Circuit Splits

Circuit Split Roundup

For the latest coverage of noteworthy issues dividing the federal courts, check out the following links:

• Failed Motion for Summary Judgment Preserves Purely Legal Issue for Appeal, D.C. Circuit Review (Aug. 2, 2012). 

• Bonnie Lindemann, DNA Recording: The Court Allows Maryland to Continue Collecting and Testing DNA Samples from People Who Are Arrested, Criminal Law Brief Blog (Aug. 2, 2012).

• Louis M. Solomon, United States: Eight[h] Circuit Court of Appeals Affirms Dismissal Under the Foreign Sovereign Immunities Act, mondaq.com (July 27, 2012).

6 Tools in the Appellate Judge's Toolbox

In 2006 Justice Breyer and Justice Scalia sat down with ABC Legal Correspondent Jan Crawford Greenburg to share their thoughts on the Constitution and the role of judges in interpreting the law. One of the highlights of the talk was Justice Breyer's description of the "six tools" that "most judges, appellate judges in particular" may use to decide particularly difficult questions of statutory or constitutional interpretation. These tools include:

    (1)   the statutory text;

    (2)   the statute's legislative history (i.e., "how did those words get there?");

    (3)   tradition (i.e., "how those words have come to be used before and after");

    (4)   precedent;

    (5)   the purpose of the statute or statutory phrase in question; and

    (6)   the consequences that are relevant to achieving the purpose of the statute at issue (e.g., "the Fourth            Amendment is about privacy, not speech," and "the First Amendment is about speech, not privacy").

Justice Breyer went on to discuss which of these six tools he believes judges tend to embrace in a misguided effort to avoid a subjective result. You can watch Part II of the Justices' "Conversation on the Constitution" below. Fast-forward to 5:54 for Justice Breyer's discussion of these six tools:

New Article on Appellate Review of Immigration Decisions

My colleague Scott Rempell has a new article posted on SSRN: Judging the Judges: Appellate Review of Immigration Decisions. While not focused on a clear split between circuits, it does focus on the diversity of federal appellate court decisions regarding the standard of review (and degree of deference) for immigration decisions.  Here is the abstract:    

Immigration can be a divisive issue and the federal appellate courts must decide thousands of immigration cases every year. The outcomes of these decisions have large ramifications for the immigrants facing deportation and the executive agencies tasked with enforcing immigration law. The appellate judges adjudicating these cases hold a wide array of beliefs about the efficacy of the current immigration system. While the scope of appellate courts’ review of immigration decisions appears rigidly circumscribed by statute, the true breadth of appellate court review is much more porous. Thus, the governing framework provides judges with a fair amount of latitude when deciding how they are going to assess an immigration case. This article examines how judges’ immigration predispositions can factor into their decision-making processes. The goal of this article is not to fault judges for expressly or implicitly bringing to bare their perceptions on immigration matters. Indeed, even the sincerest effort to remain neutral cannot erase the individual beliefs and experiences that necessarily couch a judge’s decision-making lens. Rather, this article seeks to identify instances, on both sides of the spectrum, where appellate judges’ viewpoints may lead to outcomes that do not comport with the legal framework of their oversight prerogative. A measured degree of divergence among judicial approaches to immigration cases can be beneficial. However, decisions that stray too far from the established framework negatively impact immigration law and the adjudication process in a number of significant ways. 

 

This is a great contribution to the literature.  Immigration policy, and deportation in particular, are contentious issues today in the United States, with strong arguments in each side of the issue; moreover, the stakes are high enough in individual cases to evoke passionate responses toward potential outcomes.  Partly in response to this potential for strong reactions, our legal system has a number of procedural safeguards surrounding immigration removals, the most objective of which is federal appellate review of the decisions, after intermediate review by the BIA.  Yet even this seemingly far-removed, purely legal review has a number of features that distinguish it from other types of appellate decisionmaking.  The sheer number of appeals, the framework for the scope of review and the degree of deference, and the manner in which appellate courts frame the questions in individual cases, all set these cases apart from normal circuit court review.  Combined with the structural feature of direct review to the circuit courts from the agency tribunal, without an intermediate trial, the task of the appellate courts in these cases becomes particularly important and unique, and invites more searching inquiry into how such decisions proceed.  

Rempell's article pursues this inquiry, analyzing the unique structural and procedural components of this type of review, and several decision mechanisms or rhetorical techniques that introduce discretion, and thus potential bias, into this appellate review.   In the end, appellate review of immigration removal decisions includes enough of these discretionary decisional mechanisms to permit appellate judges to follow their personal predispositions or policy agendas regarding immigration as a general matter when deciding any given case, cloaking the tribunal’s bias in these external aspects of the immigration review process.

For those interested in appellate review or in immigration law, I highly recommend downloading and reading Rempell's article.  Very helpful and worthwhile.

 

-Dru Stevenson

Issues in Constitutional Litigation: A Context and Practice Casebook [Book Review - Part 2 of 2]

Yesterday I reviewed Professor Sarah Ricks and Professor Evelyn Tenenbaum's new casebook entitled Current Issues in Constitutional Litigation: A Context and Practice Casebook (Carolina Academic Press 2011). In case you missed it yesterday, you can find my review of the professors' new casebook here.

Today I wanted to encourage readers to check out the following two sample chapters, which you can download for free on SSRN:

• Chapter Five - 42 U.S.C. § 1983 Action Under Color of Law. To give you a better idea of the layout of each chapter, here is a screenshot of chapter five's table of contents:

• Chapter Fourteen - Protecting Freedom of Religion in Prison: The Free Exercise Clause and RLUIPA. And here is a screenshot of what you can expect to find in this chapter:

Is the Langdellian case method finally showing signs of aging? Should law professors abandon the casebook/Socratic method of teaching law in favor of the "context-and-practice method"? I invite readers to share their thoughts by leaving a comment below!

