Appellate Advocacy Blog

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

Wednesday, September 22, 2021

A few thoughts on new SCOTUS argument rules

Oral argument in the supreme court has seen many changes over the years. In the early days of the Republic, counsel would often spend hours, sometimes days, arguing a single case. At that time, oral argument, rather than briefing, was the primary vehicle for counsel to communicate their points to the court. Over time, the emphasis switched from speaking to writing, and oral arguments got shorter--down to two hours shortly after the Civil War, to one hour in the early 20th Century, then to the current limit of 30 minutes in the late 1960's. How justices have used that time has also changed. Until the mid-1980's, it was common for justices to ask just a few questions--if any--during oral argument. It was much more an advocate's chance to pitch their view of the case. But all that changed with Justice Scalia's appointment in 1986, as his extensive questioning prompted other justices to take a more active role during arguments. One famous exception was Justice Thomas, who rarely spoke during argument, believing it rude to interrupt counsel's presentation.Before the pandemic, a "hot bench" was very much the norm, with most advocates having little time to make affirmative points between answering a bevy of questions from the court.

The pandemic changed all that, with the court opting to hold telephonic arguments with two new notable rules: (1) counsel had two minutes to say her piece and then (2) each justice had a set time in which to ask questions, uninterrupted by the other justices. Chief Justice Roberts kept the clock and enforced the time limits.

Some of these changes are here to stay, at least for now. SCOTUS this week released an updated oral argument guide ahead of returning to in-person oral arguments for OT 2021, which retains the pandemic changes and cautions counsel not to stray from a questioner's direction. A few thoughts on how this affects oral argument preparation and presentation going forward.

  1. Justice Thomas. All signs currently point to Justice Thomas continuing his active questioning at argument, since he will have a set time to ask questions without interrupting or being interrupted by anyone.
  2. Affirmative points. Going in to most oral arguments, counsel have a choice to make--start with an affirmative point, or pick up the conversation where it left off and start answering questions. Counsel can still take either tack in this new(ish) format, but I think counsel will tend to skew to making affirmative points, since this will be their best or only chance to control the topic of conversation.
  3. A little smoother? The new rules were somewhat awkward to enforce during telephonic arguments, as both the justices and counsel lacked visual cues to stop or start talking. In person, the rules should be a little smoother as the participants can see and react to each other.
  4. A little nicer? At its most hectic, oral argument can devolve a bit into a duel of perspectives with the justices sometimes speaking to other justices under the guise of questioning the advocate. I think the new format changes that dynamic a bit and makes the tone--for lack of a more lawyerly word--nicer. The justices are forced to deliberately triage their questions, but can't get interrupted by others and thus are not able to get into a back-and-forth with other justices.

Overall, I like the changes and think they improve both the tone and the presentation of argument. What do you think?

September 22, 2021 in Appellate Procedure, Oral Argument, United States Supreme Court | Permalink | Comments (0)

Sunday, August 29, 2021

What To Do When Faced With Adverse In-Circuit Precedent

In my last post, I reviewed arguments employed in three different Supreme Court briefs seeking reconsideration of three separate precedents. The arguments attempted there in favor of overruling precedent as unworkable are equally applicable to adverse in-circuit precedents.

In the federal circuits, however, the process usually requires two-steps: first, an argument before the usual three-judge panel; and, second, upon the granting of a petition, argument en banc. The double argument occurs because one panel cannot overrule a prior panel’s precedential holding.[1] In the Eleventh Circuit, this practice is known as the “prior panel precedent rule.”[2] Some state courts of appeal follow the same rule.[3] Yet, other states permit one panel to overrule an earlier one on the same issue, but advise that it is an authority that should be exercised reticently.[4]

The Fifth Circuit has dubbed the practice the “rule of orderliness,” which holds that “one panel of our court may not overturn another panel’s decision, absent an intervening change in the law, such as by a statutory amendment, or the Supreme Court, or our en banc court.”[5] It also means that, “to the extent that a more recent case contradicts an older case, the newer language has no effect.”[6]

If an advocate is unable to distinguish the prior precedential holding, part of the argument before the initial panel must suggest the problematic decision is wrong and warrants rehearing en banc for purposes of reconsideration. A panel’s opinion, or even a judge’s dissent, that suggests the precedent was wrongly decided, even when those judges are obliged to follow it, provides a substantial boost to a petition for rehearing en banc.

Still, not every unfavorable in-circuit decision qualifies as controlling precedent. Even where a case is not otherwise distinguishable, it may be possible to characterize the prior decision’s problematic passage as obiter dicta. In those circumstances, the contrarian language “could have been deleted without seriously impairing the analytical foundations of the holding and being peripheral, may not have received the full and careful consideration of the court that uttered it.”[7] For example, if no party briefed and argued the point, the panel was deprived of arguments that might have caused it to avoid the issue or decide it differently. For that reason, there were no analytical foundations, and the dicta is not binding.[8]

State courts, too, hold that dicta is not binding. In California, for example, “dictum is a general argument or observation unnecessary to the decision which has no force as precedent.”[9] Instead, only the ratio decidendi, the “principle or rule which constitutes the ground of the decision,” serves as stare decisis.[10] Under that approach, a “decision is not authority for what is said in the opinion but only for the points actually involved and actually decided.”[11]

Recently, that same issue of what constituted stare decisis came up in the U.S. Supreme Court. In Ramos v. Louisiana,[12] the Court was asked to overrule cases that held the Sixth Amendment right to jury trial did not require a unanimous verdict to convict a defendant of a serious offense. Instead of overruling the earlier precedents, it abrogated them. The majority opinion by Justice Gorsuch denied that the earlier decisions constituted precedent because the result was the product of a fragmented Court. That characterization generated some controversy. Justice Kavanaugh, another member of the majority, vocally treated the prior decision as precedent, but precedent that deserved to be overruled. The dissenters insisted that adherence to stare decisis was necessary, even if they might have reached a different decision if the issue was first being presented.

The bottom line is that there are a variety of tools available to an advocate who finds an adverse precedent in the way of a favorable result. Understanding the concerns that a court has expressed and the rules it follows can provide a blueprint for building that case. And, sometimes, when you notice disagreement within the U.S. Supreme Court about what constitutes binding precedent, a door may open to some arguments a lower appellate court has not previously considered.

 

[1] See, e.g., United States v. Salazar, 987 F.3d 1248, 1254 (10th Cir. 2021).

[2] Smith v. GTE Corp., 236 F.3d 1292, 1300 n.8 (11th Cir. 2001).

[3] See, e.g., Nat'l Med. Imaging, LLC v. Lyon Fin. Servs., Inc., No. 3D20-730, 2020 WL 5228979, at *1 n.2 (Fla. 3d D.C.A. Sept. 2, 2020).

[4] See, e.g., Roberts v. Roberts, 2014 UT App 211, ¶ 44, 335 P.3d 378, 391.

[5] Jacobs v. Nat'l Drug Intelligence Ctr., 548 F.3d 375, 378 (5th Cir. 2008).

[6] Arnold v. U.S. Dep’t of Interior, 213 F.3d 193, 196 n.4 (5th Cir. 2000).

[7] Int’l Truck & Engine Corp. v. Bray, 372 F.3d 717, 721 (5th Cir. 2004) (internal quotation marks and citation omitted).

[8] Bruce v. Estelle, 536 F.2d 1051, 1059 n.5 (5th Cir. 1976), cert. denied, 429 U.S. 1053 (1977).

[9] United Steel Workers of America v. Bd. of Ed., 162 Cal.App.3d 823, 834 (1984).

[10] Bunch v. Coachella Valley Water Dist., 214 Cal.App.3d 203, 212 (1989).

[11] Childers v. Childers, 74 Cal.App.2d 56, 61  (1946) (emphasis in original).

[12] 140 S. Ct. 1390 (2020).

