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  1. #16
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    Curt Affirmation of District Court via 2d Cir Summary Order--Ask for reconsideration?

    In an order signed only by the clerk of the court, an apparent panel of three 2d Cir. appellate judges issued a curt 5-page affirmation of the SDNY court's FRCP 12b and FRCP 56 judgments from 2014 and 2017, covering 5 distinct claims. The appellate court's summary order offers little or no reasoning but merely a "the district court was right; you were wrong".

    Is it worth filing a petition for reconsideration or en banc hearing for what seems like an unconscionably cursory decision with no legal reasoning? If so, is it a 14-day time period to do so?

    (As context) Originally, the appellate court granted my request for oral argument on my appeal, but set the hearing date for January 4, 2018. I asked if I could have the date moved back to April or May as I had just started a new job and did not yet have enough accrued time to travel from overseas to New York. The court then denied the request for oral argument and did not permit me to appear by phone or video.


    Last edited by Paul84; 01-11-2018 at 10:38 AM.
  2. #17
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    Have you ever heard the phrase "You're in over your head"?

    I'm sure you have.


  3. #18
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    Quote Originally Posted by Paul84 View Post
    In an order signed only by the clerk of the court, an apparent panel of three 2d Cir. appellate judges issued a curt 5-page affirmation of the SDNY court's FRCP 12b and FRCP 56 judgments from 2014 and 2017, covering 5 distinct claims. The appellate court's summary order offers little or no reasoning but merely a "the district court was right; you were wrong".

    Is it worth filing a petition for reconsideration or en banc hearing for what seems like an unconscionably cursory decision with no legal reasoning? If so, is it a 14-day time period to do so?

    (As context) Originally, the appellate court granted my request for oral argument on my appeal, but set the hearing date for January 4, 2018. I asked if I could have the date moved back to April or May as I had just started a new job and did not yet have enough accrued time to travel from overseas to New York. The court then denied the request for oral argument and did not permit me to appear by phone or video.
    The court explained that "for the reasons stated in the magistrate judge’s ... Report and Recommendation (“R&R”), and the district court’s ... orders, we conclude that the district court properly ordered dismissal and summary judgment."

    All of the legal reasoning is contained in the magistrate judge's report and recommendation and the district court's orders.

    It was a noble effort, but you need to learn when to quit.

    You can certainly petition for an en banc rehearing, followed by a petition to SCOTUS for a Writ of Certiorari. At this point, you've got nothing to lose but your time and the filing fees.


  4. #19
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    Quote Originally Posted by Paul84 View Post

    Is it worth filing a petition for reconsideration or en banc hearing for what seems like an unconscionably cursory decision with no legal reasoning?
    As to the length of the opinion, if it is the one I think it is, I read the opinion and while short it is certainly not devoid of legal reasoning. It starts by noting that it agrees with the district court for the reasons given by the district court in its opinion. If the district court issued an opinion that explained the facts, the law, and the courts application of the law to reach its conclusions and that opinion was right on the money, as the saying goes, there really is no need for the court to write a long opinion that says exactly the same thing the district court did. So, in fact the court could have just said “we agree with the district court for the reasons given in its opinion” and it would be a perfectly good opinion But it didn't just do that. The court then explained in brief its disagreement with the more significant issues you raised.

    In any event, an opinion need not be long to address the issues before it. Consider two of my favorite Supreme Court decisions. The first is the shortest of any of the court’s opinions. The actual opinion is simply one sentence: “The United States never pays costs.” United States v. Barker, 15 U.S. (2 Wheat.) 395 (1817). The second is a famous tax case, in which the opinion is just two paragraphs long, United States v. Kirby Lumber, 284 U.S. 1 (1931).

