Clash of the Titans

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Well, I know where I’m going to be at 5pm CST. It’s not every day that we get to watch the fate of the world being live-streamed from a San Francisco courthouse. That is, assuming the Ninth Circuit’s website doesn’t crash from all the traffic. Everyone pop some popcorn, sit back, relax, and enjoy your front-row seat to political, presidential, and legal history in the making!



Checked and Balanced

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Wait, isn’t the judiciary supposed  to second guess the executive and legislative branches? Could have sworn I read that somewhere…

Here’s the latest on Travel-Ban-gate from CNN and Fox. Of course, this will prompt yet more criticism of the relatively liberal “9th Circus,” as I’ve heard it called by some.

Fun times.

Means What It Says?

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How many times have courts assured you that the legislature says what it means and means what it says? Personally, I’ve lost count. The notion is seared into my legal psyche. So when Tenn. Code Ann. § 29-26-122* says med-mal plaintiffs can waive a defendant’s obligation to file a certificate of good faith for comparative tortfeasors, I kinda assumed that … oh, I dunno… maybe plaintiffs could waive a defendant’s obligation to file a certificate of good faith for comparative tortfeasors.

“Not so,” says the Middle Section of Tennessee’s Court of Appeals. I just had occasion to write a brief analyzing the recent opinion in Sirbaugh v. Vanderbilt, and it was like eating soup with a fork. According to Sirbaugh, when the legislature allows plaintiffs “to waive compliance,” what that reeeeally means is plaintiffs are still “obligated to file a statutorily compliant certificate of good faith.” Square peg, meet round hole. What am I missing? COA dropped the ball on this one, IMHO. And yet, the Supremes punted. So that bit of judicial wizardry has earned its ink in the reporters. This, even though the Supreme Court just a few years earlier observed (albeit in a footnote) that there’s “no similar statutory obligation imposed on plaintiffs who amend their complaint pursuant to Tenn.Code Ann. § 20-1-119 after the original defendant has asserted a comparative fault defense.” Go figure.

*P.S. – Apparently Justia hasn’t updated its site with the most recent changes to the Health Care Liability Act. Get wit’ it, Justia! Here’s an alternative, but unfortunately there’s no direct link. Navigate to Title 29, then Chapter 26, then Section 122…

Judicial Plagiarism

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Have you ever argued a motion and had the court rule directly from the bench awarding you your requested relief? Didn’t you feel like the cool kid that day? Chest puffed out a little bit while you tried to restrain yourself out of respect for opposing counsel? And after winning your motion, did the court dump the task of drafting the order on you? Of course it did. No court has time to actually draft orders, right? That’s the least you could do after the court was gracious enough to rule in your favor. And even though it was another tick on your to-do list, you secretly welcomed that chore, because it meant you got to tweak the wording of the order precisely to your client’s advantage. Am I off here? No. You know this drill.

Would You Like Salt on That Crow?

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Antonin ScaliaSo, the Honorable Justice Antonin Scalia — renown legal genius and reigning undisputed heavyweight champion of biting rhetorical snark — has now been reduced to making clandestine corrections to one of his famously condescending dissents.  I realize this is old news now, but I’m posting it mostly as a word of simultaneous warning and relief to my students and to fellow lawyers. More

Look It Up! Or Not…

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I always encourage my students to look up any words that confuse them as they read opinions.  But this 2011 New York Times article  cites a few scholars who don’t think it’s the most judicious practice to undertake from the bench.  Check out this excerpt: More

Less is More


I happened upon this interesting dissent in my research recently.  If you can forgive the biting tone (note the judge’s befitting name), I think the minimalist technique is pretty effective.  It’s not bogged down with preachy legalese.  It doesn’t pontificate or soliloquize. It’s short and (not so) sweet.  Here it is, from Ex parte Clay, 675 S.W.2d 765, 768 (Tex. Crim. App.1984):

Onion, Presiding Judge, Dissenting.

I dissented in Ex parte McWilliams, 634 S.W.2d 815 (Tex. Crim. App. 1982). I dissent again. I simply call attention to the unrealistic and laughable statements of the majority:

“It is important to note that the ‘carving doctrine’ was abandoned primarily because it encouraged crime … The abandonment of the ‘carving doctrine’ overcame an aspect of the criminal trial that substantially impaired its truth-finding function.”


Rarely do I have the pleasure of seeing judges describe their distinguished colleagues’ reasoning as “laughable” (forgive me for being entertained).  Regardless of whether you agree with the dissent or the majority, I think this pithy opinion offers good evidence of why less is more.  Note the very short sentences and short paragraph.  In fact, most of the “argument” commandeers (and makes a mockery of) the majority’s own words. The grand finale is a one-word sarcastic scoff.  No need for a conclusion sentence.

Again, the tone is another matter and a different debate.  But after reading this dissent, it’s hard to avoid at least being tempted to second guess the majority.  So in that sense, perhaps this dissent succeeds in its rhetorical goal.  If you want to check out the full opinion, here it is on

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