Circuit Splits

There’s a split over whether a certificate of appealability is needed to appeal the denial of a Rule 60(b) motion. See here at 6 & n.3.

There’s a split over whether a plaintiff can dismiss all claims against just one of multiple defendants under Rule 41(a)(1)(A). See here at 2.

There’s a split over whether parties can use Rule 30(b)(6) depositions to explore facts underlying legal claims and theories. See here at 2 n.1.

There’s a split over whether all defendants must provide written consent within 30 days, and what form that consent must take, for removal under 28 U.S.C. § 1446. See here at 8-9.

And (surprise, surprise) there are splits in an ERISA case. See here at 8 & 12 n.9.

Questions Presented

Folks on #AppellateTwitter were talking about how to write good QPs recently, and I’m now finally getting around to posting some samples. A good QP will give the appellate court a clear sense of the issue that needs to be decided, while also framing the question in a way that suggests a particular answer. In most cases at the intermediate court of appeals, you can frame the issues as yes-or-no questions that seem to have an obvious answer that you want the court to reach. For example:

Did the district court err when, on a Rule 12(b)(6) motion, it ignored [Appellant’s] allegations and made factual findings to dismiss [Appellant’s] claims as untimely, even after [Appellant] presented evidence to contradict the court’s factual findings?


Did the state district court properly dismiss [Appellant’s] claims under res judicata after the same claims, based on the same nucleus of facts, had been previously dismissed by the federal district court?


Did the district court err by finding [Appellant’s] alleged prior breaches were material, when [Appellee] presented no evidence of materiality and only conclusory allegations that the technical breaches “mattered”?

The answer to the first question seems like it ought to be “yes,” so that’s a good QP for the appellant’s brief. The answer to the second question seems like it ought to be “yes,” too, which makes it a good question for the appellee’s brief. And the answer to the third question also seems like it ought to be “yes,” so it’s another good question for the appellant’s brief.

But note: the answer to your QP does not have to be “yes.” These QPs all happen to be framed for a yes answer, but you could easily frame them so that the seemingly obvious answer is “no.” You want the QP to suggest an obvious answer that goes your way, but it doesn’t matter whether the answer is yes or no. As long as it goes your way.

Some people prefer QPs in “whether” form, meaning they are presented in statement form instead of in question form. I go back and forth on this, and frankly I have no strong preference; I will use whichever form I happen to be in the mood to use on drafting day. The QPs above can be easily rewritten in “whether” form as follows:

Whether the district court erred when, on a Rule 12(b)(6) motion, it ignored [Appellant’s] allegations and made factual findings to dismiss [Appellant’s] claims as untimely, even after [Appellant] presented evidence to contradict the court’s factual findings.

Whether the state district court properly dismissed [Appellant’s] claims under res judicata after the same claims, based on the same nucleus of facts, had been previously dismissed by the federal district court.

The key here is to be sure you don’t use a question mark when posing the QP in “whether” form. In “whether” form, the QP is actually a statement of the issue (i.e., “The issue is whether…”). It’s not actually a question in that form, so it shouldn’t be punctuated like one. And this raises another relevant point: you should make sure your heading matches your QPs. If your heading says “Statement of Issues” then you should probably state your QPs in “whether” form. And if your heading says “Questions Presented” then…well, you should probably present questions. If your heading says “Issues Presented”…well, then take your pick I guess. (I’m realizing as I write this that I probably have not always made sure that my heading matches my QP form, so I hereby beg forgiveness for past transgressions.)

As some noted when the QP discussion arose on Twitter, there’s an important exception to the usual goal of framing the QP as though there’s an obvious answer. That exception arises when you’re petitioning a court that has discretionary review. Typically, a court with discretionary review (e.g., the U.S. Supreme Court or the Texas Supreme Court) will grant review only in cases that present issues that are both important and undecided, which is another way of describing cases that present “hard questions.” As petitioner, you don’t want a QP that seems to have an obvious or easy answer, or it might sound like your appeal is merely about error correction (and thus not important enough for discretionary review).

