We will continue to go to big firms for the lawyers they have who are experts in subject matter, world-class thought leaders and the best litigators and regulatory lawyers around the world — and we will pay a lot of money for those lawyers.

Read the article here.You might also like:

• How Many Lawyers Would You Like on that Brief?
• Technology Killed the Legal Secretary
• A New Salary Paradigm for Lawyers?
• An In-House and Outside Counsel Survey
• Lawyering: A Terrible Waste of Mind?

Wall Street Journal. The Journal is reporting on insurers’ death-benefit practices. The carriers usually put policy proceeds in money-market-like accounts and then send beneficiaries checkbooks that they can use to withdraw the funds. This allows the carriers to earn interest or investment gains on the money before the beneficiaries draw it out. (paid subscription required)

WSJ Law Blog. With Elena Kagan’s recent confirmation to the Supreme Court, pundits are asking whether the court will become the Kagan/Roberts show. Jess Bravin writes that, given the career trajectories of them both, the two “could wrestle over competing visions of American law for decades to come. Here’s a video by David Lightman assessing Kagan’s confirmation.

Law.com. United States District Judge Mary McLaughlin recently ruled that the discovery rule doesn’t apply to blogs. She found that blogs, by virtue of publishing on the internet, qualify as mass media so a plaintiff must file an action within the limitations period starting from the date of publication.

Lawsites. Looking for a lawyer in Latvia (or an appellate lawyer in Dallas)? There’s an app for that.You might also like:

• Nelson: True® Discretion and Sentencing Advocacy
• 5th Circuit Upholds 25-Year Sentence for ex-CFO
• Watkins: Changing the Mandamus Game of Texas Med Mal
• Lynn Stewart’s Conviction Upheld
• Texas Supreme Court’s E-filing Requirements

++In late 2004, he suffered a fall that caused a slight cervical fracture. Again he was admitted to Covenant, but Covenant decided to transfer him to Southwest Hospital. Evidence at trial showed that Covenant documented Perea’s allergy to Ativan and that the medical personnel at Southwest were well aware of it. Despite the documentation, two nurses administered Ativan to Perea. He lapsed into a ventilator-assisted coma and Southwest transferred him back to Covenant. Seeing no changes in his condition after a week, his family asked that he be removed from the ventilator and he expired.

++The family sued Southwest (THI of Texas at Lubbock) and its pharmacy for wrongful death and survival damages. A jury found the defendants negligent and awarded a total of $1,696,595.50 against THI. It appealed.

++In its appeal, THI asserted:

• The trial court abused its discretion by using a broad-form jury instruction on negligence and proximate cause cause when the family had sought survival and wrongful death damages.
• The trial court abused its discretion by granting the family a trial amendment for negligent credentialing because it was prejudicial to THI’s defense.
• The family’s evidence was legally and factually insufficient to support negligent credentialing and factually insufficient to support a negligence claim.
• The family’s evidence was legally and factually insufficient to support a gross negligent claim.
• The trial court abused its discretion by excluding evidence that THI had conducted an investigation of Jacob’s death.
• The trial court abused its discretion as a matter of law by failing to apply statutory damage caps in sections 41.008(b) and 74.301(b) of the Texas Civil Practice and Remedies Code.

Jury Instructions

THI had objected to the Texas Pattern Jury instruction that asked about it proximately causing the injury in question. THI wanted the instruction to read: proximately causing the death in question. It argued that death should have been substituted for injury because the “only evidence of injury is death.”

++The court held that the trial court didn’t abuse its discretion by leaving injury in the charge. It explained that the family had also brought a survival action where injury is the proper term and an added instruction might have confused the jury. It also said that THI had failed to offer any evidence that the use of injury over death caused the rendition of an improper judgment.

Trial Amendment

During their case-in-chief, the family confronted a nurse supervisor with a past employment credentialing issue without any objection from THI or a request for continuance of the trial. In overruling THI’s issue, the court held that it waived any error because it didn’t object at trial or ask for a continuance of the proceedings.

