Casanova tells all (about appellate persuasion).

One of the most understated blawgs around is this gem from the Old Dominion. Although his primary focus is Virginia and the Fourth Circuit, Steve has posted a number of "essays" on his site, many of which should be of interest to appellate practitioners anywhere. Some of my favorites take the form of "interviews" about the finer points of successful appellate advocacy with the likes of Sun Tzu on the Art of (Appellate) War, Ernest Hemingway on legal writing and Cicero on oral argument.

Steve has another of what the media types call a "great get" with his interview of Casanova on appellate persuasion. His celebrity guest makes some valid observations in an interesting way but let me reinforce the point that facts and law will always work a lot better than flattery and whispering sweet nothings (at least with me). But then again, George Clooney has never argued a case in front of me.

This gives a whole new meaning to "Heavy Metal" music.

No, she is not wearing an aluminum tutu. She is playing a musical instrument called hipDisk. The self-proclaimed "most undignified musical instrument ever" goes about its noise making ways by utilizing soft switches on the two discs, which "create a variety of chimes based on one's movements." The design is supposed to "accentuate the interdependent relationship of the hip and torso" and to enable "a small orchestra of hipDisked women to play chord structures together."

I don't get the bathing suit and cap but I think she is cranking out "The Ride of the Valkyries instead of Swan Lake."

Trial judge will only do his job if the parties agree not to let appellate judges do theirs.

In his latest column on Law.com, Howard Bashman discusses a case he is involved with where the trial judge only agreed to decide the merits of the case if the parties would agree not to appeal his ruling.

I hope this doesn't catch on or I will find myself working as a greeter at Wal-Mart.

Via How Appealing.

I'm no marketing genius but ... (Part III)

... is there really a market for stuff like:


The Chia Pet-like "lawn" chair you have to mow.

Via Geekologie.








How about cereal straws? Little tubes of Froot Loops (TM) cereal that are lined with powdered milk? Yuck!

Via The Impulsive Buy.


Or you could be the first on your block to own a "Magic Wheel" which comes from our British cousins and appears to consist of one big wheel and one small wheel. It operates through the rider planting one foot on the Wheel's platform while pushing with their opposite leg (see the embedded video for a demonstration). The idea is best described as unicycle meets skateboard, or in my case, aging body meets ground meets emergency room.





"Handsoap" shaped like babies hands just seems wrong to me on several levels.

Via 7 Gadgets.

British judges dressing down.

Lower court judges in England and Wales are apparently poised to join their Scottish colleagues and give up their expensive wigs and robes - at least in civil cases.

The judicial robe and barrister's gown dates from the reign of Edward III (1327-77) and by the 17th century, the fur and silk-lined robes were well established as a mark of high judicial office. Judicial costume changed with the seasons, generally green in the summer and violet in the winter, with red reserved for special occasions (See below). The plain black gown was adopted by most barristers in 1685 when the bar went into mourning at the death of King Charles II. They have apparently never gotten over it.

Use of a wig as part of judicial attire dates from about 1660, the time of the restoration of the English monarchy after the civil war. Upon the return of Charles II from France, the fashion of the Court of Louis XIV for powdered wigs became de rigeur for those who wanted to show their rejection of the old regime of Oliver Cromwell and his short-haired "Roundheads".

Thomas Jefferson, said that English judges looked to him "like mice peeping out of oakum" and urged American judges to abandon the traditional wigs and robes while fellow lawyer and founding father, John Adams, urged them to maintain the traditional dress. Most American judges compromised by dropping the uncomfortable wigs and adopting the less ostentatious, plain black "barrister's robe."

Apparently all the different wigs and robes English judges wear in various types of cases and seasons cost around $20,000 so the decision is largely an economic one although the regalia will still be worn in criminal cases and by High Court judges. Presumably, those still wearing traditional judicial garb will continue to follow the "Court Dress Consultation Paper issued on behalf of the Lord Chancellor and the Lord Chief Justice" (August 1992):

When sitting in the Court of Appeal (Criminal Division), High Court judges, like other members of the Court of Appeal, wear a black silk gown and a short wig, as they do in Divisional Court. When dealing with criminal business at first instance in the winter, a High Court judge wears the scarlet robe of the ceremonial dress but without the scarlet cloth and fur mantle. When dealing with criminal business in the summer, the judge wears a similar scarlet robe, but with silk rather than fur facings. A Queen's Bench judge trying civil cases in winter wears a black robe faced with fur, a black scarf and girdle and a scarlet tippet; in summer, a violet robe faced with silk, with the black scarf and girdle and scarlet tippet. On red letter days (which include the Sovereign's birthday and certain saint's days) all judges wear the scarlet robe for the appropriate season.

