Waiver Problems (or Why You Should Hire an Appellate Lawyer)

mechanics-lien-waiverI did a quick search. In 2016 (just one year, Jan. 1 through Dec. 31), in the Dallas Court of Appeals (just one of the appellate courts in Texas), in what Westlaw identifies as “commercial” cases (just one narrow area of the law), there were at least nine appeals in which waiver was a problem. To me, that seems like a lot—because “commercial” cases typically involve high-dollar claims and high-caliber lawyers on both sides. And if we broaden our scope a bit, there were another 149 “civil” cases that popped up in my search for “waiver”—and many of those likely involved actual waiver problems, too. These waiver problems demonstrate why litigants should consider hiring an appellate lawyer.

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Circuit Splits

path-18197_960_720There’s a split over whether IDEA fee shifting should have a long or short statute of limitations. See here at 5 n.2.

There’s a split over whether reckless offenses are predicate offenses under 18 U.S.C. § 924(e). See here at 14 n.10.

Apparently, circuits disagree about how to interpret “directly and independently of all other causes.” See here at 2.

There’s a split over “a narrow exception to Rooker-Feldman.” See here at p.5.

There’s a split over the immediate appealability of Parker immunity claims. See here at p.17 n.6.

Circuits disagree about whether a party that fails to challenge a special verdict in the district court can raise the issue on appeal. See here at p.17 n.3.

And there’s a split over what “new evidence” means under Schlup. See here at p.3 n.1.

ICYMI: Twitter Threads

Decided to post links to some of my Twitter threads, because most of these threads could (and maybe should) have been blog posts.

[listed in reverse chronological order]

On the Gorsuch nomination & whether the Democrats should filibuster: 3/20/17

Explaining the legal/policy issue of selling insurance “across state lines”: 3/7/17

A primer on class actions and why we have them: 2/16/17

On the case challenging the scope of Obergefell at SCOTX: 2/13/17

On federalism: 1/30/17

On work-life “balance”: 1/11/17

On appeals, standards of review, and reversal rates: 12/20/16

Some post-election thoughts about the Electoral College: 11/21/16

On judicial vacancies left unfilled: 11/18/16

On court-packing, reverse-court-packing, and constitutional norms: 10/26/16

The thread that launched the #AppellateTwitter coffee mugs: 10/22/16

On Flannery O’Connor & wanting to be an appellate lawyer: 9/14/16

Remembering where I was on 9/11: 9/11/16

On alternative-fee arrangements for appellate work: 9/6/16

On doing pro bono to get appellate experience: 8/23/16

The now-(in)famous thread on the social function of humor: 8/9/16

On RBG expressing political opinions: 7/13/16

On whether current SCOTUS can be called a “liberal” court: 6/28/16

And last but not least, the Twitter version of my life story: 10/23/16

Steed Style Guide, pt. 1

Complaints about The Bluebook have become commonplace. I have many. This, combined with the new availability of The Supreme Court’s Style Guide and The Solicitor General’s Style Guide—and with the longtime presence of Garner’s The Redbook, and with the presence, in Texas, of The Greenbook—has led me to become eclectic in my style choices, when it comes to brief writing. (I also have traces of MLA style still in me, from my days in academia.) Thus, over the years I haven’t been very consistent. I mean, I’m always consistent within a brief, to be sure—that’s imperative. But I haven’t been very consistent from brief to brief (or, more precisely, from case to case). Instead, I’ve been trying things out, here and there, to see how I like this or that.

Now, though, I think I’ve settled into some fairly consistent stylistic preferences that I’m going to go ahead and codify (here, on this blog) in my own personal style guide—with the caveat, of course, that I might change my mind at any moment.

