AAAL Fall Meeting

NEWSLETTER OF THE AMERICAN ACADEMY OF APPELLATE LAWYERS n 2015 ISSUE 2

CONTENTS

1 AAAL Fall Meeting 2 Report on Sessions at the 2015 Spring Meeting 3 President’s Column: Walking Roads Paved With Meaning 10 Eisenberg Prize 11 Profiles of Inductees at 2015 Spring Meeting in Santa Fe, New Mexico 14 Isn’t That Special—Florida Adopts a New Harmless Error Rule 17 Strategic Initiatives: Report on the Oral Argument Task Force 18 Getting Ahead in the Academy AAAL Fall Meeting 20 Cases Involving Appellate Practice and Procedure From the Supreme Court’s November 7–9, 2015 October Term 2014 The Willard Hotel . Washington, D.C. 22 Report on FRAP Brief Length Imbroglio 23 From the Editor: Miscellany By Matt Lembke, Program Chair The Academy will celebrate its 25th anniversary at the AAAL Fall Meeting, being held November 7–9, 2015, at the historic Willard IMPORTANT DATES Hotel in Washington, D.C., just a block from the White House. 2015 Fall Meeting Washington, D.C. The highlight of the meeting is sure to be the Induction Cer- November 7–9, 2015 emony and Dinner on Monday, November 9, which will occur 2015 Spring Meeting in the Great Hall at the Supreme Court of the United States. Seattle, Washington March 31–April 2, 2016 Immediately preceding the dinner, Chief Justice John Roberts, an Academy judicial fellow, will present the Kathleen McCree Lewis Award to Justice Anthony Kennedy in recognition of Justice Kennedy’s 40 years of service to the nation and to the rule of law as an appellate judge. The award presentation will be made in the Supreme Court’s courtroom.

The Fall Meeting will begin on the evening of Saturday, November 7, with a welcome reception at The Willard. The Academy is grateful for the law firms of numerous

[continued on page 10] Report on Sessions at the 2015 Spring Meeting

Report on the Santa Fe discussed at the 2014 Fall Meeting allows the public to observe the Gables Sessions in Coral Gables. Comments received appellate process, thus performing a Fellows who gathered at the Spring there led to a revised report, which “critical civics function”; and it lets 2015 meeting in Santa Fe heard a the board of directors has reviewed lawyers see how judges analyze cases, variety of presentations focused on and approved. which improves appellate advocacy. the present state of appellate practice, with a special focus on oral argument, The revised report begins by noting As Nancy explained, the report identi- the uses (and misuses) of technology, the sad fact that oral argument is fies several “steps” that “stakeholders” and appellate ethics. Thanks go to in decline in most appellate courts in the appellate process can take “to fellows Barry Ashe, Tom Christ, nationwide. Oral argument is allowed improve the quality and increase the Jerry Ganzfried, Ken Masters, Bill in fewer and fewer cases, and even frequency” of oral argument: Quirk, and Janet Schroer, who pro- when allowed, less time is allotted vided the individual session reports. for it. That’s sad, the report explains, Courts should be receptive to because oral argument provides some litigants’ requests for argument, Report of the Task Force on clear benefits. It brings the judges and especially requests that are made Oral Argument counsel together for “collaborative” soon after briefing and that identify Fellow Nancy Winkleman led a review of cases and thus improves the aspects of the appeal for which discussion of the latest draft of the decision-making process; it assures argument would be helpful. report of the Academy’s Oral Argu- litigants that their case has the court’s Courts should issue more “focus” ment Task Force. An earlier draft was full attention, at least for a time; it letters, identifying the issues on which counsel should focus their arguments. Courts should “develop a hot-but- courteous culture of oral argument.” Courts should make better use of technology, including argument by “video-conferencing” when personal appearance is inconvenient. Courts should “consider allowing argument in some apparently routine cases on condition that the arguing attorney is a junior lawyer, for example, [one] with fewer than five years in practice.” Oral argument task force: Roger Townsend, Dan Polsenberg, Matt Lembke, [continued on page 4] Nancy Winkleman, Jim Martin, and Mike Traynor.

Page 2 The Appellate Advocate n 2015 Issue 2 PRESIDENT’S COLUMN

Walking Roads Paved With Meaning

By President Charles A. Bird, McKenna, Long & Aldridge LLP, San Diego, California

Forty percent of us are thinking firm mergers, it’s comfortable and I just loved it from the first time I about retirement in the next five inescapable to recognize otherwise. touched good stone. years. When I first read this, I was shocked. Then I remembered I would Roads often diverged in a yellow Why did Bob Boochever invite me have said the same four years ago, wood. What I’ve planned, earned, to be his Alaska Supreme Court and I remembered why I am not or deserved only partly explains law clerk? Did some whisperer say, making plans now. those opportunities. Others’ choices “teach this man to fly-fish, and he were involved, and I am immensely will reward you by doing good law”? When the nominating committee grateful for their kindness, integrity, Why did I accept this over better- and board offered me the opportu- and risk-tolerance. So too for the traveled roads? nity to proceed through the offices unexpected and inexplicable chances. to president of AAAL, I chose that And the choices that made all the I am very grateful to have served you road. Planning retirement seemed difference? I see now that they were as president for 2015. Perhaps it won’t a different road to a different place. filled as much with good guidance be long before I revisit the core prob- Thinking I could come back to the and good fortune as they were with lem of retirement: finding new and untaken path later, I resolved to fol- my own reasoning. different meaning. Much is expected low my choice. from those to whom much is given. Take, for example, the guys who Expectations bestow meaning. All My law firm has merged twice while taught me to rock climb when I who qualify for this Academy have I have served in AAAL offices. I’m was 40. And making the transition the privilege of walking roads paved now an enthusiastic partner of Den- from litigator-who-loved-appeals to with meaning. It’s hard to exit. tons US, LLC, hoping and helping genuine appellate lawyer. To climb to plan a national appellate practice. safely and enjoy it, you must plan, This is another road opened primar- control your state of mind, execute ily by others. facing real danger, and serve your partner as if your lives depend on it Even without thinking of retirement, (they do). Along with reading John I find myself looking back full of McPhee and Annie Dillard, I had no gratitude. Like many in our profes- better training for appellate practice. sion, sometimes I indulge a myth that I planned and made my own But I neither planned to climb paths and then took the best of them. nor earned a right to be taught by But from perspectives like being the wonderful partners. I did not know Academy’s president and riding law climbing would relate to appeals.

The Appellate Advocate n 2015 Issue 2 Page 3 Report on Sessions at the 2015 Spring Meeting [continued from page 2]

In the discussion that followed Nan- lawyers, a panel consisting of AAAL technology can best aid us in work- cy’s presentation, the recommenda- fellows David F. Herr, Wendy C. ing with a record, improving our tion that got the most attention—and Lascher, Eric J. Magnuson, and brief-writing, and communicating perhaps the most pushback—was the Robin Meadow explained how they with clients or associated counsel one to allow oral argument on condi- are using technology in their practices about an appeal. tion that a junior lawyer argues. Some and moderated a discussion of best fellows in the audience thought that practices in technology for appellate In addressing the question of why proposal would sacrifice the client’s lawyers among the fellows gathered technology, Mr. Magnuson reported interest in the presentation of its case in Santa Fe. on the results of a survey of fellows to the court’s interest in training that attempted to ascertain what was young lawyers. The recommenda- of most interest to them, how they are tion seemed, to some fellows, to give using technology in their practices, clients a choice between not having the benefits they have seen, and the oral argument and not having oral tools they wish were available. The argument by their preferred lawyer. survey will be posted on the website. Other fellows expressed concern that Reviewing some of the survey results, busy appellate courts would be reluc- Mr. Magnuson explained that we are tant to accept “bad arguments” by in a Windows world, and a Word Robin Meadow, Eric J. Magnuson, young lawyers in the hope that it will and Wendy C. Lascher for the Voodoo environment; a world moving away eventually lead to better arguments. seminar. from the dictaphone to speech-to-text transcription; and a world in which most lawyers use styles and templates. Mr. Magnuson said that technology is not optional: courts will make you use it. As he explained, we are in the communications business; if we are not heard, we cannot be effective. Efficiency is the prevailing mantra of both federal and state courts. Because judges now get briefs and Gregory C. Dyekman, Susan Ford Robertson, Judge Paul Kelly, Justice Charles C. Daniels, Tom B. Weaver, Judge Diane B. Bratvold, Susan and Tom did a very funny record access on their court-issued and well received “bad” oral argument. iPads, this should change the ways appellate lawyers prepare their briefs The task force will revise the report Ms. Lascher began by observing that and present argument. Presentation again in light of the comments at the there was a reason for lawyers to pay matters, so we must learn to write and meeting. It will then send the report attention to technology: Comment present for screens. Appellate lawyers to the board for final approval. (Note: 8 on Rule 1.1 of the ABA Model must embrace technology because Nancy has provided a written update Rules of Professional Conduct pro- paper is disappearing. about the task force and its plans, vides that part of the lawyer’s duty which appears elsewhere in this issue.) of competence is to keep abreast of The panel then led attendees in changes in the law and its practice, a wide-ranging discussion that A Review of Technology as including “the benefits and risks addressed ideas, including “more Used by Academy Fellows associated with relevant technol- pictures, fewer words”; transcript In the first of two sessions devoted to ogy.” For the appellate lawyer, this and record management; secure a review of technology for appellate might involve understanding how communications; a lawyer’s better

