Four Decades of Appe ...

Four Decades of Appellate Practice | Luther Munford

September 30, 2021 | by D. Todd Smith

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Over the last several decades, appellate practice has transitioned from a part of general legal practice into its own discrete specialty. Luther T. Munford, an attorney in Butler Snow LLP’s appellate and written advocacy group, has been a part of that specialization and has directly influenced its development over the last 40 years, including a term as the President of the American Academy of Appellate Lawyers. From clerkships on the Fifth Circuit and the US Supreme Court, Luther has seen appellate practice change and develop. He’s taken that experience to carve his niche in an appellate practice that has included media law, constitutional law, professional liability, and product liability defense. Luther joins Todd Smith and Jody Sanders to share his experiences and discuss his work, including his development of the Mississippi Appellate Practice book. Join us for Luther’s insights and anecdotes!

Our guest is Luther Munford from Butler Snow’s Ridgeland, Mississippi office. Welcome to the show, Luther.

Thank you. I’m glad to be here.

Luther is a very experienced appellate lawyer, practicing more than 40 years and has quite a bit of interesting tales to tell about his time as a Fifth Circuit clerk, as a U.S. Supreme Court clerk for Justice Blackmun, and as a practicing appellate lawyer for a period of decades. Getting into that, Luther, before we jump into your legal career. Tell us a little bit about yourself, where you came from and maybe the early part of your practice.

I’m from Jackson, Mississippi. I finished at the University of Virginia Law School in 1976. I clerked for Paul Roney on the Fifth Circuit and Justice Harry Blackmun on the U.S. Supreme Court. I came to Butler Snow in 1979. I was here until 1986 when I went and taught at the Mississippi College School of Law as a full-time professor. In 1989, I went to work for the Phelps Dunbar law firm, where I stayed until 2013 when I came back to Butler Snow to my great satisfaction and good fortune.

During that time, I’ve done a number of things that might be of interest. I put together a book on appellate practice in Mississippi, which has the imaginative title of Mississippi Appellate Practice. I was then involved in the American Academy of Appellate Lawyers and have served as president in part because I went to an early meeting where only three people were present!

I served for six years on the Appellate Rules Advisory Committee to the Judicial Conference of the United States. Over the course of my career, I think the count is that I was lead counsel in 77 federal or state appellate cases that produced written opinions and our clients prevailed in whole or in part in about three-quarters of them.

That’s a pretty impressive win-loss record. You might have to factor in, whether you’re representing the appellants or the appellees. I’d say, either way, that’s much better than a coin flip.

I’m proud of it. It’s interesting. Sometimes when you’re asked to appeal a huge judgment against your client, the fact that it’s such a huge judgment helps you. The huge judgment is the result of a huge problem. I’ve been on both sides.

We see that here in Texas, the conventional wisdom that the appellate courts, particularly our high court, are going to take an especially close look at a case with lots of zeros on the end of that judgment. That does hold true. Whether that ultimately affects the merits or not, who’s to say. That’s probably right that wherever you are, Mississippi or Texas, appealing a large judgment is a little bit different than appealing a summary judgment.

If we can back up for a minute, Luther. When you clerked at the Fifth Circuit, it was still a unified court that went all the way from El Paso to Miami and your judge would then be on the Eleventh Circuit eventually.

St. Petersburg, Florida.

How was that experience with so much geographic diversity and the size of all that?

We got to travel, which was nice. I remember going to hearings or sittings both in Dallas, Fort Worth and Houston. Some interesting things about that. To my perception, the lawyers in Dallas dressed like people in New York and the lawyers in Fort Worth all wore cowboy boots.

That still holds true. It hasn’t changed a lot.

It was in Fort Worth that I heard Judge J.P. Coleman use a line that’s been very useful to me. A lawyer was making an argument and he said to the lawyer, “Counsel, put the hay down where the mules can get at it.” I’ve used that. In Houston, Chief Judge John Brown was on the panel and I watched the Attorney General of Texas walk into the courtroom and bow down to Chief Judge Brown. All in good fun, but that was certainly something pretty unusual.

