Always keep your Law Hammer handy when writing words.
Hard as it may be to believe, I was actually writing stuff during the downtime between posts. People who ought to know better were kind enough to publish two of my articles:
You can read them if you’re bored.
This is how we’re drawing a standard of review today.
United States v. Carthorne is one of my favorite recent opinions. It turns on whether the standard for showing plain error is the same as the standard for proving ineffective assistance of counsel. That’s a perfectly nerdly and compelling question in its own right, but it’s not why I like the opinion. Carthorne is a winner for me for two reasons. First, it shows that brilliant lawyering on appeal can (sometimes) redeem dreadful lawyering in the trial court. And second, it reinforces one of our favorite mantras around here: the standard of review decides cases.
Here’s the story: Our hero, Jolon Carthorne, pleaded guilty to illegally possessing drugs and a firearm. His probation officer recommended that he be designated a “career offender” under the Sentencing Guidelines based on two prior convictions. One of those convictions was for assault and battery of a police officer under Virginia law. The probation officer concluded that this qualified as a crime of violence under the Sentencing Guidelines.
Carthone’s trial lawyer did not object to the career-offender designation. The district court sentenced Carthorne to 300 months’ imprisonment. Without the career-offender designation, his Sentencing Guidelines range would have been between 181 and 211 months’ imprisonment.
In other words, the career-offender designation cost Carthorne an additional seven-to-ten-years’ imprisonment.
Carthorne appealed, arguing that assault and batter of a police officer was not, in fact, a crime of violence under the Sentencing Guidelines. The Fourth Circuit reviewed his claim for plain error because Carthorne hadn’t raised the argument below. It held that Carthorne was right: Assault and battery of a police officer doesn’t qualify as a crime of violence under the Sentencing Guidelines. But it also held that the district court did not plainly err because existing precedent didn’t compel that conclusion. At the time of the district court’s opinion, the circuits were actually split on the question. So the Fourth Circuit affirmed the judgment.
That’s the force–and the subtlety–of plain-error review: The district court was wrong, but it wasn’t plainly wrong.
Carthorne then asked the district court to vacate his sentence under 28 U.S.C. § 2255 for ineffective assistance of counsel because his trial lawyer hadn’t objected to the career-offender designation. The magistrate judge concluded that Carthorne’s lawyer was sufficiently effective “essentially for the same reasons that the Fourth Circuit found no plain (i.e., obvious) error on direct appeal.” The district court adopted the magistrate judge’s recommendation and denied the motion.
Carthorne appealed, arguing that the district court had confused two distinct standards of review. The Fourth Circuit agreed, concluding that “the plain error and ineffective assistance of counsel standards do not necessarily generate identical outcomes with respect to the same alleged error.”
A few points here. First, the Fourth Circuit gives us a nice treatment of plain-error review:
If counsel fails to raise a contemporaneous objection to a potential issue or error, the authority of an appellate court to remedy that problem is “strictly circumscribed.” Puckett, 556 U.S. at 134. A litigant failing to object to an error generally forfeits his claim to relief on account of that error. Id. at 134–35. Federal Rule of Criminal Procedure 52(b) recognizes only a limited exception to this rule of forfeiture, allowing appellate courts to review “a plain error that affects substantial rights.” See also Puckett, 556 U.S. at 135; United States v. Dominguez Benitez, 542 U.S. 74, 83 n.9 (2004) (noting plain error relief is “difficult to get, as it should be”). The plain error standard therefore reflects the view that the primary responsibility for protecting a defendant’s interests at trial lies with his attorney, not with the court.
