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 per- sonal appearance is inconvenient. Courts should “consider allow- ing 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.