Issues in Constitutional Litigation: A Context and Practice Casebook [Book Review - Part 1 of 2]

Each year new crops of wide-eyed 1Ls listen to law professors opine that they must learn how to "think like a lawyer.” Yet, as the New York Time’s David Segal pointed out in a recent article entitled “What They Don’t Teach Law Students: Lawyering,” the law-school curriculum has, for more than a century now, “emphasized the theoretical over the useful.” But to quote the great Bob Dylan, “The times they are a-changin.’”

According to an article in the Wall Street Journal (here), many of the nation’s top law schools “are throwing out decades of tradition by replacing textbook courses” with courses like Indiana Law’s “course of so-called emotional intelligence,” Harvard Law’s new “problem-solving class for first-year students,” and Stanford’s “full-time clinical course” in which students must complete “several 40-hour plus weeks of actual case work” to graduate.

Professor Sarah Ricks of the Rutgers School of Law was nice enough to send me a courtesy copy of her new casebook, which she coauthored with Professor Evelyn Tenenbaum of Albany Law School, entitled Current Issues in Constitutional Litigation: A Context and Practice Casebook (Carolina Academic Press 2011). As the title suggests, this casebook is designed to help students think about the law from the perspective of a practicing lawyer. Like many of the great casebooks on the subject that have come before it, Issues in Constitutional Litigation covers the landmark Supreme Court cases with intelligent commentary and thoughtful organization. Unlike many of the great casebooks on the subject that have come before it, the book also focuses on federal circuit decisions, with a particular emphasis on both established and emerging circuit splits. Each chapter also strives to capture the human element of practicing law--something that legal opinions frequently fail to convey. Students will read letters from inmates, review historical documents like the 1867 cover of Harper's Weekly depicting black men casting their "first vote," receive practice pointers from seasoned veterans, and receive exposure to a host of other "real-world" issues that help bring the cases to life.

To be clear, Issues in Constitutional Litigations does not trash the traditional casebook model. The important cases are all still there. Instead, the book improves upon the old casebook model in two important ways. First, it places each case in a broader context that helps explain the doctrinal developments that might otherwise feel counterintuitive or arbitrary to students who limit their study of the subject to the four corners of the opinions.

Second, the book emphasizes the advocate's role in shaping the development of constitutional law. This is a critical component of thinking like a lawyer; and one that the casebook/Socratic method tends to neglect. The biggest criticism I have heard from seasoned attorneys about their freshly minted colleagues--which I largely attribute to the casebook/Soctratic method of teaching--is that law students graduate with the impression that they are supposed to analyze and apply the law in a disinterested, neutral manner as they might in the classroom when called on by their professor to recite the previous night's reading assignment. Issues in Constitutional Litigation does an excellent job illustrating the relationship that attorneys have with the court and their client, as well as the active role attorneys play in shaping the law through zealous advocacy for their client's interests. In other words, the book focuses the reader's attention on the process through which constitutional law is made, not solely on the finished product of that process.

The book, Professor Ricks explains, accomplishes this by "plac[ing] students in roles as practitioners handling simulated law practice problems" and provides a more engaging learning experience through the use of "exercises, visual aids, and questions to guide student reading." The book also "includes materials that help students reflect on their professional roles.” You can purchase Current Issues in Constitutional Litigation online here. Tomorrow’s post will feature an excerpt from the book that you won’t want to miss. 

Howard Bashman's “How Appealing” Turns 10

Over the past couple of months I’ve received several reader e-mails asking about the blogs I follow to stay on top of the latest news and trends in appellate litigation. While I subscribe to dozens of excellent law blogs (I cannot bring myself to refer to them as "blawgs") that deliver an endless stream of new content to my Google Reader account, Howard Bashman’s How Appealing stands head and shoulders above the rest.

Earlier this month, How Appealing celebrated its tenth birth day. This is truly an impressive feat given the high number of abandoned law blogs that populate the digital junkyard. Even more impressive, however, is the consistency with which Howard has updated “[t]he Web’s first blog devoted to appellate litigation” with top-notch content over the past decade. Oh, and did I mention he does all of this on top of running his law practice?

For more on Howard's impressive story, here is a brief excerpt from an interview conducted by Tony Mauro, which appeared in yesterday’s National Law Journal: 

 Question: What impact do you think you have had on increasing the awareness of the public and the legal world about appellate courts and jurisprudence?

Bashman: It is difficult for me to assess How Appealing's impact, although the site's hit counter now reflects over 20 million page views. But here are two quick anecdotes that may give you some measure.

First, when I started the blog, the number one response for a Google search of the words "How Appealing" was a web site selling lingerie. Now the top response is my appellate law blog. Whether this represents progress is for others to decide.

Second, on one day when my blog was still in its relative infancy, I posted about a 6th Circuit ruling that had rejected a pro se litigant's claim that the Constitution should entitle him to use the public library in bare feet, because he disliked shoes. I titled my post "No shirt, no shoes, no literature." I refrained, however, from disparaging what many might characterize as a frivolous lawsuit. Within an hour or two, I received an email from the pro se litigant in that case sending me a link to his web site, where readers of my blog could access the briefs filed in the case. That experience confirmed that there's no way to know who is reading the site, and therefore I should continue to refrain from any gratuitous, mean-spirited comments about litigants, courts, or court rulings.

Question: What feedback do you get from appellate judges, including Supreme Court justices? Are you surprised that when you point out an error or typo in a ruling, it gets fixed almost instantly?

