers at argument, this is a good lesson to learn early.  See, e.g., 5 Am. Jur. 2d Appellate Review § 501 (2d Ed. Feb. 2020).  Additionally, an advocate who has organized his or her thoughts well enough to note them on only one piece of paper is unlikely to make the mistake of carting a box of scattered materials to counsel table.  One piece of paper is easy to follow under pressure, and can help counsel get back on track smoothly and confidently when the court’s questions move away from main points.  Advocates also have an organized binder if they do need to check something quickly.

In content, the one piece of paper should include bullet point arguments on each prong, element, or claim, noting the best points for the advocate’s side.  The paper should also have bullet points on counsel’s best responses to his or her opponent’s brief. 

I recommend students create their one sheet by first copying over their point headings from the brief Table of Contents.  Then, students should take the key points from their Introduction or Summary of Argument, and weave these ideas, all with a focus on their theory of the case and key case law, into bullets under each point heading.   I ask my first-year students to make this page before turning in their briefs.  I suggest they then use the paper as an editing checklist for the brief.  The process of distilling the whole case onto one page can reveal holes in the students’ briefing and help with final brief polishing.  Practitioners would reap the same benefit in brief writing from doing an initial oral argument preparation shortly before filing a brief.

In the law school setting, making the oral argument sheet before filing the brief is also efficient.  First-year oral arguments come shortly after the brief writing, and students can easily review the one piece of paper they prepared as a brief editing tool and be ready for oral argument. 

In practice, however, we often wait months after filing a brief for oral argument.  Nonetheless, creating an initial one sheet for argument before filing the brief can still be efficient and helpful in practice.  By creating the one page when most familiar with the record and the law, in the midst of brief polishing, counsel can ensure he or she does not miss any key points for later oral argument.  Also, while attorneys will still need a refresher on the facts and law before oral argument, following an outline created while drafting the brief will streamline the review process, leading to better preparation in a shorter time.  Finally, creating this type of one sheet for the whole appellate case before filing the brief can make final edits of the brief more useful, ensuring the brief is as perfect as possible.     

For all of these reasons, consider taking a quick break from your usual brief editing to create one piece of paper for oral argument, or anything similar that works for you, with an organized binder.  Doing so can show where you have missed something in briefing and can save time later. 

February 28, 2020 in Appellate Advocacy, Appellate Practice, Appellate Procedure, Law School, Legal Profession, Legal Writing, Moot Court, Oral Argument | Permalink | Comments (0)