Appellate Advocacy Blog

Editor: Tessa L. Dysart
The University of Arizona
James E. Rogers College of Law

Friday, November 17, 2017

Appellate Advocacy Blog Weekly Roundup November 17, 2017

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Each week, the Appellate Advocacy Blog Weekly Roundup presents a few tidbits of news and Twitter posts from the past week concerning appellate advocacy. As always, if you see something during the week that you think we should be sure to include, feel free to send Dan a quick email atDReal@Creighton.edu or a message on Twitter (@Daniel_L_Real).

Supreme Court Opinions and News:

Last week, Justice Elena Kagan recused herself from an immigration case that had been argued -- and in which she participated in the arguments -- back in October, after her chambers identified a conflict of interest that had not been flagged prior to the argument.  "Late" identification of conflicts and recusals after Justices have already participated in the case have now happened on several occasions over the past couple of years.  The story is HERE.

In the Masterpiece Cakeshop v. Colorado Civil Rights Commission case, all eyes are on Justice Kennedy and his vote, as he's expected to be the deciding factor.  Advocates are focused on how to win that vote.  More HERE.

Federal Appellate Court Opinions and News:

#AppellateTwitter member Justice Don Willett from the Texas Supreme Court and former state Solicitor General James Ho appeared before the Senate Judiciary Committee as part of the confirmation process for their nominations to the 5th U.S. Circuit Court of Appeals.  The Dallas News has more HERE.

Appellate Practice Tips and Tools:

SCOTUSblog this week had a post discussing mootness and what happens when a case becomes moot while it is pending review by a higher appellate court. 

Slate had an article this week discussing and providing a link to a copy of the demand letter sent by Roy Moore’s attorney to the media demanding a retraction and apology -- the letter went viral as an example of really poor legal writing, editing, and proofreading.  

Appellate Job Postings:

Hiring Announcement:  Law Clerk for Justice David E Nahmias, Supreme Court of Georgia. Job posting HERE.

 

 

 

November 17, 2017 | Permalink | Comments (0)

Thursday, November 16, 2017

Should Judges Tweet?

This week the Senate held confirmation hearings on two nominees to the U.S. Court of Appeals for the Fifth Circuit, Justice Don Willett, a judge on the Texas Supreme Court, and James Ho, a private attorney. Ho fielded few questions compared to Willett's questioning, most likely due to Willett's more high profile media presence - he is known as the Tweeter Laureate of Texas. While Willett exhibits a lighthearted style and does not specifically make political tweets in his twitter feed, his social media presence does raise questions of how the public should view the judiciary. There are several pros and cons to the issue of judges having a social media presence, likely with the general public and the lawyer community having some different ideas.

Don-Willett-Article-201609221145

The benefits to judges having a social media presence is certainly to make the judicial system less mysterious and to promote civic awareness of how government works. It would make the system less intimidating, since people would be able to see that judges are human. It would allow lawyers to get a feel for the personality of a judge before whom they may appear or to whom they may submit a brief. Understanding your audience as a lawyer is an important skill to persuading your listener.

On the other hand, judges having a social media presence may undermine the respect we want people to have for the judicial system. Judges inhabit power positions, and if they are seen as mixing it up on Twitter or other social platforms, it could bring disrespect to the judiciary and reflect on all judges. Perhaps some of the mystery of the courts is necessary to maintain the dignity of the courts. If judges stray from nonpolitical discourse, this could also be quite damaging to the fair and impartial image we expect from the judiciary. 

It's not just Justice Willett, many judges are on social media (and now even courts!), so reversing this trend is unlikely. (Tessa wrote here about getting Justice Willett back on Twitter since he went on hiatus once his nomination was released - he got his own hashtag #FreeWillet). But Justice Willett does provide some guidelines for how to approach social media as a judge. In an interview last year with Texas Lawyer he said this:

Texas Lawyer: As the unofficial “Tweeter Laureate of Texas,” you’ve become one of the most public members of the state judiciary. At 22,500 tweets and counting, the world knows a lot about your sense of humor, family life, sports team allegiances and political leanings. You’ve provided a rare look into the life of a judge. But by revealing so much about yourself, do you think you’ve compromised a judge’s mandate to appear neutral in all matters that may come before the court?

Justice Don Willett: A 2013 ethics opinion from the American Bar Association gives judges a thumbs-up to engage voters via social media, calling it “a valuable tool for public outreach,” but urging caution, as with anything, judges must always be judicious, whether crafting a 140-footnote opinion or a 140-character tweet. I diligently self-censor and aim for carefulness. A few cardinal rules: No discussing cases that could appear before me, and no partisan bomb-throwing. I try to keep things witty and light, regaling people with my random musings on sports, culture, parenthood, law, stuff like that. Judges on social media must be juris-prudent, always honoring our distinctive constitutional role. I take my job seriously, if not myself. The law is a majestic thing, and when citizens confer the title “Justice” on someone, they place in human hands that profound majesty.

In his confirmation hearings this week, Willett was asked whether he would give up tweeting should he be confirmed. He acknowledged that his wife would like him to stop, but that he would take it under advisement. 

Sen. John Cornyn, R-Texas, asked if Willett would keep tweeting if confirmed.

“The short answer is, I don’t know if I’ll continue tweeting,” Willett said. “I haven’t thought a lot about it, but if I do, certainly the frequency and the content would change.”

Willett said if he did tweet as a Fifth Circuit judge, he would focus on “civic education” and improving “our collective national civics IQ.”

Later, Sen. John Kennedy, R-Louisiana, asked the same question, and Willett gave a similar answer. But Kennedy expressed concern and asked that Willett consider not tweeting if confirmed. Willett promised the senator that if he did tweet, he would “post nothing that could be remotely construed as political.”

“Don’t you think the wiser course would be to just not do it?” Kennedy said. Willett said his wife agreed, and that he would think about it and get back to the senator.

It is not known when Justice Willett's nomination will be voted on, but it will be interesting to watch his reaction on Twitter! 

November 16, 2017 in Federal Appeals Courts, Humor | Permalink | Comments (0)

Monday, November 13, 2017

Arguing a Difficult Case Effectively

This is a guest post from Judd Lindenfeld.  Judd is a litigation and white-collar associate at Wiggin and Dana LLP, a Connecticut law firm.

Three weeks ago, Howard Bashman created a bit of a stir among people who follow appellate law when he posted on his blog, How Appealing, that he would be arguing a sentencing appeal in the Second Circuit. Over the last fifteen years he has been posting, Bashman has become famous to a good many lawyers and judges alike.  Indeed, Bashman posted after oral argument that he was greeted afterwards by a person in the audience who brought his mother too.

But what lessons can we learn from a lawyer who has dedicated his career to appellate argument?

First, the facts of the case.  Bashman was representing Rudell Mullings, a former federal correctional officer who raped a female inmate.  The woman told a fellow inmate and later contacted a special agent with the Bureau of Alcohol, Tobacco and Firearms (for whom she was an informant).  DNA lab results later confirmed that there was ejaculate on Doe’s sock and underwear that matched Mullings’s DNA.

In November 2015, Mullings pled guilty to sexual abuse of a ward, a federal crime that carries a maximum sentence of fifteen years’ incarceration.  According to the Presentence Investigation Report, however, Mullings faced a sentencing range of 12 to 18 months.

Senior U.S. District Judge Edward Korman sentenced Mullings to 84 months.  In giving a sentence over four times the maximum range (and seven times the lower range), the Court stated that the guidelines did not “really reflect the nature of the crime.”

Judge Korman twice referred to New York state law.  For example, at the end of his sentence he stated that “the sentence I gave him is actually above the minimum for rape in New York which is five years, but I think is appropriate under the circumstances.”

Bashman’s argument on appeal was that the district court erred by relying on state law and the case should be remanded for a new sentencing proceeding.

But to get to that conclusion, Bashman conceded that he had three hurdles to overcome.  First, he had to convince the Second Circuit that it was impermissible for a district court to rely on state law.  Second, that the district judge actually relied on state law.  Third, that the standard of review was harmful error, not plain error.

