Rules of Civil Procedure, Rules of Family Court Procedure, and Rules of Civil Appellate Procedure were updated effective September 1, 2020. -CCE
Coronavirus isn’t the Only Infection to Worry About Right Now, by Lance Caughfield, Appellate Advocacy Blog
Mr. Caughfield reports that the Texas Office of Court Administration was attacked by ransomware in May. According to Mr. Caughfield, Texas refused to pay the ransom and shut down their systems. They are doing their best to work around the problem.
In my state, we have had our share of navigating changing rules and procedures due to COVID 19. I cannot imagine the disruption caused by attacking the court’s online systems. Imagine trying to find out the status of your case using social media.
Mr. Caughfield, a former IT professional, gives insight about how ransomware works and what we can do to keep our computer systems safe. It is excellent advice and well worth the read. -CCE
On Your Feet: Some Simple Steps to Presenting in Person, by Joseph Regalia, Appellate Advocacy Blog
Even though this post is written for attorneys who want to hone their oral argument skills, I think it also works for those who speak or teach, regardless of your audience. -CCE
Changes to the Tenth Circuit Rules and Other Information (with hat tip to Megan Barrett, Kansas Paralegal Association)
Please take note that the 2020 Rules for the U.S. District Court for the Tenth Circuit will change as of January 1, 2020. Read more about these changes in the announcement from the Court below and the first link provided above. Now is a good time to review these changes and update your 10th Circuit docketing cheat sheets.
If you do not frequently file federal appeals, please note the New Or Infrequent Attorney Filer (look to the right of the web page screen) and Quick Reference Guide button (see second and third links above). You will find forms and tips for those who do not regularly practice in this federal appellate court. To help learn these rules and formats, I recommend revising these guides yourself with the new court rules. This exercise will be well worth your time and help you to memorize the 2020 rule changes. -CCE
INFORMATION PROVIDED BY THE 10th CIRCUIT COURT CLERK:
The 2020 Tenth Circuit Rules take effect January 1, 2020. Among other changes, Tenth Circuit Rules 30 and 31 have been revised to alter the process for submitting hard copies of formal merits briefs and appendices. For all formal merits briefs and appendices filed on or after January 1, 2020 (regardless of when an appeal was filed), counsel should NOT submit the required hard copies until the Clerk’s Office confirms via minute order that the electronically-filed brief and appendix comply with all applicable federal and local rules. Hard copies must be received in the Clerk’s Office within five business days from entry of the minute order confirming compliance, which will also set a deadline for the next brief (if any) to be filed.
If an electronically-filed brief or appendix is not compliant, the Clerk’s Office will issue a deficiency notice giving counsel three business days to electronically file a compliant brief/appendix. Errata sheets will no longer be accepted; counsel must correct deficiencies by re-filing the entire brief/appendix. After the Clerk’s Office confirms that the refiled brief/appendix is compliant, the Clerk’s Office will issue the aforementioned minute order setting (1) the five-business-day deadline for receipt of hard copies; and (2) a deadline for the next brief to be filed.
Hard copies of supplemental/ memorandum briefs are not required unless the court expressly orders otherwise. Hard copies of motions, responses, replies, and bail memorandum briefs/appendices are not required. See 10th Cir. R. 27.2 and 9.5.
The full text of the 2020 Tenth Circuit Rules, and a memorandum detailing all 2020 revisions, can be found at https://www.ca10.uscourts.gov/clerk/rules. Please contact the Tenth Circuit Clerk’s Office (303-844-3157 | Clerk@ca10.uscourts.gov) with any questions or concerns.
Chief Deputy Clerk
Families of Sandy Hook Victims May Sue Gunmaker Over Marketing Practices, Top State Court Says, by Debra Cassens Weiss, ABA Journal
On December 14, 2012, Adam Lanza killed 20 twenty first-grade children, 6 adults, his mother, and himself in Newtown, Connecticut, with a Remington Bushmaster semi-automatic rifle and other guns. In 2014, the children’s families sued Remington and others. That wrongful death civil lawsuit was dismissed in 2016 relying on federal law that protects gun manufacturers and retailers. The families appealed. In a recent surprise decision, the Connecticut Supreme Court ruled 4-3 to reverse and remand the case to the state trial court relying on Connecticut’s Unfair Trade Practices Act (CUTPA).
The 2005 Protection of Lawful Commerce in Arms Act (PLCAA) has protected gun makers and retailers against civil liability – until now. In its analysis, the Connecticut Supreme Court specifically noted that (1) the Bushmaster is a military-style rapid semiautomatic fire rifle with a large magazine; (2) the force and velocity of its bullets create a shock wave and catastrophic injuries; and, (3) the shooter killed 26 people in less than 4 and a half minutes. The Court dismissed many of plaintiffs’ claims. But, it agreed with plaintiffs’ argument that defendants’ advertising and the way in which it did it was a CUTPA exception for illegal marketing practices.
