California Appellate Law Blog : California Appellate Lawyer & Attorney : Archer Norris Law Firm : Trial, Business, Torts : Sacramento, Bay Area, Los Angeles, California

     I am a big fan of SPOGG, mostly because I teach legal research and writing courses to paralegal students on Wednesday nights, but also because I’m a little bit of a grammar nerd. If you are the red-pen-wielding type, you will be a fan of SPOGG, too.

     Each quarter that I teach, I (vainly) try to impress upon my students the importance of understanding and following the rules of grammar in their legal writing by illustrating the consequences of not doing so. Generally, this lecture is received by a fair amount of whining, eye-rolling and an I-already-know-this exasperation. The complaining is then followed by papers plagued with sentence fragments and comma splices, a failure of subject-verb agreement, an obvious attempt to spell-check followed by an equally obvious failure to proofread, and a sometimes hilarious attempt to “over-write” that ends in the misuse of words the student cannot possibly have consulted a dictionary for definition before using.

 

     So, I decided I needed some back-up. If my students did not believe me, perhaps they would believe the learned justices in the appellate courts who had taken an attorney or two to task for sloppy brief writing. 

                       

 

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On Tuesday, Judge Kozinski of the Ninth Circuit Court of Appeals (do I really need to clarify that) sat down with David Lat, Founder of Above the Law for a conversation about collegiality on the court and some interesting tips on oral argument.

The podcast of their conversation is available here.  Or you can read a summary and excerpts here.

Following in the vein of yesterday's post with Scalia's comments on writing amicus briefs, Judge Kozinski offered an interesting tidbit of advice for oral argument -- Apparently judges don't appreciate having their own opinions cited back to them.  Who knew?

Lat expressed surprise when Kozinski offered a practice tip for oral argument: never point out that the opinion you are citing was written by a member of the panel.

While the moderator suggested that judges might “like being buttered up,” Kozinski offered that he could not think of a single federal judge who enjoys having his own opinions cited to him.

“It’s not just gauche,” the judge said. “It looks like you’re trying to trap me with my own opinion.”

The only thing worse, he quipped, would be “telling Willie Fletcher that ‘this is something your mom said.’” Ninth Circuit Judge William Fletcher, a Clinton appointee, is the son of Senior Judge Betty B. Fletcher, a member of the court since 1979.

Kudos to ATL for the heads up.

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This is a brief, and albeit random bit of information, but I was going through an old notebook looking for an outline and found a quote from Justice Scalia on amicus briefs that made me chuckle.  This is from a seminar he gave with Bryan Garner last summer in D.C. on their book Making Your Case:  The Art of Persuading Judges.

"Don't re-plow the ground that you expect the parties to plow unless you expect the parties to plow with a particularly dull plow." 

Now say that five times, quickly.

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The Ninth Circuit is now offering an RSS feed for all new opinions.  You don't get the digest version that you would by using Callaw or Westlaw or another similar service, but it gives you instant access to the decisions.

Another good source for tracking opinions from the 9th is the Ninth Circuit blog put out by several federal public defenders.  More of the focus is on criminal cases, but they write good, succinct analysis of the opinions.

Finally, the Ninth Circuit has also been posting links to files of oral arguments for some time.  Interesting when you've got the time or inclination.

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Last week a friend at work asked me to sit as a judge for a class he teaches in appellate advocacy at JFK Law School.  After a certain amount of polite grumbling (it required driving into SF in rush hour traffic) I agreed.  As I was subsequently sitting in that traffic, I began pondering what ultimate wisdom I could impart to these students about oral advocacy.  The entire drive over (which was long to say the least) I considered the pearls of wisdom Ric had imparted to me before my first oral argument, comments by Justice Scalia and Bryan Garner from their amazing seminar I attended last summer . . . By the time I reached the 9th Circuit's courthouse in SF, I was feeling very blessed to have such amazing mentors in my own career.

By the time I left, I had to chuckle.  I walked into the 9th Circuit that evening thinking I was doing a favor for a friend and a service for some law students.  After I got over the initial uncomfortableness with donning an actual robe and sitting at the bench (it felt somehow sacrilegious . . . like dressing as a priest while attending the church Halloween party) I realized that watching a serious of students argue from the judge's perspective was probably one of the most valuable learning experiences I've ever had in oral advocacy.  No amount of seminars, CLE classes, or even actual arguments, can truly give you a chance to view an argument from that perspective. 

