Category Archives: Courts & Judges

3 Ways To Make Your Brief Read Better On An iPad

24toys-articleLargeThanks to some of my Michigan colleagues, I learned today for the first time that a growing number of appellate court justices are reading briefs on an iPad. I guess it’s pretty clear that I’m out of touch. (I feel like Dr. Evil, on Austin Powers, when he demands the government pay him only $1 million.)

Fortunately for me, and for you, Daniel Sockwell, writing in the Columbia Business Law Review, is not so out of touch. In a piece entitled “Writing a Brief for the iPad Judge,” he offers some really useful advice for writing an appellate brief if you know your judge may end up reading it on an iPad. How would you know? By asking the clerk, of course.

Here are 3 of Sockwell’s tips:

1. Use Fewer FootnotesSockwell writes that “[o]ne of the advantages of reading on an iPad is that judges can adjust the screen view, zooming in and focusing on the current passage.” Unfortunately, this advantage is “lost if footnotes require the reader (judge) to constantly scroll to the bottom of the page for citations or substantive material.” Sockwell feels this compounds the risk that the judge or her clerk might not bother to read the footnotes at all.

2. Choose Your Font With Care. Sockwell notes that, while “the effective resolution of an iPad [is] closer to print,” there is a risk that “some of the best print fonts can become jagged or difficult to read at screen resolutions.” What should you do? Unfortunately, Sockwell leaves us wondering, though he does point us in the direction of an entire book on the subject of fonts (the perfect gift for that typography nut in your life). I started to do some of my own online research to find out what kind of fonts read best on iPads, but I came up short. I’m going to go with the plan to use a simple font rather than anything really creative. If someone has some clearer suggestion, maybe they could leave a comment.

3. Go With “Scientific,” Rather than Traditional Legal Hierarchical Headings. We typically use traditional hierarchical headings in briefs that are printed (e.g., Part I, Section A, Subsection 1, etc.). This method apparently doesn’t work well for documents read on an iPad, because it’s easy to lose track of which “Section A” one’s looking at. Instead, Sockwell urges brief writers to adopt the scientific hierarchical headings (e.g., Part 1, Section 1.1, Subsection 1.1.1, etc.).

Sockwell includes one more point: be sure to adhere to local rules, even if it means making a stylistic sacrifice. While double spacing of lines might look horrible on an iPad, it may be required by the local rules, at least until rules are universally updated to reflect the reality that more and more judges are reading briefs on iPads.


The Bygone Era of “Junk Science”

620-best-television-comedy-tv-show-ever-sanford-son.imgcache.rev1352136944844I remind myself that only a fraction of readers will be familiar with that cultural chestnut, Sanford and Son. You might ask: what’s worse, 70s era sitcoms built upon dismal racial stereotypes, or our present preoccupation with reality television showing us, in ever higher definition, how awful we really are? I digress, however; that’s a topic for a different blog.

Instead, let’s discuss “junk science.” In the majority of cases tried before a jury, the parties will desire to present the testimony of an expert in some field, such as injury or disease causation, standard of care or mental capacity. Of course, the opposition will want, if possible, to preclude this evidence. Popular techniques to preclude the evidence involve arguing either (1) that the expert is not really an expert at all; and/or (2) his opinion is not scientific–and thus likely to mislead the jury.

In 1993, in Daubert v. Merrell Dow Pharmaceuticals, Inc., the United States Supreme Court held for the first time that, to be admissible, scientific evidence must be both scientifically valid and properly applicable to the facts at issue in the case.  The key here is scientific validity. To put this in historical context, the prevailing standard before Daubert derived from Frye v. United States. Under the Frye standard, expert opinion based on a scientific technique was only admissible where the technique was generally accepted as reliable in the relevant scientific community. This was also termed the “general acceptance” standard.

In theory, the Daubert Court was interested in weeding out “junk science,” though it used the term “absurd and irrational pseudoscientific assertions.” Later, in Kumho Tire Co. v. Carmichael, which extended the Daubert holding, Justice Scalia, in his concurring opinion, wrote that that a trial judge has “discretion to choose among reasonable means of excluding expertise that is fausse and science that is junky.” Don’t call me fausse.

What is this “junk”? Justice Stevens gave one illustration, in General Electric Co. v. Joiner. He said:

“An example of ‘junk science’ that should be excluded under Daubert as too unreliable would be the testimony of a phrenologist who would purport to prove a defendant’s future dangerousness based on the contours of the defendant’s skull.” 522 U.S. 136, 153, n.6 (1997) (Stevens, J., concurring in part and dissenting in part).

Oh, if only this worked! Alas, it would probably be about as accurate as the use of Penile plethysmography to convict sex offenders. This marginally invasive (I’m sure) test measures blood flow to a defendant’s penis to determine the level of sexual arousal as he is exposed to sexually suggestive content. That truly is “junk” science. (I couldn’t resist.) I can only assume the test, its use, or both, were conjured by someone who really liked Burgess’ Clockwork Orange.