Plaintiffs can proceed with their theory that Remington knowingly marketed and promoted the gun ‘for civilians to use to carry out offensive, military style combat missions against their perceived enemies,’ the court said.
This is a case to watch. Expect much speculation about the impact of this ruling and the case’s eventual outcome. It has the potential to be a game changer for gun makers, distributors, retailers, and victims of gun violence. -CCE
Judiciary Has Funds to Operate Through Jan. 31, United States Courts (Published on January 22, 2019)
If you practice in any federal court, please note. Pay attention to your case’s court website and have a backup strategy. -CCE
The Administrative Office of the U.S. Courts (AO) now estimates that federal courts can sustain funded operations through Jan. 31, 2019. The Judiciary continues to explore ways to conserve funds so it can sustain paid operations through Feb. 1. No further extensions beyond Feb. 1 will be possible. The Judiciary previously had revised its estimate for exhausting available funds from Jan. 18 to Jan. 25.
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Should funding run out before Congress enacts a new continuing resolution or full-year funding, the Judiciary would operate under the terms of the Anti-Deficiency Act, which permits mission critical work. . . . Each court would determine the staff necessary to support its mission critical work.
In response to requests by the Department of Justice, some federal courts have issued orders suspending or postponing civil cases in which the government is a party, and others have declined to do so. Such orders are published on court internet sites. Courts will continue to conduct criminal trials.
The Case Management/Electronic Case Files (CM/ECF) system remains in operation for electronic filing of documents, as does PACER, which enables the public to read court documents.
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Updates will be provided as more information becomes available.
Don’t Mock A Legal Argument If You’re Completely Wrong, by Joe Patrice, Above the Law Blog
Mark Twain said, “It is better to keep your mouth closed and let people think you are a fool than to open it and remove all doubt.” It is always awkward when the court benchslaps your legal argument.
There are useful lessons here for all of us, not just State Farm. First, when your client is relying on the terms of a contract, note its details before you say something you will wish you hadn’t. Second, be careful with hyperbole and sarcasm when writing a brief for an appellate court.
I agree with Mr. Patrice. The opening paragraph of the Sixth Circuit Court’s opinion is worth repeating. -CCE
There are good reasons not to call an opponent’s argument ‘ridiculous,’ which is what State Farm calls Barbara Bennett’s principal argument here. The reasons include civility; the near-certainty that overstatement will only push the reader away (especially when, as here, the hyperbole begins on page one of the brief); and that, even where the record supports an extreme modifier, ‘the better practice is usually to lay out the facts and let the court reach its own conclusions.’ But here the biggest reason is more simple: the argument that State Farm derides as ridiculous is instead correct.
Six Benchslaps to Brighten Your Day, by Lisa Needham, Lawyerist.com
As Ms. Needham describes it, “[f]or the unfamiliar, benchslap originally referred to one judge snarking at another, but now refers to any time a member of the bench crushes an attorney with wit, rage, or both.” It is also an excellent example of what not to do. -CCE
Historical Supreme Court cases now online thanks to Library of Congress (and Hein & Co.), by Joe Hodnicki, Law Librarian Blog
According to the press release, ‘More than 225 years of Supreme Court decisions acquired by the Library of Congress are now publicly available online – free to access in a page image format for the first time. The Library has made available more than 35,000 cases that were published in the printed bound editions of United States Reports. … The digital versions of the U.S. Reports in the new collection were acquired by the Law Library of Congress through a purchase agreement with William S. Hein & Co. Inc. The acquisition is part of the Law Library’s transition to a digital future and in support of its efforts to make historical U.S. public domain legal materials freely and easily available to Congress and the world.’ You can access the collection here.”
More Historical Statutes at Large Available Online, by Jennifer González, In Custodia Legis, Law Librarians of Congress
The individual statutes for congresses 68 through 81 are now available on the Law Library of Congress website. This addition closes the gap for the years for which the Statutes at Large were not available on the Internet. As with the volumes for previous congresses, each of these statutes is tagged with tailored, descriptive metadata to help users search and browse by facets.
SCOTUS Notes transcribes notes written by Supreme Court justices during conference meetings, posted by Joe Hodnicki, Law Librarian Blog (with hat tip to BeSpacific Blog)
We can read the U.S. Supreme Court justices’ handwritten notes during their deliberations? What will this mean for legal analysis and where do I sign up? -CCE
SCOTUS Notes is the newest crowdsourcing project under the Zooniverse platform originated at the University of Minnesota. ‘In this project, members of the public transcribe handwritten notes from U.S. Supreme Court justices. Unlike members of Congress, justices cast their votes in complete privacy during weekly conference meetings. Only justices are allowed in the Chief Justice’s conference room when they discuss, deliberate, and make initial decisions on cases that focus on some of the nation’s most pressing legal issues. The only record of what has been said, and by whom, is provided by the handwritten personal notes the justices themselves take during conference. These crucial documents detail the discussions and debates that took place in thousands of cases spanning multiple decades.’