This was an uphill climb – to put it mildly.

Bashman’s strongest argument was that federal law should be uniform – a federal crime committed in New York should receive the same sentence as the same crime committed in Michigan or California. Indeed, this is a well-accepted proposition in a number of other circuits.

Bashman asked the Second Circuit “to go further than it has gone thus far” and agree with those courts. The irony of his argument (which he pointed out) is that it is the defendant who typically asks the judge to consider state law during sentencing, especially in drug and firearm possession cases. When asked if his position was fair to future defendants, Bashman quipped: “Well Your Honor, I’m only a lawyer for this particular person.” The discussion ended there. (He argued later that his position would actually benefit future defendants).

Bashman freely conceded the weaker points of his argument. For example, he acknowledged that one of Judge Korman’s references to state law was by itself innocuous. He also agreed that his argument would be stronger if Judge Korman had referred to state law in his written explanation for the sentence. The effect of these concessions? It lent credibility to the point that he held firm on: that Judge Korman’s statements, taken together, proved that he relied on state law when sentencing Mr. Mullings.

Finally, Bashman made (in the words of one panelist) a “cleverly, very narrow” argument for harmless error review. He conceded that his client’s trial counsel did not raise the issue of state law at sentencing, but argued that Judge Korman’s reliance on state law was so unusual that the defendant should have been notified before the hearing.

Bashman's argument in this case provides us with an example of an effective oral argument. Whether his client prevails or not, Bashman made a persuasive argument, using the facts and the law in creative—but not unreasonable—ways. On a personal note, I look forward to reading the opinion.

November 13, 2017 | Permalink | Comments (0)

Sunday, November 12, 2017

Leveraging Technology as a Legal Writer

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Technology is not the enemy...

We lawyers and law students are trained to think in the past. We are taught that the law changes slowly, that we should stick to precedent, and that stare decisis is king. But living in the past comes at a cost: we are often the last ones to pick up on new ways of doing things. Technology is no exception. Others have documented how bad lawyers are at adopting new technologies, despite the obvious payoffs.

And that is a travesty. Many of us are scared about how new technologies will change what it means to practice law (or, perhaps, redefine it all together). But that’s the wrong way to look it. This is an opportunity for lawyers to redefine our profession in exciting ways. It’s an opportunity to explore how our unique skills can add value for our clients (and society). Do these changes bring challenges? Absolutely. But make no mistake: these changes also bring possibilities.

Ultimately, the key to leveraging technology as a lawyer—and to avoid being steamrolled by the tech revolution we are in—is to regularly spend time exploring new products and innovations as they come out and embracing new ways of thinking when it comes to how you practice law.  To start you on that path, we’ve interviewed some of the most tech-savy firms and lawyers out there to bring you a list of eight simple ways to start leveraging technology today.

Macro-fy common tasks to save time in Microsoft Word

Creating macros is one of the simplest ways to leverage technology as a lawyer, but also one of the most feared. Lawyers suspect that creating macros requires a computer-science degree. But not so. You can create macros in moments.

The simplest way is using Word’s macro-record feature, with just three easy steps: (1) click on the record macro button (under the View tab) (2) type or carry out a task that you frequently do (like writing out a boilerplate legal standard) (3) stop the recording and save it to a trigger (such as a button or keystroke)—you’ve created a macro without any coding whatsoever. You can now place the macro on your Word toolbar, or trigger it using the keyboard stroke that you setup. Here is a detailed walkthrough if you need more help.

Once you have harnessed the power of the macro, the possibilities are endless:

  1. Create a procedural standard that auto-populates whenever you click a button on your Word toolbar (or whenever you press Cntrl-P-S, for example);
  2. create a macro to populate a table of contents or table of authorities just like you like it;
  3. create a macro shortcut for commonly-used legal phrases (such as precedent, binding authority, Ninth Circuit, district court)
  4. use a macro to create nicely-formatted block quotes or inserted images;
  5. create a macro for your legal citations—one keystroke can populate everything but the case name (for example, Cntrl-9 to create a blank Ninth Circuit citation);
  6. setup editing macros (for example, create macros for different sorts of feedback you commonly give others so that you can add the comment with a button or keystroke);
  7. anything else you can think of—I add new macros to my arsenal every week.

There are also a few built-in key strokes in Word that operate as helpful macros.

  1. CTRL + Spacebar: Remove all character formatting (font, bold, size, italics, etc.) from your selected text. This saves lots of time by allowing you to remove whatever is bothering you without having to select each element of your text.
  2. CTRL + Q: Remove all direct paragraph formatting. We all hate spacing or formatting problems, this key will remove everything troubling you at once.
  3. ALT + Shift + Up/Down Arrows: Move a paragraph or table row. Click in a paragraph or select more than one and hold down Alt + Shift while pressing the up or down arrows. Your entire paragraph moves! This is helpful in legal documents where you want to change up your arguments’ order.
  4. Shift + F5: Return to the last edit points. If you edited text and then moved to another place within your document, Shift + F5 will move your cursor back to your previous edit. This is helpful in all documents, and it is especially helpful in legal documents when you rethink an edit.
  5. CTRL + G: Navigate to a specific part of your document. This is a lifesaver when you need to navigate in large documents.

The mysteries of Microsoft Word’s Style feature 

I constantly talk to lawyers or law students who are about ready to delete Microsoft Word from their computers. The most common problem I hear is that Word is changing their formatting. This is a feature, not a mistake. Word's formatting uses what are called “styles” to auto-format your text; you can find this option on Word’s main menu bar. 

Create an infinite number of styles for all the sorts of legal writing that you do. Instead of manually creating headings in bold, indented etc., create a style for headings and apply it to the text you want to format. For example, if you are having issues with footnote text, check out the Footnote Text style. If you use nothing else in Word’s advanced features, use styles. Here is a link to a tutorial if you are ready to take the plunge.

Don’t reinvent the wheel: create Word templates

You can create templates for all of the legal documents you commonly create—briefs, memos, letters, etc. The default Word template is the “blank” template, with no text on it and basic formatting, but you can easily save a template with your custom styles and pre-populated text (like a caption page) to save time. Here is a link to a more thorough guide if you are interested.

You now have your own personal assistant robot: meet ActiveWords

This simple program turns takes your words and puts them into action. Think of it like setting up macros, but for your entire computer. ActiveWords creates a box for you type commands into on your desktop. Type in “motion for summary judgment” and ActiveWords can open Microsoft Word, pull up your templates, and bring up your summary judgment template.

If you invest some time into this program setting up commands, you will shave hours off your work week. Create a command to enter your signature block whenever you type “sig”; create a command to open Pacer, navigate to a case, and pull open the docket; or create commands to open any other file, folder, webpage, or application. In other words, anything you can do, ActiveWords can do. And now ActiveWords can sync across all of your devices.

Evernote to success

Evernote has been around for a while, but this app just keeps getting better for lawyers. Evernote allows you to easily take notes and store pictures or any other text (such as that brief you are working on) so that you can easily access and edit it from anywhere. For example, the Scannable app uses your device’s camera to capture something on paper and turn it into a high-quality, sharable scan.

Legal research 2.0: Bestlaw

Bestlaw is an extension that automatically adds features to your browser to streamline legal research on Westlaw and Lexis. You have to try it to believe it. Bestlaw reformats how legal research is displayed to you so that the information is more intuitive. For example, statutory text is automatically parsed out into clickable units, and those pesky page numbers in cases are highlighted in Westlaw so that you can easily spot them in the text. Users can also copy Bluebook citations, titles, docket numbers, and full text with one click, jump between footnotes and the main text, and much more.

