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March 2015

February 2015

Update on yesterday’s how-not-to-write post: The lawyer’s response to the show-cause order

Fair is fair. Yesterday I criticized a petition for certiorari, filed in the U.S. Supreme Court, as being incomprehensible. It’s only fair to present the filing lawyer’s side of the story. So here is his response to the Court’s show-cause order, with some redactions (presumably to protect intellectual property). Hat tip to Lyle Denniston at the SCOTUS Blog for this.

Long story short: the client “insisted on articulating his basic argument ... in his own words ... right down to the client’s favored locutions and acronyms.” The resulting work product is “written in an unorthodox style and can be difficult to follow at times ....”  Yep.

What do you think? Is this sanctionable conduct? Or is having the petition denied by the Court or rejected by the clerk punishment enough?


Update (23 Mar. 2015): A happy ending for the lawyer who filed this petition: the Supreme Court has discharged its show-cause order against him, with a reminder that lawyers “are responsible—as Officers of the Court—for compliance with the requirement of Supreme Court Rule 14.3 that petitions for certiorari be stated ‘in plain terms,’ and may not delegate that responsibility to the client.”

Standards for reassignment to a different judge on remand

In U.S. ex rel. Little v. Shell Exploration & Production Co., 14-20156 (5th Cir. Feb. 23, 2015) (unpublished), the Fifth Circuit not only reversed a summary judgment, but also ordered that, on remand, the case be reassigned to a different district judge. Why? Here is the sequence of events in a nutshell:

  1. The district court rendered summary judgment in defendants’ favor.
  2. On appeal, the Fifth Circuit reversed, holding that the district court applied the wrong legal standard. The Fifth Circuit remanded with instructions for the district court to apply the correct legal standard.
  3. A year later, the district court again rendered summary judgment in defendants’ favor, apparently applying the same legal standard that the Fifth Circuit had rejected. The Fifth Circuit concluded that, in rendering this judgment, the district court disregarded the Fifth Circuit's instructions on remand.

Starting at page 25, the decision includes a survey of caselaw enunciating various standards applied by circuit courts in deciding whether to reassign a case to a different judge on remand. So this decision is worth tucking away for future reference in case you ever find yourself in need of similar relief.

Huh? (Another lesson in how not to write a brief.)

Here is another lesson in how not to write. A couple of months ago, the U.S. Supreme Court not only denied a petition for certiorari; the Court ordered the lawyer who filed the petition to show cause “why he should not be sanctioned for his conduct as a member of the Bar.” This story has been covered by the WSJ Blog and by Josh Blackman’s blog.

So what got the lawyer in trouble? The Court hasn’t said. So I did a little research and located a copy of the petition. And Lord!, I don’t have a clue what he’s talking about. Here, for example, are the questions presented:

“Does the US Constitution, in legal decisions based on 35 USC §§ 101/102/103/112,

  • require instantly avoiding the inevitable legal errors in construing incomplete and vague classical claim constructions – especially for “emerging technology claim(ed invention)s, ET CIs” – by construing for them the complete/concise refined claim constructions of the Supreme Court’s KSR/ Bilski/ Mayo/ Myriad/ Biosig/ Alice line of unanimous precedents framework, or does the US Constitution for such decisions
  • entitle any public institution to refrain, for ET CIs, for a time it feels feasible, from proceeding as these Supreme Court precedents require – or meeting its requirements just by some lip-service – and in the meantime to construe incomplete classical claim constructions, notwithstanding their implied legal errors?”

I thought maybe he had violated a rule requiring cert petitions to be written in English. But the good folks at the WSJ Blog think the problem may lie in footnote 30 (page 37), where the author credits his client “for significant contributions to this Petition.” That footnote appears to violate the Court’s guidelines, which dictate that

names of non-lawyers such as research assistants, law students, and advisors may not appear on the cover under any circumstances; nor are they to be credited with having contributed to the preparation of the petition either in the text, in a footnote, or at the conclusion of the petition.

