In the last batch of SCV opinions, we got a special treat: another foray into the Lovecraftian depths of appellate jurisdiction, Rutter v. Oakwood Living Centers of Virginia, Inc.

I would have written something earlier, but I’ve had a busy few weeks–two arguments in Richmond, and the birth of our daughter, Catherine Roberts.

Obligatory baby picture after the jump.

Anywho, back to the madness. Here is how Chief Justice Kinser begins her summary of Rutter‘s holding:

In exercising jurisdiction to determine our own jurisdiction and thereby analyzing the merits of the issue presented on appeal, we conclude that Code Section 8.01-335(B) does not allow the prospective discontinuance or dismissal of an action.

Don’t stare at that sentence too long. You will go insane. Instead, let’s take this one a step at a time:

Rutter brought a wrongful death suit against four defendants: Oakwood, an assisted living facility; one of its contractors, Prism, and two of Prism’s officers, Dixon and Knowlton.

In 2000, Prism filed for bankruptcy. Dixon and Prism filed a notice of bankruptcy, alerting the circuit court that the suit against them was automatically stayed. Reasonable enough.

In response, the circuit court entered an order removing the case from its docket, and purporting to discontinue it if, after three years, there had been no further proceeding under Code Section 8.01-335(B).

In other words, it attempted to enter a self-executing order prospectively discontinuing a case for lack of activity.

Which, you know, sounds like one of those weird things a court shouldn’t be able to do. For ease of reference, we’ll call this ruling the “2000 Order.”

Continue Reading Rutter v. Oakwood Living Facilities: SCV Exercises Jurisdiction to Determine Lack of Jurisdiction, After Ruling on the Merits

I’m pretty sure that written discovery is the worst part of being a trial lawyer. I know for a fact that jurisdictional deadlines are the worst part of being an appellate lawyer.

But just in case you needed further convincing, the Fourth Circuit–as reasonable and user-friendly an appellate court as you will find–just dropped an unpublished opinion, Symbionics v. Ortlieb, dismissing an appeal because counsel filed a notice of appeal one day late. (HT: Peter Vieth at VLW.)

In Symbionics, the district court entered final judgment on December 4, 2009.

Symbionics’ lawyer tried to manually calculate the notice of appeal deadline using his “Windows” calendar (I assume that means Outlook?), but when he toggled to January, Windows took him to January 2009–not January 2010. As a result, Symbionics’ calculations were off, and it filed its notice a day late.

No worries, said the district court. It found excusable neglect under F.R.A.P. 4(a)(5)(A), and extended the notice of appeal deadline.

On appeal, the Fourth Circuit reversed. It found that the district court had abused its discretion, and that there was nothing excusable about Symbionics’ neglect–it was a run-of-the-mill oversight, not the sort of earth-shattering event that warrants extension of a mandatory and jurisdictional deadline. As such, the Fourth Circuit dismissed the appeal. In a footnote, it acknowledged the “potential hardship” of being denied an appeal, but assured the parties that Symbionics would have lost on the merits.

This case is a perfect example of why I haven’t had a decent night’s sleep since 2006.

What can we learn from Symbionics?

  1. Don’t procrastinate. It takes about as long to draft and file a notice of appeal as it does to calendar the deadline for filing a notice of appeal. Just get on file. Only bad things can happen if you wait until the last minute. Computers crash, the power goes out, Manchester United wins the Premier League.
  2. Use technology. Symbionics got tripped up by manually counting days on an electronic calendar. Outlook’s GoToDate feature will do that for you, automatically and correctly. Use the tools at your disposal.
  3. But don’t trust technology. Every once in a while, the bastards in Redmond will throw you a curveball which is why all right-thinking people use Macs. In Symbionics, the Fourth Circuit focused on the appellant’s total reliance on a computer program that it did not understand as a key element of its negligence. That’s bad. (Another diabolical trap that Gates has laid for the appellate bar: the way Word’s word count treats footnotes. See generally DeSilva v. DiLeonardi, 185 F.3d 815 (7th Cir. 1999).) As the great man said, “Trust, but verify.”

