Opinions are Like....Well, You Know

Law students learn early about the differences between majority, concurring, and dissenting opinions. But those aren't the only types of opinions that lawyers see. As a law student and young lawyer, I was often confused about the less common types of opinions and what, if any, precedential value they have. Here's an explanation of some opinions you might see:

En banc opinions—An en banc opinion is one issued by all members of an appellate court, rather than a panel of judges. A litigant dissatisfied with a panel's opinion may petition for an en banc hearing. The petition for an en banc hearing may only be granted by a majority of judges. Occasionally, a court will decide at the outset that an en banc hearing is necessary because an issue is of such importance that it should be heard by the full court.  

Memorandum opinions—These opinions are unpublished but almost always unanimous. They generally are short and contain little explanation or analysis. Memorandum opinions are usually reserved for cases where the law is well-settled. They may be as short as a single sentence or two. Often memorandum opinions are unpublished and provide little, if any, precedential value given the lack of thorough explanation of the court's ruling.

Panel opinions—Panel opinions are the most common opinions and are issued by a panel of judges rather than a full court. For example, cases heard by the Court of Appeals of Georgia are heard by three-judge panels. Three-judge panels are common in many courts, including the United States Circuit Courts. Litigants dissatisfied with a panel opinion may petition for a hearing en banc. 

Per curiam opinions—Per Curiam opinions are perhaps the oddest of all opinions. Most are like memorandum opinions in that they are usually short with little explanation or analysis on well-settled areas of law. But per curiam opinions differ in that they are issued by the court as a whole rather than signed by a particular judge—thus, the author is unknown. Per curiam opinions are usually unanimous, but not always. For example, Bush v. Gore, 531 U.S. 98 (2000) was a per curiam opinion in which Chief Justice Rehnquist concurred and Justices Stevens, Souter, Ginsberg, and Breyer dissented. Some legal scholars have called for an end to per curiam opinions, arguing that they reduce judicial accountability and stunt the development of law.

Plurality opinions—Plurality opinions result when no single opinion receives majority support. The plurality opinion is the one that receives the most support, but not majority support. Plurality opinions are interesting in terms of their precedential value. If there’s no majority opinion, are they persuasive only? According to Marks v. United States, 430 U.S. 188 (1977), when the court is “fragmented” and “no single rationale explaining the result enjoys the assent of [a majority], the holding of the [c]ourt may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds.” Id. at 193. But what does that really mean? Obviously, the opinion should be read narrowly, but as with many areas of law, there are multiple schools of thought on how to apply the Marks rule.

Is That a Sausage in Your Pocket, or Are You Just Happy to See Me?

Justice Scalia's dissent in King v. Burwell is all the rage this week, but this opinion in United States v. Dixon from Judge Easterbrook of the Seventh Circuit

Judge Easterbrook

Court of Appeals is entertaining as well. Judge Easterbrook is an excellent writer, and his opinions are always full of interesting turns of phrase, uses of colloquialisms, and the like.

Dixon raises the question of whether a man who pointed an object that bank tellers thought was a gun should have been sentenced for bank robbery by intimidation (18 U.S.C. § 2213(a)) rather than for bank robbery by using a dangerous weapon or device (under § 2213(d)).

When he attempted to hold up a bank, the defendant "brandished an object with a long barrel" that turned out to be a butane lighter. He argued on appeal that regardless of whether the bank teller thought the object was a firearm, the lighter could not be a "dangerous weapon or device."

According to Judge Easterbrook:

The statutory question, however, is whether the bank robber used a “dangerous weapon or device” rather than whether a guard or teller mistook a harmless device for a weapon. That would be clear enough if Dixon had placed his hand in his pocket with his finger extended

to simulate the barrel of a pistol, or if he had used six inches of wooden dowel sawed from the end of a broomstick to simulate a hidden gun barrel. If the lighter risked gunfire, so might a finger in a pocket or a dowel in a pocket or a water pistol in a pocket or even a kielbasa in a pocket.