    So seeking an en banc review to complain that the opinion simply wasn’t long enough and lacked reasoning for the decision will get you nowhere. The full court will not hear that. Federal Rule of Appellate Procedure (FRAP) 35 is the rule that provides for en banc review. The rule notes that en banc review is not favored and generally will only be granted either to (1) settle conflicts within the decisions of the circuit or (2) the issue “involves a question of exceptional importance.” So you’d need to convince a majority of the full court that one of those two things exist. And even then, a full en banc review hearing is unlikely. From 2011 through 2016, the court only accepted 2 cases for full en banc review, and approximately 70 cases for what is generally called mini en banc review. The second circuit is famous for being extremely reluctant to engage in en banc review, going back to the time of Judge Learned Hand (who was one of the most famous and often quoted judges to have sat on that court).

    Quote Originally Posted by Paul84 View Post
    If so, is it a 14-day time period to do so?
    FRAP 35 tells you that the time for petitioning for rehearing en banc is the same as for other rehearings in FRAP 40, i.e. 14 days.

    Quote Originally Posted by Paul84 View Post
    (As context) Originally, the appellate court granted my request for oral argument on my appeal, but set the hearing date for January 4, 2018. I asked if I could have the date moved back to April or May as I had just started a new job and did not yet have enough accrued time to travel from overseas to New York. The court then denied the request for oral argument and did not permit me to appear by phone or video.
    I’m not surprised. As I noted earlier in this thread, the courts of appeals increasingly are deciding cases without oral argument and that when oral argument is granted, it is quite rare that a phone or video appearance would be permitted. The court apparently did not feel strong enough about wanting oral argument to wait until you could travel to decide the case, and since you could not attend at the date that was scheduled it simply canceled the oral argument and decided the matter on the briefs. From what I can see of the case I doubt oral argument would have made any difference in the outcome anyway.


  5. #20
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    Quote Originally Posted by Taxing Matters View Post
    As to the length of the opinion, if it is the one I think it is, I read the opinion and while short it is certainly not devoid of legal reasoning. It starts by noting that it agrees with the district court for the reasons given by the district court in its opinion. If the district court issued an opinion that explained the facts, the law, and the courts application of the law to reach its conclusions and that opinion was right on the money, as the saying goes, there really is no need for the court to write a long opinion that says exactly the same thing the district court did. So, in fact the court could have just said “we agree with the district court for the reasons given in its opinion” and it would be a perfectly good opinion But it didn't just do that. The court then explained in brief its disagreement with the more significant issues you raised.

    In any event, an opinion need not be long to address the issues before it. Consider two of my favorite Supreme Court decisions. The first is the shortest of any of the court’s opinions. The actual opinion is simply one sentence: “The United States never pays costs.” United States v. Barker, 15 U.S. (2 Wheat.) 395 (1817). The second is a famous tax case, in which the opinion is just two paragraphs long, United States v. Kirby Lumber, 284 U.S. 1 (1931).

    So seeking an en banc review to complain that the opinion simply wasn’t long enough and lacked reasoning for the decision will get you nowhere. The full court will not hear that. Federal Rule of Appellate Procedure (FRAP) 35 is the rule that provides for en banc review. The rule notes that en banc review is not favored and generally will only be granted either to (1) settle conflicts within the decisions of the circuit or (2) the issue “involves a question of exceptional importance.” So you’d need to convince a majority of the full court that one of those two things exist. And even then, a full en banc review hearing is unlikely. From 2011 through 2016, the court only accepted 2 cases for full en banc review, and approximately 70 cases for what is generally called mini en banc review. The second circuit is famous for being extremely reluctant to engage in en banc review, going back to the time of Judge Learned Hand (who was one of the most famous and often quoted judges to have sat on that court).



    FRAP 35 tells you that the time for petitioning for rehearing en banc is the same as for other rehearings in FRAP 40, i.e. 14 days.



