The Appellate Record

Editing Fast And Slow

Kendall Gray — Wed, 25 Jan 2012 04:13:04 -0600

Several months ago, I was working on the next in a series of articles for Texas Lawyer. I had decided to try and write a "how to" article about editing.

This, of course, was a mistake, because Murphy's law holds that an article on editing will take longer to edit than any article I've ever done.

But now I'm truly in the big time because the article is being carried in both the Texas Lawyer and the National Law Journal.

(This, of course, is in addition to the strong freshman year I'm having as the big man for the Delaware State Hornets. Although they grossly exaggerate my height by listing me at 6' 10").

So, I've got that going for me.

Which is nice.

Basically the article is a list of techniques, many suggested by you readers, to make anyone a better editor. Most of the tricks are designed to make you slow down and think critically about what you actually put on the page rather than just breezing past what you thought you said.

Since I finished the article I picked up the book "Thinking Fast And Slow" by Daniel Kahneman, a Nobel laureate in economics. I'm only just into the book, but I already wish I had read it before writing my own little piece.

Kahneman describes how our brain has two different systems, "System 1" and "System 2" for short.

System 1 is that part of the brain that does things, sometimes remarkable things, intuitively and without conscious thought.

System 1 can tell in an instant if your spouse is angry when he/she calls. System 1 can tell if you were the subject of the conversation before you came into the room. System 1 may have largely driven you to work this morning. System 1 is what slams on the breaks or recognizes danger even before your conscious mind knows why.

But System 1 is the part of the brain that edits intuitively and with too little analysis or criticism.

System 2 is the conscious, complex, analytical part of the brain.

System 2 is the part of your brain required to multiply 47 times 13.

System 2 is the part of your brain that a non-master chess player uses to evaluate a position

System 2 is the part of your brain that makes the more careful editor. The judge, who does not know your case, will be trying to process much of the information with System 2 and does not have the System 1 intuition you have after living with the case for so long.

As I think on it now, many of the editing hints in the article are just ways to keep System 1 at bay and keep System 2 awake. I wish I'd read the book first.

Font Humor--Must Have

Kendall Gray — Tue, 24 Jan 2012 04:00:13 -0600

I wonder, could I wear this at the office?

Arial and Comic Sans versions also available at Not-My-Type.com

Ginsburg, The Originalist (Golan v. Holder)

Kendall Gray — Fri, 20 Jan 2012 04:27:32 -0600

On Wednesday, the Supreme Court released its opinion in Golan v. Holder, upholding as constitutional Section 514 of the Uruguay Round Agreements Act.

The provision restored copyright protections to certain works that had been in the public domain in the U.S. but were protected elsewhere. The challengers contended that Congress had exceeded its power under the Copyright Clause of the Constitution and had run afoul of the First Amendment.

After the jump, you'll find out what an otherwise arcane opinion on Section 514 of the URRA has to do with Scalia and Ginsburg on an elephant. Are you going to get that kind of insight from SCOTUSBlog? I think not.

Justice Ginsburg, writing for the court, rejected the challenge. I found two things particularly interesting about the case.

First, Justice Ginsburg adopted an uncharacteristically Scalia-like, "originalist" approach to constitutional law as a large part of her reasoning. She noted that "Historical practice corroborates our reading of the Copyright Clause . . . ." There followed a Nino-esque history lesson which concluded:

As we have recognized, the “construction placed upon the Constitution by [the drafters of] the first [copyright] act of 1790 and the act of 1802 . . . men who were contemporary with [the Constitution’s] formation, many of whom were members of the convention which framed it, is of itself entitled to very great weight.” Burrow-Giles Lithographic Co. v. Sarony, 111 U. S. 53, 57 (1884).

Nothing warms my heart quite like citation to a 19th century precedent and originalist analysis. Usually, I have to turn to Justice Scalia for that sort of thing. But Justices Ginsburg and Scalia are known to be great friends. They have even been known to share the occasional elephant ride. (See above). I suppose one can hardly share such things as elephant rides without one having one's legal reasoning influenced.

One other thing caught my eye. The challengers noted that Congress can only grant copyright protection for a "limited" time under the Constitution. They argued that if Congress can put things back under protection once they are in the public domain, the power is no longer limited. It is potentially perpetual.

Sound familiar? The argument is very like the challenges to the Affordable Health Care Act--i.e., "If Congress can require Americans to purchase a product or service under the Commerce Clause, what possible limitation is there to legislative power?"

Justice Ginsberg and the majority (which included her elephant partner) rejected the argument, at least on this occasion. Even if Congress might some day be up to no good, there was no indication that was present in this case:

Carried to its logical conclusion, petitioners persist, the Government’s position would allow Congress to institute a second “limited” term after the first expires, a third after that, and so on. Thus, as long as Congress legislated in installments, perpetual copyright terms would be achievable. As in Eldred, the hypothetical legislative misbehavior petitioners posit is far afield from the case before us. See 537 U. S., at 198–200, 209–210. In aligning the United States with other nations bound by the Berne Convention,and thereby according equitable treatment to once disfavored foreign authors, Congress can hardly be charged with a design to move stealthily toward a regime of perpetual copyrights.

Mischief managed.

I'm watching the Court's term a little more closely this year as I am slated to give the SCOTUS update at the UT Conference on State and Federal Appeals at the end of May. So keep watching this space for more in-depth court watching that you won't find anywhere else.

It's all about the elephants.

Font Humor--Goth Briefs?

Kendall Gray — Tue, 17 Jan 2012 04:41:46 -0600

From the nice folks over at BuzzFeed.

I recently read about the American pedigree of this early, sans serif font in "Not My Type." I thought it made nice headings. Using it made me feel all nationalistic--you know, "Buy American. We don't need no fancy Swiss fonts."

Now it makes me think of Abby from NCIS.

Is This Going To Be On The Test? (Story Time For Litigators)

Kendall Gray — Thu, 12 Jan 2012 04:30:55 -0600

There was awhile there when I thought I didn't like history.

Like when someone was trying to teach me history and not doing a very good job of it.

