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

Several months ago, I was working on the next in a series of articles for Texas Lawyer. I had decided to try and write a "how to" article about editing.

This, of course, was a mistake, because Murphy's law holds that an article on editing will take longer to edit than any article I've ever done.

But now I'm truly in the big time because the article is being carried in both the Texas Lawyer and the National Law Journal.

(This, of course, is in addition to the strong freshman year I'm having as the big man for the Delaware State Hornets. Although they grossly exaggerate my height by listing me at 6' 10").

So, I've got that going for me.

Which is nice.

Basically the article is a list of techniques, many suggested by you readers, to make anyone a better editor. Most of the tricks are designed to make you slow down and think critically about what you actually put on the page rather than just breezing past what you thought you said.

Since I finished the article I picked up the book "Thinking Fast And Slow" by Daniel Kahneman, a Nobel laureate in economics. I'm only just into the book, but I already wish I had read it before writing my own little piece.

Kahneman describes how our brain has two different systems, "System 1" and "System 2" for short.

System 1 is that part of the brain that does things, sometimes remarkable things, intuitively and without conscious thought.

System 1 can tell in an instant if your spouse is angry when he/she calls. System 1 can tell if you were the subject of the conversation before you came into the room. System 1 may have largely driven you to work this morning. System 1 is what slams on the breaks or recognizes danger even before your conscious mind knows why.

But System 1 is the part of the brain that edits intuitively and with too little analysis or criticism.

System 2 is the conscious, complex, analytical part of the brain.

System 2 is the part of your brain required to multiply 47 times 13.

System 2 is the part of your brain that a non-master chess player uses to evaluate a position

System 2 is the part of your brain that makes the more careful editor. The judge, who does not know your case, will be trying to process much of the information with System 2 and does not have the System 1 intuition you have after living with the case for so long.

As I think on it now, many of the editing hints in the article are just ways to keep System 1 at bay and keep System 2 awake. I wish I'd read the book first.

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When counting your blessings, do not neglect to mention Judge Per Curiam at the Supreme Court of Texas. On Friday, Judge Per Curiam threw out a life line to rescue an appeal.

The lower courts had held that a pre-judgment motion for JNOV did not extend the appellate time table. Judge Per Curiam, kind and soft-hearted chap that he/she is, held that it was close enough.

The prejudgment NOV motion did extend the appellate time table, making the notice of appeal timely. To prove it, Judge Per Curiam took a jaunt through the rules governing appellate time tables in a manner befitting someone sitting for the board certification exam (*ahem*).

In this case, a number of overlapping procedural rules apply. Under Rule 26.1, the normal filing deadline for a notice of appeal is thirty days. That deadline is extended to ninety days “if any party timely files: (1) a motion for new trial; [or] (2) a motion to modify the judgment.” TEX. R. APP. P. 26.1(a)(1)–(2). Texas Rule of Civil Procedure 329b states that a motion for new trial is timely if filed “prior to or within thirty days after the judgment . . . complained of is signed.” TEX. R.CIV. P. 329b(a) (emphasis added). This “prior to” language is supplemented and clarified by civil rule 306c, which provides that “[n]o motion for new trial . . . shall be held ineffective because prematurely filed; but every such motion shall be deemed to have been filed on the date of but subsequent to the time of signing of the judgment the motion assails.” TEX. R. CIV. P. 306c. The Rules of Appellate Procedure echo this concept in Rule 27.2, under which “[t]he appellate court may treat actions taken before an appealable order is signed as relating to an appeal of that order and give them effect as if they had been taken after the order was signed.” TEX. R.APP. P. 27.2. Finally, civil rule 329b(g) states that a “motion to modify . . . shall be filed and determined . . . and shall extend . . . the time for perfecting an appeal in the same manner as a motion for new trial.” TEX. R. CIV. P. 329b(g). Thus, the premature filing rules in civil rule 306c and appellate rule 27.2 apply equally to motions for new trial or to modify the judgment. Under these overlapping procedural rules, the filing of a motion for new trial or to modify the judgment, before the judgment is signed or within thirty days after, extends the deadline for filing a notice of appeal to ninety days.