    I’m not surprised. As I noted earlier in this thread, the courts of appeals increasingly are deciding cases without oral argument and that when oral argument is granted, it is quite rare that a phone or video appearance would be permitted. The court apparently did not feel strong enough about wanting oral argument to wait until you could travel to decide the case, and since you could not attend at the date that was scheduled it simply canceled the oral argument and decided the matter on the briefs. From what I can see of the case I doubt oral argument would have made any difference in the outcome anyway.
    Taxing, thanks for your response. I realize that getting a 2d Cir. en banc or mini-en banc hearing is as rare as getting a case certified for the U.S. Supreme Court. If you look at my appellant brief, one of the key points ignored by the court was my contention of bias on the part of the district judge--who cited my key evidence 1/10 as much as that of the defendants and who sat on the case for nearly 2 years before issuing what I considered a faulty opinion, as did the magistrate who held on to it for one year. The appellate summary order ignored my entire bias argument and all my evidence--i.e. ignoring its own guidance that courts must consider the totality of the evidence and circumstances. If the appellate court had raised each of my arguments in turn and then demolished them, ideally with citations to the evidence, I could respect that. Instead, like the district court, it ignored them and relied solely on the lower court's opinions. Obviously one would not appeal a sound lower court's opinion as that would be pointless.

    Okay, I'm not a lawyer, but I'm not an idiot either. Anyone with a reasonable education can read the law and make a persuasive case. I expect within ten years, robots will be writing better briefs than most lawyers, and in twenty years robots will be replacing many judges--a time I hope that other pro se litigants can experience. I'd much rather have a robot, free of cognitive biases and laziness, looking at the issues than what we have now.

    It's obvious to me that the 2d Cir. staff attorneys, on one-year contracts, wrote the opinion as they usually do for summary orders, which is why I wanted an oral hearing--to at least force the judges to look at my case, which I am fairly sure they did not. Hence, my inclination to petition for a rehearing. These staff attorneys come from 2nd-rate law schools and earn about $50k a year, little more than half of what a 2d Cir. law clerk would get and a fraction of what a Big Law associate earns. It's no wonder that their arguments are cursory, flimsy, or non-existent. Seems incredible to me that 3 appellate judges could have reviewed all the briefings, the opinions, and the key evidence in a week when it took two lower-court judges 3 years to do so. Why do I say "one week"? There was a court filing just one week before the issuance of the summary order that assigned the case to these particular 3 judges.


    Last edited by Paul84; 01-12-2018 at 07:14 AM.
  6. #21
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    Quote Originally Posted by Paul84 View Post
    Taxing, thanks for your response. I realize that getting a 2d Cir. en banc or mini-en banc hearing is as rare as getting a case certified for the U.S. Supreme Court. If you look at my appellant brief, one of the key points ignored by the court was my contention of bias on the part of the district judge--who cited my key evidence 1/10 as much as that of the defendants and who sat on the case for nearly 2 years before issuing what I considered a faulty opinion, as did the magistrate who held on to it for one year. The appellate summary order ignored my entire bias argument and all my evidence--i.e. ignoring its own guidance that courts must consider the totality of the evidence and circumstances. If the appellate court had raised each of my arguments in turn and then demolished them, ideally with citations to the evidence, I could respect that. Instead, like the district court, it ignored them and relied solely on the lower court's opinions. Obviously one would not appeal a sound lower court's opinion as that would be pointless.

    Okay, I'm not a lawyer, but I'm not an idiot either. Anyone with a reasonable education can read the law and make a persuasive case. I expect within ten years, robots will be writing better briefs than most lawyers, and in twenty years robots will be replacing many judges--a time I hope that other pro se litigants can experience. I'd much rather have a robot, free of cognitive biases and laziness, looking at the issues than what we have now.

    It's obvious to me that the 2d Cir. staff attorneys, on one-year contracts, wrote the opinion as they usually do for summary orders, which is why I wanted an oral hearing--to at least force the judges to look at my case, which I am fairly sure they did not. Hence, my inclination to petition for a rehearing. These staff attorneys come from 2nd-rate law schools and earn about $50k a year, little more than half of what a 2d Cir. law clerk would get and a fraction of what a Big Law associate earns. It's no wonder that their arguments are cursory, flimsy, or non-existent. Seems incredible to me that 3 appellate judges could have reviewed all the briefings, the opinions, and the key evidence in a week when it took two lower-court judges 3 years to do so. Why do I say "one week"? There was a court filing just one week before the issuance of the summary order that assigned the case to these particular 3 judges.
    You lost.

    You were told years ago by attorneys on this forum that this would be the likely outcome. I suggest to others that they look at your posting history to see why forum members came to this conclusion.

