Rules of Civil Procedure, Rules of Family Court Procedure, and Rules of Civil Appellate Procedure were updated effective September 1, 2020. -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
Day 3: Your First Five Questions (times four): A Practical Guide to the Amended Federal Rules of Civil Procedure – Preservation, by Karin Scholz Jenson, Gary Levin, Robert J. Tucker, James A. Sherer and Jonathan Forman, Discovery Advocacy Blog
This is the third of five posts discussing the current amendments to the Federal Rules of Civil Procedure. The Rules went into effect December 1, 2015. Today’s post addresses “Preservation.” -CCE
Amended Rules of Federal Civil Procedure, Discovery Advocate Blog, Early Case Assessment, Gary Levin, James A. Sherer, Jonathan Forman, Karin Scholz Jenson, Preservation, Robert J. Tucker, Rule 16 Conference
Day 2: Your First Five Questions (times four): A Practical Guide to the Amended Federal Rules of Civil Procedure – Early Case Assessment, by Karin Scholz Jenson, Gary Levin, Robert J. Tucker, James A. Sherer and Jonathan Forman, Discovery Advocate Blog
The current amended Federal Rules of Civil Procedure—and, in particular, those that address the practice of civil discovery—are the product of five years of development, debate, and, of course, dialogue. Now that the Rules are set to be implemented on December 1, 2015 – and they apply to pending cases where ‘just and practicable’ — the focus among attorneys and their clients has changed from what the Rules should say to how they should work. While debates remain as to how certain parts of the Rules will wear-and-tear once put to the test in discovery, there are clear indications within the text of the Rules (with some help from the Committee Notes to the Rules and the contributions of judges and other writers) as to how the Rules will apply. . . .
Today we review: Early Case Assessment.
A Lawyer Way Out Of Her League Gets Benchslapped By Frustrated Judge, by Kathryn Rubino, Above The Law Blog
The case did not seem suspicious. A commercial painter claimed he had not been paid for work hired by a building manager. The lawyer took the painter’s case. Unfortunately, under oath, her client admitted that he had faked his evidence with forged invoices.
No one was surprised when the trial court imposed sanctions. The surprise came when the lawyer appealed the case with a badly written brief. The lawyer only made it worse when she submitted her corrected brief to the Court. The judge’s response is a classic benchslap. -CCE
Federal Rules of Civil Procedure, Legal Information Institute, Cornell University Law School
The full text of every federal civil procedure rule, including Notes and Committee Notes. -CCE
Current Listing of States That Have Enacted E-Discovery Rules, Electronic Discovery Law, K&L Gates Blog
K&L Gates keeps this list of state’s e-discovery rules constantly updated. I love one-stop clicking and appreciate the reminder to look for your judge’s local rules, forms, and guidelines. -CCE
More and more states are adopting statutes and court rules addressing the discovery of electronically stored information. Here is a current list with links to the relevant provisions. Please note also that many judges have created their own forms or have crafted their own preferred protocols for e-discovery. These are generally available on the website of the individual judge and care should be taken to ensure you are aware of any such forms or guidelines in any court you may appear in. . . .
How to Format an Appellate Brief, by Deborah Savadra, Lawyerist Blog
(Deborah Savadra is editor and chief blogger at Legal Office Guru, which offers The WordPerfect Lover’s Guide to Word as well as Microsoft Office video tutorials. You can follow her on Twitter at @legalofficeguru.)
Appellate briefs are not a project for beginners. And, regardless of what you read in this tutorial, you must follow your appellate court rules to the letter.
When your court’s rules tell you that it wants citations done a certain way, it mean exactly that. If the court’s rules say a brief must not go over a certain number of pages, do not even think about “fudging” the rules by changing the font, page size, or line spacing.
You see, all courts, not just appellate ones, write local rules for a reason. Whatever “trick” you may try to skirt around those rules, that court has already seen it and knows it when it sees it again. Courts take their local rules seriously, and so should you.