To me, this petition offers a more important lesson in how not to write a brief. In legal writing, the prime directive is clarity. You must write so that the reader can understand what you’re saying. If you fail to do that, everything else you do is wasted effort.

Speaking of amendments

Here is a reminder that several amendments to the Federal Rules of Appellate Procedure are now being considered. They include shortening the word limits for briefs as follows:

  • Under amended Rule 32, the word limit for principal briefs would be reduced from 14,000 words to 12,500 words. The word limit for reply briefs would be reduced from 7,000 (half of 14,000) to 6,250 (half of 12,500).
  • In cross-appeals, amended Rule 28.1 would shorten the limit for the appellant’s principal brief and the appellant’s response and reply brief from 14,000 words to 12,500 words. The limit for the appellee’s principal and response brief would be shortened from 16,500 words to 14,700 words. The limit for the appellee’s reply brief will be 6,250 (half of 12,500).

If you want to comment on these or other proposed amendments, click here and follow the instructions. Act fast, because the deadline for comments is February 17.

Proposed changes to M.D. La. local rules

Appellate lawyers sometimes pitch in on complex motions filed in the district court—motions to dismiss, motions for summary judgment, Daubert motions, etc. If your practice includes this sort of work in the Middle District of Louisiana, then you’ll be interested in the Middle District’s proposed amendments to the local rules, particularly those governing motion practice.

The proposed amendment that caught my eye is one to Local Rule 7, governing the form of motions. Under proposed Rule 7(g), the page limit for memoranda in support of or in opposition to a motion will be reduced from 30 to 20 pages, excluding attachments. The page limit for subsequent memos will be reduced from 20 to 10 pages, excluding attachments. Reply and surreply memos will be subject to a 5-page limit. If you need more pages, you’ll have to file a motion for leave to file a memo exceeding the page limit.

If you want to comment on this amendment or any of the others, you can do so by e-mail to [email protected]. The deadline for comments is March 16, 2015.

Tips on writing the summary of the argument

If you’re writing a brief for a Louisiana court of appeal or the U.S. Fifth Circuit, you must include a summary of the argument. The same goes for a writ application to the Louisiana Supreme Court. But the rules offer little guidance on how to write the summary except to make it “succinct,” “clear,” and “accurate,” and to avoid merely repeating the argument’s point headings.

If you’re looking for tips on how to write the summary of the argument, you may be interested in Judith Fischer’s article on that topic, Summing It Up with Panache: Framing a Brief’s Summary of the Argument, which you can download on SSRN. In her article, Fischer examines the competing summaries of arguments from the briefs in 20 U.S. Supreme Court cases, analyzing the techniques used by the briefwriters to grab the Court’s attention.

Proposed standards for La. appellate specialization

Yesterday I wrote a post about the status of efforts to create a specialization in appellate practice in Louisiana. For those who are interested, here is a copy of the proposed specialization standards, as revised following the public hearing in December 2014. It includes revisions made in response to comments submitted by e-mail before the hearing, as well as comments made at the hearing itself.

Update on La. appellate specialization

Today Louis LaCour, chair of the Louisiana State Bar Association’s Appellate Section, reported by e-mail to section members that “[the] proposal for the creation of a new specialty with the Louisiana Board of Specialties will be put before the House of Delegates at its June meeting. The Board reviewed the submitted documents last week, and while they have some questions and concerns that will need to be addressed, they felt comfortable pushing it to the next step.” For those of us who focus our practices on appellate advocacy, this is good news.

I encourage everyone who has an interest in this potential new specialty to get involved in the process. It’s important to have a fair cross-section of the appellate bar weigh in: big firms to solo practitioners, plaintiffs’ side and the defense side, criminal and civil. As Louis’s e-mail suggests, the standards for specialization are a continual work in progress. Your voice will help shape them.