0811868656Because I’m in a particularly philosophical mood, I’ll point out that one era’s “junk” is another era’s treasure. See, e.g., Copernican Revolution, Newtonian physics, Einsteinian Relativism, quantum mechanics, Mendelian inheritance. This phenomenon is known as a paradigm shift. Picture the egg dripping from Justice Stevens’ face when, in 2056, the last brain-researcher finally concedes that comparison of the contours of an individual’s skull is in fact the very best way to predict his propensity to inflict future harm.

In 2000, Federal Rule of Evidence 702 was amended in response to the line of cases starting with Daubert and culminating with Kumho. That rule now limits the testimony of an expert as follows:

“A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:
(a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and methods; and
(d) the expert has reliably applied the principles and methods to the facts of the case.”

Interestingly, many federal courts have resisted applying Daubert and the amended FRE 702. A sweeping article by George Mason University Law Professor David Bernstein, pointed out that, fantastically, many judges were either unaware of the amendment to one of the most important rules of evidence (really?) or they deliberately ignored it.  See, Bernstein, “The Misbegotten Judicial Resistance To The Daubert Revolution,” 89 Notre Dame Law Review 27, 50 (2013).


When Should You Hire Local Counsel?

889900Being lawyers, many of us suffer from the tendency to believe we can service all of our clients needs, whatever they are and wherever they take us. I think part of the reason is that, as professionals, we naturally like to control everything, and the thought of relinquishing any little bit of control causes anxiety. I suspect another reason has to do with a worry that other lawyers are direct competitors, even if their practices differ geographically or in terms of subject matter.

I hesitate to suggest that we’re worried the other lawyer will do a better job for our client (though they might), but it’s scary to think another firm, even if hired as a partner in a particular case or project, will take the opportunity to aggressively pursue our client, to take it/them away from us permanently.

Yet another concern could arise from a fear that, if we involve another professional and they do a less-than-stellar job or overcharge our client, or both, it will reflect poorly on us. It surely will, on some level, at least if we are involved in selecting and/or hiring the associated professional.

On a purely rational level, we know these concerns shouldn’t prevent us from doing what’s best for our clients. If that means hiring a tax specialist because a deal or case raises issues outside our skill set, it’s generally a no-brainer decision. Similarly, if I’m a litigator licensed only in California and I’m handling a case in, say, Nevada, which requires the involvement of a lawyer who is both licensed and venued in Nevada, even if I am admitted pro hac vice, I won’t let my poaching fears prevent me from doing the right thing.

But what about a borderline case. For example, I most often practice in the Los Angeles area. I know the courts, the procedures and many of the judges in LA, Orange County, Ventura, Santa Barbara (because I actually live in SB), Riverside and San Bernardino. If I am assigned to handle a case in Bakersfield, or Fresno, or even San Diego, should I be thinking about hiring local counsel in those venues?

I want to suggest the answer is yes, I should at least think about whether it makes sense to involve a local counsel in any case that I’m planning to handle that is as far away as Bakersfield is from LA, even if, after I think about it, I conclude it is unnecessary. In other words, it is an issue that should be spotted and resolved just like any other.

I recognize this doesn’t really advance the ball, because it doesn’t provide any guidance when one should, not only consider hiring a local lawyer, but actually do it. Here are some thoughts on this bigger question.

1. Hire local counsel when you have reason to believe you will be “home-towned.” What does this mean? I see “home-towned” as any instance in which your client could suffer prejudice from the fact you are foreign to the jurisdiction. This is not always readily apparent, and could require some impression gathering from colleagues or acquaintances. I’ve long heard, for example, that judges and juries in San Diego do not receive Los Angeles lawyers well. I could speculate forever on the genesis of this (assuming it is true), but I’ve heard it over and over.

Now, this does not mean I think it’s necessary to hire a local San Diego lawyer or firm  every time I have a case pending there. Rather, it is more likely that I would only hire someone local if my case was clearly headed to trial, or if there was some unusual issue that made me think my client would benefit at all from having someone local there with or instead of me. The possible scenarios are endless. It’s a judgment call.

2. Hire local counsel when you’re in a venue that has strange or unfamiliar procedural rules. In California, we are required to comply with the California Code of Civil Procedure, the California Rules of Court, the Local Rules of the county and, often, the judge’s own rules. And we hope none of these conflict. Sometimes we encounter a county or judge with some bizarro rules about how things must be filed or served, or both. I can tell you there is nothing more comforting than being able to pick up the phone and talk to someone who regularly appears in the particular court, before the particular judge.

3. Hire local counsel when it’s otherwise a good idea and you can hire someone whom your judge knows and respects. This can be particularly important if your opposition knows the judge well.

