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Westlake Legal Group > Posts tagged "Uncategorized"

Live Blogging the VBA Appellate Summit

As I’m writing this, I’m attending the VBA’s Appellate Summit, a fantastic CLE that comes around every three years. This year, the appellate council made asked me to moderate a 50-minute panel about brief writing. They won’t make that mistake again! Thankfully, the outstanding–dare I say heroic?–contributions of panelists Judge Robert Humphreys, Don Jeffrey, and Elbert Lin saved the session from disaster (nothing could save it from my dad jokes). It turns out that a panel that good can moderate itself.

The day’s leadoff session was a real highlight, featuring an insightful discussion among Official Friend of De Novo (TM) Stuart Raphael, Chief Judge Roger Gregory of the Fourth Circuit, and Chief Judge Glen Huff of the Court of Appeals of Virginia. Here are some takeaways:

  • Chief Judge Huff appreciates a detailed table of contents. He does not appreciate hyperlinks in a table of contents. Chief Judge Huff reads cases and annotates cases in pdf, and hyperlinks complicate that process.
  • Chief Judge Gregory is funny! He had a great way of suggesting that lawyers home in on key points: “When you’re on your way to victory, don’t throw stones at every barking dog. You’ll get them on the way back home.”
  • Chief Judge Huff is not looking to be wowed when he reads a brief. He just wants concise, simple statements without spin.
  • Chief Judge Gregory, who writes plays in his spare time, is looking to be wowed. For him, the wow factor comes from story. He compared oral argument to a party, and he said that writing a brief is “writing to be invited to the party.”
  • Judges on the Fourth Circuit typically don’t discuss cases before oral argument.

Stuart closed with a great question: What do the Chief Judges know now that they wish they’d known when they were practitioners? Both pointed to the outcome-dispositive force of the standard of review.

And back to the CLE . . .

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In Which the Author Goes Hunting and Very Nearly Catches a Woozle

Over the weekend, Official Friend of De Novo(TM) Ross Guberman posted a challenge on Twitter: Who could come up with a fresh way to convey the idea that opposing counsel is on a fishing expedition?

This tweet yielded some fun responses, like “Plaintiff is on a snipe hunt” and “Plaintiff is running crab traps in a frog pond.”

Let me add my humble suggestion: “Plaintiff has very nearly caught a woozle.”

When I tweeted this line, I got some live feedback suggesting that it was too obscure. Wrong. Anyone who finds this obscure has no soul. Just consider what happens when we drop the line Gorsuch style:

Plaintiff has very nearly caught a woozle. That is to say, his own herculean efforts in discovery have convinced him of the rightness of his theory despite all evidence to the contrary. In A.A. Milne’s 1926 classic Winnie the Pooh, Pooh and Piglet track some footsteps through the snow around a spinney of trees. They suspect that they may be tracking a mythical beastie known as a “woozle.” As the hunters continue around the spinney, the number of tracks increase. They surmise that the woozles are gathering may have been joined by a wizzle. They also begin to wonder if their prey may have hostile intent, and Piglet grows worried enough to abandon the search. Just then they spot Pooh’s friend, Christopher Robin, sitting a tree. Christopher Robin points out that Pooh and Piglet have been walking in circles around the trees. Pooh belatedly realizes what has been going on: He and Piglet were just following their own tracks. “I have been Foolish and Deluded,” said he, “and I am a Bear of No Brain at All.” Indeed, no less an authority than Wikipedia recognizes “[t]he Woozle effect, also known as evidence by citation, or a woozle, [which] occurs when frequent citation of previous publications that lack evidence misleads individuals, groups, and the public into thinking or believing there is evidence, and nonfacts become urban myths and factoids.” So too here, the Plaintiff’s own spirited pursuit itself–not any underlying facts–has satisfied him of the truth of his position, blinding him to the obvious countervailing proof.

“Woozle hunt” is a 100% valid alternative to “fishing expedition.” Fight me.

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How the FBI Let a Chinese Spy Skate to Protect This Powerful Democrat

Westlake Legal Group feinstein-620x354 How the FBI Let a Chinese Spy Skate to Protect This Powerful Democrat Uncategorized Front Page Stories Featured Story
For 20 years, California Senator Dianne Feinstein had a Chinese spy on her office payroll.

