Appellate Advocacy Blog

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

Thursday, January 18, 2018

Thinking Thursdays: The idea of "opportune moments" in advocacy.

Appellate attorneys must choose not only the right arguments, but also the right moment for the argument. By that, I mean the right time in the world, and the right time in the brief. The idea of opportune moments draws upon a less-taught rhetorical concept, that of kairos.[1]

In Greek myth, two spirits represented different aspects of time: Chronos and Kairos. Chronos, often depicted as an aged man, was the spirit representing the sequential and linear passage of time. Kairos, the spirit of opportune moments—of possibilities—is shown as a young man, floating on air in a circuitous path. Francesco_Salviati_005-contrast-detail[2] His wings and the long hair growing only out of his face and not on the top or back of his head, symbolizes the need for people to seize him as he approaches, but not after he passed by. In his whirling travel patterns, Kairos—unlike Chronos—may come around again. Thus, the concept of kairos in rhetoric centers on the “opportune moment.” It is the difference between “being in the right time and place” versus the idea that people cannot go backwards in time.    

The “opportune moment” concept of kairos has been part of rhetoric since the time of Aristotle, who took the view that the moment in time in which an argument was delivered dictated the type of rhetorical devices that would be most effective. The sophists took a different view: Kairos is something to be manipulated by the presenter as part of adapting the audience’s interpretation of the current situation. Kairos assists in molding the persuasive message the speaker is communicating. Modern rhetoricians hold a middle view—that a presenter must be inventive and fluid because there can never be more than a contingent management of a present opportunity.

The Greek word kairos and its translation “opportune moment” embody two distinct concepts communicated through metaphors. The first concept, the derivation of the “right moment” half of the definition, is temporal. Greek mythology concentrated the spirit on the temporal. That is, the right time in the history of the world. For lawyers, that is important to know when making a policy argument. Is this the right moment in the trajectory of chronological time to make a particular policy argument. Will it persuade? Appellate attorneys who write civil rights and other impact-topic briefs will immediately understand what I am talking about. There is a right moment in history to make an argument. Some of the most important cases decided by the U.S. Supreme Court depended on the timing of the case—the kairos.  

In an article about creating kairos at the Supreme Court, and published in the Journal of Appellate Practice and Process, Professor Linda Berger has written about the idea of kairos and suggests that temporal metaphor is still useful, because they help explain why today’s dissent in an opinion may become tomorrow’s majority decision. In her analysis, she demonstrates that what may look like a missed or lost opportunity to persuade may still have an impact. A snagged thread in the fabric of the law, which, at an opportune late time, can be pulled to unravel the existing fabric of the legal sky when the opportune moment comes around again.  


Dreamstime now is the right moment teacupBut, the second half of the kairos definition—the opportunity—deals with the spatial. To seize the opportunity at the right time requires one to communicate in the right place and under the right circumstances. Rhetoricians commonly use visualizations of the penetrable openings needed for both the successful passage of the arrows of archery through loopholes in solid walls, and the productive shuttles of weaving through the warp yarns in fabric, as a way to describe the spatial aspect of kairos. Modern rhetoric takes these metaphors and elaborates, defining kairos as “a passing instant when an opening appears which must be driven through with force if success is to be achieved.”The idea is one of force and power.

For appellate attorneys, this represents the “where” an argument is placed in the internal whole of the document. The kairos of the legal writing. That depends, of course, on the overall narrative structure of the argument, the positions of emphasis in the beginnings and closings of sections and paragraphs, and the lasting imagery the writer wants the readers to walk away remembering. It is, as Professor Scott Fraley has noted in his Primer on Essential Classical Rhetoric for Practicing Attorneys, the idea that the writer understands the right moments “at which particular facts or arguments are inserted into the argument or presentation of the case.” He calls kairos, “the art of knowing when . . . to make the winning argument.” In other words, the strategic advocate spends time thinking about the persuasion of time. 

