Internet Possibilities

An internet discussion group (listserv) of particular interest to appellate lawyers is appellatelaw.net. It is a forum of appellate attorneys from all over the country and most recently featured a lively discussion about unpublished opinions, depublication and the efficacy of footnotes. The folks on this forum can even make a discussion about style interesting. Apparently the University of Arkansas at Little Rock School of Law is starting a new law review called "Journal of Appellate Practice and Process." If you are interested the address is c/o Professor J. Thomas Sullivan, Editor Journal of Appellate Practice and Process, University of Arkansas at Little Rock (UALR) School of Law, 1201 McAlmont Street, Little Rock, Arkansas, 75142; (501) 324-9940, APPJ@ualr.edu.

Also the Willamette University College of Law (Salem, Oregon) is providing free e-mail services which include the following: WLO-USSC/US Supreme Court case summaries; WLO-9CA/Ninth COA Circuit case summaries; AK-SCT/Alaska Supreme Court case summaries; CAL-SCT/California Supreme Court case summaries; WLO-SCT/Oregon Supreme Court case summaries; WLO-CTA/Oregon COA case summaries; WA-SCT/Washington Supreme Court case summaries; DIS-RES/Recent developments in Dispute Resolution; LABOR-EMP/Recent developments in Labor and Employment law; NLRB-WEEKLY Summaries of NLRB decision.

Rosemary Gordon

Chairperson's Message

I would like to take this opportunity to thank the membership of the Appellate Practice Section for selecting me as the fourth chair of the Council. I would also like to thank my predecessors, Brian Shannon, Mary Massaron Ross, and Joe Firestone, for their efforts in putting our Section on such a good course.

What we have accomplished in three years is extraordinary. We now have 638 attorney members, and an additional 33 affiliate members. We have put together a superb newsletter for our members. We have established an ongoing dialogue with the Court of Appeals. We have presented excellent educational programs. We have provided a mechanism for our members' views to be heard on a variety of issues affecting our practices.

No organization can rest on its laurels, and there is certainly more work to be done. For one thing, we need to establish a better dialogue with the Supreme Court. For another, we should become more proactive, discuss and propose rules amendments or procedural changes which would be beneficial both to our membership and to the courts. Both are goals on which I hope we can make substantial progress during the upcoming year.

A great amount of the work of the Appellate Practice Section is accomplished through its committees. We currently have seven committees: Court Liaison/Rules, Federal Court Practice, Michigan Court Practice, Publications, Legislative Liaison, Technology, and Economics of Law Practice. The members of these committees need not be Council members, and most of them are not. I would encourage all of you to become active in the committee work. If you have any interest in serving on any committee, please contact me. And if you have any item which you would like the Council to address, or any concern over appellate practice which you wish to discuss, please let me know.

Proposed Briefing Schedule Rules

On September 18, 1997, the Supreme Court held an open meeting to discuss, among other items, the proposed amendments to MCR 7.211, 7.212 and 7.213, which would have adopted a briefing schedule. In an October 14, 1998 letter from Chief Judge Corrigan to the Supreme Court, Judge Corrigan asked that the Supreme Court postpone any decision. This letter is being reproduced with the permission of Chief Judge Corrigan, at pages 13-15. Acting upon this letter and various comments made by interested parties, the Supreme Court has tabled any action on the proposed briefing schedule rules.

Shannon's Soapbox

You, dear reader, would never make either of the mistakes I'm about to discuss. But parties and trial counsel, bless `em, regularly make these mistakes without our help, and then come to us for advice. The news flash I have for you today is that you are less likely to be able to fix these mistakes because of two recent decisions. The commentary I have for you today (would I mount the Soapbox without an opinion?) is that both decisions seem wrong.

Appellate practitioners know that appeals must be filed timely (FRAP 4) and that the notice must convey a very few nuggets of information (FRAP 3). Section Council member Kathleen McCree Lewis wrote earlier this year about timeliness and "excusable neglect" under Rule 4. "File Sixth Circuit Appeals Timely, Your Neglect May Not Be Excusable," 77 Mich Bar J 54 (1998).

