You’ve Got Issues:  Making a Case for Deep-Issue StatementsWhat’s the first thing that judges and law clerks read in an appellate brief?  The certificate of interested parties, the table of contents, and the table of authorities are matters of form, and, while important, they don’t convey a message.  But a well-written issue statement can frame the narrative, preview the argument, and persuade the reader before a drop of ink is spilled on true substance.  Practitioners in state and federal courts alike would be wise to devote significant time and energy to the issue statement, beginning with choosing which form to use.  The deep-issue statement should be at the top of the list.

In 1935, the Supreme Court established a rules advisory committee, which helped draft the Federal Rules of Civil Procedure.  Since then, Advisory Committees on the Rules of Appellate, Bankruptcy, Evidence, and Civil and Criminal Procedure continually study the rules and recommend changes to ensure that the rules develop with the pace of modern practice.  Proposed amendments to the rules develop in several ways, including intensive study by committee members and public suggestions submitted for consideration.  Since January 2017, five documents have been submitted to the Advisory Committee on Appellate Rules (formerly chaired by now Justice Gorsuch), four of which concern Rule 28 (titled “Briefs”).  The parent suggestion was submitted by well-known legal writing guru Bryan A. Garner, who founded and currently operates LawProse, a notable provider of CLE training in legal writing and editing.

Garner suggested a fundamental change in the way issue statements are presented.  Traditionally, he claims, practitioners use “whether” statements to display their questions.  The conventional “whether” statement is a single sentence fragment representing the attorney’s statement of what he or she believes to be the determinative issue.  As a result, “whether” statements are grammatically incorrect, cumbersome, and difficult to comprehend.  In fact, Garner suggests that the use of a “whether” statement may actually hinder the brief’s overall effect, leaving the judges and law clerks in the dark until they read much further into the argument.

Garner’s solution is an amendment to Rule 28 mandating practitioners use so-called deep-issue statements.  Deep-issue statements usually consist of three short, pointed sentences that recount critical facts in a chronological manner.  The final sentence in the issue statement asks a question and is followed by a question mark.  Critically, the deep-issue statement must be 75 words or less, forcing practitioners to truly condense the question presented to reveal the most vital information.  Deep-issue statements are intended to be dispassionate and non-argumentative and to highlight the logic underlying a particular argument.  As a result, they are more likely to make salient facts stick in the reader’s mind, making it easier for him or her to digest the legal arguments that follow.

In practice, Garner’s suggested amendment would add an entire subsection to Rule 28 under “(a) Appellant’s Brief.”  The subsection purports to govern the means by which practitioners present their statements of the issues, including each of the standards discussed above.  The suggested amendment also includes a prohibition on the use of “whether” statements and examples of how deep-issue statements should be formatted.

Since Garner’s suggestion was filed in January 2017, one judge and two practitioners have written the committee to express their support for the mandatory deep-issue statement.  Notably, Judge Jennifer A. Dorsey of the District of Nevada wrote the committee and praised the deep-issue statement for contributing to “clear, direct, and grammatically correct prose.”  In her experience, deep-issue statements provide clarity for the audience, which directly contributes to trimmer briefs.  She’s such a proponent that she starts her orders and opinions with a deep-issue statement whenever possible.

Attorney Steven A. Hirsch also wrote to express his support and effectively illustrated his point through an anecdotal exercise.  In doing so, he treated Garner’s suggestion as if it were the subject of an appeal and drafted both “whether” and deep-issue statements.  The “whether” statement, he suggests, might look something like this: “Whether, instead of requiring that an appellant’s brief contain a ‘statement of the issues’ that—like this one—traditionally consists of one lengthy sentence that begins with ‘whether’ and then packs in all the facts essential to presenting the issue, FRAP 28 should be amended to require that principal appellate briefs begin with a multi-sentence issue statement limited to 75 words, usually couched as a syllogism, whose final sentence ends in a question mark.”  In contrast, the deep-issue statement may take the following form: “FRAP 28 requires that the appellant’s brief contain a ‘statement of the issues.’  That statement traditionally consists of one lengthy sentence that begins with ‘whether’ and then packs in all the facts essential to presenting the issue.  Should Rule 28 be amended to require that principal appellate briefs begin—like this one—with a multi-sentence issue statement limited to 75 words, usually couched as a syllogism, whose final sentence ends in a question mark?”  Both examples are comprised of 74 words, but only one is grammatically correct and conveys its point without extensive head scratching.