Page 4 The Appellate Advocate n 2015 Issue 2 use of technology; courts’ use of and tables of authorities. The panel sions; a New Mexico denizen had to technology; a comparative analysis also illustrated the compare function go all the way to Chihuahua (now of technology tools; and how people (as a drafting tool) and the navigation Mexico) to appeal. Following the read on paper versus how they read map (as an outlining tool) in prepar- Mexican–American War, the United on a screen. The panel emphasized ing a brief. States Army headed over the Santa that while technology may not be Fe Trail to the New Mexico territory. intuitive, it is not that complicated, The panel has provided links on the General Stephen Kearney took over and appellate lawyers should be aware AAAL website to helpful materials on the New Mexico territory without a of available tools, even if we think it technology, including a bibliography serious fight. Between 1850 and 1861, will take too much time and effort to of all the works cited in the panel’s the official territory of New Mexico learn them. Mr. Meadow said lawyers presentation. encompassed a huge area, including were already consistently using tech- what is now New Mexico, Arizona, nology in their practices, so it’s really a Luncheon Presentation: parts of Colorado, and Nevada. Kear- question of knowing about additional “Justice Comes to the Wild ney brought with him the Missouri tools. And Ms. Lascher emphasized West: A History of New code, which was adopted and became the cumulative benefit of learning one Mexico’s Courts” the basis of today’s New Mexico stat- new technology tool at a time. New Mexico Supreme Court Justice utes. The code is still referred to by Charles Daniels provided AAAL New Mexican courts when interpret- Mr. Meadow then led a discussion fellows with an entertaining history ing the statutory language. about working with the record. He said of the development of the justice that the record—both transcript and system in New Mexico. After Justice Initially, General Kearney was the exhibits—was becoming digitized. A Daniels was elected to the bench in judge for the entire territory, riding vendor can create a hyperlinked record. 2008, pictures on the wall in the circuit during most of the year as a Mr. Herr indicated that many courts Supreme Court piqued his interest judge and then sitting as the justice were now requiring e-transcripts. Mr. in the history of the New Mexico for the New Mexico Supreme Court Meadow demonstrated how, with the justice system. in Santa Fe in January. In these times, right software, many tasks related to Kearney was in the curious position the record can be performed from a of reviewing his own trial court deci- mobile device, including highlighting sions and often found of the “learned and making notes while reviewing the trial judge” to have been correct. record. The panel recommended the use of multiple monitors, allowing The New Mexico territory then was an attorney to review the record or divided into three districts: the ter- conduct research on one monitor while ritories of Santa Fe, Albuquerque, and Lunch speaker Justice Charlie W. Daniels writing on another. of the New Mexico Supreme Court. Taos, which called for three judges. These judges did not go to law school Mr. Magnuson demonstrated speech- Justice came to New Mexico at the or have scholarly backgrounds, but to-text Dragon Dictation software, barrel of a gun in the early 1800s. rather were businessmen, ranchers, or explaining that he used it for replying The land was settled first by Native landowners. These three judges rode to emails as well as brief-writing. He Americans, who were displaced by circuit during the year and then sat and Ms. Lascher then discussed the Spaniards, who in turn were displaced in the New Mexico Supreme Court efficiencies to be gained by using by Mexicans, and ultimately Ameri- in Santa Fe in January of each year. styles and templates, providing vari- cans took over. New Mexico was ous examples and emphasizing their initially governed by local justices of One of these justices—Justice Joe utility in generating tables of contents the peace who made only local deci- Howton—reportedly pioneered

The Appellate Advocate n 2015 Issue 2 Page 5 alternative dispute resolution in New of legibility and thought as the day Texas over a northwest Texas border Mexico after a duel was scheduled went on, reportedly due to his drink- erupted, and the Texas Land Com- with a legal adversary. Justice How- ing. A delegation from New Mexico missioner proposed the issue be settled ton’s hearing wasn’t very good, and reported back to Washington D.C., with dueling pistols rather than more he was unable to hear the command complaining to President Lincoln conventional legal methods. The to draw and fire. Judge Howton’s about Justice Benedict’s malfeasance Texas Land Commissioner reportedly opponent drew and fired first but in his judicial office due to excessive agreed to appear for a duel “any time missed Howton. Ultimately, both drink. President Lincoln rejected their anywhere” as necessary to settle the decided to walk away from the duel effort to have Justice Benedict ousted, dispute. So far, that has not happened, and verbally settled their dispute, observing that Justice Benedict “knew but given the history of justice in the setting a precedent for today’s ADR. more law drunk than most other area, it may happen yet. jurists did sober.” Such was the way New Mexico’s Territorial Supreme of the Wild West. Oral Argument Traps Court sat in the Palace of the and Mistakes Governor in Santa Fe, an adobe 1887 brought advances in the ethical It was, as moderator Gregory Dyck- structure that was constructed in practices of the New Mexico Supreme man commented, a “mock” argument 1610, originally housing Spain’s Court as New Mexico expanded to in every sense of the word. seat of government. The building four judicial districts. The jurists still served various other governmental rode circuit, serving as trial judges With the aim of highlighting an entities over the past four centuries. most of the year, and then sitting on array of strategic decisions and ethical The New Mexico Supreme Court sat the New Mexico Supreme Court in issues that can arise in litigating an there starting in the civil war era Santa Fe in January. With the addi- appeal, the speakers at the Academy’s until the early 20th century. tion of the extra justice, they were able program on “Oral Argument Traps to have a three-judge panel decide and Mistakes” employed wit and Justice Daniels related interesting tales cases; the trial judge no longer served hyperbole to expose potential pitfalls of colorful jurists who played impor- as appellate judge of his own deci- that can ensnare the unwary. Irrev- tant roles in the New Mexico justice sions, but rather would sit in the hall erence prevailed from the outset, as system. Chief Justice Kirby Benedict while the other three jurists decided advocates Susan Ford Robertson presided in one of the three judicial the appeal. and Thomas Weaver offered such districts of New Mexico between gems of defiance as “If you’ll stop 1863 and 1903. Justice Benedict In 1912, New Mexico became a state interrupting,” “I’ll get to that ques- was a presidential appointment of and things became more civilized. tion in a few moments … I’m good President Abe Lincoln and used to The New Mexico Supreme Court at getting back to it … and that ride circuit with him back in Illinois. moved into its current building in question doesn’t matter.” Perhaps the Justice Benedict bought the Santa Fe 1937. The court currently has five defining moment came in the follow- newspaper upon taking the bench. members. A 10-member Court of ing exchange: “Q: What is the rule The paper regularly published articles Appeals was created in 1960 and sits of law you would like us to apply in praising Justice Benedict, which many as an intermediate appellate court. this case? A: I’ll do my best, although suspected were written by Benedict it seems like you’re asking me to do himself. Benedict fell victim to drink- Justice is no longer administered with your job.” As the speakers explained ing and even began to drink while guns with the regularity it had been later in the program, they “tried to sitting on the bench. Old judicial in the early years of New Mexico ter- violate every rule” during the mock records were created in long hand, ritory. However, vestiges of the Wild argument to stimulate discussion on written out by the judge. Justice Bene- West remain. In 2003, a longstanding the more subtle versions of similar dict’s decisions showed deterioration dispute between New Mexico and circumstances that arise in real life.

Page 6 The Appellate Advocate n 2015 Issue 2 The same comic, combative sprightli- For advocates, the practical questions Ethical Issues for Appellate ness characterized comments from the can implicate both strategy and ethics. Advocates bench: Justice Charles W. Daniels of If opposing counsel says something in Moderator Susan M. Freeman led the New Mexico Supreme Court, oral argument that is flatly wrong or an excellent presentation on Ethical Judge Paul J. Kelly Jr. of the Tenth not in the record (or flatly wrongand Issues for Appellate Advocates at the Circuit, and Judge Diane B. Bratvold not in the record), is the best course 2015 Spring Meeting in Santa Fe. of the Hennepin County MN District to respond immediately, to send a Two outstanding panelists joined Court. Another defining moment: post-argument letter to the court, or, her: Arizona Chief Justice Scott “Would you like us to decide this case if the point is minor, leave it alone? Bales and 10th Circuit Court of on the basis of who’s the worst lawyer?” Appeals Judge Paul J. Kelly. (Judge In an extended discussion, the par- Kelly generously—and very success- During the post-argument discussion, ticipants answered questions raised by fully—pinch-hit for Judge Margaret the judges catalogued the written and attendees on multiple aspects of the McKeown, who prepared a helpful oral advocacy miscues that, by design, issues underlying the presentation. For PowerPoint presentation that guided punctuated the presentation of the example, when stepping into a case the discussions but could not attend case. These included lack of citation to in which trial counsel’s efforts were due to a last-minute emergency; Judge the record; multiple obvious typos; ad flawed, problematic, or otherwise McKeowen’s PowerPoint is available hominem attacks on opposing coun- deficient in preserving issues, what on the Members Only section of the sel; failure to identify dispositive issues are the effects on appellate counsel’s AAAL website.) As often happens at and controlling rules of law; failure relationship with the client, and on AAAL conferences, the participants’ to address weak argument points; the overall appellate strategy? What questions and comments were fre- disrespect for the judges; failure to steps should be taken to protect the quently as insightful, articulate, and respond to the court’s questions; lack client? To protect yourself? helpful as those of the panelists. of familiarity with the full record; and failure to comply with time limits. In When opposing short, as one judge commented, it was counsel pushes “Misconduct 101.” the envelope beyond the norms Ultimately, the flippancy and humor of zealous advo- provided a suitable vehicle for com- cacy, what are the municating and stimulating animated preferred avenues discussion about serious practical for responding issues in appellate practice. What to in substance but do if opposing counsel’s advocacy is not in kind (and Chief Justice Scott Bales of the Arizona Court on Ethical Issues, Susan M. Freeman, and Judge Paul Kelly. over-the-top, incompetent, or unethi- what is the opti- cal? What to do if appellate counsel mal course for the court to take in The presenters focused on several steps into a case in which the trial restoring civility)? And, if the court important ethical issues on appeal. court advocacy for the client was over- queries counsel on matters not in the These included competence to the-top, incompetent, unethical, or record, what options exist to address third-party pressures, malpractice or arguably malpractice? What role does, the court’s curiosity? trial-counsel errors, ethical differences or should, the court play in keeping between civil and criminal appeals, advocacy within proper bounds, met- Among the wisdom from the bench the Internet (including adjudicative ing out discipline, and notifying the for dealing with “challenging” oppos- vs. legislative facts, and amici), and appropriate authorities of unethical ing counsel: “better one jerk than briefing challenges like unpublished conduct or gross incompetence? two.” Sound advice. opinions, or trial court or even appel-

