Category Archives: Appellate Law

Rhode Island Supreme Court Has No Problem With Impeachment.

11 Sunday May 2014

Posted by in Assault, Criminal Law, Evidence, Impeachment, Rhode Island Supreme Court

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Impeachable?: Supreme Court of Rhode Island Finds No Problem With Impeachment Via Old, Similar Conviction, Editor:  Colin Miller, EvidenceProf Blog

http://bit.ly/1oEpyhi

[S]o, assume that a defendant is charged with resisting arrest, and the trial is held in 2012. Also, assume that the defendant has the following convictions: assault on a police officer (1987), a 1982 assault on a police officer (1982), and simple assault (1982). If the defendant files a motion in limine, seeking to preclude the prosecution from introducing evidence of these convictions into evidence, how should the court rule? . . . .

Benchslap Open Season on Acronyms.

30 Wednesday Apr 2014

Posted by in Acronyms, Appellate Law, Bad Legal Writing, District of Columbia Circuit Court of Appeals, Legal Writing, Legalese, Readability

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Alphabet Attack, by Ross Guberman’s Legal Writing Blog

http://legalwritingpro.com/blog/alphabet-attack/

It wouldn’t be spring in America without some federal judges publicly criticizing attorneys in a genre now known as ‘benchslap.’

The offended court this time: the D.C. Circuit. The court’s target: acronyms in briefs filed in a complex telecom dispute. The benchslap: “’It is ordered . . . that the parties submit new briefs that eliminate uncommon acronyms used in their previously filed final briefs.’ The court even cited its own practice handbook for good measure: ‘[i]n briefs the use of acronyms other that those that are widely known should be avoided.’ . . .

More on Link Rot.

27 Sunday Apr 2014

Posted by in Appellate Law, Legal Technology, Link Rot, United States Supreme Court

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Stopping Link Rot: Aiming to End A Virtual Epidemic, by NPR Staff, All Tech Considered, NPR

http://n.pr/QTrCGp

I have mentioned perma.cc and the problem of link rot before. It is a good solution but not quite perfected. When I have used it here on this blog, it is not always reliable, which is disappointing for something that shows such promise. Hopefully all the kinks will be worked out soon. -CCE

Just about anyone who’s gone online has encountered the message: ‘Error 404’ or page ‘Not Found.’ It’s what you see when a link is broken or dead — when the resource is no longer available.

It happens all across the Internet, on blogs, news websites, even links cited in decisions by the Supreme Court. It’s called link rot, and it spreads over time as more pages die.

These are natural deaths; links die when the server where the page first lived has closed for business, or a filter is blocking access. It’s annoying on sites like Buzzfeed and Gawker, but it’s worse when links go rotten on judicial decisions or works of scholarship.

Jonathan Zittrain, professor of law and computer science at Harvard University, says that’s a serious problem.

‘It’s extraordinarily bad for the long-term maintenance of the information we need, say, to understand the law,’ says Zittrain, who helped create Perma.cc, a service to help judges, authors and scholars preserve links indefinitely. . . .

New Standard for Proving Sexual Harassment.

27 Sunday Apr 2014

Posted by in Appellate Law, Employment Law, Gender Discrimination, Harassment, Hostile Work Environment, Sexual Harassment

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Two New Cases Demonstrate High Bar For Proving Sexual Harassment, by Parker Poe Adams & Bernstein LLP, Lexology®, in cooperation with Association of Corporate Counsel

http://tinyurl.com/luwkehs

Not all sex-related behavior in the workplace gives rise to an actionable claim for sexual harassment. In order to violate Title VII, the actions complained of must be unwelcomed, and must create a hostile and offensive working environment based on the victim’s gender. Two new federal appellate cases show how alleged workplace behavior can be obnoxious and unwelcomed, and yet still fail to reach this threshold. . . .

South Carolina Supreme Court Gives Thumbs’ Up to LegalZoom.