Cleaning up your writing: Hemingway App, PerfectIt, Grammarly, and Writer’s Diet

Linguists have long struggled to create effective grammar-checking technology, but we are finally at the point where these programs can make a big difference to your writing.  Grammarly is probably the most advanced writing technology out there; it will check your writing for the basics (such as passive voice)—but it can also spot sophisticated grammar issues.  PerfectIt is another advanced plugin that comes loaded with styles specifically for lawyers: including legal terms from Blacks Law Dictionary, the Bluebook, and the Red BookHemingway App and Writer’s Diet are free programs that will check your writing for passive voice, adverbs, adjectives, and several other writing red flags. I commonly use all of these programs with my students, and they get results.

For the most adventurous: CARA, Ravel, and more

It’s an exciting time to be a lawyer. New legal tech comes out every day, and if you take the time and effort to embrace these new tools—the rewards will be worth it. For example,  CARA, by Casetext, is an artificial intelligence program that will analyze your brief or other legal document and do legal research for you. Pretty amazing stuff. Ravel offers a suite of advanced legal research tools, including data you can’t find anywhere else (such as statistics about judges and what kinds of decisions they make). And there are dozens of other exciting new legal technology products out there.

 

Joe Regalia is an adjunct professor of law at Loyola University School of Law, Chicago and an attorney at the firm of Sidley Austin, LLP. Jory Hoffman is an attorney at the firm of Jenner & Block, LLP. The views we express here are solely our own and are not intended to be legal advice. 

November 12, 2017 | Permalink | Comments (0)

Friday, November 10, 2017

Appellate Advocacy Blog Weekly Roundup November 10, 2017

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Each week, the Appellate Advocacy Blog Weekly Roundup presents a few tidbits of news and Twitter posts from the past week concerning appellate advocacy. As always, if you see something during the week that you think we should be sure to include, feel free to send Dan a quick email at DReal@Creighton.edu or a message on Twitter (@Daniel_L_Real).

 

Supreme Court Opinions and News:

On Monday, November 6, 2017, in a unanimous opinion, the United States Supreme Court upheld the death sentence of a man who cannot remember  his crime. The New York Times has this article

 

On Wednesday, November 8, 2017, Justice Ruth Bader Ginsburg issued a unanimous opinion in Hamer v. Neighborhood Housing Services of Chicago. The oral argument in Hamer can be heard HERE. The Associate Press reports that Justice Ginsburg has dubbed herself "Rapid Ruth" for her opinion writing speed. 

 

Is a wedding cake protected speech under the First Amendment? While the Supreme Court will hear arguments on that question in December, prominent First Amendment lawyers are split on the issue. The New York Times has this report

 

Practice Tips:

In this video, U.S. Circuit Court Judge Alex Kozinski has this advice on using quotes in legal writing. 

 

General Interest:

Former President Barack Obama caused quite a stir at the Daley Center Courthouse this week as he reported for jury duty. The ABA Journal reports that he was not selected as a juror. 

 

This week, the St. John's School of Law announced that it will begin accepting the GRE in lieu of the LSAT. Above the Law has this report

November 10, 2017 | Permalink | Comments (0)

Thursday, November 9, 2017

Thinking Thursday: When metaphors harm

In a recently released Maryland Law Review article entitled Do Muddy Waters Shift Burdens?, Professors Carrie Sperling and Kimberly Holst walk readers through the history of what was supposed to be one of the country’s most progressive laws allowing post-conviction DNA testing for inmates whose cases did not originally involved that type of evidence. Article 64.03 in the Texas Code of Criminal Procedure created a uniform process for inmates to petition courts for testing, asking inmates to show, “a reasonable probability that he or she would not have been prosecuted or convicted if DNA testing had provided exculpatory results.”Criminal attorneys will recognize the “reasonable probability” test as a well-established standard that courts interpret as a probability that sufficiently undermines confidence in the case’s result.

Nevertheless, Texas courts have latched onto a metaphor introduced by the Texas Court of Criminal appeals a few years after the statute was enacted. That court first found ambiguity in the standard despite its years of interpretation in other contexts. Instead, that court held, the standard must be interpreted to require inmates to show, with reasonable probability, that the DNA testing would prove a convicted person’s innocence. The defendant in the case did not meet that burden, but showed only that DNA testing would “merely muddy the waters.” Despite the Texas Legislature returning to the statute to clarify its intent, Professors Sperling and Holst found that courts continue to use the metaphor as a statement of the governing rule of law.

Metaphors be with you
Doctrinal metaphors abound in our case precedents. The most famous are found in evidentiary analysis, “fruit of the poisonous tree,” and in civil procedure, “long-arm” statutes. Many doctrinal metaphors are extremely useful in helping frame our thinking about more abstract principles. But, in the situation spotlighted by these two professors, a doctrinal metaphor might be harmful or even a misstatement of the law. What should a lawyer do in that situation?

The answer lies in part in a separate article, this one published by the Mercer Law Review and republished in a monograph, written by Professor Michael Smith, Levels of Metaphor in Persuasive Writing. In that article, Professor Smith advises attorneys to challenge the metaphor directly, a strategy he calls the Cardozo Attack. Justice (then Judge) Cardozo warned other jurists that creative metaphors involved with corporate law, “piercing the corporate veil,”  should be used only very carefully and not to the exclusion of more accurate, albeit literal, language. Professor Smith’s article details two examples of successful attacks on doctrinal metaphors.

Both articles spend some time explaining the cognition of metaphor use, which is reason enough to read these two pieces. Beyond that, the articles offer an important lesson for appellate attorneys. First, we must be aware of the notion that metaphoric language is just that: a comparison of two seemingly incongruent things to help readers form connections. By themselves, doctrinal metaphors do not necessarily form the backbone of substantive law. Second, we should spend time in our lawyering process unpacking these metaphors in the event that they conflict with the actual and governing tests. In the event they do, it is incumbent upon us, as part of our client representation, to address the metaphor itself as part of a persuasive argument chain.

November 9, 2017 in Appellate Advocacy, Appellate Justice, Appellate Practice, Federal Appeals Courts, Law School, Legal Profession, Legal Writing, Moot Court | Permalink | Comments (0)

Wednesday, November 8, 2017

Bridging the Gap between Man and Dog

On October 27, 2017, Justice Scott Crichton of the Louisiana Supreme Court took an unusual step and penned a concurring opinion in State v. Demesme.  Why do I say this is unusual?  Well, the concurring opinion was to the denial of a petition for certiorari, for which the Court ordinarily provides no reasons. In the ordinary course of business, one would not know why the Court denied the petition for certiorari, and, frankly, we still do not know why the Court denied the petition.  We would not know Justice Crichton’s reasons if he had not told us what they were in that concurring opinion.  And, that opinion has since “gone viral.”

So what happened? According to the concurring opinion, the Warren Demesme agreed, twice, to being interviewed.  At the beginning of both interviews, the Demesme waived his rights pursuant to Miranda v. Arizona, 384 U.S. 436 (1966).  At some point during the second interview, however, the defendant became overwhelmed, or frustrated, with the way the interview was proceeding.  He told the police, “if y’all, this is how I feel, if y’all think I did it, I know that I didn’t do it so why don’t you just give me a lawyer dog cause this is not what’s up.” __ So. 3d __, 2017-0954 (La. 10/27/17). 

In his concurrence, Justice Crichton cited Davis v. United States, 512 U.S. 452, 462 (1994), and noted that the United States Supreme Court requires attorney requests to be unambiguous.  Justice Crichton then stated, “In my view, the defendant’s ambiguous and equivocal reference to “lawyer dog” does not constitute an invocation of counsel….” __ So. 3d __, 2017-0954.

Orin Kerr, the Fred C. Stevenson Research Professor at GW Law School, weighed in on November 3rd, providing a defense for Justice Crichton, so long as we remove the reference to a “lawyer dog” from the concurring opinion. I cannot agree with Kerr in his assessment, as a court speaks through its written word, which in Justice Crichton’s concurring opinion was not ambiguous. 

