Saturday, May 13, 2017

Florida Appellate Practice Book, 10th Edition soon to publish!

The new Florida Appellate Practice Book, 10th Edition is the "go to" source that addresses practical issues about appellate practice in Florida. This manual includes guidance on filing a notice of appeal, determining which orders are appealable, preparing motions, and many other essential practice concerns. The manual covers civil, criminal, administrative, and juvenile delinquency appeals. Highlights of the Tenth Edition include:

•  Introduction by Chief Justice Jorge Labarga
•  Discussions of updated e-filing rules and requirements
•  Chapters devoted to civil, criminal, and administrative appeals
•  Chapters by Dorothy F. Easley on appellate brief writing and amicus briefs
•  Updated case law and rule references
•  Sample forms
 Stay tuned for more! 

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Monday, May 1, 2017

Trademark Appeals Expert Dorothy Easley Speaks at the 2017 International Legal Symposium on the World of Music, Film, Television, and Sports

"Trademark appeals expert Dorothy F. Easley, MS, JD, BCS Appeals, spoke in Miami on March 31, 2017, at the International Legal Symposium on the World of Music, Film, Television and Sports of the American Bar Association. Ms. Easley discussed Issues Concerning Multiple Ownership of Trademarks, based in part on her extensive experience in trademark appeals, including her successful appeal representing the original band members of Expos, the internationally famous group of singers. She is currently representing appellants in a highly contested 11th Circuit Court of Appeals trademark appeal."  More.

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Monday, April 3, 2017

Three of the twelve practical tips for successful federal appeals: part I

There are excellent books on writing great appellate briefs. Most can be summarized (and I recognize that this is oversimplifying) to teach the following: be brief, be concise, be direct, understand and correctly describe your appellate standards of review, understand and correctly describe your record on appeal, and understand and correctly describe your law.  This blog entry will not attempt to imitate other authors’ treatises.  For more information, the following treatise also has a detailed, practical chapter on writing federal appellate briefs:  Successful Federal Appeals in All Circuit Courts: A Practical Guide for Busy Lawyers (3d ed. 2017).
This blog entry is dedicated to three tips for successful federal appeals that I share, as a Florida Bar board certified appellate specialist, with you based on my twenty-two years as an appellate practitioner, law professor, and lecturer.  These three tips are based on the experience I’ve gained, the mistakes I’ve made and learned from, and the successes I’ve had and enjoyed. Nothing about this should be construed as legal advice or the creation of an attorney-client relationship.

No. 1 Read both the federal and local rules of the federal appellate court [the circuit court of appeals]

It sounds basic, and perhaps boring. But I cannot over-emphasize how important it is to take time to read the rules of the federal appellate court in which you intend to file a brief or other motion or defend an appeal. First, it is unrealistic to expect to do well in a federal court if you have not taken the time to learn what they want.  Second, it is efficient and practical. Virtually all federal appellate courts have strict, short deadlines. They are extremely busy appellate courts and insist to compliance with their rules and deadlines. The federal rules of appellate procedure and the rules of that specific circuit court of appeals need to be consulted at the beginning of the appeal. The rules are available on each circuit court of appeals website, and an online search can quickly and painlessly get you over to that specific court. 

If reading the rules feels like reading a recipe book or car manual, I don’t blame you. But remember that the rules are there to help. They are laid out logically, in order of the progression of the appeal, and the threshold questions like jurisdiction and the timing of threshold submissions are usually located in the front sections of the rules.  The middle section generally focuses on the content of motions, appellate briefs, and appendixes.  The latter section generally focuses on supplemental authorities, when a judgment is a judgment, post-decision motions, and costs and attorney’s fees. When the rules are approached with that logical order in mind, they become a much more interesting, and helpful, “owner’s manual” that you can use to foresee more than the immediate deadlines and requirements.  So, I urge you to read those rules.

No. 2  Start your record on appeal organization promptly and ensure your record on appeal is complete

No matter whether you are in the role of appellant or appellee, the proverb “Rome was not built in a day” should be placed above the desk of every serious appellate lawyer.  It applies to the time necessary to develop a strong, deep understanding of the appellate record, the issues worth pursuing and those worth discarding, and the theme of the appeal.  None of that starts with mere review of the final judgment on appeal and a quick look at dispositive motions. It starts with the final judgment, plus the pertinent pleadings, motions, responses, orders, and hearings that led to that final judgment.