There seems to be a split among SCOTUS experts and practitioners, over the best approach for presenting a question to SCOTUS. One approach is to spend a paragraph or two (or even three) setting up the context for the question, before presenting the question, so that the QP takes up half or even all of the page. (Even with this context-rich approach, your QP should never cross onto a second page, in my opinion.) The other approach is to simply present the question and develop the context in the body of the petition. I tend to favor the latter approach—but plenty of SCOTUS practitioners with more experience have embraced the former. (And now I’m prompted to wonder whether Adam Feldman has ever looked at how frequently each QP style is used, and by whom, and whether one style has a better grant rate than the other—that would be very interesting to know!)

Anyway, the main point is that—whether you use a context-rich approach or not—your QP should be a little more open-ended when you’re petitioning for discretionary review. The actual QP (minus the context that might precede it) might looking something like this:

Whether the district court has jurisdiction to expunge an individual’s criminal record on equitable grounds.


May a criminal defendant’s appeal be dismissed as knowingly waived under the plea agreement, when there is no transcript of the Rule 11 colloquy that is designed to determine whether the defendant knowingly entered the plea agreement?


Should the Court’s decision in [case name] be overruled?

In each of these cases the QP might be prefaced by context or not. Either way, the question is still typically posed as having a yes-or-no answer. But it is less clear (from the question itself) what the answer might be. This is by design. As a petitioner asking the court to grant review, you want the question to seem both important (i.e., in need of resolving) and difficult (i.e., not already resolved by the lower courts), so that it warrants the higher court’s involvement.

Typically, this will apply only to the petitioner. The respondent will usually want to respond as in any other appeal in the intermediate court—by trying to reframe the QP so that it sounds like the question is actually pretty easy and the lower court has (obviously) gotten it right.

Circuit Splits

There’s a split over who has the burden to establish whether a contractual jury waiver was knowing and voluntary. See here at p.27.

There’s a split over whether the statute of limitations in section 7703(b)(2) is jurisdictional (i.e., does it deprive courts of jurisdiction to review MSPB decisions). See here at p.12.

Courts disagree about whether a criminal defendant’s identity can be suppressed under the Fourth Amendment’s exclusion remedy. See here at p.14.

There’s a split over whether federal or state law should be applied to determine the validity of a forum-selection clause. See here at p.4-5.

There’s a split over whether an ALJ must examine conflicts between the Dictionary of Occupational Titles and a vocational expert’s testimony, even if no party identifies a conflict during administrative hearings. See here at p.15 n.8.

And there’s an intra-circuit split among district courts in the Fifth Circuit, over whether pro se litigants can be subject to sanctions under section 1927. (The majority says no.) See here at p.4.

RLA Update

The Supreme Court has not decided a case involving the Railway Labor Act since 2009. Over the past two years (2016 & 2017), the federal courts of appeals have decided 22 cases involving the RLA. Here are some highlights:

  • In Herrera v. Command Security Corp., 837 F.3d 979 (9th Cir. 2016), a union sued an employer, alleging RLA violations. The Ninth Circuit found the employer unlawfully coerced and interfered with its workers’ rights; the union’s claim was “major” dispute; and employer’s refusal to mediate violated the RLA.
  • In Brotherhood of Locomotive Engineers and Trainmen v. Union Pac. RR Co., 879 F.3d 754 (7th Cir. 2017), and Brotherhood of Maintenance of Way Employees Division/IBT v. BNSF Railway, Inc., 834 F.3d 1071 (9th Cir. 2016), the circuit courts discuss the “major” vs. “minor” distinction in RLA cases (both finding the dispute at issue was minor).
  • In Pruter v. Local 210’s Pension Trust Fund, 858 F.3d 753 (2d Cir. 2017), former employees brought ERISA claims and state-law claims (for fraud and breach of contract related to collective bargaining agreement) against their union and pension plan. The Second Circuit held state-law claims were preempted by the RLA; ERISA’s 3-year SOL (not NLRA’s 6-mo SOL) applied to RLA claims; no evidence plan was arbitrary and capricious under ERISA.
  • In Alaska Airlines Inc. v. Schurke, 846 F.3d 1081 (9th Cir. 2017), the Ninth Circuit held that the RLA preempted the state labor department’s enforcement actions. But en-banc review was granted in June 2017 (no en-banc decision yet). This could be a big preemption/state-vs-federal decision. Maybe the next RLA case to get to SCOTUS?
  • Airline Serv. Providers Assoc. v. Los Angeles World Airports, 873 F.3d 1074 (9th Cir. 2017);
  • Cases involving attempts to appeal RLA arbitration awards: Sullivan v. Endeavor Air Inc., 856 F.3d 533 (8th Cir. 2017); Nat’l Railroad Passenger Corp. v. Fraternal Order of Police, Lodge 189 Labor Comm., 855 F.3d 335 (D.C. Cir. 2017) (cert. pet. filed; maybe the next RLA case to get to SCOTUS?); Douglas Walter Green v. Frost Brown Todd LLC, 2017 WL 6210784 (6th Cir. 2017); Spirit Airlines Inc. v. Assoc. of Flight Attendants-CWA, AFL-CIO, 644 F. App’x 684 (6th Cir.  2016).
  • And finally, here’s my favorite (read: least favorite) kind of decision from the Fifth Circuit, a per curiam affirmance with no opinion (i.e., “having reviewed the record, briefs, and argument, we affirm”): Serna v. Transport Workers Union of Amer.  AFL-CIO, 654 F. App’x 665 (5th Cir. 2016).

