Atticus Finch. Abraham Lincoln. Clarence Darrow. Those are some of the attorneys who have inspired many to attend law school and become outstanding trial attorneys. However, you don’t frequently hear aspiring trial attorneys utter the names Wiley Rutledge, Benjamin Cardozo, or Oliver Wendell Holmes as reasons why he or she attended law school. Is there a reason for this leaning toward the great trial attorneys and not some of history’s greatest legal writers? The reason is likely that trials are exciting, especially in movies and television shows. Cross-examinations, opening arguments and summations can be exhilarating. How many TV and movies scenes have you seen featuring a lawyer giving a heartfelt speech to a jury on behalf of her client or a heart-stopping cross examination? A lot, I’m betting. Now think of all the TV and movie scenes where the protagonist is featured spending hours writing and editing motion papers or appellate briefs. I’m guessing you haven’t sat through a lot of those scenes.

Those of us who have practiced law for even one year know that those exciting courtroom scenes are few and far between in our daily practices. A good part of our profession involves writing. Clear, concise writing is an important skill for an attorney. Writing is a common denominator for some of our best and most successful attorneys. Not too sexy, but very essential. Mr. Justice Stevens thinks so; see his interview with Bryan Garner here and here.

Bryan Garner and a United States Supreme Court Justice will be the keynote speakers at DRI's 2011 Annual Meeting. Effective legal writing will be the focus of the presentation; a skill just as important as convincing a jury to find in your client’s favor. Who knows? You might even leave the presentation with some new legal heroes.


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Categories: Annual Meeting

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How do you know that you have bad habits in your law practice? Even if you are lucky enough to have a mentor, surely he or she doesn’t track your every step. For some, guidance about persuasive and effective writing unfortunately ceased after the first year of law school. Now you’re in your second, or perhaps 25th year of practice, and you’ve fallen into some bad writing habits that you’re not even aware of. Whether at the trial or appellate level, attorneys fall into similar patterns that lead to less effective written communication in motions and appellate briefs.

Do you find yourself throwing every argument into your brief because you are afraid to waive even clear losing points? Do you attack your opponent’s character or behavior in court documents over the course of litigation to show that his or her behavior has been so egregious that it warrants such a distraction from the issues at hand? Do you write to the maximum page limits in fear that the judge or judges won’t take your argument seriously if it’s concise and takes up a page or two?

Author and legal-writing consultant Bryan Garner’s books and lectures help attorneys remedy these bad habits. His lectures are not a quick fix or one-pill solution to weak writing. He teaches attorneys to care about legal writing and to cultivate the skills of writing throughout your practice. Should you really dedicate your time to doing so? Justice Ginsberg of the United States Supreme Court seems to think so (see Garner’s interviews with Justice Ginsberg here and here).

Bryan Garner and a member of the Supreme Court are speaking at DRI’s Annual Meeting in October. Some of the most experienced and prestigious attorneys throughout this country attend Mr. Garner’s lectures to continue to refine their persuasive legal-writing styles. You can too, as part of attending this year’s Annual meeting. It may be one of the rare opportunities to concentrate on improving your written and oral advocacy skills and fix those bad habits we all fall into throughout our practice. 


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Last week, a New Orleans district judge ruled that 7 property owners' petition to enjoin the Army Corps of Engineers from proceeding with remediation work for the 17th Street Canal (reported on Levees.Org).  The families claimed that the work crew would trespass on their property.  The suit stems from a dispute over whether backyards along the canal are part of the state's right of way or private land.  
In denying the petition, Judge Reese reasoned that stopping the Corps' work would not accomplish any good for either party.  However, Judge Reese believed the homeowners had been wronged and apparently told the plaintiffs that he would void his past judgment and allow the the 17th Street Canal Coaltion to re-write their petition to allow them to seek relief from the Corps in federal court.
The homeowners along the New Orleans side of the 17th Street Canal had filed a civil suit, attempting to stop the Arm Corps of Engineers from beginning contruction on a project that will strengthen floodwalls allong the canal.  They claimed that they have not been compensated for damage to their properties.  As many of our members know from personal experience, the canal broke during Hurricaine Katrian and contributed to the flooding in New Orleans on August 29, 2005.
An article in The Insurance Journal points out that this current suit brings up similar issues raised in a 2008 action where homeowners sought compensation for the loss of trees, fences and outbuildings close to the 17th Street Canal levee.  Crews removed that property to make the canal's levee and floodways safer.  Judge Reese ruled in their homeowners' favor, but a state 4th Circuit Court of Appeal overturned the ruling.
The difference between the 2008 suit and the current one is that, in the current case, the homeowners are seeking to stop a new round of work.
The homeowners are likely going to file their claim in federal court and, thus, potentially delay further work on the levee.  The issue presents a difficult balance between protecting the residents of New Orleans and constitutional rights of a handful of homeowners. 

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Categories: Appellate Advocacy

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The Supreme Court heard oral arguments last week (Nov. 3, 2010) in Williamson v. Mazda Motor of Am. (008-1314).  The issue on appeal is whether an accident victim can sue a car
manufacturer for negligence in failing to install a lap/shoulder belt in a car when federal safety regulations permitted the manufacturer to install only a lap belt.

