SB 470 codifies Reid v. Google, Inc., provides that objections to summary judgment evidence are preserved for appeal

whichthat2On Monday, according to this article at The Recorder, Governor Brown signed SB 470, amending Code of Civil Procedure section 437c, which governs procedure for motions for summary judgment and summary adjudication. For appellate practitioners, the significance of the bill lies in its codification of Reid v. Google, Inc. (2010) 50 Cal.4th 512. Reid held that objections to evidence submitted in support of a motion for summary judgment are preserved for appeal even if the trial court fails to rule on the objections. Prior to Reid, the courts were split on whether such objections were preserved. I’m unaware of any lingering controversy over the issue since Reid, but it is nonetheless satisfying to see its holding codified.

Specifically, the bill adds the following language to the section 437c:

(q) In granting or denying a motion for summary judgment or summary adjudication, the court need rule only on those objections to evidence that it deems material to its disposition of the motion. Objections to evidence that are not ruled on for purposes of the motion shall be preserved for appellate review.

Trial judges served with dozens of pages of objections are now explicitly excused from ruling on those that they deem immaterial. I think some judges have probably been doing this already with orders such as “Plaintiff’s objections 1-10 granted; all others denied,” especially in light of the holding in Reid, but it is good to see the burden explicitly lifted. Consider this excerpt from the first report on the bill from the Senate Judiciary Committee:

The report cites published opinions that illustrate the large number of objections made in summary judgment papers and the huge volume of motion papers in overall. (See Reid v. Google, Inc. (2010) 50 Cal.4th 512, 532 [“We recognize that it has become common practice for litigants to flood the trial courts with inconsequential written evidentiary objection, without focusing on those that are critical [footnote omitted].”]) The report specifically cites, as an example, the case of Nazir v. United Airlines, Inc. (2009) wherein “the moving papers in support of a summary judgment totaled 1,056 pages, plaintiff’s opposition was nearly three times as long and included 47 objections to evidence, and the defendant’s reply included 764 objections to evidence.” [Citation.]

If you are wondering about the graphic accompanying this post, here’s the explanation. It is in honor of the drafters of SB 470, for eliminating from section 437c three incorrect uses of the word “which.” Misuse of “that” and “which” (most commonly, the improper use of “which” in place of “that”) is a pet peeve of mine — not just in section 437c, but everywhere, including all other California codes, briefs, news media, correspondence and judicial decisions. Yet, I am sure I am guilty of it on occasion. Every once in a while, whether “which” or “that” is the correct word can be a close call, but SB 470 corrected some obvious mistakes. You can see the redline of the amended section 437c here.

Maybe “iPad Judges” aren’t such a good idea?

I’m no Luddite. I own a PC, a Macbook, an iPad, an iPhone, and a Kindle. (I’m not in the market for an Apple Watch, though.) Yet, I’m not thrilled that more and more judges (supposedly) are reading briefs and reviewing appellate records on iPads and other electronic devices.

The issue was brought to mind today by a lively exchange on the Los Angeles County Bar Association listserv for the Appellate Courts Section. The discussion is about the technical requirements for electronic filing or submission of briefs, petitions, exhibits, etc. in the Court of Appeal. There is predictable grumbling over the inconsistency in the rules from district to another, but mostly the discussion is over the page numbering requirements, which are designed to make sure that the page number of a PDF file corresponds to the page number of the physical document. Here’s how appellate attorney Robin Meadow of Greines, Martin, Stein & Richland, LLP, helpfully and succinctly explained it (my emphasis):

To elaborate a little:  This is all about reading briefs on-screen. PDF programs, whether on computer or tablet, allow you to specify a page to go to, but as Ed notes this is always the page of the PDF.  Under the old system, page 20 of a brief is something like page 30 of the PDF, because the PDF numbering includes the cover page, certificate of interested parties, TOC and TOA.  So, you have to guess at the page number to put in, or count the initial pages and then calculate the PDF page number every time.  Under the new system, there is one and only one page 20, whether you’re looking at a paper copy or the PDF.

Aside from court-imposed rules, there have been several articles about how to best prepare documents to be read by appellate justices on an iPad or other electronic device. A few months ago, Appellate Law Journal from Counsel Press (that is just a reference, not an endorsement) led me to another article on how best to format briefs for reading on tablets: Maximizing Your Appellate Brief for the iPad. That post references the Columbia Business Law Review article that I wrote about in January of last year. I will be the first to admit there are some advantages to having a text-searchable brief, but does that come at a cost?

Consider this summary of a Norwegian study at Science Nordic:

Neo-Luddites rejoice: numerous studies show that when you read a text on paper your understanding is deeper and longer lasting than if you read that same text on a computer.

Of course, if you read the text on a screen you can probably recount what you read. But you cannot as readily make use of the content in other contexts. You haven’t comprehended it as deeply and assimilated it as substantially.

Digital information isn’t just a fleeting phenomenon on your computer screen. It disappears more quickly from your memory, too. Screens are best for superficial and speedy reading.