Just about the only unpardonable sin in appellate practice is failing to get the notice of appeal filed on time. So much so that one of my unalterable life goals is to complete my appellate career without having to "make" any law on appellate jurisdiction.

Way too scary.

But if you do have to make jurisdictional law, it is probably Judge Per Curiam -- not the intermediate courts -- who will grant you mercy. 

Judge Per Curiam, full of grace.

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As I was perusing my electronic copy of the Wall Street Journal Monday morning, as I am wont to do whilst savoring the caffeinated sacrament of our profession and delaying the inevitable onset of the day, I ran across an article by Pia Catton entitled "The Classical-Music Chaperon" about the book, What Makes It Great, by Rob Kapilow.

From the sounds of it, calling this merely a book is to do it a great injustice. Rob Kapilow, a conductor and composer and commentator, has taken his passion for classical music and attempted to create that same passion in those who don't necessarily share it.

Kapilow seeks to remove the barriers that keep people from enjoying classical music in hopes that others will love it as much as he does. He's been at this mission for 30 years. His latest creation is a book, an e-book, an accompanying website, and for the ipad, a multimedia experience that combines text and music and scrolling notation, removing barriers for those who don't read music.

In addition to making me lust after in iPad and the e-book, the article and the description of Kapilow's book got me thinking deep thoughts. After the break a brief homily about what Rob Kapilow and Leonard Bernstein and Michael Tilson Thomas have in common with the workaday world of law practice done right.

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I was trolling the blogs not long ago and came across this little number on the ABA Blog about a judge who was scolding criminal defendants that showed up in court wearing baggy pants and showing their drawers.

Which of course reminded me of this episode from American pop culture, the famous "Pants on the Ground" song from some long ago season of American Idol:

 What does this have to do with appellate practice, or indeed law practice at all? The full explanation is after the break, but it has to do with respect.

And if you don't pay attention to it, you too could find yourself in court, "looking like a fool with your pants on the ground."

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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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Hat tip to the ABA Blog for another tale of woe about attorneys who worsened their fate with bad spelling.

A New York judge was concerned that defense counsel lacked the necessary "game" to handle the high profile murder case before the court.

Among the reasons? Facebook comments and bad spelling. According to the ABA Blog:

Firetog scolded the lawyers for complaining about press coverage of the case after giving media interviews and posting comments on Facebook. He even chastised the lawyers for misspelling “canon” in a reference to ethics, the Times says. “Two N’s means a cannon that shoots at something,” he said.

So remember, campers, an ethical canon is what attorneys must obey. An ethical cannon is an artillery piece that obeys the rules of engagement.

The career you save could be your own.

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It's hard to get a moment's rest when you are the "Appellate Record."

Sure, it all looks like glamorous parties and premiers, but it can be a grind, what with all the paparazzi and personal appearances and such.

But here at the Appellate Record, we take it all in stride because it's all about you.

And my latest bit of unsolicited advice for "you" involves a Texas Lawyer article containing my thoughts about board certification:

• Why do it?
• Has it made us any better as a profession?
• And most importantly, how do you prepare for the exam?

That exam is a bear, campers. So check out the article and study hard.

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Suppose you were abducted by aliens.

And before you were probed, they asked you to explain what it is that you do and why. If you are an appellate lawyer, how would you explain your job? Why does your job exist and why can't just any old lawyer just do it?

I had to do something similar last week. They weren't extraterrestrials, and I wasn't probed. But they didn't speak my language and they came from a society that has very little in common with our own.

 Here at Andrews Kurth, we had a visiting delegation of judges from China. And my mission, whether I chose to accept it or not. was to create a presentation on American Appellate Practice--a presentation for translation, one sentence at a time, to an audience that does not speak English or even a language from which English derives.

 After the break, a few deep thoughts about appellate lawyers' Raison d'être--in English.

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I recently posted about an extreme example of what can happen when one fails to adequately edit and proof a brief--including failing to adequately edit for tone and indeed for arguments that ought not be made in an appeal that probably ought not have been taken.

So, if one accepts the proposition that careful editing and proofing are important, that leads to the obvious next question of, "how do you do it?"

Sure, I have my own bag of tricks for how to edit a brief, not only to ferret out the niggles and mistakes, but also to pump up the prose so that the things you ought to say are said in the best way possible.

