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Blunders in Texas Supreme Court Briefs – and How Hyperlinked EBriefs can Help

This is the second blog we have written recently regarding Appellate Brief writing issues that should be avoided.  While it is tailored to issues that have arisen in The Supreme Court of Texas, the lessons can be safely applied to any appellate level submission.  Hyperlinked EBrief submissions can help you address a number of the issues highlighted by the article.

On Friday, August 8th, Texas Lawyer published an article “Common Blunders in Texas Supreme Court Briefs”, written by Martha Lackritz, who just finished a two-year clerkship with Chief Justice Jefferson.  Her article should be read by every appellate attorney in the State of Texas, especially those who practice in front of the Supreme Court.  Her article is a goldmine of tips on how to improve your submissions and an inside look as to what the court is looking for in advocacy.

Ms. Lackritz provides a concise list of 8 major blunders that the court encounters when reviewing the briefs on the merits.  I have chosen three points that really jumped off the page to briefly summarize; primarily because through the use of hyperlinked EBrief technology, it is very easy to remedy these problems. 

1.  Too Few Citations – Many lawyers fear that over citing cases will merely confuse the issues and make it difficult for the reader to arrive at the proper conclusion.  While she does not encourage writers to over cite the number of cases needed to make a point, she encourages writers to direct the reader to list some persuasive cases that truly reinforce the strength of the argument.  Lawyers should highlight cases that would not easily be discovered through independent judicial research. Directly the judiciary to these related cases is a way to bolster your argument.

2.   Lack of Record Citations – Texas Rule of Appellate Procedure 38.1(i) requires citations to the lower court record.  Writers should avoid making unsupported statements that rely on the facts of the case without supplying the direct proof to the court.  Most court records are voluminous and at the appellate level, the court is not familiar with the entire body of evidence.  She wants writers to point out the admission or stipulation that was made during a deposition that supports the statement being made, and not make the court search for it.  Providing each instance from the record that supports a statement may be the determining factor that convinces the court to accept the argument.

3.  Unaddressed Counter-Arguments – It sometimes seems to be difficult to write a cohesive argument to counter the opposition since referencing the material in pure written form can be clumsy.  However, ignoring an argument against a client’s position often seems to validate them for the court.  Advocates must deal with all facts, and all law, both good and bad.  The most effective way to deal with them is to acknowledge them briefly and then dismiss them in a factual manner, providing evidence as to why they are “irrelevant, distinguishable or inapplicable”.

How can this be achieved?
The Supreme Court of Texas has recently provided some rules that will help in this process since they now encourage the submission of hyperlinked electronic briefs.  In the era of hyperlinked electronic brief technology, it is easier to create an effective argument that seamlessly includes references to legal citations, the lower record and your opponent’s argument. 

Writers can craft sentences in ways that emphasize certain support material and provide instant access to that material, making a very strong argument even stronger. Integrating your evidence into your arguments electronically provides the court with a way to access what they want, when they have a question about the statement without interfering with the flow of your argument. 

Providing a link to the lower record allows the writer to provide a shorter reference in the brief itself, while providing access to the entire statement that is key to the argument.  Likewise, having the ability to refer the reader to the counter argument in total, without having to provide the full content in the appellate brief means that statements can be written with more clarity.  Hyperlinked EBriefs can help improve your argument, call us to find out how.
 

 

Appellate Brief Writing is More Than Words - Writing Style and Proper Grammar Still Matter to the 5th Circuit Court of Appeals

Summary
The United States Court of Appeals in the 5th Circuit recently issued an opinion (July 13, 2011) in Samantha Sanches v. Carrolton-Farmers Branch Independent School District, No. 10-10325. The 5th Circuit affirmed a summary judgment ruling in which the trial court had dismissed the plaintiff’s claims in Samantha Sanches v. Carrollton-Farmers Branch Independent School District. The Court wrote, “Reduced to its essentials, this is nothing more than a dispute, fueled by a disgruntled cheerleader mom, over whether her daughter should have made the squad. It is a petty squabble, masquerading as a civil rights matter, that has no place in federal court or any other court.”  

While that is the most important part of opinion, the Court spent considerable time in its opinion criticizing the “technical and grammatical errors” that were “so egregious and obvious that an average fourth grader would have avoided most of them.”  Additionally, the Court felt that the brief, as written, could be perceived as an “unjustified attack” on U.S. Magistrate Judge Paul Stickney, the trial judge in Sanches.

