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

A mulligan, in a game, happens when a player gets a second chance to perform a certain move or action. The practice is also sometimes referred to as a "do-over."

--Wikipedia

Alas, dear reader.  Here is where you get to find out what an ERISA geek I am.  I've worked in this area since about 1998, that fateful weekend when I made a note book of all the Supreme Court ERISA cases and studied them.  

'Cuz that's how I roll.

So, imagine how my heart went pitter pat when the Supreme Court released Conkright v. Frommert a few weeks ago and delved into the "abuse of discretion" standard of review for ERISA benefit determinations.

(Just a minute.  I need to take a moment to gather myself.  I'm all verklempt.  Talk amongst yourselves.)

Conkright is a lesson in how loose lips from prior opinions sink ships for clients and counsel looking for legal standard they can follow.  More precisely, it is a lesson in how mushy judicial language and multi-prong balancing tests create problems -- lawsuits born of ambiguity -- that some later court has to clean up.

After the jump, I'll explain why Conkright is an ERISA Mulligan that was needed to clean up its prior, imprecise opinion.  And as a bonus, I'll explain that it's at least the second such Mulligan the Supreme Court has needed in this area. 

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

Monday's Supreme Court opinions, ably reported by Erin Miller at SCOTUSBLOG, were . . . how does one say it . . . underwhelming. 

There I sat with my vuvuzela and SCOTUS face paint waiting on Bilski and waiting to see if the Fourteenth Amendment protects me from having the City of Chicago pry my guns from my cold dead fingers, and what do I get?

• The Carmack Amendment,
• The FAA,
• Seed deregulation, and
• It's wrong to support terrorism, even in the Ninth Circuit. 

Who knew?  Like you, I was gobsmacked.

But separate from the legal issues involved, I noticed something about the legal writing that pushed my buttons--indeed a HUGE pet peeve with me.  So consider yourself warned, SCOTUS.  Consider this post a wag of my prodigious, blogger finger.

After the jump, your humble blogger will demonstrate why Supreme Court Opinions are no place for prospective suspense writers.  Just tell us, "whodunit."

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

Every once in a while you can learn something really useful from good ol' Judge Per Curiam.  The Supreme Court's recent decision in Wal Mart Stores v. Merrell is just such a case. 

The decedents died from smoke inhalation when their recliner burned.  So obviously, it was Wal Mart's fault  because the damaged floor lamp Wal Mart sold them was the culprit.  Right?  After all, according to the expert "the lamp’s halogen bulb exploded, sending burning glass shards onto the recliner, which smoldered for several hours."

Or maybe the decedents set the recliner alight themselves while smoking the drugs that were found in their system--either with candles or perhaps the "blunts" and  "smoking paraphernalia throughout the house, including ash trays, a bong, and marijuana cigarette butts." 

(Incidentally, did anyone other than me find it amusing that the Supreme Court of Texas found it necessary to drop a footnote to explain exactly what a "blunt" is?  I never saw anything stronger than an aspirin at my High School, but even I found the definition unnecessary and humorous.)

After the jump, a little homily on what this case really teaches us.

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

Did you notice when the Fifth Circuit ceased to be?

Let me explain.

No, let me sum up.

The Fifth Circuit ceased to exist for one particular case.  The result was a non-en-banc en banc reversal of the panel opinion, and the non-affirmance affirmance of the the district court opinion. 

I am referring to Comer v. Murphy Oil.  The District Court dismissed the case holding that hurricane victims could not sue the military industrial complex for worsening their hurricane damage by contributing to global warming.

A panel of the Fifth Circuit held, "yes you can."

The en banc court said, "no you can't"

Except it didn't.  Well, kinda.  After the jump, an explanation and a recommendation. 

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

The next Fifth Circuit Judge may be a Mississippian.  Yesterday, President Obama nominated James E. Graves, Jr. to fill a vacancy on the United States Court of Appeals for the Fifth Circuit.  Justice Graves currently serves as the presiding justice on the Mississippi Supreme Court and had a wide range of prior experience as a trial judge, teacher, and public servant. 

The official announcement reads:

“Throughout his career James E. Graves has shown unwavering integrity and an outstanding commitment to public service,” said President Obama.  “I am proud to nominate him to serve on the United States Court of Appeals.”

Some highlights from Justice Graves' bio at the Mississippi Supreme Court are:

Presiding Justice James E. Graves, Jr., has served on the Mississippi Supreme Court since 2001. He was appointed to the Court by Governor Ronnie Musgrove and later won election to the Court in 2004. Prior to serving on the Mississippi Supreme Court, Justice Graves served as a Circuit Court Judge in Hinds County, Mississippi, for ten years.

Justice Graves was born and raised in Clinton, Mississippi. After graduating as the valedictorian of his high school class, he attended Millsaps College and graduated with a Bachelor of Arts Degree in Sociology. He received his law degree from Syracuse University College of Law and a Master of Public Administration degree from the Maxwell School of Citizenship and Public Affairs at Syracuse University.

* * *
Justice Graves’ background in teaching and education includes serving as a Teaching Team Member of the Trial Advocacy Workshop at Harvard Law School since 1998 and serving as an adjunct professor teaching media law, civil rights law, and sociology of law at Millsaps College, Tougaloo College, and Jackson State University.

* * *

A renowned orator, Justice Graves frequently speaks at universities, schools, churches, and conventions throughout the country. His past speaking engagements include a keynote address at the International Reading Association’s 50th Annual Convention.

Hat tip to Howard Bashman at How Appealing.