(Notably, those are not always employed on the blog and mistakes slip through).

But I've very seldom gotten ideas from other folks on their own methods of editing.

So here's the question I'd really like the readers and lurkers to answer in the comments:

What are the steps you go through, the techniques you use or your personal "tricks of the trade" for getting from the full draft to the almost final draft to the filed product?

I'd like to get as many answers as possible for a potential article or series of posts.

Plus, I'd just like to get better at this sort of thing. I'm a GREAT editor of stuff written by someone else. Stuff by me? I could be much better.

And just think: if we can save just one brief from the odd dangling participle or lack of subject/verb agreement, school marms in black robes everywhere will surely lavish us with thanks.

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A little heads up to readers in the Dallas area. The Appellate Record will be on the road, live and in person at the Dallas Bar Association Appellate Law Section on June 16. The seminar will be at the Belo Mansion at high noon.

Robert Gilbreath and I will be presenting a program called "Don't Be Ugly" about how to enhance the persuasive power of your legal writing just through better typography and document design.

• We'll be using actual briefing examples from a number of real cases.
• We'll stack the Microsoft defaults and the briefing rules up against standards of good typography.
• We'll mock Times New Roman.
• We'll joust about footnotes.

It will be nerd-o-riffic. So be there or be square.

Or, squarer.

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So today is the day for presenting my rant on privacy and confidentiality in the age of e-filing at the 21st Annual Conference on State and Federal Appeals.

And because you are a preferred reader of the blog, YOU get an updated and corrected version of my paper, "I'm From The Government And I'm Here To Help."

The paper includes some suggested "best practices" to hopefully avoid the danger of getting your client's private information unintentionally exposed to the internet through e-filing.

How much would you pay for a premium like that? But don't answer yet, because preferred blog readers also get the appendix of sealing rules and procedures compiled by my colleague, Jason Shyung.

Of course, only conference attendees will get the pulse-quickening thrill of the live, power point presentation. At 2:15 on a Friday afternoon. 

So they've got that going for them. Which is good.

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Did we really think through this whole e-filing thing?

Unlike the federal system, Texas has no uniform set of rules concerning how to handle sensitive information in e-filed documents. And you no longer have to go down to the clerk's office and rifle through dusty boxes to peak into someone's life.

Perhaps that's why it took me all of 10 minutes of searching online to find information that I could have used to commit identity theft. 

Yeah, 10 minutes. Some poor client's lawyer had included full name, date of birth, insurance number, etc. in a sloppy summary judgment exhibit.

Before you e-file something about your client, you should think about it as if you are publishing it on the internet.  Because you are.

And once it's out there that private information can travel at the speed of light. Here's the illustration I am using in my upcoming paper and presentation on the topic at the 21st Annual Conference On State and Federal Appeals: 

The speed at which information travels in the age of electronic access could not have been conceived by John Stuart Mill, Jeremy Bentham or even the drafters of Rule 76a. Just take one example from recent events. There was no more closely guarded secret than the helicopter attack that targeted Osama Bin Laden. But a Pakistani IT consultant named Sohaib Athar with the Twitter handle ReallyVirtual unwittingly “live-tweeted” the helicopter assault when he heard the explosions and gunfire. Donald Rumsfeld’s former Chief of Staff “tweeted” the fact of Bin Laden’s death before it was announced by President Obama. The official announcement came at 10:35 p.m. and the location of Bin Laden’s lair was on Google Maps less than an hour later.

Now, imagine your client's medical records or insurance group number or Social Security number flashing around the world, even if a little slower than that.

So what's a lawyer to do? And are the courts in any position to give us some protection if we stub our toes? Keep watching this space for the full paper, or come see Appellate Nerds Unplugged at the UT Conference on State and Federal Appeals, June 2nd and 3rd at the Four Seasons Hotel in Austin.

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Hooray! Texas has e-filing!

In the Supreme Court.

In many of the intermediate appellate courts.

Even in many of the big city trial courts!

Nirvana has been reached. That's good right?

No, that's bad.

How?

Texas also has the most presumptively open regime of court records in the country. With a click of the mouse any Tom, Dick or Hacker can access the dirty laundry or private information that makes its way into the court records--either because it needs to be there to adjudicate the dispute or simply because of carelessness.

