• Appellate Procedure,  California Court of Appeal,  California Procedure,  Judges,  Legal Writing,  Record on Appeal

    Settled Statements, New Trials, and the Languishing Criminal Defendant

    May 21, 2007

    When a reporter’s transcript of proceedings is unavailable for appeal, the appeal may proceed by way of a “settled statement.” California Rules of Court, rule 8.130(h). Some pitfalls of this procedure are revealed in People v. Cervantes, no. B183412 (May 16, 2007). On Cervantes’s first appeal, the court reporter advised that a technical malfunction prevented her from transcribing the testimony of the sole prosecution witness. Nearly a year after his conviction, Cervantes moved for summary reversal and a retrial based on the absence of the transcript. The Court of Appeal denied the motion but remanded for the trial court to determine if a settled statement could be obtained. At the…

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  • Legal Writing

    On Writing Concisely – Part 2 (Updated)

    May 20, 2007

    I think you’ve hit a nerve when Judge Kozinski takes the time to write a dissenting opinion from an order granting your motion to file an oversized supplemental brief.  After the moving party filed an opening and reply brief, had two amicus briefs filed in support, and apparently made a successful joint motion for supplemental briefing in which he explicitly agreed to abide by the 14,000 word limit imposed by Fed. R. App. P. 32, an additional motion asking for leave to file an oversized brief of 15,500 words is apparently more than Judge Kozinski is willing to take.  He concludes (link added): Not only do we abet the flouting…

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  • Appellate Blogs,  Judges,  Legal Writing

    A Quip Too Far?

    May 17, 2007

    The writing style on display in a Florida appellate decision, Funny Cide Ventures, LLC v. Miami Herald, Fourth Dist. Ct. of Appeal case no. 4D06-2347 (May 16, 2007) has attracted some attention today. The actual per curiam decision is run-of-the mill, but one of the judges took it upon himself to write a supplemental opinion that spends its first few pages complaining about the dullness of typical legal writing before launching into an unconventional style that, if read aloud, sounds like a dime store novel detective recounting the events of the case. To be fair, Judge Farmer lays out why he wrote the supplemental opinion: In my view nothing that…

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  • Legal Writing

    On Writing Concisely

    May 17, 2007

    The Illinois Trial Practice Weblog asks in a post this morning, “Legal Writing: Is Shorter Really Better?”  Tongue in cheek, the writer answers, “Based on the briefs I regularly see in my own practice, many lawyers don’t seem to think so.” The tips for trimming verbose drafts are good. Better yet are the writer’s thoughts on why briefs become bloated in the first place. A legal writing professor commenting on the post is reminded of how her 12-page appellate brief beat her opponent, whose brief went the maximum 35 pages:  “I knew as soon as I saw that he took an entire page just to identify the two parties that…

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  • Federal Courts,  Legal Writing

    Blogs First – Wikis Next?

    May 11, 2007

    Its old news that courts have cited blogs in their opinions.  A compilation of such opinions is posted here by Law Blog Metrics.  That list is more than nine months old and lists citations to 27 cases citing blogs a total of 32 times. (I’m having trouble finding anything more recent.  If anyone knows of a more current compilation, email the link to me me and I will post it.) Citations to blogs should not be too surprising.  Most are, after all, commentary.  While not as formal or thorough as a law review article (to put it mildly), the principle behind citing a blog is not, to my mind, much…

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  • Legal Writing

    Professor Martin’s Short Lesson on Clarity and Succinctness on Technical issues

    May 9, 2007

    Professor Shaun Martin at the University of San Diego School of Law provides a tongue-in-cheek lesson on succinctness and style for otherwise highly technical opinions in this post at his blog, California Appellate Report.  It’s an amusing (and itself succinct) post that nevertheless illustrates the larger truth that dense, esoteric issues can be stated with flair and made understandable to non-experts in the field. Technorati Tags: legal writing, judges

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  • Ethics,  Legal Writing

    A Different Kind of Monkey Trial – How Not to Allege Judicial Bias

    May 9, 2007

    Monkeys and the law don’t seem to get along.  The famous 1925 “Scopes Monkey Trial” was the prosecution of a high school teacher who taught that mankind descended from apes.  An article linked here today by Howard Bashman at the How Appealing blog reports that a Delaware attorney was reprimanded by that state’s Supreme Court for writing in a lower court brief that, among other things, the county board whose decision he was disputing might as well have been composed of monkeys: The briefs were part of an appeal to Superior Court disputing a decision by New Castle County Board of License, Inspection & Review, in which he made several…

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  • Legal Writing

    Can Text Justification Hurt Your Case?

    May 7, 2007

    That may sound like a stretch, but I have never liked full text justification in briefs, and now New Orleans appellate attorney Raymond Ward of the (new) legal writer blog links in this post to an article about the difficulty of reading fully justified text created on a word processor.  As the linked article at Adams Drafting notes: Does justified text have anything going for it for purposes of word-processed documents? Well, its defenders will tell you that it looks “professional.” But it’s a phony professionalism, in that it comes at the expense of readability, which should be the first priority of any kind of typesetting, including word processing. The…

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  • California Procedure,  Legal Writing

    Rules Changes? What Rules Changes?

    May 3, 2007

    The California Rules of Court were reorganized and renumbered effective January 1, 2007. Yet last night, a superior court judge from a neighboring county told me that approximately half of the memoranda that cross his desk still use the outdated numbering scheme. He blames it partly on a “cut and paste” approach to brief writing. Whether it’s from cutting and pasting or not, the continued reference to old rule numbering – more than four months after the new numbering took effect – is very revealing about the lack of cite-checking being done by lawyers and their paralegals. Alarmingly so. Or are they doing their cite-checking, but using outdated code books…

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  • Appeals,  Appellate Procedure,  Briefing,  Federal Courts,  Federal Procedure,  Legal Writing

    Is it Futile to Cite Federal District Court Opinions? (Updated)

    May 3, 2007

    At How Appealing, Howard Bashman gives us this post about citing to district court opinions. He quotes a Seventh Circuit opinion decided yesterday that admonishes lawyers not to cite district court opinions, because they “lack authoritative effect,” and instead to incorporate “into their own presentations” whatever persuasive rationale is offered in the opinion. Bashman appears to doubt lawyers will heed this advice: The reality is that advocates will always regard a legal proposition that a judge has accepted — even if only a “lowly” federal district judge — as potentially more worthy of another court’s credence than a proposition for which no authority is cited. I think he’s right. And…

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