Ultimately, “mandatory and jurisdictional” means “mandatory and jurisdictional.” The Fourth Circuit is as user-friendly a court as I’ve ever seen. Even so, a lawyer misses its deadlines at his peril.

Chief Justice Roberts has a well-deserved reputation as a stellar oral advocate. In Bryan Garner’s words, the oral arguments he gave during his days at Hogan were “generally breathakingly good.”

Or as Miguel Estrada once put it, the “G” in John G. Roberts stands for “God.”

In 2006 and 2007, Bryan Garner interviewed seven members of the current court, including the Chief, about a variety of topics. Video of the interviews has long been available on LawProse, but who has time to watch?

Fortunately, transcripts of the interviews appear in The Scribes Journal of Legal Writing. They are well worth a read.

As you might expect, Garner’s interview with JGR touched on Roberts’ legendary skills as an advocate.

They also discussed his preparation for oral argument. Roberts said that, “as a lawyer [before SCOTUS], you’ve got to be prepared to answer a thousand questions. You might get eighty, you might get a hundred, but you’ve got to be prepared to answer more than a thousand.”

How do you prepare to handle more than a thousand possible questions?  A big part of that task involves figuring out how the different parts of your argument fit together, and working out how to move from one point to the next.

Here’s how Chief Justice Roberts perfected those skills:

I don’t care how complicated your case is; it usually reduces to at most four or five major points: here’s the key precedent, here’s the key language, here’s the key regulation, here are the key consequences. You have four or five points. It’s called A, B, C, D, and E. And when I’m practicing giving the argument, I’ll go through it, and then I’ll just shuffe those cards–A, B, C, D, and E–without knowing what they are. Then I’ll start again and I’ll look down. Okay, my first point is going to be C; and then from point C, I’m going to move to point E. and then from point E to point A. You develop practice on those transitions . . . because that’s how it always works, at any appellate court. You can’t guarantee the first question you’re going to get is going to be on your first point. It may be on your third point. Amd everyone has seen this, and it’s very awkward for somebody to say after they answer that third point, “And now I’d like to go back to the point I was making.” Well, okay, it’s not very smooth and you kind of lose a little bit of traction.

Roberts explains that his method teaches the advocate to make the necessary transitions, and to keep the presentation fluid. This, he says, “conveys a greater degree of confidence” in the presentation.

The Chief Justice shared another tip: Before an argument, he would find a layperson and try to explain, in five minutes, what the case was about and why he should win. If he couldn’t do that, then he wasn’t ready to argue.

Controlling anxiety is one of the hardest parts of oral argument.

Everybody gets nervous. You never really outgrow it.

I’ve seen even very experienced, very good lawyers–lawyers much better than I’ll ever be–undone by their own nervous energy at oral argument, spitting legal propositions in the panel’s general direction at twice the speed of human comprehension.

In the past, we’ve shared a few ideas about how to deal with stress: know the record, know the key cases, bring hard candy, and watch other oral arguments.

I found a few more keepers in Alan Dworksy’s The Little Book on Oral Argument. (Yes, I know that it’s a book for law students in moot court. I don’t care. Good advice is good advice.)

Here are three tips worth borrowing from Dworksy:

1. Most Judges Want You to Do Well

First, most judges want you to do well. After all, you are there to help them to arrive at the correct result. If you do well, it makes their job easier.

Also, judges are (by and large) regular folks with normal human emotions. Most sane people don’t want to watch a bad performer crash and burn. It’s uncomfortable at best. The few exceptions to this rule show up in the early rounds of American Idol, and they are cherry-picked outliers. Most failures are painful to watch. Thus, even if normal human decency fails them, your panel will be rooting for you just so they don’t have to count off the awkward seconds after you’ve lost your place for the third time.

2. Breathe Properly

Second, remember to breathe. As Dworsky explains:

Many relaxation techniques are based on beathing, which occupies a unique position among bodily functions. It’s the only vital unconscious function everyone can consciously control. When you consciously breathe properly [deeply, from your abdomen] you accomplish two things. First, you interrupt the stress response by stopping the chattering of you conscious mind and giving it something productive to do. Second, you start a chain reaction in your unconscious that calms other involutnary functions–such as your heart rate, adrenaline level, and gastrointestinal functions–that you ordinarily can’t control.