Uh, oh. That's bad, right?

No. That's good. We want our courts to be open. Star Chambers are not the hallmarks of free societies.

So it's complicated, then?

Yeah, you could say that. Here's the illustration I borrowed for a recent paper on the topic:

Before you become warm and fuzzy with abstract notions of democratic theory, I challenge you to get really practical:

• Write down five entities that you owe money to, and write down how much you owe them. Don’t forget your mobile phone carrier and your electricity provider.
• While you are at it, write down your full name, every name you have been known under, and your Social Security number.
• How about your monthly mortgage payments, your cable bill, your insurance premiums?
• Now the names and ages of your minor children.
• Now publish all the information on the internet.

No? Why not? This information ought not be public? But that’s what it feels like to file for bankruptcy. 

This is the problem. Are there any solutions? Should the rules be changed? What should lawyers be doing to protect their clients and themselves?

Well, that's the topic of my yearly rant at the 21st Annual Conference on State and Federal Appeals to be held June 2nd and 3rd at the Four Seasons Hotel in Austin. Until then, I'll be sharing little tidbits of the topic and I hope to see some of the blog lurkers at the conference.

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Don't click this link.

(I told you not to. That song is lodged in my head like a blood clot now.)

And don't shuffle your itunes player.

And don't check your Netflix cue.

And don't think about the Facebook updates.

I'm trying to keep your attention here.

According to Matthew Butterick, my most valuable resource as a writer is reader attention. And the problem is you're a screen reader.

You've got lots of options other than reading this blog--as wondrously entertaining as it is.

And the judges reading your e-brief are increasingly screen readers too. They have a lot of options more engaging than reading your page upon page of unbroken text on the subtleties of the Noerr-Pennington Doctrine or the Dormant Commerce Clause.

Are these screen readers any different? If so, how do you engage them? How do you keep them? How do you write for them? As with typography, I went straight to the expert.

Because that's how we roll here at the Appellate Record.

My friend, Robert Dubose, has written a paper and spoken on the topic before. Now, he is the author of the book, Legal Writing for the Rewired Brain: Persuading Readers in a Paperless World.

After the jump, we'll start to plumb the depths of his rewired brain.

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There's one part of every legal project that always stresses me out.

You'd think that I'd be used to it or would get over it or at least that I would come to expect it. But somehow it always seems to catch me by surprise. And every time seems like the first time.

It's not the working part or the writing part. That part is fine because I feel like I'm "doing" something--making a little progress toward the goal.

What's the part the always freaks me out?

It's the thinking part.

After the break, a homily from Justice Scalia and Bryan Garner about thinking twice and writing once.

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Just a heads up, today, that if you take a look at "This Week in Texas Lawyer," you will see a familiar blogger, complete with bow tie.

The Texas Lawyer published the first in a series of articles I will be doing on nuts and bolts in appellate practice for Texas practitioners.  The first, "Pick Me!" is about how to get the attention of the Supreme Court of Texas when you've been done wrong by the Court of Appeals.

There may be some things you had not thought of, but the summary of the practice tips comes down to emphasizing:

• which court of appeals the high court should review;

• how much is at stake for these parties or others;

• the potential for the case to impact statewide matters, such as those governed by the same contractual language or the same statute; and

• the ease and effectiveness of the court's ability to grant complete relief by rendering judgment.

It's a fun read (patting myself on the back) so why not read the whole article.

And sure, it's important to be able to look at your court of appeals opinion and tell whether or not you've got a Supreme Court case on your hands. But it may be even more important to be able to see Supreme Court issues right from the start in order to pursue and preserve them for argument five years from now in a court that may change between now and then.

As I've said before, be sure and call your friendly neighborhood appellate law nerd early and often. The case you save may be your own.

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Blogging, at its best, is a conversation. The blogger has some news or a take on something or an idea or something to say and throws it out there into the blogosphere. Other folks may comment on it, or repost the thought in their own forum and add their take. And so on and so on.

That's the part I enjoy: the back and forth, the contributions from others, and those times when something I write is useful or entertaining to someone else.