And this point highlights my concerns with this case:   After all, unlike Warren Demesme, who likely did not take time to consider how best to punctuate his request, or who likely did not have the opportunity to consider which cases upon which he would rely to properly frame his request for a lawyer, Justice Crichton likely had days to consider whether to write a concurrence, and then had time to carefully frame how he would articulate his reasons.  After careful consideration, away from the pressure of impending criminal charges, and seemingly relentless and repetitive questioning, Justice Crichton specifically quoted the term “lawyer dog” and stated that this phrase was not an unambiguous invocation of counsel.

On the other hand, in his discussion, Kerr does raise a good point. Taking the reference to dog out of the mix, is the sentence containing the “lawyer dog” reference sufficiently clear to make a reasonable police officer aware that one would like to invoke his right to counsel.  After all, that sentence, taken out of context and transcribed onto paper, looks a hot mess.  Kerr points out that Demesme’s sentence could be inferred as a conditional request for counsel, as an attempt to convince his interviewers that they are wrong, and as a polite question.  All of these seem plausible once you reduce Demesme’s request to an inflectionless, punctuation devoid, black and white transcript that reflects none of the personalities, relationships, backgrounds, or experiences that were in that room.

I am certain that, during the interview, there was an understanding that Demesme was referencing the officer to whom he was speaking when he used the term “dog.” I am also certain that the officer, who had hopefully received training on the constitutional parameters and restrictions surrounding interrogations, probably understood that (1) Demesme was asking for an attorney and (2) Demesme likely did not know that his request could theoretically be construed as ambiguous.

Whether it is a lack of judicial understanding of the vernacular use of the word “dog,” or a defendant’s lack of understanding that the time for being polite is NOT when you are asking for an attorney, this case presents a learning opportunity for appellate attorneys. We must take the time to look beyond our own life experiences, beyond a transcripts’ emotionless appeal, and beyond an opinion’s seemingly simple answer to a complex legal issue, and figure out what has really happened and how to make the court see it.  To do that we need to see what our cases actually look like, we need to understand what is actually happening out there, we need to keep up with the world’s constantly evolving language, and we need to make certain our advocacy helps fill the gaps.

November 8, 2017 | Permalink | Comments (0)

Friday, November 3, 2017

Appellate Advocacy Blog Weekly Roundup November 3, 2017

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Each week, the Appellate Advocacy Blog Weekly Roundup presents a few tidbits of news and Twitter posts from the past week concerning appellate advocacy. As always, if you see something during the week that you think we should be sure to include, feel free to send Dan a quick email atDReal@Creighton.edu or a message on Twitter (@Daniel_L_Real).

 

Supreme Court Opinions and News:

National Law Journal 2017 Appellate Hot List – special report featuring lawyers and firms that posted notable wins at the U.S. Supreme Court or in federal circuit courts this year --   https://www.law.com/nationallawjournal/sites/nationallawjournal/2017/10/30/the-2017-appellate-hot-list/?slreturn=20170930112534

SCOTUSblog post discussing the meaning of state appellate court decisions that “summarily” affirm lower court decisions without an opinion – are those endorsements of the lower court, are something else?  The discussion is in the context of reviewing the Supreme Court’s arguments this week in Wilson v. Sellershttp://www.scotusblog.com/2017/10/argument-analysis-quixotic-search-general-meaning-state-court-summary-affirmances/  + http://www.scotusblog.com/case-files/cases/wilson-v-sellers/

Federal Appellate Court Opinions and News:

National Law Journal 2017 Appellate Hot List – special report featuring lawyers and firms that posted notable wins at the U.S. Supreme Court or in federal circuit courts this year --   https://www.law.com/nationallawjournal/sites/nationallawjournal/2017/10/30/the-2017-appellate-hot-list/?slreturn=20170930112534

State Appellate Court Opinions and News:

SCOTUSblog post discussing the meaning of state appellate court decisions that “summarily” affirm lower court decisions without an opinion – are those endorsements of the lower court, are something else?  The discussion is in the context of reviewing the Supreme Court’s arguments this week in Wilson v. Sellershttp://www.scotusblog.com/2017/10/argument-analysis-quixotic-search-general-meaning-state-court-summary-affirmances/  + http://www.scotusblog.com/case-files/cases/wilson-v-sellers/

 

Appellate Job Postings:

From Justice Rhonda Wood, Justice of the Arkansas Supreme Court (@JudgeRhondaWood) – Posting for law clerk opening:    https://twitter.com/JudgeRhondaWood/status/924801618754834434

November 3, 2017 | Permalink | Comments (0)

Thursday, November 2, 2017

The 2017 Appellate Hot List

Contrary to the enticing moniker, The Appellate Hot List is not a beauty contest! It is an annual round-up of the top law firms who have won significant victories at the Supreme Court or in the federal circuit courts. This year's Hot List naturally includes some repeat offenders, because clearly, once the word gets out that a firm wins in the highest court, more clients will come calling. The National Law Journal did quick summaries of the cases involved, and some of the more prominent attorneys were asked to give advice to their younger selves.

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With an eye towards educating my students, the advice portion is the most interesting:

William Jay of Goodwin Proctor won Star Athletica v. Varsity Brands, a copyright case dealing with original artwork on cheerleaders' uniforms. His advice was, "Read as much good writing as you can—nonlegal as well as legal [and] [s]et aside some time each day for long-term planning, because otherwise the immediate tasks at hand will swallow all your time." His first recommendation to read, read, read, is echoed by other top appellate lawyers in this year's list as you will see. The second piece of advice for time management is rarely discussed in law school but is ultimately a key factor to success in practice and living a balanced life.

Steve Rummage of Davis Wright Tremaine, along with his partners, won Microsoft v. Baker, a case about class certification. His advice was, "Focus less on trying to show case law mandates an outcome and more on showing how to reach a just and fair result for your client within the law." This is a lesson moot court students have to be reminded of frequently when they first practice developing their arguments for competition. Many are usually stuck on "precedent" as an argument, but the Supreme Court is more interested in finding the right outcome. Once students internalize this, their creativity bounds.

Adam Unikowsky of Jenner & Block won Kokesh v. SEC, a disgorgement case with the novel argument that it was really a penalty. The argument had never succeeded at the lower courts but ultimately won the day with the Supremes. Unikowsky advised, "If possible, make your brief shorter [and] [i]t is always necessary to be scrupulously accurate—otherwise you will lose all credibility with the court." Concision and accuracy are holy principles in legal writing. It is always nice to see your lessons reinforced by those in the trenches.

Jeffrey Green of Sidley Austin won Dean v. United States, a case regarding how sentences for gun crimes should be determined. Green gave some colorful, but very practical advice:

"Avoid lawyerly ‘splain’in. Explication, exegesis and theorizing rarely have a place. Give reasons instead—nothing more or less. What the Fourth Amendment or case X says is not going to win the day. [And] [s]ay it well, but say it only once. You can’t overestimate the goodwill you earn with any justice or judge by submitting a brief that is just about one-half of the allowable length. Don’t be repetitive about what you want, the justices just want to know why you want it."

At the risk of being repetitive myself, this advice is worth highlighting - simplify and avoid redundancies. Priceless.

Kannon Shanmugam of Williams & Connolly won two victories in the Supreme Court, and two in the circuit courts. Shanmuhagn was most proud of the hard work of the junior associates who won the cases in the lower courts. His advice was, "Take every opportunity you can to stand up in court or even to engage in public speaking. For most of us, oral advocacy is an acquired skill. [And, once again,] [r]ead good writing in any form you can find it. The best writers are voracious readers." Many students are petrified of oral presentations, but the trick is that there is no trick - only practice. Sure, some people do have a gift that gives them a leg up, but most people come by their oral argument skills through lots and lots of practice. And also, read! Read anything and everything. It will show up in your work product either way. 

Observing those who are successful at the highest levels of the profession is always worth a pause, and a thought about incorporating their lessons into our own practice - whether we maintain clients and a case load, or are simply imparting demonstrated wisdom to the youngest new attorneys. 