An error can be “plain” only on the basis of settled law. See Carthorne I, 726 F.3d at 516 & n.14 (noting that error is plain “if the settled law of the Supreme Court or this circuit establishes that an error has occurred” or if other circuits are unanimous on the point (citation omitted)). When neither the Supreme Court nor this Court has addressed a legal issue directly and a circuit split exists, “a district court does not commit plain error by following the reasoning of another circuit.” United States v. Strieper, 666 F.3d 288, 295 (4th Cir. 2012); Carthorne I, 726 F.3d at 516–17 (holding that the absence of binding precedent in conjunction with disagreement among circuits prevented us from finding plain error). Moreover, the determination whether an error is plain is made at the time of review by an appellate court, not at the time that the error is committed. Henderson v. United States, 568 U.S. 266, 279 (2013).
Second, the court’s refusal to hyphenate phrasal adjectives would never fly on #appellatetwitter. Never.
Third, this case is really making me question my Rule Against Acronyms. Lord, am I getting tired of typing “ineffective assistance of counsel” and “assault and battery of a police officer.”
But I digress.
The Carthone court contrasted plain-error review with a claim for ineffective assistance of counsel, which requires a showing that counsel’s performance fell below an objective standard of reasonableness. While both standards require a showing of prejudice, their specific inquiries diverge. Among other things, plain-error review requires settled precedent before a defendant is granted relief, while the ineffective-assistance standard may demand that a lawyer raise material issues even without decisive precedent. The inquiries also differ in their chronological focus: Ineffective assistance is judged in light of the time of the allegedly deficient performance, while plain error applies authority existing at the time of appellate review.
After distinguishing the two standards, the Fourth Circuit concluded that Carthorne’s trial counsel was indeed ineffective. Eliding the gory details, it held that “counsel’s failure to demonstrate a grasp of the relevant legal standards, to conduct basic legal research relating to those standards, and to object to the sentencing enhancement (even though there was a strong basis for objection), taken collectively, constituted deficient performance.” It vacated the district court’s judgment and remanded for resentencing. That is a fantastic result.
Fun footnote: Carthone’s lawyer on appeal was one Katherine Mims Crocker. Longtime readers will wonder: Might this be the person who gave Justice Mims his famous nickname? Further research is needed. Ms. Crocker had help on brief from Ben Hatch, pipeline defender and gentleman of Harvard. Click on the links to their bios sometime when you want to feel bad about your life choices.
Have you seen this week’s Virginia Lawyer’s Weekly? First page, above the fold, is an article called “10 Steps for Preparing for an Appellate Argument” by Dawn Solowey, a tall-building lawyer from Boston. As longtime readers know that I’m a sucker for these articles.
Unfortunately, this one is an exception. It’s bad–preposterously bad, really, given the subject matter. And “bad” is a charitable description. We’re talking New York Jets bad. The Dark Tower trailer bad. Season 4 Sandsnakes bad.
It is, in short, the Jurgen Klinsmann of the appellate-advice genre.
Let’s start by unpacking the list. Here are the 10 steps:
The article elaborates on each point, but not in the depth that you’d expect.
First observation: This list leaves out moot courts and argument blocks, which are literally the two most helpful things that you can do to prepare for an oral argument. (The discussion of Step 8 does close with “Consider holding a ‘moot court’ with colleagues to practice answering difficult questions on your feet.” That’s not good enough. Yes, by all means, if you would like to win, consider mooting your argument. And you don’t do it get time on your feet. It’s a little late for that. You hold a moot court to get different perspectives, hear different questions, and sharpen your answers.)
Of those steps actually included on the list, Step 10: Put yourself in the judges’ shoes is the most important. The whole point of oral argument is to help the judges get to the correct result, and to do that you have to see things from their perspective. Everything else flows from this. It’s such a crucial part of the process that it’s worth starting your prep by sitting down a making a list called “Things That Will Bother a Judge About This Case.” How on earth is this Step 10?
Step 1: Review the briefs for what’s in them–and what’s not. Meh. I agree that it’s useful to study the briefs and to critically assess each side’s strengths and weaknesses. I disagree that you should “[t]ake detailed notes as you review the briefs, and use them to develop themes and an outline for oral argument.” Relying too heavily on your brief is a mistake. A brief is a written position statement. An oral argument is a conversation with some thoughtful men and women in robes. Though the two exercises share the same goal, they are necessarily and fundamentally different in terms of structure, emphasis, and even sometimes theme.
