Tag Archives: lawyer

SC Supremes: Cite the Entire Ruling

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Last month, I posted on attorneys who create accidents with contextomy. Sounds weird, I know, without defining the terms.

“Accident,” in this sense, is a logical fallacy in which one advocates a general rule without acknowledging any exceptions. Contextomy means taking something out of context. The post noted that the two often go together.

State v. Dawson, Op. No. 27238 (S.C. Sup.Ct. filed April 3, 2013)(Shearouse Ad.Sh. 15 at 14), shows the two at work.

At issue on appeal was whether a defendant is sentenced under the law in effect at the crime’s commission or the law in effect at the defendant’s sentencing. Defense counsel argued for the common law rule and cited a case saying that the common law governed.

Problem was that the case counsel cited held that the common law rule governed “in the absence of a controlling statute.” And counsel neglected to mention that part of the holding.

The omission did not escape notice. The Supreme Court pointedly observed that counsel omitted the qualifier about controlling statutes, and concluded that a statute did indeed control.

Truncating quotes is not new, and happened often enough for the courts to create safeguards. During trial, for example, a party may use Rule 106, SCRE, to get opposing counsel to introduce other parts of a writing or recorded statement into evidence once counsel introduces part of a  writing or recording. Rule 32(a)(4), SCRCP, likewise allows a party to require opposing counsel to introduce into evidence other parts of a deposition once counsel introduces any part of the deposition. Both rules make sure that counsel is not creating an accident with contextomy  — otherwise known as quoting out of context.

Has anyone else had opposing counsel truncate quotes on appeal? Please leave a reply or a comment, or reach me at www.attorneyroberthill.com.

 

 

 

 

 

 

 

 

Reviewing Appellate Orders: the Catch 22

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catch 22Joseph Heller memorialized the phrase “Catch 22″ in his novel. Yossarian, a WWII combat pilot, asks about how to be grounded:

Yossarian: Ok, let me see if I’ve got this straight. In order to be grounded, I’ve got to be crazy. And I must be crazy to keep flying. But if I ask to be grounded, that means I’m not crazy anymore, and I have to keep flying.
Dr. ‘Doc’ Daneeka: You got it, that’s Catch-22.
Yossarian: Whoo… That’s some catch, that Catch-22.
Dr. ‘Doc’ Daneeka: It’s the best there is.

South Carolina imposes a similar catch when a single judge or justice denies an appellate motion. Rule 240(j) generally allows a single judge or justice to rule on appellate motions, and provides: “Any review of an order issued by an individual judge or justice shall be by petition for rehearing.” But the rule also provides that the court will not entertain petitions for rehearing unless the appeal is effectively dismissed or finally decided. Rule 240(i), SCACR.

So what happens if a meritorious motion is wrongly denied? Review is by petition for rehearing, yet you cannot petition for rehearing because the appeal remains pending. And we go round and round. That’s some catch, that catch-22.

There are three possible ways to cut through this.

If the motion to dismiss was for lack of subject-matter jurisdiction, you can re-raise the issue in your brief on the merits. As an earlier post explains, subject-matter jurisdiction can be raised at any time. And taking an untimely appeal, or trying to appeal an unappealable order, are jurisdictional. Applying this rule, the Court concluded that a party could argue to the panel that an appeal is untimely without petitioning to rehear a single judge’s refusal to dismiss. Portee v. Always Precise Protection Agency & Investigations, Inc., No. 2012-UP-649 (S.C. Ct.App. filed Dec. 5, 2012).

Another way is find a more specific governing rule. For example, the rule governing stays and supersedeas specifically provides that an aggrieved party may petition the full appellate court for review of the single judge’s order. Rule 241(d)(2), SCACR.

Lastly, you can attack the rule head-on. S.C. Code §§ 14-3-350 and 14-8-220 provide that appeals “shall be allowed” from orders issued by a single appellate judge or justice. This seems to authorize review of a single judge’s or justice’s order no matter what Rule 240(i), SCACR says. Because court rules are subject to statutory law, the statutes should trump the rule. See S.C. Const. Art. V § 4 (“Subject to the statutory law, the Supreme Court shall make rules governing the practice and procedure in all such courts.)

