Appellate Law

This stock photo of a leather-clad woman motorcyclist is topical rather than gratuitous, we’re sorry to say.

Isn’t it nice when appellate courts hear oral argument at law schools? It’s great for bench-bar relations for the judges to leave their marble palace and spend some time with the legal community. It’s great for law students to see what real-world litigation looks like without having to leave campus. It’s generally a win-win situation for all involved.

But a recent calendar at a New York law school didn’t go so smoothly. The legal profession has a sexism problem, but there’s no need for judges to demonstrate it by directing sleazy quips at women lawyers arguing before them….

(Please note the UPDATE, featuring the identity of the judge in question.)

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* Apparently, heckling Carmelo Anthony can cost you your job. [Dealbreaker]

* There’s nothing the Supreme Court can do to stop cops who want to take a long time to release you from a stop, even if the Court wants to. [Simple Justice]

* I think we should just ask John Roberts to tell every state precisely how they are allowed to discriminate against black voters and be done with it. Just tell us the rules so we can start the GOTV campaigns. [Election Law Blog]

* Former Manhattan Assemblywoman Gabriela Rosa gets a year in jail for purchasing a sham marriage to gain citizenship. The “for citizenship” part is what got her, because lots of politicians are in sham marriages. [Journal News]

* Judge Frank Easterbrook thinks that the new proposed length limit for appellate briefs is too short. Verbose litigators everywhere, rejoice. [How Appealing]

* I thought “spoofing” was bad for the market, but Matt Levine says cracking down on spoofing “helps” high-frequency traders, who I also think are bad for the market. You know why I’m not an SEC lawyer? Prosecuting people based on them being “bad” becomes untenable when everybody involved is rich. [Bloomberg View]

In past columns I wrote about how a lawyer and a judge use iPads as part of their daily routine. And there’s a good reason that iPads were the first tablets discussed; it’s because the vast majority of lawyers who use tablets in their practices choose the iPad. In fact, according to the 2014 ABA Legal Technology Survey, 84% of lawyers surveyed who used tablets preferred the iPad and only 10% used Android devices, with the remaining 6% using other types of tablets.

The lawyer I’ll be featuring today, Scott Bassett, is one of the 6%. Scott is a solo practitioner who lives in Florida with a practice focused on Michigan appellate work, and his tablet of choice is the Sony Digital Paper model #DPT-S1. Even though his Sony tablet costs more, he prefers it over the iPad because it’s versatile and substantially lighter: “My tablet is so thin and light you barely know you’re carrying it. At $1,100 it costs nearly twice as much as the iPad, but weighs half as much as the iPad Air. Not only is it lighter, it has a full-size, 13.5-inch screen, so documents appear on my screen full size. It’s a better screen than the iPad Kindle app because of the backlit LCD screen. It’s much easier to read and offers better reading comfort when you’ve got hundreds of pages of trial transcripts to read through. And, the batteries last nearly an entire month.”

What are some of its other advantages?

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Appellate practices are great.

For lawyers who enjoy thinking and writing, but don’t have much taste for the hand-to-hand combat of discovery, appellate practices are pure joy. Appellate advocates bask in the intelligence and majesty of the law, without having to do daily battle with psychopaths.

For big firms, appellate practices are the crown jewels of the litigation side of the shop: “We’ve argued cases in the Supreme Court!” “We participated (either on the merits or as amici) in ten percent of the Supreme Court’s docket last year!” Shout it to the heavens! What’s the implicit message?

“We’re doing these cases for free!”

Oh, Herrmann, you’re such a cynic. Surely the implicit message is: “We’re God’s gift to advocacy!”

It’s a marketer’s dream.

But one leading appellate lawyer recently told me that the Great Recession has hurt his practice in ways you wouldn’t expect. And I’m here to tell you that, although appellate practices done right can help a firm, appellate practices done wrong are dangerous things . . . .

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Judge Richard Posner isn’t amused — but we are!

Judge Richard Posner isn’t trying to entertain us. He just does.

When he benchslaps prominent Biglaw partners or government lawyers fighting marriage equality, he’s not trying to be funny. He’s just trying to understand the facts of a case or get to the bottom of the legal arguments — and he’s, well, maybe not as diplomatic as some other judges in going about his business.

Let’s check out the latest argument where Judge Posner snarked on hapless counsel….

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There’s not really much to say here. There are just a few things to remember to avoid an embarrassing oral argument. Basically, don’t condescend to the judges on your appellate panel, and try to show up wearing pants (and maybe some socks). Pretty simple, right?

We’ve seen this kind of confrontational tone out of lawyers before, and it never ends well for the attorney. Like when Jones Day’s Matthew Kairis thought it wise to continuously interrupt Judge Posner in Notre Dame v. Sibelius. What happened next was… entirely predictable: Kairis ended up with an earful from Judge Posner about the proper role of an advocate before an appellate panel.

This poor fellow earns the same basic tongue-lashing, just with a different accent…

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Judge Richard Posner

From the Above the Law mailbag: “Is ATL ever going to call out Judge Posner for being so needlessly nasty to litigants?”

Ummm, no. I’m a big fan of Judge Richard Posner, who is brilliant and hilarious. (Yes, hilarious — if you doubt that, check out the awesome podcast that he and I did together, which you can download and listen to during your commute or at the gym.)

But in the interest of fairness, I will make this reader’s case. This correspondent cited the recent oral argument in Notre Dame v. Sebelius, which we alluded to yesterday, in which Judge Posner dispensed some benchslaps to Matthew Kairis, head of litigation in the Columbus office of Jones Day. The reader also mentioned the argument on remand in the Conrad Black case, alleging that Posner “was particularly nasty to Miguel Estrada, seemingly piqued that Estrada got him reversed by SCOTUS.”

Let’s focus on the Notre Dame v. Sebelius argument, since it just happened. How bad was it?

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Judge Frank Easterbrook

Let’s play a game of circuit-court word association.

D.C. Circuit? Prestigious.

Ninth Circuit? Wacky.

Sixth Circuit? Vicious.

Seventh Circuit? Benchslappy.

If you question this assessment, please consider the latest benchslaps emanating from 219 South Dearborn Street….

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Elizabeth Wurtzel

* Elizabeth Wurtzel: “I am a lawyer. The first rule of law: All the promises will be broken. Attorneys could not be in business if people did not fail to do what they agreed to do all the time — and lawyers are very busy.” [Nerve.com]

* Laura Ingraham clerked for SCOTUS, so presumably she knows that Puerto Ricans are American citizens — right? [Media Matters]

* Chief Judge Alex Kozinski, known for zero tolerance of prosecutorial misconduct, has written the foreword to a new book on the subject. [Facebook]

* In addition to the one we mentioned yesterday, here’s another petition for the Obama Administration that’s aimed at addressing the student debt crisis. [WhiteHouse.gov]

* Thomson Reuters Concourse keeps getting bigger and better. [Thomson Reuters]

* Appellate law? In California? What’s not to like? Check out these job openings in the California SG’s office. [California Department of Justice; California Department of Justice]

* Want to know the backstory behind the awesome Jamie Casino Super Bowl ad? Keep reading….

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Justice Scalia is kind of a troll sometimes. He routinely snarks out his fellow justices and is a total dick to legal luminaries like Judge Posner. His belligerence is drenched in sarcasm and usually arbitrary.

In a sense, Antonin Scalia is ATL’s spirit guide.

But when he went after an attorney appearing before him, he got immediately chastised by a fellow justice and raised the ire of even conservative commentators.

In this instance, I’m going out on a limb and say Justice Scalia was absolutely, positively, 100 percent right….

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