Appellate Tips From Supreme Court Justices

    There is a cottage industry in America--continuing legal education courses, tapes, lectures, and books--which promises to teach both the experienced and novice appellate lawyer how to write a persuasive brief and how to make a winning oral argument. Some of these materials are specific to a particular court, while others offer generic advice which is applicable regardless of the jurisdiction in which the appeal will be heard.
    Some of the best material comes from appellate judges, although few can improve on Justice Robert H. Jackson's 1951 speech "Advocacy Before the United States Supreme Court," which can be found here. 
    Scribes, The American Society of Legal Writers, has just published in its journal interviews with eight United States Supreme Court Justices about appellate advocacy . The interviews are conducted by Bryan A. Garner, co-author with Justice Scalia of Making Your Case: The Art of Persuading Judges. 
    I have just started to make my way through the interviews--which run over 180 pages--and I will share the nuggets in future blog entries. You can access all the interviews here. A New York Times article on the interviews can also be found here.


Today's Decisions:  the United States Supreme Court issued four decisions today. In Chamber of Commerce of the United States of America v. Whiting the Court ruled 5-3 that the federal Immigration and Reform Control Act did not preempt Arizona's Legal Arizona Workers Act, a decision certain to add fuel to the controversy over whether states can enforce their own laws directed at immigrants. 
    U.S. v. Tinklenberg addresses the application of the federal Speedy Trial Act; Camreta v. Greene addresses when a party which has prevailed in a United States Court of Appeals can still seek review in the United States Supreme Court because it is displeased with one aspect of the Court of Appeals ruling; and Fowler v. United States provides an interpretation of the federal witness tampering statute, 18 U.S.C. § 1512(a)(1)(C).    

Strauss-Kahn and Bail: Getting It Right

    On Tuesday I wrote that I was surprised that Dominique Strauss-Kahn was not released at his arraignment in the New York City Criminal Court "on a high bail with serious restrictions on his movements." I also said that "other judges will look at the matter."

    Yesterday another judge did look at the matter: Strauss-Kahn's lawyers made a motion for bail review in the Supreme Court, New York County, and the judge there got it right. He ordered Strauss-Kahn's release on high bail with serious restrictions on his movements.

    Bail is, after all, designed to assure the defendant's future appearance in court. The decision of the first judge to remand Strauss-Kahn without bail was a judicial determination that no conditions could be set to assure his future appearance in court. This is implausible, as the release on bail in the past of high profile defendants has shown. One of the conditions set for Strauss-Kahn's release is virtual house arrest with security paid for by him to keep him put. The press is reporting that it will be the same security firm which watched over Bernie Madoff when he was released on bail by a federal judge.

    It was also reported in court yesterday that the grand jury voted to indict Strauss-Kahn on various sexual assault charges, although it appears that the indictment has not yet been formally filed. In New York the grand jury consists of 16 to 23 members, and a vote of at least 12 is needed for an indictment. 

    The fundamental criticism of grand jury proceedings is that they are secret, and there is no judge or representative of the accused present. New York has sought to address the criticism by requiring a judge, upon request of the defendant, to make an in camera inspection of the grand jury minutes to determine whether there was sufficient evidence before the grand jurors to indict the defendant. See, CPL § 210.30. The required judicial inspection of the minutes will generally result in a judicial ruling of sufficient evidence to indict. But it is not a pro forma proceeding: indictments have been dismissed.

   As I noted on Tuesday, in light of the Strauss-Kahn "perp walk" and the denial of bail, there has been widespread overseas criticism of the criminal justice system in New York. The order granting bail should blunt some of this criticism.           

