News and Happenings

Since the Obergefell v. Hodges ruling in June, I've been posting reactions to media coverage of the case as well as to the opinions filed by the dissenters. But a lot more has been going on in the world of Joe Dunman.

Following the defeat of marriage discrimination nationwide, at least two county clerks in Kentucky have refused to issue marriage licenses to anyone, citing their own anti-gay religious beliefs. In Rowan County, a team of attorneys from the ACLU and my firm (including me) has filed suit on behalf of four couples (same-sex and different-sex) to protect their right to marriage. This month, District Judge David Bunning granted our motion for preliminary injunction, ordering the clerk to resume issuing marriage licenses. That order is currently being appealed by the clerk. Meanwhile, the clerk is also seeking a stay of that injunction. Litigation in this case will likely take a long time to resolve.

In other practice news, I have secured favorable settlements for clients in numerous cases this year, most recently a case of pregnancy discrimination against a major restaurant chain. Several of my clients have also won their appeals in unemployment benefits hearings, defeating spurious claims of misconduct by their former employers.

I continue to write periodically for Insider Louisville. My article opposing legislation to excuse county clerks from having to do their jobs was shared over three thousand times on social media. Other pieces, such as a criticism of the local Fraternal Order of Police president's inflammatory language against protesters and a call to help existing residents of Portland transform their own neighborhood (rather than be gentrified by outsiders) were also popular. My most recent piece tackles the futile and troublesome jaywalking crackdown proposed by local police.

The day before the Obergefell decision, I received a first place award in the category of political commentary from the Society of Professional Journalists for my writing in Insider Louisville. I've also been selected, for the second year in a row, as a "Rising Star" by the Super Lawyers professional rating organization. 

I'm also writing academically. I am now in the final revision stage on a law review article tracing how Bowers v. Hardwick - the 1986 Supreme Court case upholding sodomy laws - continues to control judicial decisionmaking despite its overrule by Lawrence v. Texas in 2003. The article will be published in the Thomas M. Cooley Law Review later this year. This will be my second published law review article with more in the works.

And finally, my colleague Dan Canon and I have launched a podcast called The Parade of Horribles. Why? Because we love to hear ourselves talk, of course. But we also love to talk to interesting people doing civil rights work, so each episode features a special guest. In Episode 1 we spoke to attorney Chris Gadansky about defending police in abuse of force cases and his role in extinguishing whistleblower protections for city employees. In Episode 2, law professor Sam Marcosson joined us to talk about Obergefell, gay marriage, and that time he worked for Clarence Thomas. In Episode 3, attorney Becca O'Neill helped us dispel common myths about immigration law in the United States. So far the podcast has been tremendous fun, and has attracted a decent-sized audience despite being brand new and focused on legal issues. The podcast is available at Soundcloud and through iTunes. Subscribe if you don't mind.

Bad Jury Instructions are an Enemy of Justice

Most people are not lawyers. Most people in America don't have even have a bachelor's degree. As laypeople, their exposure to complex legal concepts is minimal at best. This is no fault of theirs, it is simply a statistical fact.

Many laypeople without college degrees will be called for jury duty. If chosen to sit on a jury, they could spend weeks or even months listening as attorneys and witnesses present competing stories about what happened that caused a dispute between them. After the closing arguments are heard, the jurors retire to the deliberation room to decide who wins.

Let's say we have a group of twelve jurors, only four of whom have ever been to college and none who have been to law school. They have been listening to a trial about a business deal gone bad. One party was trying to sell some property and the other was trying to buy it. Both parties say they entered into an agreement, but they don't agree on what the terms of that agreement really were. There were some written documents exchanged but nothing that is clearly a formal written contract.

So the first problem the jurors have to solve is whether there was really a contract at all. So they sit down in the deliberation room and are given a stack of papers with instructions on them. The very first thing they read is this:

A contract is a promise or set of promises for the breach of which the law gives a remedy or the performance of which the law in some way recognizes a duty. To be binding, a contract must include a manifestation of mutual assent to the terms and conditions of the contract. This is referred to as the “meeting of the minds.” There must be a meeting of the minds; there can be no contract if only one party intends to be bound.

