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

17 Monday Apr 2017

Posted by Celia C. Elwell, RP 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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Above the Law (blog), Appellate Law, Benchslap, David Lat, Immigration, Justice Neil Gorsuch

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

Preparing Your Oral Argument – This is How You Do It.

27 Sunday Dec 2015

Posted by Celia C. Elwell, RP in Appellate Law, Oral Argument

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Appellate Law, Lawyerist Blog, Oral Argument, Sam Glover

How to Prepare for Oral Argument, by Sam Glover, Lawyerist Blog

https://lawyerist.com/40693/how-to-prepare-for-oral-argument/

Oral argument is one of the most exciting parts of litigation, and only a few lawyers are really good at it. But even if you aren’t a naturally talented presenter, you can still improve. The important thing is to get away from your outline and use a more ‘modular’ approach to oral argument.

Many lawyers — especially those new to law practice — prepare for oral argument the same way, by creating an outline and rehearsing as they would for a speech. They may prepare for questions by talking through the issues with a colleague, but this does not usually result in effective oral argument. What it does result in is a stiff argument, awkward recovery after answering questions, and an ineffective presentation overall.

That’s because oral argument is so much more dynamic than an outline — even if you have a ‘cold’ bench. In order to prepare for dynamic argument, you need a more dynamic approach than an outline and a few run-throughs. . . .

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Failure To Follow Court Rules Earned This Fed Up Benchslap.

23 Monday Nov 2015

Posted by Celia C. Elwell, RP in Appellate Law, Bad Legal Writing, Benchslap, Brief Writing, Citations, Court Rules, Courts, Issues On Appeal, Judges, Legal Writing

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Above the Law (blog), Appellate Law, Benchslap, Brief Writing, Court Rules, Kathryn Rubino

A Lawyer Way Out Of Her League Gets Benchslapped By Frustrated Judge, by Kathryn Rubino, Above The Law Blog

http://tinyurl.com/o9hk847

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

Why We Should Care About The Loss of Precedent.

14 Saturday Mar 2015

Posted by Celia C. Elwell, RP in Appellate Law, Precedent

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Appellate Advocacy Blog, Appellate Law, Common Law, David R. Cleveland, Lord Coke, Precedent, Unpublished Opinions

The Harms of Issuing Non-Precedential Opinions, by David R. Cleveland, Appellate Advocacy Blog

http://tinyurl.com/nkmjg7b

In a post last Monday on Prawfsblawg, entitled, On Not Creating Precedent in Plumley v. Austin, Richard M. Re asks, ‘what’s so wrong with deliberately declining to create precedent?’ By his answer, an implied ‘nothing’ because ‘[d]oing so conserves scarce resources and reduces the risk of mistaken or sloppy precedent,’ he seems to be asking, ‘what’s the harm?’ . . . .

No Sandbagging!

13 Friday Mar 2015

Posted by Celia C. Elwell, RP in Appellate Law, Appellate Record, Issues On Appeal, Preservation of Error

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Appellate Law, Louisiana Civil Appeals Blog, Objections, Preservation of Error, Raymond P. Ward, Sandbagging

Thou Shalt Not Sandbag, by Raymond P. Ward, Louisiana Civil Appeals Blog

http://raymondpward.typepad.com/la-appellate/2015/03/thou-shalt-not-sandbag.html

In the last post, we looked at the jurisdictional foundation of the law on preserving error. Today we will look at one of two purposes of this law: prevention of sandbagging.

What is sandbagging? Black’s Law Dictionary defines it as ‘[t]he act or practice of a trial lawyer’s remaining cagily silent when a possible error occurs at trial, with the hope of preserving an issue for appeal if the court does not correct the problem.’ Black’s Law Dictionary 1542 (Bryan A. Garner, ed., 10th ed., Thomson Reuters 2014). Justice Scalia once described sandbagging as ‘suggesting or permitting, for strategic reasons, that the trial court pursue a certain course, and later — if the outcome is unfavorable — claiming that the course followed was reversible error. Freytag v. Commissioner of Internal Revenue, 501 U.S. 868, 895 (1991) (Scalia, J., concurring).