Strauss-Kahn, the "Perp Walk," and Bail

    The arrest of Dominique Strauss-Kahn, managing director of the International Monetary Fund, on charges that he sexually assaulted a chambermaid in his hotel room on West 44th Street in Manhattan, will throw an international spotlight on the criminal justice system in New York.
    Strauss-Kahn is a player on the world stage. As head of the I.M.F. he has been at the forefront of the financial bailouts for Greece, Portugal, and Ireland. He was widely expected to step down from his I.M.F. post this summer to seek the Socialist party nomination for the president of France in elections to be held in 2012. He is so well known that newspaper headlines in the foreign press simply refer to him as DSK. The case is a magnet for press attention: a world figure, salacious details, and claims that political intrigue is behind events leading to the arrest. 
    In the circumstances, the American legal system, and the New York City system in particular, will be put under an intense international microscope. Some recent high profile cases in New York which have garnered international attention have involved financial scandals whose courtroom presentations were affected by a maze of sometimes abstruse market and banking data. The Strauss-Kahn case, however, has a simple story line--what allegedly occurred in a hotel room--which everyone can follow and about which everyone will have an opinion.
    I was interviewed for background on the American legal system by France 24, an internet and television enterprise based on the CNN model. Two matters immediately were raised: the police escorting a handcuffed Strauss-Kahn before the waiting press photographers--the "Perp Walk"-- and the bail system. From the European perspective the Walk seemed intentionally designed to humiliate the accused and to plant "Guilty" in the minds of members of the public who may end up on the jury months later. The view was expressed that Strauss-Kahn had been singled out for this treatment but I assured the interviewer, as any reader of the tabloid press knows, that this sort of display of the accused in high profile cases is common.
    There has been litigation over perp walks. In Lauro v. Childs, 219 F.3d 202 (2nd Cir. 2000), the United States Court of Appeals for the Second Circuit ruled that a "staged perp walk"--one in which the accused is displayed solely for the benefit of the press and which serves no legitimate law enforcement purpose--violates an individual's Fourth Amendment right to be free of unlawful seizures. But in Caldarola v. County of Westchester, 343 F.Fd 570 (2nd Cir. 2003), the court held that the perp walk of a former corrections officer--a videotape of the walk was distributed to the press--served the legitimate governmental purposes of informing the public of efforts to root out wrongdoing by public employees, enhancing the transparency of the criminal justice system, and deterring others from wrongdoing.
    There is also foreign disbelief that at his arraignment Strauss-Kahn was denied release on bail. I, too, was surprised that he was not released on a high bail with serious restrictions on his movements--surrender of his passport, electronic monitoring, and so forth. But bail conditions do change as cases progress through the system: other judges will look at the matter, and appellate review of bail is available.
    So far, therefore, in two ways the New York criminal justice system has come up short in foreign eyes : the perp walk and the flat denial of bail. This sort of close scrutiny by those not familiar with the system nor beholden to it will continue, as it should in a free society.      

The Race to the Supreme Court

    Ever since the passage of the Affordable Care Act in 2010 there has been a common understanding that the United States Supreme Court will have to determine the constitutionality of the law.
    Litigants have not disappointed us. According to the Department of Justice, 31 lawsuits have been filed across the country challenging a law which President Obama made the centerpiece of his first years in the White House. These cases are starting to reach the United States Courts of Appeals, and from there it is only a certiorari petition away from the Supreme Court which has not been in a hurry to hear them: the Court denied a request from the Attorney General of Virginia that the Court invoke a rarely used procedure to allow Virginia to skip over the United States Court of Appeals and go directly from a United States District Court to the Supreme Court.
    So this morning Virginia and another party challenging the law found themselves instead in the United States Court of Appeals for the Fourth Circuit in Richmond, Virginia. The court was long seen as the most conservative federal circuit court, but appointments by President Obama have made it more evenly divided ideologically. 
    The central issue in most of the challenges to the statute is the claim that Congress does not have the authority under either the Commerce Clause or its taxing power to require that people obtain health care insurance. In the cases argued this morning one District Judge ruled that the insurance provision is constitutional, while another District Judge ruled that it is not. In June, the United States Courts of Appeals for the Sixth and Eleventh Circuits will also hear oral arguments in cases challenging the statute. 
    The two cases argued this morning are Liberty University, Inc. v. Geithner and Commonwealth of Virginia v. Sebelius. A New York Times article on the cases working their way up to the Supreme Court can be found here. 

