By Kirsten E. Small
The interwebs have been abuzz this week with gleeful snarking about Sanches v. Carollton-Farmers Branch I.S.D., particularly the Fifth Circuit's dressing down of Sanches' attorney for "grammatical errors ... so egregious and obvious that an average fourth grader would have avoided most of them." Ouch.
Of course, checking your brief for spelling and grammatical errors is important, and not just so you can avoid having a federal court of appeals tell that you are approximately as literate as a 9-year-old. Much like having a run in your stockings (I hear nylons are making a comeback) or a stain on your tie, careless errors in your brief distract from the quality of your argument. Why slave for hours to craft a brilliant argument if the court is going to be too busy snickering over your failure to master subject-verb agreement to notice?
As if that's not enough, careless briefing can cost you money (I knew that would get your attention).
Friday, July 22, 2011
Tuesday, July 19, 2011
Is that a Statement of Facts, or a "Fact Dump"?
by Kirsten E. Small
A friend of mine practices Social Security disability, and hence files quite a few appellate briefs in the U.S. District Court. A while back, Leeds came up with the heretical idea of completely omitting the statement of facts from his brief. Instead, all discussion of the facts occurs in the context of the argument as to each asserted error in the ALJ's decision.
Heretical, maybe--but effective. One of our magistrate judges recently had this to say about a brief prepared in this style:
A friend of mine practices Social Security disability, and hence files quite a few appellate briefs in the U.S. District Court. A while back, Leeds came up with the heretical idea of completely omitting the statement of facts from his brief. Instead, all discussion of the facts occurs in the context of the argument as to each asserted error in the ALJ's decision.
Heretical, maybe--but effective. One of our magistrate judges recently had this to say about a brief prepared in this style:
Wednesday, June 29, 2011
Effective Appellate Advocacy: Issue Framing
by Kirsten E. Small
In my inbox this morning was a great blog post by Kendall Gray, writing about the Supreme Court's decision this week in J. McIntyre Machinery v. Nicastro. He pointed out two wonderful examples of issue framing by Justice Kennedy, writing for the majority, and Justice Ginsburg, writing for the dissent.
See the magic for yourself, after the jump.
In my inbox this morning was a great blog post by Kendall Gray, writing about the Supreme Court's decision this week in J. McIntyre Machinery v. Nicastro. He pointed out two wonderful examples of issue framing by Justice Kennedy, writing for the majority, and Justice Ginsburg, writing for the dissent.
See the magic for yourself, after the jump.
Monday, June 20, 2011
Jedi Mind Tricks in the Fourth Circuit
By Kirsten E. Small
Remember Obi-Wan Kenobi waving his hand at some baddie in the first Star Wars movie saying, "There is no droid"? Of course, there still was a droid, but the important thing was that the bad guy believed that there was no droid.
The Fourth Circuit employs its own Jedi-like powers in Grant Thornton, LLP v. FDIC, issued Friday. A truism of appellate litigation practice is that an appellate court is concerned not just about the case in front of it, but also about the rule that its decision will establish for future cases. In Grant Thornton, the Court affirmed a district court order finding an accounting firm liable for professional negligence, a ruling that has the potential of opening a few floodgates. So, the Court uses Force persuasion: it waves its hand (i.e., issues an unpublished opinion) and tells us there is no rule: The result is "driven by [the] unique facts" of the case, and "it should be well understood we do not announce any new rule of auditor liability and none should be implied."
So the question is, will potential litigants wander off in a haze muttering "there is no rule," or will they sneer back, a la Jabba the Hutt, "Your Jedi mind tricks will not work on me, court"?
Remember Obi-Wan Kenobi waving his hand at some baddie in the first Star Wars movie saying, "There is no droid"? Of course, there still was a droid, but the important thing was that the bad guy believed that there was no droid.
The Fourth Circuit employs its own Jedi-like powers in Grant Thornton, LLP v. FDIC, issued Friday. A truism of appellate litigation practice is that an appellate court is concerned not just about the case in front of it, but also about the rule that its decision will establish for future cases. In Grant Thornton, the Court affirmed a district court order finding an accounting firm liable for professional negligence, a ruling that has the potential of opening a few floodgates. So, the Court uses Force persuasion: it waves its hand (i.e., issues an unpublished opinion) and tells us there is no rule: The result is "driven by [the] unique facts" of the case, and "it should be well understood we do not announce any new rule of auditor liability and none should be implied."
