Articles Posted in Two Tips

Zabaneh Franchises bought an H&R Block tax preparation franchise. The purchase included “all interest in the employment and noncompetition agreements with H&R Block’s employees.”

Terri Walker had been employed by H&R, but claimed she did not have an employment agreement with Zabaneh. Zabaneh claimed the Terri violated the employment agreement she signed with H&R, and that Zabaneh took over, because within a few months after leaving H&R, Terri (1) started her own tax preparation business; (2) hired H&R employees; (3) solicited H&R customers. So Zabaneh asked the trial court for a preliminary injunction to prevent Terri from doing all those things.

The trial court denied Zabaneh’s request for an injunction against Terri. The trial court refused to enforce the employment contract because it was a “contract of adhesion,” meaning there had not been negotiation of the terms of the contract and the only way Terri could get employment with H&R was to accept the contract as presented. So Zabaneh appealed.

Terri’s employment agreement stated that Missouri law governed the dispute.
But in the trial court, and even in the appeal, Zabaneh primarily argued Illinois law. Nonetheless, in the appeal, Zabaneh claimed that Missouri law governed.

But the Fourth District Illinois Appellate Court disagreed. The appellate court ruled Zabaneh waived its right to argue Missouri law governed because the company “filed a lengthy memorandum of law in support of its motion for a TRO [temporary restraining order] and preliminary injunction in the circuit [trial] court, extensively citing and relying only upon authority from Illinois …” Zabaneh argued that it used Illinois case law only to support “procedural” matters. But the court found just the opposite, and stated Zabaneh used Illinois authority to support “‘substantive issues’ relating to the enforceability of the covenants.” The appellate court disregarded Zabaneh’s Missouri authorities and relied on Illinois law.

So Zabaneh lost the battle over which law governed. But the company won the appeal anyway. The appellate court ruled that the noncompete employment covenants were enforceable. The case was returned to the trial court to determine whether Zabaneh was entitled to an injunction against Terri.

Read the whole opinion, Zabaneh Franchises v. Walker, 2012 IL App (4th) 110215, by clicking here.

These two tips are from Ross Guberman, the president of Legal Writing Pro and the author of Point Made: How to Write Like the Nation’s Top Advocates. Ross also is an Appellatology panelist. His short bio is here.

These Two Tips, with examples, are drawn from the brief for the states signed by Paul Clement in the “Obamacare” case.

Tip One

Use more enumerated lists, and not just in your introductions and preliminary statements. For example:

The federal government attempts to sidestep the tax power problem it would create by insisting that the Court has “abandoned the view that bright-line distinctions exist between regulatory and revenue-raising taxes.” … But that is doubly irrelevant. First, there is no analogous doctrine under which Congress treats penalties as taxes . . .

Tip Two

To add speed to your writing and to project confidence, change every “however,” “nonetheless,” or “nevertheless” to “but” or “yet.” For example:

The modern commerce power is a broad one, as there is little left of the “distinction between what is truly national and what is truly local” under the Court’s present-day notions of “commerce.” … But even as the Court has expanded its conception of “commerce,” it has not wavered from the notion that the power to “regulate” is the power to prescribe rules for commerce, and it has never suggested that power includes the power to compel the existence of commerce in the first place.

Ross put 140 comments on the Solicitor General’s “Obamacare” brief. They’re all right here.

Always thinking about you and devising unique reading and viewing experiences for our audience, Illinois Appellate Lawyer Blog announces a new series:

♪♪♪ Two Tips ♪♪♪

Two Tips, offered by legal writing and strategy experts, will suggest ways you can improve your brief writing. The tips will be in various formats – written, podcast, video, extra sensory perception, Vulcan mind meld.

Two Tips will appear at random times according to a strict schedule. If you have two tips that might interest Illinois Appellate Lawyer Blog readers and viewers, shoot me an email and we’ll make arrangements for you to appear, or write, or sing, or however you want to transmit the information.

We start now.

These two tips are from Ken Abraham. Ken has been practicing law since 1970. He was an associate judge in DuPage County, Illinois for 15 years. Ken is in private practice now and is a mock judge on the Appellatology panel. You can see a fuller bio for Ken here.

Tip One
Carefully review the trial court’s ruling, whether oral or written. Some judges say things just to placate the unsuccessful party. Others comment for the sake of appellate review to try to establish that they have considered all the law and evidence. Often a misstep is made.

One example is reciting the wrong burden of proof, or using words like “it is clear,” thus suggesting (unintentionally) that the judge employed a clear-and-convincing standard when it’s not applicable.

Tip Two
Pay close attention to what the trial judge does not state. Sometimes a key point goes unmentioned. Early in my judicial career I wrote an opinion in a divorce case. After affirming on all other grounds, the appellate court stated it was not sure if I had considered the benefit to the husband of the use of the use of a business vehicle.

In fact I had considered it, but I did not mention it is my ruling. The appellate court adjusted the final numbers. I’m certain that change would not have been made had I been more thorough in my written opinion.

Remember the old saying: Trial courts look for justice. Appellate courts look for error.