Legal News and Appellate Tips

Appellate practitioner and former Florida Supreme Court career staff attorney Lindsey Lawton sits down with us to talk legal writing. For Lindsey, writing is not just her day job, she draws influence for use and enjoyment of the written word from beyond legal briefs. While she maintains a grammar beat on LinkedIn, Lindsey says language ultimately is about being a communicator, not a technician.

(Example: I asked Lindsey if the example “the reasons are as follows” is technically incorrect as containing a subject-verb disagreement. Yes, says Lindsey, but “as follow” just sounds too weird.)

Then we continue our experiment in comparing and contrasting state procedural rules. Here is what we gleaned about the differences between California and Florida:

👉 In FL, the Supreme Court makes the rules of civil procedure, unlike CA where that is the province of the legislature.

👉 Unlike CA, in FL the rules allow parties to create an electronic recording of proceedings for purposes of an appellate record.

👉 Both CA and FL have no horizontal stare decisis: district appellate courts may freely disagree with one another.

👉 But unlike CA, a FL District Court of Appeal cannot ignore its own past decisions: to do that, it has to take the matter up en banc (like in the federal system).

👉 Unlike CA, in FL all the appellate opinions are published.

👉 But unlike CA, in FL there is no right to a reasoned opinion, meaning most affirmance are summary affirmances (how frustrating!!).

👉 Unlike CA, in FL there is no right to oral argument on appeal.

👉 Like CA, FL is beginning to experiment with “focus orders,” identifying issues counsel should be prepared to discuss at oral argument.

👉 Like CA, FL follows the doctrine on appeal that a judgment will be affirmed if valid for any reason, even if the trial court’s stated reasons were deficient or wrong.

👉 But FL has a much more colorful name for this: the Tipsy Coachman doctrine!

Appellate attorney John Nielsen is forever grateful to his mentors when he was a young attorney, and he pays it forward now both as a mentor himself and by offering tips on legal writing published at the Appellate Advocacy Blog. John discusses his approach to training young associates, and to legal writing.

Then we turn to how Utah differs from California in civil and appellate procedure, including:

👉 Unlike CA, the UT Supreme Court promulgates its own rules that govern the courts.

👉 Perhaps as a result, in UT there is no court-reporter crisis. Instead, proceedings are electronically recorded. If you need a transcript, a court reporter will transcribe the recording. (This is an important #AccessToJustice issue.)

👉 Unlike CA, UT appellate decisions are binding on the appellate court. The court can overrule its past decisions, but it cannot just ignore them, as often happens in CA.

👉 Unlike CA, all UT appellate opinions are published.

👉 Unlike CA, UT appellants are not entitled to a reasoned opinion on affirmance—which is why many appeals are disposed of by order.

And in true appellate-nerd fashion, during the Lightning Round John and Tim briefly debate the exceptions to using ‘s to make possessives of certain words ending in s.

Many years ago, I kept a blog that ran a short series called “A Plague on Words,” in which I criticized certain expressions I thought confusing or unhelpful. My entry on the expression “yeoman’s work” became a top Google search result, and earned me a lot of hate mail. But 12 years later, I pretty much stand by what I wrote. I reproduce the entry here.

The tl;dr version is: Try finding the meaning of “yeoman’s work” by looking up the word “yeoman” and you’ll see a definition for a hard-working peasant farmer and a do-nothing ceremonial government minister. Based on that, how is someone otherwise unfamiliar with the expression to know whether the expression is a compliment or an insult?

M.C. Sungaila has advocated at some of the highest levels of appellate law, and last year took her experience and her heart for mentoring and public interest work to the Portia Project podcast, where she distills the wisdom and experience of women judges, justices, and top attorneys in the nation.

M.C. sits down with Tim Kowal and Jeff Lewis on the California Appellate Law Podcast to discuss some of the insights and recurring themes and advice she’s gleaned from having interviewed now over 100 of the most successful women in the legal profession today:

• The “watershed moment” in the 1980s when Sandra Day O’Connor became the first woman on the Supreme Court, opening the floodgates for women in law.

• The varied paths to the bench, taken by lawyers who never thought it possible.

• A law degree doesn’t just mean one thing, and success sometimes mean failing at your first try, second try, etc., until you find the right fit.

• The disconnect between lawyers and judges: Advocates are looking for an outcome, but appellate judges are looking for an opinion.

