Happy New Year 2006!

To leave the old with a burst of song
To recall the right and forgive the wrong;
To forget the thing that binds you fast
To the vain regrets of the year that's past;
To have the strength to let go your hold
Of the not worthwhile of the days grown old,
To dare to go forth with a purpose true,
To the unknown task of the year that's new;
To help your brother along the road
To do his work and lift his load;
To add your gift to the world's good cheer,
Is to have and to give a Happy New Year.
Here's to the bright New Year
And a fond farewell to the old;
Here's to the things that are yet to come
And to the memories that we hold.

When is an appellate brief like a game of chess?

Nate Oman waxes poetic over a well crafted appellate brief in this post over at Concurring Opinions.

An excerpt:

A well written brief has a kind of beauty about it. It will have a unifying structure, a clear skeleton on which the flesh of the argument hangs. Doctrinal arguments and policy arguments will be woven together, adverse precedents will be carefully distinguished without seeming glib or plodding. The writing will be clear and free from jargon (except for the occasional flourish of a Latin maxim). At the end of the brief, the reader will be left thinking, "“The law supports the appellant'’s claim and it is a good thing to, as our law is wise and just and clear."” A badly written brief is all ugliness. The question presented will run on for pages. The argument will be lost in a profusion of points and subpoints, never coalescing into an identifiable structure. Adverse precedents will be ignored or labored over for pages. Doctrine and policy will be left in stark isolation, presenting the judge with the unhappy choice of enforcing a bad law or ignoring the law to reach a just result.

In this sense, an appellate brief is like a game of chess. A person who knows how the pieces move, but has no grasp of how the game is played will push pawns and bishops aimlessly around the board, attacking and defending pieces with discernibleble strategy or plan. Weaknesses in the player'’s position will develop, backward pawns, and hanging material will proliferate as pieces clog the lines of attack of their fellows until ultimately the game sputters to an accidental ending. In contrast, in a well played game of chess each move will fit into a position or plan. There will be identifiable strategic goals and great care to avoid the minor weaknesses that will later flower into catastrophe. The game will utlimately be decided by the execution of a coherent strategy pushed forward by precise attacking combinations.

While I lack his flair for the dramatic (maybe if I could write my opinions with Nate's sort of deathless prose, people would actually read them), I mostly agree with everthing Nate says however, unlike Nate, I don't typically discern the finger of God on the keyboard behind a well written brief, however, I do perceive the intellect and professionalism at work which epitomize the ideal of the legal profession.

Like Nate, I read briefs for a living and like him I thoroughly enjoy a well written brief. Why? Because it is more inclined to grab my interest intellectually and at the same time it makes my job easier. A well written brief presents a party's legal position in a way that stimulates thoughtful consideration of the legal issue(s) presented and challenges the judges who read it to reconsider the implications of the application of existing precedent in light of what may be unintended consequences.

Alas, in my experience, such a brief is the exception rather than the rule. Most briefs are mediocre in the sense that little thought has been given to the best way to present the issues and the legal arguments in the most persuasive way possible. Some appear to be little more than the unstructured regurgitation of aspirational platitudes and generalizations about "fairness" and "justice" rather than tightly reasoned and articulated legal arguments. Any appellate judge will tell you that appeals are as much a part of the adversary process as the trial and therefore they do their best work when they get help from the lawyers in the form of tight, well crafted legal arguments woven into the facts.

It doesn't happen often enough but occassionally, I do see an appellate brief that represents the work of a professional who merits the term "craftsman" and who obviously has coupled an outstanding work ethic with the knowledge of how to package a persuasive and intellectually stimulating legal argument.

As far as comparing brief writing with chess, I used to play quite a bit and after reading Nate's post, I immediately thought of this quote from Grandmaster Savielly Tartakower:

A Chess game is divided into three stages: the first, when you hope you have the advantage, the second when you believe you have an
advantage, and the third... when you know you're going to lose!

On balance though, I disagree with Nate about one thing - writing a good brief isn't like playing a game of chess or any kind of game for that matter. Unlike a game, which is forgotten as soon as it is over, a well written brief is the foundation upon which a lasting structure may be built. Those legal principles that stand the test of time all began with a well crafted brief.

Merry Christmas to all ...

