Bridging the Gap — Spring 2024 Edition

On May 8, I’ll be giving my spiel on appellate practice at the Louisiana State Bar Association’s semi-annual Bridging the Gap seminar. This seminar, designed for new lawyers, will be held on May 7–8 at the Marriott Warehouse / Arts District Hotel, 859 Convention Center Boulevard in New Orleans. It offers 15 hours of CLE, including ethics, professionalism, and law-office management. If you’re a new or relatively new lawyer, please consider registering. If you know a new or relatively new lawyer, please recommend this seminar to her or him. To view the program, follow this link. To see more information and to register, follow this link. Thanks.

Bias in deciding who’s a legal-writing expert

Chew“To be blunt, I think the results of my study suck.” That’s how Professor Alexa Z. Chew described what she found when she examined the people held up as legal-writing experts. Long story short, the people held up as legal-writing authorities in legal-writing books by white male authors are mostly other white males. In her article, The Fraternity of Legal Style, she describes her methodology and the thought-provoking and, well, sucky results.

To read the abstract, follow this link. To go directly to the PDF article, follow this link.

When delay equals “effective denial” of a preliminary injunction

A couple of weeks ago, the U.S. Fifth Circuit issued an interesting judgment granting mandamus: In re Fort Worth Chamber of Commerce, No. 24-10266 (5th Cir. Apr. 5, 2024). For appellate lawyers and anyone else practicing in the federal system, it’s worthwhile reading. The case raised issues of both the Fifth Circuit’s jurisdiction over a purported appeal and the district court’s jurisdiction after the puported appeal.

Here’s the skinny version of what happened: The Chamber sued for a preliminary and permanent injunction against a rule promulgated by Consumer Protection Financial Bureau. Claiming that time was of the essence, the Chamber filed several pleadings seeking an expedited hearing of its request for a preliminary injunction, citing the short time before the new rule would take effect. Rather than rule on the merits of the preliminary injunction, the district court invited the Bureau to file a motion to transfer the case to D.C., which the Bureau did. Before the district court ruled on the motion to transfer, the Chamber appealed the “effective denial” of the preliminary injunction. Three days later, the district court granted the Bureau's motion to transfer.

The Chamber petitioned the Fifth Circuit for a writ of mandamus vacating the transfer. A 2–1 majority (Judges Willett and Oldham) granted the writ. Judge Higginson dissented.

The case raised two issues of appellate procedure. First, without an explicit ruling on the preliminary injunction, did the district court “effectively deny” the preliminary injunction, giving the Chamber the right to appeal? (See 28 U.S.C. §1292(a)(1), allowing appeal of an interlocutory order granting or denying a preliminary injunction.) This issue split the panel. The majority held that, under the case’s particular facts, the district court’s failure to hold an expedited hearing of the motion for preliminary injunction constituted an effective denial of a preliminary injunction. The majority accepted the Chamber’s argument that, because of the case’s urgency (the imminent effective date of the new rule and cost of compliance with it), the district court’s failure to grant the Chamber’s request for an expedited hearing of the preliminary injunction constituted an effective denial.  Judge Higginson dissented on that issue, arguing that the urgency for a ruling on the preliminary injunction was “a fiction.” Slip Op. at 25.

Once the majority concluded that the Chamber had the right to appeal, the rest was easy. Once the Chamber took a valid appeal, the district court had no jurisdiction to “alter the status of the case as it rests before the Court of Appeals.” Slip Op. at 10. The majority reasoned that the transfer most certainly altered the status “because a transfer would frustrate our ability to provide meaningful relief because we would have no case to review.” Id.

There was still the question of whether the Chamber met the high threshold for mandamus. That part of the majority’s opinion was relatively short. Here’s the money quote:

Facing an uptick in inter-circuit transfer orders, we take this opportunity to clarify that once an appealable order is lodged before our court, district courts lack jurisdiction to transfer a case because it stymies our ability to review. [Slip Op. at 12–13.]

Just one editorial comment: Is the right to a writ of mandamus “clear and indisputable” when the court of appeals splits 2–1 on whether mandamus is appropriate?

What’s the best lure?

Conventional thought is that the best CLE presenters are judges, because judges are the people that advocates are trying to persuade. An often-cited authority for this thought is a 1940 essay by John W. Davis, making an analogy between persuasion and fishing:

[A] discourse on the argument of an appeal would come with superior force from a judge who is in his judicial person the target and the trier of the argument .... [S]uppose fishes had the gift of speech, who would listen to a fisherman's weary discourse on fly-casting, the shape and color of the fly, the size of the tackle, the length of the line, the merit of different rod makers and all the other tiresome stuff that fishermen talk about, if the fish himself could be induced to give his view on the most effective methods of approach. For after all it is the fish that the angler is after and all his recondite learning is but the hopeful means to that end.

John W. Davis, “The Argument of an Appeal" (1940), in Classic Essays on Legal Advocacy 212, 212 (George Rossman ed., 2010); and in 3 J. of App. Prac. & Process 745, 745 (Fall 2001).