 

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[1] Some of this entry relies on language I wrote in an article on a different topic. Ruth Anne Robbins, Three 3Ls, Kairos, and the Civil Right to Counsel in Domestic Violence Cases, 2015 Mich. L. Rev. 1359 (2015). For the background on Kairos and kairos, I rely on these works: Carolyn R. Miller, Kairos in the Rhetoric of Science, in A Rhetoric of Doing: Essays on Written Discourse in Honor of James L. Kinneavy 310, 312–13 (Stephen P. Witte, Neil Nakadate & Roger D. Cherry eds., 1992); James Kinneavy & Catherine Eskin, Kairos in Aristotle’s Rhetoric, 17 Written Comm. 432, 436–38 (2000); and Eric Charles White, Kaironomia: on the Will-to-Invent 13–15 (1987).

[2] Francesco Salviati, Kairos (1552-1554) (fresco); picture courtesy of Wikimedia Commons, https://commons.wikimedia.org/wiki/File%3AFrancesco_Salviati_005-contrast-detail.jpg

January 18, 2018 in Appellate Advocacy, Appellate Practice, Law School, Legal Profession, Legal Writing, Moot Court, Oral Argument, Rhetoric, State Appeals Courts | Permalink | Comments (0)

Monday, January 15, 2018

Aristotle, Classical Rhetoric, and Dr. Martin Luther King, Jr.

MLK_in_Birmingham_Jail

Today our country remembers Dr. Martin Luther King, Jr. In fact, this year the observed holiday falls on Dr. King's actual birthday--January 15. While there is much to reflect on from Dr. King's life and career, I wanted to focus today on how his writings--specifically his Letter from a Birmingham Jail--can be used to teach persuasive argument.  

Dr. King wrote the letter in April 1963, after being arrested for participating in a march without a permit (and in violation of a court order against such demonstrations).  The letter was written in response to a statement published in a Birmingham newspaper by eight Alabama Clergymen criticizing the march.  The interdenominational group of clergy urged the African-American community in Birmingham to "withdraw support form these demonstrations" and pursue their cause "in the courts and in negotiations among local leaders." 

The Letter, which was written in four days, serves as a strong justification for defying unjust laws.  It also vividly demonstrates Aristotle's three modes of persuasion: (1) logos (appeal to logic); (2) ethos (appeal to character); and (3) pathos (appeal to emotion). Interesting, as Professor Emertius Mark DeForrest has noted, citing one of Dr. King's associates, Dr. King "had a comprehensive mastery of the forms of classical rhetoric, obtained not directly from the classical Greek and Roman sources, but from the religious patrimony of scripture and pulpit."  Still, as Professor DeForrest demonstrates in his article, Dr. King's Letter "can function effectively as an introduction to classical methods of persuasion because the strategies
and tactics of his presentation exemplify those rhetorical tools."  

For example, Dr. King demonstrates logos early in the Letter when "he explains to his readers why it is he came to Alabama to engage in non-violent direct action."  As Professor DeForrest explains,

The clergy claimed that the situation in Birmingham was one of “new hope,” and that such “extreme measures” as non-violent protests were unnecessary. King effectively
thwarts that argument by noting that Birmingham’s civil rights situation was far from hopeful—the city was, in his words, “probably the most thoroughly segregated city in the United States.” King then focuses on the recurring and insistent call by the clergymen for local negotiations to solve the racial difficulties in Birmingham.
After reciting a litany of abuses heaped upon the African-American community in Birmingham, King notes that African-American leaders had sought to negotiate with the leadership of the city, but to no avail. He goes on to recount that efforts to talk to members of the business community also were fruitless. In the end, King states, “[W]e had no alternative except to prepare for direct action. . . .” Yet, he explains, the purpose of direct action was not to prevent dialogue, but to create the conditions necessary for real negotiation to occur.