I note from my sitemeter logs that while this blog is not as widely read as some, among the three dozen or so daily readers are some dedicated regulars from around the world so as I get ready to take a Christmas break from blogging, let me wish all of you

Merry Christmas
Happy Christmas
Feliz Navidad
Joyeux Noel
Froehliche Weihnachten
Buone Feste Natalizie
Mele Kalikimaka
Nollaig Shona Dhuit
Buone Feste Natalizie
Kurisumasu Omedeto
La Maunia Le Kilisimasi Ma Le Tausaga Fou
Nollaig chridheil huibh
God Jul
Maligayamg Pasko
Nadolig Llawen

Time's Newsmaker of the Year is a Judge (in Canada).

No, I'm not oblivious to the fact that Bono and Bill and Melinda Gates are on Time's cover as its 2005 "People of the Year." It's just that Time didn't stop there. The Canadian version of the magazine has named Canada Supreme Court Justice John Gomery as its 2005 "Newsmaker of the Year."

Justice Gomery received the recognition for "his work under the public glare, for renewing a modicum of faith in democratic accountability at a time of unprecedented anger toward politics and politicians, and for handling a complicated and supercharged inquiry with authority, charm and passion." He chairs a commission which is looking into "the sponsorship scandal" whatever that is.

Mail Call!

A reader who I gather is a law student has e-mailed this two-part question:

"Interesting blog but I'm curious about a couple of things. First, what is the origin of the title of this blog? Second, one of my professors mentioned that many lawyers complain about not being able to cite unpublished opinions and I wondered about the process your court goes through in deciding whether to issue a published vs. unpublished opinion?"

Although I have previously answered both of these questions, those responses were among the victims of the Great Blogger Implosion of August, 2005 (besides, it's always nice to hear from a reader, there aren't that many of you out there).


The name of this blog pays homage to a favorite television show of my youth, a rather cerebral western by the name of "Have Gun, Will Travel" which starred Richard Boone (pictured) as "Paladin," a hired gun with a conscience and a code of honor. The show aired in the late 1950's (when dinosaurs roamed the earth and there were only three networks and they broadcast only in black and white). The title also plays upon the nature of my job as an appellate judge which is to render opinions on all manner of legal subjects and which also involves a fair amount of travel, usually to my state's capital.

As far as the second question is concerned, the policy my court has adopted is to publish our opinions fairly sparingly and only when a majority of the panel members hearing the case believe that the opinion: 1) involves a new statute or a new amendment to an existing statute; 2) an issue of first impression; 3) the extension or restriction of a legal doctrine or existing precedent; 4) a reaffirmation of existing precedent that has not been addressed by the court in the last decade or so; or, 5) to alert the bar to a procedural infirmity that may impact on numerous other cases if not brought swiftly to the attention of practitioners (translation: the court decided a 2x4 was needed to get the attention of the bar).

My court also sits en banc on a regular basis and we usually publish any case that is decided by the full court, The rationale for that is that these cases usually tend to be the more significant ones and only the full court sitting en banc can overrule either existing precedent (something we do very rarely) or overrule the recent decision of a panel that the court as a whole believes to be in error (something we do rather more often).

If we have done our job properly, there is no need to ever cite an unpublished opinion because, theoretically at least, there should be a published opinion on the same point. I understand that because there are more unpublished opinions out there, you may be more likely to find one of those with a set of facts that are closer to your set of facts but that shoudn't matter. Having said that, I will admit that when I first came on my court, there turned out to be several important areas where there simply were no published opinions at all. In the time I have been on the court, that has pretty well been rectified but I still understand the frustration. The flip side from the perspective of my court is that an unpublished opinion is not circulated beyond the members of the panel while a published opinion is circulated to the full court for review and comment (although only the members of the panel have a vote on the outcome). Because published opinions go to every judge and undergo quite a few more drafts, they take a lot longer to get out and it just would not be practical to handle every opinion that way, especially when there is really nothing new to be said on that issue and we are just repeating something said in a long line of other cases.

Another NFL standout is "benched."

Former Pittsburgh Steelers cornerback, Dwayne Woodruff is now a judge of the Allegheny County Court of Common Pleas. He was elected last month but was appointed to take the bench early by Governor Rendell to fill out the unexpired term of his predecessor who assumed senior status.

Woodruff, the 1992 Steelers MVP, joins several other NFL alumni on the bench.

