Previous month:
October 2016
Next month:
December 2016

November 2016

Is it okay to copy someone else’s brief?

Would you believe that copying someone else’s brief could be a copyright infringement? Believe it. In Newegg Inc. v. Ezra Sutton, P.A., 120 U.S.P.Q.2d 1111, 2016 BL 299780 (C.D. Cal. Sept. 13, 2016), the draft brief’s author sued the copying lawyer for copyright infringement. The court granted the author a partial summary judgment on liability, rejecting the copying lawyer’s defense of fair use. (Hat tip to Dane Ciolino, Louisiana Legal Ethics.)

Newegg does seem to be a rare case. According to the decision, the plaintiff had a registered copyright on its draft brief. How often does anyone register a copyright on a draft brief? Still, this is not the first time that a lawyer got in trouble for filing a brief that was, in essence, someone else’s work product. A few years ago, an Iowa lawyer was sanctioned by a bankruptcy court and disciplined by the Iowa Supreme Court for filing a brief that copied liberally from an article written by two other lawyers. Both courts concluded that, by lifting his argument almost verbatim from the article, the lawyer committed plagiarism. Iowa Supreme Ct. Disciplinary Bd. v. Cannon, 789 N.W.2d 756 (Iowa 2010); In re Burghoff, 374 B.R. 681 (Bankr. N.D. Iowa 2007). More recently, a lawyer representing Lindsay Lohan was ordered to pay $1,500 in sanctions for copying her brief from unattributed sources and filing a misleading letter with the court in response to the allegation of plagiarism. Lohan v. Perez, 924 F. Supp. 2d 447 (E.D.N.Y. 2013).

These stories provide two lessons. First, always, always cite your sources. That’s easy. The second lesson is more difficult: do your own writing. If you like someone else’s brief so much that you want to reuse it, don’t just copy it. If court rules allow you to simply adopt another party’s brief, do that. If you can’t (e.g. if the brief was filed in a different case), then make the argument your own. Read and understand the authorities cited in the brief. Vet those authorities yourself to make sure they’re good law. Explain in your own words how the authorities apply to your case. Be a lawyer. Don’t be a hack.

For more thoughts on the murky area between plagiarism and legitimate copying, read Beg, Borrow, Steal: Plagiarism v. Copying in Legal Writing, Calif. Litig. vol. 26 No. 3 at 14 (2013), by Benjamin Shatz and Colin McGrath.

Silly briefwriting conventions: Overuse of parenthetical shorthand names

Some briefwriting conventions are downright silly. One of the silliest is the compulsion to parenthetically define shorthand names for all persons and companies mentioned in a brief. For example, when the only Flintstone mentioned in a brief is Fred, you’ll see the first reference to him as “Fred Flintstone (‘Flintstone’).” Similarly, you’ll see “State Farm Mutual Automobile Insurance Company (‘State Farm’)” even when it’s the only State Farm company mentioned in the brief.

Where did this silly briefwriting convention come from? It seems to have come from the world of contract drafting. Contracts require defined terms, including definitions of the parties. Contract drafters often find it useful to create a defined shortened form of a party’s name. An easy way to do this is to put the defined term in quotation marks and parentheses after the party’s name. See Kenneth A. Adams, A Manual of Style for Contract Drafting § 1.62 (2d ed. 2008). People see this in contracts, conclude that it’s the “legal” way to write, and transfer the custom to briefwriting.

A brief is not a contract. In a brief, you don’t need to create defined shortened names for everyone when there’s no risk of reader confusion. If Fred Flintstone is the only Flintstone mentioned in the brief, refer to him by his full name the first time he appears—without the parenthetical “(‘Flintstone’)”—and after that, just refer to him as “Flintstone.” Everyone will know you’re talking about Fred. No one will wonder whether you’re talking about Wilma.

The same goes for companies. The exception is when you have, say, two State Farm companies mentioned in the same brief. In that instance, you may need to define shorthand names to avoid confusion:

  • State Farm Mutual Automobile Insurance Company (“State Farm Auto”)
  • State Farm Fire and Casualty Insurance Company (“State Farm Fire”)

Don’t take my word for it. Listen to what Bryan Garner and the late Justice Scalia said about this:

Give the reader credit for having a brain—and show that you have one, too. Don’t leave your common sense at the door. If your brief repeatedly refers to the Secretary of Transportation and mentions no other Secretary, it is silly to specify parenthetically, the first time you mention the Secretary of Transportation, “(hereinafter ‘the Secretary’).” No one will think that your later references to “the Secretary” denote the Secretary of Defense, or perhaps your own secretary.

Antonin Scalia and Bryan A. Garner, Making Your Case: The Art of Persuading Judges § 44, at 113 (2008). See also Bryan A. Garner, The Elements of Legal Style §§ 4.5 and 7.4 (2d ed. 2002).

Dance with the issue that brung you.

