The Appellate Record : Texas Appellate Lawyer & Attorney Kendall Gray for Fifth Circuit & Supreme Court Appeals

I can no longer find the quote, but I heard it said somewhere that the definition of a "legal fiction" is "something only a lawyer could believe."  I could not avoid that impression upon reading Salazar v. Buono (pdf), decided Tuesday by the Supreme Court of the United States. 

At issue?  According to Justices Kennedy and Alito: two lengths of four inch pipe, painted white and arranged in the shape of a cross, erected 10 miles from the nearest highway in a portion of the Mojave desert owned by the federal government that exceeded the combined area of the Nation's five smallest states and that was "likely . . . seen by more rattlesnakes than humans." The pipe sparked four lower court opinions to the effect that such pipes "establish" a religion, which, once established could not be cured by Congress passing a law to transfer the land into private hands for continued maintenance as a monument to "the Great War."

Why?  According to Justice Scalia: Because Mr. Buono was "deeply offended by the display of a Latin Cross on government-owned property" but had "no objection to Christian symbols on private property."

Hemmed in as they were by Mr. Buono's first final judgment, for which Supreme Court review was never sought, the Supreme Court could not reach the merits of whether such a display "established" a religion or whether Mr. Buono's "deep offense" was a sufficient injury to "make a federal case" out of it.  Nevertheless, the Court devoted 71 pages of judicial contretemps in six opinions concerning whether Mr. Buono's Constitutional right not to be "deeply offended" survived the Congressional transfer of the land to the Veterans of Foreign Wars. 

And they remanded to the District Court for further proceedings on the transfer of the land with the lengths of four inch pipe.

Now, don't get me wrong.  I don't discount real establishment clause issues as unimportant or simplistic.    I was at just such an argument the very day this case came out.  But is Buono how we should be expending our judicial resources as Plaintiffs or as Defendants or as Courts?  Especially in a case where no Establishment Clause precedent is even possible?

Chief Justice Roberts' concurring opinion said it best.  This is not surprising, because it was also the shortest.  I reproduce it here in full:

At oral argument, respondent’s counsel stated that it “likely would be consistent with the injunction” for the Government to tear down the cross, sell the land to the Veterans of Foreign Wars, and return the cross to them,with the VFW immediately raising the cross again. Tr. of Oral Arg. 44. I do not see how it can make a difference for the Government to skip that empty ritual and do what Congress told it to do—sell the land with the cross on it. “The Constitution deals with substance, not shadows.” Cummings v. Missouri, 4 Wall. 277, 325 (1867).

(Emphasis added).

For all the post-opinion-learned-head-cogitation on my television, there is very little "there" there.  Whether one's own culture war scruples emphasize "establishment" or "free exercise," the substance of those protections is cheapened for both sides when the alleged injury and the substantive controversy are something only a lawyer could believe. 

• Email This
• Print
• Comments
• Trackbacks
• Share Link

There's a special form of legal terrorism going on out there.  Judges everywhere are being abducted and taken on horrific journeys that they never knew they were in for. 

Well, only kind of. 

What I'm talking about is the tendency of advocates not to tell the judge where they want to go and how they're going to get there.  The result of such a failure is that the decision maker you are trying to persuade feels like he or she has been dumped in the trunk of your car in the dead of night.  Instead of persuasion, the reader feels disorientation or worse. 

After the jump, read an illustration of the problem and some approaches for how to take your reader along for the ride while not making them feel like they've been abducted.

• Email This
• Print
• Comments (3)
• Trackbacks
• Share Link

A new Fifth Circuit opinion that may be of interest for civil practitioners in Texas.  In The Offshore Drilling Co. v. Gulf Copper & Manufacturing Corp. (pdf) the Fifth Circuit upheld the summary judgment granting indemnity for the contractor whose "hot work" the rig owner blamed for starting a fire on its jack up rig.

The portion of the indemnity provision quoted by the Fifth Circuit  -- odd in its lack of "express negligence" type language ordinarily required under Texas law -- read:

Owner shall indemnify Contractor . . . against any and all losses [to Owner’s property] . . . (unless such property is under the control of Contractor at the time at which such loss or damage occurs), which arise from, are incident to, connected with, or result directly or indirectly from the performance of the work . . . .

The parties disputed control, and according to the Fifth Circuit, came up with additional arguments on their way to the appellate court.  The Court found those to be waived (about which I hope to write more later).  The Court relied on analogies to Texas premises liability law in finding that the "hot work" contractor was not in "control of the property" even though the rig was located at its dock, primarily because it was one of many subcontractors whose access to the rig was controlled and monitored by the rig's owner:

While no Texas court has analyzed “control” in these circumstances, at least one Texas appellate court has applied this definition in a similar context. See Rendleman v. Clarke, 909 S.W.2d 56, 60 (Tex. App. – Houston [14th Dist.] 1995). Rendleman addressed an issue of premises liability, but its discussion of control is still instructive. Specifically, the Rendleman court found that a subcontractor did not control a construction site when multiple other subcontractors were also at work on it, and the contractor performed substantial coordinating functions. Id. at 60-61.