Steps 2 and 3 almost boil down to internet-stalking your panel and tailoring your presentation to them. That’s exactly why the Fourth Circuit doesn’t announce its panels before the day of argument. The Supreme Court of Virginia doesn’t tell you who will be on your writ panel before he day of argument, either. So from the outset, this is deeply weird advice to be giving Virginia practitioners. But even if these two steps were actionable in real life, I’m still not sure that they would be good idesa. Instead of trying to game the panel, aren’t you better off having a big-picture view of the judges and focusing your argument on the substance? I know that I’m happier going into an argument knowing my case and finding out on the day that my panel is made up of “Talky Originalist,” “Quiet Normalguy,” and “Funny Lady Murder Question,” for example, than being able to tell you in advance that, say, both Clinton and Bush appointed Chief Judge Gregory, who will be on my panel, or that panelist Chief Justice Lemons once spoke to Mick Jagger on the phone. (Okay, I lied. That last one makes me really happy. But you get the point.)
Also, trying to pitch your argument to the panel can backfire. Solowey recommends considering “whether there is language or a theme from a prior opinion of one or more of the judges that might make sense to highlight at argument.” But if that language or theme wasn’t highlighted until now and you’re using it primarily (or exclusively?) because of who wrote it, this could come off as gross pandering.
Step 4: Update your research. Well, yeah. You should update your research. If you need someone to tell you that, maybe appeals aren’t going to be your thing.
Step 5: Read the key cases and have them at your fingertips. Ditto.
Step 6: Prepare a longer form outline. I mean, I guess? Can’t hurt, might help. Oh, wait–it can hurt, because the last thing in the world that you want to do is to read an outline, even to a cold bench. So maybe Step 6 is not the absolute best use of your time.
Step 7: Prepare a list of must-make points. Absolutely. This should be a bit higher up the list, no? And wouldn’t these points be an order of magnitude or two more useful if they were arranged as argument blocks–with case/JA cites and snippets of key language from them? And wouldn’t it be even more helpful if we devoted one page to the affirmative points that you need to make and another to your counters to the Bad Guy’s best points, so you could see both at once in a helpful graphical layout?
Or, you know, you could make a list.
Step 8: Anticipate the hardest questions. Or anticipate all of the questions that you’re likely to face, and work on some razor-sharp answers to them that work back to one or more of your main themes. This, again, is part of the utility of a moot court.
Step 9: Get to know your clerk. No. Wrong. This is not a step in oral argument prep.
Worse, consider some of the pressing questions that Solowey suggests that you pose to the clerk: “How long will each side have for argument? If you are the appellant, can you reserve rebuttal time?” If you don’t know the answers to these and similar questions, you really ought to consider associating competent local appellate counsel.
This list is just depressing. Here are some better ideas about preparing for oral argument. Perhaps one day I will summon the energy to present them in listicle form.
How could I have missed this?! On December 15, the Supreme Court of Virginia revised Rule 5:6 to update its list of acceptable fonts. (H/t Steve Emmert.)
Until now, SCV briefs had to be printed in 14-point Arial, Courier, or Verdana. I’m on record as expressing mild disapprobation for that list. The new list is vastly improved. I’ve reproduced it below. I’ve also added some information from Matthew Butterick’s excellent Typography for Lawyers–second edition, you should buy it now–in which he assigns the system fonts to various lists:
Butterick also indicates whether each font presents a plausible choice for body text, or is better reserved for letterhead or other special projects. Bear in mind that Butterick is a Harvard-trained fontologist, so he is probably much harsher on system fonts than your typical audience will be.
