What Would David Ogilvy Do?

Here I try to help you do legal writing. One of the best pre-law preparations I had for legal writing was to work as a journalist and an advertising copywriter. An article in Lawyers USA Online helps you apply advertising copywriting principles to your brief writing.
David Ogilvy, one of the founders of the advertising firm Ogilvy and Mather, was a master of long-form magazine copywriting. Now forms are shorter, and magazines are dying. The main long-form written persuasion that is left is: legal briefs.
Can't pass up a entry on Ogilvy in the Mad Men blog.

Presiding Judge Keller's Case Might Not Be Stone Dead

The Houston Chronicle reports how and why here.

Texas Supreme Court Justices Have Been to the Movies, Just Like Everyone Else

A blog post about Justice Don Willett's citation to Star Trek II--The Wrath of Khan appears in Geek Dad. Wrath is one of the two best science fiction movies ever-- the other being Forbidden Planet.

Fifth Circuit Stands Up for Slip-and-Fall Trial.

E. Grady Jolly, Fifth Circuit Judge, writing for a panel including Judge James L. Dennis and Senior Judge Harold R. DeMoss, Jr. of that court holds that a trial court should not have granted summary judgment in a slip-and-fall case, where there was some evidence that the "wet floor" sign that the slipped on might have been there long after the floor had dried and that other actions of the defendant might possibly show negligence.
Hat tip to Lawyers USA Online for this case.

Clewis Is Dead, Long Live Brooks and Jackson

"We granted discretionary review in this case to address, among other things, whether there is any meaningful distinction between a legal-sufficiency standard under Jackson v. Virginia ⁽¹⁾ and a factual-sufficiency standard under Clewis v. State and whether there is a need to retain both standards. ⁽²⁾ Under the Jackson v. Virginia legal-sufficiency standard, a reviewing court is required to defer to a jury's credibility and weight determinations. ⁽³⁾ In Clewis, this Court adopted a factual-sufficiency standard, which is supposed to be distinguished from a Jackson v. Virginia legal-sufficiency standard primarily by not requiring a reviewing court to defer to a jury's credibility and weight determinations. ⁽⁴⁾ But then Clewis contradicted itself by also requiring a reviewing court to apply this standard with deference to these jury determinations "so as to avoid an appellate court's substituting its judgment for that of the jury." ⁽⁵⁾ After having made several attempts to "clarify" Clewis in part to resolve this fundamental contradiction, we eventually came to realize that the Clewis factual-sufficiency standard is "barely distinguishable" from the Jackson v. Virginia legal-sufficiency standard. ⁽⁶⁾ We now take the next small step in this progression and recognize that these two standards have become essentially the same standard and that there is no meaningful distinction between them that would justify retaining them both. We, therefore, overrule Clewis and decide that the Jackson v. Virginia legal-sufficiency standard is the only standard that a reviewing court should apply in determining whether the evidence is sufficient to support each element of a criminal offense that the State is required to prove beyond a reasonable doubt".

This is what Judge Hervey said in her Brooks v. State opinion, which Presiding Judge Keller and Judges Keasler and Cochran joined.

Judge Cochran said for herself and and Judge Womack that both parties agreed that the proper issue in this kind of case is legal sufficiency of the evidence, and that logic requires a single standard of sufficiency review in criminal cases.

An argument might be made here, that the anti—Clewis holding here is dictum. Though it appears to me to be a logical consequence of their opinion, I believe, as a practical matter Cochran and Womack would say good riddance to bad rubbish.

Typing Is Important

In a per curiam opinion, Circuit Justices Jerry E. Smith, senior Circuit Justice Jacques L. Wiener, Jr., and Circuit Justice Jennifer Elrod held that after a supplemental trial court hearing that corrected an absurdity in the record-- that the defendant pleaded "not guilty" at his plea bargain setting resulting in a conviction-- could not attack the sufficiency of the evidence against him on appeal. The supplemental hearing showed that the defendant was pleading "no contest" rather than "not guilty." The guilty plea had been structured so as to allow him to challenge the search of his house, which was how the evidence of credit card abuse had been obtained.

