"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!

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.     

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!

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.  

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!

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.

“Nonpublication Must Not be a Convenient Means to Prevent Review.”

The inspiration for Tuesday's post came from this article in the New York Times about the plethora of unpublished opinions issued by the federal courts. According to the article, 88% of opinions issued by the federal appeals courts are unpublished. Some have suggested courts may intentionally choose not to publish opinions that otherwise meet the standards for publication for the purpose of avoiding Supreme Court review.

The article specifically addresses an opinion issued last year by the Fourth Circuit Court of Appeals, described as "judicially craft[ed], closely reasoned, and carefully written." The Fourth Circuit's Local Rule 36(a) calls for publication of opinions that meet at least one of the following criteria:
 

1. establishes, alters, modifies, clarifies, or explains a rule of law within this Circuit; or

2. involves a legal issue of continuing public interest; or

3. criticizes existing law; or

4. contains a historical review of a legal rule that is not duplicative; or

5. resolves a conflict between panels of the Court, or creates a conflict with...another circuit     

 

The opinion at issue met several of the criteria, yet wasn't published. The Supreme Court declined to grant cert, presumably because the opinion was unpublished and, therefore, not technically binding precedent in the Fourth Circuit.

 

This is an interesting issue but one, I sense, that is limited to only a few jurisdictions. And the judges interviewed for the article, including Judge Kozinski of the Ninth Circuit, make good points about why certain opinions aren't published.

 

What do you think? Should the courts of appeals publish opinions in cases they know or expect will be the subject of cert petitions?  Do courts act in bad faith in failing to do so?

 

Happy Friday!

Should I Cite Unpublished Opinions?

Lawyers often struggle to decide whether to cite unpublished opinions. With Lexis, Westlaw, and other online resources, these opinions are widely available in a way they weren’t formerly. Some jurisdictions, including California, prohibit citing unpublished opinions. But even in California courts, parties can cite unpublished opinions from jurisdictions that permit citation to those opinions. See Harris v. Investor's Business Daily, Inc., 138 Cal. App. 4th 28, 34 (2006). Each jurisdiction’s rules are different, and as with all posts made here, you must always check the relevant rules to ensure compliance.

Even though unpublished opinions aren’t binding (except, apparently, in Ohio), they can add great value to a brief and are particularly persuasive in a number of situations.

First, you should seriously consider citing an unpublished opinion if the facts of the case in the unpublished opinion are spot-on and you’re advocating for the same result.

Second, you’ll likely want to cite a relevant unpublished opinion that was written by the judge (or panel) hearing your case.

Third, a relevant unpublished opinion written by a judge with the same judicial philosophy as the judge hearing your case may also be persuasive.

Fourth, you probably will wish to cite an unpublished opinion if it is the only relevant authority in the jurisdiction that addresses the question of law at issue in your case.

These aren’t hard and fast rules, and each case is different. But unpublished opinions can be persuasive and give the judge some legal authority to support ruling in your client’s favor.