So it was gratifying last week to see where Hearsay, the blog of the Westminster Law Library at the Sturm College of Law at the University of Denver mentioned The Appellate Record from among Carl Sagan's "billions and billions" of blogs in the universe, among which there are a goodly number of law blogs--or blawgs.

Hearsay cited this blog as an example of a legal blog that "strikes the delicate balance between serious . . .  and whimsical." Nice. Because that's what I've been trying to do--give useful information, but mix it up in such a way that the blog is a fun place to go and hang out. And it was especially nice to get props from the law librarians. The law library is the natural habitat of an appellate lawyer, so we have a special, nerdy kinship with the secret society of law librarians. 

The kind mention happened in the context of a discussion of how to get started blogging: 

[A]s noted by Nicole Mundt . . . “there are very few actual “rules” to legal blogging, [but] there are quite a few considerations.” One way to try and figure out what works is to read through some of the many articles and book sections now dealing specifically with this topic. Another, more interactive way, is to see what other lawyers are doing, and incorporate the best stylistic aspects of other blogs into your own.

I agree. Blogging is a conversation, not a monologue. Becoming part of this virtual conversation is just like joining any conversation "in real life." Walk in, hang out for awhile, see what everyone is talking about, and when you're ready, find your voice:

• Comment on what you read.
• E-mail posts you like to colleagues.
• Start your own blog if that's your thing.

Whichever way works best for you, join the conversation.

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I don't know that there are any short cuts to doing a good job.

--Sandra Day O'Connor

If anyone ought to know the value of time, you would think it would be lawyers.  Many of us send out pieces of paper at the end of the month asking for money based upon the amount of time spent on clients' matters.

And yet to do good work--really good legal work--it often takes more time than we feel like we have and more time than clients want to pay for.

I'm not just talking about the time and care involved in proofing a brief to get it letter perfect, although that that is certainly part of it. My group of law nerd neat freaks reserves about 5 to 7 days before filing just for client comments, proofing, bluebooking, and more proofing. And the brief is usually out the door by early afternoon on the day of filing.

Yeah, we're those guys--the ones who never drafted a term paper the night before it was due or crammed for a test.  Sorry.

When law is done right, time is used in all sorts of other ways, some of which don't look like "working" and some of which do not even appear on the time sheet. For example:

• the time it takes to really sit still and think through a problem
• the time it takes to think about how your rule of law fits with the law as a whole
• the time it takes to put yourself on the other side of the bench (or even the other side of the case) and make your position seem reasonable from that point of view
• and  time not thinking about the case so that you're fresh enough to have that stroke of insight that can make all the difference.

Whether or not this "time" ends up on the time sheet, it is valuable time.  Yet we so often clutter our thought space with trivial busywork or Google ourselves to distraction--to which I frankly plead guilty.

Sure, you could practice law without investing this kind of time. You can look only at the short term advantage to be gained if you tie your opponent's shoe laces together or hornswaggle a judge into accepting a position you know that you you'll never hold in the long run.

But these are all short cuts, and as Justice O'Connor said, there are no shortcuts to doing a good job.  It takes time.

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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 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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Every once in a while you can learn something really useful from good ol' Judge Per Curiam.  The Supreme Court's recent decision in Wal Mart Stores v. Merrell is just such a case. 

The decedents died from smoke inhalation when their recliner burned.  So obviously, it was Wal Mart's fault  because the damaged floor lamp Wal Mart sold them was the culprit.  Right?  After all, according to the expert "the lamp’s halogen bulb exploded, sending burning glass shards onto the recliner, which smoldered for several hours."

Or maybe the decedents set the recliner alight themselves while smoking the drugs that were found in their system--either with candles or perhaps the "blunts" and  "smoking paraphernalia throughout the house, including ash trays, a bong, and marijuana cigarette butts." 

(Incidentally, did anyone other than me find it amusing that the Supreme Court of Texas found it necessary to drop a footnote to explain exactly what a "blunt" is?  I never saw anything stronger than an aspirin at my High School, but even I found the definition unnecessary and humorous.)

After the jump, a little homily on what this case really teaches us.

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Alas, the UTCLE Conference on State and Federal Appeals is over.  But what a fantastic gathering.  The speakers were better than ever and I never fail to learn whenever I attend.  And attending year after year makes it feel like old home week.

