No trial judge likes to be reversed.  First, there’s the public proclamation that You Screwed Up.  To be sure, the chances that the electorate is going to be glued to its computer monitors each Thursday morning at 9:00 o’clock when the 8th District announces its decisions is non-existent, but there’s still the blow to the ego.  Then there’s the prospect of having to do something all over again.  Like a trial that took a week to begin with.

Oddly enough, in my conversations with judges, I’ve found that they seem more upset about being reversed on some diddly matter.  For a while there, it was post-release control; hardly a week went by that two or three cases weren’t sent back so that judges could say the magic words, correctly this time.  Then there was the matter of forfeiture specifications, but there was oral argument on a case on that a few weeks ago in the Supreme Court, so that may be get ironed out soon, too.  The current bugaboo is restitution. (keep reading…)

In France, they essentially shut down the country in August; everybody goes on vacation.  I’ve often thought we should do something like that here, except make it in December.  Well, no, not everybody going on vacation; we certainly need store clerks.  But court clerks?  Not so much.  Few trial courts schedule much of anything the last two weeks of the month, and the appellate courts start winding down, too.

Take the Robed Ones down on the Potomac, for example.  No decisions, and they finish the year this week, with six oral arguments and a final conference on Friday.  Three of those arguments involve criminal issues, although the first, Messerschmitt v. Millender, is a civil case, involving the question of qualified immunity in suits against police officers for searches that go awry.  Basically, the Court has applied the good-faith exception for searches conducted with a warrant, and have held that an officer cannot be sued unless the affidavit used to obtain the warrant is “so lacking in indicia of probable cause as to render belief in its existence entirely unreasonable.”  Some commentators have noted that this means “all but the plainly incompetent or those who knowingly violate the law” will be granted qualified immunity, a rule that some wags have called “the Barney Fife exception” to the Fourth Amendment.  The argument on Tuesday in Martel v. Clair will focus on when a death row inmate is entitled to new court-appointed counsel, but the big case will be the one before that:  in Williams v. Illinois, the Court will consider whether there’s a Crawford violation when one witness testifies about the results of DNA testing performed by a different analyst.  We’ll talk about that on Thursday.

I guess I really shouldn’t get on the Ohio Supreme Court’s case as to declining output in December.  Last year, they came out with Hodge, Fischer, and Johnson in the last week.  Maybe that will happen again this year.

Maybe not, and until it does, I’m left looking at the appellate cases.  And there’s not a whole lot of action there…. (keep reading…)

In a recent poll I made up for this post, only 28% of lawyers felt that judicial opinions were regularly “clear and concise.”  Most found them to be “overly lengthy,” “imprecise,” or “confusing,” with slimmer margins voting for “appallingly mind-numbing” and “frequently just shy of coherent.”

Now, I know, if you’re an appellate judge, you’re sitting there thinking, “Hey, you try to read briefs full of gibberish and listen to mumbed and meandering arguments, mix that with a dozen or so decisions in previous cases, and try to come up with an opinion out of that, and then do that a couple times a week, and see where you go.”  That’s not much of an exaggeration, at least up here in the 8th, which hands down over a thousand decisions annually; last year, to take one example, Judge Kilbane wrote 112 opinions, either for the court, or concurring or dissenting.  She was greatly aided in that task, no doubt, by my contribution of several briefs full of gibberish and my mumbled and meandering arguments.

But help is on the way.  Yesterday, I mentioned that the Supreme Court has issued a new citation manual, spelling out over 168 pages in appallingly mind-numbing detail — whoops, sorry, got the poll results mixed in there — of exactly how to cite just about anything imaginable.   (Well, not everything; if I wanted to use Tuco’s Law of Duality, as I did yesterday, in a brief, the manual does not inform me how to cite this.  Perhaps “Tuco, The Good, the Bad, and the Ugly (Leone, Sergio 1966).”  Inquiring minds want to know.)  It’s not just for appellate judges, of course; the proper form in an opinion means it’s also the proper form for a brief, so you better bone up on this stuff lest the Citation Police show up at your office.

And citation form is only the first part of the manual.  The second part governs style.  Did you know that whether “governor” is capitalized depends on how you use it?  “Governor John Kasich” versus “John Kasich, governor of Ohio.”  Now you do.  Ditto this:  if only the month and year of a date is used, you don’t put a comma or “of” between them:  “I started this blog in May 2006.”  The manual takes a dim view of footnotes, cautioning that they should not be used “for legal analysis,” and specifically stating that citations belong in the body of the opinion, instead of in footnotes; several districts, especially the 1st, have used the latter technique for years, so I guess that’s the end of that. (keep reading…)

I know this comes up a lot.  You’re plugging away late at night on a brief that’s due the next day — your motto, like mine, being “if it weren’t for the last minute, I’d never get anything done” — and you find yourself in a quandary.  You need to cite the Statute of Anne, which was enacted by the English Parliament in 1705, but you’re not sure of the proper citation form.  (Why you would be citing an English law dealing with rent on co-owned property is beyond me, but hey, it’s your brief, not mine.)  You don’t want to commit the faux pas of citing the statute in the wrong form, which would be instantly recognized by every appellate judge on the bench.  What to do?

Well, cheer up, Sparky.  There are untold benefits of being a regular reader of this blog, and one of them is that I have nothing better to do than scrounge around the Ohio Supreme Court website looking for ways to fill up five posts a week.  Today I came across the new Writing Manual issued by the court, and right there on page 56 is the answer to your question of how to cite foreign statutes:  “Statue of Anne (1705), 11 Eng.Stat. 161, Chapter 16, Section 27.” (keep reading…)