Appellate Advocacy Blog

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

Monday, September 24, 2018

Advocacy Before the Eleventh Circuit: A Clerk’s Perspective

Today we are featuring a guest post from Kevin Golembiewski.  Kevin Golembiewski and his colleague, Jessica Arden Ettinger, recently posted a law review article, Advocacy Before the Eleventh Circuit: A Clerk’s Perspective, on the Social Science Research Network.  This post previews the article.

From 2015 to 2017 I served as a law clerk to the Honorable Charles R. Wilson of the United States Court of Appeals for the Eleventh Circuit.  For those two years I was part of something much bigger than myself.  The Eleventh Circuit is not simply a collection of appellate judges—like every appellate court, it’s an institution, with its own unique history, practices, and traditions. 

Attorneys who practice before the Eleventh Circuit should keep this in mind.  Effective advocacy requires recognizing and taking into account the court’s distinct characteristics and institutional features.  For example, the court affords Federal Appendix decisions limited weight, so attorneys should avoid relying on them.  Also, as one of the nation’s busiest circuit courts, the court assigns most appeals to a non-argument calendar, so attorneys should approach briefing as if it’s their only opportunity to persuade the court.

To help attorneys navigate the Eleventh Circuit’s unique institutional features, a former co-clerk, Jessica Arden Ettinger, and I recently wrote an article providing advice that is tailored to the court.  In the article, Advocacy Before the Eleventh Circuit: A Clerk’s Perspective, Jessica and I offer our views, as former clerks, on how to draft a compelling brief and present a persuasive oral argument to the court.

We begin the article by examining the Eleventh Circuit’s history, caseload, and decision-making process.  In 1981, Congress split the old Fifth Circuit, creating the current Fifth Circuit and the Eleventh Circuit.  It assigned twelve judgeships to the Eleventh Circuit.  Although the court’s caseload has drastically increased since 1981, it still has just twelve judgeships.  Even so, the court resolves appeals expeditiously.  The median time between a notice of appeal and a decision in the Eleventh Circuit is just 8.6 months, compared to 9.9 months in the Fifth Circuit and 14.7 months in the Ninth Circuit (the Fifth and the Ninth Circuits are the only two circuit courts with larger caseloads than the Eleventh Circuit).  The court achieves this quick turnaround time by utilizing a Staff Attorney’s Office, maintaining a non-argument calendar, and inviting judges from other courts to sit on oral argument panels.  In the article, Jessica and I discuss how these case-management techniques shape the court’s review process.

After introducing the Eleventh Circuit, Jessica and I offer advice on drafting appellant briefs, appellee briefs, and reply briefs.  In addition to providing advice specific to each type of brief, we offer advice applicable to all of them.  In our view, the first step in drafting any Eleventh Circuit brief is to understand the court’s norms and expectations.  There are two norms that the court prioritizes: collegiality and candor.  The court expects collegiality among its judges, district court judges, and members of the bar.  Disparaging the district court, an adversary, or a prior panel’s decision will undermine a brief’s credibility.  The court also expects candor.  It has thousands of cases to resolve each year—briefs must get to the point and be frank about the appeal’s issues, facts, and applicable law.  Grand assertions about an appeal’s legal significance and attempts to spin the facts and the law will backfire.  As former Chief Judge of the Eleventh Circuit Joel Dubina once said, “A lawyer should not embellish and exaggerate in the Eleventh Circuit.”

Jessica and I conclude the article by offering tips on presenting oral argument to the court.  The court takes a pragmatic approach to oral argument, hearing argument only when it will help the panel decide the appeal.  This pragmatic approach informs our advice.

Clerking on the Eleventh Circuit was one of the best experiences that I’ve had as a lawyer.  It is an institution that I will always revere.  I hope Jessica and my article serves as a useful guide for those who have the privilege to practice before the court.

September 24, 2018 in Appellate Advocacy, Appellate Practice, Federal Appeals Courts | Permalink | Comments (0)

Friday, September 21, 2018

Appellate Advocacy Blog Weekly Roundup Friday, September 21, 2018

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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).

North Carolina Bar Association announcement:  The North Carolina Bar Association, FEMA, Young Lawyers Division of the ABA, and Legal Aid of North Carolina, with support from the North Carolina Bar Foundation, are collaborating to provide immediate pro bono legal assistance to survivors of Hurricane Florence through the North Carolina Disaster Legal Services program.  More details and information about how to volunteer are available HERE

 Supreme Court Opinions and News:

 “Supreme Court Sleeper Term Could Have Far Reaching Effects” – article from Bloomberglaw discusses that this might be “the year of the ‘sleeper’ case at the U.S. Supreme Court” with a significant number of cases that are low-profile, but with potentially far-reaching implications.  

Kavanaugh Confirmation News:

Washington Post Column by Margaret Sullivan (@Sulliview) offering perspective that the sexual misconduct allegations raised against Kavanaugh are not a suspicious 11th-hour bombshell because we are not in the 11th-hour.  

Kavanaugh and his accuser have both indicated a willingness to testify concerning the allegation of sexual misconduct in Kavanaugh’s past.  Washington Post; New York Times; LA Times.

Last week, after the allegations of sexual misconduct in Kavanaugh’s past surfaced alleging that he had attempted to sexually assault a woman while in high school, supporters of Kavanaugh presented a letter from a number of women Kavanaugh went to high school with who indicated that the allegation was inconsistent with the Brett Kavanaugh they had known.  Now, more than 200 other women who went to high school with him have signed on to a letter indicating that the allegations are “all too consistent with stories [they] heard and lived while attending” high school with Kavanaugh and indicating that “[m]any of [them] are survivors [them]selves.”  

Federal Appellate Court Opinions and News:

Reuters has an analysis of President Trump’s appointment of judges to the federal judiciary (including the federal appellate courts) at a record pace and how it may tilt the ideological balance on several appeals courts in a more conservative direction.  

State Appellate Court Opinions and News:

The 2017-18 term marked the end of an era at the Iowa Supreme Court, when Justice Bruce Zager retired and former District Judge Susan Christensen was appointed to replace him.  That was the first change in personnel in the Iowa Supreme Court in nearly a decade, after Iowa voters removed three justices in a retention election.  See more here.

Practice Pointers:

The September 2018 edition of Appellate Issues, a publication of the ABA Council of Appellate Lawyers, is now available HERE. It contains a summary of the programming from the 2017 AJEI Summit from last November.  Relatedly, registration is now open for the 2018 AJEI Summit to be held in Atlanta in November, HERE. This year’s Summit will feature a panel with Chief Judge Dillard moderated by Howard Bashman/ How Appealing.  HT: How Appealing.

 

September 21, 2018 | Permalink | Comments (0)

Thursday, September 20, 2018

Must a judge write her own orders?

A retired judge in Iowa recently defended himself in a hearing of a contested order by saying, "I didn't write this thing." A review of Judge Edward Jacobson's rulings found that he had failed to notify the parties in 13 cases where he had signed proposed rulings written by lawyers (presumably the lawyer involved in the litigation). Judge Jacobson said he believed it was common practice to have the lawyers in the case write the orders.

I think the judge is correct - it is common practice for the court to ask one of the attorneys to write orders at various stages of any case. The difference is that this is usually common knowledge to the parties involved in the case, and opposing counsel is consulted before submission of the proposed order, or at some stage before the order becomes final. The request for the order writing is usually done in the presence of both attorneys, so all parties are fully aware of the plan. This was not done in several of Judge Jacobson's cases.

This practice raises a question though, should this be the practice at all? Why is it that the work emerging from a judge's chambers is primarily drafted by a lawyer involved in the litigation? Isn't a judge who does this just shifting her workload to the lawyer who will presumably bill the client for the time spent drafting an order? Or is it proper and more expedient for the lawyers in the case to do it themselves? They are better acquainted with the intricacies of the issues that must be addressed in any order, and would be ready to critique a judge-drafted order that missed important items anyway, which would slow down the process.