It happened five years ago, but additional information is just surfacing about how the Bay Area senator’s office was infiltrated by a Chinese spy.

The column revealed that the Chinese spy was Feinstein’s driver who also served as a gofer in her Bay Area office and was a liaison to the Asian-American community.

He even attended Chinese consulate functions for the senator.

Feinstein — who was Chair of the Senate Intelligence Committee at the time — was reportedly mortified when the FBI told her she’d be infiltrated.

Investigators reportedly concluded the driver hadn’t leaked anything of substance and Feinstein forced him to retire.

The media has closed ranks to protect Feinstein. When the story originally broke in Politico, it’s mention was literally one-sentence in paragraph eight followed by three sentences in paragraph 24. Now, imagine if Mitch McConnell had had a Chinese agent on his personal staff for 20 years.

Why? This occurred on the watch of James Comey and it was very unlikely that he was going to arrest a staff member of a prominent Democrat senator when he desperately wanted to keep his job. The articles try to downplay this by saying the spy never had a security clearance (whew, dodged a bullet, didn’t we?) but that is somewhere between disingenuous to dishonest. The best agents are “non persons.” By that I mean they are the people who can literally walk into a classified area and probably not be noticed: like janitors, like the mail guy, like the IT guy. In one agency I worked in the entire agency network was compromised by a “white hat” hacking outfit who sent their employees in by getting them jobs with the janitorial contractor and they wandered around after hours collecting userids and passwords from sticky pad notes on monitors. Remember this image from the false nuclear attack alert in Hawaii:

Westlake Legal Group AP_17202791213129-620x413 How the FBI Let a Chinese Spy Skate to Protect This Powerful Democrat Uncategorized Front Page Stories Featured Story

Jeffrey Wong, the Hawaii Emergency Management Agency’s current operations officer, shows computer screens monitoring hazards at the agency’s headquarters in Honolulu on Friday, July 21, 2017. Hawaii is the first state to prepare the public for the possibility of a ballistic missile strike from North Korea. (AP Photo/Jennifer Sinco Kelleher)

Westlake Legal Group enhance.png How the FBI Let a Chinese Spy Skate to Protect This Powerful Democrat Uncategorized Front Page Stories Featured Story

Not only does someone like a driver have access to a lot of places you might not think, they also hear all the conversations going on. And, for all we know, Feinstein’s car was bugged. It is not hard to imagine a situation where highly classified information was being discussed by Feinstein and others and they simply forgot the driver was even there.

What happened when this guy was caught was revealing. The driver wasn’t arrested, Feinstein let him retire rather than fire him, and she didn’t tell anyone else on her staff what had happened. The articles claim that he wasn’t arrested because he’d only passed along “political intelligence” to China so that couldn’t be prosecuted. That sounds like bullsh**. Without a vigorous questioning and turning his life upside down and doing a damage assessment involving Feinstein and everyone who was around this guy, I don’t know how you’d possibly conclude that the Chinese had placed someone on the staff of the Chairwoman of the Senate Intelligence Committee to keep up on political gossip. Why didn’t we declare the Chinese intelligence officers running him persona not grata and expel them from the US? And if violating the Foreign Agents Registration Act is such a mucho serious offense as we’re being told it is, then why wasn’t he indicted under FARA?

The Prime Directive was obviously to do nothing to embarrass Feinstein and that is exactly how the FBI handled the situation. Compare and contrast it with the scorched earth policy the FBI has used in regards to the Trump campaign and administration.

Like what you see? Then visit my story archive.

I’m on Facebook. Drop by and join the fun there.

The post How the FBI Let a Chinese Spy Skate to Protect This Powerful Democrat appeared first on RedState.

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Mueller’s Team Continues to Flounder in Manafort Prosecution

Promoted from the diaries by streiff. Promotion does not imply endorsement.

Westlake Legal Group ap-robert-mueller-migraine-620x432 Mueller’s Team Continues to Flounder in Manafort Prosecution Uncategorized Front Page Stories

Mueller’s team continues to flop around with no clear direction as the trial of former Trump associate Paul Manafort approaches the end of it’s first week.