What does this paragraph mean? I went to law school, took two semesters of contract law, and I still had to read this paragraph twice to make sure I fully understood it. For anyone who never went to college, let alone law school, no number of readings is enough to fully get what it is trying to say.

The above paragraph is from a jury instruction template for breach of contract cases. This is actually what lawyers and judges recommend jurors see when they deliberate in a trial. And it gets worse:

Because intent, including intent to be bound, is seldom susceptible to direct proof as it relates to a person’s state of mind, the law presumes that a person intends the natural and probable consequences of that person’s acts. The meeting of the minds or the mutual manifestation of intent may be made wholly or partly by written or spoken words or by other acts or conduct, and an internal or unexpressed intention not to be bound is ineffective.

Got it? Now, the directive:

In determining whether there was any contract, you must decide whether or not there was a meeting of the minds between the parties with respect to the terms of the alleged oral agreement and a present intention to be bound.

Easy, right?

If you've never taken a class on contracts in law school, you can read this paragraph a dozen times and still not be totally sure what you're supposed to do. And even if you do get it, you probably have a bunch of fellow jurors who don't, and won't no matter how much you try to explain it to them. Again, that's not their fault, considering the instruction they've been given.

The law is complex, nuanced, and takes years of training to grasp its basic concepts. And you can't even get accepted to receive that training unless you were a pretty good student in college. For everybody else, it's mind-numbing and rightfully so.

The fact that attorneys and judges regularly submit and approve jury instructions like this can only be explained by tradition and laziness. No attorney who truly wants a jury to rule in their favor should submit instructions that are so dense and complicated that they're more at home in a law school textbook than in the hands of twelve non-lawyers who must fairly resolve a dispute.

Better instructions are possible. As a quick exercise, I'll re-write the first paragraph in a way that breaks down each of the concepts in an easier-to-digest way:

A contract is a promise or a set of promises. For example, Allen promises to give a car to Mary, and in exchange, Mary promises to give money to Allen.
Once two parties have entered a contract by making promises to each other, the law recognizes that each has a duty to the other. They are bound to not break their promises.
Breaking a promise is called a breach of contract. The law provides a remedy when one person breaks their promise.
But for the contract to be binding on each party - for there to be a duty not to break a promise - there has to be a "meeting of the minds."
Both parties must intend to enter into the contract and to be bound by it. There is no contract if one person intends to hold the other to their promise without being held to their own promise in return.
For example, if Allen never intends to give the car to Mary, there is no contract between them. Mary is not bound to her promise to give Allen money.

Now, that's wordier, but hopefully easier to digest for somebody who has had no previous legal training. From the lawyer's perspective, even if your case is weak, it is far better to have a jury who knows exactly the questions they're supposed to answer than a jury totally bewildered. It decreases the risk of appeal and it keeps the judge from having to make awkward, complicated remedial rulings that simply delay the process even longer.

Better jury instructions are possible. As our country continues to struggle to fully educate all of its citizens, making complicated legal standards easy for laypeople to digest makes just outcomes more likely.

Why You Should File An Amicus Brief

In many cases, litigation doesn't just affect the parties involved. A civil lawsuit by an individual against a company, for example, could have an impact on other companies who compete in the same market or operate under the same legal rules and regulations. The way a court applies the law in just one case can have wide repercussions. And courts don't just apply existing law, they sometimes change it.

The federal court system and most states have rules that allow third parties to intervene in existing lawsuits. But intervention is rare. More often, a third party won't be so closely affected by a case that they can intervene but will still have a stake in the outcome. That's why court rules allow for briefs from amici curiae, or "friends of the court." Companies, organizations, individuals, or groups of individuals can submit arguments on behalf of themselves, encouraging courts to rule in favor of the party whose interest is most closely aligned to theirs. As organizations and individuals lobby legislators, so too can they lobby the court system through amicus briefs.