August 29, 2021 in Appellate Advocacy, Appellate Practice, Appellate Procedure, Federal Appeals Courts, State Appeals Courts, United States Supreme Court | Permalink | Comments (0)

Saturday, August 14, 2021

Using a Nice Example of Persuasive Writing, the Fifth Circuit Cautions Us to Check Our Spam Folders

Every few years, I ask my first-year writing students to analyze a problem on defaults, motions to cure, and the like.  When I teach upper-division students, I always include some exercise on malpractice and default judgments.  On August 9, the Fifth Circuit gave us a new spin on checking dockets and calendars, as well as our email spam folders, in Rollins v. Home Depot USA, Inc., __ F.4th __ , 2021 WL 3486465 (5th Cir. 2021).  See also Debra Cassens Weiss, 5th Circuit warns of “cautionary tale for every attorney” as it refuses to revive lawsuit, ABA Journal (Aug. 11, 2021).  The concise opinion also gives us a new example of the persuasion in writing straightforward facts, using clear topic sentences, and following fairly strict CRAC-style organization.

Judge James C. Ho started the opinion with a great “hook,” explaining:  “This is a cautionary tale for every attorney who litigates in the era of e-filing."  Judge Ho followed with a concise, easy-to-read fact summary, in just a few sentences: 

Kevin Rollins brought suit against his employer for personal injury.  The employer filed a motion for summary judgment on the eve of the parties’ agreed deadline for dispositive motions.  But Rollins’s counsel never saw the electronic notification of that motion.  That’s because, by all accounts, his computer’s email system placed that notification in a folder that he does not regularly monitor.  Nor did he check the docket  after the deadline for dispositive motions had elapsed. 

As a result, Rollins did not file an opposition to the summary judgment motion.  So the district court subsequently entered judgment against Rollins.

Rollins, __ F.4th at __, 2021 WL 3486465 at *1. 

According to the opinion, Rollins was injured while moving a bathtub for his employer, Home Depot.  Id.  Rollins then sued Home Depot in state court.  In one of the less-helpful parts of the opinion, the court uses passive voice—"The case was subsequently removed to federal court”—so we do not know which party asked for removal, but we can presume it was Home Depot. 

In the federal district court, counsel for Rollins, Aaron Allison, agreed to receive filings “through the court’s electronic-filing system via the email address he provided, as attorneys typically do in federal courts across the country.”  Id.  The parties later agreed to a scheduling order requiring that all dispositive motions be filed by May 11, 2020 and providing a 14-day period for responses to any motions.

On May 7, Home Depot filed its motion for summary judgment.  Allison explained the e-notification for the summary judgment motion filing “’was inadvertently filtered into a part of Rollins’ counsel’s firm email system listed as “other,” instead of the main email box where all prior filings in the case were received.’”  Id.   As a result, Allison did not see the electronic notification of Home Depot’s motion, and Home Depot did not mention the motion when Allison “contacted Home Depot’s counsel a few days later to discuss the possibility of a settlement.”  Id.   

Allison told the ABA Journal his firm had never had a problem with e-filing or with the email system.  He noted “opposing counsel never separately notified Allison of the filing and continued settlement talks with the apparent knowledge that Allison wasn’t aware of the pending motion.”  See Weiss, 5th Circuit warns of “cautionary tale for every attorney.”   In fact, after Allison learned of the granted summary judgment motion, “his firm checked and scanned all emails and found the motion in an ‘obscure part’ of the email system.”  Id.  The firm tried to open the email, but it had been corrupted.  Id. 

Nonetheless, “without any response from Rollins, the district court reviewed the pleadings, granted Home Depot’s motion for summary judgment, and entered final judgment on May 27.”  Rollins, __ F.4th at __, 2021 WL 3486465 at *1.  On June 3, Allison again contacted Home Depot’s counsel to discuss settlement, but Home Depot’s counsel informed him the district court had already entered a final judgment.  Id.  Allison then filed a FRCP Rule 59(e) motion to alter or amend the court’s judgment against Rollins.  The district court denied the motion, and Rollins appealed.

The Court of Appeals explained it would review “only” for an abuse of discretion, using one word to stress the deferential standard of review.  Id. at *2.  The court then set out the law in the nice, persuasive rule statements we all try to use, starting with phrases like, “But our court has explained” Rule 59(e) motions are for a “narrow purpose.”  Judge Ho stated Rule 59(e) is “not for raising arguments” which “could, and should, have been made before the judgment issued” or where there is no intervening change of law.   Id.   

On the merits, the court began:  “To be sure, we do not question the good faith of Rollins’s counsel. But it is not “manifest error to deny relief when failure to file was within [Rollins’s] counsel’s ‘reasonable control.’”  Id.  Although reasonable minds can disagree on the application of the rules here, the court then succinctly applied its stated rules to Rollins and found no abuse of discretion.  The court reasoned “Rollins’s counsel was plainly in the best position to ensure that his own email was working properly—certainly more so than either the district court or Home Depot.”  Interestingly, the court placed an affirmative burden of checking online dockets on counsel, even if counsel is not expecting any filings.  According to the court, “Rollins’s counsel could have checked the docket after the agreed deadline for dispositive motions had already passed.”  Id.   

In his interview with the ABA Journal, Allison called the ruling a “‘lawyer beware’ decision.”  He and his client are discussing a possible motion for reconsideration en banc, and if that is denied, a cert petition to the U.S. Supreme Court.  See Weiss, 5th Circuit warns of “cautionary tale for every attorney.”

I plan to share this opinion with my students, not only for the substantive points on e-filings, but also for the opinion’s lessons in persuasion.  And, we can all watch online dockets to see if Rollins decides to move forward. 

August 14, 2021 in Appellate Advocacy, Appellate Court Reform, Appellate Practice, Appellate Procedure, Federal Appeals Courts, Legal Profession, Legal Writing, Web/Tech | Permalink | Comments (0)

Saturday, July 24, 2021

How to Effectively Line and Copy Edit Your Brief

The writing process consists of three phases: (1) the first draft; (2) the rewriting stage; and (3) the line and copy edit. This article focuses on line and copy editing, which involves reviewing your writing for, among other things, conciseness, clarity, word choice, repetition, and persuasive value. Below are tips to ensure that you can line and copy edit effectively for briefs and other legal documents.

1.    Make your sentences concise

Long and wordy sentences are the enemies of effective and persuasive writing. Focus on getting to the point in as few words as possible. Use simple words. Be clear and straightforward. Consider this example:

The issue in this case is whether the Second Amendment protects an individual right to bear arms. We contend that it does.

This sentence is far too wordy. Instead of the above statement, simply say:

The Second Amendment protects an individual right to bear arms.

Likewise, consider this example:

The issue to be decided by the court is whether the Fourteenth Amendment to the United States Constitution, which unquestionably and unmistakably protects substantive liberty interests pursuant to the substantive due process doctrine, encompasses within its reach the fundamental and thus basic right to terminate a pregnancy. The answer is certainly yes.

Wow. What an awful, fifty-two word sentence. Instead of this nonsense, simply say:

The Fourteenth Amendment’s liberty guarantee supports a woman’s right to terminate a pregnancy.

That sentence is thirteen words, and it says the same thing.

Remember that judges can easily recognize bad writing, and the failure to communicate concisely is a classic sign of bad writing.  

2.    Focus on coherence and flow

Make sure that your paragraphs are coherent and flow effectively. In so doing, remember that paragraphs should never occupy an entire page. They should begin with a concise sentence and focus on a single point, such as an element of a cause of action. Consider, for example, a negligence lawsuit, which requires a plaintiff to show that a defendant: (1) owed a duty; (2) breached that duty; (3) directly and proximately caused injury; and (4) caused legally compensable damages.  With this in mind, consider the following statement:

The defendant was negligent in treating the plaintiff’s back injury. The defendant, as a doctor and certified surgeon specializing in back injuries, owed a duty to the plaintiff to exercise a degree of care that was consistent with doctors of similar quality and experience. But the defendant breached this duty when he failed to operate on the correct area of the plaintiff’s spine. And this breach was contrary to and inconsistent with the conduct of similarly situated professionals in the medical industry. Moreover, the defendant’s conduct was the direct and proximate cause of the plaintiff’s injury. First, but for the defendant’s conduct, the plaintiff would never have suffered any injuries whatsoever. Second, the defendant’s conduct proximately caused the plaintiff’s injuries. Most importantly, the plaintiff suffered legally compensable injuries that should result in a verdict in plaintiff’s favor.

