I gave up swearing for Lent.

This has crippled my ability to communicate effectively. To a staggering degree.

Opposing counsel in some (not all) of my cases now operate under the delusion that I’m “reasonable.” The associates I’m working with are left to conclude that their performance has improved dramatically–except for Finney, who knows what “mumpsimous” and “ninnyhammer” mean. (I’ve had to learn a lot of new words, too.)

But at least one area remain unaffected by my Lenten vow: my legal writing.

Now, obviously, pre-Ash Wednesday I wasn’t submitting profanity- or threat-laced tirades to the Court. That would be Taboada v. Daly Seven, Inc., 636 S.E.2d 889 (Va. 2006) crazy.

But more than that, I try always to, in Bryan Garner’s words, “write with a smile.” As frustrated, impatient, or downright ticked off as I may feel in real life, I try never to let that bleed into my writing.

The challenge in writing with a smile comes when opposing counsel is writing with a dagger.

Cheap shots and stray insults in the other party’s briefs used to get under my skin. Sometimes they still do. But as I’ve grown more experienced, I’ve learned that:

  1. Judges see that trash for what it is. As Judge Weckstein puts it, if a lawyer has the goods, he’ll deliver the goods. If he doesn’t, he unload a pile of invective and pettifoggery.
  2. Losing your cool or responding in kind betrays weakness and a lack of character.
  3. Only when opposing counsel makes a direct, serious accusation that you have misrepresented something to the Court is it even worth responding–and then, only in an even tone and with a reasoned explanation.

Which sounds good in theory, the younger lawyers on our team would say, but how many times can you just sit there and take it while the other side calls you “desperate,” “disingenuous,” or whatever the currently trending adjective happens to be?

One of my brilliant partners has found the answer. He’s developed a system that will allow you to absorb a near unlimited amount of verbal abuse with a smile. His solution:

Bingo.

Actually, [expletive deleted–sounds like “juicebag”] Bingo.

For years, said partner has collected cheap shots, low blows, attacks on credibility, malignant adverbs, unfair characterizations, inflammatory metaphors, and other examples of verbal assault into a mental database. From time to time during contentious cases, he has used this collection to generate bingo cards.

Here’s the kicker: you don’t even have to play bingo. I suppose you could, if you wanted to. Or maybe some people would call that unprofessional. I don’t know; it doesn’t matter. Once you’ve gone through the exercise of making the bingo cards, passing them out to your team, and sharing a laugh, it becomes exceeding difficult to take that sort of writing seriously ever again.

Years later, when you receive a brief from a prominent partner at a prestigious firm larded with zingers, you’ll see it for what it is: pathetic. I mean that literally. You will be moved to compassionate or contemptuous pity that a lawyer at the pinnacle of his or her profession would operate this way.

And then, with a smile on your face, you will get back to the business of the law and the facts.

The Supreme Court has granted 13 appeals since we last checked in on the justices. Some of the highlights include:

Surprisingly, only 2 of these 13 cases are criminal. Summaries after the jump.

Continue Reading Appeals Granted

I’ve been meaning to write a post on Ross Guberman’s new book, Point Made: How to Write Like the Nation’s Top Advocates, for a while now.

Ross, you’ll recall, wrote an analytical piece called “Five Ways to Write Like John Roberts,” which I bastardized in a post called “I am John Roberts and So Can You!” The original article was very good. It distilled five important writing lessons from the Chief’s brief in Alaska v. EPA. My post? Not so much.

After that incident, I figured that Ross and I were finished. Done. Kaput . . . but I was wrong.

A few weeks ago, I received a copy of Point Made in the mail, free and unsolicited. It made my day. I guess Ross and I aren’t on such bad terms, after all.

Since the book was right up my alley (and I was actually working my way through a less impressive legal writing book at the time), I dove right in.

Point Made is writing-nerd nirvana–essentially, the Roberts piece on steroids. Guberman has analyzed the writing of fifty top lawyers, and distilled fifty writing lessons. His text is interspersed with quotations from the source material. So if, for example, you like seeing how Maureen Mahoney uses lists or distinguishes contrary authority–and you know we do–Point Made is your kind of book. It instantly won a place on my short list of favorite legal-writing books, alongside the Curmudgeon and the Garner canon.