I have felt this intuitively for some time, so I avoid doing extended reading on screen when comprehension and retention are necessary. For perusing blogs or short letters, my iPad is fine. It also suffices for novels and other lengthy leisure reading. But if I need to read a brief or a case or something else that makes comprehension and retention important, I print it out and read it off the paper, marking it up with a pen as I go. Call me a tree-killer, but I’m not about to give up this practice. I’ve tried reading PDFs on my screen and annotating them with PDF editing software as I go along, but it’s just not the same for me. I’ll stick with reading from paper; the  electronic file is always available if I need to search for something in the original text (though it’s no help in searching my notes, or course).  I wonder how many of our appellate justices feel the same way. (I hope none of the justices ever says to me at oral argument, “So, Mr. May, I read your brief on my iPad. You got a problem with that?”)

Getting back to the study: I am curious whether the study looked only at persons old enough to have grown up reading off the printed page. Perhaps today’s youth, who may have done a majority of their reading from screens, will develop so that they actually read better from a screen than from a printed page.

In a viral YouTube video [see below] from October 2011 a one-year-old girl sweeps her fingers across an iPad’s touchscreen, shuffling groups of icons. In the following scenes she appears to pinch, swipe and prod the pages of paper magazines as though they too were screens. When nothing happens, she pushes against her leg, confirming that her finger works just fine—or so a title card would have us believe.

The girl’s father, Jean-Louis Constanza, presents “A Magazine Is an iPad That Does Not Work” as naturalistic observation—a Jane Goodall among the chimps moment—that reveals a generational transition. “Technology codes our minds,” he writes in the video’s description. “Magazines are now useless and impossible to understand, for digital natives”—that is, for people who have been interacting with digital technologies from a very early age.

That’s a cute anecdote — or a horrifying one, depending on your perspective — but despite that introduction, the subhead of that piece at Scientific American notes that “research suggests that reading on paper still boasts unique advantages” over reading on a screen, and describes them in ways that suggest the printed page is advantageous even for those raised reading from screens.

For more articles and commentary on the subject, click here.

Update: I re-drafted this post as an article.

Do longer briefs correlate to success for Appellants?

I cannot think of a single writing seminar I have attended or book I have read that did not emphasize succinctness. Now comes a paper published at the Social Science Research Network, “Too Many Notes”? An Empirical Study of Advocacy in Federal Appeals (download link),which, if this excerpt from the abstract is any indication, appears to raise a statistical challenge to that line of thinking, at least in the Ninth Circuit:

Given the central role of written briefs in the process, we should examine seriously the frequent complaint by appellate judges that briefs are too long and that prolixity weakens persuasive power. In a study of civil appeals in the United States Court of Appeals for the Ninth Circuit, we discover that, for appellants, briefs of greater length are strongly correlated with success on appeal. For the party challenging an adverse decision below, persuasive completeness may be more important than condensed succinctness. The underlying cause of both greater appellant success and accompanying longer briefs may lie in the typically complex nature of the reversible civil appeal. In light of our findings, the current proposal to reduce the limits on number of words in federal appellate briefs may cut more sharply against appellants.

Every opening brief presents a struggle between “persuasive completeness” and a “condensed succinctness.” The ideal opening brief, of course, is complete and succinct. Sometimes, that can be accomplished, but not always (just ask Jeff Skillings’s lawyers), and maybe not even often, especially if one measures succinctness in absolute terms. But aside from rule-imposed limits, I think the the length of a brief has to be judged relative to its completeness — the number of issues raised and how complex the issues are. A brief of 7,000 words may be quite verbose if it raises only one or two simple issues, while a brief of 14,000 words may be a concise presentation of far more numerous and complex issues.

Update: the article has triggered this discussion thread at LinkedIn.

What can Ernest Hemingway teach you about legal writing?

Hemingway portrait

Ernest Hemingway

In a Wall Street Journal article last month, “Why Adverbs, Maligned by Many, Flourish in the American Legal System,” Ernest Hemingway is cited twice as an example of an effective writer who eschewed adverbs. This colorful start to the article expresses the view of many lawyers:

No part of speech has had to put up with so much adversity as the adverb. The grammatical equivalent of cheap cologne or trans fat, the adverb is supposed to be used sparingly, if at all, to modify verbs, adjectives or other adverbs. As Stephen King succinctly put it: “The adverb is not your friend.”

In large part, the article explains the need for adverbs in legislation and notes the significance they can have in the construction of a statute.

Bryan Garner, editor of Black’s Law Dictionary, is regarded by scholars as the dean of legal prose. He says legislators and adverbs need one another.

***

Says Mr. Garner: “No legislative drafter ever says: Did I pull my readers in? That’s something Stephen King has to ask.”

