After handing down four opinions on Monday, the Supreme Court still has 20decisions to go before recessing at the end of June. The justices added Thursday as a decision day, and may do the same on Friday and several days next week. No definitive word on when they fold the tent. Meantime, practitioners are bracing for new word limits that will cramp their writing style, and we offer advice on how to trim briefs. Plus, a look at an arbitration case that involves big law and an ex-partner's discrimination claims. Feedback and tips are welcome: Contact us at [email protected] and [email protected], and follow us on Twitter at @Tonymauro and @MarciaCoyle. Thanks for reading!

 

 

Making SCOTUS Briefs Briefer

Soon after the Supreme Court adjourns for the summer and the justices head off to far-flung places, an important change will take place in their absence.

On July 1, new court rules will limit merits briefs to 13,000 words, down from the current 15,000-word limit.

When the court proposed new rules in April, a coalition of 18 law firms with Supreme Court practices complained that if the cut took effect, “brief writers would often have to sacrifice readability and clarity to meet the word limit. In many cases, a reduced word limit would make it impossible for parties to provide the kind of thorough historical analysis that has often proven helpful to the court's decisions.”

The court imposed the limit anyway. We asked several practitioners how they are coping, and got few responses, and none on the record. Either they fear annoying the justices, or they've absorbed the change already. Or maybe they are busy deleting words from upcoming briefs.

So we turned for advice to make briefs briefer from renowned legal writing experts. Some tips:

>> Bryan Garner, president of LawProse Inc., devised the “deep issue” statement as a way of achieving brevity. It is a multi-sentence, plain language statement that capsulizes the issue at hand within 75 words. Also: “Have somebody on the team who knows how to copy-edit for tightening. It's bizarre to see lawyers with strict word limits using verbose phrases like “prior to,” “subsequent to,” “pursuant to,” etc. The extra words add up.”

>> Hank Wallace, a lawyer who leads the “Write & Speak Like the News” seminar: “Delete an 'included offense'—an offense against brevity. Writing 'The pilot took off despite fog' beats 'The pilot took off despite foggy weather.' Swap in crisp verbs for dull nouns. Instead of 'the presence of guns in schools poses a substantial threat to the educational process', write “guns in schools substantially threaten education.' For brevity, better to be verbose than noun-ose.”

>> Ross Guberman, president of Legal Writing Pro LLC, who developed the BriefCatch editing tool in part to attack wordiness: “Many Supreme Court advocates grant themselves an exemption from the 'no needless adverbs' gospel they preach. In a recent merits briefs, I saw about 50 iterations of 'flatly,' 'squarely,' 'entirely,' 'wholly,' 'plainly,' and 'clearly.'”

But the all-time best technique for trimming may have come from the late Chief Justice William Rehnquist. His successor and prior law clerk John Roberts Jr. recounted the time when he submitted a draft opinion to Rehnquist. Rehnquist circled sections of the draft and told Roberts to “put it all in footnotes.” Roberts did so and gave it back to Rehnquist, who told him, “Now cut out all the footnotes.”

   

 

Winston & Strawn's Pro-Arbitration Friends

Lawyers for Winston & Strawn are urging the U.S. Supreme Court to overturn a California state ruling that blocked the firm from forcing a former partner to arbitrate her gender discrimination claims. E. Joshua Rosenkranz, co-leader of Orrick, Herrington & Sutcliffe's appellate team, is counsel to Winston & Strawn. The former partner, Constance Ramos, is represented by Karla Gilbride, senior attorney at Public Justice. The brief in opposition is due next month.

Winston & Strawn's petition arrives at the Supreme Court as several other big U.S. firms are defendants in state or federal suits that claim discriminatory employment practices against female partners and associates. Here's a snapshot, below, of amicus briefs that were submitted this week in support of Winston & Strawn, and we'll keep a close eye on the docket to flag other developments in the coming weeks.

>> Ropes & Gray filed a brief that argued “public litigation of disputes between law firm partners also carries the unique and ever-present risk of disclosing client secrets, which lawyers have a paramount ethical obligation to protect.” Douglas Hallward-Driemeier (at left), head of Ropes & Gray's appellate and Supreme Court practice, was counsel of record. He added: “Confidential arbitration offers a means of shielding client and firm confidential information, and avoiding the immeasurable harm that may flow from public disputes—particularly disputes that center on specific client relationships, like the complaint that respondent filed here.”