Legal Sufficiency Challenge – Negligent Credentialing

Leonard Espinoza was the nurse supervisor who gave the order to his supervisee to administer Ativan to Jacob. He had done that before. Earlier in his career, he administered Ativan to a patient without authorization and he was suspended for it.

++The court held, given this evidence, there was more than a scintilla of evidence (proper standard of review) supporting the family’s negligent credentialing cause of action. The court said that the jury could have reasonably inferred that THI hired Espinoza knowing he was on probation due to disciplinary proceedings in another state, for conduct that reasonably endangered the health and safety of patients entrusted to his care. The court also held that, since Espinoza’s conduct in the case was identical to his previous wrongful conduct, THI’s issue was easily overruled.

Legal and Factual Sufficiency Challenges

THI asserted that the evidence was factually insufficient to support a finding of negligence because the credentials of its expert were superior to the family’s expert’s and so its experts’ opinions were entitled to more weight. The court observed that THI hadn’t objected to the family’s expert testimony at trial, and his opinion fell within the province of the jury. Significantly (at least for Texas plaintiffs’ lawyers), his testimony provided a traceable chain of causation from Jacob’s condition to the event.

++The court also found the family’s gross negligence claims legally sufficient. The court said that virtually all of the testifying health professionals agreed that giving a patient Ativan without a doctor’s permission was extremely reckless and could cause severe injury. Given that Espinoza testified to the same thing, and had given Ativan to a previous patient without authorization, the court didn’t have any problem finding that he was actually aware of the extreme risk that he was taking in instructing his supervisee to give Jacob the drug. The court also found corporate liability for gross negligence, finding that Southwest had consciously disregarded the danger Espinoza exposed to patients by allowing him to administer medications.

Damages

Finally, THI argued that the family’s damages should be modified to reflect the statutory caps. Specifically, it said:

• Section 41.008(b) should be applied to limit  exemplary damages.
• Section 74.301(b) should be applied to limit non-economic damages (capped at $250,000 for each claimant).
• Section 74.303 should be applied to limit the family’s overall recovery on a health care liability claim.

++Regarding section 74.303, the court found that the family should be considered a single claimant. Consequently, Jacob’s estate and his four sons were entitled to recover no more than $1,737,272.00 (based on CPI), excluding necessary medical, hospital, and custodial care. Since the overall award didn’t exceed the cap, the trial court didn’t abuse its discretion.

++As for § 74.301(b), the family argued that it shouldn’t apply if § 74.303 applied (two caps shouldn’t apply to one cause of action). The court disagreed and held that the Legislature intended that both caps apply. Applying the section, the court held that THI’s civil liability was limited to just $250,000 because the family comprised a single claimant.

++And as for limitations for exemplary damages, the court overruled the family’s waiver argument. It held that the exemplary cap applied as a matter of law and that the trial court erred by not applying it. In applying § 41.008(b), the court said that the trial court should first apply the non-economic damages cap and then § 41.008(b).

Correction of Judgment

The jury had awarded the estate economic damages of $17,526.27 and non-economic damages of $40,000. It also awarded Jacob’s sons $100,000 apiece and exemplary damages of $1,250,000. The court couldn’t calculate the exact amount of the corrected judgment because a settling defendant’s payment (the pharmacy) had to be figured in. But a ballpark figure would bring the family’s $1.7 million verdict down to just over $700,000 (assuming section 41.008(b) is given its plain meaning).

++And that’s what’s called Texas justice nowadays.

++Read the case here: THI of Texas v. Perea.You might also like:

• Labatt Food Service: Wrongful Death Beneficiaries Must Arbitrate
• Tam Trust: Unreasonably Reasonable Attorneys’ Fees
• Texas: Initial Medical Bills Are Not Evidence of Damages
• An Appellate Rewrite — Summary of Argument
• Texas: Non-Compete Can Hang on Implied Promise

Set in Style has a new post out that list some of the very same things that I’m putting in my article. Though I differ on Thorne’s ideas about non-serif fonts for headings (I’m not sure just how much I want my briefs to look like GQ), most of his ideas are good ones.

Check it out here.

