OMG! Can you imagine writing an argument in the style of an email or a text?

If not, then why write emails and texts the way you do?

In this article at The Federalist, staff writer Philip Wegmann takes millennials and curmudgeons alike to task for degrading the quality of written communications.

The piece starts with this:

On the floor of the Senate, surrounded by elected officials and important dignitaries, an eccentric inventor started texting.

On May 24, 1844, with an electrical wire strung from DC to Baltimore, Samuel Morse transmitted the first telegraph, forever transforming the world. Reflecting on the divine prov­idence of this tech­no­logical leap forward, Morse tapped out a message of dashes and dots that read, “What hath God wrought?”

Now Kelly texts Becky, “OMG! Look at her butt!” and businessmen email, “see attached,” squandering our great inheritance with an incessant electroshock torture of the English language. Multigenerational murder, this linguistic abuse unites and indicts the young and the old.

I’m starting to like this guy. “Multigenerational murder” and “linguistic abuse” are pretty strong terms, but Wegmann does his best to support them with examples of corporate email abuse and texting, the latter of which he describes as “the most prominent vehicle for linguistic manure.” He urges curmudgeons to clean up their own acts before complaining about millennials (of which he is one), then asks for everyone to come together to solve the “moral crisis” of the “abysmal state of language in email and texts,” before closing with this:

Looking back, will our children read through our love letters and discover our professional triumphs? Will they sift through garbled texts and impersonal emails in desperate search of some greater meaning? Or, even worse, will they shake their heads as they discover how their bickering parents and grandparents made fools of themselves one email, tweet, and text at a time?

Every time we press send, we decide what God hath wrought, we influence whether advances in communication amount to a blessing or a curse. Emails and texts can elevate our language and humanity, or they can turn us into sentient beasts beating on keyboards and talking past one another.

Millennials and curmudgeons should work to save language. The choice is ours to make together.

Jeez, now I’m thinking that I don’t just like this guy, I love this guy!

Wegmann’s article may explain what I have been feeling intuitively to this point, as well as why I engage in some very “old school” communications. I send friends and family letters handwritten with a fountain pen. Soon after I meet someone I would like to keep in touch with as part of my professional network, I send that person a note handwritten with a fountain pen on personalized embossed stationery. I don’t know if those notes have generated any business, but I’ve heard from almost all the recipients about how delighted they were, and how unusual it was, to receive a handwritten note, and that’s enough satisfaction for me. I like to think that my habits will survive even if the decline Wegmann perceives continues apace.

I’m sure there are plenty of people who could mount a credible defense against Wegmann’s charges (as some of the commenters on the article do), and even I recognize the convenience of shorthand (at least in texting), and justifications for texting in general. My feelings are not a dislike for technology generally. (You may recall that I recently disclaimed being a Luddite.) I like technology, but I find myself more resistant to using it for communications. I know that it is somewhat ironic for a blogger to lament electronic communication, but I like to think that I don’t let my blog writing descend to the level lamented by Wegmann. I admit that I tend to slack off somewhat in blogging and emails. I use more colloquialisms than I would in other professional writing, and I use contractions. I think that’s about as far as I go, but if any readers wish to contend otherwise, feel free to use the comments to point out my other flaws.

Note: Don’t refuse to click the link to the article just because The Federalist is very political and you may not agree with its politics. There is nothing political in the piece.

UPDATE: Well, that didn’t take long: another writer at The Federalist posts her response to Wegmann in an article titled Get Used To It: Emails Are Here For Good, with the subheading, “Hating on email is a misplaced frustration. Email isn’t the bad guy, we are. But curt messages or sloppy grammar aren’t a new problem.”

Gee, We’re Smart!

At his Legal-Writing Blog, Wayne Schiess shares some observations from one of his students, who aspires to be an appellate lawyer and worked in the appellate practice department of a law firm.  See the professor’s post for all the details, but among the student’s observations:

I realized why appellate lawyers at law firms are stereotypically labeled as the smartest lawyers at the firm. The fact that they can come to work, day in and day out, and spend hours thinking and writing at such a level makes them nothing less than brilliant, if you ask me.

I can’t figure out why, but that was my favorite part.

Actually, I think it’s a case of comparing apples to oranges.  I spent more than a decade litigating in trial courts, so I have a feel for both sides of the coin, and I think that whatever you like to do tends to be less mentally taxing than other things.