The Appellate Advocate n 2015 Issue 2 Page 7 late court bias. This article surveys A response having been filed, the proper written consents from only a small sampling of the many the order to Show Cause … is everyone concerned before doing so. interesting issues discussed. discharged. All Members of the Bar are reminded, however, that Turning to the Internet, we had a The panel opened with Two-Way they are responsible—as Officers lively discussion regarding Judge Media v. AT&T (Fed. Cir. 2015), in of the Court—for compliance Richard Posner’s assertion that he feels which 18 defense counsel received a with the requirement of Supreme no compunction about surfing the Notice of Electronic Filing from the Court Rule 14.3 that [Cert. Web for information about a case that District Court referencing an order Petitions] be stated “in plain counsel may have “failed” to provide. granting a sealing motion. In fact, terms,” and may not delegate By contrast, the Seventh Circuit has however, the Notice actually con- that responsibility to the client. said, “Given that the Internet contains cerned the final orders in the case. No an unlimited supply of information defense counsel looked at the actual The panelists noted that the conse- with varying degrees of reliability, orders, so AT&T missed the 30-day quences might well have been more permanence, and accessibility, it is appeal deadline. The Federal Circuit severe in other courts and that, at a especially important for parties to have found no excusable neglect: “In this minimum, the briefs/petition prob- the opportunity to be heard prior to era of electronic filing,” counsel have ably would have been rejected. In the taking of judicial notice of web- “an obligation to monitor an elec- general, counsel must be willing to say sites.” Pickett v. Sheridan Health Care tronic docket for entry of an order.” no to clients—certainly, the risk that Ctr., 664 F.3d 632 (7th Cir. 2011). No Simply put, it was “inexcusable for a client might fire you is no excuse real answers in this brave new world, AT&T’s multiple counsel to fail to for violating ethical or professional but plenty to think about. read all of the underlying orders they standards. received, or—at minimum—to moni- Several participants mentioned the tor the docket for any corrections or This led to a general discussion about professionalism creeds in Arizona and additional rulings.” The panelists cited third-party pressures, such as rela- Texas, which led AAAL President RPC 1.1 (Competence) and RPCs 5.1 tionships with amici or the tripartite Roger Townsend to suggest that the and 5.3 (partner responsibility for relationship among insurers, insureds, AAAL might wish to revisit whether staff), pointing out that blaming the and defense counsel. The panelists to promulgate its own professionalism staff will not do. Bottom line, igno- focused on a core question: Who is standards for appellate counsel. All in rance of the technology is no excuse. the client? This involved analyzing all, this in-depth panel presentation, RPC 1.6 (Confidentiality); RPC 1.8 and the ensuing discussion with the The panel also discussed a recent (Third-Party Compensation); RPC fellows in attendance, gave everyone SCOTUS decision regarding an 5.4 (Independent Professional Judg- ample food for thought about our pro- attorney in a patent case allowing his ment); and, regarding ghost-writing fessional and ethical responsibilities. client to draft briefs and a Petition or sponsoring amicus briefs, RPC 5.3 for Cert., Sigram Schindler v. Lee, 135 (Candor Toward the Tribunal). The Expert Advice on Best S. Ct. 779 (2014). The petition was analyses are complex, and questions Technology Practices largely indecipherable, and the court may arise about whether you can or Eric Magnuson, Robin Meadow, issued an Order to Show Cause why should limit the scope of representa- and Wendy Lascher presented the the attorney should not be disciplined. tion, or otherwise specify the nature second installment of the technol- The attorney responded that he had of the relationship to avoid misun- ogy session on Saturday morning. balanced his duty of loyalty to his derstandings. Spelling out the issues In contrast to Friday’s session, which client against his duty as a member and explaining the ramifications to had addressed technology currently of the Supreme Court Bar. The Court the client is always appropriate and in use by AAAL fellows, this ses- ordered as follows: necessary, but be sure that you have sion focused on specific examples of

Page 8 The Appellate Advocate n 2015 Issue 2 technology that could help appellate Much of the presentation centered them and make sure that associates practices. The panel stressed that its on constructing the appellate brief. and staff involved in producing the goal was simply to highlight some of The panel discussed typography issues briefs are using them properly. There the available options so that fellows for both written and electronic briefs, was also a brief discussion of legal could make reasoned choices about including fonts generally thought to research options other than Westlaw how and whether to use technology be more readable on tablets. Widely and Lexis. to improve various aspects of their used traditional fonts like Times practices. New Roman, for example, which was Options for editing briefs, show- designed originally for newspapers, ing track changes, and scheduling One of the panel’s overarching points aren’t ideal for written briefs, much online meetings to discuss edits were was that appellate lawyers no longer less electronic ones. The Seventh Cir- reviewed. The panel also addressed should view their role as just putting cuit’s Typography Guide, available on concerns about removing metadata words on paper. Instead, as Eric the circuit’s website, was particularly from shared copies and discussed Magnuson succinctly noted at the recommended for its discussion on technology for mobile use that session’s beginning, current appel- how to construct readable briefs. makes it easier to share and edit briefs late practice is more like “making remotely, particularly on tablets. pictures for judges to watch on TV.” The panel gave specific examples Because judges are increasingly read- of how different fonts and spacing Although perhaps not as directly ing electronic rather than paper briefs, choices can improve readability. Book related to appellate practice, knowl- appellate lawyers need to be aware of Antiqua is one panelist’s choice for edge management programs were also how their filings will look on screen as readability where serif type is required reviewed by the panel. Programs like well as on paper. The panel suggested on written briefs. Sans serif Microsoft Evernote and OneNote allow docu- that lawyers read their briefs on an Clear Type fonts are designed for ments to be stored, organized, and iPad or similar device before filing screens and work well to improve searched electronically. The panel to get a sense of how the electronic readability. Rules vary by jurisdiction, stressed the importance of using version of the briefs will actually look, of course, and sans serif type, which established vendors, doing extensive and then take steps to improve that many feel is better for screens, isn’t testing before committing, and look if needed. always permitted. The panel specifi- spending sufficient time initially in cally recommended that fellows talk planning how to name and code the The panel then turned to specific uses with their “audience” of appellate documents. of technology to improve appellate judges to learn their preferences, and practice. It reviewed some com- then work with rules committees The panel worked diligently during mercial software products, including and clerks’ offices to make sure that both the Friday and Saturday technol- Westlaw Case Notebook and Lexis electronic filing rules allow these ogy sessions to keep its presentation CaseMap, that help manage large trial preferences to be met. as general as possible, while at the transcripts. Using specific examples, same time giving specific and helpful the group went through in general There was considerable discussion examples of technology in practice. terms how to load a trial transcript, about the importance of using tem- For those wanting a more in-depth highlight and organize it by specific plates and styles in producing briefs to discussion of any of these issues, the issues on appeal, add attorneys’ notes, ensure both uniformity and efficiency. panel’s written materials, complete and use the finished product both to Various voice-to text options and spe- with detailed source references and generate a brief’s statement of facts cific word processing shortcuts were hyperlinks to specific software and and to find transcript support for also mentioned. Although fellows vendors, are available on the AAAL argument points. don’t necessarily use all these tools website under “Spring 2015 Technol- themselves, they should be aware of ogy Presentations.”

The Appellate Advocate n 2015 Issue 2 Page 9 AAAL Fall Meeting [continued from page 1] fellows in the District of Columbia know other fellows from across the Eisenberg Prize and Virginia that are sponsoring the country. reception. The Eisenberg Prize was On Monday morning, we will attend presented at the 2015 On Sunday morning, the meeting arguments at the Supreme Court. AAAL Spring Meeting program will kick off with a preview Upon returning to The Willard, in Santa Fe, New of the two cases we will watch being we will enjoy lunch and luncheon Mexico, to Bryan Lam- argued at the Supreme Court on speaker Joan Biskupic, who is the mon, assistant professor of law, Uni- Monday morning. Once the Court’s Supreme Court correspondent for versity of Toledo College of Law. calendar is released, Don Ayer and Reuters. Last year, Reuters published Professor Lammon’s prize-winning Alan Morrison will put together pan- an investigative series titled “The effort, “Rules, Standards, and els on each case consisting of lawyers Echo Chamber,” which detailed the Experimentation in Appellate Juris- who are familiar with the respective small group of lawyers that seems diction,” was published in 2013 by issues presented in the cases. to have outsized influence at the the Ohio State Law Journal (74 Ohio Supreme Court. Ms. Biskupic, one St. L.J. 423). The article thoroughly On Sunday morning, we will also of the series authors, will discuss the explores what Professor Lammon have a panel discussion titled “An series and then take questions from aptly labels the present “mess” of Insider’s Guide to the Solicitor the audience. interlocutory appellate review and General’s Office.” Academy fel- concludes by urging greater “judicial lows Miguel Estrada, Greg Garre, The final panel discussion for the experimentation” to develop evidence and David Frederick, all of whom meeting will occur on Monday about the actual consequences of the served in various roles in the solici- afternoon. Four relatively new different—and often clashing—rules tor general’s office, will be joined by appellate judges who previously were in this field of appellate procedure. the current deputy solicitor general, distinguished appellate practitioners Edwin Kneedler. Moderator Deanne will discuss the insights they have The Eisenberg Prize, named in honor Maynard, another veteran of the gained since taking the bench. The of the late Howard Eisenberg, an solicitor general’s office, will lead the panelists include D.C. Circuit Judges AAAL fellow, is awarded annually by panel through a discussion of tips on Patricia Millett and Sri Srinivasan, AAAL (if there is at least one worthy how practitioners can best interact Fourth Circuit Judge Pamela Harris, candidate) to the article deemed the with the office. and Federal Circuit Judge Richard best on appellate practice or procedure Taranto. AAAL Fellow Tom Hungar published during the preceding year, At lunch on Sunday, we will celebrate will moderate the discussion. July 1 to June 30. The award recipient the Academy’s 25th anniversary with receives a plaque and $2,000. At the views both backward and forward. The meeting will conclude on time of Howard’s premature death Several fellows will recount the Monday evening with the reception, in June 2002, he was dean of the early days of AAAL. Then, current induction ceremony, and dinner at Marquette Law School in Milwaukee, AAAL President Charlie Bird will the Supreme Court. Wisconsin. describe the vision for AAAL’s role in the coming years. Following that Fellows Don Ayer, Greg Garre, The prize-winning article is selected by celebratory lunch, we will adjourn Tom Hungar, Deanne Maynard, an AAAL committee and approved by for the afternoon to allow meeting Alan Morrison, and Tom Weaver the board. The current members of the attendees to enjoy Washington, D.C. are the general members of the DC committee are Fellows Gregory Dyek- On Sunday evening, we will have Planning Committee. man, Jon Laramore, Matt Lembke, our traditional dine-arounds, which and Beverly Pohl; the committee provide great opportunities to get to chair is the Hon. Beth Hanan.