Rewriting Paragraphs

In a post a while back, I rewrote the opening paragraphs of a motion to demonstrate the decisions that are made in revising and editing legal writing. And because I come across lots of paragraphs (in motions, briefs, and opinions) that would benefit from revising or editing, I’ve decided to make this a regular thing: every once in a while, I’ll rewrite a paragraph here, to show how legal writing can be improved.

So here’s an opening paragraph as it appears in a reply brief that was filed in an appellate court (with party names changed):

Company presents two arguments in response to Strummer’s challenge that there is no direct causal link between Strummer and Company’s alleged lost profits. First, Company does not dispute that the jury was instructed to only consider damages from “lost profits” “and none other.” Second, Company also does not dispute that it’s expert witness presented only a lump-sum lost profits damages calculation. Third, Company does not dispute that the contract at issue with Strummer is an employment contract between Strummer and Company. Instead, Company presents two theories, arguing that Strummer is responsible for stolen inventory and for the departure of distributor Johnny Rotten, and suggests that the jury may have identified damages connecting Strummer to these events.

Now, here’s the rewrite:

Strummer has demonstrated there is no evidence of any causal link between his actions and Company’s alleged lost profits, so the district court erred in awarding damages . To defend the damages award, Company now contends that Strummer was responsible for stolen inventory and for Johnny Rotten’s departure, and claims the jury could’ve identified and awarded damages based on these two events. But Company does not dispute that the jury was instructed to consider only “lost profits” as a basis for damages, “and none other.” And Company likewise does not dispute that its damages expert presented evidence of only a lump-sum amount of lost-profits damages. Thus, the jury was instructed not to consider any evidence of damages based on stolen inventory or Johnny Rotten’s departure—and none was presented to consider. So even if Company’s new theories about Strummer being responsible for stolen inventory or for Johnny Rotten’s departure were correct, they still wouldn’t support the district court’s judgment.

I think the second version is much better. But, as in my previous post, I’ll let the rewrite speak for itself, rather than trying to explain each change and the reasons behind it. The key for improving our writing is to read carefully and to think about how good writing is good—i.e., what is being done, exactly, line by line, to make it good—so that we can replicate those moves in our own writing and editing.

Circuit Splits

There’s a split over whether federal courts exercising bankruptcy jurisdiction should apply federal choice-of-law principles or the choice-of-law principles of the forum state. See here at 5-6.

Circuits disagree over whether the Prison Litigation Reform Act’s fee cap and hourly-rate cap apply when the claim does not involve “prison conditions.” See here at 22-23.

There’s disagreement over whether a First Amendment free-exercise claim proceeds under a different framework than claims brought under RLUIPA or RFRA. See here at 15 & n.7.

There’s a split over whether multiemployer ERISA plans are “conflicted” under Metropolitan Life Ins. Co. v. Glenn, 554 U.S. 105 (2008). See here at 4-5.

Courts disagree about whether pro-hac-appearance fees are recoverable as costs. See here at 2.

Courts disagree about whether a criminal defendant’s previous term is “undischarged” if he is on parole—and also about whether courts may apply § 5G1.3(b) after accepting a conditional plea agreement. See here at 13.

And there’s a split over the interaction between Title II of the ADA and § 504 of the RA, and the types of injuries cognizable under § 504. See here at 30-34.