Garner’s suggestion (and the support for it) are still listed as pending consideration, meaning the committee has not yet foreclosed the possibility.  The deep-issue statement has amassed popularity during the past several decades, owing in part to Garner’s teaching and his many books, some of which he authored with former Supreme Court Justice Antonin Scalia.

Until the committee adopts Garner’s suggestion, it remains just that: a suggestion.  But practitioners would be wise to consider using the deep-issue format or some other expository means to author issue statements.  And the use of deep-issue statements should not be limited to appellate writing.  Any lawyer with a story to tell and a message to convey should consider adopting this practice.

Clawing Back Secrets after Shane GroupIt is clear by now that the federal courts in Tennessee are not a safe place for most sensitive business information. Legitimate trade secrets are safe. Well-established privileges (e.g., attorney-client privilege) still apply. And the courts still respect statutory requirements to protect things like personal health information. But unless your sensitive business information is a matter of national security, a recent series of Sixth Circuit opinions means you cannot expect to get or keep a broad seal covering documents in the courts’ records. Now that Tennessee’s federal courts cannot keep your secrets, how do you get them back?

Redact and Replace

The core principle of Shane Group is that the public generally is entitled to see whatever the courts rely on in deciding the merits of the cases before them. So if your secrets are irrelevant to the merits of the case—e.g., names of customers or suppliers unrelated to litigation with a third party—consider redacting the irrelevant secrets and filing a substitute document with the court.

This gets more complicated (and expensive) when relevant and irrelevant information are intertwined in a document or a document would require extensive line-by-line redactions. When redactions are not cost effective, consider substituting a stipulation to the relevant facts.

Redact and Justify

The courts are serious about maintaining themselves as open institutions, and the extra procedural requirements of the Shane Group cases make it much easier for a court to just deny a motion to seal. But if your secrets are necessary for deciding the merits of your case and they satisfy the substantive standards of Shane Group, the extra procedural steps are demanding but clear.   

Narrowly redact the protected information, and make a chart as you go documenting, line-by-line, the reason for the redaction backed up by legal citation. If you make it easy for the court to follow what you redacted and easy to adopt your explanations in its order, you stand a much better chance of keeping the original document under seal.

Work With (or Around) Opposing Counsel

Each of these approaches is more difficult when your secrets are in the other party’s filings. If both parties have secrets in the record, consider collaborating on an agreed order dealing with both parties’ sensitive information in a Shane Group-compliant way. If opposing counsel sees Shane Group as an opportunity to gain leverage, consider whether your current protective order gives you the right to claw back or redact documents already produced in discovery.

Keep Your Head Down, But Not In the Sand

While you are preparing Shane Group-compliant replacements or justifications, try not to draw the court’s attention to the sealed documents. This means avoiding new motions to seal documents that might trigger a general “show cause” order.

Do not, however, simply hope that no one will notice. The Sixth Circuit has vacated seals on its own motion, and district courts in Tennessee are following the Sixth Circuit’s lead by proactively addressing old seals. If your secrets are under seal in an active case in Tennessee’s federal courts, you should expect to encounter Shane Group sooner or later. Be prepared.

Sixth Circuit Clarifies Where to Appeal in a Transferred CaseLast month, the Sixth Circuit subtly deepened a circuit split over a significant question of appellate jurisdiction within the federal courts: When a lawsuit begins in one U.S. district court but is transferred to a second district court within another federal circuit before reaching a final judgment, which court of appeals has jurisdiction to review the first district court’s interlocutory decisions?