Many thanks to the organizers of the conference for inviting me to participate, and thanks as well to Judge Bill Boyce, Jennifer Hogan, and Daryl Moore for agreeing to share their secrets on how to prepare for oral argument.  It made the material much easier to present, much more engaging for the audience, and much much better than just my own method of preparation.

I have had some requests for the paper, so, if you are interested, I am posting the paper here. 

Mark it down and attend next year if you can.  All the cool kids do it.

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An unusual case from the Fifth Circuit yesterday in which the Court gave the victory to a party who chose not to show up on the merits. 

In Texas Midstream Gas Services LLC v. City of Grand Prairie, the City believed that the appeal was moot, and chose only to brief the jurisdictional issue, not the merits.  The Fifth Circuit found that the case was a live controversy, leaving the City with no briefing on the merits.  Judge DeMoss, writing for the Court, exercised mercy, choosing to consider the merits rather than kicking the City to the curb:

Perhaps convinced that its mootness argument was a winner, Grand Prairie did not brief the merits of this case. At argument, counsel offered no explanation for this omission. In some instances, this would lead us to conclude that a party had forfeited its opportunity to prevail on the merits.. . . However, we retain discretion to consider matters not briefed, especially when they implicate substantial public interests. . . . Additionally, when the derelict party is the appellee, who may rely on a favorable ruling by the trial court, it makes sense to construe the “rule” of forfeiture more leniently. . . . We can also preserve judicial resources and avoid piecemeal litigation by addressing issues sooner rather than later. . . . In this case, it makes sense to proceed to the merits of the dispute. . . .

The Court then even went on to give the City a victory.  But lest you be tempted to go with the "no briefing" approach to appellate practice, the Court condemned the city's tactical choice in no uncertain terms:

We will exercise our discretion to proceed to the merits of this appeal. However, we emphasize that counsel’s amateurish tactical decision to address only Grand Prairie’s mootnes argument is an egregious lapse in counsel’s duty to brief all pertinent issues.

The case involves the substantive law of municipal ordinances, eminent domain, and preemption under the PSA, and I commend it to your reading. But I would not advocate leaving your success to the mercy of Judge DeMoss, or any other busy appellate judge.  As nice a man as he is, it's better still to do your own research and have a brief on file.

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**Editor's Note: This is part IV of IV in a series leading up to a presentation on oral argument preparation at the UTCLE Conference on State and Federal Appeals.  Follow the links to read the First, Second and Third parts of the series.**

There is a part of me that really hates oral argument. 

There.  I said it. 

It makes me suspicious that being there "in person," and "who you are" still counts on top of  "what you know" when you are trying to persuade a court to rule in favor of your client.  My paper for the UT Conference on State and Federal Appeals puts it this way:

I have a chip on my shoulder against the “oral argument lawyer.” You know the type: an empty suit whose only merits are that he is tall, dark and handsome with a deep and sonorous voice and a full head of luxurious hair. (This vacuous character usually is a “he.”) I call this type of lawyer a “weatherman,” i.e., one who reads the teleprompter and looks good but who has not studied the legal doctrines and is barely literate on the briefing. For all his faults, a weatherman can still win cases by the power of his personality, even when he should not. As someone who is short, balding and analytical-rather-than-handsome, that kills me.

I'll never be a weather man.  I haven't got the looks or the persona.  But that's OK.  I'd rather be a "real" appellate lawyer.

The one thing that most distinguishes a weatherman, who is just another pretty face, from the "real" lawyer is preparation.  Nothing flashy, but there it is.  Indeed it was preparation that changed a stutterer into the voice that saved the Western World--Winston Churchill in 1940 when England stood alone.  Again from the paper:

Never has the spoken word been used to such great effect; but, Churchill had an inauspicious beginning as a public speaker. He lived in the shadow of a father who was noted in his parliamentary career for giving speeches from memory. So, Winston tried it and failed. Early in his political career, in the middle of a speech on a trade union bill, his mind went blank. He sank to his seat, head in his hands and could go no further.