Bashman: Once I was attending a Supreme Court-related book launch party in Washington, D.C., when I literally bumped into Chief Justice John G. Roberts, Jr. He promptly asked me who would be updating my blog if I was away attending this event. I have received a great deal of favorable feedback from appellate judges, who usually begin by asking me how I manage to keep the blog going while maintaining a busy appellate practice. Although I rarely respond this way, my thoughts usually go back to the saying that if you want to get something done, give it to someone who is busy.

Occasionally readers will draw humorous typos to my attention in judicial decisions, and sometimes I will post about them on my blog. Lately, courts have become so quick to remove those mistakes that I must now save a copy of the original ruling so that I can post the original online myself once the mistake is fixed in the online version of the official ruling. One of my favorite typos involved attorney Carter Phillips being identified as counsel for "petitionerd" by the U.S. Supreme Court in a hearing list that included a case that he was arguing on behalf of eBay. I am sure that using the word "nerd" in a case involving both Carter Phillips and online technology was entirely accidental! But it was rather funny nonetheless.

I would encourage readers to read the entire article here.

2011-2012's "Busiest" Members of the Supreme Court Bar

Last Friday I posted a sneak preview of a white paper I recently prepared entitled "Supreme Court Yearbook: Class of October Term 2011." In case you missed it, you can find Friday's post here. 

As promised, you can now download the white paper in its entirety on SSRN here. Here is a brief summary of the paper:

Each term the Supreme Court decides a mere seventy-five or so cases out of the more than 8,000 petitions for certiorari seeking review. It’s no surprise then, that, for many attorneys, arguing a case before the highest court in the nation is the crowning achievement of their career. For a select few, however, it is simply business as usual.

Who are these individuals? This year's "Supreme Court Yearbook" provides a look at each member of the Supreme Court Bar who served as the counsel of record in a case during the October Term 2011, ranking them in order based on the number of cases they handled. 

This year's Supreme Court Yearbook similarly ranks the law firms involved in the 2011 term based on the number of cases for which they supplied the counsel of record.

Supreme Court Yearbook: Class of October Term 2011

Last month the Supreme Court capped off a blockbuster term with oral arguments in Arizona v. United States—one of the handful of cases that may dramatically reshape our relationship with the federal government.

Although the term’s landmark cases have spurred endless commentary, speculation, and political maneuvering—not to mention some interesting remarks by the President—there has been relatively little written about the advocates who played an active role in shaping the highly anticipated opinions that the Court will hand down in the weeks to come.*

Each term, including its most recent, the Supreme Court decides a mere seventy-five or so cases out of the more than 8,000 petitions for certiorari seeking review. It’s no surprise then, that, for many attorneys, arguing a case before the highest court in the nation is the crowning achievement of their career. For a select few, however, it is simply business as usual.

Who are these individuals? I’ve compiled a "yearbook" of the advocates who make up the Supreme Court’s “Class of October Term 2011.” The following list ranks the "busiest" members of the Supreme Court Bar, so to speak, in descending order based on the number of cases in which they served as counsel of record. I have also noted each advocate's "firm" (loosely defined to encompass not only private law firms, but also public offices, nonprofits, etc.) and a list of their cases.

Be sure to check back on Monday for the entire list of advocates who made the Class of October Term 2011. In the meantime, here is a list of the advocates who were named as the counsel of record in more than one case during this landmark term:

Donald B. Verrilli, Jr. (10)

     Firm

     Department of Justice (Solicitor General)

     Cases (Petitioner/Respondent)

• Arizona v. United States (R)
• FCC v. Fox Television Stations (P)
• Golan v. Holder (R)
• Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak (P)
• Reynolds v. United States (R)
• The Affordable Care Act Cases (P & R)
• United States v. Alvarez (P)
• United States v. Bormes (P)
• Vartelas v. Holder (R)
• Zivotofsky v. Clinton (R)

Paul D. Clement (7)

     Firm

     Bancroft, PLLC

     Cases (Petitioner/Respondent)

• Arizona v. United States (P)
• Armour v. City of Indianapolis (R)
• Christopher v. SmithKline (R)
• Pacific Operators Offshore v. Valladolid (P)
• Perry v. Perez (-)
• PPL Montana v. Montana (P)
• The Affordable Care Act Cases (P & R) 

Carter G. Phillips (7)

     Firm

     Sidley Austin LLP

     Cases (Petitioner/Respondent)

• Douglas v. Independent Living Center of Southern California (R)
• FCC v. Fox Television Stations (R)
• Florence v. Board of Chosen Freeholders of the County of Burlington (R)
• KPMG LLP v. Cocchi (P)
• Roberts v. Sea-Land Services (P)
• Salazar v. Ramah Navajo Chapter (R)
• Southern Union Company v. United States (P)

Ross Guberman on “Certworthiness,” Charlie Sheen and the Serial Comma, and More (Part 3 of 3)

Here is the third and final installment by guest blogger Ross Guberman, the president of Legal Writing Pro and author of Point Made: How to Write Like the Nation’s Top Advocates. To recap, in Part 1 Ross offered advice on how ambitious attorneys can improve their writing and what the ObamaCare briefs teach us about persuasive brief-writing. In Part 2, Ross gave readers a sneak preview of his new book on how to write like the world's top judges. And now, without further ado, here is Part 3:

Of the nearly 8,000 cert. petitions considered by the Supreme Court during its last full term, it granted review in only 90 of them. How can readers make their cert. petitions stand out from all of the other nonfrivolous petitions seeking the Court’s discretionary review?

When I’ve spoken off-the-record to Supreme Court clerks about this issue, they give useful but unsurprising advice:  Either identify a clear circuit split up front, or stress that the United States or one of the states lost the case below.  Otherwise, say the clerks, your best hope is a national-security spin!

