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

My how time flies.

Or maybe I'm just behind the times.

A week ago I blogged about the utility of shock collars as behavior modification devices for trial lawyers. And I immediately knew that the title of my next blog post on the topic would be some version of that phrase that entered our shared consciousness:

Don't taze me, Bro!

I knew there would be some nice Youtube mashups of the famous incident. But I had forgotten how long ago that happened.

It was during the Kerry campaign.

Seriously. Who knew?

Seems like it was only last week--like when I asked for some Tase-Worthy trial lawyer conduct and didn't receive any comments.

**ahem**

After the jump, some of my own thoughts about Taze-Worthy antics, just to get you started.

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Just about the time you think there is nothing new under the sun or nothing interesting to blog about, the legal profession continues to astound and amaze.

More specifically, trial lawyers will never let you down.

On Monday I was trolling my usual blog buffet and I saw this item on the ABA Blog about a lawyer that was defending himself, pro se, in his own criminal trial. 

You know the old saying, a lawyer who represents himself has a fool for a client. But this guy took it to a whole new level. He was essentially appearing in court with the human equivalent of a canine shock collar:

Four U.S. marshals will be in the courtroom as attorney Paul Bergrin goes on trial in federal court in Newark, N.J., next month in a racketeering case in which he is accused of operating his law firm as a criminal enterprise and conspiring with another New Jersey lawyer to murder government witnesses.

But that's not not enough security, court officials apparently have decided. Bergrin, who is defending himself pro se, will also wear a hidden ankle bracelet. If he moves too far from his assigned area of the courtroom and violates rules against approaching the bench or the jury, he could get a jolting electric shock from the marshals, via the bracelet, . . . .

A jolting, electric shock for trial counsel who neglects to seek permission before approaching the bench?

Now this could come in handy. Really, really handy . . . .

Of course, my first thought was that the Supreme Court of Texas might find such a device useful for all of those trial lawyers who handle their own appeals when they are prone to wander from the podium in order to re-deliver their closing argument:

• But do you give the button to Chief Justice Jefferson? He might be too restrained, nice guy that he is.
• One button to each member of court? That could be dangerous, especially if all nine are fighting to get their questions answered. That gives new meaning to the words "hot bench."
• Maybe just give "the button" to Justice Hecht as the senior justice empowered to act on behalf of the court?

I'm probably just a bad and vindictive person, but I began to daydream about all the other habits of trial lawyers that such a device might plausibly correct. The list began to expand rapidly with everything from pet peeves that make my head explode to matters of real substance.

But before I publish my own list, I want to hear from you:

• What are the things that other lawyers do that drive you crazy or make it harder to successfully do your job in representing the client?
• What behaviors would you change if you could?
• And in particular, what do lawyers do, often without thinking, for which you might give them a zap?
• And what about you judges out there? Be anonymous if you need to, but what lawyer conduct do wish was Taze-worthy?

Use the comments. Weigh in. Speak out.

Or else.

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I've heard that admitting the problem is a good first step. So here goes.

My name is Kendall Gray, and I'm a serial killer.

Somewhere along the line, I killed the serial comma.

I became aware of the problem when Judge Brister staged an intervention. He sent back comments on a brief that we're writing, and one of his comments was:

Since when did you stop using the serial comma?

Oops. After the break, some blood, toil, tears, and sweat. And grammar, style, and writing advice. And commas.

I make my amends for serial killing.

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I'm out of town enjoying the State Bar Appellate Seminar, but I just had to drop a quick line.

We here at the Appellate Record have had our fun poking the SCOTX for cases that dated back to antediluvian times when bankers were popular and Lehman Brothers actually existed. 

It seems only fair that we tip our blogorial chapeau when the court puts its boots on and gets the stables cleaned out.

From the looks of it, all nine hands have put noses to grindstones and hands to plows. Since the 2010 term, the court has essentially eliminated its backlog, carrying only four cases forward from last term that had been argued and are awaiting decisions.

And they did it without changing their grant rate (13%) or increasing their shadow docket of cases awaiting a grant or denial of the petition for review.

And during a year when the Legislature was in town to boot!

They just put their boots on one at a time, did the chores, and got it done.

They made hay while the sun shined.

They didn't waste time burnin' daylight, Pilgrim.

They got right back up there on the horse.

You get the idea.

As Kurt Kuhn pointed out during a great presentation at the seminar, this is the lowest number in the history of the court--a court that probably does more with fewer resources than at any time in history.

They're so caught up, they could adopt the practice of the US Supreme Court and start clearing their docket every term.

If they wanted to.

Or not.

I'll stop now, lest they get too big for their britches. 36 arguments are already set into January. I hope they ain't bit off more'n they can chew.

In any event, "Chapeau" to the high nine.

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The ability to buy books online means that I am easily parted from my money. 

 It is a regular occurrence in the office that a package with a smiley face will arrive of an afternoon, and my purchases are so frequent and impulsive that I often cannot anticipate what is inside.

This past week I tweeted about the arrival of this little gem, "Just My Type: A Book About Fonts" by Simon Garfield.

It is about so much more than fonts, as I soon discovered when I spent the first half of the high school football game last Friday with my nose buried in its pages.

Yeah, I can only nominally be called a Texan given my lack of devotion to Friday Night Lights.

The book is an entertaining history of how we got from texts handwritten by scribes, to moveable type that endeavored to look like handwriting, to mechanical type that was designed for clear communication, to digital typefaces.

Included in the yarn was the tale of what might be the worst typo of all time: the "Wicked Bible." Because of a typesetter's error, congregants in the British reformation, who had only recently received scripture in their native tongue, were actually commanded to commit adultery:

We are not immune from such whoppers, just because we no longer set moveable type. A Google search for the worst typos ever yielded this post about other embarrassing moments in publishing history. Spell checker never would have caught most of them.

The recipe undoubtedly called for "ground black pepper," not "ground black people." Likewise, Garrison Keillor's opus does not include "Prairie Ho's"--unless he's gone gangsta without my noticing.

Stay tuned for an upcoming article on how to become a better editor of your own work. Thankfully, as much damage as a bad brief can do, we are unlikely to send a rocket crashing into the sea through misplacing a hyphen.

I'm just a humble appellate lawyer, and writing the King's English is not rocket science. Is it?

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