The Appellate Record

Write As I Say, Not As I do

Kendall Gray — Tue, 07 Sep 2010 04:00:47 -0600

We almost take it as a given that lawyers can’t write. (Just don’t tell Scott Turow or John Grisham.)

Why is that so? Why can’t lawyers write? At least in part, I think it is because we read so much bad writing when we are learning to be lawyers. Think of all the turgid prose and passive voice and inscrutable jargon in all those cases you had to read in law school. With that as a model, little wonder that baby lawyers thrive on writing the unreadable.

And judges are still giving us the kind of writing they tell us that they don’t like. After the break, an example taken from the recent Civil Appellate Practice Conference and the paper authored by Chad Baruch.

Chad Baruch, a presenter at this year’s Civil Appellate Practice Course, surveyed the judiciary of this state to determine what judges do or do not like in legal writing. One of the no no’s was the inclusion of distracting dates that are of no relevance to the issue at hand. The article quotes Judge Wiener’s observation:

When we judges see a date or a series of dates, or time of day, or day of the week, . . . most of us assume that such information presages something of importance and we start looking for it. But if such detailed information is purely surplus fact and unnecessary minutiae, you do nothing by including it other than to divert our attention or anticipation from what we really should be looking for. In essence, you will have created your own red herring.

I heartily share Judge Wiener’s frustration. Dates are distracting. They only confuse me and leave me wondering, “Is this going to be on the test?” More than once I have wanted to hurl myself from the office window upon reading work product whose only reason for being was to regurgitate a chronology from the trial lawyer’s three ring binder.

A much better approach is what Baruch calls, “relative dating.” This technique simply puts events in relation to each other and gives useful information about the passage of time where it matters, such as:

before
after
very shortly or
more than two years after the accident

I doubt anyone (other than an unrepentant trial lawyer) would disagree with this. But one need not look far to find unnecessary dates in a judicial opinion.

The Supreme Court’s final opinions from last term included Christian Legal Society v. Martinez, which includes these sentences in its factual recitation:

Founded in 1878, Hastings was the first law school in the University of California public-school system.

* * *

From Hastings’ adoption of its Nondiscrimination Policy in 1990 until the events stirring this litigation, “no student organization at Hastings . . . ever sought an exemption from the Policy.” . . .

In 2004, CLS became the first student group to do so.

* * *

On September 17, 2004, CLS submitted to Hastings an application for RSO status, accompanied by all required documents, including the set of bylaws mandated by CLS-National.

* * *

On October 22, 2004, CLS filed suit against various Hastings officers and administrators

These dates had nothing to do with the First Amendment question pending before the court. And they really did not advance any narrative story being told. They were just there, taking up mental and physical space.

And the Fifth Circuit’s recent per curiam opinion in Smallbizpros, Inc. v. MacDonald contains both unnecessary dating and stilted syntax such as "upon the filing" and "prior to":

MacDonald argues that the district court’s jurisdiction ceased on August 7, 2009, upon the filing of a voluntary “Stipulation of Dismissal”

* * *

Immediately prior to a hearing scheduled for July 30, 2009, the parties orally agreed on settlement terms. The parties read the terms of their agreement into the record at the hearing. The district court asked that the parties reduce the terms to a writing to be signed by the judge. On August 7, 2009, the parties filed the Stipulation . . .

The district court signed the Order on August 14, 2009.

The issue in the case did depend on timing, but all that mattered was that the language of the dismissal order did not retain jurisdiction to enforce the settlement agreement after the district court’s jurisdiction had expired. None of the dates matter, so why not write it this way:

Right before a hearing, the parties agreed to settle. They read their oral agreement into the record at the hearing, but the court asked them to prepare a written agreement for the court's signature. They did so, and one week later the court signed an order of dismissal. MacDonald contends that the court’s jurisdiction ceased when they filed the written stipulation of dismissal.

I believe the children are our future.

Let's teach them well and let them lead the way.

Let’s save them from having to read our own bad writing.

Judges and practitioners alike: every time a date appears in a draft, let us presume that it ought to be deleted or rewritten with relative dating. Rare is the exception when the date actually counts

That May Be A $500 Bow Tie I'm Wearing

Kendall Gray — Thu, 02 Sep 2010 12:16:12 -0600

I will admit it. My sense of style is not for everyone. Atypical. Iconoclastic. Nerdy. Or just bad. I would accept any of those words as accurate descriptors.

But as I sit here in my Brooks Brothers seersucker suit and my Brooks Brothers regimental stripe bow tie, I am torn between feeling the outrage of a genetically predisposed defense lawyer and disappointment that my ship came in and I simply missed it. I was alerted to my lost opportunity by stories in the ABA Law Journal, the Wall Street Journal, Law360 and Reuters.

You see, my natty bow tie is fitted with the Adjustolox mechanism, allowing me to adjust a "one size" bow tie to fit my scrawny neck without the slippage that occurs with inferior mechanisms. Naturally, such a useful and novel invention as the Adjustolox mechanism is patented.

Or, was patented. You see, the patents expired in 1954 and 1955.

Which was also probably the last time that large numbers of men dressed like I do.

Alas for my beloved Brooks Brothers, because a bow-tie-wearing patent lawyer purchased some bow ties still marked with the expired patent numbers. He brought a "false marking" claim against the glorious font of men's business style.

Apparently the very future of The Republic is placed at risk if one wrongly claims a patent for the Adjustolox. Presumably the market is being improperly excluded from the useful arts and sciences of bow tie adjusting technology. As a result the feds can fine you $500 for each Adjustolox you sell with expired patent numbers--if you do so for the purpose of deceiving the public. See 35 U.S.C. § 292.

Let's see:

$500 x [gajillion ties sold] = No longer practicing law to earn a living.

If, however, you sell falsely labeled Adjustoloxae simply because no one has looked at a bow tie since 1955, it's all good.

But you still have to prevail against Raymond E. Stauffer, the bow-tie-festooned patent lawyer, because 35 U.S.C. § 292 allows "any person" to seek a $500-per-Adjustolox penalty and share 50% of the take with the gubmint.

That was the ruling in Stauffer v. Brooks Brothers, Inc., released Tuesday by the Federal Circuit. Congress can create its own "injury in fact" -- a statutory violation -- and then essentially deputize "any person" to pursue collection for that injury.

Of course, the Federal Circuit was not asked to rule upon the wisdom of such a statute. That is the purview of Congress alone. If it were otherwise, little that Congress commits to writing would survive.

But who knew that my retro wardrobe could be such a source of potential riches? No telling what revenue I could garner from investigating the patents on other aspects of my geezer lifestyle. No telling what else that I prize is marked with patents that expired 50 years ago.

SCOTX: New Opinions and Granted Petitions

Kendall Gray — Fri, 27 Aug 2010 09:13:29 -0600

Several new opinions today from the Supreme Court of Texas. The most notable is the court's choice to reverse it's position in Marks v. St. Luke's Episcopal Hospital, a highly divided case that has been pending on rehearing since last August. I hope to write a future post on whether such delays and such reversals are a good thing. (They are not).

Rather than reinvent the wheel and write up summaries of all of today's opinions, I'll refer you to a great, down and dirty summary of the issues on Don Cruse's SCOTX Blog.

After the break, this post will focus on the new petitions for review.

Today's orders granted three petitions for review and set them for argument late in the fall. It is interesting that all three involve construction and application of statutes touching on aspects of sovereign immunity. They are:

09‑0326 LARRY ROCCAFORTE v. JEFFERSON COUNTY, set for argument on October 14, in which the issues presented involve a prerequisites for suing a county for federal civil rights claims specifically:

(1) Whether Section 89.0041 of the Texas Local Government Code is preempted by federal law where a claimant asserts a claim under 42 USC § 1983 in state court; and

(2) Whether the plaintiff failed to comply with the notice requirements of Section 89.0041 where the county defended the lawsuit for two years before claiming a defect?

