The Appellate Strategist : Appellate Lawyers & Attorneys for Updates on Trial Consultations, Amicus Briefs & Punitive Damage Awards

The California Supreme Court heard oral argument in O’Neil v. Crane Co. The Court’s decision will likely define an important area of strict products liability law in California – specifically, it will expand or limit the duty of product manufacturers to warn about the hazards of replacement parts made by others that are subsequently incorporated by the purchaser into the manufacturer’s original product. 

O’Neil arises out of the plaintiff’s exposure to asbestos-containing gaskets and packing materials used in and around the defendants’ valves and pumps, which were incorporated by the Navy into the steam propulsion system aboard the USS Oriskany, where the plaintiff served while he was enlisted. Though the pumps and valves delivered to the Navy originally incorporated asbestos-containing gaskets and packing, all parties agreed that by the time plaintiff served aboard the Oriskany, the original asbestos packing and gaskets had been removed and replaced with packing and gaskets manufactured by third parties. Nevertheless, the plaintiff argued the pump and valve manufacturers had a duty to warn him regarding the hazards of asbestos.  

Prior to O’Neil this legal issue had been addressed by the California Court of Appeal, most notably in Taylor v. Elliot Turbomachinery Co., Inc. (2009) 171 Cal. App. 4th 564. There, the First Appellate District noted, on facts indistinguishable from the present case, that the plaintiff’s injury did not come from the defendants’ equipment itself, but instead was released from products made or supplied by other manufacturers, though used in conjunction with the defendants’ equipment. Thus, the defendant manufacturers were not part of the chain of distribution of the injury-causing product, which was actually the asbestos-containing insulation. The court held that California law did not recognize a duty to warn of defects in another manufacturer's product.  The Second District Court of Appeal below in O’Neil rejected the reasoning of Taylor, and instead ruled that a manufacturer is strictly liable for dangerous products with which its product will necessarily be used. The Supreme Court granted certiorari in O’Neil to resolve the conflict between the O’Neil and Taylor decisions.

At oral argument, one of the Justices’ primary concerns appeared to be factual in nature: What exactly was meant by the parties’ contention that the Navy “specified” or “required” the use of asbestos-containing insulation? As phrased by Chief Justice Cantil-Sakauye, did the Navy “say the magic word, ‘asbestos’” in its specifications to the defendants, or did the Navy merely promulgate performance specifications and the defendant manufacturers independently determined that asbestos-containing insulation was the best (or even only) material suitable to meet those requirements?  

Another significant concern of the Court appeared to be whether the pumps and valves were capable of functioning without the asbestos-containing components. In other words, was asbestos required for the pumps and valves to function properly, or was asbestos merely required by the dictates of the steam propulsion system, and not the design of the valves or pumps themselves. The Court seemed troubled settling on the proposition that the pumps and valves could be deemed defectively designed if the pumps and valves were “asbestos neutral,” and could function just as well in other systems utilizing non-asbestos containing materials. 

Ultimately this latter point may be where the court draws the line, assigning a duty to warn about replacement parts made by others only if the replacement part is identical to the original hazardous part, and the replacement part is essential to the function of the defendant’s product. The Court will issue its opinion within 90 days. 

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The Illinois Supreme Court has announced that on the morning of Thursday, October 27, it will file opinions in two civil cases [pdf]:

• A.B.A.T.E. v. Giannoulias, No. 110611 -- Does a state statute permitting the transfer of funds from the Cycle Rider Safety Training Fund to the General Revenue Fund violate the Takings Clause of either the federal or state constitutions? See Constitutional Law.
   
• Sierra Club v. Illinois Pollution Control Board, No. 110882 -- (1) Does a petitioner in an individual adjusted standard proceeding before the Illinois Pollution Control Board have a burden of proof with respect to the standards set forth in Section 27(a) of the Illinois Environmental Protection Act? (2) Must the Board make written findings or identify substantive evidence supporting its resolution of the Section 27(a) factors in such a proceeding? (3) Do environmental activist groups have standing to seek judicial review of the Board’s decision in an individual adjusted standard proceeding? See Government Law.

