According to a piece on the WSJ’s opinion page this morning, Bond v. United States may be the most important SCOTUS opinion of the year. David Rivkin and Lee Casey read Bond‘s unanimous reaffirmation of dual sovereignty as an existential threat to the Patient Protection and Affordable Care Act (or “ObamaCare,” depending on your political perspective).

We have a rare treat for you today: one of Bond’s lawyers weighs in with some thoughts about the case.

Eric Reed (pictured) is a partner with Fox Rothschild in Philadelphia, where he works on litigation, white-collar compliance and defense, and securities industry matters. As you’ll read, he worked on Bond at the District- and Circuit-court level. And when it came time to appeal to SCOTUS, the Fox Rothschild team associated the world’s best appellate lawyer, just for good measure:

In Bond v. United States,       U.S.       (June 14, 2011), the Supreme Court unanimously ruled that an individual criminal defendant has standing to challenge the validity of the charged statute under the Tenth Amendment. I had the privilege of aiding the briefing of the constitutional challenges for the defense in the District Court and before the Third Circuit Court of Appeals, and I observed the stellar work of former Solicitor General Paul Clement and his team before the Supreme Court.

The government accused Ms. Bond of placing chemicals on the door, mailbox, and car of her former friend. The facts leading to the charged conduct are rather sad. Suffice it to say that Ms. Bond became severely distressed after learning that the former friend had become pregnant by Ms. Bond’s husband.

In what we viewed as an overcharge, the federal government charged Ms. Bond with violating the federal chemical weapons statute. The statute was enacted to satisfy the United States’ obligations under the international chemical weapons treaty, which was intended to address the proliferation of weapons of mass destruction and to preclude the large-scale use of chemical weapons. The statute carries a base offense level of 28, which with no adjustments, variances, or departures, equates to a sentence of 78-97 months’ incarceration. Ms. Bond was eventually sentenced to 60 months.

Our arguments for referral of the case to state prosecutors (where Ms. Bond would have faced little, if any, jail time) fell on deaf ears, so we challenged the prosecution on multiple fronts. The Supreme Court appeal resulted from our argument that the chemical weapons statute represents an invalid exercise of congressional power both as enacted and as applied in Ms. Bond’s case. The government conceded that the statute relied exclusively on Congress’ authority to pass legislation “necessary and proper” to implement treaties with foreign nations. We asserted that the utilization of the treaty power to enact legislation that Congress otherwise lacked the ability to pass (such as through interstate commerce authority) usurped the balance of powers between the federal and state governments. This violated both the Tenth Amendment and traditional notions of federalism.

The District Court hardly addressed the argument, and the Third Circuit ruled that only state governments, not individuals, have standing to assert the Tenth Amendment.

The standing issue is what the Supreme Court eventually addressed, unanimously ruling that an individual who is incarcerated has standing to challenge the suspect statute under the Tenth Amendment. After the Third Circuit rejected the appeal, Bob Goldman, a former partner in my firm originally hired by Ms. Bond, connected with Paul Clement and his team at King & Spalding through an intermediary at a Washington, D.C. think tank. Paul and his team prepared a compelling petition for writ of certiorari on a short turnaround. Once the Supreme Court granted certiorari, Paul and his team drafted equally impressive briefs.

Paul was the epitome of poise during the Supreme Court hearing, and masterfully addressed the questioning from the bench. Paul’s recognition of issues, and honest, direct, and thorough responses to the Justices’ inquiries seemed like a clinic in appellate advocacy.

The case will now return to the U.S. Court of Appeals for the Third Circuit, which must now consider the Tenth Amendment challenge it avoided on appeal from the District Court.

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.