No engineer's victory dance now but maybe one of these days.

Dilbert creator and recent addition to the Blogosphere, Scott Adams, has been diagnosed with a permanent speech condition called Spasmodic Dystonia or Dysphonia. No, this is not a joke.

According to WebMD,

Spasmodic dysphonia is a voice disorder characterized by momentary periods of uncontrolled vocal spasms, tightness in the throat, and/or recurrent hoarseness. At certain times, affected individuals must make a conscious effort to speak. The most frequent sign of this disorder is a sudden, momentary lapse or interruption of the voice. Spasmodic dysphonia is a form of dystonia, a group of neurological movement disorders characterized by involuntary muscle spasms.

There are two types of spasmodic dysphonia: Abductor spasmodic dysphonia and the more common adductor spasmodic dysphonia. The cause of spasmodic dysphonia is not known.

Adams describes it this way:

. . . a problem of the vocal cords going nuts on their own. The net effect is that while I can give a speech to a crowd of 5,000 people, I generally can’t utter more than a hoarse whisper to someone one-on-one. It’s like a stutterer who can sing okay but can’t talk normally.

So what is worrying Scott? Why, that no one will believe him if he is really sick or hurt.

Although I have never had the honor of meeting him, his insight into organizational bureaucracy and wicked sense of humor have made him one of my favorite people.

No worries Scott. We're here for you and we promise to stop laughing if we see blood.

Sacré bleu! Here is a bonne bouche courtesy of the United States District Court for the Middle District of California.

This is the sort of recherché legal question that apparently clogs the dockets of California federal courts, entertains law students and their professors and confirms for every non-lawyer that both the courts and the legal profession have only a soupçon of common sense.

Notwithstanding the recognition of sang-froid by the district judge, I shudder to think of how many billable hours went into this one.

Thanks to Letters from the Bostonian Exile for the link.

British speed camera nabs senior citizen for exceeding posted limit by 770 mph.

The Manchester Evening News is reporting here that a UK retiree was issued a traffic ticket based on evidence of a camera which snapped his vehicle's picture for speeding. According to the speed-cam, he was clocked at 770 mph over the limit. There is no word yet on how the area coped with the sonic boom when the senior speedster made his improbable run into the record books, or what modifications retiree Adalat Khan performed to his Toyota Land Cruiser in order to trip the lights fantastic at 800 mph in a 30 mph zone but the mods must have made the car into something like what is pictured.

The Washington Post suggests moving the National Mall and the Supreme Court "down by the river."

The Washington Post suggests moving the Supreme Court to a new National Mall on the Potomac.

Canada's Chief Justice urges more judicial activism.

The Ottowa Citizen reports here that Canada's chief justice, Beverley McLachlin, says "Judges should feel 'emboldened' to trump the written word of the constitution when protecting fundamental, unwritten principles and rights." In her speech in New Zealand, she took on Canadian critics who say judges have no business going beyond the strict letter of the constitution to strike down laws and enforce rights. "The rule of law requires judges to uphold unwritten constitutional norms, even in the face of clearly enacted laws or hostile public opinion."

Roll your own MINI roof art.

Here’s something to take your mind off of the fact that your GM and Ford stock is tanking.

If you own a MINI or are thinking of buying one - heck, even if you could care less about those things - this site is pretty cool. You may have seen a few MINI's running around with the British flag painted on the roof. In fact, the roof of a MINI makes a great canvas for those with artistic talent and imagination. This "Roofstudio" website, courtesy of MINI USA, will let you view the artstic efforts of others and includes tools to make your own graphic and download a file ready to take to the vinyl printer.

Hat tip to Autoblog.

On-line retailers better not mess with bloggers.

From Concurring Opinions comes this report of an on-line retailer who was apparently blogged right off the web for providing poor customer service to a determined blogger.

You have got to be kidding me!

I'm glad Congress is going take a break from Iraq, Plamegate, bribery scandals and runaway deficit spending to start working on something really important and which is just crying out for congressional interference.

I'm sure you guessed it, they are going to investigate the "deeply flawed" Bowl Champoinship Series.

From Sports Illustrated.

Why can't I be the first in my neighborhood to have my very own nuclear particle accelerator?

