Friday, December 19, 2014

I'm leaving on Sunday for Egypt, so in celebration, here's one of my favorite grammar cartoons:

I won't be posting for the next two weeks while I'm enjoying my vacation, but be on the lookout for a brand new post on Tuesday, January 6, 2015.

Thank you for reading my blog and providing thoughtful comments. This year has been a great success for LLW thanks to you. As always, if you have ideas for posts you'd like to see, please let me know!

Happy Friday and Happy Holidays!

Tuesday, December 16, 2014

Justice Scalia Admits Fault

We all make mistakes, even Justice Scalia. In his dissent in Dart Cherokee Basin Operating Co., LLC v. Owens, here, Justice Scalia owned up to an error in a 2013 case, an error he said he would take "to the grave." But he also made an important point, so eloquently put by Justice Jackson:

"I see no reason why I should be consciously wrong today because I was unconsciously wrong yesterday."

This sentiment serves as a good reminder to legal writers. Correct past errors in your writing, don't perpetuate them.

Friday, December 12, 2014

Supreme Ambitions Book Review

If you're looking for some light reading over the holidays, you might enjoy David Lat's Supreme Ambitions. Check out my book review here, at Ms. JD.

Happy Friday!

Tuesday, December 9, 2014

Making the Most of Motions for Reconsideration

Motions for reconsideration often aren’t successful. Generally, once the judge has issued a decision (especially a written one), you’re unlikely to convince the judge that decision was wrong. But motions for reconsideration sometimes work. Here are my tips for making the most of a motion for reconsideration.

A motion for reconsideration isn’t the place to make new arguments—the judge almost certainly won’t consider them. The most effective motions for reconsideration are those that target the judge’s (1) misunderstanding of the facts; (2) misapplication of the law; or (3) failure to address certain issues.

The Facts. If the judge’s ruling is based on a misunderstanding of the facts, use the motion to explain the true facts and support that explanation with affidavits, deposition testimony, documents etc. Attach copies of the relevant transcripts or documents, if permissible, or include the exact testimony—rather than characterizations—in the motion itself. (See my prior post here on the effectiveness of this technique)   

Similarly, if the judge has granted a motion for summary judgment when a factual dispute exists, show the judge the evidence of the dispute—the conflicting deposition testimony or documents, for example. Attach them if you can. Otherwise, refer to them in a way that will enable to the judge to easily locate them in the file or record.   

The Law. If you believe the judge misapplied the law, tell the judge how by offering language from the cases, statutes, etc. themselves and the judge’s order to show the disconnect. Be specific. For example:

In its order, the Court expressed sympathy for Plaintiff but held it had no choice but to dismiss the complaint, citing Section 54.3(b) of the statute. But Section 54.3(b) uses the term “may,” not “must.” Thus, the Court incorrectly held it was required to dismiss the complaint when, in actuality, it was not.

Unaddressed Issues. If the judge failed to address certain arguments, show the court that you made those arguments by referring to any prior briefs or argument in the case. For example, assume a court granted a motion for summary judgment on the ground that the plaintiff could not state a claim for breach of contract but failed to address arguments that the plaintiff could recover under another theory (promissory estoppel or unjust enrichment). Your motion for reconsideration might include something like this:

The court found Plaintiff cannot recover for breach of contract and dismissed the complaint. But the Court failed to address Plaintiff’s other theories of recovery: promissory estoppel and unjust enrichment. Plaintiff’s complaint includes counts for promissory estoppel (Count 2) and unjust enrichment (Count 3). Further, in response to Defendant’s motion, Plaintiff also argued that it could proceed under those theories even if its breach of contract claim were dismissed. See Plaintiff’s Response to Defendant’s Motion to Dismiss pp. 6-9. In dismissing the complaint, the court failed to consider or address Plaintiff’s alternative theories of recovery.    

No matter the basis of your request, keep it as short as possible while saying what you need to say. As a Twitter friend reminded me recently, never forget BITSOW: Brevity is the soul of wit. (Shakespeare—Hamlet). You won’t score any points with the judge by filing a lengthy, tedious request for reconsideration. Make the points you need to make, then stop!   