If you’re really interested in bringing your legal documents out of the dark ages of typewriter underlining and monospaced type, I suggest that you check out My Mac is Not a Typewriter (I believe that there’s a Windows title too). Robin Williams does a slick job of freshening up legal documents for the 21st century.You might also like:

• Being a Virtual Lawyer is a Mindset
• Good Writing: It Takes Time
• Persuasion is the Lawyer’s Money Game
• Helping the Legal Writer: Twain as Critic
• Lawyers, Cases, and the Internet

++Dick DeGuerin, Kent’s lawyer, filed the section 2255 motion on the basis of the Bureau of Prison’s treatment of Kent. According to DeGuerin, the BOP hasn’t allowed Kent to enroll in the drug treatment program and has kept him in solitary confinement on more than one occasion.

++A copy of Kent’s motion may be had here: Kent Motion.You might also like:

• Rendition: Obama Holds the Bush Line
• Texas: Initial Medical Bills Are Not Evidence of Damages
• Kay: Collection Lawyers Beware
• Legal Writing and Credibility
• Sundance Resources: The Importance of Preserving Error in Summary Judgment

Only in recent years have I come to understand the full importance of brevity and simplicity in legal writing. My wife worked as an appellate research attorney for years, and she has explained to me how in close cases, the simple, focused brief has a big advantage over the meandering, convoluted one. That might seem obvious, but it’s easy to lose sight of how, once you know your case thoroughly, you can subconsciously assume that the reader is right there with you as you move from one nuance to another. Quite often, you have lost the reader, and he/she is going to turn to your opponent for clarity.

Simplifying an appellate brief while maintaining its full persuasive force is very challenging, but doing it well is what separates the best appellate advocates from the rest of the pack. I don’t claim to have perfected this trick, but effective simplification is my goal.

Question is: How do you get this over to your next potential client?You might also like:

• Appellate Briefs: Vary the Pace
• Clarity of Mind — Clarity of Argument
• Trial Lawyers and Appellate Writing
• Why All the Legalese?
• Issue-Framing: The Upshot of the Appeal

++I’ve taken his lead with my own practice (it’s almost a no-brainer for an appellate practice). While I have an official office address, I do most of my work at home or somewhere else (Panera Bread makes it easy to work while sipping espresso). Unlike Jay, I don’t use DropBox (might some time in the future), but Apple’s iDisk makes it easy to work on briefs and documents virtually anywhere in the world.

++If you’re a solo and haven’t yet taken the plunge of going virtual, I encourage you to check out Jay’s article. You’ll be glad you did.You might also like:

• First Appearances in Legal Documents
• Persuasive Practice Types
• Oral Argument: The Paradox of Simplicity
• Corporette — It’s Stillettos On, Baby
• Solo Practice and Snoopy Snow Cones

Good Writing Takes Time. I have never spent less than thirty hours writing a brief. I may have been trial counsel. There may be only one issue. The transcript may be under 100 pages. The law may be clear. It takes me around thirty hours, including formatting and creation of the table of authorities and table of contents. It takes a lot longer when I’m new to the case, when the transcript is voluminous, when exhibits are dense, when the issues are many, and when the law is unclear.

Good writing takes time. Presumably it takes time to write good novels, good screenplays, and good musical compositions. Why should it take any less time to write good briefs? Briefs may be written in prose, but prose has its own rhythm and its own symmetry. Every fact should be perfectly supported by a citation to a specific page in the record, and it takes time to ensure perfect factual citation. Every legal principle should be supported by the best possible citations, and it takes me a lot of time to get this right.

If you scrimp on hours then your brief might get your point across, but it won’t sing. It will be read and understood, but it won’t read effortlessly. Your account of the facts and your explanation of the law will be noted, but perhaps more skeptically than necessary. —Andrew Schulman, Ten Tips for Writing a Great Appellate Brief

If you’d like read the rest of Schulman’s tips, click here to go to his site.You might also like:

• Legal Writing and Revision
• First Appearances in Legal Documents
• An Appellate Rewrite
• The Real Costs of an Appeal: Preparation
• Brief Writing Isn’t Easy

++If you’re thinking of rethinking your law office environment, I encourage you to read David’s article. It’s a good read.You might also like:

• Being a Virtual Lawyer is a Mindset
• Solo Practice and Snoopy Snow Cones
• Law Practice and the Home Office
• The Good Enough Revolution and Lawyering
• Liebel’s Great Post on the Disappearing Consult

Check out the article here.You might also like:

• First Appearances in Legal Documents
• An Internet Marketing Case Study for PI Firm
• Persuasive Practice Types
• Larry Bodine and Law Firm Marketing
• Helping the Legal Writer: Twain as Critic

I asked him about the yings and the yangs of both and he said that he wished that he had made the move to the house sooner. He had a good group of clients (one pretty large bank) and he found out that after the first consultation, his clients didn’t need (or want) any more face-to-face meetings. In fact, they liked the fact that virtually all his conferences were done via email or conference call because that’s the way they all do business.

For the last several months, I’ve been investigating the pros and cons of moving my appellate practice to a home office. This lawyer showed me that it’s not only doable, but probably preferable. His overhead is considerably less than mine and he hasn’t had to dumb his practice down because he doesn’t write a rent check for an expensive office suite every month. In fact, it’s helped him to win more business: one of his clients opted to retain him for a litigation matter after comparing his hourly rate of $300 to the $900 per hour rate quoted by a downtown firm.

Note to self: begin investigation of home office in earnest.You might also like:

• Reinventing the Legal Practice
• An In-House and Outside Counsel Survey
• Larry Bodine and Law Firm Marketing
• Being a Virtual Lawyer is a Mindset
• Solo Practice and Snoopy Snow Cones

He lifted up the rod and smote the waters of the river … and all the waters that were in the river were turned to blood. And the fish that were in the river died; and the river stank, and the Egyptians could not drink the water of the river; and there was blood throughout all the land of Egypt.

His lawyerized version:

The water was impacted by his rod, whereupon a polluting effect was achieved. The consequent toxification reduced the conditions necessary for the sustenance of the indigenous population of aquatic vertebrates below the level of viability. Olfactory discomfort standards were substantially exceeded, and potability declined. Social, economic, and political disorientation were experienced to an unprecedented degree.

Good thing that Moses wasn’t a lawyer; the Israelites would never have made it out of Egypt.You might also like:

• Clarity of Mind — Clarity of Argument
• Puckett: Plain Error May Apply to Government Breaches
• Federal Sentencing Guideline Increases
• Document Aesthetics
• Larry Bodine and Law Firm Marketing

• Faulty capitalization of Order and Motion. The rule is to use lowercase when these words are used generically, and only capitalize them when they refer to a specific document.
• Faulty capitalization of Plaintiff, Defendant, and Court. The rule is to capitalize plaintiff and defendant when they are used as the names of the parties. And capitalize court when referring to the court in which the case is pending or the Supreme Court.
• Faulty punctuation of quoted material. Motions and briefs filed in American courts should follow the American rule: punctuation goes inside the quotes unless it is a question mark or exclamation point that is not part of the quote.
• Faulty use of ordinals. Spell out the ordinals of the courts, i.e., Fifth Court of Appeals. 5th belongs just in the case cites.

The judge’s work provides excellent insight as to what kind of impressions ordinary motions make on the ones deciding your client’s case.

Judge’s Marked-Up Motion

Hat tip to Ross Guberman of Legal Writing Pro.You might also like:

• Judge Orders Lawyers to Write Well
• The Supremacy of Facts in Appeals
• Texas Law Limiting Personal Injury Contact Overturned
• Ripped from the Headlines: A Jurisdictional Rewrite
• Judge Kent Asks that His Sentence Be Vacated and Corrected

• Counsel making a filing must provide an email address at which they are willing to receive notices from the Court.
• Lead counsel are also now required to register for notifications with the Casemail system operated by the Office of Court Administration.

Lawyers are also required to email their briefs to opposing counsel when they’re filed.

For more info, go to Don’s blog here.You might also like:

• Supremes: Skepticism for Superior Performance Fees
• Rendition: Obama Holds the Bush Line
• Whaley: SORNA is Constitutional
• An In-House and Outside Counsel Survey
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As part of my deliberate practice for writing, I download the briefs of some of the best appellate lawyers in the state and try to improve on their work. Below is a response to a jurisdictional statement in a petition for review that was written by one of the best.

