Judges, please don't do this.

 From the 4th Circuit:

Elizabeth Peiffer, one of two lead attorneys representing David Runyon in this habeas proceeding, filed a motion to withdraw as counsel for Runyon on the ground that her mother was diagnosed with cancer and caring for her would distract from an appropriate representation of Runyon. The district court denied Peiffer’s motion, finding that it was “in the interests of justice for Ms. Peiffer to remain as counsel for” Runyon. Peiffer then filed this appeal. Because we cannot, in the circumstances presented, conclude that the district court abused its discretion, we affirm.

Really?

Meantime, happy first Monday in October. 

"The Psychology of Persuading Jurors in the TikTok Era"

 Here's a little something that my daughter (and I) wrote:

In 1924, two wealthy University of Chicago students, Nathan Leopold and Richard Loeb, thought they were so smart that they could commit the perfect, unsolvable crime. So they lured a 14-year-old boy into their car, killed him, and then sent a $10,000 demand letter to the boy’s family. Before the boy’s family could pay the ransom, police found the body.

Far from committing the perfect crime, Leopold left his glasses at the scene, and police quickly traced the glasses to his optometrist. The prosecutors sought the death penalty for the boys, who hired Clarence Darrow—the greatest criminal lawyer of his day—in a bid for their lives. It was the trial of the century (before Darrow’s next trial, the Scopes Monkey trial).

After three months of trial, the courtroom was sweltering the day that Darrow delivered his closing argument. He spoke for 12 hours. That’s not a typo. Twelve hours.

I have friends that can’t even sit through a two-hour movie.

I’m almost 18 years old, and what that means is that my generation and I soon will be sitting on juries. That may scare many of you trial lawyers, but you are going to have to figure out a way to reach the minds of people who are used to absorbing information from 30-second bites on TikTok.

So here’s some advice:

1. Keep it moving. I understand that you lawyers think that every document is a critical piece of evidence. And that jurors will be able to follow the excruciating detail in every contract.  But trust me, you are much better off just making the point and moving on. Don’t waste time with a long lead up. Make your point and get out of there.
2. Be passionate. There’s nothing worse than watching someone speak who doesn’t feel some passion for what they are saying. I can sit through calculus—yes, calculus—because my teacher makes it fun and interesting. And trust me, I’m not otherwise that into the subject matter. If you don’t believe in what you’re saying, the jury isn’t going to be either.
3. Keep it simple. I didn’t include the last S of K.I.S.S. (look it up) because that’s just rude. But this one’s obvious, right? If you can’t explain it quickly and easily, then you are going to lose the jury. Analogies help. Think about the psychology of the people sitting in your jury box, and try to appeal to them.
4. Don’t read. Bueller, Bueller. If you are just reading, you can expect your audience to disengage and stop listening. This point relates to points 2 and 3 above. If you are passionate and keeping it simple, you won’t need to read. Speak from the heart (and from an outline, if necessary).
5. Use visuals. Us young people need to see, not just hear. So please use visuals. This does not mean putting a bunch of words or your outline on PowerPoint slides. Death by PowerPoint is real. The visuals need to be engaging and have a point. My dad likes starting his opening statements with a picture of his client and the family. He may not even mention the picture while speaking, but it’s up there. And jurors see it and understand that it’s a real person with a real family, not just “the defendant” as the prosecutor just said over and over. Again, play to the psychology of your jurors.
6. Make your argument unique. There is a reason everyone binge watches Legally Blonde.  Keeping the defense witty, sharp, and “fun” to listen to is crucial. “What, like it’s hard?”

Darrow saved the lives of Leopold and Loeb with that long closing argument. I’m sure it was perfect for jurors in the 1920s. In fact, Darrow was credited for winning a case with unwinnable facts. That said, if he went on for that long today, the jurors may have saved his clients, but they would be thinking about sending him to Old Sparky!

David Oscar Markus is a partner at Markus/Moss. Follow him @domarkus. Kate Emily Markus is in her senior year at Palmetto Senior High School. Follow her @kate_markus.

1.  

"That's exactly right, sweetheart..."

 "…uh, excuse me, Your Honor..."

Eek.

Not the best way to end your rebuttal in the 11th Circuit. It's at the 36:25 mark of this oral argument.