So, without further ado, here is the first installment of the Steed Style Guide:

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Circuit Splits

There’s a split over whether plaintiffs must prove the absence of probable cause when bringing a First Amendment retaliatory-arrest claim. See here at p.19. (Incidentally, this case is a good example of how messed up the law is, on qualified immunity. The question in this case is whether a person has a right against retaliatory arrest even when there is probable cause for the arrest. But the court grants immunity, saying it doesn’t need to determine whether the right exists because the Supreme Court has previously recognized that the right has not been clearly established. In this way, under our current qualified-immunity jurisprudence, when a right isn’t clearly established the courts can just continue to grant immunity on that basis, without ever deciding whether the right exists. Happens all the time. I’ve written more here.)

There’s a split over whether a mandatory supervised-release term may be modified or terminated under section 3583(e). See here at p.4.

There’s a split over whether participants or beneficiaries of an ERISA plan must exhaust internal plan remedies before suing plan fiduciaries on the basis of alleged violations of statutory duties. See here at p.14.

There’s a split over whether the denial of a “Hail Mary” chance at trial constitutes prejudice (in the context of possibly rejecting a plea agreement). See here at p.9 & n.3.

There’s a split over whether burglary requires intent-at-entry or just “the development of intent at any point.” See here at p.5.

Courts are divided over whether the joint-employer or single-integrated-enterprise theory of liability under the FLSA also applies to the personal-jurisdiction inquiry. See here at pp.5-6.

There’s disagreement over the interaction between sections 2680(a) and 2680(h) in the context of determining sovereign immunity. See here at p.15 n.5.

And there’s a split over whether the failure to object to the reasonableness of a sentence upon its imposition requires plain-error review. See here at p.6 n.10.

#AppellateTwitter

cxaav8wviaagbjq-1Our band of merry travelers, known affectionately as #AppellateTwitter, has been in the news recently. In case you missed it, first there was some coverage of our crew at Above the Law. Then U.S. Law Week did a story on us, which was cross-posted at Bloomberg BNA. Then Today’s General Counsel did its own little blurb referring to the Law Week article. Then Law.com ran a story about us.

And to cap it all off, Judge Dillard (@JudgeDillard) actually cited #AppellateTwitter in a footnote to one of his judicial opinions.

Big League!

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Gorsuch in L/E Cases

labor-law-598x299I found 25 cases from the past 10 years, involving labor or employment claims, where Judge Gorsuch wrote the majority opinion. Here’s a quick overview of how those cases turned out.

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Proposed Changes to SCOTX Jurisdiction

A bill (HB 1761) has been proposed in the Texas Legislature to change the Texas Supreme Court’s appellate jurisdiction. Below is my explanation (and first impression) of what the bill would do.

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Circuit Splits

ccsplits4There’s a split over what exactly unauthorized access means, in violating the CFAA. See here at p.13.

There’s a split over what law applies (state or federal) in determining the validity of a contract’s forum-selection clause. See here at p.5.

There’s an intra-circuit split in the Sixth Circuit, as well as a split across circuits, over the proper standard of review for Rule 404(b) evidence. See here at p.14 & n.4.

Circuits disagree over whether an ADEA plaintiff must “reasonably pursue,” “complete,” or merely “start” the administrative process, to “exhaust” administrative remedies before filing suit. See here at p.9.

There’s a split over whether the probate exception, which applies to diversity jurisdiction, also applies to federal-question jurisdiction. See here at p.3-4.

There’s a split over whether an arbitration agreement may require the resolution of labor disputes on an individual basis (i.e., no class arbitration). See here at p.20-21.

Circuits disagree over “whether the rationale of Martinez/Trevino extends to ineffective assistance of direct appeal counsel.” See here at p.10-11.

And there’s a split over whether independently exculpatory Brady material must be disclosed before a plea. See here at p.7-8.

Revisions as Decisions

TexasBarToday_TopTen_Badge_VectorGraphicA good way to teach (and to learn) good writing is by demonstration. So, in an attempt to demonstrate how to improve the first two paragraphs of a motion, I’m just going to show you what the two paragraphs looked like before and after the revision.

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