09‑0497 TYLER SCORESBY, M.D. v. CATARINO SANTILLAN, INDIVIDUALLY AND AS NEXT FRIEND OF SAMUEL SANTILLAN, A MINOR, set for argument November 9, and involving (yet again) expert reports in med mal cases. Specifically

1. Does an appellate court have jurisdiction to review a denial of a motion to dismiss filed pursuant to TEX. CIV. PRAC. & REM. CODE § 74.351(b) when the proffered “report” does not contain any of the elements that are required to be addressed in a statutory expert report?

2. Are some proffered expert “reports” so woefully deficient and lacking in addressing the statutorily-required elements of a health care liability expert report as to constitute no report at all and, thus, be ineligible for a 30-day curative extension?

3. Is a trial court required to grant a motion to dismiss filed pursuant to TEX. CIV. PRAC. & REM. CODE § 74.351(b) when the plaintiff serves a “report” that is so woefully deficient and lacking in addressing the statutorily-required elements of a health care liability expert report that it constitutes no report at all?

4. Is a trial court required to grant a motion to dismiss filed pursuant to TEX. CIV. PRAC. & REM. CODE § 74.351(b) when the plaintiff fails to serve the curriculum vitae of the expert issuing a health care liability expert report, and when a proffered “report” does not contain any evidence to otherwise establish the expert’s qualifications to offer opinions as to the medical issues involved in the case?

Finally, 09‑0794 LTTS CHARTER SCHOOL, INC. D/B/A UNIVERSAL ACADEMY v. C2 CONSTRUCTION, INC., set for argument December 7, which involves questions that arise when quasi private entities take on quasi public function. In this case the question

Is an open-enrollment charter school a “governmental unit” that may bring an interlocutory appeal of a trial court’s denial of its plea to the jurisdiction pursuant to Section 51.014(a)(8) of the Civil Practice and Remedies Code?

Note: the Court has solicited the opinion of the Solicitor General in LTTS Charter School.

Jackson v. Tanfoglio Giuseppe S.R.L.: No Jurisdiction Over Non-Manufacturer

Kendall Gray — Tue, 24 Aug 2010 08:26:34 -0600

On Monday, the Fifth Circuit released Jacskon v. Tanfoglio Giuseppe S.R.L. (pdf) affirming the district court’s dismissal for lack of personal jurisdiction over the affiliate of a defunct Italian firearms manufacturer. Judge Garza wrote the court’s opinion.

It only took three appeals to finally result in the district court's dismissal of an affiliate that did not manufacture any part of the allegedly defective firearm. Along the way, the Court held:

There was no general jurisdiction based upon two unrelated trade show visits, untargeted national advertising and shipment of components (for other than the firearm in question) to Florida for assembly;
There was no specific jurisdiction based upon the stream of commerce theory principally because the defendant did not start manufacturing the model of firearm at issue until after the decedent’s accident; and
The jurisdictional contacts of the defunct affiliate that manufactured the firearm could not be attributed to the defendant because they were not alter egos or a single enterprise--the companies had maintained all the corporate formalities required by Italian law and had properly liquidated the failed manufacturer under Italian law.

Also of interest on Monday was Combo Maritime, Inc. v. U.S. United Bulk Terminal (pdf), which deals with settlement, contribution issues, and presumptions in maritime collision cases. It gets an honorable mention just for citing a really really old admiralty doctrine deriving from the Laws of Oleron in the 12th century.

Evidentiary presumptions and 12th century law from the Consolato del Mare.* It just doesn’t get any better than this.

*According to the History of Law website, The Consolato del Mare inspired the second great code of maritime regulation, the Laws of Oleron, which are supposed to have been compiled about A.D. 1150. It is generally understood that we owe them to a woman, Eleanor, Duchess of Guienne, Queen first of Louis VII of France, who procured a divorce from her, and afterwards of Henry II of England, the first of the Plantagenets.

SCOTX: What I Did On My Summer Vacation

Kendall Gray — Fri, 20 Aug 2010 05:51:36 -0600

And so we reach the dog days of summer when things start getting back to "normal" for grownups while kiddos head back to school, there to write the obligatory essay: what I did on my summer vacation.

Well, the Supreme Court of Texas is back to it again this week, having held its first full conference since the summer break. The result was 2 new opinions hot and fresh from the oven or perhaps cooked well done on a Texas sidewalk under the August sun. The court also granted two petitions for review and set one mandamus for argument.

After the jump summaries and links to the new opinions.

In Regal Finance v. Tex Star Motors (pdf), the Court grappled with the question of whether the evidence was legally sufficient to support a jury finding that the secured creditor acted in a commercially reasonable manner in disposing of the collateral. (It was). Justice Medina wrote the court's opinion and Justice Johnson wrote a dissenting opinion (pdf).
In Fresh Coat v. K2 (pdf), the examined a synthetic stucco manufacturer’s duty to indemnify a contractor under Chapter 82 of the Texas Civil Practice and Remedies Code including (1) Is synthetic stucco a “product”? and (2) Is the contractor that installs it on a house a “seller”? The court answered both questions in the affirmative and found a duty to indemnify. Justice Willett wrote the court's opinion.

Still lodged somewhere in the void is Solar Applications Engineering, the court's oldest cause, pending since April 2006--about 18 months before Lehman Brothers declared bankruptcy at that quaint and distant time when General Motors was still a publicly traded company. So I expect hunger striking mechanics and material men on the Court's front steps.

In exchange for the two causes it jettisoned, the Court added three matters:

Texas Department of Public Safety v. Cox Newspapers (pdf) arising from a suit for writ of mandamus against the Texas Department of Public Safety (DPS) to compel disclosure of travel vouchers submitted by DPS officers who serve on the Governor’s security detail, pursuant to the Public Information Act, TEX. GOV’T CODE § 552.022. According to the Attorney General, issues presented include:

1. Pursuant to the Public Information Act’s authorization of common-law exceptions to disclosure, the Court permits withholding of public information that would injure a person by disclosure of embarrassing private facts. Should the Court do the same with respect to public information that would threaten physical injury to a person, consistent with over 30 years of undisturbed Attorney General legal opinion and recent legislative endorsement?

2. The Public Information Act excludes from required disclosure public information that is confidential under other law. Are the travel records of the Governor’s security detail excused from disclosure because they relate to DPS’s staffing requirements and tactical plans for protecting the Governor, his family, and others from attack, making the records confidential information under the Texas Homeland Security Act?

Genesis Tax Loan Services v. Kothmann (pdf) involving the priority of transferred tax liens. Issues presented include:

Whether the Court of Appeals erred in holding that Genesis failed to effectuate a transfer of the tax liens.

Whether the Court of Appeals erred in holding that Genesis was required to plead lien superiority as an affirmative defense when the plaintiff explicitly pleaded that his liens were superior to those of Genesis.

In re Smith (pdf) (who did not submit electronic versions of his petition for writ of mandamus) which involves denial of a claim for compensation for wrongfully imprisoned persons. The Attorney General (i.e., the opposition) says of the issue:

An applicant for compensation under the Texas Wrongful Imprisonment Act may not receive compensation for any concurrent sentence served on another crime to which the Act does not apply. At the time of Smith’s wrongful conviction, he was on parole for another crime not subject to the Act. Was Smith serving a concurrent sentence that limited the amount of compensation to which he was entitled under the Act?

