Courts

How to (or Not to) Write for the Supreme Court

May 20, 2011

“I’m sorry this letter is so long, I didn’t have time to make it shorter.” — George Bernard Shaw Non-lawyers see lawyers arguing before judges on television and in the movies, and they get the mistaken impression that oral argument is the heart and soul of lawyering.  In fact, it’s not.  Most judges based their decision on a careful reading of the legal briefs submitted to them.  That’s particularly true of the Supreme Court, where each side to a case may spend hundreds or thousands of hours preparing their written briefs, and get all of 30 minutes per side for oral argument.  This wasn’t always the case – until the mid-1800′s the time for argument was unrestricted, and could go for days.  In 1849 the time per side was limited to two hours.  This was reduced to one hour in 1925, and 30 minutes in 1970.  And, as Justice Alito recently noted, half of the words spoken during those 30 minutes are spoken by the Justices themselves, while questioning the lawyers.

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Judge Young, Bulger/Flemmi and "The Government – Our Government"

February 2, 2010

U.S. Federal District Court Judge William Young has issued a lengthy decision, awarding $2.7 million in damages to the estates of three people murdered by James J. Bulger, Stephen J. Flemmi, and their associates.  Judge Young describes the story as “harrowing,” which may be an understatement. The key defendant in this case is the U.S. Government, which will foot the bill if the decision survives appeal. Here are some quotes, pulled from the opinion, which is linked in all of its gory detail at the bottom of this post.  Judge Young:inst Despite years of legal wrangling and an extensive factual record, at its core this is a very simple case. Federal Bureau of Investigation (“FBI”) agents actively protected a group of murderers from apprehension and prosecution in order to use them as informants against La Cosa Nostra. The agents did this over a span of nearly twenty years, despite being on notice that their informants were killers and would, and indeed did, continue to murder. . . . The FBI’s relationship with Flemmi dates back to 1964, when FBI agent H. Paul Rico opened Flemmi as an informant. Bulger was opened as an informant in 1971. Their recruitment as informants was not an accident. The FBI had made the prosecution of organized crime and La Cosa Nostra its top priority.  To that end, J. Edgar Hoover himself inaugurated the Top…

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Spoilation = Destruction of Evidence = Dismissal + Sanctions

December 5, 2009

Here is a link to Judge Judith Fabricant’s recent decision in Stein v. Clinical Data (reported on the front page of the November 30, 2009 Mass Lawyer’s Weekly), where she found that the plaintiff had destroyed evidence.  Judge Fabricant sanctioned the plaintiff in this case by dismissing his case and ordering him to pay almost a quarter of a million dollars in attorney’s fees and costs to the defendant.  These cases are relatively rare (since the party who destroys evidence rarely is caught), but the consequences to the party who engages in this kind of conduct can be devastating. Stein v. Clinical Data (SpoilatIon)

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Judge Michel Announces Resignation, Lays it On the Line (and promises more to follow)

November 25, 2009

CAFC Chief Judge Paul Michel doesn’t pull punches when he states his views on problems with the U.S. patent system and the federal courts more generally, and he didn’t pull too many when he announced his upcoming retirement from the CAFC on on November 20, 2009.  A few notable quotes from his speech: On interlocutory appeals of claim construction rulings to the CAFC: A provision in a Senate patent reform bill would allow interlocutory appeals of Markman rulings.  Predictably, Judge Michel doesn’t like the idea.  He states that interlocutory appeals would double or triple the case load on the CAFC, and the court “can’t handle it.” The median time to adjudicate a patent case before the CAFC?  One year “from filing, to the opinion going up on the Internet.”  Interlocutory appeals would double this to two years. And, interlocutory appeals are unnecessary as a practical matter, he argues.  Some interesting statistics from Judge Michel:  “About 3,000 [patent cases] are filed a year, about 2,700 settled spontaneously. Of the remaining 300, about 200 are resolved on summary judgment, almost always based on claim construction. . . . The remaining 100 go to trial. . . . there almost are never second trials. There usually aren’t even first trials.” On Upcoming Retirements from the CAFC: The CAFC has 11 active judges and five senior judges. . . .  [t]he . . . …