Two Recent Articles

I’ve really slacked on blog posts lately. But I do have two articles that were published recently. In November, I wrote an article on “Current Class-Action Issues.” And today my article on “Cleaning Up Quotations in Legal Writing” appeared in the ABA’s Appellate Practice newsletter. Hope they’re helpful!

ABA Journal’s Web 100

A big congrats to all the honorees for this year’s Web 100! The ABA Journal has changed things up a bit. This used to be an honor reserved for the top 100 legal blogs (i.e., “blawgs”), but this year they decided to start honoring other forms of digital media. So the list now includes 50 blawgs, 25 law-related podcasts, and 25 law-related Twitter feeds.

Personally, I think it would’ve been cool for the #AppellateTwitter community to have received collective recognition under the hashtag. Maybe next year. For now, there are a bunch of #AppellateTwitter regulars on the list, including Chief Judge Stephen Dillard (@JudgeDillard); SCOTUS reporter Chris Geidner (@chrisgeidner); legal-writing guru Ross Guberman (@legalwritingpro); law profs Rachel Gurvich (@RachelGurvich) and Elizabeth Joh (@elizabeth_joh); and yours truly (@5thCircAppeals). Go follow!

And you should definitely check out the top-25 podcasts, too!

Review: A Manual of Style for Contract Drafting

I haven’t written a book review in over 10 years, so I’ve probably lost touch with the conventions of the form. I’m not sure, for example, if it’s kosher to just say “This book is great, you need this book, go and buy this book.” Is there supposed to be some kind of prelude or set-up before making a recommendation? I can’t remember. So I’m just going to say it: lots of lawyers should go buy Ken Adams’ fourth edition of A Manual of Style for Contract Drafting. That’s the nutshell version of my review. This book is great. You need this book. Buy this book. (The image on the right has a link to the publisher’s site, where you can buy it.)

As an authority on legal writing, Adams is the contracts-specific version of Bryan Garner. If you’re a lawyer who drafts contracts, this book is obviously for you. (Did you see the title?) In fact, you probably already own a prior edition. I’m not familiar with the prior editions, so I can’t speak to what has been changed or added for version 4.0. But contracts continue to evolve and continue to be the subject of litigation—and Adams’ manual is well designed to help you improve the clarity and precision of your contracts, which is another way of saying it is well designed to help your contracts hold up in litigation—so, even if you already have an older edition, I can’t imagine why you wouldn’t want this, the latest, most up-to-date guide for improving the clarity and precision of your contracts. In short, if you’re a contract writer, you need this book.

But more importantly (from where I sit), litigators need it too. Seriously. I dug into this manual as someone who cares about good legal writing in general—but I also went through it with the eyes of a litigator. And I’m telling you: any litigator who handles litigation over contracts (or agreements, or covenants, or even rules, regulations, or statutes) ought to be interested in having this manual on her desk.

Chapter 1 has a brief discussion of “optimal” contract language. Chapter 3 discusses categories of contract language (e.g., “Language of Performance,” “Language of Obligation,” “Language of Discretion”). Chapter 4 discusses contract organization (e.g., sections, subsections, cross-references). Chapter 6 discusses the use of defined terms. And Chapters 7–15 discuss aspects or components of contracts that regularly become issues in litigation (e.g., the term “material adverse change,” references to time, syntactic ambiguity).

Each chapter is of interest not only to the contract drafter, but also to the contract litigator. For example, Chapter 8 discusses the common contractual requirement that a party use “reasonable efforts.” This discussion is helpful not only for the lawyer who must draft a contract to include this requirement, but also for the lawyer who must handle litigation over this requirement. First, the chapter is a good place to begin researching the law on this contractual term (see ¶¶ 8.36–8.64, discussing caselaw about the meaning and enforceability of “reasonable efforts” provisions). And even better: the chapter includes original research content (see ¶¶ 8.19–8.32, discussing the history of and difference between “reasonable efforts” and “best efforts”), which litigators might want to cite as authoritative, when making arguments about how a court should interpret these provisions—the same way we sometimes cite Scalia and Garner’s book on canons of textual interpretation.

Like I said, you need this book. And as an added bonus—for the true legal-writing nerds out there—the book even includes a chapter on contract typography (Chapter 16).