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Witnesses called to testify as “experts” are cloaked with prestige and authority, and positioned to exert heavy influence on juries. This is accentuated with areas of expert testimony that are highly technical or specialized. The U.S. Supreme Court recognized in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 595 (1993), that “[e]xpert evidence can be both powerful and quite misleading because of the difficulty in evaluating it.”  

In Daubert, the United States Supreme Court created a seismic shift in the test for the admissibility of expert testimony. Daubert held that Congress’ adoption of the Federal Rules of Evidence displaces the general acceptance test and requires the federal trial judge to ensure that any expert testimony admitted is both reliable and relevant. The Court has also clarified that an expert’s conclusions are not beyond the reach of the relevance/reliability test, and that the relevance/reliability test is not limited to the “scientific” and applies to all expert testimony. The Court has therefore given federal trial court judges the important responsibility of ensuring that expert testimony is based on reliable methodology and fits the facts of the case.

Florida, on the other hand, is among a shrinking minority of states still clinging to the antiquated Frye test. See Frye v. United States, 293 F. 1013, 1013-14 (D.C. Cir. 1923). This test does not provide trial judges with the legal tools for ensuring that “expert” witnesses are qualified and that their testimony is relevant, reliable and appropriate for a jury. Instead, the “test” is nothing more than a determination whether an expert’s methodology is “generally accepted.” This nebulous standard of “general acceptance” is not an adequate check on the integrity of expert evidence. The problem is compounded by Florida Supreme Court precedent holding that the Frye test applies only to a minority of cases involving expert testimony – those involving “new science.” If an expert’s testimony is based on science that the court does not deem “new” or derived from a field that is not traditionally “science,” then the test is not even triggered. So-called “pure opinion” testimony purportedly based on an expert’s overall experience is also beyond the reach of the Frye test.

This shortcoming in Florida jurisprudence undermines the integrity of the court system and quality of justice dispensed by trial courts. It also threatens to diminish the State’s many advantages in attracting business, particularly in light of the fact that most states in the Southeast have already modernized their laws governing the admissibility of expert evidence, including  Georgia by legislation enacted in 2005 and North Carolina by legislation effective as of October 1, 2011.

The Florida Legislature can and should solve this problem by statutorily adopting Daubert to place Florida on equal footing with most other jurisdictions and federal courts.

[Robert C. Weill has co-authored a full-length article advocating for the Florida Legislature’s adoption of Daubert which will be published in the Nova Law Review in February 2012.]

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In Thomas, Melau, and Anderson v. Novartis Pharms. Corp., the Sixth Circuit Court of Appeals recently affirmed a trio of cases prohibiting the testimony of treating physicians as specific causation experts. Though the appellate court’s opinion was not recommended for full-text publication, it nonetheless offers a salient reminder of a Daubert rule well-enunciated in the Sixth Circuit: A physician’s presumed expertise is in the diagnosis and treatment of disease, not necessarily in the scientifically reliable determination of its underlying cause.

Thomas involved three plaintiffs who filed separate lawsuits, but whose claims were heard by the Middle District of Tennessee pursuant to consolidated MDL proceedings. They alleged they developed biophosphonate-induced osteonecrosis of the jaw after taking Zometa and Aredia, drugs manufactured by Novartis for the prevention of bone maladies, typically in cancer patients. The plaintiffs retained general causation experts, but relied for proof of specific causation upon their non-retained treating physicians. Each plaintiff’s treating physician was excluded, but it is the exclusion rationale in Thomas that is of interest here.

