From a stretch in the pen to a stretch limo to another stretch in the pen.

You would think an experienced bank robber like this one, would know enough to use a more inconspicuous getaway vehicle than a stretch limosine.

Hat tip to Autoblog.

Thoughts on a 104 page "winning" brief.

Via CrimLaw, I see that Jack Chin over at CrimProf Blog (second paragraph) links to this New Jersey Appellate Division opinion in which a defendant had his conviction overturned and Professor Chin notes "I can't help but notice that the wordy and repetitive brief won."

No doubt about it, he did win but I suspect it was in spite of the 104 page brief his attorney filed and not because of it. In the first place, as the court notes in a footnote, the court "reluctantly" allowed the state to file an even longer 109 page responsive brief (apparently lawyers in New Jersey are paid by the word). Moreover, notwithstanding examples like this one and others noted previously here and here, it doesn't seem to occur to some appellate practitioners that it is called a "brief" for a reason. Appellate judges recognize and appreciate that lawyers must do their best to protect their client's interest on appeal and obviously one way to do that is to do what this lawyer did and throw everything against the wall in the hope that something would stick (which here it did). However, an effective appellate practicioner (one whose wins on appeal don't coincide with the occurrence of a total solar eclipse), will understand that the object of the exercise is the persuasion of an audience. Those who are consistently effective persuaders make their point(s) succinctly and get to it/them expeditiously.

Appellate judges read a lot of these things day in and day out and like any human beings, they (and I include myself) are more likely to be persuaded by fewer strong points (four or less) that are thoroughly and logically analyzed against the background of the facts and prevailing law, than anything the members of the audience (remember, these are the folks you are trying to persuade) find "excessively wordy and repetitive." Please note the entire sentence and the one which follows in the opinion:

The excessively wordy and repetitive 104 page 'brief' made it more difficult to discern whether the defendant was advancing any meritorious allegations. After our careful review of the record, however, we conclude that several errors were made....(Emphasis added)

For those who missed the cues here, the translation of what the court just said was that the lawyer did a lousy job representing the client's interest by laying out the alleged trial court errors in a coherent way (apparently the deputy attorney general wasn't any more effective for his client but got off a little easier since appellant's lawyer "started it"), so the court went ahead and did what the attorneys were supposed to do (and they aren't happy about having to do so).

The reality is that the burden of persuasion is on the appellant's counsel so if I pick up a brief that looks like the unabridged edition of War and Peace, I am going stop reading and start skimming, because I have a lot more briefs to get through before the day is out. For the same reason, if I can't quickly grasp what is being said I will move on rather than try to puzzle it out. The client here should be grateful that the court did his lawyer's job for him but this is an adversary system which means it is the lawyer's job to effectively fight for the client, not the court's.

Some might smugly declaim appellate judges, when something like this happens but at the risk of getting on my "high horse," the bottom line is that if you want to be persuasive in an appellate court, a trial court or anywhere else, you have to establish your credibility with your audience, give them one or more good reasons to want to side with you and then show your audience how to get there from here.

You can give the lawyer in this case the benefit of the doubt and say that he was thorough but that is not at all the same thing as being effective.

No Habla Ingles? Not for long in Indiana.

The Fort Wayne Journal Gazette reports here that Indiana judges are sentencing Hispanics to learn English.

A 5 bedroom courthouse complete with a housekeeper.

I had not heard of a courthouse that provides living accomodations for its judges but it turns out that one exists in Illinois. It seems that by using a courthouse built for the Illinois Supreme Court back in 1860 when the justices of that court "rode the circuit," the judges of the Third District Appellate Court, when sitting in Ottawa, stay at the five bedroom - each with private bath - courthouse. Another perk that comes with the courthouse is that the housekeeper also prepares breakfast and lunch for the judges when they are in town.

Ok. I admit it. I'm jealous.

From The Times of Ottawa.

Can it be that someone at Verizon Wireless reads HOWT? Apparently not.

I noticed that my Sitemeter logs have shown a number of page hits over the last couple of weeks to this post from Bedminster, New Jersey which just happens to be the corporate home of Verizon Wireless.

