JUDICIAL WIT

In a pretrial ruling on a motion for a more definite statement in a complaint, the Honorable Ronald B. Leighton, United States District Judge, Western District of Washington at Tacoma provided gems of judicial wit. In Presidio Group, LLC, vs. GMAC Mortgage, LLC. Judge Leighton's order granting the motion began with William Shakespeare, Hamlet, Act 2, Scene 2, Line 90: “Brevity is the soul of wit.”

The good Judge then went on to point out that “(b)revity is also the soul of a pleading. See Fed. R. Civ. P. 8(a). The Federal Rules envision a “short and plain statement of the claim showing that the pleader is entitled to relief.” He then went on to describe portions of the 465 page Complaint:

"Not before page 30 does the Complaint address the facts alleged. Plaintiff’s allegations continue for 87 pages – including a 37 page pit-stop to quote e-mails. (Compl. 39-76). The Court notes, with some irony, that in his response opposing Defendants’ motions for a more definite statement, the Plaintiff successfully states his allegations in two pages."

Then, in granting the motion, Judge Leighton added a bit of his own poetry:

Plaintiff has a great deal to say

But it seems he skipped Rule 8(a),

His Complaint is too long,

Which renders it wrong,

Please re-write and re-file today.

In case you missed it before, here is his order.

HUMOR IN A PRETRIAL RULING

In case you missed this gem of judicial wit in a pretrial ruling on a motion, here it is again. In Presidio Group, LLC, vs. GMAC Mortgage, LLC. In the case, the defendants moved for a more definite statement in the Complaint. In his Order granting the motion, the Honorable Ronald B. Leighton, United States District Judge, Western District of Washington at Tacoma began with William Shakespeare, Hamlet, Act 2, Scene 2, Line 90: “Brevity is the soul of wit.”

The good Judge then went on to point out that “(b)revity is also the soul of a pleading. See Fed. R. Civ. P. 8(a). The Federal Rules envision a “short and plain statement of the claim showing that the pleader is entitled to relief.” He then went on to describe portions of the 465 page Complaint:

"Not before page 30 does the Complaint address the facts alleged. Plaintiff’s allegations continue for 87 pages – including a 37 page pit-stop to quote e-mails. (Compl. 39-76). The Court notes, with some irony, that in his response opposing Defendants’ motions for a more definite statement, the Plaintiff successfully states his allegations in two pages."

Then, in granting the motion, Judge Leighton added a bit of his own poetry:

Plaintiff has a great deal to say

But it seems he skipped Rule 8(a),

His Complaint is too long,

Which renders it wrong,

Please re-write and re-file today.

View the original order here.

APPELLATE ADVOCACY - THE INSIDE STORY: THEODORE OLSON AND DAVID BOIES

In their book Redeeming the Dream: Proposition 8 and the Struggle for Marriage Equality, Penguin Group (2014) David Boies and Theodore Olson take the reader inside the appeal of their marriage equality case challenging California’s Proposition 8. The trial court’s decision in their client’s favor eventually reached the United States Supreme Court. At this juncture, Ted Olson took the role of lead counsel because of his vast experience as an appellate lawyer including his stint as United States Solicitor General from June 2001 to July 2004. The book serves as a tutorial on how diligent and capable appellate lawyers prepare for appellate argument and argues on appeal. In both Trial Advocacy, Pretrial Advocacy and in Cross-Examination Handbook, we stress the importance of arduous preparation. Following are a couple examples from the book that illustrate excellence in appellate advocacy.

Moot Court Sessions

Effective appellate oral advocacy is the product of arduous preparation. Ted Olson’s preparation included vigorous questioning during moot court sessions held at Gibson Dunn’s Washington D.C. office. The room was arranged to simulate the Supreme Court’s setting, and the select lawyers from the firm and David Boies assumed the roles of Supreme Court justices and posed challenging questions that those justices might ask.

Assessments of the Justices

Redeeming the Dream describes the process that the appellate lawyers went through in order to get Olson ready to persuasively respond to the justices questions as follows: “Our typical procedure for Supreme Court arguments is to have members of our team assemble assessments of each of the justices in order to evaluate how they might approach the upcoming case, what questions they might ask, how they might see the issues, ant to preview as much as  possible their ultimate take on the case.” This is good practice for any appellate argument.

Start Strong and Finish Strong

How you begin your argument is important because it is your opportunity to state your theme and the gist of your argument before the court’s questioning intervenes. Redeeming the Dream makes this point: and describes the care that Olson took to prepare those words, as follows: “Ted focused yet again on the first words for the court that he had carefully crafted. That was all he might reasonably expect to get out before being interrupted by questions from the bench.”

Here are the words Olson crafted: “Proposition 8 walls off gays and lesbians from marriage, the most important relation in life according to this court, thus stigmatizing a class of Californians based upon their status and labeling their most cherished relationships as second-rate, different, unequal, and not okay.”

Olson was second to argue before the Supreme Court and the justices had devoted much of their questioning of opposing counsel to the issue of standing, and therefore, Olson began by acknowledging that the court wanted him to discuss standing but than said that it was important to put the case in context and led with his prepared statement. After he got his chosen words out, Justice Roberts said, “Mr. Olson. I cut off your friend before he could get into the merits.” Olson responded, “I was trying to avoid that, Your Honor.” Roberts responded, “I know.” Redeeming the Dream notes: “It was a warmly human exchange, and the crowd in the courtroom responded with laughter.”

Closing remarks for an argument are as important as how you begin your argument. Redeeming the Dream observes: “We strongly felt that the Court should not wait to  grant marriage equality, and Ted, drawing from his weeks of preparation, concluded with a sentence succinctly summarizing where society had come on this issue:

“‘I respectfully submit that we’ve learned to understand more about sexual orientation and what it means to individuals. I guess the language that Justice Ginsburg used at the closing of the VMI case is an important thing. It resonates with me:

‘A prime part of the history of our Constitution is the story of the extension of constitutional rights to people once ignored or excluded.’”