    I see no reason why you should blame all attorneys and judges for the failure.

    At least now you can move on.


    Last edited by quincy; 01-12-2018 at 03:14 PM.
  7. #22
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    Quote Originally Posted by Paul84 View Post
    If you look at my appellant brief, one of the key points ignored by the court was my contention of bias on the part of the district judge--who cited my key evidence 1/10 as much as that of the defendants and who sat on the case for nearly 2 years before issuing what I considered a faulty opinion, as did the magistrate who held on to it for one year.
    I read your brief. And while it is obvious that you felt strongly about your case and that you evidently put time on the brief, it was, well, a mess. Forgive the characterization, for I do not wish to be unkind, but that’s the best word I can think of for it right now.

    Let me start by saying that a really good brief stands on its own. The judge (or clerk) reading the brief should not have to go outside the brief to understand the argument and be persuaded it is correct. The citations to the record and to legal authority are not for the purpose of making the judge have to go ferret out the case or the item from the record to understand what you are talking about. Rather, the citations are there to enable the judge to verify what you have said. The citations give it authority. As I read your brief, I had a great deal of trouble trying to piece together your arguments as the brief did not stand on its own. I’d have had to dig through the record and the cases and then from that try to figure out what your argument was. That is not a good persuasive brief.

    You did indeed claim bias because the district court cited only one-tenth of your stuff compared to the defendant’s material and because of the time it took for the court to issue it’s opinion. The problem is that you never explained why those two things must compel the conclusion that the judge was biased against you. You seemed to assume that bias is obvious given those facts. But that assumption is wrong.

    There are all kinds of reasons why a court opinion may take a long time to get issued. It is not all that unusual especially given the workloads of most federal judges. In one Tax Court case of mine the court took 5 years after the trial to issue its opinion. But that delay certainly did not indicate any bias towards either the taxpayer or the government. It was simply a product of a complex case in a federal court that hears more cases than any other. So why is it that a 2 year time to issue an opinion must compel the conclusion of bias to exclusion of any other explanation? You don’t explain that in your brief, and I can't think of any logical argument that would make that work.

    Similarly, you do not explain why the fact that the court cited to more of the defendant’s stuff than yours must compel a conclusion that the court was biased. After all, one the reasons for that, and the one that is by far the most common, is that the defendant had the better part of the case than the other party did. You needed to explain why bias had to be the reason and not something else.

    You didn't explain why the delay and the fact that the court cited to more of the defendant’s stuff than yours must point to bias. You simply stated those facts and claimed it was bias. But without a good argument for why that is bias it not surprising the court did not address it.

    In addition that, you did not point to where you raised the issue of bias with the trial court nor did you point to any rule or 2nd circuit opinion that would let you raise the issue of bias for the first time in the appeal.

    That's just one of the many problems with the brief.

    You complained in your brief that as a pro se plaintiff you should not be expected to know that the law of a foreign jurisdiction might apply for some issues while a federal or state law might apply to others without doing a bunch of research for which you evidently did not have the time. Well, the problem with that is that pro se plaintiffs, though they get a little leeway in some things, for the most part must be as capable as a lawyer in trying their case. They must know the law and argue it properly. The court cannot do that for you and does not have to give you tons of time to keep amending your pleadings to try to get it right. It is not a surprise to me that the court did not see fit to address that in any detail. Again, please forgive the characterization, but it came across a bit to me like you were whining about having to do all this research for your case. If that's the impression the judges had, too, that would obviously not go over well.

    In my view you really didn't do a good job laying out a coherent, logical argument. The brief wanders in many places, jumping back and forth from one thing to the next. You make a lot of conclusory statements for which you do not show the logical steps needed to arrive at those conclusions. A court is not going to go through and meticulously address unsupported conclusions.

    You characterized the short opinion as being evidence that the court did not really take the time to look at your case, stating that the judges are lazy and the clerks incompetent. That is, frankly, a somewhat arrogant assertion on your part. You are saying that your brief must have been so good that it warranted a long detailed opinion. You evidently have not considered the possibility that court’s short opinion and the failure to discuss each and everything you put in your brief might actually be because the brief was poor and much of it not really worth taking the time to delve into in detail.