Page 10 The Appellate Advocate n 2015 Issue 2 Profiles of Inductees at 2015 Spring Meeting in Santa Fe, New Mexico

At the Spring Meeting in Santa Fe, of the most dazzling arguments the was formerly a member of the Board the Academy welcomed the following marble chamber has heard in many of Visitors of Harvard Law School. distinguished appellate advocates to years.” its ranks: Paul W. Flowers Mr. Estrada was also selected by his Since 1992 Paul W. Flowers has suc- Miguel A. Estrada peers for inclusion in the 2015 edi- cessfully represented individual and Miguel A. Estrada is a partner in tion of The Best Lawyers in America business clients in over 200 appeals the Washington, D.C., office of in the specialties of Appellate Law; and original actions in state and federal Gibson, Dunn & Crutcher. He has Commercial Litigation; and Criminal courts in Ohio and California. He has represented clients before federal and Defense: White Collar, Intellectual appeared for oral argument in all 12 state courts throughout the country in Property Litigation, and Regulatory districts in Ohio as well as on approxi- a broad range of matters. Mr. Estrada Enforcement Litigation in the areas of mately 20 occasions before the Ohio has argued 22 cases before the U.S. SEC, Telecom, and Energy. In 2004, Supreme Court. He has been certified Supreme Court and briefed many Legal Times named him one of the as an appellate law specialist by the others. He has also argued dozens of top 12 appellate litigators in the D.C. Ohio State Bar Association. Mr. Flow- appeals in the lower federal courts. area, noting that “people who follow ers has received a number of awards appellate practice in Washington have throughout his career, including Ohio In 2014, The American Lawyer named known for several years that Estrada Lawyers’ Weekly’s Top Ten Attorneys in Mr. Estrada a “Litigator of the Year,” is one of the best around.” 2001, and was a Public Justice Founda- praising his “brains and tenacity” and tion Trial Lawyer of the Year finalist noting he is the lawyer to call for “a Mr. Estrada joined Gibson Dunn in in 2007. He has been recognized in tough, potentially unwinnable case.” 1997 after serving for five years as Ohio Super Lawyers since 2007. Mr. That same year,Chambers & Partners assistant to the solicitor general of the Flowers graduated with honors from named him as one of a handful of United States. He previously served Ohio State University College of Law attorneys that it ranked in the top tier as assistant U.S. attorney and deputy in 1990 and then clerked for the Hon. among the nation’s leading appellate chief of the Appellate Section, U.S. John W. Reece of the Ohio Ninth lawyers. Chambers & Partners noted Attorney’s Office, Southern District District Court of Appeals. that “clients are impressed by his of New York. In those capacities, Mr. intellect and ability, with one saying, Estrada represented the government Warren H. Harris ‘His papers are just blindingly clear in numerous jury trials and in many Warren W. Harris heads Bracewell & in what they say and devastating in appeals before the U.S. Court of Giuliani’s appellate group. He is board how they marshal the arguments.’” Appeals for the Second Circuit. certified in civil appellate law by the The Atlantic recently described his Texas Board of Legal Specialization and oral argument in a 2014 high-profile Mr. Estrada is a trustee of the has handled hundreds of appeals. Mr. separation-of-powers case as “one Supreme Court Historical Society. He Harris is listed for appellate practice

The Appellate Advocate n 2015 Issue 2 Page 11 in The Best Lawyers in America, Cham- and regulatory issues. Ms. Hughes also University of Houston Law Center bers USA: Guide to America’s Leading defends, consults with, and assists other and as adjunct professor of law for the Lawyers for Business, and The Legal 500 lawyers in their cases, on assignments University of Houston Law Center and United States. He is listed in the Top by their professional liability carriers. In the University of Texas School of Law. 100 Texas Lawyers by Super Lawyers. addition to Oregon and Washington, she is a member of the Idaho State Bar. Mr. Roach has been named in The Mr. Harris is a former chair of the She has been voted an Oregon Super Best Lawyers in America, Who’s Who in State Bar of Texas Appellate Section, Lawyer in appellate practice. American Law, Who’s Who in the World, the Houston Bar Appellate Practice and Who’s Who in Academia. He is a Section, the ABA Tort and Insurance Ms. Hughes was appointed by the Ore- member of several bars and associations, Practice Section Appellate Advocacy gon Supreme Court and currently serves including the American Bar Associa- Committee, and the International as a member of the Oregon Appellate tion, the American Arbitration Asso- Association of Defense Counsel Appel- Rules and the Oregon Trial Court Rules ciation, DRI–the Voice of the Defense late Practice Committee. He is past Committees. For many years, she has Bar, the Houston Bar Association, the president of the Texas Supreme Court chaired the Amicus Brief Committee Austin Bar Association, and the College Historical Society. He has spoken for the Oregon Association of Defense of the State Bar of Texas. at over one hundred legal education Counsel. She also serves on the execu- seminars. Mr. Harris received the tive board for the Litigation Section Richard H. Sinkfield Warren W. Harris Outstanding Nomi- of the Oregon State Bar. Ms. Hughes Richard H. Sinkfield, a partner with nating Chair Award from the Texas has authored chapters for Oregon State Rogers & Hardin LLP, has practiced Bar Foundation and the Gene Cavin Bar and other publications, and she is a law since 1971. His primary area of Award for Excellence in Continuing frequent speaker in continuing educa- specialization is trial and appellate Legal Education from the State Bar. tion programs about medical defense, advocacy in complex business litiga- appellate practice, civil procedure, and tion, including securities; business torts; Mr. Harris served as a law clerk for the a variety of litigation topics. and director, officer, and professional Supreme Court of Texas. He has served liability litigation. Named for the sec- as special assistant appellate disciplinary Robert M. Roach ond time as a Lawyer of the Year by The counsel in attorney discipline appeals As a founding partner of Roach & Best Lawyers in America, Mr. Sinkfield and has represented the United States Newton, LLP, Robert M. (Randy) was recently named the 2014 Atlanta as an appellate special prosecutor. Roach Jr. focuses his practice on the Lawyer of the Year in Litigation–M&A following: construction litigation, and listed for inclusion as a Best Lawyer Lindsay H. Hughes insurance defense litigation, product in six additional categories, as selected Lindsey Hughes entered private prac- liability litigation, and complex com- by his peers. He has been included in tice in 1983 after clerking for Chief mercial litigation. His experience The Best Lawyers in Americalistings for Justice Robert E. Bakes of the Idaho includes construction and engineering 20 years, has regularly been recognized Supreme Court. A member of the disputes, environmental and toxic torts, as a Georgia Super Lawyer, and is confirm of Keatings Jones Hughes, P.C., contract litigation, partnership disputes, sidered one among a handful of the very Ms. Hughes specializes in appellate and employment law. Board-certified in best trial attorneys in Georgia. He also litigation in state and federal courts in civil appellate law and personal injury enjoys a preeminent national reputation Oregon and Washington. She regularly trial law, Mr. Roach frequently helps for his work defending corporate clients defends hospitals on trial, and she businesses settle complex disputes in “bet the company” cases. He is a advises and represents hospitals and without going to court. Over the years, Top-Ranked Lawyer in Chambers USA, professionals in matters concerning Mr. Roach has served in a number of which describes Richard as “[t]he quint- privacy, EMTALA (Emergency Medi- offices. Currently, he is serving as the essential trial lawyer,” and continues, cal Treatment and Active Labor Act), director of appellate advocacy for the “Richard has built his reputation on a

