As mentioned at the seminar, the Uniform Rule of Louisiana Courts of Appeal are being amended effective January 1, 2014. Among the amendments are substantial revisions to the rules governing briefs. To download a copy of the amendments,
We talked a bit about typography. For those interested in making their briefs and other legal writing easier to read, the U.S. Seventh Circuit offers two free guides: its own Requirements and Suggestions for Typography in Briefs and Other Papers, and Ruth Anne Robbins’s Painting With Print. Both are must-reads for lawyers who understand that they are professional writers and publishers. In applying the information in these resources, however, be careful when writing for Louisiana courts of appeal. They have a specific rule on allowable fonts for briefs. See Uniform Rule 2-12.2.2 (current) and Uniform Rule 2-12.2(D)(2) (effective 1/1/2014).
Finally, here are two entertaining and informative articles about appellate practice by Chief Judge Alex Kozinski, U.S. Ninth Circuit:
In Praise of Moot Court—Not!, in which Judge Kozinski explains the differences between law-school moot-court programs and real-world appellate practice, and offers suggestions for making the former more closely resemble the latter.
The biggest changes are in the form and content of briefs. The page count is increased from 28 to 31 legal-size pages for original briefs (but still 13 legal-size pages for the reply brief). The reason for the increase is that all content of the brief will count against the page limit, except for the table of contents and table of authorities. Thus, the jurisdictional statement, assignments of error, and issues presented for review will now count against the page limit.
Under amended Rule 2-12.4, the content of briefs will become more similar to the content of U.S. Fifth Circuit briefs. The amended rule lists the elements of the brief and requires that they appear in the order indicated in the rule. Among the other changes are the following:
A table of authorities will be mandatory. It must include references to the pages in the brief where the authorities are cited.
The jurisdictional statement in the appellant’s brief must set forth specific facts and law establishing appellate jurisdiction. It must establish that the judgment appealed from is an appealable judgment, and it must establish that the appeal was timely. (I’ve covered the topic of jurisdictional statements in a prior blog post.)
A summary of the argument will be mandatory.
Each assignment of error and issue for review must have a corresponding statement of the standard of review. This statement may be included in the argument on that issue or may appear under a separate heading.
Another change concerns service of briefs and other papers. Service may be made under any means authorized by La. Code Civ. P. art. 1313. Article 1313(A)(4) authorizes electronic service. So come January 1, we can start serving our appellate briefs and motions by e-mail.
Amended Rule 2-11.4 clarifies the manner of requesting oral argument. The short version: You can’t do it in your brief. You have to do it by a separately filed piece of paper: either a motion for oral argument or a letter to the clerk of court requesting oral argument.
Finally, if you do administrative appeals, you’ll want to check out the amendments to Rules 3-1.1 and 3-1.2.
Here’s an interesting tip I picked up at the recent U.S. Fifth Circuit seminar, courtesy of Judge Priscilla Owen: If you or your client cannot afford the cost of travel for oral argument, say so in the brief, in the statement regarding oral argument. The judges will consider those statements when deciding whether to docket the case for oral argument.
With our eNotification service, you will receive instant notification of filings via email rather than through the mail. In addition, detailed information regarding your cases is available online through our portal.
Although I can’t tell you yet how well the Louisiana Fifth Circuit's system works, in my experience, the electronic-notice systems at the Louisiana First and Fourth Circuits work well, providing same-day notice of any action taken by the court in my cases. To read about and register for the Louisiana Fifth Circuit’s system, click here.
These past two days, I’ve been attending the annual Appellate Advocacy Seminar put on by the Bar Association of the Fifth Federal Circuit. The entire seminar was great, but perhaps the most valuable information came from the clerk of court, Lyle Cayce. Mr. Cayce revealed that most of the judges read brief on iPads. But before the briefs are downloaded to the iPad, they are run through a program that automatically turns all the legal citations into hyperlinks, linking to either Lexis or Westlaw. So whenever the judge comes across a legal citation, the judge can click on the link and can instantly see the cited authority.
There’s more. The district courts in the Fifth Circuit are moving toward electronic records on appeal. Fifth Circuit Rule 28.2.2 is going to be amended to require a uniform method of citing the record: “ROA.[page number].” Why? Because someone has developed a program that can convert all properly formatted record citations into hyperlinks, which will link to the cited page of the electronic record. The program will recognize “ROA.[page number]” as a record citation and automatically create the hyperlink.