 Dr. King also uses ethos in the Letter, especially in explaining the need for civil disobedience.  Professor DeForrest writes,

King addresses the issue head on and notes that the clergymen had “express[ed] a great deal of anxiety over our willingness to break laws.” This concern went to the heart of King’s character and credibility. After all, could it not be inferred from his selective embrace of the law—supporting the enforcement of Brown v. Board of Education while refusing to follow the ordinances of Birmingham, Alabama—that he was a dangerous hypocrite, a radical who would speak out of both sides of his mouth in order to get what he wanted? King does not try to minimize or explain away the clergymen’s concern, but acknowledges that it was “legitimate.” It appeared “paradoxical,” he writes, to insist
on obedience to Brown v. Board of Education while at the same time advocating the non-violent violation of laws pertaining to marches and other forms of demonstration. King then launches into a sustained explanation of the moral basis of the Civil Rights Movement’s use of civil disobedience, pointing out that the paradox
was resolved once one understood the distinction between just laws, which should be obeyed, and unjust laws, which “one has a moral responsibility to disobey. . . .”

Finally, with respect to pathos, Professor DeForrest notes that Dr. King uses it in the Letter to support his logical and factual arguments.  Professor DeForrest specifically points to "one of the most moving passages in the letter" where Dr. King uses history and vivid examples of segregation and it's impact of segregation on the African-American community to challenge the clergymen's call to just wait.

In addition to discussing Dr. King's use of classical rhetoric, Professor DeForrest points out other ways in which Dr. King uses persuasive tactics to convince his audience--including Dr. King's use of authorities and "evocative, plain language."  For those looking for a new teaching tool this spring, Dr. King's Letter and Professor DeForrest's article provide an excellent framework.

January 15, 2018 in Appellate Advocacy, Rhetoric | Permalink | Comments (0)

Saturday, January 13, 2018

Big ideas in small packages: the power of thesis sentences to distill what matters

Tiny-packages-in-hand

What’s the most important writing skill? Perhaps you might say “conciseness”? “Clarity”? Yawn. Of course those are fine, but as we've discussed in previous posts, challenging yourself with generic goals like "write concisely" won't make much real difference in your everyday writing habits. So let us offer another top writing skill (one you can start practicing today): distilling complex points into sentence-length thesis statements.  

Distilling complex ideas down into small packages may be the most powerful, effective arrow in your quiver. If you want to hone a skill that will produce big results—this is it. Indeed, you briefly learned how to distill ideas into short sentences in college. You included that magical thesis sentence—the main point of your paper—every time you wrote about the history of Prussia.  

But this concept of a thesis sentence is so much more, especially for us legal writers; it’s the concept of distilling down arguments or ideas into a small package that can be swallowed in a single gulp. Ernest Hemingway knew how to do it: "For sale: Baby shoes, never worn." A lot of ideas are packed into these six words. History. Dread. Regret.  

And look at how much Judge Carnes packs into a short line, albeit broken up with some periods: “A woman of childbearing age was hired as a teacher at a small Christian school. Then she got pregnant, married, and fired. In that order.” We know the entire story (or at least what matters).  

Our newly-benched Justice Gorsuch knows how to pack a lot into one sentence, too: "Our story starts with two provisions buried in our immigration laws." This inauspicious sentence actually divulges a lot, including the obscurity of the provisions and that two separate provisions matter.  

Distilling down big ideas into short sentences is a powerful move anywhere in your document—like the first and last line of a section. Lisa Blatt uses a one-sentence paragraph to sum up her entire argument in a brief: "All indicia of congressional intent confirm that Section 7266(a) does not limit the jurisdiction of the Veterans Court."  

But to get the most out of this move, try applying it to perhaps the most pivotal part of your writing—the paragraph. The best writers swear by the power of the paragraph. As Paul Auster said: "a paragraph . . . is a bit like a line in a poem. It has its own shape, its own music, its own integrity." So what sentence could be more important to nail than their first sentence? 

To leverage the power of the thesis in your paragraphs, there are a few lessons we can learn from the best writers.  

First, try to encapsulate the real point of your paragraphs—their thesis—in the first sentence. This has tons of benefits for you: it ensures even a skimming reader will take away your main points, and it will frame the key ideas for your reader as they read the rest of each paragraph.  

Look at how this Justice gets to the heart of her paragraph with the first sentence. 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."  

Second, style is paramount in your thesis sentences. Your reader may not make it past the first sentence, and their impression of your credibility, paragraph to paragraph, is set by the first sentence. So spend extra time getting that first sentence just right.

