Thursday, September 06, 2007

Great gouge

Today CAAF Clerk of Court Bill DeCicco and several CAAF staff members presented an extremely helpful orientation session for counsel. While it was billed as primarly for new counsel, I don't think any of the experienced counsel who attended were disappointed that they did.

Firs the headline news -- the highly regarded LeEllen Coacher of Judge Stucky's chambers reported that Judge Stucky and every lawyer in his chambers HATES the Garnerian style of putting citations of authority in footnotes rather than in the main text. Allow me to quote her directly: "We hate them with a passion."

Okay, onto the other news.

Mr. DeCicco indicated that the trend of the future is 15-minute arguments. He said the judges like the 15-minute time limit and when the next batch of arguments is announced, the majority will be 15-minute arguments.

Deputy Chief Clerk Dave Anderson emphasized the importance of applying the Rule 21(b)(5) factors to show good cause in supplements to petitions.

More than one presenter emphasized Rule 37(c)(4)'s prohibition against incorporation by reference.

More than one presenter warned against overly argumentative issue statements.

Mr. DeCicco emphasized that many court filings are sloppy -- with incorrect gender pronouns, cites to the wrong UCMJ article and, in some Navy-Marine Corps cases, the wrong armed force in the caption.

Mr. DeCicco emphasized the importance in motion practice of explaining why the requested relief is appropriate.

He also noted that a number of filings have been received out of time lately. He indicated that the court is growing frustrated with this trend. While he didn't expressly say this, he hinted that the historic paternalistic practice of not visiting the attorney's sins on the clients may be in danger.

More than one presenter warned against ad hominem attacks in briefs or dismissive adjectives, such as referring to the opponent's "foolish" argument.

The session highlighted the following common errors:

(1) using proportional type (such as Times New Roman) instead of courier or courier new;

(2) failing to put counsel's bar number on the filing;

(3) not attaching the CCA's opinion to the supplement;

(4) not observing the page/word count limits;

(5) simply attaching an affidavit to a filing (the so-called "staple rule") instead of filing a motion to attach;

(6) including a motion within a brief rather than filing it as a separate document;

(7) putting the appellant's SSN on the supplement -- because supps and briefs are given to LEXIS and WESTLAW and enter the public domain, the appellant's SSN should not appear on anything but the initial petition;

(8) putting the wrong docket number on a filing;

(9) filing past the deadline;

(9) drafting overly long, overly argumentative, overly repetitive, and unprofessional issue statements.

Mr. DeCicco also explained that grants of review often come in bunches because in some instances the judges decide whether to grant or deny in conference. For example, he indicated that yesterday there was a judges' conference, and today there were three orders granting review. So look for those in tomorrow's update to the daily journal.


Anonymous said...

In regard to "common error" number 7:

Nowhere in CAAF's rules does the phrase "social security number" or "SSN" appear. My takeaway was that no SSN should ever appear anywhere on any pleading, motion, or petition filed with the Court.

By the way, this is also the trend at NMCCA (can't speak for the other services). SSN's are rapidly disappearing from pleadings, motions, and orders, and never appear on opinions. Rumor has it NMCCA is considering a change to the rules to get rid of SSNs on pleadings for good.

Older volumes of the Military Justice reporter, however, remain fertile ground for identity thieves. One wonder if anyone has ever sued for statutory damages for these repeated violations of the Privacy Act.

Carrolton said...

All of this information is very interesting and useful. But could the people in Judge Stucky's chambers, especially Ms. Coacher, avoid making statements like "We hate them (citations of authority in footnotes) with a passion"?

The point is well-taken, but the way it reads on this blog makes it sound as if the people in those chambers were possessed with a sense of entitlement.

CAAFlog said...


It really wasn't said with an air of entitlement. On the contrary, she expressly acknowledged that other chambers might feel differently. And everyone in the room cracked up when she said it -- probably including her. So I assure you the sense it conveyed in person was sincere annoyance conveyed with some jocularity.

Carrolton said...


I take your point, and I understand what you are getting at. But my point is that she could have phrased herself differently, so that her tone of jocularity would read clearer to those of us who have only your blog to rely on for such information.

She could have said something less dramatic like "Please don't do it anymore. Thank you."

CAAFlog said...


I'm sure she didn't anticipate that someone in the audience would be writing down her words and distributing them on the internet. :-) I think her tone was perfectly appropriate for those who were in the room, and that's really the only audience she could or should have expected. So if there is fault in the recounting, the blame lies with me rather than her.

Carrolton said...


No need for you to take the blame on this. We all know you're a decent guy just reporting the facts.

Anyway, I made my point and I'm done discussing this one. :-)

Gene Fidell said...

I was present for the briefing and agree with CAAFlog's account. That said, I frankly don't know what members of the bar are supposed to do with the information that one chambers in a five-member court strongly disfavors footnotes. Certainly footnotes that are merely citations can readily be turned into interlinear cites, and doing so should not break up the flow of the writer's deathless prose. However, many footnotes are discursive in developing subtleties or points that are important enough to mention but are not in the main flow of the argument. Those belong right where they are by overwhelming convention--at the bottom of the page. Writing this post, of course, is killing me, because I can't do footnotes.