Mr. Cayce hopes to make the hyperlinked versions of the briefs available on PACER. But meanwhile, the information he provided is going to change the way I write U.S. Fifth Circuit briefs.
Here is the change: Before today, I used footnotes for some legal citations and all record citations. From now on, all the important citations, including record citations, are going to be in main text, not in footnotes. From a typographic standpoint, this may be aesthetically unpleasing. But from a reader-friendly standpoint, it is the way to go when you realize that all those citations are going to be hyperlinks. To make the on-screen reader’s job easier, you want that hyperlink to be located as close as possible to the associated text. You don’t want to make your reader do the extra work of scrolling down the page to find the hyperlink.
In raising issues for appeal, losers in a trial can go hunting for relief with a rifle or a shotgun, and the rifle is better; the shotgun approach may hit the target with something but it runs the risk of obscuring significant issues by dilution. U.S. v. Stokes, 2013 WL 3948949 (7th Cir. Aug. 1, 2013)
Like any lawyer, my office at work has bookshelves full of books. But there are a few books that I refer to so often that I keep them literally within arm’s reach of my desk chair. Why? Because when in doubt, I always look it up. Also, when I have a difference of opinion with a colleague over matters of form or usage, I have an authoritative source handy to resolve it.
I don’t necessarily have the latest edition of some of these references. If a new edition is truly an improvement over the prior edition, I’ll invest in it. But in general, I figure that the important rules don’t change every other year. So I am happy to be a cheapskate and rely on the prior edition as long as it still works. Anyway, here they are. From left to right:
Two citation manuals: The Bluebook (17th ed.) and the ALWD Citation Manual. I use ALWD primarily because I find it better suited for practitioners, and because, where it departs from the Bluebook, I find its rules more sensible. Nevertheless, I keep the Bluebook handy for when I need to cite something so obscure and esoteric that it’s not covered by ALWD.
The Redbook, by Bryan A. Garner. The Redbook is not a citation manual; it is a style manual. Most of its comment reflects generally accepted rules and preferences; on a few points it reflects Garner’s preferences. But Garner is a good judge of these things. And it’s good to have and to follow some style manual, if only for consistency’s sake.
The Chicago Manual of Style (15 ed.). The CMS covers things that Garner doesn’t. It’s written for journalists, but it works well for anyone doing expository writing.
Black's Law Dictionary. Every law student needs one. Every practicing lawyer needs one. Enough said.
Garner's Modern American Usage. If there is another usage dictionary out there for writers of American English, I don’t know of it. Garner’s is thorough, good, and reliable.
Garner's Dictionary of Legal Usage. Admittedly, this book overlaps with Garner’s Modern American Usage. But it hits some areas, peculiar to legal writing, that the other doesn’t.
The dictionary on the end. This book was a freebie in my law firm’s supply room. So I picked up a copy and put it with the other handy references. My firm has a subscription to the on-line Oxford English Dictionary, so if I need the most serious English dictionary on the planet, I have it on my computer. But often, I just want to look up a spelling, or I just want to confirm that my idea of what a word means is what everyone else thinks it means. For those purposes, this is a serviceable dictionary. (At home, I have Merriam Webster’s Collegiate Dictionary and The New Oxford American Dictionary.)
What I don’t have in my office, but probably should, is a handy grammar reference. I like A Grammar Book for You and I ... Oops, Me!, by Ed Good, but that is more a book to read cover-to-cover and learn from than to pull off the shelf when you need to look up something in 30 seconds. So if anyone knows of a solid, user-friendly grammar reference book, please leave a comment or send me an e-mail.
p.s. Spock and the tribble are lousy bookends. But they do frame the real bookends nicely.
It’s never a good idea to belittle your opponent or your opponent’s argument. If you do, you might find yourself on the receiving end of an opinion like this, issued today by the U.S. Sixth Circuit:
There are good reasons not to call an opponent’s
argument “ridiculous,” which is what State Farm calls Barbara Bennett’s principal
argument here. The reasons include civility; the near-certainty that overstatement will
only push the reader away (especially when, as here, the hyperbole begins on page one
of the brief); and that, even where the record supports an extreme modifier, “the better
practice is usually to lay out the facts and let the court reach its own conclusions.” .... But herethe biggest reason is more simple: the argument that State Farm derides as ridiculous
is instead correct.