The court began its analysis by noting that Thomas’ physician, Dr. Johnson, “appears to have used some form of a differential diagnosis, or differential etiology, which we have previously recognized is a proper basis for determining the cause of a medical condition when done properly.” Id. at 5. The propriety of such a method, however, depends upon the underlying expertise of the practitioner. The court acknowledged that Dr. Johnson was “unquestionably an experienced oral surgeon with many years of practice and training. He treated other patients with osteonecrosis of the jaw, and has read literature and attended conferences on osteonecrosis of the jaw.” Id. at 6. However, “[b]ecause Thomas relied on Dr. Johnson to give an expert opinion on the cause of his osteonecrosis of the jaw, it is not enough to show that Dr. Johnson can recognize and treat osteonecrosis of the jaw.” Id. 

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This afternoon the Illinois Supreme Court published its Oral Argument Calendar [pdf] for the September term, and the Court will hear oral argument in ten civil cases. The cases, with the issue or issues presented in each, are:

September 20:

Simpkins v. CSX Corporation, No. 110662 -- Does an employer owe a tort duty of due care to the immediate family of its employees? See Tort Law.

The Forest Preserve District of Du Page County v. First National Bank of Franklin Park, No. 110759 & 110760 -- (1) Has a plaintiff negotiated in good faith prior to filing a complaint for condemnation where it fails to offer the full amount of the highest appraisal it receives, fails to attach an appraisal to its offer letter and adds a short time-frame for acceptance to its offer? (2) Are clauses in Annexation Agreements providing that zoning and Special Use Designations survive the expiration of the agreement contrary to Illinois law? (3) Is Section 7-121 of the Eminent Domain Act, which provides that fair market value in a condemnation proceeding shall be determined as of the date the action was filed, unconstitutional as applied under Kirby Forest Industries v. United States, 467 U.S. 1 (1984)? See Government Law.

Wisnasky-Bettorf v. Pierce, No. 111253 -- Under Section 7-61 of the Illinois Election Code, 10 ILCS 5/7-61, must an established political party timely file a resolution with the appropriate official in order to fill a vacancy in nomination when no candidate appeared on the primary ballot for that party or ran as a write-in candidate? See Election Law.

September 21:

Citizens Opposing Pollution v. ExxonMobil Coal U.S.A. – Nos. 111286 & 111304 -- Does either the Surface Coal Mining Land Conservation and Reclamation Act, 225 ILCS 720/1.01 et seq., and/or the Water Use Act of 1983, 525 ILCS 45/1, permit a private right of action for enforcement? See Civil Procedure.

Sandholm v. Kuecker – No. 111443 -- (1) Is the Illinois Citizen Participation Act, 735 ILCS 110/1, unconstitutional, either on its face or as applied? (2) Is the attorneys fees provision of the Act limited to fees incurred in moving to dismiss under the Act?  See Constitutional Law.

The Township of Jubilee v. The State of Illinois – No. 111447 -- Does the State’s filing of a counterclaim, after its motion to dismiss has been denied, waive a claim of sovereign immunity? See Government Law.

Crossroads Ford Truck Sales, Inc. v. Sterling Truck Corporation – No. 111611 -- (1) Are claims brought under Section 4(d)(6) of the Franchise Act, 815 ILCS 710/4(d)(6), within the exclusive jurisdiction of the New Motor Vehicle Review Board? (2) Did the plaintiff otherwise state claims for relief under the Franchise Act? See Contract Law.

September 22:

Santiago v. E.W. Bliss Company – No. 111792 -- When an injured plaintiff intentionally files a complaint using a fictitious name, without leave of court as provided in 735 ILCS 5/2-401, and subsequent to the expiration of the statute of limitations, files an amended complaint with the correct plaintiff’s name, should the court dismiss with prejudice as a sanction, or because the limitations period has expired and the amended complaint does not relate back to the original filing? See Civil Procedure.

Nowak v. The City of Country Club Hills – No. 111838 -- May an injured public employee simultaneously collect the benefits provided under the Public Employee Disability Act, 5 ILCS 345/1, as well as the health benefit provided by Section 10(a) of the Public Safety Employee Benefits Act, 820 ILCS 320/10(a)? See Government Law.