McLaughlin v. United States, 476 U.S. 16 (1986), gives three reasons why an unloaded handgun is a “dangerous weapon” under §2113(d): first, every firearm is potentially dangerous; second, it instills fear in those at which it is pointed; third, it can cause injury when used as a bludgeon. None of these things is true about a kielbasa. A hidden stiff object, plus a threat, may lead to fear, but fear differs from a “dangerous weapon or device”.

One decision stated that a toy looking to observers like a real gun might be a “dangerous weapon” because of its fear-inducing potential, see United States v. Hargrove, 201 F.3d 966, 968 n.2 (7th Cir. 2000), but we have never held this. We are skeptical; the statute requires a dangerous weapon or device rather than something a teller believes incorrectly to be dangerous (what if a teller was terrified of rabbits?); but we need not decide because Dixon did not wield a firearm look-alike.   

With the kielbasa reference, I think Judge Easterbrook could have added some fun puns and idioms:

-in robbing the bank, the defendant was seeking to bring home the bacon

-the State's position was cooked

-the defendant had a beef with the finding that the lighter is a dangerous weapon

-the meat of the matter was the sentencing issue

 

Happy Friday!

 

Prose, Pictures, and the Power of Storytelling in Brumfield v. Cain

Perhaps no issue stirs more passion in Americans than the death penalty. Death penalty cases strike the heart of our most fundamental values—the very essence of who we are as humans.

Even the justices of the Supreme Court aren’t immune to this passion, and that fact is evident in their death penalty opinions. I’ve talked before about the striking contrast between the storytelling in the majority and dissenting opinions in Atkins v. Virginia.    

Last week the Supreme Court issued an opinion in another death penalty case, Brumfield v. Cain. By their nature, all death penalty cases are “high profile,” but Brumfield is even more so because of the identity of the victim—Corporal Betty Smothers, the mother of NFL player Warrick Dunn.

Kevan Brumfield was tried and convicted of Corporal Smothers' murder and sentenced to death. Post-trial, Brumfield claimed he was ineligible for the death penalty under Atkins because of intellectual deficiencies. He alleged the trial court erred in failing to hold a hearing on his Atkins claim and to provide funds to help him further investigate that issue.

He filed a federal habeas claim, and the Court, in a 5-4 decision, held that Brumfield was entitled to have the district court consider his Atkins claim.

In his dissent, Justice Thomas beautifully intertwines the stories of Corporal Smothers, her son, and her killer to further his position that the trial court properly rejected Brumfield’s Atkins claim.

The Inclusion of Details

Details are key in storytelling. The majority’s explanation of the crime is two sentences long and contains only sparse details:

Petitioner Kevan Brumfield was sentenced to death for the 1993 murder of off-duty Baton Rouge police officer Betty Smothers. Brumfield, accompanied by another individual, shot and killed Officer Smothers while she was escorting the manager of a grocery store to the bank.

Justice Thomas’ explanation is full of rich detail that paints a picture for the reader of the crime and provides a glimpse into the very different lives of Corporal Smothers and her killer. Through Thomas’ dissent, we learn the following about Corporal Smothers:

-Corporal Smothers was a 14-year veteran of the Baton Rouge Police

Department who was working a second job to support her six children.

-On the day she was killed, Corporal Smothers had worked a 10-hour shift before going to her second job at a grocery store. 

-As was her nightly practice, Corporal Smothers drove the store manager to a bank after the store closed to make the nightly deposit. The manager exited the vehicle to deposit the night’s earnings, and Brumfield and his accomplice opened fire, hitting Smothers five times in the forearm, chest, and head. She was pronounced dead on arrival at the hospital.

Thomas' details about Brumfield show a very different life:

-Brumfield “had worked only three months in his adult life because…he found drug dealing a far more effective way to make money.” Brumfield had previously been involved in the fatal shooting of another drug dealer and, after Corporal Smothers’ murder, battered a police officer in prison.