This paragraph is utter nonsense.  It includes all four elements of negligence in a single paragraph without even attempting to explain in sufficient depth why the plaintiff’s case satisfies these elements. The better approach is to discuss each element in four separate and concise paragraphs.  

3.    Keep the reader’s attention

When does writing fail to keep the reader’s attention? When you write long sentences. When you write long paragraphs. When you use fancy or esoteric words. When you repeat yourself. When you tell, but don’t show. When your writing is simply boring. Consider the following example:

The defendant assaulted and severely injured the plaintiff in a most invidious and insidious manner. To be clear, the defendant assaulted the plaintiff in a most egregious manner because the plaintiff trusted the defendant and because the defendant represented to the plaintiff that he was a trusted friend and because the defendant told the plaintiff that he would always be a loyal and trusted friend, which is a representation upon which the plaintiff relief and did so to his detriment, as the complaint alleges. Also, the duplicitous behavior of the defendant showed that his purported loyalty was evanescent in nature and execrable in design.

This paragraph is worse than the Friday the 13th movies.  Instead of this ridiculous statement, begin with a powerful opening sentence. Use short sentences. Include specific and vivid details that tell a compelling story and that engage the reader logically and emotionally.

4.    Eliminate filler words

Sentences should include only necessary and purposeful words.  As such, eliminate words like “just,” “very,” and “really.” Consider the following example:

My settlement offer should really be considered by your client.

versus

Your client should consider my settlement offer.

The second example eliminates the filler words. It gets to the point quickly and directly.

5.    Don’t repeat words

If you repeat words, it suggests that you didn’t take the time to edit your brief and it makes your writing seem contrived. Consider the following example:

The defendant’s conduct exacerbated the plaintiff’s injuries. These injuries were severe and, due to being exacerbated by the defendant’s conduct, continue to affect the plaintiff’s health. Indeed, the defendant’s conduct, which as stated above, exacerbated the plaintiff’s injuries, is negligent as a matter of law.

Unfortunately, instead of focusing on the substance of your argument, the reader is likely to wonder why you used the word “exacerbate” three times. To avoid this problem, get a thesaurus.

6.    Don’t suggest unintended meanings or biases

Your word choice is the vehicle by which you convey meaning. Thus, be careful not to use words that may imply that you harbor prejudices or biases.  Consider the following example:

The defendant was mentally retarded and should be held incompetent to stand trial.

Yeah, that’s not good. Instead, say:

The defendant was intellectually disabled and should be held incompetent to stand trial.

Remember to always write with sensitivity and objectivity. If your writing reveals underlying prejudices or biases, you – and your argument – will lack credibility.

7.    Avoid words that convey uncertainty or equivocation

Your writing should be powerful and unequivocal because it shows that you believe in your argument. For example, don’t say this:

The court’s decision seems to be based on reasoning that is inconsistent with precedent.

Whatever. Imagine if a man proposed marriage to a woman, and the woman said in response, “I think so,” or “This seems like what I want.” They probably wouldn’t be tying the knot anytime soon – or ever. Instead, say:

The court’s decision is based on reasoning that is inconsistent with precedent.

The latter sentence is direct and declarative, and thus more persuasive.

8.    Eliminate cliches

When you include cliches in your writing, it suggests that you are unoriginal and that you didn’t spend much time revising and perfecting your work product. For example, don’t say this:

My client, a professional boxer, wasn’t going to quit the fight until, as they say, “the fat lady sings.”

That sentence is terrible. Instead, say:

My client is a professional boxer who refused to quit and fought with his heart for every round of the fight.

This statement might make the reader envision the Rocky movies. It might also demonstrate that you are thinking for yourself and not relying on stale and tired phrases to support your argument. When you do that, your sentences will be original, relatable, and memorable.

9.    Know what your words mean

Don’t use words that you misunderstand or don’t understand. Consider this example:

The law’s affects will suppress citizens’ First Amendment rights.

Don’t make such a foolish mistake. Instead, say:

The law’s effects will suppress citizens’ First Amendment rights.

And be sure not to reveal that you simply don’t understand the meaning of a word. Consider this example:

The invidious weather caused the plane crash.

versus

The inclement weather caused the plane crash.

The first sentence would make the reader question the writer’s credibility – for good reason.

10.    Lose the adverbs

Great attorneys know how to use the facts and the law to craft a compelling story that shows, not tells, a court why it should rule in their favor. To that end, they minimize, if not eliminate, adverbs. Indeed, adverbs describe what happened, but they don’t capture the moment. Consider the following examples:

The party was extremely loud.

versus

The party was deafening.

***

The defendant was extraordinarily tired.

versus

The defendant was exhausted.

The difference should be obvious: “deafening” is more powerful than “extremely loud,” and “exhausted” is more powerful than “extraordinarily tired.”

11.    Lose the adjectives

Like adverbs, adjectives describe what happened, but they don’t capture the moment. Consider the following example:

The plaintiff’s journey to seek justice for her deceased daughter in this court has been really long and arduous.

Who cares? Law school exams are long and arduous. The bar exam is long and arduous. Relationships are long and arduous. And one’s belief in what is “long and arduous” is subjective. Put simply, nothing in the above statement connects with the reader in a relatable and compelling manner. Consider this example:

The plaintiff has waited patiently for three years, seven months, and twenty-eight days to obtain justice for her deceased daughter.

The second example is more powerful because it includes specific details. In so doing, it more effectively places the reader in the plaintiff’s shoes and enables the reader to relate to the plaintiff’s struggle.

12.    Think differently about active versus passive voice

The conventional wisdom is that writers should use the active voice and avoid the passive voice. That’s not always true. You should use the passive voice, for example, when de-emphasizing unfavorable facts.

Consider a case in which your client made allegedly defamatory statements about a public official, but contended that he or she believed those statements were true. Which of the following statements would you prefer?

The defendant admittedly made potentially defamatory statements about the plaintiff, but he contends that they are true.

versus

The alleged defamatory statements, which were made by the defendant, are true.

The second example is better because it de-emphasizes the unfavorable fact, namely, that the defendant made the statements, and it maintains the focus on the argument that the statements were true.

12.    Good judgment leads to good writing

Legal writing is not a mechanical task in which you robotically apply a set of techniques to create a persuasive argument. Rather, you have to exercise good judgment – and common sense – when drafting briefs or other legal documents. This includes, but is not limited to, choosing specific words that enhance your brief’s persuasive value, varying the length of your sentences, choosing a compelling theme, deciding which facts to emphasize, and determining how to address effectively unfavorable facts and law. Thus, never approach legal writing as a mechanical or formulaic endeavor; understand that the quality of your judgment and common sense will impact substantially your brief’s quality and persuasiveness.

***

Ultimately, how you say something is equally, if not more, important than what you say. For law students, the message should be clear: the quality of your writing and communication skills largely determines whether you will be successful in the legal profession.

July 24, 2021 in Appellate Advocacy, Appellate Practice, Appellate Procedure, Current Affairs, Law School, Legal Profession, Legal Writing, Rhetoric | Permalink | Comments (0)

Saturday, June 26, 2021

Book Review: Daniel P. Selmi & Rebecca A. Delfino, Principles of Appellate Advocacy (2d Ed. 2021)

Often, students and practitioners ask for me book recommendations on appellate advocacy.  Like many, I am a fan of Bryan Garner’s works and of anything by Judge Ruggero J. Aldisert.  Recently, Professors Daniel P. Selmi and Rebecca A. Delfino, colleagues of mine when I was teaching at Loyola Law School Los Angeles, published the Second Edition of Principles of Appellate Advocacy with Wolters Kluwer (Aspen).  The book is aimed at law students, but its straightforward organization and direct examples will help students and newer practitioners alike.  I will definitely be recommending Principles of Appellate Advocacy in the future.

Delfino explained she found the first edition of the book when she needed a legal writing and appellate advocacy text that would not “overwhelm students with a disparate mixture of rules, arcane procedural requirements, and multiple writing instructions.”  She also:  “didn’t want to use a dense case book, a workbook of exercises, or seminar materials full of platitudes or hacks geared to practitioners.  Instead, I wanted something practical, concise, and accessible written by someone who knows the law student audience.”  Delfino found Selmi’s first edition easily manageable for students, with instructions “laser-focused on appellate brief-writing.”