The students did a great job.  But, listening to how they formed their arguments and the syllogisms they used was so important.  It was easy, at times, to lose track of where they were going with their reasoning when it was not extremely clear, succinct, and laid out at the beginning of their arguments.  Using indicators to tell us that they were now moving to a different area of their arguments was extremely helpful.  And most interesting was my almost visceral reaction when one student claimed he was citing the statute and ended up quoting a portion of the legislative history.  It was not intentional -- and he was nervous -- but the misquote jumped out at me and made it very hard for me to follow the remainder of his argument.  Moreover, I found myself becoming very suspicious of his other arguments and wanting to turn to the record after each statement he made in order to check its veracity.

Not that any of these are new tips on oral argument, but I don't know that anything can compare to actually experiencing how helpful and important these things are to the justices sitting in front of you.

Long story short:  If you get an opportunity to participate in such an exercise, I highly recommend it.  It is a great public service, and you may learn more than you anticipate.

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CC Holland, special to Law.com, wrote an interesting feature today entitled, "Where Are All the Female Bloggers."  I was interviewed for the article, and have to admit, I hadn't recognized that there was an apparent lack of female bloggers until Ms. Holland asked me about it.  Nonetheless, the article contains interesting, if not alarming observations.  Personally, I've had a blast participating in the "blogosphere" and have been lucky enough to avoid some of the downsides discussed in the article.  Food for thought.

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Greg May, over at the California Blog of Appeal, is starting a new series on the reasons why attorneys, and more importantly their clients, are sometimes reluctant to hire appellate counsel.  Sure to spark an interesting conversation . . . check it out here.

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Congratulations to Ric Blumhardt of Archer Norris who is now officially an appellate specialist, certified by the California State Bar. 

Ric has been my mentor and teacher for years.  Its a highly deserved accreditation and we are all very proud and excited for him as he leads the growth and development of Archer Norris' appellate practice.

Some of his more notable appellate victories include Urhausen v. Longs Drug Stores California, Inc., 155 Cal.App.4th 254, Safeco Insurance Co. of America v. Superior Court, 71 Cal.App.4th 782, and Lambert v. Carneghi, 158 Cal.App.4th 1120.

Congrats to Ric!

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Interesting new spat of lawsuits over the labeling of organic products.  According to an article in the National Law Journal yesterday, the California Attorney General filed five suits yesterday; including one against Whole Foods for including allegedly cancer-causing ingredients in purportedly  organic body products. 

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CBS has transcript and a video of Justice Scalia's interview on 60 minutes here.

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The Recorder ran an article today about Chief Justice Ronald George's plea that the state not cut the Judiciary's budget by nearly $246 million.

The article covers the Chief Justice's annual presentation before the Legislature.  For those of you without a subscription to CalLaw, here are some of the more interesting points:

"The legislation you enact into law may not be subject to judicial enforcement if that occurs," George said in his annual State of the Judiciary address to the Legislature. "I believe we all agree that a functioning court system is not a luxury - it is an essential component of state government. There are severe limits to how much we can reduce the services that we are required to provide."

The Chief Justice also requested 50 new judges, which the Legislator has tried to put off until 2009:

George also lobbied lawmakers to authorize a final set of 50 new judgeships, even though legislative leaders have already said there won't be enough money to fund them until 2009 at the earliest. And, as he had before, he asked the Legislature to boost pensions for judges appointed after 1994, an improvement, he said, that would attract more candidates "from diverse backgrounds to the bench."

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I couldn't have said it better. 

Scott Greenfield at Simple Justice explains the evolution of trial lawyers versus appellate lawyers.

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 . . . and I was still writing my opening brief.

From the day we enter law school we hear the mantra "simplify simplify simplify".   In honor of "simplicity" this holiday season, Howard Posner, an appellate attorney in Los Angeles, wrote a great article for California Lawyer Magazine about avoiding getting bogged down in words.

Posner writes about a holiday evening as he sits down to read "Harry Potter and the Demurrer of Doom" when he is visited by the ghost of his still practicing law partner who is dragging the chains of his verbosity . . .

"Dreadful apparition, why do you trouble me?"  I started to exclaim, but the words died in my throat because, on second thought, they sounded lame."

I had a good chuckle (Would that be Ho!Ho!Ho!?) and a solid reminder to Keep It Simple!  Read the full story here and many holiday wishes to Mr. Posner.

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I am used to blank stares when -- in response to the typical question of “What kind of law do you practice?” -- I tell people that I am an appellate lawyer.

There are no “appellate lawyers” on Boston Legal or Law and Order. Its been awhile since I’ve seen an episode of Ally McBeal, but I don’t recall any there either. Its disconcerting, however, when I get that same stare from my colleagues.

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