3. Visualize Success

Dworsky’s third tip is borrowed from high-level athletes, who visualize themselves executing their technique perfectly. You can do the same thing. Keeping in mind that most nervousness doesn’t show, picture yourself engaging the judges and answering their questions. Then cut the sound off, and just watch yourself at the podium, poised and confident.

The Fourth Circuit is slated to hear two appeals in cases testing the constitutionality of the new federal health care law on Tuesday. (HT: VLWblog.)

Acting Solicitor General Neal Katyal will defend the law against separate challenges brought by the Commonwealth of Virginia, Commonwealth v. Sebelius, No. 11-1057, and Liberty University, Liberty University v. Geithner, No. 10-2347.

Duncan Getchell will argue for the Commonwealth, and Mathew Staver, Dean of Liberty’s law school, will argue for the University.

That’s an impressive lineup, and well-worth checking out if you’re in Richmond. The first two names ought to be familiar enough to readers of this blog, and Dean Staver’s bio is impressive. He’s been involved in the evangelical law and policy movement, and he has two SCOTUS arguments under his belt. No slouch, this guy. Also, he reads Classical Hebrew, Aramaic, Syriac, and Koine Greek. So he’s got that going for him.

Can’t make it to Richmond? Not to worry: Starting with the May term, the Fourth Circuit will post the audio from oral arguments on its website two days after the argument, and sooner for high-profile cases.

I’d say these qualify.

The two cases are the first of more than 20 suits challenging the law to be argued before an appellate court.

The issues in Sebelius are whether Virginia has standing to challenge the Affordable Care Act, and whether that Act was a valid exercise of the commerce or taxing power.

Liberty takes more of a shotgun approach, questioning whether the Act exceeds Congress’ power under the Commerce Clause; or violates the FIrst, Fifth, or Tenth Amendment, or the Religious Freedom Restoration Act.

The arguments will be held in the Fourth Circuit’s largest courtroom, and the court will set up a video and audio feed to an overflow room. They’re likely to need all of the space they can get. To date, more than three dozen amicus briefs have been filed in Sebelius alone. (I will leave the briefs to those of you with a PACER account and a raging case of OCD.)

The Fourth Circuit is notoriously tight-lipped about the composition of its panels, so we won’t find out which judges will hear the appeals until Tuesday.

Apologies for the light blogging recently. I’ve been tied up with other pursuits–which, as its turns out, may inure to your benefit:

Last week, I spent some of my (increasingly limited) nonbillable time on a webinar for Virginia CLE called “Blogging 101: Legal, Practical, Ethical, and Evidentiary Issues for Lawyers and Clients.”

I learned that the webinar is a medium that disfavors my limited unique talents. Direct engagement with the audience is minimal; you spend most of the time talking at a phone, with no opportunity to read body language or facial expressions, and limited opportunity to field questions. Worse, no one on the phone can appreciate my bowtie–is it ironic, or am I just that preppy? Also, it didn’t help that the other presenters were very good. If you would like hear me stumble and stutter through 30 minutes trying to explain what a blog is, the CLE will be rebroadcast on May 5.

(Potential drinking game: do a shot every time I lose track of the slides.)

More to the point, I devoted a good chunk of last week to working on a brief for the ABA Appellate Practice Institute in Chicago next month. I am reliably informed that this is the nation’s premier appellate CLE; I understand that it incorporates lectures, demonstrations, a moot court, and a critique of each participant’s brief. I was working on the latter project.

One of the issues to be addressed in the brief is the so-called “finality trap” recognized by the majority of federal circuits: if the recipient of an adverse interlocutory ruling voluntary dismisses the remainder of her claims without prejudice, she (probably) cannot then appeal. The appellate court (probably) will lack jurisdiction, because there is no final order. Further, courts generally frown on attempts to manufacture appellate jurisdiction and end-run the trial court’s gatekeeping function in connection with interlocutory appeals.