In Williamson, a woman was fatally injured in a collision when she was sitting in the center rear seat of a Mazda van, secured by a lap belt. The two other passengers in the vehicle, both wearing lap-shoulder belts, survived with minor injuries.  Thanh Williamson, however, suffered severe abdominal injuries and internal bleeding because her body jackknifed around the lap belt. Williamson's survivors sued Mazda asserting that the van was defectively designed by providing only a lap belt in the center rear seat. When the van was built, the National Highway Transportation Safety Administration's Federal Motor Vehicle Standard (FMVSS) 208 only required lap belts in the center seat, even while it required lap-shoulder belts in all other seats. Mazda moved to dismiss the case on the grounds that the common law tort claim was preempted by the federal standard. The California trial court granted the motion and the appellate court affirmed. The Supreme Court granted certiorari to consider that decision.

The Supreme Court addressed a similar question of preemption in Geier v. Amer. Honda Motor Co. regarding the installation of airbags.  Also, the Supreme Court last year, ruling on preemption in a different context, said consumers can sue drugmakers for failing to provide adequate safety warnings. The 6-3 ruling in Wyeth v. Levine said pharmaceutical companies aren’t shielded from suit by the U.S. Food and Drug Administration’s approval of a treatment and its packaging information.

Mazda is attempting to limit lawsuits that accuse carmakers of failing to install the best safety equipment.  The automobile industry and its allies are asking the court to reinforce GeierWilliamson is asking the Court to interpret the regulation as a minimum safety standard and allow state tort claims.

There is a possibility that Supreme Court might deadlock at 4-4 because Elena Kagan has disqualified herself.  As President Obama's administration solicitor general earlier this year, she urged the Court to take the case. A tie vote would would leave intact a state court's ruling that favored automakers without setting a national precedent.

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In Cogswell v. CitiFinacial Mtg. Co. Inc., CitiFinancial Mortgage assigned its interest in a mortgage to two investors—doing business as “The Patrick Group”—but never delivered the original or a copy of the underlying note. When The Patrick Group tried to foreclose on the mortgage in Illinois state court, its action was dismissed because it could not produce the note. The Patrick Group was not successful on its appeal to state court.

The Patrick Group filed a breach-of-contract lawsuit against CitiFinancial in state court. The suit was removed to federal court, and the district court granted summary judgment in favor of CitiFinancial.  The district court based its summary-judgment decision primarily on a determination that CitiFinancial never agreed to deliver the note as part of the parties’ agreement to transfer the mortgage. The Seventh Circuit, however, concluded that whether the parties agreed on this term is a question of fact, and The Patrick Group presented enough evidence from which a reasonable fact finder could conclude that it was a part of the parties’ agreement.  Therefore, the Court remanded the matter back to the district court to resolve the open factual question on whether the parties' agreement required CitiFinancial to provide The Patrick Group with the note.

The Seventh Circuit also concluded that the district court’s alternative basis for summary judgment—that CitiFinancial’s alleged breach did not cause The Patrick Group’s damages—was also erroneous.  Under the circumstances of the case, the Seventh Circuit held that the causation question should have been resolved in The Patrick Group’s favor as a matter of law; the state trial and appellate courts rejected The Patrick Group’s foreclosure action because without a copy of the note, it could not prove it was the holder of the debt the mortgage secured.

You can hear the oral argument at the Seventh Circuit here (mp3).

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Categories: Court of Appeals | Real Estate Law

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The U.S. Court of Appeals for the Federal Circuit's decision yesterday (.pdf) in Stauffer v. Brooks Bros., Inc. will impact numerous other similar "fall marking" suits across the country (see Reuters feed here).The dispute concerned a patent attorney's accusation that Brooks Brook Brothers was selling "Adjustolox" bow ties that were marked as patented.  However, the patent expired in the 1950s.  Stauffer commenced a qui tam action under 35 U.S.C. sec. 292 alleging that Brooks Brothers had falsely marked its bow ties.  Brooks Brothers argued that Stauffer had no standing to file the suit because he was not harmed by the erroneous information.  The district court agreed.
The federal appeals court reversed that ruling and remanded the matter to the district court.  The Federal Circuit ruled the law did not require Stauffer to be injured by the false marking, but quoted the statute as providing that "any person may sue for the penalty."
Several "false marking" cases had been stayed pending resolution of this matter.  Upon learning of this decision, those cases commenced by the Public Patent Foundation will now go forward against several large corporations.  The penalties in false marking cases can be substantial.  The Federal Circuit late last year held that the fine for claiming a nonexistent or expired patent was $500 per device sold.  That type of penalty can add up quickly based on a seemingly technical error and violation of a statute.  A person like Stauffer, who inexplicably admitted to wearing a bow tie almost every day, could find a small goldmine in his closet.  Half the monetary penalty goes to the person who instituted the suit and the other half goes to the United States government.

What are your thoughts?  Should procedures for expired be reviewed and revised?

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Categories: Intellectual Property

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Last week, the New York Times featured this article on Chief Judge Lippman's impact on the New York Court of Appeals. One of the main thrusts of the article is how the Court has had more contentious opinions in the last year than in prior years under former-Chief Judge Kaye. Some recent decisions demonstrate the point: Affri v. Basch (Chief Judge Lippman dissents in Labor Law sec. 240(1) case) and Matter of Save the Pine Bush, Inc. v. Common Council of the City of Albany (Judge Pigott dissents regarding standing issue in SEQRA matter).

*Be sure to listen to the Multimedia piece with the writer [featured in the left panel of the article]

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Categories: Court of Appeals

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