A series of unfortunate Roman events

The topography of peoples, fluctuating battles, the famous deaths of leaders–these are what hold and refresh the minds of readers. In my case, I am presenting a series of cruel orders, endless accusations, faithless friendships, and calamities befalling innocent people, with the causes of their ruin being always the same–for I am faced with a tedious abundance of recurrent material.

–Tacitus, Annals, 4.33

Oldie but goodie: “How You Too Can Lose Your Appeal”

Woulda sworn I posted this before, but not finding it via Google … here’s Alex Kozinski’s classic article on how to get everything wrong on appeal (also published as “The Wrong Stuff”). For instance:

An alternative to stonewalling–and one of my personal favorites–is cutting off a judge in the middle of a question. Doing this gives you several important advantages. First, it’s rude, and if you’re out to lose your case, there is really no substitute for offending the guy who’s about to decide your case. Beyond that, cutting off the judge mid-question sends an important message: Look here your honor, you think you’re so clever, but I know exactly what is going on inside that pointed little head of yours. Then again, cutting the judge off gives you an opportunity to answer the wrong question. When I pointed this out to a lawyer one time, he told me, “Well, if that’s not the question you were asking, it should be.”

Really, apart from just not filing your brief, these are the best tips for losing you will ever find.

Miss. S. Ct. 5th docket setting is up

It may be perused here. Set for argument on Sept. 24 is an appeal from a judgment holding the noneconomic-damages caps unconstitutional, Interstate Realty Mgmt. v. Carter. (Apparently the plaintiff really is named Mary Carter.) Sixty minutes per side – will the MSSC finally decide this issue? Potential amici, get to work!

Don’t care about tort law? Another Willie Jerome Manning argument on Oct. 27.

Is an evidentiary hearing on punitive damages always required?

The obvious answer to the title’s question should be “of course not,” but I’m surely not the only Dark Side lawyer to have had some folks quote me the inartful language of Miss. Code Ann. § 11-1-65(1)(c): “If, but only if, an award of compensatory damages has been made against a party, the court shall promptly commence an evidentiary hearing to determine whether punitive damages may be considered by the same trier of fact.” Shall means shall, right?

Well, not always, says the COA, affirming a chancery court’s ruling not to hold a hearing:

some underlying basis, such as actual malice or fraud, must exist for an award of punitive damages before a chancellor will hold a second hearing on the issue of such damages. See Miss. Code. Ann. § 11-1-65(1) (Supp. 2013). In the present case, the chancellor found no merit to Bar-Til’s claim that Superior’s conduct justified an award of punitive damages. As reflected in his order and final judgment, the chancellor found that Bar-Til failed to provide the requisite evidentiary basis to support an award of punitive damages.

So that’s a good thing to keep in the “simple answers to crazy arguments” toolbox. The proof presented on the merits must sufficiently support the court in finding, as a matter of law, that a punitive-damages hearing is even potentially warranted.

(This rule may work well for plaintiffs, in a way, because when the defendant tries to exclude evidence as material only regarding punitive damages, the plaintiff can say, Your Honor, if we don’t get this in, then this Court may refuse to let there even be a hearing. Try it, you foxy little devils, you.)

Procreationism fares ill at the Seventh Circuit

It sounds like the enemies of gay marriage did not particularly enjoy their oral argument at the 7th Circuit today. As could be expected, when the only Republican appointee on their panel was Judge Posner:

Judge Richard Posner, who was appointed by President Ronald Reagan, was dismissive when Wisconsin Assistant Attorney General Timothy Samuelson repeatedly pointed to `tradition’ as the underlying justification for barring gay marriage.

“It was tradition to not allow blacks and whites to marry – a tradition that got swept away,” Posner said. Prohibition of same sex marriage, he said, is “a tradition of hate … and savage discrimination.”

Posner frequently cut off Indiana Solicitor General Thomas Fischer, just moments into his presentation and chided him to answer his questions.

At one point, Posner ran through a list of psychological strains of [children of] unmarried same-sex couples, including having to struggle to grasp why their schoolmates’ parents were married and theirs weren’t.