There are many posts and articles posted on my blog about the strategy and nuances of writing appellate briefs, as well as many excellent books on the subject. This tutorial will help you with the nuts and bolts of writing the bare bones, which is always useful regardless of your writing proficiency.
I also highly recommend Ms. Deborah Savadra’s blog, Legal Office Guru. She does an excellent job. -CCE
Beyond Biglaw: The End of Paper Filing in the S.D.N.Y., by Gaston Kroub, Above The Law Blog
Yesterday marked the beginning of a new era for those who file civil cases in the Southern District of New York (S.D.N.Y.). Considering its status as one of the nation’s oldest, most prestigious Districts Courts, with a corresponding docket full of high-profile civil (and criminal) cases, the change from ‘paper filing’ to electronic filing is an important one. The announcement that the District would be going to electronic filing was in itself a bit surprising, considering that the clerk’s office and judges had resisted the temptation for many years. But change is constant, and starting yesterday [June 9, 2015], filing civil cases in the S.D.N.Y. will be done electronically in the vast majority of cases. . . .
It “May Appear to Some to Be a ‘Rant’ of Sorts,” by Kevin Underhill, Lowering the Bar Blog
Okay, there’s no question that the person who wrote this document had some issues to get off her chest. We all need to express ourselves. Some of us just do it differently than others. Regardless of what has happened in this case, this reaction over the top.
This is probably a good time to mention that this is not the way to persuade the court to do what you want. -CCE
In this Facebook post, Tamah Jada Clark, the author of the now-legendary pleading entitled ‘To F— This Court And Everything That It Stands For,’ expresses puzzlement as to why that pleading ‘has now, apparently, become a ‘big deal.’ She also suggests that ’there is a lot of ambiguity and confusion as to what exactly has taken place heretofore to provoke what may appear to some to be a ‘rant’ of sorts.’
That may appear to some to be an understatement of sorts.
Clark suggests in the post that she ‘will take time to address the matter’ in the near future, and I’m certainly looking forward to that, but she does offer a couple of justifications. First, she argues that the incident is being exaggerated, saying that the ‘Notice [To F— This Court And Everything That It Stands For] is one of MANY documents I filed with the court and it only represents less than 1% of what has taken place.’ I know what you mean. You do everything right and then just ONCE you snap and file a nine-page profanity-filled diatribe telling a federal judge that he ‘sucks nuts’ and should ‘die,’ and then they never let you live it down.
Second, she claims that the judge has treated her unfairly all along and, oddly, that the judge has not allowed her to express herself. . . .
Check Your Briefs For Acronym Overuse, DC Circuit Clerk Tells Lawyers In Campaign Finance Case, by Debra Cassen Weiss, ABA Journal
Acronyms continue to bedevil the U.S. Court of Appeals for the D.C. Circuit.
Parties before the court are advised in circuit rules to avoid little-known acronyms; lawyers who didn’t heed the advice were called out in a 2012 opinion. Now the clerk’s office is doing its part to police the briefs. . . .
Court Rules on iPhone, iPad Use, by Jeff Richardson, iPhone J.D. Blog (with hat tip to Ray Ward, Louisiana Civil Appeals Blog)
If there are rules for or against using any type of technology in a courtroom, you will normally find the court’s preference in its local rules. Courts don’t write local rules just for fun. They mean it when they say they don’t like something. If your court clearly states in its local rules that certain types of technology are not tolerated, don’t temp fate by assuming that you will be the exception.
Please note the comments at the end of the article. There is more valuable information about other court rules. -CCE
There are countless ways that an iPhone and iPad can be useful to an attorney while in court — whether you are at counsel table or just monitoring proceedings from the cheap seats in back. I often use my iPhone to look up a statute, check my calendar, get some information from an email, or remind myself of the name of another attorney in the courtroom. I often use my iPad to look at a case cited by an opponent, review the key part of an exhibit or transcript, or take notes. But you cannot do any of this unless the court lets you use electronic devices in the courtroom. I remember a time many years ago when the Eastern District of Louisiana did not allow any cell phones, even if turned off, and if my Palm Treo was still in my pocket, I had to walk back to my office, a few blocks away, and leave it there. Many courts are now more lenient, but attorneys should not just assume that it is okay to plan to use an iPhone and iPad in court. Instead, it is wise to first determine if there is an applicable court rule on the issue.