Choice Healthcare v. Kaiser Foundation: Member Choices Don't Create Jurisdiction Over Health Insurer

Kendall Gray — Fri, 13 Aug 2010 04:30:19 -0600

Wednesday, the Fifth Circuit released Choice Health Care Inc. v. Kaiser Health Plan of Colorado (pdf) in which it upheld the dismissal of a foreign health insurer/HMO for lack of personal jurisdiction. The court rejected an attempted extension of the "stream of commerce" theory of minimum contacts in an opinion written by Circuit Judge Davis.

After the break, analysis and details of the opinion.

In Choice Health Care, Kaiser contracted with an intermediary (Multiplan) to gain discounted access for it's members when they needed health care in a number of jurisdictions outside the Kaiser service area. Multiplan had separate contracts with providers all over the country.

Some of Kaiser's members happened to be in Louisiana when they needed services. A Louisiana provider later claimed it was paid the wrong rate and sued Kaiser. Kaiser, having paid some of the related charges, argued that it was nonetheless not subject to jurisdiction in Louisiana because the charges themselves resulted from the unpredictable and unilateral choices of the members, not purposeful availment by Kaiser.

The court noted:

In the instant case, no evidence was presented that Choice obtained advance approval from Kaiser prior to treatment. We are satisfied, however, that Kaiser’s payment of a limited number of claims for treatment of Kaiser’s insureds, based on the unilateral decisions of those insureds who sought treatment in Louisiana, does not establish purposeful contact between the individual Kaiser defendants and the State of Louisiana. The individual Kaiser defendants covered their respective insureds for treatment in HMOs in the area where the insureds lived and worked. This is where Kaiser directed their insureds for treatment. Kaiser only provided out-of-area coverage for limited treatment to insureds based on emergency care or other urgent health care needs. Viewed in this light, Kaiser’s payment to Choice for urgent or emergency treatment of its insureds who visited Louisiana and fortuitously required such treatment cannot qualify as commercial activity purposefully directed toward Louisiana. In making these payments, Kaiser was not attempting to expand sales to Louisiana or otherwise develop commercial activity in Louisiana. Kaiser
made the payments because its insureds independently and without encouragement from Kaiser presented to a Louisiana hospital for urgent care
while visiting Louisiana.

For similar reasons, the Court rejected the provider's attempt to argue a "stream of commerce" theory of personal jurisdiction. Health care members are not like products placed in the stream of commerce with the knowledge and intention that they will eventually marketed in the forum. Said the court:

The facts of this case simply do not fit the stream of commerce model . . . . Unlike the cases where the stream of commerce theory has been applied, this is not a products liability case or similar case where a defendant places a product in the stream of commerce as part of a sales or distribution network designed to market its products nationwide (or at least outside of its home state) where it would derive financial benefit from sales in the forum. . . . Deriving revenue from such commercial activity is the quid pro quo for requiring the defendant to suffer a suit in the foreign forum. . . . Additionally, the independent action of the insureds in traveling to the forum state to seek treatment outside of their coverage area . . . unrelated to any marketing scheme by Kaiser, is inconsistent with the notion that Kaiser made purposeful commercial contact with Louisiana for the purpose of increasing its revenue

So, the commercial realities and contractual structure at issue was key to the decision in Choice Health Care. (Go here for a prior post in which the nature of the contracting and commercial relationships also controlled the outcome of a jurisdictional question.)

Solar Applications Engineering v.T.A. Operating: Worm Hole Discovered In SCOTX Offices

Kendall Gray — Wed, 04 Aug 2010 04:05:33 -0600

Back on July 2, the SCOTX released its final opinions before the Summer doldrums. This made me wonder what might be in the offing when the Court returns in August.

Fortunately, there is an App for that. And Don Cruse over at the Supreme Court of Texas Blog supplies it.

If you click on the Docket DB link you can follow another link to the pending docket categorizing cases by where they stand in the process. From there, you can choose the link showing the cases (by age) that have been argued and are awaiting decision.

There you see the tale of the tape, the oldest case is Solar Applications Engineering v. T. A. Operating, which was filed in April 2006.

You remember April 2006. Tom Delay stepped down from Congress. The former governor of Illinois was convicted of corruption.

No, not the one with the hair, the other one.

Then a year and a half later, the case was argued, in October 2007.

You remember October 2007. Al Gore won a share of the Nobel Peace Prize and Iran and North Korea said they would dismantle their nuclear programs.

No, not that time. The other time.

But, in the words of Coach John Wooden (who was alive in October 2007), "Goodness gracious, sakes alive," argument was over two and a half years ago. The court has lost two of the nine members who were around for the argument.

What could account for this?

My curiosity got the better of me, and I checked out the petition for review. Certainly it must be horrifically complex with many thorny issues.

Not exactly. The issue presented is:

Is a general contractor who has substantially performed a construction contract required to provide lien releases from it and its subcontractors as a condition to sue an owner who has refused to pay for work done?

Well, I'm sure the Respondent's lawyer has something to say about it too, but that doesn't seem so hard.

Then it must be substandard lawyering that is mucking up the issues, right?

Not exactly. The Petitioner is represented by Doug Alexander and the Respondent by Sharon Callaway. They both "got game."

So there can be but one explanation that can account for the complete disappearance of matter from the known universe.

There is a worm hole in the Supreme Court's suite of offices, and Cause No. 06-0243 has fallen through the void in the space/time continuum and entered a parallel universe in which parties' time and money are no object.

If not, if in fact the cause is still housed in our dimension, perhaps contractors or lien holders will need to start holding candlelight vigils with hunger strikes when the next SCOTX opinions start appearing in mid August.

On Brevity--Or How I Learned To Stop Worrying And Love The Lite Connector

Kendall Gray — Wed, 28 Jul 2010 04:00:23 -0600

It might surprise you, but I am a largely self-taught writer.

Then again, maybe it shows.

The last time I had any formal training in English composition, Ronald Reagan was President. The year was 1984. A stamp was 20 cents. The Cosby Show debuted on NBC. And we were all worried about ballooning federal spending: $851.85 billion.

Less than a trillion? How cute! You itty bitty widdle federal budget!

I've lived with a persistent fear and terror since 1984--fear of tiny little words and commas. But after the jump, learn how Professor Wayne Schiess liberated me from my linguistic straight jacket.

In 1984, I had an AP English teacher who taught me most of what I now practice as ostensibly "good" writing. Her particular tool was the five paragraph essay:

Introduction that signposts three points.
Topic sentence and Point No. 1
Topic sentence and Point No. 2
Topic sentence and Point No. 3
Conclusion

Nearly every brief I write is just an expansion of the five paragraph essay. What's more it seems to work. So thanks for that, Mrs. L.

But this English teacher had an obsession: the sentence fragment. In fact, she would have failed me for that last sentence. She believed that no valid sentence could begin with a conjunction or connector. If you did so, you were toast. For no matter how crystalline or organized or beautiful the prose that came before, the conjunction was the poison pill, an automatic "F." And for a kid who got lectures for a mere A-, nothing could be more terrifying.

But see how I just keep doing it and doing it now? Fun! Liberating, actually.

Professor Wayne Schiess, presenter at the UT Conference on State and Federal Appeals says I can. So there.

If you're brave and confident, and if you're ready to make your writing more readable, I've got a recommendation for you. In place of long, heavy transition words, use what I like to call "lite connectors." Not all the time or in every sentence. Just try a few.

* * *

When you want the reader to know that the idea in this paragraph or sentence contrast with the idea from the previous one, you should make it known with the first word. And make it known with as few syllables as possible. . . . .