Here’s the sort of stuff it delivers: Point Made starts out, logically enough, with four chapters on how to write a compelling introduction. They basically give you a checklist:

  1. Brass tacks. Start out by telling the court who, what, where, when, and why.
  2. The short list. List the three or four points that you’d make to a judge who gave you 60 seconds to explain why you should win. And use the word “because” in each point (at least in your first draft), to make sure that you’re operating at the requisite level of specificity.
  3. Why should I care? Explain why the court should feel good about ruling your way.
  4. Don’t be fooled. Draw a line in the sand between two competing views of the dispute (e.g., “This is not a case about x.”)

So far, so good. But it’s in the details that this book excels. Take point 3, why should I care? Guberman identifies 3 fundamental judicial fears that an advocate can manipulate to grab the court’s attention:

  • The fear of misconstruing a statute or doctrine;
  • The fear of creating new duties, rules, or defenses; and
  • The fear of reaching an unfair result or causing harm.

He then gives a series of 3-7 examples of superstar advocates using each technique. This is really, really good stuff. With the caveat that, the closer you look at John Roberts’ writing, the better it gets, and the worse you feel about yourself.

Bonus Q&A

I actually traded emails with Ross about his book. He’s agreed to do a short email Q&A by email. If you’re interested, shoot me an email with a question you’d like to see posed to a writing guru. Otherwise, I’ll high jack the discussion and we’ll hear a lot about how to write a good statement of facts.

Finally, I realize that these positive reviews are starting endanger my street cred. I can’t remember the last time I wrote something negative about a legal writing book, but in recent weeks I’ve gushed embarrassingly over the Curmudgeon,* the Butterick, and now the Guberman. Also, 40% of everything on this blog is plagiarized from Scalia & Garner.

So in the spirit of malevolent snark that I understand to be a hallmark of the blogging medium, here’s my negative review: I recently bought a copy of The Lawyer’s Guide to Writing Well by Tom Goldstein (no, not that Tom Goldstein) and Jethro K. Lieberman (yes, that Jehtro K. Lieberman). That’s the book I was reading when I turned to Point Made. I found it dry and moderately disappointing (and, to tell the truth, I still haven’t finished it).

 

*By the way, the Curmudgeon killed it again with his post on standards of review. The guy’s a warlock.

I chose to celebrate the unseasonably warm weather last week by participating in the VTLA’s February Freeze Telephone Seminar. The other panelists were Steve Emmert and Kevin Martingayle. Roger Creager, Mic McConnell, and Mark Lindensmith shared moderating duties.

If you click on any of those links, the first thing you’ll notice is that everyone on that list is far more accomplished than I am. Also, in almost all cases, better looking. I’m a little baffled that they let me talk at all. But let me talk they (inexplicably) did, and I had a blast.

The seminar covered two major topics: 10 Ways to Kill an Appeal, and Better Oral Argument Made Easy. We’ll save those for another day. (Cordell calls this “repurposing content”).

Instead, I want to talk about a question that came up during the audience participation portion of the seminar. It went something like this:

What is the correct way to cite a case at oral argument when you haven’t discussed it in your brief?

Emmert fielded the question: you don’t cite that case. Because we’re gentlemen of Harvard.*

Using cases at oral argument that you haven’t discussed on brief is bad form. It will likely get you a glare from the justices, if not a full-blown benchslap, complete with lecture about local custom.

If, in the course of preparing for oral argument, you should come across a crucial case that you wish you’d cited–or, better yet, if a great new case comes down–send a letter to the Clerk. Copy opposing counsel. Alert the Court, in a straightforward, non-argumentative way, to the existence of the authority. Advise all parties that you intend to rely on it at argument. Do not discuss, analogize, advocate, or pontificate. This is the only fair way to proceed.

There’s one exception to this rule: if a justice asks a question and, to answer it completely, you need to refer to a case outside the briefs, that is acceptable. Just make it clear what you’re doing.