Why are Words so Important?
They are important because the law is based on words and language that must be properly interpreted in order to be effective.  Brief writing is an art, appellate brief writing even more so; and there can be unintended consequences when mistakes are made and proper editing procedures are not included as part of brief writing process.  Perfection is rarely attained, but it should always be aspired to.  Sloppy writing and the lack of comprehensive editing appear to be the result of our increasing reliance on the technology of spell check features and our need for speed.  Clearly spell check can not take the place of quality editing.   Some examples from the brief were highlighted by the Court in their criticism that should provide a roadmap to help other appellate writers avoid the same type of problems.

Examples
Judge Smith was joined by Senior Judge Harold DeMoss and Judge Priscilla Owen in writing the opinion.  They started by quoting a particularly troubling passage from the brief in their opinion.  The following is the verbatim quote from the brief.

“The Magistrate’s egregious errors in its [sic] failure to utilize or apply the law constitute extraordinary circumstances, justifying vacateur [sic] Magistrate.  Specifically, the Magistrate applied improper legal standards in deciding the Title IX elements of loss of educational opportunities and deliberate indifference, ignoring precedent.  Further, the Court failed to consider Sanches’ Section 1983 claims and summarily dismissed them without analysis or review.  Because a magistrate is not an Article III judge, his incompetence in applying general principals [sic] of law are [sic] extraordinary.”

The Judges made the following observations about the passage in footnote 13 of the opinion:

• Magistrate Judge Stickney is referred to as “it” instead of “he” and is called a “magistrate” instead of a “magistrate judge”.
• The word ‘vacatur’ is misspelled as ‘vacateur’
• The word ‘principals’ should have been ‘principles.’
• The subject and verb are not in agreement in one of the sentences, which has a singular subject ‘incompetence’ and a plural verb ‘are’, making it difficult to decipher the true meaning of the sentence.  They further stated the sentence “makes no sense as a matter of standard English prose, so it is not reasonably possible to understand the thought, if any, that is being conveyed.”

In the body of the opinion, the 5th Circuit also made note of what they felt was an “unjustified attack” on U.S. Magistrate Judge Paul Stickney, the trial judge in Sanches, based on what the court felt was the “dissatisfaction with the magistrate judge’s decision, and not an “extraordinary circumstance”.  The following is what the opinion stated:

“These sentences are so poorly written that it is difficult to decipher with the attorneys mean, but any plausible reading is troubling, and the quoted passage is an unjustified and most unprofessional and disrespectful attack on the judicial process in general and the magistrate judge assignment here in particular.  This may be a suggestion that Magistrate Judge Stickney is incompetent.  It might be an assertion that all federal magistrate judges are incompetent.  It could be an allegation that only Article III judges are competent.   Or it may only mean that Magistrate Judge Stickney’s decisions in this case are incompetent, a proposition that is absurd in light of the correctness of his impressive rulings.  Under any of these possible readings, the attorneys’ attack on Magistrate Judge Stickney’s decisionmaking is reprehensible.”

Words have meanings, definitions and consequences.  Appellate lawyers need to pay particular attention to what they write, how they write it and what they mean in order to have the courts understand their point of view.  Being an “advocate” on behalf of your client may require linguistic restraint, but it appears that restraint may be the best policy.  Editing is an extremely important part of the appellate brief writing process and should not be glossed over due to time constraints.

 

Why eDiscovery in the Mac World May Require “Macsperts”

As we have noted before, the increase in the number of Mac’s in the legal field continues to grow.  Increasingly we are encountering Macs on behalf of our clients in corporations and law firms and we have to include them in any eDiscovery requests.  This in turn is requiring an increase in the number of experts needed to deal with eDiscovery challenges which can be unique to the Apple environment.  While there are certainly similarities between an eDiscovery approach between the Windows and Apple environments, there are some differences that only “Macsperts”, those experienced with the unique features of Apple, can properly identify.

In the early phases of litigation, lawyers focus on the identification phase of the EDRM model.  In particular, they attempt to focus on potential custodians and client IT contacts to gain a preliminary understanding of the case, particularly the electronic data, both the location and forms of potential data and which client personnel will be key in locating the data.  The goal is to define where and how data is stored, how it can best be forensically gathered and ultimately the determination of whether it is responsive.

While the steps are the same for uncovering and identifying Windows and Mac data during discovery, Mac data requires some different handling to properly locate electronic material.  This difference is primarily due to differences in how the operating systems differ, particularly in more recent versions of the operating systems.

Home Folders
In the Mac, the Home Folder is usually the default storage location for both user files and where the operating system will likely place user system preferences, internet cache files, cookies, pictures and multimedia files.  Additionally the operating system creates other key folders within the Home Folder such as desktop, user documents and library (which contains system preferences).  Home Folders often contain user-created documents since this is the default location for these files, making them extremely likely candidates to contain relevant material for review.  In Windows, these types of files are typically located in the tree structure under headings such as My Documents, My Pictures and My Music folders.