An example makes this easier to understand (and much scarier): Say you represent a plaintiff with five claims. The district court enters summary judgment in favor of the defendant on four of those claims, effectively gutting your case. In order to appeal, you voluntarily dismiss the remaining claim, which kept you tethered to the trial court.

And now you’re out of court.

Oops.

The worst part is, it’s tough to predict the rule’s application even if you know what circuit you’re in; inter- and intra-circuit splits, coupled with a myriad of ad-hoc exceptions designed to temper the harsh effect of the rule, render it very plastic. But–at least according to the Seventh Circuit–the trend appears to be in the direction of strict application.

(Potential drinking game: do a shot every time you find inconsistent answers to exactly the same finality-trap question in the same circuit.)

Here’s the best advice* I can give: if at all possible, stick with certification under Rule 54(b) (partial final judgment) or 28 U.S.C. 1292 (interlocutory appeal), and steer clear of trying to force jurisdiction on the appellate court.

Until digging into this rule for the ABA exercise, I did not appreciate its permutations and exceptions. Fascinating stuff. Barry Pickens has done a terrific series of articles on the issue; I differ with him on some of the details, but I highly recommend checking his work if you ever confront this situation. Also, the Mayer Brown treatise on Federal Appellate Practice and Moore’s Federal Practice offer some helpful treatment of the issue.

 

*This is not legal advice. It is an abstract discussion of a general topic. I am not your lawyer. I don’t give legal advice out for free, or to strangers, or on a blog. If I did, you would be crazy to take it.

Just came across this delightful explanation of how an appellate court treats the facts when reviewing a grant of summary judgment:

We limn the facts in the light most hospitable to the summary judgment loser, consistent with the record support. In doing so, we ignore “conclusory allegations, improbable inferences, and unsupported speculation.”

Roche v. John Hancock Mutual Life Insurance Company, 81 F.3d 249, 251 (1st Cir. 1996) (Selya, J.) (citations omitted).*

Any guesses how the “summary judgment loser” fared on appeal? Correct: “Descrying no error,” the First Circuit affirmed.

Now, I could probably do without the Middle English–surely, Roche marks the last time in the 20th Century that a native ‘Murkin speaker used the verb “to limn”–but this is a vivid, readable, and arrestingly unusual description of the appellate court’s job. It sure beats the dreck that I’ve been churning out: Because this case was decided on summary judgment, we recite the facts in the light most favorable to blah, blah, blah.

I gather that Judge Selya prides himself on this kind of writing, along with a vocabulary embiggened by perfectly cromulent words.

 

*Alert readers will note that Judge Selya’s actual description of the summary judgment standard comes a few pages later in the opinion; it’s a little dense for my tastes.

Justice Mims stole the show at this year’s VTLA convention, sharing his reflections on his first year on SCOVA a year to the day after he was sworn in.

For some reason, most speakers at the convention chose to focus on the unpleasant, pre-appeal formalities–all that stuff that happens in the trial court with the evidence, the witnesses, the shouting, and the jurors. Not Justice Mims. The Great Concurrer provided some welcome perspective, along with a needed dose of nerdiana, including:

  • Thoughts on the Court’s proper role; with regard to statutory interpretation, this includes a notably robust conception of legislative intent;
  • Practice pointers for appellate advocates; and
  • Musing on the Court’s place in history.

Changes are Afoot

Justice Mims started his talk by noting that SCOVA is in the midst of a historic period of change in its makeup, if not its jurisprudence. In the past few months, the Court lost its first African-American Chief Justice, and welcomed its first female Chief Justice. A bit of context here: of the Court’s 100 members (Mims is number 100), the first 90 were white males.

The Court will add two members this year, to fill the seats vacated by Justice Hassell and Justice Koontz. By the time those seats are filled, of the the Court’s seven members, only Chief Justice Kinser and Justice Lemons will have served for any appreciable length of time.

