Where's Travis McGee?

50-Book Challenge: 33-Year-Old Rookie

The third selection in my 50-book challenge is The 33-Year-Old Rookie by Philadelphia Phillies catcher Chris Coste. In 2006, during my annual trip to Clearwater, Florida for Philadelphia’s spring training, I first saw Chris Coste play. Two rabid Philly fans: My friend David and I spent a long weekend getting drunk, getting sunburned, and rooting for our favorite team. As part of this annual pilgrimage, we typically find some feel-good-story player to “adopt.” We become a 2-person-fan club for a player who isn’t likely to have a bunch of fans in the stands. That year we adopted Chris Coste.

It was David who first noticed Chris’s, er, unique background. Like most baseball fans, we’re a bit obsessive about statistics. A couple of weeks before our trip, David called me to tell me about the “real life Crash Davis.” Chris was the middle-aged minor-league sensation who had been hitting the cover off the ball since . . . well, basically forever.I loved everything about this guy. He’d spent 12 years in the minors or independent leagues. (If you don’t know, that’s about 3 lifetimes.) Chris is a catcher (David and I both caught, and if God plays baseball you can bet he’s also a catcher). He had never played a single game in the show. And (most amazingly) he was 33 years old.

As many of you might remember, I was dealing with some personal problems during that Spring Training. And yes, that 33-year-old player was the author of this book - Chris Coste. To say I've got a soft spot for this guy is a huge understatement.

Chris has also been very kind to me personally, while I was in Afghanistan I received an email from Chris. David wrote him during the 2007-playoff race to tell him how much I lamented that fact that my vacation in Afghanistan wouldn't permit me to see (personally) Chris play in the post season. Chris took the time to write me an email to wish me well and tell me that he'd be rooting for me, while I was rooting for him. And, frankly, that's just awesome.

Oh, and any book with a forward by John Kruk is worth reading.  This is a good story with a feel good message. And if you don't get a little teary reading it, you just don't have a heart.

 

50-Book Challenge: Making Your Case

The second book in my 50-book challenge is Making Your Case by Associate Justice Antonin Scalia and Bryan A. Garner. To say that this book made a splash in the legal community is a bit of an understatement - helped in large part by Scalia's interview on the television show 60 minutes. And though neither author can (or should) expect the same reader response as J.K. Rowling, it’s fair for me to say that both of these authors are generally considered to be at the pinnacle of their respective fields. Justice Scalia is in an elite club of only ten living members and Bryan Garner’s peer group – though less influential – might even be smaller.

Not much in this book, however, breaks new ground. But it's worth a careful read because the advice contained in its pages is good and often ignored. This book represents a well written discussion of modern rhetoric in our common-law system. As the authors note in their foreword, “Our purpose is to make the best earlier advice – with perhaps a few suggestions of our own – readily available to the modern practitioner and to adapt it to the circumstances of modern American litigation.”

To that end, the authors focused on the basics: General Principles of Argumentation, Legal Reasoning, Briefing, and Oral Argument. A reader can easily perceive in this book a plea from Justice Scalia and Mr. Garner to lawyers: Please start practicing competently! If one reads this book carefully, and one heeds the authors’ advice, the advocate’s performance will improve, which means the lawyer will be more persuasive, which means the clients get better service, which means the lawyer does a better job. And we all want that because in the eternal words of Ted Nugent, “Make yourself valuable to the world and the world will reward you.”

At a more basic level: If you're a lawyer, and you're looking for good advice on written and oral advocacy, studying guidance from Justice Scalia and Mr. Garner is a pretty solid start.

What's it like to be a juror in a high profile trial? Ask Emily Steel.

I've always wanted to serve on a jury. I suppose that wish comes from many different experiences: Twelve Angry Men, my father being a judge, me becoming a trial lawyer. Unfortunately, I won't have that chance anytime in the next 20 years or so - and I might never get that chance.

I must live vicariously, which is why I like this article. Wall Street Journal reporter Emily Steel was a juror on the Jack Jordan trial (otherwise known as the Uma Thurman's stalker trial). The article is an interesting look into the jury's deliberation.

As I read the article I was surprised that the 12-person jury included, along with Ms. Steel, two lawyers. I was also a bit curious about that fact that one of the lawyers seemed to be giving legal instructions to the jury. Ms. Steel wrote:

Then we returned to the stalking charge. Our discussions began to circle again around the same points. We broke the law down into pieces.