What happens when the notice is timely but lacks one of the nuggets required by Rule 3(c)? That was the question in United States v. Webb and, sort of, in Mattingly v. Farmers State Bank (full cites to all the cases discussed here may be found in the summaries of Webb and Mattingly printed elsewhere in this Newsletter). Both cases dismiss timely-filed appeals for defects in the notice of appeal that many, if not most, federal appellate judges would overlook or permit to be cured.

Rule 3(c) says this: "An appeal will not be dismissed for informality of form or title of the notice of appeal, or for failure to name a party whose intent to appeal is otherwise clear from the notice." On December 1, the new FRAP cite becomes Rule 3(c)(4), and the word "will" becomes "must."

The Supreme Court made it clear in 1988 in Torres v. Oakland Scavenger Co. that Rules 3 and 4 are both jurisdictional. But Torres did more than that. While the rule requirements must be complied with, Torres holds that courts may construe the rule liberally in determining whether its requirements have been met.

Four years later, in Smith v. Barry, the Supreme Court looked at Rule 3(c) again and decided that an "informal brief" (a form that clerks send to incarcerated pro se appellants, which they fill in and return to the appellate court) could qualify as a notice of appeal.

Often the issue is whether the appellants or the district court orders have been sufficiently identified in the notice of appeal. Neither Webb nor Mattingly is such a case.

Webb

In Webb the notice neglected to name the court to which the appeal was being taken. Rule 3(c) requires this information. Amount of confusion caused by the omission: zero. This was not a patent case or any other kind of case that might have gone to some court other than the Sixth Circuit. It was a criminal case that had only one place to go from Judge Gadola's courtroom in Flint.

The district court appeals clerk knew where to send the file, and did. The parties knew where to file their briefs, and did. After Judges Merritt, Kennedy, and Gilman heard oral argument (and after they were satisfied that Judge Gadola had not abused his discretion in refusing to let Webb withdraw his guilty plea), they "discovered" the defect in the notice of appeal.

The panel noted that the absence of even a whiff of prejudice was irrelevant. Nor was it deterred by Brooks (noted in 1 APS Newsletter No. 4, Aug. 1996), in which the Sixth Circuit had "assumed" jurisdiction despite the same defect in the notice of appeal. In Brooks, as here, the appellant was going to lose anyway. A number of circuits have declined to rule on jurisdictional issues when it is easier to affirm on the merits, but the Webb panel took note of Justice Scalia's recent opinion in Steel Co, which was highly critical of the practice of assuming jurisdiction.

By my count, only Chief Justice Rehnquist and Justice Thomas wholeheartedly endorsed this section of Justice Scalia's opinion. The rest of the Court thought there were or might be at least some instances in which it was appropriate to assume jurisdiction. The Webb panel, however, expressed no reservations.

Whatever. It is little consolation to have jurisdiction assumed only in order to affirm. The more interesting question is whether the jurisdictional decision itself is correct aside from its discussion of Brooks and Steel Co., the Webb panel spent very little time talking about the Rule 3(c) issue. Rule 3(c) directs parties to name the court to which the appeal is taken; Webb did not do this; therefore no jurisdiction.

Contrast this approach with Bradley, decided in the Seventh Circuit one month before Webb. Bradley alluded to an earlier opinion in that circuit (Ortiz), decided the same year as Brooks, for the proposition that appeals should not be dismissed on "mere technicalities, including in the naming of the court to which a judgment is being appealed, if the notice as a whole is not misleading." The Bradley panel noted that the district court clerk was not in doubt concerning where to forward papers. Even though the case was "on the margins of ‘informality of form,' . . . it was adequate to bring the appeal to this court."