"Transferring the job of saying what the law is from the judiciary to the executive unsurprisingly invites the very sort of due process and equal protection concerns the framers knew would arise if the political branches intruded on judicial functions." Justice Gorsuch 

The best thesis sentences contain words or phrases that will stick with your reader like a slogan. This means picking particular words or phrases that will be hard to forget.

"Plaintiffs are not suing about confidentiality, what they want is secrecy." 

Other than using catchy words or rhetorical devices, you can also make concepts stick by including key facts: 

"The State urges us to follow Seifert and hold that a BB gun is a firearm under" the statute.  

Often you need to use the first sentence of your paragraph to help make a smooth transition from the prior paragraph. Try to incorporate the transition into your thesis sentence and still include the key content; if that is impossible, do a quick transition sentence followed by your real thesis sentence: 

"But those due process and equal protection concerns that animated our holding in De Niz Robles also apply to this case." This thesis sentence transitions and sums up the key point, all in one.  

Don't get caught up on the thesis sentence being a single sentence. If you need a couple short sentences to sum up your paragraph before diving in, so be it. Here is a three-sentence thesis to a long paragraph by Justice Gorsuch:

"That judicial declaration of what the law is turned out to be anything but the last word. Not because the Supreme Court disagreed. But because in 2007 the Board of Immigration Appeals (BIA) issued In re Briones, 24 I. & N. Dec. 355 (BIA 2007)."  

Try to construct thesis sentences that will frame how your reader sees the rest of the paragraph's content. Be subtle, but the more you can prime your reader the deeper your points will penetrate. Take this example, where a judge creates the lens he hopes the reader will use when reading the rest of the paragraph: 

"Conversely, Haywood argues that we should reconsider our holding in Seifert because the definition of 'firearm' applied in Seifert and by the court of appeals does not take into account the word's plain and ordinary meaning." 

And you can use your thesis sentence to roadmap points if you have more than one in a paragraph: 

"Courts in this district have rejected the waiver theory--and they have rejected the estoppel theory, too" 

You can also use this thesis concept to write thesis paragraphs for sections, too. Look how Justice Kagan sums up the following section in a short, idea-packed paragraph:   

“But . . . the Government takes its observation about discretion too far. Yes, the statute provides the EEOC with wide latitude over the conciliation process, and that feature becomes significant when we turn to defining the proper scope of judicial review. But no, Congress has not left everything to the Commission." Justice Kagan 

Practice taking big ideas and wrapping them in neat little packages—the first sentences of your paragraphs. You can start practicing this skill today. Simply take a piece you're working on and go through, paragraph by paragraph, converting the first sentence of each into an idea-packed thesis. Your readers will thank you.  

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. 

January 13, 2018 | Permalink | Comments (0)

Thursday, January 11, 2018

Rules

At dinner a few weeks ago, I asked some former co-workers what my next blog topic should be and without missing a beat, in unison, they all said, “rules!” Rules. You would think that topic would be unnecessary. After all, appellate advocacy is not easy. There are so many things that can go wrong with an appeal. There are so many choices we need to make when researching the law and writing the brief. One would think that the one area where appellate attorneys would not need help is with court rules. After all, the rules tell us exactly what to do … if you read them and follow them.

Yet I know, as I am sure any appellate attorney knows, that there are numerous cases dismissed each year because of an attorney’s failure to follow rules. In the Court of Appeals of Virginia, for instance, 180 appeals were dismissed in 2011 and 157 appeals were dismissed in 2012 for some procedural defect or another. See Whitt v. Commonwealth, 739 S.E.2d 254 (Va. Ct. App. 2013) (en banc).

Anecdotally, I have lost count of the number of cases I have seen dismissed for failure to follow one rule or another. Why does this happen? I have heard attorneys admit that they did not check the rules prior to filing a brief, or that they were unaware of a particular rule. When discussing this phenomenon, my colleagues expressed similar experiences.

Why take the risk of dismissal? The rules are publicly available, and easily accessible. Most rules are easy to understand, and in my experience, questions are readily answered by helpful clerks and experienced appellate attorneys. The cost is high, as the person who pays the price for an attorney’s failure to follow the rules is the client, who has no control over counsel’s actions in this regard.