The first point was obvious: Were Mr. Jordan's actions clearly directed at Ms. Thurman? Obviously, they were. But did he have a legitimate purpose -- other than to hound or intimidate her -- to come to her movie set, knock on her door and send her note after note?

Eleven jurors agreed that he didn't have any business contacting her. But we had to reach a unanimous decision.

Again, we turned to the law. One juror maintained a dissenting view. He felt that while Mr. Jordan's actions were inappropriate, they didn't seem to cross the line into criminal behavior. However, after reading the judge's instructions again, he finally agreed: Mr. Jordan had no legitimate purpose in his relentless pursuit of Ms. Thurman.

But I had a question. The charge was for the period from May 1, 2005, until Aug. 17, 2007, but Mr. Jordan's obsession wasn't pushed over the edge until August last year. Could we say he was guilty of the stalking charge, if he wasn't stalking her for that entire period?

One of the lawyers on the jury said that his behavior wasn't to be interpreted in a vacuum. Each of his actions during that period -- from the praying-girl card Mr. Jordan delivered at the movie set to the notes he pushed through her door -- was to be interpreted as one criminal act.

If that was the case, then I could say he was guilty.

At first blush, it appears that the lawyer's instruction to the other jurors was probably a correct statement of the law. But I have wonder if it fully agreed with the judge's instructions to the jury. I think if I were ever serving on a jury I'd be very careful to avoid a situation where the other jurors relied upon my greater knowledge of the law to determine how they would vote on guilt or innocence. And in the situation that Ms. Steel describes I'd be very likely to say, "I think the judge instructed us to consider all of the defendant's actions between May 2005 and August 2007 together in order to determine if he was stalking her. But don't rely on my interpretation. If you have any questions about how to apply the facts to the law we should ask the judge to clarify his instruction."

50-Book Challenge: Why New Orleans Matters

My friend Rachel recently told me that typical lawyers are goal orientated people. So, with that theory in mind, I've decided to engage in the 50-book challenge. My goal is to read 50 books in the next 52 weeks. (And I'm not counting Gumbo Goes Downtown, Captain Flinn and the Pirate Dinosaurs, Henry and the Buccaneer Bunnies, Green Eggs and Ham, Harry Potter and the Chamber of Secrets, or anything else that I'm reading to my two scurvy adventures-in-training). 

Instead, I thought I'd begin with a book that hits closer to home. My first choice was Why New Orleans Matters by Tom Piazza.

I picked up my autographed copy at the Octavia Book Store - an old haunt. (Everything a book store should be, and everything Barnes & Nobel isn't.)

There are only a few cities in this world that continue to be "home" even after one has moved away. These cities never fully turn you lose. And in much the same way that your first love stays with you, a part of your soul always remembers the look, smell, feel, and emotion that's associated with that special history. Either through experience or anecdotal evidence, we already know some of those precious places: Paris, New York, Barcelona, Venice, San Francisco. You don't just live in these cities; these places start to live in you.

In Why New Orleans Matters, Tom explains why - beyond all shadow of a doubt - New Orleans falls into that elite group of cities, even if both time and space have far removed you from the smell of jasmine and dewy moss. At its essence, this book is a love letter. So if New Orleans is your home, don't be surprised if this book causes you to smile while your heart aches.

Humorous Advertisement for Government Appellate Job

The Navy is seeking to hire a civilian attorney to represent the government in court-martial appeals. Here is the link.

Hint to the government: If you're going to post a job listing with the goal of enticing an appellate attorney to come work for you, perhaps you should proofread the advertisement. Oh, and if a military attorney calls your point of contact to alert you to the errors in your advertisement, you might think about correcting those errors.