I imagine. Judge Brown was an interesting character.

There’s our Texas connection right here. Aside from the fact that Luther and I are at the same law firm. It’s a good point that we did have that large-scale pre-split. That was the circuit that Luther got to experience firsthand as a younger lawyer. He saw how some of how things are done here in our state, even if it is in the Fifth Circuit Court. I would like to back up a little bit more because I believe, Luther, you told me privately that your influence in the appellate world extended all the way back to your law review days from the University of Virginia in a case called Bates versus State Bar. Tell us the story there.

I might be the only person who ever got hired to the Supreme Court Law Clerk after a Justice had rejected his law review note in a published opinion. When I was in law school, I got interested in lawyer advertising. That was a big issue, whether the bar could prohibit it or not. I wrote a note that basically took a behavioral economics approach. That’s what it would be called today. It argued that prohibiting advertising made lawyers dependent on their reputation to get clients and that was a good thing. It gave lawyers an incentive to do a good job for their clients and gave lawyers an incentive to get along with other lawyers, so forth and so on. It was published in 1976. In 1977 the case challenging the Arizona bar’s no-advertising rule came to the Supreme Court.

As I later found out, my law review note was the only secondary authority John Frank cited on behalf of the State Bar of Arizona in that case. The published opinion had a footnote saying all this stuff about reputation may be very fine and good, but that is for small-town folks. We don’t think that applies to modern society.

In any event, as it turned out, the law clerks who were working on that opinion were the ones who interviewed me when I applied. Judge Paul Roney, whom I was working for in Florida, recommended me to Justice Blackmun and Justice Powell. Justice Blackmun owed Judge Roney a favor because Judge Roney had performed the marriage ceremony for Justice Blackmun’s daughter in Justice Blackmun’s chambers about three years before. I have to think that played a significant role in my getting the job.

They interviewed me and fortunately, I didn’t know anything about the case before joining the court. They certainly did not mention it. Then the opinion comes out and it has this distinguishing footnote, but Justice Blackmun hired me any way. That’s something very unusual.

I still don’t think lawyer advertising is a very good idea, certainly not in its modern form. I published an article in the Mississippi Law Journal many years later which disagreed with a Second Circuit opinion that said it was okay to use smoke, blue flashes and aliens in a lawyer’s advertisement.

Some of the things that the court assumed in Bates were just wrong. It assumed that the one who advertised the most wouldn’t be the one who got the business. When I was working on the article, I called up either Bates or O’Steen. I’ve forgotten which one it was. I think it was O’Steen and asked him about that. He said, “The one who advertises the most gets the business.”

two men shaking hands
Appellate Practice: Prohibiting advertising made lawyers dependent on their reputation to get clients.

That’s certainly a hot button issue, even now, but that’s got to be the most interesting story of how someone wound up with the U.S. Supreme Court clerkship that I’ve ever heard. What that tells us is the world is the same, whether you’re in Washington or Jackson, Mississippi or down here in Texas. To some degree, it’s who you know and who owes who favors.

I got lucky. I had the basic credentials. I had a first-class degree from Oxford. I’d been editor of my college newspaper at Princeton. I was on the law review at Virginia but surely there were 100 people just as qualified as I was. I had Judge Roney’s recommendation, for which I’m eternally grateful. Also, because I had started with Judge Roney in an awkward time slot, at the time Justice Blackmun is making his decision he had two law clerks that I knew. One of whom had been my study group partner in law school and another I had known at Oxford, Judge Keith Ellison in Texas. I got lucky.

Did you know going into your clerkship with Judge Roney that you might wind up as an appellate lawyer?

I don’t think so. Here’s what I thought. I like to write. I had worked in journalism. I had heard the John W. Davis speech about if you want to be a fisherman, you want to know how to fish. Don’t ask the fishermen. Ask the fish. I saw clerking as an opportunity to play fish, which it was. After I clerked, obviously, appellate law was something I thought I knew something about. That’s what I gravitated toward. I also gravitated toward defending newspapers. I did a fair amount of work for the local paper and other media in Mississippi, defending them in defamation cases.

What were some of the big cases or issues when you were at the Supreme Court?

The one that I had the most to do with was Steelworkers versus Weber. The question was whether Title VII, which prohibits discrimination on the basis of race, prohibited an employer from engaging in affirmative action in order to cure racial imbalance in the workforce. Justice Brennan wrote the opinion for the court saying that was okay and Justice Blackmun, specially, concurred.  He adopted the logic and words of John Minor Wisdom in the Fifth Circuit said, in essence, , “If you did not an allow employer to do that, then the employer was on a tight rope. He’s going to get sued either way he decides.” I believe that if you search the literature, you will find that Judge Wisdom’s analysis of that is thought to be the better analysis of that problem.

It was a statutory problem. Congress has never attempted to overrule it. Greatly to my surprise, when Judge Wisdom died, one of the things prominently mentioned in his obituary was that his views on that subject had been adopted by the U.S. Supreme Court in Steelworkers versus Weber.

The other reason that the question about big cases is interesting is there were cases that were very important that we didn’t think were important at all.

One was Califano versus Yamasaki. One of the issues there was whether a federal district judge had nationwide jurisdiction and could issue a nationwide injunction. In retrospect, that is a very important issue. Maybe ought to be revisited, but it turned out to be quite important.

The other story, about absolutely the most insignificant case of the term, concerned a tax case called National Muffler Dealers versus the United States.

The question was, “What deference does a court owe to a federal agency interpretation of its regulations?” It concerned whether the Midas muffler dealers could get a trade association tax break because they had a trade association that was just Midas muffler dealers and the government said no and the court agreed with the government.

The issue is now known as Chevron. National Muffler Dealers had these multi-factored tests that were taken from some prior cases, briefs and so forth and so on. I was greatly astonished 25 years later to be in a U.S. Supreme Court argument where Ted Olson was trying to get the court to apply National Muffler Dealers instead of Chevron.

The court decided Chevron was a better rule, although I suspect that is now being reconsidered by some. Here’s a lesson for your audience. There was a dissent in the case. It was the most insignificant case, I’m telling you. There was a dissent by Justice Stewart and I asked his clerk why he had dissented and she said, “The government listed all the applicable regulations in a footnote, but they left one out that was against them. Justice Stewart didn’t like that.” There’s a lesson in honesty and briefing.

I guess in opinion writing, too. I can only imagine what it was like in those times, in the later ’70s, to be part of that environment and everything that was going on around Washington. I want to ask you specifically. You mentioned the American Academy of Appellate Lawyers and you were the president of that organization. That’s something we haven’t talked about on our show. For the readers and for Jody and myself, too, tell us about that organization. How did you get to be president and what the organization brings to the table? What are its causes?

The organization has maybe 250 lawyers around the country. It is modeled on the American College of Trial Lawyers. The membership is by invitation. The organization tries to identify the lawyers who are the best Appellate Lawyers in each state. The standards vary a little bit from state to state because some states have an established appellate bar and some don’t.

Jody’s partner David Keltner is a member. Quite appropriately so. It started out in the early-1990s in Florida and it turned out to that they asked Judge Roney who should belong and he kindly recommended me as one of his former clerks. I went to a meeting and we used to meet with the ABA. That’s how you get people to come. I went to a meeting in Dallas where there were three people who showed up.

It was a mid-year ABA meeting and it was Derek, Tom G and me. I got involved early and was asked to be president pretty early on. The organization meets at least twice a year. It sponsors a prize called the Eisenberg Prize for the best appellate writing in the year. It obviously conducts programs for its members and serves as the basis for referrals. The website of the American Academy is a public resource and there is a directory that is public. If you want to know who you might recommend in a particular jurisdiction to work on an appeal, there it is.

That has to be a great resource.

Yes. Butler Snow used it with respect to appellate counsel in Pennsylvania and some of our product liability cases and has been very satisfied with the people retained.

Are there any other members of that organization whose names we might know that come to mind off the top of your head?

Roger Townsend, Kevin Dubose and Wallace Jefferson have all been very involved in the organization.