Smart Folders
Mac’s use a system of “dynamic” folders that can contain file lists that match a specific search criteria executed by the user.  Dynamic folders don’t actually have files stored in them; rather they contain file name pointers to the actual files which are located in other file locations. Dynamic folders assist users organize and locate similar documents that may be located throughout the operating system on the hard disk, without the need to copy them to a specific location.  A user would use the Smart Folder concept to easily locate files that meet a certain search critieria, rather than remembering and executing a search protocol each time they needed to find relevant documents.  Windows does not utilize this type of search/foldering option and in fact would require the user to execute a search each time they needed to find a document.

Aliases
Dynamic folders work because the pointer file or “alias” links to files, folders or external storage devices.  Essentially, there can be many aliases pointing to a single file, based on the potential contents of the file and how the user thinks about that content.  This allows a Mac user to quickly open frequently accessed files withoug going through a complicated search.  An alias is similar to a “shortcut” in Windows, but it is considered to be more sophisticated since an alias tracks a file even if the user moves its location.

Both Smart Folders and Aliases are sophisticated organizational options that allow users to easily access underlying files, regardless of the location of that file.  Files are physically located in one location but may have a number of aliases in different Smart Folders.  In the Mac world, the eDiscovery focus should be on the physical file location rather than the pointers.  That is why the primary focus should be on the Home Folders.

Backup Utilities
More recent Mac operating systems use an integrated backup utility called Time Machine which stores data on an external hard drive.   The default setting on Time Machine automatically backs up all files on a computer.  If selected without setting changes, there are likely to be backup copies of every file on the computer, with multiple complete copies available.  This should be considered when eDiscovery plans are put into place or when responses are being prepared for the opposition.  Determining the type of backups in place and responding accordingly will go a long way towards eliminating eDiscovery fights.

Summary
Theses are a few of the differences that must be considered by lawyers based on the computer systems used by their clients or the opposition.  Making sure that your eDiscovery consultant is familiar with these and other Mac differences will help assure that your eDiscovery process is complete and does not result in any unwanted surprises.

Judge Grimm on Federal Rule of Evidence 502 – Has it Lived up to its Potential?

In our continuing efforts to keep our clients and followers updated with important information regarding eDiscovery, please take note of the release of an extensive document by Judge Grimm on Federal Rule of Evidence 502.  The entire article should be examined by lawyers for its content; below we try and capture the essence of his important discussion.

The first paragraph of Judge Grimm’s analysis of Federal Rule of Evidence 502 sums up one of the major current concerns that lawyers have regarding today’s discovery process – the potential of waiving attorney-client privilege or work-product protection.  In the Richmond Journal of Law and Technology, Vol. XVII, Issue 3, he (and his co- authors) lay out a very thorough (82 Page) thesis offering a forthright criticism of the current court interpretation of the rule and contains an outline of steps for practitioners to follow.   It is a must read for any attorney involved in today’s e-Discovery process.  The article opens with the following summary paragraph:

Nothing causes litigators greater anxiety than the possibility of doing, or failing to do, something during a civil case that waives attorney-client privilege or work-product ptotection.1   Attend any seminar, webcast, podcast, or other continuing legal education course dealing with the discovery of electronically stored information (“ESI”) and you are sure to hear about this concern and how to mitigate it.2

It is important to note that Footnote 1 references the advisory committee note that says that “[Rule 502] responds to the widespread complaint that litigation costs necessary to protect against waiver of the attorney-client privilege or work product have become prohibitive due to the concern that any disclosure (however innocent or minimal) will operates as a subject matter waiver of all protected communications or information.”

Cleary, the advisory committee understood what the problems were and tried to address them very specifically with Rule 502. Rule 502 had two very specific purposes, 1) to resolve disputes regarding inadvertent disclosures and subject matter waiver of privilege information and 2) to address complaints that litigation costs to protect against subject matter waiver have become prohibitive.  Judge Grimm feels “to date it has not lived up to its promise”.  The problem lies not with the wording of the rule, but rather incorrect judicial interpretation.  Judge Grimm would like the rule to be uniformly applied which would result in predictable actions in the discovery process. Predictability, not perfection, is what is important.