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Redeeming the Dream is a must read for trial and appellate lawyers and for those interested in this historic marriage equality case. The story of David Boies’s and Theodore Olson’s advocacy in this case is also told in the documentary film The Case Against 8.

TRIAL ADVOCACY - THE INSIDE STORY: DAVID BOIES AND THEODORE OLSON

David Boies

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In their book Redeeming the Dream: Proposition 8 and the Struggle for Marriage Equality, Penguin Group (2014), David Boies and Theodore Olson take the reader inside the trial of their case challenging California’s Proposition 8. The book explores everything from preparing the complaint through closing argument and then the appeal to the United States Supreme Court. The book informs the reader about how highly skilled trial lawyers prepare for trial and perform in trial. It also covers the stress, fears and elation that trial lawyers and clients experience in a high profile case. The following are just a few examples from the book to illustrate how it tells the story of excellent pretrial and trial advocacy as well as what effect this landmark case had on the lawyers and others involved in it.

The Complaint

Boies and Olson were supported by a band of lawyers from their two law firms. Two lawyers from Gibson Dunn, Chris Dusseault and Theane Evangelis, were charged with the task of crafting the first draft of the complaint. Ms. Evangelis, who had clerked for Supreme Court Justice Sandra Day O’Connor and was new to the Gibson Dunn firm, started out by running off the complaints and the briefing in pertinent Supreme Court cases, including the Loving v. Virginia, 388 U.S. 1 (1968), and the complaints and briefs in state cases on same-sex marriage. Redeeming the Dream describes what this meant to the her:

“She was acutely sensitive to minority rights and all the social and psychological implications of discrimination. This interest had only increased during her time with Justice O’Connor, who, despite being a moderately conservative jurist, had voted to uphold affirmative action in education and a woman’s right to abortion. For Theane, the chance to play a role in a case that was concerned with minority rights and was quite likely to end at the Supreme Court was a dream come true.”

The authors describe what next happened in the process after the initial draft was completed: “Theane’s initial draft was revised by the entire California team. It was finally polished by Ted and his Washington colleagues Matt McGill and Amir Tayrani, and by David and his partners Bob Silver and Jeremy Goldman.” 

Redeeming the Dream describes the gist of the complaint and why it was filed in federal court and rationale for filing the complaint in the Northern District of California.

Case Themes

The development of a case themes and utilizing them in trial is at the core of excellent trial advocacy, and Redeeming the Dream returns again and again to the importance of themes. For instance, when David Boies spoke to the media to announce that the complaint had been filed, he stated the theme: “. . . The purpose of our Constitution and the purpose of our court system is to make sure that the promise of our Constitution is extended to every American. That’s what this lawsuit is about.” Ted Olson delivered the opening statement at trial; he led with the case theme: “This case is about marriage and equality. Plaintiffs are being denied the right to marry and equality under the law.”

Cross-Examination

David Boies is a legendary cross-examiner. Redeeming the Dream provides the reader with insights into his mastery of the art of cross-examination. Read more about his cross-examination strategies and techniques here.

The story of David Boies’s and Theodore Olson’s advocacy in this landmark civil rights case has also been chronicled in the documentary film The Case Against 8.

THE REAL DREAM TEAM: DAVID BOIES & TED OLSON

David Boies & Theodore Olson

When the two adversary lawyers in the Bush v. Gore case, David Boies and Theodore Olson, teamed up to challenge California’s Proposition 8 in a federal lawsuit, they created the TRUE LEGAL DREAM TEAM. They also proved to be exceptionally fine co-authors when they recounted their pretrial preparation, trial and appellate experiences in their book entitled, Redeeming the Dream:Proposition 8 and the Struggle for Marriage Equality, Penguin Group (2014).

Redeeming the Dream is a must read for trial and appellate lawyers as well as those interested in this historic marriage equality case. Boies and Olson provide an insider’s view of how to prepare for trial and try a case as well as how to advocate on appeal. It is a superb tutorial on trial and appellate strategies and techniques with illustrations from the case.

The two lawyers divvied up the lead counsel roles based upon their proven skills; David Boies took the lead for the trial phase; and Ted Olson was lead counsel for their appearance before the United States Supreme Court. Ted Olson who was first onboard described how the team was formed in this way:

“The process of finding the ideal lawyer for the role we had in mind took several weeks while we were locating the right plaintiffs, fine-tuning our strategy, and preparing the case. But the epiphany, when it came, struck all of us as a perfect solution. During a Saturday conference call in May to discuss strategy, I suggested my Bush v. Gore opponent, and by then friend, David Boies, California’s motto ‘Eureka’ (‘We have found it’), leapt to mind.

“David had handled appeals, including the Supreme Court, but was best known nationally as an outstanding and extraordinarily successful trial lawyer. I had done trial work, but was better known as an appellate lawyer. It seemed perfect. Democrat, Republican. Bush v. Gore. Trial lawyer, appellate lawyer. . .”

While most of the chapters in Redeeming the Dream are written by the co-authors, some of the chapters have single authors. For instance, Ted Olson wrote Chapter 9 describing “David’s Cross-Examination” and David Boies wrote Chapter 10 that examines “Ted’s Closing.” This division of the authorship serves the reader well because the two authors have formed a mutual-admiration society and the sole author is turned loose to fully expound upon the skills of his co-counsel. Examples of Olson’s effusive praise and description of David Boies skills as across-examiner can be found here.

The story of David Boies’s and Theodore Olson’s advocacy in this landmark civil rights case has also been chronicled in the documentary film The Case Against 8.