At first glance, having the lawyer in the case write the order seems to undermine the ethics of an unbiased system. Each lawyer will have an interest in writing an order most favorable for their desired outcome, and in fact these orders are frequently (always?) written by the prevailing side in the dispute. A prevailing (and unethical) lawyer may try to sneak in some traps or pitfalls for the other side, but it should at least be assumed that the order will include language that will advantage the winner. Without review by the adversary, an order like this does present ethical problems and the process should not be condoned.

However, if we agree that an efficient judicious process carries weight, it may be appropriate for the practice of lawyer-written orders to continue with certain conditions. First, opposing counsel must be fully aware of and have the opportunity to participate in the process and make objections. Second, the judge who will sign the order must use due diligence and use her position of neutrality to evaluate every order for accuracy and legality - even if no issues have been raised by the side who did not write the order. Finally, the judge must be prepared to take ownership of the order and at no time try to pass off responsibility for the effect of a poorly written order. 

One final admonishment is necessary too for the lawyers involved in these situations: Always consult opposing counsel before submitting a proposed order to the court. This will save time in the case that the order is contested, and more importantly, this will have the effect of bolstering collegially and trust in the bar. Even if the judge doesn't direct a lawyer to share the proposed order with the other side, a lawyer should remember her obligations to a fairly administered justice system. That includes giving the other side a chance to be informed and an opportunity to be heard in the final decision.

September 20, 2018 in Legal Ethics | Permalink | Comments (0)

Monday, September 17, 2018

Mugel Tax Moot Announcement

The Mugel Tax Moot is back in Buffalo!

Hosted by the University at Buffalo School of Law for more than thirty years, the Mugel Competition is the oldest national tax moot court competition in the United States. Each year, the Mugel Competition gives law students from across the nation an opportunity to demonstrate their proficiency in oral advocacy and brief writing on a cutting-edge issue of federal tax law and policy.

This year, the competition will be held on March 9, 2019, at the University at Buffalo School of Law. For more information, and to register your team, please follow this link: Albert R. Mugel Tax Law Moot Court Competition, or contact Patrick J. Long at pjlong@buffalo.edu.

September 17, 2018 | Permalink | Comments (0)

Saturday, September 15, 2018

The Pitfalls and Power of the Paragraph

Paragraph

 For the speedy reader, paragraphs become a country the eye flies over looking for landmarks, reference points, airports, restrooms . . .

—William H. Gass


Years ago, I listened to a lecture by Dr. Brooks Landon, a well-known writing professor at the University of Iowa. The lecture was mostly about sentences, but about halfway through, Dr. Landon started talking about something else: the paragraph.

Honestly, I hadn't given paragraphs much thought before then. I knew that they shouldn't be too long, nor too short. I knew that each sentence within one should loosely relate to a single idea. And I knew that you indent the first sentence. I thought that was all there was to know. 

Those are great starting points, but as I learned that day, there’s a lot more to it. Paragraphs are powerful. And how you choose to craft them will profoundly change not only the readability of your writing—but its persuasiveness, too. 

To see why, think about what paragraphs are. Bryan Garner says that “[g]ood writers think of the paragraph—not the sentence—as the basic unit of thought.” I agree.  I like to think of them as the smallest units of persuasion. 

It takes some real inertia to persuade someone about a point. A word isn't going to do it. Nor is a sentence, no matter how pithy. But string a few sentences together that build on each other just right, and you can convince someone of a small idea. Persuade your reader about enough small ideas—layering one after the other—and boom, your reader is sold. 

To leverage the power of the paragraph, I have two buckets of tools for you. The first is a set of basics that will ensure your paragraphs are always doing their job. The second includes more advanced techniques to power up your paragraphs to another level. 

Toolbox 1: Paragraph basics. 

  1. Most importantly, know that the easier you make it for your reader to figure out a paragraph’s single main point, the easier it will be for them to remember it and be persuaded.

After all, your legal document probably has a lot of paragraphs (read: lots of small ideas for your reader to keep clear in their mind). How many ideas can they hold in their head at the same time? Not many. But how about if those ideas are blurry, convoluted, or mixed up with other ideas? Fewer, to say the least.

So make sure each of your paragraphs have a single, easy-to-see and easy-to-digest idea. The best way to do that is to get meticulous about the beginning sentence or two of your paragraphs.

Everyone knows that you should start paragraphs with a topic sentence: A sentence that introduces your reader to the general topic of the paragraph. But good legal writers take this a step further and open with a thesis sentence: A sentence that captures the persuasive point of your paragraph, often by previewing key facts, words, or phrases from the paragraph’s meat. This tact has the added advantage of persuasively priming your reader for the detailed pitch coming in the rest of the paragraph. 

This thesis sentence allows you to spoon feed the persuasive point of your paragraph in a single, easy-to-digest package.  Legal writers often struggle with the introductions to their rule paragraphs in particular—diving straight into the dense details before giving the reader the persuasive point that the paragraph is trying to drive home. Good thesis sentences will help.

Look at how this Justice gets to the heart of a paragraph with a first sentence—and offers a brief mention of how this point fits into the document. You don't even need to keep going to get the point:  

To begin, however, we reject any analogy between the NLRA—which is about process—and Title VII—which is about substance. [insert sentences detailing NLRA’s process focus and Title VII’s substantive focus]. 

You could imagine a blander topic sentence:

To begin, however, we reject any analogy between the NLRA and Title VII.

Or even worse, a first sentence that dives into the details without any preview at all: 

In Park v. Hoffman, the court explained that the “procedures are many” when navigating the NLRA ...

What about if your paragraph has more than one main idea? That’s a problem. I like to tell my students: if a point is not important enough to build a paragraph around it, it probably isn’t worth wasting a busy judge’s time with that point. We legal writers don’t have the luxury of drowning our readers with ideas. We must pick the ones that really matter and make darned sure that those ideas are easy to find and easy to remember. And filling a paragraph with multiple ideas just dilutes each of them.

So if a point is worth making, use a cohesive paragraph to prove it. If you can’t write a cohesive paragraph around a single, identifiable point written out in a thesis sentence—then snip the whole thing. 

One final aside on thesis sentences: sometimes you need to use the first sentence of a paragraph to transition from a prior paragraph or section. That’s fine. The real thesis sentence can be the second one (or part of the first sentence and leading into the second). The point is just to have an obvious, clear preview planted at the beginning of each paragraph.

  1. Give some thought to the length of your paragraphs. 

Some folks offer concrete guidelines for how long a paragraph should be. I've seen all sorts of recommendations, from 3-4 sentences to as many as it takes to explain a point. But based on the bulk of authority and my review of lots of great writers, I suggest the following yardsticks.

Break up a paragraph if it goes on for much longer than half a page. When you approach page-long paragraphs, readers may be scared off. And let's be real: if your paragraph is that long, it’s probably hiding at least a couple big ideas and needs to be broken up with separate thesis sentences anyways.

Bryan Garner suggests an average of 150 words—which is a nice aim. As he points out, during the 20th century paragraphs shrunk considerably across the board, and readers are now comfortable with that style. Not to mention that cognitive science supports smaller, easier-to-digest points (which would suggest that smaller paragraphs are better). 

      3. A couple of other basics to keep in mind.

Aside from capturing the persuasive point, your initial sentence will often need to transition from the prior paragraph and lay out the organization for your coming paragraph. 

And be consistent in point of view, verb tense, and number. If you shift subjects too much within the same paragraph, or use different tenses, like mixing present and past, or shift between plurals and singulars—these will all make your readers stumble. 

Toolbox 2:  Some more advanced tools that can make paragraphs particularly persuasive. 

  1. Use care when picking which sentences to mix together in a paragraph.

Paragraphs are powerful for persuasive writers because they allow you to mix together component words and sentences to create ideas that are greater than the sum of their ingredients. It’s like a recipe. Put the wrong thing in the paragraph and the dish will be off.

Take these few sentences. Watch what happens to the ideas when I change nothing else but which paragraph pot the sentences are plopped into: 

The defendant knew what he was doing when he shot the officers that day. He picked up his gun from his friend’s house before he left for work. He even made sure he had extra bullets stashed in his waistband. The defendant then arrived at the grocery store, gun drawn. He shot the teller three times. When officers approached him, he shot them, too.

Vs.