Page 12 The Appellate Advocate n 2015 Issue 2 ‘magnificent courtroom presence’ that related ALI consultative groups. She States Supreme Court. He is currently opponents concede has left them with is a past chair of the Association co-president of the Washington Appel- ‘a lot of scar tissue.’” of American Law Schools’ (AALS) late Lawyers Association. Complex Litigation Committee and Mr. Sinkfield is a fellow of both the served on the executive committee of For fun, Jim tries to keep up with American College of Trial Lawyers the AALS Civil Procedure Section as three children; has coached soccer and the International Academy of well as on the Seventh Circuit Advisory and coached and umpired little-league Trial Lawyers and is a member of Committee on Circuit Rules. baseball; and enjoys playing baseball, the International Association of cycling, hiking, and skiing. Defense Counsel. He has served on Professor Steinman is the only scholar the American Bar Association’s Special to win two Eisenberg prizes from Jane B. Yohalem Commission on Evaluation of Profes- the Academy—for her Georgia Law Jane B. Yohalem is an appellate practice sional Standards and is also a trustee Review article, “Irregulars: The Appel- specialist in private practice in Santa Fe. of Vanderbilt University. late Rights of Persons Who Are Not She graduated from Columbia Univer- Full-Fledged Parties,” in 2005, and for sity Law School in 1975 and obtained Joan E. Steinman her Notre Dame Law Review article, an LLM from Georgetown University Joan Steinman is a Distinguished “Appellate Courts as First Responders: Law School in 1976. Ms. Yohalem Professor of Law, at IIT Chicago– The Constitutionality and Propriety of worked for more than 10 years for the Kent College of Law. She received her Appellate Courts’ Resolving Issues in Mental Health Law Project (now the bachelor’s degree in philosophy from the First Instance,” in 2012. Her forth- Bazelon Center) litigating landmark the University of Rochester and her Michigan State coming article in the special education and disability rights law degree from Harvard Law School, Law Review addresses the circumstances cases. After moving to New Mexico, where she served on the Harvard Civil under which summary judgment deni- she practiced labor, employment, and Rights–Civil Liberties Law Review. She als should be reviewable on appeal after civil rights law with the law firm of practiced with the Chicago law firm trial and final judgment. Simon & Oppenheimer. She opened of Schiff Hardin & Waite from 1973 her own practice in 1996 specializing in to 1977. Professor Steinman joined the James M. Whisman appeals. Ms. Yohalem has represented faculty of Chicago-Kent in 1977 and James Whisman received his bachelor’s clients in the New Mexico Supreme served as interim 1990 and 1991. She degree in philosophy from the Univer- was named a Distinguished Professor sity of California, Berkeley in 1985 and Court and the Court of Appeals and in in 1999 and was a visiting professor his J.D. from the University of Wash- the federal appellate courts in virtually at Vanderbilt University Law School ington School of Law in 1989. He has every area of law. Her work in appellate in 2002. Professor Steinman teaches been a King County deputy prosecuting practice has been recognized in New civil procedure, complex litigation, and attorney since 1990. Between 1990 and Mexico Super Lawyers as well as in Best appellate courts and has received a vari- 1997, he handled felony trials involving Lawyers in America. ety of awards. She has authored articles drugs, robberies, thefts, sexual assaults, on a number of topics, is responsible for and homicides, with a two-year inter- Ms. Yohalem is married to a trial lawyer two volumes of the Wright et al. Federal lude from 1993–1995 doing appeals. and has two children. In her spare time, Practice and Procedure Treatise, and co- In 1997, he was appointed chair of the she likes to ski, travel, read novels, and authors a casebook on appellate courts. King County Prosecuting Attorney’s catch up on classic and current films. Professor Steinman has been an elected Office Appellate Unit. In that capac- She has served on the Uniform Jury member of the American Law Institute ity, he has briefed and argued scores Instruction Committee in New Mexico for 25 years. She was an advisor on the of cases to the Washington Court of and recently left the Board of Creativity American Law Institute Federal Judicial Appeals and the Washington Supreme for Peace, an organization that works Code Revision Project (1996–2004) Court. In 2006, he successfully litigated with young women in Palestine and and a member of several litigation- two criminal cases before the United Israel.

The Appellate Advocate n 2015 Issue 2 Page 13 Isn’t That Special—Florida Adopts a New Harmless Error Rule

By Sylvia H. Walbolt, 1 AAAL Fellow

Harmless error. An appellant’s worst the Court held that, in order for an incorporated into a rule governing fear. An appellee’s best friend. But error in a civil case to be harmless, harmless error, compels an appellate very difficult for appellate courts to “the beneficiary of the error has the court to concern itself not alone with explain, and often very difficult for burden to prove that…there is no a particular result but also with the them to say whether it occurred in a reasonable possibility that the error very integrity of the judicial process.’” particular case. There is a split in the contributed to the verdict.” Id. at Special, 160 So. 3d at 1257. In the federal circuit courts of appeal regard- 1256. The Court stressed that the Court’s view, its new test fulfills that ing the proper test for determining appellate court should “focus on the jurisprudential interest. harmless error, and some state courts effect of the error on the trier-of-fact have no articulated standard at all.1 and avoid engaging in an analysis that The Court described other purposes looks only to the result in order to served by the new test. It will “con- Late last year, a sharply divided determine harmless error.” Id. serve judicial resources while protect- Florida Supreme Court announced a ing the integrity of the process.” Id. new standard for determining harm- The Court reverted to its earlier deci- It also “strikes the proper balance less error in civil appeals in Florida. In sion in State of Florida v. DiGuilio, 491 between the parties,” by placing “the then applying the newly announced So. 2d 1129 (Fla. 1986), addressing burden of proving harmless error on standard to the facts of that case, the the harmless error test for criminal the beneficiary of the error.”Id. This, Court then split again as to whether cases, and emphasized that the appel- in turn, “discourages efforts to intro- there was only harmless error under late court was not to “substitute itself duce error into the proceedings.” Id. that standard. The decision should for the trier-of-fact by simply weighing be of interest to practitioners in other the evidence,” nor was the determina- Finally, saying this new test “also jurisdictions, as it reflects the very dif- tion to be “made in a vacuum.” Special, strikes the appropriate balance ferent philosophies regarding harmless 160 So. 3d at 1256 (citing DiGuilio, between the need for finality and the error and the various considerations in 491 So. 2d at 1139). integrity of the judicial process,” the affirming a judgment despite actual Court emphasized that not all errors error in the case below. The Court also referenced section contribute to the verdict. Id. At bot- 59.041, Florida Statutes, which tom, according to the majority, this test In Special v. West Boca Medical addresses the “effect” of harmless should “foster consistency in appellate Center, 160 So. 3d 1251 (Fla. 2014), error and provides that relief shall not courts’ analyses of harmless error.” Id. be granted from a judgment unless “the error complained of has resulted Three dissenting justices strongly dis- 1 Sylvia H. Walbolt is a former AAAL president and former chair of the Appellate Practice group at Carlton Fields in a miscarriage of justice.” Then, the agreed with the Court’s new harmless Jorden Burt, P.A. She expresses her appreciation to two other members of that group—Joseph H. Lang Jr. and Nicholas Court quoted from Roger J. Traynor, error test. Justice Barbara Pariente A. Brown—for their suggestions in the preparation of this The Riddle of Harmless Error 17 asserted that the decision of the en article, as well as to summer associate Darnesha Carter for her assistance in finalizing it. (1970): “‘A large word like justice, banc Fourth District Court of Appeal

Page 14 The Appellate Advocate n 2015 Issue 2 should be affirmed and that the ben- appropriate harmless error test over not the cause of death. Special, 160 eficiary of an error in a civil case only the standard established by the Leg- So. 3d at 1261. should be required to demonstrate islature. Id. at 1274. In his view, that that “it is more likely than not that improperly ignored the deference that The Fourth District initially affirmed the error did not influence the trier “th[e] Court has traditionally afforded the judgment for the defendant. Spe- of fact and thereby contribute to the the Legislature for policy decisions cial v. Baux, 52 So. 3d 682 (Fla. 4th verdict.” Id. at 1265. that have been made regarding the DCA 2010). Then, sitting en banc, harmless error standard.” Id. the Fourth District withdrew that In particular, although Justice Pariente opinion, but nonetheless affirmed agreed that “the outcome–determina- So, by a four-to-three vote, the Florida again in Special, 79 So. 3d at 772. tive ‘but for’ test” should be rejected, Supreme Court adopted a new test for In both opinions, it found any error she declared that the test to be applied harmless error in civil cases, mirror- harmless. by the appellate court must account ing its long-standing test for criminal for the burden of proof that the jury appeals. Given the far-reaching stra- After adopting a new harmless error was required to apply at trial. Id. at tegic implications that may attend a test, a different majority of the 1265-66. She cited decisions of the change in the test for harmless error, Florida Supreme Court held that Ninth and Tenth Circuit Courts of it is ironic that Florida’s general shift a new trial was required as a result Appeals in support of that view, while in approach is called “Special.” Indeed, of the trial court’s exclusion of the begging to differ with the Third Cir- adoption of this new test did not dic- plaintiff’s desired cross-examination cuit’s reasoning to the contrary.2 Id. tate the result as a matter of course. of the defense expert witness on the at 1269. Rather, applying the new test simply issue of alleged over-diagnosis of led to further division on the Court. AFE. Id. at 1265. The Court further Justices Ricky Polston and Charles found harmful error in excluding Canady, in a short dissent, agreed It was a medical malpractice wrong- the plaintiff’s proffered evidence with Justice Pariente that the Fourth ful death case in which the decedent regarding supposed efforts by defense District got the test right and the died a few minutes after a cesarean counsel to intimidate the physician majority of the Florida Supreme Court childbirth. Id. at 1254. The defen- who had performed the autopsy. Id. got it wrong. Id. at 1278. As will be dant asserted her death was caused On the other hand, the Court con- discussed, however, they disagreed in by amniotic fluid embolus (AFE), cluded that evidence of a disciplinary part with her application of the new sometimes called heart-lung collapse. proceeding against the physician was standard to the facts of that case. Id. Causation was the key issue in that properly excluded, as there was an case, and “the AFE diagnosis figured insufficient record basis to attribute Justice Fred Lewis wrote to concur prominently” at trial. Special v. Baux, that disciplinary complaint to defense with the majority that the new 79 So. 3d 755, 757 (Fla. 4th DCA counsel. Id. at 1262. standard fosters consistency and 2011) (en banc). discourages efforts to introduce error. Justice Pariente, who had dissented Id. at 1272–73. Then, Justice Lewis The trial judge excluded evidence from the Court’s adoption of the new took on Justice Pariente’s dissent. Id. proffered by the plaintiff that the test, agreed that the exclusion of cross- at 1273–74. He characterized it as defendant clinic was overdiagnos- examination of the defense expert was elevating her “personal views” of the ing AFE. Id. at 758. The judge harmful error requiring a new trial. Id. also excluded evidence that defense at 1265. As she observed, “the ability

