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

Lest we fall behind with all the Nerdlaw fun and games, I feel compelled to highlight a new opinion that will be of interest to civil and appellate practitioners for its treatment of issues concerning class certification and law of the case. 

The Fifth Circuit recently released Gene & Gene v. Biopay (pdf) in which the Court held that the putative class plaintiff did not get another whack at certifying a class after an interlocutory appeal rejecting their first effort had been remanded for "further proceedings not inconsistent with this opinion." 

The opinion rejecting the second attempt invoked the "law of the case" doctrine providing that “an issue of law or fact decided on appeal may not be reexamined either by the district court on remand or by the appellate court on a subsequent appeal.”  Judge Clement wrote the Court's opinion.

The Court held that the District Court's continuing duty under Rule 23 to assess class certification orders did not trump the court's prior opinion denying class certification after discovery was complete, the issue fully briefed below and appellate resources already expended on the issue:

Discovery was complete when Gene successfully moved for class certification. When this court exercised its discretion and heard BioPay’s Rule 23(f) appeal, both parties had another full opportunity to argue the propriety of the class certification decision. When this court reversed, we held that “the determinative question of whether consent can be established via class-wide proof must, given the particular facts of this case, be answered in the negative. Gene has failed to advance a viable theory of generalized proof” concerning lack of consent. . . . The district court interpreted this language, along with this court’s remand “for further proceedings not inconsistent with this opinion,” as meaning “there is nothing in the opinion to preclude Gene from asserting a viable theory on remand.” . . .

[But] [t]he issue of class certification was expressly decided by this court in BioPay I and “that should be the end of the matter.”

Second, the "new evidence" on which the plaintiff relied was not really new at all and did not justify an exception to the law of the case:

Although BioPay did not produce the FileMaker Pro database in its native format in 2006, BioPay did produce selected screenshot printouts of that database at that time. Gene contends that it “now knows” that “an objective methodology exists to identify all class members who gave their consent” as a result of the disclosure of the database in its native format. But the screenshot printouts of the FileMaker Pro database produced in 2006 show every field needed to determine whether a particular contact may have consented to receive a fax. . . . [E]ven assuming that the “new” theory of identifying class members who did not give their consent to receive a fax is viable, the selected screenshot printouts demonstrate that this theory could have been advanced to the court in BioPay I. . . . [T]he evidence disclosed on remand was not “substantially different” from the evidence disclosed before BioPay I and that the “substantially different evidence” exception to the law of the case doctrine does not apply.

So, like Horton, everyone's favorite elephant, the Fifth Circuit "meant what it said and said what it meant."  District courts and parties must follow the mandate, "one hundred percent."    

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Have you ever watched a really fantastic pianist closely--like watching Evgeny Kissin's fingers flying over the keys. 

Seriously, watch the Youtube link because there's a point to this.

How do they do this? 

Obviously innate talent combined with thousands of repetitions over years of practice. 

But you know one thing that would foil even Evgeny Kissin and make his finger's stumble?  Taking all the CRAP out of the key board.

After the jump, I'll finally define CRAP and talk about what CRAP has to do with legal writing.

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Hat tip to the Texas Lawyer's Tex Parte Blog for making me aware of an interesting story.

The National Cowgirl Museum and Hall of Fame in Fort Worth, Texas has inducted Hortense Ward, the first woman admitted to the practice of law in Texas, because cowgirls like her make an impact.

From the Tex Parte Blog:

After Ward was admitted to the bar, she also became the first woman from Texas — as well as from below the Mason-Dixon line — to be admitted to practice before the U.S. Supreme Court. As president of the Houston Equal Suffrage Association, she was the first woman registered to vote in Harris County and in the 1920s helped elect the first woman Texas governor, Miriam A. “Ma” Ferguson. She also led the charge to pass the Married Women’s Property Act, allowing married Texas women to control their own property and earnings.

Now, of course there are three women serving on the US Supreme Court and two on the Supreme Court of Texas.  Indeed, Justice Harriet O'Neill served as Acting Chief Justice of our state supreme court shortly before she retired, and it was so normal and common place that it almost passed without notice.

Interesting side note: Hortense Ward may have been first at the bar, but she was second in the Cowgirl Hall of Fame.  I daresay you've heard of the first cowgirl, rancher's daughter Sandra Day O'Connor. 