November 2, 2017 in Appellate Advocacy, Appellate Practice, Current Affairs | Permalink | Comments (0)

Monday, October 30, 2017

Does my font choice matter?

According to a recently published column by a North Carolina judge and several litigators, yes, it very well may impact how your brief is read and retained.

The authors begin by explaining the current font status quo, focusing on their home state of North Carolina.  The status quo is that lawyers prefer Times New Roman, a font designed by a London newspaper to facilitate skimming--not something that you want a judge to do to your brief.  As the authors explain,

Today, for whatever reason, Times New Roman has become the standard, including for North Carolina lawyers. As one commentator has remarked, Times New Roman is “the font of least resistance.”  It “is not a font choice so much as the absence of a font choice.” It is the beige of fonts.

On the other side of the font spectrum is Courier New, another common lawyer font.  Courier New was designed with typewriters in mind--its non-proportional format makes it easy to white out one letter in a document and replace it with any other letter, since all letters in Courier New take up the same amount of space.  The problem with Courier New (other than the fact that it is just ugly) is that it takes up a lot of space.  It is also harder to read. As the authors explain, "'[w]hen every character is the same width, the eye loses valuable clues that help it distinguish one letter from another.'"

So what is the solution?  Well, the authors suggest that you think about using fonts in the Century family.  As they explain,

Among its attractive features, Century Schoolbook is “highly readable, yet commands an air of authority with letters that take up more space than Times New Roman.” It has even been called the “crème-de-la-crème of legal fonts.”

The United States Supreme Court publishes its opinions in Century Schoolbook, and several other federal courts endorse the use of Century fonts.  The Seventh Circuit, for example, has posted on its website a six page document entitled "Requirements and suggestions for typography in briefs and other papers" in which they endorse proportionally spaced fonts designed for books, such as Century and Book Antiqua (the go-to font for this blog).

By switching to Century fonts, the authors claim that writers can save money. They cite an NPR report that "when a major university recently switched its e-mail system’s default font from Arial to Century, it saved thousands of dollars annually in printing costs." The authors also claim that switching fonts can help with "readability and retention."  We don't want our briefs to be skimmed. We want them to be savored, studied, and retained.

The authors have convinced me.  I plan on changing my syllabus to require Century fonts.  Perhaps more courts will follow this advice too.

October 30, 2017 | Permalink | Comments (2)

Friday, October 27, 2017

Appellate Advocacy Blog Weekly Roundup October 27, 2017

The weekly roundup image

Each week, the Appellate Advocacy Blog Weekly Roundup presents a few tidbits of news and Twitter posts from the past week concerning appellate advocacy. As always, if you see something during the week that you think we should be sure to include, feel free to send Dan a quick email at DReal@Creighton.edu or a message on Twitter(@Daniel_L_Real).

 

Supreme Court News and Tidbits:

Must the government pay business losses when it takes private property? The Supreme Court may answer that question if it decides to hear the case involving a Louisiana “dirt farmer.” An article by Mark Sherman for the Associated Press explains the case and issue. The article can be found HERE.

 

The Supreme Court Justices took a break from tackling complex legal issues to help celebrate Harvard Law’s bicentennial. The Associated Press has this report.

 

In this essay published in The New York Times, Linda Greenhouse asks: “Will Politics Tarnish the Supreme Court’s Legitimacy?”

 

Appellate Court Decisions:

Garza v. Hargan – The U.S. Court of Appeals for the DC Circuit entered order on a petition for rehearing en banc ordering that an undocumented teen can have an abortion. Merrick Garland is the Chief Judge on the panel. An article on the decision can be found HERE

 

Posner Benchslap – The U.S. Court of Appeals for the Seventh Circuit voted unanimously to reverse the conviction of a pro se litigant whom Posner had berated, which comes on the heels of Posner’s public accusations that he retired because the court needed to treat pro se litigants better. Above The Law has this report. The Court's decision can be found HERE

 

Practice Tips:

UNC Law will host a panel discussion on Appellate Practice, which will include several members of #AppellateTwitter. Click HERE for more information.

 

This article from the Champion provides some great advice on appellate briefing. 

 

Other Items of Interest

In more Posner news, Posner wants to get rid of lawyers. Read his thoughts in this article in the Chicago Tribune

 

October 27, 2017 | Permalink | Comments (0)

Thursday, October 26, 2017

Thinking Thursdays: Visual Impact Moments

What is the narrative climax in the Little Red Riding Hood fable? When the wolf eats Little Red. But what is the visual impact moment? The image you think about when you recall the story? That’s From 2006 AALS Clinic poster session
probably different. It’s either an image of a little girl in a red cape, walking through the woods or it’s the moment when Little Red first sees the wolf in Granny’s bed, wearing Granny’s nightclothes. The visual impact moment can be different from the story’s climax.

Jason Eyster writes about visual impact moments in one of my all-time favorite articles in the Applied Legal Storytelling canon. His article, The Lawyer as Artist, in Vol. 14 of the Journal of Legal Writing, explores the use of scene and setting as a persuasive tool for legal writers. This article is creative, and always fresh. It is one that I re-read and think about at least once or twice a year. The idea of the setting isn’t often discussed in the persuasion literature, but, as Eyster argues, can create lingering impressions. The legal writer who takes time during a description to linger on choice details will make the scene “pop” for the reader those visual images will provoke a natural, emotional response. The visual impact scene need not be the climax, but should connect to the case theme. If you can connect it to the theory of the case, all the better.

So, how do you do it? Eyster offers one idea: the obtuse object. That is something unexpected or incongruous with a scene that draws in the reader through a natural curiosity. In one of his examples, an asylum case, the legal writer zeroes in the description of his client, sitting in her former home and eating a pomegranate just before hearing a sinister knock on her door—one that results in her being dragged away by militia in her country. The simple mention of the pomegranate serves to draw the reader into the scene. It evokes the famous Persephone myth of a young woman dragged into hell while her mother tries to have her released. The scene is made all the more emotional for its layers of meaning. Pomegranate

Think about the scene in your client’s case that you hope the judicial panel will likewise remember when they put down the brief. Is it the scene you want? If it’s the same scene your opponent might choose, think of another one. If it is the scene you want, have you chosen some memorable detail to describe—an action, an object, a character, or the setting itself. Describe it with a name, sensory information, its function, its history, or a metaphor. Things like this put joy and art into the job of legal writing.

October 26, 2017 in Appellate Advocacy, Appellate Practice, Law School, Legal Writing, Moot Court, Rhetoric, State Appeals Courts | Permalink | Comments (0)

Wednesday, October 25, 2017

To Blog or Not to Blog: Moving from the Safety of the Appellate Structure into a Whole New World

 I have probably spent more time changing the subject of this first blog post than I have spent time doing anything else this past week. I know what my problem is: this is different in so many ways. There are two paralyzing differences that I will focus on today: First, my audience is different, and second, the structure I have come to love is absent.

As an appellate advocate, I made it my mission to figure out the needs of my audience. I learned how busy my audience was. Once you understand just how busy the appellate audience is, you know you need to make adjustments to your writing. For instance, the Federal Judiciary’s 2016 Year-End Report reflects that thousands of appeals are filed yearly in the United States Supreme Court, and tens of thousands are filed in the Regional Circuit Courts of Appeal. There is no room for fluff, or rabbit trails. You must be organized, direct, well-written, and succinct. I felt a lot of comfort in knowing that my busy audience needed me to subscribe to a framework that highlighted my analysis, and left room for little else.

I do not yet know what this audience needs. I am certain that over time, as it did in practice, my writing will adjust to meet the needs that I perceive in this new audience. I look forward to that day, when I find as much comfort in writing to meet the needs of my new “friends,” as I did when I wrote for the appellate audience.