I write about this today because Ray Ward, an appellate attorney at my law firm, has a case that is soon set for oral argument before the U.S. Fifth Circuit, and in connection with that case, yesterday he received a notice from the Fifth Circuit of a new policy on electronic devices in the courtroom. Ray wrote about the notice (and attached a copy) in this post on his Louisiana Civil Appeals blog. In short, you can now have an iPhone or iPad in the courtroom, but it must be turned off unless you are presenting argument or at counsel table. And even then, you cannot take pictures or video, nor can you use social media. . . .
Paragraphs and Indentation Formatting for Persuasive Writing, by Collin Walke, Vol. 86 OBJ No. 5 (2014).
Contrary to that pesky little voice in your head at this very moment, formatting is not a boring topic and is absolutely critical when writing a legal brief. Aside from the technical rule requirements for formatting briefs, which will be discussed in greater detail below, formatting is essential for persuasion. One of the best legal writers I have ever had the privilege of working with has a paperweight on his desk that reads: ‘Good writing is clear thinking made visible.’ Without good formatting, quality content will be lost in the mire of facts, law and argument.
The point of this article is to outline what good formatting looks like. First, the brief must be written in accordance with the formatting rules of your particular court. A brief for the district court of Oklahoma County will look different from a brief for the Western District of Oklahoma. Second, the format of the brief must be laid out so that it assists the reader in understanding your position. Finally, your format should match the needs of the particular brief. . . .
[Emphasis added.] Continue reading
Local Rules, Forms and Guidelines of United States District Courts Addressing E-Discovery Issues, Electronic Discovery Law Blog, published by K&L Gates
No doubt many of you have already have bookmarked this site. K&L Gates compiled this comprehensive list of local rules, forms and guidelines for U.S. District Courts and U.S. Bankruptcy Courts. At the bottom of their post, you will find a link that will take you directly to the U.S. Court’s website of all federal court rules. Thank you, K&L Gates. -CCE
Local Rules, Forms and Guidelines of United States District Courts Addressing E-Discovery Issues
Many United States District Courts now require compliance with special local rules, forms, or guidelines addressing the discovery of electronically stored information. Below is a collection of those local rules, forms and guidelines, with links to the relevant materials. Please note also that many individual judges and magistrate judges have created their own forms or have crafted their own preferred protocols for e-discovery. These are generally available on the website of the individual judge or magistrate judge and care should be taken to ensure you are aware of any such forms or guidelines in any court you may appear in.
Federal Rules of Practice and Procedure, United States Courts (with hat tip to Andrea Duncan, RP!)
The following rules became effective December 1, 2014:
- Doc. 113-161 – Amendments to the Federal Rules of Appellate Procedure (pdf)
- Doc. 113-165 – Amendments to the Federal Rules of Bankruptcy Procedure (pdf)
- Doc. 113-163 – Amendments to the Federal Rules of Civil Procedure (pdf)
- Doc. 113-162 – Amendments to the Federal Rules of Criminal Procedure (pdf)
- Doc. 113-164 – Amendments to the Federal Rules of Evidence (pdf)
Did You Notice That?: 2nd Circuit Excuses Lack of Written Notice Under Rule 902(11), by Evidence ProfBlogger, Editor: Colin Miller, EvidenceProf Blog
The original or a copy of a domestic record that meets the requirements of Rule 803(6)(A)-(C), as shown by a certification of the custodian or another qualified person that complies with a federal statute or a rule prescribed by the Supreme Court. Before the trial or hearing, the proponent must give an adverse party reasonable written notice of the intent to offer the record — and must make the record and certification available for inspection — so that the party has a fair opportunity to challenge them.