I don’t agree with everything that Adams says, when it comes to style recommendations. For example, Adams takes a hardline stance against using contractions in contracts. (See ¶ 17.36.) As I’ve made clear in the past, I don’t share this aversion to contractions, even in the most formal legal writing. And I also wish Adams had provided a more extensive discussion of the proper or best uses of punctuation (at ¶ 17.37)—perhaps with some examples of how punctuation has become the subject of litigation. But maybe that’s part of what he’s planning for version 5.0.

In the meantime, go buy version 4.0. It’s a must-have for your legal-writing reference desk. And I’ll race you to see who cites it first in a brief about contractual interpretation.

UPDATE: Adams points out (correctly) that I missed some of his discussions of punctuation in my perusal of this edition, because they pop up in other parts of the book instead of in the short section labeled “Punctuation.” Readers looking for tips or insights on punctuation should be sure to check the index for terms like punctuationcommacolon, etc.

Good Lawyer Apps

I haven’t written a blog post in a long time. Let’s blame it on my busy transition to a new law firm. Anyway, to get back on track I thought I’d write a quick post on the iPhone apps that I use most in my lawyerly activities. So, here they are, in no particular order:

Count – I love this little app for calculating deadlines. Super easy and cool, the way it works.

Dropbox – Most people are familiar with Dropbox. I love it. No better way to make my files easily accessible from anywhere, when I’m traveling or just working from home. Also makes it easy to post a link to a doc online (like a brief you just filed) or to send a doc to someone when you’re not at your computer.

Genius Scan – There are a lot of convert-to-PDF apps out there, and I have no idea whether this is the “best” one or not. But it’s the one I downloaded and learned how to use several years ago, so I’m used to it and I like it. Take photos of pages and the app will convert them to PDF for saving or sending. It’s come in handy so, so many times.

SignEasy – Ever need to sign a doc and send it back to someone? This app lets you do that without having to print first & scan after signing. Just open the doc in the app, affix your electronic signature, and send it back. You can also check boxes on forms, fill in dates, or use initials instead of full signature. It’s great.

Wunderlist – I love this app for making lists. Lists of books I need to read; articles I need to write; vinyl albums I want to buy; vinyl albums I already own; restaurants I like in the cities I travel to most frequently. Oh, and to-do lists. It’s good for that, too.

Twitter – Yes, Twitter. It’s where I get all my legal news (and regular news). It’s an alternative to email (using DMs). And for those of us who feel awkward at happy hour or at other in-person “networking” events, Twitter is a phenomenal networking (and marketing) tool. If you don’t already know about the #AppellateTwitter community, you’re way behind the curve. (See here, here, and here.) Get on the ball.

Bobby – I just discovered this app a couple weeks ago. It’s kind of awesome. You use it to track subscriptions, which for me means using it to track journal/magazine subscriptions as well as bar association and organization memberships. By “track,” I mean keep track of when it’s time to renew those memberships and subscriptions, so they don’t expire. This is especially helpful for those journals or organizations that never send reminders.

Patreon and the iPhone Podcasts app – I’m not devoted to the pre-installed podcast app, but I’ve never bothered to find an alternative. I don’t care that much about the app itself; the point here is that you need a podcast app of some kind. This is where I use this post about apps as a vehicle for telling you about the law-related podcasts you should listen to. I use Patreon (the app) to get the insider-only episodes of First Mondays, and I use the pre-installed Podcasts app to get everything else. And for me, “everything else” includes First Mondays, Slate’s Amicus, What Trump Can Teach Us About Con Law, Oyez’s Supreme Court Oral Arguments, Heightened Scrutiny, and Radiolab’s More Perfect. If you have recommendations for other law-related podcasts, I’d love to hear them.

VoiceRecorder – I don’t use it for work very often, but, when my oral argument prep includes recording myself, this is the app I use.

MiniKeePass – This is the password-management app I use. Nothing flashy. I’m sure there are others that are more user-friendly, etc., but this is the one I got used to several years ago.

Time (Intapp) – I haven’t actually used this app yet, but my new firm uses Intapp’s desktop program for entering time, so I’m planning to use the phone version as soon as I get around to setting it up on my phone…

There are lots of other useful apps for legal work, especially if we start talking about apps in which one might do actual legal work, like Goodreader or Google Docs. But my goal here was to list some of the apps that I find useful for doing all that tangential, work-related stuff that we do in addition to actual brief writing. Hope it was helpful!