Of course you can begin sentences with but. Accomplished writers have been doing it for centuries. . . . .

So I recommend that in place of however, on the contrary, on the other hand, and the like, you try but and yet without a comma afterward.

But Mrs. L will give me an F! No, she won't. Professor Schiess is right.

After attending that conference, therefore, I no longer have to write in this tortured syntax where formal, introductory clauses are inserted and set off with commas or even semicolons in order to guard against preparatory conjunctions, which are something up with which we will not put.

It is too confusing. It is too stilted.

The shorter sentence is more readable and has long been valid. So I can follow the practice without fear of being failed.

What's more the lite connector and the shorter sentence serve the values in The Elements of Style:

Omit needless words.

Be clear.

And if you do that, how can you be wrong?

MGE UPS Systems: Whoa. DMCA??!! Don't Make Me Get Off This Bike.

Kendall Gray — Thu, 22 Jul 2010 07:39:27 -0600

In my last post, I summarized the Fifth Circuit's new MGE UPS Systems opinion. The substance is sound and important to civil lawyers, but I've got a bone to pick with the author.

This legal writing rant could be brought to you by Radio Shack and its series of Tour de France Alphonse commercials with Lance Armstrong. The one I have in mind is, "LOL," where Lance sets out the rules of engagement:

First things first: No man over the age of 30 will EVER use emoticons.

And poor Alphonse replies, "LOL, Lance," to which Lance gives his steely glare:

Whoa. LOL??!!! Don't make me get off this bike.

Not that I am the Lance Armstrong of anything, but I propose a new rule:

No one with a law degree will EVER make up his or her own acronyms.

I've heard judges complain about briefing in which every corporation and affiliate bears its own inscrutable acronymic reference. And the complaints are well taken. You shouldn't need a score card or an answer key to tell who did what to whom. If one has to either memorize new abbreviations or flip back and forth to the definitions, the odds of engaging that reader are markedly diminished.

But the same can be said for opinions that are an alphabet soup of abbreviations. Why not give parties and statutes names that make intuitive sense? (And secondarily, why can't companies have names instead of alphanumeric hieroglyphic identifiers??) In the first pages of MGE, for example, we are treated to:

MGE
GE
GE/PMI
DMCA

And this opinion is not even a big offender. But all one really needs is MGE and Power Management. Because of all the extras, I can tell you that I was not LOL-ing or ROTFLMAO-ing or even LQTM-ing while I was trying to learn the technology involved in the dispute. Several times, I was all, like, "BRB--I have to turn back to the first page to figure out what's going on here."

Simply stated, neither briefs nor opinions ought to read like Bankruptcy Plans or Offering Memoranda. (Bankruptcy Plans and Offering Memoranda likely ought not be the way they are either, but that's a post for another day.)

Now, I'm not condemning acronyms that everybody knows already, e.g., IRS, NASA, USA, AT&T or ERISA. Those kinds of acronyms aid comprehension because they already contain meaning. Because they aid in precision and understanding they are good.

But excessive use of made up acronyms rather than just calling the parties "Power Maintenance" or "Plaintiff" violates Kendall's Prime Directive Of Legal Writing:

No matter what Bryan Garner and the Bluebook say, anything that interferes with understanding is bad.

So, please. The life you save may be your own:

No one with a law degree will EVER make up their own acronyms.

Don't make me get off this bike.

MGE UPS Systems v. GE Consumer Industrial: A Trade Secrets Win With No Damages

Kendall Gray — Wed, 21 Jul 2010 09:03:06 -0600

Yesterday, the Fifth Circuit released an opinion of some importance for commercial and intellectual property litigation.

In MGE UPS Systems Inc. v. GE Consumer Industrial Inc. (pdf), the Court affirmed an injunction against a competitor's unauthorized use of security "dongles" to boot up software necessary to service and calibrate uninterruptible power supplies. All the underlying damage claims, however, failed. Judge Garza wrote the Court's opinion.

The Court held that

The Digital Millennium Copyright Act's provisions on circumventing technological measures protecting copyrighted work "prohibits only forms of access that would violate or impinge on the protections that the Copyright Act otherwise affords copyright owners." You can get a copy of the Act here (pdf) and a summary of it's contents here (pdf).
The plaintiffs' claims for damages for copyright and misappropriation of trade secrets claims could not be sustained based upon evidence of the wrongdoer's gross revenues.

The damages question has the widest application to commercial and intellectual property litigation. The Plaintiff's "Plan A" failed when it's damages expert was struck and it's lay witness was found to be insufficient to establish a reasonable royalty. The Fifth Circuit was not asked to review these trial court rulings. While the statutory and common law claims would have allowed for recovery of the wrongdoer's profits from the violation or misappropriation, all that was left was information concerning the defendant's gross revenues from a variety of businesses.

This was not enough. Not only is gross revenue not the same as profit, the Court made an "Erie Guess" that Texas would not adopt a comment from the Restatement (Third) of Unfair Competition placing the burden on the defendant to show what was not attributable to the wrong once a plaintiff had placed a gross number in issue.

Said the Court:

In the only reported Texas case involving the recovery of defendant’s profits for a misappropriation of trade secrets claim, the Dallas Court of Appeals held that although defendant’s profits are a “proper element[ ] of damages in a case involving the wrongful use of a trade secret,” a plaintiff cannot recover damages without offering evidence “to show the actual profit made by [defendant].” Elcor Chem. Corp. v. Agri-Sul, Inc., 494 S.W.2d 204, 214 (Tex. Civ. App.--Dallas 1973, writ ref’d n.r.e.) . . .

* * *

MGE points to PMI’s total revenue . . . and argues that, under the Restatement, this exhibit satisfies its burden of proof with regard to PMI’s “sales” of providing service to UPS machines. MGE contends that GE/PMI subsequently had the burden of demonstrating which portions of PMI’s revenue were not attributable to the state law claims, which it failed to do. Texas courts have not adopted the RESTATEMENT (THIRD) OF UNFAIR COMPETITION in its entirety and whether § 45’s comment f is controlling in Texas courts is still an open question. . . . The burden-shifting procedures noted in comment f are not included in the first RESTATEMENT OF TORTS, whose definition of and factors used to identify trade secrets are still used by Texas courts. . . . Neither the Texas Supreme Court nor any of the Texas appellate courts have specifically applied comment f to determine a defendant’s profits in a trade secret action. Given that comment f’s standard sets a plaintiff’s burden of proof for trade secret damageslower than the standard applied in Elcor, we conclude that the Texas Supreme Court would not adopt the burden-shifting procedures of comment f.

Watch this space for some further commentary on MGE.

Willow Bend v. Downtown ABQ Partners: Tethering Personal Jurisdiction To The Substantive Law

Kendall Gray — Fri, 16 Jul 2010 08:23:04 -0600

Yesterday, the Fifth Circuit released Willow Bend v. Downtown ABQ Partners, a personal jurisdiction case that will be of interest to commercial practitioners. The contractual and breach of fiduciary duty claims arose out of a Louisiana real property transaction. The Court affirmed a dismissal for lack of personal jurisdiction as to a non-signatory individual (Garcia) and the partnership for which that person was the managing partner (Downtown ABQ). Judge Higginbotham wrote the Court's opinion.

Determining minimum contacts can sometimes be like trying to nail jello to a tree. But Judge Higginbotham (in characteristic fashion) gives the analysis some structure.

Judge Higginbotham's take on minimum contacts requires a nexus between:

the forum;
a particular party; and
a substantive legal duty actually pertaining to that specific party.

