What makes appellate judges change their minds at oral argument? Judge Robert Bacharach of the 10th Circuit tells Jeff Lewis and me that judges can hear the same arguments with fresh ears.
For example, arguments may have been unclear, and oral argument is an opportunity to make it clearer.
Or your brief raised too many arguments and confused the reader, and oral argument may allow you to focus on your best argument.
Appellate attorney John Reeves joins Jeff Lewis and me on the California Appellate Law Podcast to discuss incorporating amicus briefs into your appellate strategy. John discusses Marin Housing Authority v. Reilly, a California case pending possible review by the United States Supreme Court, and has already attracted the interest of amici.
John M. Reeves, Tim and Jeff also discuss amicus briefs, when you should consider soliciting amicus briefs in your appeals, what kinds of arguments are best suited to amicus briefs, and other aspects about practicing appellate law.
Listen to the episode here: https://lnkd.in/g6gbS_a
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Do appellate judges want to hear from you at oral argument? Contrary to many appellate practitioners' perspective in California state courts, Judge Robert Bacharach of the 10th Circuit tells appellate attorneys Jeff Lewis and me that the unwritten rule among federal appellate judges is to come to conference with a tentative vote, otherwise they won't get assigned authorship.
Despite this, however, Judge Bacharach has changed his mind many times based on oral argument, and once even wrote two separate opinions, one to affirm, and the other to reverse!
You are wasting your best opportunity to persuade if you are not prepare complete tables of contents in your briefs, Judge Robert Bacharach of the 10th Circuit tells Jeff Lewis and me.
The table of contents shows your reader the gist and structure of your brief. Yet probably half of litigants are leaving this rich vein unmined.
Avoid "throat-clearing" in your writing, but have a care for when "softening" may be needed.
Judge Robert Bacharach of the 10th Circuit tells appellate attorneys Jeff Lewis and me that meaningless expressions, like, "It should be noted that," are largely overused. But they can serve a useful purpose.
I recalled this anecdote about novelist James Thurber, who was once asked: “Why did you have a comma in the sentence, ‘After dinner, the men went into the living-room’?” His answer: “This particular comma was Ross’s way of giving the men time to push back their chairs and stand up.”
Are the briefing limits in your court based on page count? Or word count?
If page count, you still may be better off using Times New Roman, says appellate attorney Frank Lowrey in this edition of the world famous CAL Podcast's Lightning Round.
Other vexing questions discussed: One space after a comma, or two? Pled, or pleaded? And where do you stand on the use of the citation parenthetical "(cleaned up)"?
Are you using general verdict forms at your next trial? Or special? This can be a critical choice, as appellate attorney Frank Lowrey explains on the California Appellate Law Podcast.
A simple general verdict form cannot tell you whether a certain alleged error at trial influenced the verdict. On the other hand, a special verdict form with multiple interrogatories may lead to inconsistent verdicts. This balancing underscores the importance of having appellate counsel involved pretrial.
Appellate attorney Frank Lowrey exchanges perspectives with Jeff Lewis and Tim Kowal about the recent Mahoney case in which a California Court of Appeal held an attorney in contempt for impugning the court's integrity, and discusses whether the level of civility has declined in the legal profession, and whether perhaps the Court of Appeal overreached by suggesting the integrity of the courts may never be questioned.
Judge Robert Bacharach of the 10th Circuit is not a fan pop-culture references in legal writing. Too much levity in judicial opinions, the judge says, may tend to relax the standards of professionalism among the bar.
The parties, particularly at the appellate level, are entitled to respect, and "artful" advocacy may be seen as disrespectful. Use with extreme caution!
Why aren’t the judges asking me any questions? Is it because I am winning? Or because I am losing? Or because the judges have gone to their happy place?
Appellate attorney Frank Lowrey exchanges experiences with Jeff Lewis and me about cold benches.
Here is one reason why trials are so stressful:
What do you do after the jury hears something improper? Object and draw attention to it? Or do nothing and waive?
Appellate attorney Frank Lowrey discusses the options with Jeff Lewis and me. The law presumes that curative instructions purge any prejudice by the offending statements. But one is reminded of the retort Dickens put in the mouth of Mr. Bumble in Oliver Twist upon being informed the law would presume his wife acted at his instruction: "If the law supposes that, the law is an ass — an idiot."
Legal Writing Tip for the Day: Your readers pay most attention to the end of a sentence. Judge Robert Bacharach of the 10th Circuit tells Jeff Lewis and me that, according to many psycholinguists, readers' comprehension and focus is at its height at the end of a sentence. Craft your sentences accordingly!