As the appellate lawyer who was not litigating in the trial court, when I represent an appellant, I review a record on appeal in federal court along with the docket or case incident sheet and take great pains to ensure the record is fully complete, including, in the case of jury trials, a record with all pertinent trial exhibits admitted at trial. I also ensure that the transcripts were all ordered and filed and, if not, that the transcript information form to begin the process of obtaining those transcripts is immediately initiated.  When representing an appellee, I also work to ensure I have a fully complete and extremely organized trial file. I discard any documents that are not pertinent to the appeal, for example, depositions never introduced at a jury trial.

No. 3 Look at your record on appeal with a scrutinizing eye and draft your record summary promptly

As an appellate lawyer, my role is not simply to take the trial lawyer and client suggestions about the issues on appeal. I value their input greatly, but my role is to conduct a critical, de novo review, with a fresh eye, to see what issues are most productive and what issues are not. As part of that review, I almost always locate one or two issues that trial counsel and the client did not see because the trial level litigation was evolving and the importance of some of the issue or issues cannot be determined sometimes until the end of the litigation. I also see issues that may seem extremely important to trial counsel or the client that, under the appellate standards of review, are simply going to be unproductive. The weaker issues might be a final issue on appeal, at best. As an appellee, the issues might work from the standpoint of restating the appellant’s issues on appeal.

It is a hard conversation to have with trial counsel and the client to convey that the issue they thought was clear reversible error is an issue more correctly controlled by a clearly erroneous, highly deferential appellate standard of review that will likely get them nowhere and consume valuable space in an appellate with word limits. Alternatively, it is a hard conversation to have as an appellee to convey that the appeal may be reversed because an argument was either not properly preserved for appellate review or not properly advanced. I have these conversations later in the appeal, after I’ve firmed up the issues I know are productive or, as an appellee, after I have received the appellant’s brief. I keep an open mind about the weaker issues, which may be helpful to prosecute or defend the appeal, for example, to convey an overall theme or to tip an appeal in favor of one direction or another.

I complete my review and concurrently summarize that record, with record citations, as quickly as possible.  In a large record with roughly 8000 pages, that can take as long as two weeks. While reviewing the record, I also conduct cursory legal research of an issue that my education and experience indicate might be productive. If it is clearly not productive, then I discard it. If it possibly productive, I file it for later consideration. If I can see the issue is productive, then I retain it and continue reviewing the record with that productive issue in mind as well.  

Prompt record review and record summary will accelerate and strengthen the research of the legal issues that follows.

More tips will follow.  More detailed information about federal appeals can also be located at Successful Federal Appeals in All Circuit Courts: A Practical Guide for Busy Lawyers (3d ed. 2017).

Nothing about this should be construed as legal advice or the creation of an attorney-client relationship.

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Monday, February 20, 2017

Bankruptcy, constitutional law, international family law issues, and wild caught shrimp sauteed with hot peppers, garlic, and spinach

Finally, I'm back to my blog after getting out from many deadlines and below are some very interesting new decisions:

Flo & Eddie v. Sirius XM Radio
Court: U.S. Court of Appeals for the Second Circuit
Docket: 15-1164        
Opinion Date: February 16, 2017
Areas of Law: Copyright
Sirius appealed the district court's order denying its motions for summary judgment and reconsideration in regard to Flo & Eddie's copyright infringement suit. The court certified a significant and unresolved issue of New York law that is determinative of this appeal: Is there a right of public performance for creators of pre-1972 sound recordings under New York law and, if so, what is the nature and scope of that right? The New York Court of Appeals answered that New York common law does not recognize a right of public performance for creators of pre-1972 sound recordings. In light of this ruling, the court reversed the district court's denial of summary judgment and remanded with instructions to grant Sirius's motion for summary judgment and to dismiss the case with prejudice.

Vergara Madrigal v. Tellez
Docket: 16-50149      
Opinion Date: February 16, 2017
Areas of Law: Family Law, International Law
Father initiated proceedings for the return of his two young daughters under the Hague Convention on the Civil Aspects of International Child Abduction, Oct. 25, 1980, T.I.A.S. No. 11,670, 1343 U.N.T.S. 89. The children resided in Mexico City until Mother took them on vacation and wrongfully detained them in the United States. The district court ordered the children returned to Mexico. The court affirmed the district court's denial of Father's post-judgment motions, concluding that the courts in Mexico, the state of the children's habitual residence, are the appropriate forum to grant relief to address his concerns. The court explained that, subject only to the confines of Mexican law, Mexican courts are free to grant Father full custody over the children and to prohibit or restrict their international travel, and there is no international legal void that requires the Convention’s intervention. In regard to Mother's challenge of the district court's denial of her motion to vacate the Original Return Order, the arrest warrant for Mother's arrest does not establish clear and convincing evidence of a grave risk of harm to the children. Therefore, the court affirmed the district court's denial of Mother's motion to vacate.