Law in the Movies: The Lincoln Assassination Trial

    If you think you have tough cases consider this: A long and bloody civil war is over; the leader of the winning side is assassinated; those alleged to be involved in the assassination plot are sympathetic to the losing side; the tribunal impanelled to try the alleged conspirators consists of army officers grieving the loss of their commander-in-chief; and the defense counsel is a former member of the army on the winning side of the civil war
    The trial, of course, is of those charged in the plot to assassinate President Abraham Lincoln after General Robert E. Lee surrendered to General Ulysses S. Grant at Appomattox Court House in Virginia.
    The lawyer was Frederick Aiken who represented Mary Surratt, one of the alleged conspirators, and the center of Robert Redford's movie The Conspirator.
    Surratt owned the Washington boarding house where the conspirators met, and the movie argues for her tenuous connection to the conspiracy. The film apparently hews to the trial record. 
Inevitably, however, a film script will eliminate many details. I thought the movie a bit flat dramatically, although it can be argued that the film's strength is that it lets the record speak for itself. 
   The film implicitly raises contemporary issues which arise in the wake of September 11, and I suspect that was the director's intent. How does a public trauma such as the assassination of a president or a violent attack on the United States affect the legal system's ability to render fair and impartial judgments? Should these matters be tried by military commissions or civilian juries? A postscript to the film reports that Mary Surratt's son was tried by a civilian jury, the jury was hung, and he was released--a very different fate from that meted out to his mother Mary.
    Historians have rightly focused on the political effects of Lincoln's assassination while the legal aftermath receives little attention. For a large audience The Conspirator will lift the trial from the obscurity it does not deserve.  It is a worthwhile and informative trip to the local movie house for lawyer and nonlawyer alike.   

Access to the New York Court of Appeals

Access to the New York Court of Appeals, the state's highest court, is limited. In criminal cases, except for a person sentenced to death, no party--neither defendant nor prosecutor--has a right to appeal to the Court. Instead, permission to appeal must be granted by a Justice of the Appellate Division, or a Judge of the Court of Appeals.
In civil cases, there is a somewhat greater right to appeal, most commonly when there are two dissents on the law in the Appellate Division. See, CPLR § 5601. Otherwise, civil litigants must secure permission to appeal from either the Appellate Division or the Court of Appeals itself, an endeavor informed by often abstruse but very important notions of "finality" and "appealability."  See, CLPR § 5602.
    But whether it is a criminal case or a civil case the rule of thumb is the same: it is difficult to get a case into the Court of Appeals.    
    The Clerk of the Court of Appeals has just issued his annual report for 2010, and the report confirms the rule of thumb. In civil cases there were 1,045 motions seeking leave to appeal and the Court granted only 6% of the requests. This was down from the 7.2% grant rate in 2009.
    In criminal cases there were 2,220  applications for permission to appeal, and the Court granted only 108--or 4.9%. This is a considerable increase from the 2009 grant rate of 3.4%, and the 2% grant rate in 2008. Since his appointment in 2009, Chief Judge Jonathan Lippman has publicly spoken of the need for the Court to hear more criminal cases. See, Full Court Pass, May 5, 2009. The increased number of grants in criminal cases seemingly reflects his success in convincing other members of the Court of the importance of hearing criminal appeals.
    The message of the Report is clear: if a party does not prevail in the Appellate Division, there is simply a very limited opportunity to change the outcome by securing further review in the Court of Appeals. The full Report can be found by going to the Court of Appeals website here.     

Supreme Court Hears Final Oral Argument

    The United States Supreme Court heard its final oral argument of the current Term yesterday. The case, Nevada Commission on Ethics v. Carrigan, raises the question whether public officials have any First Amendment protection for the votes they cast.    
    Through today the Court has issued 39 opinions this Term. As is often the case,  many of the major cases of the Term will be decided in May and June.


Note: Because of other commitments, including a series of deadlines for appellate briefs, I had to put Full Court Pass on the back burner for two months. I thank readers for their inquiries and concerns. I also was just informed that I have been selected a "Super Lawyer" for appeals in 2011, an accolade my peers have accorded me since 2006. I appreciate the honor.     

Miranda Comes to France

Since the 1966 decision in Miranda v. Arizona, 384 U.S. 436, an individual about to undergo custodial interrogation must first be given the now-famous Miranda warnings advising him that he has a right to remain silent, that anything he says can be used against him, and that he has the right to the presence of counsel during the interrogation.
    When Miranda was decided it caused an enormous controversy, but today it is part of the fabric of American society. In Dickerson v. United States, 530 U.S. 428 (2000), the Supreme Court declined to overrule Miranda, and while a majority of the Court has whittled away at Miranda, its basic precepts--that people undergoing the pressure of a custodial interrogation by the police must be warned of their right to remain silent and their right to counsel--remain intact. 
    It appears that Miranda has crossed the Atlantic to France. Under traditional French garde à vue--custody--an individual undergoing police interrogation had the right to see a lawyer for the first 30 minutes, but then the police could question the suspect without his attorney for 48 to 96 hours. 
    A new law passed by the French parliament changes this: now the individual must be told of his right to remain silent and of the right to the presence of counsel during the interrogation. While the parliament wanted the new law to go into effect in June, a French court ruled that it must go into effect immediately.
    An account of the new law can be found here. 