I really debated posting this because I actually kinda feel bad for the guy, who sounds old, was obviously embarrassed, and immediately apologized. But people are talking about it and it’s public record, so I put it up. It’s a good reminder that this kind of thing still happens even to the best and most powerful women in our profession. 

Should USAO offices be tweeting?

 

Say what you will about Menendez… but it always bothers me when prosecutors have flashy press conferences. Do they really need to be tweeting? https://t.co/1vgTaeK8d4

— David Oscar Markus (@domarkus) September 23, 2023

I'm sure you're not surprised by my view.  What's yours? 

What happens when judges, appointed for life, are too old?

 Pauline Newman, 96, was suspended for a year.

Colleagues of Pauline Newman, a 96-year-old federal appeals judge, have suspended her from hearing cases as part of a clash over her mental fitness.

The U.S. Court of Appeals for the Federal Circuit’s active judges on Wednesday barred Newman from hearing cases for one year unless she complies with their demand to submit to medical testing.

“We are acutely aware that this is not a fitting capstone to Judge Newman’s exemplary and storied career,” according to the order.

“We all would prefer a different outcome for our friend and colleague,” it continued. “However, we have a solemn obligation under the Act and an obligation to the litigants before our Court and court staff to take action—and not to simply look the other way—when it appears that a judge of this Court is no longer capable of performing the duties of her judicial office.”

The ruling is the latest development in a bitter battle over Newman’s fitness to continue serving on the Federal Circuit, an appeals court that hears patent cases and other specialized disputes.

We've had some wonderful judges who had to confront the issue in our district over the years, including one during a high profile case dealing with the Everglades cleanup.

Congratulations to Florida's new lawyers

Congratulations to everyone who passed the Florida Bar. 

Here’s how lawyers were notified back before there was the Internet. This is my Dad’s notification back in 1958. 

A telegram!

 

Opponents of Florida Sports Betting To Seek SCOTUS Review

By John R. Byrne

If you're wondering when you're going to be able to lock in your parlay bet on Dolphins winning the Super Bowl and Tua the MVP award, the answer is not anytime soon. We blogged a while back about the Seminole Hard Rock's big win in the U.S. Circuit Court of Appeals for the District of Columbia. The three-judge panel held that the Secretary of the Interior did not violate the Administrative Procedures Act when she allowed the gaming compact between the Seminole Tribe and Florida to go into effect.

Though the DC Court of Appeals denied en banc review, opponents of the compact say they plan to pursue SCOTUS review. From their lawyers:

“[The Court] held that a tribe and state may use the process set forth in IGRA (the Indian Gaming Regulatory Act) to grant exclusive statewide internet gaming franchises to Indian tribes. This understanding contradicted Congress’ clear intent in enacting IGRA which was to provide for gaming ‘on Indian lands,’ not to provide a means to introduce internet gaming statewide."

So, the case is "under further review." You can read the Tampa Bay Times's coverage here.

Parallels in Statutory Interpretation

By John R. Byrne

Interesting dissent from Judge Rosenbaum in an order denying rehearing en banc. At issue was the American Rescue Plan Act of 2021, which gave the states over 200 billion dollars to deal with the coronavirus pandemic. But the federal government argued there were strings attached to that funding, strings that 13 different states (including Florida) challenged. The original panel held that the feds could not enforce those conditions, relying on precedent that required such conditions to be expressed "unambiguously" and "with a clear voice."

In her dissent, Judge Rosenbaum criticized the majority for not following the US Supreme Court's approach to statutory interpretation. She wrote that "The Supreme Court has told us that 'before concluding that a [statute] is genuinely ambiguous, a court must exhaust all the traditional tools of construction'" and stressed the need to consider "the statutory context" and the "statutory structure." In response to her criticism, Judge Brasher faulted the feds for not presenting these statutory interpretation arguments in the first place.

The commentary on statutory interpretation by Judge Rosenbaum is strikingly similar to language recently used by the Florida Supreme Court. In Conage v. United States, 346 So. 3d 594, 598 (Fla. 2022), Florida Supreme Court Justice Muniz wrote that, when interpreting a statute, a court must consider “the [statutory] language itself, the specific context in which that language is used, and the broader context of the statute as a whole” and that "the traditional canons of statutory interpretation can aid the interpretive process from beginning to end."

Order below.

American Rescue Plan Act Case by John Byrne on Scribd