The nexus was present with regard to the company that actually entered into the contract. It did not exist for Garcia, nor for the partnership managed by Garcia. The reason: the duties alleged were tethered to the contract to which they were not a party and did not apply to them.

This paragraph from the opinion sums it up:

[The] written agreement is no throwaway: in fact, it is the critical forum contact in this case, and the linchpin of the district court’s exercise of jurisdiction over Blue Dot. Willow Bend’s winning breach of contract and breach of fiduciary duty claims against Blue Dot arose out of and resulted from Blue Dot’s primary contact with the state of Louisiana—its contract with Willow Bend. Without a contract tying the non-signatories Garcia and Downtown ABQ to Willow Bend’s claims against them, however, those claims share an inadequate nexus to the forum: . . . Willow Bend sued for breach of contract and breach of fiduciary duty, after all, and a defendant cannot be said to have breached a contract it never made or to have skirted a duty it never assumed. . . . Willow Bend contracted with Blue Dot—and Blue Dot alone—and it is with Blue Dot that its claims for breach of contract and breach of fiduciary duty must lie.

Thus, jurisdiction and the merits are enmeshed because jurisdiction is "claim specific." Had the breach of a different legal duty that applied to the non-signatories been alleged (e.g., fraud) a different result might have obtained.

Senate Confirmation Battles--Pining for the Good Old Days?

Kendall Gray — Wed, 14 Jul 2010 03:53:54 -0600

As reported by Erin Miller at SCOTUSBlog, the committee vote on Elena Kagan's Supreme Court nomination has been delayed until next week, ostensibly to provide additional time for senators to parse her written responses. I suppose that's little enough to ask in exchange for a most prestigious job for life, but color me cynical. No matter what the answers say, we will be treated to senators in front of television cameras opining that the same person is either an insufferable "judicial activist" or unsurpassed "legal scholar," and one already knows which senators will hold which view. One suspects, therefore, that ideology has become disconnected from reality, no matter which ideology is held.

The cynic amongst us, therefore, would say that senate confirmation hearings are nothing more than an empty Kabuki dance--and that with bad dancers. All the players assume their accustomed rolls and say their accustomed lines while performing their accustomed movements.

The high minded might counter that the Senate has a constitutional obligation to carry out as part in the separation of powers--at its height to save The Republic from life tenured legislators run amok.

Presumably, that is why the language of the high minded can become so heated, to wit, this statement about The President's nominee:

It is one of the deepest wounds that I have ever had as an American and a lover of the Constitution and a believer in progressive conservatism, that such a person could be put in the Court, as I believe she is likely to be. She is a muckraker, an emotionalist for her own purposes, a socialist, prompted by jealousy, a hypocrite, a person who has certain high ideals in her imagination, but who is utterly unscrupulous, in method in reaching them, a person of infinite cunning. . . . of great tenacity of purpose, and, in my judgment of much power for evil.

I mean, if half of that were true, who would nominate (much less confirm) such a scoundrel? But can even half of it be true? And have we now made such a mess of the confirmation process that such incivility occurs without condemnation?

But don't answer yet.

That statement is not about President Obama's nominee. And the nominee was not even a woman. I cheated. I changed the gender in the quote.

The quote is about President Wilson's nominee. And the nominee's name was Louis Brandeis.

Yes, that Louis Brandeis.

The person who hurled such calumnies at the future Justice Brandeis was William Howard Taft, who probably wanted the appointment for himself and who later served as Chief Justice on the same court with this Brandeis "muckraker."

And yet The Republic managed to survive the muckraking creator of the Erie Doctrine. (The Republic has, to date, always done so).

The point: we've been doing confirmation wrong for a long time. The amount of wrongness just waxes and wanes with the political temperatures of the times.

But it is still wrong, even if well-established wrong. And it is a wrong lawyers have special responsibility to address. Ours is the job of promoting respect for the judiciary, even a judiciary with which we sometimes disagree.

How would this process look if self-serving Senators were held accountable by members of the bar in their states? And I wonder, do we lawyers have the judgment to recognize opportunistic Kabuki dancing, even when committed by those of our own political stripe?

We now return you to our regularly scheduled appellate blog.

Grant Thornton v. Prospect High Income Fund: Tip Of The Hat For A Good Introductory Paragraph

Kendall Gray — Tue, 06 Jul 2010 04:13:43 -0600

Regular readers will remember the recent post where I kvetched about the tendency of SCOTUS judges to write "page turners"--and not in a good way. Those are opinions in which you can't tell what is going on for lack of a good introductory paragraph to help you organize the information. Instead you must wade through recitations of legal history, factual history, procedural history, and sometimes history history, all while wondering:

Is this going to be on the test?

If that post was a wag of my blogging finger, consider this a tip of my bloggorial chapeau. For in addition to being the Chuck Norris of the legal world, the Chief Justice of the Supreme Court of Texas shows his federal brethren how it is supposed to be done.

Consider the introductory paragraph from Grant Thornton v. Prospect High Income Fund. It gives you enough information to fully understand what the issue is, why it is important, who wins and why:

Certified accountants audit companies for many purposes, not least of which is to provide corporate directors with an objective assessment of their companies’ performance. Audits are also prepared to give information to a specific investor who the auditor knows will rely on its contents. We must decide whether the law imposes an obligation on the auditor to provide an accurate accounting not to the corporation or known investor, but to anyone who reads and relies on it. We conclude that it does not. Likewise, we hold that the particular investors involved in this case could not have justifiably relied on the audit reports as to purchases made after they knew the corporation was at risk of financial ruin, and they may not substitute their escrow agent’s reliance for their own without also being bound by its knowledge. Finally, we reject the investors’ “holder” claims—claims not that they bought or sold securities based on the auditor’s reports, but that they held them when they otherwise would not have—in the absence of a direct communication with the auditors. For these reasons, we reverse in part the court of appeals’ judgment and render judgment that the investors take nothing.

All of this comes in the first paragraph. And because it does, any other page in the opinion makes sense. The opinion hangs together whether it is read straight through (which, let's face it, hardly ever happens) or in single issue snatches while writing your own brief. And because you know how the story ends, you never have to guess about which facts or procedural events are important.

It's not much of a way to write a mystery or a thriller, but it's the perfect way to write your brief if you want it to be read and understood.

Or you could go for mystery.

So here's to you, Mr. Good Summary Introductory Paragraph Guy. We doff our collective hat.

Conkright v. Frommert: Supreme Court Takes An ERISA Mulligan (Again)

Kendall Gray — Mon, 28 Jun 2010 04:00:00 -0600

A mulligan, in a game, happens when a player gets a second chance to perform a certain move or action. The practice is also sometimes referred to as a "do-over."

--Wikipedia

Alas, dear reader. Here is where you get to find out what an ERISA geek I am. I've worked in this area since about 1998, that fateful weekend when I made a note book of all the Supreme Court ERISA cases and studied them.

'Cuz that's how I roll.

So, imagine how my heart went pitter pat when the Supreme Court released Conkright v. Frommert a few weeks ago and delved into the "abuse of discretion" standard of review for ERISA benefit determinations.

(Just a minute. I need to take a moment to gather myself. I'm all verklempt. Talk amongst yourselves.)

Conkright is a lesson in how loose lips from prior opinions sink ships for clients and counsel looking for legal standard they can follow. More precisely, it is a lesson in how mushy judicial language and multi-prong balancing tests create problems -- lawsuits born of ambiguity -- that some later court has to clean up.

After the jump, I'll explain why Conkright is an ERISA Mulligan that was needed to clean up its prior, imprecise opinion. And as a bonus, I'll explain that it's at least the second such Mulligan the Supreme Court has needed in this area.