In fact, the risk is so high, that in Whitt, the Court of Appeals of Virginia decided that in certain instances it is “more just, prompt, and economical,” to allow an appellant to amend a brief, rather than to dismiss the appeal. Id. at 264. In doing so, the court noted that it did not condone violating court rules, but it recognized that dismissal is a harsh sanction for a client that bears no responsibility for the attorney’s failure. Id. On the other hand, on the same day the court issued the Whitt decision, the court also dismissed an appeal where counsel had been given multiple opportunities to correct a defect, but had failed to do so. See Brooks v. Commonwealth, 739 S.E.2d 224 (Va. Ct. App. 2013) (en banc).

Why risk losing an appeal before you even begin? If you haven’t done so already, take up a little light reading this evening and familiarize (or reacquaint) yourself with your local appellate court rules.

January 11, 2018 | Permalink | Comments (0)

Monday, January 8, 2018

In search of sound "judgement"

Several weeks ago the legal writing professor listserv had a robust discussion over "judgment" v. "judgement."  I smiled at the discussion, having just circled as incorrect several instances of "judgement" in the appellate briefs I was grading. While "judgement" is not technically wrong, as Eugene Volokh points out, "judgment" predominates in American English and, even more so, in American legalese.

Not long after the email exchange, I was reminded of this discussion while driving past a well-known gym franchise.  On the outside of the building, in bright, bold letters, the gym labeled itself the "judgement free zone."  I didn't get a picture (safety first), but below is a picture of the phrase from inside of a building belonging to the same gym franchise.

Planetfitness_1

So how often is "judgement" used in legal writing and opinions?  I did a search of Supreme Court cases and came up with 199 hits on one legal database. In glancing through the results, however, I realized that many of the hits came from the headnotes or summaries, not the text of the opinion. When I narrow it down to just the opinion segment (thanks to the kind research librarians who helped me with the search), I get 67 results. While I didn't review all of the results, my review of about a third of them yielded the following observations:

1) Several of the instances of "judgement" were from quotations of statutes, ordinances, or the opinions of other courts, such as the court below.

2) Several of the instances were from pre-1900 cases.

3) A few of the examples seemed like clear typos--the case was modern and "judgement" was used only once in the case.

With respect to this third bunch, I pulled up the PDFs of the Supreme Court Reporter to see if the error occurred when the case was put on the research database.  In the three cases that I checked, the Supreme Court Reporter PDF contained the word "judgment" not "judgement."  Interesting....

Without passing "judgement" or "judgment" on the gym, the Supreme Court, or the research databases, I plan to stick with "judgment" in my own writing and correct my students' use of the other form.

 

January 8, 2018 | Permalink | Comments (0)

Saturday, January 6, 2018

The Power of the Particular

Kk

I am pleased to welcome Professor Patrick Barry of the University of Michigan Law School to our blog for this guest post. Patrick and I clerked together, and he is one of the finest writers and teachers I know. We are excited to have him as a guest this week. 

"If those who have studied the art of writing are in accord on any one point, it is this: the surest way to arouse and hold the reader’s attention is by being specific, definite, and concrete. The greatest writers — Homer, Dante, Shakespeare — are effective largely because they deal in particulars and report the details that matter. Their words call up pictures."

— William Strunk and E.B. White, The Elements of Style (1959)

Details matter. Pick the right ones, and you can influence all kinds of decision-makers. Justice Sonia Sotomayor realized this when she was still a prosecutor in New York City back in the late 1970s and early 1980s. When crafting questions to ask witnesses at trial, she made sure to include ones that would, as she explains in her autobiography My Beloved World, “elicit details with powerful sensory associations — the colors, the sounds, the smells that lodge an image in the mind and put the listener in the burning house.”

She treated courtroom storytelling the same way. “Before you can engage the jurors’ empathy,” she writes, “put them in the shoes of the accused or victim, make them feel the cold blade against their necks, or the pang of unappreciated devotion that might drive someone to steal from a former employer.”

“It is the particulars,” she insists, “that make a story real.”