-Corporal Smothers’ death occurred during a two-week crime spree during which Brumfield had armed robbed a man who he apparently intended to kill but the man was saved when the gun, which Brumfield had put to the man’s head, misfired.

-Several days later, Brumfield armed robbed a woman and her daughter. Brumfield ordered the woman to give him her purse, which she did, but she pleaded with Brumfield to allow her to retrieve pictures from her son’s funeral that she kept inside. He responded “Bitch, you dead,” and drove off.

The Juxtaposition of Dunn and Brumfield

Justice Thomas’ story begins:

This case is a study in contrasts. On the one hand, we have Kevan Brumfield, a man who murdered Louisiana police officer Betty Smothers and who has spent the last 20 years claiming that his actions were the product of circumstances beyond his control. On the

other hand, we have Warrick Dunn, the eldest son of Corporal Smothers, who responded to circumstances beyond his control by caring for his family, building a professional football career, and turning his success on the field into charitable work off the field.

Justice Thomas continues by using storytelling techniques to detail that extent of that contrast:

 

Photo by Bill Feig
www.theadvocate.com

[Brumfield] admitted that, after riding around at night looking for a “hustle,” he had come up with the idea to steal the grocery store’s deposit. He described how he and [his accomplice] hid in the bushes waiting for the car to arrive, and how, when Lee looked back while trying to make the deposit, he started shooting….He was facing sentences on unrelated charges and had promised his pregnant girlfriend that he would obtain money to support her, their baby, and her child from a previous relationship while he was in jail….Brumfield…told an acquaintance right after the murder that he had just killed “a son of a bitch….”

Brumfield’s argument that his actions were the product of his disadvantaged background is striking in light of the conduct of Corporal Smothers’ children following her murder. Though [her oldest son, Warrick Dunn] turned 18 just two days before Brumfield murdered his mother, he quickly stepped into the role of father figure to his younger siblings. In his view, it “was up to [him] to make sure that everybody grew up to be somebody….”

[Dunn] set records on the field while coping with the loss of his mother….After four years at Florida State, Dunn was drafted by the Tampa Bay Buccaneers. Concerned that some of his siblings were struggling in Baton Rouge, he moved the three youngest into his home in Tampa Bay. Although the strain of playing for the Buccaneers and raising his family weighed on him, he “accepted it as [his] responsibility to make sure they stayed on the right path.”

A Picture is Worth a Thousand Words

In an appendix, Justice Thomas includes this photo of Corporal Smothers, in uniform, published in Warrick Dunn’s book. The picture shows a beautiful young Betty Smothers resting her arm on the door of her patrol car. She is not smiling but looks happy, focused, and proud of her uniform. For the power of his storytelling, Justice Thomas’ inclusion of this picture tells a greater story than his words can and puts a face to the otherwise faceless victim.

The Powerful Closing

After a lengthy explanation of the background, purposes, and language of the Antiterrorism and Effective Death Penalty Act(AEDPA), Justice Thomas concludes by again employing his storytelling techniques to evoke emotion:

Over 20 years ago, Brumfield deprived the people of Baton Rouge of one of their police officers and six children of their mother....What is perhaps more disheartening than the majority’s disregard for both AEDPA and our precedents is its disregard for the human cost of its decision. It spares not a thought for the 20 years of judicial proceedings that its decision so casually extends. It spares no more than a sentence to describe the crime for which a Louisiana jury sentenced Brumfield to death. It barely spares the two words necessary to identify Brumfield’s victim, Betty Smothers, by name. She and her family—not to mention our legal system—deserve better.

I respectfully dissent.      

I hope we all agree—regardless of our beliefs about the death penalty—that Justice Thomas' storytelling is powerful.

Social Media Disclaimers--Maybe They Work After All?