History taught badly is a procession of events that I don't care about listed by dates that I cannot remember.

But actually, I love history.

I love it when I learn it myself or when it is taught well.

History taught well is a story--a buffet of characters that are related by their ideas and the times in which they lived.

It is drawing connections between Napoleon and Beethoven, connections between Degas and Debussy, between Churchill and Thatcher.

Which is why I'll delete dang near all the dates from your brief if given half a chance.

Let me explain.

No. It's too complicated. After the jump, let me sum up.

Those of you who are a certain age will certainly remember sitting in a movie theater in 1977, hearing the blast of an opening fanfare as words started to scroll across deep space. Everyone knows the words at the beginning of the Star Wars story:

On or about November 14, 1066 in or around Tatooine . . . .

No? Of course not. That's not how stories begin. Stories--really good stories--begin:

A long time ago, in a galaxy far, far away . . . .

Or maybe:

It's been a quiet week in Lake Woebegone, my home town, out there on the edge of the prairie . . . .

Or how about:

It was the best of times. It was the worst of times.

He was an old man who fished alone in a skiff in the Gulf Stream and he had gone eighty-four days now without taking a fish.

Elmer Gantry was drunk.

In the beginning, God created the heavens and the earth.

That's how stories begin. And although none of the trial lawyers believe me, there's not a date in the lot because the dates don't matter!

Depending upon the point you're trying to communicate, nobody cares if the action of the characters took place on the 12th or on the 13th. Only the relation between the time and place to the characters or the reader matters:

Star Wars: In creating fantasy, the precise time and place are irrelevant; it is just wholly other, long ago and far, far away.
Prairie Home Companion: It's always (and never) a quiet week in Lake Woebegone.
Tale of Two Cities: Paris in the age of revolution is contradiction and tumult.
The Old Man and the Sea: It doesn't matter what days the Old Man went fishing, just that the Old Man on the sea never relents.
Elmer Gantry: Elmer Gantry is always drunk.
Genesis: God was the original cause.

On the rare instance that dates are material, they are probably only material in their proximity to other events. For example, back to our poorly written tale of Little Miss Muffet. There, the lousy trial lawyer (i.e., me) wrote:

COMES NOW, Dr. Thomas Muffet (hereinafter "Muffet" or "APPELLANT") and by fourteen points of error does hereby challenge the judgment of the Family Court in terminating his parental rights viz. his adopted step-daughter, Patience Muffet (hereinafter, "the Child") for, inter alia, endangering the Child on or about June 7, 2010 by exposing the Child to a venomous spider where the child lodged in the APPELLANT'S home. APPELLANT would respectfully show:

[Extended and Scrupulously Accurate Chronology Omitted]

On November 4, 2011, APPELLANT adopted the Child and took her into his home.

No human being experiences events this way. The point of the story, legally and factually, is that Dr. Muffet was not Miss Muffet's parent and had no parental duty to protect her on the day the that spider sat down beside her. So just say it. Spell out the relationship:

"The State complains that Dr. Muffet, in his role as a parent, exposed Little Miss Muffet to a spider in his home in June, but this was almost five months before Dr. Muffet adopted Little Miss Muffet, five months before he assumed parental duties, and five months before he took her into his home.

We experience life in story. We learn by story. We see ourselves in story. We connect with one another through story. If you begin most of your sentences with dates, you're not telling a story. You're just copying and pasting your chronology. You're not connecting. You're teaching history without imagination. And your reader is desperately wondering:

Is this going to be on the test?

And if they're thinking that, you're not persuading.

Font Humor--Proper Business Attire Required

Kendall Gray — Tue, 10 Jan 2012 04:35:24 -0600

From the folks at BuzzFeed . . . .

Story Time For Litigators: Part Deux (The Big Problem)

Kendall Gray — Fri, 06 Jan 2012 07:54:36 -0600

Recently, we left poor, Little Miss Muffet on the edge of a cliff. Her adoptive step-father, Dr. Muffet, had suffered a judgment in which his parental rights were terminated. But Dr. Muffet's lawyer "handles his own appeals." So he wrote the brief himself.

(I say "he" only because this attitude is decidedly old-school, and bespeaks a certain ego, which makes this lawyer presumptively male.)

Not that there's anything wrong with that.

But the brief in my (mostly) fictional story had a big problem.

And no, it wasn't the extraneous dates or the legalese or the gratuitous adverbs. Those are just symptoms that make up the "big problem."

After the jump is the big reveal on what the big problem is.

The big problem is you can't tell what Dr. Muffet's point is.

In reading my example of a poorly drafted fact section, did anyone happen to catch on to the reality that Dr. Muffet was entitled as a matter of law to have his parental rights restored?

The incident complained of--the infamous spider near the tuffett whilst curds and whey were consumed--happened many months before Dr. Muffet adopted Little Miss Muffet. He was not her FATHER when the supposed endangerment happened.
The spider complained of was not actually a spider at all, and was completely harmless.
There was no endangerment.
Oh, and it wasn't Dr. Muffet's non-spider.

Did you see all of that in the original fact statement?

If so, you deserve a medal. The writing could not have been more obscure if the author had intended to leave the judge alone in a fog like the picture above.

Of course I was the writer and that is exactly what I intended. But it is not far off from a lot of legal writing. There's nothing to clue the reader into which facts are important, either before the fact section itself or in the way the fact section is drafted. Instead, the lawyer has just dumped everything in his chronology notebook into the narrative.

It all may be true. But it's not all important.

Perhaps we lawyers are too shy. Why won't we just come right out and say:

What we want; and
Why are we entitled to it.

Doing so not only tells the judge what is important, it clues in the lawyer concerning what can be cut or what should be emphasized.

In Dr. Muffet's example, a summary before the fact section that reads something like:

Dr. Muffet is entitled as a matter of law to have his parental rights restored. The episode of alleged endangerment about which the state complains occurred before Dr. Muffet was Patience Muffet's adoptive parent. And it wasn't endangerment at all. The bug that scared Patience Muffet was non-venomous, and was not an insect that escaped from Dr. Muffet's collection because the incident did not occur at his house.