So the question is, will potential litigants wander off in a haze muttering "there is no rule," or will they sneer back, a la Jabba the Hutt, "Your Jedi mind tricks will not work on me, court"?
Tuesday, May 24, 2011
Briggs v. Elliot and the Best CLE I Have Ever Attended
by Andrew Mathias
The South Carolina Supreme Court Historical Society conducted a Colloquium entitled “J. Waites Waring and the Dissent that Changed America” in Charleston on Thursday, May 19 and Friday, May 20, 2011. The Colloquium marked the 60th anniversary of the trial Briggs v. Elliot, South Carolina’s landmark school desegregation case arising out of Clarendon County that was consolidated on appeal with four other cases from around the country. The opinion issued by the Supreme Court of the United States in that consolidated appeal is known as Brown v. Board of Education.
The event kicked off Thursday night with a dinner at which Professor Charles Ogletree of the Harvard Law School delivered a wonderful speech concerning Briggs and the events leading up to the trial of the case. I had the privilege of sitting next to Judge Matthew Perry and listened to him tell stories of attending the trial at the Federal Courthouse in Charleston. Judge Perry, along with hundreds of other interested onlookers, packed into the relatively small court room to watch Thurgood Marshall present ground breaking evidence. This trial was the very first time Professor Kenneth Clark took the stand and gave expert testimony based in his tests using dolls to identify psychological harm to school children. I will remember forever Judge Perry’s stories about the trial and count it a wonderful blessing that I got to hear them first-hand.
The group reconvened the following morning at the Federal Courthouse to hear from a great lineup of speakers at a day long CLE. Presenters at the CLE included Chief Justice Jean Toal; Federal District Judges Richard Gergel, Michelle Childs, and Matthew Perry; as well as several history professors. The most impactful address was delivered by Joe DeLaine, son of J.A. DeLaine. J.A. DeLaine was the minister of St. Marks AME Church in Summerton, South Carolina and helped organize the group of parents that eventually became plaintiffs in Briggs. Joe DeLaine told stories about the families involved in the law suit, the trial, and the real-life sufferings experienced by each of them as a result of their actions. The Charleston Post and Courier ran a short piece on Joe DeLaine’s speech. It provides a little more detail and I recommend that you read it.
I wish I had more time to share details of the event and the history that I learned as a result of my attendance. But, I will simply say this: the 2011 South Carolina Historical Society Colloquium was the best CLE I have ever attended and believe it will be hard to top.
The South Carolina Supreme Court Historical Society conducted a Colloquium entitled “J. Waites Waring and the Dissent that Changed America” in Charleston on Thursday, May 19 and Friday, May 20, 2011. The Colloquium marked the 60th anniversary of the trial Briggs v. Elliot, South Carolina’s landmark school desegregation case arising out of Clarendon County that was consolidated on appeal with four other cases from around the country. The opinion issued by the Supreme Court of the United States in that consolidated appeal is known as Brown v. Board of Education.
The event kicked off Thursday night with a dinner at which Professor Charles Ogletree of the Harvard Law School delivered a wonderful speech concerning Briggs and the events leading up to the trial of the case. I had the privilege of sitting next to Judge Matthew Perry and listened to him tell stories of attending the trial at the Federal Courthouse in Charleston. Judge Perry, along with hundreds of other interested onlookers, packed into the relatively small court room to watch Thurgood Marshall present ground breaking evidence. This trial was the very first time Professor Kenneth Clark took the stand and gave expert testimony based in his tests using dolls to identify psychological harm to school children. I will remember forever Judge Perry’s stories about the trial and count it a wonderful blessing that I got to hear them first-hand.