In the second edition, Selmi and Delfino, now a co-author, have retained the comfortable length and approachability of the book.  The second edition is only 166 pages before the samples and problems.  While full of excellent concrete examples, the text flows easily and invites students to stay engaged with clear and direct writing.  Just like a good brief, the book has a very helpful Table of Contents and keeps the focus on explaining why each proposed writing technique matters. 

Delfino explained the main changes to the second edition came from student and colleague feedback.  Selmi and Delfino added more information on standards of review, appealable error, and preservation of issues for appeal.  They also included new exercises to stress the “rules for writing discussed in the text and [provide] practice revision and editing techniques.”  Finally, they added a helpful video on oral argument and a sample syllabus.

I especially liked Chapter 10, “Basic Writing and Other Mechanics.”  As the authors aptly explain, good writing “is not a matter of ‘style’” but of following key principles.  Principles of Appellate Advocacy provides ten areas of focus for the best legal writing, such as manageable sentence and paragraph length and effective topic sentences.  The book also has great examples, some in understandable diagram form, of the dreaded passive voice and nominalizations my students use sometimes. 

As the authors note in the Introduction, “Appellate brief writing is a time-intensive exercise” and a “course in appellate advocacy undoubtedly will take more of students’ time than they estimate.”  But the new edition of Principles of Appellate Advocacy will help students and newer practitioners get to winning briefs more quickly and easily.

June 26, 2021 in Appellate Advocacy, Appellate Practice, Appellate Procedure, Books, Law School, Legal Writing, Moot Court, Oral Argument | Permalink | Comments (0)

Tuesday, June 22, 2021

The Problem with the Invited Future Appeal in Justice Alito's Fulton v. Philadelphia Concurrence

    When Supreme Court Justices author concurring opinions, they offer signals to future litigants. Most commonly, the concurring Justice signals disagreement with, or limitations they would place upon, the majority’s reasoning. Some concurrences pose open questions to the bar that the Justice thinks a future litigant should answer, without providing any clear resolution themselves.[1] But a more troubling signal comes from concurrences like Justice Alito’s in last week’s Fulton v. Philadelphia.[2] Alito penned a 77-page blueprint for future litigants to argue that Employment Division v. Smith[3] should be overruled. Such “opinion-briefs” pose a future question and offer a detailed roadmap for future parties to resolve it, describing the specific arguments that the author would find persuasive when issuing a future ruling.[4] Opinion-briefs like Alito’s are more akin to persuasive advocacy than neutral resolution of a legal dispute.

    The trend of opinion briefs is troubling for three reasons. First, opinion-briefs create a rift between a legal system founded upon adversary procedure and the actual process of litigation in that system’s highest court. When Justices dictate both the direction and content of future litigation, they promote a top-down style of jurisprudence. Justices control the agenda and direction of legal change more with each passing term. For critics of judicial policymaking, such top-down jurisprudence initiated by opinion-briefs is a frightening prospect.

    Second, opinion-briefs undermine traditional notions of appellate jurisprudence, including stare decisis. Justices authoring opinion-briefs are no longer neutral arbiters of the future legal controversies they invite. Opinion-briefs disregard any sense of judicial humility; the opinion-brief’s author intimates that only she can divine the best legal arguments in support of a particular position, belittling any creative solutions of litigants. Opinion-briefs are frequently a first step in a Justice-led crusade to overrule long-standing precedent, offending notions of stare decisis inherent in appellate judging. This is a pattern that Justice Alito himself has followed in the past in campaigning to overturn Abood v. Detroit Board of Education.[5]

    Third, opinion-briefs like Alito’s contribute to the inefficiency of a Supreme Court that issues fewer and fewer opinions that have grown longer and longer. A less productive Court has less capacity to address pressing legal questions in need of resolution. The Court struggles to clearly resolve even the few legal controversies it does address when it issues fractured opinions that include lengthy concurrences inaccessible to the average American. And opinion-briefs preemptively set future dockets to the exclusion of other cases or controversies, just as Justice Alito’s opinion all but guarantees future litigation on the viability of Smith.

    No matter the merits of Justice Alito’s Fulton concurrence, it sets a bad precedent for the use of concurring opinions to dictate the precise direction of future litigation. On those grounds alone, it ought to be disfavored by Americans from all political perspectives.

 

[1] In past work, I have called this type of opinion a “soft invitation” for litigants to raise an issue in the future, with no promise of how the Justice might resolve that issue. See Michael Gentithes, Check the Invitation: The Trouble with Appeals Invited by Supreme Court Justices, 82 Mo. L. Rev. 339, 341 (2017).

[2] 593 U.S. __ (2021).

[3] 494 U.S. 872 (1990).

[4] See Gentithes, supra note 1, at 341.

[5] See Knox v. Service Employees International Union, Local 1000, 567 U.S. 298, 311 (2012); Harris v. Quinn, 573 U.S. 616, 633-38 (2014); Janus v. American Federation of State, County, and Municipal Employees, Council 31, 138 S. Ct. 2448, 2478-86 (2018); see also Michael Gentithes, Janus-Faced Judging: How the Supreme Court is Radically Weakening Stare Decisis, 62 Wm. & Mary L. Rev. 83, 101-04 (2020).

June 22, 2021 in Appellate Advocacy, Appellate Court Reform, Appellate Practice, Appellate Procedure, Federal Appeals Courts, Legal Profession, United States Supreme Court | Permalink | Comments (0)

Sunday, June 13, 2021

Five Tips for Students in Moot Court and for Appellate Advocates

Moot Court is an important class in law school because it teaches students the skills necessary to be effective appellate advocates.  Below are five rules that moot court students – and practicing appellate advocates – should follow when arguing before an appellate court.

1.    Start strong

First, begin with a powerful opening sentence that captures the court’s attention. Of course, don’t be too general or overly dramatic. Instead, ask yourself how you would describe in one sentence why you should win. The answer should be your opening sentence.

Second, use the Rule of Three. After your opening sentence, immediately and concisely provide the court with three reasons supporting the outcome you seek. Be sure that they are clearly delineated and supported by the record and relevant law.

Third, tell the court what remedy that you are seeking and the rule you would like the court to adopt. The court needs to know what you want and why giving you what you want would result in a workable rule that can be applied fairly and consistently to future cases. Put simply, the beginning of your argument is a roadmap for the court to follow that will lead to a ruling in your favor.

Consider the following examples by attorneys who are appealing a district court’s decision to dismiss via summary judgment their client’s defamation case on the ground that the alleged defamatory statements were constitutionally protected opinion:

May it please the court. The First Amendment is sacrosanct in our society. Ensuring a robust marketplace of ideas is essential to a democratic society. To that end, unpopular ideas are protected from government censure and even the most distasteful comments warrant First Amendment protection. But sometimes, people cross the line and say things that neither the First Amendment nor common decency should countenance. The founders did not intend for any speech, no matter how harmful, to receive First Amendment protection, as the United States Supreme Court has recognized in cases like Miller v. California and Brandenburg v. Ohio. This is one of those cases. The harm caused to my client by the statements made against him is actionable under federal law.

What nonsense. If I was the client and listened to this opening, I would cringe and possibly run out of the courtroom. Now consider this example:

May it please the court. The appellee’s statement implied underlying false facts, was defamatory as a matter of law, and caused severe reputational harm. First, the statement that my client was “a disgusting person and attorney who would lie to any client to make money,” implied that my client was an incompetent and unethical lawyer. Under United States Supreme Court jurisprudence, these statements are actionable and defamatory. Second, the statement is verifiably false. As demonstrated in the over fifty reviews by former clients, my client's inclusion in the Best Lawyers in America for the past ten years, and his selection as the Lawyer of the Year last year, the statement is untrue. Third, the statement has subjected my client to harm and ridicule in the community. Several clients have fired him. Many have sent him offensive emails. He has been suspended from the State Ethics Committee on which he served. For these reasons, we respectfully request that this court overturn the district court’s grant of summary judgment by applying the well-settled principle that opinions implying underlying facts can – and often are – defamatory.

 The difference should be obvious.