Thus we have the list of SCV-approved fonts, with the Butterick Grade and Body-Text Rating for each:
The next obvious question is which font to use. Brother Emmert tells us that Times New Roman is the densest of the lot and will let you cram the most words into 35 or 50 pages. That’s maybe not what the Court was going for when it amended Rule 5:6. Emmert himself is vacillating between Cambria and Constantia. Butterick may frown on those choices, but I think that Steve can pull them off. One of his secrets is writing very short, very carefully mapped out briefs. If your brief makes a compelling argument in 1/4 of your allotted pages, you get to take some liberties with the font.
As for me, I tend to be wordier than Steve. I need all the help that I can get when it comes to preserving my readers’ attention, so I’m looking at Palatino Linotype and Century Schoolbook as my go-to choices. But those are preferred choices, not defaults. I view typography as just another tool to accomplish my goals in a brief, and those goals vary by project. One font is not going to be the best choice for every brief. For example, Century Schoolbook looks like, well, a schoolbook. Like the sort of thing that an elementary-school teacher would have read to you about the escapades of Dick and Jane and Spot. It also looks like a Restatement. So if I’m writing a brief in opposition, and I want to tell the Court that the law is settled and needs no further development, and that it clearly and authoritatively mandates the result below, then I will choose Century Schoolbook. I will cite many authorities, and I will try to rein in my worst and most distracting tics as a writer–like my overuse of em-dashes and shrieking italics. As a result, my brief will look (and hopefully feel) like black-letter law.
On the other hand, if I have a novel issue or a sympathetic plaintiff, or if for some other reason I want my brief to feel like a story, then I may choose Palatino Linotype–because, to me, than font feels like a story. [I wish I knew how to quit you, em-dash!] Palatino looks like something I might read on iBooks.
To be clear, this is not [tic] a concession that every time I use Palatino Linotype, I’ve given up on the legal argument. It’s just an observation that using the font can help create a different overall feel. Some lawyers, for example, are very good at telling the story behind an overall statutory scheme, or the development of an area of law. Paul Clement and Stuart Raphael come to mind. Of the fonts listed, Palatino Linotype would probably be the most useful for that type of project.
And I won’t tell you what 14-point Arial and Verdana look like.
Lately, I’ve been binge listening to Scriptnotes, a podcast by John August and Craig Mazin about screenwriting and things that are interesting to screenwriters(TM). I’m not a screenwriter myself and, as it turns out, I’m not interested in many of the things that are interesting to screenwriters. (In my defense, that is a very limited and borderline solipsistic category of things.)
Even so, I think that the podcast is brilliant and I can’t get enough of it. That’s because August and Mazin are two very smart, very professional guys who have spent a LOT of time thinking critically about writing. And even when their insights don’t apply directly to legal writing–which is to say, all of the time–I find that they’re still worth considering, because they often model new (or at least fun) ways to approach the subject.
Take their recent discussion of clams. To screenwriters, “clam” is a term of art. August defines “clams” as “jokes that aren’t funny anymore and therefore need to die.” Mazin explains that if you sat down in Starbucks and heard the folks at the next table using these jokes, you would quickly conclude that they were the worst people on earth.
Clams are, in short, the sort of jokes that you can reliably find on this blog.
To give you a sense of the flavor, here are some of the clams that August and Mazin discussed:
As the Scripnotes guys suggest, if I were to try to write a sitcom, I’d probably throw a lot of these in. They would sound like sitcom dialogue, because they’ve been used that way a humongous number of times. And of course, that’s exactly why you would not want to use them in your own writing. And thus I would fail as a screenwriter.
Are there clams in appellate writing–that is, cliches that are so overused that by now they just sound like legal writing and therefore must be destroyed? I think so! Let’s try to list some (h/t to Ross Guberman and, as always, Scalia and Garner):
I’m sure there are others. Thoughts?