I don’t think those names surprise any of us. One of the reasons why I asked is I was trying to get at whether someone I know you know and a previous guest of ours, Reagan Simpson, happens to be a member of that organization. I do believe he is. There are definitely some good names on that list. All the ones you mentioned are certainly top-flight appellate lawyers.

Even though you were drafted by omission and the organization speaks well of you, I know frankly, from conversations I’ve had with Reagan since I came over to Butler Snow, one of the first things he said to me was, “Be sure and tell Luther I said hello.” That gives you some sense of how that network works because we’ve got lawyers across jurisdictions who get to know each other well.

He and I worked together on a case in Mississippi one time and then, I didn’t have anything to do with it, but a case I worked on for Phelps Dunbar went south in the Fifth Circuit, unfortunately, they sent it to the Texas Supreme Court to decide a state law issue and Reagan got them straightened out and the Texas Supreme Court got the result that was appropriate.

I want to get at your work on the advisory committee on appellate rules to the Judicial Conference of the United States. If I’m not mistaken, that’s the organization that literally advises the U.S. Supreme Court and federal courts on the federal rules, correct?

Yes. There are committees for each of the sets of rules, appellate evidence, criminal and so forth. Their work is reviewed by a standing committee and then any proposed change goes to the Judicial Conference in the U.S. Supreme Court for its consideration. One interesting thing about the U.S. Supreme Court is that it has no rules committee and it also has no way of communicating with the committees of the Judicial Conference.

You get from time to time some crazy things happening. For example, a long time ago, it was the case I believe Houston, where the court said it had to do with a prisoner mailing a legal document. The court made up this thing that had no basis in the rules. The rules committee had to come along and tinker with the rules to catch up with what the Supreme Court was doing.

The same thing happened with the timing for filing a notice of appeal in a case. At the time, I was on that committee and we were very much under the useful sway of Bryan Garner. We were restyling the rules and we were also trying to adjust to modern technology. The reason why I’m laughing about that is we were trying to figure out how long a brief ought to be.

It’s something near and dear to the hearts of all appellate lawyers. There has been some revisionist history. There were some who wanted to provide for a certain number of characters in a brief rather than words because different programs counted words differently. Finally, we settled on words and then there was a question as to how long it should be.

My distinct recollection is that we calculated that there were 300 words on a page of regular typewriting. With 50 pages that would be 15,000 words. We arbitrarily cut that down to 14,000 and away we went. By going to words, it meant you could use a type that was as big as you wanted, which was something the judges liked and everybody likes maybe.

Now you have computer screens and reading on iPads and everything. A few years ago, there was a debate about cutting the word limit down further and there are all sorts of claims about what had happened way back when. I think they did cut the length down a bit, but that is my recollection as to how we got to 14,000.

It’s interesting how different states do it because Texas has 15,000. You’ve got less in the federal system. The shortest I’ve ever dealt with was 10,000, which isn’t enough, and the longest there’s a state that has 31,000, which is far too long. It’s so much better than pages.

We had an American Academy program in Boston one time and a judge named Mike Boudin spoke to us. He’s the son of a famous Civil Rights Lawyer, Leonard Boudin. He had been Editor-in-Chief of the Harvard Law Review. He was a partner of Covington & Burling and some of our work there. He had a position at the Justice Department and then became a judge on the First Circuit.

He said something to us that stuck with me. He said, “Cases are a blur.” If cases are a blur to Mike Boudin, who is a very smart guy, what does that say for everybody else? What it says to us is you need to be as short and simple as you can be because you don’t have the attention that you might think you’re going to get.

I will say that I once did an exercise with Bryan Garner in the case for Chevron, where he brought in people that he had selected who had different points of view and did a five-minute read of the brief and a fifteen-minute read of the draft brief and so forth in order to try to replicate that judicial mindset might be and it proved to be very helpful. We reordered the issues in our case, eventually prevailed in the Mississippi Supreme Court. That’s something worth sharing.

judges sitting at table with clipboard
Appellate Practice: Your brief needs to be as short and simple as you can be because you just don’t have the attention that you might think you’re going to get.

This process with the rules advisory or the advisory committee – was it the later 1990s that you were directly involved in that?

It was in the 1990s. At the end of it, I wrote an article called “What to Think About When You Think There Ought to be a Rule.” I sent it to David Levy, who was in charge of one of the committees at that time. Now he’s the head of the ALI. He liked it so much that they posted it on the Judicial Conference website, where it stayed for a number of years. It’s not there now. They put their own advice up there, which is fine.

Recognizing the timeline, the federal rules were starting to contemplate word counts as opposed to page limits going back many years ago. We like to think here on our show that Texas is at the leading edge of a lot of things to do with the appellate practice, but we didn’t adopt word counts until around the time that we adopted electronic filings.

Something like that. Several years ago.

Since you’ve been practicing?

Yeah. I don’t remember the word count. I think electronic filing death plan. We adopted word counts since I’ve been practicing but I just can’t remember.

That’s my recollection. This is one instance in which the federal rules were literally on the edge. You were doing something that maybe had not been done before I will suspect, but now we don’t think twice about it. Almost everyone has a word count limit as opposed to a page limit for all the reasons you said. You don’t want people to manipulate fonts, margins or any of that thing. That had to be interesting work at that time.

It was.

Something else that we’ve talked a little bit about that I want to delve into a little deeper is the Mississippi Appellate Practice book. Is the book in its second or third edition? Tell us about how that got started. We’ve talked about practice guides here on the show a number of times. I would suspect that this is a very beneficial resource for lawyers practicing appellate law in Mississippi. I’d like to hear a little bit more about it, how it got started.

It was patterned on a book about the circuit practice done by two of Judge Roney’s former law clerks, George Robert and Larry Roth. It basically follows the appellate process and has a chapter on each part of the process. The way it came about was when I left Butler Snow after my original period here, I was teaching at Mississippi College School of Law and I got hired to rewrite the Mississippi Supreme Court Rules.

They were rules that every now and then, the court would think of something and adopt a rule and that was it. They wanted to pattern our rules on the federal rules. That’s what we did and we used the federal rules, some Alabama rules and traditional Mississippi rules and they paid me to be the reporter to do all that for the committee, which adopted the rules and Supreme Court approved them.

I then had in my possession all this research on each rule and that made it convenient for me to initially self-publish in 1987 a book called Mississippi Supreme Court Practice. I updated it every three years and would advertise the updates in the Mississippi Lawyer Bar magazine. Also, for a while, I had a cooperative Mississippi Supreme Court clerk who would give me copies of notices of appeal. I would send a brochure to people who filed notices of appeal or who were on the receiving end of a notice of appeal. It was a self-published book. It actually made me some nice change, especially for a law professor at the beginning.

I kept it going through 2010. I think it helped people. A lot of people said it helped them. The Mississippi Supreme Court doesn’t cite much of anything in the way of secondary authority. They don’t cite the Mississippi Law Journal. I can’t say that it’s found in a lot of Supreme Court opinions, but I have had a lot of people say that they benefited from the use of the book and have enjoyed it. Whenever anybody would call me up and ask me, I can say, “Do you have the book?” “I don’t know. I’ll buy it. Just tell me the answer.”

The economics, unfortunately, went away. People have quit buying a lot of books. It’s my belief and experience. I didn’t redo it after 2010, but Butler Snow decided it was worth bringing back. Butler Snow has gotten a group of people together to redo it. I think it’s a very useful book and it would be useful even if you weren’t in Mississippi because I did something I thought was clever. I’ve added West key numbers to the citations. In other words, my citation form would be Smith versus Jones, S. 2d page 55, contracts and key numbers. If you want to use it for research, you’ve got the key number there, assuming you know what a key number is.

It’s patterned on the federal rules, does cite federal authority and does have these key numbers. I think it could be of use outside of the state. It has been reissued. It is now available for $200 for both the print and electronic edition or $150 for the electronic edition from the Mississippi Law Institute Press, which is run by Mississippi College in Jackson. Online it’s Law.MC.Edu/Alumni/MLI-Press or the phone number is (601) 925-7104.

I was thumbing through it because I have the benefit of having a copy here in our library, such as our library is anymore in a law firm. I’ve looked through it and it looks like a great resource. You mentioned the keynote sites. I also see, you specifically refer to headnotes, which is very helpful if someone has access to the case too. They know exactly where to go.

It’s better than a pinpoint site or a jump site to refer me specifically to the headnote on one of these points. I’m sure that it was a big job to start it off and I’m glad you were able to capitalize on it some and make some changes to it, as you said. Your point about legal publishing is well-taken. There are a handful of reference books that do well in print anymore, especially with the way that Thomson Reuters has gone and taken over the O’Connor’s Systems here in Texas. It’s been interesting to watch how the industry has changed. We’re happy to mention the book. It looks like a great resource and thanks for talking to us about it and for telling folks how to get it.

Is the Mississippi Supreme Court like Oklahoma, where it takes the initial look at all the cases and then decides what’s appropriate to send to the Court of Appeals?

It is a deflective system. There are certain types of cases, for example, workers’ compensation, which automatically gets sent to the Court of Appeals. The Supreme Court has rules for what it’s supposed to keep. You can express your views about that in your brief, but you can’t move to re-hear if they make a decision you don’t like. For example, constitutional question of first impression. A question of first impression is interesting because obviously, one side will say its first impression and on the other side, “Oh no. It’s settled authority.”

These principles clearly emanate from this previous line of authority. You’ve had a long and storied career as an appellate lawyer. You’ve seen a lot of things happen from your time. Going back to your law school days, in your clerkships and to the present day, what would you say are the biggest changes in appellate practice that have taken place over the course of your career?

The one thing is that the numbers have gotten a lot larger. Courts don’t have any way to figure out what non-economic damages ought to be or at least they’re not happy with the old ways. The numbers have gotten bigger. Another significant change is the nationalization of law practice. When I started, nobody would have a significant case in the Mississippi Supreme Court without having a Mississippi lawyer argue it.

New York firms don’t think twice about sending a lawyer to Mississippi to do an appeal. That’s also true in the Fifth Circuit. I think that there’s much more of a national law practice now than there was when we started. Butler Snow has a national product liability practice for several pharma clients. We’re on both sides of that equation.

Those are the two things. There are also some technological changes. I’ve had a Fifth Circuit argument where one of the judges participated by telephone. It didn’t change the outcome of the case in any way, but I have this whole philosophy I’ve developed about the purpose of litigation, which I believe is to resolve disputes as peacefully as possible.

One of the principles of that is not only the court’s respect for the parties and the public but the public and parties’ respect for the courts. I think that having in-person oral arguments plays an important role in supporting public and party support for the courts and they ought to keep doing it. Lord knows whether with Zoom that will go away. That’s certainly a significant change. I forgot. Here’s a story. Technology.

I’m working for Paul Roney in the Fifth Circuit in St. Petersburg, Florida. I had started to date the woman who’s now my wife, who was a law student at Tulane. Judge Roney liked her. He approved. Judge Roney was on the oil and gas panel in the Fifth Circuit and there was a case where they got together in New Orleans involving the Alaska oil pipeline that was, something was going to happen soon and somebody who was going to have to pay $1 billion, one of those things. It was obviously going to the U.S. Supreme Court. Judge Roney decided to dissent. I don’t know. Maybe they had an argument on Monday when we were back in Florida. He was back in Florida on Wednesday and he says, “Luther, I need to get dissent to the Fifth Circuit clerk’s office in New Orleans. I can’t send it by Western Union. It’s public.”

It’s a private opinion. There was no FedEx, fax and internet. This is 1977. He says, “I want you to take this opinion, get on the plane, fly to New Orleans and deliver it to the clerk’s office if you promise me, you’ll work in my office there on Friday.” Obviously, knowing that I had a strong incentive to go to New Orleans to see my girlfriend. I did and that’s something that would never happen now. Judge Roney was very tight with the government’s money. He had the most modest chambers you can imagine, but that’s one instance in which he departed from his usual principles to my benefit.

