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Posted 26 Jan 2015 in Tips and Tactics

Occasionally an attorney will propose that the parties stipulate to the meaning of a relevant statute.  Such stipulations have no legal force and will be disregarded by the court.  Numerous cases so hold across the United States:   “Parties to a dispute cannot stipulate to the law and assume that the court will follow blindly an incorrect interpretation of the law, especially in an unsettled and everchanging area.” Carlile v. South Routt School Dist. RE-3J, 739 F.2d 1496, 1500 (10th Cir. 1984)   “Parties...

Posted 18 Sep 2014 in Tips and Tactics
An appellant has the opportunity to make it easy for the appellate panel to locate the relevant documents in the record.  GavelIf you have the responsibility to create part of the record, select a page numbering system that makes sense so no pages have the same number.  Create a meaningful index to the record.  For example, if a document has an odd or misleading title, provide that title and, in brackets] a few accurate, neutral, descriptive words.  Identify the declarant or witness if that information is not in the title.  Provide copies of the index in the brief and in each volume of the record, marking which documents are in which volume. Cite to the record for every point.  Dominguez v. Financial Indemnity Co., 183 Cal.App.4th 388, 392 n.2 (2010) (“because FIC’s brief fails to provide a citation to the appellate record for these facts, we do not consider them”); AdvanceMe, Inc. v. Finley, 275 Ga. App. 415, 620 S.E.2d 655, 657 (2005) (“It is not the function of this court to cull the record on behalf of a party”).  It almost goes without saying that you should cite accurately to the page with the relevant material.  Scott v. Bank of America, 292 Ga. App. 34 , 663 SE 2d 386, 387 (2008) (“while the parties cite to the appellate record, many of the page numbers cited are incorrect”).  Cite to the record by page and line, if the lines are numbered, even if that specificity is not required.  Skinner v. State, 83 Nev. 380, 432 P.2d 675, 384 & n.4 (1967); Anderson v. Meyer Broadcasting Co., 630 N.W.2d 46, 50 (N.D. 2001).  Cite by page and paragraph or use terms like “start,” “middle,” and “end” if there are no line numbers.

Posted 11 Sep 2014 in Tips and Tactics
Format selected block quotes for easy reading. Many readers find the dense text of standard block quotes tiresome enough to read that they may skip over the blocks entirely. Istvan & Ricks, Top 10 Ways to Write a Bad Brief, N.J. Law. (2006).  Add extra leading between the lines to reduce that tendency. If there are paragraphs in the block quote, retain that formatting fountain peninstead of substituting a paragraph mark. Choose block quotes carefully and sparingly.  Judge Alex Kozinski remarked: “Whenever I see a block quote I figure the lawyer had to go to the bathroom and forgot to turn off the merge/store function on his computer.” Kozinski, The Wrong Stuff, B.Y.U.L. Rev. 325, 329 (1992). Given the danger that long block quotes may not be read, paraphrase the less critical material to shorten the block.  Write the lead in to the block to reveal its importance.  If the block is important because it states the three elements of this or the five tests for that—then add letters or numerals in brackets or otherwise format to assist the reader.  Although a textual repetition of the content immediately following the block is likely to offend the reader, the points can be worked into the text at a later opportunity.

Posted 26 Jun 2014 in Commentary
Judicial opinions enjoy no copyright, so some may contend that copying from judicial opinions without attribution may not be plagiarism. paperThey would be wrong. Copying another’s writing is plagiarism even if there is no copyright and even if some sentences are added or deleted. Moreover, even copying multiple citations from another’s work is plagiarism.  In re Burghoff, 374 B.R. 681, 685 (Bankr. N.D. Iowa 2007), following Frith v. State, 263 Ind. 100, 325 N.E.2d 186, 188 (1975). Plagiarism in brief writing is disfavored at best, and there are multiple examples of judicial displeasure.