Has anyone else faced this Catch-22? How did you work through it? Please leave a reply or reach me at www.attorneyroberthill.com.

 

 

 

 

 

 

9th Circuit Brief-Writing Tips

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Ninth Circuit Court of Appeals

Ninth Circuit Court of Appeals

Earlier this year, Rebecca A. Copeland reported on a meeting of the Hawaii chapter of the Federal Bar Association. Four judges of the Ninth Circuit attended and offered tips on brief writing. Rebecca was kind enough to report their advice. Three of their tips struck me the most.

Simpler is better

“Think through your case and figure out why you should win — try to come up with a short, simple explanation and trying it out on a non-lawyer to see if it makes sense.”

Early on, I viewed appeals as a law school exam in which one gets extra credit for raising every imaginable issue. I would then dress the issues up in legalese so that the reader would know that I knew what I was talking about. Thankfully, my thinking changed after I played a small part in a huge, multi-party appeal where a 3-page brief, making a single point without adjectives or adverbs, won the day. I now strive for simplicity.

Tell a story

“A well told story in the Statement of Facts will help guide the judge’s view of the rest of the argument.”

An earlier post of mine describes the power of story-telling and how narrative can drive the argument. Years ago, I helped represent a nurse who dispensed medicine in a prison. A prisoner “dashed” her by throwing his urine on her through the window of his cell. The Department of Corrections argued that it owed no duty to protect her from what it acknowledged was a dangerous convict. Filling in the details of the “dashing,” and how the nurse felt after being hit in the face with the convict’s urine, helped the case settle on appeal.

Tips on how to tell the story are available here.

Use the Table of Contents persuasively

“Take advantage of the Table of Contents to explain to the court what the case is about.”

Another post of mine explored how to use the Table of Contents effectively, both by nestling complete sentences to describe the case and to confirm the argument’s structure and flow.

Kudos to Rebecca for reporting the judges’ advice. Does anyone have any other tips to add? Please leave a reply or reach me at www.attorneyroberthill.com.

 

 

5 Stages in Editing an Appellate Brief

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In a post earlier this year, Kirby Griffis argued that lawyers should not try to edit their appellate briefs in one pass. He noted that book publishers have multiple editors to go through distinct tasks, including looking at organization and structure; checking the facts; reading for transitions and flow; and proofing for grammar, spelling, and usage.

These stages roughly correspond to the roles that Betty S. Flowers identified for writing. She identified the madman, the architect, the carpenter, and the judge.The madman is creative, spewing out ideas. The architect then comes in to create order from the chaos, followed by the carpenter who examines the text line by line. In the end, the judge polishes the draft and reviews the punctuation, grammar, and usage.

Flowers’s roles makes sense. I often let my judge jump in and start criticizing my madman before the madman can get all the ideas on paper. I want to write perfectly polished drafts the first time around. It will never happen.

I also will never be able to rewrite only once. I agree with Kirby that editing should come in distinct stages because I need to look for different things and will never catch everything the first time around.

Stage one – For me, stage one focuses on the big picture. I confirm here that I have a theme that has come through clearly, and that the draft structures the arguments logically around the theme. Reviewing the headings used in the table of contents helps.

Stage two breaks out the blue pencil. I try to rearrange the points for the best impact, and cull out points and paragraphs that do not directly advance the theme or argument.

Stage three is spading, where I make sure that the record and cases say what I say they said, that the citations are pin-point citations, and that the citations are in proper form.

Stage four begins polishing. In it, I make sure that there are transitions between arguments and between the points made within each argument, and that each sentence ends emphatically.

Stage five ends the process by proofing the document for spelling and grammatical errors, and to make sure that the headings are consistent. At this stage, a second proofreader is invaluable because I often read what I meant instead of what I wrote.

How do you all review and edit your appellate briefs? Please leave a reply or reach me at www.attorneyroberthill.com.

Battling Straw Men on Appeal

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Ever had opposing counsel misrepresent your argument? This post ends a series on logical fallacies that I have faced handling South Carolina appeals. Misrepresenting an opposing argument falls in a family of fallacies known as “ignoratio elenchi,” literally meaning “ignorance of refutation.”