Appellate courts hate sandbagging. As proof of this proposition, here are some quotable quotes:

‘The Sixth Circuit’s decision to require the filing of objections is supported by sound considerations of judicial economy…. The Sixth Circuit’s rule, by precluding appellate review of any issue not contained in objections, prevents a litigant from ‘sandbagging’ the district judge by failing to object and then appealing.’ Thomas v. Arn , 474 U.S. 140, 147–48 (1985).

‘The rationale behind this Court’s opinion in Lewis was distaste for the ‘sandbagging’ practice in which defendants circumvent district judges and raise objections for the first time on appeal.’ Perales v. Casillas, 950 F.2d 1066, 1071 (5th Cir. 1992).

‘If the record indicates that counsel for the complaining party deliberately avoided making the proper objection or request, plain error will almost never be found. This court will not tolerate ‘sandbagging’ defense counsel lying in wait to spring post-trial error.’ U.S. v. Sisto, 534 F.2d 616, 624 n. 9 (5th Cir. 1976).

Ththere no-sandbagging rule is a consequence of the appellate court’s jurisdiction, which is limited to reviewing the trial court’s actions. It is also a matter of fairness to the district court. In the appellate courts’ view, it is unfair to the district court to complain of that court’s error on appeal without having given that court a fair opportunity to avoid or correct its own error.

Preserving Issues On Appeal.

11 Wednesday Mar 2015

Posted by Celia C. Elwell, RP in Appellate Law, Appellate Record

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Appellate Law, Appellate Record, Black's Law Dictionary, Louisiana Civil Appeals Blog, Raymond P. Ward

Series Of Posts On Preserving Issues For Appeal, by Raymond P. Ward, Louisiana Civil Appeals

http://raymondpward.typepad.com/la-appellate/2015/03/series-of-posts-on-preserving-issues-for-appeal.html

The first of Mr. Ward’s series on this subject. -CCE

Monday’ blog post reminded me of some materials I’ve accumulated on preserving errors for review in Louisiana state courts. Recently I shared those materials with a colleague, who suggested writing an article about the topic. I decided instead to self-publish a series of posts here on preservation of error. I figured that breaking down the topic into a series of short blog posts and self-publishing them would be easier than trying to write one big lengthy article and then shopping for a publisher.

Let’s begin by defining preservation of error. Black’s Law Dictionary defines it as ‘the taking of all steps necessary under the rules of procedure or at common law in bringing an improper act or statement to the trial court’s attention so that, if not corrected, the mistake can be reviewed on appeal.’ Black’s Law Dictionary 1375 (Bryan A. Garner, ed., 10th ed.,Thomson Reuters 2014). In Louisiana, substitute Code of Civil Procedure for rules of procedure, and substitute case law or jurisprudence for common law. This definition is reflected in La. Ct. App. Unif. R. 1-3, under which the court of appeal ‘will review only issues which were submitted to the trial court ….’

But why must an error in the trial court be brought to the trial court’s attention before it can be argued in the court of appeal? The next few posts will answer that question.

The Right Way to Assemble Attachments To Appellate Supervisory Writs.

17 Saturday Jan 2015

Posted by Celia C. Elwell, RP in Appellate Law, Appellate Writing, Legal Writing, Louisiana Supreme Court, Readability

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Appellate Law, Appellate Procedure, Appellate Writs, Legal Writing, Louisiana Civil Appeals, Raymond P. Ward

Practical Tip For Assembling A Writ Application, by Raymond P. Ward, Louisiana Civil Appeals

http://tinyurl.com/o2or5jy

Today [January 14. 2015] I started working on an application to the court of appeal for a supervisory writ, and was reminded of my # 1 tip for this task: the first thing you do—before you write a word—is assemble the attachments. Uniform Rule 4-5 lists the attachments that must be included. I like to put them all together and give them provisional page numbers before I start writing the application itself, starting with A1, A2, etc. If your attachments are in PDF (if they’re not, they should be), putting them together and page-numbering them is a snap with Adobe Acrobat or other PDF-handling software.

Assembling the appendix on the front end has at least two advantages. First, when you draft the writ application, you can include pinpoint citations to items in the appendix. Second, you find out immediately if you’re missing something that you need (such as the hearing transcript).