2.    Answer the judges’ questions.

Perhaps the most important part of an oral argument at the appellate level is the judges’ questions. Those questions provide insight into, for example, concerns the judges may have about one or more of your arguments or the rule that you would like them to adopt. They are also an opportunity – indeed the best opportunity – to make your case to the judges.

To do so, you should follow two basic rules. First, answer the questions directly. Do not try to avoid them or give answers that may sound persuasive but that aren't responsive. You are a lawyer, not a politician. If you give evasive answers, you will lose credibility with the judges. You will show that you lack effective responses to the judges' concerns. And that will undermine the strength of your argument. Thus, be sure to answer the questions directly. Those answers may require you to acknowledge weaknesses in your case, such as unfavorable facts or law. Who cares. The best attorneys concede these points and explain why they do not affect the outcome they seek.

Second, the best attorneys pivot seamlessly from the question back to their argument and thus continue the argument with excellent organization and flow. Consider the following examples:

Judge: Counselor, as bad as this statement may seem, stating that someone is a ‘disgusting person’ is pure opinion. If we accepted your argument, almost any statement could be construed as asserting an underlying fact, thus compromising core First Amendment values. So where would you draw the line or, to put it differently, what criteria would you use to distinguish between pure opinions and those that imply underlying facts?

Attorney: Well, the real issue here is about the harm. My client’s reputation has been severely and, perhaps, irreparably harmed by this statement. And the record amply supports that fact. So, the technical distinction between pure opinions and opinions implying underlying facts is really just an argument about semantics.

Judge: Let me try this one more time. What criteria would you use to distinguish pure opinions from opinions implying underlying facts?

Attorney: With all due respect your honor, that is not the question in this case. The question is whether my client was defamed. The answer is yes.

That is simply terrible. Now consider this example.

Judge: Counselor, as bad as these statements may seem, stating that someone is a ‘disgusting person’ is pure opinion. If we accepted your argument, almost any statement could be construed as asserting an underlying fact, thus compromising core First Amendment values. So where would you draw the line or, to put it differently, what criteria would you use to distinguish between pure opinions and those that imply underlying facts?

Attorney: The distinction is verifiability. Pure opinions cannot be proven to be factually false. For example, if a person says, “the New York Yankees are a bad team,” that would be a pure opinion because what one considers ‘bad’ is subjective. But if a person said, “The New York Yankees are only a good team because of the stuff their players take to enhance their performance,” that would be an opinion that implies underlying facts because it can be proven that the players do not take performance-enhancing substances. In this case, the appellee did not simply say that my client was a ‘disgusting person.’ He said that he was a ‘disgusting person and attorney who would lie to any client to make money.' We can verify, through affidavits and sworn testimony, that he never lied to a single client about any matter pertaining directly or indirectly to their representation. And that is why the rule we ask this court to adopt is neither novel nor unworkable. We simply ask that you apply well-settled precedent stating that opinions implying underlying false facts can be defamatory. Indeed, in this case, they most certainly were defamatory.

Again, the difference should be obvious.

3.    Have a conversation with the court

During an oral argument, you should be yourself and have a conversation, not a confrontation, with the court. The judges are not your enemies. They are simply trying to reach the fairest outcome that is consistent with the law and justified by the facts. Thus, you should be friendly and respectful, realizing that, as an advocate and as an officer of the court, your responsibility is to help the judges reach the best result while remaining faithful to your client’s objectives.

The best way to do this is to provide the court with a practical and workable legal rule that can be applied fairly and consistently to future cases. Remember that appellate judges are not focused exclusively or even primarily on your client. They are focused on whether the outcome they reach and the rule they adopt will provide workable and just in future cases, both as a matter of law and policy. For this reason, the best appellate lawyers advocate fiercely on their clients' behalf but also propose legal rules that the court believes will provide clarity, fairness, consistency, and predictability in future cases.

4.    Don’t screw up on the basic aspects of appellate practice

Never make the basic mistakes, namely, the ‘red flag’ errors that undermine your credibility and your case. For example:

  • Know the record
  • Know the law (and please make sure your legal authority remains valid law)
  • Know the standard of review
  • Write an outstanding – and concise – appellate brief and remember that the brief is more important than the oral argument
  • Never be disrespectful to the lower or appellate court, or the adversary
  • Follow the federal or state rules, and the local rules
  • Don’t make weak arguments
  • Cite cases and other authority
  • Know the difference between binding and persuasive authority
  • Have realistic expectations and communicate those expectations to your client
  • Don’t use notes at oral argument
  • Be honest
  • Don’t be a jerk

This list is certainly not exhaustive. But if you violate one of these rules, your chances of winning will be compromised – as will your reputation.

5.    Have a short list of ‘non-negotiable’ legal arguments

It’s difficult to predict what will happen in an oral argument. Some appellate panels ask many questions, which is known as a ‘hot’ bench. Some ask few questions. Sometimes, the judges raise issues that you don't expect or ask questions that you have difficulty answering. Regardless of what happens at an oral argument, you should always have a list in your mind of the arguments that are so essential that you must communicate them to the court, no matter what the direction or focus of the argument.

And remember, there are some things that cannot be taught or that require significant practice. Those are a lawyer's: (1) charisma; (2) personality; and (3) persuasiveness. The best appellate advocates have all three.

June 13, 2021 in Appellate Advocacy, Appellate Practice, Appellate Procedure, Federal Appeals Courts, Law School, Legal Profession, Moot Court, Oral Argument | Permalink | Comments (0)

Tuesday, May 18, 2021

Mandates Matter

Mask-wearers-in-mill-valley-california

    We hear a lot about mandates these days. Politicians claim mandates when they eke out wins. Social media warriors fight over when masks should be worn. And state and federal officers joust over social distancing and mask mandates in public spaces. But if you are an appellate practitioner, one mandate you should definitely pay attention to is the one that actually ends your appeal.

    The judgment of the court does not end an appeal. The mandate does. The mandate terminates the jurisdiction of the case in the court of appeal and returns it to the district court (or, in rare cases, the Supreme Court) for action. Thus, even if a case is simply affirmed, the mandate must first issue before the district court can enter judgment. And if there is any additional action necessary, such as with a remand, the mandate will define exactly what actions can be taken (with certain exceptions, of course).

    Federal Rule of Appellate Procedure 41 provides that a mandate can either be a formal document entire in itself, or can simply be "a certified copy of the judgment, a copy of the court's opinion, if any, and any direction about costs." FRAP 41(a). Because it is the mandate that controls, close attention should be paid to the directions it contains.

    The mandate must issue 7 days after the time to file a petition for rehearing expires, or 7 days after entry of an order denying a timely petition for panel rehearing, petition for rehearing en banc, or motion for stay of mandate, whichever is later. FRAP 41(b). It is important to note what does NOT extend the deadline for the mandate - motions for extensions of time to file petitions for rehearing, for instance, do not extend the deadline. Neither does the filing of a petition for writ of certiorari.

    In the case of either a motion to extend or the filing of a petition for writ of certiorari, a party can (and should) move the court to stay issuance of the mandate pending action. To stay issuance for filing of a petition for writ of certiorari, the party must show that the petition "would present a substantial question and that there is good cause for a stay." FRAP 41(d)(2)(A). If the request is denied by the court of appeals, it can be renewed in the Supreme Court under its Rule 23.

    If a stay is granted for a certiorari petition, it can only be for an initial maximum period of 90 days from entry of judgment, mirroring the time period for filing the petition. FRAP 41(d)(2). The stay can be extended on a showing of good cause, or upon notice that the deadline to file the petition has been extended or that the petition has actually been filed (in which case the stay is extended until the petition is disposed). FRAP 41(d)(2)(A),(B). If the Supreme Court denies the petition, the mandate immediately issues. FRAP 41(d)(2)(B)(4).

    Close attention should be paid to the interplay of the mandate and any supersedeas bond. Such bonds stay execution of any judgment and remain in effect until their terms are fulfilled. See FRCP 62(b). Some bonds may be written to end upon issuance of the mandate. Thus, even if an appeal is pending, if the mandate issues, collection could begin without the proper stay being requested.

(Image attribution: Mask-wearers in Mill Valley, Calif., 1918. (Photo by Raymond Coyne/Lucretia Little History Room, Mill Valley Public Library/Public domain.) Proving that there has always been someone with their nose sticking out.)

