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

When last we met, I threw out the question of how you might make a well-written opinion even more readable by changing only the typography.  You had some great comments, many of which I had already been incorporating and several of which made me think even further.

Some of the guiding principles were that double spaced 12 point newspaper fonts are not as readable as smaller book fonts on shorter lines and line spacing in proportion to the font size. 

Banish the fixation pauses!

But maybe more to the point, we don't create documents on typewriters any more.  There is no need to restrict ourselves to documents that look like undergraduate term papers.

But now it is time for the first big reveal.

After the jump, we’ll see if an amateur trouble maker can make Chuck Norris--I mean Chief Justice Jefferson--more readable by changing only the court's typographic choices.

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You don't tug on Superman's cape
You don't spit into the wind
You don't pull the mask off the old Lone Ranger
And you don't mess around with Jim

(Jim Croce)

Some of you readers will recall that we have had occasion to compare Texas' Chief Justice Jefferson to Chuck Norris.  Just like one ought not tug on Superman's cape, a wise man would not tweak Chuck Norris' beard. 

But no one has ever accused the Appellate Record of being wise.  So we decided to take one of Chief Justice Jefferson's recent opinions and put it through an extreme typographical makeover.  After the jump, you'll find out why.

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Yesterday the Fifth Circuit released Janvey v. Alguire (pdf), another chapter the ongoing litigation over R. Allen Stanford and his alleged Ponzi scheme.  The District Court had entered an injunction essentially freezing the accounts of certain former employees and advisers of the Stanford Group.  The Fifth Circuit affirmed and Judge Prado wrote the Court's opinion.

The Court held:

1. the district court had the power to decide the motion for preliminary injunction before deciding the motion to compel arbitration;
2. the district court did not abuse its discretion in granting a preliminary injunction;
3. the preliminary injunction was not overbroad;
4. the district court acted within its power to grant a Texas Uniform Fraudulent Transfer Act (“TUFTA”) injunction rather than an attachment; and
5. the Receiver’s claims are not subject to arbitration.

The case presents a potential conflict between the Federal Arbitration Act (intended to avoid judicial resolution of the merits) and the power of courts to grant an injunction (which may involve entanglement in the merits). The Court noted different approaches taken by different circuits and ultimately held that the FAA did not impair a district court's ability to preserve the status quo while it was deciding whether a claim was arbitrable and before that arbitration decision had been made.

Here, the Court also affirmed the denial of the motion to compel arbitration on the grounds that the receiver stood in the shoes of the Stanford creditors, not the Stanford Companies who were parties to the employee arbitration agreements.

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In the last post on this topic, I advanced the modest proposal of completely redoing all the briefing rules. 

• Chuck double spacing. 
• Chuck one inch margins
• Chuck page limits
• Adopt word counts instead of page limits

This drew a comment or two on Linked in and other places to the effect that the rules probably got this way in the interest of making briefs easy to read.

What could be easier to read than humongous fonts on a double-spaced page, right?

Not so!  After the jump, you'll find out why our briefing rules would not survive a Daubert objection if readability were the goal upholding them.

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Many thanks to Jason Shyung, blog contributor and recent Fifth Circuit clerk, for lending a hand in compiling this material, because the Fifth Circuit has been busy this holiday season. It has released a number of opinions that should be of interest to civil practitioners:

• Cal-Dive Int’l, Inc. v. Seabright Ins. Co. (pdf) reverses a district court’s determination that Seabright Insurance Company had a duty to defend a certain personal-injury lawsuit. The court found that Seabright was absolved from any duty to defend the lawsuit because:

(1) Seabright’s policy included a “Protection and Indemnity” exclusion that removed from coverage any injuries covered by another protection and indemnity policy; and

(2) it was undisputed that such a policy existed and covered the injuries at issue. Judge Davis wrote the court’s opinion.

• Overstreet v. El Paso Disposal, L.P. (pdf) affirms a district court’s grant of injunctive relief under Section 10(j) of the Labor Relations Management Act. In its decision, the Fifth Circuit made a number of significant holdings, including the following:

(1) injunctive relief under Section 10(j) of the Labor Relations Management Act is not governed by the traditional four-part equitable test for injunctive relief that requires a showing of irreparable harm;

(2) the National Labor Relations Board (“NLRB”) may delegate its authority to seek injunctive relief under Section 10(j) to its General Counsel;

(3) the NLRB’s General Counsel does not lose any authority delegated to him or her when the NLRB does not have a quorum to do business if it had such a quorum at the time it delegated the particular authority at issue; and

(4) a district court in granting injunctive relief may not order a party to agree to a bargaining proposal.

Judge Wiener wrote the court’s opinion.

• Freeman v. Quicken Loans, Inc. (pdf) holds that section 8(b) of the Real Estate Settlement Procedures Act does not prohibit a lender from charging borrowers loan discount fees or loan processing fees at the closing of a mortgage transaction so long as the lender does not split the fees with another party. Chief Judge Jones wrote the majority opinion. Judge Higginbotham dissented.
• Keller Founds., Inc. v. Wausau Underwrites Ins. Co. (pdf) holds that non-assignment clauses in insurance policies are enforceable under Texas law and coverage does not transfer to an alleged "successor" by operation of law where the policies are excluded from an asset transfer. Judge Owen wrote the court’s opinion. 

 Thanks again to Jason and stay tuned for more Nerdlaws to come. 

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We interrupt this blawg to bring you this news item:

Houston appellate lawyer, Kendall Gray, was recently named "The Most Interesting Man In The World" by universal acclaim of his mother and the LexBlog Network which hosts his appellate blog, The Appellate Record.

When finally tracked down by the international media at his secluded compound, Mr. Gray said, "Kendall Gray is very pleased with the response to the blog in the nerd community, and hopes that law nerds everywhere will continue to find it a useful and entertaining place where they can be empowered and affirmed."

Actually, what really happened was that Colin O'Keefe of Real Lawyers Have Blogs contacted and interviewed me for his podcast about law blogging. Follow this link for a written account of the interview and listen to the podcast here.  It was an entertaining conversation and hopefully included some of my own thoughts about how to be yourself and use your own particular strengths in building a professional life.

Enjoy the podcast. I will now stop referring to myself in the third person, and gladly return you to your regularly scheduled blawg. 

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