Yesterday was the quarterly lunch with Judge Lipez, and I shall blog on that anon. But first, let's finish up with the AJEI summit.
There were a lot of good programs, but I'm only going to highight some bits that could be of practical use for the appellate practitioner.
The Supreme Court.
- Erwin Chemerinsky talked about the past year before the Supreme Court, while Drew Days and Paul Clement talked about the current/upcoming session. These sessions were very good, very concise and clear, but perhaps of limited immediate practical application. One interesting observation was that with the retirement of Justice Stevens, if the swing vote, Justice Kennedy, aligns with what is viewed as the liberal 4 members of the Court, he is the most senior and will be assigning the opinion. Also, one speaker opined that one reason Supreme Court opinions are getting longer these days is not just because they are taking fewer cases, but because the Supreme Court now consists of mostly professors and previous judges, not practitioners.
- As to the upcoming session, Paul Clement indicated that the Alvarez stolen valor act case could produce some interesting learning on what false/misleading speech is constitutionally protected – there's a case from @10 years ago saying that false solicitations can be regulated, so I got the impression that Clement thinks the statute will be upheld, although liberal or conservative, this Court loves the First Amendment and doesn't divide up rote conservative-liberal in free speech cases (except with issues like elections/financing). He also predicted that the preemption cases up for review will be narrowly decided. Currently, preemption law has some counterintuitive aspects to it (e.g., you can sue for inadequate drug labeling, except if it's a generic – a big if, and not much logic to that distinction.) It doesn't look like the Court will be coming up with any grant harmonizing preemption pronouncements this term.
- There was an excellent presentation on what the Supreme Court looks at in accepting/rejecting cert. petitions, again a topic of interest to a limited group, so I won't go into the substance. Note that if you won below, it's bad news to get a petition granted – the Supreme Court flips the decision below 75-66% of the time. That's one reason to file an opposing brief. Another is that if lightning strikes and your opponent's petition is granted, you want to start from the get-go framing the issues and presentation to help your cause.
- There was a good presentation from someone new to the Supreme Court experience who made an interesting point that you need to keep an eye on what's going on with the remand in any case that might have a petition granted. Some funky things can happen in the meantime during that limbo petition for certiorari period that could affect the matter.
Judicial decisionmaking. There was a panel of all judges on judicial decisionmaking. Here are some snippets.
- Judge Edith Jones echoed points by other judges that attorneys should never forget that the personalities on the panel matter – the resulting decision reflects a group ethos – a melding of views as opposed to the view of the drafter alone had s/he been left to his/her own devices.
- The judges want to keep things moving, and hence can be attracted by waiver arguments.
- They are also always conscious of their role as opposed to that of the executive and legislative branches.
- One important point they made was that the judges are generalists, and you, steeped in your particular case, may not understand that some background and education could be helpful to them; otherwise, you may have them or their clerks roaming around on the internet on technical matters and you have no idea what they are looking at. This is a point, I would note, that should be kept in mind at the earliest stage, at trial, or with an administrative appeal, at the administrative level. Again, everyone at the administrative level is often talking the same advanced techno speak. If you, as the person keeping an eye on what the record will look like for potential appeal purposes, get the chance, make sure that some intro explanatory material has been put into the administrative record, which you can cite later to educate the judges.
- The judges said that they really like visuals, pictures, photos etc. put into the text of brief itself, as opposed to addenda or the appendix. As I noted previously, many commented that they had ipads now. So they are reading briefs anywhere, on the road etc.
- Yes, they admitted, they do consider who the judge was below. Byut you should not make too big a deal out of it.
- Generally speaking, the judges either start their review with the decision below, then the briefs, or look at the briefs just enough to identify the issues on appeal, then go look at the decision below.
- The judges probably haven't looked at the record before oral argument; it's only after the argument the clerks carry out a painstaking record review.
- Make the brief readable – have an intro, develop a theme.
- Judge Jones said that the Fifth Circuit is pretty choosey on what it gives oral arguments – if you get one in that court, it could mean the result is up for grabs.
