Archives: Appellate Practice

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The Restatement of the Law of Liability Insurance: Chapter 1, Sections 1-3

Today, let’s begin our section by section tour through the American Law Institute’s new Insurance Restatement. Chapter 1, Section 1 of the Restatement includes definitions of common terms found in the law of liability insurance, including such commonplace concepts as a condition, the insuring clause, a mandatory (versus non-mandatory) rule, a policy limit and a … Continue Reading

Prologue Part 2: The Antitrust Law of Foreign-Based Transactions Before Passage of the FTAIA

Today, we’re continuing the prologue of our tour through the law of the Foreign Trade Antitrust Improvement Act, surveying the antitrust law of foreign-based transactions in the years leading up to enactment of the FTAIA.  In our first installment, we reviewed the Supreme Court’s decision in American Banana Co. v. United Fruit Company, 213 U.S. … Continue Reading

California Supreme Court In 2015: A Year In Transition

Originally published on Law360, Feb. 4, 2016. Posted with permission. 2015 was a year of transition for the California Supreme Court as two new justices appointed by Gov. Jerry Brown, Justices Mariano-Florentino Cuellar and Leondra R. Kruger, took office in early January. Because the new justices replaced Republican appointees, there has been widespread speculation that … Continue Reading

Florida Appellate Court Confirms That Pedestrian May Be Responsible For Collision With Vehicle

On December 2, 2015, the Second District Court of Appeal, in Panzera v. O’Neal (Case No. 2D14-4302), held that the plaintiffs did not present any admissible evidence to support their negligence claim against the defendant-truck driver and his employer or to refute the conclusion that the decedent-pedestrian caused the highway collision. Accordingly, the court affirmed … Continue Reading

The Adverse Amicus: Does Court Acceptance of Factual Assertions Require a More Active Response?

The September 1 issue of the New York Times reports on an upcoming article on the role of amicus curiae briefs in shaping Supreme Court opinions. The article, authored by William and Mary professor, Allison Orr Larsen, addresses the tendency of Supreme Court Justices to cite factual assertions made by amici. These assertions may inject matters into … Continue Reading

Reading Law: An Indispensable Treatise

In 2012, Supreme Court Justice Antonin Scalia and legal writing expert, Bryan Garner, published Reading Law: The Interpretation of Legal Texts. According to its authors, the purpose of the book is two fold: (1) to promote a judicial philosophy that finds the content of the law in the text of the Constitution, statutes, and contracts … Continue Reading

Why Judicial Vacancies Matter – Part I of a Series

As Chief Justice John Roberts observed last year [pdf], judicial nominations have become something of a game for the political branches of the Federal government. Slow-walking judicial nominations – or even bringing the processing of new nominees to a complete halt – is either the last bastion of freedom or an assault on the Constitution. Both parties … Continue Reading

Thomas & Lincoln on Appellate Practice: Your Credibility is Everything (The Bryan Garner Interviews IV)

"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 … Continue Reading

Learning to Love Oral Argument (and Persuade the Court While You’re At It) — The Bryan Garner Interviews III

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 … Continue Reading

Good Legal Writing Is Just Good Writing – Bryan Garner’s SCOTUS Interviews, Part I

In 2006 and 2007, legal writing icon Bryan Garner had an amazing opportunity — he interviewed eight of the nine then-sitting Justices of the United States Supreme Court on legal writing and appellate advocacy. The videotapes have been posted on Garner’s LawProse site for a while now, but last year, Garner made the Justices’ advice even … Continue Reading

California Supreme Court Civil Issues Pending: Judicial & Appellate Review

[UPDATED THROUGH SEPTEBMER 29, 2016] Can You Appeal a Claim That Was Dismissed Without Prejudice With a Waiver of the Statute of Limitations? After the Court of Appeal dismissed an appeal as being untimely and from a nonfinal judgment, the Supreme Court granted review on the issue of whether plaintiff can take an appeal regarding causes … Continue Reading