Amicus briefs aren't just lobbying efforts, however. They can (and should!) assist courts in reaching the right decision in tough cases with complex legal issues. In the words of attorney Stephen Shapiro, speaking about amicus briefs submitted to the U.S. Supreme Court:

[A]n amicus brief must bring something new and interesting to the case. This might be better research, an explanation of the connection between the particular case and other pending cases, an improved discussion of industry practices or economic conditions, a more penetrating analysis of the regulatory landscape, or a convincing demonstration of the impact of the case on segments of society apart from the immediate parties. It also can be helpful to discuss the appropriate breadth of the Court's decision in light of such considerations.

Amicus briefs should not just rehash an argument already made to the court. They should be novel, or more expansive, or suggest an outcome that may be more of a compromise than the interested parties are demanding. They should be filed by third parties with a profound and specific interest in the case at bar.

Courts routinely grant motions to submit briefs of amicus curiae. The U.S. Supreme Court, for example, has what could fairly be described as an open door policy. However, the Seventh Circuit Court of Appeals has articulated stricter rules, limiting the number of briefs filed:

An amicus brief should normally be allowed when a party is not represented competently or is not represented at all, when the amicus has an interest in some other case that may be affected by the decision in the present case (though not enough affected to entitle the amicus to intervene and become a party in the present case), or when the amicus has unique information or perspective that can help the court beyond the help that the lawyers for the parties are able to provide. Otherwise, leave to file an amicus curiae brief should be denied.

Ryan v. CFTC, 125 F.3d 1062, 1063 (7th Cir. 1997) (internal citations omitted).

The actual impact of an amicus brief often depends on the judges to whom it is submitted. Some judges, like Judge Richard Posner of the Seventh Circuit and Justice Antonin Scalia of the U.S. Supreme Court, are openly hostile to amicus briefs. Others are more supportive. At the conclusion of oral arguments before the Sixth Circuit Court of Appeals in the same sex marriage cases (August, 6 2014), presiding Judge Jeffrey Sutton thanked the many amici filers for submitting a wide breadth of arguments for his panel to consider.

Cases with major social implications, such as Brown v. Board of Education, Hobby Lobby v. Sebelius, and the current same-sex marriage cases consolidated as Obergefell v. Hodges, attract the most amicus briefs. Cases with more limited scope, such as regulatory challenges in certain industries or procedural disputes, garner less outside interest. In those cases, an effective amicus brief in favor of one party or the other can play a bigger role in the outcome.

A study of Supreme Court decisions from 1946 to 1995 revealed a steady increase in the number citing amicus briefs. By 1995, amicus briefs were cited in 37% of the Court's rulings. And amicus briefs can generate significant media coverage.

If you or your organization has a unique interest in the outcome of a case currently before a judge or court sympathetic to amicus briefs, it may be a good idea to file one. You should seek counsel who is competent in the law implicated by the case and admitted to practice (and experienced in filing briefs) in that court. And don't wait - amicus briefs are usually due at the same time the briefs for the parties are due, so timing is important. Counsel should have at least one month to prepare and file your amicus brief.

If you are interested in filing an amicus brief in a pending case, consider it seriously and seek counsel now. The clock is ticking, and you could be doing yourself or your organization a great disservice if you ignore appropriate opportunities to assist courts with cases that matter to you.

Accepted at Last

I took a seminar on employment law during my last semester of law school in early 2012. The final grade for that class was based primarily on the writing of a law review article. For my article, I chose the topic of Kentucky employment retaliation law, something I was familiar with from my clerking for Clay Daniel Walton & Adams attorney Dan Canon (once my boss, now my colleague).

The paper took weeks to research and write and I got a good grade on it. My teacher, UofL Law professor Ariana Levinson, encouraged me to seek publication. I was wary because I was never on the law review during school and my topic was very narrowly focused on recent case law in just one state. How many law reviews would be interested? Perhaps just three (each law school in Kentucky has its own review, and Northern Kentucky had previously published work similar to my own).