In a previous post on legal writing, I've mentioned the advice I was given from a colleague who is now an appellate judge. Her advice was to write so clearly that your brief can be understood by the judge who's reading at 3 o'clock in the morning while drunk.

In another, I mentioned giving the reader a road map before launching into the narrative. Don't kidnap the reader.

A good summary and some idiot-proof headings can go a long way to accomplishing this. Don't be coy. Don't leave the reader to work out and infer what your point is.

JUST SAY IT.

Coming soon: why I hate dates and delete them any time I get a chance. Watch this space.

SCOTX 2011

Kendall Gray — Fri, 30 Dec 2011 08:53:17 -0600

As 2011 comes to a close, everyone else is doing their year in review editions.

Not to be left out, we at the Appellate Record thought we'd do a comprehensive summary of the significant cases from the Supreme Court of Texas for the year 2011.

Well, not so much. I just got asked the other day for my thoughts on significant cases and developments and the four areas I thought of are listed below after the jump.

In no particular order, they include the statute of limitations, fraud, expert testimony, and Kelo as applied or not applied to pipelines.

Enjoy.

Well, it's been a quiet year in the Supreme Court of Texas, my home court.

Quiet, that is, unless you consider the titanic, historic, and folkloric events of this fall when the court was completely caught up on its work for the first time since Sam Houston was a boy.

The Court has really rolled up its sleeves and taken care of business.

In all the work, these opinions stood out for me as being the most significant.

BP v. Marshall--the first in a series of cases from the Court in 2011 that put real boundaries on the ability to delay filing suit by claiming "fraudulent concealment." The limit results from treating "reasonable diligence" as a question of law, rather than a question of fact. The Court stated that the Marshalls were obliged to perform additional investigation to protect their interests, and that their claim was barred if they could have discovered wrongdoing by reviewing information available in the public record, or through means other than defendant's representations before limitations expired.
Italian Cowboy Partners, Ltd. v. The Prudential Insurance Company of America--How (if at all) can you avoid the accusation that an agreement was induced by fraud through language in the agreement that was supposedly induced by fraud? After a dissertation in legal history, the court stated that pure merger clauses, without an expressed clear and unequivocal intent to disclaim reliance or waive claims for fraudulent inducement, have never had the effect of precluding claims for fraudulent inducement. To disclaim reliance, parties must use clear and unequivocal language--like using the term "rely" maybe. Expect more cases on the topic of what is clear and unequivocal enough.
Merck & Co., Inc. v. Garza--Did the Supreme Court really mean what it said in Merrell Dow Pharmaceuticals, Inc. v. Havner? Do you really have to have epidemiological studies showing a "statistically significant doubling of the risk" -- even the risk of heart attack in a Vioxx case? Yup. You do. Especially if the plaintiff has a 20 year history of coronary artery disease unrelated to the drug, including a prior heart attack, quadruple bypass surgery and multiple heart catheterizations.
Texas Rice Land Partners, Ltd. v. Denbury Green Pipeline-Texas, LLC--Pipelines can exercise eminent domain in Texas, right? Everyone knows that, right? I mean, we've got tons of them. We pipe fuel from the Gulf of Mexico to the whole country. Not so fast, Kimosabe. In a potential example of anti-Kelo sentiment, the Court held that "[m]erely registering as a common carrier does not conclusively convey the extraordinary power of eminent domain or bar landowners from contesting in court whether a planned pipeline meets statutory common carrier requirements." This set off a flurry of motions and amici briefs on rehearing that has yet to abate and has yet to be resolved. Stay tuned.

What does 2012 have in store? I'm sure 2012 will be a quiet year too.

Font Humor--Hipster Ariel

Kendall Gray — Thu, 29 Dec 2011 08:44:22 -0600

Hat tip to the unknown meme inventor.

Judge Per Curiam to the Rescue: Ryland Enterprise v. Weatherspoon

Kendall Gray — Mon, 19 Dec 2011 10:17:17 -0600

When counting your blessings, do not neglect to mention Judge Per Curiam at the Supreme Court of Texas. On Friday, Judge Per Curiam threw out a life line to rescue an appeal.

The lower courts had held that a pre-judgment motion for JNOV did not extend the appellate time table. Judge Per Curiam, kind and soft-hearted chap that he/she is, held that it was close enough.

The prejudgment NOV motion did extend the appellate time table, making the notice of appeal timely. To prove it, Judge Per Curiam took a jaunt through the rules governing appellate time tables in a manner befitting someone sitting for the board certification exam (*ahem*).

In this case, a number of overlapping procedural rules apply. Under Rule 26.1, the normal filing deadline for a notice of appeal is thirty days. That deadline is extended to ninety days “if any party timely files: (1) a motion for new trial; [or] (2) a motion to modify the judgment.” TEX. R. APP. P. 26.1(a)(1)–(2). Texas Rule of Civil Procedure 329b states that a motion for new trial is timely if filed “prior to or within thirty days after the judgment . . . complained of is signed.” TEX. R.CIV. P. 329b(a) (emphasis added). This “prior to” language is supplemented and clarified by civil rule 306c, which provides that “[n]o motion for new trial . . . shall be held ineffective because prematurely filed; but every such motion shall be deemed to have been filed on the date of but subsequent to the time of signing of the judgment the motion assails.” TEX. R. CIV. P. 306c. The Rules of Appellate Procedure echo this concept in Rule 27.2, under which “[t]he appellate court may treat actions taken before an appealable order is signed as relating to an appeal of that order and give them effect as if they had been taken after the order was signed.” TEX. R.APP. P. 27.2. Finally, civil rule 329b(g) states that a “motion to modify . . . shall be filed and determined . . . and shall extend . . . the time for perfecting an appeal in the same manner as a motion for new trial.” TEX. R. CIV. P. 329b(g). Thus, the premature filing rules in civil rule 306c and appellate rule 27.2 apply equally to motions for new trial or to modify the judgment. Under these overlapping procedural rules, the filing of a motion for new trial or to modify the judgment, before the judgment is signed or within thirty days after, extends the deadline for filing a notice of appeal to ninety days.