. . . Although TODCO presents evidence demonstrating Gulf Copper’s duties on the vessel, most of these facts pertain only to control over Gulf Copper’s specific project. . . .

. . . As in Rendleman, the evidence showed that TODCO directed and coordinated the bulk of the work performed by the many unrelated contractors also on board.

Judge Southwick wrote the opinion and was joined by Judge Garwood in all respects.  Judge Owen agreed with the result on liability but dissented on the question of whether indemnitee was entitled to attorneys' fees under the language of the contract.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

If the present state of legal writing were any indication, Law Schools apparently teach their students that the ideal written argument should have all the attributes of a shell game on the carnival boardwalk, or maybe a game of "Three Card Monty."

Move things around, bamboozle the judge with your legal jargon and passive voice, and disguise your main point by burying your strongest cases to the back of the brief, preferably in a footnote.

Do you think I'm being to harsh?  Ask the judges.  I bet they'll agree with me.

Rather than "Three Card Monty," a former colleague of mine, who is now a judge, advocated a different paradigm:

You should write as if the judge is reading your motion at three o'clock in the morning . . . while drunk.

Now, there's a picture.  Her words.  The Judge's words.  Not mine.

After the jump, a good lesson in avoiding the "Three Card Monty" motion and writing for the Three A.M. Judge.

• Email This
• Print
• Comments (2)
• Trackbacks
• Share Link

Several weeks ago, a post here on TXI Transportation v. Hughes (pdf) made mention of the fact that a majority of our current Supreme Court of Texas would not have had opportunity to serve at the time of that court's 1889 opinion, Moss v. Sanger, condemning appeals to racial animus in arguments to the jury.

Something just as cool happened this week.  John Council of the Texas Lawyer Blog noted:

. . . Texas Supreme Court Chief Justice Wallace Jefferson was traveling yesterday and could not be at oral arguments. So, by tradition, the most senior justice on the court took his spot in presiding over the first case on the docket. Since Justice Nathan Hecht, the high court’s longest- serving justice, recused himself from hearing TGS- NOPEC Geophysical Co. v. Susan Combs, et al., the job of presiding over the court fell to the next most senior justice, Harriet O’Neill. O’Neill says she didn’t realize it at the time, but it was a historic moment. A woman has not presided over the Texas Supreme Court since 1925, when Gov. Pat Neff appointed an all-woman court. . . .

But the really really cool part is that it happened as a matter of course and nobody noticed until after the fact.  Justice Harriet O'Neill just happened to be the senior justice on duty, and she just did her job, as she has been doing since 1999.  John Council quotes Justice O'Neill:

Isn’t that amazing? I didn’t even think about it,” . . . .

Now we're getting somewhere--when the "right thing" that used to be so hard to do or so exceptional or so controversial becomes so accepted that it happens without a thought.  Nice.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Sometimes I sits and thinks.

And sometimes I just sits. 

Since the Supreme Court of Texas released Del Lago Partners v. Smith, I've been sitting and thinking and thinking.  And when I do it, I start to sound like a toddler.  All I can ask is "why?"

Not that the opinion is wrong, mind you. I take it for granted that it is correctly decided.  As Chief Justice Phillips used to say, "We are not final because we are infallible; we are infallible because we are final."

I just wonder why the Supreme Court of Texas is getting involved in a bar fight with drunken fraternity boys if it is not going to lay down a rule of law that can be applied to future cases.  This is sort of the opposite of the "Chuck Norris Theory" of Supreme Court Jurisdiction. 

After the jump, some rambling prose on why cases like Del Lago Partners aren't the highest and best use of judicial resources for a court with discretionary jurisdiction.

• Email This
• Print
• Comments (5)
• Trackbacks
• Share Link

That incredibly geeky sound you heard over the weekend was the sound of delight as civil procedure profs and appellate lawyers thrilled over the new Fifth Circuit opinions.  What could be better than federal subject matter jurisdiction involving alienage, diversity and removal?