The Proper Role of the Court

After setting the table with that bit of history, Justice Mims discussed the proper role of the Court. He identified three functions: error correction, statutory interpretation, and law development.

Justice Mims indicated that error correction comprises the bulk of the Court’s work; if I heard him correctly, he characterized it as conceptually “boring.”

But he had some interesting things to say about the Court’s second function, statutory interpretation.

Justice Mims is the only former legislator on the Court. In his opinion, the goal of statutory interpretation is to effect legislative intent. Virginia courts are somewhat handicapped in this exercise, because Virginia does not maintain formal legislative history.

When the language of a statute and the intent behind it conflict, the Court should interpret the statute in a way that avoids an absurd result; in effect, it must give the legislature the benefit of the doubt.

Justice Mims identified two recent cases in which the Court had done just that: Evans v. Evans, and Kozmina v. Commonwealth.

This strikes me as a relatively big deal, given the Court’s adherence in recent years to the plain meaning rule. Evans, in particular, seems significant. Justice Lemons wrote the majority opinion. Then-Justice Kinser dissented, and Justice Mims concurred with a short opinion reminding the Court not to miss the forest for the trees. This may be one area in which he has immediately shifted the course of the Court’s jurisprudence.

The Court’s third role is law development. I’m sure that Justice Mims said something interesting about this, but I didn’t take any notes.

Continue Reading Musings of a Rookie Justice: Justice Mims Reflects on His First Year on the Supreme Court of Virginia

The VTLA’s annual convention starts this afternoon at the Homestead.

In a remarkable error of judgment, they’ve invited me to speak on a panel about statements of facts in appellate briefs.

It should be a fun talk. Roger Creager is moderating the panel, and David Hargett and Steve Garver are the real other panelists. I’m excited to hear their thoughts.

For a number of reasons, the fact section is the most important part of the brief. (I could tell you what those reasons are, but then you wouldn’t come.) Even so, you rarely see a good CLE treatment of the subject.

The panel starts at 12:15 on Friday at the appellate section luncheon. If you’re a member of the section, please join us. If you’re not, drop by and say hello. Don’t worry about the “section members only” rule. You’re welcome to attend.

And for those of you not so lucky as to be at the Homestead this weekend, I hope to post some thoughts from the panel later this week.

A few weeks back, we reviewed Ross Guberman’s terrific new book, Point Made: How to Write Like the Nation’s Top Advocates.

Ross graciously agreed to do an email Q&A. If I’d moved faster, we could have scooped SCOTUSblog. But I was paralyzed with self-doubt; nothing will make you question your own writing faster than trading emails with a legal writing guru.

Read on to see why. My questions are in bold, with Ross’ responses below.

Seriously: how many briefs did you have to read to write that book?

Let’s just say that my next book should be called How NOT to Write a Book. Or at least how not to write a book efficiently. I probably reviewed about 1,000 motions and briefs signed by well over 100 lawyers.

My mistake was in waiting too long to settle on a list of advocates and to limit the universe of filings. Only 50 lawyers and a couple of hundred filings made it into the final manuscript, though I enjoyed reading the others as well.

Can good legal writing be taught, or is it a talent?

Literary novels and poetry require talent. But persuasive writing can be taught, as long as the writer has a working command over sentence structure and a good ear for language.

Some people resist the idea that a well-written brief is a series of concrete techniques, and not a magical incarnation of God-given talent. Maybe “talent” seems sexier than “technique.” Maybe lawyers renowned for their writing want other lawyers to envy their supposed gifts. But the truth is, you can go line-by-line, heading-by-heading, example-by-example and explain what’s happening in even the most famous briefs by the most famous advocates.

Of course, just because something can be taught doesn’t mean that it’s easy. Golf and oil painting can be taught, too.

Point Made lists 50 writing tips. What are your 5 highest impact tips–what can a writer apply from your book right now to see the greatest immediate improvement?