There is one little hitch to my system: Uniform Rule 4-5(B) requires all pages of the application, including the application itself and all attachments, to be consecutively numbered. And if you don’t know how long the application itself will be until you write it, you don’t know until the end of the process the number of the first page of the attachments. But this problem is easy to solve. Once the application is in almost-final form, you know how long it will be. If it’s 25 pages, you know that the number of the first page of attachments will be 26. So when I’m finalizing, say, a 25-page application, I just add 25 to all my “An” citations to the attachments and remove the “A”. A1 becomes 26, A2 becomes 27, etc. Is this time-consuming? A bit. But not nearly as time-consuming as trying to fill in totally blank citations to the attachments.

Which leads to another tip: when, in writing a writ application, you cite one of the attachments, cite it by its consecutive-page number. If it’s a multi-volume writ application, cite by volume and page number. Example: “See writ app. vol. 2 p. 301.” Your job as the writer is to make it as easy as possible for the reader to locate what you’re citing. So give the reader the information needed to instantly locate whatever it is you’re citing.

Amicus Briefs From A Texas Supreme Court Judge’s Perspective.

30 Thursday Oct 2014

Posted by Celia C. Elwell, RP in Amicus Briefs, Appellate Law, Appellate Writing, Brief Writing, Legal Writing

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Amicus Briefs, Appellate Law, Appellate Lawyer Blog, Chad Ruback, Don Cruse, Legal Writing, Texas Supreme Court Justice Don Willett

Texas Supreme Court Justice Don Willett’s Thoughts on Amicus Briefs, by Chad Ruback, Appellate Lawyer Blog

http://tinyurl.com/m2mg7un

This afternoon, Texas Supreme Court Justice Don Willett and Austin lawyer Don Cruse spoke at a continuing legal education seminar. Among other things, they addressed amicus briefs filed in the Supreme Court.

The court requests a response to the petition for review in about 33% of cases. However, when an amicus brief has been filed prior to the time that the court decides whether to request a response, Mr. Cruse determined that the court requests a response about 85% of the time. While only 2% of cases have amicus briefs filed prior to the time that the court decides whether to request a response, it seems that those petitions are disproportionately successful in getting a response requested.

The court requests briefs on the merits (a/k/a full briefing) in about 20% of cases. However, when an amicus brief has been filed prior to the time that the court decides whether to request briefs on the merits, Mr. Cruse determined that the court requests briefs on the merits about 82% of the time. While only 7% of cases have amicus briefs filed prior to the time that the court decides whether to request briefs on the merits, it seems that those petitions are disproportionately successful in getting briefs on the merits requested.

Consistent with this data, Justice Willett indicated that he enjoys reading amicus briefs and that it is advisable for a petitioner to have supporting amicus briefs filed early in the proceeding (e.g., before the court has decided to whether to request a response or at least before the court has decided whether to request briefs on the merits).

Web Resources for Illinois Appellate Lawyers.

04 Friday Jul 2014

Posted by Celia C. Elwell, RP in 7th Circuit Court of Appeals, Appellate Law, Illinois Supreme Court

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Appellate Law, Appellate Lawyer Association, Appellate Resources, CLE, Illinois Supreme Court, U.S. Court of Appeals for the Seventh Circuit

[Illinois] Appellate Lawyer Association Web Resources

http://www.applawyers.org/resources.html

This section includes valuable lists of links to:

Illinois references, such as a List of Courts in the State, Local Bar Associations and Law Schools
Law-Related Directories and Portals
A Roster of Research Sites
Providers of CLE Courses
Legal Employment Resources

Some Of The Common Mistakes Made In Appeals.

04 Friday Jul 2014

Posted by Celia C. Elwell, RP in Appellate Law, Appellate Writing, Brief Writing, Legal Analysis, Legal Argument, Legal Writing

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Appellate Briefs, Appellate Law, Appellate Procedure, Brief Writing, Findlaw.com, Legal Argument, Scott P. Stolley, Thompson & Knight LLP

Appeal in Error: Common Mistakes Made in Appeals, by Scott P. Stolley of Thompson & Knight LLP, Findlaw.com

http://tinyurl.com/knotqwo

Some lawyers prefer trial litigation. Some prefer appellate law. For those who enjoy litigation, need to appeal, but don’t want to do it themselves, hire an appellate lawyer. There are appellate specialists out there who know the in’s and out’s of appellate procedure.