•  In Halmekangas v. State Farm the defendant removed a case to federal court that had no independent basis for federal subject matter jurisdiction, arguing that it was related to a Katrina coverage case already pending in federal court and would fall under the court's "supplemental jurisdiction" (28 U.S.C. 1367).  The Fifth Circuit said, "Interesting argument, but no. Every case must have its own basis for federal jurisdiction before non-federal claims may hitch a ride."  Judge Higginbotham wrote the opinion. 
• Berik Stiftung v. Plains Marketing involved the wonderfully arcane question of how a Lichtensteinian entity ought to be treated for determining diversity of citizenship jurisdiction.  Berik Stiftung argued that it was like a trust under U.S. law and the court should consider only the citizenship of its beneficiaries (i.e., Florida v. Canada and Texas).  Plains argued that Berik Stiftung was more like a corporate person so that the court should consider the state of its incorporation (i.e. Lichtenstein v. Canada and Texas).   This would mean damn foreigners on both sides of the "v," no diversity of citizenship and no federal jurisdiction. 

Plains won.  Judge DeMoss wrote the opinion and got to use the words "res nova" and  “juristische Person.”  Nice touch, that.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Psssst.  Check it out.

The Fifth Circuit released a couple of opinions yesterday that were not blogworthy--unless that is you thrive on insurance coverage opinions or arcane, federal statutory questions.  

Not that there's anything wrong with that.

But you know what?  The blog has a tool that you can use to peruse the new, published opinions as they come out, even if I don't post on them individually.

I've set up some RSS feeds from the Court that filter out all the criminal, prisoner, immigration and unpublished cases.  Just look at the side bar for "5th Circuit Opinions" and click on a date.  All the published, civil cases coming out that day will be there for your dining pleasure. 

Enjoy. 

• Email This
• Print
• Comments
• Trackbacks
• Share Link

If you are an appellate lawyer in a law firm, then you're probably treated like the "Shell Answer Man."

(Gentle Reader, if you were not born until the late '70s, this is a pop culture reference to a Shell Oil Company advertising campaign from the time before "Reality Television."  Bear with me.)

You know what I mean.  People avoid that big room with the shelves and shelves of books with a quick trip to the office of the appellate lawyer.  The questions can be practical"

• Can I remove a claim involving _______?
• Do you know of a case on ______?
• How do I preserve error when ____?

They can also be terrifying.

How many times, dear colleagues, has the clever lawyer (often with dollar signs in the eyes) come to your office and asked:

Can I [Fill In The Blank With Random, Incredibly High Risk Gambit With infinitesimally Low Probability Of Potential Reward That Will Likely End In Disaster]??

I often answer this question with a question:

Why would you want to?

The corollary to this question, often by the same lawyer is:

Do I have to [Fill In The Blank With Low Risk, Widely-Accepted Manner Of Doing Things That Would Avoid Vagaries In The Law That Said Lawyer Wants To Exploit For Potential Gain]?

This question is also often answered with a question:

Why wouldn't you do it that way?

After the jump, a primer on the antidote to such temptations, what my mentor, Lori Gallagher, called the "sleep at night" school of practicing law.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Well, the Civil Procedure wonks are all a-twitter today over the Supreme Court's Shady Grove opinion  (pdf).  And who wouldn't be?  Combine the Erie Doctrine with prompt pay penalties and Federal Rule 23 and you've got a party.   Add a keg and the law nerds will be off the hook, or chain or whatever mot juste is currently de rigueur.

But I'm still counting votes, reading the opinion and trying to decide who won. 

For me the big news is United Healthcare Ins. Co. v. Davis, released today by the Fifth Circuit. 

The State of Louisiana decided to self-insure its employee health benefits to save money.  But this shut out a Louisiana HMO that handled insured products. 

So the HMO "petitioned the government" for a law creating an insured option in which only Louisiana HMOs (i.e., that HMO) could participate.  And it "petitioned the government for a new, open enrollment period during the middle of the plan year for which the foreigners handling self-insurance were already being paid on a per-member basis. 

The carriers handling self-insured plans called foul, arguing the act violated the dormant Commerce Clause and the Contracts Clause.

The Fifth Circuit held:

Because the State, by choosing with whom it did business, was acting as a participant in—and not a regulator of—the insurance market, the Act fell within the market participant exception, and the dormant Commerce Clause was therefore not a bar to its actions. However, the Act was invalid, as applied, because it interfered with the plaintiffs’ current contracts in violation of the Contract Clause.

Among the reasons the act violated the Contract Clause:

In this case, the record indisputably demonstrates that the Act is narrowly focused on benefiting in-state HMOs (indeed, a specific one) and is not a broad exercise of the State’s police power. The representative who drafted the bill met only with the President and CEO of [that specific Louisiana HMO] for input.

Lagniappe in Louisiana?  Health Care?  Political?  Who knew?

Judge Jolly wrote for the majority and Judge Dennis concurred, stating that he would have invalidated the law on both grounds.

• Email This
• Print
• Comments
• Trackbacks
• Share Link