Litigation Support Tip of the Night

March 30, 2020

Here's another tip from Bryan A. Garner's The Winning Brief: 100 Tips for Persuasive Briefing in Trial and Appellate Courts.  
 

Take copious notes while trying to come up with imaginative approaches to conveying your argument. 


In this third tip, Garner gives examples of attorneys who began briefs in particularly creative ways. 

1. With a simile - an appellant who awaits a decision on his appeal in an asylum case is like the cosmonauts who rocketed up to the Mir space stations as Soviet citizens, but came down as citizens of Russia.  His home country is a different place than it was when the case began.  

2. With an erudite metaphor - a Court is said to have conducted a Renaissance by rediscovering ancient texts and using them to justify a bold new view of real property law.

3. With a play in which the characters lampoon the impact of a decision construing an antitrust law as preventing predatory pricing, without establishing a coherent test for determining when such pricing is taking place. 

Garner cautions that only very good writers can get away with employing such techniques.  When trying to generate ideas about how best to make a point, try to think of good illustrations, analogies, or diagrams.  If something works particularly well, use it!

It's common to get frustrated in trying to find the right approach, but sooner or later a breakthrough will come.  

March 29, 2020

Here's another tip from Bryan A. Garner's The Winning Brief: 100 Tips for Persuasive Briefing in Trial and Appellate Courts.  

In his second tip, Garner recommends writing a brief in stages.  He references the 'Flower Paradigm' - advocated by Betty S. Flowers in her article, Madman, Architect, Carpenter, Judge: Rules and the Writing Process.  

1. The madman - take notes on possible approaches to a problem.

2. The architect - makes connections between the madman's idea and generates a linear outline. 

3. The carpenter - builds the draft.  Garner recommends that he write rapidly, leaving holes if necessary. 

4. The judge - a critic with a sharp eye who doesn't create anything - don't think about him until the end of the process.  The judge will perform quality control on the draft, looking to improve optimal work choice and so forth. 

March 23, 2020

During this difficult time when so many of us are working away from the office, it seems like a good time to methodically go through a valuable reference for attorneys - Bryan A. Garner's The Winning Brief: 100 Tips for Persuasive Briefing in Trial and Appellate Courts.   A solid command of the advice in this book can allow a paralegal to go beyond simply confirming the accuracy of legal citations in a memorandum of law, and improve the overall coherence and persuasiveness of the brief.  Hopefully this crisis will have ended before I go through all 100 tips!

Garner's first tip is simple: Know thy reader.  This may appear to be a bit insubstantial and obvious, but a read through the chapter on this tip helps flesh out what Garner is getting at.   He uses these specific points to illustrate what he means:

1. Judge read briefs quickly - try to invade their though processes. 

2. The reader of a legal brief will usually be busy; looking for something useful; and skeptical of your assertions. 

3. If the details aren't right, a reader will assume that the larger points will probably not be right. 

4. Distill your message on the first page. 

5. Avoid needless formality. 

6. Remember the maxim of Strunk & White's The Elements of Style, "No one can write decently who is distrustful of the reader's intelligence."   

7. Chief Justice Joe R. Greenhill of the Texas Supreme Court recommends not referring to statutes simply by a section number - judges may not always understand language that is too technical.

8. Garner notes that Justice Clarence Thomas told him in an interview, that he's more likely to take the time to read a 20 page brief than a 50 page brief. 

February 11, 2020

Don't miss that your Bloomberg Law account includes a Brief Analyzer.  You can upload a text searchable PDF of a brief to the Analyzer and it will assist you with the following tasks:

1. Review the cases and statutes cited in the brief.  

You'll be able to download the cited cases with less trouble than listing the cases one by one in Lexis Get & Print. 

2. Browse through the brief by clicking on sections of the table of contents displayed on the left of the screen. 

3. Bloomberg will suggest content to add for the arguments made in the brief.  For example, in the sample brief shown below the Analyzer suggests a cite to a case not cited in the original version of the brief and lists four reasons why it should be included. 

