Posted 25 Oct 2013 in Roundup

Richard Wolf of USA Today covers the Supreme Court's use of "wild hypotheticals." As Kevin Russell explains: "They are not so much trying to get an answer from you as they are trying to demonstrate a flaw," says Kevin Russell, a frequent Supreme Court litigant. "Sometimes they're just picking on the poor advocate … or sending signals to other justices on the bench."  ...

Posted 25 Oct 2013 in Roundup

The Federal Circuit recently said no, in a case highlighted today at Julie Tappendorf's must-read blog Municipal Minute. In the case, the District of Columbia and the City of Houston attempted to trademark these two marks: The court ruled that Section 2(b) of the Lanham Act ( 15 U.S.C. 1052(b)) prohibits the local governments from registering the marks. It provides: No trademark by which the goods of the applicant may be distinguished from the goods of others shall be refused registration on the...

Posted 23 Oct 2013 in Tips and Tactics
Consider whether you are really done.  Have you answered the question(s) that were asked?  All the questions?  Are all the factual and procedural statements supported by citations to the exhibits?  Are there any omitted evidentiary points that may benefit your client as to burden of proof or presumptions in favor of your client or against your adversary?NYcourt Then follow these steps in the order that makes sense based on the nature of the brief and your work: One time, proofread just the headings or captions.  Cut and paste the headings into a separate document.  Read them apart from the brief.  Do they make sense? Are the captions parallel in structure and tense so that they flow pleasingly? Should you add subheadings to assist the reader or make other adjustments? Is there a step skipped over in the reasoning?

Posted 22 Oct 2013 in Roundup

The State and Local Legal Center hosted an excellent Supreme Court Preview Webinar this afternoon. The panelists -- Tom Hungar, Kannon Shanmugam, and David Savage -- discussed the following cases: Town of Greece v. Galloway -- Is the Town's legislative prayer practice consistent with the Establishment Clause? EPA v. EME Homer City Generation -- Did the EPA properly enact rules addressing State air pollution under Clean Air Act's "good neighbor" provision? McCullen v. Coakley -- Does a Massachusetts law forbidding speakers from entering or remaining on a...

Posted 21 Oct 2013 in Monday Morning Review

Here's how local governments fared in the federal courts of appeals during the past week. Second Circuit Dorsett v. County of Nassau, No. 13-641 (Oct. 18, 2013) (affirming dismissal of First Amendment retaliation claim against County because plaintiff lacked standing to challenge County's delay in acting on settlement agreement) Fifth Circuit Bradberry v. Jefferson County, No. 12-41040 (Oct. 17, 2013) (in challenge under Uniformed Services Employment and Reemployment Rights Act, finding that collateral estoppel did not bar the County from re-litigating facts determined in...

Posted 18 Oct 2013 in Case Notes
The first significant case affecting local governments in this new Supreme Court term  -- Madigan v. Levin -- ended poorly. The Court resolved the case with a DIG -- the Court dismissed it as improvidently granted. Supreme Court3 What went wrong? And what can we learn from it about appellate jurisdiction? An Important Question The case had all the hallmarks of a classic Supreme Court case. The question presented was important. It asked whether when a state or local government employee alleges that his employer has discriminated against him because of his age, the Age Discrimination in Employment Act ("ADEA") provides his exclusive remedy, or whether he may also bring a claim under 42 U.S.C. 1983 because the discrimination violates the Constitution's Equal-Protection Clause. The question had divided the lower courts. The Seventh Circuit acknowledged that its holding -- that the ADEA does not prevent the employee from bringing a Section 1983 claim -- created a deep circuit split. And it had far-reaching implications. It could literally impact every state and local government. What Went Wrong? So why would the Court, after granting cert. and hearing oral argument, suddenly change its mind and toss the case?

Posted 14 Oct 2013 in Roundup

What Kind of Appellate Lawyer Was Justice Roberts? The American Lawyer has an excellent article with that title. Here's Roberts's approach to oral arguments: And then there were the infamous index cards. As he contemplated a case, Roberts  would write down all the possible questions he thought justices might fire at  him—dozens, if not hundreds. He'd organize them into four or five topics: A, B,  C, D, and maybe E. Then, he would shuffle them and fashion answers that would  make...

Posted 14 Oct 2013 in Monday Morning Review

Here's how local governments fared in the federal courts of appeals during the past week. First Circuit McCardle v. Town of Dracut, No. 13-1044 (Oct. 9, 2013) (affirming summary judgment against teacher who had brought claims under the Family and Medical Leave Act). Seventh Circuit Jiminez v. City of Chicago, No. 12-2779 (Oct. 7, 2013) (affirming district court's denial of City's motion for a new trial and for judgment as matter of law based on alleged july-selection and evidentiary errors, in case where jury...

Posted 10 Oct 2013 in Tips and Tactics
In the “olden days,” as recently as the 1970s, briefs had to be written by hand or dictated, then typed on a typewriter.  An omission or error often meant having to retype the entire page.  The computer can be used simply as a fancy typewriter, but writing on the computer is fundamentally different in kind as well as in quality. The following comments assume the writer starts with the appellate record or an opening or opposition brief on appeal and is required to produce an opening, opposition or reply brief:

Posted 08 Oct 2013 in Monday Morning Review

Here's how local governments fared in the federal courts of appeals during the past week. First Circuit National Association of Tobacco Outlets v. City of Providence, No. 13-1053 (Sept. 30, 2013) (finding that City's tobacco-sales ordinance, designed to reduce youth tobacco use, does not violate First Amendment and is not preempted) Fifth Circuit Marceaux v. Lafayette City-Parish Consolidated Government, No. 13-30332 (Sept. 30, 2013) (finding that district court improperly granted protective order requiring officers suing police department to remove website) Eleventh Circuit Dawkins v. Fulton County Government, No. 12-11951 (Sept. 30,...