Tuesday, March 3, 2015

Gideon's Children: A Book Review

Howard G. Franklin’s first novel, Gideon’s Children, tells the story of Matt Harris, a young attorney assigned to a small public defender’s office in the late 1960s. From day one, Matt—who’s never even tried a case before—finds himself immersed in an all-out war, fighting with his co-workers for their clients’ rights while struggling to handle a staggering case load.

Matt quickly learns what his poor, mostly minority clients are up against: all-white juries, unethical judges, biased prosecutors, and corrupt police officers. In short, they don’t stand a chance. Or they wouldn’t without Matt, whose deep-rooted sense of right and wrong leads him to do everything in his power to ensure his clients get fair trials, even risking his own freedom to do what he believes is right.

Then, Matt and his fellow PDs hatch a risky plan to gain respect for themselves and, more importantly, fair shakes their clients. Will their plan work? Are they risking their careers? And can they get at least some form of justice for their clients in a world that seems anything but?

Gideon’s Children is fiction but clearly parallels Franklin’s own experiences as a Deputy Public Defender in Los Angeles County in the late 1960s and early 1970s. Franklin brings to life a period that many have argued was the most tumultuous in American history—he sings the songs of the time, watches the television programs of the time, and voices the concerns of many Americans of the time. He tackles race, class, and socioeconomic issues that persist today, nearly 50 years later. And Gideon’s Children reminds us of the continued struggles of public defenders, who are forced to juggle too many cases with too few resources, and their clients, who, too often, still face justice systems that seem stacked against them.

Gideon’s Children is available today through Chamberlain Press.

Friday, February 27, 2015

"But the Details are Full of Devils"

Justice Kagan's "Dr. Seuss" dissent in Yates v. United States, another example of her intersting and readable style of writing, caught everyone's attention this week, for good reason.

But she’s not the only judge who employs that style. Judge Neil Gorsuch’s recent opinion in United States v. Rentz is another excellent example of engaging, reader-friendly writing. The first paragraph, though long, is a jewel. I've broken it up for ease of reading below.

Few statutes have proven as enigmatic as 18 U.S.C. § 924(c). Everyone knows that, generally speaking, the statute imposes heightened penalties on those who use guns to commit violent crimes or drug offenses. But the details are full of devils.

Originally passed in 1968, today the statute says that “any person who, during and in relation to any crime of violence or drug trafficking crime ... uses or carries a firearm, or who, in furtherance of any such crime, possesses a firearm, shall, in addition to the punishment provided for such crime ... be sentenced to a term of imprisonment of not less than 5 years.”18 U.S.C. § 924(c)(1)(A).

That bramble of prepositional phrases may excite the grammar teacher but it's certainly kept the federal courts busy. What does it mean to “use” a gun “during and in relation to” a drug trafficking offense? The question rattled around for years until Bailey v. United States, 516 U.S. 137, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995), and even now isn't fully resolved. What does and doesn't qualify as a “crime of violence”? The better part of five decades after the statute's enactment and courts are still struggling to say. Cf. United States v. Castleman, --- U.S. ---, 134 S.Ct. 1405, 188 L.Ed.2d 426 (2014); United States v. Serafin, 562 F.3d 1105, 1110-14 (10th Cir. 2009).

And then there's the question posed by this case: What is the statute's proper unit of prosecution? The parties before us agree that Philbert Rentz “used” a gun only once but did so “during and in relation to” two separate “crimes of violence”—by firing a single shot that hit and injured one victim but then managed to strike and kill another. In circumstances like these, does the statute permit the government to charge one violation or two?

Happy Friday!

Tuesday, February 24, 2015

Supplemental Briefs

Sometimes, judges ask parties to submit supplemental briefing on issues, provide additional documents, or clarify facts. This may happen if the judge feels the parties failed to adequately address a particular issue, a question arose during oral argument or after initial briefs were filed that neither party briefed, or the judge needs additional facts that might be outcome determinative.

Judges may ask the parties to submit short supplemental briefs or send letter briefs with the requested information. Always follow the judge’s instructions, but keep a few things in mind when submitting supplemental briefing.

Remind the judge what you were asked to do. Judges are very busy people. And, like lawyers, judges often are juggling many cases at once. The judge may ask for supplemental briefing then forget why she asked. Judges are human—this happens. So never hesitate to succinctly remind the judge why you’re filing or sending a supplemental brief. A single sentence, like this one, will do: The Court asked the parties to address the question of whether Plaintiff’s claim is barred by laches.

Address only the issues you were asked to address. Do not try to use your supplemental brief to reiterate the points made in your initial brief(s). The judge asked for specific information and you should provide that information—and that information only. You can certainly reference your initial brief, but don’t repeat the arguments made in it. And don’t try to use a supplemental brief to make arguments not made in your initial brief or address issues you weren’t asked by the court to address. The opposing party will almost certainly ask for an opportunity to respond to those newly made arguments, and the judge will not be pleased.

Don’t exceed the page limit. If the judge requests supplemental briefing and sets a specific page limit, stick to that page limit. The judge likely is asking for very specific information, case law, or arguments, and does not want to have to review more full-length briefs. If the judge said you get two pages, only provide two pages. In any event, keep your supplemental brief as short as possible—just because you get five pages doesn’t mean you have to use all five.