Lawyers are, as a group, risk averse people. We are taught to minimize risk. But the explosion of social media use by lawyers have given rise to some interesting legal issues that make risk-averse lawyers nervous. For example:

1. Can a lawyer unintentionally create an attorney-client relationship by providing general information about the legal system on a blog or website?
2. To what extent do disclaimers such as, "The information provided herein is not legal advice. I am not your lawyer and no attorney-client relationship is created by your use of this website," protect lawyers from legal malpractice claims?
3. Can a lawyer's employer be found to adopt or endorse a lawyer's personal activities on social media websites?

I learned of an interesting case this week out of the 9th Circuit Court of Appeals, Naffe v. Frey, that addresses the last question. Naffe, a political activist, sued Frey for statements Frey made about Naffe on Frey's blog and on Twitter. Naffe's complaint included a Section 1983 claim based on the theory that Frey, a deputy district attorney, was acting under color of law in making the allegedly derogatory statements about Naffe.

The trial court granted Frey's motion to dismiss the Section 1983 claim and the 9th Circuit affirmed. Of interest to those on social media, the 9th Circuit appeared to endorse Frey's use of a disclaimer on both his blog and Twitter. The Court noted:

Although [Frey] frequently references his position as a Deputy District Attorney in his posts and Tweets, his blog contains the following message: "The statements made on this website reflect the personal opinions of the author. They are not made in any official capacity, and do not represent the opinions of the author's employer."

What do you think? Should this provide some comfort to lawyers and the employers of lawyers who use social media?

Does this ruling suggest the 9th Circuit would also find that language on social media platforms disclaiming an attorney-client relationship would protect lawyers from legal malpractice suits? 

Happy Friday! 

Developing Witness Outlines

Client and witness interviews have two general purposes—to help you learn information and to help you figure out what you don't know.

All lawyers should learn client and witness interviewing skills—things like how to build trust, how to ask non-leading questions, and how to obtain useful information. I can’t help you learn those skills. But I can help you learn to develop good interview outlines so you’ll come away from interviews with useful information.

Don’t Go in Unprepared—Draft an Outline   

   

Start preparing for each interview with this question: What do I need to know from this witness?

Begin by asking for background info (see below). Draft questions in some sort of logical order (chronological is usually best) but consider asking open-ended, non-leading questions initially. This decreases the likelihood that you’ll suggest a response to the witness.

We sometimes forget that many people hold lawyers in high esteem. A client or witness may try to “please” the lawyer by giving answers the person believes the lawyer wants to hear. If the open-ended questions don’t reveal the information you need, ask the more pointed questions you’ve included in your outline.

If you know what shape the case will or could take, make sure your outline includes questions that might lead to legally relevant information. You’ll need to be at least somewhat familiar with the relevant law to know what types of questions to ask. Learn the elements of civil claims or criminal acts and consider possible defenses. Then, outline questions that could lead you to information relevant to the claims, acts, or defenses.

Get Background Info

This tip seems a no-brainer, but many attorneys jump right in to interviews without getting essential background information about the person they’re interviewing. You might need to speak with the person again. You might need to subpoena the person.

So get some essential information, including the person’s full name, the person’s address, and how you can get in touch with the person in the future if you need to do so. Try to get a telephone number (at least one, at a minimum) and an email address.

Bring Documents and the Like With You

If you have contracts, emails, photos, videos, or other documents that you want to ask the witness about, bring copies of those documents with you. This can help you gain an accurate understanding of the person’s knowledge and potential testimony.

Bring copies, not originals, so the witness can mark on the copies, if necessary. You might also want to bring paper and ask the witness to draw, for example, a crime or accident scene if doing so would assist you in understanding what the witness saw or did not see.

Take Good Notes & Include Precise Words

Your interview won’t do you any good if you don’t take good notes. You may later be able to recall the gist of the person’s statements to you, but you likely won’t remember specifics. And anyone who practices law knows the devil is in the details. Good lawyers take copious notes during interviews.