It’s rumored that Justice Brennan would frequently decide whether a case was “certworthy” simply by looking at the cert. petition’s question presented. Justice Scalia once remarked that a cert. petition’s statement of the issue serves as the petition’s "core,” adding, "[t]he rest is just background music." Do you have any advice for readers on how to draft compelling issue statements?

Compelling issue statements have two main features.

The first is chronological: “When A did B and then claimed C, did A violate D?”

The second is rhetorical.  Can you draft a question presented that’s so clear, and yet so neutral in feel, that anyone with common sense would answer it the way you want?

The Solicitor General’s Office does a consistently good job with issue statements and questions presented.

While most lawyers and firms have come to appreciate the value of writing a law blog in recent years, some remain skeptical for one reason or another. Should lawyers take the time to write a blog? If so, what are some of the benefits? Are there any drawbacks?

I run a free newsletter, though not a classic blog, and I find it helpful to be “forced” to get my thoughts down in permanent form. I also read many legal blogs, or BLAWGS, and learn a lot from them.

The main point of a blog is brand differentiation.  In other words, you need to talk about things that other lawyers don’t, or at least have an innovative take on things that every lawyer in your practice knows about.

Too many blogs are strictly informational: “The Federal Circuit recently decided a case of patent infringement, yada yada yada.”

The other challenge: when you’re an expert, how do you deal with commenters who buck you?  You want to keep your voice of authority, but you also want to appreciate that people take the time to interact with your blog.  Many lawyers can seem strident or dismissive on their blogs, and still others let their commenters dominate.

It’s not easy!

To settle the "Oxford comma" debate once and for all, which of the following two sentences contains proper punctuation? (A) In a recent interview, Charlie Sheen talked about his relationship with his ex-wives, Oprah Winfrey and Mel Gibson. (B) In a recent interview, Charlie Sheen talked about his relationship with his ex-wives, Oprah Winfrey, and Mel Gibson.

Your example suggests that you want me to choose option (B)!  The “right” answer, according to major usage manuals and even case law, is option (B) indeed.  In other words: “chocolate, vanilla, and strawberry” and not “chocolate, vanilla and strawberry.” As I’ve noted, the Supreme Court also uses serial commas.

But to be honest, many fastidious lawyers intentionally omit the serial comma, as do journalists who follow the AP Stylebook.  You will see few serial commas, for example, in commercial contracts in this country, a trend that follows legal practice in the UK.  And few series have the inherent ambiguities that your Charlie Sheen example does.

Put another way, if missing serial commas were Charlie Sheen’s biggest problem in life right now, he’d be in great shape!

Ross Guberman's Short List of the Nation's Top Judges (Part 2 of 3)

Today marks the second installment of our three-part series from Legal Writing Pro's Ross Guberman. In case you missed Part 1, you can find it here. As I mentioned yesterday, Ross is the author of Point Made: How to Write Like the Nation’s Top Advocates. Today Ross talks about his next book, which will focus on how to write like some of the top judges from around the world. Here is our Q&A:

It's my understanding that your next book will discuss how to write like the nation's best judges. Who is on your short list of the nation’s best judges and how did you go about selecting them?

This next book has been a fun project, though I’m not as far along as I would have hoped. The book will have an international spin, so I’ll be looking at English courts, the Canadian Supreme Court, the European Union, and even the Japanese Supreme Court in translation.

My criteria: opinions that are both clear and engaging from judges of some national or international prominence.

Here in the States, I will include many familiar names on the Supreme Court, both past and present.  On the lower courts, I will likely include the Ninth Circuit’s Chief Judge Kozinksi as well as Judges Posner and Easterbrook on the Seventh Circuit and their colleague Judge Diane Wood. I have also become a fan of Judge Neil Gorsuch on the Tenth Circuit, and of the late Richard Arnold of the Eighth Circuit.  

On the district courts, I have been impressed by Judge Jed Rakoff in New York.  I would love any recommendations from your readers, particularly for judges on the lower courts or state courts: just email me at ross@legalwritingpro.com!

Stay tuned for tomorrow's third and final installment, in which Ross and I discuss everything from how the Supreme Court selects its cases to how Charlie Sheen can help you remember when to use an Oxford comma.

Advice from Legal Writing Pro's Ross Guberman (Part 1 of 3)

Today I’m delighted to introduce legal-writing guru Ross Guberman as this week’s guest blogger. As the president of Legal Writing Pro LLC, Ross has helped many of the nation’s top judges, advocates, and government officials improve their writing. Ross is also the author of Point Made: How to Write Like the Nation’s Top Advocates, an Amazon bestseller that belongs on every attorney’s bookshelf. You can read my review of the book here.

Ross was kind enough to share his insight and advice with readers on a variety of topics including ways that attorneys can improve their writing, what the ObamaCare briefs teach us about persuasive brief-writing, the characteristics that make a case “certworthy” in the eyes of the Supreme Court, and how Charlie Sheen can help you remember when to punctuate your sentences with serial commas. Today’s post is the first of three installments. 

Can bad writing lose a strong case? Can good writing win a weak case?

Plenty of bad briefs prompt victories, and plenty of first-rate briefs end in defeat.  But on the margins, nearly all judges will tell you that writing matters.  After all, you can’t separate the writing from the substance.  When writing is clear, and even memorable, it makes it all that much easier to understand and to endorse the lawyer’s message.

How can attorneys improve their writing?

Not by just “reading great writing.”  If reading alone made you a better writer, then going to a Michelin-starred restaurant would make you a better cook.

Instead, ambitious attorneys should find some writing models or heroes.  (My own book identifies 50 of the most influential advocates alive, for example.)  Think quality, not quantity.  So I’d rather see people dissect a single paragraph of a John Roberts or Elena Kagan brief than skim hundreds of pages of their opinions.