The defendant knew what he was doing when he shot the officers that day. He picked up his gun from his friend’s house before he left for work. He even made sure he had extra bullets stashed in his waistband.

The defendant then arrived at the grocery store, gun drawn. He shot the teller three times. When officers approached him, he shot them, too.

It’s subtle, but by taking those last three sentences out of the first paragraph, you suddenly evoke two very different scenes. First, the preparation, building the suspense about what’s coming. Then the actual act. Playing around with which sentences go where can achieve tons of different effects.

  1. Vary your sentence length and structure within each paragraph.

Vary your paragraph length. Paragraphs create a cadence to your writing, just like sentences do. Varying your paragraph length (mostly shorter, some extra short, some a bit longer) will make your writing engaging and easier to follow.

Try to vary the sentence structures, too. Sprinkling in a semi-colon or em-dash sentence can increase readability. Just don’t overdo it. If a paragraph is full of complex constructions, it’s going to become dense reading. Just use a dash of punctuation spice.

  1. Craft your paragraphs with a sense about the places of emphasis.

Most folks agree that the beginning and end of your paragraphs are the most important. That is why it’s so important to craft that first thesis sentence persuasively to prime your reader.

But it’s also why you should put the important stuff in the last sentence or two as well. That’s what your reader will remember. So drop that crucial fact or pithy phrase right at the end.

  1. The short sentence punch.

You don’t want to use this one in every paragraph. But occasionally, when you really want your reader to slow down and pay attention, include an extra short sentence (even a fragment) to make a point unmissable.

An example is Justice Roberts’s famous short-sentence punch:

Substituting one decisionmaker for another may yield a different result, but not in any sense a more “correct” one. So too here.

  1. Burying bad stuff in the middle: primacy and recency.

The places-of-emphasis concept also suggests something else: that bad information should be pushed towards the paragraph’s middle. So when your paragraph is touching on some bad facts or bad law, move those points to the center sentences, if possible. That way your reader begins and ends with your more favorable ideas. 

  1. Make sure that each of your paragraph’s sentences are tightly connected to each other.

Starting with the thesis sentence, each sentence should seamlessly connect to the next. Catherine Cameron and Lance Long’s book, The Science Behind the Art of Legal Writing, reviews the research showing that readers find it much easier to follow paragraphs if each sentence follows the next sequentially. 

Walking through all the sorts of transitions you can use is too much for this article. But remember that for your readers, the links between each sentence are much more obvious to you than they are to them. Use transition phrases, echoed words or phrases, or pointing words (like “this plan” or “that test”) to make the links from sentence to sentence extra obvious.

  1. Finally, the occasional one-sentence paragraph is perfectly fine.

Bryan Garner, John Trimble, and others all say so. One-sentence paragraphs should probably be viewed as a finite resource: a tool to emphasize a point or two in a document, but not a technique to use frequently in the same document. 

But they can pack a punch when used right.

Joe Regalia teaches at Loyola University School of Law and practices law in Chicago. The views he expresses here are solely his own and not intended to be legal advice. Check out his other articles here

 

September 15, 2018 | Permalink | Comments (0)

Friday, September 14, 2018

Appellate Advocacy Blog Weekly Roundup Friday September 14, 2018

Appellate Advocacy Blog 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). You can also send emails to Danny Leavitt at Danny@tsalerno-law.com or a message on twitter @Danny_C_Leavitt

Supreme Court Opinions and News:

Adam Liptak (@adamliptak) of the New York Times related that Justice Ginsburg was asked "if any current justice can do more pushups than she does." Her reply: “Maybe Justice Gorsuch." And then she added, "Our Chief is a possibility." See his Twitter post here.

Federal Appellate Court News:

 

When President Trump was campaigning for the presidency in March 2016, an incident occurred where protestors were instructed to leave a rally and evidence of violence occurred. Those protestors lodged complaints and appeals followed. An appeals court tossed the lawsuits this week. Read about the case here.

 

A federal district court will review challenges to the Affordable Healthcare Act. Although not dealing with appellate matters at this point, it will likely hit the appellate forum once the district court decides. According to the Balkinization blog, the judge disregarded many amicus briefs authored by stakeholders in the healthcare industry.

 

Practice Pointers and Tips:

 

To surreply or not to surreply? The answer depends on the local rules, so found The Court of Appeals for the Seventh Circuit.  The court ruled recently that a party may waive arguments on appeal by failing to file a surreply allowed by right. The court ruled in favor of a defendant where the plaintiff did not counter with a surreply when the case was before the trial court. The appellate case can be found here. And the ABA's piece about the case can be found here.

 

 

  

 

 

 

 

September 14, 2018 | Permalink | Comments (0)

Thursday, September 13, 2018

Thinking Thursdays: ALWD Guide to Legal Citation -- the Sixth Edition is better than ever.

Abigail Patthoff, guest blogger, Professor of Legal Writing, Chapman University Fowler School of Law

When the much-anticipated ALWD Citation Manual: A Professional System of Citation was first published in 2000, it was heralded by many as the answer to the legal citation woes of so many law students, law professors, and practitioners.  An end to the tyranny of The Bluebook! A coup de grace!  

And indeed, the manual delivered a citation system that was as user-friendly as The Bluebook is daunting. In doing so, in addition to offering more example formats, more navigable organization, and a more approachable book design, the manual also set out to improve upon the substance of the rules themselves. Most significantly, early editions of the manual eliminated The Bluebook’s double set of rules calling for different citation formats for practitioners’ documents and academic articles. The purpose was sensible – to offer a single, consistent set of rules that operate across all settings and to prioritize the kinds of citations being used in legal practice rather than legal academia.

Many legal writing programs in law schools across the country adopted the manual and a number of courts followed suit, adding the ALWD Citation Manual as a permissible alternative system of citation for court filings. Despite early enthusiasm for the ALWD Citation Manual, however, in the 18 years since its initial publication, it has not unseated The Bluebook as the most popular most widely used legal citation manual. Early adopters – myself included – met with pushback from students and colleagues about the differences between the rules in the ALWD Citation Manual and The Bluebook. Would 1Ls be adequately prepared to serve as editors of school law reviews, where The Bluebook remains entrenched? Would a generation of law students schooled in the ALWD Citation Manual be prepared to enter a practicing bar where The Bluebook was still the standard?

Under some pressure, I switched back to teaching The Bluebook. And I didn’t look back until I joined the editorial board of Legal Communication and Rhetoric: JALWD, a peer-reviewed journal, when I was assigned to do a cite check of certain journal submissions. Legal Communication and Rhetoric: JALWD requires ALWD citation format, so for the first time in four or five years I picked up a copy of the ALWD manual, which was now in its 6th edition. And it was a breath of fresh air. There was the user- and learner-friendly formatting I’d remembered, but even better. Fast formats! Charts! Abundant examples! But even more notable was this announcement, quietly made in the preface to the 5th edition: based on the feedback of ALWD members who “urged that ALWD modify its rules to acknowledge” the “staying power of certain scholarly traditions in legal citation” the ALWD Citation Manual underwent significant revision. In other words, the ALWD manual now contains no significant differences in the substance of its rules from the “traditional” rules in the most current edition of The Bluebook. As the Legal Writing Prof blog put it in a brief post acknowledging the publication of the fifth edition, “You'll no longer see differences between citations made with the Bluebook and citations made with the ALWD Manual.  The only difference is that you'll be able to understand and use the ALWD Manual!”  

This change was reflected in a slightly new name for the manual – the ALWD Guide to Legal Citation – but was rolled out with surprisingly little fanfare. So, consider this blog post a trumpet blast in support of the new edition. If you haven’t picked up a copy of ALWD lately, do yourself a favor and run to your preferred bookseller. The sixth edition is excellent. And now that the concerns that created barriers to adopting ALWD have been removed, my students will discover it, too.

September 13, 2018 in Books, Law School, Legal Profession, Legal Writing | Permalink | Comments (0)

Wednesday, September 12, 2018

Jacobi & Sag on The New Oral Argument

As First Monday approaches, SCOTUS watchers would do well to follow SCOTUS OA, a blog launched in August by Tonja Jacobi of Northwestern Pritzker School of Law and Matthew Sag of Loyola University Chicago School of Law. Simply put: Professors Jacobi and Sag are doing fascinating things with a remarkable dataset built around the text of every SCOTUS oral argument since 1955.