Widget’s petition advances no argument worthy of this Court’s time or attention. The court of appeals’ waiver holding is neither unprecedented nor unjustified. It is Widget who reaches for an inequitable result contrary to this Court’s long-standing principle that “a litigant cannot ask something of a court and then complain that the court committed error in giving it to him. The rule, ground in even justice and dictated by common sense, is that he is estopped. [citation omitted].

Widget asks this Court to ignore this long-standing principle and adopt a rule of rewarding gamesmanship. According to Widget, a plaintiff should be able to: encourage a trial court to render judgment for $60-plus million, argue against the defendants’ motions for a new trial, force the defendants to post large supersedeas bonds and incur the expense of an appeal—argue for a new trial. And because, according to Widget, a new trial is always lesser-included relief to an affirmance, the plaintiff does not even have to have mentioned its request for a new trial in the trial court in order to argue for a new trial when it loses on appeal.

The court of appeals’ waiver holding does not conflict with any of this Court’s opinions—including [citation omitted]. The court of appeals correctly applied the well-settled rule that a party who requests entry of a judgment cannot on appeal take a position inconsistent with its requested judgment.

Working only from the jurisdictional statement (I didn’t look at any other parts of the brief), here’s a rewrite:

The court of appeals rightly applied the well-settled rule that a party who requests the entry of a judgment can’t complain of the judgment on appeal. In its petition for review, Widget asks this Court to supplant the rule with one that would render its motion for  judgment meaningless. It argues that a plaintiff should be allowed to fight for the entry of a judgment over a motion for new trial and then, if he later loses on appeal, he should get a new trial—the very relief that he had originally resisted. A litigant can’t ask something of a court and then complain that the court committed an error in giving it to him has been the law of the state for well over fifty years. Because Widget hasn’t advanced a novel reason as to why this long-standing rule shouldn’t remain the law, its petition should be denied.

A few remarks about my edits:

• The first quotation is a little long in the tooth. I’ve shortened it a bit, but preserved the point.
• I didn’t care for the reference to “gamesmanship.” In my experience, a lawyer who speaks of gamesmanship is usually thought to be doing his own.
• I excised the references to the supersedeas bond and costs of appeal because I didn’t believe they supported the argument (costs are costs).
• I recast the sentences in plain English and used contractions for readability .

Maybe not perfect, but I think it’s an improvement.You might also like:

• Sundance Resources: The Importance of Preserving Error in Summary Judgment
• Greenlaw: No Increase in Sentencing for Appealing
• Trial Lawyers’ Top Ten Appellate Mistakes: Ignoring Record Preservation at the Motion Stage
• Rodriguez: Fair Warning to Plaintiffs’ Lawyers
• An Appellate Rewrite — Summary of Argument

The article comes with interactive media that shows photographs of the books and Twain’s own notes. Quite a treat for the brief writer looking to improve his writing style. Check it out here.You might also like:

• First Appearances in Legal Documents
• The Lawyer as Children’s Writer
• Chief Justice Roberts’s Judicial Writing
• Sotomayor: Not the Write Stuff?
• Persuasive Practice Types

Through what appears to be a series of procedural miscues, the trial court entered an order that appointed an outside lawyer as a special master “to conduct an independent forensic examination of the relevant computer hard drives, external hard drives, jump drives, and other such repositories of electronic communications” of the defendants. The court gave him discretion to employ or modify search terms to find documents responsive to the plaintiff’s request for production.

After some more procedural miscues, Harris balked at the appointment, arguing that the trial court erred in appointing a master and that the outside lawyer had acted outside the scope of his authority by making “sarcastic, editorial, and prejudicial comments about [Harris] regarding his date and his style of writing, as well as disclosing information gleaned from emails,” some of which were protected by privilege. Harris, a journalist, file the writ when the trial court denied his motion to reconsider the appointment.