27 Sunday Apr 2014

Posted by in Appellate Law, Legal Ethics, Legal Forms, Legal Technology, South Carolina Supreme Court

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LegalZoom Gets Nod From South Carolina Supreme Court, posted by Greg Lambert, Three Geeks and a Law Blog

http://www.geeklawblog.com/2014/04/legalzoom-gets-nod-from-south-carolina.html

The term ‘Access to Justice’ (A2J) is tossed around a lot in the legal world, but as the old saying goes, talk is cheap. It is common for state bar associations to step up and use another phrase to shoot down A2J projects or non-lawyers’ attempt to fill a gap in the legal process that is underserved. In most cases, it is seen as a ploy to protect the Bar Association’s members . . . at the expense of those needing help with a complicated legal system. One of the most contentious issues is on basic legal forms. Companies like LegalZoom have stepped in to create forms for the individual citizen, and have found many states are very reluctant in approving of their products and services. . . .

Today’s U.S. Supreme Court Opinion on Affirmative Action.

22 Tuesday Apr 2014

Posted by in Appellate Law, United States Supreme Court

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Evening Round-Up: Schuette v. Coalition to Defend Affirmative Action, by Kali Borkoski, SCOTUSblog

http://tinyurl.com/m8nung8

I have not yet read the entire opinion, as well as all of the separate opinions. This post provides links to many others that have already analyzed this decision and who wrote what. -CCE

This morning, a divided Court upheld an amendment to the Michigan constitution that prohibits the use of affirmative action by public universities in admissions.  Justice Kennedy announced the judgment of the Court in an opinion that was joined by the Chief Justice and Justice Alito.  Justice Scalia filed an opinion, concurring in the judgment only, that was joined by Justice Thomas, while Justice Breyer filed his own opinion concurring in the judgment. Justice Sotomayor filed a dissenting opinion (joined by Justice Ginsburg) and summarized her dissent from the bench. . . .

Journalist’s Guide to Federal Courts.

17 Thursday Apr 2014

Posted by in Bankruptcy Law, Courts, U.S. Courts of Appeal, United States Supreme Court

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A Journalist’s Guide to the Federal Courts, Administrative Office of the United States Courts

http://www.uscourts.gov/News/JournalistsGuide.aspx

Federal judges and the journalists who cover them share much common ground. One clear area of mutual interest is accurate and informed coverage of federal courts. A Journalist’s Guide to the Federal Courts is intended to assist reporters assigned to court coverage. It is the media who inform and educate the public about the courts, spark discussion and debate about their work, instill public trust and confidence in the institution and its function, and help protect judicial independence. These are worthwhile and important pursuits.

There are justifiable and distinct differences between the three branches of government and the access they grant the news media. Most of the work of federal courts is performed in open court and decisions, and in most cases court filings are available on the Internet. This primer is aimed at helping reporters who cover federal appellate, district, and bankruptcy courts – the cases, the people, and the process.

Download full report (pdf)

 

What Are The Implications of DC Circuit Upholding Citation Against Seaworld?

12 Saturday Apr 2014

Posted by in Appellate Law, District of Columbia Circuit Court of Appeals, Environment Law, OSHA

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DC Circuit Upholds OSHA Citation Against Seaworld: What Does This Mean For The Circus, Football . . . Healthcare Providers?, by Meagan Newman and Kerry Mohan, Seyfarth Shaw’s Environmental and Safety Law Update

http://tinyurl.com/lcsckk3

‘When should we as a society paternalistically decide that the participants in these sports and entertainment activities must be protected from themselves – that the risk of significant physical injury is simply too great even for eager and willing participants? And most importantly for this case, who decides that the risk to participants is too high?’ This is the question posed by Judge Kavanaugh in his dissent to the Court’s opinion in SeaWorld of Florida, LLC (‘SeaWorld’) v. Thomas Perez, (No. 12-1375), issued this morning.  . . .

Civil Appeals.

12 Saturday Apr 2014

Posted by in Appellate Law, Designations of the Record, Oklahoma Civil Appellate Procedure, Oklahoma Supreme Court

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Civil Appeals in Oklahoma, by Lori Spencer, The Haubrich Law Firm, P.C.

Continue reading →

Appellate Judges Give Advice On Winning An Appeal.