This seems to me to be the sounder approach. If the informal brief in Smith sufficed as a notice of appeal (and, on remand from the Supreme Court, it did), then the notice in Webb should too. I understand that prejudice is not the issue. But the defect is purely "formal" when no other court exists to which the appeal could go. The failure to name the only possible appeal court is a mere "informality of form" within the meaning of Rule 3(c)'s directive that appeals are not to be dismissed for such defects. Just as an appeal may not be dismissed as to an unnamed party if the unnamed party's intent to appeal is clear, so too an appeal should not be dismissed because the appellate court is unnamed unless there is some possible confusion concerning the court intended.

The message of Torres and Smith, I think, is that the rules are important, but courts should not flyspeck notices of appeal for "formal" defects. Webb's notice of appeal was defective, and in a different case it might have mattered. But here the defect was a mere formality.

I like the fact that, after December 1, the rule will say that an appeal must not be dismissed for mere informality of form. Although the point of the change likely was to use a more precise verb, not change the sense, it will give appellate counsel a hook to hang their hat on when faced with Webb in the future.

Mattingly

In some ways, Mattingly seems even more wrong. In this case the notice of appeal had no Rule 3(c) defect The panel, consisting of Judge Gilman again, this time with Judges Moore and Clay, reached all the way to Rule 11(a) of the Federal Rules of Civil Procedure to find a defect–the notice of appeal was unsigned. The panel ignored the fact that a Rule 11(a) defect is explicitly curable and that a defect is not "jurisdictional" under Torres unless it is a failure to satisfy some requirement of Rule 3 or 4.

Rule 11(a) requires papers filed in the district court to be signed, but ends with this sentence: "An unsigned paper shall be stricken unless omission of the signature is corrected promptly after being called to the attention of the attorney or party." The point of the rule, of course, is to check abuses in the signing of pleadings and other lawsuit papers. For this purpose, the signature is what matters, not the timing of it.

By construing a signature as jurisdictionally required under Rules 3 and 4 (which do not unequivocally state any such requirement), the panel eliminated the opportunity to cure that is unequivocally provided for in Rule 11(a). The panel held that the signature was required within the time allowed by Rule 4, and thus could not be supplied "promptly after being called to the attention of the attorney or party."

Mattingly was a civil rights action dismissed as frivolous by the district court. The notice of appeal was filed by pro se appellants. The outcome on the merits likely was not in doubt. But the panel has made some bad law in the process of making the merits irrelevant. Enforcing Rules 3 and 4 rigorously is one thing; inferring additional requirements not explicitly set forth in the rules is quite another.

The panel found support for its decision in Rule 3(c)'s statement that "[a] notice of appeal filed pro se is filed on behalf of the party signing the notice and the signer's spouse and minor children, if they are parties, unless the notice of appeal clearly indicates a contrary intent." But this sentence is intended to protect pro se appellants who neglect to have their unrepresented spouses or minor children sign the notice, not to hammer the pro se appellant who neglects to sign his or her own notice.

That this is so will be clearer when the new Rule 3(c) takes effect December 1. The new rule gathers the actual required contents, now divided in two widely separated sentences, and sets them forth clearly in Rule 3(c)(1)(A)-(C). No signature requirement is listed. The sentence about pro se notices of appeal becomes a separate subsection, distinct from the list of required contents. If you doubted that the FRAP amendments I wrote about in the last Soapbox are important, perhaps Mattingly could serve as Exhibit 1.

The panel observed that failing to sign the notice of appeal cannot be what Torres would deem the "functional equivalent" of doing so, but this matters only if Rules 3 and 4 require a signature. And they don't. Nonetheless, I'm prepared to grant that notices of appeal must be signed because of Rule 11. But all of Rule 11(a) should apply to the signature requirement, including the right to cure.

The panel tried to show what an appellant might hope to gain by deliberately not signing a notice of appeal: "An unsigned notice of appeal could be nothing more than opportunistic behavior by the purported appellant in order to gain more time to consider whether or not the party really wants to appeal." Presumably, the court is thinking here that someone might file an unsigned notice, then refuse to prosecute the appeal, then thumb his or her nose at the courts because there was no signed paper on which to premise proceedings for sanctions under FRCP 11 or FRAP 38. But a signature is not required under either rule as a precondition to sanctions. And how does an appellant "gain more time" by filing an unsigned notice of appeal? Unless I'm missing something, no time is gained in this way because the filing deadline remains unchanged.