    Federal court clerkships are coveted positions; they tend to go to the top graduates of the best schools even though the pay is substantially less than they would make a big law firm. Why? Because the experience is invaluable and because lawyers that have clerked for judges then make even more money when they go to private practice than had they spent that same time in private practice right out law school.

    I clerked for a federal district court judge myself. I graduated from a top tier law school with highest honors and then obtained a LL.M degree from one of the top two programs in the nation. I didn't clerk for the money, but rather for the experience. Among other things, I learned a lot about writing effective briefs after reading many, many briefs and seeing what made the difference between the good ones and the poor ones.

    The judges would have read your briefs. While their clerks would do much of the research, the clerks work under the supervision of the judges and would discuss the case with the judge as they went along. The clerk might even write the basic opinion, but the judge will review it to ensure it reflects his/her views. Your assumption that the judges simply didn't read it and basically ignored your brief is almost certainly not correct. Rather, they likely read it but found it not very persuasive or even very helpful in understanding the case. I had more questions than answers about your case after reading the brief, and that’s not what you want to leave the judge with after he/she reads the brief.

    Quote Originally Posted by Paul84 View Post
    Okay, I'm not a lawyer, but I'm not an idiot either. Anyone with a reasonable education can read the law and make a persuasive case.
    No, they can’t. I have seen many pro se briefs and even some briefs by attorneys that were quite poor and were not persuasive. And some of those people were very smart. What they lacked was some training and experience in writing briefs. Your own brief is proof that not just anyone with a “reasonable education” can write a persuasive brief. It seems clear that you are reasonably educated and fairly bright. But it takes a lot more than that to write a great brief. It is a developed skill like much else in life. You cannot expect to walk out on a tennis court and play like a pro your first time out. Same here. Persuasion is an art, one that takes a variety of skills to do effectively.

    Quote Originally Posted by Paul84 View Post
    Seems incredible to me that 3 appellate judges could have reviewed all the briefings, the opinions, and the key evidence in a week when it took two lower-court judges 3 years to do so. Why do I say "one week"? There was a court filing just one week before the issuance of the summary order that assigned the case to these particular 3 judges.
    Again, you have reached a conclusion without going through the logical steps to prove it. You evidently assume something that is not correct: that the court works exclusively on one case, doing all the work for it and then issues its opinion, then turns to the next case and does the same thing. The judges and clerks do not do that. They work multiple cases at the same time, batching related work, to keep a smooth flow of things. It was more efficient for me to do research on several cases at once, for example, than work one case to completion before picking up the other. I liked to set aside days just for writing so I could get into a good writing mindset. Those are just two examples but I trust they suffice to make the point. So they didn’t just pick your case up cold and in a week cranked out the opinion. They worked your case alongside others that were in the court at the same time.

    As I said at the start, I realize you have a very strong belief in your case and that you put a lot of time in on it and I’m sorry you ended up with a disappointing result. But the fact that you lost is almost certainly not because the judges and clerks were lazy or biased. Rather, you simply didn’t make the case for your claims. The case wasn’t the strong one you thought it was. I don’t see you getting an en banc review or Supreme Court review of your case, though you are of course free to try for them if you want.


    Last edited by Taxing Matters; 01-12-2018 at 05:03 PM. Reason: Typo corrections
  8. #23
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    Quote Originally Posted by Taxing Matters View Post
    ...
    Amazing - you are to be applauded.


  9. #24
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    Beautifully written, Taxing Matters. I applaud the time you took to address Paul's post, and his case in general.


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    One of the best response posts I've read.


  11. #26
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    Quote Originally Posted by Taxing Matters View Post
    I read your brief. And while it is obvious that you felt strongly about your case and that you evidently put time on the brief, it was, well, a mess. Forgive the characterization, for I do not wish to be unkind, but that’s the best word I can think of for it right now.

