June 19, 2011

Cigarette-Smoking Firefighter’s Pension Decision Reviewed Under Manifest Weight Of The Evidence Standard

Firefighter Edward Lindemulder suffered from permanent, irreversible chronic obstructive pulmonary disease. The City of Naperville, Illinois put Lindemulder on medical leave because his COPD prevented him from performing the essential functions of his job.

Lindemulder applied for line-of-duty or occupational disease disability benefits. He claimed his COPD was caused or exacerbated by his exposure to diesel fumes at the fire station or to fire smoke.

The board denied Lindemulder’s request, but did award a non-duty pension. The board ruled “that any alleged on-duty incidents or exposures did not cause or contribute to plaintiff’s [Lindemulder’s] disability, which instead was caused by cigarette smoking.” Lindemulder requested review of the board’s decision. But the trial court agreed with the board, so Lindemulder appealed.

Lindemulder and the board quarreled over the correct standard of review in the appellate court. Lindemulder argued for a “clearly erroneous” standard; the board argued its decision should stand unless it was against the manifest weight of the evidence. The Second District Illinois Appellate Court agreed with the board because the appeal required review of questions of fact. Here’s how the appellate court explained it:

The applicable standard of review depends upon whether the issue is one of fact, one of law, or a mixed question of law and fact … We will reverse a ruling on a question of fact if it is against the manifest weight of the evidence … We review questions of law de novo and mixed questions of law and fact under the "clearly erroneous" standard … The examination of the legal effect of a given set of facts is what requires review under the "clearly erroneous" standard … Here, in finding that plaintiff's disability was the result of cigarette smoking and that no on-duty incidents or exposures caused or contributed to his disability, the Board ruled on questions of fact. Accordingly, our review is whether the Board's decision was against the manifest weight of the evidence.

In the end, the appellate court affirmed the decision of the board. Read the whole case, Lindemulder v. Board of Trustees of the Naperville Firefighters’ Pension Fund, No. 2-10-0063 (3/8/11).

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June 14, 2011

Estate’s Prima Facie Evidence Defeats French Manufacturer’s Jurisdiction Dismissal

Michael Russell died in a helicopter crash. His estate sued SNFA, a French company that manufactured the part of the helicopter the estate claimed was defective and caused the crash. SNFA claimed the trial court did not have personal jurisdiction over the company, and so asked the court to dismiss the case.

The trial court agreed, and ruled the estate “failed to meet its burden of showing continuous and systematic presence in Illinois” and that the accident “did not arise out of an Illinois activity.” But the First District Illinois Appellate Court reversed and sent the case back to the trial court for a decision on the merits.

The appellate court discussed the proper standard of review of a decision to dismiss for lack of jurisdiction.

“The plaintiff bears the burden of establishing a prima facie basis upon which jurisdiction over an out-of-state resident may be exercised." … "If jurisdictional facts remain in controversy, then the court must conduct a hearing to resolve those disputes." … "When the circuit court decides a jurisdictional question solely on the basis of documentary evidence" and without an evidentiary hearing, as it did in this case, then "the question is addressed de novo [trial court ruling gets no discretion] on appeal." … On appeal, we must "resolve in favor of the plaintiff any conflicts in the pleadings and affidavits." … If we find that plaintiff has made a prima facie case for jurisdiction, we must then determine if any material evidentiary conflicts exist … If a material evidentiary conflict exists, we must remand the case to the trial court for an evidentiary hearing …

In this case, the appellate court ruled: SNFA had sufficient minimum contacts with Illinois to establish jurisdiction; it was reasonable for an Illinois court to exercise jurisdiction over the French company; it was reasonably foreseeable that SNFA could be required to answer a claim in an American court.

Read the whole case, Russell v. SNFA, No. 1-09-3012 (3/31/11), by clicking here.

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June 12, 2011

♪♪♪ Sing, Sing, Sing ♪♪♪

Good writing has a lot in common with pleasing music. That’s so for appellate briefs as much as novels. Good narration and argument stays with the reader, and makes the reader want more, just like a toe-tapping melody.

Bret Rappaport says your mind’s ear hears what you read. How do you use that thesis in your appellate briefs? Take a look at Rappaport’s article, “Using the Elements of Rhythm, Flow, and Tone to Create a More Effective and Persuasive Acoustic Experience in Legal Writing,” (Journal of Legal Writing Institute, Vol. 16, p. 65, 2010. Thanks to the (new) legal writer for the reference.