Most Popular South Carolina Blawgs, Blawg Search, Justia
For my paralegal friends in South Carolina, here’s the top legal blogs in South Carolina sorted by popularity. There’s a little bit of everything here, and several caught my eye. It will take a while to digest it all. I recommend bookmarking this site, and visiting it often. -CCE
The U.S. Supreme Court’s Style Guide, by Louis J. Sirico, Jr., Legal Skills Prof Blog
When I was starting out in my paralegal career, I created cheat sheets for filing motions and briefs in state and federal district courts. The rules, especially for federal circuit court briefs, are complex and require checking multiple sections, local rules, e-filing rules, and your judge’s personal court rules (if any exist). I found these cheat sheets were the most popular handouts at my legal writing courses and paralegal seminars, and included them in the Appendix of Practical Legal Writing for Legal Assistants.
Regardless of where you are in your paralegal career, I recommend creating a similar cheat sheet for yourself. Updating your cheat sheet when the rules change force you to examine every addition or revision. Keeping your cheat sheet current will reinforce the rules in your mind, and will help you stay on top of your game.
When it came to analyzing rules for the U.S. Supreme Court, I passed. I left it to the professionals who format and print these briefs for a living. Now, at last, the U.S. Supreme Court’s Style Guide is available for all. -CCE
Benchslap Of The Day: No More Mr. Nice Guy, by David Lat, Above The Law Blog
It’s Monday, which makes it a good day for a good old-fashioned benchslap!
Our Judge for today’s benchslap is none other than newly appointed Justice Neil Gorsuch of the United States Supreme Court, back when he was at the United States District Court for the Tenth Circuit. Judge Gorsuch’s opinion is an excellent lesson on the basic elements of a successful appeal. An immigration lawyer ignored the Court’s local rules. A serious mistake, and a thorough benchslap. -CCE
Contrasting Introductions in Kolbe v. Hogan, by Megan E. Boyd, Lady (Legal) Writer Blog
The Fourth Circuit Court of Appeals recently held that Maryland’s Firearm Safety Act (FSA), which bans AR-15s, other military-style rifles, and certain large-capacity magazines, is constitutional and does not violate the Second or Fourteenth Amendments.
This decision is controversial for a number of reasons (aren’t all cases involving guns?), but the introductions in the majority and dissenting opinions are particularly interesting. You’d expect an opinion about the constitutionality of a firearm-related statute to start with an exposition of Second Amendment law or a discussion of the specific language of the statute itself.
Not this majority opinion. It starts with a literal bang . . . .
Posner criticizes ‘verbosity’ in appeals briefs in decision upholding closed voir dire, by Debra Cassens Weiss, Appellate Practice, ABA Journal.com (with hat tip to William P. Statsky)
Judge Richard Posner is a well-known 7th Circuit jurist, legal writing scholar, and prolific author. Knowing this, it is puzzling why the appellate briefs for both sides were over 200 pages each. Yes, Judge Posner had something to say about it. -CCE
The Presidents and the Constitution: A Living History, by Ken Gormley
If you are interested in constitutional law, I highly recommend this book. It was published in May, 2016, and can be found in your public library or ordered from any book store. It is an interesting discussion of presidential decisions or actions and the constitutional implications.
Here is just one example. If you grew up during the time of Watergate, you may find this particularly interesting. Like most people, I had always assumed that President Gerald Ford’s pardon of Richard Nixon gave Nixon a “get out of jail free” card. My guess is that this decision caused Ford the election to his first full term as President.
When the author interviewed Gerald Ford for the book, of course Nixon’s pardon came up. Ford said that he had asked a young lawyer, Denton Decker, to research all the nuances and possible issues that might occur if Ford were to pardon Nixon. The idea of pardoning Nixon was very unpopular. Ford wanted to know what possible precedent and repercussions a pardon might mean.
Decker finds Burdick v. United States, 236 U.S. 79 (1915). Burdick holds that, if one accepts a pardon, it is an admission of guilt.
Ford sent Decker to San Clemente to Nixon’s home to present the offer of a pardon to Nixon and Nixon’s lawyer. Decker gave Nixon a Miranda warning and told him that, if Nixon accepted a pardon, it would be an admission of guilt. Nixon at first didn’t want to accept the pardon because he understood what it meant. Another issue on the table at the same time was the creation of a presidential library for Nixon’s papers, which the author says Nixon badly wanted. After first resisting, Nixon decided to take the pardon.