Clarify facts, if asked, but don’t restate facts outlined in your initial brief. Sometimes a judge will ask parties to clarify facts that the judge believes could be outcome determinative. Unless the judge asks you to do so, you don’t need to restate the facts in a supplemental brief. You can assume the judge knows the facts from the initial briefs or oral argument, or both.

Include relevant authority or admit if there is none. Sometimes legal issues will arise during oral argument that neither party previously addressed or considered. Judge may ask the parties to provide a supplemental brief to address those issues. If you find relevant authority, include it in your supplemental brief—you might even attach a copy of the authority for the judge’s convenience. If there is no authority on point, say that, reference your prior arguments, and remind the court what you want.     

Friday, February 20, 2015

Well, This is Awkward

Judge Pryor is a Renaissance man. When he's not citing song lyrics, he's authoring both the majority opinion and the concurrence, as he did in United States v. Kopp. I'm not sure how the Eleventh Circuit judges decide who authors each opinion, but I don't think I've ever seen a case where a judge wrote two different portions of the same opinion.

Judge Pryor seemingly recognizes the oddity of the situation. His concurrence begins: "Not surprisingly, I concur in full...." 

Happy Friday!

Tuesday, February 17, 2015

Word Limits and the True Illness in Appellate Briefing

The Advisory Committee on Appellate Rules recently issued a proposal to reduce length limits for briefs. Generally, practitioners appear opposed to the reduction. Some have suggested, however, that the page limits should be decided on a case-by-case basis, with fewer words permitted for uncomplicated cases and more words allotted for cases with stickier issues, many parties, or lengthy, complicated facts.   

I don’t have strong feelings about the Committee’s proposal, but I do believe the current word limits are more than sufficient for most cases and the reduced word limits (from 14,000 words to 12,500 words) would generally remain sufficient as well.

The issue with many appellate briefs isn’t the number of words—it’s the lawyers’ understanding of and ability to communicate the pertinent legal issues. Lengthy, cloudy writing usually is the product of a cloudy understanding of the issues. And often lawyers make too many arguments on appeal. Rather than focusing on arguments they might actually win, they take the kitchen sink approach and throw in anything and everything they can think of.   

Reducing word limits won’t make lawyers better writers. To be better writers, lawyers must firm up their understanding of the facts and legal issues, focus their efforts on their strongest arguments, and ensure their writing is clear and precise and accurately communicates the law and their positions in an easy-to-understand way.

When lawyers as a group acknowledge the importance of writing to the practice of law and work to improve their writing, the quality of appellate briefs—whether they’re 1,000 or 10,000 words—will improve. In the meantime, reducing word limits is—I think—an ineffective remedy for the true illness.  

Friday, February 13, 2015

R.I.P. Alvin

Sometimes a lawyer will need to request an extension to file responses or pleadings. Friendly counsel usually consent to an extension as a professional courtesy, but sometimes a lawyer will need to request an extension from the court and explain why the extension is necessary. I've seen some interesting explanations, but I agree with Above the Law that this is one of the most bizarre.

While requests for extensions commonly arise from medical issues, the death of the lawyer's family cat is a much less common excuse. And the amount of detail in this request seems excessive. But it makes for a fun read nonetheless.

Happy Friday!

Tuesday, February 10, 2015

Why Buy the Cow When You Can Get the Milk for Free?

Back in December Mark Herrmann wrote this interesting piece for Above the Law on firms that make their briefs available online to attract business. While some argue firms can lose business making briefs available for free, Hermann sees it differently:

Care to learn whether a firm is any good? You can either take it on faith (“I’m a great lawyer! Trust me; I say so!”) or you can actually read the firm’s work and listen to the lawyers in action. 

For example, as Herrmann notes, Winston and Stawn has an excellent bank of briefs it has filed in courts across the country. The
Photo by Daniel Schwen
bank provides each brief's topic, the type of brief (e.g. amicus, opening, reply), the court in which the brief was filed, the attorney responsible, and the date. The bank isn't searchable per se, but each category of information can be filtered, making relevant briefs easier to locate.


I agree with Herrmann 100%. While I'm not sure this will ever become a trend--we all know how slow lawyers are to adopt novel ideas--I fully buy-in that showing clients the type of work they'll be getting is substantially more effective than simply telling them you'll do a great job.

But, as Hermann also notes, many lawyers feel others will "steal" their work if they make briefs readily available.

This seems a weak excuse not to make them available, though. First, many of these briefs are available online through Westlaw and Lexis anyway, so if other lawyers want to "copy" your work, they can easily do so. Second, no two cases are alike, and while another lawyer might be able to use some parts of your brief, he won't be able to use the entire brief. And his own work will likely stand in stark contrast to the excellent parts he's appropriated. Third, anyone who might use your briefs for their own purposes likely isn't someone who would have hired your firm in the first place; you're making briefs available for potential clients, and if other lawyers find and use them, no skin off your back.    

I don't write briefs for money anymore, but I might again at some point. And you'd better believe if I do, I'll continue to make the tips I have offered on LLW available to everyone. Because I know how much time and effort I've spent becoming a strong writer, and my writing can't be duplicated simply by following writing rules--it has to be honed through practice. I'm proud of the work I've done, so why not show it to others?

Putting your briefs out there carries little risk and the potential for big reward. Strong writers know clients will buy the cow.