Luncheon interlude. At one lunch, Scott Turow spoke about law and literature. He's a good speaker and a good writer – of both novels and briefs – I interned at the U.S. Attorney's office in Chicago when he was there before fame and fortune, and he was highly regarded as an AUSA. One point he made about the difference between writing novels and briefs is that with criminal case briefing, the defense just needs to raise doubt and not identify who did it; but if you are writing a mystery, you'd better answer that question.
The Constitution. Professor Klarman from Harvard gave a great presentation on the founding of the Constitution. If you are into originalism or not, it's useful, I think, to understand the context in which provisions were adopted. His explanation of the Ninth Amendment, for example, was illuminating.
The business of appellate practice. There were two sessions on this topic, one on the relationship between appellate and trial counsel, and one on developing an appellate practice. The short summary is that there seems to be a greater awareness of the usefulness of an appellate specialist, and his or her involvement early on in the case. For example, trial lawyers can usually identify how to preserve points (or else you need a new trial attorney). But if an appellate lawyer is involved at that stage, visualizing how everything is going to play out, s/he may help put on the record some specifics, beyond the preserving objection itself, to articulate the specific prejudice from the ruling that can help down the road. In discussing marketing, interestingly, two participants said their firms had no blogs, because they were afraid of offending a potential client or court, while one participant noted that his firm had two blogs and didn't see a problem. 15 states have specialization programs, 6 for appellate practice. The participant from New Mexico aided his practice by getting an appellate specialization approved that was useful for him as a marketing tool.
Work-life balance. The speakers gave some interesting statistics. E.g., where do the women who leave law firms for w/l balance go? 37% in-house, 9% government, 8% non-profits, 24% non-lawyer jobs and 22% unemployed. 6% of attorneys in law firms are part-time (70% of that 6% are women). This is compared to 14% who work part time in other professions.
E-reading. This last session was the one I found most interesting – given all these ipads and reading on screens, how does this change affect how we think and how to draft your brief? There are real physical considerations here.
- For example, dopamine is released when finding answers for quick searches – like cocaine. So that need for a quick answer is addictive.
- Research no longer involves having to hone in from a broad topic to get your specific answer any more, a process in which the specific answer was presented in context. Now people just look for and expect that quick, specific answer.
- Everyone is multi-tasking now, switching from one activity to another. Many people now have two screens in front of them these days – one is the brief they are reading, the other their outlook with all those enticing ongoing emails. (Or maybe they have one screen, but they get those pop-up email notices.) This going-back-and-forth is not easy – it actually dilutes memory and is harder on the brain for the general populace (except, strangely, about 17-18%, almost all of whom are women).
- In short, no one can concentrate any more. And when you read on screen, it's 30% slower, with the result that to compensate, people are skimming even more than they do with a printed page.
- Picture a blank screen. Then visualize a big capital F on that page. That's how people read generally – they read across the top, then along the left side and across in the middle if there's a heading. This phenomenon is even more pronounced with screen reading – they showed how the F was lit up with mushy, broader absorption outside those lines than on a printed page. On the screen, everything outside the F is grey. This is because people are unconsciously constantly looking for the structure, to speed them along and help them skim.
- People are reading more today, and absorbing more, but it's not deep reading. If you spend all day on a screen, you have a physically hard time reading a long text or book.
- So what to do in this Brave New World? People are only reading the first page, and each argument you have is like a new chapter. You need a great intro, and you've got to use a visible and intuitive structure for your brief to enable skimming that works for you. No more long paragraphs. Lots of headings, outlines, bullets, and numbered points. Put important information in the heading and first sentences, and put examples in bullets that the readers can skip if they want to. Make it look less like Dickens and more like a good website. Your first Google page doesn't have a lot of text on it; rather, it's got lots of roadmapping.
- When you are sending the court a pdf, make sure you bookmark it. If you can, edit your bookmark to have short 4-5 word headings, because you can't see any more than that on an ipad.
- You have to make the brief as simple and accessible as possible. Obvious structure, visuals, and no string cites. Include and don't screw up the pin cites. You need to make it easy for the reader to go as quickly as s/he wants and still pick up the major points, while laying out an easily observable roadmap that facilitates the interested reader to dig into the weeds.
- While many of these points are useful even for printed-out briefs, the takeaway was that it's even more important with screen reading.
This is a long entry, and it just scratched the surface. It was a very useful conference.