Ah, back to that age-old rule: know your audience when you are writing. (More on what the article teaches about that at the product liability blog Abnormal Use.) The article moves on to the more contentious issue of the use of adverbs in persuasive writing and the use of adverbs by judges:

“When you’re drafting an opinion, it’s just so tempting to use an adverb, so satisfying. It says exactly what you mean,” Alex Kozinski, chief judge of the Ninth U.S. Circuit Court of Appeals, said. “I don’t think any of us can follow the rule as religiously as Hemingway did. I wish I could.”

Unlike his peers, Justice Antonin Scalia is unapologetic. One legal linguist marveled at his “caustic exploitation” of adverbs in his opinions, which crackle with phrases like “blatantly misdescribes,” “most tragically” and “judicially brainstormed.”

Unsurprisingly, the participants in a LinkedIn thread that started with a reference to the article tended to concentrate on the use of adverbs in persuasive writing, and expressed their overall disdain for adverb use. There was general agreement that adverbs like “clearly,” “obviously,” and the like signaled weak arguments. The article offers statistical support for that view, with a caveat (again, relevant to the “know your audience” maxim):

According to a 2008 study by two scholars at the University of Oregon School of Law and Brigham Young University, lawyers who stuff so-call intensifier adverbs in their legal briefs—words such as “very,” “obviously,” “clearly,” “absolutely” and “really”—are more likely to lose an appeal in court than attorneys who avoid those “weasel words,” as Mr. Garner described them. But notably, the study found that the habit can actually work in a lawyer’s favor if the presiding judge really likes to use those adverbs, too.

Which leads me back to Hemingway. In the LinkedIn thread, California attorney Steven Finell praises Hemingway for more than just adverb avoidance, crediting him for precise writing without adverbs and using adverbs effectively: “Lawyers can learn a lot from reading Hemingway: short sentences, powerful verbs and nouns–and descriptive adverbs and adjectives.” Finell’s post provides great examples of precise adverb-free writing.

I’ve never read Hemingway. I might give him a try.

The law, the story, and the policy

Almost sounds like the beginning of a joke, doesn’t it? (A law, a story, and a policy walk into a bar . . . )

But I’m not presenting these things as a joke. According to San Diego antitrust attorney Jarod Bona at the Antitrust Attorney Blog, these are the Three Components of Every Effective Appellate Argument. I agree with a lot of his post, but I especially like this sentiment near the end (emphasis mine):

To [combine these elements] effectively is not easy. It is an art form and requires careful thought and attention. But when it is done right, it is beautiful.

Amen!

How to write for the “iPad judge”

No brief would look good on my pathetic iPad, which has some of the pieces of its broken screen held on with tape!

Are a lot of appellate judges/justices reading briefs on iPads these days? The Columbia Business Law Review recently published a short piece called Writing a Brief for the iPad Judge (on the journal’s online “announcements” page, which looks like the rough equivalent of a blog), which states that “a large and growing percentage of briefs are read on iPads” and offers advice on how to prepare a brief to make it iPad friendly.

As you might expect, the advice is not about content, but about how to present the content in a format optimized for reading on an iPad. “A brief written to be read on an iPad should differ from one written for text in three main ways: it should use fewer footnotes, should use a different font, and should avoid confusing hierarchical organization.” Okay, I already minimize my footnotes, I can use whatever font works best, but that last tip — “avoid confusing hierarchical organization” — sounds like trouble to me:

Perhaps most importantly, briefs written for iPads should avoid the traditional legal hierarchical headings: Part I, Section A, Subsection 1, etc. When flipping though a paper brief, a reader can physically feel if they are near the beginning or end and correctly guess if the Section A they are reading is I.A or VII.A. For digital readers, however, every A looks the same. This provides a strong reason to depart from tradition and use “scientific” numbering: Part 1, Section 1.1, Subsection 1.1.1. While some argue that scientific hierarchical headings are always superior, when writing for the screen, the case is even stronger. (As an added advantage, the scientific hierarchy avoids the confusion about what to call a “ii”). The same considerations, according to Ilene Strauss, Director of Columbia Law School’s Legal Writing Program, also emphasize “the need to use effective headings,” which can help “keep a reader on track within a smaller screen.”

I think it would be far better to use the usual numbering system. For one thing, I think the “problem” identified is a mythical one. The reader of a physical brief might be able to estimate quickly whether the Section A on the page is under heading I, II, III or IV, and lose that advantage in an eBrief, but so what? What’s important about the superior heading is not its number, but what it says. Thus, it is the ease of actually finding the superior headings that is important. Whether in a physical brief or an eBrief, it’s easy to bookmark the table of contents and locate the superior headings easily. I have never liked scientific numbering because it doesn’t take too much depth to make the numbering unwieldy. “1.1.1” is a lot more cumbersome than a single character, and 1.1.1.1 is worse. I would hate to see courts mandate scientific numbering.

The piece has some links to some other fun reading, too, including this coverage of the Fifth Circuit system for electronic briefs, in which the court does all the work of hyperlinking to authorities (and soon, hyperlinks to the record) rather than requiring the submitting party to do the work before submitting the brief.