Reliable Fire Equipment Co. v. Arredondo – No. 111871 -- What is the appropriate standard for determining whether an employer has a protectable interest in its customer list such that a non-compete clause in an employment agreement is enforceable? See Employment Law.

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Adding its voice to a continuing national debate, the California Supreme Court has adopted the minority rule and held that tort damages for past medical expenses are limited to those amounts actually paid and accepted as full payment for the services provided, when such amounts are determined by an existing agreement with the plaintiff’s insurance carrier. In such a case, an amount otherwise “billed” using rates outside of the agreement is irrelevant. In its opinion, the Court explained that only the prenegotiated amount actually paid by, or on behalf of, the plaintiff to settle a previous medical bill is recoverable as economic damages, because such a payment is the extent of plaintiff’s actual loss. As a result, the collateral source rule does not apply, because the issue is the measure of plaintiff’s actual damages, not how they were paid. The Court noted that, to be recoverable, such damages must be both reasonable and actually incurred. While acknowledging that this could result in wildly different damages for the same injury, depending on whether the plaintiff was insured, this does not change the measure of a particular plaintiff’s damages. The Court noted a similar disparity in lost income damages between different plaintiffs with identical injuries. There were several amicus briefs filed in this matter, including one prepared by Sedgwick. For more details about Howell, see the Damages update page.

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Governor Jerry Brown has acted to fill the California Supreme Court vacancy created by the retirement earlier this year of Associate Justice Carlos R. Moreno by nominating U.C. Berkley law professor Goodwin Liu to the post. 

Professor Liu, 40, has never been a judge, but recently garnered headlines as President Obama’s nominee for a seat on the U.S. 9^th Circuit Court of Appeals. His confirmation was blocked by Senate Republicans, citing his legal philosophy and despite support from prominent legal conservatives Kenneth W. Starr and Richard Painter. He ultimately withdrew his nomination. 

Professor Liu is the son of Taiwanese immigrants. He was born in Georgia, but raised in Sacramento where, according to his CV, he attended public schools. He graduated Stanford in 1991 with a bachelor’s degree in biology, then went to Oxford on a Rhodes scholarship, where he took a masters degree in philosophy and physiology. “Upon returning to the United States, he went to Washington, D.C., to help launch the AmeriCorps national service program and worked for two years as a senior program officer at the Corporation for National Service.” 

Professor Liu’s career in the law began upon graduation from Yale Law School in 1998, whereupon he clerked for Judge David Tatel of the U.S. Court of Appeals for the District of Columbia Circuit. He then worked “as Special Assistant to the Deputy Secretary of the U.S. Department of Education, where he developed and coordinated K-12 education policy.” A U.S. Supreme Court clerkship with Justice Ruth Bader Ginsburg followed, then a stint in O’Melveny & Myers’ appellate litigation practice in Washington, D.C. Since joining the Boalt Hall faculty in 2003, he has ascended to the rank of Associate Dean and Professor of Law while establishing himself as a nationally recognized expert on constitutional law, education policy, civil rights, and the Supreme Court. 

He is also a prolific and influential legal scholar. Some of his more recent publications include:

• Keeping Faith With The Constitution (2009) (with Pamela S. Karlan and Christopher H. Schroeder);
   
• The Bush Administration and Civil Rights: Lessons Learned, 4 Duke Journal of Constitutional Law & Public Policy 77 (2009);
  
• National Citizenship and the Promise of Equal Educational Opportunity, in The Constitution in 2020 (Jack M. Balkin & Reva B. Siegel eds., 2009);
  
• Rethinking Constitutional Welfare Rights, 61 Stanford Law Review 203 (2008).