Most ERISA plans vest plan administrators with "discretion" in interpreting the plan and deciding whether to award benefits. Courts must defer to that discretion. Not every disagreement is ought to even wind up in court, let alone stay there long.

Easy, right?

Not so much.

Firestone Tire & Rubber Co. v. Bruch was necessary to establish that, yes, Virginia, the administrator really does have discretion when the plan document says so. So, these ERISA benefit disputes need not clog the courts. If they are appealed, they can be handled as administrative actions. Tie goes to the runner. If the administrator's decision has support in the evidence, the court must defer. Done, right?

Not exactly.

The Court later granted certiorari in Metropolitan Life v. Glenn. There, the plan administrator was also the insurer and operated under a structural conflict of interest, no matter how small, in determining any individual claim for benefits. Does deference still apply?

The court's solution was to come up with an indecipherable Rube Goldberg machine of multi-factor balancing prongs to determine whether the administrator's decision was still entitled to deference. The outcome of any benefit dispute could end up depending more on which district judge or which panel one drew rather than on the administrative record or the plan terms. Deference in theory became de novo in practice

So, among its other tasks in Conkright, the Court needed a Mulligan to re-cast its holding in Glenn. You can almost hear the Court express, "what we meant to say was . . . ." Observe:

This Court addressed the standard for reviewing the decisions of ERISA plan administrators in Firestone, 489 U. S. 101. . . . We recognized that, under trust law, the proper standard of review of a trustee’s decision depends on the language of the instrument creating the trust. See id., at 111–112. If the trust documents give the trustee “power to construe disputed or doubtful terms, . . .the trustee’s interpretation will not be disturbed if reasonable.” Id., at 111. . . .
We expanded Firestone’s approach in Metropolitan Life Ins. Co. v. Glenn, 554 U. S. ___ (2008). . . . We held that, when the terms of a plan grant discretionary authority to the plan administrator, a deferential standard of review remains appropriate even in the face of a conflict. See id., at ___ (slip op., at 9).

(Emphasis added).

Oh. But of course. That's what Glenn meant. I'm glad Chief Justice Roberts cleared that up for me.

It reminds me very much of Aetna Life Inc. v. Davila, the Court's last ERISA Mulligan. Pilot Life was clear: no state law claims when your ERISA benefits are denied or delayed. But then came the murky "Travelers Trilogy" and then Pegram--all full of Souterese about how preemption or managed care worked without discernable rules or holdings. So, the court needed a Mulligan in Davila--"what we meant to say . . . . ."

At argument, when the plaintiffs put their gloss on Pegram, Justice Souter (the author) was left to sputter, "That's not what Pegram means at all." And when they tried to explain why Justice Souter's opinion in Traveler's changed ERISA preemption, Justice O'Connor (the author of Pilot Life) was heard to remark, "That train already left the station in Pilot Life." And the Mulligan opinion in Davila announced that the train had, indeed, already left the station:

[A]ny state-law cause of action that duplicates, supplements, or supplants the ERISA civil enforcement remedy conflicts with the clear congressional intent to make the ERISA remedy exclusive and is therefore pre-empted.

I'm glad Justice Thomas finally told me what all that Souterese meant.

But in the interim, fertilized by all that Souterese, there was no end of clever lawyering to try and avoid preemption. Not that I'm complaining.

Kawasaki v. Beloit Corp.: Don't Leave The Reader In Suspense

Kendall Gray — Wed, 23 Jun 2010 17:00:00 -0600

Monday's Supreme Court opinions, ably reported by Erin Miller at SCOTUSBLOG, were . . . how does one say it . . . underwhelming.

There I sat with my vuvuzela and SCOTUS face paint waiting on Bilski and waiting to see if the Fourteenth Amendment protects me from having the City of Chicago pry my guns from my cold dead fingers, and what do I get?

The Carmack Amendment,
The FAA,
Seed deregulation, and
It's wrong to support terrorism, even in the Ninth Circuit.

Who knew? Like you, I was gobsmacked.

But separate from the legal issues involved, I noticed something about the legal writing that pushed my buttons--indeed a HUGE pet peeve with me. So consider yourself warned, SCOTUS. Consider this post a wag of my prodigious, blogger finger.

After the jump, your humble blogger will demonstrate why Supreme Court Opinions are no place for prospective suspense writers. Just tell us, "whodunit."

Perhaps in an effort to make Monday's statutory fare more exciting, all of the majority authors made their opinions into page turners--i.e., you had to turn the pages to find out what happened. If a practitioner did this in a brief, a court might well issue an order to show cause why said lawyer ought not be horsewhipped. But with a court's opinion, no horsewhipping is in the offing. Only finger wagging.

Here is how the page turner approach works. The Court states the main issue, sometimes succinctly and sometimes not, and then launches into an impenetrable statement of the procedural history of the case, the decisions below, or the circuit split without saying how the issue comes out and why. These recitations are impenetrable, not because the Court is using "fancy words" to dumbfound us non-Ivy-League-types, but because the Court has withheld any structure for the reader to use in organizing the information--i.e.:

What is the answer to the question and why?

Knowing just this little bit of information makes the factual and procedural recitation much easier to digest. When you write this way, it solves the 3 a.m. Judge and kidnapping the reader problems I have written about before because you:

Tell them what you're going to say
Say it
Summarize what you've just said.

You can see the problem in every one of the Court's Monday opinions, but Kawasaki Kisen Kaisha Ltd. v. Beloit Corp. gets the prize. Check out this statement of the issue. Note the unnecessary detail about the case they are about to distinguish, the unnecessary citations, the abbreviation gobbledygook, the length, and (oddly for all this length) what is left out:

These cases concern through bills of lading covering cargo for the entire course of shipment, beginning in a foreign, overseas country and continuing to a final, in land destination in the United States. The voyage here included ocean transit followed by transfer to a rail carrier in this country. The Court addressed similar factual circumstances in Norfolk Southern R. Co. v. James N. Kirby, Pty Ltd., 543 U. S. 14 (2004). In that case the terms of a through bill were controlled by federal maritime law and by a federal statute known as the Carriage of Goods by Sea Act (COGSA), note following 46 U. S. C.§30701. Kirby held that bill of lading provisions permissible under COGSA can be invoked by a domestic rail carrier, despite contrary state law.

The instant cases present a question neither raised nor addressed in Kirby. It is whether the terms of a through bill of lading issued abroad by an ocean carrier can apply to the domestic part of the import’s journey by a rail carrier, despite prohibitions or limitations in another federal statute. That statute is known as the Carmack Amendment and it governs the terms of bills of lading issued by domestic rail carriers. 49 U. S. C. §11706(a).

Really? Is all that necessary? Can you tell from this statement that this is a forum contest? No? I couldn't either. But surely the Court will tell us the answer before regaling us with a primer on maritime legal history, right?

Not exactly.

First we get three pages of factual and procedural recitation tracing the transport of the goods from Asia to a train wreck in Tyrone, Oklahoma and thence into the California state courts and removal to the Central District of California. Is Tyrone relevant? Is the Central District of California relevant? Are removal issues involved? Does it matter that the case was removed rather than originally filed in federal court? I can't tell because I still don't know the answer or the reasoning. In fact, I don't know the question. The Court has not even stated that this is a forum contest. Is it going to be . . . .

Tokyo?

Or perhaps is it to be . . .

Los Angeles?

But, OK. Surely we'll get some indication how the story ends before the Court gets deep into the brambles of its legal discussion, right?

Not exactly.

The Court, instead, indicates that we are going on a detour through COGSA, which if you do not recall, was defined five pages ago:

Before turning to Carmack, a brief description of COGSA is in order; for “K” Line’s and Union Pacific’s primary contention is that COGSA, not Carmack, controls. . . .