The Analyzer will note when a suggested citation cites to the same cases as a section of your brief; when it includes similar language; and when it is from the same court.

4.  Easily locate additional citations for the points made in the section by running a keyword search based on the content of that section.   So, in this example we search for cases that discuss ballot counting that address the issue when a plaintiff has standing. 

December 10, 2019

It sounds crazy, but my two most recent visits to Fedex shipping centers have left me with the impression that a ban on bankers boxes may be imposed. First, a Fedex agent insisted on repacking documents from my bankers box in Fedex boxes, and warned these boxes would no longer be accepted.

Tonight at the same location I was told that they are starting to enforce a rule against boxes with openings on the side that function as handles. She accepted the box anyway but I wonder what will happen the next time I need to hustle something over at the last minute.

Fedex’s packing guidelines, https://www.fedex.com/downloads/shared/packagingtips/howtopack.pdf , specify that bankers boxes can’t weight more than 30 pounds and that the box should be secured with 2 inch packing tape placed on in a tic-tac-toe pattern. However it doesn’t appear to restrict the use of bankers boxes with grip gals, something nearly all have.   

July 26, 2019

There is some uncertainty among lawyers as to whether exhibits should be entered in evidence or entered into evidence.  According to the Cornell Law Review, in the 1990s, the nine Supreme Court justices were split 6-3, in favor of ‘into’. Steven Lubet, Into Evidence, 81 Cornell L. Rev. 154, 158-59 (1995), available at https://scholarship.law.cornell.edu/clr/vol81/iss1/4/ .  However, the article quotes the director of Harvard’s trial advocacy program as saying, "Evidence is not a place into which something goes or is placed. It is a status or a state of being. A thing is either 'in evidence' or 'not in evidence'; it is not 'into evidence' or 'out of evidence."'  Id. at 154, quoting Peter L. Murray, Basic Trial Advocacy 14, n.1 (1995).  This makes sense to me.

Into should be used when a space is entered (“The happy family went into their new home.”); interest is expressed in something (“Michael is really into cite checking.”); or to describe change (“The home’s master bedroom was divided into three new rooms.”)

A search of both federal and state case law in Google Scholar returns 482,000 hits for the phrase, "into evidence", and 518,000 results for "in evidence".  However, since 2000, there have been 210 decisions of the Supreme Court of the United States using, "into evidence", and 142 decisions using "in evidence". 

July 15, 2019

The Federal Rules of Civil Procedure set down specific guidelines for the redaction of trial transcripts.  The following information must be redacted from a transcript:

1. Social security numbers (the last four digits can be left unredacted).

2. Birth dates (the year can be left unredacted). 

3. The names of minor children (initials can be used). 

4. Financial account numbers (the last four digits can be left unredacted).  

   See, Fed. R. Civ. P. 5.2(a).  The parties have 7 days from the filing of the notice of the filing of the official transcript to file a notice to request the redaction of these four types of information from the transcript.  A copy of the notice must be served on the reporter.   See the example posted on the site of the United States District Court for the Southern District of New York.

A statement indicating what is to be redacted must be filed 21 days after this notice.  Guidelines posted to the sites of the United States District Court for the Eastern District of North Carolina and United States District Court for the District of Colorado indicate that statements should contain references in this form: 

Social Security Number 123-45-6789 on page 12, line 9 should be redacted to read xxx-xx-6789.

The United States District Court for the Southern District of New York has posted a form on its site which breaks the information down in a chart:

If the parties wish to redact any other information, they must file a motion to do so within the same 21 day period.  After an order has been issued for further redactions, the reporter then performs the redactions by the date stated in the order.   The redacted version of the transcript (or the original if no redactions are performed) is released on PACER after 90 days.   Only attorneys who pay for transcripts, and court users can have access to the transcript before this 90-day period is up, unless the public terminal at the courthouse is used to view the transcript.  