Did you get all that? There will be a quiz later. Oh, before you ask, I have absolutely no idea what a "tippet" is but it sounds to me like American judges made the right decision.

Hat tip to How Appealing.

Chief Justice Roberts' secret to successful appellate advocacy.

Tony Mauro has an interesting column up at Law.com in which he looks at statistics from recent terms of the Supreme Court and analyzes the number of questions from each justice against the their ultimate decision in each case. His purpose was to test an observation made by Chief Justice John Robert's that as a practitioner, "The secret to successful advocacy is simply to get the Court to ask your opponent more questions." In other words, the lawyer who is asked the most questions in oral argument is the lawyer most likely to lose.

Mauro's analysis seems to bear out the Chief's theory and when I thought about it, I realized that my own experience confirmed the theory as well and after pondering it for a bit, I think I know why that is.

I won't presume to speak for other judges or courts but, in my case, I take the briefs to the bench annotated with my notes reflecting points I want to clarify from the briefs about the issue or the position of the parties in each case. Upon reflection, I generally have fewer questions for the attorney who made their legal position crystal clear in their brief and where they cite precedent that supports their position. By contrast, I tend to ask more questions to clarify the argument where the existing precedent did not seem to support their position (e.g. "Why doesn't Smith v. Jones control the outcome of this case?") or to clarify the legal position of a lawyer whose brief confused me (e.g. "Let me make sure I understand counsel, is it really your position that the First Amendment protects human sacrifice?"). Put another way, I suppose the lawyers who tend to get the questions are those who are either the lawyers who are pushing the legal envelope on behalf of their clients (a good thing) or those who were less than clear in presenting their client's case (a bad thing). That doesn't mean that these lawyers never win, on the contrary, they sometimes do. It's just that, overall, they are on the wrong side of the law of averages.

Mauro ends his piece with a conclusion from Professor Lawrence Wrightsman, a psychology professor at the University of Kansas, that Chief Justice Roberts (and presumably his colleagues on the court) comes to oral argument with a "predisposition" asserting "I don't want to say he has already decided the case, but he is setting a higher standard for one side than for the other."

The Chief Justice hardly needs me to defend him but that quote illustrates why psychology professors probably shouldn't write books about courts and judging. As I have said before, whether you want to call it a predisposition (I wouldn't call it that) or a preliminary conclusion, every appellate judge I know of is usually leaning one way or the other after reading the briefs, record and the applicable law. But forming a tentative conclusion is not the same as pre-deciding the case, setting a higher standard for one side or that our ultimate vote is "carved in stone." I and other judges keep an open mind and we refine our conclusions and often change our mind completely about the case after we get our questions answered at oral argument and nothing is ever final until we bat it all around with our colleagues in the decision conference and positions can and do change right up to when we ultimately sign the opinion.

Maybe Norm Crosby has a point.

1970's comedian Norm Crosby famously said that "When you go into court you are putting your fate into the hands of twelve people who weren't smart enough to get out of jury duty."

I found confirmation of this observation in these two separate news items:

It seems that in Massachusetts, at least one juror failed to get out of jury service despite branding himself a homophobic, racist, congenital liar. Maybe he should have served on this Massachusetts jury.

And across the pond, a Muslim juror in a London murder trial was caught listening to her MP3 player under her headscarf instead of the testimony of the witnesses. She had already managed to get out of jury service on two prior occasions and although she tried to be excused a third time, the court wasn't having any of it. After a fellow juror reported her, she was excused from the jury and the defendant, Alan Wicks, was convicted of murdering his wife by the remaining 11 jurors.