The blog’s lack of a strict framework, is the second thing that makes me uncomfortable. I like the structure of the appellate brief, not only because it helps me to meet the needs of the appellate audience, but because the rule-follower inside me needs the structure. I have always been very comfortable working within legal writing’s strict framework. At the moment, I pine away for the freedom provided by such a framework. Let me explain:

I started my legal career a couple of decades ago, and it was love at first draft. From the moment I began, I could see form and structure in legal writing. As I tell my students, once you yield to the structure you will be free to focus on the most important parts of your brief. Whether you use CREAC, CRAC, IRAC, CRuPAC, or some other related structure (follow the link to see a comparison of the many structures), there is freedom in knowing you do not have to figure out where to put your words. That freedom allows the appellate writer to focus on the words themselves.

In preparation for this post, I began reading blog posts. Did you know that they are very different than your average appellate brief? To prove my point about a blog being different from a brief, I have never included a rhetorical question in a brief. Never. Not even once. In addition, I have never written a one-word sentence in a brief. Yet, after reading so many blogs, I understand that doing so is permissible.

But blogs are also very different structurally from an appellate brief. There are so many styles to choose from. A blog’s organization can be casual or informal, and does not follow a strict format. I do not have to “prove” every point I make. Perhaps most disturbing, however, is the lack of strict formatting, which means that I began a “blank” page. That blankness led to a disorienting sense of disorganization. I now have the beginnings of many posts, each of which began as an aside comment, and which then grew until it became a trail that had to be severed before I wrote myself off an abyss.

I long for the structure of an appellate brief, where one never begins with a blank page, because there in the background, waiting to be revealed, is that glorious legal writing framework.

October 25, 2017 | Permalink | Comments (0)

Tuesday, October 24, 2017

#TwitterTuesday--Free Willett

TwitterTuesdays

In late September, President Trump announced his intention to nominate Texas Supreme Court Justice Don Willett to the United States Court of Appeals for the Fifth Circuit.  Justice Willett, the "Tweeter Laureate of Texas" and well-known for his humorous twitter feed, has not tweeted since the nomination was announced.  Frankly, I am not surprised.  I worked on judicial nominations for the Department of Justice and the Senate Judiciary Committee in the early days of Twitter.  Vetting a tweeting nominee would be a lot of work, and it makes sense for him to take a pause during the confirmation process.  

Despite the pragmatic nature of Justice Willett's Twitter absence, Twitter seems a little less fun without him.  In fact, there is a #FreeWillett movement seeking to bring him back.

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Since I don't think that we will see Justice Willett back on Twitter anytime soon, here are a few other judges you can follow on Twitter during Justice Willett's absence:

Justice Jeff Brown (@JudgeJeffBrown)--If you followed Justice Willett for all things Texas, then following Justice Brown won't disappoint.  Justice Brown also highlights relevant days in legal history for his followers.

If it is the memes you miss, then follow Chief Judge Stephen Dillard (@JudgeDillard).  But, be prepared for a lot of tweets on Samford football, which isn't too bad since they are having a good year.

Finally, if it is the Q&A you miss, then follow Justice Beth Walker (@bethwalkr).  Justice Walker is great about answering questions regarding the judicial process.

October 24, 2017 | Permalink | Comments (0)

Monday, October 23, 2017

Is Oral Argument Dying in the Circuits?

 

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Yes, at least according to a recent study by the American Academy of Appellate Lawyers. Jennifer posted an excellent summary of the report last Thursday.  I won't repeat her discussion, but I wanted to focus on a few other points.

The Academy, concerned with both the decline in cases listed for oral argument and the time allotted for oral argument in federal appellate courts, sent their report to Chief Justice John G. Roberts, Jr., and the chief judges of the federal appellate courts.  As Academy member James Martin told the National Law Journal, more oral argument could shed light on the role of judges: "Oral argument is a very unique piece of the civics lesson and one that I personally believe puts the courts in a very good light and is its own almost best explanation of what the third branch does and is all about."

According to the report, there are four federal circuits with oral argument rates in the teens.  The Fourth Circuit is the lowest, with only 11% of cases being scheduled for oral argument.  The D.C. Circuit, with 55% of cases being scheduled for argument, has the highest rate of oral argument.  According to the research I did along with my co-author for the third edition of Winning on Appeal, only 18.6% of federal appellate cases were scheduled for argument in 2015.  In 1990, 44.8% of cases received oral argument, with the Second Circuit granting argument in 76.4% of cases.  And, as we noted in Winning on Appeal, these numbers don't take into consideration the litigants who do not ask for oral argument in circuits that require such a request. So why the decline?

Some of the decline can be attributed to the rise in cases appealed.  In 1969 the federal appellate courts terminated 9,014 appeals. In 2015, that number was 52,881, or an increase of 586%.  It would be incredibly difficult for judges to hear argument in every case given the large number of appeals.  Furthermore, in surveying judges for Winning on Appeal, we found that most judges found the briefs to play a highly significant, if not dispositive, role in helping them resolve the appeal. 

Still, oral argument has its purposes.  In chapter 3 of Winning on Appeal, we set out some of these purposes.  For judges, oral argument allows them to (1) question the legal and factual positions in the briefs, (2) clarify the issues, (3) consider the impact of the positions taken, (4) lobby other members of their court, and, at times, (5) help the advocate present the case.  For attorneys, on the other hand, oral argument allows them to (1) face the decision makers, (2) emphasize or simplify positions in the brief, (3) address the issues that trouble the court, (4) correct misimpressions, and (5) show the logical soundness of their position.  In observing oral arguments, I have found that many attorneys fail to capitalize on these opportunities.  While, as Mr. Martin noted, oral argument puts judges in "a very good light," it doesn't always do the same for attorneys. Perhaps the answer to more oral argument is to ensure that the quality of oral argument is excellent and beneficial to judges and the disposition of cases.

 

October 23, 2017 in Appellate Advocacy, Appellate Practice, Federal Appeals Courts, Oral Argument | Permalink | Comments (1)

Sunday, October 22, 2017

Programming your writing intuition

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I am excited to write this post with Jory Hoffman, a close friend who teaches writing workshops with me and a phenomenal attorney at Jenner & Block LLP. Luckily for us, Jory has agreed to offer his practical insight on writing topics in future posts, too. 

When we ask judges what frustrates them most about lawyers, the conversation often turns to writing. We hear things like: “they can’t write concisely,” and “why don’t law schools teach them how to write?” Despite endless feedback from judges and others about the sorry state of legal writing, the problems endure.

Some fault lies with people who think that writing isn’t that important to good lawyering. More important, these people say, is figuring out the underlying content, like investigating facts or researching law. Writing is just a formality to get all this content to your audience, right?

Wrong. The content is useless on its own; it becomes useful only if two conditions align:

First, you manage to entice someone to listen to you.

Second, you get them to understand you.

Ask a great lawyer (or any great writer) and they will tell you that coming up with the content is a breeze compared to getting people to listen and understand. In other words: how you write is as important as what you write.

Then we have the legal writers who realize that writing style is crucial but hit a wall, failing to make the progress they'd like. Interestingly, this group probably knows a lot more about good writing than they think. For example, a recent study revealed that incoming 1Ls could spot several writing errors in another person's draft, but when asked to write something themselves, often ended up making the same mistakes. When the heat of writing turned up, they didn't use the good writing tools they had. To some extent, this is a problem for all of us.

But this is not surprising. When you try to change how you write, you are butting up against years of subconscious habit—your writing intuition.  This intuition is built over a lifetime of school and experience. You can’t just tell yourself (or anyone else) to change their intuition on the spot. Even if you want to change, in the heat of writing and grappling with complex issues, your basic writing habits will take over every time. Just like making changes to the other deep-seated habits in your life (I’ll start that diet tomorrow, right?), changing your writing intuition takes serious work.

With this in mind, it becomes obvious why most of us don’t improve as much as we want: we don’t treat writing habits with the respect they deserve. The writing feedback we get and give is often canned complaints and unexplained markups on drafts (which is mostly useless fluff). Telling a lawyer to “write more concisely” is like telling a long-distance runner that they will win the race if they just “run faster.” Markups don’t do much if you don’t know why they’re there or how to fix them. And attending a one hour CLE on writing, or perusing the newest legal writing book, won’t magically transform your writing habits either.