Their most recent post, on Judge Kavanaugh and the polarized Court, delves into a topic they explore more deeply in a forthcoming article in the Notre Dame Law Review: the change in the dynamics of SCOTUS oral arguments in the last two decades. As veteran advocates and Court watchers have often observed, oral argument has changed over the last few decades: justices increasingly have dominated, advocates have less opportunity to unspool their arguments free from interruption, justices are engaging with advocates less to gather information and more to persuade their colleagues, and so on. Empirical work comparing oral argument dynamics in the 1960s and 2000s -- this piece by Barry Sullivan and Megan Canty and this by James Carter and Edward Phillips -- has confirmed this. But observation, anecdotes, and well-analyzed slices don't tell a comprehensive story of when and how things changed. And they can't tell us much about why.

Enter the work of Professors Jacobi and Sag. They analyze (as a starting point) more than 1.4 million speech episodes in over 6,000 cases over the last 55 years. And yes: oral argument at SCOTUS has changed. Justices are more active. More judicial advocacy, less judicial inquiry. OK: we know that. But the story the data tell is deep and rich, far more interesting than "Scalia's the reason" or "Breyer started asking a question in 1995 and hasn't finished it yet." For example: the number of questions justices ask per case hasn't varied much from 1960 to 2015. But the justices are saying about twice as many words per argument in the last couple of decades, taking up about 13 minutes more per sixty-minute argument than they used to (and, no, it's not all Breyer). So what's going on? In short: judicial advocacy. Less inquiry, more commentary. Jacobi and Sag develop the point brilliantly. And they demonstrate that the shift in dynamic wasn't simply a gradual evolution or one that can be tied to a change in Court personnel. It happened, they show, in 1995. In happened because, they argue, of political polarization embodied in and brought on by the Contract-with-American Congress

The SCOTUS OA team updates the blog on Monday mornings. I'll be hitting refresh as they do.

September 12, 2018 in Oral Argument, United States Supreme Court, Weblogs | Permalink | Comments (1)

Tuesday, September 11, 2018

Outlining your appellate brief

I spent the weekend grading outlines from my Advanced Legal Writing class.  Since I started teaching appellate writing, I have required my students to turn in an outline of their appellate brief argument section. In the outline I require them to do the following:

  • Identify the issues on appeal and take a stab at drafting issue statements.  I tell them that they should identify each issue with as much specificity as possible, incorporating the law and pertinent facts, where appropriate.  
  • Identify the standard of review for each issue with a cite to authority for the standard.
  • Identify a theme.
  • Include the arguments that they plan to make for each issue.  In outlining these arguments they must: (1) the specific points that you will make to further each argument, (2) the facts, if any, that you will rely on, and (3) the authority that you will cite.  
  • Identify rebuttal points.  Because I require my students to outline both sides of the case (they brief both sides of the case over the semester), this comes naturally.  I do like to see them address the counterarguments in their outlines though.

The outline serves as 8% of the final grade, and it allows me to make sure that the students are on the right track with their arguments, both in terms of substance and organization.  

Appellate argument outlines, however, aren't just great teaching tools.  I think that they can help practitioners too.  Consider the benefits of starting with an outline:

  • It helps you organize your research.
  • It allows you to think carefully about how to arrange your issues--both in terms of identifying your strongest argument and seeing how your issues and arguments fit together.
  • It can help you identify a weak issue or argument that should be omitted.
  • It helps you identify issues or arguments that might need more research before you start drafting.

While taking the time to outline might seem like added billable hours, I find that outlines make my final drafting much more efficient.  I would be curious to hear how many of our readers use outlines to draft their arguments.  Feel free to comment below.

September 11, 2018 | Permalink | Comments (0)

Thursday, September 6, 2018

Kavanaugh Hearings Continue for the Third Day

The Kavanaugh hearings are entering their third day. The place to be to receive thoughtful commentary on Supreme Court happenings is SCOTUSblog. They will be live blogging today's confirmation hearings starting shortly after 9 am eastern. You can find the live stream here. The commentary found on SCOTUSblog is always well balanced if not entirely objective. But even posts that contain a specific point of view do so in a serious, transparent, and respectful way. This is in contrast to how most of us receive our news today. We have to sort through lots of superficial explicit and implicit bias. Some bias is easy to see, some not so much. It's a really unfortunate state of affairs.

There is a surprising contrast to the commentary on the hearings and the facts behind the nominee's voting record. The interesting fact that emerged from the hearings yesterday was how frequently Judge Kavanaugh's opinion aligned with Judge Merrick Garland's opinion. Garland was President Obama's nominee following the passing of Justice Scalia. Judge Garland's nomination was not taken up by the Republican Senate in the election year, so there was no chance for public debate as Kavanaugh is now experiencing. The somewhat shocking statistic is that Judge Garland and Judge Kavanaugh, who both sit on the D.C. Circuit Court, actually voted together 93% of the time: "Judge Garland joined 27 out of 28 opinions written by Judge Kavanaugh, while Judge Kavanaugh joined 28 out of 30 of Judge Garland’s rulings." Each judge was nominated by an opposing political party, and yet the large majority of their opinions are in congruence with each other. 

The existence of that fact is bit astonishing when compared to the partisan debates we hear from our news sources. More than anything it appears to show that our appellate court judges work hard to find consensus and perhaps our judicial system is not in as much peril as we are sometimes cajoled into believing.

September 6, 2018 in Current Affairs, United States Supreme Court | Permalink | Comments (0)

Tuesday, September 4, 2018

Guest Post: In Day One of Hearings, Democrats Show Only that Kavanaugh is a Mainstream Judge

Today's big news is the confirmation hearings for Judge Brett Kavanaugh.  Below is a guest post from Lee Rudofsky, former Solicitor General of Arkansas, on Day One of the Kavanaugh hearings.  His views are his own and do not reflect the views of any former, current, or future employers or of the Appellate Advocacy Blog.

There is such bipartisan consensus that Judge Kavanaugh is a well-qualified nominee—in terms of academic pedigree, personal character, legal skill, legal experience, and judicial service—that I hardly need mention it.  Historically, the only other criteria on which Senators base confirmation decisions is whether the nominee’s judicial philosophy is within the mainstream of American legal thought. And we have learned—thanks to the over 3 hours of “introductory remarks” by Democratic Senators—that Judge Kavanaugh is without a doubt a mainstream judge.

How did the Democrats manage to prove something so detrimental to their attempt to derail this nomination?  Let me give you an example. Senator Whitehouse unleashed a verbal assault on 72 recent 5-4 decisions of the Supreme Court that he believed to have been decided incorrectly and in which he believed a Justice Kavanaugh would have sided with the majority.  To be clear, even indulging Senator Whitehouse’s assumption on how Kavanaugh would rule, that means Kavanaugh would have decided these 72 cases the exact same way as Justice Kennedy did. (Justice Kennedy was the fifth vote in those cases.) Is Justice Kennedy outside the mainstream of legal thought?   Obviously not. If Senator Whitehouse says otherwise, all it shows is that the Senator is falsely equating the mainstream of legal thought with ultra-liberal legal thought. The mainstream of legal thought cannot fairly be defined in such a way as to exclude the legal philosophy of nearly half the judges in our judiciary.  

Or take Dianne Feinstein, the Committee’s ranking Democrat.  Senator Feinstein faulted Judge Kavanaugh for saying nice things about the legal analysis in Justice Rehnquist’s dissent in Roe v. Wade.  Put aside for a second one’s view of the legal analysis on which Roe and its progeny depend, and one’s guess as to how a Justice Kavanaugh might rule in a specific abortion case.  The important point here is—or should be—that Chief Justice Rehnquist (a jurist twice confirmed by the Senate for the high court) is decidedly not outside the mainstream of American legal thought.  While many liberals disagree with any legal analysis that might limit, narrow, alter or overrule Roe (or Casey, the actual controlling case at this point), it is empirically undeniable that there is a serious legal debate about Roe’s propriety, with incredibly sophisticated scholars on both sides of the legal issue.  If Senator Feinstein believes that any slight disagreement with Roe means a judge is outside the mainstream of American legal thought, then she either doesn’t understand the concept or doesn’t really care about it.