So, what happens if a party does not give reasonable written notice of its intent to offer a business record into evidence but there is evidence that the opposing party had actual notice of this intent? That was the question addressed by the Second Circuit in its recent opinion in United States v. Komasa, 2014 WL 4233396 (2nd Cir. 2014). . . .
Recent Rule Orders, Minnesota Judicial Branch
The Minnesota Courts have been busy. Below you will see rule changes that are already in effect. Others will be in effect in the near future. For those practicing in the Minnesota appellate courts, state civil and criminal courts, and juvenile courts, this is a “must read.” -CCE
06-12-2014 (Effective July 1, 2014) Supreme Court Promulgates Amendments to the Rules of Juvenile Protection Procedure and the Rules of Adoption Procedure.
03-10-2014 (Effective July 1, 2014) Court of Appeals Issues Standing Order Regarding Paper Copies of Briefs
02-28-2014 (Effective July 1, 2014) Supreme Court Issues Standing Order Regarding Paper Copies of Briefs
02-28-2014 (Effective July 1, 2014) Supreme Court Promulgates Amendments to the Rules of Civil Appellate Procedure
12-31-2013 (Effective December 31, 2013) Supreme Court Promulgates Amendments to the Minnesota Code of Judicial Conduct
12-06-2013 (Effective July 1, 2014) Supreme Court Promulgates Amendments to the Minnesota State Board of Continuing Legal Education
12-03-2013 Supreme Court Orders Amendments to General Rules Of Practice for the District Courts. Except with respect to Minn. Gen. R. Prac. 304.02 and 304.03, the amendedments are to be effective immediately. The amendments to Minn. Gen. R. Prac. 304.02 and 304.03 are to be effective on January 1, 2014.
08-06-2013 (Effective immediately) Supreme Court Promulgates Amendments to the Student Practice Rules
07-24-2013 (Effective immediately) Supreme Court Promulgates Amendments to the Rules Governing Civil Actions, Forms 145.1 and 145.2
06-13-2013 (Effective September 16, 2013) The Supreme Court Amends Order Promulgating Amendments to the Rules of Practice for the District Courts regarding mandatory eFiling and eService. The effective date has been amended to September 16, 2013.
06/07/2013 (Effective September 1, 2013) Supreme Court Promulgates Amendments to the Rules of Practice for the District Courts regarding Mandatory E-Filing and E-Service
05/08/2013 (Effective July 1, 2013) Supreme Court Adopts Amendments Authorizing Expedited Civil Litigation Track Pilot Project
03/04/2013 (Effective May 1, 2013) Supreme Court Promulgates Amendments to the Student Practice Rules
02/04/2013 (Effective July 1, 2013) Supreme Court Adopts Amendments to the Rules of Civil Procedure and General Rules of Practice Relating to the Civil Justice Reform Task Force.
01/17/2013 (Effective February 1, 2013) Supreme Court Promulgates Amendments to the Rules for Admission to the Bar Regarding Uniform Bar Examination and Rule 4B
01/17/2013 (Effective February 1, 2013) Supreme Court Promulgates Amendments to the Rules for Admission to the Bar Regarding House Counsel Pro Bono
01/17/2013 (Effective February 1, 2013) Supreme Court Promulgates Amendments to the Rules of Criminal Procedure Amending Rule 23.05
10/15/2012 (Effective December 1, 2012) Supreme Court Promulgates Amendments to the Rules of Juvenile Delinquency Procedure Authorizing ECourtMN Pilot Project
Committee on Rules of Practice and Procedure (“Standing Committee”) Approves Proposed Amendments to Federal Rules of Civil Procedure, by K&L Gates, posted in FEDERAL RULES AMENDMENTS, NEWS & UPDATES.