* Seriously, how great was that character? Carrie will attest that, for a good two weeks after seeing The Social Network, I walked around the house speaking in Winklevoss.

As you know, former Chief Justice Hassell passed away last Wednesday. I never know what to say at times like this. My partner, Mike Pace, always seems to know exactly what to say. Here is part of what he wrote:

It is with much sadness I report that Justice Leroy Roundtree Hassell passed away early this morning.

Those of us who had the good fortune to know him were made better people and better servants of the public through the law because of him. He was a strong voice advocating for the continued independence of the judiciary, access to justice for everyone, particularly the poor and under served, and respect for the rule of law. The citizens of the Commonwealth of Virginia are better and safer because of him.

Justice Hassell believed lawyers and judges are the protectors of the public. Those of us who were fortunate to hear Justice Hassell’s address at the VBA Winter meeting in Williamsburg in January will forever remember his words. Fortunately, his comments were videotaped. I intend to get a copy and show it at our next firm meeting. His remarks were inspiring and made even more poignant today.

Please remember Justice Hassell and his family, and let us recommit ourselves as citizen lawyers to those principals he believed were vital to the protection of individual liberty and the collective rights we enjoy as Virginians and as Americans.

That sounds right.

As promised, here is a write up on the Fourth Circuit’s recent opinion in Barbour v. International Union. I can’t take credit for this one. It’s a guest post submitted a reader, who would prefer to remain anonymous. Can’t say I blame him/her–heck, I wouldn’t want to be associated with this blog, either:

For Civ Pro enthusiasts, last month saw the Fourth Circuit issue a rare en banc opinion controlling how cases are removed from state to federal court when multiple defendants are served at different times. The decision reversed a prior panel’s decision last year that rejected the McKinney Intermediate Rule in favor of the last-served defendant rule, discussed below.

You might think such a procedure would be controlled by statute. After all, 28 U.S.C. 1441(a) provides that “the defendant or the defendants” can remove a case.

But Congress, in its infinite wisdom, wrote 28 U.S.C. 1446(b), which sets forth the procedure for doing so, to  address removal only when there is one defendant, not more. That section reads:

The notice of removal of a civil action or proceeding shall be filed within thirty days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based, or within thirty days after the service of summons upon the defendant if such initial pleading has then been filed in court and is not required to be served on the defendant, whichever period is shorter.

You can see the problem here. With one defendant, it’s straightforward. But what if there are two, three or more defendants?

Continue Reading Barbour Redux: Fourth Circuit Resolves Removal in Multiple-Defendant Cases (Again)

DRI is holding its Appellate Advocacy Seminar in Orlando on March 10-11. The advance registration deadline is February 18. I’ve never been to the program (and unfortunately I won’t be able to make it this year), but I have heard excellent things about it.

The program looks like will have a good Virginia presence this year.

Senior Justice Lacy will be judging a moot court, and Robert Wise from Bowman & Brooke in Richmond will be moderating a panel on the future of appellate advocacy.

Robert, as those of you on the VADA listserv will recall, is the guy who somehow circulated a same-day summary of the Fourth Circuit’s seventy-page–seventy page?!–en banc magnum opus on removal, Barbour v. International Union.

Barbour reversed the Fourth Circuit’s earlier adoption of the last-served defendant rule in favor of the “McKinney Intermediate Rule,” which says that the first-served defendant must file a notice of removal within thirty days of service, and later-served defendants have to join the notice within thirty days of service on them.

At least, I think that’s what it did. I haven’t had time to read the whole opinion. We hope to have something up about it shortly.

In the meantime, Robert’s summary is funny and readable, so I have to assume that it is accurate.

In a slow week, SCOVA granted just one appeal (and reportedly on a petition for rehearing at that): a parol evidence/statute of frauds/estoppel case out of Williamsburg.

As a bit of a contract junkie, I’ve got to admit that I’m interested. Also, Joe Rainsbury and Steve Emmert are involved, so the issues will be presented well.

Details after the jump.

Continue Reading Appeals Granted