A novelist/academic’s views on persuasive writing

A lawyer in one of my LinkedIn groups alerted the group to an interesting article that gives a non-lawyer’s perspective on persuasive writing. Introducing the article, St. Louis attorney Daniel Schramm notes:

When I was a law student, we were taught how “to write like a lawyer.” This article suggests lawyers would be better served if they follow the modern trend to make arguments simple and easy to read.

At first, this did not make sense to me. “Writing like a lawyer” and “simple and easy to read” are not mutually exclusive concepts, and any lawyer who thinks they are is in big trouble. But after reading the article, I realized Schramm was not asserting such a dichotomy, but something else.

The article itself is from legal writing guru Bryan Garner, and excerpts his interview of writer David Foster Wallace. From the Wikipedia page on Wallace:

David Foster Wallace (February 21, 1962 – September 12, 2008) was an award-winning American novelist, short story writer, essayist, professor of English at Illinois State University, and professor of creative writing at Pomona College. Wallace is widely known for his 1996 novel Infinite Jest, which was cited as one of the 100 best English-language novels from 1923 to 2005 by Time magazine.

From the article, here is just a part of Wallace’s advice on what the “middle” of a persuasive piece should do (my emphasis):

The middle should work. It lays out the argument in steps, not in a robotic way, but in a way that the reader can tell (a) what the distinct steps or premises of the argument are; and (b), this is the tricky one, how they’re connected to each other. So when I teach nonfiction classes, I spend a disproportionate amount of my time teaching the students how to write transitions, even as simple ones as however and moreover between sentences. Because part of their belief that the reader can somehow read their mind is their failure to see that the reader needs help understanding how two sentences are connected to each other—and also transitions between paragraphs.

That got me thinking about the function of argumentative headings in appellate briefs. Do lawyers use argumentative headings to fulfill this “connecting” function? Should they?

Argumentative headings obviously need to be more than “connectors.” In fact, California court rules require that each argument be identified in a heading, lest it be deemed waived. One bit of advice most of us learned in law school is that headings should be written so that the table of contents alone is persuasive. Does that mean they should serve as transitions, too?

Maybe not.  Wallace’s comments suggest an exercise for evaluating your brief, which is the opposite of looking at the table of contents alone (and this, I think, is what the LinkedIn poster meant): if you stripped the argumentative headings out of your brief, could your reader still see the connections among your arguments?

I’m not sure that the answer has to be “yes” in every case. After all, most writing maxims have some elasticity. Writing as if argumentative headings aren’t there might actually be counter-productive for some arguments. Consider, for example, an argumentative heading over a single paragraph of text. Including a topic sentence and transition in that paragraph that essentially repeats the heading might make for cumbersome reading. Maybe it’s okay in those instances for a heading to serve as both identifier and transition, without the need for a transition in the text. Then again, there may be judges out there who deliberately “read around” the headings to get a feel for your brief without them — can you risk leaving them clueless?

I haven’t really thought about this too deeply before, but I now want to try an experiment. On my next brief, I am going to ask a colleague unfamiliar with the case to read a draft that has been striped of its headings and then give me his opinion as to whether the arguments seem connected and persuasive in that form. That should be interesting.

Don’t get snide on appeal

Snideness is never an attractive trait, but it is distressingly common in trial court. No offense to you trial lawyers out there, but I find snideness far less prevalent in appellate practice, and, on those occasions where it does raise its ugly head, the justices seem far more hostile to it than most trial judges are.

Which brings me to a 2009 case that I ran across today, Nazir v. United Airlines (2009) 178 Cal.App.4th 243, in which plaintiff’s counsel, apparently from a solo or small office, squared up against an employment law powerhouse and not only won, but got to see the powerhouse firm spanked by the Court of Appeal as it reversed the summary judgment for the defendant employer.

Here’s your hot tip of the day: Unless you want to invite the severest scrutiny of your own papers and trial counsel’s track record in the trial court, don’t start your brief like this:

Seemingly emboldened by [the trial court’s description of the plaintiff’s summary judgment opposition papers], defendants’ brief here begins this way:

“As in Macbeth’s soliloquy, Appellant’s Opening Brief (AOB), like his summary judgment opposition below, is full of ‘sound and fury, [but ultimately] signifying nothing.’ Despite filing an 1894 page(!) opposition separate statement, which the trial court found … in a manner deliberately calculated to obfuscate whether any ‘purportedly disputed facts were actually controverted by admissible evidence,’ the trial court properly granted summary judgment in this case. As with Nazir’s opposition statement, his AOB is ‘mostly verbiage, and utterly lacking in the identification and presentation of evidence demonstrating a disputed issue of fact.’ ”

Uh-oh. Pot, meet kettle:

Passing over whether such disparagement is effective advocacy, the “girth” of materials before the trial court began with defendants, whose 1056 pages of moving papers were in great part inappropriate, beginning with the motion itself.

