It’s tax day. If we lived in an extreme “dog eat dog” libertarian society, presumably we would be paying far lower taxes. Instead, the poor, the vulnerable, and the exploited would be taxed directly, in a sense, by the rich and the powerful. To some extent, taxation in our society is exactly what some of its harshest critics say, wealth redistribution. Like a lot of civil litigation, actually.
Consider two situations:
1. A table saw, which presents an open and obvious risk of very serious injury, is sold with a safety device designed to prevent users from injury. A user disables the safety device, suffers serious injury, and then sues the table saw manufacturer for selling the “defective” product.
2. A table saw is sold with a supposed safety device that is difficult to use, that cannot be used in all circumstances, that compromises users’ ability to use the table saw by blocking sight of the blade, and, finally, commercially available alternative designs exist that sharply reduce or perhaps even eliminate the risk of injury (for example, SawStop).
Do your sympathies lie with the saw company in the first instance and with the injured person in the second instance?
The federal rules of appellate procedure were amended effective December 1, 2013. The old rules required two separate sections at the beginning of the brief: a separate statement of the case and a statement of facts. Now, a single section called the “statement of the case” is required. That section includes both the key facts, and the relevant procedural history. And it specifies the rulings presented for review.
Maybe not a momentous change. But one that gives practitioners some flexibility.
The change recognizes that, depending on the issues being raised, some appeals are based on procedural errors, and some are based more on facts. Some deal with both.
You may want to start with a section dealing with facts and follow that with a relevant procedural history. The facts may not be that relevant to your appeal, and you may want to go straight to the procedural history. The facts may be the guts of the appeal, with no emphasis needed on the procedural history.
You can organize your statement according to the rulings that are to be reviewed, with the relevant facts and procedural history presented separately for each. If you do that, the advisory committee comments encourage you to use subheadings to highlight each ruling.
It does bear some thought. The statement of the case is one of the first sections of the brief judges will read. You want to use it to orient and focus the judges, without distracting them with extraneous materials.
When you are ready to prepare your next federal appellate brief, check out the brief templates on Minnesota State Bar Association’s practicelaw site (link accessible to MSBA members only). (They are filed under the materials of the Appellate Practice Section.) The brief templates have been revised to reflect the most recent federal appellate rule changes.
A standard jury instruction used in Minnesota goes like this:
You must not allow sympathy, prejudice, or emotion to influence your verdict. The quality of your service will be reflected in the verdict you return to this court. A just and proper verdict contributes to the administration of justice.
Minn. Civil Jury Instruction Guide, 10.45.
Reflect on that.
My favorite part about the conversations with potential new clients who say, “If we win this case, you’ll be able to retire…,” is when I ask the potential new clients if I am the first lawyer they’ve spoken to.
“Well, I have spoken to one or two…”
“Who?” I ask. They’re reluctant. I coax: “I am just curious. You know I know quite a few lawyers in town and, you know, maybe I just, it would, you could, you know…” (I trail off because I really have nothing to say.) This may or may not signal some kind of vague suggestion that I will know if they lie to me, that I have other means of finding the information out that I am asking of the potential client.
Update (April 9, 2014): Some people feel more strongly than others about asserting what they believe to be their legal rights. Mr. Jay T. Nygard (“Radio Personality at Green Power Hour, President at Minnesota Wind Technology, President at Go Green Energy”) has prevailed in his latest appeal of his latest property dispute. He might warrant a dedicated blog for his numerous recent contributions to Minnesota civil litigation?