May 18, 2021 in Appellate Practice, Appellate Procedure, Federal Appeals Courts, United States Supreme Court | Permalink | Comments (0)

Sunday, May 16, 2021

Derek Chauvin's Conviction Should Be Overturned

On April 20, 2021, after a brief deliberation, a jury convicted former police officer Derek Chauvin for second-degree unintentional murder (i.e., felony murder), second-degree manslaughter, and third-degree murder in connection with George Floyd’s death.

Chauvin’s attorney, Eric Nelson, who has already moved for a new trial before Judge Peter Cahill, will certainly appeal Chauvin’s conviction. Although the likelihood of succeeding on appeal is relatively small, several issues in Chauvin’s case render the guilty verdict vulnerable to reversal.

1.    The jury deprived Chauvin of a fair trial

Chauvin’s defense team will likely argue that the conduct and composition of the jury deprived Chauvin of a fair trial. First, the defense will assert that the jury violated Chauvin’s Fifth Amendment rights. The Fifth Amendment provides, among other things, protection against self-incrimination. At a criminal trial, a defendant may invoke the right against self-incrimination and thus refuse to testify. Importantly, jurors may not infer guilt from a defendant’s silence; doing so is grounds for overturning a guilty verdict.

During the trial, Chauvin invoked his Fifth Amendment right and thus did not testify. Unfortunately, there is some evidence that at least one of the jurors construed that silence against Chauvin. Specifically, shortly after the verdict, Brandon Mitchell (Juror No. 52), spoke to the media and, after being asked whether Chauvin’s silence impacted the jury, stated as follows:

Yeah, definitely it [Chauvin's silence] did when we were in the deliberation room; you know, a few people wondered like they wanted to actually hear from [him]. They were curious on you know, just what his thoughts might have been throughout.  You know it probably was to his detriment that he didn’t take the stand ’cause people were curious on what his thoughts were throughout the entire incident.”[1]

At the very least, Mitchell's statement may cause Judge Cahill to question the jurors regarding the effect, if any, that Chauvin’s silence had on their deliberations.

Second, the defense will argue that the jury was impermissibly biased against Chauvin. Once again, Brandon Mitchell’s conduct provides a basis upon which to support this assertion. After the trial, a photograph emerged of Mitchell wearing a t-shirt that stated, “Get your knee off our necks,” which Mitchell allegedly wore at a Washington, D.C. rally commemorating Martin Luther King’s “I have a dream” speech.[2]

The photograph’s impact on appeal will depend primarily on whether Mitchell was truthful when answering the jury questionnaire during voir dire. Specifically, Mitchell was asked the following questions:

“Did you, or someone close to you, participate in any of the demonstrations or marches against police brutality that took place in Minneapolis after George Floyd’s death?” one question read, according to the newspaper.

 “Other than what you have already described above, have you, or anyone close to you, participated in protests about police use of force or police brutality?”[3]

Mitchell answered “no” to both questions.

At the very least, the photograph of Mitchell wearing a shirt stating, “Get your knee off our necks,” coupled with his “no” answer to the second question, supports a further inquiry by Judge Cahill into Mitchell's potential bias.

2.    Failure to sequester the jury

Chauvin’s defense team will certainly argue that the jury should have been sequestered from the beginning of the trial, not merely during deliberations. There may be some merit to this argument, given: (1) the pervasive media coverage in the months following Floyd’s death and particularly during the trial; (2) the statement by Maxine Waters, in which she stated that protesters should “get more confrontational” if a guilty verdict was not reached.[4] Indeed, Judge Cahill stated that Waters’ statement may lead to a reversal on appeal. Furthermore, Alan Dershowitz stated:

Well, first, what was done to George Floyd by officer Chauvin was inexcusable, morally, but the verdict is very questionable because of the outside influences of people like Al Sharpton and people like Maxine Waters,” … Their threats and intimidation and hanging the Sword of Damocles over the jury and basically saying, 'If you don’t convict on the murder charge and all the charges, the cities will burn, the country will be destroyed,' seeped into the jury room because the judge made a terrible mistake by not sequestering the jury. 

And a statement by alternate juror Lisa Christensen, although not necessarily relevant to the appeal, suggests that the pressure to reach a guilty verdict may have impacted the jury. When questioned about the possible social unrest that may result from the verdict, Christensen stated as follows:

There was a question on the questionnaire about it and I put I did not know. The reason, at that time, was I did not know what the outcome was going to be, so I felt like either way you are going to disappoint one group or the other. I did not want to go through rioting and destruction again and I was concerned about people coming to my house if they were not happy with the verdict.[5]

Coupled with Brandon Mitchell’s statement (and the photo), Christensen’s statement arguably supports the argument that the jury should have been sequestered.

3.    Failure to Change Venue

Chauvin’s defense will argue that Judge Cahill erred by failing to grant a change of venue. To begin with, the incessant media coverage in Minneapolis and elsewhere following Floyd’s tragic death, coupled with the widespread protests in Minneapolis, which universally condemned Chauvin’s actions (some of which turned violent), may support the argument that Judge Cahill should have granted the defense’s motion to change venue. However, the prosecution will argue that the media coverage and protests occurred throughout Minnesota and the United States, thus rendering it unlikely, if not impossible, that Chauvin would have received a fairer trial anywhere in Minnesota. The prosecution will probably succeed on this aspect of the venue issue.

That, however, does not end the inquiry. Shortly before jury selection, Minneapolis announced that it reached a settlement of twenty-seven million dollars with Floyd’s family in connection with the family’s civil suit. The timing of this settlement is certainly suspect and a legitimate question exists concerning whether the settlement affected the jurors' impartiality.  

4.    Insufficiency of evidence on one or more of the charges

The defense will likely argue that the evidence did not support a conviction for second-degree unintentional murder (felony murder) or third-degree murder. The third-degree murder conviction is problematic because Minnesota’s statute requires that an individual engage in conduct that is a threat to “others.” It is difficult to conceive of how Chauvin’s actions threatened anyone by Floyd, thus warranting a reversal of the conviction on this charge. As a practical matter, however, this will have no impact on the sentencing because the conviction for second-degree unintentional murder, which results in the most severe sentence, will likely be upheld, and because the sentences for each conviction will be imposed concurrently, not consecutively.

***

Ultimately, the vast majority of commentators and citizens viewed Chauvin’s actions as egregious and criminal. Moreover, the likelihood of overturning a conviction on appeal is small.

But in this case, the chances of success are higher. Based on Brandon Mitchell’s statements (and the photograph), the failure to sequester the jury despite the incessant and negative media coverage, and the twenty-seven million dollar settlement on the eve of jury selection, Chauvin’s defense team will have a strong argument to overturn the conviction.

And for the reasons stated, the conviction should be overturned.

Process matters – regardless of Chauvin’s egregious and deplorable conduct.

 

[1] Scott Cosenza, Did Floyd Jurors Violate Chauvin’s Fifth Amendment Rights? (April 29, 2021), available at: Did Floyd Jurors Violate Chauvin's 5th Amend Rights? - Liberty Nation

[2] See Paulina Villegas, Photo of Chauvin Juror Wearing BLM T-Shirt at March Raises Questions of Impartiality, Experts Say (May 3, 2021), available at: Brandon Mitchell, juror in Derek Chauvin’s murder trial, faces allegations of prejudice after photo surfaces - The Washington Post

[3] Jonathan Turley, Juror No. 52: Does Chauvin Have a New Challenge Over Juror Brandon Mitchell? (May 4, 2021), available at: Juror 52: Does Chauvin Have A New Challenge Over Juror Brandon Mitchell? – JONATHAN TURLEY

[4] See Chandelis Duster, Waters Calls for Protestors to ‘Get More Confrontational’ If No Guilty Verdict Is Reached in Chauvin Trial (April 19, 2021), available at: Maxine Waters calls for protesters to 'get more confrontational' if no guilty verdict is reached in Derek Chauvin trial - CNNPolitics

[5] Jordan Davidson, Stunning Chauvin Juror Confession: I Was Worried About ‘Rioting and Destruction’ and ‘People Coming to My House’ to Protest Verdict (April 23, 2001), available at: Stunning Chauvin Juror Confession: I Was Worried About ‘Rioting And Destruction’ (thefederalist.com)

May 16, 2021 in Appellate Advocacy, Appellate Justice, Appellate Practice, Appellate Procedure, Current Affairs, Law School, Legal Profession | Permalink | Comments (5)

Saturday, April 17, 2021

Lawyer Who Protested Trial Court’s Interlocutory Ruling, Instead of Filing a Writ or Waiting for Appeal, Agrees to Public Reprimand & Judge’s “Bart Simpson” Punishment

On April 9, 2021, the Board of Professional Conduct of the Ohio Supreme Court recommended the court accept an attorney’s agreement to a public reprimand.  See Order (Apr. 9, 2021) http://supremecourt.ohio.gov/pdf_viewer/pdf_viewer.aspx?pdf=901849.pdf.  As Debra Cassens Weiss explained for the ABA Journal, the attorney, Anthony Baker, also agreed the trial judge’s “well-publicized and unusual punishment” was proper.  Debra Cassens Weiss, Lawyer deserves reprimand for courtroom protest that led to 'Bart Simpson-esque' punishment, ethics board says ABA Journal (Apr. 14, 2021).    