I could go on and on.  But, in sum, what the Democrats managed to do on the first day of the hearings was to show they don’t really give a hoot about Judge Kavanaugh’s credentials or whether Judge Kavanaugh is a mainstream judge.  Instead, they only care about whether they think Judge Kavanaugh will vote the way they want him to vote on their pet policies. This legal-analysis-be-damned-ends-justify-the-means approach to confirmation is a sad symptom of a bigger problem: the elitist view that unelected judges should decide cases based on their individual policy preferences and their individual beliefs as to what would be a fair outcome, as opposed to dispassionately deciding cases based on the law as written by the people or their democratically elected representatives.  The Senators who indulge and push this approach do us all and our republic a grave disservice.

The first day of the Kavanaugh’s confirmation hearing was marked by liberal protestors continuously interrupting Republican Senators and screaming their heads off that the hearing is a farce.  We’ll see; but if it is a farce, it’s not for the reasons they suggest.

September 4, 2018 | Permalink | Comments (0)

Saturday, September 1, 2018

Your Legal-Writing Voice and the Quotations that Drown it Out

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"Quotation, n: The act of repeating erroneously the words of another."

—Ambrose Bierce

Authors talk about both the sanctity and fragility of the writer-reader connection. Sanctity because there is nothing more valuable to a writer than getting their reader to connect to them. To trust them. To listen. Fragility because, as hard as that connection is to forge, it’s sure easy to break. Studies say that we now have the attention span of a goldfish (or even less). Give your reader an excuse to stop reading, and they’ll take it.  

So how do you keep that connection humming? A lot of it depends on your writing voice: the unique timber that each of us has when we write. Without a distinct voice, our writing is fungible—the author faceless. It's through our voice that readers see who we are, and whether we're worth listening to. 

Our voice coalesces from several components working together: our word choice, word order, organization, and more. If you carefully craft your writing voice—using tools like sentence structure and vivid language—the link will snap into place. Your readers will hear your voice as clear as if you spoke aloud. Use the right voice, and readers will trust you. With their trust won, you can persuade them.

Given how important our voice is, you would think lawyers wouldn’t give it up easily. You’d think that all their writing would be focused on cultivating that personal connection with their reader and grasping tight until the final page.

But many lawyers give up their voice at the first chance—by quoting the voices of others. They quote so much, in fact, that readers aren’t sure whose voices they’re hearing. First, it’s a judge in one quoted case, then another judge in another quoted case—perhaps a professor or two from some block-quoted law review articles. And the lawyer’s voice? Lost in the cacophony.

Quoting is powerful. It allows you to invite other trustworthy voices into your brief. But there is a way to do it without giving up your voice in the process. Great legal writers do it all the time: their distinctive voice rings true throughout their briefs, even with plenty of quoting in the mix. I like to think of these good writers as the narrators of their briefs, and the quotes they use, the characters. You can always tell it’s the lawyer telling the story—even when the characters fall into some dialogue.

To see what I mean, compare these two snippets. First, a legal writer who gave up his voice to his quotes:

“The public trust doctrine is an old common law principle, from whence several concepts have arisen.” James v. Platt, 314 F.3d 524 (7th Cir. 2000). "The doctrine proceeds in several steps, although none of them are dispositive on their own.” Id. “Occasionally, some have framed this doctrine as one of separation of powers..." 

The lawyer's voice is silent. What voices do we hear? Some random judges in other cases. 

Compare that with a quoting pro and Supreme Court frequent flyer:

But as this Court explained in American Needle, “that is not what the statute means.” Id. To take an obvious example, “while the president and a vice president of a firm could (and regularly do) act in combination, their joint action generally is not the sort of ‘combination’ that § 1 is intended to cover.” Id. at 195. Similarly, when two companies pool their capital to form a joint venture to sell a product, the venture’s “pricing policy may be price fixing in a literal sense,” but “it is not price fixing in the antitrust sense.” Id.

It’s still quote heavy, but the author never gives up his voice to his quotes. He both creates a connection with his reader and uses quoted voices to add to his own credibility. 

A few simple techniques will help you be a better narrator, even when you’re quoting.

First: Quote only when you have a reason—you can often say it better.

There are plenty of reasons to quote, and if you can articulate one of them, then go for it. But please, for the sake of your readers, have a reason before dropping quotes on them. Random quoting is not helping anyone. 

Some common reasons include:

The quoted person’s voice—not just the substance of what they are talking about—is helpful to you. When we’re talking caselaw, that means a particular judge in a particular court might be persuasive to your audience—so you want their voice to join yours. But don’t think that all judges’ voices are equally persuasive. The judge and court's identity will matter as will the style of the quote itself.

That said, if you truly believe that someone's voice will help bolster yours, you probably want to tell your reader who you're quoting so you get the benefits. If you don't make it obvious, don't expect your reader to pick up on a court name in a citation.

These sorts of quotes are most helpful when a credible source has unusually strong language for your position. Take this quote from a motion for summary judgment:

As before, this court should agree with the Ninth Circuit that the public trust is "inalienable"—part and parcel of the state’s job of being a state. 

Or this one, where the identity of the speaker adds some credibility:

The New York Attorney General defends the state’s law as one that “falls squarely within the heartland” of straightforward “economic regulation.”

You want to let the facts speak for themselves, and that includes important conversations. Perhaps you want your reader to understand the tone or language someone used. Take this example from a Susman Godfrey brief before the U.S. Supreme Court:

Martinez-Agüero asked to speak to someone in authority, but González said he was the authority "!Yo soy la autoridad!

You’re analyzing the words used in the quoted material. When you’re parsing statutory or regulatory material, for example, quoting makes sense. When you’re arguing about whether the words the defendant used are offensive enough to be defamatory—by all means, quote.

Sometimes you want to define a term of art (although, if it’s become common usage, you don't need the quotes). This is more common when it’s a factual term of art—like industry-speak.

Initially, cash withdrawals from a foreign ATM involved up to four separate fees. The cardholder might pay a “foreign fee” to her bank (called the “issuing bank”). Id. at 129a. The issuing bank, in turn, would pay a “switch fee” to the network that processed the transaction, and an interchange fee” that would ultimately be received by the ATM’s operator.

Occasionally, you will truly not be able to come up with a better way to say something than a quote you found. If you’re working hard to improve your writing, I doubt this will happen often. But still, it happens. We have some wordsmiths in courts across the country, and judges sometimes do capture points so perfectly that they're worth stealing. 

In the end, I’m not worried as much about encouraging you to quote, because most of us already do it too much. The bigger takeaway is that you can usually convey ideas clearer and more persuasively than others. So don't just quote to quote. Rather than writing like this:

That court stated: “Fraud claims are malum in se and the most deplorable and atrocious of torts given they include requisite elements of falsity and reliance.” Illiam v. Shack, 522 F.2d 155 (3rd Cir. 2000).

You can often write better, like this:

Fraud is the worst of torts: the defendant must lie to a victim knowing she will rely on that lie.

Second, use your own sentence structure and sprinkle quotes within them—unless you truly want your reader to hear the voice of the source without you interfering.

By maintaining your own sentence structure, you keep your voice. Simple as that. Often all you really want is a pithy quoted word or phrase to make your points, like this passage in a SCOTUS brief:

All states allow such dual pricing. But a New York statute . . . seeks to control how merchants may communicate the price difference to consumers: It allows merchants to offer “discounts” to those who pay in cash, but makes it a crime to impose equivalent “surcharges” on those who pay by credit card.

Sometimes you want more of your source’s voice to come through, but still, keep in control if you can. Check out how this lawyer maintains control amid a sea of quotes in a SCOTUS brief: 

Of course, “[n]ot every instance of cooperation between two people” constitutes concerted action within the scope of Section 1. Rather, courts must undertake a “functional” analysis of “how the parties involved in the alleged anticompetitive conduct actually operate.” Where “separate economic actors pursuing separate economic interests” agree to limit competition among themselves, their conduct is “concerted” and subject to Section 1.