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In a day and age when every other day there seems to be a sex scandal involving a politician’s “indiscretions,” the Florida Supreme Court has been asked to examine a legal issue arising out of an alleged sex scandal. In DelMonico v. Traynor, No. SC10-1397, the Court must determine whether an attorney is protected by the litigation privilege against claims for defamation and tortious interference when he related to another party’s ex-spouses and former business associates during witness interviews that the party used prostitutes to entice business clients. The Court accepted the case for review based on conflict with the Court’s prior decision in Levin, Middlebrooks, Mabie, Thomas, Mayes & Mitchell P.A. v. U.S. Fire Insurance Co., 639 So. 2d 606 (Fla. 1994). The district court’s decision is reported at 47 So. 3d 1287 (Fla. 4th DCA 2010), and the slip opinion can be found here. The Court heard oral argument on June 9, 2011.

The District Court’s Decision. The district court affirmed the application of the privilege to bar the claims against the attorney and his law firm. Over the dissent of one judge, the district court held that “[b]ecause the statements complained of were made by the [attorney] while he was acting as defense counsel in the underlying litigation, and the statements bore ‘some relation’ to the proceeding, they were absolutely privileged as a matter of law.” 

The dissent, on the other hand, questioned whether a qualified, rather than absolute, privilege applied since the attorney’s defamatory statements targeted a person outside a “judicial proceeding.”  It then concluded that disposition by summary judgment was not appropriate because “there remain disputed issues of material facts as to whether the attorney made the statements and whether they were made with the intent to injure the appellant.”

Review before the Florida Supreme Court. The Florida Supreme Court accepted review of the case based on express and direct conflict with its decision in Levin Middlebrooks which held that “absolute immunity must be afforded to any act occurring during the course of a judicial proceeding, regardless of whether the act involves a defamatory statement or other tortious behavior . . . so long as the act has some relation to the proceeding.” Petitioners asserted that the district court’s holding conflicted with Levin Middlebrooks “by applying an absolute privilege to statements defaming a party outside of a judicial proceeding, at a time when the defamed party and/or his lawyer are not present, not provided an opportunity to be heard, and not able to have any judicial recourse because the defamatory statements are not made in the ‘course of the judicial proceeding.’”

In sum, the issue before the Court turns on the meaning of the phrase “course of judicial proceeding.” Does the “course of judicial proceedings” requirement become non-issue once a lawsuit is filed? Does it sweep into its net comments made during potential witness interviews outside the presence of the defamed party or a judge? Does the term require that the statements be made during a formal discovery process (e.g., deposition, answer to interrogatories), a court filing, or in open court? In the end, the Court will have to balance “the chilling effect on free testimony” versus “the right of an individual to enjoy a reputation unimpaired by defamatory attacks” based on the facts of this case.

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Under respondeat superior, an employer is held vicariously liable for the acts of an employee when driving a vehicle within the scope of employment, irrespective of any fault by the employer. Alternatively, an employer can be directly liable for its own negligence under the theory of negligent hiring/retention or negligent entrustment. As a practical matter, a plaintiff injured by the driving employee can allege all such theories; however, does that remain true once the employer admits liability under respondeat superior?

In Armenta v. Churchill (1954) 42 Cal.2d 448 (Armenta), the California Supreme Court held that once an employer admits liability under respondeat superior for an employee driver, the plaintiff is then barred from also pursuing a claim of negligent entrustment. The Court concluded that these were merely two alternative theories for holding an employer liable for the same injury. Under the “all of nothing” principles then in place, an employer would either be held for 100% of the damages, or none at all, regardless of the theory used. However, since Armenta, California has adopted comparative negligence principles and voters enacted Proposition 51, creating mechanisms for parsing out the separate liability of each party involved. As a result, the courts of appeal split as to the continuing viability of Armenta, with the Court of Appeal in Diaz finding that Proposition 51 required a separate evaluation of the employer’s direct liability.

