Appellate CLE for those seeking La. appellate certification

If you plan to apply this year to the Louisiana Board of Legal Specialization for certification in appellate law, listen up. One thing you’ll need is 18 hours of appellate CLE. And one place to get a good chunk of those hours (11.75 by my count) is the upcoming DRI Appellate Advocacy Seminar. The seminar will be held February 10–12, 2016 in Scottsdale, Arizona. There’s still time to get the early-registration discount—the cutoff for that is January 26. For information about registration and the program, follow this link.


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: http://ssrn.com/abstract=2703875 or http://dx.doi.org/10.2139/ssrn.2703875.


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.