So the question is: how do you reprogram your writing intuition in a way that works? It’s not going to be easy, but it’s doable. And we’ve got two steps to get you on the right path.

First, avoid useless writing guidance like “be more concise.” Instead, identify a list of specific writing moves that you want to program into your writing.

Second, use some concrete devices to incorporate these moves so that they become part of your writing intuition.

Let’s talk about the first step. There is  power in focusing on specific moves rather than generic writing principles. It keeps the process manageable and concrete. But more importantly, once you can spot the moves it will be easier to consciously use them. You will see the moves at work in the things you read and in your own writing. With a list of concrete moves in hand, you can begin reprogramming your writing intuition.

But you still need that list. You might already have some writing moves that you’d like to make intuitive. Perhaps using concrete verbs rather than dry ones (“sunder” instead of “separate”), using transitions (“all that said...”), or using short, simple sentences to emphasize key points (“So too here”). And if you can’t think of some new moves, there are dozens of fantastic legal writing books to help you come up with your list.

With your list of writing moves in hand, now comes the hard work: reprogramming your writing intuition. We use a number of methods with our students, and they work.

The most effective is to use your editing time to program new moves. Try picking up a draft that you’ve written and edit it for only a small handful of new writing moves at a time. Mark each time that you already used the move or anytime that you should have. You are training yourself to spot these moves and wiring your brain to recognize when each move is helpful. And focusing on a small batch at a time will keep the process manageable. Once you master this small set of moves, start editing for a different set of moves. And so on.

Another great method is to edit with a checklist. But don’t just passively check off boxes; force yourself to find at least five or ten examples of each move whenever you work on a project. That way, you can be sure to practice the moves, even if it’s just because you’re looking for places to use them.

One of the best ways to pick up new moves is to read writing that uses them. Everyone from Stephen King to Brian Garner recommends this approach, and for good reason. There is no better way to reprogram your writing intuition. So identify some legal writers who you admire, and read them voraciously. Even better, mark in the book you are reading each time you spot one of the moves you happen to be working on at the time. 

Other simple tools that psychologists suggest include keeping a reminder around your computer screen with the list of moves you are working on and editing others’ writing to add some moves that are missing (such as adding transitions to a piece of writing that has none).

All of this advice is equally useful when you are helping others improve their writing. Ask your mentee to use these devices—for example, have them give you a marked-up draft that identifies a couple specific writing moves that you want them to work on. When guiding others, however, we find that it’s important to explain why each move matters.

Be concrete. I can’t tell you how much harder students work once they understand how a move works on the reader. For example: passive voice is a great tool for deflecting attention from the subject of a sentence; transitions help readers connect sentences so that they can understand the logical connection between each point. Taking a few minutes to explain why these moves work, and giving your mentee a few examples of elite advocates using them, will go a long way in convincing them to put in the programming time.

Ultimately, programming your writing intuition is a lifelong pursuit. You must continue to look for new moves and go through the steps of programming them in. And you must always ask whether the writing moves you have are worth keeping (so many lawyers tell me they write “that way” just because they always have). Above all, take control of this process and avoid letting your writing intuition program itself.

Joe Regalia is an adjunct professor of law at Loyola University School of Law, Chicago and an attorney at the firm of Sidley Austin, LLP. Jory Hoffman is an attorney at the firm of Jenner & Block, LLP. The views we express here are solely our own and are not intended to be legal advice. 

October 22, 2017 | Permalink | Comments (0)

Friday, October 20, 2017

Appellate Advocacy Blog Weekly Roundup October 20, 2017

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Each week, the Appellate Advocacy Blog Weekly Roundup presents a few tidbits of news and Twitter posts from the past week concerning appellate advocacy. As always, if you see something during the week that you think we should be sure to include, feel free to send Dan a quick email atDReal@Creighton.edu or a message on Twitter (@Daniel_L_Real).

 

Supreme Court News and Tidbits:

The Supreme Court is getting ready for beginning operation of its new electronic filing system on November 13, 2017.  Virtually all new filings will be accessible without cost once the system is operating.  More information is available HERE

A recent ProPublica review of Supreme Court opinions over the last several years revealed numerous instances where the opinions of the Court contained "false or wholly unsupported factual claims."  It appears that the errors in the opinions sometimes came from Justices doing their own research and making mistakes, and sometimes from Justices relying on information in submissions that contained errors.  More information is available HERE.  The New York Times weighed in on this on Wednesday, too, with an op-ed calling for the Court to employ fact-checkers. That article is HERE.

SCOTUS made it onto Jeopardy! this week:  See the clip HERE

Appellate Court Decisions:

On Wednesday, the Fourth Circuit Court of Appeals issued an opinion ruling that a towering cross-shaped monument on public land is unconstitutional.  The 2-1 ruling concluded that the monument had "the primary effect of endorsing religion and excessively entangle[d] the government in religion."  

Court Opinion

Washington Post Article

The Massachusetts Supreme Judicial Court ruled against Yahoo! this week in a case where two people fought for years after their brother's death in 2006, seeking to gain access to the contents of his Yahoo! email account.  The court ruled that federal law does not bar Yahoo! from providing such access.  The case isn't quite over  yet, as a probate court still has to rule on whether Yahoo! can refuse to provide the access under its TOS.  More information from Reuters HERE.

Appellate Practice:

An article in the National Law Journal this week addressed the decline in oral argument in appellate courts, citing a recent study by the American Academy of Appellate Lawyers.  See the article HERE.

The Legal Intelligencer had an article this week singing the praises of "Winning on Appeal: Better Briefs & Oral Argument," a book authored by then senior Third Circuit Judge Ruggero J. Aldisert, in which the Judge attempted to educate attorneys on how to succeed on appeal from the perspective of an experienced appellate court judge.  The post is HERE.

Over at PrawfsBlawg, Professor Douglas posted his "Handy-Dandy Guide to Federal Judicial Clerkships."  It contains a wealth of information, including information about why to consider clerking, where to clerk, when to apply, and what to use for writing samples / letters of recommendation.  The post is HERE.

Jaime Santos had a great Twitter post/thread this week discussing some useful tips and reminders for appellate practitioners who have to travel and print at the hotel.  The post is HERE.

The Weekly Standard had an article this week recounting the writing process and thoughts of the late Justice Antonin Scalia.  To Scalia, writers become skilled with "more time and sweat."  The article is HERE.

Other Items of Interest:

The Washington Post had an article this week taking readers back in time to revisit the mid 1800's in the state of Missouri, where a 19 year old slave girl bashed the head of her white slave owner when he attempted to rape her, killing him.  As the article notes, "What followed was her arrest and a groundbreaking legal case known as the State of Missouri vs. Celia, a Slave -- a dispute that played out long before #MeToo hashtags on Twitter and the explosive sexual assault and harassment allegations against Harvey Weinstein, Roger Ailes, Bill O'Reilly, Bill Cosby, and other powerful men."  The article is HERE.

October 20, 2017 | Permalink | Comments (0)

Thursday, October 19, 2017

Is Appellate Oral Argument on the Way Out?

A recent study conducted by the American Academy of Appellate Lawyers showed that the percentage of cases that are argued before a judicial panel are declining to a concerning degree.

Federal Rule of Civil Procedure 34(b) begins with "oral argument must be allowed in every case," subject to certain exceptions. But the task force's statistics showed that oral argument in many circuits instead are either not being allowed or are otherwise not being scheduled. The overall average percentages of oral arguments in the circuit courts, excluding the Federal Circuit, ranged from the mid-teens (Third, Fourth, Sixth and Eleventh) to the low 30s (First, Second and Tenth) and to 45 percent (Seventh) and 55 percent (D.C. Circuit). The lowest was the Fourth Circuit, which heard oral argument in only 11 percent of its cases.