Posted 10 Jun 2014 in Tips and Tactics
A primary brief author may work over a number of days on the brief, followed by review and alteration by other attorneys and the client.fountain pen  Sections of the brief may be emailed to others for comment.  It can be hard to remember which case and statutory cites have been checked thoroughly. Even aside from cites that may be added by others, an attorney may run across a case supporting point X while focused on point Y. If the attorney adds the case to the draft brief in progress and returns to point Y, there may be nothing to distinguish that citation from the cites that have been checked. Those who use Google Scholar and other imperfect sources of law need to track the cases located through that research to check them on Westlaw or Lexis because reconsideration may have caused alteration of the relevant paragraph.  Subsequent history may turn a good cite into a bad one. Annotations may reveal a good or bad construction of a statute not shown by Internet sources for the statutes.  Although the issue is especially acute with Google Scholar, the problem exists with every cite. One solution to this recurring problem is

Posted 03 Jun 2014 in Tips and Tactics
In Seven Sins of Appellate Brief Writing and Other Transgressions, 34 U.C.L.A.L. Rev. 431 (1986), fountain penNinth Circuit Judge Harry Pregerson identified seven deadly sins of appellate briefing:
  • Long boring briefs
  • Incoherent, unfocused, disorganized briefs
  • String cites and other poor use of authority
  • Briefs with abusive language
  • Briefs that ignore the standard of review or attempt to relitigate the facts
  • Briefs that ignore jurisdiction
  • The last minute emergency motion—usually filed at 4:00 p.m. on a Friday before a holiday

Posted 30 May 2014 in Commentary, Tips and Tactics
String cites are almost universally condemned.  paperJudges at all levels criticize string cites.  Minority and dissenting judges criticize majorities that use string cites, and vice versa but to a lesser extent.  Attorneys criticize the string cites in their opponents’ briefs.  Law reviews insult string cites routinely. What distinguishes a string cite from a list of cases that support the stated proposition?

Posted 22 May 2014 in Tips and Tactics
Almost all legal positions that matter to one side in a dispute have contrary law supporting a different legal position.8122523_ab151ea98b_z  I’ve got some cases on my side and you’ve got some cases on your side.  One of the serious mistakes I can make is to focus so greatly on the good cases that I fail to distinguish and destroy your cases that hurt my position.  In Coghlan v. Starkey, 852 F.2d 806 (5th Cir. 1988), the court awarded sanctions for frivolous appeal for that mistake.  “Here, the appellate brief indicts counsel as having recognized that no authority supports the claim. Not only was there scant discussion of adverse decisions cited by the magistrate, but only two cases were even named in the brief. This is poor appellate practice and an abuse of the appellate process.” Id. at 816 (footnote omitted). What are some ways to address the cases that hurt? 

Posted 15 May 2014 in Tips and Tactics
The Bankruptcy Appellate Panel of the Ninth Circuit has adopted some materials designed to assist attorneys and litigants involved in a bankruptcy appeal before the BAP.law books Although many of the excellent materials address the peculiarities of bankruptcy appeals, Appendix I has advice for all attorneys in any court. Do’s and Don’ts for an Effective Appeal DO: 1. Know what relief you want (and why). 2. Know your audience. BAP judges generally possess a level of expertise in bankruptcy matters superior to that of most district court judges and their law clerks. 3. Understand the role of the appellate court. While its dominant role is to assess whether the trial court reached the correct result,

Posted 13 May 2014 in Tips and Tactics
I wish I had learned some things earlier. That's especially true when it comes to my writing. So I thought I'd share five writing tips that I wish I had known earlier. The first tip concerns an edit at the sentence level. Other tips will address changes at the paragraph and word levels. Tip # 1: Place important and new information at a sentence's ending. This one is counterintuitive: a sentence's most valuable real estate is not where it starts but where it finishes. At the sentence's ending, a reader naturally stops -- it's sometimes called a "stress position." These natural pauses give a writer an opportunity: