Appellate Practice

5th Circuit mimics filing’s 'strange hypothetical conversation' in their ruling denying motion

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Apparently hoping to tell a story that a federal appeals court would find compelling, a Texas lawyer opened his motion for a panel rehearing with a hypothetical talk between lawyer and client.

“Sometimes, in deciding a case, the Court ought to put itself ‘into the shoes of the attorney’ before it,” the filing by Chad Flores of Beck Redden begins. It then launches into the script of a fictional chat between lawyer and client over an earlier rehearing denial, in the plain speech of ordinary conversation.

Indeed, the 5th U.S. Circuit Court of Appeals did take note of the unusual approach, calling it a “strange hypothetical conversation.” Then, in a takeoff of the lawyer’s approach, the appellate court offers a window into the deliberations behind the Friday opinion through a conversation between three judges.

Above the Law reported on the opinion and provided the copies of the filings.

“Sometimes, in litigating a case, lawyers ought to put themselves in the shoes of the judges before them,” the opinion begins. It then moved into a script, reading in part:

Judge 1: I cannot imagine why they thought that was a good idea.

Judge 2: What’s their argument?

Judge 3: They say that we made a mistake by not expressly addressing their personal jurisdiction argument.

Judge 2: That’s silly. It goes without saying that there was personal jurisdiction here.

Judge 1: I agree. The company reached out to Appellee in Texas, traveled to Texas to negotiate the contract, and entered into a contract with a Texas corporation.

Judge 2: So what do you think we should do about their petition?

Judge 1: Deny it.

Judge 3: I agree. Deny.

Judge 2: Sounds right.
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