This position is located in the Department of the Navy's Office of the Judge Advocate General, Appellate Government Division.  Principal duty and responsibility to serve as a complex-appellate-litigation specialist.  Incumbent (?) provides expert legal counsel, advice, and guidance in extremely complex and sensitive cases.  Utilizes creative and an extremely high degree of legal acumen (as opposed to a low degree of legal acumen?) to address numerous military-justice issues.  Incumbent is responsible for prosecuting the appeal of extremely complex cases with potential long-term or signification impact on the Government's interest, and cases where the death penalty has been adjudged against an appellant (I'm glad the death penalty isn't adjudged against the government). Incumbent will represent the Government in such cases before the Navy-Marine Corps Court of Criminal Appeals (NMCCA), the United Status Court of Appeals for the Armed Forces (CAAF), and the Supreme Court of the United States, as directed.  Incumbent will prepare persuasive appellate briefs in accordance with the applicable rules of the court and various legal resources to ensure the Government's interest are zealously safeguarded.  Incumbent will present oral arguments before the appellate courts and work with trail counsel to preserve issues for appeal.  Incumbent will also be responsible for preparing any applicable motions, such as requests for extraordinary relief, certification requests, and other pleadings and position papers deemed necessary in support of the Governments' (how many governments are we talking about?) interests.  Incumbent will also answer time-sensitive-military-justice questions from field activities regarding ongoing trials.

Appellate Advocate of the Day: Roger Phipps of New Orleans!!!

There's no reason to beat around the issue - the U.S. Fifth Circuit's description is more than adequate. Read the excerpt below to see why Roger Phipps is my Appellate Advocate of the Day. (If you want the whole case, it's Hartz v. Administrators of the Tulane Educational Fund, et al.)

Finally, and completely separate and apart from the issues raised on appeal, we would be remiss if we did not comment on the conduct of Roger Phipps, counsel for Hartz, during oral argument in this case on Tuesday, March 4, 2008. Phipps’ conduct towards the Court during argument was unprofessional. Even more serious was his admission that during his work on the case (including his preparation for argument), he had not read a key Supreme Court case. His cavalier disregard for his client’s interest and for his obligation to the Court was both troubling and disgraceful.4 Accordingly, we are ordering Phipps to provide his client, Hartz, a copy of our opinion immediately after it is released. In order to ensure compliance, we are further directing him to supply our Court with proof of service.

Here's footnote 4:

4 An example of Phipp’s interaction with the panel is included below.

Phipps: . . . so that’s about all I have to say, Your Honor. I don’t have anything other than that. You know, my client lives in Chicago. We communicate occasionally on the phone, she sent me the documents. And um, she’s a doctor. She continues to earn a living, and she’s generally unavailable if you call her because she, she’s sort of a traveling doctor.

Judge: That’s not much of thing you come in here and tell us, I guess.

Phipps: Well, my attitude is, the [district court] judge got it right . . . . And as far as whether even Ricks should apply, I don’t think it should.

Judge: What do you do about Morgan?

Phipps: I don’t, I don’t, I don’t know Morgan, Your Honor.

Judge: You don’t know Morgan?

Phipps: Nope.

Judge: You haven’t read it?

Phipps: I try not to read that many cases, your Honor. Ricks is the only one I read. Oh, Ledbetter, I read Ledbetter, and I read that one that they brought up last night. I don’t know if that’s not Ledbetter, I can’t remember the name of it. Ricks is the one that I go by; it’s my North star. Either it applies or it doesn’t apply. I don’t think it applies.

Judge: I must say, Morgan is a case that is directly relevant to this case. And for you representing the Plaintiff to get up here—it’s a Supreme Court case—and say you haven’t read it. Where did they teach you that?

Phipps: They didn’t teach me much, Your Honor.

Judge: At Tulane, is it?

Phipps: Loyola.

Judge: Okay. Well, I must say, that may be an all time first.

Phipps: That’s why I wore a suit today, Your Honor.

Judge: Alright. We’ve got your attitude, anyway.

Mr. Putin is a member of SPECTRE

Prettier than Napoleon has uncovered the truth: VladImir Putin is an evil member of SPECTRE, sworn enemy of James Bond and freedom-loving people everywhere!

Compelling proof includes the smoking-hot contortionist who effortlessly distracts the public from Mr. Putin's plan to control the world.

Contractions in legal writing?

Over at The California Blog of Appeal, Greg May asked his readers whether it's appropriate for legal writers to use contractions in their work. As you might expect, the comments show a significant split of opinion. Here are a few of the more interesting comments:

George Lenard writes:

This seems to me to be a situation that calls for a conservative approach. I see no downside to the increased formality of avoiding contractions. There is a downside to using them, however, because many judges and senior attorneys learned the rule that contractions should not be used. So one risks being viewed by such readers as not knowing having been educated to write properly.