I graduated, took the bar exam and passed, then got busy working as an attorney. The paper sat dormant for months. As a survey of recent case law, the passing time made the paper less accurate the longer it remained unfinished.

Finally, in late 2013, I picked it up again and began revisions. I had worked on more retaliation cases since I began my law practice, so had a better understanding of the issues and impact of each case I discussed. I had also improved my legal writing (at least in my own opinion). The revision and updating process took a few more weeks. By January of this year, I felt I had sufficiently polished it to try for publication.

I submitted the paper to the three main Kentucky law reviews - Louisville, Kentucky, and Northern Kentucky. I heard nothing for months. Then, in June, I presented the paper and associated topics on retaliation law at the annual Warns-Render Institute conference here in Louisville. My talk (with the help of Mr. Canon) was well-received.

Shortly after, I finally got the news I had been waiting for: the University of Louisville Law Review wanted to print the article. I gladly accepted their offer. The article, Navigating Kentucky Employment Retaliation Law in the Wake of Brooks v. Lexington-Fayette Urban County Housing Authority, was published this week.

Academic articles are the domain of law professors. Their career success partially hinges upon how much they write and how often they are published. Attorneys in private practice publish far less often, however, usually due to a lack of time and fewer professional incentives to do so.

There is one nice incentive, though: CLE credit. In order to remain in good standing with the bar, attorneys in Kentucky must get a large number of CLE credits each year. Conveniently, the Kentucky Bar Association awards up to six Continuing Legal Education hours for published legal writing. That's a nice bonus to the intellectual glory of appearing in a scholarly journal.

Because I am aggressively literate, I have another academic paper in the works. And because I am busy in my law practice, it sits dormant most of the time, gathering whatever the digital equivalent of dust might be. Hopefully soon I'll be able to get back at it. I'm the kind of weirdo who loves this stuff.

Bourke v. Beshear - Sixth Circuit Briefs Filed

The Kentucky same-sex marriage recognition case, Bourke v. Beshear, is currently before the U.S. Court of Appeals for the Sixth Circuit. Both parties have now filed their principal briefs, laying out all their arguments about why the district court below either got it wrong or got it right when it ruled Kentucky's ban on recognizing valid marriages from other states violates the U.S. Constitution.

Defendant Steve Beshear, as the losing party below, filed his brief first. In it, he made the following arguments:

  • The state of Kentucky has the ultimate authority to define its own marriage laws free of outside intervention.
  • The 1972 case of Baker v. Nelson is binding precedent, meaning federal courts have no jurisdiction over state marriage law challenges.
  • Same-sex couples are not similarly situated to opposite-sex couples, so their exclusion from marriage is not an equal protection violation.
  • Homosexuality and gender orientation are not protected classifications so a low standard of judicial scrutiny is appropriate.
  • There is a fundamental right to opposite-sex marriage, but not same-sex marriage, so a low standard of scrutiny is appropriate.
  • Kentucky has an interest in procreation and stable birth rates, and excluding same-sex couples from marriage recognition furthers that interest.
  • It is not the state's burden to disprove that same-sex couples can be good parents.
  • The state can make inexact distinctions between people to further its legitimate goals.

Beshear's brief was not received well by the local or national press. Specifically criticized was the argument that excluding same-sex marriages from recognition promotes procreation among opposite-sex couples.

Yesterday, with a brief principally written by me (full disclosure), and with invaluable and extensive contributions from my colleagues Dan Canon and Laura Landenwich, the Bourke plaintiffs responded to Beshear's arguments. The brief contests each of the above points, particularly the heightened scrutiny and procreation arguments.

You can read the full brief here.

Next in the appellate process: Beshear gets a chance to reply to our arguments, and then oral arguments will be held in Cincinnati at the Sixth Circuit courthouse during the first or second week of August.