Baker represented a criminal defendant in the Cuyahoga County, Ohio Court of Common Pleas, before Judge Nancy Fuerst.  See https://www.cleveland.com/court-justice/2020/02/judge-doles-out-bart-simpson-esque-punishment-to-lawyer-held-in-contempt-for-acting-out-at-trial-in-cleveland.html.  The state charged defendant with felonious assault and domestic violence, and Baker filed a timely notice of defendant’s intent to rely on a claim of self-defense.  Order at 1-2.  The parties tried the case to a jury, and at the close of evidence, Baker requested a self-defense jury instruction.  After hearing argument from counsel, Judge Fuerst denied the jury instruction request.  Id. at 2.

Baker then staged what the parties before the Board called a “protest,” making “repeated efforts to stop the trial from proceeding.”  Id.; Weiss, ABA Journal at 2.  Judge Fuerst ordered Baker “to sit at the defense table and be quiet,” but while the judge was instructing the jury, “Baker left the defense table and stood behind a television stand.”  Order at 2.  Baker admitted to the Board:  “’I moved away from the table so it was clear I'm not participating.’"  Id.  Judge Fuerst then dismissed the jury for a lunch break and documented Baker’s conduct for the record.  When trial resumed, the jury returned a guilty verdict for the lesser offense of aggravated assault and domestic violence, and defendant appealed.  Id.    

In a February, 2021 post-trial proceeding, the judge found Baker guilty of contempt and fined him $500.  Judge Fuerst also ordered what Cleveland.com called a “Bart Simpson-esque dose of punishment” by requiring Baker to hand-write 25 times each:

  • I will not engage in conduct that is prejudicial to the administration of justice or in any other conduct that adversely reflects on my fitness to practice law.
  • I shall not engage in conduct intended to disrupt a tribunal or engage in undignified or discourteous conduct that is degrading to a tribunal.

Baker immediately complied with Judge Fuerst's order and paid the $500 fine.  In fact, Cleveland.com published photos of Baker sitting at counsel table and writing out his Bart Simpson-style phrases as well as the first page of his phrases. 

Baker also “admitted to the inappropriate nature of his conduct and to deserving the contempt citation.”  Order at 3.  Baker told the ABA Journal he was “’discourteous,’ and that ‘the judge was right in the discipline she gave.’”  Weiss, ABA Journal at 2.  “’As I’ve maintained throughout, what I did in the courtroom was not justified,’” Baker told the ABA Journal.  But Baker also explained he “didn’t engage in any kind of outbursts, and the judge noted that [his] protest did not create a circus atmosphere.”  Id. 

Based on media reports of the sanctions, the Cleveland Metropolitan Bar Association, as Relator, initiated a proceeding against Baker with the Ohio Supreme Court.  Id.  Baker and the Bar Association agreed to an additional sanction of a public reprimand, noting Baker immediately complied with the trial court’s sanctions order and admitted to the inappropriate nature of his conduct.  An ethics hearing panel accepted the public reprimand after finding additional mitigating factors, including the “highly public nature” of the contempt proceedings against Baker, the lack of prior discipline against him, and his cooperative attitude in the ethics proceedings.  Order at 3.   

Judge Fuerst’s punishments—and the Ohio bar sanction—seem to have succeeded where Bart Simpson’s teacher’s punishment failed.  Nonetheless, the real answer here was a properly-perfected appeal, or an interlocutory device like a writ (in jurisdictions allowing writs).  As Baker’s client’s appeal proceeds, it will be interesting to see if the appeals court finds the failure to instruct on self-defense as troubling as Baker did. 

April 17, 2021 in Appellate Advocacy, Appellate Practice, Appellate Procedure, Legal Ethics, Legal Profession, State Appeals Courts | Permalink | Comments (0)

Saturday, February 13, 2021

Appellate Advocacy Blog Weekly Roundup Saturday, February 13, 2021

WeeklyRoundupGraphic

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 let stand a Tenth Circuit order ruling that Alabama must allow an inmate’s request to have his pastor with him during his execution. The order denies without explanation the motion to vacate the injunction. Justice Kagan, joined by Justices Breyer, Sotomayor, and Barrett, concurred explaining that the “Religious Land Use and Institutionalized Persons Act (RLUIPA) provides ‘expansive protection’ for prisoners’ religious liberty” and that Alabama had not met ‘its burden of showing that the exclusion of all clergy members from the execution chamber is necessary to ensure prison security.” See the order and reports from The New York Times, The Hill, and the Associated Press

  • The Supreme Court granted in part a request to enjoin the California ban on indoor public gatherings as applied to religious services, allowing California churches to open despite the pandemic. The order allows the 25% capacity limitation and allows the ban on signing and chanting during services. Justice Kagan’s dissent argues not only that religious meetings were treated exactly like other similar meetings but also that the court is not equipped to step into the shoes of the scientists and legislators who are attempting to fight a deadly pandemic.  See ruling and a few of the many reports from USA Today, CNN, The New York Times, and Politico.

  • The Supreme Court granted the Biden Administration’s request to cancel two upcoming arguments in pending cases concerning the previous administration’s immigration policies. The Biden administration told the court that the polices were under review and asked the court to table argument for now.  The two arguments concerned funding for the border wall and the “Remain in Mexico” policy.  See reports in Reuters, The Hill, and Bloomberg News.

Federal Appellate Court Opinions and News

  • The Second Circuit upheld a new New York state ballot law that changes the definition of a qualified political party, making it more difficult to meet the test. The rules make access to the NY ballot more difficult by raising the number of required signatures to be a qualified political party from 50,000 to 130,000 (or at least 2% of the vote in presidential or gubernatorial elections). The ruling recognizes that the Constitution gives states broad authority over their own elections. See the order and reports from The Courthouse New Service, NBC New York, and The Associated Press.

  • The Seventh Circuit ruled that a nativity scene may be placed outside an Indiana public building because it has secular significance.  The court overturned the lower court ruling and found that the scene complies with the Establishment Clause “because it fits within a long national tradition of using the nativity scene in broader holiday displays to celebrate the origins of Christmas—a public holiday.” See order and reports in The Indianapolis Star and The Courthouse News.  

State Appellate Court Opinions and News

  • The California Supreme Court allowed a high-ranking California judge to be removed from office for sexual misconduct. A disciplinary commission found the judge sexually harassed attorneys, staff, and court colleagues. The court, with no dissents, refused to review the commission’s decision to remove him from the Second District Court of Appeal in Los Angeles. The commission found that the justice’s “misconduct has severely tarnished the esteem of the judiciary in the eyes of the public” and that, “[g]iven his lack of candor during this proceeding, [the commission does] not have confidence that he has the fundamental qualities of honesty and integrity required of a judge.” See reports from The Los Angeles Times and The San Francisco Chronicle.

Other

  • Adam Steinman posts a summary of his article titled Rethinking Standards of Appellate Review, 96 Ind. L.J. 1 (2020). The summary explains that the article “digs into” the question “[f]or any given issue that a trial court might decide, should the appellate court review the lower court’s ruling de novo? Or should it review the ruling deferentially, say, for clear error or abuse of discretion?”