Babcock & Wilcox Co. v. Cormetech, Inc.
Court: U.S. Court of Appeals for the Sixth Circuit Docket: 16-3305                   
Opinion Date: February 15, 2017
Areas of Law: Business Law, Contracts
In 2005, B&W entered into a contract to design and construct a Selective Catalyst Reduction (SCR) system to control emissions at KCP&L’s coal-burning Kansas power station. B&W purchased catalyst modules for the SCR from Cormetech, which guaranteed that the catalyst would perform under specified conditions for 24,000 operating hours before needing replacement. KCP&L began operating the SCR in April 2007. A June 2007 performance test revealed that the rate of “ammonia slip” was higher than expected, but within guaranteed limits. B&W advised Cormetech of the issue. Cormetech began testing. A September 2008 letter from KCP&L advised that it was B&W’s obligation to “generate a corrective action plan.” After KCP&L determined in 2008 that the catalyst was at the end of its useful life, it contracted directly with Cormetech for a replacement, which also failed before the end of its expected life. KCP&L’s claim against B&W resulted in a $3.5 million meditation settlement. B&W sued Cormetech; the case was dismissed without prejudice pursuant to the parties’ tolling agreement while B&W pursued mediation with KCP&L. After those efforts resulted in the settlement, B&W reinstituted the action within the agreed period. Following discovery the district court granted Cormetech summary judgment, finding a breach-of-warranty claim time-barred and that an indemnification claim failed for lack of evidence that B&W’s losses resulted from a defect in goods or services purchased from Cormetech. The Sixth Circuit vacated, finding that the court erred by failing to view the record in the light most favorable to the nonmovant.

Lake v. Wexford Health Sources, Inc.
Court: U.S. Court of Appeals for the Seventh Circuit
Docket: 15-2360        
Opinion Date: February 15, 2017
Areas of Law: Civil Rights, Constitutional Law, Medical Malpractice
Lake, a prisoner at Illinois’ Hill Correctional Center, claimed, in his suit under 42 U.S.C. 1983, that Dr. Jackson, the prison’s dentist had refused to send him to an outside dentist to extract a decayed tooth that was causing him pain. Lake claimed that Wexford, the contractor serving the prison, has policy of withholding medical care to save money. Although Dr. Jackson assured him that his mouth could be numbed successfully, Lake refused to let her pull the tooth and complained to Wexford that he was suffering needlessly because of its refusal to provide him with outside treatment. Lake later agreed to let a different prison dentist extract the tooth. A local anesthetic was used during the extraction, but Lake complained afterward that the procedure had been painful. The Seventh Circuit affirmed summary judgment, rejecting Lake’s claims, and agreeing that a jury would have to find that Dr. Jackson had been exercising professional judgment in predicting that administering a local anesthetic would enable her to extract the decayed tooth without inflicting significant pain.

Jones v. Coleman
Court: U.S. Court of Appeals for the Sixth Circuit
Docket: 16-5908        
Opinion Date: February 15, 2017
Areas of Law: Civil Procedure, Civil Rights, Constitutional Law, Election Law
White County parents formed the Association for Accurate Standards in Education (AASE) to oppose another group advocating for removal of a social studies textbook that includes discussion of Islam. Eight part-time volunteers comprise AASE. It does not have a separate bank account and does not keep regular records. Five or six people have donated to AASE. No individual donation has exceeded $200; total donations have not reached $500. Seats on the Board of Education were up for election in 2016. AASE parents wanted to support and oppose candidates through AASE. They did not want AASE to make direct campaign contributions, but wanted AASE to spend less than $250 on independent expenditures, including yard signs, stickers, and brochures. They learned that the Tennessee Registry of Election Finance had fined Williamson Strong, an unincorporated group that disseminates information about candidates and issues in Williamson County, $5,000 for failing to certify a treasurer or file financial disclosure statements under Tenn. Code 2-10-102(12)(A), which defines a political campaign committee as: A combination of two or more individuals . . . to support or oppose any candidate. They sued the Registry’s officials in their official capacities under 42 U.S.C. 1983, claiming that the Act violates their First Amendment, equal protection, and due process rights. The district court stayed the case pending the outcome of the state administrative proceedings in the Williamson Strong case. The Sixth Circuit reversed. Abstention was improper in this case, in light of the Act’s alleged chilling effects.


