Category Archives: Appellate Judges

A Benchslap By Judge Gorsuch. And It’s A Really Good One, Too.

17 Monday Apr 2017

Posted by in 10th Circuit Court of Appeals, 10th Circuit Practitioner's Guide, Appellate Judges, Appellate Law, Appellate Record, Benchslap, Citations to the Record, Immigration Law, Judges

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Benchslap Of The Day: No More Mr. Nice Guy, by David Lat, Above The Law Blog

http://abovethelaw.com/2015/03/benchslap-of-the-day-no-more-mr-nice-guy/

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

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Appellate Court Benchslaps Trial Judge – Ouch.

25 Friday Nov 2016

Posted by in Appellate Judges, Benchslap, Judges

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Appeals Panel Rips Judge Over One-Minute Decision, by Joe Patrice, Above The Law Blog

http://abovethelaw.com/2016/10/appeals-panel-rips-judge-over-one-minute-decision/

The only thing more stinging than a satisfying benchslap is the cool, crisp bite of a sly insult. The understated quip can often accomplish so much more than the breathless broadside. For example, an opinion reversing the court below that signs off with, ‘next time, we assume you’ll do your job,’ boasts more devastating heft than anything Justice Scalia served up. It’s just so cold.

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Posner Asks What is Obviously Wrong with the Federal Judiciary. Is This A Trick Question?

09 Thursday Jun 2016

Posted by in Appellate Judges, Appellate Law, Citations, Federal Judges, Judges, Legal Analysis, Legal Argument, Legal Writing, The Bluebook

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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)

http://www.greenbag.org/v19n2/v19n2_articles_posner.pdf

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.]

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Where Should Citations Go? Texas Appellate Judges Have An Opinion.

05 Friday Jun 2015

Posted by in Appellate Judges, Appellate Writing, Brief Writing, Citations, Footnotes, Judges, Legal Writing

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The End of the Great Footnote War in Texas? by Rich Phillips, Texas Appellate Watch

http://tinyurl.com/oq8z9va

I have posted before (and here and here) about a debate that confirms that appellate lawyers are the nerds of the legal world: should citations go in footnotes or in the text?. . . .

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Why Circuit Courts Reassign Cases To Different District Judges On Remand.

24 Tuesday Feb 2015

Posted by in Appellate Judges, Civil Procedure, Court Orders, Federal Civil Procedure, Federal Judges, Judges

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Standards For Reassignment To A Different Judge On Remand, by Raymond P. Ward, Louisiana Civil Appeals

http://raymondpward.typepad.com/la-appellate/2015/02/standards-for-reassignment.html

In U.S. ex rel. Little v. Shell Exploration & Production Co., 14-20156 (5th Cir. Feb. 23, 2015) (unpublished), the Fifth Circuit not only reversed a summary judgment, but also ordered that, on remand, the case be reassigned to a different district judge. Why? Here is the sequence of events in a nutshell:

  1.  The district court rendered summary judgment in defendants’ favor.
  2.  On appeal, the Fifth Circuit reversed, holding that the district court applied the wrong legal standard. The Fifth Circuit remanded with instructions for the district court to apply the correct legal standard.
  3.  A year later, the district court again rendered summary judgment in defendants’ favor, apparently applying the same legal standard that the Fifth Circuit had rejected. The Fifth Circuit concluded that, in rendering this judgment, the district court disregarded the Fifth Circuit’s instructions on remand.

Starting at page 25, the decision includes a survey of case law enunciating various standards applied by circuit courts in deciding whether to reassign a case to a different judge on remand. So this decision is worth tucking away for future reference in case you ever find yourself in need of similar relief.

Reminder – Minnesota Court Rules Are A-Changing.

23 Monday Jun 2014

Posted by in Adoption Law, Appellate Judges, Appellate Law, E-Filing, Family Law, Juvenile Law, Legal Technology, Minnesota, Recent Links and Articles

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In an earlier post, (https://researchingparalegal.com/2014/06/14/recent-court-rule-changes-for-minnesota-courts/) I mentioned that changes to appellate, juvenile, and adoption court rules in Minnesota’s would go soon go into effect on July 1, 2014. They are:

(Effective July 1, 2014) Supreme Court Promulgates Amendments to the Rules of Juvenile Protection Procedure and the Rules of Adoption Procedure.