A few days ago, RedState Editor Joe Cunningham wrote about the Mueller team’s attempt to publicize Paul Manafort’s clothing choices. That was clearly an attempt to color jury perceptions while having no factual basis to the charges at hand. You can read about that here.

To be sure, anyone who wears a jacket made out of ostrich probably deserves to do hard time, but the relevance to which it played in proving Manafort a criminal was suspect at best.

Judge T.S. Ellis III agreed. He chastised the prosecution’s obsession with trying to use Manafort’s lavish lifestyle to insinuate misconduct.

While it’s part of their effort to paint Manafort as a tax scofflaw who spent big on luxury items, Ellis would not allow the photos for now.

“Enough is enough. We don’t convict people because they have a lot of money and throw it around,” he said.

The judge said the photos would seem “unnecessary, irrelevant” and potentially “prejudicial.” Further, he reminded the lawyers that Manafort “is not on trial for having a lavish lifestyle, but for not reporting income on his taxes.”

He also told them to stop using the term “oligarch,” which has become a fairly loaded, biased term given it’s widespread use in the media to paint any foreigner as a sinister figure.

U.S. District Judge T.S. Ellis III specifically told prosecutors to stop using the word “oligarch” to describe wealthy Ukrainians, whose dealings with Manafort are at the heart of the fraud charges he faces in northern Virginia federal court.

The judge said the term has a “pejorative” meaning and is not relevant in this case. Further, he cautioned that using it could suggest Manafort is associated with bad people – and guilty by association.

“It’s not the American way,” the judge said. He noted that wealthy donors like George Soros or the Koch brothers also could be considered oligarchs.

Well, not to be outdone by their prior day’s work, Mueller’s team decided to screw around again.

Paul Manafort‘s third day on trial over charges of bank fraud and tax evasion was cut a bit short on Thursday after government attorneys made the same mistake twice in a row…

…Ayliff was mostly providing foundational testimony regarding the basic functions of a tax-preparation company. Prosecutors then moved on to specifics and attempted to “publish” one of Manafort’s e-file forms. Judge T.S. Ellis III‘s weariness all but amazed the courtroom as he denied the request–complete with an actual and pronounced finger-wag–before shouting: “No! You move it along!”

It only got worse as it was revealed that they had called the witness out of order and were attempting to use him as an expert despite not being noticed as such.

Composing themselves again, the prosecution moved slowly forward before asking Ayliff to define the term “financial interest.” Ayliff began to answer the question but was immediately cut off by Ellis who noted that Ayliff was not a noticed expert.

Mueller’s team of crack prosecutors then made the same mistake again.

Static filled the courtroom as the longest bench conference of the day ensued. Upon returning to Ayliff’s testimony, the jury learned that the issue had been deferred until Friday–if ever. Then, Assistant U.S. Attorney Uzo Asonye asked about another term of art contained on federal tax forms.

Judge Ellis, who was already standing by this point, advised Ayliff to wait and announced the court would recess early.

After the jury left, Ellis took a few minutes to tell the press and public all about the bench conference. As it turns out, not only was Ayliff a non-noticed witness being asked to give the equivalent of expert testimony, but the prosecution and defense had already agreed on what the term “financial interest” meant. Moreover, this agreement was provided on a proposed–and approved–jury instruction.

That is, not only was Ayliff not an expert and not a noticed expert as necessitated by the Federal Rules of Evidence–but his testimony had the potential to derail an already-agreed-upon definition of the term(s) in question. This, Ellis said, could have “confused or clouded” things for the jury.

This amateur hour display finally gave Judge Ellis all he could handle for the day. He shut things down and called a lengthy bench conference, no doubt to give the Mueller’s US attorneys a nice bit of correction on their conduct.

What we are seeing so far doesn’t bode well for the prosecution. I say that because their strategy appears to one of a prosecution that simply doesn’t have the goods. Their attempts to unduly influence the jury reek of desperation. Mueller’s team is quickly learning that proving their case in a courtroom is not as easy as illegally leaking things and having the media dutifully spin a narrative for you.

