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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 05 Sep 2014 in Tips and Tactics
One successful approach to the preparation of opening briefs is to assume the court knows nothing of the subject and is uncomfortable making a decision that no judge has made before.  Each step in the argument must then be accompanied by citation to relevant precedent reflecting the wisdom of the that step and, overall, of the decision you seek.  The key is to 8122523_ab151ea98b_zidentify the right starting place and the steps required to travel from the starting point to the desired end, avoiding the tendency to slide over or combine them. Briefs using this model should provide all forms of authority needed to convince the judge to take the next step.  Possible evidentiary issues need to be resolved; substantive questions need to be answered or shown to be inapplicable.  As each step is explained and answered, the next step can be introduced and its issues and questions answered.  At the end, the table of contents alone can walk the reader through the points to the desired ruling. Once the steps are identified, the writer may elect to address evidentiary issues as a group, at the beginning or end of the brief.  Alternatively, a writer may prefer to brief all issues presented by one step before turning to the next step.  No matter which technique is adopted, work on later steps will often turn up cases and points that can strengthen the earlier steps.  As work progresses, a single step may be perceived as comprising several steps, requiring additional reworking.

Posted 05 Aug 2014 in Tips and Tactics
Substantial information on legal ethics is available on the Internet, including:
  • http://www.law.georgetown.edu/library/research/guides/legal_ethics.cfm, a broad-based Legal Ethics Research Guide offered by Georgetown Law Library with links to substantial material. Many of the links are to Lexis and Westlaw, but there is an extensive list of available resources, and some Internet links.legal ethics
  • http://legalethics.com/, which focuses on a variety of specific topics, including ethical walls, blogs, ethical issues associated with use of technology by legal professionals, use of the cloud, and a state by state directory.
  • http://www.freivogelonconflicts.com/, described as “A Guide to Conflicts of Interest for Lawyers,” which gathers material into multiple topics such as Co-Counsel/Common Interest, Corporate Families, Enjoining Conflicts, Investing in Clients/Stock for Fees, Lawyers Representing Lawyers.

Posted 21 Jul 2014 in Commentary, Tips and Tactics
Trial and appellate counsel may differ for a variety of reasons, not all of which reflect poorly on one or the other.Gavel  On occasion, however, trial counsel may have acted so unprofessionally or ignorantly as to be the target of strong remarks by the appellate court.  In this case, the appellate court should and often does inform readers of its decision that the same attorney did not appear in both courts.

Posted 08 Jul 2014 in Commentary
Litigation offers attorneys many opportunities to choose how they will behave and what they will say. youre it The best course is to take the high road at every opportunity.  Rudeness, profanity, throwing things, hitting people, we all know how the ugliness starts and how far it can progress.  A small meanness may be reciprocated, then followed by an escalation and tit for tat.  Once it starts, unprofessional behavior may be very difficult to stop or to confine to one specific case. All attorneys are held to a high standard by the law and the rules of professionalism and civility.

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 20 Jun 2014 in Tips and Tactics
A variety of federal and state laws require that notice of an appeal be given or that a copy of the appellate brief be served on the U.S. Attorney General or the applicable state attorney general.OAG  Failure to comply may delay the appeal or result in other sanctions.  For example, California provisions declare: “No judgment or relief, temporary or permanent, shall be granted or opinion issued until proof of service of the brief or petition on the Attorney General and district attorney is filed with the court.”  Cal. Bus. and Prof. Code §§17209, 17536.5; accord, id. §16750.2. Federal law also requires notice and grants a right of intervention to the United States Attorney General or the California Attorney General, respectively, when the constitutionality of federal or state statutes affecting the public interest is challenged in federal litigation to which the federal or state government or their agencies or employees are not already parties.

Posted 13 Jun 2014 in Tips and Tactics
Judges are substantially governed by rules—local rules, rules of evidence, state or federal rules for trial courts or appellate courts.FedPrac  Rules do not normally determine the merits, although rules provide the structure or framework within which the merits can be considered fairly to both sides.  Not surprisingly, judges typically know the applicable rules quite well.  The judge may have drafted the local rule specifically to address an issue arising with some frequency in that judge’s courtroom.  Or the judge may have been reversed for failure to enforce the rule. Judges expect attorneys to know the rules.  Attorneys who practice in multiple courts may need to learn and use many sets of rules.  Just do it.  The alternative is to be sorry.  Courts are not gentle with attorneys who fail to read and follow the rules, as reflected in the following, drawn from a wide variety of available examples.  In some instances, the court decision effectively sets up a malpractice action against the careless attorney.

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