2 Compare Haddad v. Lockheed Cal. Corp., 720 F. 2d 1454, counsel had purportedly attempted of trial counsel to argue about over- 1458-59 (9th Cir. 1983), and U.S. Indus., Inc. v. Touche Ross & Co., 854 F. 2d 1223, 1252 n.39 (10th Cir. 1988), with pre-trial to intimidate the physician diagnosis is not a substitute for having McQueeney v. Wilmington Trust Co., 779 F. 2d 916 (3d Cir. who performed the autopsy and who the defense’s own expert acknowledge 1985), and Gov’t of Virgin Islands v. Toto, 529 F. 2d 278, 284 (3d Cir. 1976). later testified at trial that AFE was the over-diagnosis of AFE, where the

The Appellate Advocate n 2015 Issue 2 Page 15 competing expert opinions were the So, the standard that had been Florida’s two issue rule? In Barth v. focal point of this medical malprac- adopted in Special expressly to “foster Khubani, 748 So. 2d 260, 261 (Fla. tice case.” Id. at 1271. consistency” of analysis of harmless 1999) (citations omitted), the Florida error actually resulted in that very Supreme Court held that “[w]here On the other hand, she disagreed that case in multiple, irreconcilable analy- there is no proper objection to the there was any error in excluding pur- ses, each producing a different result. use of a general verdict, reversal is ported witness tampering evidence, Id. at 1257. Perhaps the harmless error improper where no error is found as as she believed the record on appeal test is like the clavicle of the cat and to one of the two issues submitted to showed nothing “but hearsay and the human appendix—something the jury on the basis that the appellant attenuated connections, with specula- that is no longer necessary or even is unable to establish that he has been tion having to fill the missing pieces.” useful. Given that the rule, however prejudiced. The rule is based on the Id. at 1271–72. While acknowledging framed, appears in the end to be principle that reversal is improper that a new trial might develop more an “I know it when I see it” rule, it where no error is found as to one facts, she would affirm the trial court’s may be just as well to acknowledge of the issues that can independently evidentiary ruling based on the record that inexorable reality. This certainly support the jury’s verdict.” before the Court. Id. at 1272. might make it easier to explain the appellate court’s decision to the appel- The Florida Supreme Court says it does Justice Lewis, who was in the majority lant who proves error but still loses. not reverse sub silentio. Puryear v. State, in adopting the new test, now dis- 810 So. 2d 901, 905 (Fla. 2002). But agreed with the Court’s determination For now, however, Florida practitioners if the two-issue rule is grounded in that it was harmless error to preclude must deal with the rule announced harmless error principles, it may now evidence that, in his view, “strongly in Special and begin to address the be in tension with Special. That is, the suggested” an attempt by the defense various questions left open by Special two-issue rule would hold the inability to “intimidate” the physician who as well. For example, does the new to show harmful error on a verdict performed the autopsy and was going standard apply retroactively? One form against the appellant, whereas to testify regarding her conclusions intermediate Florida appellate court Special shifts the burden of showing from it. Id. at 1274. On retrial, he has already said it does not. In re A.B., harmless error in some situations. would permit the plaintiff to develop No. 2D14-1020, 2015 WL 968556, at the material fact as to that issue. Id. *6 (Fla. 2d DCA Mar. 6, 2015). The If the two-issue rule is based on waiver at 1272. Fourth District itself has weighed in principles, however, Special would not under unusual circumstances, revers- affect that rule. That is, if the prin- Justices Polston and Canady believed ing on rehearing a judgment it had ini- ciple is that the appellant waives the no harmful error had been shown tially affirmed under its old standard. ability to challenge a general verdict and no new trial was required. Id. Hurtado v. Desouza, Nos. 4D12-1817& form by failing to request specificity, at 1278. They agreed with Justice 4D13-1469, 2015 WL 1727851, at *1 that judicial policy choice would not Pariente that the alleged witness (Fla. 4th DCA Apr. 15, 2015). violate Special’s teachings.3 tampering evidence was properly excluded. Id. But, unlike Justice But even then, what does retroactively [continued on page 19] Pariente, they believed that the exclu- mean in this context? The time the sion of proffered cross-examination cause of action accrued? The time the 3 It should be noted that the federal circuits either apply the opposite rule, holding that a general verdict must be vacated of the defense expert of alleged complaint was filed? The time of trial? if any of the theories submitted to the jury is invalid, or frame the reason for avoiding that rule in various formu- over-diagnosis was harmless, as it The time the appeal was filed? lations of harmless error. See generally Joseph H. Lang Jr., “United States Supreme Court Denies Certiorari in Case was cumulative of other evidence and Involving Use of General Verdict, I Object!” Preservation did not alter the expert’s opinion that Other issues now exist as well. Does of Error Blog by Carlton Fields Jorden Burt, P.A., Oct. 20, 2014, http://www.cfjblaw.com/preservation-of-error-blog/ this death was caused by AFE. Id. this new rule implicitly impact blog.aspx?entry=938.

Page 16 The Appellate Advocate n 2015 Issue 2 Strategic Initiatives: Report on the Oral Argument Task Force

By Nancy Winkelman, AAAL Fellow

In fall 2013, in conjunction with its resulted in an engaged, engaging, and a critical civics function; and (4) oral ongoing Strategic Planning Process, thoughtful discussion among the fel- argument provides a critical teaching AAAL’s board of directors engaged in lows during a special 1½ hour session function. a day-long strategic planning meeting. set aside specifically for that purpose. One of the initiatives that came out After some further tweaking, the task The report then provides the follow- of that meeting was that the Academy force presented the Final Report to ing concrete recommendations for play a more prominent role in advanc- the AAAL board of directors at its improving the quality and increasing ing appellate practice. To that end, April 16, 2015, meeting, where it was the frequency of oral argument: (1) the board identified the importance approved. establish pro bono programs and other of oral argument as an area where opportunities for oral argument; (2) the Academy’s voice might make a To summarize briefly, the report consider parties’ requests for oral difference, especially in the current concludes what appellate practitioners argument; (3) issue more focus letters; climate of a decline in the number of already know: over the past decades, (4) develop a hot-court oral argument appellate arguments. there has been a significant decline culture; (5) use technology to a fuller in both the percentage of cases that extent; and (6) provide thoughts on A task force was appointed to study the receive oral argument and the amount the role of appellate lawyers. issue and make recommendations. The of time allotted for each argument. task force members include Hon. Diane With a heavy lift from Alan Morrison, Now that the task force’s work Bratvold, Charles A. Bird, Matt Lembke, an addendum to the report quanti- on the report is completed, the real James C. Martin, Alan Morrison, Dan fies that decline and provides further work begins: rollout of the report Polsenberg, Leah Ward Sears, Roger breakdowns of the data, which will and implementation of its recom- Townsend, Mike Traynor, and Nancy prove invaluable as we proceed to mendations. A Standing Commit- Winkelman (chair). The task force implementation. tee on Implementation of the Oral engaged in extensive research, study, Argument Report will be formed to and discussion over the ensuing year The report identifies both reasons proceed with that work. and then circulated a Preliminary appellate oral argument is important Draft Report to the fellows for and practical recommendations to On behalf of the task force, I want to discussion at the fall 2014 meeting. improve the quality and increase the extend my gratitude and appreciation That discussion was lively, with many frequency of oral argument. As to the for the tremendous input we received important ideas coming out of it. The former, oral argument is important from the fellows. This project has task force went back to the drawing for the following reasons (among shown and will continue to show the board and revised the report to reflect others): (1) oral argument improves Academy at its best—collaboratively the fellows’ input. A Second Draft the decision-making process; (2) oral engaged on an important issue of Report was circulated prior to the argument assures litigants their “day appellate practice and contributing to 2015 Spring Meeting, which again in court”; (3) oral argument performs a national discussion on that issue.