The fallacy occurs when a response side steps the issue. This could be a “red herring” where your opponent simply changes the subject. Or it could be a special type of distraction where opposing counsel misrepresents your point to say that you raised a similar but weaker argument. Opposing counsel then attacks the weaker argument without grappling with the issue that you actually raised.

This is the classic straw man. I faced it in a case against the South Carolina Department of Transportation. At issue whether a trial court could make a plaintiff sue previously released parties so that the defendants could apportion liability. In the trial court, my co-counsel argued that this could not be the law because, if it was, the court would have to dismiss some defendants because other defendants had good defenses.

This was a reductio ad absurdum argument in which you disprove a point by showing that the logic leads to absurd results. Unfortunately, the Department of Transportation mischaracterized the argument as saying that we asked for the dismissal. It then argued that we should lose because we invited the error.

See how it works? You create an argument that was never made on appeal, knock down the straw man that you created, and walk away without joining the true issue.

In my case, I was able to point the South Carolina Supreme Court to specific record citations showing what was going on. The Court did not find invited error, and agreed with us on the merits. The case is Chester v. South Carolina Dep’t of Transp., 388 S.C. 343, 698 S.E.2d 559 (2010).

Anyone else had their arguments misrepresented this way? Please leave a reply or reach me at www.attorneyroberthill.com.

 

 

 

 

Preserving Error in SC Appeals – Feb. 2013 Update

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Judges of the SC Court of Appeals

Judges of the SC Court of Appeals

The South Carolina Court of Appeals applied error preservation rules several times this month. Here is a summary of three decisions:

In Carpenter v. Measter, Op.No. 2013-UP-066 (S.C. Ct.App. filed February 6, 2013), the Court declined to consider issues where:

  • the record did not show that the precise issue raised on appeal was raised in the trial court
  • the trial court did not rule on the issue
  • the appellant acquiesced in the trial court’s ruling
  • the issue was not raised in the Statement of Issues on Appeal

The decision up updates earlier posts on raising error in the trial court with specificity and making sure that the Statement of Issues is complete.

The Court this month also twice dealt with when a post-trial motion will and will not toll the time to appeal. In one, the Court held that a post-trial motion did not toll the time to appeal because the motion was never served on the opposing party. It reasoned that only a timely post-trial motion tolls the time, and a motion that was never served is not timely. Lake Marion Regional Water Authority v. Goodwin, No. 2013-UP-088 (S.C. Ct.App. filed February 27, 2013).

In the other case, the Court held that a second post-trial motion, which was served, did not toll the time because it was successive. Peterson v. Peterson, No. 2013-UP-085 (S.C. Ct.App. filed February 20, 2013). This decision updates an earlier post on successive post-trial motions.

Has anyone else recently convinced an appellate court that an issue was not preserved for an appeal? Please share your story by leaving a reply or a comment. You may also reach me at www.attorneyroberthill.com.

 

 

 

 

Distinguishing Cases on Appeal – 3 Fallacies

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Mark Twain

Mark Twain

Mark Twain once said, “All generalizations are false, including this one.” This aphorism highlights some of the continuing fallacies that I have run across in handling South Carolina appeals. This post covers three fallacies over generalizations.

I have run across arguments where an attorney tries to extrapolate a general rule from a materially distinguishable case. In one case I have seen, for example, an insurance company is arguing on appeal that a single decision overruled — silently — almost a dozen statutory-construction cases rendered over 30 years. A fairer reading, I believe, is that the case is distinguishable.

Wrongly gleaning generalizations is a formal fallacy known as the “converse accident.” The fallacy relies on cases that are materially different and argues that the differences are only insignificant variations within the scope of the proffered rule. The brief writer wants us to believe that the same rule covers the different cases.

The converse of the “converse accident” is, well, the “accident.”  It occurs when a lawyer or others advocate a general rule without acknowledging an applicable exception. I have faced this too. In one case, opposing counsel advocated a general rule that he gleaned from an ALR. I was able to use the same ALR to show that an exception to the general rule existed and applied. The case involved the proper measure a damages for negligently destroyed trees.

Lastly, these fallacies are often accompanied by a third fallacy known as “contextomy.“  As the name suggests, this is a fancy term for taking quotes and other materials out of context. We all know that when we see it, and judges do too.

Has anyone else faced these fallacies on appeal? Please leave a reply or reach me at www.attorneyroberthill.com.