I also suggest studying choice excerpts from non-legal sources.  Some of my favorites are the Economist, The New Republic, The New Yorker, and the Wall Street Journal. 

You recently published a 140-comment critique of the Solicitor General’s brief to the U.S. Supreme Court in the Affordable Care Act cases. What are the key ingredients to writing an exceptional appellate brief?

From a writing perspective, an even better brief was the one that Paul Clement filed in the same individual-mandate litigation: 

Structurally, you need to develop a single sentence on your client’s behalf that cascades through every section of your brief.  For Mr. Clement, it’s the idea that “the mandate is unprecedented and unbounded.”  That idea is in the first sentence of his introduction and the last sentence of the argument.  It also seeps into his fact section and his headings.  Agree with his theme or not, you’ll never forget it.

Stylistically, you want to have more fun with your writing.  More examples, analogies, and metaphors.  More short sentences of seven or fewer words.  More sentences starting with short words.  More questions, with or without answers.  More vivid verbs (“doom,” “jettison,” “spare,” “pluck,” “pocket.”) More transitions, and more interesting ones. More varied punctuation: colons and dashes, for example.  Frankly, just more personality all around.  If you’re not having fun, how do you expect the judges to have fun?

100 Appellate Law Twitter Feeds to Follow

Like it or not, a growing number of attorneys and legal reporters now turn to Twitter for the latest in legal news. For readers who are unfamiliar with the service, Twitter is the wildly popular “microblog” where users send and receive messages (called "tweets"), exchange links, and follow news snippets in 140 characters or less. Twitter essentially functions like a stock ticker. Only, instead of watching stock prices scroll across the ticker, a user reads tweets as they scroll down their Twitter feed. 

So, without further ado, here is my list of 100 attorneys and reporters who cover the appellate courts to follow on Twitter:

1. @5thCircAppeals, Jason Steed, Akin Gump
2. @10thCircAppeals, Jason Steed, Akin Gump
3. @9thjustice, Stuart Taylor & Amy Harder, National Law Journal 
4. @AdamLiptak, Adam Liptak, New York Times
5. @adamwinkler, Adam Winkler, UCLA
6. @acslaw, ACSLaw
7. @ameliabizzaro, Amelia Bizzaro, Bizzaro Law LLC
8. @andrewmgrossman, Andrew M. Grossman, Baker Hostetler
9. @annalthouse, Ann Althouse, althouse.blogspote.com
10. @AP_Courtside, Mark Sherman, Associated Press Courtside Seat
11. @AppAdvoc, Appellate Advocate
12. @appealgirl, LaDawn Conway, Alexander Dubose & Townsend LLP
13. @appealofwords, Kimberly A. Jansen, theappealofwords.com
14. @appealsattorney, Ryan Clinton, Hankinson Levinger LLP
15. @AppellateDaily, Michelle Olsen, National Law Journal
16. @appellatelaw, Chad Ruback
17. @appellatepro, AppellatePro
18. @AppellateRecord, Kendall Gray, Andrews Kurth LLP
19. @AppellateWatch, Scott Stolley & Rich Phillips, Thompson & Knight LLP
20. @AppellaTex, D. Todd Smith, Texas Appellate Law Blog
21. @Appellatology, Steve Merican, illinoisappellatelawyerblog.com
22. @Arianadevogue, Ariane de Vogue, ABC News
23. @CBSAndrew, Andrew Cohen, CBS’s 60 Minutes
24. @certpool, Don Cruse, certpool.com
25. @CircuitSplits, Nicholas Wagoner, CircuitSplits.com
26. @comforjustice, Committee 4 Justice
27. @Courtartist, Arthur Lien, courtartist.com
28. @crfredrickson, Caroline Fredrickson, American Constitution Society
29. @DahliaLithwick, Dahlia Lithwick, Slate
30. @DailyWrit, Kedar Bhatia, DailyWrit.com
31. @dan_bushell, Dan Bushell, FloridaAppellateReview.com
32. @DavidLBrownJr, David Brown, National Law Journal, LegalTimes, & Law.com
33. @docketdb, Don Cruse, DocketDB
34. @doncruse, Don Cruse, Law Office of Don Cruse
35. @DCCIR, D.C. (Short) Circuit
36. @DCCircuitReview, dccircuitreview.com
37. @DCCourtsInfo, Washington D.C. Courts' Public Information Office
38. @DCDicta, Kimberly Atkins, DC Dicta
39. @dcoale, David Coale, Lynn Tillotson Pinker & Cox
40. @dtoddsmith, D. Todd Smith, Smith Law Group, PC
41. @dodrummond, Dylan O. Drummond, Griffith Nixon Davison
42. @GregStohr, Greg Stohr, Bloomberg News
43. @imillhiser, Ian Millhiser, Center for American Progress
44. @indianalawblog, Indiana Law Blog
45. @invcondemnation, Robert Thomas, inversecondemnation.com
46. @iSupremeCourt, Supreme Court USA
47. @JessBravin, Jess Bravin, Wall Street Journal
48. @JesseJHolland, Jesse J. Holland, Associated Press
49. @Joan_Vennochi, Joan Vennochi, Boston Globe
50. @JoanBiskupic, Joan Biskupic, USA Today
51. @JonathanTurley, Jonathan Turley, The George Washington University Law School
52. @jscottkey, J. Scott Key, Georgia Criminal Appellate Law Blog
53. @Judgepedia, Judgepedia.org
54. @JulianaGaige, Juliana Gaige
55. @KannonShanmugam, Kannon Shanmugam, Williams & Connolly LLP
56. @kennethanderson, Kenneth Anderson, American University Washington College of Law
57. @kevincwalsh, Kevin C. Walsh, walshlaw.wordpress.com
58. @lawdotcom, Law.com
59. @LawrenceHurley, Lawrence Hurley, Greenwire
60. @Legal_Times, The BLT: The Blog of LegalTimes
61. @marktrach, Mark Trachtenberg, Haynes & Boone, LLP
62. @mattkaiser, Matt Kaiser, The Kaiser Law Firm
63. @MikeSacksHP, Mike Sacks, Huffington Post
64. @MyConstitution, Constitutional Accountability Center
65. @nationallawjrnl, National Law Journal
66. @nicholaswagoner, Nicholas J. Wagoner, Rogers, Morris & Grover, LLP
67. @NinaTotenberg, Nina Totenberg, NPR
68. @OHAppellateAtty, Frank H. Scialdone, Mazanec, Raskin & Ruder Co., LPA
69. @olsonleif, Leif Olson, Welsh Chapoton LLP
70. @onthedocketgu, Georgetown University's Supreme Court Society
71. @oyez, Jerry Goldman, The Oyez Project at Chicago-Kent College of Law
72. @PhilipMiles, Philip Miles, Lawffice Space - Employment Law Blog
73. @PorzioAppealLaw, Brian P. Sharkey, porzioappeallaw.pbnlaw.com
74. @rbphillipsjr, Rich Phillips, Thompson & Knight LLP
75. @recordonappeal, Rebecca Copeland, recordonappeal.com
76. @rickhasen, Rick Hasen, University of California Irvine
77. @RobertIafolla, Robert Lafolla, Los Angeles Daily Journal
78. @rrotunda, Ronald Rotunda, Chapman University School of Law
79. @ScottKingField, Scott Field, The Field Law Firm
80. @Scotus, Scotus
81. @SCOTUSblog, Lyle Denniston, Tom Goldstein, & other contributors, SCOTUSblog
82. @SCOTUSblogposts, Lyle Denniston, Tom Goldstein, & other contributors, SCOTUSblog
83. @SCOTUSOpinions, U.S. Supreme Court Opinions
84. @scotusreporter, Robert Barnes, Washington Post
85. @scotxblog, Don Cruse, The Supreme Court of Texas Blog 
86. @sethstern, Seth Stern, Bloomberg News
87. @ShannonBream, Shannon Bream, Fox
88. @ShermanCourt, Mark Sherman Associated Press
89. @SupremeCourtRep, Supreme Court Report
90. @SupremeHaiku, Kieth Jaasma, SupremeCourtHaiku.com
91. @Susan_Vance, Susan Vance, Alexander Dubose & Townsend
92. @TheSCOTUSTrap, Trapit
93. @TonyMauro, Tony Mauro, National Law Journal
94. @UtahAppeals, Troy L. Booher, utahappellateblog.com
95. @TXAppeals, Jason Steed, Akin Gump
96. @TXBarbaraAnn, Barbara Ann Radnofsky, Radnofsky Mediation Services
97. @USSupremeCourt, supremecourtus.gov
98. @VolokhC, Eugene Volokh, UCLA
99. @VolokhConspirac, The Volokh Conspiracy
100. @ZoeTillman, Zoe Tillman, National Law Journal & LegalTimes