Really? Brief description? Can't you just tell me who won and why before a discussion of COGSA followed by the history of the Carmack Amendment in all its glory?

Is it a draw?
Will Kawasaki advance from Group C to the next round?
Is it Tokyo or is it Los Angeles? Maybe Tyrone? Was that just a red card?

Alas, my vuvuzela is silent. My SCOTUS face paint is smeared. And before you know it, we're eight pages into a 21 page opinion before the Court indicates for the first time that the the lawsuit belongs in Tokyo, and I'm still uncertain why.

Sure, one can read the syllabus. But one shouldn't have to with a well written opinion. What's more, you don't have a syllabus when you are writing a poorly written brief.

Instead of all the page turning suspense, there is a better practice for the legal writer, especially in writing briefs that are always in danger of finding their way into a court's circular filing cabinet:

A good piece of legal writing is not a mystery novel. Don't make the reader turn to the back of the book to read the last chapter first.
Legal writing done well is not a Sudoku puzzle or a crossword. Don't make the reader turn the newspaper upside down in search of the answer key.
Your brief is not a scavenger hunt. Don't make the reader guess which details are important and which can be ignored.
Your brief is not a Team USA World Cup match where the audience will wait on the edges of their seats until the 92nd minute. Score early. Score often.
Instead, provide the overall guide and structure before zooming in. Sum up the conclusion and the reasoning first, so the reader knows where you are going and why.

Here, for example, Kawasaki could just as easily have been written:

Bills of lading cover cargo for the entire course of shipment, beginning in a foreign, overseas country and continuing to a final, in land destination in the United States. The question here is whether the terms of a through bill of lading issued abroad by an ocean carrier can apply to the domestic part of the import’s journey by a rail carrier, despite provisions in the Carmack Amendment governing domestic rail carriers' bills of lading. If so, this suit must be brought in Tokyo. If not, this suit may proceed in California where it was filed.

The answer is: Tokyo. The ocean carrier's bill of lading controls because . . . .

See how easy that was?

Let sound the vuvuzelas!!! (vuvuzalae?)

Break forth into song. Ole, ole, ole . . .

See the COGSA flagons flow.

We're going to Tokyo, not Tyrone and not Los Angeles! And we know why!

And, the opinion's shorter too.

No need to thank me, SCOTUS. I'm just here to help.

Wal Mart Stores, Inc. v. Merrell: The Elephant In The Room

Kendall Gray — Mon, 21 Jun 2010 04:41:49 -0600

Every once in a while you can learn something really useful from good ol' Judge Per Curiam. The Supreme Court's recent decision in Wal Mart Stores v. Merrell is just such a case.

The decedents died from smoke inhalation when their recliner burned. So obviously, it was Wal Mart's fault because the damaged floor lamp Wal Mart sold them was the culprit. Right? After all, according to the expert "the lamp’s halogen bulb exploded, sending burning glass shards onto the recliner, which smoldered for several hours."

Or maybe the decedents set the recliner alight themselves while smoking the drugs that were found in their system--either with candles or perhaps the "blunts" and "smoking paraphernalia throughout the house, including ash trays, a bong, and marijuana cigarette butts."

(Incidentally, did anyone other than me find it amusing that the Supreme Court of Texas found it necessary to drop a footnote to explain exactly what a "blunt" is? I never saw anything stronger than an aspirin at my High School, but even I found the definition unnecessary and humorous.)

After the jump, a little homily on what this case really teaches us.

In Merrell, Wal Mart moved for summary judgment that it's lamp did not cause the fire. It objected to the Plaintiffs' expert affidavit that attempted to raise a fact question on causation. The trial court let the affidavit in, but granted summary judgment nonetheless, finding (of necessity) that it did not raise a fact issue. The court of appeals found that it did, but Judge Per Curiam found that it did not.

According to Judge Per Curiam, defects such as the expert's failure to address the alternative explanation for the fire (i.e., they burned it themselves while they were high) rendered the testimony conclusory and legally speaking "no evidence."

He explained why the melted candle wax and location of the candles precluded the candles as the source of the fire (pointing to the melted pool of wax on the table, which could not have survived the fire exposure if the candles themselves had ignited the fire). Yet he provided no explanation for why lit smoking materials could not have been the source. An expert’s failure to explain or adequately disprove alternative theories of causation makes his or her own theory speculative and conclusory. See Gen. Motors Corp. v. Iracheta, 161 S.W.3d 462, 470 (Tex. 2005) (“[The expert] eliminated the obvious possibility that fuel or vapors from the tank filler neck ignited only by saying so, offering no other basis for his opinion. Such a bare opinion was not enough.”).

Now, some might use this space to wax eloquent or become apoplectic about:

Legal sufficiency review and the end of civilization as we know it post City of Keller
What is and is not a fact issue
What is the difference between an expert opinion that is "no evidence" and one that is inadmissible evidence

But I am a simple man. To me, there is a much simpler lesson here that has wider application:

DON'T ignore the elephant in the room.

Whether you are the trial lawyer dealing with the facts in front of the jury, the appellate lawyer dealing with a bad record or bad law, you have to deal with the warts in your case.

If you don't deal with the bad facts or the adverse precedent, the best you can hope for is that you merely hemorrhage credibility. Worse still you can become a joke, i.e.,

It's just a flesh wound. I'm INVINCIBLE!

Other than that, Mrs. Lincoln, how was the play?

Pay no attention to that man behind the curtain.

Much better to admit that your case is a pig wearing lipstick and then explain why the law gives your pig the victory. You might still lose, but you improve your chances, both in the pig case and the next one.

What If You Filed A Lawsuit And Nobody Came: Comer v. Murphy Oil USA

Kendall Gray — Mon, 14 Jun 2010 12:20:12 -0600

Did you notice when the Fifth Circuit ceased to be?

Let me explain.

No, let me sum up.

The Fifth Circuit ceased to exist for one particular case. The result was a non-en-banc en banc reversal of the panel opinion, and the non-affirmance affirmance of the the district court opinion.

I am referring to Comer v. Murphy Oil. The District Court dismissed the case holding that hurricane victims could not sue the military industrial complex for worsening their hurricane damage by contributing to global warming.

A panel of the Fifth Circuit held, "yes you can."

The en banc court said, "no you can't"

Except it didn't. Well, kinda. After the jump, an explanation and a recommendation.

Unencumbered by any law, my personal view is that the district court probably got it right and the underlying lawsuit is passing strange and nonjusticiable. But it is equally strange that there is now no appellate ruling declaring that to be so.

The en banc court did not review the merits, the district court opinion essentially became law of the case. Why? Because The United States Court of Appeals for the Fifth Circuit lost its quorum and ceased to exist as an adjudicative body. Judge Davis, a member of the Panel, dissented to the dismissal of the appeal and explained:

[A] panel of this court, after full consideration of the briefs and oral argument, decided appellant’s appeal. Appellee then applied for en banc rehearing and a vote was taken. Only nine of the seventeen active judges were unrecused and qualified to participate in a vote. By 6 to 3, the nine qualified judges voted to grant rehearing en banc. Shortly after the case was voted en banc, one of the six judges voting for en banc declared herself recused thereby causing the court to lose its quorum. Instead of declaring that the loss of a quorum automatically dis-en banced the case causing the case to return to its status before it was voted en banc, five of the eight remaining unrecused judges voted to enter the attached order dismissing the appeal. The five judges who entered this order reasoned that this result was mandated by our Local Rule 41.3, which provides: “Unless otherwise expressly provided, the granting of a rehearing en banc vacates the panel opinion and judgment of the court and stays the mandate.”