The opinion goes on to lambaste the powerhouse firm for bringing a motion outside the scope of the statute and filing papers so out of compliance with court rules that they failed to adequately inform the plaintiff of the facts supporting the motion. Indeed, the court again takes an accusation (that plaintiff’s papers were designed to obfuscate) and applies it to the defendants:

The deficiencies in the motion pale in comparison to those in the separate statement. “Separate statements are required not to satisfy a sadistic urge to torment lawyers, but rather to afford due process to opposing parties and to permit trial courts to expeditiously review complex motions for [summary adjudication] and summary judgment to determine quickly and efficiently *252 whether material facts are undisputed.” (United Community Church v. Garcin (1991) 231 Cal.App.3d 327, 335, 282 Cal.Rptr. 368.) The separate statement “provides a convenient and expeditious vehicle permitting the trial court to hone in on the truly disputed facts.” (Collins v. Hertz Corp. (2006) 144 Cal.App.4th 64, 74, 50 Cal.Rptr.3d 149.) That hardly describes defendants’ separate statement here.

Plaintiff’s counsel must have really enjoyed reading that opinion.

A different kind of “three strikes and you’re out”

A recent opinion from the court of appeal demonstrates that while redundancy is usually something to be avoided, sometimes it’s a good way to make a point.

[Plaintiff] persistently misstates the central issue in the case by insisting, here and in related appeals, that the question presented is whether a defendant charged with trade secret misappropriation “may escape liability” by establishing that it “does not comprehend the specific information comprising the trade secrets.” This is not an issue, let alone the chief issue, in these matters. The posited question may be answered in the negative-as indeed it must-without resolving any aspect of this case. It is a smokescreen, a red herring, a straw man.

That’s three strikes. Or, really, all the same strike, stated three ways. This is another example of judges being able to get away with clever or sarcastic writing that most lawyers should probably avoid. Judges can get even more colorful. Yet, a lawyer takes a big chance in doing so, especially (in my view) in the court of appeal. So unfair!

Citations of the future

Duke University professor Joan A. Magat has an article up at SSRN suggesting changes in footnote use in academic legal writing, but the future she predicts for legal journals in “Bottom Heavy: Legal Footnotes” may be the future of all legal authority:

No more paper: just electronic journals with links to sources. That’s what’s ahead. All this current, Bluebook-inspired preoccupation with small caps and spacing initials and the like will go the way of the mastodon. One of these days, we’ll have just URLs. They’ll have to be correct, or they won’t work. And they’ll have to last.

If you’re an academic writer, you should check out the article. Here’s the abstract at SSRN, where you can access the complete article after signing up for a free account:

For decades, legal footnotes have been the deserving target of both ample criticism and self-mockery. Apart from their complaints as to footnotes’ mere existence, most critics draw a bead on the ballooning of footnote content. Some journal editors, aspiring to respond to this sound theme, hopefully inform their authors of a preference for “light footnoting.” But where does an author begin to trim, and what editor has the audacity to slash what the author (or her research assistant) has so laboriously compiled below the line? Changing our footnote habits is about benefits and costs. To gain the former, we must ante up. If criticism began the round of bidding, this article modestly raises the stakes, suggesting a rule of reason that might govern the author’s, the editor’s, and the reader’s expectations for footnotes. A gamble, perhaps, but one that might be worth taking.

Can your clients help you be more persuasive?

Here’s an article on my short list of must-reads: in Know Your Client: Maximizing Advocacy by Incorporating Client-Centered Principles into Legal Writing Rhetoric Practice, Rutgers-Camden law professor Jason Cohen advocates that lawyers look beyond the typical “write for your audience” mindset and incorporate the client’s values into their legal writing. From the abstract:

Clinicians, however, have developed theories of client-centered lawyering which require that the attorney uncover their client’s values, goals and objectives that may go well beyond the discrete litigation at hand. Client-centeredness encourages the attorney to incorporate this information into his/her advocacy on behalf of their client. This article advocates incorporating select principles from client-centered lawyering into legal writing. The primary purpose for this application is persuasion and advocacy, not necessarily empowering the disenfranchised client.

This is a very interesting concept, and certainly one that cuts against conventional legal writing wisdom. It also requires lawyers to step back from the “I’m the lawyer, I know what I’m doing, leave it to me” approach to client relations. Think how much happier your clients will be knowing not only that their values are being incorporated into the project, but that incorporating those values actually makes for better advocacy.

Can Bad Legal Writing Get You in Trouble?

You bet it can, and your boss isn’t the only one who can create trouble for you.  To see what other kinds of trouble you can get into, and how to avoid it, check out this oldie but goodie (but just recently posted to SSRN), Ethical Legal Writing, from UT law professor Wayne Schiess of Legalwriting.net and its blog.  The abstract: “This article describes real cases in which lawyers got into trouble for poor legal writing: court sanctions, fines, bar discipline, civil liability, and public humiliation. It offers advice for avoid [sic] those fates.”