Mary Karr offers similar advice in The Art of Memoir, a book based on a creative writing class she teaches at Syracuse University. “A great detail,” in her view, “feels particular in a way that argues for its truth.” This may be why expert storytellers, legal and otherwise, seek out specific images and examples when trying to communicate their ideas. Lisa Blatt, who has argued over 30 cases in the Supreme Court, made strategic use of the following set of details in her winning brief in Adoptive Couple v. Baby Girl, a custody battle that garnered national attention in 2013 and eventually led to Blatt’s clients being reunited with the four-year-old daughter they had adopted at birth. The quoted material is from Blatt’s opening brief.

  • The adoptive mother has “a Ph.D. in developmental psychology and develops therapy programs for children with behavioral problems.”
  • The adoptive couple had already “undergone seven unsuccessful attempts at in vitro fertilization.”
  • The adoptive couple “were in the delivery room during the delivery.”
  • The adoptive father “cut the umbilical cord.”

Are any of these details legally relevant? Probably not — at least in the strictest definition of that term. The Indian Child Welfare Act, which was the governing statute in the case, says nothing about development psychology or therapy sessions or being “in the delivery room.” Nor does any line of applicable precedent.

But that doesn’t mean the details Blatt includes are not relevant in other ways. One thing they do quite well is communicate that the adoptive couple is deeply committed to becoming parents, a key factor in any custody case, regardless of the statute and precedent involved. Nobody who endures “seven unsuccessful attempts at in vitro fertilization” is still on the fence about raising a child.

The details also show that the adoptive couple has the capacity to help a child deal with the difficulties, even trauma, of enduring a multi-year lawsuit.  Telling the justices that the adoptive mother has a “Ph.D. in developmental psychology” would have been good enough; adding, as Blatt does, that the adoptive mother also has experience developing “therapy programs for children with behavioral problems” is an excellent extra bit of advocacy.

Finally, the details reveal that the birth mother trusts the adoptive couple so completely that she invited them to be “in the delivery room during the delivery.” The adoptive father was even the one who “cut the umbilical cord.”

Justice Samuel Alito, who authored the majority opinion in the case, put special emphasis on this last detail when ruling for Blatt’s clients. “Adoptive Couple was present at Baby Girl’s birth in Oklahoma on September 15, 2009,” he wrote, “and Adoptive Father even cut the umbilical cord.” When that happens, when justices or judges pick up, indeed highlight, a compelling detail from your brief, good things usually follow. Your words, your framing, are now planted in their minds.

Indeed, a legal brief is nothing without convincing, evocative details. Nor is a business plan, project proposal, or cover letter. Good lawyers know that if you want to persuade someone to take a certain action or adopt a specific viewpoint, you better have something vivid and concrete to get their attention.

The writer John Updike summed up this point well when he explained, back in 1985, his criteria for selecting that year’s best short stories written by American authors. “I want —perhaps we all want—facts . . . I can picture.”

 

For more on the power of the particular, check out these short videos from a writing workshop I gave to law students at the University of Michigan.

The Power of the Particular: To Write Good Sentences, You Need to Read Good Sentences

The Power of the Particular: Facts vs. Truths

Patrick Barry teaches at the University of Michigan Law School. He is the author of the forthcoming book Good with Words: Writing and Speaking and the curator of Good Sentences, a digital library premised on the idea that to write good sentences, you need to read good sentences.

January 6, 2018 in Appellate Advocacy, Legal Writing | Permalink | Comments (0)

Friday, January 5, 2018

Appellate Advocacy Blog Weekly Roundup January 5, 2018

Weekly Roundup Logo

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 Tuesday, January 9, 2018, the United States Supreme Court will hear oral arguments in Byrd v. United States. The issue  raised is whether an unauthorized driver of a rental car has a reasonable expectation of privacy in the rental car that is protected by the Fourth Amendment. The briefs for the case can be found HERE. The New York Times provides this overview of the case. 

 

The petition for writ of certiorari in Hidalgo v. Arizona asks the United States Supreme Court to finally decide that the death penalty is cruel and unusual punishment under the Eighth Amendment. The Editorial Board of The New York Times has this opinion on the issue. 