It’s not an unusual situation: The appellate lawyer realizes late in the game that a key document–a crucial exhibit, maybe, or a necessary transcript–is missing from the record. The document is supposed to be in the record. Everyone assumed that it was in the record. But when the lawyer double-checked the table of contents to the record, she noticed that it wasn’t there. And let’s make things even worse: we’re late in the game, and the record has already gone off to Richmond.
This is the part of the story where people start to panic. It’s a natural reaction, but one that’s completely unnecessary. This is a fixable situation, and one that is more common than you think. Here’s how to handle it in 5 easy steps:
As longtime readers have no doubt picked up, I’ve got sort of a distinctive writing style for legal writing. If I had to characterize it, I’d say that it falls somewhere between “prickly” and “shrill.” Short sentences are crucial to this style, such as it is, both because they keep the pace moving and because I am unable to keep big ideas in my head for very long. Shrieking italics also help me to get my important points across.
It’s not easy to write these short, overheated sentences. I often have to start with a coordinating conjunction like “but,” “and,” or “so.”
This almost never poses a problem. But from time to time–and especially when I am coordinating with trial counsel–I’ll get comments back on a draft that seek to reword every one of these sentences. I push back gently, but usually wind up accepting the revisions–partly because the customer is always right, partly because I’m a pushover, and partly because I can’t really justify billing a client for debates over grammar.
In the course of these discussions, I’ve learned that a startling number of lawyers are convinced to a moral certainty that you can’t begin a sentence with “but” or “and.”
Applesauce. There’s no such rule.
Grammar Girl covers this issue thoroughly. Unfortunately, citing a Grammar Girl podcast doesn’t pack quite the persuasive weight that it should, at least in highfalutin’ debates among educated professionals. So I’ve gone up a level: I purchased a copy of the 1965 edition of Fowler’s Modern English Usage. Why the 1965 edition? I really don’t know. I once heard (or read?) Bryan Garner insist on the Second Edition above all others as the definitive guide to English as she is spoke. Used copies are readily available on Amazon. I got mine for about $3.00. On Stephen King’s recommendation, I also picked up Warriner’s English Composition and Grammar for a similar price.
But I digress. Here is what the wise and wonderful H.W. Fowler has to tell us from beyond the grave about starting a sentence with “and”:
And beginning a sentence. That it is a solecism to begin a sentence with and is a faintly lingering SUPERSTITION. The OED gives examples ranging from the 10th to the 19th c.; the Bible is full of them.
(A “solecism” is “a mistake in speech or writing.” Yes, I had to look that up.) The superstition may have been “faintly lingering” fifty years ago, but lawyers are clinging to it like that extra space after a period and the uber-weird multiple indent at the start of a paragraph.
If Fowler’s not good enough for you, Grammar Girl pulled this zinger from the Chicago Manual of Style:
There is a widespread belief—one with no historical or grammatical foundation—that it is an error to begin a sentence with a conjunction such as and, but or so. In fact, a substantial percentage (often as many as 10 percent) of the sentences in first-rate writing begin with conjunctions. It has been so for centuries, and even the most conservative grammarians have followed this practice.
Still not convinced? In The Redbook: A Manual on Legal Style, our man Bryan Garner says:
When appropriate, use a coordinating conjunction to begin a sentence to emphasize contrast (but, yet), additional support for a proposition (and), an alternative (or), or a logical conclusion (so).
Finally, in Point Made: How to Write Like the Nation’s Top Advocates, Ross Guberman devotes a whole chapter to the one-syllable opener. He offers examples of sentences starting with “but” and “and” from the likes of John Roberts, Miguel Estrada, and Elena Kagan.
So there you have it: ample authority to justify your next punchy sentence.
Judge hammer.
So I’m a big nerd. I like trivia, and I enjoy some of the murkier procedural aspects of appellate litigation–in particular, the outer margins of appellate jurisdiction. As you’ve probably guessed, this makes me very popular at dinner parties.
