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Reading is difficult. As a writer, I help the reader every way I can think of. As a reader, I work hard not to miss the big things in the middle of the road.

Friday, February 19, 2010

Laughs for Legal Writers

After a week of preparing for a trial that is almost certain not to happen, a day of domestic squabbling, and preparing to move, I got word that The Green Bag, a most entertaining law journal, had chosen its best examples of legal writing for last year. I had occasion thereby to read The Green Bag's Greatest Quips 1997-2002. It includes such gems as a recasting of the first sentence of Milton's Paradise Lost as if it had been written by a lawyer, a spoof showing how a group of academics had ranked U.S. News & World Report below other magazines, and newly appointed Supreme Court justice David Souter's report of why he participated in the Christmas caroling led by then-Chief Justice Rehnquist: "I have to. Otherwise, I get all the tax cases."
Other people you know of or should know of who are associated with this enterprise are libertarian legal scholar Richard A. Epstein, Leonard Garment of the Nixon White House, legal writing maven Bryan A. Garner, and comparative constitutional law professor Mary Ann Glendon.

Thursday, February 18, 2010

Texas State Court Rules-- Where to Find Them for Free

Rules for Texas State Courts can be found at the Supreme Court of Texas's rules page. Local rules or internal operating procedures for lower Texas state courts can normally be found on the Texas Courts Online webpage for that court. The main index page for the Texas state courts system is here. Internal Operating Procedures for the Thirteenth Court of Appeals is here.

New Supreme Court of the United States Rules Adopted

The Supreme Court of the United States updated its rules a couple of days ago. A summary of the changes is here. A complete set of the updated rules is here.
Some of the main changes follow. Word limits on a Reply Brief on the Merits were reduced from 7,500 to 6,000. The rules cut the volume limit for such briefs back to what it was prior to the 2007 Rules revisions. What is to be included on the cover of the Joint Appendix has been clarified. Counsel of record now have to include an e-mail address on the cover of every document filed. The appendices now need a descriptive index and citations to the United States Code whenever available. That only an attorney admitted to practice before SCOTUS is permitted to file an amicus curiae brief is clearer. No more applications for extensions of time for amicus curiae briefs at the merits stage will be allowed.

Wednesday, February 17, 2010

Lethal Injection Too Good for Them

Now, in addition to trying to kill death row inmates, the State of Louisiana is additionally suing them all also.
To head off challenges to Louisana's death sentence execution protocols under her Administrative Procedure Act, the State is suing every death row inmate to bind them to a declaratory judgment that death penalty procedures are not subject to the act. Louisiana authorities filed their countersuit after death row convict Nathaniel Code challenged challenged Louisiana's procedures as inconsistent with the Act. Some states have held that death procedures have to go through administrative procedures such as rule postings, public comment periods, hearings, etc.; others have not.
Texas prison prosecutors brought a marijuana possession charge against a death row inmate. People at the prison public defender's office there marvelled at the bureaucratic mind. Putting them to death was not enough, they had to be prosecuted for pot, too.
Hat tip to Hon. Craig Estlinbaum of Adjunct Law Profs Blog for this.

Wednesday, February 10, 2010

Just Say No to Talking, Texting and Tweeting

The blog of Legal Times reports that a committee of the Judicial Conference of the United States has drafted jury instructions to discourage using cell phones or social networking during a trial. Such communications hold the possibility of polluting a jury's ability to decide factual issues at trial under the rulings of the court, producing a lot of unfixable trial error.

Tuesday, February 9, 2010

Westlaw Fixes-- Better Citations and the Promise of Rapture

I'm on the email lists and mailing lists for Westlaw's updates.

The pamphlet I got in the mail today offers the promise of their citations being in Harvard Blue Book form or Texas Green Book form when one copies them out of their database, which has long seemed to me to be the most pointless inconvenience of Westlaw.

I hear that West made this upgrade because of competition from Lexis-- a fine organization-- love their LexisOne emails and service. Still, though, however frustrating West is, I don't know how to do a Texas statutory search straight from one's computer to printout that meets Green Book standards using Lexis alone (To meet Bluebook form for a federal statute, you should really use the Government Printing Office's volumes of the United States Code no matter what computer search base you are using.).

That the main image for the advertising campaign seems to be a beautiful young brunette woman, eyes closed or downcast, hair rapturously windblown gives me mixed feelings. My hope that some day good computer legal research will run as fast as Google is not unrealistic. But even for me, who loves a Westlaw searching almost as much as chocolate, I do not expect to be swept away with joy-- the way the advertising girl seems to be-- whenever I log on to the ThomsonReuters website. Work is work.

Monday, February 1, 2010

The Jury Should Get Both Choices

What the Texas Court of Criminal Appeals found in Jennings v. State, No. PD-0261-09, 2010 WL 298071 (Jan. 27, 2010) is not very surprising. If the verdict form for the jury to fill out only offers a verdict of "guilty" for a lesser included offense but does not offer "not guilty," even if the defendant does not object, an appeals court needs to consider whether the error caused egregious harm. If it did, the case needs to be reversed. The Amarillo Court of Appeals said that Jennings had waived the error entirely by not objecting. Even Presiding Judge Keller seemed to say that Amarillo was too much a stickler here. I get the impression, though, that her sending the case back to Amarillo is for them to use the right verbiage with their affirmation, while the other judges are sending it back to Amarillo to a new trial.
The opinion says that NO BODY appeared to notice this flaw in what was given to the jury. This is very much contrary to my experience. The trial judge, the prosecutor, the defense counsel, each of them-- for very different reasons have a major stake in not making a big goof. The judge doesn't want to look bad in front of the jury and the courts of appeals. The prosecutor doesn't want to have the judge look bad. And what must the client have thought when her attorney forgot to ask the jury for the option to acquit her on one of the charges? Thank God Darrell Jordan and the Texas Supremes kept defenders from being sued for malpractice..
Lastly, a research note: Judge Cochran says that Amarillo mistakenedly relied on a couple of pre-Almanza (686 S.W.2d 157, Tex. Crim. App. 1984) opinions (implicitly-- the cases aren't mentioned in what the Seventh District wrote), while Presiding Judge Keller says her colleagues misunderstand the old cases and the historical practice they addressed. If you're appealing a criminal jury charge, be very careful to be able to articulate why the cases you're using that predate Almanza are not overruled by it-- or don't use them.