Preservation of Error- General

Appeals courts generally don't let litigants complain about just anything in the trial below. (Why did I say "generally?" Because there is an important exception I'll talk about next week.) What the appellant complains about must not only be "error." It must be "preserved error."
Judges-- both on trial benches as well as appellate benches-- don't consider it sporting for a litigant to make a complaint about the trial, if the litigant did not tell the trial judge what the litigant thought was a mistake. Normally a litigant shows unhappiness with a particular matter by objecting. Generally, once a judge overrules an objection, that judge has been warned that the litigant might try to complain about that matter on appeal.
It is quite common for some judicial mistake to be just as plain as a pikestaff when the record is reviewed, only nothing can be done-- the lawyer did not recognize the error in the heat of battle.
The opposite of preserving error is "lying behind the log," a near-universal metaphor for a trial participant's holding knowledge of error during the trial, only to try to spring it on the trial judge on appeal.
Principles and pitfalls of preservation of error.: An article from: Florida Bar Journal

Where Complaint Good, Inmate Plaintiff Should Have Chance to Establish Some Evidence

Fifth Circuit Judges Patrick Higginbotham, Edith Brown Clement and Priscilla Owen, in a per curiam opinion, reversed and remanded the dismissal of a Texas state prison inmate's suit against the food service captain when the offender bit into a metal nut hidden in a piece of cornbread he was eating and broke a tooth. Kendrick Green, the plaintiff, alleged in his complaint that the captain had admitted to him that this was not the first time a foreign object had gotten into the food. The panel held that Green should have had the chance to prove this point before his suit was dismissed.

Should You Advise Your Client to Proceed in Appellate Court?

When trying to decide whether or not to advise someone to seek an appellate remedy, I often begin with what my dad first taught me about news writing, modified by what my journalism teacher taught me: Who? What? When? Where? Why? and How?
Who? Does the client have standing to seek a remedy? No use proceeding if the client does not.
What? Should the client act or  do nothing?
When? Has the deadline passed? Is the matter ripe for review? Appellate deadlines can be brutal, and, on the other hand, some obvious errors can't be fixed until years after they have been made.
Where? In rare cases, you might have a choice where to proceed, but usually not. Your only reasonable hope for some kinds of relief may be in a federal court, but it is usually against the law to start your appeal of a state court matter in the federal system.
How? If the client should act, is this a case for appeal or for a writ?
Why? The vast majority of appellate proceedings don't get the complainant any relief. A client's back may be against the wall such that everything must be tried. There are also cases where taking appellate action may have good side effects, such as to postpone an adverse judgment's becoming final when delay would be salutary for the client. Note, though, that delay may not be pursued merely for its own sake.
I intend, for the next couple of years, to share with you, bit by bit, what appellate matters call for appellate lawyers to think about. I fear that for a few of you what I am going to say is old hat. As I was outlining what I wanted to talk about, it seemed to be a huge amount of material.
If you want to eat an elephant, you must do it a bite at a time. We will, and I intend to salt it with fun.

Maybe You Don't Want to Argue Your Case in the Supreme Court Yourself

An observant and witty play by play of the United States Supreme Court argument in Snyder v. Phelps is here. Phelps's attorney-- his daughter Margie Phelps-- may well not have been ready for the big time.

Unarrested, Hospitalized Man in Custody as to Miranda

It's a mainstay of TV-- cops reading suspects their rights. Suspects' statements in custody may only be used in the cases-in-chief of their trials if they were read their rights before they made the statements. People who have been arrested are clearly in custody, but what about a hospitalized, unarrested suspect? The Colorado Supreme Court answered this question in Effland v. People, No. 09SC70, (Sept. 27, 2010), holding, in a 4-3 decision that under the totality of the circumstances, a hospitalized man was in custody per Miranda. His un-Mirandized hospital statements couldn't be used in the case-in-chief at his trial. Hat tip to Lawyers USA.