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

It has been awhile since we touched on the Fifth Circuit, but the MIghty Mighty Fifth neither slumbers nor sleeps. The Court has taken an ADA case en banc and has released two cases dealing with federal preemption as applied to medical devices.

On the ADA font, Frame v. City of Arlington involves the potential application of the Americans with Disabilities Act to a city and its sidewalks and curbs as well as how the statute of limitations applies to such claims.

• A panel of the Court first held (pdf) that the City’s curbs, sidewalks, and parking lots constitute a service, program, or activity within the meaning of Title II but that the district court had misallocated the burden of proof on limitations.
• On rehearing (pdf), the panel recognized that the case presented an issue of first impression and held that that sidewalks curbs, and parking lots are not Title II services, programs, or activities; thus, the plaintiffs lack a private right of action to enforce the regulations unless noncompliance has denied access to a service, program, or activity--if they survive the statute of limitations on which the district court had misallocated the burden of proof.
• Now (pdf) the en banc Court will consider the case after taking supplemental briefing.

Two different panels of the Court also issued decisions dealing with preemption of personal injury claims arising from medical devices:

• In Hughes v. Boston Scientific Corporation (pdf), the Court held that the Medical Device Amendments to the Federal Food, Drug, and Cosmetics Act preempted the plaintiffs’ claims concerning a HydroThermAblator used to treat excessive uterine bleeding. “Failure to warn” claims against the manufacturer were viable to the extent it was predicated on the failure to comply with federal statutes and regulations. Judge Davis wrote the Court’s opinion.
• In Funk v. Stryker Corporation (pdf), the Court affirmed dismissal of the plaintiff’s claims arising from his hip replacement because the claim, as pleaded, was preempted. There are additional procedural wrinkles. The Court did not consider a potential theory in the plaintiff’s second amended complaint because he had not appealed the order denying leave to file it. Likewise, the Court validated the district court’s use of judicial notice as being consistent with a dismissal on the pleadings. Judge Jolly wrote the Court’s opinion.  

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In previous posts (e.g., like this), I have kvetched about court rules that require us to file ugly briefs. Now I'll kvetch about court rules that require us to destroy the planet along with Western Civilization as we know it.

I know, I've told you a million times never to exaggerate, but hear me out. After the break, find out why we need to change court briefing rules, not only to save ourselves from ugly briefs, but also to forestall our descent into a Cormack-McCarthy-like post-apocalyptic nether world.

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Just a quick note today to let you know that The Appellate Record may be coming to a venue near you.

Tonight, I'll be live and in concert with Judge Brister at the Texas Association of Civil Trial and Appellate Specialists--a wild group to be sure.  At least I hope we'll be "in concert," because this is the first time we've given this presentation together.

We will be speaking on "Painstaking Excellence: More Ethics Than You Require," which is guaranteed to be the most painless ethics CLE credit you will ever receive. The event will be held at the Four Seasons here in Houston.  Cocktails are at 6:30, dinner at 7:00.

Upcoming events include:

• Confidentiality and the Appellate Process at the UTCLE Conference on State and Federal Appeals (June 2-3, 2011)
• Appellate Typography (with Robert Gilbreath) at the Dallas Bar Association Appellate Section Lunch (June 16, 2011)

So if that sounds like your particular brand of vodka, attend and introduce yourself. I'll be the one in the bow tie.

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So, the nerdgasm continues. "The Goldilocks Brief" could be the name for a best-selling thriller that would make me quite wealthy.

But it’s not.

It’s just the name I have given to one of my brief templates that is not too hot, and not too cold, but (maybe) just right.

In the wake of my Extreme Makeover and Matthew Butterick’s Extreme Makeover of the Supreme Court’s opinion in Comptroller v. Attorney General (pdf), we received several comments along the lines of:

Wow, that’s extreme.

Several even questioned whether there was a happy medium short of going to full on SCOTUS typography with wide margins, 11 point font etc.

There is, and it’s the Goldilocks Brief. After the jump, the Goldilocks Brief is explained.

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On Tuesday this week, the Supreme Court of Texas issued a special set of orders.

Orders usually come out on Friday, but the Court took the rare Tuesday opportunity to grant three petitions for review and set them for argument barely 21 days after the order.

Yikes.  I usually like a little more advance notice to clear my schedule, but I guess I could do it, Fortunately, I don’t have to, but my partner here at Andrews Kurth does. 

The SCOTX granted review in CMH Homes, Inc. v. Adam Perez, to be argued by Scott Brister, recently of the Supreme Court of Texas but now of good ol’ Andrews Kurth LLP. 

So he gets to experience the pointy end of a Supreme Court argument. Remember, Judge:

• Questions from the bench are your friend.
• Stop talking when the folks in the black robes start talking; and
• Answer the questions.

I jest.  He obviously has argument experience elsewhere, and he has game.

At issue in Perez is whether there is a remedy in the appellate courts where the parties are at a deadlock and cannot choose the arbitrator in the method set out by their arbitration agreement.

But if there’s not an appellate remedy, Brister can argue that the court ought to treat the appeal as a petition for writ of mandamus as suggested in a concurring opinion in In re D. Wilson Construction Co., 196 S.W.3d 774 (Tex. 2006)--written by . . .  Judge Brister.

So he’s got that going for him.

Which is good.

The best I could ever do is cite to my own law review article. How lame is that? 

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Just a wee bit of an advertisement today for the DRI Appellate Advocacy Seminar coming up in March near the Land of Mouse in Orlando Florida. 

The seminar is actually relevant to the typography discussion that we've been having these last weeks, because I can really trace my interest in the topic to a presentation two seminars ago when Ruth Anne Robbins presented her "Painting with Print" paper.

This year's seminar also promises to be a great place to charge your batteries, pump up your brain cells and get some new ideas to sharpen up your practice. 

Check out the course brochure (pdf). I am particularly looking forward to the presentation on writing a brief that judges will want to read, as well as the presentation on technology and the future of appellate practice.

The course materials just happen to be sponsored by my firm, Andrews Kurth LLP. Who knew?

And I'll be there. So you've got that going for you.  Which is good.

Check out the info on Facebook or Linkedin or on the DRI website. 

If you attend, be sure to introduce yourself. I'll be the one in the bow tie.

A good time will be had by all. 

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And now we come to part three in the exercise. 

I originally wondered whether one could improve upon a good judicial opinion just by changing the typography.

Then I took a swing at it, making some fairly radical changes in the original Comptroller v. Attorney General written by Chief Justice Jefferson.  This was the result

Now we get an idea what kind of changes someone who knows what they're doing would make.

Matthew Butterick, unlike me, has an undergraduate degree and work experience in the area of font design. Part of what set me off on this experiment was reading his new book, Typography for Lawyers, which is both useful and entertaining. It has reference-type sections that set out the rules and conventions of good typography, as well as historical and entertaining yarns about how we got where we are and why there is almost no escaping Times New Roman font. 

In my view, every lawyer who writes enough to own the Bluebook needs a copy of this book too.  (All the cool kids have one).

So when I decided I would try my hand at redesigning an opinion, I e-mailed Butterick to see if he would have a go.  He consented.  After the jump, you get Comptroller v. Attorney General both before and after Butterick.

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