In Kalama v. Matson Navigation Co., Inc., a panel of the Sixth Circuit answered: Appellate jurisdiction exists in the court of appeals encompassing the transferee district court, where the case reaches a final judgment.  The Kalama appeal arose out of convoluted multidistrict litigation.  The plaintiffs initially brought the underlying lawsuit in the Northern District of Ohio.  The action was eventually transferred to the Eastern District of Pennsylvania, which dismissed some, but not all, defendants from the lawsuit.  The Eastern District of Pennsylvania then re-transferred the case back to the Northern District of Ohio.  The case reached a final judgment when the Northern District of Ohio dismissed the remaining defendants.  Several plaintiffs then appealed only the Eastern District of Pennsylvania’s dismissal to the Sixth Circuit, which encompasses Ohio, but not Pennsylvania.

The Kalama appeal put the Sixth Circuit in the strange position of reviewing an order that arose in a district court outside of its territorial jurisdiction.  Such a situation arises infrequently for good reason.  Federal courts may only exercise jurisdiction to the extent authorized by Congress.  One such jurisdictional authorization, codified at 28 U.S.C. § 1294, provides that “appeals from reviewable decisions of the district . . . courts shall be taken . . . to the court of appeals for the circuit embracing the district.”  Under a straightforward reading of § 1294, the Eastern District of Pennsylvania’s decision should have been appealed to the Third Circuit, not the Sixth.

Yet the Sixth Circuit did not take that position in Kalama.  Instead, it held that it may review a non-final order issued by a district court outside of the Sixth Circuit if the case eventually reaches a final judgment within the Sixth Circuit.  Under the court’s reasoning, all previous non-final orders “merge” with the final judgment and become appealable in the court of appeals embracing the district court that issues the final judgment.  The Seventh, D.C., Fourth, and Second Circuits also follow this theory.

While this “merger” theory appears to contradict § 1294, in the Sixth Circuit’s opinion that is not so.  In Kalama, the court followed the D.C. Circuit by expressly adopting an interpretation of § 1294 that comports with the merger theory.  According to the Sixth Circuit, a “reviewable” decision is synonymous with an “appealable” decision.  A non-final order, such as the partial dismissal in Kalama, is not “reviewable”—that is, appealable—until the case reaches a final judgment.  Thus, under the Sixth Circuit’s interpretation, § 1294 authorizes appeal of a non-final order to the court of appeals embracing the district court that ends up reaching a final judgment.  In Kalama, that court was the Sixth Circuit.

The Tenth and Eleventh Circuits disagree.  Both have rejected the merger theory, and both hold that, under the plain language of § 1294, any decision arising in a district court within a sister court of appeals must be appealed to that court of appeals.  According to the Tenth and Eleventh Circuits, “reviewable” is not synonymous with “immediately appealable.”

Furthermore, neither court minds that this interpretation can practically leave a party without the opportunity to appeal a decision.  For example, imagine that you are representing a defendant in an action initially filed in Colorado (a Tenth Circuit state), but recently consolidated into multidistrict litigation in Alabama (an Eleventh Circuit state).  The Alabama district court denies your motion for summary judgment and refuses your request for the court to certify its decision for immediate review under 28 U.S.C. § 1292(b).  You have no right to appeal the district court’s interlocutory decision at this stage.  Next, the district court in Alabama re-transfers your case to the district court in Colorado for trial, where you lose.  Now, you would want to appeal the Alabama court’s initial denial of your motion for summary judgment, but the Tenth Circuit’s interpretation of § 1294 prevents it.  You are left without an avenue to appeal the decision.

Luckily for practitioners within the Sixth Circuit, including Tennessee, this conundrum should not arise under the rule announced in Kalama.  As long as a case reaches final judgment within the Sixth Circuit, any interlocutory decisions may safely be appealed to the Sixth Circuit.  However, practitioners should keep their guard up when a case is transferred out of the Sixth Circuit to the Tenth or Eleventh.  In that circumstance, it is prudent to make every effort available to get an unfavorable, interlocutory decision reviewed before transfer—through either Rule 54(b) or § 1292(b), or by seeking an extraordinary writ—because the opportunity may be lost post-transfer.