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

A new case from the Fifth Circuit yesterday that would be of interest to civil practitioners.  The underlying dispute in Lyondell Chemical Company v. Epec Polymers(pdf) involved allocation of responsibility under CERCLA, but the interesting part of the case to me is the application of Rule 408 of the Federal Rules of Evidence (pdf) regarding exclusion of settlement discussions.

Without numbing you with unnecessary detail, part of how the district court quantified the amounts and costs in issue was discussions, after the feds threatened suit, between some of the parties regarding a related but different portion of the same site.  Although there are many more issues involved in the opinion, the Fifth Circuit found this use to be impermissible. 

Judge Higginbotham wrote for the panel:

Although El Paso characterizes the reports as part of a “congenial effort by group members to fairly and cooperatively assess the contamination” unentitled to Rule 408 protection, we cannot agree. It is undisputed that the EPA threatened litigation against Occidental and other members of the task group. . . . The work of the task force was anything but business as usual and its discussions—including the Smythe Reports—went well beyond mere “business communications.”

El Paso argued that “Rule 408 only bars the use of compromise evidence to prove the validity or invalidity of the claim that was the subject of the compromise, not some other claim.”  While acknowledging many different approaches courts and commentators have used to define the scope of a "claim," the court

 . . . decline[d] to adopt any rigid definition of “claim.” Our application of Rule 408 has been and remains fact-specific, and tethered to the rationales underlying the rule. And here, we have no trouble concluding the Smythe Reports were created for use in negotiations regarding the “claim” now being litigated. Though separated by time and location, the disputes associated with the Highway 90 and Turtle Bay sites arise out of the same events: the repeated dumping of hazardous waste intended for Highway 90.

Mmmmm.  I love the smell of evidence in the morning.

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

Procedure geeks were all a-twitter (again) when the Supreme Court released it's recent Krupski opinion.  And who can blame them?  The Supreme Court construed FRCP 15(c)(1)(C) on when correcting the misnomer of a party will relate back to the filing of an original complaint.

Essentially Krupski sued the marketing affiliate (Costa Cruise) when it was clear she had intended to sue the affiliate that actually operated the boat that tripped her (Costa Crociere).  By the time she got it all sorted out, limitations had run.  The Supreme Court saved her.

Eccitante!  No?

Kevin Russell of the SCOTUS Blog wrote a good summary and I won't repeat it.  But I was wondering about something else. 

I was wondering how a case that is essentially a slip and fall on a cruise ship made it to the Supreme Court of the United States.  I wish I could peer inside the black box of the Supreme Court "cert. pool" to know what made this case rise above other worthy cases that the Court rejected, if only for lack of time.

Justice Sotomayor's opinion says the court "granted certiorari to resolve tension among the Circuits over the breadth of Rule 15(c)(1)(C)(ii) . . . ."  She sets out a footnote of cases far less profound than a magnificent, circuit split.  Then she explicitly disavows any warranty of the extent to which they conflict, saying "We express no view on whether these decisions may be reconciled with each other in light of their specific facts and the interpretation of Rule 15(c)(1)(C)(ii) we adopt today."

So . . . "tension?"  That's enough?  Or is this different because it is a rule of procedure?  Absolute uniformity is more important with procedure and tension will suffice?  You SCOTUS wonks out there who have any thoughts feel free to weigh in.  I'm genuinely curious if this fits in any pattern or is just an outlier that the court reached out to grab. 

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

Alas, the UTCLE Conference on State and Federal Appeals is over.  But what a fantastic gathering.  The speakers were better than ever and I never fail to learn whenever I attend.  And attending year after year makes it feel like old home week.

Many thanks to the organizers of the conference for inviting me to participate, and thanks as well to Judge Bill Boyce, Jennifer Hogan, and Daryl Moore for agreeing to share their secrets on how to prepare for oral argument.  It made the material much easier to present, much more engaging for the audience, and much much better than just my own method of preparation.

I have had some requests for the paper, so, if you are interested, I am posting the paper here. 

Mark it down and attend next year if you can.  All the cool kids do it.

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

An unusual case from the Fifth Circuit yesterday in which the Court gave the victory to a party who chose not to show up on the merits. 

In Texas Midstream Gas Services LLC v. City of Grand Prairie, the City believed that the appeal was moot, and chose only to brief the jurisdictional issue, not the merits.  The Fifth Circuit found that the case was a live controversy, leaving the City with no briefing on the merits.  Judge DeMoss, writing for the Court, exercised mercy, choosing to consider the merits rather than kicking the City to the curb:

Perhaps convinced that its mootness argument was a winner, Grand Prairie did not brief the merits of this case. At argument, counsel offered no explanation for this omission. In some instances, this would lead us to conclude that a party had forfeited its opportunity to prevail on the merits.. . . However, we retain discretion to consider matters not briefed, especially when they implicate substantial public interests. . . . Additionally, when the derelict party is the appellee, who may rely on a favorable ruling by the trial court, it makes sense to construe the “rule” of forfeiture more leniently. . . . We can also preserve judicial resources and avoid piecemeal litigation by addressing issues sooner rather than later. . . . In this case, it makes sense to proceed to the merits of the dispute. . . .

The Court then even went on to give the City a victory.  But lest you be tempted to go with the "no briefing" approach to appellate practice, the Court condemned the city's tactical choice in no uncertain terms:

We will exercise our discretion to proceed to the merits of this appeal. However, we emphasize that counsel’s amateurish tactical decision to address only Grand Prairie’s mootnes argument is an egregious lapse in counsel’s duty to brief all pertinent issues.

The case involves the substantive law of municipal ordinances, eminent domain, and preemption under the PSA, and I commend it to your reading. But I would not advocate leaving your success to the mercy of Judge DeMoss, or any other busy appellate judge.  As nice a man as he is, it's better still to do your own research and have a brief on file.

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