    Let me start by saying that a really good brief stands on its own. The judge (or clerk) reading the brief should not have to go outside the brief to understand the argument and be persuaded it is correct. The citations to the record and to legal authority are not for the purpose of making the judge have to go ferret out the case or the item from the record to understand what you are talking about. Rather, the citations are there to enable the judge to verify what you have said. The citations give it authority. As I read your brief, I had a great deal of trouble trying to piece together your arguments as the brief did not stand on its own. I’d have had to dig through the record and the cases and then from that try to figure out what your argument was. That is not a good persuasive brief.

    You did indeed claim bias because the district court cited only one-tenth of your stuff compared to the defendant’s material and because of the time it took for the court to issue it’s opinion. The problem is that you never explained why those two things must compel the conclusion that the judge was biased against you. You seemed to assume that bias is obvious given those facts. But that assumption is wrong.

    There are all kinds of reasons why a court opinion may take a long time to get issued. It is not all that unusual especially given the workloads of most federal judges. In one Tax Court case of mine the court took 5 years after the trial to issue its opinion. But that delay certainly did not indicate any bias towards either the taxpayer or the government. It was simply a product of a complex case in a federal court that hears more cases than any other. So why is it that a 2 year time to issue an opinion must compel the conclusion of bias to exclusion of any other explanation? You don’t explain that in your brief, and I can't think of any logical argument that would make that work.

    Similarly, you do not explain why the fact that the court cited to more of the defendant’s stuff than yours must compel a conclusion that the court was biased. After all, one the reasons for that, and the one that is by far the most common, is that the defendant had the better part of the case than the other party did. You needed to explain why bias had to be the reason and not something else.

    You didn't explain why the delay and the fact that the court cited to more of the defendant’s stuff than yours must point to bias. You simply stated those facts and claimed it was bias. But without a good argument for why that is bias it not surprising the court did not address it.

    In addition that, you did not point to where you raised the issue of bias with the trial court nor did you point to any rule or 2nd circuit opinion that would let you raise the issue of bias for the first time in the appeal.

    That's just one of the many problems with the brief.

    You complained in your brief that as a pro se plaintiff you should not be expected to know that the law of a foreign jurisdiction might apply for some issues while a federal or state law might apply to others without doing a bunch of research for which you evidently did not have the time. Well, the problem with that is that pro se plaintiffs, though they get a little leeway in some things, for the most part must be as capable as a lawyer in trying their case. They must know the law and argue it properly. The court cannot do that for you and does not have to give you tons of time to keep amending your pleadings to try to get it right. It is not a surprise to me that the court did not see fit to address that in any detail. Again, please forgive the characterization, but it came across a bit to me like you were whining about having to do all this research for your case. If that's the impression the judges had, too, that would obviously not go over well.

    In my view you really didn't do a good job laying out a coherent, logical argument. The brief wanders in many places, jumping back and forth from one thing to the next. You make a lot of conclusory statements for which you do not show the logical steps needed to arrive at those conclusions. A court is not going to go through and meticulously address unsupported conclusions.

    You characterized the short opinion as being evidence that the court did not really take the time to look at your case, stating that the judges are lazy and the clerks incompetent. That is, frankly, a somewhat arrogant assertion on your part. You are saying that your brief must have been so good that it warranted a long detailed opinion. You evidently have not considered the possibility that court’s short opinion and the failure to discuss each and everything you put in your brief might actually be because the brief was poor and much of it not really worth taking the time to delve into in detail.

    Federal court clerkships are coveted positions; they tend to go to the top graduates of the best schools even though the pay is substantially less than they would make a big law firm. Why? Because the experience is invaluable and because lawyers that have clerked for judges then make even more money when they go to private practice than had they spent that same time in private practice right out law school.

    I clerked for a federal district court judge myself. I graduated from a top tier law school with highest honors and then obtained a LL.M degree from one of the top two programs in the nation. I didn't clerk for the money, but rather for the experience. Among other things, I learned a lot about writing effective briefs after reading many, many briefs and seeing what made the difference between the good ones and the poor ones.