You can maintain your voice even when you are quoting an entire sentence, like in this Susman Godfrey brief: 

The entry-fiction doctrine derives from the recognition that the political branches of government are more appropriately suited to function as gatekeeper of the nation’s borders, and thus, “[w]hatever the procedure authorized by Congress is, it is due process as far as an alien denied entry is concerned.”

Third, lead your reader into—and out of—quotes.

Don’t just drop readers into the middle of a quote without a parachute. Give your readers a clear understanding of where the quote is going. This does wonders for maintaining your voice. So not:

The case states in pertinent part…

But instead these examples from some trial-court motions:

The Park court explained that leaving out allegations about the fraud itself dooms the complaint under Rule 8: “without the fraud allegations, the claim must be dismissed entirely."

Or

Indeed, as the court there explained, contracts need not be signed by both parties to be enforceable:

Or:

Because the plaintiff had not proved damages beyond those for breach of contract, the court held that the tort claim should have been dismissed:

Fourth, don’t block quote much. Please. Many readers just skip them.

When readers come upon one of these gargantuans, many feel a powerful desire to turn their eyes away. For me, it’s almost physical. But if you must block quote (and I suppose there may be times where it’s really needed—like when quoting statutory text, longer dialogues from the record, or some other pivotal language), at least give your reader enough of a preview of the blockquote so that they can skip it if they want to.

If nothing else, this introduction will make it less scary for readers to dive into the block-quote abyss: 

The court drew a line between claims about public trust, which can be brought in federal court, and claims about private nuisance claims, which cannot:

[Block quote explaining this same point—on principle, I’m not actually inserting the block quote!]

Finally, a couple other notes about quoting.

Emphasis quotes are not a thing. We can’t air-quote in writing. Your argument does not become more persuasive because the other party "blatantly" ignored its obligations. 

Don't quote common phrases or adages. Like: These are the times that try men’s souls. They don't need quotes anymore. As I mentioned above, same goes for common legal terms of art. 

Don’t use any other scare quotes. Scare quotes loosely refers to using quotation marks around words or phrases that you think are slang or nonstandard—or when you’re being sarcastic or offensive. Greil Marcus points out that scare quotes just make us look unsure about our own writing: 

Scare quotes kill narrative. They kill story-telling. And it’s not a question of parsing, examining, analyzing, laying bare sacred texts. They are a writer’s assault on his or her own words.

Jonathan Chair rightly suggests that they're even more useless because it's often not clear what they mean: 

The scare quote is the perfect device for making an insinuation without proving it, or even necessarily making clear what you’re insinuating.

So don’t do what this attorney did:

Opposing counsel contends that his client has a “case,” but that is patently false.  

No one is going to find this sort of thing persuasive.

Defined terms rarely need quotes. For that matter, defined terms are usually not needed. If your reader will plainly understand what a shorthand refers to—what is the point of a special defined term? We aren’t writing contracts here. And if you really do need a defined term, the parenthesis alone is probably enough, right?

Hoffman Incorporated filed this suit two days ago. Hoffman knew it was late when it filed.

The Trenshion Bank (Bank) knew what it was doing.

A final public service announcement: Commas and periods go within quotes (at least in the U.S.). So: 

The court explained that the theft of several grocery bags was indeed actionable because, "bags are not free here." 

Joe Regalia teaches at Loyola University School of Law and practices law in Chicago. The views he expresses here are solely his own and not intended to be legal advice. Check out his other articles here

September 1, 2018 | Permalink | Comments (0)

Friday, August 31, 2018

Appellate Advocacy Blog Weekly Roundup Friday August 31, 2018

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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:

Reuters summarized the looming confirmation battle for President Trump’s latest SCOTUS nominee, Brett Kavanaugh, noting that there will be a lot of discussion about Kavanaugh’s position on overruling longstanding precedents that have become divisive political issues, especially abortion.  NEWS ARTICLE.

As Law.com noted this week, with Justice Kennedy’s retirement from the Court and having already hired clerks, the allocation of his clerks to other Justices means that four Supreme Court Justices will have five clerks this term, instead of four – which might result in an increase in the Court’s pace this term.  NEWS ARTICLE

Federal Appellate Court Opinions and News:

The 11th Circuit Court of Appeals this week issued an interesting opinion in which it held that the First Amendment protects sharing food with homeless people.  The suit arose from a challenge to a Fort Lauderdale, Florida, ordinance that requires a permit to share food in public parks.  The appellate court held that feeding the homeless amounts to a form of expressive conduct and that it receives First Amendment protection.  NEWS ARTICLE.   COURT OPINION.

The 8th Circuit Court of Appeals this week issued an opinion in which it reversed the dismissal of a Missouri death row prisoner’s complaint challenging the constitutionality of the State’s method of execution as applied to him. The appellate court held that the inmate, Ernest Lee Johnson, alleged sufficient facts to state a cause of action and merit having the case heard. NEWS ARTICLECOURT OPINION.

August 31, 2018 | Permalink | Comments (0)

Thursday, August 30, 2018

Thinking Thursdays: Making Citations Stylish

Margaret Hannon, guest blogger, Clinical Assistant Professor of Law, University of Michigan Law School

*****

Professor Alexa Chew’s forthcoming article, Stylish Legal Citation, asks whether legal citations can be stylish. Spoiler alert: The answer is yes.

What is a “stylish” citation? It is a citation that is “fully integrated with the prose to convey information in a readable way to a legal audience.” For law-trained readers, well-written citations communicate substantive information about the authorities that support the assertions in the text and the degree of support that the authorities provide. And when citations are well-written, they can “enhance the writer’s experience in the way that well-written prose can.” On the other hand, poorly written citations make it difficult for legal readers to understand the prose. As a result, readers will either skip over the citations or “slow to a painful crawl.”

What makes a citation “unstylish”? Professor Chew groups poorly written citations into two categories: “bumpy” citations and “presumptuous” citations. Bumpy citations interrupt the prose rather than working with it, while presumptuous citations communicate information that the reader expects to see not in the citation but in the prose. Bumpy and presumptuous citations are problematic in and of themselves, but identifying them can also help readers identify other writing problems.

In spite of the communicative role that citations play in legal writing, there is very little guidance about how to cite stylishly. Most legal writing texts don’t treat citation as a facet of legal writing style at all; as a result, they provide little to no advice about how to incorporate citations well. Similarly, many legal writers treat citations as an afterthought—a “separate, inferior part of the writing process, a perfunctory task that satisfies a convention but isn’t worth the attention that stylish writers spend on the ‘real’ words in their documents.”

So, how can you make your citations more stylish? Professor Chew describes a three-part system that any legal writer can follow, focusing on: (1) choosing what to cite; (2) writing the citation; and (3) revising to tie together prose and citations.

Professor Chew begins by providing advice on choosing what authority to cite and how many authorities to cite. She then provides guidance on writing the citation itself—choosing the citation placement, signal, and parenthetical content. As Professor Chew explains, these decisions should not be based on the Bluebook (or any other citation guide). Instead, they “should be driven by your understanding of the prose and its substantive relationship to the cited authority.” Finally, she provides advice on how to tie together the prose and the citations, i.e. how to identify the bumpy or presumptuous citations (which might also be signs of other writing problems) so that you can fix them.

There is one legal writing style expert who does provide guidance about citations—Bryan Garner. But the guidance that he provides isn’t about how to make in-line citations stylish because he views citations as “impediments to stylish legal writing.” Instead, Garner argues that writers should use footnotes instead of in-line citations.

Professor Chew rejects Garner’s critique of in-line citations because it is based on “the premise that writers aren’t up to the challenge of skillfully incorporating citations into their texts in a way that readers can follow.” Using footnotes may avoid some citation problems and may eliminate visual clutter, making it easier for writers to spot poorly written prose. However, it creates other writing problems. Even if citations are moved to footnotes, legal readers can’t ignore them because the citations convey necessary information about the authority that supports the assertions in the text. As Justice Scalia, Garner’s co-author, noted, moving citations to the footnotes thus “forces the reader’s “eyes to bounce repeatedly from text to footnote.” And weaving the details from the citations (such as the case name, court, and date) into the text might solve that problem but creates a new one in that it overemphasizes information that often isn’t worth emphasizing and makes the prose more awkward.