Just about the only unpardonable sin in appellate practice is failing to get the notice of appeal filed on time. So much so that one of my unalterable life goals is to complete my appellate career without having to "make" any law on appellate jurisdiction.

Way too scary.

But if you do have to make jurisdictional law, it is probably Judge Per Curiam -- not the intermediate courts -- who will grant you mercy.

Judge Per Curiam, full of grace.

Story Time For Litigators

Kendall Gray — Fri, 16 Dec 2011 05:00:18 -0600

There's something wrong with the story that follows after the jump.

Actually, there's one big thing wrong, which is the product of a lot of little things.

To get the full effect, imagine that it is set out in 12 point, double-spaced, Times New Roman with one inch margins.

In a post (or posts) to come, my head will explode about why we lawyers write so poorly. Is there a law somewhere that says we must . . . .

But I digress.

After the jump is the story. Any resemblance between my story and a brief you may have sent me to edit is purely coincidental.

Or at least really really exaggerated to make a point.

COMES NOW, Dr. Thomas Muffet (hereinafter "Muffet" or "APPELLANT") and by fourteen points of error does hereby challenge the judgment of the Family Court in terminating his parental rights viz. his adopted step-daughter, Patience Muffet (hereinafter, "the Child") for, inter alia, endangering the Child on or about June 7, 2010 by exposing the Child to a venomous spider where the child lodged in the APPELLANT'S home. APPELLANT would respectfully show:

APPELLANT was born in 1970 to Thomas Moffet in Shoreditch, London. From there, APPELLANT rose to become a well recognized physician.

On or about September 4, 1976, APPELLANT began attending the Merchant Taylors' School. Subsequent thereto, on or about May 12, 1989, APPELLANT entered Trinity College at Cambridge. On October 4 of 1991, Muffet transferred to Gonville Hall. He continued his education there until his graduation the following year, when he received his Bachelor Degree on May 21, 1992.

In September 1992, APPELLANT began medical studies with Thomas Lorkin and John Caius. On October 7, 1995, APPELLANT began his Master's program at Trinity College, at which point he was expelled from Gonville Hall. On April 4, 1998 Muffet boarded with Felix Platter, chief physician of Basel, where he adopted the Paracelsian system of Medicine. On June 4,199, Muffet was awarded his MD from Basel with a censored version of his thesis, entitled De amodinis medicamentis.

In addition to his medical studies, APPELLANT became interested in studying the native insects of England. A catalog of said insects was completed by APPELLANT on November 4, 1997. The creature that is the subject of this dispute is not a venomous spider. Rather it was identified by the APPELLANT as a variety of Opiliones (formerly Phalangida), which are an order of non-spider arachnids commonly known as harvestmen. A photograph of the creature was taken by the Child's mother ("the Mother"), which is attached hereto as exhibit A and incorporated by reference as if set out in full.

The State claims that the harvestman is the most venomous animal in the world, but it is undisputed that harvestmen possesses fangs too short or a mouth too round and small to bite a human and therefore is not dangerous. None of the known species of harvestmen have venom glands; their chelicerae are not hollowed fangs but grasping claws that are typically very small and definitely not strong enough to break human skin. Clearly, there was no danger.

On November 4, 2011, APPELLANT adopted the Child and took her into his home. The accusations against APPELLANT, however, are solely guilt by association, clearly arising from his avocation as a naturalist. Clearly they are not sufficient to terminate his parental rights.

Now, wasn't that engaging?

No?

Why not?

See any similarities to any briefs you've read lately? Any you've written? To come is my harangue about this tale of Little Miss Muffet, Litigator Edition. In the mean time, you may harangue at will in the comments.

ABA Journal Recognizes The Most Interesting Blawger In The World

Kendall Gray — Tue, 06 Dec 2011 07:33:15 -0600

This whole law practice thing has been interfering with my blawgorial duties to you, dear reader.

Je regrette.

And yet when I awoke in the country home last week and checked e-mail whilst sipping a hand-crafted beverage and nibbling an artisanal baguette, I was gratified to learn that the ABA Journal had selected The Appellate Record as one of the ABA Journal's Blawg 100. Guess which category.

(Wait for it)

The Trial Practice Category.

Mon Dieu. C'est tout bonnement horrible.

Mais, hélas, mes amis. There is no Appellate Practice category.

Clearly Texas is one of the few, the proud, the enlightened jurisdictions who recognize that no trial lawyer ought be left alone in an appellate court or really anywhere at all with a pure question of law.

Or a word processor.

Or a book.

That's why we have a board certified specialty in civil appeals.
That's why we do not use the font that dare not speak its name.

But I jest.

We (the royal "we') at the Appellate Record will be gracious and accept this award in the generous spirit in which it was intended. We are gratified to be among the blawgger glitterati such as SCOTUSblog and the Volokh Conspiracy.

But now that means you need to get to work.

Click over to ABA site and VOTE for the appellate record as the most insanely great Trial Practice (*sob*) blawg on the planet with the "Most Interesting Blawger In The World."

Did I mention that you can VOTE.

No street protests or risking life and limb. Just voting with a mouse.

The trial lawyer you save may be your own.

Merci beaucoup.

Lawyering And What Makes It Great

Kendall Gray — Tue, 29 Nov 2011 07:36:21 -0600

As I was perusing my electronic copy of the Wall Street Journal Monday morning, as I am wont to do whilst savoring the caffeinated sacrament of our profession and delaying the inevitable onset of the day, I ran across an article by Pia Catton entitled "The Classical-Music Chaperon" about the book, What Makes It Great, by Rob Kapilow.

From the sounds of it, calling this merely a book is to do it a great injustice. Rob Kapilow, a conductor and composer and commentator, has taken his passion for classical music and attempted to create that same passion in those who don't necessarily share it.