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When a lawyer must include one or more issue statements in a brief, either for purposes of clarity or because required by court rule, and the lawyer has trouble formulating a succinct issue statement that correctly identifies the parties and the critical facts necessary to an understanding of the statement, where can the attorney find a resource to help him write a clear, succinct issue statement that is easily understood by the reader?

No, I haven’t “lost it” during my absence. The title of this post is a parody of a bad issue statement — something we all see way too often.

As for an answer to the question itself, this looks like a pretty darn good place to start.

Judicial Opinion Shortcuts: Skipping the Substance of the Argument

Sometimes, a judicial opinion leaves you wondering what a party contended on appeal.  That’s always a little frustrating.  OK, not always, but when it involves a pet interest (in my case, jurisdiction), it leaves one wanting more.

Such is the case with White v. Mayflower Transit, case no. 07-55528 (9th Cir. Sept. 12, 2008), in which the court writes that the pro se appellant contended that the district court lacked removal jurisdiction over the case.  But they don’t explain the substance of the appellant’s argument.  They merely explain how the facts of the case demonstrate the applicability of a federal statute that grants exclusive jurisdiction to the federal courts.  Pretty cut-and-dried.

Why not say what the appellant’s argument was?  Given the fact he was pro se and the short, plain way in which the court establishes the existence of removal jurisdiction, I get the sense that we were robbed of a very interesting read.  Shouldn’t the court at least mention what the argument was, even if just to dismiss it as ridiculous and thereby reduce the chance that it is raised by a subsequent litigant?

I got curious enough that I looked up the case on Westlaw.  The appellant’s brief wasn’t available, but the appellee’s brief was, and according to appellee, the appellant’s arguments were “difficult to decipher.”  Thus the appellee, like the court, skipped right over the substance of appellant’s argument and presented an affirmative case for jurisdiction without trying to refute whatever it was appellant was trying to say.

A Great Resource: Social Science Research Network

SSRN Logo.pngI’ve occasionally downloaded scholarly papers from the Social Science Research Network, usually after seeing them mentioned at the Legal Writing Prof Blog. But until that blog’s recent post about how to stay up-to-date with the latest articles on legal writing, which provides links for subscribing to legal writing articles, I hadn’t really poked around SSRN very much. I took the time to do so this evening, and discovered there are some terrific features. Besides the subscriptions, there is a “briefcase” feature that allows you to accumulate articles of interest for later access. Going though the subscription list, I flagged about 30 papers published just this year. I’ll probably be posting links to many of them in the coming weeks. In the meantime, go to Legal Writing Prof Blog’s post for the links regarding subscriptions.

Pepperdine’s Justice Alito Event — Video Available

Pepperdine has video of the conference on judicial opinion writing that I commented on here (actually, I was commenting on Ben Shatz’s write-up of the event).  Here’s the description accompanying the video:

The Honorable Samuel A. Alito, Jr., associate justice of the United States, spoke on “Lawyering and the Craft of Judicial Opinion Writing” at the School of Law on Wednesday, July 30, to a crowd of more than 200 students, alumni, law professors, journalists, judges, and special guests.

Justice Alito was joined by The Honorable Michael W. McConnell, United States Appellate Judge for the Tenth Circuit; The Honorable Walter E. Dellinger III, former United States Solicitor General; Pepperdine School of Law dean and former Solicitor General Ken Starr; and Professor Douglas W. Kmiec, former United States Assistant Attorney General (OLC).

Hat tip: Crime & Federalism.

The Value of a Good Reply Brief

As much as I keep up with appellate issues, some things catch me by surprise. According to this article: “There has long been debate in appellate circles whether reply briefs serve a worthwhile purpose. Some wonder whether justices even read them.

Really? I’ve never doubted the value of a well-written reply brief, nor have I heard others question their value. Though reply briefs are optional, I can’t imagine I’d ever decide against filing one.

If you’d like to read what some appellate justices have to say about them, check out Are Reply Briefs Really Necessary? The Recorder e-mailed all 103 appellate justices in California for their views on reply briefs and got responses from 25 of them. Reporter Mike McKee’s write-up of their responses describes some pitfalls for appellants’ counsel to avoid and how the justices approach brief reading, among other things.

Hat tip: The Appellate Practitioner.

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“E” is for “Explain”

 

If you’re writing according to a typical “IRAC” formulation, Professor Mark E. Wojcik of John Marshall Law School and the Legal Writing Prof Blog says you’re leaving an important letter out of that acronym.  Go to SSRN to download his article from the November 2006 Student Lawyer (yes, 2006, but he just posted the link yesterday) on why adding an “explanation” step to your analysis is helpful.

How “Intense” is Your Appellate Panel?

It might make a difference in how the members of the panel view your brief!