This list is by no means exhaustive so please feel free to add to the list in the comments below.   

 

140 Writing Tips From the "Brief of the Century"

As I mentioned on the Legal Skills Prof Blog (here), I recently finished reading writing guru Ross Guberman's new book entitled "Point Made: How to Write Like the Nation's Top Advocates." I highly recommend the book to any lawyer, professor, or law student who is interested in improving their writing, but is not willing to suffer through another stuffy treatise. It seems that Ross has kept quite busy since the release of his book last year. In anticipation of this week's oral arguments on the Affordable Care Act, Ross has put together a list of 140+ writing tips using the Solicitor General's brief to the Supreme Court (otherwise referred to as the "brief of the century") discussing the constitutionality of the Act. You can read his comments here: PDF.

On a related note, you can listen to an audio recording of yesterday's oral argument concerning the Anti-Injunction Act's applicability to the Health Care Reform Cases by clicking on the following YouTube video:

[*Hat tip to Ross Guberman for the link.]

100 Parenthetical Starter Words and More

Last Sunday the Legal Skills Prof Blog featured the third and final installment of my three-part series exploring tips from some of the nation's top judges and appellate advocates on how to improve legal writing through the thoughtful use of parentheticals. Here are the links:

• Part 1: Common Parenthetical Pitfalls (Jan. 19, 2012).

• Part 2: Crafting Perfect Parentheticals (Jan. 29, 2012).

• Part 3: 100 Parenthetical Starter Words (Feb. 12, 2012).

70 Articles On the Practice of Appellate Law

A lot has been written about the practice of appellate law. From David Frederick's "Art of Oral Advocacy" to Chief Judge Alex Kozinski's "The Wrong Stuff," the following articles offer a broad range of commentary on the art, science, practice, or whatever you want to call it, of appellate law. But this list is by no means comprehensive, so please feel free to recommend additional articles by leaving a comment below.