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Even before we were old enough to join in the world's most persistent debate--i.e., "tastes great" v. "less filling"--everyone I knew at Tremont Elementary School debated something of even greater import:

Chunky v. Smooth

There is obviously only one right answer for any given kid, because an adherent to chunky peanut butter would never be satisfied with smooth and vice versa.  And so the debate continues.

But when it comes to legal writing, especially in its longer forms, there can be no legitimate debate.  Chunks are good. 

After the jump a humble missive on why you dare not be smooth if you want the court to learn, understand, and care about the issues in your case.

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Yesterday, the Fifth Circuit released Croft v. Perry(pdf) in which the Court rejected a facial challenge under the First Amendment to the Texas Pledge of Allegiance, to which the words "under God" were added in 2007.  Judge Jolly wrote the Court's opinion.

The plaintiffs did not want their children saying those two words each morning in class, so of course they sued the Governor. They argued that the amended pledge violates the Establishment Clause in four ways:

(1) the pledge’s use of the singular “God” impermissibly favors monotheistic over polytheistic beliefs;
(2) the amendment does not have a secular purpose or effect, as any stated purpose is pretext for a religious motivation;
(3) the pledge impermissibly endorses religious belief by affirming that Texas is organized “under God”; and
(4) the pledge’s recitation in schools pursuant to § 25.082 of the Texas Education Code impermissibly coerces religious belief.

The Court rejected each argument in turn.  It noted that the Supreme Court's lingo on the Pledge of Allegiance was all dicta, but it was really good dicta:

The Supreme Court has never directly addressed the constitutionality of the national pledge, but has suggested in dicta, time and again, that the pledge is constitutional. See Lynch v. Donnelly, 465 U.S. 668, 676 (1984); County of Allegheny v. ACLU, 492 U.S. 602–03 (1989). The closest case to deciding the issue, Elk Grove Unified School District. v. Newdow, was resolved on standing grounds, but three justices would have upheld the pledge either as a recognition of the importance of religious beliefs to our founding, 542 U.S. 1, 32 (2001) (Rehnquist, C.J.), or as a form of ceremonial deism, id. at 36 (O’Connor, J.). Even the majority described the pledge as “a public acknowledgment of the ideals that our flag symbolizes” and its recitation as “a patriotic exercise designed to foster national unity and pride in those principles.” 542 U.S. at 6. Although dicta, we do take such pronouncements from the Supreme Court seriously. See Peterson v. BMI Refractories, 124 F.3d 1386, 1392 n.4 (11th Cir. 1997); United States v. Becton, 632 F.2d 1294, 1296 n.3 (5th Cir. 1980).

Three other circuits had found the same dicta persuasive, and the Fifth Circuit did too.  For me, that is the principal use for this case: how to use really good dicta. 

But for you SCOTUS wonks and culture war pundits, "Let the wild rumpus start."

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And now the answer to the question you've all been waiting for: 

What is the perfect font?

Alas, gentle reader.  You might as well ask me what is the perfect wine?  The answer is, "It depends."

• What are you eating?
• What type of wine do you like?
• Dry or fruity?
• Red or white?
• Does this taste good to you?

As with wines, the perfect font depends on what you are writing? 

• Posters? 
• Street signs?
• A brief?
• A letter?
• Are there font size requirements?
• Does the court make you double space?

After all, every good law student learns that the answer to most Socratic questions is, "It depends."  So it is with fonts or wines.

Nevertheless, after the jump, I'll reveal, at long last, the official font recommendations of The Appellate Record.

Feel the magic.

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While I have been drinking deeply at the "font" of typography, the Fifth Circuit has been cleaning its plate.  Lest we fall behind, a quick update on notable cases and issues of interest on the civil side.

En Banc

• Adar v. Smith (pdf): The court granted rehearing en banc (pdf) of the panel opinion requiring the registrar in Louisiana to issue a new original birth certificate listing the parentage of a same sex couple whose adoption of the child was valid and recognized under New York law where the adoption occurred.  Arguments and briefing to come.
• Castellanos-Contreras v. Decatur Hotels (pdf): A divided en banc court sided with the previous panel opinion reversing an interlocutory summary judgment ruling and holding that foreign hotel workers who were present in the country on H2B visas were properly paid under the FLSA.  The workers had argued that their wages were below minimum wage when one deducts placement fees charged by recruiters, visa application fees, and relocation expenses for which they claimed they were entitled to be reimbursed. Judge Haynes wrote for the majority of the en banc court.