(Effective July 1, 2014)  Court of Appeals Issues Standing Order Regarding Paper Copies of Briefs

(Effective July 1, 2014) Supreme Court Issues Standing Order Regarding Paper Copies of Briefs

(Effective July 1, 2014) Supreme Court Promulgates Amendments to the Rules of Civil Appellate Procedure

The orders for the appellate courts look especially important.  You can find hyperlinks to these orders here: http://tinyurl.com/nxawksy.   -CCE

 

 

Supreme Court Judges Really Use Dictionaries To Determine Legislative Intent?

26 Monday May 2014

Posted by in Appellate Judges, Appellate Law, Judges, Legal Analysis, Legal Dictionaries, Legal Writing, Legislative History, References, United States Supreme Court

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Look It Up! Or Not…, by Tiffany Johnson, Good Legal Writing

http://goodlegalwriting.com/2014/04/14/look-it-up-or-not/

I always encourage my students to look up any words that confuse them as they read opinions.  But this 2011 New York Times article  cites a few scholars who don’t think it’s the most judicious practice to undertake from the bench.  Check out this excerpt:

In May alone, the justices cited dictionaries in eight cases to determine what legislators had meant when they used words like ‘prevent,’ ‘delay’ and ‘report.’ Over the years, justices have looked up both perfectly ordinary words (‘now,’ ‘also,’ ‘any,’ ‘if’) and ones you might think they would know better than the next guy (‘attorney,’ ‘common law’).

All of this is, lexicographers say, sort of strange. . . .

Garner’s Interview With Appellate Judges On Oral Argument and Brief Writing.

20 Tuesday May 2014

Posted by in Appellate Judges, Appellate Law, Bad Legal Writing, Brief Writing, Court Rules, Courts, Federal District Court Rules, Federal Judges, Judges, Legal Analysis, Legal Argument, Legal Writing, Statement of Facts, Trial Tips and Techniques

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Scribes Journal Presents Interviews With Judges, By Legal Writing Prof, Legal Writing Prof Blog

http://tinyurl.com/najqatd

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.’ . . .

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. . . .

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

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. . . .

Key Elements of Great Legal Writing.

21 Friday Mar 2014

Posted by in Appellate Judges, Brief Writing, Federal Judges, Judges, Legal Analysis, Legal Argument, Legal Writing

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The Seven Writing Strategies of Highly Effective Trial Judges, by Ross Guberman Blog (with hat tip to Raymond Ward, the (new) legal writer blog!)

http://tinyurl.com/ov446wn

This post hits on all of the key elements of great, not just good, legal writing. It is rarely explained better than this. Pay attention . . . . -CCE

Asked to name the world’s best opinion writers, traditionalists might rattle off Lord Denning, Learned Hand, or Oliver Wendell Holmes. Modernists often prefer Antonin Scalia or Richard Posner. And the trendy might cite new kids on the block like Lord Sumption or Elena Kagan.

Those august names all deserve heaps of praise. But the fame that these judges enjoy raises questions of its own: Can you write a “great” opinion if you’re a judge who’s not a household name, or even especially influential? And can you write a “great” opinion in a case that’s not a high-profile constitutional crisis, but just another run-of-the-mill dispute in an overflowing docket?

I say “yes” on both counts. No matter how routine a case, and no matter how little time you have, you can write a great opinion. It may not be “great” for the ages, but it can offer readers a clear, accessible, and easy-to-follow analysis of your reasoning, with even a bit of flair or personality for good measure. . . . 

Like Us, Judges and Juries Get the “Munchies.”

08 Saturday Mar 2014

Posted by in Appellate Judges, Closing Argument, Cross-Examination, Defense Counsel, Direct Examination, Exhibits, Experts, Federal Judges, Judges, Jury Persuasion, Law Clerks, Litigation, Making Objections, Opening Argument, Oral Argument, Plaintiff's Counsel, Trial Tips and Techniques, Voir Dire, Witnesses

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Time Your Arguments to the Judge’s Lunch Breaks (and Adapt to All Decision Makers’ “Cognitive Load”), by  Dr. Ken Broda-Bahm, Persuasive Litigator  Blog

http://tinyurl.com/lebleml

It comes as no surprise that a hungry person, be it the judge or members of a jury, find it difficult to concentrate and focus on your client’s case. Long stretches of testimony and argument are hard enough to follow, especially if the case is complex with numerous exhibits and witnesses. Regardless how comfortable the chair, sitting for long periods trying to listen carefully to a case is hard work.

There is more than one way to consider your audience at a trial or hearing. Persuasive argument is one. Excellent trial preparation using technology is another. Considerate and well-timed rest and meal breaks are another tool that can be used to your advantage.

