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

(An homage to the Radio Shack commercials with Lance Armstrong and his clueless assistant, Alphonse)

Me:  (on my bike trainer in my office, of course) ALPHONSE!

Alphonse: Yes, Kendall.

Me: Why do people write using Microsoft Word's default settings?

Alphonse: They don't think--

Me: --That's RIGHT.  They DON'T  think.  These are the guys who brought us Microsoft Vista and the Blue Screen of Death.  Why would you ever let them decide how your brief looks?

Me: (continued) Computers can do all kinds of fonts and desktop publishing functions.  We don't  use the IBM Selectric any more. 

More Me: From now on, we're all going to stop acting like cattle.  Instead of going with the herd, we're all going to think for ourselves and make informed and aesthetic choices about what our documents ought to look like.

After the jump, more on default settings, Bill Gates, Judge Easterbrook, and the font that dare not speak its name.

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Tomorrow is September 25. So what, you ask?

Only three more months to finish that Christmas shopping and get all the holiday cards addressed and signed.

Actually, September 25 provides a more interesting confluence of events.

On that date  221 years ago, the First Congress of the United States of America proposed a series of amendments to the Constitution. Uncharacteristically for Congress, the legislative product got shorter as it went along. 

Seventeen amendments were trimmed to 12 in the Senate, of which 10 were ratified by three quarters of the states. 

Yes--those 10. The Bill of Rights--a document originally intended to create a "fed free" zone of liberty with words like, “Congress shall make no law . . . .”

(**An 11th, now known as the 27th Amendment prohibiting a Congress from raising its own pay, was finally ratified in 1992--hat tip to Judge Brister**)

Astounding by modern standards that Congress would ever draft a sentence beginning with the words, “Congress shall make no law.”  But they did, because folks believed that the new federal government was a potential threat to liberty if its power were not expressly limited.

But there’s some irony here too because sometimes a strong federal government is the only effective guarantor of liberty. On this same date 53 years ago, federal power enabled the Little Rock Nine to finally enter Central High School. 

Interesting that the local public schools in Little Rock developed their own desegregation plan even before Brown v. Board of Education--liberty not being the sole province of the federal government. Yet, the local government did not have the horsepower to carry it out all by itself.

Before the Little Rock Nine could finally start school, it took the orders of Federal District Judge Ronald Davies enforcing the plan. It also took President Eisenhower nationalizing the Arkansas National Guard--a body which had been used only days earlier by Arkansas’ governor to frustrate desegregation.

So, maybe government, especially a powerful, central government is bad.

Except when it is good. 

Or perhaps its not as simple as a stump speech.  Maybe government is like a hammer, a tool which is equally capable of smashing windows or sculpting marble, depending upon who holds it and how it is handled.

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This is a preview for the best and most useful series of posts EVER. 

No lie. 

And I've told you a million times that I never exaggerate.

This series was inspired by a beer commercial and a sitcom, so you know it has to be good.

You may remember the Miller Lite commercials about the "men of the square table," celebrities and former athletes who promulgated various "Manlaws" for their beer swilling, sports watching acolytes. 

Or perhaps you are a fan of "How I Met Your Mother" and have read "The Bro Code" -- a handbook by the "playah" Barney Stinson concerning the finer points of being a "Bro."

(I recommend the audio version read by Neil Patrick Harris who plays Barney.  Hilarious.  But I digress.)

Here at the Appellate Record, instead of "Manlaws" or a "Bro Code" we propose to codify "Nerdlaws."

With your input, the blog will set out the finer points of the art and science of "The Appellate Brief"--things like fonts and white space and headings and issue drafting and crafting good sentences.

You know, Nerdlaws. 

I am at no shortage for such Nerdlaws, but it would be so much more educational for me if I had your ideas concerning what an ideal brief looks like: 

• What fonts and typographical choices? 
• How much white space?
• Declarative headings or no?
• The proper care and feeding of bullet points
• Multi-sentence deep issue or single sentence simple issue?
• And the ever contentious use of footnotes for citation of authority

Interestingly enough, my own Nerdlaws do not always comport with the court rules.  Courts would have better looking, easier-to-read briefs if they would provide a bit of flexibility in formatting.  Who knows?  The Nerdlaws might become the best practices to change the court rules.

