Category Archives: Federal Judges

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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Chief Justice Urges Judges To Impose More Management Over Their Cases.

01 Friday Jan 2016

Posted by in Diligence, Discovery, E-Discovery, Federal Judges, Interrogatories, Judges, Legal Ethics, Requests for Admissions, Requests for Production, Rules of Professional Responsibility

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Chief Justice Wants Less Gamesmanship By Lawyers, by Lyle Denniston, SCOTUSblog

http://bit.ly/1JkhNf7

Justice Roberts’ words apply to state courts as well. Ignoring client’s cases, unnecessary and burdensome discovery disputes, and repeated continuances do nothing to endear the legal profession to their clients or the public. -CCE

Speaking in soft but plain words, Chief Justice John G. Roberts, Jr., used his year-end report on Thursday night to urge lawyers who practice in federal courts to take steps to help improve the efficiency, and reduce the cost, of trying cases.  Roberts also added some strong encouragement for judges who preside over federal civil trials to take greater control of the management of cases, rather than leaving the process to the tactics of the competing lawyers. . . .

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Perfect Benchslap For Redaction Running Amuck.

08 Saturday Aug 2015

Posted by in Benchslap, Court Orders, Federal Judges, Judges, Legal Writing, U.S. District Courts

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Judge Trolls Lawyers Without Saying Anything At All, by Joe Patrice, Above The Law

http://abovethelaw.com/2015/08/judge-trolls-lawyers-without-saying-anything-at-all/

Joe beat me to it. Many thanks to Jessica L. Craft at Holden & Carr for the heads’ up. -CCE

Judge Charles Breyer proves that a redaction can be worth a thousand words. . . .

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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.

2013 Judicial Writing Manual: A Pocket Guide For Judges.

19 Tuesday Aug 2014

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

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Judicial Writing Manual: A Pocket Guide for Judges (Second Edition), Federal Judicial Center 2013 (with huge hat tip to William P. Statsky!)

http://www.fjc.gov/public/pdf.nsf/lookup/judicial-writing-manual-2d-fjc-2013.pdf/$file/judicial-writing-manual-2d-fjc-2013.pdf

Yesterday I posted a link to the First Edition of the Judicial Writing Manual. Twenty years after the First Edition, the Federal Judicial Center published this Second Edition. The goal of the Second Edition, like the First, is summed up in its Forward below. -CCE

Indeed, with so much of today’s writing embedded in the truncated protocols of social media and other “real time” forms of expression, the clarity and persuasive quality the authors of the first edition sought to teach are particularly important for judges’ writing. But the elements of good writing are remarkably constant, and we think that you will find the principles explained so thoughtfully in the first edition no less applicable today.

Jeremy D. Fogel, Director, Federal Judicial Center

 

Federal Judges Writing Manual.

17 Sunday Aug 2014

Posted by in Federal Judges, Judges, Jury Instructions, Legal Analysis, Legal Writing, Statutory Interpretation, Style Manuals, Trial Tips and Techniques

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Judicial Writing Manual, Federal Judicial Center

http://tinyurl.com/k5x898o

This Writing Manual is obviously written specifically for federal judges. Twenty-four experienced jurists were interviewed to write the Manual.  Its board of editors are judges, law professors, and legal writers. Although written for federal judges, it provides insight for any legal writer, especially those who practice in federal court. The Manual is available in print or you can download it as a .pdf document.

This is more. Look at the left-hand side of the page, and click on “Recent Materials“: http://tinyurl.com/odjltbl. From there, it just gets better. At this link you will find papers on specific areas of law. One that caught my eye is Meghan Dunn’s “Jurors’ and Attorneys’ Use of Social Media During Voir Dire, Trials, and Deliberations: A Report to the Judicial Conference Committee on Court Administration and Case Management.”  It is available only online.

Even if you do not practice in federal court, this is definitely worth a look. -CCE

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.’ . . .

Craig Ball’s Lawyers’ Guide to Forms of Production.

19 Monday May 2014

Posted by in Adobe Acrobat, Authentication, Bates Numbers, Computer Forensics, Databases, Discovery, Document Review, E-Discovery, Emails, Evidence, Federal Judges, Federal Rules of Discovery, Federal Rules of Evidence, Forensic Evidence, Judges, Legal Forms, Legal Technology, Native Format

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A Guide to Forms of Production, by Craig Ball, Ball In Your Court Blog

http://ballinyourcourt.wordpress.com/2014/05/19/a-guide-to-forms-of-production/

Craig Ball’s Lawyers’ Guide to Forms of Production! Although Mr. Ball says there is much he wants to re-organize and rewrite, I can’t wait to dive in.  You will find the hyperlink to the Guide when you go to the web site. Thank you, Craig Ball! -CCE

Semiannually, I compile a primer on some key aspect of electronic discovery.  In the past, I’ve written on computer forensics, backup systems, metadata and databases. For 2014, I’ve completed the first draft of the Lawyers’ Guide to Forms of Production, intended to serve as a primer on making sensible and cost-effective specifications for production of electronically stored information.  It’s the culmination and re-purposing of much that I’ve written on forms heretofore, along with new material extolling the advantages of native and near-native forms.

Reviewing the latest draft, there is much I want to add and re-organize; accordingly, it will be a work-in-progress for months to come.  Consider it a “public comment” version.  The linked document includes exemplar verbiage for requests and model protocols for your adaption and adoption.  I plan to add more forms and examples. . . .

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. . . .

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. . . .

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. . . .