The Rocket Science Blog mentioned in this post can be found at http://tinyurl.com/3dg5e8n. – CCE

Anyone who argues in front of judges knows that human factors can weigh as heavily as the law in determining your judge’s decisions.  But it is still possible at times to be surprised at the degree of influence, as well as the banality of those human factors.  Case in point: lunch and snack breaks.  Recent research discussed in the excellent Not Exactly Rocket Science blog appears to show that judges’ decisions vary as a direct effect of the proximity of their morning snack or lunch break.  In case you are using your morning break or lunch hour to read this post, I’d like to make it worth your while by applying the study findings to the more general issue of your decision-makers’ mental work load and offering some recommendations for anyone who needs to make arguments to a potentially fatigued audience. . . .

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

What’s The Point of An Appellant’s Reply Brief?

24 Monday Feb 2014

Posted by in Appellate Judges, Appellate Law, Brief Writing, Judges, Legal Argument, Legal Writing

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Yes, Filing an Appellant’s Reply Brief Really is Necessary, by Mike Skotnicki, Briefly Writing Blog

http://brieflywriting.com/2014/02/03/yes-filing-an-appellants-reply-brief-really-is-necessary/

In both my prior practice of appellate law in a fairly large firm and now in my work as a freelance appellate attorney, I’ve been asked by lawyers I was working with whether it was really necessary to file an Appellant’s Reply Brief. My short answer is, ‘Only if you want to win.’

Former Appellate Law Clerk Emphasizes Brief Writing Skills.

19 Wednesday Feb 2014

Posted by in Alabama Supreme Court, Appellate Judges, Appellate Law, Bad Legal Writing, Brief Writing, Judges, Legal Analysis, Legal Writing, Statement of Facts

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The Most Important Thing I Learned on the Inside of the Alabama Supreme Court, by Mike Skotnicki, Briefly Writing Blog

http://tinyurl.com/mhq8a3m

An excellent post well worth reading. This short excerpt reminds us why quality legal writing is so critical in appellate advocacy. -CCE

[T]o win an appellate matter you must make your brief come alive, hold the reader’s attention, influence the reader to view your client favorably, and help guide the court to the result you want. With the paucity of oral argument, the appellate brief is very likely your only opportunity to present to the court the passion you hold for your client’s cause and that passion, though controlled, should be palpable. Your brief must be more like a compelling novel, telling a story of conflict, than the dry and lifeless tome that is most often submitted on appeal. If your brief is the one that the appellate judge or staff member goes back to again and again in preference to that of the opposing party as the matter is being considered, the chances of your client winning will climb immeasurably.  Sometimes having the “best” case or fact in your favor is enough for your client to win, but most appeals simply aren’t that easy. . . .

Intolerance Is A Door That Swings Both Ways When Presenting Your Case.

17 Monday Feb 2014

Posted by in Appellate Judges, Closing Argument, Cross-Examination, Direct Examination, Federal Judges, Judges, Jury Instructions, Jury Persuasion, Jury Selection, Making Objections, Opening Argument, Oral Argument, Plaintiff's Counsel, Trial Tips and Techniques, Voir Dire, Witness Preparation, Witnesses

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Account for Ideological Intolerance, by Dr. Ken Broda-Bahm, Persuasive Litigator™

http://tinyurl.com/kovy8wo

It’s Valentine’s time again. It’s a holiday of love, but in the political world, we’re moving out of yet another debt ceiling standoff and there is no love lost between the two sides of the spectrum. Liberals point to yet another, albeit failed, attempt to hold the country’s full faith and credit hostage, while conservatives point to yet another increase in an already staggering national debt. Neither side can understand the values, arguments, and priorities of the other. And that’s just the debt. Add in social welfare programs, marriage equality, and — as the actual sign from an Arizona gun shop above testifies — gun control, and you’ve got a pretty bitter divide. Polling shows that we are politically more ‘tribal’ than ever before. As we’ve noted in earlier posts, liberals and conservatives appear to use their brains differently when assessing risk, and are resistant to applying basic empathy across the political aisles. . . .

Appellate Procedure Resource Guide for State Courts.

16 Sunday Feb 2014

Posted by in Appellate Judges, Appellate Law, Court Rules, Courts, Intermediate Appellate Courts, Judges, Pro Se Guides, State Appellate Courts, Unpublished Opinions

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Appellate Procedure Resource Guide, National Center of State Courts

http://www.ncsc.org/Topics/Appellate/Appellate-Procedure/Resource-Guide.aspx

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.