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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.

Tuesday, October 30, 2012

Don't Use an Unpersuasive Font

Don't miss this amazing pair of articles in the New York Times by Errol Morris--the filmmaker who gave us The Thin Blue Line, The Fog of War and Gates of Heaven--arguing that some fonts are more persuasive than others--Georgia more than most, and Baskerville most of all. I'm going to change my fonts as a result of this article, but need to decide how to do so most cost-effectively.
Thanks to Luke Gilman for bringing this to my attention.

The Courage of the Appellate Criminal Defense Lawyer

It takes courage to be a criminal lawyer, especially a criminal defense lawyer, especially a criminal defense trial lawyer, but sometimes it takes courage to be an appellate lawyer as here. This is not the whole hearing. Maybe there's something in the missing part that would, in part, excuse the judge's behavior, but the judge appears to be impatient with and discourteous to the public defender, which is contrary to Kentucky's Code of Judicial Conduct canon 3(B)(2).
Not everybody is going to be as lucky as David Barron, the public defender here, to have a video of judicial misconduct. In Texas, if there is going to be any chance that you are going to be in a situation like this (and I will grant that sometimes you cannot predict when trial judges are going to be hateful and obstreperous), you need to bring three disinterested witness to view the proceedings so that, if needful, they can swear to a bystander's bill, a way to make a trial court record when the judge or court reporter refused to make one or let you make one.
In the video, the judge complains that he wishes that a trial lawyer were before him instead of an appellate lawyer. There is a joke about a trial judge and an appellate judge duck hunting with a guide. They come upon some ducks. The guide tells the appellate judge to go first. Cocking the hammer, waiting for the birds to rise, the appellate judge fires when they do come off the water. The trial judge is next; when a group of birds fly by, that judge shoots a number of times, hoping that there was a duck somewhere.
I am a trial lawyer as well as an appellate lawyer. I have some sympathy for the trial judge who, from time to time, has to make momentous decisions on the spur of the moment in the heat of the courtroom, while appeals court judges get to take months to calmly ponder trial judges' decisions from cold records in the peace of appellate chambers.
But what a judge like the one in this video is complaining about, is that appellate lawyers get to (or have to, depending upon your point of view) judge trial lawyers and trial judges. They do that because appellate judges are in the business of correcting trial judges. Good appellate judges are not afraid to correct the errors of those siblings of the bench who are, formally, their juniors, and the best ones give some leeway to a trial judge who is physically at the trial, and needs much shoot from the hip to get a blast off at all. A trial judge who can't deal with being subordinate to the higher courts should get a different job-- perhaps try to be a high court judge.
Thanks to Martha Neil and the folks at the American Bar Association journal for bringing this to my attention.

Nines Won't Let Big Part of Case Be Decided by Sanctions Hearing Alone

Beaumont Texas's Ninth Court of Appeals conditionally granted a writ of mandamus in favor of Bank of America as against mortgagor Trudie Crutchfield after the trial judge sanctioned San Francisco's biggest $300,000 for breaching a settlement agreement with the lady. This was the third lawsuit between the parties about this matter. BoA argued that it should have the protections of a trial against this kind of forced payment, and the Ninth Supreme Judicial District agreed.
I've got a call into the Court Clerk's office to try to find out why the court's computer records call this per curiam opinion a majority opinion. There doesn't appear to be any dissenting opinion. The opinion's a majority opinion instead of a unanimous opinion?
Thanks to David Yates and the other great people at the Southeast Texas Record for bringing this case to my attention.

Highest New York's Court's Briefs Generally Not Improving Last 40 Years

The language in the briefs to the New York Court of Appeals-- that state's highest court-- have gotten less and less plain between 1969 and 2008, except for less use of the passive voice, according to an article pending for publication in the Suffolk University Law Review. Bryan A. Garner and I, among many others, have much work to do in this connection.