In this highly unusual study, the authors looked for correlations between the use of “intensifiers” — words like “clearly,” “obviously,” “blatant” and “very” — in appellate briefs and the outcome on appeal.  From the abstract of the paper:

This article describes two empirical studies of appellate briefs, which show that the frequent use of intensifiers in appellate briefs (particularly by an appellant) is usually associated with a statistically significant increase in adverse outcomes for an offending party. But – and this was an unexpected result – if an appellate opinion uses a high rate of intensifiers, an appellant’s brief written for that appeal that also uses a high rate of intensifiers is associated with a statistically significant increase in favorable outcomes. Additionally, when a dissenting opinion is written, judges use significantly more intensifiers in both the majority and dissenting opinions. In other words, as things become less clear, judges tend to use clearly, and obviously more often.

The abstract goes on to note there may be explanations other than the ones that might immediately leap to mind.  Still, this is no reason to start peppering your briefs with intensifiers you normally avoid.  But it is interesting!

Hat tip: Texas Appellate Law Blog.

A Supreme Editor is Needed

Mister Thorne of the Set in Style blog likes to poke gentle fun at lawyers’ writing mistakes in order to remind us that we need editors as much as anyone, even though — in fact, because — we craft words for living. In this post, he links to a legal writing website that dissects eight grammatical errors in the recent SCOTUS gun rights case, D.C. v. Heller, and links to an ad soliciting an attorney editor for the California Supreme Court, placed in what I would have thought was a rather unconventional place, considering the job.

It Turns Out that Your Appendix on Appeal is Quite Similar to the One in Your Abdomen

“Your appendix is a vestigial organ with no known function but it will kill you if it goes awry.”  That’s the clever moral Professor Childress of Legal Profession Blog draws from the story of the attorney who inadvertently submitted an appendix that included his margin notes commenting on the court’s prior opinion.  His post also has additional links regarding the story.

Of course, your appendix on appeal does have a function (though I can understand how the temptation to write that line was irresistible to Professor Childress).  But the larger point remains: proof your appendix as carefully as you do your brief.

Patrol Cars are Traffic, Too

Federal Protective Service vehicle.Image via Wikipedia

In People v. Logsdon, case no. G038366 (4th Dist. May 28, 2008, ordered published June 24, 2008), the defendant contended that the officer following him on an otherwise nearly deserted street in the middle of the night lacked cause to stop his vehicle after defendant crossed several lanes of traffic without signaling. Defendant contended that in the absence of other traffic, his unsignaled lane change was a safe move.

He forgot about the patrol car following him! The court holds that the officer who made the stop constituted traffic that needed warning of the lane change.

There’s an interesting angle to this case from an appellate perspective and from a writing perspective.

Writing first. When the defendant claimed that the patrol car was too far away to be affected by the unsignaled lane change — as evidenced by the fact that the officer neither braked nor swerved — the court discounted thre argument with an unintentionally (?) funny choice of words to explain that the defendant’s lane change did not actually have to alter the patrol car’s course to be unsafe (emphasis added): “Actual impact is not required by the statute; potential effect triggers the signal requirement.” Glad to know a collision isn’t required.

Next, the appellate angle. The trial court found that defendant’s lane change affected a car traveling about 100 feet behind him (apparently referring to the patrol car) and decided not to disturb the ruling without resolving the issue of whether it was a factual finding or a discretionary one (emphasis in original):

The trial court found that a vehicle within 100 feet of Logdon’s car, traveling in the same lane and at the same speed, was affected by the lane change. Moreover, the Legislature has declared its opinion that vehicle signals are needed within 100 feet of any turn. (See Veh. Code, § 22108.) Whether this finding is a discretionary finding or a finding of fact, we must accept this one. Factual findings are to be accepted if substantial evidence can be found in the record to support them [citation], and discretionary rulings must be upheld unless an abuse of that discretion is shown. (See People v. Bishop (1993) 14 Cal.App.4th 203, 212-213 [abuse-of-discretion standard appropriate when lower court “is in the best position to determine the genuineness and effectiveness of the showing . . . .”].) Under either standard, we must accept this finding.

Before you do battle over the nature of a finding and thus the applicable standard of review, make sure the distinction makes a difference.

New Entry in “Worst Brief Ever” Competition

I’m beginning to wonder if I should start a new blog post category for “bad briefs.” I’ve told you about the Ninth Circuit dismissing a case as a sanction for briefing deficiencies and the California Court of Appeal explaining why a poorly written opening brief made it nearly impossible to discern the arguments being made. Now comes the “cut-and-paste” brief. As described by the First Circuit in the unpublished Rusli v. Mukasey, case no. 06-1941 (1st Cir. June 27, 2008) (citations omitted):

The brief filed by petitioners’ counsel, Yan Wang, is a “cut and paste” affair that appears to present the facts of another case — notably for a person of a different gender than Rusli, who had different experiences, in different years, and appeared before a different immigration judge. This substantive failure to comply with Federal Rule of Appellate Procedure 28 alone justifies dismissal. Further, the brief, by definition, offers no developed argument directed to petitioners’ claims, with the necessary consequence that the claims are waived.

Hat tip: Appellate Law & Practice.