The amendments to the Federal Rules of Civil Procedure will be finalized sometime in September. -CCE
Last week, the Committee on Rules of Practice and Procedure (the “Standing Committee”) approved proposed amendments to the Federal Rules of Civil Procedure, including the “Duke Rules Package,” addressing Rules 1, 4, 16, 26, 30, 31, 33, and 34 and a rewritten version of Rule 37(e), addressing preservation. The proposed amendments were approved with only two revisions to the proposed Committee Notes for Rules 26(b)(1) (encouraging consideration and use of technology) and 37(e) (clarifying the role of prejudice in subsection (e)(2) of the proposed rule). Meeting minutes reflecting the precise changes to the Committee Notes are not yet available, although the text of the rules as adopted was published in the Standing Committee’s meeting Agenda Book, available here.
The next stop for the proposed amendments is the Judicial Conference, which will consider the proposed amendments at its meeting in September.
Brief Writing, Bryan Garner, Chief Judge Sandra Lynch, Judge Frank Easterbrook, Judge Pierre Leval, Judge Stephen Reinhardt, Jurisdiction, Legal Writing, Legal Writing Prof Blog, Oral Argument, Scribes Journal of Legal Writing
Scribes Journal Presents Interviews With Judges, By Legal Writing Prof, Legal Writing Prof Blog
In the latest issue of the Scribes Journal of Legal Writing, Bryan Garner continues his series Scribes 5-14of interviews with judges. This time he talks with five United States Court of Appeals judges to collect some inside information about brief writing and oral argument. Here are some of the judges’ pithy quotes:
Judge (and former Chief Judge) Frank Easterbrook of the Seventh Circuit said a lawyer should know why the court has jurisdiction. He imagines having a button he could press to send a lawyer out to the street if the lawyer can’t explain the basis for appellate jurisdiction. ‘Because if we don’t have jurisdiction, why are we here?’
Judge Pierre Leval of the Second Circuit said the first thing he looks at in a brief is the argument headings ‘to get a sense of what’s involved.’ Then he can read the facts in context.
Chief Judge Sandra Lynch of the First Circuit said many lawyers look ‘frozen’ when a judge asks a question. But instead, they should think, ‘This is a great way that I can hit a few more balls out of the park; I can help my case.’
Judge Stephen Reinhardt of the Ninth Circuit likes briefs written in ‘simple, clear sentences.’ And he likes ‘a story that flows so you can tell what it’s about and why . . . something I can follow easily.’ . . .
A Painful Lesson in the Pitfalls of E-Filing and E-Docketing, by Scott P. Stolley and Richard B. Phillips, Jr., Texas Appellate Watch
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. . . .
Category Archives: FEDERAL RULES AMENDMENTS, by Electronic Discovery, K&L Gates
Notice and analysis of electronic discovery federal rule amendments. You can count on this website to be updated promptly and the information and analysis is accurate. Free subscription by RSS feed.
While you are there, it is worth your time to browse the variety of information published by K&L Gates. They are experts on e-discovery. You will find, among other things:
- E-Discovery Case Database <http://www.ediscoverylaw.com/e-discovery-case-database/>;
- State Court Rules on E-Discovery <http://www.ediscoverylaw.com/state-district-court-rules/>; and
- Case Summaries <http://www.ediscoverylaw.com/articles/case-summaries/>; and
- Resources <http://www.ediscoverylaw.com/articles/resources/>.
Just poke around. I do not think you will be disappointed. -CCE
Bow Tie Law’s Blog, Deposition, Discovery Dispute, Federal Rule 26(g), Federal Rules of Discovery, Hernandez v. Hendrix Produce, Joshua Gilliland, Judge G.R. Smith, Meet and Confer, Skype, Video Deposition
“Stop and Think” About Skype for Depositions, by Joshua Gilliland, Bow Tie Law’s Blog
Judge G.R. Smith issued a great reminder that lawyers must ‘stop and think’ when dealing with discovery disputes. This duty is imposed by Rule 26(g) and is ‘an affirmative duty to engage in pretrial discovery in a responsible manner that is consistent with the spirit and purposes of Rules 26 through Rule 37, and obligates each attorney to stop and think about the legitimacy of a discovery request, a response thereto, or an objection.’ Hernandez v. Hendrix Produce, Inc., 2014 U.S. Dist. LEXIS 4837 (S.D. Ga. Jan. 9, 2014) citing Bottoms v. Liberty Life Assur. Co. of Boston, 2011 U.S. Dist. LEXIS 143251, 2011 WL 6181423 at * 4 (D. Colo. Dec. 13, 2011).