Appling v. Lamar, Archer & Cofrin, LLP
Docket: 16-11911      
Opinion Date: February 15, 2017
Areas of Law: Bankruptcy
Debtor made false oral statements to his lawyers, Lamar, Archer & Cofrin, LLP, that he expected a large tax refund that he would use to pay his debt to the firm. Debtor filed for bankruptcy after Lamar obtained a judgment for the debt. Lamar then initiated an adversary proceeding to have the debt ruled nondischargeable. The bankruptcy court and the district court determined that the debt could not be discharged under 11 U.S.C. 523(a)(2)(A) because it was incurred by fraud. The court reversed and remanded, concluding that debtor's debt to Lamar can be discharged in bankruptcy. In this case, because a statement about a single asset can be a "statement respecting the debtor's . . . financial condition," and because debtor's statements were not in writing, his debt can be discharged under section 523(a)(2)(B).

Lunsford, Sr. v. Process Technologies Services
Docket: 16-11578      
Opinion Date: February 15, 2017
Areas of Law: Bankruptcy
After Process Technologies obtained a judgment in state court against debtor for violations of state securities laws, debtor filed for bankruptcy. Process Technologies then filed an adversary proceeding, arguing that 11 U.S.C. 523(a)(19)(A) barred debtor from discharging the debt. The court concluded that debtor cannot discharge his debt because the bankruptcy court made a finding of fact that debtor violated securities laws and, in the alternative, section 523(a)(19)(A) applies irrespective of whether debtor violated securities laws. The court also concluded that debtor is not entitled to leave to amend his complaint. Accordingly, the court affirmed the bankruptcy court's order that excepted the debt from discharge and denied leave to amend.

Edward Lewis Tobinick, MD v. Novella
Docket: 15-14889      
Opinion Date: February 15, 2017
Areas of Law: Business Law, Constitutional Law
This case stems from a dispute between two doctors regarding the medical viability of a novel use for a particular drug. The Tobinick Appellants filed suit against the Novella Appellees, and Yale, challenging Dr. Novella's article criticizing Dr. Tobinick's novel treatments. The Tobinick Appellants then filed an amended complaint to add allegations relating to Dr. Novella's second article that was published just nine days prior. The court concluded that, because the Tobinick Appellants have not demonstrated a probability of success on the actual malice issue, the district court did not err in granting Dr. Novella's special motion to strike the state law claims pursuant to California's anti-SLAPP statute, Cal. Civ. Proc. Code 425.16(a); even though Dr. Novella had not yet filed his answer, the district court did not abuse its discretion in twice denying the Tobinick Appellants' motion for leave to amend the operative complaint because it properly sought to prevent an undue delay caused by the Tobinick Appellants' last-minute attempts to amend their complaint; the district court did not abuse its discretion in denying each of the Tobinick Appellants' discovery-related requests for relief; and the court rejected the Tobinick Appellants' Lanham Act, 15 U.S.C. 1125(a) claims. Accordingly, the court affirmed in all respects.

Wollschlaeger v. Governor of the State of Florida
Docket: 12-14009      
Opinion Date: February 16, 2017
Areas of Law: Civil Rights, Constitutional Law
This case concerns certain provisions of Florida's Firearms Owners' Privacy Act (FOPA), Fla. Stat. 790.338, 456.072, 395.1055, & 381.026. The district court held that FOPA's record-keeping, inquiry, anti-discrimination, and anti-harassment provisions violated the First and Fourteenth Amendments, and permanently enjoined their enforcement. Exercising plenary review and applying heightened scrutiny as articulated in Sorrell v. IMS Health, Inc., the court agreed with the district court that FOPA's content-based restrictions—the record-keeping, inquiry, and anti-harassment provisions—violate the First Amendment as it applies to the states. The court explained that, because these three provisions do not survive heightened scrutiny under Sorrell, the court need not address whether strict scrutiny should apply to them. The court concluded, however, that FOPA's anti-discrimination provision—as construed to apply to certain conduct by doctors and medical professionals—is not unconstitutional. Finally, the court concurred with the district court's assessment that the unconstitutional provisions of FOPA can be severed from the rest of the Act. Accordingly, the court affirmed in part, reversed in part, and remanded so that the judgment and permanent injunction can be amended in accordance with this opinion.

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