Some courts restrict access to the transcript of the voir dire proceeding in order to avoid the need to request the redaction of the personal information of jurors. 

June 6, 2019

Rule 17(c) subpoenas are used in criminal cases to obtain business records from third parties.   See, Fed. R. Crim. P. 17(c).   Most jurisdictions require the documents to be both admissible at trial, and specifically described in the subpoena.   The Supreme Court has ruled that Rule 17(c) should not be considered a form of discovery.  See, Bowman Dairy Co v. United States, 341 U.S. 214  (1951).  Rule 17(c) subpoenas can only be used to get evidence for trials or official hearings. 

The subpoena may be issued by the court.  If it is issued by a party, then it will only require the appearance of a third party at the trial for the possible production of documents. 


 

May 8, 2019

Late last month, the United States Court of Appeals for the Seventh Circuit issued a decision, Stephens v. Baker & McKenzie, Nos. 18‐2375 & 18‐2963 (7th Cir. Apr. 26, 2019) affirming a district court ruling granting the defendant's motion for attorney's fees and its motion to strike a defamatory filing.  Among other lessons that can be drawn from this decision, it shows how strictly the federal courts will enforce discovery obligations under Rule 37.  

The appellant was employed as a paralegal with Baker & McKenzie.  Her suit alleged that she was fired because reported being sexual harassed and mocked on the basis of her Russian ethnicity.   She sought $200 million in compensatory, emotional and punitive damages. 

Stephens failed to comply with two discovery requests.  The first concerned information about how she gained access to the firm's confidential listserv (which she accessed after she left).  The second asked that she account for the damages she demanded.   Rather than answer either of these requests, Stephens asked the court to dismiss her suit, even though she was given the option to seek $100,000 in damages instead.  The lower court, "ruled that whether Stephens had used a confidential listserv for personal reasons was relevant to Baker & McKenzie’s defense, so it ordered Stephens either to explain how she acquired the list or surrender her computer so the firm could investigate."  Id. at 4.   Stephens explained that she did not want Baker to have access to her computer.  

The defamatory filing was Stephens' response to a motion to compel, which McKenzie never had a chance to reply to because the suit was dismissed.   Baker was awarded more than $35,000 in fees.  The Seventh Circuit rejected Stephens' appeal specifically because of her refusal to comply with the court's discovery order.  It cited Federal Rule of Civil Procedure 37(b)(2)(C) which requires a party rejecting such an order to pay, "reasonable expenses, including attorney’s fees, caused by the failure, unless the failure was substantially justified or other circumstances make an award of expenses unjust.”

The Seventh Circuit also rejected an appeal of the motion to strike, holding that the district court's broad discretion to strike filings allowed it to strike a filing the plaintiff abandoned and which the court never actually considered. 

So even when a paralegal goes up against one of the biggest law firms in the country, she or he may still held accountable for failing to take discovery obligations seriously. 

May 1, 2019

Parties that appear on the official email notice list for cases filed in the federal district courts, get one free look at PDFs of filings by any party on PACER.   The standard PACER charge is 10 cents per page with a maximum of $3.00 for filings other than transcripts.   The District Court for the Northern District of Ohio has a posting on its site which describes how a party can ensure that it gets its one free look, and bypass the PACER login.  

1. The filing must be accessed by a registered ECF user through an email generated by the ECF system.

2. The filing must be accessed within 15 days after it is filed with the court.

3. If the user receives a blank screen, it's recommended that the Internet Preferences be changed in Adobe Reader, unchecking 'Display PDF in browser' and 'Allow fast web view'. 

4. In the Utilities section for an ECF account, under 'Maintain Your ECF Account' you can enter a secondary email, if your firm's network blocks access to the free look. 

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Sean O'Shea has more than 15 years of experience in the litigation support field with major law firms in New York and San Francisco.   He is an ACEDS Certified eDiscovery Specialist and a Relativity Certified Administrator.

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