• Appellate judges look at oral argument as another part of their process in preparing to make their decision. Don’t look at oral argument as just an isolated 30-60 minutes—that’s not how the panel sees it.

Legal writing and editing nerds, you may have opinions on this. Benjamin Shatz sounds off on whether the Blue Book or the Yellow Book is the superior form of legal citation. Ben’s […]

I sometimes ask our podcast guests their favorite part of the appellate process…other than writing the briefs. Because we already know that every appellate attorney’s favorite thing is writing. So here I try my own explanation why writing is such a fun adventure: because it is a journey to another country. Reaching another person’s mind is a most difficult thing. Done poorly, the traveler is left marooned and alone. Done well, the traveler is met by new friendly company.

William Hazlitt’s observation is what I have in mind when it comes to translating complex ideas to another soul. He said that “the more you really enter into a subject, the farther you will be from the comprehension of your hearers—and that the more proofs you give of any position, the more odd and out-of-the-way they will think your notions.”

In a way, we are all a bit like Whitman: we are untamed, and untranslatable. Usually the most we do is to sound our barbaric yawps over the roofs of the world. Good writing requires we stop our yawping over rooftops and to consider the fact of the other. Good writing is an act of peace, and of friendship.

“You have an informal writing style.” How do you take that? Compliment, or criticism?

This is hard to answer, says legal writing pro Ross Guberman. There is a strong trend in favor of more direct and approachable legal writing—and in this sense, “informal” is a compliment. But there is also a trend among judges—and lawyers following suit—toward the pithy (Twitter-ready), the precious (pop-culture-referencing), and even the biting (Judge VanDyke’s McDougall concurrence).

While there is something to be said (good or bad) about the attention-grabbing lines, Ross explains what really takes skill—and achieves persuasion—is to write as though you were having a conversation.

If you write your brief in a straight line, legal writing pro Ross Guberman might give your brief high marks as being Flowing & Cohesive. But if you write like Tocqueville did—as “an act of discovery”—you may need these tips from Ross on how to make your brief more Flowing & Cohesive.

If you have not seen a case citation with a parenthetical (”cleaned up”) yet, you will eventually. Writers use it when altering—ever so slightly—quotes from legal authorities. Legal writing pro Ross Guberman explains why some attorneys love it, and others hate it.

Ross also addressed my view: that I trust judges to “clean up” quotations, but I don’t know if judges and law clerks would trust us attorneys’ trying our hand at it. Ross is not enthusiastic about double standards in legal writing: if judges adopt a practice, it is too much to expect lawyers not to follow suit.

Do quips and “Twitter-ready” lines make for good legal writing? Legal writing pro Ross Guberman says the better approach is “quieter,” less conspicuous writing that “rises above the fray” by being clear, flowing, and concise.

Drawing from his experience training federal judges and top law lawyers how to write more effectively, Ross Guberman shares some of his best writing tips with Jeff Lewis and Tim Kowal on episode 33 of the California Appellate Law Podcast at www.CALPodcast.com.
Ross also gives a tour of his latest product, BriefCatch 3.0 (now available on Mac), a tool that scores legal briefs for engagement, readability, flow, punchiness, and clarity. Not sure how to take your writing from merely proper English to Elena Kagan? BriefCatch provides in-app examples of some of the best passages of Supreme Court justices.

Here are some of the tips Ross covers:

✍️ Why more judges are using pithy, attention-grabbing language—and why you shouldn’t imitate it in your briefs.
✍️ Rising above the fray without resorting to quips.
✍️ Getting the judge’s attention by tapping into three universal fears all judges have.
✍️ Discussing “bad facts” confidently, not defensively.
✍️ Using BriefCatch to improve your briefs.
✍️ Remember the purpose of legal writing is to help judges organize their thoughts—briefs are a tool, but aspire to make them tools that are a pleasure to use.

Legal commentators were taken aback by Judge VanDyke’s concurring opinion mocking the 9th Circuit’s inevitable en banc review of the majority opinion—also authored by Judge VanDyke. But Second Amendment litigator Sean Brady explains why he thinks Judge VanDyke will be vindicated in his criticism of the 9th Circuit’s trend of late on Second Amendment cases. And Jeff Lewis and I—while disagreeing on the merits of the gun rights question—also agree that satire and a bit of cheek can be valid tools to bring attention to an important issue that might otherwise be ignored.