Apparently, British courts take a harsher view of this kind of juror misconduct than their counterparts in America because the article quotes a barrister who indicates that the average sentence for juror misconduct is three years in prison. Because this kind of thing makes a mockery of the entire jury system, I tend to agree with the British approach.

Hat tip to Above the Law.

Licensed to be stupid but apparently not to practice law.

Natasha Riley, not pleased with the way things were going for her client, told a judge in the Brooklyn Family Court during a custody proceeding, "This is bullshit". Unfortunately for her, the judge would have the last word. Because most lawyers aren't dumb enough to address a judge that way [they know that truth is no defense to contempt], the judge became suspicious. He checked her out and it turns out that Ms. Riley, who had at least 8 clients, and 4 court appearances, is not a lawyer! Another judge, Justice Guy Mangano, Jr. put her on 5 years probation and ordered her to make restitution to her clients for the fees she charged.

OK. I didn't edit the expletive like the Daily Eagle did but what do you expect from a blog with a PG rating.

Practice tip: In closing argument avoid threatening to kill the jurors and their families.

Fresh from a trial in which he sucker punched an elderly juror, Boston's baddest boy, Richard Glawson, addressed the jury considering his fate on another set of charges and, innovative trial tactician that he is, he started his closing argument as follows: "Ladies and gentlemen of the jury, I'll kill all of you" and concluded this pithy argument with "That goes for your family, too."

Alas, this innovative approach failed and the jury convicted him. He was sentenced to 45 years by a judge he apparently forgot to threaten to kill. If Glawson is convicted by another jury on the juror-punching charge (are you keeping this all straight?), that sentence will start to run after the 45 years he got for his conviction by the jury he threatened to kill.

I wonder what those Northwestern professors think about this verdict?

231 years old and still going strong!

231 years ago, a committee of the Second Continental Congress, consisting of Thomas Jefferson, John Adams, Benjamin Franklin, Roger Sherman and Robert Livingston were appointed to draft a document declaring that the 13 original colonies were henceforth independent of the mother country. The committee selected Jefferson to draft it. It became one of civilization's great documents and serves as the birth certificate for a nation which created a unique form of government that endures more than two centuries later.

"Somewhere in our growing up we began to be aware of the meaning of days and with that awareness came the birth of patriotism. July Fourth is the birthday of our nation. I believed as a boy, and believe even more today, that it is the birthday of the greatest nation on earth... In recent years, however, I’ve come to think of that day as more than just the birthday of a nation. It also commemorates the only true philosophical revolution in all history. Oh, there have been revolutions before and since ours. But those revolutions simply exchanged one set of rules for another. Ours was a revolution that changed the very concept of government. Let the Fourth of July always be a reminder that here in this land, for the first time, it was decided that man is born with certain God-given rights; that government is only a convenience created and managed by the people, with no powers of its own except those voluntarily granted to it by the people. We sometimes forget that great truth, and we never should. Happy Fourth of July." — Ronald Reagan

"You have to love a nation that celebrates its independence every July 4, not with a parade of guns, tanks, and soldiers who file by the White House in a show of strength and muscle, but with family picnics where kids throw Frisbees, the potato salad gets iffy, and the flies die from happiness. You may think you have overeaten, but it is patriotism." - Erma Bombeck

"A man's country is not a certain area of land, of mountains, rivers, and woods, but it is a principle; and patriotism is loyalty to that principle." - George William Curtis

"How often we fail to realize our good fortune in living in a country where happiness is more than a lack of tragedy." - Paul Sweeney

"The United States is the only country with a known birthday." - James G. Blaine

Pennsylvania legislature finally allows on-line access to its laws.

The Luddites in the Pennsylvania legislature finally caved in to progress and allowed its citizens to have on-line access to that state's statutes.

Now ignorance of the law is no excuse in all 50 states (at least for anyone with web access).

Hat Tip to Concurring Opinions.

It seems that this blog is rated...

It wasn't the Motion Picture Association of America, video game publishers or the television industry that provided this rating. It was an on-line dating service called Mingle2.

According to them, the PG rating is based upon two uses of the word "dead" and a single use of the word "porn" in posts.

Oh well, I don't think I was in any danger of being confused with Walt Disney anyway.