Include precise statements in those notes that can be used later to support their client's claims or defenses. I was once involved in a very serious car accident case involving numerous vehicles. A major question in the litigation was which car caused the accident.

At an initial interview, a witness told me that one driver was “driving like a madman” just prior to the accident.

That statement came up again and again in the case. The witness was asked about it at his deposition and the statement was included in an affidavit he provided. The precise language, “driving like a madman,” was critical. Had I not written it down, the case might have dragged on for much longer or the parties might have been unable to reach a settlement.

Follow Up, If Necessary

Sometimes you’ll learn that a client or witness has documents or information that must be retrieved to answer your question or that the person can provide contact information for other people with knowledge of the situation at hand.

If the witness agrees to provide additional information to you, don’t forget to follow up via phone call, email, or letter. Thank the person for speaking with you and ask that they provide the requested information.

Make providing that information easy for the witness. Offer to pay any shipping costs or send a courier to retrieve documents. Agree to meet the witness at a place of the witness’s choosing to obtain what you need. You’re much more likely to get the information you want if you do the hard work.

Lovely Littera

On my recent trip to the Baltics, I stopped by the beautiful Littera Bookstore on the campus of Vilnius University (Lithuania). The Michelangelo-esque murals on the ceilings, painted in 1978, feature professors and students engaged in activities of higher learning.

This lovely little bookstore was a treat to visit! Happy Friday!

I've Got a Blank Space, Baby

Publishers offer form pleading books in many jurisdictions and a good number of courts and legal aid societies across the country have made form pleadings available for download on their websites. 

Forms pleadings are wonderful when you have no idea where to start. They can help you figure out how to structure the pleading and tell you the type of information that needs to be included. They are particularly good for young lawyers, lawyers developing new practice areas, and those newly admitted to unfamiliar jurisdictions.

But beware the pitfalls! Good practices when using form pleadings include:

Make sure your forms are up to date.

Forms change from time to time to reflect changes to the law. Make sure your forms are up to date. Spend the money every few years to update your forms book or electronic database subscription. If you’re trying to develop a new practice area, go to CLEs and take advantage of the forms that are often provided either in hard copy or electronically. Those forms are generally the most up to date and prepared by a lawyer or lawyers with at least some area of expertise in that area of practice.  

Check statutes and case law against forms.

You may be using a dated form that hasn’t been modified to comply with a new statute or recent case law. For example, in Georgia, lawyers are not to include full birth dates in public filings. New forms reflect this change, but old ones do not. This doesn’t seem like a big deal, but suppose a client sues you after her identity was stolen through a public filing that included her name, full date of birth, and address.

Similarly, forms may not reflect additional required filings, such as an attorney affidavit that must be filed with a motion for default. Your form book won’t necessarily tell you this, so you must check the appropriate statutes or consult a treatise to ensure you’ve done all that’s required.  

And check local rules.

Some courts and judges have local rules that can alter the information that must be included in or removed from pleadings. Even if you’ve practiced in a particular court or jurisdiction before, double check to see if your form needs to be changed to comply with local rules or if that court has an alternative form pleading the court requires or prefers.   

Don’t mindlessly follow the form. Amend if appropriate.

Think critically about whether all components of a form are applicable to your circumstance and amend the form if appropriate. Consider divorce forms, for example. Don’t include form language asking the court to divide the parties’ marital assets if they’ve already reached a settlement agreement that does so. Don’t use a form for a divorce with children if your client and his soon-to-be ex are childless. Will errors like these kill your client’s case? Probably not, but they’re embarrassing and can be confusing for the court and opposing party. Take a couple of minutes to think about what form language is—and isn’t—applicable.        

   

Update: Sock it to Him?

In this prior post, I discussed the interesting issues in Mellouli v. Lynch, where the defendant was deported, essentially, for possessing drug paraphernalia in the form of a sock. Earlier this week, the Supreme Court issued a 7-2 opinion in Mellouli's favor.