06 Sunday Apr 2014

Posted by in 5th Circuit Court of Appeals, Appellate Judges, Appellate Law, Bad Legal Writing, Brief Writing, Citations, Judges, Legal Analysis, Legal Argument, Legal Writing, Proofreading, Texas Supreme Court

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Appellate Judges Tell Dallas Lawyers How to Handle an Appeal, By Chad M. Ruback, Appellate Lawyer

http://tinyurl.com/ousooh9

The Dallas Bar Association Judiciary Committee recently hosted a panel discussion with three prominent appellate judges.  Catharina Haynes is the only federal appellate judge in the Dallas-Fort Worth area.  After years of sitting as a Dallas state trial court judge, she was appointed to sit on the Fifth Circuit Court of Appeals.  Debra Lehrmann is the only Texas Supreme Court justice from Fort Worth.  Along with Chief Justice Nathan Hecht, she is one of only two Texas Supreme Court justices who began judicial service in North Texas.  After a distinguished career in a large Dallas law firm, Elizabeth Lang-Miers serves as a justice on the Fifth District Court of Appeals, which reviews the cases from Texas state trial courts in Dallas County and five other counties.

The three panelists offered a number of helpful tips for lawyers practicing before appellate courts. . . .

The Court’s Plan for Hurricane Sandy Litigation.

05 Saturday Apr 2014

Posted by in Court Orders, Federal Judges, Insurance Law, Judges, Litigation, New Jersey District Court of Appeals

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Public Meeting Leads to Plan Speeding Hurricane Sandy Litigation, United States Courts Blog

http://tinyurl.com/obrkuue

Nearly a year and a half after Super Storm Sandy, New Jersey is seeing another wave. This time, it’s a surge in federal cases involving flood insurance carriers.

‘These cases are hitting our docket very hard,’ said Chief Judge Jerome B. Simandle, New Jersey District Court. ‘We have over 600 Hurricane Sandy cases now and we expect the final number could be as many as 2,000.’

With such a large and growing number of cases, Simandle took the lead. He called a public meeting to hear from homeowners, attorneys and other interested groups. On March 20th, the district’s Board of Judges adopted a plan for management of the Super Storm Sandy litigation, contained in a Standing Order and a 15-page Hurricane Sandy Case Management Order No. 1, which are available on the court’s website. . . .

Latest U.S. Supreme Court Opinion Rejects Campaign Spending Limits.

05 Saturday Apr 2014

Posted by in Appellate Judges, Campaign Contributions, Government, Judges, United States Supreme Court

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Supreme Court’s Rejection Of U.S. Campaign Funding Limits Opens Door For Big-Money Donors, by Lawrence Hurley, Reuters with additional reporting by David Morgan, Gabriel Debenedetti, Andy Sullivan and Jeff Mason; Editing by David Lindsey, Howard Goller and Dan Grebler

http://tinyurl.com/qhhqf9e

The U.S. Supreme Court on Wednesday struck down a key pillar of federal campaign finance law by allowing donors to give money to as many political candidates, parties and committees as they wish.

In the latest in a series of decisions by the high court that have given big-money donors more influence in U.S. elections, the justices rejected the overall limits on how much individuals can donate during a federal two-year election cycle. . . .

And

Big Sky, Big Money, FRONTLINE in collaboration with PBS Election Marketplace (video) (related to Citizens United v. Federal Election Commission)

http://tinyurl.com/laou3aq

You will find additional links related to the post above by ProPublica and FRONTLINE on the same page. -CCE

Duty to Arbitrate Survives End of Employment Contracts.

05 Saturday Apr 2014

Posted by in Arbitration, Arbitration, Collective Bargaining, Employment Contracts, Employment Law, Fair Labor Standards Act, United States Supreme Court

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Sixth Circuit Holds That Duty To Arbitrate Survives Expiration Of Employment Contract, Requires Individual Arbitration, by Gregory V. Mersol, Baker & Hostetler

http://tinyurl.com/q7yg9s5

With the Supreme Court having issued a series of decisions overruling many of the roadblocks to the enforcement of arbitration agreements in the class context, we are now seeing more courts fill in the gaps as to whether and when employers may rely on such agreements.

The latest of these is the case of Huffman v. The Hilltop Companies, LLC, Case No. 13-3938 (6th Cir. Mar. 27, 2014), which concerned the question of whether the duty to arbitrate and limits to class arbitration extend beyond termination.  In one respect, the decision was obvious, but in another, it represents the growing, if at time reluctant, acceptance by courts of the enforceability of arbitration agreements. . . .