Give it some thought, and propose your own Nerdlaws in the comments.  (You may remain anonymous.)  You can also hit the link in the side bar and send me an e-mail. 

As for the first Nerdlaw, stay tuned and I will answer the question of why you ought never let Bill Gates write your brief.

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It's that time of year, campers.  The courts are back to it and the Fifth Circuit is no exception, releasing several opinions this week that civil law wonks will want to know about.

• Rio Grande Royalty Co., Inc. v. Energy Transfer Partners, Inc. (pdf) affirms the 12(b)(6) dismissal of a putative class action attempting Texas common law fraud claims complaining of a failure to disclose alleged market manipulation concerning the price of gas.  Chief Judge Jones wrote the court's opinion. 
• Jackson v. Watkins (pdf) affirms (per curiam) a summary judgment rejecting an employment discrimination claim by a male, Caucasian attorney from the Dallas County District Attorney's office who complained that Caucasian section chiefs had been improperly replaced with African Americans.  The court ruled that he failed to rebut each of the nondiscriminatory reasons offered for his dismissal.
• Positive Software Solutions, Inc. v. New Century Mortgage Corp. (pdf) holds that the district court did not have "inherent authority" to impose sanctions for conduct occurring in an arbitration.  The conduct did not occur before the court, and stretching inherent power so far threatened to entangle the judiciary in arbitration--which by definition is intended to be nonjudicial.  Judge Smith wrote the Court's opinion.
• Anderson v. Cytec Industries, Inc. (pdf) affirms (per curiam) the denial of ERISA disability benefits to a participant claiming PTSD after Hurricane Katrina.  The Court found no abuse of discretion in the administrator requiring objective, clinical proof that the participant (who had been functional with PTSD) was no longer able to function where it appeared the participant's refusal to return to work in New Orleans might have been due to an inability to find suitable housing for his disabled spouse, not his own claimed psychological disability.  
• In re Katrina Canal Breaches Litigation (pdf) rejects the government contractor immunity defense of a defendant who contracted with the Army Corps of Engineers to accomplish its "Inner Harbor Navigation Canal Lock Replacement Project" in New Orleans.  (It had been alleged that negligently performing this work had contributed to post-hurricane flooding).  Judge Smith wrote the Court's opinion.

But my favorite is the most recent.  I think it is my favorite because it shows that karma is still alive and well in the Fifth Circuit.

• Reed v. City of Arlington (pdf) says that you can't collect on a million dollar judgment against a defendant (in this case the plaintiff's employer) after fooling your bankruptcy creditors into thinking you have no assets by keeping the judgment a secret when you file for bankruptcy protection.  Judicial estoppel (and Chief Judge Jones, the author of the opinion) will bar your claim. 

And that's the way it was.  Tune in next week for the first in a series of Nerdlaws for the discriminating brief writer. 

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Leonard Bernstein, the celebrated maestro, once opined on  what was the hardest instrument to play:

Second fiddle. I can always get plenty of first violinists, but to find one who plays second violin with as much enthusiasm or second French horn or second flute, now that's a problem. And yet if no one plays second, we have no harmony.

Harry Truman, the celebrated amateur pianist, haberdasher and President of the United States said it like this:

It is amazing what you can accomplish if you do not care who gets the credit.

After the break a few thoughts on what being an appellate lawyer and playing second fiddle have in common.

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Several opinions this week from the Mighty Mighty Fifth Circuit that will be of interest to civil practitioners.  They run the gamut from Free Speech and Assembly to original federal proceedings seeking discovery for use in a foreign action. 