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June 2, 2011

Illinois Changes Official Case Citation System

Changes to the official method of case citation in Illinois go into effect next month. The Illinois Supreme Court Rules will require the court docket number to be cited, and does away with citation to an official printed reporter. Official Illinois supreme court and appellate court opinions will be on the courts’ website. Here is the supreme court’s press release on the changes.

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June 1, 2011

Part 2 Of Guberman Interview On Appellate-Brief Writing

We continue with Part 2 of author and legal-writing expert Ross Guberman’s insights into drafting appellate briefs. In case you missed it, here’s Part 1. And here is a link to my review of Ross’s book, Point Made: How to Write Like the Nation’s Top Advocates.

What is the role of case law precedent in a well-written appellate brief?

Judge Posner suggests in his book How Judges Think that most litigators overestimate the importance of case law and underestimate the pragmatic advantage of making the court feel like it is doing the right thing, or at least that following the case law makes sense.

But even when the case law is paramount, computers are our worst enemy, for they encourage us to regurgitate too many facts and to copy too much from the holdings.

If you study the work of the top appellate advocates, you’ll notice that they, unlike most of us, rarely write things like “Such-and-such case is directly on point. In such-and-such case, so-and-so was born thirty years ago.” Instead, you’ll find swift and clean links between the case cited and the current case. And those links are at the beginning of the discussion, not buried at the end.

Are some styles better than others for a brief – formal, casual, some mix, something else?

I think a lot of people confuse “serious” with “formal.” The Economist is a serious and influential publication that many people love to read, but I would not call the writing “formal.”
The same goes for briefs. Very few briefs are too casual. In fact, I wish lawyers were as afraid of being boring as they are afraid of being too casual. And remember that showing personality and flair does not make writing “casual.”

The very best brief writers mix styles and diction, sometimes even in one sentence. Here’s an example from Maureen Mahoney’s brief seeking to reverse the Arthur Andersen conviction: “A transitive reading of ‘corruptly’ avoid this interpretive train wreck entirely.” And here’s another example from patent-litigation guru Morgan Chu: “[T]he parties’ contract provides a definition that is closely related to the sweet spot of Tessera’s patent portfolio.”

Is there a difference between writing that will be read as a paper copy of a brief, or on a computer screen?

I know there have some recent stories about judges and justices reading briefs on Kindles and the like. These revelations are treated as sexy stuff in the advocacy world, but frankly I’m not sure whether any of it matters. If the reading device matters at all, it would simply be because when judges read on a screen, you have an even greater burden to make the prose accessible and appealing to the eye.

The great citation debate. Better to put them in the text or in footnotes?

I personally love the look of briefs with citations in the footnotes, and I appreciate Bryan Garner’s efforts in this regard. But the truth is, most judges still want the citations where they’ve long been—in the text—and most judges put citations there in their own opinions. As a compromise, avoid starting sentences with a full citation and avoid embedding citations in the middle of sentences either. Better to make your citation a separate sentence that doesn’t interrupt the flow.

Does typography matter? What are the two or three points most important for lawyers to keep in mind?

Let’s be honest: it’s more fun to talk about fonts than to talk about the best way to organize your argument sections. But the latter surely matters far more.

I do have some advice on fonts and spacing in my own book, and if your readers particularly interested in typography, I recommend the authoritative Typography for Lawyers by my friend Matthew Butterick.

Probably the most important point is to avoid Courier as your font!

How does Point Made help the appellate practitioner?

I’ve had the privilege of meeting a lot of appellate practitioners who attend my workshops and seminars around the country. Most sense that writers like, say, Chief Justice John Roberts, are doing “something” in their prose and analysis that other advocates just don’t do. My job in Point Made is to turn that “something” into 50 concrete techniques illustrated with hundreds of bite-sized examples from many top lawyers and many famous cases.
Some people have written or called me to say that the book has helped them with their oral advocacy as well, though that was not my intention and I don’t purport to be an expert on oral argument.

I know people love to say that appellate advocacy is an art, but even if that’s true, I’ve tried to reveal some of the craft behind that art. And so far, I’ve been grateful to hear that lawyers at all levels, from the most prominent Supreme Court advocates to newly minted law school graduates, have found the examples helpful, and even inspiring.

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