>> Washington Legal Foundation (Corbin Barthold is counsel of record): “Like every other area of law, arbitration law is sure to generate the occasional thorny question. On the whole, however, arbitration clauses should cause little fuss in state court. Enforce them, Congress has instructed, unless you spot one that is a sham, a fraud, a travesty, or the like.”

>> DRI—The Voice of the Defense Bar (Matthew Nelson of Warner Norcross + Judd is counsel of record): “This case is of significant interest to DRI because its members routinely represent clients seeking to compel arbitration of claims brought under consumer protection, wage-and-hour, or other state laws that are subject to arbitration clauses. DRI's members are familiar with the common refusal of California state courts to enforce arbitration clauses because of state public policy, unconscionability principles, or other tenets of state law.”

>> Center for Workplace Compliance (Rae Vann of NT Lakis LLP is counsel of record): “This Court should review the decision below to resolve an issue of significant importance to the employer community: whether California's arbitration-specific rules in Armendariz v. Foundation Health Psychcare Services are preempted by the Federal Arbitration Act. Despite this Court's pronouncement in Concepcion that states cannot enforce rules that apply only to arbitration agreements, California courts, relying on Armendariz, continue to do so.”

>> Civil Justice Association of California: (Fred Hiestand is counsel of record; Manatt, Phelps & Phillips partner Benjamin Shatz counsel to the Association of Southern California Defense Counsel): “Review by the Court is warranted to provide clarity and certainty about an issue of paramount importance to the public interest, namely—Can states, consistent with the FAA, require that employment arbitration contracts comply with specific requirements that do not apply to contracts generally and are contrary to the defining features of arbitration?”

 

 

Supreme Court Headlines: What We're Reading

• Trump Solicitor General Has High Court's Ear as Ideologies Meet. “Until June 10, the court had followed every SG recommendation this term. The rate is still 91%, and the Trump administration's overall record since taking over the office in early 2017 is 89%. That number has tended to be somewhere around 80% historically and fell to as low as 65% during the 2014 term, during President Barack Obama's administration.” [Bloomberg Law]

• Justice Thomas Urges U.S. Supreme Court to Feel Free to Reverse Precedents. “Thomas said the nine justices should not uphold precedents that are 'demonstrably erroneous,' regardless of whether other factors supported letting them stand. 'When faced with a demonstrably erroneous precedent, my rule is simple: We should not follow it,' wrote Thomas, who has long expressed a greater willingness than his colleagues to overrule precedents.” [Reuters]

• SCOTUS Petition: Due Process Requires Fee Awards to Lawyers Outside Class Action Leadership. “Lawyers who were shut out of fees in the Volkswagen “clean diesel” car class action are taking their bid to get paid to the U.S. Supreme Court with an intriguing argument: Their clients were denied due process because of restrictions on who shared in a $175 million pot of attorneys' fees.” [Reuters] Volkswagen, represented by Sullivan & Cromwell, on Tuesday waived its response to the petition.

• Justices Rule States and Feds Can Prosecute Someone for 'Same Crime'. Justice Gorsuch said in his dissent: “A free society does not allow its government to try the same individual for the same crime until it's happy with the result. Unfortunately, the court today endorses a colossal exception to this ancient rule against double jeopardy.”[NLJ]

• Justices Dodge New Case Defending Denial of Service to LGBT Couple. The justices vacated the lower court ruling and sent the case Klein v. Oregon Bureau of Labor & Industries back to the Oregon Court of Appeals for further consideration in light of the high court's decision last term in Masterpiece Cakeshop v. Colorado Civil Rights Commission. [NLJ]

• Trump's Abuse of Executive Privilege Is More than a Present Danger. “It is sometimes said that this Supreme Court will do nothing against this president, that a body with a majority composed of justices appointed by Republican presidents will not rule against him. But the experience of President Nixon was instructive. The Supreme Court is composed of life-tenured justices for a reason. No one, particularly this president, should assume that politics will protect him in the highest court in the land,” Hogan Lovells partner Neal Katyal writes. [NYT]