Manafort is an unsavory figure. That doesn’t mean that the government’s case here is anything other than a hastily thrown together political mess. I do not think they expected Manafort to do anything but “flip” and plead after their attempts at intimidation toward him. This is why they were caught flat-footed early on when the defense demanded document production. It’s why the Judge saw right through their games and called them on prosecuting Manafort simply to try to get to Donald Trump.

We’ve also recently learned that Mueller’s “star witness” against Manafort, Rick Gates, might not even testify (to be sure, this is BS bluster and he will testify because they have no case without him). If that doesn’t smell like confidence, I don’t know what does.

Now that the trial has officially started, their flailing continues. Judge Ellis is apparently having none of it as he shuts down the prosecution’s attempts to turn this into a political show of guilt by insinuation. If Mueller and his team had a real, air-tight case here, would they be going about things this way? I somehow doubt it. They’ve bitten off more than they can chew and if Manafort is ultimately found not guilty, it’s going to be a big embarrassment for them.


The post Mueller’s Team Continues to Flounder in Manafort Prosecution appeared first on RedState.

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A Tale of Two Tweets

Promoted from the diaries by streiff. Promotion does not imply endorsement.

Please help me to understand something. Is a racist remark only considered racist if a white person utters it? What is it called when an Asian makes a bigoted remark about a white person? Or hundreds of them?

The New York Times offered the following response to the internet frenzy which ensued when the twitter history of the newest hire to their editorial board was made public.

For those few who may have missed it, here is a sampling of Jeong’s tweets:

On May 29, comedian Roseanne Barr posted the following tweet (now deleted): “Muslim brotherhood & planet of the apes had a baby=vj.”

Barr was referring to Jarrett, who is black and was born in Iran.

The tweet was racist and insulting and the swift and severe backlash was deserved. Barr immediately issued an apology.

In the midst of the public uproar, Barr’s tremendously popular show was canceled by ABC Entertainment: “Roseanne’s Twitter statement is abhorrent, repugnant and inconsistent with our values, and we have decided to cancel her show.”

Barr was also dropped by her talent agency, ICM Partners, who announced in a statement that her “disgraceful and unacceptable tweet” was “antithetical to our core values, both as individuals and as an agency. Consequently, we have notified her that we will not represent her.”

Imagine, if instead of immediately throwing Roseanne Barr under the bus and canceling her wildly popular show, ABC had made a statement similar in tone to that of the New York Times. A statement that acknowledged the wrong Barr had committed, offered an excuse for why she may have composed the tweet and made clear that Barr had apologized and now understood the error of her ways. Something like this:


Statement from ABC Entertainment:

We hired Roseanne Barr because of her extraordinary talent and her immense appeal to so many Americans.

Her recent “coming out” as a white, Trump-supporting, conservative-leaning female has made her a target of criticism by many overzealous, left-wing fanatics in the Hollywood community. One night, she responded to that criticism by impulsively sending out an insulting, racist tweet targeting former Obama advisor, Valerie Jarrett.

She regrets it, and this network does not condone it.

We’ve had candid conversations with Roseanne. She has issued an apology. She understands that this type of rhetoric is not acceptable at ABC Entertainment and we are confident that her program will remain an popular part of our network line-up going forward.


Liberal heads would explode.

Barr’s tweet was certainly racist, it was rude and it was shocking. But it was also impulsive. And it was an isolated event. (She was a frequent tweeter, but she did not make multiple racist comments.) And she  apologized.

Jeong’s tweets were also racist, rude and shocking. But, they were numerous and they occurred on a regular basis over a period of several years. This wasn’t just a tweet or two on a desperate day. The number and frequency of them indicate that this is Jeong’s worldview. She really, really doesn’t like white people – at all. And she certainly offers no apologies or excuses for it.

Jeong is now a 30-year-old woman. The most recent of her “racist” tweets (that I have seen) is dated November 2015, when she was 27. Most 27-year-olds know better than to voice opinions like this over the internet. How can she be given a pass on this?