For example, one of the most mentally exhausting activities, in my experience, is listening to deposition or trial testimony.  Maybe that makes me odd, but trying to listen intently to every word, for hours on end, to make sure that a potentially significant disclosure doesn’t slip by used to leave me absolutely drained at the end of the day.

Egghead (Batman)Image via Wikipedia

By contrast, I can spend 12 straight hours in the library and emerge fresh as a daisy.  In a networking group I’m currently checking out, I jokingly tell people that on appeal, they want an egghead like me precisely because eggheads like me like spending all our time reading and writing.  And, as I point out here, some trial attorneys find appellate work just plain boring.

To each his own.

Hat tip: Texas Appellate Law Blog.

Why Some Lawyers and Their Clients are Reluctant to Engage Appellate Counsel, Part 1: Categories

(NOTE: This post is the first in a series. To read the announcement of the series and/or leave your ideas for subsequent installments, click here.)

Well, it’s been four weeks since I promised a series of posts on this topic.  You were probably about to give up on me.

I started the first post, and it kept growing, and growing, and growing . . . clearly, some better way of organizing the topics was necessary.  And I’ve devoted substantial time to it.

How did I get to this point?  I started writing about what I figure is the number one reason lawyers don’t engage appellate counsel.  The trial lawyer thinks to himself:

“I can do it myself.”

Is that the top reason trial lawyers decide not to engage appellate counsel? I don’t know, but it certainly is a major one.  I think it is quite likely the number one reason, for it arises from, and indeed encompasses, many subsidiary reasons.

Which brings me back to the categorization of reasons lawyers and clients are reluctant to engage appellate counsel.  I think lawyers’ reeasons can be broken down into two main groups:

  1. Ability reasons (the “I can do it myself” mindset).
  2. Economic reasons.

I may come up with other categories as I write these posts, but for now, those are the two “biggies.”  Here are the reasons I have thus far identified in each category.

Ability Reasons.

Here are some of the thoughts that go through a trial lawyer’s head when deciding not to engage appellate counsel:

  1. “Hey, I’m a litigator, and appeals are litigation, so I can do it.”
  2. “No one knows this case better than I do.”
  3. “This case requires a specialist in the law of  [the substantive field of the case, e.g. employment, civil rights, torts, etc.].”
  4. “I can research and write as well as the next guy.”

Subsequent posts will take a closer look at these subsidiary concerns leading to the “I can do it myself” mindset.   For now, let’s take a look at that statement at a macro level.

Can a trial lawyer handle the appeal of his own case, or fight the appeal by the other party? Of course. Some of them, quite ably.

Weren’t expecting that, were you? But how can anyone deny that there are lawyers who quite capably handle a case at both the trial and appellate level? I know some and have worked with some in the past. They’re not mythical creatures.  In fact, one commenter, in response to my post soliciting ideas, wrote that extensive trial court experience is an asset: “My personal belief is that appeals to the intermediate courts are best handled by lawyers well versed in both appeals and trial court proceedings. Probably not what the audience of [The California Blog of Appeal] wants to hear.”

Well, I don’t know about my audience, but I don’t mind hearing that at all.  In fact, I tend to agree, and I suspect that this describes many full-time appellate practitioners.  I can’t be the only guy who got into this gig after a dozen years of trial court litigation.

But not everyone is up to it.  Some trial lawyers just plain don’t like doing appeals.  For some, it may be because appeals lack everything they like about litigation: frequent confrontation, lots of court appearances, sleuthing through discovery, and lots of twists and turns.  Appellate practice usually isn’t a hotbed of excitement.

There are other trial lawyers who avoid appeals because they know appeals do not play to their strengths, or they don’t feel they know enough about them.

Then there are those who think, “I can do it myself,” and either shouldn’t or can’t.

Economic Reasons.

Any trial lawyer may be somewhat nervous to recommend that a client engage another lawyer for the appeal.  Some thoughts that can run through the trial lawyer’s mind:

  1. “I’m handling the case for a contingency fee, and an appellate lawyer won’t do that.”
  2. “I’m rather slow right now.  I could use the fee generated by the appeal.”
  3. “This is a good client.  What if the appellate lawyers takes him away permanently?”
  4. “I think I might have screwed this case up.  What if the appellate lawyer tells the client?”