    The judges would have read your briefs. While their clerks would do much of the research, the clerks work under the supervision of the judges and would discuss the case with the judge as they went along. The clerk might even write the basic opinion, but the judge will review it to ensure it reflects his/her views. Your assumption that the judges simply didn't read it and basically ignored your brief is almost certainly not correct. Rather, they likely read it but found it not very persuasive or even very helpful in understanding the case. I had more questions than answers about your case after reading the brief, and that’s not what you want to leave the judge with after he/she reads the brief.



    No, they can’t. I have seen many pro se briefs and even some briefs by attorneys that were quite poor and were not persuasive. And some of those people were very smart. What they lacked was some training and experience in writing briefs. Your own brief is proof that not just anyone with a “reasonable education” can write a persuasive brief. It seems clear that you are reasonably educated and fairly bright. But it takes a lot more than that to write a great brief. It is a developed skill like much else in life. You cannot expect to walk out on a tennis court and play like a pro your first time out. Same here. Persuasion is an art, one that takes a variety of skills to do effectively.



    Again, you have reached a conclusion without going through the logical steps to prove it. You evidently assume something that is not correct: that the court works exclusively on one case, doing all the work for it and then issues its opinion, then turns to the next case and does the same thing. The judges and clerks do not do that. They work multiple cases at the same time, batching related work, to keep a smooth flow of things. It was more efficient for me to do research on several cases at once, for example, than work one case to completion before picking up the other. I liked to set aside days just for writing so I could get into a good writing mindset. Those are just two examples but I trust they suffice to make the point. So they didn’t just pick your case up cold and in a week cranked out the opinion. They worked your case alongside others that were in the court at the same time.

    As I said at the start, I realize you have a very strong belief in your case and that you put a lot of time in on it and I’m sorry you ended up with a disappointing result. But the fact that you lost is almost certainly not because the judges and clerks were lazy or biased. Rather, you simply didn’t make the case for your claims. The case wasn’t the strong one you thought it was. I don’t see you getting an en banc review or Supreme Court review of your case, though you are of course free to try for them if you want.
    Taxing,
    Thank you very much for taking the time to read my appellant brief and addressing the points of my post. While I disagree, I respect the effort and consideration.


  12. #27
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    Taxing Matters, that was an amazing reply to a poster who has been less-than-gracious in his postings here. Your thoroughness is to be applauded, as is your patience.

    (And not to hijack the thread, but I too worked for the IRS' District Counsel years ago in a support role. I read countless briefs during that time; it was amazing to me how many pro-se litigants confused quality with quantity.)


  13. #28
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    Quote Originally Posted by Paul84 View Post
    Taxing,
    Thank you very much for taking the time to read my appellant brief and addressing the points of my post. While I disagree, I respect the effort and consideration.
    Taxing,
    After carefully going through the summary order, I realized (a) that it was full of legal and factual errors, mischaracterizations, and omissions; and (b) the order's author had not even read my opening or reply appellant briefs, appendix, or supplementary authority. In other words, you Taxing, were more conscientious than the staff attorney.

    So I have drafted a 10-page petition for panel (re)hearing and (mini) en banc hearing with the 5-page summary order as attachment. Thanks for reminding me about the "mini" concept. Am also renewing the request for oral argument. Given the relative brevity of the petition, I assume I do not have to also append a certificate of compliance on word count (at about 2400 words, it's well under 3900 words, which is the limit), or include a table of contents and authorities (as with a brief), or provide any paper copies. The 2d Cir. Local Rules and FRAP were sparse about those requirements for petitions for panel rehearing or en banc hearings, and from what I understand, you only need to send in multiple, bound hard copies if the petition and summary order exceed 50 pages in combined length. However, anyone knowledgeable about 2d Cir. appellate procedures, please correct me if this is wrong.


  14. #29
    Join Date
    Feb 2007
    Posts
    21,224
    Once again, you seem to think the rules do not apply to you. Failure to submit things properly will likely result in them being summarily ignored (not, as TM has already told you, that you have any chance at an en banc review anyhow).


  15. #30
    Join Date
    Jan 2005
    Location
    California
    Posts
    71,315
    Smh .


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