The case at issue requiring lawyers to ‘stop and think’ involved the plaintiffs in a farmworker rights lawsuit. Three of the plaintiffs were in Mexico and unable to return to Georgia for their depositions. The Defendants wanted the depositions to be held in Georgia. . . .
Ninth Circuit Rules on Scope of Discovery from Testifying Experts, by Michael Kelleher, Cogent Legal Blog
[A] new Ninth Circuit decision about the scope of expert discovery in federal court caught our attention. The decision in Republic of Ecuador v. Mackay, No. 12-15572 (9th Cir. Jan. 31, 2014) poses the question: where the expert has served both as a confidential advisor to counsel and as a testifying expert, may counsel withhold documents shared with the expert by asserting an opinion work product objection? The short answer is no—documents from testifying experts must be produced unless protected by Federal Rule of Civil Procedure 26(b)(4).
Appellate ADR, Appellate Case Management, Appellate Judges, Appellate Procedure, Appellate Procedure Resource Guide, Filing Fees, Intermediate Appellate Courts, National Center of State Courts, Pro Se Appeal Guides, Statistics and Trends, Unpublished Opinions
Appellate Procedure Resource Guide, National Center of State Courts
There is a plethora of information here. It is diverse and abundant. Once you arrive at the website, please take your time and browse each section. Please do not overlook the button to the far right for “Companion Sights.” -CCE
The most common structure for a state appellate court system involves one court of last resort with largely discretionary review, commonly called a supreme court, and one intermediate appellate court with largely mandatory review. Because of this jurisdiction, the intermediate appellate court is the court of final review for the vast majority of state court appeals. Ten states are without an intermediate appellate court. Various combinations based on mandatory versus discretionary jurisdiction, size of the courts, use of panels, geographical divisions, and division between criminal and civil jurisdiction by court exist in the state appellate systems.
ABA Journal, Brief Writing, Bryan Garner, Citations, Footnotes, Jason Steed, Ledet v. Seasafe, Legal Writing, Louisiana Appellate Court, New York Times, Raymond Ward, Rich Phillips, the (new) legal writer
The Never Ending Debate Over Citational Footnotes, by Raymond Ward, the (new) legal writer
Mr. Ward gives us a brief overview in these two paragraphs. In the remainder of his post, Mr. Ward expands on his variations for citations in footnotes and the preferences of Fifth Circuit judges I mean no disrespect to Mr. Garner, but if Mr. Ward gives advice on legal writing, I pay attention. -CCE
Who would have thought that, for over 13 years now, the most controversial subject among litigation-oriented legal writers would be the location of legal citations in footnotes versus in text? Back in the spring of 2001, a judge in an intermediate Louisiana appellate court, in writing the majority’s opinion in a case, put her legal citations in footnotes. This drew a concurring opinion from the chief judge (withdrawn before final publication), agreeing with the result but objecting to the use of footnotes for citations. So the author wrote her own concurring opinion defending her use of footnotes. The case is Ledet v. Seasafe, Inc., 783 So. 2d 611 (La. App. 3 Cir. 2001). The controversy stirred up by Ledet caught the attention of the New York Times. Here is my own little casenote on Ledet.
Fast-forward 13 years. Bryan Garner writes an article for the ABA Journal recommending the use of footnotes for legal citations—a position he’s held since I took my first Garner seminar in 1998. His fellow Texans Rich Phillips and Jason Steed write blog posts begging to differ. Different decade, pretty much the same debate.