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Wednesday, September 28, 2011

Error Preservation in South Carolina: Beware the "Two Issue" Rule.

By Kirsten E. Small

Because I am an appellate lawyer, error preservation is the bane of my existence. I don't care if the trial judge excluded your evidence, kicked a puppy, or made the jury deliberate through the Clemson-Carolina game. If you don't preserve the error, I can't help you.

As of Monday, I no longer care if the judge awarded the plaintiff damages for breach of contract. We'll be appealing the unjust enrichment claim, too.


Monday, September 19, 2011

The Appellate Code: The Many Meanings of "Per Curiam"

By Kirsten E. Small

We all know that “per curiam” means “by the court.” But, to echo a 1960s hippie-type, what does “per curiam” really mean, man? What message, if any, is an appellate court conveying by issuing an opinion “per curiam”?


Fear not—I’ve got the super-secret decoder ring. Here, in a nutshell, are the various meanings of “per curiam.”

Monday, September 12, 2011

New Fourth Circuit Nominee Stephanie Thacker

By Kirsten E. Small

Just in time for "On the Docket" to return from its summer hiatus ("hiatus" sounds so much more deliberate than "holy cow, I've been busy lately," doesn't it?), President Obama has officially announced a new pick for the Fourth Circuit: Charleston, West Virginia attorney Stephanie Thacker.

On paper, Ms.Thacker looks to be a very good choice for the Fourth Circuit. She has a solid background in civil practice and has handled some very tough cases during her time with the United States Attorney's office and the Department of Justice. As I've said before, I think it's critically important that judges have "real world" experience with the practice of law. There seems to be something of a pattern for nominations out of West Virginia--like Ms. Thacker, Judge Robert King and the late Judge Blane Michael (for whose seat Ms. Thacker is nominated) spent time in private practice and in the U.S. Attorney's office before ascending to the bench.

I spoke with Charleston attorney Tom Hurney, who confirms that reality matches the résumé. "She's a great pick," he said, because of her experience in criminal law and complex civil litigation. He predicted that she will be a "lawyer's judge"--one who has a deep sense of the interplay between legal principle and practical reality.

Now, of course, begins the long slog toward confirmation.

Monday, August 15, 2011

Blame the Machines

By Kirsten E. Small

Civil Procedure was my favorite class of my first year in law school, primarily because my professor found the cases in the textbook far less interesting than the many stories he had accumulated over the years. (When it came time to study for the bar exam, I found myself less enamored of that particular teaching style.)

One thing that stuck with me from that class was my professor's theory that modern mass tort litigation was made possible by--and would not have occured without--the invention of the photocopier. Unless you can make many,  many copies of documents for many, many plaintiffs and their lawyers, litigating a mass disaster is effectively impossible.

I was reminded of this theory by the news on Friday that the Eleventh Circuit had issued a 304-page opinion striking down the individual mandate portion of the health care law.

Friday, July 22, 2011

The Importance of Spell-Checking Your Brief

By Kirsten E. Small

The interwebs have been abuzz this week with gleeful snarking about Sanches v. Carollton-Farmers Branch I.S.D., particularly the Fifth Circuit's dressing down of Sanches' attorney for "grammatical errors ... so egregious and obvious that an average fourth grader would have avoided most of them." Ouch.

Of course, checking your brief for spelling and grammatical errors is important, and not just so you can avoid having a federal court of appeals tell that you are approximately as literate as a 9-year-old. Much like having a run in your stockings (I hear nylons are making a comeback) or a stain on your tie, careless errors in your brief distract from the quality of your argument. Why slave for hours to craft a brilliant argument if the court is going to be too busy snickering over your failure to master subject-verb agreement to notice?

As if that's not enough, careless briefing can cost you money (I knew that would get your attention).

Tuesday, July 19, 2011

Is that a Statement of Facts, or a "Fact Dump"?

by Kirsten E. Small

A friend of mine practices Social Security disability, and hence files quite a few appellate briefs in the U.S. District Court. A while back, Leeds came up with the heretical idea of completely omitting the statement of facts from his brief. Instead, all discussion of the facts occurs in the context of the argument as to each asserted error in the ALJ's decision.

Heretical, maybe--but effective. One of our magistrate judges recently had this to say about a brief prepared in this style:

Wednesday, June 29, 2011

Effective Appellate Advocacy: Issue Framing

by Kirsten E. Small

In my inbox this morning was a great blog post by Kendall Gray, writing about the Supreme Court's decision this week in J. McIntyre Machinery v. Nicastro. He pointed out two wonderful examples of issue framing by Justice Kennedy, writing for the majority, and Justice Ginsburg, writing for the dissent.

See the magic for yourself, after the jump.