Articles Published in Law Reviews, Bar Journals, Legal Periodicals, & CLE Papers

1. American Academy of Appellate Lawyers, Statements on the Functions and Future of Appellate Lawyers, 8 App. Prac. & Process 1 (2006) (PDF)
2. Axelrad, David M., Paint Me a Picture: A Conversation on the Appellate Process, Appellate Advocacy (Nov. 2009) (PDF)
3. Baldock, Robert R. et al., Transcript, What Appellate Advocates Seek from Appellate Judges and what Appellate Judges Seek from Appellate Advocates, 31 N.M. L. Rev. 265 (2001) (PDF)
4. Baker, Thomas E., An Annotated Bibliography on Federal Appellate Practice and Procedure, 10 J. App. Prac. & Process 13 (2009)
5. Barksdale, Rhesa Hawkins, The Role of Civility in Appellate Advocacy, 50 S.C. L. Rev. 573 (1999)
6. Baruch, Chad, State Bar of Texas, Improving Legal Writing in Appeals, 22nd Annual Advanced Civil Appellate Practice Course (Sept. 4-5, 2008) (PDF)
7. Bishop, Timothy S., Oral Argument in the Roberts Court, 35 Litig. 1 (ABA Winter 2009) (PDF)
8. Bishop, Timothy S. et al., Tips on Petitioning for and Opposing Certiorari in the U.S. Supreme Court, 34 Litig. (ABA Winter 2008) (PDF)
9. Bishop, Timohty S. & Sarles, Jeffrey W., Petitioning the United States Supreme Court for Certiorari: A Primer, Appellate.net (ABA 1994) (web)
10. Blakley, Alan F., Ten Ways To Lose An Appeal, Part I, 53 Fed. Law 18 (Oct. 2006)
11. Cappalli, Richard B., Improving Appellate Opinions, 83 Judicature 286 (2000) (web)
12. Chestek, Kenneth D., The Plot Thickens: The Appellate Brief as Story (Dec. 18, 2007) (SSRN)
13. Cole, Jeffrey, An Interview With Steve Shapiro: The Art of Appellate Advocacy, 2 The Circuit Rider 3 (PDF)
14. Cole, Jeffrey, An Interview With Steve Shapiro, 23 Litig. (ABA Winter 1997) (web)
15. Dwyer, Stephen J. et al., How to Write, Edit, and Review Persuasive Briefs: Seven Guidelines From One Judge and Two Lawyers, 31 Seattle Univ. L. Rev. 417 (2008) (PDF)
16. Elligett, Jr., Raymond T. & Scheb, John M., Stating the Case and Facts: Foundation of the Appellate Brief, 32 Stetson L. Rev. 415 (2003) (PDF)*
17. Fisher, Jeffrey, A Supreme Court Clinic’s Place in the Supreme Court Bar, Stan. Pub. L. Working Paper No. 1921430 (Jan. 25, 2012) (SSRN)
18. Frey, Andrew L., Amici Curiae: Friends of the Court or Nuisance?, 33 Litig. 1 (Fall 2006) (PDF)
19. Frey, Andrew L. & Englert, Roy, How to Write a Good Appellate Brief, Appellate.net (ABA 1994) (web)
20. Fronk, Casey R., The Cost of Judicial Citation: An Empirical Investigation of Citation Practices in the Federal Appellate Courts, 2010 U. Ill. J.L. Tech. & Pol'y 51 (2010).
21. Geller, Kenneth S. et al., Opposing Review: The Art of Finding "Uncertworthiness", 1 Inside Litig. 27 (Mar. 1987) (web)
22. Ginsburg, Ruth Bader, Remarks on Appellate Advocacy, 50 S. C. L. Rev. 567 (1999)
23. Godbold, John, Twenty Pages and Twenty Minutes, 15 Litig. 3 (Spring 1989) (PDF)
24. Greaney, John M. Power of the Pen, 38 Trial 48 (July 2002) (web)
25. Hamilton, Clyde H., Effective Appellate Brief Writing, 50 S. C. L. Rev. 581 (1999)
26. Harlan, John M., What Part Does the Oral Argument Play in the Conduct of an Appeal?, 41 Cornell Q. 6 (1956) (PDF)
27. Hatchett, Joseph W. & Telfer, Robert J., III, The Importance of Appellate Oral Argument, 33 Stetson L. Rev. 139 (2003) (PDF)
28. Hawkins, Michael Daly, Your Worst Nightmare: Things That Can Go Bump on Appeal, 22 Litig. 3 (Spring1996)
29. Herr, David F. & Gilbertson, Cynthia F., Improving the Odds on Appeal, 60 Bench & B. Minn. 17 (2003) (PDF)
30. Higginbotham, Patrick E., Book Review, Narratives Drawn from Rich Experience: Mayer Brown's Federal Appellate Practice, 10 J. App. Prac. & Process 401 (2009)
31. Kozinski, Alex, How You Too Can Lose Your Appeal, Montana Lawyer (Oct. 23, 1997) (web)
32. Kozinski, Alex, The Wrong Stuff, 1992 BYU L. Rev. 325 (1992) (PDF)
33. Lewis, David, Common Knowledge about Appellate Briefs: True or False?, 6 J. App. Prac. & Process 331 (2004) (web)
34. Lewis, David, If You Have Seen One Circuit, Have You Seen Them All? A Comparison of the Advocacy Preferences of Three Federal Circuit Courts Of Appeal, 83 Denv. U. L. Rev. 893 (2006) (PDF)
35. Lewis, David, 138 Appellate Judges Can't be Wrong, The Champion 10 (Aug. 2007) (PDF)
36. Lewis, David, What's the Difference?: A Comparison of the Advocacy Preferences of State and Federal Appellate Judges, 7 J. App. Prac. & Process 335 (2005)
37. Lewis, David, Survey Sheds Light on Appellate Brief-Writing, 32 Mass. Lawyer's Weekly 495 (Nov. 3, 2003)
38. Lewis, David, Appellate Judge Survey Offers Insight into Effective Advocacy, 14 N.H. B. News 13 (Sept. 5, 2003) (web)
39. Llewellyn, Karl N., A Lecture On Appellate Advocacy, 7 J. App. Prac. & Process 173 (2005) (web)
40. Markman, Stuart C., Responding to Appellate Lawyers Who Cross the Line, 32 Stetson L. Rev. 425 (2003) (PDF)
41. Mauro, Tony, Courtside, Court Aces, 26 Legal Times (July 14, 2003) (PDF)
42. Merling, Joseph C., Advocacy at Its Best: The Views of Appellate Staff Attorneys, 8 J. App. Prac. & Process 301 (2006) (web)
43. Miner, Roger J., Professional Responsibility in Appellate Practice: A View from the Bench, 19 Pace L. Rev. 323 (1999) (PDF)
44. Pregerson, Harry & Painter-Thorne, Suzianne D., The Seven Virtues of Appellate Brief Writing: An Update from the Bench, 38 Sw. L. Rev. 221 (2008) (PDF)
45. Pregerson, Harry, The Seven Sins of Appellate Brief Writing and Other Transgressions, 34 UCLA L. Rev. 431 (1986)
46. Pierce, Lawrence W. Pierce, Appellate Advocacy: Some Reflections from the Bench, 61 Fordham L. Rev. 829 (1993) (PDF)
47. Posner, Richard, Convincing a Federal Court of Appeals, 25 Litig. 3 (Winter 1999) (Word) (web)
48. Rehnquist, William H., From Webster to Word-Processing: The Ascendance of the Appellate Brief, 1 J. App. Prac. & Process 1 (1999)*
49. Rehnquist, William H., Oral Advocacy, 27 S. Tex. L. Rev. 289 (1986)
50. Rehnquist, William H., Oral Advocacy: A Disappearing Art, 35 Mercer L. Rev. 1017 (1984)
51. Richmond, Douglas R., Appellate Ethics: Truth, Criticism, and Consequences, 23 Rev. Litig. 301 (Spring 2004)
52. Rychlak, Ronald J., Effective Appellate Advocacy: Tips from the Teams, 66 Miss. L.J. 527 (1997) (SSRN)
53. Sasso, Gary L., Appellate Oral Argument, 20 Litig. 27 (Summer 1997) (PDF)
54. Schroeder, James C. & Dow, Jr., Robert M., Arguing for Changes in the Law, 25 Litig. 2 (Winter 1999) (web)
55. Shapiro, Stephen M., Readable Briefs for Busy Judges, ABA Appellate Practice J. (Summer 2010) (PDF)
56. Shapiro, Stephen M., Questions, Answers, and Prepared Remarks, 15 Litig. 33 (Spring 1989) (PDF)
57. Shapiro, Stephen M., Speech, Oral Argument in the Supreme Court: The Felt Necessities of the Time, Appellate.net (Mayer, Brown & Platt 1999) (web)
58. Shapiro, Stephen M., Certiorari Practice: The Supreme Court's Shrinking Docket, Appellate.com (Mayer, Brown & Platt 1999) (web)
59. Shepherd, John H., Making Appellate Advocacy More Effective, 74 Mich. B.J. 32 (Jan. 1995) (PDF)
60. Spence, Gerry, Beyond Shouting, 81 ABA J. 68 (1995) (Google Books)
61. Sundquist, Matthew L., Learned in Litigation: Former Solicitors General in the Supreme Court Bar, 5 Charleston L. Rev. 59 (2010) (PDF)
62. Tchen, Christina M., Still Grateful after All These Years, 5 J. App. Prac. & Process 157 (2003) (web)
63. Tiscione, Kristen K., The Inside Scoop: What Federal Judges Really Think About the Way Lawyers Write, 8 L. Writing 257 (2002) (PDF)
64. Tobias, Carl, The Federal Appeals Courts at Century’s End, 34 U.C. Davis L. Rev. 549 (2000) (PDF)
65. Walbolt, Sylvia H. & Allen, Matthew D., The Ten Commandments of Writing an Effective Appellate Brief (PDF)
66. Walbot, Sylvia H. & Lang, Jr., Joseph H., Amicus Briefs Revisited, 31 Stetson L. Rev. 171 (2003) (PDF)
67. Wald, Patricia M., Essay, 19 Times from 19 Years on the Appellate Bench, 1 J. App. Prac. & Process 7 (1999) (PDF)
68. Wiener, Jr., Jacques L., Ruminations from the Bench: Brief Writing and Oral Argument in the Fifth Circuit, 70 Tul. L. Rev. 187 (1995) 
69. Wilson, Charles R., How Opinions Are Developed in the United States Court of Appeals, 32 Stetson L. Rev. 247 (2003) (PDF)
70. Winkelman, Nancy, "Just a Brief Writer"?, 29 Litig. 50 (Summer 2003) (PDF)