Finally, never attack the judge. You shouldn’t feel timid is saying the judge “erred” or “misapplied the law” or “failed to address” an issue. Judges are humans—they make mistakes and most want to correct those mistakes. But calling the judge “uninformed” or “uneducated”  won’t win you any points.

Friday, December 5, 2014

Pregnant Pause?

This week the U.S. Supreme Court heard oral argument in Young v. UPS, a case that may hinge on a semicolon. The facts are short: when Young became pregnant, her employer, UPS, refused to accommodate her pregnancy-based physical restrictions (though UPS did accommodate "light-duty" requests from non-pregnant workers). She was placed on unpaid leave, returned after the birth of her child, and sued under the Pregnancy Discrimination Act, an amendment to the Civil Rights Act of 1964.

The PDA was intended to clarify that the Act's prohibition against discrimination "because of sex" or "on the basis of sex" includes discrimination based on pregnancy:

The terms 'because of sex' or 'on the basis of sex' include, but are not limited to, because of or on the basis of pregnancy, childbirth, or related medical conditions; and women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related other persons not so affected but similar in their ability or inability to work.

Under Young's interpretation, UPS violated the PDA by failing to treat Young, a woman "affected by pregnancy" (what an inartful phrase!) the same as "other persons no so affected but similar in their ability or inability to work."

According to UPS, in refusing to accommodate Young's light-duty request, it was not acting discriminatorily but merely being "pregnancy blind." During oral argument, several justices, including Kagan and Ginsberg, were skeptical of this argument, suggesting that UPS's interpretation would render the language after the semicolon in the PDA "superfluous." (Check out Dahlia Lithwick's article on oral argument here.)

What do you think?  Will UPS's argument carry the day, or will the Court deliver Young a victory?

Happy Friday!

Tuesday, December 2, 2014

Drafting Statements of Jurisdiction and Venue

Statements of jurisdiction and venue are important parts of complaints (especially in the United States district courts) and appellate briefs. Too many lawyers’ statements of jurisdiction look like this:

This court has jurisdiction over this matter and venue is appropriate in this court. 

That sentence tells the court nothing about whether jurisdiction and venue are proper—it contains no statute or case to support the contention and no facts that would enable the court to determine the truthfulness of the statement.

In the trial courts, the complaint should contain statutes or cases and facts that allow the court to determine whether it has jurisdiction and whether venue is proper. A good statement of jurisdiction and venue in a complaint should look something like this:

This Court has jurisdiction over this matter under 28 U.S.C. § 1332(a) because Plaintiff and Defendant are citizens of different states—Plaintiff is a resident of New York and Defendant is a resident of Delaware—and the amount in controversy exceeds $75,000, exclusive of interests and costs, because Plaintiff is seeking to recover $150,000 from Defendant.

Venue is proper in this Court under 28 U.S.C. § 1391(b) because the Defendant does business in New York, and its registered agent for service is located in New York City, New York, in the Southern District of New York.

In the appellate courts, every appellant’s brief must contain a statement of jurisdiction, and that statement should also include statutes or cases and facts that show the trial court had jurisdiction and the appellate court has jurisdiction to hear the appeal. The facts should include the date on which the order appealed was entered and the date the notice of appeal was filed to show the appeal was timely. An appellate statement of jurisdiction might look something like this:

The district court had jurisdiction over this matter under 28 U.S.C. § 1332(a) because Appellant and Appellee are citizens of different states and the amount in controversy exceeds the statutory minimum of $75,000, exclusive of interest and costs. On November 11, 2014, the district court granted Appellee’s motion for full summary judgment and entered judgment for Appellee. On November 24, 2014, Appellant timely filed its notice of appeal in the district court. Fed. R. App. P. 4(a)(1)(A) (civil appeals must be filed within 30 days after entry of the order appealed from).

This Court has jurisdiction over the appeal under 28 U.S.C. § 1291 because an order granting a party’s motion for summary judgment is an appealable final decision. See Catlin v. United States, 324 U.S. 229, 233 (1945) (For purposes of 28 U.S.C. § 1291, a final decision is one that “ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.”). 
Of course, the local rules may require additional information, so check them to ensure completeness.   

Statements of jurisdiction and venue are important. Make sure yours are thorough and accurate!