Where does the waiver apply?
The article examines each section of Rule 502 in detail.  Starting with a statement “‘Rule 502 is titled “Attorney –Client Privilege and Work Product: Limitations on Waiver’.  As the title makes clear, the rule applies only to the attorney-client privileges and the work product doctrine.9  It has no effect on any other evidentiary privilege, such as the vast array of governmental, or other common law privileges….”  Additionally, it only applies to certain types of waivers, namely those made by an actual disclosure of privileged or protected information.  Judge Grimm further states that the rule reaches disclosures made during civil and federal proceedings in federal court, during administrative proceedings and to federal administrative agencies during investigations. 

When does the waiver apply?
Rule 502(a) limits the circumstances under which a subject matter waiver will be found. Subject matter waiver occurs when: 1) the waiver is intentional; 2) the disclosed and undisclosed communications concern the same subject matter; and (3) the communications should in fairness be considered together. Judge Grimm believes that intentional means that while no showing of intent to waive the privilege is required, the disclosure must be voluntary and not inadvertent. Further, the Rule does not make a distinction between fact work product and opinion work product regarding subject matter waiver.  Regarding the fact that many courts have declined on the grounds of fairness to require production of opinion work product, Judge Grimm emphasizes that the rule was designed to prevent a party from producing material in a selective manner.

Rule 502 (b) concerns the inadvertent disclosure and the circumstances in which disclosure of protected information will act as a waiver.  There is no waiver if the following conditions are met: 1) the disclosure was inadvertent; 2) reasonable steps were employed to prevent the disclosure and 3) once the error was discovered, prompt and reasonable steps were taken to rectify the situation (quick and timely notice to the opposition.  Judge Grimm is critical of courts that have combined the first two objectives into one statement, pairing reasonableness into a judicial determination of inadvertence.

The first and most important factor in the determination is whether the production was inadvertent or not.  He further points out that courts have imposed a requirement of extraordinary measures be employed to satisfy the reasonable requirement in the rule.  He feels strongly that the rule was designed to encourage the use of computer based analytical models to conduct privilege review and that somehow requiring extraordinary measures will make attorneys shy away form timely productions using technology.

In summary, the intended goal of Rule 502, to reduce the cost of ESI discovery by using advanced analytical and computer review, will never be reached if the courts focus on a demand for perfection or near perfection during productions.  Perfection is the goal, but not an absolute.  The goal should be to return the discovery process to being a part (albeit an important part) of the litigation, but not the primary focus of the litigation.  After all, discovery is still primarily about finding the facts surrounding a case.

 

Mobile Devices – As We Increase Our “Casual” Reliance on Them, the Risk of Discovery Increases

 Business Insurance recently published an article summarizing a presentation made at the International Risk Management Institutes Inc’s Cyber & Privacy Risk Conference, held in San Francisco last week. The article summarized the comments made by Sarah Stephens, the Assistant VP of Aon Risk Solutions.  For those of you who continue to rely more and more on these devices for your everyday work, it is worth your time to read the article and think about how it may impact your own business or legal practice in the future. (See article) 

While the presentation focuses on the problem from an insurance risk perspective, it can be easily viewed directly from the perspective of discovery and evidence, which impact our lives as eDiscovery experts. The really interesting point of her presentation was the vast amount of data there is on our cell phones that we don’t think about until it is too late.

With the explosion of mobile technologies, increasing use of social media by businesses, shifts to cloud computing, and other emerging trends and technologies, businesses are interacting with consumers in ways that break down traditional barriers to communication. At the same time, they also open themselves up to inherently greater risks, particularly to their reputation and financial success.

One of the focuses of Ms. Stephens’s discussion was the casual nature in which we treat our communication devices, particularly Smartphone’s and other portable communication devices.  “We take it out of our pocket, set it down and look away”, she said at one point.  None of us are thinking about the vast quantities of data that the devices contain that can so easily be stolen or misplaced.  Perhaps even more importantly from a legal perspective, we don’t think very hard about the kind of information that is on our phones that might hurt us during litigation if it is discoverable. 

 We tend to think of the information on our phones as personal, not a concern of business and non-discoverable, even when the phone is issued by and paid for by the organization we work for.  After all, no one expects any repercussions from having a ‘private’ phone conversation about a company policy or a competitive strategy decision…until a litigation matter arises, your phone becomes a discovery item and the parameters of all your calls, emails  and texts that you have exchanged ‘privately’ become part of the case.  When the opposition begins to ask questions about the communications that appear on your phone, the angry text messages you exchanged with a colleague about a new corporate policy or a competitors position as it relates to your business, the impact will finally hit home.

Smartphones and other communication devices have changed the way we do business, and mostly for the better.  But we need to learn to think about them the same we would about writing a formal communication on company letterhead.  Would you write that text message the same way if you were going to distribute a formal memo?  If not, perhaps you should think twice about the content before you text, tweet or call.