How Appealing

Wednesday, August 20, 2014

Microsoft Word doesn’t like “caselaw,” but Bryan Garner does: Spell-check can be a wonderful thing, but should attorneys give-in to that program’s belief that “caselaw” isn’t a word? In some recent appellate briefs, I have been using the two-word version to avoid the red underlining that Microsoft Word confers on my preferred single-word approach.

Tonight I decided to consult the views of legal writing guru Bryan A. Garner on this question via Google search. The answer from Garner seems to be that “caselaw” is just fine.

Posted at 10:40 PM by Howard Bashman

Proposal to shorten the maximum length of principal briefs filed in the U.S. Courts of Appeals from 14,000 words to 12,500 words: You can read the proposed amendment and accompanying commentary at this link. Apparently the current 14,000-word limit was based on a mistake concerning how many words fit onto a page. This proposed amendment likely will provoke an outcry from those who believe the current 14,000-word limit is too small — which undoubtedly it is in some cases.

The notice soliciting comments states that “All Written Comments are Due by February 17, 2015.” (Via “BeSpacific.”)

Readers who favor or disfavor this amendment are invited to send comments for publication here at “How Appealing.” Please identify whether I may publish your name with your comment. I am in the process of formulating my views on the matter.

Update: Mathematically, the proposed new 12,500-word limit on principal briefs represents 89.3 percent of the current 14,000-word limit. Thus, if you currently reach the word count maximum at around 66 pages (which I typically do when using either 14-point Century Schoolbook or Book Antiqua font), then under the new rule you would reach the maximum word count at around 60 pages. That could be the difference between being able to include an additional argument or being able to adequately develop all existing arguments in a brief consisting of more than just a few arguments.

On the other hand, there certainly are those lawyers, and even some law firms, who can’t stop writing until the word count is reached, whether or not the case justifies such extended treatment. In at least those instances, the new word count will certainly be appreciated by those of us on the other side of the case.

It would be interesting to hear from appellate judges whether the current word count is too long and whether shortening the word count by approximately 11 percent would make an appreciable difference to their workloads and ability to give important cases the attention they deserve. My guess is that judges have their own mechanism for coping with verbose briefs that typically consists of paying less attention and that this small reduction in maximum brief size won’t make any difference in that regard.

Posted at 10:09 PM by Howard Bashman

Pa. Supreme Court grants review to decide two important but unresolved questions pertaining to medical malpractice litigation: Question one involves the scope of a hospital’s liability under the ostensible agency doctrine, while question two involves whether a nurse may deliver expert testimony on behalf of the plaintiff against a defendant nurse in a case in which physicians remain as co-defendants.

You can access at this link the Petition for Allowance of Appeal that I filed in early March 2014 on behalf of the plaintiff in this case requesting Pa. Supreme Court review. And today’s order of Pennsylvania’s highest court granting review on both questions presented can be accessed here.

Posted at 9:02 PM by Howard Bashman

“The Crooked and the Dead: Does the Constitution protect corruption?” Jill Lepore has this article in the August 25, 2014 issue of The New Yorker.

Posted at 1:20 PM by Howard Bashman

“Ginsburg and Alito to Speak at New-York Historical Society”: This post appeared yesterday at the “ArtsBeat” blog of The New York Times.

Posted at 11:23 AM by Howard Bashman