Murder Charge Rejected in Mississippi Fetal Harm Case.

05 Saturday Apr 2014

Posted by in Criminal Law, Drug Possession, Life Term, Manslaughter, Mississippi Supreme Court, Murder

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Judge Throws Out Murder Charge in Mississippi Fetal Harm Case, by Nina Martin, ProPublica

http://tinyurl.com/k652sjc

The ruling means that the woman whose drug use had her facing a possible life term can at most be charged with manslaughter in the death of her stillborn daughter. . . . .

Judges Prefer “Plain Language.” If This Is True, Then Why Don’t We Use It?

01 Tuesday Apr 2014

Posted by in Appellate Judges, Citations, Federal Judges, Footnotes, Judges, Legal Analysis, Legal Argument, Legal Writing, Legalese, Texas Supreme Court

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 Judges on Effective Writing: The Importance of Plain Language, by Bryan Garner, Michigan Bar Journal Plain Language Committee

http://tinyurl.com/qf8fhsf

 (‘‘Plain Language’’ is a regular feature of the Michigan Bar Journal, edited by Joseph Kimble for the Plain English Subcommittee of the Publications and Website Advisory Committee. We seek to improve the clarity of legal writing and the public opinion of lawyers by eliminating legalese. Want to contribute a plain-English article? Contact Prof. Kimble at Thomas Cooley Law School, P.O. Box 13038, Lansing, MI 48901. For information about the Plain English Committee, see our website—http://www.michbar.org/generalinfo/plainenglish/home.cfm.)

Lawyers are notoriously poor at gauging what judges prefer in legal writing. Too many of us believe, for example, that judges expect us to use legalese. In 1991, when the Texas Plain-Language Committee surveyed all the state district and appellate judges in Texas, we found that more than 80 percent prefer plain language (Plaintiff complains of Defendant and says) over legalese (Now comes the Plaintiff, by and through his attorneys of record, Darrow and Holmes, and for his Original Petition in this cause would respectfully show unto the Court the following). Indeed, several judges responded to the survey with a plea that we stamp out legalese once and for all. . . .

Learning E-Filing and E-Docketing the Hard Way.

27 Thursday Mar 2014

Posted by in Appellate Law, Courts, E-Docketing, E-Filing, Federal District Court Rules, Technology, U.S. Court of Appeals for the Federal Circuit

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A Painful Lesson in the Pitfalls of E-Filing and E-Docketing, by Scott P. Stolley and Richard B. Phillips, Jr., Texas Appellate Watch

http://tinyurl.com/ma6head

As mandatory e-filing (and the accompanying switch to e-service, e-dockets, and e-notices) spreads across Texas, we need to adopt new standard practices to ensure that we fulfill our duties to our clients. An appeal pending in the Federal Circuit provides a cautionary tale that should not be ignored. . . .

Jury Selection – How To Recognize A Bad Apple When You See One.

27 Thursday Mar 2014

Posted by in Appellate Law, Implied Bias, Indiana Supreme Court, Jury Selection, Peremptory Challenges, Trial Tips and Techniques

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One Bad Apple Can Spoil the Whole Bunch. When Should a Juror, Not Be a Juror? by Richard A. Cook, The Barrister’s Toolbox – A Resource for Trial Advocacy

http://tinyurl.com/mv92klj

Jury selection is often where your case is won or lost. One bad juror can spoil your whole case. That one juror could lead the other jurors to render an adverse verdict, a compromise verdict or lead to gridlock and a hung jury. In civil cases, you often have limited peremptory challenges, where you can eliminate a juror without showing actual bias or other grounds for disqualification. So what exactly is the law? When is a judge obligated to grant your motion to strike a juror for cause? . . . .

The Meaning of “Intellectual Property”

23 Sunday Mar 2014

Posted by in Intellectual Property, Patent Law, U.S. Court of Appeals for the Federal Circuit

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The Meaning Of “Intellectual Property,” by Dennis Crouch’s Patently-O Blog

http://tinyurl.com/lcag5xs

Energy Recovery, Inc. v. Hauge (Fed. Cir. 2014) 13-1515.Opinion.3-18-2014.1– Panel: Rader, Reyna, and Wallach (author).