As far as your point about the nationalization of practices is good, but I would imagine that you probably have seen some changes in the overall approach to legal writing over the course of your career. I wanted to ask you about that and about what resources do you find helpful when it comes to books on legal writing?

Appellate Practice: You can never be very confident when you pat yourself on the back that you’re doing the right thing.

The one thing that I have pushed is using every part of a brief to say something that’s relevant to your point. I wrote an article about that in the Fifth Circuit Reporter many years ago. For example, the statement regarding oral argument, you don’t just say, “I’d like to have an argument and if you give it, I’ll show up.” I had a case where my statement regarding oral argument was the issue here had been decided authoritatively in two decisions of this court. We didn’t know any argument and that’s about what the opinion said when it came out.

Armstrong and Terrell had this book called Thinking Like a Writer, which I believe is wonderful. I have, even at my own expense, bought copies for new associates at the law firm here in Ridgeland. It has four rules for what you’re going to do. One is no surprises. Another one is to break things down. Another one is that form should follow content. In other words, every idea has its own paragraph. Don’t have a long paragraph with six different ideas and that has helped me. I was not happy when I went into one associate’s office six months later and saw it was still on her desk with the plastic all over it. It had never been opened, but she and I are friends.

We always like to wrap up at the end with a war story and I know that Todd previewed that idea for you. Do you have one you’d like to share with us here as we’re closing out?

I have one, but first I want to give a mini-story, which is if David Keltner is on the other side give up. I had a case where maybe 4 or 5 points in the appeal and he got up and said, “I’m only going to argue one point.” He picked his best point and he won on it. The interesting thing that I was confronted with on the other side was, “Do I talk about these other points? If I talk about these other points, he then has an opportunity to reply. I don’t know what he’s going to say.” David Keltner is an excellent lawyer from experience.

The story I want to tell has to do with the case of Fourth Davis Island versus Parker in the Mississippi Supreme Court. The island is in the Mississippi River and the family had divided it up into two parts. One part closest to the river had been sold to a hunting club of some high rolling businessmen in Louisiana. The other part closest to the shore belonged to our clients, who were individuals. There was a power line across the island, to the hunting camp, but in the deeds of division, there was no provision for the power line. The question was, “Could you have an implied easement or a power line across an island in the Mississippi River to serve a hunting camp?”

The eventual answer was no. Hunting camps operated on generators all over Mississippi and so there was no necessity. As part of our brief, I had a paralegal draw a map of the island. A big map was in the record, but not what I put in the brief, but I said, “Illustration by the counsel, here it is.” When the opinion came out, it attached the map of the island and even added a few things.

We play the course as I indicated. I don’t know, 1 or 2 years later, I’m giving a talk on appellate advocacy in Mississippi and I point this out to pat myself on the back as an example of doing something creative and a good briefing. What I didn’t count on was one of the judges on the court was a guy named Mike Solomon, who was a personal friend and something of a joker.

He came up to me after my talk and he said, “Luther, you wrote a good brief, but those people never would let my daddy hunt on their land.” Mike is now deceased. To this day, I don’t know whether that was true or he was trying to bring me down a notch. It does go to the point that you can never be very confident when you pat yourself on the back that you’re doing the right thing.

I like that story a lot and that’s a great place for us to wrap up. Thank you so much for spending this time with us. I could listen to you tell stories like that for a lot longer than we have available to us. Thanks for spending the time with us. We appreciate you getting on and telling us about yourself, the book and there are so many interesting stories to hear. We appreciate it.

Thank you very much for inviting me.

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About Luther Munford

Munford serves in an of counsel role in Butler Snow’s appellate and written advocacy group, and concentrates his practice on appellate matters, media law, constitutional law, professional liability and product liability defense.

Munford is member of the American Bar Association and the Mississippi Bar, and is a past president of the American Academy of Appellate Lawyers. He received his undergraduate degrees from Princeton University and Oxford University and his Juris Doctor from the University of Virginia School of Law.

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