Now I am not taking credit for anything here - I'm sure it is just a coincidence - but there is some evidence beginning to surface that as of yesterday, Verizon Wireless may have stopped crippling the many features of the phones they sell including the new Motorola Razr V3 and some of the new LG models.

Nevertheless, it is nice to fantasize that one person (with a blog) might be able to make a difference.

Update: This was indeed a fantasy. As noted here, this rumor turned out to good to be true (scroll down to "Update #2"). The comments to the linked post also provide a plethora of epithets from less than satisfied Verizon Wireless customers.

"Over the river and through the woods, directly to jail (instead of Grandma's house) we go."

If this wasn't reason enough to avoid the services offered by Verizon Wireless, here is another. The Witchita Eagle recently reported on this test of Verizon Wireless' new GPS directions-by-phone service and found it wanting. It sent the tester a half-mile past her destination and to the local jail instead.

Maybe Verizon's "In" plan has a deeper meaning than I thought.

More Really Bad Appellate Advocacy

The response to the case I linked to in this post, has been pretty impressive, both here at HOWT and around the blawgosphere generally. One post over at Appellate Law & Practice deserves a response. S. Cotus doesn't understand why California's Third District Court of Appeals is making such a fuss. He opines: "I don'’t see the reason to act insulted that someone, and perhaps their lawyer, feels quite angry, and has the nerve to ask permission to file a long brief, files a long brief (which contains rhetoric and constructions of the law, like all briefs), and loses. This happens every day."

That, of course is precisely the point. While it is true that someone has to lose in an appeal, this lawyer's lack of professionalism insured that her client would lose. And S. Cotus is right. It does happen every day and it shouldn't. Moreover, it will keep happening every day because if there is one inexorable truth about the practice of law, it is this: Lawyers will do whatever judges let them get away with. Until judges draw the line in the sand, there will be more and more lawyers out there who will push the professionalism envelope in the wrong direction.

On a related note, in response to the preceding post, I received a couple of e-mails from other appellate judges who echoed my sentiments that there was an awful lot of substandard appellate advocacy going on out there and a couple of them even supplied some pretty persuasive examples.

And so, in the event more examples may be forthcoming, I will hold off naming any "winners" of the Appellate Practice Foot-in-Mouth Award but for your edification and enlightenment - what the heck, let's not ignore the entertainment value - here are the first two nominees:

In the Really Bad Brief category, comes this entry (MS Word file) from the Aloha State.

Here is an excerpt from just before the Supreme Court of Hawaii announces that it is referring the appellant's attorney for disciplinary action:

The opening brief, which was filed in this case, is an egregious example of the substitution of rancorous rhetoric for legal and factual analysis in appellate briefs. Not only does this burden the court, but, more importantly, it is adverse to the client's interests, and we view such matters with dismay. It is sound legal and factual argument, rather than vituperative sniping, that is compelling to the court. When an attorney, in briefing the court, foregoes the former to engage in the latter, the client is deprived of an opportunity to persuade the court of the merits of his or her position.

In addition to exhibiting contempt for the lower court judges, ignorance of the Rules of Court and a general lack of professionalism, the Supreme Court's opinion notes that, despite the existence of arguable precedent, the only authority counsel for appellant cites in favor of his position was this:

In exercising their power on behalf of the people and in fulfillment of their responsibilities, obligations and service to the people, ... judges of the appellate, circuit, and district courts may contemplate and reside with the life force and give consideration to the "Aloha Spirit.

Help me out here. Is the "Aloha Spirit" sort of like the Common Law?

And now in the Really Bad Oral Argument category we have this little gem (mp3 file) sent to me by a colleague in Utah.

Keep those nominations coming.

Effective Appellate Advocacy - NOT!

One of my colleagues on the California Court of Appeals was kind enough to give me a heads up on this opinion released this past Friday.

To say that the panel of judges who heard this case are upset with the level of appellate advocacy by the appellant's attorney would be an understatement. To give you a flavor for the reasons why, here is how the opinion opens:

This is an appeal run amok. Not only does the appeal lack merit, the opening brief is a textbook example of what an appellate brief should not be.