Writing for the motley majority of Justices Ginsburg, Roberts, Scalia, Kennedy, Breyer, Sotomayor, and Kagan, Justice Ginsburg noted that under federal law, Mellouli's concealment of Adderall in his sock would not have been a drug-paraphernalia offense.

As I predicted, the majority held that the government needed to, but did not prove that Mellouli's conviction related to a “controlled substance” as that term is defined in 21 U.S.C. § 802. Proving that the conviction related to a “controlled substance” as that term is defined by state law was insufficient to authorize Mellouli’s deportation.  

You can find the opinion here.

Happy Friday!

 

More On Petitioners' Briefs in Obergefell

*This is the last in a multi-post series on the parties' briefs in Obergefell v. Hodges, the consolidated same-sex marriage case. The first three posts are available here, here, and here.

Using Windsor  

Edith Windsor leaving oral arguments in United States v. Windsor
Photo by Chip Somodevilla/Getty Images

As you may recall, Petitioners relied heavily on Windsor in arguing that the States’ recognition bans are just like DOMA. Respondents rely heavily on Windsor as well, but argue that Windsor actually advances the States’ position.

In its Obergefell brief, Ohio makes the argument this way:

The Court’s intervention here would undermine Ohioans’ liberty to decide this issue, just as Windsor said that DOMA had limited New Yorkers’ liberty to do so.

According to Kentucky:

Windsor instructs that if a state exercises its independent sovereign authority to offer same-sex marriages, then Congress lacks authority to strip the benefit from the citizens who had been conferred that benefit. Windsor does not compel all states, however, to provide that benefit or to recognize same-sex marriages authorized in other states. Instead, Windsor confirms that these decisions should be made on the local level…

Defining the Right

Petitioners’define the fundamental right at issue as the “right to marry.” The Court has previously recognized the “right to marry” as a fundamental right, so this definition supports the argument that the State bans violate their fundamental rights.

 

 

Respondents, expectedly, define the right much more narrowly: the “right to same-sex marriage.” Defining this right more narrowly advances Respondents’ interest:

Same-sex marriage is not a fundamental right because same-sex marriage is not objectively, deeply rooted in this Nation’s history and tradition and implicit in the concept of ordered liberty, such that neither liberty nor justice would exist if they were sacrificed. (Bourke)

 

Short, Crisp Sentences

Respondents recognize the power of short, pointed sentences to break up their paragraphs and add interest and emphasis. Take, for example, Ohio’s brief in Obergefell:

-Over time…some have proposed constitutional amendments on the ground that modern social life is such that there is today a need for vesting national authority over marriage and divorce in Congress. None succeeded…

-In other words, what Windsor described as the federal government’s novel interference with traditional state power played the central role in its ultimate conclusion that DOMA was motivated by animus in violation of the Fifth Amendment. This was nothing new. The Court often interprets constitutional provisions in a manner designed to preserve federalism and state power.

-The legislature undoubtedly has the power to enact what marriages shall be void, notwithstanding their validity in the state where celebrated. This exception has been applied in varied circumstances from marriages between relatives, to common-law marriages, to marriages by those lacking legal capacity. Ohio exhibits that tradition.

Interesting Words and Turns of Phrase   

Like short, crisp sentences, choice words and phrases add interest to otherwise dense sentences and arguments.

-But when petitioners and their amici urge this Court to conclude that the laws of States allowing same-sex marriage must prevail in every State, they threaten the federal design. (Tanco)

-A fundamental right is a right against government, not a right to government. (Hodges)

-Further, the rational basis test is not without teeth, nor is it a license to rubber stamp discrimination. (Bourke)



Photo by Aaron Escobar

-Jettisoning the “deep roots” requirement would transform the due-process doctrine into a quagmire with adverse consequences, predictable and unpredictable. (DeBoer)

Like many others, I’m eagerly awaiting the decision, which will be issued later this month!