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January 2020

How weak arguments drag down good arguments

Which brief is perceived as stronger?

  1. A brief with three strong arguments
  2. A brief with the same three strong arguments plus one weak argument

Appellate judges and experienced appellate advocates will probably say that the first brief will make a better impression on the court than the second. But are they right? Science says they are.

In his book Thinking, Fast and Slow, psychologist Daniel Kahneman describes an experiment where subject were asked put values on two sets of dishes. One set had 24 pieces, all in good condition. The other had 40 pieces, including the same 24 pieces in good condition plus 16 additional pieces, but with 9 of the 16 additional pieces broken. When presented with both sets, subjects logically tended to put a higher value on the second set. But when subjects were asked to evaluate only one set, the subjects evaluating the first set (24 pieces in good condition) gave higher values than subjects evaluating the second set (31 pieces in good condition plus 9 broken pieces). In short, the inclusion of the broken pieces dragged down the perceived value of the entire set.

Kahneman describes another experiment yielding similar results. The experimenter auctioned off sets of baseball cards. Some sets had 10 high-value cards; other sets had 13 cards, including the same 10 high-value cards plus 3 additional cards of lesser value. The result: people were willing to pay more for the set of 10 high-value cards than the set of 13 cards that included the same 10 high-value cards. Again, inclusion of the lower-value cards tended to drag down the perceived value of the entire set.

What’s going on here? Kahneman says that the test subjects assigned value to the entire set of dishes or baseball cards by averaging the items included in the set. When the average value of any one item in the set was high, test subjects put a higher value on the entire set. Conversely, when the average value of any one item was lower, test subject put a lower value on the entire set.

A judge reading a brief may make an analogous valuation. If this is so, then a brief with three strong arguments will be perceived as stronger than a brief with the same three strong arguments plus one weak argument.


Time to appeal a preliminary injunction

Under La. Code Civ. P. art.3612, an order “relating to” a preliminary injunction can be appealed within 15 days “from the date of the order or judgment.” Yesterday, the en banc First Circuit held that the 15 days starts running when the judgment is signed, not when the clerk mails notice of judgment. Stevens Constr. Co. v. St. Tammany Fire Protection Dist. No. 1, 2019-CA-0431 (La. App. 1 Cir. 1/16/20), — So. 3d —. The court reasoned that under art. 3612, the 15-day delay starts with “the date of the order or judgment,” not the date of notice of judgment. The court further held that, under art. 3612, a motion for new trial does not interrupt the 15-day delay to appeal a preliminary injunction.

Note that these rules, drawn from art. 3612(C), apply only to an appeal from a preliminary injunction. An appeal from a final injunction is subject to the same rules that govern an appeal from any other final judgment. See La. Code Civ. P. art. 3612(D).


p.s. Hat tip to my colleague Sara Valentine for spotting this case.

When to appeal denial of a motion to lift an automatic bankruptcy stay

Let’s say you represent a creditor suiting a debtor in state court, and the debtor files for bankruptcy, triggering an automatic stay of your state-court suit. You file a motion in bankruptcy court to lift the stay, but the bankruptcy court denies your motion. Is the denial of your motion appealable, or must appeal await a final adjudication of your client’s claim in bankruptcy court. Today, the U.S. Supreme Court answered that question, holding that the order denying a motion to lift an automatic --bankruptcy stay is immediately appealable. Ritzen Group, Inc. v. Jackson Masonry, LLC, No. 18-938 (Jan. 14, 2020).

In Ritzen, the creditor failed to immediately appeal denial of its motion to lift the stay, instead attempting to appeal that order after the bankruptcy court ruled on the merits of the creditor’s claim against the bankrupt debtor. The district court and Sixth Circuit held that the appeal was untimely as to the order denying the motion to lift the stay, concluding that the appeal should have been taken within 14 days after entry of that order. See 28 U.S.C. § 158(c)(2) and Fed. R. Bankr. P. 8002(a). The Supreme Court agreed, holding that a “stay-relief adjudication” is a “proceeding ... apart from proceedings on the merits of creditors’s claims.”