REPORT FROM ORLANDO[Posted November 20, 2009] I’m in Florida much of this week for the 2009 AJEI Summit, sponsored by the ABA’s Appellate Judges Conference and the SMU Dedman School of Law. It’s a gathering of over 300 appellate jurists, appellate staff attorneys, and appellate lawyers from across the country. This is the second of these summits that I’ve attended, and this one is proving to be as valuable and informative as the last one I attended, two years ago in Washington.
Yesterday’s program featured an interactive presentation by Cornell law professor Jeffrey Rachlinski, backed by an impressive panel, on otherwise-imperceptible bias in judicial decisionmaking. The professor has both a law degree and a Ph.D. in psychology, and by a series of questions and electronically-tabulated answers, he demonstrated to a roomful of dispassionate, presumably-impartial jurists and lawyers that it’s virtually impossible for any of us to be wholly impartial. He has presented this program to trial judges, where the results are even more dramatic (because of the need to make credibility determinations), but it was clear from the immediate results that no one is impervious to bias.
This morning began with a presentation by California-Irvine Law School dean Erwin Chemerinsky on the most important civil caselaw from the US Supreme Court in the October 2008 term. Dean Chemerinsky’s presentations, which he gives wholly without notes, are cogent and engaging, and this one was no exception. In his view, the most important civil case decided in the last turn was Ashcroft v. Iqbal, which wrought a massive change in federal pleading requirements, departing from notice-pleading and moving the crucial phase of validity-testing from summary judgment back to the motion to dismiss. This change won’t immediately affect Virginia state-court practice, of course – despite all their authority, the justices in Washington don’t get to tell anyone what Virginia’s pleading rules must be – but if you practice in federal court, you already know Iqbal’s importance.
After this initial presentation, the program divided into parallel tracks. Dean Chemerinsky shifted his focus to the important criminal cases of the term, but since only a tiny fraction of my caseload is criminal, I instead attended a program presented by Duke Law professor George Gopen entitled, “A New Understanding of the ‘Plain’ in ‘Plain English’.” Breaking with many of the accepted doctrines relating to legal writing, he advocated a reader-based approach that made the audience rethink what makes for clarity in writing. His presentation had two thrusts: He dealt with statutory definitions of plain language or plain English, and the havoc such definitions sometimes engender; and he gave the audience several key concepts to improve our own writing styles. In case you’re wondering, he answer is yes; although I am in essence a professional writer (all of us in the legal profession have to be), I intend to revise my own writing style after seeing this program. (I still intend to keep up the snappy style and the frequent infusion of appellate jokes here, of course.)
I next attended a speech dealing with the vital process of editing. As with many of the programs here, it featured an emphasis on judicial writing, but the presenter, legal-writing consultant Steve Armstrong, addressed briefwriting as well. He emphasized overall organization of the writing, also or the sake of clarity, but more on a macro level than Prof. Gopen had primarily focused upon. He, too, emphasized clarity as the primary object of good writing.
This evening, I’ll attend a short business meeting of the Council of Appellate Lawyers, and then attend my favorite social function here, the dine-around. The concept is elegantly simple: There is one table for eight reserved at each of about a dozen local restaurants. You pick one with a cuisine you like and sign up. You then go to the restaurant at the appointed hour and have fun getting to know seven other people from around the country who share at least one interest with you.
Virginia, by the way, is not as well-represented here as I would have hoped. Judge McClanahan of the CAV will be on a panel Saturday morning, but other than her, the only other Virginians around here are three military judges, all of whom I infer are stationed at The Pentagon. In contrast, we learned today that 17 of Indiana’s appellate jurists (on two courts) are here. If I had to guess why more Virginia judges and justices aren’t here, my Suspect #1 would be the state budget.
One last thing I have learned. In Virginia, they post speed limits on signs by the highways. Here, they post what I assume are speed suggestions.