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December 2012

November 2012

An unusual tip for oral argument

Actually not so much of a tip as a confession. The process of oral argument is not so bad (I love the give-and-take with the panel), but the prospect of oral argument causes me tons of anxiety. So the last two oral arguments I’ve had, I resorted to my ace in the hole: lorazepam. I happen to have a prescription of this medicine for sleep. And some time ago, my doctor suggested that it would be okay to take one now and then if I was especially anxious. So for my last two oral arguments, I took a 0.5 mg. dose about an hour before the argument. And it seemed to be effective. Both times, I walked up to the lectern calm, relaxed, and confident.

I am not suggesting that anyone follow my example. I am just saying that this works for me. I will also say that my living with the record for extended time periods had much more to do with whatever success I had than a little bit of medicine before the argument. I’m just saying that, for me, when the buildup to the big moment causes severe jitters, this little bit of medicine calms the jitters and helps me say what I’ve spent days or weeks (or longer) preparing to say.

I am also saying that whatever you read from this blog from here on out will come from the same source. While I may cite an authority or two, I am not here to just pass on stuff that I read somewhere else. I am here to tell you what I do and why I do it.


The (not so) secret to successful appellate practice

So you want to be a good appellate lawyer? Here is 90% of what you have to do:

  • Read the record.
  • Study the record.
  • Master the record.

There is no shortcut. If you write a brief or deliver oral argument without knowing the record, you are wasting the court’s time and your client’s money.

Don’t take my word for it. Listen to Judge Alex Kozinski:

Arguing about the law in the abstract is interesting and fun, but what wins cases is the lawyer’s ability to marshal the facts littered over an extensive trial court record in a way that’s consistent with favorable controlling authority. It is true that there are some cases where the facts are clear or stipulated, and the law is the only issue. But these are the rare exceptions. In real-life appellate advocacy, the record plays a key role, and a lawyer’s mastery of the record—or lack thereof—often makes the difference between winning and losing.

So if you are handling an appeal, the first and most important thing you need to do is get your mitts on the record. In Louisiana appellate courts, all it usually takes is a phone call to your friendly clerk of court. Once you have the record, make a copy for yourself. (You will need your own copy later—trust me.) And plan on spending the majority of your time poring over the record. And plan on spending the majority of your time learning the record.


Appellate CLE in Lafayette, La. on Nov. 29

The Lafayette Bar Association has an appellate CLE program scheduled for November 29, 2012 in Lafayette. The presenters include several Louisiana appellate judges from the Third and Fourth Circuits and the clerks of the First, Third, and Fourth Circuits. If you attend, you’ll get five hours of CLE credit (including one hour each of ethics and professionalism). Afterwards, you’ll be treated to a beaujolais noveau wine party courtesy of The Perret Group, L.L.C.

The PDF flyer advises you to pre-register by November 26. To get more information about the lineup and to register online, click here.


An argument for a constitutional right to appeal

Believe it or not, the U.S. Constitution does not guarantee the right to appeal. Fortunately in most cases, appeal is available as a matter of federal statutory law or state law. But since this right is not constitutionally guaranteed, you may want to file this article away for future reference: The Right to Appeal, by Prof. Cassandra Burke Robertson. Here is the abstract:

It is time for the Supreme Court to explicitly recognize a constitutional right to appeal. Over the last century, both the federal and state judicial systems have increasingly relied on appellate remedies to protect essential rights. In spite of the modern importance of such remedies, however, the Supreme Court has repeatedly declined to recognize a due-process right to appeal in either civil or criminal cases. Instead, it has repeated nineteenth-century dicta denying the right of appeal, and it has declined petitions for certiorari in both civil and criminal cases seeking to persuade the Court to reconsider that position.

In this article, I argue that a right to appeal protects both private litigants and the justice system as a whole. First, doctrinal consistency necessitates the explicit recognition of a constitutional right to appeal — a right that the Supreme Court’s criminal and punitive-damages doctrines have already implicitly recognized. Second, the modern procedural system has developed in a way that relies on appellate remedies as part of fundamental due process. Traditional procedural safeguards — such as the jury trial and the executive clemency process — may once have sufficiently protected due process rights. In the modern era, however, these procedures have diminished at the same time that reliance on appeals has grown; as a result, if appellate remedies are removed from the procedural framework, the system as a whole cannot provide adequate due-process protection. Finally, recognizing constitutional protection for appellate rights would also express a normative view, promoting the values of institutional legitimacy, respect for individual dignity, predictability, and accuracy. Appellate procedure has earned a place in our contemporary understanding of due process; it is time to recognize its role as a fundamental element of fair judicial practice.