 

Common Parenthetical Pitfalls

Justice Ginsburg once wrote that one of the items on her “check list for a first-rate brief” is the liberal use of parentheticals (no pun intended) “offering the readers a clue why they are there” by “show[ing] the relevance of the citation.” Ruth Bader Ginsburg, Remarks on Appellate Advocacy, 50 S.C. L. Rev. 567, 568 (1999). Senior Judge Leonard Garth of the Third Circuit expressed an even deeper appreciation for the parenthetical when he proclaimed, “The single, easiest way to make a good brief better is by the judicious use of parentheticals following case citations.” Leonard I. Garth, How to Appeal to an Appellate Judge, 21 Litig. 20, 24-66 (Fall 1994). 

So how do you cure a poorly drafted parenthetical? This first thing to do is to learn how to diagnose it. For Part I of my three-part series on the use of parentheticals in legal writing, check out the Legal Skills Prof Blog here.

 

Building an Appellate Practice

Check out this excellent video from 2008, in which Supreme Court veteran and founder of SCOTUSBlog.com Thomas Goldstein explains how he established himself as an appellate lawyer. Highlights include an anecdote about how Mr. Goldstein leveraged "validators" to confirm his appellate expertise, how he earned his nickname as the "ambulance chaser of the Supreme Court bar," and how a high-stakes SCOTUS practice niche has emerged over the last decade.  

For more on this topic, click here.