The court of appeals held that the trial court abused its discretion by appointing a master to conduct a forensic computer examination. The appellate court ruled that the judge had improperly conflated the roles of a special master and forensic computer examiner. The court explained that a special master has the power to regulate all the proceedings in every hearing before him, while the forensic examiner’s role is just to create forensic images of storage devices and then to search them for specified documents using a predesignated list of search terms. The court pointed out that Weekley Homes didn’t give the examiner any master-like authority to conduct hearings, to make recommendations regarding what evidence should be produced, or to require the production of particular storage devices. And, in contrast to the rules governing special masters where his costs could be taxed, the requesting party has to pay for the examiner on his own dime.

Get a copy of the case here: In re Art Harris.You might also like:

• In re Weekley Homes: Proper Procedures for Electronic Discovery
• Comprehensive Drug Testing (CDT): Kozinski’s Electronic Record Zinger
• Sundance Resources: The Importance of Preserving Error in Summary Judgment
• Appellate Advocacy: You Must Master the Record
• Another Appellate Rewrite – Summary of the Argument

Regrettably, this attention to detail, presentation, and appearances usually doesn’t work its way down to the papers. While they go to great length to doll themselves and their witnesses up to impress juries, trial lawyers risk throwing that all away by filing some of the ugliest documents on the planet. What judge or jury member is going to be impressed with a lawyer whose documents look like they were cut-and-pasted together by a fifth grader?

To demonstrate what I mean, i took a stroll on PACER and pulled a motion from a case pending in the Northern District of Texas, our home federal district. The first photo is the first page of that motion (the second motion I clicked on at random). For your viewing pleasure, I’ve included first two pages of one of our firm’s own motions, filed in the same district, for comparison.

Click on the photo to enlarge.

What’s wrong with motion number one? Let me tell you:

• Title. Where besides a lawyer’s motion and some used car ads do you see anything in all caps? I don’t know what famous Charles Darrow started the practice, but it’s a bad one. Words in all caps are hard to read and, besides that, they’re screamers (ask any texting teen). The better practice is to follow the New York Times’s Manual of Style and Usage: capitalize just the principle words. You’ll come across much more level-headed and that’s a good thing. And leave the underlining at home; its a relic of the typewriter age and doesn’t belong in a modern document.
• Criminal Action. This side title demonstrates just how little care we take in drafting our documents. The case number contains a “CR” so it isn’t necessary. Think: less is more.
• Margins. While Microsoft (we use Macs) might be good at making software, it isn’t at setting margins. Here, the lawyer used the 1″ margin default. While it might get a few more words on a page, that’s not the goal; persuasion is. White space in a document is a good thing; it gives the reader room to breathe. Set your margins at 1.25″ and let the judge breathe a little about your case.
• Irregular Line Spacing. You’d think that this is out of the ordinary, but it’s not. There’s no good reason why the first paragraph of the motion should be 1.5 spaces and the rest of the motion two spaces. That kind of sloppiness speaks volumes about the lawyer and how little he cares about himself, the court, and his client.
• Right Margin Justification. Justifying the right margin makes the motion look like boilerplate. And when it looks like boilerplate, it’ll be treated like boilerplate. An unjustified margin doesn’t just look professional, it helps the reader to intuitively follow the line of your argument. The only things that should be right-margin justified are block quotes (which present another question altogether).
• Footer font. On this particular motion, the lawyer, for some odd reason, adopted a different font for his footer. Poor judgment. The only time that a motion or brief should have more than one font is when the lawyer wants to use that Old English font for his cover page (we do that all the time). Other than that, font changes should be limited to italics, bold, or some other variation of the main body font.
• Non-serif font. Egad! This is the worst mistake of all and we see it all the time. Non-serif fonts, like the Myriad Pro that we use on this site, are okay for computer screens, but they aren’t for books and papers. When was the last time that you read a book, magazine, or newspaper in Arial or Helvetica? Publishers know the value of fonts with serifs and lawyers should too.
• Content. Lots we could say, but let’s just ask you this: Imagine that you are a very busy trial judge and the first page of both of these motions hits your desk at the same time. Which one tells you what you want to know and which one wastes your time?