• Ecuadorian Plaintiffs v. Chevron Corporation (pdf), written by Judge Benavides, the Court affirmed an order under 28 U.S.C. § 1782(a) requiring a "foundational deposition." Chevron, which had been sued in Ecuador for environmental damage, sought to establish that an ostensibly neutral expert appointed by an Ecuadoran court was really in cahoots with the plaintiffs. 
• International Women's Day March Planning Committee v. City of San Antonio (pdf), again written by Judge Benavides, is a thorough First Amendment test of the parade permitting ordinance enforced by the City of San Antonio.  It passed.  
• Martin v. Halliburton (pdf), written by Judge King, amends the court's earlier opinion of March 23.  The case arose out of the activities of governmental contractors in support of the military effort in Iraq.  The Court dismissed the appeal for lack of appellate jurisdiction, holding that the denial of the defendants' assertions of immunity did not fall within the collateral order doctrine. 

And that's the way it was.  Stay tuned next week for discourse on the hardest instrument to play, and what it has in common with being an appellate lawyer. 

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We almost take it as a given that lawyers can’t write. (Just don’t tell Scott Turow or John Grisham.)

Why is that so? Why can’t lawyers write? At least in part, I think it is because we read so much bad writing when we are learning to be lawyers. Think of all the turgid prose and passive voice and inscrutable jargon in all those cases you had to read in law school. With that as a model, little wonder that baby lawyers thrive on writing the unreadable.

And judges are still giving us the kind of writing they tell us that they don’t like. After the break, an example taken from the recent Civil Appellate Practice Conference and the paper authored by Chad Baruch.

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I will admit it.  My sense of style is not for everyone.  Atypical.  Iconoclastic. Nerdy. Or just bad.  I would accept any of those words as accurate descriptors.

But as I sit here in my Brooks Brothers seersucker suit and my Brooks Brothers regimental stripe bow tie, I am torn between feeling the outrage of a genetically predisposed defense lawyer and disappointment that my ship came in and I simply missed it.  I was alerted to my lost opportunity by stories in the ABA Law Journal, the Wall Street Journal, Law360 and Reuters. 

You see, my natty bow tie is fitted with the Adjustolox mechanism, allowing me to adjust a "one size" bow tie to fit my scrawny neck without the slippage that occurs with inferior mechanisms.  Naturally, such a useful and novel invention as the Adjustolox mechanism is patented.

Or, was patented.  You see, the patents expired in 1954 and 1955.

Which was also probably the last time that large numbers of men dressed like I do.

Alas for my beloved Brooks Brothers, because a bow-tie-wearing patent lawyer purchased some bow ties still marked with the expired patent numbers.  He brought a "false marking" claim against the glorious font of men's business style.

Apparently the very future of The Republic is placed at risk if one wrongly claims a patent for the Adjustolox.  Presumably the market is being improperly excluded from the useful arts and sciences of bow tie adjusting technology.   As a result the feds can fine you $500 for each Adjustolox you sell with expired patent numbers--if you do so for the purpose of deceiving the public.  See 35 U.S.C. § 292. 

Let's see:

$500 x [gajillion ties sold] = No longer practicing law to earn a living.

If, however, you sell falsely labeled Adjustoloxae simply because no one has looked at a bow tie since 1955, it's all good. 

But you still have to prevail against Raymond E. Stauffer, the bow-tie-festooned patent lawyer, because 35 U.S.C. § 292 allows "any person" to seek a $500-per-Adjustolox penalty and share 50% of the take with the gubmint. 

That was the ruling in Stauffer v. Brooks Brothers, Inc., released Tuesday by the Federal Circuit.  Congress can create its own "injury in fact" -- a statutory violation -- and then essentially deputize "any person" to pursue collection for that injury. 

Of course, the Federal Circuit was not asked to rule upon the wisdom of such a statute.  That is the purview of Congress alone.  If it were otherwise, little that Congress commits to writing would survive.

But who knew that my retro wardrobe could be such a source of potential riches?  No telling what revenue I could garner from investigating the patents on other aspects of my geezer lifestyle. No telling what else that I prize is marked with patents that expired 50 years ago.

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