Again, I’ll go through these individually in subsequent posts. At a macro level, though, it’s worth noting that economic concerns are legitimate.  But a lawyer has to be careful not to let his own interests trump those of the client.

Clients’ Reasons.

Sometimes, the decision not to engage an appellate attorney is no doubt driven by the client, and may even be against the advice of the trial lawyer.  Reasons include:

  1. “I can’t afford an appeal.”
  2. “An appellate lawyer will just try to talk me out of making the argument I want to make.”
  3. “Why should I pay a second lawyer?”
  4. “The case is hopeless.  Why even try?”
  5. “My lawyer won at trial.  Who better to fight my opponent’s appeal?”
  6. “Even if I win the right to a retrial, that trial judge will just find some other way to screw me.”

Some of these are no more than parallels to the attorney’s reasons.  I will probably discuss those in the posts about the parallel attorney reasons.

One factor, however, tends to underlay all of these: the client has no idea how different an appeal is from the trial court proceedings.  The client may think he actually gets to retry the case in the court of appeal.

Future Posts.

Keep in mind that I developed most of these reasons by asking myself why I wouldn’t engage appellate counsel if I were a trial lawyer (or a client).  And I’m not sure I’ll be able to write posts about discrete reasons without overlap with other reasons.  Some overlap is unavoidable.  But I will try to stick to a single reason as the focus of each post.

Finally, allow me to again solicit your participation.  If you’d like to offer a topic for a post in this series, leave your comment in this post or, preferably, in the post announcing this series.  And don’t hesitate to repeat a topic someone has already left.  That will tell me there is greater interest in that topic.

(NOTE: To access all posts in this series to date, click here.)

Why Are Some Lawyers and Their Clients Reluctant to Engage Appellate Counsel?

UPDATE: This post is included in Blawg Review #174 at Texas Appellate Law Blog.

Why don’t some trial lawyers or their clients engage appellate counsel when it comes time for the appeal? Over the years, I’ve heard various reasons advanced for this. Among them: lawyers see no need to hire new counsel for something they can do themselves, lawyers are afraid to lose the client forever to the appellate lawyer or his firm, lawyers and their clients are afraid that the appellate lawyer won’t know enough about the specialized area of law involved in the appeal, clients are too comfortable with the trial lawyer to switch, clients are fed up with bad experiences with their trial lawyer and do not want to experience the same frustration with an appellate attorney. Some lawyers may even be second-guessing themselves about how they handled the case in the trial court and thus may be concerned that a new lawyer would counsel the client that the trial lawyer screwed up.

I’m planning a series of posts to be spread out over several weeks (maybe longer) about why clients (and, probably even more so, their lawyers) are reluctant to engage appellate counsel for their appeal. I am not exploring the issue of why clients may not bother to appeal at all. Rather, I wil explore why, once a party is involved in an appeal, that party moves forward either with his trial lawyer as counsel on appeal or in pro per.

I would love to have your input on this project. If you have any objections to appellate lawyer representation that you would like me to write about, tell me about it in a comment on this post. Feel free to “second the motion” of other readers; I am more likely to write about objections that more people feel exist.

I would especially like to hear from: (1) trial lawyers who handle their own appeals; (2) appellate lawyers that encounter objections to retention; and (3) parties or former parties to lawsuits who either did not hire appellate counsel or had to have certain doubts removed before doing so. But feel free to offer ideas in the comments regardless of whether you fall into any of these categories.

(NOTE: To access all posts in this series to date, click on the link below called “On Reluctance to Engage Appellate Counsel.”)

Why Use a Big Firm on Appeal?

D. Todd Smith (pictured) opines at Texas Appellate Law Blog on an article at Technolawyer that offers five reasons why general counsel tend to stick with large firms despite “rumblings about how high hourly rates and associate salary increases may lead them elsewhere.” Specifically, he asks: “Do these reasons apply when a GC is looking for appellate counsel?” He then goes down the list of reasons and concludes that, for the most part, they should not apply to a general counsel’s selection of appellate counsel. In the process, he notes some key distinctions between trial practice and appellate practice that many may not be aware of.

Of course, all you general counsel reading here should immediately read Todd’s post, after which you will no doubt feel compelled to hire Todd if your appeal is in Texas and me if your appeal is in California or the Ninth Circuit!

