lukegilman.com : The Blawgraphy
Life of a Law Student, University of Houston Law Center

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Please note: I'm no longer updating this particular blog, but keep it around for archival purposes. Visit me at the current blog at www.lukegilman.com

Lawyers and Holiday Cards

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It’s holiday card sending season in lawyer land. Texas Lawyer’s John Council shared the holiday card he received last year from Alexander Dubose Jones & Townsend, an appellate shop in Austin, Houston and Dallas, with the note “ADJT takes the opportunity to briefly wish you all an appealing Holiday Season.” Kevin and Robert Dubose help teach an excellent Appellate Advocacy class with Randy Roach at the University of Houston Law Center. Highly recommended for UHLC students.

A Sentence You Don’t Want to Hear in Oral Argument, Unless You’re on the Other Side

UHLC has an appellate advocacy class taught by Randy Roach who advocates a “Court-Centered Approach” to appellate advocacy. Under this paradigm, the task of the advocate is not so much to hammer home your point, but to help the court. A court-centered advocate is still persuasive, but the difference is one of being a means by which the court reaches a decision rather than an obstacle. In oral argument this means being honest about the weaknesses in your case and candid when asked to concede a negative point in order to preserve your credibility and your ability to persuade.

A writing professor once told me that the best way to learn is to see someone do it well, and then to see others do it badly. Case in point:

JUSTICE SOUTER: …wouldn’t it have been mitigating evidence to learn that other people, at times relatively close to the events in question, without being coached by the defendant, had concluded that he was a drug user? Wouldn’t that have been mitigating evidence?

MS. SMITH: I don’t think that it would have been material to –

JUSTICE SOUTER: We are not asking about materiality at this point. We are asking about the mitigating character of the evidence. Would it have been favorable to the defendant? Would that have been its tendency?

MS. SMITH: I think it added no more than –than what was already before the jury.

JUSTICE SOUTER: That was not my question. Was it favorable evidence? Did it have a tendency to favor the defendant?

MS. SMITH: No, not under his theory, and the reason is –

JUSTICE SOUTER: Then I will be candid with you that I simply cannot follow your argument because I believe you have just made a statement to me that is utterly irrational.

Ouch.

From Cone v. Bell, No. 07-1114, Transcript (.pdf) at 37-38.

For more on a court-centered approach, see Randy Roach, Texas Supreme Court Oral Argument: A Court-Centered Approach (.pdf). If you’re a student at UHLC, I highly recommend the course.

Upcoming Conference at UT Law: The Rise of Appellate Litigators and State Solicitors General

There’s a great line up of appellate litigators descending on Austin in January for The Rise of Appellate Litigators & State Solicitors General. Even one of these panels would be worth the trip.

January 22, 2009: Appellate Litigators in the Private Bar
Eidman Courtroom

Introduction
Kimberly Hicks, Editor in Chief, The Review of Litigation
Dean Lawrence Sager, The University of Texas School of Law
Hon. James C. Ho, Solicitor General of Texas

The Rise of the Appellate Litigator
Theodore Boutrous Jr., Gibson Dunn and Crutcher LLP
Hon. Walter Dellinger, Duke Law School, O’Melveny and Myers, former Acting U.S. Solicitor General
Hon. Charles J. Cooper, Cooper and Kirk, PLLC, former Assistant Attorney General, Office of Legal Counsel
Beth S. Brinkmann, Morrison and Foerster, former Assistant to the U.S. Solicitor General

Appellate Litigation From the Client’s Perspective
David G. Leitch, Group Vice President and General Counsel, Ford Motor Company
Charles W. Matthews, Jr., Vice President and General Counsel, Exxon Mobil Corporation
Hon. Steven J. Law, Chief Legal Officer & General Counsel, U.S. Chamber of Commerce (invited)

Litigating Before the Supreme Court of Texas
Hon. Nathan Hecht, Supreme Court of Texas
Hon. Tom Phillips, Baker Botts LLP, former Chief Justice, Supreme Court of Texas (invited)

Dinner Keynote: “Representing the State of Texas as Solicitor General” (closed event)
Hon. R. Ted Cruz, Morgan Lewis and Bockius LLP, former Solicitor General of Texas

January 23, 2009: State Solicitors General
Eidman Courtroom

The Development of State SG Offices: A History
Hon. James Layton, Solicitor General of Missouri
Hon. James C. Ho, Solicitor General of Texas

Should States Establish and Expand SG Offices?
Dan Schweitzer, Supreme Court Counsel, National Association of Attorneys General
Hon. Gregory S. Coleman, Yetter, Warden and Coleman LLP, former Solicitor General of Texas
Hon. Julie Caruthers Parsley, former Solicitor General of Texas
Hon. Stephen McAllister, University of Kansas Law School, Solicitor General of Kansas

Luncheon Keynote
Hon. Jeffrey Sutton, U.S. Court of Appeals for the Sixth Circuit, former Solicitor General of Ohio

Impact of State SGs on Appellate Litigation: A View From the Bench
Hon. Wallace Jefferson, Chief Justice, Supreme Court of Texas
Hon. Priscilla Owen, U.S. Court of Appeals for the Fifth Circuit
Hon. Allison Eid, Justice, Supreme Court of Colorado, former Solicitor General of Colorado

Representing the States in the U.S. Supreme Court: Stories From the Battlefield
Hon. Kevin C. Newsom, Bradley Arant Rose and White LLP, former Solicitor General of Alabama
Hon. Douglas R. Cole, Jones Day, former Solicitor General of Ohio
Hon. Caitlin Halligan, Weil, Gotshal and Manges LLP, former Solicitor General of New York (invited)

State SGs and the United States: A View From Washington
Hon. Paul D. Clement, Georgetown Law School, former U.S. Solicitor General (invited)
Hon. Barbara D. Underwood, Solicitor General of New York, former Acting U.S. Solicitor General (invited)

Editors of The Review will moderate the panels.
This schedule may change. Please check prior to symposium to ensure accuracy.

Texas Insurance Case Attempt to Answer the Age Old Question of whether you’re “in” a car that’s lying on top of you

I’ve recently developed the disturbing habit of relaxing by listening to recordings of oral arguments. Oyez.org offers all the U.S. Supreme Court arguments, nearly as soon as they happen. Listening to Boumediene v. Bush ended up coming in pretty handy on my Con Law final, though I’ll reserve judgment on whether it did me any good until grades come out. Recently I’ve been getting into the oral arguments from the Texas Supreme Court, which is particularly entertaining for the ‘aw shucks’ down-home-y demeanor of some of the advocates.

So far my favorite is 06-0987 UNITED STATES FIDELITY and GUAR. CO. v. GOUDEAU, an insurance case dealing with a good Samaritan who was injured after stopping to help a stranded motorist and being pinned between his own car and the guardrail when struck by another motorist. He’s trying to recover on an under-insured motorist policy that unfortunately for him, is limited by the terms of the contract to “occupying a covered vehicle” as defined by the USF&G policy. See the petitioner’s brief (.pdf) for more background. For the most part, it’s about as exciting as a pig in the shade, but a little after the half-way mark it gets a little surreal as the justices try to parse precedent on whether one can construe “occupying” to include being run over by the car you just stepped out of. The cases cited are, while tragic in the way of all accidents, so bizarre it’s funny. You can bet I won’t be turning my back on my own car any time soon.

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06-0987 UNITED STATES FIDELITY and GUAR. CO. v. GOUDEAU (.mp3) [via Supreme Court of Texas Oral Argument Archive]

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