Lawyers who specialize in appellate law often have experience working for the justices or former justices of that court. It gives them an unique insight into the personalities and proclivities of that court. Sometimes that is a useful thing. – CCE

After a trial, the losing party often has too much at stake, emotionally or financially, to let the verdict stand unchallenged. Appeal is the next option, but many litigants do not fully understand how different an appeal is from a trial. They may also underestimate the differences between trial lawyers and appellate lawyers. These differences may be overlooked when inexperienced litigants launch an appeal. The following is a discussion of common mistakes that such litigants regularly make. . . .

Appellate Judges Give Advice On Winning An Appeal.

06 Sunday Apr 2014

Posted by Celia C. Elwell, RP 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 Briefs, Appellate Judges, Appellate Law, Chad M. Ruback, Dallas Bar Association Judiciary Committee, Fifth Circuit Court of Appeals, Legal Analysis, Legal Writing, Texas, Texas Supreme Court

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. . . .

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

24 Monday Feb 2014

Posted by Celia C. Elwell, RP in Appellate Judges, Appellate Law, Brief Writing, Judges, Legal Argument, Legal Writing

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Appeal, Appellate Briefs, Appellate court, Appellate Law, Brief Writing, Legal Argument, Reply Brief

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.’

Good Advice On How to Avoid Embarrassing Mistakes In An Appeal.

16 Sunday Feb 2014

Posted by Celia C. Elwell, RP in 5th Circuit Court of Appeals, Appellate Law, Bad Legal Writing, Brief Writing, Case Law, Citations, Citations to the Record, Legal Analysis, Legal Writing, Mandatory Law, Primary Law, Proofreading, Research, Statement of Facts, Texas Supreme Court

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Appellate Briefs, Appellate Law, Appellate Lawyer, Chad M. Ruback, Citations, Citations to the Record, Hyperbole, Justice Debra Lehrmann, Legal Writing, Proofreading, Statement of Facts, Texas Supreme Court

Common Mistakes Seen in Appellate Petitions and Briefs, by Chad M. Ruback, Appellate Lawyer

http://news.appeal.pro/appeals-to-texas-supreme-court/appellate-petitions-and-briefs/

Mr. Ruback served as a briefing attorney to the Fort Worth Court of Appeals. Here he shares the common mistakes that are normally seen in appellate writing. Because an appellate court never questions witnesses or hears evidence, the written documents submitted by the parties are all it has upon which to base its ruling. Sloppy and lengthy garbled arguments simply will not do. Mr. Ruback’s comments are worth noting.

I would like to add to Mr. Ruback’s list – neglecting to verify the accuracy of the appellate record while it remains in the jurisdiction of the trial court. It is a simple exercise to compare the record compiled by the trial court clerk using the Designation of Record and Counter-Designation of Record to make sure that the record is accurate.

This may seem a waste of time until the appellate record includes a deposition that was never admitted into evidence or a crucial piece of evidence is overlooked by the court clerk who assembled record for the appeal. No one is perfect; mistakes can happen.

Too often, counsel ignore this simple step. Personally, I would make sure the person you send to check the record put the trial exhibits together and/or was part of the trial team. Or to put it another way – how do you explain to a client that you couldl have avoided the appeal’s fatal flaw if you had checked the record before it was sent up on appeal? -CCE

Oh Happy Day for Pennsylvania Personal Injury Plaintiffs.

10 Monday Feb 2014

Posted by Celia C. Elwell, RP in Appellate Law, Case of First Impression, Damages, Evidence, Jury Persuasion, Litigation, Pennsylvania Superior Court, Personal Injury, State Appellate Courts, Trial Tips and Techniques

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Appellate Law, Bodily Injury, Brian Butler, Damages, Daniel E. Cummins, Delay Damages Calculation, Future Medical Expenses, Pain and Suffering, Pennsylvania Superior Court, Personal Injury, Roth v. Ross and Erie Insurance Group, TORT TALK

Appellate Case of First Impression – Future Medical Expenses Are To Be Included in Delay Damages Calculation, by Daniel E. Cummins, TORT TALK

http://www.torttalk.com/2014/02/appellate-case-of-first-impression.html

In a case of first impression, the Pennsylvania Superior Court recently ruled in Roth v. Ross and Erie Insurance Group, 977 MDA 2013, 2014 Pa. Super. 20 (Pa. Super. Feb. 7, 2014 Donohue, Ott, J.J., Platt, S.J.)(Opinion by Donohue, J.), that an award of future medical expenses in a personal injury case should be included in the calculation of delay damages due to the Plaintiff on a verdict. . . .