I especially like his take on appellate practice versus specialization:

Appellate lawyers are perhaps the last of the generalists. Although appellate practice has gained notoriety as a specialty, it focuses less on the substantive law than on the lawyer’s research and writing ability, knowledge of appellate procedure, and familiarity with the court hearing the case. Because appeals are limited to the trial record, knowledge of the client’s business and history are not as important as the ability to guide the client through the appellate process with the goal for that specific case in mind.

Very well said!

What Happens to the Trial Lawyer’s Contingency Fee when an Appeal is Taken?

The Texas Appellate Law Blog has done all appellate lawyers and contingency fee trial lawyers a favor with a post urging trial lawyers to include in their contingent fee agreements a provision explaining how the fee is affected if an appeal is taken:  “There really is no right or wrong way to do it, but in my view, contingent-fee agreements should always spell out what happens in the event of an appeal.”  He also covers a number of different ways to do it.  Please check it out.

Lawyer Advertising Pit Bulls, uh, Make That Pitfalls

Not that you’d ever know it from reading this blog, but I’m a pretty funny guy. So I like things about humor and the law.

A front page article in last Thursday’s Wall Street Journal documents how badly some state bars lack a sense of humor (subscription required — if that link doesn’t work, go to this post at the WSJ.com Law Blog, which appears to allow non-subscribers to link to the article). Take the opening few paragraphs:

Syracuse, N.Y., attorney James Alexander ran a TV spot for his firm showing lawyers offering counsel to space aliens who had crashed their UFO. He also did one with lawyers towering like giants over Syracuse.

Not amused, New York court officials said the ads contained “patent falsities.”

“It cannot be denied,” wrote assistant New York Attorney General Patrick MacRae in a court filing, “that there is little likelihood that [the lawyers] were retained by aliens, have the ability to leap tall buildings in a single bound, or have stomped around downtown Syracuse, Godzilla-style.”

Pit Bull Lawyer Ad

Things aren’t any better in Florida:

[The Florida State Bar] filed a complaint in 2004 against Fort Lauderdale personal-injury attorney Marc Andrew Chandler over ads [pictured left] that featured a pit bull wearing a spiked collar. The Florida Supreme Court sided with the bar in 2005, ruling that pit bulls conjure up images of viciousness. “Were we to approve,” the court wrote, “images of sharks, wolves, crocodiles, and piranhas could follow.”

What’s their point? Why not find that their appearance is likewise offensive? A lawyer in a muscle shirt?

The ads are funny.  The crackdowns, not.

Another thing definitely not funny was something I ran across a year or more ago, before I started this blog, about a state (I could have sworn it was New York or Florida, but I could be wrong) that requires lawyer ads to be approved by the bar before the lawyer can run them. Bad enough. But the state bar was proposing that blogs be counted as advertising. And not just the blog itself, but each post on the blog would have been considered a new advertisement requiring approval before it could be posted. I’m pretty sure that proposal died a quick death.

Hat tip: How Appealing.

LawLink Access to The California Blog of Appeal and More

There’s a new way to access legal blogs and more about your colleagues. And I do mean new. I added The California Blog of Appeal to the blog directory at LawLink over the weekend. This is only the eighth blog to be added, but plenty more are sure to follow.

Clicking on any of the blogs in the directory gives you an RSS feed right inside your browser window that shows teasers from the last few (up to 15) blog posts at that blog. Who knows how widely seen it may become? If you have your own law blog, you might as well get it up there now.

LawLink appears to be an attorney-only version of LinkedIn, an on-line networking tool designed to extend your network beyond your immediate contacts to those of your colleagues. I haven’t poked around LawLink too much, and my profile is bare bones for the time being. But the site appears to be designed to present an odd mix (in my opinion) of personal and professional information, considering that it is limited to attorneys. For example, there are fields to broadcast that you are looking for a personal relationship, whether or not you are single, etc.

Time will tell if it grows into a truly useful networking tool and blog resource.

UPDATE (2/6/08): The number of blogs has more than tripled since I registered this one on Saturday. The directory is now up to 25 blogs, some of which I have not seen before. This will definitely be worth checking every once in a while.

Plagiarism Sanctions Issue, Blog Readers React, and How this Relates to Value Billing

This post at The Volokh Conspiracy post and this one at Tax Prof Blog both provide extended excerpts from an Iowa bankruptcy case in which the court sanctioned an attorney — quite stiffly — for submitting a brief that was almost entirely (15 of 17 pages) lifted word for word from an article written by two other attorneys, without attribution.  The attorney charged the client $5700 for the brief.