Kapilow seeks to remove the barriers that keep people from enjoying classical music in hopes that others will love it as much as he does. He's been at this mission for 30 years. His latest creation is a book, an e-book, an accompanying website, and for the ipad, a multimedia experience that combines text and music and scrolling notation, removing barriers for those who don't read music.

In addition to making me lust after in iPad and the e-book, the article and the description of Kapilow's book got me thinking deep thoughts. After the break a brief homily about what Rob Kapilow and Leonard Bernstein and Michael Tilson Thomas have in common with the workaday world of law practice done right.

Classical music (which was my trade before law school) has its history of snobbery and erecting barriers, but it also has visionaries who built bridges.

Lenny's Omnibus series hit the airwaves in 1950 and he convinced CBS to televise his "Young People's Concerts in 1957.
MTT's PBS series, "Keeping Score" continues in Lenny's tradition and gives an incredible window on musical composition, composers, history, art history, conducting, orchestral playing. It's top notch. .

Like Kapilow's work, these musicians are ingenious bridge builders. All of these musicians have the ability to put themselves in the seat and experience the music from the listener's point of view. They remove barriers to understanding, educate, persuade, and yet never talk down to the educated listener.

Other musicians or musical organizations are not nearly so interested in making connections. Some just don't recognize the barriers, others actually put them up. It can be anything from the way the audience is greeted online and at the concert hall, the human connections (or lack of them) with the performers, or ease of access to information in different forms about the performance.

When you go to the symphony, are you being treated like friends sharing an incredible new album, or are you being looked upon like a potential nuisance, an unruly child inside a museum?

How is this like lawyering? Lawyering has its versions of treating audience members--courts, clients, other lawyers--like a nuisance instead of like a part of the human process. Sometimes it is on purpose. Sometimes it happens without thought:

Have you ever looked at a trial record and thought it could hardly be murkier if the lawyers had intentionally tried to be confusing?
Is there ever a good reason to use "heretofore" or "subsequent to" or "pursuant to" or "inter alia"?
Have you ever read a contract or a patent or an opinion and wondered if the authors were actively seeking to avoid being understood?
Have you ever listened to yourself explaining the law's requirements from the point of view of a lay person? How did you sound?
Could your mother understand the last letter you wrote? Why not?

I am convinced that these are some of the foundations of bad lawyering. Just like classical music snobbery we erect barriers to understanding. Maybe it makes us feel like part of the "club." Every learned profession or subculture does this.

But the converse is also true. The essence of good lawyering is building bridges so one's audience is empowered and enabled to understand the law.

Whether it is the use of jargon or mystifying acronyms or lousy typography or inscrutable syntax or lazy editing, bad lawyering has the consistent feature of inhibiting the audience's ability to understand the law and consequently to accept your position. In contrast, anything you do to enhance understanding, from clear sentences to clean writing to jettisoning the legalese, is good.

Indeed, it can be art.

If your legal argument is the best thing since Thomas Paine, but no can bear to read it or to come to share your passion, what's the point? One might still be British had Common Sense not been written in the common tongue, mightn't one?

But if you sit where your audience is going to sit, and borrow their ears and their passions, then you're building bridges. So:

Leonard Bernstein: Great.
Michael Tilson Thomas: Great.
Rob Kapilow: Great.
Legalese and snobbery: Not Great.

Just be Leonard Bernstein or Michael Tilson Thomas. See, how easy that was?

Mostly Dead Comments On Irrational Exuberance

Kendall Gray — Mon, 21 Nov 2011 08:33:42 -0600

This one goes out to all the law students or think you wanna be law students.

It has been a long time since last we met. Long time, no posts. I wasn't completely dead. I was just in trial. So like Westley, a/k/a, the Dread Pirate Roberts in the Princess Bride (a/k/a the greatest movie ever made) I was only mostly dead.

You can doubtless imagine my surprise when I awoke from my mostly dead state on Sunday morning and saw an article on the shortcomings of legal education on the front page of my New York Times. The article detailed how new lawyers graduate from law school not knowing the first thing about how to lawyer. Their firms then have to teach them that pesky lawyering part that the law schools left out.

The article quotes a client:

“The fundamental issue is that law schools are producing people who are not capable of being counselors,” says Jeffrey W. Carr, the general counsel of FMC Technologies, a Houston company that makes oil drilling equipment. “They are lawyers in the sense that they have law degrees, but they aren’t ready to be a provider of services.”

Firms try to fill in the skills that the law school left out, but in this environment, clients don't want to pay for that.

Is there anything to be done? Does it have to be this way? After the break, a comment from a crusty old Baylor lawyer about why it ain't necessarily so.

So, young man (or woman). You think you want to be a lawyer. How did you make that decision and how are you going to decide to proceed?

Did you have some Atticus Finch moment? Have you watched every episode of Law and Order? Is this a fire in your belly? Is this just a way to make a living? Have you shown any indication that you would be any good at this?

Well assuming you have a good reason to pursue a legal education, I encourage you to read the New York Times article by David Segal. He describes the type of problems in legal education that you will encounter if you go about letting someone else chart your path in the conventional way.

With your stellar (or not-so-stellar) undergraduate grades in hand, you will prepare for the LSAT and get the highest score possible.
You will apply to all the "best" law schools and try to get into the "best" school possible.
(Note well the "quote" marks because those will come back to bite you later)
Government financed lenders will line up to lend you $150,000 in debt to finance that education.
(Think of those as law school junk bonds that cannot be discharged in bankruptcy)
You will attend the "best" school on your non-dischargeable junk bond financing, confident that you will dominate moot court and law review.
You confidently anticipate graduating summa cum laude and becoming the Young Don (or Donna) of a large firm.
All of your classmates share that same confidence.
Most of you are wrong.
All of you will graduate knowing more about legal theory or "The Rule in Shelly's Case" than how to incorporate a small business or handle a divorce or write a brief.
Those few, those happy few, who land the plumb job will get sufficient training from their firms to safely permit them to be alone in a room with a client and the client's problems.
But the "ninety-nine percent" will have non-dischargeable junk bonds and lack many of the experiences or marketable skills necessary to pay those back.