How about these five:

  1. The Short List: Number your path to victory (Technique #2, for introductions)
  2. Back to Life: Center technical matter on people or entities (Technique #9, for fact statements)
  3. Russian Doll: Nest your headings and subheadings (Technique #12, for argument structure)
  4. The Starting Gate: The one-syllable opener (Technique #36, for style)
  5. Take Me by the Hand: Logical connectors (Technique #45, for flow)

That said, I don’t think you can learn writing techniques without seeing a lot of examples in many different contexts.

In addition to being an author, you’re also a legal writing consultant. Are there exercises that you recommend to lawyers who are looking to improve their writing? Hunter Thompson retyped Hemingway and Fitzgerald to learn rhythm and see what it felt like to write that well. Should lawyers be tapping out the Alaska v. EPA brief on their iPads?

I like your idea, though I bet that brief is longer than The Old Man and the Sea!

Let me make two other suggestions:

First, go to your grammar options and select “readability statistics.” Run a grammar check on a document you’ve written, and you’ll get a Flesch Reading Ease score between 0 and 100. Resolve to raise your score by ten points by (1) shortening some of your sentences, (2) breaking long paragraphs into two, (3) replacing long words with short ones, and (4) changing passive constructions to active ones. If you score 40 or higher, you’re doing better than most lawyers.

Second, spend five minutes a day analyzing a passage of your choice in the Wall Street Journal or The New Yorker or The Economist. Dig into the transitions, the word choice, the parallelism, and the variety in sentence structure. Then use those same techniques to write about something relevant to your own practice.

One of the things that makes Point Made such an enjoyable read is that it focuses on what great lawyers do right, not what mediocre lawyers do wrong. Let’s flip that around. What are the five worst mistakes that you see bad writers make?

So you want me to go off-message, as we say in Washington?

Let me answer your question this way. Here are five mistakes that otherwise good writers make when drafting motions and briefs:

  1. Starting too many sentences with “However,” “Moreover,” “Additionally,” “Therefore,” and “Accordingly.”
  2. Starting a new paragraph with “Moreover” or “Additionally” as an excuse to avoid linking the new point to the one before.
  3. Starting too many case discussions by reciting the facts of the case cited (“In Bush v. Gore, George W. Bush was born in Texas.”) rather than by linking the case cited with the current dispute.
  4. Distinguishing cases one at a time, in repetitive and excruciating detail, rather than explaining why the entire line of cases doesn’t apply (See Technique #24, One Fell Swoop)
  5. Overusing such words as “egregious,” “specious” “bald,” and “conclusory.” (Could the ABA’s Litigation Section just stipulate that your opponent’s assertions are always “conclusory” and their allegations always “bald,” so litigators wouldn’t have to keep saying these things over and over?) And if I can squeeze in one more thing, overusing the self-evident phrase “as a matter of law.”

How do good appellate briefs differ from good trial briefs?

The main difference is in overall quality. From a pure writing standpoint, few trial motions and briefs have the polished, finished feel and tight structure that you’ll find in many top appellate advocates’ briefs.

Exceptions do arise, especially when someone known primarily for appellate work writes a trial motion. I’m thinking, for example, of some of the trial excerpts in my book from former Solicitor General Seth Waxman or from Sidley’s Virginia Seitz.

Another observation: It’s no doubt easier to have a “theme” in a Fourth Amendment Supreme Court case than in a discovery motion in a commercial dispute. So I took note when someone like David Boies would start a routine filing with a line like “Defendants’ motion to compel is an excellent example of the axiom that ‘no good deed goes unpunished.’” That line isn’t going to win a Pulitzer Prize, but it gives shape to the entire argument in ways you rarely see at the trial level.

Of the 50 top advocates in Point Made, who’s the best?

My favorite brief is by my honorary 51st advocate, Thurgood Marshall, the only nonliving lawyer I include. Every law student should be exposed to the brief that he and his team filed in Brown v. Board of Education, for its conciseness and not just for its power and import. Incidentally, I recently came across the original complaint, which some of your readers may enjoy seeing.

But if forced to choose the “best” writer in the book, I’d say the Chief Justice. He’s a polarizing figure these days, but as a legal writer he has few peers.

On that uplifting note, I will thank you, Jay, for giving me this opportunity to discuss advocacy and Point Made.