Footnotes and Same-Sex Marriage

Not a pair of topics that you’d automatically put together, but bear with me . . . 

Legal writing enthusiasts differ on the proper use of footnotes, and I’ve posted before about the debate. One appellate jurist addressing my law school class advised that if a point is important enough to go in the brief, then it’s important enough to go in the body text of the brief rather than in a footnote. Ray Ward at the (new) legal writer noted that some people even presume that footnotes in appellate briefs are not likely to be read.  

Yet, I’ll bet every lawyer at least remembers learning in Constitutional law class about the importance of footnote 4 in the Carolene Products case, even if not every lawyer remembers why it was significant.

What prompts my thinking about footnotes this morning?  Believe it or not, it’s this morning’s California Supreme Court decision in In re Marriage Cases, case no. S147999 (May 15, 2008)., in which the court strikes down California’s same-sex marriage ban.  The opinions combine for 161 pages, and would have been even longer if the court had followed the advice above — but then again, the court undoubtedly was aware that these opinions — including every word in every footnote — would be more heavily scrutinzed than any other opinion in recent history.

And the court used that awareness to full advantage.  The majority opinion of 121 pages has 73 footnotes, many of them a half page long (single-spaced), and one (footnote 24) more than a page and a half long.  I estimate roughly 21 pages of that 121-page majority opinion is taken up by single-spaced footnotes.  Placed in the body of the text, they would have added 42 pages to the opinion and they appear to account for roughly one quarter of the opinion’s content.

There may be no single footnote likely to overtake footnote 4 in Carolene Products (then again, there might), but it will be interesting to see how much of the early commentary on the decision arises from points made in the footnotes, and it will also be interesting to see how widely cited the footnotes become in future cases.

Spoon-Feed the Appellate Judges

Richard PosnerImage via Wikipedia

Picture 3.png That’s just one piece of advice offered by Seventh Circuit Judge Richard Posner in his turn at the ABA Section of Litigation’s “Tips from the Trenches” column, titled “Convincing a Federal Court of Appeals.” Attorneys who fail to take into account that the appellate judges are not specialists and have a limited time to deal with each case are making a mistake; a judge “depends on the lawyers to provide enough background in the field out of which the case emerges to orient” the judge.

Tip no. 2: don’t think you can win by “rubbing the judges’ noses in the precedents.”

This terrific column provides lots of practical advice, closing with an 8-item list of “do’s and don’ts” of oral argument.

Hat tip: How Appealing.

Narrowing Appellate Issues

D. Todd Smith makes a good point at Texas Appellate Law Blog in the context of explaining why he likes oral argument:

[O]ne of my favorite aspects of oral argument is that it forces you to distill your case down to the barest elements. As the appellant, if you can’t persuade the court based on your best two or three points—which should all be covered thoroughly in your brief—you’re probably going to lose.

Hear, hear.

I think the same approach pays off in briefing. Rarely do you read an opinion that refers to a “scattershot” or “shotgun” approach by the appellant where those terms aren’t used (at least implicitly) insultingly or, more importantly, where the appellant actually prevails on any of those issues.

This is often a battleground between lawyers and their clients at both the trial and appellate stages. Clients want to include every last morsel of how they may have been wronged, while attorneys — good ones, at least — recognize that simpler is better, especially if it means letting go of of weak arguments.

Ray Ward posed this question at the top of his post at the (new) legal writer warning about the dangers of the “kitchen sink” approach:

When we try to narrow down the issues and arguments in a brief, throwing out the weak ones and keeping the strong ones, we take a risk: the risk that we may be getting rid of something that would have persuaded the judge. So should we get rid of those weak issues and arguments?

Citing some other writers, Ward offers some compelling reasons for answering “yes.” Not only does he offer the negative consequences of presenting weak arguments, he also offers reasons (besides the remote possibility of success) why we come up with them in the first place and then why we are reluctant to get rid of them.

I don’t think it is possible to set a hard and fast rule on the cutoff point, i.e., that point at which the odds of prevailing on any given argument reach so low a level that it should be dropped. That will obviously vary from case to case. I suppose there are cases where an appellant might raise 7, 8, or even 10 strong issues — but I haven’t run across one.

I generally approach the issue from the opposite end. Rather than start with every conceivable issue and then determine which ones to drop, I start with those same issues, pick the best two or three, then determine which of the remainder to add. In other words, instead of looking at how weak an argument has to be before I drop it, I ask how strong an argument has to be before I include it. That’s a tougher test for those remaining issues, and it helps prevent the pride of authorship in an early draft (one of the obstacles noted in Ward’s post) from getting in the way.

We’re paid to use our judgment. Is there a risk that one of the arguments that was raised during your brainstorming stage but never made it into the brief might have persuaded the judges? Absolutely. But using that possibility — often a very remote one — as an excuse to include every argument is asking for trouble.

By the way, for a personal anecdote on a misadventure resulting from including a weak argument mandated by my supervising partner against my protest early in my career, see this earlier post of mine.