In December, the Fourth Circuit handed down a nice little opinion on this point (appellate jurisdiction, not my waning status in the Roanoke Social Register). In Goode v. Central Virginia Legal Aide Society, Inc., 807 F.3d 619 (4th Cir. 2015), the court considered whether an order dismissing a case without prejudice was a final, appealable order. Our hero, Freddie Lee Goode, sued CVLAS for age and race discrimination. Applying what could only have been an intentionally absurdist reading of Twiqbal, the district court determined that Goode had failed either (1) to present direct or circumstantial evidence of discrimination, or (2) to make out a prima facie case of discrimination under the McDonnell Douglas framework. It therefore dismissed the case–not the complaint–without prejudice, and said nothing about leave to amend. Goode timely appealed.
The question presented was whether the Fourth Circuit had appellate jurisdiction–that is, whether the dismissal without prejudice was a final, appealable order under 28 U.S.C. 1291. It was not. As the court explained, an order dismissing a complaint without prejudice is not appealable if the plaintiff could have saved his action by amending the complaint. The court will apply this test on a case-by-case basis, but it offered some general guidelines. For example, have a fatal procedural defect like a failure to exhaust administrative remedies? No amendment will help you there; your dismissal without prejudice is likely appealable. But a routine case where the district court dismissed a complaint for pleading deficiencies? Easily cured by an amendment, and therefore not appealable. The court had consistently reached this result in unpublished opinions, and it used Goode to memorialize the rule in a precedential opinion. Because each of the district court’s grounds for dismissal was easily cured by amendment, its dismissal without prejudice was not appealable.
“But wait,” said Goode, “the district court never gave me leave to amend!”
“So what?” replied the panel. Even though the district court dismissed the case without leave to amend, Goode never affirmatively requested leave to amend (if leave to amend is even required after dismissal without prejudice, which is a question for another day). If he’d asked, the district court would have been almost constrained to grant leave to amend under Rule 15.
Finally, Goode pointed out that the district court had dismissed the case, not the complaint. Appellate courts in other jurisdictions have held that when a court dismisses the plaintiff’s entire action, rather than just the complaint, its order is appealable. The Fourth Circuit shrugged. It pointed out that there was no indication that the district court’s use of the word “case” instead of “complaint” was intended to have any special meaning.
All of which resulted in dismissal and remand.
tl;dr
Here are the main takeaways from Goode:
Finally, some of you are probably wondering why I used such a trite image at the top of this post. Fair question. I used this picture because my stock photo service identified it as “judge hammer,” and something about the sheer illiteracy of that description speaks to me on a very deep level.
. . . or at least, the author of the “bad-man theory” of the law. I was delighted to learn that Oliver Wendell Holmes, Jr., has his own wikiquote page. Here are some of his inspirational musings, which are sure to brighten your day:
Fewer?
Here’s one of the philosophical disagreements that make my life interesting: Is it better to include more assignments of error in a petition for appeal, or fewer?
Obviously, there’s no one-size-fits-all answer. I bet that there are some cases out there that warrant nine assignments of error. And there are surely some that merit zero.
That said, over the broad run of cases, I suspect that most appellate practitioners (and all appellate judges, ever) will go with “fewer.” But a surprising number of trial lawyers–and a huge number of clients–seem inclined to take the “more is more” route. I tend to disagree, for a few reasons:
But you don’t have to take my word for it; longtime readers know better than to do something like that. Instead, you can remember this handy table that Judge Aldisert created:
| No. of Issues | Judge’s Reaction |
| 3 | Presumably arguable points. The lawyer is primo. |
| 4 | Probably arguable points. The lawyer is primo minus |
| 5 | Perhaps arguable points. The lawyer is no longer primo. |
| 6 | Probably no arguable points. The lawyer has not made a favorable initial impression |
| 7 | Presumptively, no arguable points. The lawyer is at an extreme
disadvantage, with an uphill battle all the way. |
| 8 | Strong presumption that no point is worthwhile |