In a somewhat cheeky manner, Roy Jacobson responds:

From the comments thus far, the argument seems to be hinging almost entirely on formality vs. informality. Can we conclude from this that formality trumps readability in legal circles? ;-)

And though he supports using contractions, Wayne Schiess says that junior attorneys should avoid contractions because their supervising attorneys might not be so progressive:

I tell my students not to use contractions in briefs in the real world. Not because judges disapprove, but because senior attorneys do.

My own view is less conservative. Many highly respected publications use contractions–to superb effect. We lawyers ought to get on board. Contractions, if used wisely, can give the writing energy, crispness, and vigor. . . .

Not surprisingly, Ray Ward took the opportunity to plea (again) for attorneys to start writing like human beings:

I’d like to see all legal writers free themselves of superstitions like “No contractions!” and write in whatever manner is most readable and most persuasive. I’d like to see more individuality and more humanity in legal writing. So-called rules like “No contractions!” are what prevent many lawyers from writing like human beings.

Though I'm hardly in the same league as Roy, Wayne, or Ray, I also accepted Gary's invitation to announce my opinion. You won't be surprised to learn that I follow a keep-it-simple-stupid philosophy:

I once read (and I wish I could remember where) that one can identify good writers by whether or not their mouths move when they read. Probably, the reasoning is sound: Written words are a proxy for spoken words. When I write, whether it’s for a court or not, I put my writing through a read-aloud test. And if a contraction better fits the rhythm and flow of a sentence, I don’t hesitate to use it. I think that good writers should reject slavish devotion to rules such as “don’t use contractions in legal writing,” or “don’t begin a sentence with a conjunction,” or “don’t end a sentence with a preposition.” Good writers understand the guidelines and conventions of writing well enough that they can analyze their word and make an intelligent decision about using a contraction (or a passive-voice construction) in a particular sentence.

Out of curiosity, I did a very quick Lexis search of Supreme Court opinions:

• "But an occupant of a car who knows that he is stuck in traffic because another car has been pulled over (like the motorist who can't even make out why the road is suddenly clogged) would not perceive a show of authority as directed at him or his car." Brendlin v. California, 127 S. Ct. 2400, 2410 (2007).
• "This time, Fenwick's wife handled the bribe with a deftness lacking in the first attempt. Not only was Goodman (popularly called "Scum Goodman," see 9 Macaulay 32) an easier target, but Lady Fenwick's agent gave Goodman an offer he couldn't refuse: abscond and be rewarded, or have his throat cut on the spot." Carmell v. Tex., 529 U.S. 513, 528 (2000).
• "Of course they don't like it, but that sheds no light whatever on the point at issue. That 12 States favor no executions says something about consensus against the death penalty, but nothing--absolutely nothing--about consensus that offenders under 18 deserve special immunity from such a penalty." Roper v. Simmons, 543 U.S. 551, 611 (2005) (Scalia, J. dissenting).

And here are quotes from a few Supreme Court briefs:

• "When the plurality test is met, all nine Justices would support the outcome-the four Justices in the plurality, the four Justices in the dissent, and Justice Kennedy. Why shouldn't the outcome that has the support of nine Justices take precedence over the outcome that has the support of only five Justices?" Gerke Excavating, Inc. v. United States, 2006 U.S. Briefs 1331, *6 (Reply Brief: Appellant-Petitioner, June 15, 2007).
• "Since the government has raised the contribution limits, it has necessarily decided that the opponents of self-funding candidates can't be "bought" at the usual rate that it believes to apply." Davis v. FEC, 2007 U.S. Briefs 320, *19 (Amicus Brief: The James Madison Center for Free Speech, February 27, 2008).
• "Managers also help protect their clients from the "dark side" of Hollywood, including stalkers, extortionists, and embezzlers, and often serve in loco parentis, making sure the client makes it to the set on time, steering troubled clients into rehabilitation, organizing "drug interventions" for the ones who won't get treatment willingly, and keeping (or bailing) their troubled clients out of jail." Preston v. Ferrer, 2006 U.S. Briefs 1463, *16 (Reply Brief: Appellant-Petitioner, December 27, 2007).

As I said, I like to keep it simple. So, I the rule I'm adopting is: Write as best that you are able and hope you'll get lucky and write better than you are able. And if you think using a contraction will aid the readability of your writing, don't hesitate to use it.