The group reconvened the following morning at the Federal Courthouse to hear from a great lineup of speakers at a day long CLE. Presenters at the CLE included Chief Justice Jean Toal; Federal District Judges Richard Gergel, Michelle Childs, and Matthew Perry; as well as several history professors. The most impactful address was delivered by Joe DeLaine, son of J.A. DeLaine. J.A. DeLaine was the minister of St. Marks AME Church in Summerton, South Carolina and helped organize the group of parents that eventually became plaintiffs in Briggs. Joe DeLaine told stories about the families involved in the law suit, the trial, and the real-life sufferings experienced by each of them as a result of their actions. The Charleston Post and Courier ran a short piece on Joe DeLaine’s speech. It provides a little more detail and I recommend that you read it.
I wish I had more time to share details of the event and the history that I learned as a result of my attendance. But, I will simply say this: the 2011 South Carolina Historical Society Colloquium was the best CLE I have ever attended and believe it will be hard to top.
Thursday, May 19, 2011
SCOTUS Justices on legal writing--A few tips, and proof that you can't please everyone.
By Kirsten E. Small
Courtesy of The Blog of Legal Times comes news that legal writing guru Bryan Garner has release the full transcripts of his 2008 interviews with various Supreme Court Justices. The BLT's article is here, and the transcripts are available through the Scribes Journal of Legal Writing (an excellent resource, by the way).
Before hightailing it over to the Scribes site to download and read the transcripts until my nerdy little heart is content, a couple of highlights from the BLT article: short briefs are better than long, avoid legalese (and the improper use of "which"), and cite the record and cases honestly. Justices Thomas and Alito think the summary of argument is important; Justice Scalia thinks its a waste of space.
Finally, be advised that Justice Kennedy does not like it when lawyers verb words.
Courtesy of The Blog of Legal Times comes news that legal writing guru Bryan Garner has release the full transcripts of his 2008 interviews with various Supreme Court Justices. The BLT's article is here, and the transcripts are available through the Scribes Journal of Legal Writing (an excellent resource, by the way).
Before hightailing it over to the Scribes site to download and read the transcripts until my nerdy little heart is content, a couple of highlights from the BLT article: short briefs are better than long, avoid legalese (and the improper use of "which"), and cite the record and cases honestly. Justices Thomas and Alito think the summary of argument is important; Justice Scalia thinks its a waste of space.
Finally, be advised that Justice Kennedy does not like it when lawyers verb words.
Wednesday, May 4, 2011
Appeals in the digital age: Using [sic] when quoting a text message.
by Kirsten E. Small
This opinion by the Supreme Court of South Carolina caught my eye yesterday. The fact portion of the opinion involved the quotation of numerous text messages, which didn't phase me until I got to this one:
""Leav me tha f*k alone im nt gna txt u bak and I want nothng 2 do w u so jus get out mx [sic] life already."
My first thought was, "Why bother? The entire message is one long [sic]." But then I looked up the proper usage of [sic], and learned that "sic" is a word (not an abbreviation) derived from Latin that means "intentionally so written." So, the SC Supreme Court used [sic] not to point out the unconventional (to put it mildly) spelling of the text message, but rather to indicate that an actual error ("mx" instead of "my") was original to the text message, not an error in transcription by the court.
In other news, an amendment to SC Appellate Rule 219 became effective yesterday. The amended rule clarifies the procedure for seeking initial hearing en banc by the S.C. Court of Appeals.
This opinion by the Supreme Court of South Carolina caught my eye yesterday. The fact portion of the opinion involved the quotation of numerous text messages, which didn't phase me until I got to this one:
""Leav me tha f*k alone im nt gna txt u bak and I want nothng 2 do w u so jus get out mx [sic] life already."
My first thought was, "Why bother? The entire message is one long [sic]." But then I looked up the proper usage of [sic], and learned that "sic" is a word (not an abbreviation) derived from Latin that means "intentionally so written." So, the SC Supreme Court used [sic] not to point out the unconventional (to put it mildly) spelling of the text message, but rather to indicate that an actual error ("mx" instead of "my") was original to the text message, not an error in transcription by the court.
In other news, an amendment to SC Appellate Rule 219 became effective yesterday. The amended rule clarifies the procedure for seeking initial hearing en banc by the S.C. Court of Appeals.
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