4. Hire local counsel when you expect the entire jury will speak with an accent you don’t have. I’ll admit to occasionally having Southern Drawl Envy. You know what I mean if you’ve ever had to speak at a conference and follow some smooth-talking  storyteller from South Carolina or Georgia or someplace. It can be humbling to realize how utterly ordinary we sound.

5. Hire local counsel when there’s a reason to think some past event or news will cause your client to suffer geographical prejudice. Did your client just shutter a factory in the town where you’re about to start trial, putting hundreds or thousands out of work? You’re going to need to deal with that, and a local perspective will be valuable.

One final word. The verb “hire” as used here doesn’t mean your client needs to break the bank with yet another full-time billing machine. Often, it will suffice to have the local counsel merely available for consultation purposes, or to help pick the jury, or participate in a particular hearing.  The additional investment should be minimal and could pay dividends.


Want To Lose Your Trial? Be Late And Keep A Jury Waiting

gytrrThe ABA Journal reported on Friday that a Pennsylvania judge held a lawyer in contempt and increased the bond for his client when they were late for a jury trial. “We were all here at 9 a.m. for a jury trial and the defense table was empty,” said the judge, who had dismissed the prospects not long before the two arrived. “We wasted a jury panel.” The lawyer later claimed that personal problems kept him up late and the hotel failed to give him a wake-up call.

Readers can receive this in many ways. Some will say, good for the judge, he did the right thing. Others will think it’s over the top and the judge was out of line. After all, everyone has been late at one time or another. Is contempt and a $1,000 fine (which the judge ordered later) really appropriate?

I don’t know. I suspect if I was the judge the outcome would have depended on whether I was particularly irritable that morning. Not very even-handed, I know. But whether a lawyer is held in contempt for being late, or simply slapped on the wrist, the lesson we should learn from this particular Pennsylvania judge is the same: don’t be late for a jury trial. Ever. Period.

I’ll confess I’m sometimes challenged when it comes to getting somewhere on time. I make this confession so you won’t mistake me for someone who is self-righteous about his meticulous habits. But there are two events for which I take great pains to be on time. One is to catch an airplane and the other is for trial.

It’s been my experience that most judges presiding over a jury trial tend to put the interests and needs of those serving jury duty at or above his/her own. If you are before one of these judges, the quickest way to earn the judge’s scorn is to keep an impaneled jury waiting. (It doesn’t help that, when you keep the jury waiting, you’re also keeping His/Her Honor waiting as well.) In case it’s not obvious: the judge’s scorn often translates to the jury’s scorn, which you don’t want.

My mentor has always had a rule that the hotel where he stays and sets up his war room during trial must be the very closest possible hotel to the courthouse. It doesn’t matter if this is a den of filth, replete with vermin and cockroaches. He knows when he’s in trial he’s at war. There’s no time to be tied up in one of those unpredictable traffic jams. If you know you can walk to the courthouse in a reasonable amount of time, rain or shine, it’s one less thing to worry about. Worry = wasted mental energy, and mental energy is precious during trial.

If you don’t believe me, just ask Berks County, Pennsylvania Judge Stephen B. Lieberman. But leave my name out of it.


Useful Tips From A Recent Bench-Bar Conference

4c013d050381f202e20e6a7067004b8dBecause I pay attention to analytics, I know that my most popular posts are those in which I have passed on advice or comments from a judge or judge’s clerk. People apparently find and read my blog because they want to get some inside scoop from the bench, as opposed to my witty, original repartee. Best not quit my day job, I guess.

At any rate, a talented Michigan appellate specialist I know attended a recent appellate bench-bar conference and brought back some wise comments from the judges and court staff, “of which,” as Bob Marley sings, “I’ll share with you.”

1.  When Briefing the Facts.

When briefing the facts, don’t misrepresent the facts or get too argumentative. Eliminate most adjectives in the statement of facts section. Also be wary of including too many facts and dates. Dates that aren’t relevant to the issues to be decided by the appellate court are distracting and tiresome. Also bear in mind that the appellate court rarely needs to know the entire procedural history.

2. When Briefing the Law.

Briefing the law requires honesty. Do not mischaracterize the law generally or the holding or import of a particular case. Strive for economy; view the page limit as an outer limit, not a goal to reach. Another problem specific to appellate briefing is the tendency to raise too many issues. Judges complain that lawyers often fail to recognize and identify the appropriate standard of review. Judges should be treated as “generalists” who may need a primer on the law in the area and a tutorial on the industry involved. Bear in mind the “ABCs” of good brief writing: Accuracy, Brevity and Clarity. Do not attack opposing counsel in the brief.