A Busy January for the Supreme Court

    Since the start of the new year the United States Supreme Court has been busy. Through today, the Court has issued five full rulings in January. 

    In Mayo Foundation for Medical Education and Research v. United States, the Court ruled that the wages paid medical residents are subject to Social Security withholding. The opinion can be found here.

    In Ransom v. FIA Card Services, the Court determined when a debtor in bankruptcy can deduct from his disposable income certain automobile expenses. The opinion can be found here.

    In two habeas corpus cases, Harrington v. Richter and Premo v. Moore, the Court reversed determinations by the United States Court of Appeals for the Ninth Circuit granting the writ in favor of state inmates. The cases address when a federal habeas court can determine that a state court ruling is an unreasonable application of federal constitutional law. Harrington can be found here, and Premo can be found here.

    Finally, in National Aeronautics and Space Administration v. Nelson the Court ruled that even assuming there is a constitutional privacy interest in avoiding disclosure of personal matters ("informational privacy"), NASA did not violate that privacy interest with the detailed background questionnaire required of the employees of private government contractors.    

End of the Year: No Top 10 from Me

    At the end of December it is fashionable to select the top events of the past year: the best sporting events of 2010, the best motion pictures, the most important political events, and the like.
    I will, however, avoid the temptation to select the top appellate decisions of 2010. The prospect of making such a selection is unwelcome: each jurisdiction across the United States has its own candidates, as does each area of law. A decision such as Citizens United v. Federal Election Commission, 130 S.Ct. 876 (2010), which addresses campaign financing, has an obvious importance to all of us, but less well-known rulings may still be of enormous importance to particular groups in society or to a certain segment of the Bar. 
    In addition, the terms for appellate courts are often not coterminous with the calendar year. For example, the Term of the United States Supreme Court begins in October and generally concludes at the end of June the following year. The sitting of the New York Court of Appeals, the state's highest court, is similar.
    So rather than wade through many appellate rulings, I will simply say that the most important appellate event of 2010 was the appointment of Elena Kagan to the United States Supreme Court. Supreme Court appointments have a very long term effect, and that effect will be even more pronounced because of the ideological divide on the Court. Justice Sonia Sotomayor has been on the Court for about 16 months but already, as a recent New York Times article noted, her presence is felt. That article can be found here.
    It is, of course, far too soon to measure Justice Kagan's impact on the Court and, therefore, the nation. Because I believe it will be significant and long-term, it receives my vote for the top appellate event of 2010.       

A Tie Vote in the Supreme Court

    When Elena Kagan was nominated for the United States Supreme Court some opposed the nomination on the grounds that as a Justice she would be required to recuse herself from all the cases with which she had contact while serving as Solicitor General of the United States. This could lead, it was argued, to 4-4 ties in some of these cases. 
    At the time, and now, I considered such opposition as simply conservatives looking for some ground to oppose a liberal nominee. The other eight justices will not grant the writ of certiorari in most of the cases with which she may have contact as Solicitor General, and within a reasonable period of time there will simply be fewer and fewer cases reaching the Court with which she had any contact during her tenure as Solicitor General.
    When there is a tie vote in the Supreme Court the Court simply announces that the Court is evenly divided and affirms the lower court decision which is under review. The decision has no precedential value; the affirmance is issued to afford finality for the litigants in that particular case. 
    Yesterday in Costco Wholesale Corp. v. Omega, S.A., a copyright case, Justice Kagan did recuse herself and an evenly divided Court affirmed the decision of the United States Court of Appeals for the Ninth Circuit. As is usual in such cases the brief Per Curiam opinion does not identify which Justices were on which side of the 4-4 tie. The copyright and patent bar will undoubtedly be rife with speculation over how each Justice voted. The opinion can be found here. 
    While Justice Kagan has recused herself from other cases the Court has already heard this Term, the possibility of a rare tie vote is hardly grounds to deny a nominee a seat on the high court.