In Diaz v. Carcamo (2011) ___ Cal.4th ___, S181627, the unanimous Supreme Court has resolved the conflict below and upheld Armenta, noting that this remained the majority rule in the U.S. The Court first dismissed the purported distinction between a claim of negligent entrustment (Armenta) and negligent hiring (Diaz), noting these were “functionally identical” when addressing an employee driver. The Court also found it made no difference whether the employer conceded vicarious liability before or during trial. As to the main issue, the Court sided with Jeld-Wen, Inc. v. Superior Court (2005) 131 Cal.App.4th 853, finding that the employer’s liability cannot exceed that of the employee driver who allegedly caused the accident, and that nothing in the development of negligence principles since Armenta had changed this. As a result, once vicarious liability for the employee is conceded, making the employer fully liable for the employee’s actions, the additional claims of negligent entrustment or negligent hiring become duplicative and superfluous and must be barred. Indeed, the Court noted the inherent inequity of holding the employer for a second share of liability in excess of the negligent driver’s liability, and remanded for a full retrial. For more details about Diaz, see the Torts & Products update page.
 

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The Supreme Court’s decision overturning the certification of the massive gender discrimination class in Wal-Mart v. Dukes [pdf] has been well-publicized. We go behind the headlines, therefore, to offer a few educated guesses as to what the case will mean for the future of class actions and other forms of aggregate litigation:

• Statewide classes barred on state law will become more common as claimants will seek friendlier state jurisprudence on the commonality question;
   
• Some counsel will seek to litigate claims through “mass actions” of large numbers of individual claimants rather than face rigorous class action requirements;
   
• Greater care will be taken in framing class definitions to meet Wal-Mart’s more rigorous commonality standards;
   
• The practice of “smuggling” monetary claims into purported injunctive class actions will stop;
   
• Attempts to bring medical monitoring claims as injunctive class actions will face increased scrutiny;
   
• Merits-related evidence will usually be essential at certification hearings;
   
• Expert testimony at the certification stage will be subject to Daubert scrutiny;
   
• The unanimous rejection of “trial by formula” will stifle “creative” attempts to dispose of aggregated claims by denying the defendants’ right to present individual defenses. “Bellweather” trials will not be binding.

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"You don't want to lose credibility," Justice Thomas told Bryan Garner during their 2007 interview [pdf]. "That is the one thing you bring with you. And if you lose it, it's hard to get it back."

A lawyer's credibility is his or her stock in trade, and that's especially true in the appellate courts. Appellate judges rely on the lawyers before them to give an honest account of the facts below, and enter into an open dialogue about the application of the law to those facts. As Justice Kennedy said, "I've learned that the judges really want your help."

Few lawyers would question the proposition that they have a duty to be fair and honest about the facts and the record. Justice Ginsburg points that out in her interview with Garner: "if a brief-writer is going to slant something or miscite an authority, if the judge spots that one time, the brief will be distrusted - the rest of it." Nevertheless, it happens, at least in the intermediate appellate courts. After twenty-five years practicing in the appellate courts, I've certainly seen record cites that don't support the accompanying factual assertion. And once in a great while you see brief-writers whose discussion of a few key authorities stretches the boundaries a little too far.

The justices remind us to be scrupulous about the little things. The first and last thing I do with every brief is to review the applicable court rules - a habit I learned with my first appellate brief, when a senior partner reminded us that we would not under any circumstances be getting any non-compliance calls from the court clerk. Proofread carefully and repeatedly -- Justice Stevens observes that he "almost never" reads a brief with no typographical errors, but Justice Scalia told Garner that typographical errors undermine your credibility: "It just shows you're not careful." Particularly with courts of discretionary jurisdiction, Justices Thomas and Kennedy both note that some attorneys insist that the cases stand for more than they really do. "[W]e know that's not true," Justice Thomas said. "That's not advocacy; that's just being dishonest."

But protecting your credibility goes deeper than that. As Justice Thomas says: "I think when you give ground, you gain credibility. When you hold ground that you don't deserve, you do not gain credibility; you lose credibility." Bringing arguments with no chance of success is not a cost-free exercise in the appellate courts. Filing a petition for review at your state Supreme Court claiming that half a dozen issues are worthy of review -- or devoting an appellate brief to what's really a jury argument -- merely tells the court that you don't understand its mission.