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"No, You May Not Buy a Judge," Supreme Court Rules, and the Dissent’s "40 Questions"

June 8, 2009

“Turn it over, and turn it over, for all is therein.” The Babylonian Talmud, Tractate Aboth, Ch. V, Mishnah 22 (I. Epstein ed. 1935), quoted in Justice Scalia’s dissent in Caperton v. A.T. Massey Coal Co. —————– In mid-March I wrote a post about the decision facing the Supreme Court in Caperton v. A.T. Massey Coal Co. The issue was whether a state court judge’s failure to recuse himself from a case in which he received substantial campaign donations from one of the parties violates the Due Process rights of the other party. The Supreme Court issued a 5-4 decision today, holding that the judge’s failure to recuse in this case did violate the due process clause. The majority decision was written by Justice Kennedy, who was joined by Justices Stevens, Souter, Ginsburg and Breyer. Chief Justice Roberts dissented, joined by Justices Scalia, Thomas and Alito. Justice Scalia wrote a separate short dissent. I am a great fan of unanswerable, hypothetical questions (computers can provide answers, but only people can ask questions), so I quote in full the following “40 questions” from CJ Robert’s dissent. The dissenters intend these questions to show the extent to which the majority opinion has opened the field to collateral litigation over judicial disqualification: 1. How much money is too much money? What level of contribution or expenditure gives rise to a “probability of bias”?…

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Who Watches the Watchmen?

April 2, 2009

“How does the court have confidence that the public integrity section has public integrity?” Judge Emmett Sullivan, during the trial of former Senator Ted Stevens   Prosecutor: I already got no proof how the victim got hold of that heroin. Now you’re saying I can’t put Hodgins on the stand? Why? FBI Agent: You don’t wanna know the answer to that. Forensic Investigator: Why doesn’t she wanna know? Prosecutor: As the prosecutor in this case, I’m obliged to share everything I know with the defense. Forensic Investigator: [starts to explain...] Prosecutor: Whoa! Goodnight! From TV Show “Bones” ____________________________________________ Prosecutors have a legal duty to provide criminal defendants with exculpatory evidence. Every criminal prosecutor knows this – it’s probably Rule No.1 for prosecutors: “YOU MUST GIVE DEFENDANT EXCULPATORY EVIDENCE.” This has been a constitutional right since the 1963 Supreme Court decision in Brady v. Maryland. Rules 2 and 3 are, don’t forget Rule No. 1. Today’s decision by the Obama Justice Department to dismiss criminal charges against former Senator Ted Stevens means that prosecutors at the highest levels of the DOJ forgot this rule (or disregarded it). This is an enormous embarrassment for DOJ, and a probably a career killer for the attorneys involved, who are likely to be sacked, at the very least. (Keep in mind that former U.S. Attorney General Roberto Gonzales has been unable to find a private…

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If a Picture’s Worth a Thousand Words ….

March 28, 2009

If you’re a lawyer with a case involving the complex interaction of physical objects (say a plane crash), nothing can compare to a video animation that faithfully recreates the event. Your expert can show it to the judge or jury, and vouch for its accuracy. Of course, it’s expensive to create one of these videos, but with Moore’s Law and better graphics software, it’s getting easier and easier. And if you’re one of the many firms that creates these videos for lawyers, what better way to strut your stuff than to recreate the landing of US Air Flight 1549 in the Hudson River, with the actual pilot-controller audio overlaid? This is what Scene Systems, a forensic animation company, has done to show its skill. The two minute animation is here, with the recording of Sully and the controller synchronized to the action:

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Administrative Office of the Federal Courts’ Annual Report – Your Tax Dollars Well Spent