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The Academy says that this decline in oral argument is detrimental to the American legal system. "Oral argument is a very unique piece of the civics lesson and one that I personally believe puts the courts in a very good light and is its own almost best explanation of what the third branch does and is all about," said James Martin, a partner at Reed Smith, and member of the Academy. Martin led the task force that studied the issue, and they found that lack of effectiveness of the arguments and efficiency of the system had led courts to reduce the number of oral arguments, as well as the time allotted for them. In essence, conducting oral arguments takes time and money, and the courts are beginning to feel as if they are a waste of both. 

The task force offered recommendations for the courts to consider, such as: establish pro bono or other programs to provide opportunities for argument in pro se cases; issue focus letters before argument, giving the lawyers advance notice of the issues of most concern to the court; make greater use of technology to enhance outreach and account for geographic challenges; and establish training programs for advocates.

The most frequently cases heard are bankruptcies and civil matters involving the United States. Very few pro se cases are ever argued - which could be some of the most important issues a court may hear. Unfortunately the skill and knowledge needed may not be present in those cases, and are likely not cases the courts look forward to hearing because of possible ineffectiveness of the advocacy.

But the value of the oral argument should not be minimized. When done right, it can be a very effective tool for the litigants, and as Martin stated, oral argument allows the public to better understand the judicial system. With the legal profession shrouded in complex regulations and laws, Latin-named concepts like stare decisis, and sometimes unexplainable jury verdicts, it is important for lawyers and judges to insure the public has an understanding of what happens behind the courthouse doors.

Oral argument, Martin said, is the only time the parties and the court are joined in the decision-making process. "The rest of the time it's behind the curtain," he said. "There's a real value in showing the investment that’s been made in the case when you have to provide explanations to clients and the public about how the system is working."

The criticisms of oral arguments made by the courts do have some justification. It is not unusual for an oral advocate to present a case in a manner that is ho-hum, if not downright dreadful. Frequently we see student advocates that perform much better than practiced attorneys. But this goes to show that oral advocacy is a skill to practiced, not set aside as an afterthought. This is simply part of law practice, and while lawyers rightfully spend mountains of time on their written products, factoring in time to practice an oral presentation is also a necessity. To address this deficiency, the Academy has recently partnered with the American College of Trial Lawyers to produce a nationwide program using video training for appellate advocacy. 

What are your thoughts? Is appellate oral advocacy worth keeping as part of a staple of our judicial process, or is it a long lost skill that need not be resurrected?

October 19, 2017 | Permalink | Comments (2)

Wednesday, October 18, 2017

The advocacy of "the greatest lawyer of the 20th century"

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My law school was fortunate to welcome Elena Kagan earlier this week. (The artist's rendering above is the work of Professor Evelyn Brody.) During a delightfully wide-ranging conversation with Professor Carolyn Shapiro, Justice Kagan took a firm stand on one point: her former boss Thurgood Marshall was "the greatest lawyer of the twentieth century."

No one argued with that.

Marshall

As Justice Kagan noted, we mostly remember Thurgood Marshall, attorney at law, as an appellate advocate, though that might change with the release of the film Marshall, which focuses on his trial work. He is, of course, most celebrated for his work in the Brown v. Board of Education cases. And his advocacy led to key victories in the decade-plus before Brown: in Murray v. Pearson, a groundbreaking Maryland desegregation case; in Shelley v. Kraemer, a landmark case striking down racial covenants; in the Brown precursors Sweatt v. Painter and McLaurin v. Oklahoma State Regents; in dozens of other cases.

To spell out the obvious: there is substance to Marshall's legend. The records of his appellate oral arguments provide ready confirmation of this. It's worth reading in full the transcripts of his oral arguments in Briggs v. Elliott, one of the consolidated Brown cases.  In the original 1952 argument and rebuttal (pdfs), Marshall elegantly handles active questioning from skeptical justices (Reed and CJ Vinson, who reportedly favored upholding the school boards' practices)  and genuinely torn justices (Frankfurter and Jackson, who were sympathetic to the claimants but true believers in judicial restraint). In the 1953 reargument, Marshall offers a rich oral treatise on the Fourteenth Amendment. And his rebuttal is a remarkable closing argument. I won't paste an excerpt here because an excerpt won't do it justice. Trust me: click here; scroll to page 20; start reading the paragraph at the bottom of the page that begins "[t]he argument of judicial restraint has no application in this case"; keep going until you hit "[t]hank you, sir." Ethos, logos, pathos.  

I'd also recommend listening to Solicitor General Marshall's oral argument in United States v. Price, the Mississippi Burning case. Unlike in Briggs/Brown, he's not addressing skeptical or torn justices: he draws only two soft questions from a Court that ultimately ruled unanimously in his favor. So he generates his own momentum: in key segments of his argument, he serves as his own interlocutor, asking sharply-composed questions and offering sharply-composed answers. It works remarkably well; his assurance and comfort in his own skin are a palpable force.

None greater. 

October 18, 2017 in Appellate Advocacy, Oral Argument, United States Supreme Court | Permalink | Comments (1)

Monday, October 16, 2017

The Perils of Statutory Interpretation

As someone who has taught legislation and appellate advocacy and worked for both a state legislature and the U.S. Senate, I love a good statutory interpretation case.  Seeing how the advocates and judges approach the statutory text and the legislative intent is always enlightening.  And, the cases can be quite entertaining.  There are some great Supreme Court cases on statutory interpretation, including the famous discussion regarding whether a tomato is a fruit. 

Just last week, a very divided Washington Supreme Court decided a critical issue of statutory interpretation--is a riding lawn mower a motor vehicle under Washington's motor vehicle theft statute?  In 2015, a Washington state resident allegedly attempted to steal a riding lawn mower. He was initially held on theft and criminal trespass charges.  While he was charged with those crimes, he was also was charged with the more serious crime of motor vehicle theft. Naturally, he argued that a riding lawn mower is not a motor vehicle under the statute.  The trial court and intermediate appellate court agreed.  By a 6-3 vote the Washington State Supreme Court affirmed, but in doing so divided sharply on its reasoning and demonstrated the deep divides among judges on how best to interpret statutes.

The lead opinion, which represented the views of three justices on the Court, noted that the motor vehicle theft statute did not define the term "motor vehicle."  Therefore, the justices looked to the dictionary definition of the term, which "could conceivably include riding lawn mowers."  However, because "the legislature . . . explicitly indicated a contrary legislative intent," the Court found that a riding lawn mower was not a motor vehicle for purposes of the statute.

The three concurring justices agreed with the result, but disagreed with the analysis in the lead opinion.  The concurring justices emphasized the need to follow the plain language of the statute if it was unambiguous.  However, they found the term "motor vehicle" in the statute to be ambiguous. In my favorite part of this analysis the concurring justices note, " a riding lawn mower would not meet the definition of a vehicle because it is not the sort of object generally operating on public roads. But see The Straight Story (Walt Disney Pictures 1999)." For those unfamiliar with that particular Disney movie, according to IMDb the movie is about "[a]n old man [who] makes a long journey by lawnmower to mend his relationship with an ill brother." Apparently, the movie has great reviews.  However, this was not enough to render the provision unambiguous.  Thus, the concurring justices turned to the legislative intent.  They agreed with the lead opinion that the legislature did not intent for the motor vehicle theft statute to apply to riding lawn mowers.

In dissent, three justices agreed with the lead opinion that "'a plain reading of the term ['motor vehicle'] could conceivably include a riding lawn mower.'"  Because "it is not inconceivable for the legislature to have intended this result," the dissent would have applied that plain meaning and left it up to the prosecutor to ascertain if a lesser charge should have been filed.

The relatively short opinions provide excellent teaching tools on statutory interpretation.  They clearly set out the legal and policy concerns that are frequently invoked in these types of cases and can serve to remind us that in writing a brief on a statutory interpretation issue we must consider all three approaches, or at least be aware of what approaches the judges in our jurisdiction take.

 

October 16, 2017 | Permalink | Comments (0)