A (very) quick look at standing in data-breach cases

I got curious and pulled up a bunch of cases to look at when plaintiffs have Article III standing to sue based on a data breach that has exposed personal information. Note: this was not an exhaustive search, and this is not an extensive analysis. But here’s what I found.

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

I 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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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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#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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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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Mere Dictum or Binding Alternative Ruling?

This is useful and good to know. In the Fifth Circuit, “alternative holdings are binding precedent and not obiter dictum.” Pruitt v. Levi Strauss & Co., 932 F.2d 458, 465 (5th Cir. 1991), abrogated on other grounds by Floors Unlimited, Inc. v. Fieldcrest Cannon, Inc., 55 F.3d 181 (5th Cir. 1995); see Perez v. Stephens, 784 F.3d 276, 281 (5th Cir. 2015) (citing Pruitt for this proposition). In other words, a decision that is not necessary to support the ultimate ruling, and all stated alternative rationales for a given result, have precedential value. Pruitt, 932 F.2d at 465 (citing cases). I haven’t checked to see how this plays out in other circuits, but in the Fifth (at least) you can rely on alternative rulings and rationales.

Podcast – Appellate Dream Team

If you’re a member of the ABA and have access to its website content, you can download and listen to a podcast I recorded recently, about putting together an “Appellate Dream Team.” The podcast is based on the blog post I wrote back in June. Enjoy!

SCOTUS Recap & Predictions

supreme-court-building-120628The Supreme Court kicked off its 2016 Term by hearing arguments in five criminal cases. Read on for recaps, predictions, and even a few practice tips…

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Fall Speaking Schedule – Updated

September will be busy. I’ll be talking about the Supreme Court’s 2015 & 2016 terms on the following dates, in the following places:

  • Sept 8 @ Texas A&M Law School (Fort Worth)
  • Sept 16 @ Baylor Law School (Waco) & for the Waco-McClennon Bar Association (separately)
  • Sept 22 @ BNM for the DFW Chapter of ACS (RSVP here)
  • Sept 23 @ Belo Mansion (Dallas) for the Dallas Bar Association
  • Sept 26 @ University of Texas School of Law (Austin)

I’ll also be at St. Mary’s Law School (San Antonio) in November (date TBD).

On the topics of legal writing & appellate practice, I’ll be giving a joint presentation (w/ Scott Stolley) about preparing jury charges, at the upcoming Dallas Bench/Bar Conference, Sept 29-Oct 1. And in November I’ll be participating in a panel discussion about reading and writing e-briefs, at the Annual Meeting of the Council of Chief Judges of State Courts of Appeal, in Raleigh, North Carolina.