Finally, the panel suggests that appellees might wonder whether an appellant who does not sign the notice of appeal really intends to seek appellate review. This seems unlikely, but if it happens the appellee can simply call the omission to the attention of the appellant as Rule 11(a) provides. Since the appellant must then "promptly" sign, the appellee's confusions will be short-lived.

It is customary in those cases for the court to end by saying that, although its reading of the rules "may produce harsh results," it is the rules, not the courts, that are harsh. Mattingly, for example, makes this point. But when courts avoid the merits by reaching out, sua sponte, to seize upon a purely formal defect (Webb) or an implied jurisdictional requirement (Mattingly), then I think the court itself must take responsibility for the harsh result. In my view, the court's duty to satisfy itself concerning its jurisdiction did not require either of these dismissals. Rather, I suspect these opinions were published to create precedent that should prove useful in short-circuiting a number of pro se appeals that, in any event, have very low prospects of success on the merits. I hope my suspicions are wrong, because it would be a perversion of the doctrine of jurisdiction to use it as a screen for frivolous appeals.

Brian Shannon

Section Opposes Briefing Schedule Proposal

The Council voted on June 19 to oppose a sweeping new proposal that would change the way briefing deadlines are scheduled in all civil appeals. Chair Joseph Firestone has sent a letter to the Supreme Court explaining the Section's reasons for opposing the proposal. The letter is reprinted at pages 14-25.

The proposal itself was printed in the February Newsletter and also appears in the June issue of the Michigan Bar Journal. If you attended the Appellate Bench-Bar Conference in April, the proposal is at Tab D of your handbook.

It is expected that the Supreme Court will entertain comments on the proposal at its next public hearing under new AO 1997-11, scheduled for September 24, 1998 in Lansing. The Section will send a representative to this hearing.

Section members are reminded that the Supreme Court welcomes comments from all members of the bar. If you feel strongly about the briefing schedule proposal, for or against, you should send in your own comment letter as far as possible in advance of the Supreme Court's public hearing in September. If you are for the proposal, you presumably don't want the Section's letter to speak for you. But even if you oppose the proposal, you should make your individual voice heard. The Section is batting 0-for-1 in opposing amendments since the first hearing under AO 1997-11.

Recommended Reading for the Appellate Lawyer

This issue's reviews discuss an award-winning judicial biography, a thought-provoking critique of radical multiculturalism, and a discussion of the value of a classical education.

Hugo Black: A Biography

Roger K. Newman

Fordham University Press 1997

Winner of the Scribe's Book Award and a Pulitzer Prize finalist, this biography of Hugo Black is one of the most lucid, enjoyable books I've read this year. Newman's scholarship is remarkable. He draws on the 512 boxes of Black's papers preserved at the Library of Congress, interviews with Black, his children, and his clerks, and papers and materials kept at over one hundred institutions. But the scholarship never makes the reading ponderous or results in the kind of turgid prose that often detracts from such heavily researched works of history.

Beginning with Black's childhood in Clay County, Alabama, Newman paints a vivid picture of the trial lawyer and local politician that Black was before he embarked upon a national political and judicial career. No scholar, Black dropped out of high school and failed a teacher licensing examination, before starting medical school because his mother agreed to pay for it and he could be admitted without a college degree. After

a year, he returned home to attend the University of Alabama Law School.

Newman's description of Black's early career allows the reader to place many of his later decisions within the context of attitudes and understandings he developed as a young trial lawyer. Black represented primarily plaintiffs. He turned down offers to work at defense firms, having represented an insurance company and a corporation only once each during his twenty-five years of practice. According to Newman, Black "deliberately skirted the limits, provoking foes and infuriating judges who often threatened to, but never did, charge him with contempt of court." Black believed that the "best lawyer is a perfect master of himself."