Instead, Professor Chew encourages legal writers to embrace in-line citations. In-line citations give the reader control over how much attention they pay to the citations by skimming them over or reading them in more detail. In general, readers pay less attention to citations than they do to prose, and this allows citations to be placed “right next to the propositions they support, at the reader’s point of need.” As a result, “in-line citations can convey information ‘almost subliminally’ as readers’ eyes speed across them.”

Professor Chew’s article fills an often-overlooked gap in the legal style literature, and it does so in a practical way. I encourage students, professors, and practitioners to read Professor Chew’s article for more detail, especially the “how tos” of making citations more stylish. I didn’t need much convincing about the importance of citation to legal writing, but Professor Chew’s article still made me think more deliberately about the role that citations play in good legal writing. And for those of you who teach legal writing (whether first-year or upper level), her article also makes the case for better integrating citations into the legal writing curriculum. Finally, if, like me, you can’t get enough of Professor Chew’s writing on citations, don’t miss her Citation Literacy article.

August 30, 2018 in Appellate Advocacy, Appellate Practice, Law School, Legal Profession, Legal Writing, State Appeals Courts, United States Supreme Court | Permalink | Comments (0)

Monday, August 27, 2018

Justice Kavanaugh?

Confirmation hearings for Supreme Court nominee Judge Brett Kavanaugh are set to begin on September 4.  In August, the big story related to the nomination was the need to see documents related to Kavanaugh's time as President George W. Bush's staff secretary and as a White House counsel.  But, getting these documents and ensuring that Kavanaugh's hearings are completed in time for him to join the Court at the start of the October term has proven difficult.  According to a Los Angeles Times article, "Republicans are getting the papers from Bush’s presidential library by having longtime GOP attorney Bill Burck, once a former Kavanaugh deputy, vet them."

Last week, however, there were new calls for a delay in the hearings.  This call focused not on Kavanaugh, but on Michael Cohen's guilty plea.  On August 23, Tom Nichols, a Naval War College Professor and Republican, called on the Senate to delay hearings until after the November election.  Democrats in the Senate have also raised this concern. It remains to be seen what role the Cohen plea will play in the hearings.  We will know for sure in about a week.

August 27, 2018 | Permalink | Comments (0)

Tuesday, August 21, 2018

Call for Papers: The Fourth Annual Law & Corpus Linguistics Conference

I received the following call for papers that might be of interest to our readers:

Deadline: October 10, 2018

Event Date: February 7-9, 2019

Location: Brigham Young University, Provo, UT

Organization: Brigham Young University

Contact: James Heilpern, heilpernj@law.byu.edu

BYU Law School is pleased to announce the Fourth Annual Law & Corpus Linguistics Conference, to be held in Provo, Utah on February 7-9, 2019. The Law School seeks original proposals for papers to be presented at the conference, addressing a broad range of topics related to the emerging discipline of Law & Corpus Linguistics, including (but not limited to), applications of corpus linguistics to constitutional, statutory, contract, patent, trademark, probate, administrative, and criminal law; philosophical, normative, and pragmatic justifications for the use of corpus linguistics in the law; philosophical, normative, and pragmatic criticisms of the use of corpus linguistics in the law; best practices and ethical considerations for the use of corpus linguistics in trial and appellate advocacy; potential applications of corpus linguistics in legislative, regulatory, and contractual drafting; corpus design, especially as it relates to the building of future legal corpora; Law & Corpus Linguistics and statistics; and sociolinguistic insights drawn from corpus linguistics, especially as it applies to the relationship of racial, ethnic, or linguistic minorities to legal and government institutions.

The proposal deadline is October 10, 2018. Proposals should include an abstract of no more than 750 words, an outline of the proposed paper, and complete contact information. Please send materials to James Heilpern at heilpernj@law.byu.edu.

August 21, 2018 | Permalink | Comments (0)

Monday, August 20, 2018

Huge Loss for Appellate Community

Last week the appellate advocacy community lost one of its stars.  Stephen Shapiro, the founder of Mayer Brown's Supreme Court  practice and a well-known advocate before the high court, was shot and killed in his Chicago-area home.  During his impressive career, Shapiro argued 30 cases before the Supreme Court and briefed at least 200 cases.  He was the author of the treatise "Supreme Court Practice."

Shapiro's brother-in-law, John Gately III, has been charged in the murder.  According to the Chicago Tribune, "Gately also attempted to shoot his sister, Joan Shapiro, the wife of the attorney who was killed, authorities said. They said Joan Shapiro had been paying Gately’s rent and providing him other financial support but that the siblings had argued about how he was handling the money."

Our thoughts and prayers are with the Shapiro family during this time.  

August 20, 2018 | Permalink | Comments (0)

Friday, August 17, 2018

Appellate Advocacy Blog Weekly Roundup August 17, 2018

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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). You can
also send emails to Danny Leavitt at Danny@tsalerno-law.com or a message on twitter @Danny_C_Leavitt

Supreme Court Opinions and News:

News about Judge Kavanaugh continues. First, the hearings for Kavanaugh have been set and documents have been released from his time working in the White House. Amy Howe from SCOTUSblog has an update on some of the content found in the over-100,000 pages of released documents. 

Second, Aaron Nielson (@Aaron_L_Nielson) wrote about Judge Kavanaugh and justiciability, concluding "Although not everyone will agree with all of his justiciability opinions, Kavanaugh’s views on the whole strike me as pretty mainstream." This, Nielson states, won't change if confirmed.

Separately, Adam Feldman crunched some serious, interesting numbers about oral arguments at the Supreme Court. His numbers show how many words the justices used and the advocates. Find the article here.  

And, sadly, news broke this week about the death of a great Supreme Court advocate, Stephen Shapiro. Shapiro headed the Supreme Court and appellate group at Mayer Brown for several years. He left Mayer Brown to serve for a time as the deputy solicitor general under the Reagan administration. Read about the incident and possible motives of the man charged with Shapiro's murder.

State Appellate Court News:

The Virginia House of Delegates voted Monday to impeach four justices on the state's highest court. The issues behind the votes presumably began with the cost of renovations in the justices' chambers. The New York Times has this article, and the ABA Journal wrote about it here. One justice announced her retirement following the vote.

Practice Pointers and Tips:

Best of luck to all 1Ls, either those who already started or those who will begin shortly. And, of course, a tip-a-the hat to all law professors. Here's to another great year. 

Elizabeth Cano (@ElizabethCano23) tweeted Rory Ryan's writing style guide. Rory is a professor of law at Baylor Law. 

 

August 17, 2018 | Permalink | Comments (0)

Thursday, August 16, 2018

Thinking Thursdays: Building a Dialogue Between Scholars and Practitioners

Ruth Anne Robbins, Distinguished Clinical Professor of Law, Rutgers Law School

This is my last post for at least a long while—I will be on sabbatical this semester. What does someone invested in the field of legal writing do for sabbatical? She works to build the discipline. In my case, it’s researching and writing a topic that I hope will be of interest to members of the practicing bar as well as other scholars in the field.

Legal writing is a misnamed field. Scholars and teachers focus less on the mechanics of writing than they do on rhetorical analysis, and the nature of communication as part of client representation. A modern legal writing professor cares less about the sections of a memo than she does about the science of persuasion and the implications for legal advocacy. In this pursuit, the scholar connects with the practitioner. Many, many articles are written for a practitioner audience. I have had the joy of talking about several in this blog, and the bloggers who are taking over after this will be doing the same.

At a recent national conference, a group of legal writing “discipline-builders” sat around and talked about the landscape and trajectory of scholarship. We created a word cloud to capture the dialogue already out there—most of it created in the last twenty years. Here’s what it looks like:

DBWG#3 Wordle shown at 2018 biennial conferenceAs you can see, the conversations is rich, and varied. It's not your Mom's legal writing course anymore. Rather, the dialogue is dynamic and deep. This is an exciting time for scholarship in the discipline. I hope that you will join the conversation. And, thank you for reading these blogs.