So there was no more Panel Opinion, but no body capable of adjudicating the case. Judge Dennis, also a member of the panel, dissented to the dismissal and saw no need for such an outcome:

It is worth emphasizing once more that the majority’s dismissal of this case is a decision to reject several legally valid courses of action, not a merely ministerial application of settled rules as the majority suggests. It is therefore inconsistent with the majority’s own rationale, which is predicated on the claim that we lack a quorum and therefore lack the power to take any action in this case. Despite our supposed lack of power, the majority has made the decision not to recognize that we have a quorum under 28 U.S.C. § 46; not to follow the example of the Supreme Court in North American Co.; not to invite an outside judge under 28 U.S.C. § 291; and not to apply the Rule of Necessity under Will. The majority has instead decided to dismiss a case over which we have jurisdiction, thereby violating the longstanding rule, dating back to Cohens v. Virginia, that we lack the power to decline to exercise the jurisdiction that has been conferred on us. Because this court has an absolute duty to render a decision in this appeal, I respectfully dissent.

Whether one sides with Judge Dennis in believing that the Court does have power to proceed or with the former en banc majority in believing that it does not, one thing probably ought to spark some agreement. This Court, one of the busiest in the nation, ought not be shut down or stymied by such stuff.

The Supreme Court of Texas famously had the "All Woman Court" appointed by Governor Pat Neff in 1925 when every member of the court (and darn near every lawyer in the state) were unable to proceed because they were members of the organization in suit. And the Fifth Circuit managed to desegregate the deep south through both threats and acts of violence against the institution.

But now this?

The public needs the Fifth Circuit to function. There ought be no set of facts under which the Court cannot consider the merits of a case over which it has jurisdiction. If it were otherwise, the Court and its decisions become subject to manipulation. If the current rules and recusal standards subject the court to such manipulation or if they cannot protect against the loss of a judicial forum capable of exercising power, then they are inadequate and must be changed.

Fifth Circuit News: Meet Nominee James E. Graves, Jr.,

Kendall Gray — Fri, 11 Jun 2010 06:46:31 -0600

The next Fifth Circuit Judge may be a Mississippian. Yesterday, President Obama nominated James E. Graves, Jr. to fill a vacancy on the United States Court of Appeals for the Fifth Circuit. Justice Graves currently serves as the presiding justice on the Mississippi Supreme Court and had a wide range of prior experience as a trial judge, teacher, and public servant.

The official announcement reads:

“Throughout his career James E. Graves has shown unwavering integrity and an outstanding commitment to public service,” said President Obama. “I am proud to nominate him to serve on the United States Court of Appeals.”

Some highlights from Justice Graves' bio at the Mississippi Supreme Court are:

Presiding Justice James E. Graves, Jr., has served on the Mississippi Supreme Court since 2001. He was appointed to the Court by Governor Ronnie Musgrove and later won election to the Court in 2004. Prior to serving on the Mississippi Supreme Court, Justice Graves served as a Circuit Court Judge in Hinds County, Mississippi, for ten years.

Justice Graves was born and raised in Clinton, Mississippi. After graduating as the valedictorian of his high school class, he attended Millsaps College and graduated with a Bachelor of Arts Degree in Sociology. He received his law degree from Syracuse University College of Law and a Master of Public Administration degree from the Maxwell School of Citizenship and Public Affairs at Syracuse University.

* * *
Justice Graves’ background in teaching and education includes serving as a Teaching Team Member of the Trial Advocacy Workshop at Harvard Law School since 1998 and serving as an adjunct professor teaching media law, civil rights law, and sociology of law at Millsaps College, Tougaloo College, and Jackson State University.

* * *

A renowned orator, Justice Graves frequently speaks at universities, schools, churches, and conventions throughout the country. His past speaking engagements include a keynote address at the International Reading Association’s 50th Annual Convention.

Hat tip to Howard Bashman at How Appealing.

Lyondell Chemical Co. v. Epec Polymers Inc.: Settlement Discussions By Any Other Name Are Off Limits

Kendall Gray — Wed, 09 Jun 2010 12:24:16 -0600

A new case from the Fifth Circuit yesterday that would be of interest to civil practitioners. The underlying dispute in Lyondell Chemical Company v. Epec Polymers(pdf) involved allocation of responsibility under CERCLA, but the interesting part of the case to me is the application of Rule 408 of the Federal Rules of Evidence (pdf) regarding exclusion of settlement discussions.

Without numbing you with unnecessary detail, part of how the district court quantified the amounts and costs in issue was discussions, after the feds threatened suit, between some of the parties regarding a related but different portion of the same site. Although there are many more issues involved in the opinion, the Fifth Circuit found this use to be impermissible.

Judge Higginbotham wrote for the panel:

Although El Paso characterizes the reports as part of a “congenial effort by group members to fairly and cooperatively assess the contamination” unentitled to Rule 408 protection, we cannot agree. It is undisputed that the EPA threatened litigation against Occidental and other members of the task group. . . . The work of the task force was anything but business as usual and its discussions—including the Smythe Reports—went well beyond mere “business communications.”

El Paso argued that “Rule 408 only bars the use of compromise evidence to prove the validity or invalidity of the claim that was the subject of the compromise, not some other claim.” While acknowledging many different approaches courts and commentators have used to define the scope of a "claim," the court

. . . decline[d] to adopt any rigid definition of “claim.” Our application of Rule 408 has been and remains fact-specific, and tethered to the rationales underlying the rule. And here, we have no trouble concluding the Smythe Reports were created for use in negotiations regarding the “claim” now being litigated. Though separated by time and location, the disputes associated with the Highway 90 and Turtle Bay sites arise out of the same events: the repeated dumping of hazardous waste intended for Highway 90.

Mmmmm. I love the smell of evidence in the morning.

Krupski v. Costa Crociere: A Cert-Worthy Slip & Fall?

Kendall Gray — Tue, 08 Jun 2010 15:06:08 -0600

Procedure geeks were all a-twitter (again) when the Supreme Court released it's recent Krupski opinion. And who can blame them? The Supreme Court construed FRCP 15(c)(1)(C) on when correcting the misnomer of a party will relate back to the filing of an original complaint.

Essentially Krupski sued the marketing affiliate (Costa Cruise) when it was clear she had intended to sue the affiliate that actually operated the boat that tripped her (Costa Crociere). By the time she got it all sorted out, limitations had run. The Supreme Court saved her.

Eccitante! No?

Kevin Russell of the SCOTUS Blog wrote a good summary and I won't repeat it. But I was wondering about something else.

I was wondering how a case that is essentially a slip and fall on a cruise ship made it to the Supreme Court of the United States. I wish I could peer inside the black box of the Supreme Court "cert. pool" to know what made this case rise above other worthy cases that the Court rejected, if only for lack of time.

Justice Sotomayor's opinion says the court "granted certiorari to resolve tension among the Circuits over the breadth of Rule 15(c)(1)(C)(ii) . . . ." She sets out a footnote of cases far less profound than a magnificent, circuit split. Then she explicitly disavows any warranty of the extent to which they conflict, saying "We express no view on whether these decisions may be reconciled with each other in light of their specific facts and the interpretation of Rule 15(c)(1)(C)(ii) we adopt today."

So . . . "tension?" That's enough? Or is this different because it is a rule of procedure? Absolute uniformity is more important with procedure and tension will suffice? You SCOTUS wonks out there who have any thoughts feel free to weigh in. I'm genuinely curious if this fits in any pattern or is just an outlier that the court reached out to grab.