From Wired News comes this "Not in My Backyard" story of an Alaska man who wants to put a 20 ton nuclear particle accelerator (AKA a "cyclotron") in his home. Local lawmakers are also rushing to introduce emergency legislation banning the use of particle accelerators in home businesses.

Johns Hopkins University agreed to donate the used cyclotron, which is roughly six feet tall by eight feet wide (slightly larger than the one shown above), to Swank's business, Langdon Engineering and Management.

I suspect that it is the word "nuclear" in the description of the device that has everybody's knickers in a twist. We aren't talking here about something that you can use to build an atomic bomb in your basement. Although they were originally known back in the 1960's as "atom smashers," these things are essentially a circular or oval electromagnetic field that is used to accelerate electrons to a healthy fraction of the speed of light and then send them crashing into a target substance, dislodging a few subatomic particles in the process. While large ones can generate billions of electron volts, the current involved in one this size is relatively modest. The large ones are used to create subatomic particles for study and smaller ones like the one pictured are used to irradiate various substances for later use in the treatment of cancer patients.

What happens to appeals when the court reporter won't do her job?

The Washington Post reports here and the Los Angeles Times here about the predicament that a number of appellants in Colorado's appellate courts are facing because the court reporter refuses to transcribe the record of their cases.

Despite being cited for contempt, a former Arapahoe County, Colorado court reporter refuses to transcribe the trial records of at least eight cases putting the appeals of those cases on indefinite hold. She argues through her attorney that she has no legal obligation to finish the transcripts and for her to be forced to do so constitutes "slavery" in violation of the 13th Amendment.

She left her employment to undergo treatment for breast cancer but is now employed full time as a deputy clerk in the United States District Court in Denver.

**Update** On December 1, even as I was typing the above, the Colorado Court of Appeals affirmed the contempt citation in an opinion which can be found here. Hat tip to How Appealing.

"Hey, kemosabe*. You should try out for the Seniors Edition of 'Jeopardy'!"

Apparently only a few people under 50 can make a perfect score on this one. I had a perfect score but I am well over 50 (and anal to boot!)

Of course you can Google the questions, so we're depending on the honor system here.

1. After the Lone Ranger saved the day and rode off into the sunset, the grateful citizens would ask, "Who was that masked man?" Invariably, someone would answer, "I don't know, but he left this behind." What did he leave behind?_______________________.

2. When the Beatles first came to the U.S. in early 1964, we all watched them on the, _______________ show.

3. Get your kicks, _______________.

4. The story you are about to see is true. The names have been changed ____________________.

5. In the jungle, the mighty jungle,_________________________.

6. After the twist, the mashed potatoes, and the watusi, we "danced" under a stick that was lowered as low as we could go in a dance called the_________________________.

7. N_E_S_T_L_E_S, Nestle's makes the very best, _____________.

8. Satchmo was America's "ambassador of goodwill." Our parents shared this great jazz trumpet player with us. His name was, ____________________.

9. What takes a licking and keeps on ticking _________________.

10. Red Skelton's hobo character was _______________________. and he always ended his television show by saying, "Good night, and _____________________________."

11. Some Americans who protested the Vietnam war did so by burning their_________________.

12. The cute little car with the engine in the back and the trunk in the front, was called the VW. What other names did it go by?_____________________&_________________

13. In 1971, singer Don MacLean sang a song about, "the day the music died." This was a tribute to_________________________.

14. We can remember the first satellite placed into orbit The Russians did it; it was called ____________.

15. One of the big fads of the late 50' s and 60's was a large
plastic ring that we twirled around our waist; it was called the __________ ___________.

ANSWERS:
_________________________________________________________________________

Answers:
01. The Lone Ranger left behind a silver bullet.
02. The Ed Sullivan show.
03. Route 66
04. to protect the innocent.
05. The Lion sleeps tonight.
06. The limbo
07. chocolate.
08. Louis Armstrong
09. The Timex watch.
10. Freddy the freeloader, and "Good night, and may God Bless."
11. draft cards (the bra was also burned)
12. Beetle or Bug
13. Buddy Holly
14. Sputnik
15. hoola-hoop

From Blonde Sagacity.

* Although the Supreme Court of Canada may have the last word on this, "kemosabe" is not a racist slur. Apparently, the term comes from the name of a boys summer camp in Michigan and in Navaho means "soggy bush" or "soggy shrub".