3. When Arguing Before An Appellate Court.

The judges cited “reading from a prepared text” as among the most common errors in oral argument. Treat the argument as an opportunity for both the lawyers and the judge(s) to be educated. Do not fail to answer the questions the judge(s) actually asked. Be sensitive to “cues” from the bench as to what a judge believes the real or dispositive issue to be. Do not attack opposing counsel in oral argument. If you are lucky enough to be arguing before a state or the US Supreme Court, be prepared to answer the question, “What rule are you asking us to establish?”

There. Now go kick some appellate ass.


Could The Five Year Rule Become Relevant Again In California?

trfftAs I grow older, I become increasingly familiar with the feeling of “dating” myself by admitting to TV shows I watched, music I liked, or even sports I played (remember Dodgeball?).  I date myself as a California litigator when I reminisce about the “Five Year Rule.” The Rule wasn’t repealed. It’s still part of the California Code of Civil Procedure. Section 583.310 provides: “An action shall be brought to trial within five years after the action is commenced against the defendant.” Section 583.360(a) says: “An action shall be dismissed by the court on its own motion or on motion of the defendant, after notice to the parties, if the action is not brought to trial within the time prescribed in this article.” (All emphases added.)

The statute sounds ominous, doesn’t it? I remember being a new defense lawyer in the early 1990s opposing motions to exempt a case from the Five Year Rule for some reason or another. I was awed by the relative calm with which plaintiff lawyers argued these motions, on the very eve of expiration, as though they had nothing at all to worry about. I knew that I would be an absolute wreck if I thought there was even the smallest chance my client’s case would be dismissed. But, I never had a case get dismissed for failure to start trial in five years. It seemed like the statute had more bark than bite.

The Five Year rule never went anywhere. Instead, the California courts changed, rendering the Rule completely irrelevant. Around my third or fourth year, the state courts initiated the Delay Reduction Act, or “fast track” rules. When the fast track rules (majority of cases to be tried within one year) were first implemented, I remember judges were really difficult if you wanted to exempt a particular case from the fast track. God forbid a case might legitimately take 18 months or, gasp, 2 years to be ready for trial. Certain judges were so committed to the new rules that they would set a trial date within 12 months even if it fell on Christmas eve or interfered with someone’s wedding or honeymoon. I suppose it seemed particularly draconian because I hadn’t yet realized that, regardless when they’re set, most civil cases never actually start trial.

While it’s mostly dinosaurs like me who remember the Five Year Rule, it now seems that, with the massive changes to California’s courts occasioned by the budget crisis, the Rule could become relevant again. If we do see a resurgence of motions to dismiss under the Five Year Rule, here are a couple of things to keep in mind:

  • The parties can stipulate, either in writing or orally in open court, to extend the time for trial to occur. (CCP §583.330)
  • The time is calculated to exclude time during which the court lacked jurisdiction, or prosecution of the trial was stayed or enjoined, or getting the case to trial was impossible, impracticable or futile. (CCP §583.340)
  • Courts have significant discretion in their application of the §583.340 exceptions. See, Bruns v. E-Commerce Exchange, Inc., 51 Cal.App.4th 717 (2011).

However, even armed with dicta from Bruns, lawyers representing plaintiffs must be able to show they’ve been diligent in moving the case along. Otherwise, mandatory dismissal is technically possible.


When Judges Play Games To Protect The Record Against Appeal

ghtrEver found yourself in that situation where you are not only losing an argument or motion, but it seems mysteriously like the judge is bent on preventing you from making a decent record of your position?

In Litigation, the wise Professor McElhaney identifies games judges commonly play with attorneys in the interest of preventing them from making a record which can be used to challenge the ruling on appeal. He writes, “If [the judge] can force lawyers to waive objections or forget to make offers of proof . . . it will improve [the judge's] batting average with the court of appeals.” (p.294) Here are a few such games:

1. Cutting off, under the guise of preventing speaking objections, any argument or objection.

2. Refusing to permit offers of proof at the time an objection is sustained; requiring counsel to wait until the next recess or next day of trial, when they’re likely to forget.

3. Insisting that exhibits be offered and admitted only at the end of the entire trial. This “forces lawyers to waive most of their evidentiary objections about exhibits. At the end of trial they are thinking about their final arguments, not about foundations or rulings.” (p.295)

4. Making “weasel” rulings on evidentiary objections: “I’ll let it in for what it’s worth.”

5. Making noncommittal rulings. “I’ve heard enough, let’s proceed.” Or, “All right, I understand your positions; let’s move along.” These aren’t rulings and, regardless what happens next (i.e., the objected-to question is answered and/or the jury hears the evidence), it will be all but impossible for an appellate court to identify an error, since the judge shirked her responsibility to make a ruling.

Recognizing your judge is playing one of these games will help you to maintain your resolve to make an effective record. Oh, and if you’re in a California state court, be sure to order and pay for that court reporter, otherwise you’re not going to be making a “record” at all.


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