In briefs, emotional language loses.

Some political scientists recently published a study on the use of emotional language in briefs filed in the U.S. Supreme Court. After controlling for a variety of factors, they concluded that overtly emotional language correlates to losing the case. Here’s an excerpt from the abstract:

We argue emotional language conveys a lack of credibility to justices and thereby diminishes the party’s likelihood of garnering justices’ votes. The data concur.... [W]e find that parties who employ les emotional language in their briefs aree more likely to win a justice’s vote, a result that holds even after controlling for other features correlated with success, such as case quality. These findings suggest advocates seeking to influence judges can enhance their credibility and attract justice’s votes by employing measured, objective language.

Ryan C. Black, Matthew E.K. Hall, Ryan J. Owens, and Eve M. Ringsmuth, The Role of Emotional Language in Briefs Before the U.S. Supreme Court (December 15, 2015). To read the abstract and to download the study supporting the authors’ conclusions, following one of these links at SSRN: or

How not to comply with word-limit rules

Most appellate courts have rules limiting the number of pages or words in a brief. When a brief is a bit too long, lawyer-editors have a number of techniques for making the brief fit the applicable limit. Some are good. Others are not so good.

An example of the latter comes from the Federal Circuit’s decision last spring in Pi-Net International, Inc. v. JPMorgan Chase & Co., No. 2014-1495 (Fed. Cir. Apr. 20, 2015), cert. denied sub nom. Arunachalam v. JPMorgan Chase & Co., No. 15-691, — U.S. — (Jan. 11, 2015)  (PDF copy here). There, the appellants decided to squeeze their brief under the 14,000-word limit by removing the spaces between words. For example, instead of providing this citation:

Thorner v. Sony Computer Entm’t Am., LLC, 669 F.3d 1362, 1365 (Fed. Cir. 2012) [14 words]

they provided this one instead:

Thorner.v.SonyComputerEntm'tAm.LLC,669F.3d1362,1365(Fed.Cir.2012) [1 word].

The trick didn’t work. The Federal Circuit struck their brief and dismissed their appeal. And last Monday, the Supreme Court denied certiorari.

For legitimate methods to squeeze a brief under a page or word limit, read this post by Mark Herrmann.

First Circuit to amicus: “You’re not my friend.”

A couple of days before Christmas, the Louisiana First Circuit gave a lesson in what not to do when seeking to file an amicus curiae brief. In Barfield v. Bolotte, 2015-0847 (La. App. 1 Cir. 12/23/15), the First Circuit denied a would-be amicus’s motion for leave to file a brief. Here is the money quote:

While our review of the motion reveals the law firm’s clients have an obvious interest in the outcome of this case, we find that the law firm’s motion does not meet the basic requirement of stating specific reasons why the amicus curiae brief would be helpful to or aid this court in deciding the instant appeal. Instead, the law firm offers general “experience as a friend of the court” without any indication regarding their aid or any suggestion that current counsel and the parties represented in the instant lawsuit will somehow not sufficiently present all relevant legal arguments on appeal. We also note that the law firm’s amicus curiae brief raises issues and theories of law that were not considered by the BTA or district court and have not been raised by the parties involved in this appeal. The law is well settled that issues not raised by the parties cannot be raised by amicus curiae on appeal. [Case citations omitted.] Thus, we deny the law firm’s motion for leave to file an amicus curiae brief.

Mark your calendars

If you plan to apply to the Louisiana Board of Legal Specialization in 2016 for certification as an appellate specialist, one of the things you’ll need is 18 hours of CLE in 2016 in the area of appellate practice. A likely place to pick up some of those hours will be the Appellate Summit put on by the ABA’s Appellate Judges Educational Institute and Council of Appellate Lawyers. According to an e-mail I received today, the 2016 Summit will be held in Philadelphia (presumably PA, not MS) on November 10–13. If you’re interested in attending this seminar and are the type who likes to plan ahead, block out the dates now.