The left has a never-ending tolerance for offensive liberal “shock” comedians. Think Samantha Bee, Michele Wolf, Kathy Griffin, Sasha Baron Cohen. And the same applies to offensive left leaning celebrities in general. Think Madonna, Johnny Depp, Peter Fonda, Robert DeNiro, etc. But one mistake from Roseanne, and I admit it was a doozy, and her career is over. Have we lost the capacity to forgive, even when someone admits fault and asks for forgiveness?

Surely, even the folks at the New York Times are aware of the double standard. They just dare anyone to raise the issue. Because anyone who would raise the issue is, of course, a racist.


The post A Tale of Two Tweets appeared first on RedState.

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Binding Assignments of Error

Binding assignments of error are a disaster, which is probably why Virginia is one of only eight states that still require them.*

By way of background, Rule 5:17(c)(1) requires that

Under a heading entitled “Assignments of Error,” the petition shall list, clearly and concisely and without extraneous argument, the specific errors in the rulings below upon which the party intends to rely, or the specific existing case law that should be overturned, extended, modified, or reversed. An exact reference to the page(s) of the transcript, written statement of facts, or record where the alleged error has been preserved in the trial court or other tribunal from which the appeal is taken shall be included with each assignment of error.

The case law amplifies this rule, teaching us that an appellant must use the assignment of error to “lay his finger on the error” in the ruling below; it’s not enough to simply say that the judgment was contrary to the law or the evidence.

The penalty for an insufficient assignment of error is dismissal. And the Court does in fact terminate appeals for problems with assignments of error–sometimes because the assignments of error are too general, and sometimes because they’re too narrow. The advocate’s challenge is to find what my pal Steve Emmert calls “The Goldilocks Zone,” where the assignment is specific enough to be viable, but not so narrow as to hamper review.

This is easier said than done, particularly since you face the death penalty for getting it wrong. And not all the justices view these standards the same way.

Case in point: The Court granted three petitions for appeal in the past week. This implies that, for each appeal, at least two justices on the panel of three (or four) justices (and senior justices) that heard each writ argument felt that the assignments were appropriate.

So let’s take a look at this week’s assignments.

The first case, Cuff v. Commonwealth, turns on one assignment of error:

The Court of Appeals erred in finding Cuff’s guilty pleas were not coerced, where his trial attorney admitted he threatened to withdraw from Cuff’s case if Cuff did not accept the Commonwealth’s plea agreement.

The second case, Meade v. Bank of America, N.A., asserts two:

1. The Circuit Court of Chesterfield County, Virginia (“the trial court”) erred in its order entered on May 1, 2017 sustaining the pleas in bar filed by appellees Bank of America, N.A.
(“Bank of America”) and Carrington Mortgage Services, LLC (“Carrington Mortgage”) holding that the complaint filed by the appellant Mary Harris Meade (“Meade”) seeking rescission of a foreclosure and foreclosure deed of her home (“the home”) located at 2541 Grassy Knoll Lane, North Chesterfield, Virginia 23236 was barred by the five year statute of limitations of Va. Code Ann. Section 8.01-246(2); and ordering dismissal with prejudice of Meade’s complaint, in which she pled Bank of America breached a prohibition against acceleration of the note and foreclosure under the deed of trust absent compliance with a face-to-face FHA regulatory requirement incorporated into the note and deed of trust. The May 1, 2017 order was based on the trial court’s holding that Meade’s cause of action accrued when Bank of America first failed to comply with the FHA face-to-face regulatory requirement (“the face-to-face regulation”) and that, on that basis, her complaint was filed past expiration of the aforesaid five-year statute of limitations. This was error because Meade had no cause of action when Bank of America first failed to comply with the FHA face-to-face regulatory requirement because there is no private right of action for breach of an FHA regulation. Meade’s cause of action first accrued upon acceleration of the note in breach of prohibitions against acceleration in the face-to-face regulation incorporated into the note and deed of trust and upon foreclosure of the home in breach of prohibition against foreclosure in the deed of trust absent compliance with the face-to-face regulation. Because the foreclosure occurred on March 13, 2014, less than five years before Meade’s complaint filed on December 7, 2016 and because there was no evidence of the date of
Bank of America’s acceleration of the note, the trial court erred in ruling that the statute of limitations had expired before Meade filed suit and erred in ordering dismissal with prejudice of her complaint.