If you’d like to impress judges and juries with your documents as much as you do with suits and ties, pick up a copy of Bryan Garner’s The Winning Brief. It’s well worth the $75 asking price (it might be cheaper on Amazon). And then there’s also  Typography for Lawyers—not as extensive as Garner’s materials, but it should pique your interest in engendering credibility by way of document design. It’s definitely worth a click.You might also like:

• Trial Lawyers and Appellate Writing
• First Appearances in Legal Documents
• Legal Writing and Credibility
• Trial Lawyers’ Top Ten Appellate Mistakes: Ignoring Record Preservation at the Motion Stage
• Judge Orders Lawyers to Write Well

The summary of the argument is one of the most crucial parts of the appellate brief. It’s supposed to be a quick read of the relevant issues and how the trial court missed the mark (if you’re the appellant). Below is a summary of argument ripped from the brief of one of the better lawyers in town.

Summary of the Argument

The evidence seized in this case should be suppressed because law enforcement officers should have and easily could have obtained a search warrant. The rationale for this conclusion follows.

In reviewing a district court’s ruling on a motion to suppress, the Court of Appeals accepts the trial court’s factual findings unless they are clearly erroneous. Officers testified that Garcia was pulled over and stopped because he had committed three traffic violations, namely 1) failure to signal a lane change; 2) failure to signal a right hand turn; and 3) being in possession of a vehicle with illegally tinted windows. Officers also testified that Garcia failed to provide proof of insurance, another traffic violation. Finally, the officers testified that they placed Garcia under arrest because of internal Dallas Police policy permitting arrest of persons who have committed three or more traffic violations. Given the district court’s ultimate decision to deny the motion to suppress, the court must have believed this testimony. Under a clearly erroneous standard of review, it follows that Garcia’s arrest was legal. This is so even given that the arrest was an obvious pretext to search for narcotics, because a police officer’s subjective motivation is irrelevant as long as the officer’s conduct does not exceed what he is objectively authorized to do.

Once Garcia was placed under arrest, they were legally permitted to inventory his car. The law permits a warrantless inventory search of a vehicle to protect the owner’s property while it is in police custody, to protect the police against claims of lost or stolen property and to protect the police from potential danger. However, the inventory search must serve one of the purposes outlined above. This search exceeded the scope of a valid inventory search and was thus constitutionally impermissible. Although the combination of information from the informant, the corroboration from law enforcement officers and the subsequent dog alert might well have been sufficient to justify the issuance of a search warrant, no warrant was obtained or even applied for. Where the circumstances suggest that obtaining a warrant is not impractical, as here, one must be applied for. It follows that the warrantless search of Garcia’s vehicle violated the Fourth Amendment. The evidence seized in this case must be suppressed.

His summary is weighed down with irrelevant facts, doesn’t identify the specific evidence that should have been suppressed, and it lacks the punch needed to compel the court to act. Here’s a quick rewrite:

Summary of the Argument

The district court erred by not suppressing the evidence that officers seized from the air bag compartment of Garcia’s car. Officers testified that Garcia had committed three separate traffic infractions which gave them the authority to arrest him. Once they arrested him, they could perform an inventory search of his car, but only to protect themselves from danger or to protect their department from claims of lost or stolen property. While Garcia sat handcuffed in the backseat of their squad car, the officers did an inventory search, ripping his car’s air bag compartment while they were at it. In it they found a baggie of cocaine and a gun. Their inventory search exceeded the permissible scope of the Fourth Amendment; they should have gotten a search warrant to tear into the car. Since they didn’t get a warrant to do that, the trial court should have suppressed the drugs and the gun.

While not perfect (I did it in less than 10 minutes), it does get to the point. And that’s what makes appellate judges happy.You might also like:

• Gant: The Supreme Court Reaffirms the Fourth Amendment’s Basic Rule
• Heightened Standards for Civil Forfeiture
• Corley: Voluntary Statements Can Be Suppressed
• Giles: The Supreme Court Reaffirms the Confrontation Clause
• An Appellate Rewrite — Summary of Argument

• Reinventing the Legal Practice
• Larry Bodine and Law Firm Marketing
• Brief Writing Isn’t Easy
• Being a Virtual Lawyer is a Mindset
• Trial Lawyers and Appellate Writing