And if you can’t wait 11 months to scratch your appellate-CLE itch, then register for the DRI Appellate Seminar, to be held in Scottsdale, AZ on February 10–12. For details on that seminar, read this blog post.

Hallowed ground

The John Minor Wisdom Courthouse, home of the U.S. Fifth Circuit, is a cathedral. Anyone who has ever been inside of it has been awed. Any lawyer who has stood at the lectern in one of its three courtrooms has been humbled.

Today, many people probably don’t know the history made in that building. To state the case briefly: The Supreme Court in Washington, DC, decided Brown v. Board of Education, which made “separate but equal” unconstitutional. The judges in the Fifth Circuit made that decision a reality in the deep south. Today, the Fifth Circuit includes Louisiana, Mississippi, and Texas. In those days, it also included Florida, Alabama, and Georgia. The judges were all white males. The leading figure was John Minor Wisdom, a Republican appointed by Ike Eisenhower.

Today, the courthouse is named after John Minor Wisdom. And yesterday, the courthouse was designated a National Historic Landmark. Every lawyer who ever argued a case in that building knows that she or he was on hallowed ground. Now it’s official.

Hard lesson in appellate jurisdiction

Today, I came across the Louisiana Third Circuit’s recent decision in Babineaux v. University Medical Center, 15-292 (La. App. 3 Cir. 11/4/15), in which the court dismissed the appeal because the appellant appealed the wrong judgment.

The sequence of events was not uncommon. The district court granted a defendant’s motion for summary judgment. The plaintiff filed a timely motion for new trial, arguing that his counsel did not receive notice of the summary-judgment hearing and that he had new evidence to offer in opposition to the motion. The trial court denied the motion for new trial. The clerk of court mailed notice of the denial of new trial on September 29, 2014. Thirty-two days later (October 31), the appellant filed a motion for devolutive appeal. The problem: the appellant attempted to appeal the denial of new trial, not the earlier summary judgment. And in his brief, the only errors the appellant raised bore on the denial of new trial, not the earlier summary judgment. The Third Circuit dismissed the appeal for the following reasons:

  1. The judgment appealed from (denial of new trial) was an interlocutory judgment, not a final judgment; hence no appeal could be taken from that judgment. The court noted that, had the appellant taken an unrestricted appeal from the final judgment (the one granting summary judgment), the appellant would have been entitled to seek review of all adverse interlocutory judgments.
  2. The Third Circuit determined that it could not treat the appeal from the denial of new trial as an attempted appeal from the final judgment (as Louisiana courts sometimes do), because none of the errors raised in the appellant’s brief dealt with the underlying summary judgment. Rather, the only errors raised in the brief concerned the denial of new trial.
  3. The Third Circuit could not entertain the appeal under its supervisory jurisdiction, because the motion for devolutive appeal was filed more than 30 days after notice of the judgment denying new trial; hence it could not be treated as a timely notice of intent to seek a supervisory writ. See Unif. R. 4-3.

Issue preclusion in successive appeals

Here is an interesting decision out of the U.S. Fifth Circuit concerning issue preclusion in successive appeals in the same case: Art Midwest, Inc. v. Clapper, No. 14-10973 (5th Cir. Nov. 9, 2015). The bottom line: an issue not argued in the first appeal was waived in the second.

In earlier proceedings, the district court rendered a judgment that (among other things) awarded 19% prejudgment interest on an award of damages. In the first appeal, the appellants argued that the district court miscalculated damages by double-counting. The Fifth Circuit remanded the case to the district court for recalculation of damages. On remand, the appellants argued that the award of 19% prejudgment interest was inappropriate. The district court refused to consider the argument, holding that it was foreclosed by the Fifth Circuit’s prior judgment. Appellants again appealed, this time arguing that the 19% interest rate was erroneous. But the Fifth Circuit held that the appellants waived the argument by failing to raise it in the first appeal.