August 16, 2018 in Appellate Advocacy, Appellate Practice, Law School, Legal Profession, Legal Writing, Rhetoric | Permalink | Comments (1)

Saturday, August 11, 2018

Of Robots and Law School

Digital-brain

Perspectives: Teaching Legal Research & Writing is one of my favorite journals. It's dedicated to articles about teaching law students (and that is one of my favorite things). The editors put out an interesting call for papers recently. They asked: Will AI change how we teach the law? 

It got me thinking. 

As much as technology is disrupting the practice of law, it has the potential to downright flip the teaching of law on its head. After all, technology not only brings new ways of lawyering—which will change what we teach—but it's also changing how we teach. 

I thought it would be fun to brainstorm a bit. How could just one form of technology—artificial intelligence—change things for us law professors in the next few years? I have a big list, and I think it will be interesting to lawyers and law students, too. 

But first, some vocabulary. I'm confining things here to "artificial intelligence"—technology that aims to mimic human thinking and complete tasks that require human-level intelligence. There is a lot more technology that might disrupt lawyering and legal teaching, like virtual reality or online learning, but we'll leave those for another day. 

Let me say at the outset: AI should be exciting for anyone involved in teaching law students. The realities of today's legal market mean that students need more practical skills. Some smart folks predict that lawyering will become more and more project-based in coming years. The number of solo and small-team practitioners are likely to rise. Our students will need entirely new skill sets. They must be flexible, resourceful, and adaptable. And AI can help us close a lot of skill gaps and empower students in ways never possible before. 

Now to the AI. My running list of ways that autonomous tech will likely change legal education (and it is a running list; I'm sure there are loads more), includes:

  1. We need to prepare students for new AI-related laws;
  2. Students need to know how to deal with the ethical implications of AI;
  3. Students need practical training on new AI legal research tools;
  4. Students need to understand how to use AI-aided drafting and analysis tools (including the shortcomings of these tools);
  5. We need to show students how to deal with AI evidence in court;
  6. We need to give students an understanding of what AI can and cannot do for lawyers
  7. We need to train students fundamental skills for learning and using new technology tools, including those leveraging AI;
  8. We need to learn how to use AI to help us teach better.

First, the obvious change is that AI is already creating new laws that we'll need to teach our students about. For example, autonomous cars are a hot topic for legislatures across the country. But the big changes will come as AI penetrates deeper into the fabric of our civilization: AI investments; AI decision-making about benefits, or hiring decisions—or a million other business matters; autonomous weapons systems; safety regulations for AI; privacy regulations for AI; AI competition regulation; AI workforce regulations; and on and on.  

Indeed, Congress recently introduced the Future of AI Act (H.R. 4625) to broadly consider new AI legislative issues. Several other AI bills have been introduced: the AI Jobs Act of 2018, the Self-drive Act, the AV Start Act, and more. AI-related laws are going to be a bigger deal each year, and to equip our students for the future, we law professors will want to wade into this new doctrinal frontier.

Second, AI poses all sorts of legal-ethics issues. As I touch on below, AI will soon predict the outcomes of litigation with frightening accuracy. How much can a lawyer rely on those predictions in advising a client? In taking particular litigation positions? Can a lawyer solely rely on legal research done by AI (that is probably better than the research most folks do, anyway) and still comply with her ethical demands? What about when a lawyer uses AI to file lawsuits autonomously? 

Next, AI legal research is probably the most obvious way our teaching has already changed. I recently touched on some groundbreaking AI legal research programs in another post. Not only can these tools find cases better than humans, but they can crawl through the data and keep lawyers updated. These programs are already giving attorneys a tactical advantage—at least, for those daring and patient enough to learn them. So what better way for us to support our students than to teach them how to use these tools, too?

Which brings us to the meat: the drafting itself. AI is already offering help here—even on the complex analysis. AI programs can draft contracts, and even divorce degrees, better than us mortals. Take JP Morgan’s COntract INtelligence program, COIN, which analyzes legal document with fewer errors than humans. Or ROSS, which can prepare legal memos with rule discussions that can be plug-and-played into a brief.

Or Judicata’s new tool, Clerk, which picks apart the cases and legal analysis in your brief and then tells you how to do it better. Here are a couple shots of this tool in action. First, the AI plucks out an argument from a brief and gives you some advice:

Case analysis

Here is a snapshot of Judicata’s tool working to analyze the cases a brief uses to support an argument:

Cases strengthOther tools can help not only with analyzing caselaw or arguments—but they can actually predict the likelihood that a particular argument will succeed with a particular judge. Lawyers can equip themselves with insight about what a judge may like in a brief, how opposing attorneys are likely to advocate, and more. Lex Machina, for example, applies natural-language processing to millions of court decisions to identify trends that can be used to help lawyers craft better arguments. The program can do things like summarize the legal strategies of opposing lawyers based on their case histories and determine the arguments most likely to convince specific judges:

LexOther tools, like Premonition, can predict the winner of a case before it even goes to court, allowing lawyers to better advise clients at the outset of a case. These AI briefing and analysis tools can give our students a huge leg up as they enter practice (often opposite lawyers who have no idea these tools even exist).

Next, AI is already beginning to influence the evidence lawyers use in court. AI can process data in new ways, giving us accurate predictions and insights into the world. This will mean that, soon, we will see lawyers using AI to bolster factual evidence, expert valuations, and more. Imagine how much more accurate an AI would be at estimating damages or causation (with its ability to crunch massive sets of constantly-updated data). Some of this is already happening. 

With all of the changes AI is bringing, lawyers (and thus our students), will need to understand enough of how AI works so that they speak the language and argue about its shortcomings. After all, lawyers still need to interpret all the data that spits out of these AI tools. For example, lawyers need to understand how AI can actually magnify data problems and why, sometimes, its conclusions can be undermined by bad inputs. A lot of lawyers hear about some technology tool and exclaim: “oh wow, a company says this analysis is 98% accurate? It must be trustworthy!”

But instead, the lawyer should know enough to at least ask the right questions, like: “Can you show me the set of metrics that this AI analysis used? Why did you select these? Why did you leave out what you did? What process did you use to get your underlying data?”

A related skill that students will need is the ability to discern between the good and the bad of technology. There are tons of new AI and other tech tools released each month, and much of it is garbage. For hapless lawyers who don’t understand what’s under the hood, it can be tough to tell the difference. Even simple best practices—like knowing to do manual quality checks of the results you get from a tool—can go a long way.

Let me give you two final ways AI should change how we’re teaching law. First, students need the basic tech skills that will allow them to research and pick up new AI tools as they roll out. Every tool will be different, with new user interfaces, new options, and new quirks to master. Students need to know the right questions to ask and the basics of how each type of tool work. For example, e-discovery platforms all have a common set of features (like tagging, search organization, and data fields). We can teach students these common features, as well as strategies for how to quickly learn the ins and outs of a new tool, so they don't have to rely on trial and error.

Finally, AI should can us more directly with our teaching. There are so many possibilities here I will just leave you with a couple.

AI analytics can tell us which legal fields are the hottest—allowing us to focus more on those doctrinal areas so that students are better positioned for success.

AI can give us insights into learning data on various dimensions, helping us identify which teaching methods work, how better to structure the learning process, and which teaching methods are better correlated with learning outcomes. Is a teaching method working? Have an AI review your students work before and after--it will be able to tell you. 

Something I am experimenting with a bit right now, AI can even do some of the teaching itself. Imagine an AI that can give your students live feedback on their legal writing—pointing out improper citations and guiding them in writing a correct one, pointing out grammar problems with examples of how to fix them, pointing out poor headings, poor rule explanations, or poor applications—or problems with formatting or any of a dozen other things we are constantly trying to teach our students (but never have enough time for). And how thankful would our students be for high-quality essay feedback, on demand? 

Look, I know there is some worry that AI programs might take over the world and turn us into their slaves. But in the meantime, AI can do a lot of good for us law professors, students and lawyers. 

Joe Regalia teaches at Loyola University School of Law, Chicago and practices at the firm of Sidley Austin LLP. The views he expresses here are solely his own and not intended to be legal advice. Check out his other articles here

August 11, 2018 | Permalink | Comments (0)