Other New Opinions

• Richards v. Louisiana Citizens (pdf): Not really interesting for the substantive issues involved, the court's refusal to grant appellate sanctions is primarily useful in setting out what the court might look for before sanctions are granted: a silly argument (e.g., income tax is voluntary), going back to an argument that has already been rejected, mischaracterizing evidence, and particularly egregious attempts to misinterpret the law.  In Richards, neither side had pointed to a "white horse" case in its favor.  Judge Stewart wrote the court's opinion.
• Gulf Coast Shell & Aggregate v. Newlin (pdf): Arising out of a failed oyster dredging venture, this case was ordered dismissed by the Fifth Circuit because it did not fall within the admiralty jurisdiction of the federal courts.  The court, in an opinion by Judge Jolly, concluded that the claimant's "Rule D" claims failed because it had an equitable rather than legal claim to title and possession of the vessel, and that its contract and tort claims were not maritime in nature.
• Espinoza v. Cargill Meat Solutions (pdf) holds that Texas law permits an employer to put employees to a three way election: (1) worker's comp, (2) retaining common law workplace injury claims, or (3) an "occupation and temporary disability plan" under the Labor Management Relations Act.  Having picked number 3, the plaintiff's workplace injury claim was preempted by federal law and dismissed for failure to follow the claims procedures under the plan. Judge Prado wrote the court's opinion.  

And finally:

• Griffin v. Lee (pdf) holds that an attorney cannot intervene for his fee in a case where jurisdiction is based upon diversity of citizenship where he is neither diverse nor seeking an amount in excess of the jurisdictional minimum--because 28 U.S.C. § 1367(b) says so.*

And that's the way it was.  Tune in again next week for more document design nerdiana.

* Not to put too fine a point on it, but Judge Per Curiam expended 15 pages and numerous block quotes saying the same thing, qualifying this opinion as nominee for the Appellate Record Deforestation Award.

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Professor Peter Friedman from Case Western Reserve University Law School, while liking my last Nerdlaw post, thought it a bit of a "cliffhanger." 

After saying what font not to use, I did not go on to say what font should be used. 

Who knew that fonts could be so thrilling?

Don't worry, The Appellate Record's official font recommendations are coming.  But in the mean time, think of this as the Dickensian novel in serialized form. 

Besides, Times New Roman is just too awful to resist another post on the Font That Dare Not Speak Its Name.

And prepare yourself, gentle reader. I am about to turn you on to nerdiana about fonts and typography of the highest order.

Meet Matthew Butterick, lawyer and Font Jedi -- a bona fide Harvard educated graphic designer.  His website, Typography for Lawyers (where you can preorder a copy of his upcoming book by the same name) is my new document design happy place.

**Hat tip to Jason Wilson, the publisher, who commented on the first Nerdlaws post for pointing me to the resource. 

In addition to providing an expert's recommendation on fonts and a link to the Seventh Circuit's recommendation on typography, Butterick provides the history of Times New Roman and how it became so ubiquitous.

Times has been with us since 1932, when the Times of London (the newspaper) hired font designer Stanley Morison to create a new text font, which was based on historical Dutch designs. Because the font was being used in a prominent daily paper, it quickly became very popular when it was released for general commercial use the following year.

* * * 

As font technology has evolved—from lead type, to photo typesetting, to digital—Times has been one of the first fonts available in each new format, for the sake of backward compatibility. But this first-mover advantage in each format has only solidified Times’s hegemony as the ultimate default font.

Though much more qualified than I am, Butterick agrees, "If you have a choice about whether to use Times, please stop."

Given its position as the ultimate default font, the appearance of Times in a book, document, or advertisement connotes a certain apathy—it says “I submitted to the font of least resistance.” Times is not a font choice so much as the absence of a font choice, like the blackness of deep space is not a color. To look at Times is to gaze into the void.

But don't despair.  The spine tingling font suspense will not (can not) go on much longer.  Next in the Nerdlaws series: Thou shalt use the right font.  Then you can feel the magic for yourself.

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