Certainly judges’ insights are valuable. I always enjoy their presentations at CLE events, and I always learn something from them. A few times, I’ve been on CLE panels with judges and thorougly enjoyed working with them. My list of recommended books on this blog’s home page includes four by judges.

Having said that, I think there’s a built-in limit to what we can learn from the people we want to persuade. The limit is this: Unless those people are extremely self-aware, they will know, and therefore be able to talk about, only what works on a conscious level. They probably won’t know what persuades them on a subconscious level. And the stuff that works on a subconscious level is highly effective.

So by all means, listen to judges at CLE events. Read their books on effective advocacy. Practice what they teach. It will likely improve your advoccy.

But don’t stop there. Learn what works subconsciously to persuade people (including judges). Educate yourself on ancient rhetoric (it still works), cognitive psychology, and any other discipline telling us how people think and make decisions.

Remember that best lure is the one that the fish doesn’t recognize as a lure.

Bills of interest in upcoming legislative session

“No man’s life, liberty, or property are safe while the legislature is in session.” This quotation has been attributed to Gideon J. Tucker and Mark Twain. Regardless of who said it first, it rings true. I just had a look at a list of some of the pre-filed bills. In the interest of political neutrality at this blog, I’ll refrain from editorializing on them. But a few of them bear watching by Louisiana appellate lawyers.

Two bills would propose constitutional amendments affecting the structure of the Louisiana Supreme Court. House Bill No. 28 would increase the number of justices from seven to nine (one chief justice plus eight associate justices). Probably more controversial will be Senate Bill No. 178; that one would eliminate the seven supreme-court districts and require all justices to win statewide election. That one is bound to be a lightning rod, as it will likely be perceived as an effort to dilute minority votes.

One more bill of note, Senate Bill No. 78, would propose a constitutional amendment empowering the legislature to create courts by a two-thirds vote. I don’t know the purpose of that one; my impression is that the legislature already has the power to create courts—our five courts of appeal are creatures of legislation. See La. R.S. 13:312.

In case you missed it

I recently figured out that there was a problem with the email subscription service for this blog. A few communications with Typepad and Feedblitz seem to have solved the problem. But if you’re an email subscriber, there are still some posts you may have missed, such as:

If you’d like to be extra sure not to miss any future posts, I have two suggestions. First, add [email protected] to the safe-senders list in whatever email system you use. Second, follow me on LinkedIn. I usually try to cross-post on LinkedIn whenever I post something to this blog. For my part, I’ll try to change “usually” to “always” so that all posts here are cross-posted on LinkedIn.

Thanks for reading.

The Indigo Book: A Free Citation Manual

Would you like a citation manual that—unlike The Bluebook—is designed for practitioners, is easy to use, and costs nothing? If so, then check out The Indigo Book. It comes in your choice of HTML and PDF formats. The latter is handy if you want to browse the pages. (Note: It’s 284 pages long, so if you print a hard copy, print on both sides of the page.)

Besides giving good guidance for citations, it’s peppered with helpful comments, called “Indigo Inklings.” My favorite so far is the one that tells you how to type “§” (Alt-0167 in Windows; Option-6 on an Apple keyboard).

Of course, if you’re citing a Louisiana case decided after 1993 to a Louisiana court, follow § 8 of the LASC’s General Administrative Rules.

U.S. 5th Circuit Attorney Toolbox

Recently, Lyle Cayce—the indefatigable clerk of the U.S. 5th Circuit—has implemented more tech tools to make lawyers’ practice in that court easier: a new “Attorney Toolbox” feature added to the court’s CM/ECF system. You can read his announcement and description of its features by following this link. Here’s his intro:

I write to make sure that BAFFC[*] members know that we have created a new “Attorney Toolbox” you can access by clicking on the link prominently displayed on the CM/ECF landing page. This Toolbox will eventually serve as the location for case related programs now found under our “Utilities Tab,” including the EROA download, brief template, and Quality Control (QC) programs. But the Toolbox also contains two features long requested by BAFFC members — a record excerpt creation tool for appellants, and hyperlinks in pleadings.  

* Bar Association of the Federal Fifth Circuit

How not to evade the word-count limit

Sometimes brief-writers find themselves tempted to squeeze under the page limit or word-count limit by referring to and incorporating by reference an argument in another brief. If you’re ever tempted to do that, here’s my suggestion: Don’t. Otherwise, you may find yourself on the receiving end of an order like this one in Promptu Systems Corp. v. Comcast Cable Communications, LLC, No. 2022-1093 (Fed. Cir. Feb. 16, 2024). The lawyer there tried to get under the word-count limit by incorporating by reference a 2,000-word argument from another brief. The court didn’t appreciate that; nor did it appreciate the lawyer’s argument that he was just trying to “streamline the briefing”: “Requiring the Court to crossreference arguments from multiple briefs in multiple, separate cases does not increase efficiency nor does exceeding the word count.”

If you think you’ll have trouble meeting the page limit or word-count limit, file a motion to enlarge the limit. That motion will likely get a better reception than any attempt to evade the limit. And if you’re filing in a Louisiana court of appeal, be mindful of Uniform Rule 2-12.2(C)(3).