Here’s a tip for U.S. Supreme Court practice that should be obvious: if the Court grants certiorari, brief the issue raised in your cert. petition. If you brief a different issue, your writ will be dismissed as improvidently granted. That’s what happened yesterday in Visa, Inc. v. Osborn, c/w Visa, Inc. v. Soumbos:

These cases were granted to resolve “[w]hether allegations that members of a business association agreed to adhere to the association’s rules and possess governance rights in the association, without more, are sufficient to plead the element of conspiracy in violation of Section 1 of the Sherman Act . . . .” Pet. for Cert. in No. 15-961, p. i, and No. 15-962, p. i. After “[h]aving persuaded us to grant certiorari” on this issue, however, petitioners “chose to rely on a different argument” in their merits briefing. City and County of San Francisco v. Sheehan, 575 U. S. __, __ (2015) (slip op., at 7). The Court, therefore, orders that the writs in these cases be dismissed as improvidently granted.

The same rule applies in the Louisiana Supreme CourtSee Boudreaux v. State, DOTD, 2001-1329 (La. 2/26/02), 815 So. 2d 7.

Civil appeals in the U.S. 5th: What are the odds?

The other day, while wandering around the U.S. Fifth Circuit’s web site, I came across this statistical snapshot for July 1, 2015 – June 30, 2016. Here are some of the numbers of interest to civil practitioners:

  • Reversal rate in private civil cases (U.S. not a party): 16.6%
  • Petitions for panel rehearing filed: 240
  • Panel rehearings granted: 3 (1.25%)
  • Petitions for rehearing en banc: 194
  • En banc rehearings granted: 7 (3.6%)

The lessons from these numbers:

  • The best way to win at the Fifth Circuit is to represent the appellee.
  • The time to win is on original reconsideration. The odds of turning it around on rehearing are almost as slim as the odds of a grant of certiorari by the Supreme Court.

Changes are coming to the FRAPs

As many of you probably know, several amendments to the Federal Rules of Appellate Procedure are scheduled to kick in on December 1. You can read the amendments, as transmitted to Congress by the Supreme Court by following this link. Here is a skinny on the amendments most likely to affect civil appellate practitioners.

Rule 4(a)(4). Under this rule, the filing of certain post-trial motions suspends the time to file a notice of appeal. The amended rule makes clear that, to suspend the time to appeal, the motion must be filed timely according to the Federal Rules of Civil Procedure.

Rule 5(c), governing petitions for permission to appeal, is one of several amendments establishing word limits in lieu of page limits for papers filed in a court of appeals. Under the current rule, the petition is subject to a 20-page limit. Under the amended rule, the 20-page limit applies only to handwritten or typewritten petitions. A petition produced by computer is subject to a 5,200 word limit.

Rule 21(d), governing petitions for mandamus and other extraordinary writs, has been similarly amended. Under the current rule, the petition is subject to a 30-page limit. Under the amended rule, the 30-page limit applies only to handwritten or typewritten petitions. A petition produced by computer is subject to a 7,800 word limit.

Rule 26(c), governing computation of time, allows 3 extra days when service of a paper starts the clock and service is effected “unless the paper is delivered on the date of service stated in the proof of service.” The current rule is an anomaly; it says that a paper served electronically “is not treated as delivered on the date of service stated in the proof of service.” The amendment deletes the word “not.” The practical effect of this amendment is that parties who are served electronically will have 3 fewer days to file their appellee briefs and their reply briefs.

Rule 27(d)(2) governs the length of motions, responses to motions, and replies to responses. Under the current rule, motions and responses are subject to a 20-page limit, and replies are subject to a 10-page limit. Under the amended rule, the page limits apply only to handwritten papers. Motions and responses produced on a computer are subject to a 5,200 word limit, and replies are subject to a 2,600 word limit.

Rule 28.1(c), governing briefs in cross-appeals, has been amended to reduce the word limits. The word limit for the appellant's principal brief and appellant’s response and reply brief has been reduced from 14,000 words to 13,000 words. The word limit for the appellee’s principal and respons brief has been reduced from 16,500 words to 15,300 words.

Rule 29, governing amicus briefs, has been substantially revised to allow for filing of amicus briefs during the time the court is considering a petition for rehearing. New Rule 29(a), governing amicus briefs filed during the court’s initial consideration of a case, repeats the substance of current Rule 29. New Rule 29(b) governs amicus briefs filed after a party has petitioned for rehearing.

Rule 32, governing the form of briefs, has been amended to reduce the word limits. The word limits for a principal brief has been reduced from 14,00o words to 13,000 words. The word limit for a reply brief has been reduced from 7,000 words to 6,500 words (half of 13,000). If you have trouble squeezing your brief into these reduced word limits, there is some consolation: under new Rule 32(f), the signature block no longer counts against the word limit.

Rule 35 and 40, respectively governing petitions for en banc and panel rehearing, have been amended to establish word limits in lieu of page limits for petitions produced by computer. Under the old rules, all petitions for rehearing were limited to 15 pages. Under the new rule, the 15-page limit applies only to handwritten or typewritten papers. A petition produced by computer is subject to a 3,900 word limit.