“What horrible stuff,” Posner said. What benefits to society in barring gay marriage, he asked, “outweighs that kind of damage to children?”

The answer has to do with “procreation,” Fisher answered.

“All this is a reflection of biology,” Fisher said. “Men and women make babies, same-sex couples do not… we have to have a mechanism to regulate that, and marriage is that mechanism.”

Makes no sense, but then, there aren’t any very sensible arguments. I guess we now have creationists and procreationists.

I liked how the article ends.

There was some levity during the hearing. As Samuelson struggled to offer a specific reason for how gay marriage bans benefit society, he suddenly noted a yellow courtroom light signaling his allotted time was up.

“It won’t save you,” [Judge] Williams told him, prompting laughter in court.

Samuleson smiled, and said: “it was worth a try.”

Not “saved by the light.”

… @ChrisGeidner on Twitter: “Y’all. I’ve seen 10 federal appellate arguments over marriage, and I ain’t seen nothing like today.” He writes at Buzzfeed (below the fold):

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Oh, Tacitus

Tiberius began his reign with a speech to the Senate professing his unworthiness to follow Augustus. This was met by “tearful laments and appeals” from the obsequious Senators, “whose only fear was that they might appear to understand him.” A characteristically Tacitean phrase.

… Think of every movie you’ve seen where the heroes are doing their heroic thing, and then there’s an interspersed cut to the villain, stroking his chin and reflecting how he’ll take his revenge. Tacitus may have invented that; at any rate, he plays it beautifully. Describing Germanicus’s efforts to deal with mutinous legions and raid the Germans, Tacitus wants it to reflect badly on Tiberius, so he keeps doing these asides: Tiberius did not approve, Tiberius’s vengeance would come, etc. If there’s an earlier instance in Western lit of the evil manipulative villain on the sidelines, I can’t think of it offhand.

Reading books, seeing movies

A Most Wanted Man – haven’t read the book, but the film is classic LeCarré: procedure & betrayal. Philip Seymour Hoffman is a German counterintel officer trying to parlay the easy pickings of a Muslim terror suspect into a longer game. As one would expect, PSH fits himself into the role, creating sympathy for the character without our ever being convinced by the character’s own sincerity. Another reminder of the great actor we’ve lost.

Augustus by John Williams – the National Book Award winner by the author of Stoner is an epistolary novel that takes on the famously enigmatic character of the first Roman emperor. Doesn’t succeed, because Williams’s hero-worship of Augustus keeps the book from convincing – explaining away his faults isn’t the same as explaining the man, and his historical elisions (such as reducing the two miscreant Julias to one?) smooth things over further. (To banish one Julia may be necessary; to banish two, looks like carelessness.) The book is most successful with some of its minor characters.

Byzantium – saw this recommended somewhere & took months to get around to watching the DVD. Why did I wait? Directed by Neil Jordan, this stars Gemma Arterton and Saoirse Ronan in two fine performances as 200-year-old vampires living a down-at-the-heels existence in modern England. The screenplay is excellent, making this not so much a vampire movie as a movie about two women who are vampires. The vampire legend itself is cleverly reimagined, and the plot neatly moves between the past and present to unfold its surprises. Highly recommended.

Churchill’s World Crisis as History by Robin Prior – evidently Prior’s dissertation, this hard-to-find book is the first book-length study of Churchill’s history of the Great War from a critical perspective. Without dismissing the book’s rhetorical excellence and Churchill’s sympathy for the human cost of the war, Prior finds Churchill both twisting the facts to support his self-justifying interpretations, and displaying a schoolboyish enthusiasm for battle that overlooks little things like operational plausibility and strategic wisdom. The book focuses on the early naval battles, Gallipoli (a dry run for Prior’s later book), Jutland, and the dispute over British vs. German casualties (where Prior finds Churchill more trustworthy than the historians who’ve disputed his figures). Good for those who like that kind of thing; not at all recommended for those who don’t.