When Ford pardoned Nixon, he thought he had given the public exactly what it wanted. Instead, it was seen as letting Nixon off, even though Nixon was obviously guilty. When interviewed by Mr. Gormley for this book, Ford was still frustrated that the public had never seemed to understand that, by accepting a pardon, Nixon admitted his guilt.
An interesting piece of history and a good read. -CCE
What Is Obviously Wrong With The Federal Judiciary, Yet Eminently Curable, Part I, by Richard Posner, 188 19 GREEN BAG 2D 187 (with hat tip to William P. Statsky) (The Green Bag is Quarterly Legal Journal dedicating to good legal writing, supported in part by the George Mason University School of Law)
If you’re looking for a good Bluebook bashing, here it is. -CCE
At the level of form, the first thing to do is burn all copies of the Bluebook, in its latest edition 560 pages of rubbish, a terrible time waster for law clerks employed by judges who insist as many do that the citations in their opinions conform to the Bluebook; also for students at the Yale Law School who aspire to be selected for the staff of the Yale Law Journal – they must pass a five-hour exam on the Bluebook. Yet no serious reader pays attention to citation format; all the reader cares about is that the citation enable him or her to find the cited material. Just by reading judicial opinions law students learn how to cite cases, statutes, books, and articles; they don’t need a citation treatise. In the office manual that I give my law clerks only two pages are devoted to citation format. [Footnotes omitted; emphasis added.]
Galactic Disputes: Judges Channel the Wisdom of Star Wars, by Anna Massoglia, Lawyerist.com©
Making legal jargon understandable to the general masses is a big job. Some more creative judges think outside of the box to get their point across through pop culture references. With all of the hype surrounding Star Wars: The Force Awakens, it should come as no surprise that Star Wars references are seeping into judicial opinions.
Oklahoma Accepts Computer Illiteracy As Mitigation: Censure Imposed, by Mike Frisch, Legal Profession Blog (with hat tip to William P. Statsky!)
No doubt you have seen posts here and elsewhere that discuss whether computer competency is now required due diligence for attorneys. The Oklahoma Supreme Court bench-slammed an older attorney for his lack of computer literacy. But, before you make up your mind, read the dissent. -CCE
Dis-Orderly Conduct: Hospital Security Guard Fired After Incident With Psychiatric Patient Cannot Advance Discrimination Claims, by Alexis B. Kasacavage, Bingham Greenebaum Doll, LLP Blog
Interesting analysis on how the courts came to the same conclusion but for different reasons. -CCE
In Loyd v. Saint Joseph Mercy Oakland, et al., the Sixth Circuit recently upheld a Michigan district court’s decision to dismiss a 52-year-old African-American female security guard’s age, race and sex discrimination claims arising from her discharge following an incident with a combative psychiatric patient at the hospital where she worked.
Same Story, New Ending: Court Overturns Order Sealing Chrysler Defect, by Jennifer Bennett, Public Justice Blog
It’s the same story, over and over again: Corporation conceals deadly defect. Someone dies, and their family sues. Corporation settles quietly. Court records are sealed. Nobody finds out. More people are hurt; more people sue; more settlements are reached; more records are sealed. Lather, rinse, repeat.
This is how GM was able to hide an ignition switch defect that killed over a hundred people for more than a decade. It’s how Remington concealed evidence that its most popular rifle can fire without anyone pulling the trigger. . . .
OSCN Kicks off the New Year with Nine more District Courts added to its Case Search, OSCN (Oklahoma Supreme Court Network)
OSCN has been around a while. Oklahoma actually has two websites and, between the two, you can access every county in the state. The second website, ODCR, is useful, but not as sophisticated as OSCN. Both websites allow you to look up cases by county, name, or case number. OSCN allows free access to the hyperlinks that give you access to filed documents. ODCR charges a monthly fee for that access.
The larger counties are found on OSCN. With some exceptions, you can access everything that has been filed in the case in a relatively short time after it was filed. ODCR can be a bit slower to post filed documents.
Happily nine more county district courts have moved to OSCN, which is discussed more fully in this post. OSCN provides more than a method to access a court case’s docket and the documents filed in the case. It is also a great resource for Oklahoma case law, statutes, Attorney General opinions, and more. A very handy tool. -CCE
On January 7, 2016, the Oklahoma Supreme Court added nine additional district courts to its online case search. With this addition, visitors to the OSCN website now have the capability to search public records in 34 district courts and in the Appellate Court. This free service provides the public a convenient way to search for court records by case number, name, date of birth, and other identifiers. Search results are fast, and case information is available almost immediately after being processed by the court clerk’s office. In addition to online case information, site visitors may view court-related documents online; however, documents availability will vary by district court. . . .