Wednesday, October 10, 2012

New Chief Judge of Fifth Circuit

United States Court of Appeals for the Fifth Circuit Chief Judge Edith Jones (Wikipedia still thinks she has her old job, and I don't have the time to fix it.) stepped down early from her term as chief judge, citing family reasons. She's still going to stay on the court. The new Chief Judge is Carl E. Stewart of Shreveport, Louisiana. Getting to be Chief Judge is a kind of seniority process. Immediately following admission to the Louisiana Bar Association in October 1974, he entered the Army and was stationed at Fort Sam Houston in San Antonio, Texas. He was a Judge Advocate General's captain until October 1977. After leaving the military, Stewart served as:
  • a Staff Attorney with the Louisiana Attorney General's Office,
  • an Assistant United States Attorney,
  • a Special Assistant City and District Attorney, and
  • a private practitioner.
In 1985, he became a District Judge in Caddo Parish, Louisiana, and was reelected without opposition five years later. In 1991, again without opposition, he was elected to the Louisiana Second Circuit Court of Appeal. President William J. Clinton appointed Judge Stewart as United States Circuit Judge on May 9,
1994. Judge Stewart is the second African American appointed to the Fifth Circuit.

Knowing Jim Sharp

The old joke is that it is better to know the judge than it is to know the law. Now, in truth, I don't ever recall the judge ever giving one of the lawyers in the room a wink and a nod, and plowing ahead against all fact and legal reason, but I have been in many a courtroom over the years where it felt like my underpants were showing all the time, because I was the one person among the attorneys and the staffers who did not know of some peculiar personality quirk, inclination of mind or pet peeve of the judge, and I have seen lawyers who did know those things manipulate them to the benefit of their clients, so keeping up with the news about judges is important.
I've got two pieces of judicial news to post today. I'll post them separately for the benefit of indexing, etc.

On August 30, 2012, the State Commission on Judicial Conduct publicly reprimanded Jim Sharp, a justice on the 1st Court of Appeals in Houston. The Commission found that Justice Sharp repeatedly contacted employees at the Brazoria County Juvenile Detention Center and identified himself as a Court of Appeals justice in his efforts to secure the early release of a friend's daughter from the facility. Even though told that Brazoria County had a policy of not releasing juveniles until they could be seen by a magistrate, Justice Sharp kept using his position and authority as an appellate judge to pressure, intimidate, and coerce Juvenile Detention employees into giving his friend’s daughter special treatment (letting her out early in spite of  County policy). Also, Justice Sharp reached out to several influential friends, colleagues, and other public officials to try to get their help to get special obtain specially favorable treatment for his friend’s daughter.
What Justice Sharp did is extensively documented in public records and by the media. In addition, Justice Sharp’s conduct, including his inappropriate and abusive treatment of Brazoria County employees, had the direct consequence of causing his recusal from all pending cases in which the Brazoria County Criminal District Attorney’s Office is counsel, thereby interfering with the proper performance of his judicial duties.(Somebody in the State Bar or the SCJC made a mistake- Brazoria County has no "County Attorney"; the CDA does the civil and misdemeanor work that a County Attorney would normally do, in addition to a D.A.'s work.)
Sharp is a Democrat living in a Republican world- Harris County is Republican; a majority of the Judicial Conduct Commission's membership is chosen by the Supreme Court of Texas (all Republican) and the governor (Republican); Brazoria County CDA Jeri Yenne is a Republican. I do not believe that there was anything partisan in any thing that happened to Sharp, but I'm sure it was at least a tiny bit easier for the players to slap down a political adversary than someone who is supposed to be a friend. You know that this is a man likely to draw an adversary in the next election. I daresay that the odds are against his being reelected to the job. You can also tell from this story that he's not the kind of judge who reveres legal process, but instead is likely to think more like a politician. He's never been a prosecutor, but has been a criminal defense lawyer. Appears to have represented some civil plaintiffs as well as having clerked back in the day for white-shoe Houston defense firms. I'd like to know all that stuff before writing my brief, etc., than to find out after I was hip-deep in my appeal.

Saturday, October 6, 2012

Article on Citing Authority in Briefs, etc.

Good advice on citing opinions in your briefs are here.
Thanks to Raymond P. Ward, a kindred spirit from Nawlins, in The (New) Legal Writer blog.

Friday, October 5, 2012

To Appeals Courts, a Brief Is a Book, not a Newspaper

Wall Street Journal Law blog has a post on typefaces for appellate briefs that's worth your attention. Times New Roman, which was the most popular default typeface for many years until recently, was designed for the London Times to facilitate fast, once-over-lightly reading. It's better to use a font designed for book reading in a brief. They are designed for slower, careful, deep reading. (Just in case someone would think it would be cute to use Courier, a font designed for pre-computer-printer-age typewriters, be warned-- it's judge abuse.) Like SCOTUS itself and the Solicitor General, we're Century people at my place.
Hat tip to Sam Glover (Man, I could a good cup of coffee now.) and  Lawyerist.