What the article describes is is the irrational way to pursue a legal education--borrowing money from a very persistent loan shark to purchase a lottery ticket in hopes of paying it back. Irrational exuberance.

The article is accurate so far as it goes. But it does not go nearly far enough. It gave me the impression that this is a racket from which no lemming can escape. It focuses too much on gloom and doom and acts as if law students are pawns in a game where they have no control.

But there is a different path.

If you want to be a lawyer, and a good one, nobody is forcing you into that kind of bargain. You can take responsibility for your own outcomes and professional development. If you do, your path will be roughly similar to my own path.

Entry to the profession is still regulated by states. Start by deciding where you want to live and work, then learn about the schools in that state.
Some schools reward teaching rather than publishing law review articles on legal theory and social science. Baylor, where I come from, is one of them. I'm sure it is not the only one, even if it is not one of the "best" schools.
At schools like Baylor, unlike the "best" schools, they teach you to do stuff--how to pass the bar, how to handle a lawsuit, how to take a deposition, how to try a case.
At schools like Baylor, unlike the "best" schools, you can get paid to go to school. I started on a half scholarship and by the end I was paying nothing.
But no matter which school you go to, don't let school stand in the way of your education.
You control whether you actually learn what you need to learn.
Work in a legal clinic.
Work part time as a grunt in a small law office.
Work for free.
WORK.
And when you get into a firm, big small or indifferent, you control your training and development.
Learn at every opportunity from lawyers who know how to do stuff, whether or not you are inside a class room.

I did these things and got the best (no quotes) education I could have gotten. I "knew things" upon graduation that you can't buy with non-dischargeable junk bonds at the "best" schools. And I didn't have $150,000 in junk bonds to pay off.

Sure, I might not have been hired by an AmLaw 200 Firm. I might have been stuck handling people's problems or practicing outside New York.

Like Abraham Lincoln or Leon Jaworski.

Just a thought.

But if you're thinking about going to law school, now is as good of a time as any to start thinking for yourself.

Giddy Up--It's Argument Week

Kendall Gray — Fri, 04 Nov 2011 06:36:07 -0600

There's no denying it. We're into the thick of another term at the SCOTX and next week is argument week again. Here's what the high nine have on their plate:

November 8, 2011

Texas West Oaks Hospital, LP and Texas Hospital Holdings, LLC v. Frederick Williams, No. 10-0603--The expert report hits just keep on coming. If a health care worker is injured by a patient, is THAT a health care liability claim when he sues the hospital?
In re the Commitment of Michael Bohannan, No. 10-0605--In a second expert case of the day, the Civil Commitment of Sexually Violent Predators Act requires "experts" to be used in making the determination to commit someone. Did the trial court err in finding that this witness was not qualified?
Texas Electric Utility Construction, Ltd. v. Infrasource Underground Construction Services, LLC, No. 10-0628--Can you recover attorneys fees as damages when, for example, defense costs are caused by the tort of another?

November 9, 2011

Kerry Heckman, et al. v. Williamson County, et al., No. 10-0671--Because class certification never goes out of style, how do the named plaintiff's standing and potential mootness impact the ability to seek certification of a class?
In re Frank Kent Motor Co. d/b/a Frank Kent Cadillac, No. 10-0687--Can an employee avoid a signed jury waiver by claiming that he only signed the mutual waiver because he thought he would lose his job? (Parenthetically, if so, can there ever be a bench trial in an employment case?)
Jack Edward Milner v. Vicki Ann Milner, No. 10-0776--In a relatively rare family law case, did the trial court correctly enforce a judgment based upon a Mediated Settlement Agreement over the wife's motion for new trial?

November 10, 2011

Venkateswarlu Thota and North Texas Cardiology Center v. Margaret Young, No. 09‑0079--whether the jury was properly charged on contributory negligence in a med-mal case involving alleged post-operative complications, and whether the charge was reversible error.
In re XL Specialty Insurance Co. and Cambridge Integrated Services Group, Inc., No. 10-0960--A potentially significant case for attorney client privilege: does the attorney client privilege extend to communications between counsel for the insurer and the insured made for purposes of rendering legal services to the insurer?
Nicholas Traxler v. Entergy Gulf States, Inc., No. 10-0970--And from the department of statutory and regulatory minutiae department, was that a "transmission line" or a just an electrical line that zapped the crap out of me? Meaning, did negligence per se apply when a plaintiff got zapped by an electrical line 20 feet six inches above the road, or was that just a power line, which did not have to be 18 inches higher like "transmission lines" have to be?

And don't forget the popcorn, because you can watch the arguments online. I'm especially looking forward to the charge error case. Dinner and a movie anyone?

Pants On The Ground

Kendall Gray — Wed, 26 Oct 2011 04:55:00 -0600

I was trolling the blogs not long ago and came across this little number on the ABA Blog about a judge who was scolding criminal defendants that showed up in court wearing baggy pants and showing their drawers.

Which of course reminded me of this episode from American pop culture, the famous "Pants on the Ground" song from some long ago season of American Idol:

What does this have to do with appellate practice, or indeed law practice at all? The full explanation is after the break, but it has to do with respect.

And if you don't pay attention to it, you too could find yourself in court, "looking like a fool with your pants on the ground."

The original post from the ABA Blog and a related article in the New York Post dealt with a sign posted by a Manhattan judge warning defendants to "Pull Up Pants." The judge was wont to send offenders of the dress code back to a holding cell to arrange their affairs, so to speak. Why?

According to the judge, it was all about respect. The New Post article quotes:

“I often tell them, ‘Excuse me, so-and-so. Were you going to a basketball court, or a tennis court? Because you certainly don’t look appropriately dressed for a court of law,” Padro told The Post.

“I’m giving them an opportunity to prove that they merit another chance,” he said of his courtroom, where selected teens are offered closely monitored, non-jail programs.

“But one of the things I’m a stickler about is that they need to carry themselves appropriately, dress appropriately and learn how to address people properly,” he explained.

