Is your notice of appeal likely to generate settlement leverage?

Every so often, I get a prospective appellant who is convinced that filing his notice of appeal will intimidate his adversary, prompting him to “come to the table” to hammer out a deal.

Good luck with that.

It’s not that cases cannot settle on appeal. It’s that most of the time, the mere act of appealing or filing a writ petition does not generate much leverage because the odds are inherently against the success of the appeal. Consider that the reversal rate on appeals generally hovers between 20% and 25%. Would you be intimidated by those odds?

That said, cases do settle on appeal, and some factors in a given case can do a great deal to encourage both sides to settle. (I’ll cover some of those factors in a future post.) Recognizing that some parties, and especially respondents, are less likely to settle on appeal, some courts with mediation programs have required the parties to make some showing that the case has a chance of settling before the court will assign a mediator. Thus, even if the parties are willing to talk, they may not be able to take advantage of the free mediation services offered through the court, and will instead have to engage a private mediator.

For a good overview of the differences between trial-level mediation and appellate mediation, check out this older blog post from last year from mediator David Karp.  David’s blog is one of the Member Blogs of the Month at the TEN Networks Blog, and I’ve gotten to know David a little through that group. His post is spot-on, and offers some insight he’s gained from volunteering his mediation services to the Court of Appeal.

JALWD Online

From Ray Ward at the (new) legal writer:

Thanks to Legal Writing Prof Blog, I learned that the entire Journal of the Association of Legal Writing Directors is on-line—every issue, every article, in both HTML and PDF. If you’ve never read the JALWD, do yourself a favor and pay a visit.

He directs you to Legal Writing Prof Blog for instructions on how to submit to JALWD “[i]f you’re brave enough to actually want to write an article” for them. One should be prepared, I assume, for some extensive constructive criticism!

One Blog I Never Want to Appear On

Ever run across some horrible writing in an opponent’s brief and wish you could broadcast it to the world?  Now you can.  Legal Literatus, the blogger at the  relatively new blog, Lawyers[‘] Writing Wrongs, gives you that outlet.  LL solicits your contributions and provides his e-mail address in the sidebar of his blog.

Hat Tip: Mister Thorne of Set in Style.

Bluebook Online

Is your office a little messy?  You don’t want to risk being unable to find your copy of “The Bluebook” (The Bluebook: A Uniform System of Citation) just as you’re finalizing citations for that brief that has to go out the door.  You’re a lot less likely to misplace your computer, so perhaps an on-line Bluebook is more reliably available to you. 

The Harvard Law Review is happy to oblige.  It just announced an on-line version of this essential publication, available via subscription at what appear to be reasonable prices, including multi-year discounts.

H/T to Legal Writing Prof Blog.  Who got it from Tax Prof Blog.  Click on either link for more details, including pricing.

Writing Advice from Scalia and Garner is Coming

Via Carolyn Elefant at (whose blog post title, by the way, is quite clever) comes news that Justice Antonin Scalia has teamed up with legal writing guru Bryan Garner to author a book on legal writing.  Ms. Elefant links to an article at Legal Times giving more details, and then asks some excellent (and amusing) questions:

Given that Scalia’s opinions (or in particular, his dissents), are often known for their nastiness or sarcasm, I’m particularly curious about the advice that he’ll provide to lawyers.  Will Scalia counsel restraint and professionalism in legal writing, and if so, how will he reconcile that with his own opinions?  Will Scalia offer “real life examples” of legal briefs or arguments that don’t simply don’t work, and if so, will readers be able to recognize the lawyers whose work is critiqued in the book?

Like I’ve said before, judges get away with things lawyers would never (or should never) dream of writing.  One of the perks, I guess.

A Professor’s Lament and More Legal Writing Resources

Professor Austen Parrish of Southwestern Law School, as a guest writer at Prawfsblawg, laments the poor writing skills of first-year law students, including this comment: “Exam answers (at times written like lengthy text messages) can bring seasoned professors near to tears.”

He offers a list of helpful books.

The commenters on the post don’t seem particularly optimistic.

Addressing Your Brief To a Specific Circuit Judge . . .

. . . or, at least, to a specific group of circuit judges, may now be possible, if Tom Caso at The Opening Brief is correct.  He cites a study covering ten years of federal appellate opinions that concludes “opinion specialization [is an] unmistakable part of every day judicial practice.”  In other words, cases of specific types tend to get assigned to certain judges.

Says Tom, “If true, this suggests a more focused approach for the federal appellate lawyer.”  There’s more, including a link to the study, at his post.