2. The trial court erred in its final order entered on November 20, 2017 reaffirming the trial court’s May 1, 2017 order granting the pleas in bar of Bank of America and Carrington and
dismissing with prejudice Meade’s complaint as against all parties on grounds that the complaint was filed after expiration of the five-year statute of limitations in Va. Code Ann. Section 8.01- 246(2). This was error because no cause of action averred in the complaint accrued on breach of the FHA face-to-face regulatory requirement, rather the accrual of any cause of action on behalf of Meade involved in her complaint did not first accrue until the lender first accelerated the note, and foreclosure on the home and there was no evidence as to the date of acceleration and the foreclosure occurred on March 13, 2014, less than five years before the complaint filed December 7, 2016.

And the third, Gordon v. Kiser, blitzes us with these:

1. The Wise Court erred in not granting my motion for a nonsuit of this case.
2. The Wise Court erred in not stating at least one reason for not granting me a nonsuit of this case.
3. The Wise Court erred in not holding a hearing on my motion for a nonsuit of this case as I requested.
4. The Wise Court erred in finding that my Complaint failed to state a claim for injunctive relief.

. . .  still going . . .

5. The Wise Court erred in finding that Article I, § 1 of the Constitution of Virginia does not entitle me to safe dental treatment as a matter of right.
6. The Wise Court erred in finding my Complaint is frivolous.
7. The Wise Court erred in not following Tolbert v. Stevenson, 635 F.3d 646, 649 (4th Cir. 2011), when assessing strikes against me for cases dismissed only in part for failure to state
8. The Wise Court erred in not granting me time in which to file a declaration in opposition to Defendants’ demurrer and motion to dismiss.

. . . we’re not done yet . . .

9. The Wise Court erred in assessing strikes against me for cases dismissed upon grant of summary judgment.
10. The Wise Court erred in imposing overly broad sanctions on me that encompasses non in forma pauperis filed cases.
11. The Wise Court erred in imposing sanctions on me pursuant to Va. Code § 8.01-271.1.

Today’s cases, in short, offer widely varying interpretations of Rule 5:17(c). It remains to be seen which interpretation(s) get(s) the blessing of a majority of the justices.

To be clear, I’m not posting these assignments to fault any of them (or the lawyers who wrote them). Far from it: Cuff may stand out as Goldilocks in this set, but if you asked me whether, say, each assignment in Gordon identified the specific errors in the rulings below to the satisfaction of four justices, or if the assignments in Meade were clear and concise and without extraneous argument, I couldn’t tell you with any certainty. I don’t know. I can also imagine a situation where the assignment from Cuff backfires. And in all candor, I’ve gotten these calls wrong myself in the past.

Now compare this mess with the questions presented that you find in SCOTUS briefs, which are generally elegant, persuasive, and focused. SCOTUS Rule 14(1)(A) requires petitioners to identify questions presented for review, and assures them that “any question presented is deemed to comprise every subsidiary question fairly included therein.”

A similar assurance in the Rules of the Supreme Court of Virginia could assuage a lot of concerns.

And before you @me with Findlay v. Commonwealth, 287 Va. 111 (2014), we’ll use the next post to discuss why that case is not as instructive as people think.


* The other seven offenders are Louisiana, Nebraska, Ohio, Oklahoma, Oregon, Washington, and West Virginia.

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Letters from Camp

So we decided to send Jack to sleepover camp this year. You remember Jack, right?

Westlake Legal Group 151024_1703883446243_1512692593_1719447_1524736_n Letters from Camp Writing Uncategorized Briefs

Well, he’ a little older now. This is the first year that he’s eligible for camp, and he’s really been looking forward to it. We’ve been sending him letters every day, and we include the sports section from the local paper so he can keep up with the World Cup.

On Friday, about a week after dropping him off, we received his first letter:

Westlake Legal Group jack_letter-e1529716599849 Letters from Camp Writing Uncategorized Briefs

Now, that letter might strike you as a little whiney (with a slight undercurrent of seething rage). Maybe you’re annoyed that I even made you read it in the first place. But you know what? It didn’t bother me when I read it for three reasons.

