The Fifth circuit issued an interesting opinion on jury instructions. I’ll discuss later. For now, see Judge Higginson’s concurrence. Sadly, many informal jury charge conferences are off the record.
It’s very common, especially in Texas, to have a very long informal jury charge conference and then a more cursory formal one where the specific objections are made without all the discussion that went into the informal.
Judge Higginson is pointing out that it would be nice to have that too, but often district judges don’t have the reporter sit in there. They want to hash it out and encourage candor, perhaps.
In federal court, what I will often do is reprise what we argued about in the informal conference in the formal. "Your honor, as you know, we discussed X and Y during the informal charge conference. Your honor did this and that in response. We still object. Let me explain..."

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More from @RMFifthCircuit

2 Sep
I wanted to note something about Texas SB8 that's been my hobbyhorse since this law was proposed, and should give pause *even* to people who want abortion banned. Look at the text of the bill. 1/ Image
So it creates this cause of action for doing the abortion and aiding and abetting the abortion. Already a huge problem *even if you want abortion banned*. As @jadler1969 has said, imagine this same structure applied to gun rights or the first amendment or whatever else. /2
OK, but look at the part I've drawn a square around. You can be sued if you *intend to* (but have not) aided or abetted the abortion. That's *bananas* when applied to constitutional rights.

Let's say someone passes a version of this that bans supporting Trump online. /3 Image
Read 7 tweets
2 Sep
This is just a dumb situation we are in.
A bunch of dummies dumbed around and here we are, everything is dumb again.
The notion that getting people vaccinated so they don’t die and we can stand up the country again and run businesses and make money is *left wing* is also one of the dumbest things that anyone has ever dumbed.
Read 4 tweets
2 Sep
Ok. Let’s focus on where this litigation goes now, since I add no value on the Scotus analysis at this point. As y’all know, this case is currently pending in a Texas district court and CA5, which is sitting on a motion that would let the district judge proceed. 1/
Assuming the Fifth Circuit remands the case to the district court (not a done deal) can that judge issue a injunction against the law? Maybe. But this sentence in the Court’s opinion, such as it is, is difficult. Is that also a finding that the burden can’t be met below? /2
I don’t really know the answer to that question. But at least it would worry me if I were a district judge inclined to grant an injunction. And SCOTUS goes on to say that it envisions challenges in state court. Which again makes me think the majority is waiting for /3
Read 8 tweets
1 Sep
On a call with a person seeking advice on becoming an appellate lawyer, the person mentioned that the path to appeals is a bit of a black box.

That's very true. There are people trying to open up that box systemically (@AppellateProj), but that's one reason I am on here too.
I feel like I'd have skipped a lot of pointless messing around if someone could have explained the career path to me. So anyway, let's crack open the box a little.

It's still going to have a lot of hurdles and checkpoints and luck and whatnot. But maybe fewer.
I will say, pre-social-media, there was almost no way to figure anything out. I happened on a blog post 12 years ago(?), which is how I found out the profession even existed.
Read 5 tweets
1 Sep
There's a thread I'm in where a junior lawyer who was in the ER last night is asking whether they should tell their boss and take the day off.

Listen. The answer is "yes." I have seen too many medical emergencies at the office where people did not tell anyone they are sick.
Unless you are working for barbarians, they will immediately try to figure out how to make a day off or a few days off happen. If you are working for barbarians, well, now you know.
If you are working for barbarians, you need to figure out how to stop doing that relatively soon.

But bottom line: responsible mid-level and senior lawyers WANT TO KNOW if you are sick.
Read 10 tweets
30 Aug
About hurricanes: we occasionally got tropical storms up in NoVa where I grew up, but I did not understand a *hurricane* until I moved down to Houston. They are unequivocally, 100%, Not Funny. Just pure power and destruction. All thoughts for Louisiana. I hope they're ok.
Yes, hurricanes come every year, but each one is, somehow, a twirling once in your life catastrophe. It's hard to appreciate until you've seen the danged thing just pour water from the sky and the rivers and heavens knows where else on you.
A big hurricane is almost indescribable. I mean you can try, but, words fail. Anyway. Just some thoughts.
Read 4 tweets

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