At the heart of this case lies the question of ‘what is intellectual property?’ Here, the answer has more than philosophical implications: a finding of contempt hinges on it.

Twenty-Five Years Ago, How Sexual Harassment Went Mainstream.

23 Sunday Mar 2014

Posted by in Appellate Law, Employment Law, Sexual Harassment, United States Supreme Court

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New Anita Hill Film Recalls When Sexual Harassment Went Mainstream, by Claire Suddath, Bloomberg Businessweek

http://tinyurl.com/o62jkwl

Twenty-five years ago, a University of Oklahoma Law School professor told the U.S. Senate Judiciary committee about the time her former boss put pubic hair on a Coke can. She talked about the kind of pornography he told her he watched, how he bragged about his penis size, and the 10 or so times he asked her on dates even though he was her boss. At one point, the nickname “Long Dong Silver” came up. For three days in October 1991, all anyone could talk about was Anita Hill, Clarence Thomas, and which one of them was lying.

There was a salacious absurdity to the Anita Hill hearings that, when we look back on them now, makes us cringe. Did we really listen to Senator Howell Heflin, Democrat from Alabama, ask a 35-year-old tenured law professor if she was “a scorned woman?” But sometimes it takes outrageous acts to force us to examine uncomfortable truths. For better or worse, Anita Hill forced America to start thinking about sexual harassment. On March 21, Anita: Speaking Truth to Power, a documentary by Academy Award–winning filmmaker Freida Lee Mock, will make us think about it again. . . .

8th Circuit Decision Raises Evidence Questions.

16 Sunday Mar 2014

Posted by in Appellate Law, Child Molestation, Criminal Law, Evidence, Federal Rules of Evidence, Rule 403, Rule 412, Rule 413, Rule 414, Sexual Assault, Speker evidence

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Reversal of Fortune: Should Suspects be Able to Introduce Reverse 413/414 Evidence?, by Colin Miller, Editor, Evidence Prof Blogger

 http://perma.cc/V3UM-C98B

[I]n United States v. Thunder, 2014 WL 944752 (8th Cir. 2014), the defendant was charged with sexual abuse of a minor and sexual abuse of a person incapable of consenting. At trial, the defendant sought to introduce the prior sexual abuse conviction of an alleged alternate suspect, but the district court deemed the evidence inadmissible under Rule 412(c)(1). This prompts two questions: (1) Why did the Eighth Circuit mention Rule 412; and (2) Is there such a thing as reverse Rule 413/414 evidence? . . . .

Fifth Circuit Ignores Forensics Scandal.

03 Monday Mar 2014

Posted by in Appellate Law, Criminal Law, Forensic Evidence, Mississippi Innocence Project

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The Fifth Circuit Turns Its Back on Forensics Scandal in Mississippi, by Radley Balko, The Washington Post, reposted in Forensic Magazine

http://tinyurl.com/m7b5hak

With a curt, three-page ruling late last month, a three-judge panel from the U.S. Court of Appeals for the Fifth Circuit denied the post-conviction petition of Tavares Flaggs, a Mississippi man currently serving a life sentence for murder.

Flaggs was convicted in large part because of the testimony of Steven Hayne, a medical examiner who for about two decades was able to monopolize the autopsy business in Mississippi. This story should really be one of the bigger criminal justice scandals in recent U.S. history. It potentially affects thousands of cases, both criminal and civil. It involves wrongful convictions, and people let off who should be behind bars. Several of the people convicted based on flawed testimony from Hayne are still on death row, in both Mississippi and in Louisiana. Flaggs’ petition, filed by the Mississippi Innocence Project, was the most comprehensive summary of what happened in Mississippi yet to get before a federal court. The Fifth Circuit panel brushed it aside in just four paragraphs. . . .

New Mandatory Cover Sheet for U.S. District of Arizona.

03 Monday Mar 2014

Posted by in Appellate Law, E-Filing, Local Rules, U.S. District Court of Arizona

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Notice of New, Automated Civil Cover Sheet (JS-44), from Newsletter, U.S. District Court, District of Arizona

Effective Monday, March 3, 2014, it will be mandatory for registered users of ECF to complete the new, automated Civil Cover Sheet (JS-44) when opening a civil case.