March 27, 2009

There are lies, damn lies and statistics. Mark Twain __________________________ Recession/depression/readjustment, it matters not, our federal government is committed to keeping statistics. And, it spends a great deal of time, money and effort tracking every statistic imaginable associated with the federal courts. This labor is performed by the Administrative Office of the Federal Courts, and it’s no small task. As far back as ten years ago the Admin Office had a budget of over $50 million (that was the only budget statistic I could find based on a quick search). Each year the Office issues a detailed statistical report, and this year’s report is over 400 pages long. Most of this is mind-numbing tables and statistics. I suspect that very few people read beyond the summary contained in the first 40 pages, other than to pick out a statistic here and there. Here is a link to the report, but don’t download it unless you’re prepared for a 400 page pdf file almost 7 megabytes in size. Here are a few statistics that jumped out at me, based on a quick review: Nation-wide, a quarter of a million civil cases are filed in the federal district courts each year, give or take. And, roughly the same number are dismissed, so the number outstanding stays relatively constant from year-to-year. About three thousand cases are filed in the District of Massachusetts and…

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Connecticut Supreme Court Briefs Online

March 18, 2009

Here’s a link to Connecticut Supreme Court Briefs Onlne, a WordPress blog managed by members of the Connecticut bar who attempt to post the briefs in every case that is argued before the Connecticut Supreme Court.  The site also posts a short description of the issue in each case, the decision (when it becomes available) and a video of argument before the Court (also when available). It would be great if every state did this, and if there were a centralized site that provided access to each state (StateCourtBriefsOnline.com?).

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I’d Like to Hire You Counselor, But First Tell Me What You Contributed to the Judge in the Last Election?

March 14, 2009

“We will sell to no man … Justice” Magna Carta (1297) “If you think aficionados of a living Constitution want to bring you flexibility, think again. You think the death penalty is a good idea? Persuade your fellow citizens to adopt it. You want a right to abortion? Persuade your fellow citizens and enact it. That’s flexibility.” Supreme Court Justice Antonin Scalia “In civilized life, law floats in a sea of ethics” Former Supreme Court Justice Earl Warren …. “nor shall any State deprive any person of life, liberty, or property, without due process of law” … Fourteenth Amendment to the United States Constitution ————————– Should the Supreme Court extend the Due Process Clause of the Fourteenth Amendment to create a constitutional right to a fair tribunal in the state courts? That’s the issue facing the Court in Caperton v. A.T. Massey Coal Co., which was argued before the Court last week. The facts are straightforward – in fact, John Grisham adapted them for his novel The Appeal. Caperton won a $50 million judgment against the A.T. Massey Coal Co. in state court in West Virginia in 2002. Unhappy with this outcome, the Massey CEO, Don Blankenship, authorized an appeal to the West Virginia Supreme Court of Appeals (the highest state court in West Virginia). But Blankenship believed that one of the judges on that court was anti-business, and he…

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Jerry Spence On the Art of Cross Examination

March 11, 2009
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The Face of Evil May Be Behind The Judge’s Bench

February 13, 2009

Judge: Miss West, are you trying to show contempt for this court?’ Mae West: On the contrary, your Honor, I was doin’ my best to conceal it.’ (During a trial in which she was accused of indecency on stage) “The thing to fear is not the law, but the judge” Russian Proverb “One bad apple ruins the barrel” —————– History is replete with judges who are open to bribery, who serve special interests or who are otherwise corrupt.  We often read of judges who are sanctioned or prosecuted for misconduct. When a person dons a judge’s robe her character and values don’t change. Despite the long history of judicial misconduct, I still was surprised to read about this kickback scheme in the February 13, 2009 New York Times. Quoting excerpts from the article: [O]n Thursday . . . judge Mark A. Ciavarella Jr., and a colleague, [judge] Michael T. Conahan, appeared in federal court in Scranton, Pa., to plead guilty to wire fraud and income tax fraud for taking more than $2.6 million in kickbacks to send teenagers to two privately run youth detention centers run by PA Child Care and a sister company, Western PA Child Care. . . . While prosecutors say that Judge Conahan, 56, secured contracts for the two centers to house juvenile offenders, Judge Ciavarella, 58, was the one who carried out the sentencing to…

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