From that point on, Churchill came to every speech armed with every word that he was going to say, including pauses and notations for “cheers,” “hear, hears” or even “prolonged cheering” and “standing ovations.” He estimated that the preparation of a forty-minute speech took between six and eight hours. He started by dictating to a secretary at a typewriter, the first of several drafts. From there he revised, cut and pasted, until he had it just right. Then, the speech was ready to be set down in what the staff called “psalm form,” the line endings demonstrating the rhythm of the spoken word.

I would say to the House

            as I have said to those who have joined this Government:

                        “I have nothing to offer but blood, toil, tears, and sweat.”

At oral argument, your challenge, in a sense, is even more complicated than Churchill's.  You can't prepare for an uninterrupted speech.  You have to prepare for a score of related speeches to give on the fly while you are subject to cross examination by an audience that may be hostile to your position. 

You have to prepare for that.

Unless you'd rather be a weatherman.

Check out the UT Conference on State and Federal Appeals for great input from the panel on exactly how to prepare for that kind of joust.  The members of the panel, Judge Bill Boyce, Darryl Moore and Jennifer Bruch Hogan, are not weathermen. 

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I wrote here and here about the Conference on State and Federal Appeals on June 3 and 4, as well as my presentation on preparing for oral argument.  Giving a presentation about exactly how and why I do what you do kind of feels like cheating because I wind up learning way more than the group I'm purportedly "teaching." 

One of the lessons I rediscovered was how important it is to take my time when I'm preparing for argument.  The temptation is always there to start creating outlines too soon and figuring out what you're going to say.  This is a mistake.  The first step for preparation that I wrote about in the paper is:

Step One: DON’T Figure Out What You’re Going To Say

I have a paper weight with the quotation, “Good writing is clear thinking made visible.” By the same measure, “Good argument is clear thinking made audible.” One of the biggest temptations in writing a brief is the temptation of writing too soon, before your thinking is clear and before you have a plan. In my view it is the same with oral argument.

There are many hoops to jump through before your thinking is clear enough that you can possibly have any idea what ought to be said. . . .

So, like a good doctor, first, do no harm. Like a good carpenter, measure twice, cut once. Don’t start by trying to figure out what you’re going to say. Get your thinking clear, and do the following steps first.

The rest of the paper is nine steps I use to create and learn all the information I need in a short argument outline.  But none of that creation or learning takes place if I just sit down with pad and paper to "draft" an argument outline from the outset. 

I hope you get to come to the conference and introduce yourself in real life.  UT always puts together a good program, and I know my panel members, Daryl Moore, Jennifer Bruch Hogan,  and Judge Bill Boyce will  have good content on how to get your thinking clear for argument.

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In earlier post I mentioned the paper I am writing on oral argument and the presentation to be given at the UT Conference on State and Federal Appeals held June 3 and 4.  The first part of that paper is about why we hold oral argument at all.  The second part is a blow-by-blow account of how I prepare, as just one suggested method for how to do it well.

As I got down to writing the paper, I noticed something about my method that I had never thought about.  With all the techie tools available to me, my studying is still very 19th Century.  As it turns out, I think that's a good thing:

• My method tends to be very analogue and slow—physically looking at the record or writing certain things in long hand as opposed to using lots of digital tools or applications. 
• My method involves repeated exposure to the same information in different contexts using different, physical senses.
• As a result, my method accidentally incorporates some of the things I learned 30 years ago in my one undergraduate “Educational Psychology” class.

The Ed-Psych researchers that we studied found that repeated exposure to information, using multiple senses to draw relationships and connections was the way to master academic material. So, why not bring those same techniques to bear in “studying” for the oral argument test? 

Just like history class or conjugating French verbs, I literally make flash cards of anticipated hard questions and how I will answer them, flash cards for all the key cases, etc. and then I drill the same as I would for any other "exam."  I physically read the record on paper because it makes a visual imprint.  I say things out loud because hearing helps me remember.  I study as if I will be tested--because I will.  Those folks in the black robes like to ask questions, and I'd much rather have them do so than speechify to a bunch of potted plants.

And I'm sure I'm not the only one that reverts to my school days when preparing.  Help me out.  What are your prep methods that carry over from school?  What is the trick in your tool bag that works best for you?

But if you want my 10 Easy Steps to Making Oral Argument Fun And Simple (and the scintillating discussion of the panel members, Judge Bill Boyce, Jennifer Bruch Hogan and Daryl Moore) you'll have to attend the conference!