The Appellate Advocate n 2015 Issue 2 Page 17 Getting Ahead in the Academy

By Roger D. Townsend, AAAL Fellow

Many of us old cats are frequently and committee members are listed on efforts. So instead of being at a dead asked how to reach a leadership posi- the website. So if you have an inter- end, I was assigned to the Member- tion in the Academy. The obvious est in a particular subject, gravitate ship Committee, which is probably answer would focus on being brilliant, toward those people. And the offer of the hardest-working committee in good-looking, and charming. Unfor- a free drink is always appreciated—at the Academy because its work never tunately, any observer can see that has least by me! stops. Charged with vetting proposed not in fact always been the case. If new fellows, the committee always anything, particularly in recent years, Second, seek a committee assignment. has nominations in the pipeline. it might even be a disqualification. So In all likelihood, your wish will be Aside from investigating nominees what follows is the real story. granted because the Academy is in a particular jurisdiction, which constantly looking for volunteers. might require many letters, telephone First, try to attend all the meetings. Perhaps you’ll have to accept a dif- calls, and general cajoling to obtain You will meet the other fellows— ferent assignment from the one you responses, the members also vote on especially those already in leadership wanted, because there are different the recommendations from the other positions, who usually do attend most needs at different times. But don’t jurisdictions. And they take that job of the meetings. As so many have refuse it; accept it and do the best you very seriously. pointed out, it’s not always what you can. Whatever you do, don’t blow it. know, but who you know. The many A blown committee assignment can While there is no written rule, I’ve social occasions allow casual acquain- end your chance to advance. But the noticed a tendency for hard-working tances to blossom. Breakfasts, coffee Academy looks at effort, not necessar- members of the Membership Com- breaks, lunches, and dinners allow ily results. My first assignment was to mittee to become chair of that you to socialize with many different chair a committee to devise a code of committee, and for the chair of that fellows. In short, try to work the room appellate ethics. I thought it would be committee always to be on the board and meet different people. a cinch because my partner (and now of directors. Hmmm… Perhaps that a fellow), Kevin Dubose, had led the is a clear signal that one way to have a Getting to know the past presidents effort in getting all appellate courts chance of joining the board is to serve is also helpful, as at least a few of in Texas to adopt such a code. So the on the Membership Committee and the current and upcoming leaders committee used that as a blueprint, do a spectacular job. But you won’t continue to listen to them. (I don’t made a few changes, and submitted it get on that committee without first recommend following my tactic of to the Academy—where it was solidly impressing the leadership in some spilling an entire pitcher of water on rejected. Oops. other way. Alan Morrison just to make sure he’d never forget my name. But at least he Fortunately, a few fellows in leader- And chairing the Membership Com- forgave me.) And the current officers, ship positions, possibly those in favor mittee is not the only way to reach board members, committee chairs, of the code, were impressed with our the board. All the committees work

Page 18 The Appellate Advocate n 2015 Issue 2 hard, though more sporadically than for publication can occasionally be How long does it take? It varies. It the Membership Committee. For abysmally low. took me 16 years from induction to instance, the Rules Committee is very achieve the top spot. Many—espe- active when new rules are being pro- You’ve probably noticed that I fre- cially those who don’t dump water on posed. The Meetings Subcommittee quently mention a goal of becoming a respected past president—make it for a particular meeting is intensive a director. That’s important, because even faster. The Academy’s principal until that meeting is over. The pub- the officers almost always are elected founder, Arthur England, made it lications committee heats up shortly from the board of directors. So to immediately, but he was unusually before the next issue comes out. So, have a real chance of becoming an precocious. Therefore, I would advise you can see that many opportunities officer, you almost surely need to you to start now and see where it goes. are available, and I’m not even nam- first be on the board and then to As Bill Russell, the Celtic great, once ing all the committees. perform well. To my knowledge, said, “Success is a journey, not a des- no one has ever offered a large cash tination.” You’ll enjoy becoming more Here’s another recommendation: donation to the Academy, so I can’t active in the Academy, regardless of Consider writing a piece for the say for sure whether that would where it leads. Advocate. That’s a quick way to get work. But given our accounting your name in front of everyone and rules, which make it hard for direc- even impress the fellows. As you can tors to pocket money themselves, I see from this article, the standards doubt it would.

Isn’t That Special—Florida Adopts a New Harmless Error Rule [continued from page 16]

Questions also remain after Special the other side’s entire case. As such, to arguments that an alleged error is whether the prevailing party always the risks associated with a possible not harmless—can a concession that, is the beneficiary of the error and finding of harmful error are greater if there was error it was not harmless, whether the appellee now has the under Special’s less forgiving rule. be turned against the appellee on the obligation to bring the entire record merits of the question whether there up to the appellate court in order to This new rule thus should cause sec- was in fact error? make a harmless error argument. Stay ond thoughts on a variety of trial and tuned for much judicial writing by settlement strategy issues. It also will Appellants’ counsel will have their Florida judges to follow Special. cause heartburn for some lawyers for own strategic issues to resolve on appellees in considering whether to appeal. Should appellants now con- And, at the same time that the confess error but argue it was harm- sider comprehensively addressing judicial ramifications ofSpecial are less.4 Or should issues that tradition- harmless error (and preservation) being developed, litigants and trial ally were couched in harmless error in the initial brief? Is it better to counsel will have to take this new be framed in answer briefs as waived, allow the appellee to address these rule into account. Gone are the days invited, or unpreserved? Care also arguments in the first instance, or is that trial counsel can get away with will have to be taken in responding it better to give the Court comfort saying, “Let me get the win and we from the outset that the error should

will worry about this issue on appeal.” 4 See Sylvia H. Walbolt & Nicholas A. Brown, Practical and be determinative? Now the party on the losing side of a Ethical Considerations in Confessing Error on Appeal, Ameri- can Bar Association Appellate Practice Section of Litigation, trial issue may get a free pass at seeing Spring 2015, Vol. 34, No. 3. This new rule really is special!

The Appellate Advocate n 2015 Issue 2 Page 19 Cases Involving Appellate Practice and Procedure From the Supreme Court’s October Term 2014

By Amy Howe and Tom Goldstein, AAAL Fellow

Ms. Howe and Mr. Goldstein are, ment. The Court rejected the bank’s ing of the term “molecular weight,” respectively, the editor and publisher argument that the plaintiffs should it concluded that the term “molecular of SCOTUSblog. instead seek leave to file a discretion- weight” was indefinite and that the ary, interlocutory appeal under Fed. patent was therefore invalid. In the October Term 2014, the R. Civ. P. 54(b). The relevant role Supreme Court decided five cases of Rule 54(b), the Court explained, The Supreme Court granted review directly involving issues of appellate was to permit the district court to and, in an opinion by Justice Stephen practice and procedure. certify for appeal the claims from the Breyer, reversed the Federal Circuit’s other complaints that have not been decision. The Court began with the Gelboim v. Bank of America Corpo- dismissed, so that the court of appeal text of Federal Rule of Civil Procedure ration involved issues of appellate can dispose of the relevant legal issues 52(a), which provides that a court procedure in the context of multidis- in all of the MDL’d cases. of appeals “must not . . . set aside” trict litigation. Gelboim arose from a district court’s “[f]indings of fact” the MDL proceedings involving The issue before the Court inTeva unless they are “clearly erroneous.” allegations that financial institutions Pharmaceuticals v. Sandoz, Inc. was There are no exceptions to this rule, fixed LIBOR. After the suits were the standard of review on appeal for the Court emphasized. And although consolidated for pre-trial proceed- patent cases in which the trial judge, it had previously held that “it was ings, the district court dismissed the in the course of construing a patent, proper to treat the ultimate question Gelboim complaint. The plaintiffs had to resolve an underlying factual of the proper construction of the pat- in that complaint sought to appeal, dispute. The case arose when Sandoz ent as a question of law,” that does not but the Second Circuit dismissed for tried to market a generic version of the “imply an exception to Rule 52(a) for lack of jurisdiction. In the court of multiple sclerosis drug Copaxone, for underlying factual disputes” like the appeals’ view, there was no “final” which Teva owned the patent. Teva one in this case. Thus, when review- judgment for purposes of 28 U.S.C. filed a patent infringement lawsuit; ing the findings of fact that underlie § 1291 because the MDL proceedings Sandoz countered that the patent was a district court’s claim construction, had not concluded, given that other invalid because the phrase “molecular it concluded that the Federal Circuit complaints remained pending. weight,” used in the patent claim, was should apply a “clear error” standard not sufficiently definite. The district of review. The Supreme Court granted certiorari court agreed with Teva that it was suf- and unanimously reversed. The crux ficiently definite and concluded that In Bullard v. Blue Hills Bank, the of the ruling is that the individual the patent was valid. But on appeal, question before the Court was complaints in MDL proceedings the Federal Circuit reversed. After whether an order denying confirma- generally retain their own separate conducting a de novo review of the tion of a proposed repayment plan in identities. Each is a separate action district court’s decision, including its a Chapter 13 bankruptcy proceeding that gives rise to a distinct final judg- findings regarding the understand- is a “final” order that can be immedi-