The New York Court of Appeals: the Court of Appeals released opinions in six cases today, all criminal cases. The cases address either the constitutionality of New York's procedure for determining whether a defendant is a persistent felony offender, or whether in a particular instance multiple sentences must run concurrently with each other or consecutively to each other. Taken together the six cases contain an almost dizzying lineup of judges on different sides of the issue. The cases can be found here.

The Law and Technology

    It is always fascinating to watch the law play catch-up with technological change.
   Under New York's Statute of Frauds a contract for the conveyance of real property is not enforceable unless it is in writing. General Obligations Law § 5-703. There is an extensive body of case law on what constitutes a "writing" which satisfies the Statute of Frauds.
    Last week the Appellate Division, First Department, addressed the question of whether an e-mail can constitute a writing which meets the requirements of the General Obligations Law. Justice David Friedman's careful analysis concludes that it can. I recommend the opinion as a good example of how courts seek to fit new technologies into existing law. The ruling, Naldi v. Grunberg, can be found here .  

Coming Up in the Supreme Court: Protests at Military Funerals

     The United States Supreme Court will hear oral arguments next week in eight cases which will address matters of bankruptcy, cross-examination at a criminal trial, federal sentencing, and the liability of prosecutors for failure to disclose exculpatory evidence to a defendant.
     The most interesting case for me will be Snyder v. Phelps which addresses protests at military funerals. 
     After Marine Lance Corporal Matthew A. Snyder was killed in Iraq his family arranged for a private Christian burial at a Catholic Church in Maryland.
     Reverend Fred W. Phelps, a pastor of a Baptist Church in Kansas, who has protested at other military funerals, decided to protest at the Snyder funeral. Phelps espouses the view that God hates America because it tolerates homosexuality, particularly in the armed services. 
     The day of the funeral Phelps, two of his daughters, and four of his grandchildren carried signs at a distance from the funeral with messages such as "Pope in Hell," "God Hates the USA," and "Thank God for dead soldiers." After the funeral, on his website, Phelps accused the Snyder family of teaching their son irreligious beliefs. 
     The soldier's father sued Phelps and his daughters for intentional infliction of emotional distress, intrusion into their private event, and conspiracy. A jury awarded him $5 million, but the United States Court of Appeals for the Fourth Circuit reversed the judgment, concluding that funeral protest speech is protected by the First Amendment. 
     The case raises fascinating issues such as a conflict between the First Amendment's freedom of speech and freedom of religion; whether the protection the Supreme Court has accorded speech directed at "public figures" should apply when, as here, the speech is directed at private individuals at a private funeral; and whether those attending a private funeral are a "captive audience" who should be accorded some protection against unwelcome speech by uninvited individuals.
     The case will be argued on Wednesday, October 6.      

The Summer Is Over

According to the calendar summer was over a week ago, but for me the summer came to an end yesterday when the United States Supreme Court announced that it had granted writs of certiorari in fourteen cases.

The summer is different for appellate lawyers and appellate court watchers. The Supreme Court takes a three month recess at the end of June, the New York Court of Appeals does not hear oral arguments in July and August, and in New York City the Appellate Divisions for the First and Second Departments also do not sit for oral arguments. 

Summer does begin to fade early in September when the Court of Appeals and the Appellate Divisions resume oral arguments, but for me the summer is over when the Supreme Court is back in session. The Court traditionally reconvenes the first Monday in October, but yesterday it jump started the new Term by issuing decisions on the many petitions awaiting its attention. 

On Monday, October 4, the Court will hear oral arguments in three cases, followed by three cases on Tuesday, and two on Wednesday. The summer is now officially over.

Update on Kagan Nomination

The hearings of the Senate Committee on the Judiciary into the nomination of Solicitor General Elena Kagan to the United States Supreme Court concluded on July 1. There is a consensus that nothing said at the hearings will derail her nomination.

The Senate committee is in recess this week. It will meet again on July 13. First on the agenda is the Kagan nomination. It is expected that the nomination will be voted out of committee and head for a vote by the full Senate.