This automated form allows for the entry of multiple party and attorney names, provides drop-down lists for many categories and radio buttons to select the appropriate Nature of Suit. The final version includes only the selected information, resulting in a clean, easy to read document.

The automated Civil Cover Sheet (JS-44) is located in the Forms section of our website or by clicking the link below. http://www.azd.uscourts.gov/forms/js-44-civil-cover-sheet

If you have questions about ECF, take advantage of the experience of others by browsing our Frequently-Asked Questions by clicking on the link below, or copy and paste into your browser: http://www.azd.uscourts.gov/faqs/ecf.

[Emphasis added.]

From The Michigan Bar Journal, The True Meaning of “SS” And More.

02 Sunday Mar 2014

Posted by in Affidavits, Appellate Judges, Appellate Law, Disaster Preparedness, Document Retention, Family Law, Law Office Management, Legal Writing, Notary Jurat, Paternity

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Michigan Bar Journal, 93 Mich. B. J. 2 (February 2014)

http://www.michbar.org/journal/home.cfm

In this post, I had planned to focus on only one article from the Michigan Bar Journal’s Plain Language Committee — “After Seven Centuries, the True Meaning of SS,” by Thomas Selden Edgerton. But, after seeing the quality of the other articles, I could not choose just one. So, here you will also find:

The 2012 Revocation of Paternity Act, by Audra McClure;

A Sound Record Retention Policy: A Matter of Self-Preservation, by Michael J. Sullivan and JoAnn L. Hathaway;

A Spiritual Focus Can Strengthen Wellness, by Molly Dean; and

Book Review: Appellate Practice Compendium, reviewed by Phillip J. DeRosier.

-CCE

Oklahoma’s 2014 Official Citation Change – What Does it Mean?

02 Sunday Mar 2014

Posted by in Citations, Legal Writing, Oklahoma Civil Appellate Procedure, Oklahoma Supreme Court, Public Domain Citations, Uniform Electronic Legal Material Act

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Oklahoma Makes It Official (But What Does That Signify?), by Peter Martin, Citing Legally Blog

http://citeblog.access-to-law.com/?p=107

For over 16 years Oklahoma appellate courts have attached non-proprietary, print-independent citation data to their decisions at the time of release, placed those decisions online at a public site, and required lawyers to cite state precedent using this contemporary system. Moreover, setting Oklahoma apart from other neutral citation pioneers, the judiciary staff applied neutral citations retrospectively to all prior decisions rendered during the print era, placed copies of them online as well, and encouraged but did not require that they also be cited by the new system.  Until this year, however, the print reports of the National Reporter System remained the “official” version of Oklahoma decisions.  As of January 1, 2014, sixty years after the Oklahoma Supreme Court designated the West Publishing Company as the ‘official publisher’ of its decisions, it revoked that designation. 

Can A Prisoner Get An Expert Witness Under Federal Rule 706 For His Medical Condition?

02 Sunday Mar 2014

Posted by in Appellate Law, Criminal Law, Evidence, Federal Rules of Evidence, Rule 706, Summary judgment

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Is There a Doctor in the House?: 11th Circuit Remands After Lower Court’s Erroneous Rule 706 Ruling, posted by Colin Miller, EvidenceProf Blog

http://tinyurl.com/n57dzzo

This post discusses an Alabama District Court’s and 11th Circuit Court of Appeal’s interpretation of Rule 706(a) of the Federal Rule of Evidence in a prisoner’s lawsuit in which he claims that he has Hepatitis C, his illness is not being treated and, without treatment, he will become sicker and die. -CCE

Federal Rule of Evidence 706(a) provides that:

On a party’s motion or on its own, the court may order the parties to show cause why expert witnesses should not be appointed and may ask the parties to submit nominations. The court may appoint any expert that the parties agree on and any of its own choosing. But the court may only appoint someone who consents to act.

As you can see from the language of Rule 706(a), there is nothing in the Rule’s text limiting expert appointment to either criminal or civil cases. So where did that leave the plaintiff in Gillentine v. Correctional Medical Services, 2014 WL 701575 (11th Cir. 2014)?