But Black's tactics were often questionable. Newman said that he "bluffed and gambled, making the jurors think that there was much information on the sometimes blank paper he waved in front of them." He was not shy about using race or religion to appeal to a jury. In one case, for example, he represented a white woman whose complaint was that the conductor on a train failed to properly stop an angry black woman passenger who was creating a disturbance in the train car. Black used racial epithets to refer to the black woman and persuaded the jury to award damages to his client. Black had to retry the case three times because the Alabama Supreme Court overturned the award twice.

Black's large verdicts resulted in many referrals and enhanced his popularity with voters. But the defense bar castigated him. One lawyer said he couldn't be trusted to carry out an agreement. Others said that he "took liberties with his closing arguments." Black used his Ku Klux Klan contacts to help win convictions as a prosecutor. One defense lawyer who had been burned in effigy by the Klan complained that, as a prosecutor, Black had "endeavored to convict the defendant by attempting to prove that he was a Catholic."

The most appalling example of Black's trial tactics was his defense of a Methodist minister. The minister killed a Catholic priest after discovering that the priest had officiated at the minister's daughter's wedding to a middle-aged Catholic Puerto Rican paperhanger whom she had met at the Catholic church. Since the facts were free from doubt (the minister had given himself up immediately after the crime), Black's defense could not rest on the events. Instead, he focused on the fact that many prosecution witnesses were Catholic or Italian.

Black called the Catholic witnesses "Siamese twins" and "brothers of falsehood as well as faith." And when the daughter's Puerto Rican husband testified, Black turned on floodlights that he had arranged to accentuate the husband's "dusky complexion," so that the jury would believe that the husband was at least partially black. During his closing, Black said "Because a man becomes a priest does not mean that he is divine. . . . when you find a girl who has been reared well persuaded from her parents by some cause or person, that cause or person is wrong."

Black urged the jury to give a verdict that could not "be misunderstood, that the homes of the people of Birmingham could not be touched." Black's tactics were successful and the jury found the minister not guilty by reason of self-defense.

Newman's account of Black's early years supplies a vivid picture of a lawyer whose focus on the outcome led him to employ all sorts of questionable tactics, albeit in the service of the poor and working people of Alabama. While Black later sought to downplay his Ku Klux Klan activity and other such events in his past, he was not only a card carrying member of the Klan but he gave talks all over the state attacking Catholics.

Black's years on the court are given an illuminating treatment. Newman's extensive research and interviews, particularly with family members and former law clerks, makes his account lively reading. We see Black's relationship with Felix Frankfurter, his primary philosophical opponent on the Supreme Court. Their disputes, according to Newman, more than any others, shaped the development of the law during this period. According to Newman, "[t]hey blended as they battled, combining rare charm and rare intellect, their arguments reaching greater pitch because of their similarities and greater depth due to their contrast." In Newman's view, Black's greater success in persuading the Court to adopt his incorporation theory came in part from his more affable and less professorial approach to dealing with his colleagues on the Court.

Black's early opinions were subject to criticism. Justice Stone, for example, said that Black had a good mind but "it needs training." One newspaper reporter wrote that "deficiencies in background and training" caused Black to make "blunders which have shocked his colleagues." But others approved of Black's writing style, which used "English as plain and simple and clear as a good running story on the first page [of a newspaper]."

Newman's colorful language, careful scholarship, and lively description make the book enjoyable to read. Newman says of Earl Warren, for example, that his "mind worked like a dull knife, not a razor." Newman quotes Black's statement, after fourteen years of service with Warren, that "I wish he knew a little more law." Newman's use of news stories of the day, journal entries, interviews, opinions, draft opinions, letters, and documents of every kind gives a full picture of events. This personal and political backdrop to Black's time on the Court illuminates the positions adopted by various justices in their published opinions. I would give this book my highest recommendation.

Beyond All Reason: The Radical Assault on Truth in American Law

Daniel A. Farber and Suzanna Sherry

Oxford University Press 1997

Academic debates often receive little attention from the practicing bar. But the approaches used to teach law students will define and shape their understanding of the law as lawyers. Recently, two academics launched a full-scale attack on a group of academic extremists loosely known as radical multiculturalists. Among those who fit into this school of thought are Derrick Bell, Catherine MacKinnon, and Richard Delgado. At the opposite end of the spectrum from Robert Bork, these writers reject the "aspiration to universalism and objectivity that is the fruit of the Enlightenment."