Page 20 The Appellate Advocate n 2015 Issue 2 ately appealed. The debtor in the case alters the status quo and fixes the a view either to enlarging his own had proposed a plan, but the bank— rights and obligations of the parties.” rights thereunder or of lessening the which held a mortgage on a house that On the other hand, denying a plan rights of his adversary.” The question he owned—objected to his proposal, but leaving open the option to amend before the Court, then, boiled down and the bankruptcy court declined it “changes little”—and the debtor to whether Jennings’s effort to rely on to confirm it on the ground that its may still have his debts discharged. the third, rejected theory of ineffective treatment of the bank’s claim was not “‘Final,’” the Court emphasized, “does assistance of counsel either enlarged permitted by Chapter 13. After a stop not describe this state of affairs.” his rights or lessened those of the in the Bankruptcy Appellate Panel, state. The Court concluded that it did the First Circuit dismissed Bullard’s Habeas appeals were before the neither: his rights under the district appeal for lack of jurisdiction. It held Court in Jennings v. Stephens, the court’s judgment “were what the judg- that the bankruptcy court’s order case of a Texas inmate sentenced ment provided—release, resentencing, denying confirmation of the debtor’s to death for the fatal shooting of a or commutation within a fixed time,” proposed plan was not final because police officer during a robbery. After and he would have those same rights the debtor was still free to propose his state appeals and post-conviction if he were to prevail under his third another plan. efforts were unsuccessful, Jennings theory. Similarly, Texas’s “rights under presented three theories of ineffective the judgment were to retain Jennings The Supreme Court granted review assistance of counsel in his federal in custody pending resentencing or to and, in a unanimous opinion by Chief habeas petition. The district court commute his sentence”; those rights Justice John Roberts, affirmed. The granted relief on two of the three would not change under his third Court acknowledged that bankruptcy theories but rejected the third, and theory. proceedings are different from regu- it ordered the state to either release lar civil litigation, in which a party Jennings, resentence him, or com- In Reyes Mata v. Lynch, the issue may generally only appeal as of right mute his sentence within 120 days. before the Court was the circum- from a “final decision”: the statute On the state’s appeal, the Fifth stances in which courts of appeals governing appeals in bankruptcy cases Circuit reversed the district court’s have jurisdiction to consider a peti- allows appeals as of right “from final rulings on the two theories on which tion seeking review of the denial by judgments, orders, and decrees…in Jennings had prevailed. And it held the Board of Immigration Appeals cases and proceedings.” The question that it lacked jurisdiction to consider (BIA) of a motion to reopen a non- to resolve, then, is what constitutes a Jennings’s third theory, which he had citizen’s removal proceedings. Noel “proceeding” when the bankruptcy raised again in the court of appeals, Reyes Mata was ordered removed judge is considering a proposed on the ground that he had not filed a from the United States in 2011, fol- plan. The debtor took a narrow cross-appeal to challenge the district lowing his conviction for assault in view, arguing that “[e]ach time the court’s rejection of that theory. Texas. Mata’s attorney filed a notice bankruptcy court reviews a proposed of appeal with the BIA, but the appeal plan…it conducts a separate proceed- By a vote of six to three, the Supreme was dismissed when he failed to file ing,” allowing him to appeal if the Court reversed. In an opinion by a brief. Mata obtained a new lawyer, court rejects the plan. The contrary Justice Antonin Scalia, the Court who filed a motion to reopen his case. view is that the “proceeding” is the explained that an appellee who does When the Department of Homeland “entire process of considering plans, not cross-appeal may “urge in sup- Security countered that the motion which terminates only when a plan port of a decree any matter appearing was untimely because it was not is confirmed or…when the case is before the record, although his argu- filed within the 90-day time period dismissed.” The Court adopted the ment may involve an attack upon the established by the Immigration and latter view, explaining that “only plan reasoning of the lower court.” He may Nationality Act, Mata argued that the confirmation—or case dismissal— not, however, “attack the decree with untimeliness was excused because he

The Appellate Advocate n 2015 Issue 2 Page 21 Cases Involving Appellate Practice and Procedure From the Supreme Court’s October Term 2014 [continued from page 21] Report on FRAP Brief Length Imbroglio had received ineffective assistance when his original lawyer did not file the appeal brief. By Charles Bird, AAAL President

The BIA ruled that Mata was not entitled to equitable tolling of the In 2012, the Advisory Committee One of the Academy’s positions, 90-day period, and it declined to on Appellate Rules began analyzing shared by the solicitor general, is exercise its sua sponte authority to a proposal to convert page limits that complex cases often require reopen the case. Mata appealed the for certain appellate filings to word long briefs. Circuit practices vary denial to the Fifth Circuit, which held limits, as used in FRAP 32. Late widely in such cases, and some that it lacked jurisdiction to consider in its progress, the proposal was circuits seem to deny motions to his appeal at all. But the Supreme hijacked into a brief-shortening file long briefs without consider- Court granted review and—by a amendment. The advisory commit- ing the complexity of the case or vote of eight to one—reversed. The tee published an amendment for the number of issues necessarily Court had already held that the public comment in 2014, propos- presented. courts of appeals have jurisdiction to ing to reduce principal briefs to a review a non-citizen’s appeal from the maximum of 12,500 words and The advisory committee’s report BIA’s denial of a motion to reopen to set limits on other filings on a identified nearly universal circuit a removal proceeding. That holding ratio of 250 words per page. The rules expressing hostility to motions applies fully, the Court explained, to Academy filed written opposition to exceed length limits. The report cases in which the BIA denies motions to shortening briefs and to the ratio encouraged the courts of appeals to reopen on timeliness grounds, for other filings. to decide requests on a case-by-case including cases in which non-citizens basis. Nothing in the text of the have requested equitable tolling of the Shortly before the Academy’s Santa final proposal limits hostile circuit 90-day deadline. “Under the INA, as Fe meeting, I had the privilege of rules. under our century-old practice,” the testifying for the Academy at an Court emphasized, “the reason for the advisory committee hearing. Shortly The 13,000-word proposal is likely BIA’s denial makes no difference to after the Santa Fe meeting, the to be on the Judicial Conference’s the jurisdictional issue.” “Similarly,” advisory committee sent a revised agenda in September. If adopted the Court continued, “that jurisdic- proposal to the Standing Commit- there, it will go to the Supreme tion remains unchanged if the Board, tee on Rules of Practice and Proce- Court and Congress for concur- in addition to denying the alien’s dure. Under the revised proposal, rence and could become effective statutorily authorized motion, states principal briefs would be limited December 1, 2016. that it will not exercise its separate sua to 13,000 words. Other appellate sponte authority to reopen the case.” filings are converted to word limits on a ratio of 260 words per page.

Page 22 The Appellate Advocate n 2015 Issue 2 FROM THE EDITOR

Miscellany

By Michael King, AAAL Fellow

Right off the bat, an important Readers of my last two columns action to restrain the purely “private” announcement concerning our orga- will recall my pledge to promote the conduct of individual citizens. nization’s imminent 25th anniversary Reading of the Law, which to date celebration: Fellow Thom Hudsonis has featured Fellow Sidney Powell’s The dramatic highlight of this well- in charge of a task force that, among Licensed to Lie: Exposing Corruption written, truly fast-paced book is other things, is putting together a in the Department of Justice (Brown the story of the two criminal trials rolling PowerPoint presentation of Books Publishing; Dallas 2014) and of several of the vigilantes, charged photos illustrating those 25 years. If Thomas Healy’sThe Great Dissent: under the enforcement provisions you have such photos and can share, How Oliver Wendell Holmes Changed of the Civil Rights Act of 1870 please send them Thom’s way at His Mind—and Changed the History with violating the civil rights of the [email protected]. of Free Speech in America (Metropoli- slain African-Americans. Their first tan Books, Henry Holt & Co.: New trial resulted in a hung jury; their Next, I want to point out the article York 2013). To those two fine books re-trial was fatefully presided over elsewhere in this issue by past presi- I now add Charles Lane’s The Day by Supreme Court Justice Joseph dent and fellow Sylvia Walbolt, on Freedom Died: The Colfax Massacre, Bradley, “riding circuit.” Bradley’s recent developments in Florida’s the Supreme Court, and the Betrayal post-trial rulings eviscerating the harmless error doctrine. This article of Reconstruction (Henry Holt & Co.: Civil Rights Act of 1870 would be is the first of what the Publications New York 2008). I do so recognizing upheld by his colleagues, in terms Committee hopes will become a regu- that some fellows will take issue with that effectively nullified for almost lar feature of the newsletter, in which Mr. Lane’s legal “take” on the events a century the ability of the federal fellows address substantive areas of he chronicles, which begin with the government to protect the civil appellate practice, bringing to bear Easter Sunday 1873 “Colfax Mas- rights of African-Americans. This is insights gleaned from many years of sacre” of some 60 African-Americans a version of a critical period in our distinguished practice in the field of by white supremacist vigilantes, and country’s legal history with which appellate law. If you are inspired by end with the landmark decision of some will not agree, but with which Sylvia’s sterling inaugural effort—and the Supreme Court of the United any serious student of American legal I know many of you will be—please States in U.S. v. Cruikshank, 92 history should be familiar. contact me directly (king@carneylaw. U.S. 542 (1875), holding that the com) and let me know what topic you protections of the Due Process and would like to address. With luck, we Equal Protection Clauses of the 14th will quickly develop a list of topics Amendment apply only to so-called that I can share in the next issue of “state action” and therefore cannot the newsletter. be the basis for federal government

The Appellate Advocate n 2015 Issue 2 Page 23 9707 Key West Avenue, Suite 100 Rockville, MD 20850

American Academy of Appellate Lawyers The Appellate Advocate is the newsletter of the American Academy of Appellate OFFICERS AND DIRECTORS PAST PRESIDENTS Lawyers, published twice a year. Comments, suggestions, letters, and articles may be sent to the editor, Mike King, Carney Badley Roger D. Townsend Charles A. Bird Spellman, Seattle, Washington 98104 or Wendy Cole Lascher PRESIDENT by email to [email protected], or to any Donald B. Ayer of the officers or directors of the Academy. Nancy Winkelman Karen L. Kendall Photographs for this issue were provided by Fellow Michael Rathsack, Law Offices of PRESIDENT-ELECT Timothy J. Berg Michael Rathsack, Chicago, Illinois. Susan M. Freeman Catherine Wright Smith AAAL Administrative Staff TREASURER Charles E. Carpenter Jr. Beth W. Palys, FASAE, CAE Kathleen McCree Lewis Hon. Diane B. Bratvold Executive Director avid err SECRETARY D F. H Lynne Agoston Michael J. Meehan Director of Editorial Services James C. Martin Kenneth C. Bass III Jon Benjamin IMMEDIATE PAST-PRESIDENT Sidney K. Powell Senior Graphic Designer Lynn Turner Catherine R. Connors Peter W. Davis Senior Member Services Manager DIRECTOR Alan B. Morrison Grace L. Jan, CAE, CMP Eric J. Magnuson Howard M. Goodfriend Vice President—Meetings anford vetcov DIRECTOR S S Morgan Wisher Sylvia H. Walbolt Meeting Planner Matthew H. Lembke Luther T. Munford DIRECTOR AAAL Administrative Offices Malcolm L. Edwards 9707 Key West Avenue, Suite 100 Thomas B. Weaver Mark I. Harrison Rockville, MD 20850 DIRECTOR E. Barrett Prettyman Jr. Phone: (240) 404-6498 Arthur J. England Jr. Fax: (301) 990-9771 Email: [email protected] Website: www.appellateacademy.org