In 76,235 words, rambling and ranting over the opening brief’s 202 pages, appellant’s counsel has managed to violate rules of court; ignore standards of review; misrepresent the record; base arguments on matters not in the record on appeal; fail to support arguments with any meaningful analysis and citation to authority; raise an
issue that is not cognizable in an appeal by her client; unjustly challenge the integrity of the opposing party; make a contemptuous attack on the trial judge; and present claims of error in other ways that are contrary to common sense notions of effective appellate advocacy....

In these days of "pit bull" advocacy (both at the trial and appellate levels), some may not understand what the fuss is over. Some might say this is just an example of a lawyer zealously representing a client. To answer any who feel this way, I cannot improve upon the reasons given by Justice Scotland in this opinion:

These comments are harsh but deservedly so. An opening brief like the one filed in this case has many consequences. For starters, it undoubtedly is costly to the client to file such a brief that is long on words but short on substance. And by attacking the integrity of individuals involved in this case, the brief in effect falsely tells the client that she has been the victim of a grave injustice perpetrated by a corrupt system. In reviewing the case, this court will be able to see through such hyperbole. But having heard the message from her counsel, the client might give up on the system and not take the steps necessary to be able to reunify with her daughter. There also is a cost to those who have been so personally attacked by the brief. Everyone who toils in the juvenile courts recognizes that dependency proceedings often involve difficult and contentious matters pertaining to family relationships, and that emotions can run high. However, this does not mean they all have developed such thick skins that unjustified personal attacks against them create no harm. Certainly, portraying appellant’s developmentally disabled daughter in such a cruel way undermines, rather than advances, appellant’s relationship with her daughter, when a positive relationship is necessary to achieve appellant’s goal of reunification with her.

Another cost of the opening brief in this case is the need for respondent to file its own oversized brief, at undoubtedly great cost, to respond to every argument and show why, in the words of respondent’s counsel, the opening brief “misstates the facts or
includes facts not in the record, misstates the law, and/or fails to prove the claims made in [the opening brief].” In addition, the nature of the opening brief has caused this court to spend more time than it would have taken if the brief had not been so overwrought and over the top.

Amen.

How would you like to explain that opinion to your client? The world's longest brief might get you into the Guinness Book of World Records but it won't help your client and having your name forever linked to an opinion like this, for all the world and generations of lawyers to come to see, is definitely not my idea of a sound career move. I'm glad to see more appellate courts trying to both educate lawyers who really should know better and at the same time, nip this kind of unprofessional conduct in the bud.

About that membership in the Jailhouse Bar Association...."

Anyone who has ever done any criminal defense work can appreciate Ken's observations about jailhouse lawyers over at CrimLaw.

Although I was a prosecutor during most of my professional career, I did do a lot of court-appointed defense work for a few years and from both perspectives I agree with Chad's comment, that attorneys who defend indigent clients in criminal cases have the toughest and least appreciated job in law.

If a client had waved a section of the UCC under my nose convinced that it was the key to his defense for Grand Theft, I might have been tempted to say something like "but have you considered the application of section 3 of the Sherman Anti-Trust Act?"

I think this role may be a bit of a stretch.

People Magazine reports here that Simple Life star and professional spoiled rich brat, Paris Hilton, is being seriously considered for a role as Mother Theresa in a biopic about the Nobel Peace Prize winning Catholic nun who worked among Calcutta's poor.

Paris Hilton as a nun? Paris Hilton "acting" like she is relating to actual poor people? I think this role may just tax Hilton's acting abilities just a tad.

To repeat Keith Olberman's quote when Anna Nicole Simpson went to the Supreme Court, "The Apocalypse is upon us!"

My first thought was that Hollywood had sunk to a new low but then I noticed that it was an Indian director who was pushing this idea, so Hollywood, I guess I owe you an apology for thinking that anyone working in the Mecca of cinematic artistry could sink so low - or maybe the Indians just thought of it first.