Taking relativism to an extreme, the radical multiculturalists contend that reality is subjective and thus historical and scientific truths are merely social constructs. Central to their scholarship is the indeterminacy thesis. The indeterminacy thesis "holds that the conscious process of legal reasoning is not really what accounts for a judge's decisions." The radical multiculturalist believes that "law is actually driven by unconscious mindsets or tacit understandings." Scholars in this camp favor use of legal storytelling over rational argument; they reject "linearity, abstraction, and scientific objectivity of rational argument."

Farber and Sherry disagree. In their view, the use of storytelling "makes it easy for scholars to avoid critical examination of their ideas by themselves or others." Farber and Sherry point out that the emphasis on the unique "voice" of the speaker distorts public discourse because it replaces the question of whether the "story is typical in some statistical sense . . . [with] whether it is authentic."

Radical multiculturalism, like many academic fads, has gained increasing acceptance in many law schools. But this approach threatens the ability of academics, lawyers, and judges to engage in any objective reasoned argument. Farber and Sherry examine the underpinnings of the radical multiculturalists' thinking and demonstrate that it impedes the attainment of the very goals its adherents profess to seek. Judge Alex Kozinski recently praised Farber and Sherry's book. According to Kozinski, "a fruitful discussion . . . about justice, equality, freedom, responsibility and merit . . . [is] now considered a bit quaint and a bit dated—like stale granola." But Kozinski fears that this lack of belief in the possibility of objective truth and analysis will have a profound and negative effect on basic values of the legal profession. Judges will be selected (as they increasingly are already) on the basis of whether they "will enshrine the right policy into the Constitution" and not whether they will decide cases on the basis of the law. Juries will be asked to decide not on the basis of "guilt and innocence, truth and lies, lawfulness and unlawfulness, but between the defendant and the state." These predictions are alarming.

Whether you agree with them or not, Farber and Sherry's discussion will provide you with a better understanding of important philosophical issues in the context of their real-world impact on our legal system.

Who Killed Homer: The Demise of Classical Education and the Recovery of Greek Wisdom

Victor Davis Hanson and John Heath

The Free Press 1998

Farber and Sherry's emphasis on traditional classical values is echoed in Hanson and Heath's book. These authors decry the loss of the classics as part of the liberal arts curriculum. With this loss, they argue, comes the loss of Greek wisdom. The authors contend that Greek wisdom fostered open debate, rational inquiry, free dissent, suppression of religious interference, moral and ethical questioning, and spiritual exuberance." The authors criticize multiculturalists for their failure to recognize the important core values of Greek wisdom, values that the authors believe form the underpinnings for "an ordered and humane society that could transcend time and space . . . and could evolve, sustain and drive political reform and social change . . . ."

Many of the problems that Farber and Sherry find in radical multiculturalists are also analyzed in this book's critique of our educational system, which has replaced the classics with a politically correct approach emphasizing multiculturalism, situational ethics, and personal growth. Hanson and Heath's discussion of the lessons that Greeks taught about the "struggle between the state and the individual, human and natural law, and the enormous gulf between what we attempt here on earth and what fate has in store for us all" is illuminating. For example, the authors point out that the "idea of constitutional government permeates every aspect of Antigone," a Greek tragedy that raises notions of civil disobedience, civilian control of the military, and various other essentially modern themes. The authors reject the multiculturalists' view that "all cultures are equal" or that "all cultures are equal except the West, which is uniquely imperialistic, hegemonic, nationalistic, sexist, and patriarchal . . . ." Instead, the authors urge rediscovery of the important lessons to be learned from the study of the classics.

Both of these books raise important questions for anyone interested in the law or in education. Read together, they help place numerous debates within a larger philosophical and historical context.

Mary Massaron Ross