Justice Thomas' advice reminded me of a story about Abraham Lincoln. Lincoln's friend Leonard Swett tried dozens of cases while riding circuit with Lincoln, both as his co-counsel and his opponent. After Lincoln's assassination, Swett told Lincoln's biographer (and former law partner) William Herndon:

As he entered the trial, where most lawyers would object, he would say he reckoned it would be fair to let this in, or that . . . When the whole thing was unraveled, the adversary would begin to see that what he was so blandly giving away was simply what he couldn't get and keep. By giving away six points and carrying the seventh he carried his case, and the whole case hanging on the seventh, he traded away everything which would give him the least aid in carrying that.

Justice Thomas and President Lincoln have important advice for our practices. Most appellate judges glance at the counsel signature block when they pick up a brief. Strive to give them a sigh of relief when they see your name on the brief, because they know your record cites will say what you claim, your cases are correctly cited, your brief is complete and intellectually honest; in short, that you've given them the help they want.

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My favorite part of my job is oral argument. A well-prepared oral argument with a hot bench is everything that draws a lawyer into appellate practice -- a fast-paced but thoughtful give-and-take about what the law is, and where it should go. As Justice Scalia told Bryan Garner, “I think good counsel welcomes, welcomes questions.”

Still, nothing in appellate practice has more capacity to keep lawyers pacing the floor at night.

As you might expect, Bryan Garner's Supreme Court interviews contain detailed advice for preparing for oral argument, enjoying the process, and even persuading the court to your client's point of view while you're at it.

One of the most difficult skills to learn in appellate argument is how to stay on message despite a hot court. Inexperienced advocates tend to become wedded to a speech, or at least an inflexible outline. When the questions start flying, they can’t adapt their presentation, and sometimes they wind up committing the cardinal sin of responding to a question with "I'll get to that in a moment." You’re there to answer the court’s questions, nearly to the exclusion of all else. Evade, stall or equivocate, and you try the court’s patience and risk your credibility. Answer the question. Immediately.

Chief Justice Roberts offers a great suggestion for mastering the skill of adjusting your argument on the fly to fit the flow of questioning. He points out that every argument breaks down to just a few points – call them A-D. Put each point on an index card. During your practice sessions, shuffle the cards as you're introducing your argument, then look down and take your points in the order you see -- if the first card says point "C," then begin there. That way, if a judge interrupts in the first two minutes and wants to move straight to your final point, your presentation will flow smoothly from there through your other points.

As Jay O'Keeffe argued on his appellate blog De Novo last year, moot court practice sessions are an absolutely essential part of preparing for most cases. Today, more cases than ever are resolved on the briefs; oral argument doesn't change the result. But you can never predict whether your case will be one of the exceptions, so you have to be ready. Know the record and know the cases: "as a lawyer," the Chief Justice told Garner, "you've got to be prepared to answer a thousand questions. You might get eighty, you might get a hundred, but you've got to be prepared to answer more than a thousand." Although predicting the hard questions the court might ask is an indispensable skill for an appellate lawyer, you'll need help from your colleagues. The Chief Justice recalled:

I would do countless moot courts early on. For a Supreme Court case, certainly five, maybe as many as ten. I'd do them over and over again, and it paid off enormously in terms of generating familiarity with the types of questions people would ask and also developing a comfort level with answering.

The Chief Justice reminds us to resist the urge to staff your moot court with people who might be expected to be sympathetic to your client’s position. If your client is a criminal defendant, find three former prosecutors for your sessions. If you're representing a corporate defendant, find a former plaintiff's lawyer. Answering the easy questions doesn't do you any good; you want the hostile ones. Strive to walk out of your argument thinking it was easier than your moot courts.

I'll conclude with my own tip: listen and learn. Become a fan of the great oral advocates. Check out the oral argument audios at the Oyez Project. Pick up a few of Peter Irons' May It Please the Court book-and-audio collections and listen during your commute (just hope nobody asks what's on your iPod playlist).