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On June 3 and 4, UT will hold its annual Conference on State and Federal Appeals at the Four Seasons Hotel in Austin. I'm lucky enough to get to speak at the conference again.

This year, I wanted to take up the topic of oral argument preparation--not the typical "how to argue" topic (listen to the judges, answer the questions, blah, blah blah), but a real nuts and bolts presentation on the steps one goes through from the time one gets the argument setting to the day of argument. 

Joining me for that presentation will be Judge Bill Boyce, Jennifer Bruch Hogan and Daryl Moore, thorough preparers all. 

The paper and the presentation will also try to make the case that oral argument still matters, even in the era where we idealize the legalist, umpire judge who just calls the balls and strikes:

 

            We idealize the judge who is the icy legalist. As Chief Justice Roberts put it during his confirmation hearings, the good judge is merely an umpire who calls the balls and strikes. And this idealized passivity is no new development. The Federalist Papers speak of judges that (unlike the executive or legislative branches) exercise “judgment,” but not “will.”

That kind of judge certainly would never be swayed by the dulcet tones of a mere orator, right?  But are all the questions to be decided truly cold and legal?  And contrast that with the old British system.  It had its drawbacks, of course, but its emphasis on full oral development of the case let the public and the litigants have some level of confidence in the work of the court, which they had themselves observed first hand:

Proceeding orally step-by-step through the case, reading aloud pertinent written material, assures that each one of the three judges is having the same matter put before him and is focusing at the same time on the same facts, issues, and arguments. Three minds are working in harness together, heading toward a collegial decision. The judges' minds are exposed for all the world to see. There is little ground for anyone to doubt that a judge considered every point, because everyone in the courtroom can see whether each judge is listening and participating-as he usually is-or, equally important, whether he is asleep or inattentive.

(quoting Daniel J. Meador, English Appellate Judges From An American Perspective, 66 Geo. L. Rev. 1349 (1977)).

The conclusion I came to (and will demonstrate on the day) is that oral argument very much still counts.  As legalist as we want to believe ourselves to be, there are many legal questions that are not as concrete as doing sums.  Likewise, it is important for the parties and the public to see justice being done, and in appellate cases, that can only happen in oral argument. 

The second part of the presentation is entirely taken up with steps for preparation.  Watch this space for a preview of that, but I'd love to hear from some others.  Feel free to send me an e-mail or leave a comment describing your method for getting sharp in advance of argument. 

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There's a special form of legal terrorism going on out there.  Judges everywhere are being abducted and taken on horrific journeys that they never knew they were in for. 

Well, only kind of. 

What I'm talking about is the tendency of advocates not to tell the judge where they want to go and how they're going to get there.  The result of such a failure is that the decision maker you are trying to persuade feels like he or she has been dumped in the trunk of your car in the dead of night.  Instead of persuasion, the reader feels disorientation or worse. 

After the jump, read an illustration of the problem and some approaches for how to take your reader along for the ride while not making them feel like they've been abducted.

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Hat tip to Mary Alice Robbins over at the Texas Lawyer Blog, as she reminded me in her post, Prepare now for looming e-filing switch at 5th Circuit, that the Fifth Circuit deadline for adoption of e-filing is almost upon us.  Join me (and all the other late adopters) in checking out the information on the Fifth Circuit's website for what must be done. 

Among other things:

NOTICE: The Fifth Circuit U.S. Court of Appeals . . . will move to MANDATORY electronic case fiing on March 15, 2010.

Electronic filers must complete at least two interactive electronic learning modules (see below) and provide certification that they have done so by using the email button at the end of the modules either before or after they register for an electronic filing account

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We appellate lawyers are a strange breed. If the law world is a high school, we appellate lawyers are not the jocks, the stoners, the student counsel, or even the band geeks.

• We’re the chess club.
• We're the ones who actually read the box top before playing the board game.
• We know that you don’t get money for landing on free parking in Monopoly.
• We notice inconsistent formatting in grocery lists--lists that sometimes contain footnotes.

But really, what is an “appellate lawyer” and why would any trial lawyer in a letter jacket want or need a member of the chess club?

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