Of course you, gentle reader, would never show up in court wearing baggy jeans around your knees, a ball cap turned sideways on your head, and your underoos hanging out for everyone to see. But lawyers of all stripes can be given to conduct that, while less obvious, betrays a lack of proper respect for the court and its business.

Have you ever thought about what some of our common deficiencies communicate to the court?

The barely edited motion:

Sure, it could have been 10 tightly reasoned pages. Sure, I might have put in some punctuation and removed the spelling errors. But Judge, I didn't care enough about my case to take the time. You figure it out

The Microsoft Default motion:

Sure, this is hard to read and kind of ugly, but why should I take the trouble to figure out how Microsoft Word actually works? Enjoy!

The "local rules don't apply to me" motion:

Yeah, Judge. I know. You've got lots of motions and you like things a certain way to help you decide them all. But I couldn't be bothered. I thought I'd start with the same 5 pages of procedural recitation that I always use.

What? There are local rules?

The "no limits" motion:

Page limits are for little people, Judge. My case is important--more important than your time (and yet not important enough for me to edit and cut this down).

The barely prepared hearing:

I just thought I'd wing it, Judge. You weren't doing anything, were you?

And one of my (least) favorites, the slightly-creepy-undue-familiarity-lawyer, often a former partner or co-counsel with the judge:

I know all those other people are calling you "your honor" and standing and such, but I'm kind of a big deal and, you know, we've kind of got it going on, so I'll just hang here in my chair or wander 'round the room like the Alpha Male that I am.

Now, don't get me wrong. I'm no fan of the imperious bench with an acute case of black-robe-itis. But I'm a HUGE fan of lawyers and clients treating the court with a bit of awe and respect.

When lawyers don't respect judges, clients don't respect judgments. And when we fail, whether it's just sloppiness or actually by design, we might as well have our pants on the ground.

Then who's looking like a fool?

Maybe we need a sign to remind us as we go out the door on the way to court:

Pull Up Pants.

Mourning A Subversive Breed of Mice

Kendall Gray — Mon, 17 Oct 2011 01:31:36 -0600

Few things make me feel more self-satisfyingly ensconced among the cultured illuminati than the New York Times Book Review.

And yet even the Book Review has outdone itself this time.

Imagine my joy when, cup of locally roasted, fair trade, freshly ground-and-brewed organic coffee in hand, I turned to the essay by Alexandra Horowitz in the October 9 edition of the Book Review: an essay on Footnotes!

Although one professor has described footnotes as a "subversive breed of mice," the only thing that makes my heart go pitter pat more than a discussion of footnotes is an essay on footnotes in the New York Times Book Review.

Like any good footnote, the Essay makes reference to other works: books by Anthony Grafton and Chuck Zerby detailing the history of the footnote.* It even cites an example of the Mother Of All Footnotes from the "History of Northumberland"--a footnote with footnotes that is said to range on for 165 pages.

I need a moment. . . .

Talk amongst yourselves. . . .

I'm all verklempt.

After the break, a few notes of praise and observation on Alexandra Horowitz's Footnote Essay!

I know! Too good to be true!

If, like me, you find good footnotes to be "rhapsodic grace notes" or as one judge put it, "a mother lode, a vein of purest gold," then you will certainly be distressed by the news that footnotes may be at risk.

To be sure, there is plenty of unseemly anti-footnote bigotry and hate out there--Horowitz sets out descriptions of them as "unsightly" or "excrescence" or "fungus," comparing them to the "high whine of the dentist's drill." According to Horowitz Noel Coward is reputed to have said that "having to read a footnote resembles having to go downstairs to answer the door while in the midst of making love."

But I think all the hate and bigotry really just arises from misuse. Footnotes are just tool that can be used well or poorly, depending on what your purpose is.

A hammer can drive a nail to build a house, or it can bludgeon baby seals.
A footnote can provide a "mother lode" of authority at the right time and in the right manner, or it can make the reader go downstairs to answer the door while in the midst of making love.

It's all in the skill of the writer. Footnotes in the hands of the unskilled make bad writing worse.

I have maintained that one ought not be a footnote fundamentalist. Use them well with an eye toward their benefits and limitations. I use them one way for factual narrative, and a different way for legal argument.

But this valuable tool may be in danger from something other than their merits. In electronic publishing, you no longer control "pages" as such, where information can be placed in context and order of importance at the bottom of the page. Horowitz notes:

The footnote jousting could soon be moot, as the e-book may inadvertently be driving footnotes to extinction. The e-book hasn’t killed the book; instead, it’s killing the “page.” Today’s e-readers scroll text continuously, eliminating the single preformed page, along with any text defined by being on its bottom. A spokesman for the Kindle assured me that it is at the discretion of the publisher how to treat footnotes. Most are demoted to hyperlinked endnotes or, worst of all, unlinked endnotes that require scrolling through the e-reader to access. Few of these will be read, to be sure.

I experienced this very thing while trying to read "The Great Stagnation," an economist's take on the financial crisis, which only appeared in e-book form. There was gold in them thar notes, but it was dang hard to find and use.

And it's not just books. Lawyers beware. Our Supreme Court here in Texas now requires e-filing, and the judges are reading briefs almost exclusively on Kindles or ipads.Surely they are not alone among judges. Depending upon how those devices paginate and display your text, your footnote may be relegated from its intentional, secondary status to obscurity or annihilation.

Persuasive information that is never read might just as well not have been written at all.

If a tree falls in the forest . . . .

Like Horowitz, if the footnote dies, I will mourn that subversive breed of mice. If it dies because technology won't allow me to display the pages I have intentionally designed to convey information effectively, they will die because of something other than their merits.

And that would be a pity.

*Note to Self: MUST HAVE THESE FOOTNOTE BOOKS!

Typography: What's The Big Deal?

Kendall Gray — Tue, 11 Oct 2011 01:38:18 -0600

Well, I've had a pretty busy fall, but every time I get a few moments and have a few spare brain cells, I've been making my way through Just My Type, the book about fonts that I wrote about some time back.

Written as a series of stories or episodes, the book traces events from the first information age: the explosion of written communication and literacy.