February 13, 2021 in Appellate Advocacy, Appellate Court Reform, Appellate Practice, Appellate Procedure, Federal Appeals Courts, State Appeals Courts, United States Supreme Court | Permalink | Comments (1)

Friday, December 18, 2020

Appellate Advocacy Blog Weekly Roundup Friday, December 18, 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 hear an Indiana appeal that sought to reverse the Seventh Circuit ruling that Indiana’s limitation on who can be listed as a parent on a birth certificate was unconstitutional. The Seventh Circuit found that Indiana discriminated against same-sex couples by presumptively listing the husband on the birth certificate of a heterosexual couple but refusing to list the spouse on the birth certificate for a same-sex couple. The Court’s refusal to hear the appeal leaves in place the Seventh Circuit opinion and means that, in Indiana, both spouses in a same-sex couple can be listed on the birth certificate. See reports from The Indianapolis Star, NBC News, and Slate.

  • The Supreme Court reversed a 2018 ruling from the Court of Appeals for the Armed Forces that applied a five-year statute of limitations to military rape prosecutions. The lower ruling resulted in the dismissal of rape convictions for three Air Force personnel. The Supreme Court reversed the ruling, upholding the three convictions. The Court found that the military code weighed “heavily in favor of the government’s interpretation” to prosecute rape claims going back to the 1980s. See the opinion and reports from The Hill and Military Times.

  • The Supreme Court dismissed the lawsuit challenging the attempt to exclude unauthorized immigrants from the census count, ruling that the challenge was premature. The majority ruled that the “case is riddled with contingencies and speculation that impede judicial review.” Justice Breyer’s dissent, joined by Justices Kagan and Sotomayor, points out that “[t]he plain meaning of the governing statutes, decades of historical practice[,] and uniform interpretations from all three branches of government demonstrate that aliens without lawful status cannot be excluded from the decennial census solely on account of that status. . . . I believe this court should say so.” Justice Breyer continues, “[w]here, as here, the government acknowledges it is working to achieve an allegedly illegal goal, this court should not decline to resolve the case simply because the government speculates that it might not fully succeed.” See the opinion and reports from NPR, The New York Times, CNN, and The Washington Post.

    A tribute to Justice Ruth Bader Ginsberg was announced this week. Patterson Belknap introduced a podcast reviewing her legacy, called “Notorious: The Legal Legacy of Justice Ruth Bader Ginsburg.” See the news release here and the podcast here. 

Federal Appellate Court Opinions and News

  • The First Circuit ruled that the Massachusetts wiretapping statute that prohibits secret recording does not apply to police officer, thus ruling that individuals may secretly record the police.  See reports by NYU’s First Amendment Watch and CommonWealth.   

  • The Tenth Circuit ruled memes were acceptable intrinsic evidence” of the defendant’s facilitation and solicitation of prostitution. The memes were various references to “pimps” and “pimp culture.” The court admitted the memes not as character evidence, which would be improper under the Federal Rules of Evidence, but as evidence intrinsic to the crime of prostitution because the memes declared the defendant to be in the business of trafficking prostitutes. The memes were determined to be readily viewable by others and to constitute the defendant’s social media brand. See the order and a blog post by the Evidence ProfBlogger and reports from Colorado Politics, Law360 (subscription required),

Other News

The Federalist Society hosted a virtual event called “Court-Packing, Term Limits, and More: the Debate over Reforming the Judiciary.” Find a video of the event here.

December 18, 2020 in Appellate Advocacy, Appellate Court Reform, Appellate Procedure, Federal Appeals Courts, United States Supreme Court | Permalink | Comments (0)

Sunday, December 13, 2020

Tips for Zoom Court & Moot Court: Follow In-Person Best Practices Even More Closely

Tired of online court, school, happy hour, family holidays, and more?  Me too.  However, we also know some form of virtual court is here to stay, and based on the number of great pointers judges from across the county have shared with us this month, we can all still improve. 

Moreover, in reflecting on the tips I’ve seen lately, I was struck by how many of these pointers apply to any argument, in-person or virtual, and how they track what we have long told law students in moot court.  As we evolve from a largely in-person court system, where we had some telephonic and online conferences, to our future, which could involve many more electronic appearances, we should not lose sight of those moot court pointers from law school. And for those of us teaching oral advocacy, we should remember to share best practices for preparation and professionalism which will serve our students in any argument, online or in-person.

Recently, Judge Pierre Bergeron shared helpful tips on preparing for oral argument.  You can see his blog here:  Judge Pierre Bergeron's Tips.  He advises counsel to practice, with a moot court if possible, know the record and case law, provide a roadmap of argument points at the beginning, and be especially cognizant of the need to pause periodically “in an effort to invite questions.”  Id.  These tips apply equally to in-person arguments. 

Similarly, Madison Alder’s piece for Bloomberg Law, Wear Pants, Sequester Pets: Five Tips From Judges for Zoom Court, has excellent advice from judges for online arguments and court appearances in general.  See Madison Alder, Wear Pants, Sequester Pets (Bloomberg Dec. 8, 2020).  As Alder notes, the “virtual venues have worked so well,” some “courts plan on using them long after the virus is gone.”  Id.  Therefore, all lawyers who appear in court need to be as proficient in online argument as they hopefully are for in-person proceedings.

Online court platforms vary (federal courts often do not use Zoom, for example), just like courthouses, and “’Lawyers should prepare themselves for venues they’re not familiar with,’” said Chief Judge William Johnson of the District New Mexico.  See id.  Thus, “preparing a presentation ahead of time is still crucial.”  Id.  Just as in traditional courthouses, counsel should practice standing at a podium or sitting and looking directly at a webcam.  See id.  I advise my students to distill their oral argument notes to just one piece of paper, supported by one binder of organized cases and record pages to take to the podium, and that format works well online, where paper shuffling can be magnified on Zoom. 

Somehow, despite myriad reminders to dress professionally, we still hear frequent complaints from the bench about attorney attire.  Alder recommends:  “Dressing properly means wearing professional attire from head to toe, not just head to waist.”  Id.  “’You never know when you’ll need to stand up in a pinch, which can make for an embarrassing moment if you’re wearing shorts,’ Illinois Supreme Court Chief Justice Anne Burke said.”  Id.  The key:  “’Besides the same make-sure-you’re-communicating-well lessons that apply in a courtroom—is remembering that this is a courtroom and a formal proceeding. Zoom can make people less formal,’” Southern District of Texas Chief Judge Lee Rosenthal said.  Id.

We teach law school moot court advocates not to read from notes, allowing them to “read the bench” and make eye contact with judges.  This lesson matters even more for online arguments, where the format makes true eye contact impossible.  To be as present as possible, online lawyers (and students) should “make sure they do things like keeping the dogs in the other room, closing the window if the lawnmower is going, and making sure their children aren’t there,” said Chief Judge Rosenthal.  Id.  

Finally, we all need to be more attentive to virtual context clues in online arguments.  “The virtual platform makes it more important for lawyers to pay attention to the tone of a judge’s voice, Jed Rakoff, a senior judge in the Southern District of New York, said.”  Id.  Tuning in to a judge’s tone is important for lawyers “’because that’s the main remaining clue as to whether they’re scoring or not,’” Rakoff said.  Id.  As Eastern District of California Chief Judge Kimberly Mueller explained, “It’s as important as ever to pay attention to the judge’s signals, so if you are talking too long, be ready to wind up.’”  Id.  And, using Judge Bergeron’s point on pausing to allow questions, online advocates should watch for judges’ body language showing they are about to unmute or ask a question. 

In my house, with two adults working full-time online and a high school student taking online classes while managing a Zoom social and extracurricular schedule, we are weary of an online-only world.  I know many law students and lawyers feel the same way.  But at least we can find a silver lining (in addition to the great commute) from the online court experience, as the skills we must hone for the best online arguments will make us better advocates in-person too.  

Be well!

December 13, 2020 in Appellate Advocacy, Appellate Practice, Appellate Procedure, Current Affairs, Federal Appeals Courts, Law School, Legal Profession, Moot Court, Oral Argument, State Appeals Courts, Web/Tech | Permalink | Comments (0)

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)