First, I know Jack pretty well, so I was prepared for something like this. He is, shall we say, an enthusiastic rule follower. When we watch soccer games, Jack doesn’t cheer for a team. He cheers for the referee.

Second, I love Jack unconditionally. So there’s that.

Third, I read and write legal briefs for a living. I’m used to bellyaching. Jack’s letter is maybe the third bitchiest thing I’ve read this week. Maybe.

Which raises the question: Is complaining effective advocacy? Probably not; your judges certainly don’t think of you like I think of Jack, and even he’s not making many friends in this post. (Which is more than a little unfair to him. Jack is a cool little guy.)

I’m not alone in this opinion. Ross Guberman surveyed a bunch of judges, and they gave him a list of terms that annoyed them:

  1. disingenuous
  2. clearly wrong
  3. baseless
  4. specious
  5. without merit
  6. frivolous
  7. unfortunately for [the other side]
  8. sanctionable

Get the little man a thesaurus, and some of these show up in Jack’s letter.

Although I will admit I was surprised to see “without merit” on the list–it strikes me as pretty anodyne. A quick Lexis search said that the (very civil) Supreme Court of Virginia has used the phrase “without merit” in 1,465 opinions, and “disingenuous” in 19. When I asked Ross about this, he suggested that the objection has less to do with tone, and more to do with tedium.

That’s fair. The phrase can get old. Imagine if your life was spent reading that things lack merit 20 times a day.

As a service to the judiciary, then, here are some other ways to say “without merit;”

  • wrong
  • mistaken
  • incorrect
  • inaccurate
  • not so
  • nope
  • unlikely
  • implausible
  • off-target
  • off-base
  • faulty
  • flawed
  • illogical
  • non sequitur
  • imprecise
  • fallacious
  • argle-bargle
  • balderdash
  • horsefeathers
  • a bit of a stretch
  • wide of the mark

And, of course, the classic:



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How to Find a Good Doctor (in Virginia)

I am sometimes amazed how people find and choose their doctors.  You do want a good and competent doctor don’t you?  Sometimes you have no options…you are admitted to the hospital with stomach pain, diagnosed with appendicitis and need emergency surgery.  In those cases you agree to take whichever general surgeon is offered by the…[Read More]

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Legal Technology Update from VTLA Annual Convention

I was lucky enough to spend the weekend in lovely Williamsburg, Virginia, home to this year’s VTLA annual convention. The highlights of the convention included (1) Justice Mims’s interview of Anne Marie Slaughter, (2) Anne Marie Slaughter’s brother‘s interview of Chief Justice Lemons, and (3) Kenneth Polite‘s talk on the power of the legal profession. All were full of moments poignant and profound.

Are we going to share any of them?

You know that we are not.

Let’s consider instead an anecdote that the Chief Justice shared. In the course of explaining that the Court used videoconferencing to connect justices who are dispersed across the state, he noted that he once had to deal with a justice who refused to use email. The Chief reported that he won that battle. Being a gracious sort, when he received the other justice’s first email, he called to congratulate him.

The justice was taken aback: “Oh my God–it got there that fast?”

Indeed it did, the Chief assured him.

“You must have one of these things on your end?”


“Does yours have a cupholder?”

This one threw the Chief Justice.

The other justice continued: “It’s just like my Lexus. You push a button and it slides out. I had to use the big coffee cup, though, because the small one doesn’t fit.”

And then it dawned on the Chief. “XXXXXX, please tell me that you’re not using the DVD drive as a cupholder.”

“Oh, is that what that’s for?”

We are in good hands.

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I Wrote a Thing

Westlake Legal Group bigstock-Lawyer-Working-With-Agreement-176816431 I Wrote a Thing Uncategorized

Always keep your Law Hammer handy when writing words.

Hard as it may be to believe, I was actually writing stuff during the downtime between posts. People who ought to know better were kind enough to publish two of my articles:

You can read them if you’re bored.

Westlake Legal Group K4VbqQGjASk I Wrote a Thing Uncategorized   Real Estate, and Personal Injury Lawyers. Contact us at: https://westlakelegal.com