If you think about it, books have gone from rare, one-off works of art to commodities that exist in the 1s and 0s of digital format. During that time:

Written language shrugged off the necessity of handwritten copies,
We adopted mechanically formed moveable type,
We changed the form of that type and created letter shapes that no longer needed to copy the pen strokes of a scribe
We improved those fonts to make them more beautiful, more legible or more readable
We moved through different typesetting technologies up to modern word processing where you can make create whole documents that look any way you want with a few clicks of a mouse.

And still I get drafts every day written in double spaced, 12 point Times New Roman.

**Sigh**

I know what you're thinking. Fonts? Typography? What's the big deal? Move on Mr. Gray.

Before you roll your eyes and move to the next blog, take in this quote from the book:

The essence of the New Typography is Clarity. This puts it into opposition to the old typography whose aim was 'beauty' and whose clarity did not attain the high level we require today. The utmost clarity is necessary today because of the manifold claims for our attention made by the extraordinary amount of print, which demands the greatest economy of expression.

That's the big deal: clarity.

This quote was written by Jan Tschichold, the designer of Sabon, a clear and beautiful font.

But the most interesting thing?

It was written in 1928.

Do we have fewer "manifold demands on our attention" now, in 2011? Is clarity any less important?

Don't use accidental typography.

Be clear or be un-read.

Argument Week in the SCOTX

Kendall Gray — Mon, 03 Oct 2011 00:46:12 -0600

So, the first week in October, and it's argument week again, Campers.

The court has nine cases over three days and here are some of the issues to be covered:

October 4:

SafeShred, Inc. v. Louis Martinez, III, No. 10-0426--Exemplary damages in the context of a Sabine Pilot wrongful discharge claim, including a due process challenge to the ratio of exemplary to actual damages
Shell Oil Company, et al. v. Ralph Ross, No. 10-0429-- Limitations and tolling for an alleged breach of a mineral lease.
Weeks Marine, Inc. v. Maximino Garza, No. 10-0435 -- Jones Act Damages

October 5:

Natural Gas Pipeline Co. v. William Justiss, et al., No. 10-0451--Limitations and sufficiency of evidence in a nuisance claim.
Hearts Bluff Game Ranch, Inc. v. The State of Texas and the Texas Water Development Board, No. 10-0491--Alleged takings of wetlands mitigation bank for reservoir development.
Matthew W. Wasserman, M.D. v. Christina Bergeron Gugel, No. 10-0513--whether an alleged assault is a health care liability claim.

October 6:

Port Elevator-Brownsville, LLC v. Rogelio Casados and Rafaela Casados, No. 10-0523 -- whether the worker's comp bar applies to a temporary worker.
In re United Scaffolding, Inc., No. 10-0526 -- can the court mandamus an order granting a new trial on general factual sufficiency and "interest of justice" grounds, or is that specific enough?
Rusk State Hospital v. Dennis Black and Pam Black, No. 10-0548--in an interlocutory appeal over the expert report in a med mal case, can the state raise subject matter jurisdiction, meaning the failure to invoke an an exception under the Texas Tort Claims Act, for the first time on appeal?

For the truly geeky (not that there's anything wrong with that), you can watch the arguments streamed live on the interwebs. And they're archived on itunes, right there with the Beatles and This American Life.

I'm particularly looking forward to the exemplary damages issue on Tuesday, the new trial mandamus on Thursday, as well as watching Houston colleagues Marie Yeates and Brett Busby argue on Tuesday and Wednesday respectively.

Cuz that's how I roll.

It will definitely be must see TV.

"Don't Taze Me, Bro" -- Behavior Modification for Trial Lawyers

Kendall Gray — Tue, 27 Sep 2011 04:20:05 -0600

My how time flies.

Or maybe I'm just behind the times.

A week ago I blogged about the utility of shock collars as behavior modification devices for trial lawyers. And I immediately knew that the title of my next blog post on the topic would be some version of that phrase that entered our shared consciousness:

Don't taze me, Bro!

I knew there would be some nice Youtube mashups of the famous incident. But I had forgotten how long ago that happened.

It was during the Kerry campaign.

Seriously. Who knew?

Seems like it was only last week--like when I asked for some Tase-Worthy trial lawyer conduct and didn't receive any comments.

**ahem**

After the jump, some of my own thoughts about Taze-Worthy antics, just to get you started.

I suppose trial lawyers mean well. But some of the stuff they do is worth at least a few thousand volts.

To wit, any of the following statements would get you a dirty look in my office (in the absence of a tazer or something better):

Can you handle the charge for me in that case I think I told you about one time? You know the one. Tomorrow. OK.

Can you to handle the appeal from this summary judgment entered against us. I think you can basically just use our trial court brief.

Don't spend any time on this.

When is our brief due? Tomorrow? Great, I'll take a look at it now.

Here, look at my brief and and make sure its ok to file. Tomorrow.

Oh, I hope you don't mind. I made some changes last night. Is that a problem?

Don't we have to use Times New Roman?

How many extra pages can we get?

We can e-file right up until midnight, right?

Attached please find my edits and a transcript my the closing argument.
There's some great stuff in there for you to use.

Loved the brief. How come you didn't include a section on . . . ?

Loved the brief. Best thing I've ever read. Gosh, there's a lot of editing on the bill.

Why so much research? The client doesn't like research.

I'd like you to handle the argument. On Monday.

Should I get a record?

You mean I should have gotten a record?

I'm sure we made a record.

Well, I thought the court reporter was taking it down.

I'm sure I objected.

Should I have objected?

I wanted to object, but the judge was getting really cross.

I didn't want to object in front of the jury.

I handle my own appeals.

If you wanna get tazed, just bring some of that to my office. This kind of stuff is why I have been known to tell trial lawyers the brief is due before it is actually due.

Why do such things make an appellate lawyer's head explode? Because the act or statement betrays an entire misunderstanding of what appellate lawyers do and what it takes to do it effectively.

But that is a post for another day.

C'mon, appellate lawyers. I'm sure you've heard these before, or statements very much like them. Put them in the comments!