Join us back here tomorrow for the conclusion of our four-part series on Bryan Garner's SCOTUS interviews in LawProse.

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"God created man because he loved to hear stories," goes an Ethiopian proverb.

You might think that narrative has little or nothing to do with writing a good brief. But as Professor James Boyd White reminds us, "The law always begins in a story . . . It ends in a story, too." Chief Justice Roberts tells Bryan Garner in the LawProse interviews that story-telling is central to writing a compelling statement of facts:

It's got to be a good story. Every lawsuit is a story . . . I don't care if it's about a dry contract interpretation; you've got two people who want to accomplish something, and they're coming together -- that's a story. And you've got to tell a good story . . . you want it to be a little bit of a page-turner, to have some sense of drama, some building up to the legal arguments.

People are natural story-tellers; stories are an innate way for us to order and interpret all of human experience. As Barbara Tuchman wrote, "narrative is the life-blood of history." Telling a story in your brief that fits an established paradigm gives the result you want an internal consistency -- any necessary inferences you're asking the judge to make will seem reasonable. If you frame your story well, your desired result will have the virtues of fidelity -- stories the decision maker knows to be true -- and ideals -- consistency with what the decision maker wants to be true. Tapping into stock stories and myths, like Joseph Campbell's archetypal stories, is a powerful tool of persuasion.

The elements of story-telling are directly applicable to our craft, as several commentators have shown in recent years, see here [pdf] and here [pdf] and here. [pdf]. Every lawsuit occurs in a setting, of course -- the factual background and the governing law. As in every good story, conflict takes center stage, and here, the lawyer must make a decision -- is the story one of person against person? Against self? Against nature? Against society? The theme of a persuasive brief should define the central conflict in terms of the characterization, casting the story in a light the decision maker can identify with. And finally, all cases have a plot: set-up, complication, and finally, resolution, showing that the law must arrive at the result you're seeking.

Point of view is central to all legal writing. Consider how different several famous cases of recent years sound, depending on which side's version you read:

The Rod Blagojevich Case:

• "[A] political corruption crime spree."
   
• Impeachment was a secret deal with the legislature to raise taxes.

The Prop 8 Case:

• A radical departure from long-settled tradition.
   
• Vindication for equal treatment under the law.

The Bill Clinton Case:

• The President is degrading his office.
   
• Impeachment is a political power-play.

"It is something to show that the consistency of a system requires a particular result," Justice Oliver Wendell Holmes wrote in The Common Law, "but it is not all. The life of the law has not been logic: it has been experience." From Justice Holmes to Chief Justice Roberts, great advocates have always known that every brief -- indeed, every case -- must begin with a strong narrative.

Join us back here tomorrow for Part III of our four-part series on Bryan Garner's SCOTUS interviews in LawProse.

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The Illinois Supreme Court has announced that on the morning of Thursday, June 16, it will file opinions in four civil cases [pdf]:

• Studt v. Sherman Health Systems, No. 108182-- Does the Illinois pattern jury instruction on professional negligence (Civil No. 105.01) correctly state the applicable standards? See Tort Law.
   
• Sheffler v. Commonwealth Edison Co., No. 110166-- Does a complaint seeking both injunctive relief and damages in connection with defendant’s alleged failure to timely restore power after storms, and to give priority in restoring power to customers dependent on electric life support system, fall within the exclusive jurisdiction of the Illinois Commerce Commission? See Tort Law.
   
• Genius v. County of Cook, No. 110239-- Does the Cook County Employee Appeals Board have jurisdiction to decide disciplinary charges against an officer based on abolished rules? See Government Law.
   
• Snyder v. Heidelberger – No. 111052 -- Does a quitclaim deed intended to create a joint tenancy between a husband and wife cause an injury within the meaning of the statute of repose for legal malpractice actions, 735 ILCS 5/13-214.3, when the deed is executed and recorded, when the husband dies and the alleged error can no longer be rectified, or both? See Tort Law.

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