Both posts have lengthy comment threads (Volokh’s is longer), with a great many defenders of the attorney — not for the billing, but for submitting the brief.  Many are also upset (rightfully so, to my mind) with the court’s apparent position that copying a string citation, including parenthetical comments, is plagiarism.

A couple of interesting comments, apparently on this last point, from the Volokh post (with links — gotta watch that attribution!):

From wm13: “What might happen to all those judges who tell counsel to write an order and they will sign it? What about an appellate court which finds a brief convincing and uses some of its phraseology in its opinion?”

From Happyshooter:  “All appellate court opinions around here would be plagiarism under that standard.”

DJR says that if the standards cited by the judge apply, “there are hundreds of judges who will need to start citing the bench memos and draft briefs written by their clerks so as not to intentionally pass off their “creative expressions” and ‘original ideas’ as their own.”

Bruce Hayden (or someone posting as him), who has an eponymous blog raises a question in the Volokh comments of relevance to alternative billing:

Read More »

Alternative Fee Structures in Appellate Practice

D. Todd Smith at the Texas Appellate Law Blog has a nice post on the suitability of alternative fee structures for appellate practice.  I generally concur with his post.  Appeals are far more predictable than the progress of a lawsuit in the trial court, which generally enables an appellate practitioner to estimate the time that will be spent on a case and formulate a fair flat fee.  Smith also addresses contingent fees.

Like Smith, I too was a “big firm” lawyer and enslaved by the concept of the “billable hour” for years.  As a solo, I am far more conscious of every minute I spend on a case.  The freedom that a flat fee allows is quite liberating.  (I still keep timesheets, in the event my client needs to submit evidence of my work to the court.)  The client is happy too, because the fee is known in advance.

Nonetheless, with a flat fee arrangement,  the attorney assumes some risk that the time spent on a case will, at the attorney’s normal hourly rate, be worth far more than the flat fee.  That risk can be mitigated through any number of mechanisms.  For example, the fee agreement can utilize “task billing” —  one fee for reviewing the record and preparing the opening brief, another fee for preparing the reply brief, and another for preparing for and appearing at oral argument, and even for a petition for rehearing, if necessary — while allowing for hourly billing of unanticipated motion activity.  Or the flat fee can be set based not only on the estimated time involved in the representation, but also on the amount of money at stake.  The larger the case, the larger the flat fee, which can allow the attorney more leeway in setting a flat fee that is likely to cover the attorney’s time at something close to his or her normal hourly rate.

I think an appellate lawyer needs to be creative with fee structuring to suit each client.  The last thing a lawyer wants to do is compete on price.  But offering alternatives to the billable hour is, in my opinion, competing on trust and confidence in your ability to handle the case efficiently, not on price.

UPDATE (8/27/07): Welcome to readers of Blawg Review #123, in which this post was featured. Come back again!

Jones Day’s Low-Profile Roots?

OK, this is off-topic for this blog (I had to create the new “Law Practice & Marketing” category for it), but it concerns one of my old firms — my first firm — and I can’t help commenting.

Jones Day was my first law firm out of law school in 1992.  I was in their 90-lawyer L.A. Office.  It turned out that “big firm” life wasn’t for me, and I left after two years, but there were many fine people and lawyers there.

Which made it both amusing and distressing for me to learn from Carolyn Elefant at law.com about an article in Cleveland Scene titled “Deception HQ: Jones Day, embarrassed to be from Cleveland.” Jones Day, the nation’s second-largest law firm, appears to be playing down its Cleveland roots, says the article.  When I looked for other prominent Cleveland-based firms, I ran across the 2006 “NLJ 250.”  Jones Day was right there at no. 3, with its principal city listed as . . . Washington!  Could the Cleveland Scene article be correct?

The Cleveland Scene article points out a six-month old post at The Wall Street Journal Law Blog about large firms going “headquarter-less.”  In light of the WSJ blog’s possible explanations for the trend (as well as some of the comments), I think the Cleveland Scene article rather unreasonably assumes that Jones Day is doing this out of a sense of embarrassment.  The WSJ post points out that the firm’s managing partner is in Washington and its largest office is in New York.

Whew!  Now I don’t have to be embarrassed about having worked there.