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November 2012

A writing tip for contrarian judges

If you are on an en banc court and think all of your colleagues got it wrong, how do you write your lead? You could go with the standard “concurring in part with X, Y, and Z, and dissenting in part with yada yada yada.” Or you could follow Alex Kozinski’s example:

Chief Judge KOZINSKI, disagreeing with everyone ...

Kendall Gray has dubbed this the Going Vinny opener. That works for me. So does Judge Kozinski’s opener. It is concise and informative and original—the gold standard of legal writing.

For Bridging the Gap participants

This afternoon, I am co-presenting a CLE hour on appellate practice as part of the Louisiana State Bar Association’s Bridging the Gap seminar. The seminar is for recent law grads who are just starting their legal careers. I promised that I would post some supplemental materials for them. So here they are:

First, two articles by Judge Alex Kozinski of the Ninth Circuit:

  • In Praise of Moot Court — Not!, in which Judge Kozinski discusses the differences between law-school moot-court programs and real-world appellate practice.
  • The Wrong Stuff, in which Judge Kozinski explains how to lose an appeal that, for whatever reason, you must lose.

Next, some sample pleadings and briefs. Treat them only as samples, not as models. Use them with caution, as the rules may have changed since these were written.

 Finally, copies of my PowerPoint presentation and written materials.

Latest issue of Legal Communication & Rhetoric: JALWD

The Fall 2012 issue of Legal Communication & Rhetoric: JALWD is out. If you didn’t get a hard copy in the mail, don’t worry; all the articles are available online. For a run-down on the contents, read the preface.

If you’re interested in the controversy over the Patient Protection and Affordable Health Care Act (a.k.a. Obamacare), then have a look at Ken Chestek’s article, Competing Stories: A Case Study of the Role of Narrative Reasoning in Judicial Decisions. Prof. Chestek examines the trial-court briefs in the various legal challenges against the Act and the resulting decisions in those challenges. He concludes that, contrary to the conventional wisdom, the decisions may not have been based on the judges’ respective political leanings, but on the competing stories presented in the parties’ briefs.