 

Federal Appellate Court Opinions and News:

In a 2 to 1 decision, the 6th Circuit Court of Appeals upheld a law banning people who have been convicted of domestic battery from owning guns. The Associated Press has this report

 

State Court News:

Adrienne Nelson was recently appointed to the Oregon Supreme Court. She will be the first African-American to ever serve on the state's highest court. The Associated Press has this report

January 5, 2018 | Permalink | Comments (0)

Thursday, January 4, 2018

Thinking Thursdays: New Science on the Ability of Facts to Debunk Myths

 

Extra! Extra! In a Post-Facts World, Facts Still Matter!

Yesterday, Slate published an important cover story written by Daniel Engber, LOL, Something Matters, in which he assures readers that facts still have power. In it, he outlines and reviews some of the scientific studies, old and new, that have analyzed the effects of presenting facts to counter false beliefs. There’s good news in the most recent studies. Facts do have an effect on debunking false information or myths.

The new science supporting the importance of factual persuasion, ironically has its own factual persuading to do. People who know a little bit about the science of managing adverse material typically rely on a small sample-size study conducted by Brendan Nyhan and Jason Reifler, When Corrections Fail: The Persistence of Political Misperceptions.[1] Two years prior to its actualy publication, the study was written up in mass-consumption media as part of the 2008 election fever. The stories tended to make dire predictions that fact-checking news stories would end up rallying people to become more firmly entrenched in their beliefs in the falsehoods. This phenomenon was termed the “backfire” or “boomerang” effect. Oxford Dictionaries selected “post-facts” as the 2016 word of the year, based in part on these studies.

Graduate students at different universities became interested in the Nyhan-Riefler paper, and attempted to replicate them, to no avail. The new studies were 103 times larger than the studies done by Nyhan and Riefler. One set of graduate students used over 10,000 test-subjects and another graduate student group used almost 4,000. The data tended to show the opposite: none of the conditions resulted in any evidence that people adhered to their views when presented with facts that showed the opposite was true. Rather, the studies showed that the test-subjects were more likely to adapt their views to better fit the facts.  

Rather than challenge the new science, essentially debunking theirs, the original scientists, Nyhan and Riefler collaborated with one of the other sets of researchers to conduct new studies. The foursome posted a 60-page article in the summer of 2017, The Effect of Information on Factual Beliefs and Candidate Favorability, [2]  concluding that people are willing to update factual beliefs when presented with “counter-attitudinal informaton.” However, they further concluded that updated factual beliefs might have only minimal effects on attitudes towards a political candidate. The very creators of the backfire/boomerang effect have questioned—some might say debunked—their own previous work. And the Slate article has set out to help publicize the new studies. Facts still matter.

So, what does the appellate lawyer take from all of this? Well, two things. First: the new studies give credence to the idea that the better way to manage adverse material is to disclose and refute it, rather than ignore it. Kathy Stanchi, a Professor of Law at Temple University has advised this in her germinal article, Playing With Fire: The Science of Confronting Adverse Material in Legal Advocacy.[3]  As cited in Professor Stanchi’s article, other scientists have suggested ways to confront adverse material—to immediately refute it when mentioned.[4]

Second, the wise appellate lawyer, turns to one of the resources that Daniel Engber cited in the Slate article, John Cook and Stephan Lewandowsky, The Debunking Handbook, available for free download (7 pages). The handbook offers an “Anatomy of an effective debunking” on page 6. The last of the advisory elements is to present information graphically, so I will end this blog post with a chart.

Elements, per handbook

Explanation in handbook

Blog Analysis

Core facts

Refute by emphasizing the key facts. This will create a gap in the knowledge of the audience—a hole where the falsities used to take up space

This isn’t said in the text of the handbook, but the examples do mention a need for the key facts to present as a cohesive, alternative narrative.

Explicit warnings

Before mentioning the myth or falsehood, provide textual or visual cues that upcoming information is false

In legal writing-ese, this advice suggests that the writer mention the myth only after presenting the true facts. That gives the truth the position of emphasis in a subsection or paragraph.

Alternative Explanation

Any gaps left by the debunking needs to be filled. Achieve this by providing an alternative causal explanation for why the myth is wrong (and perhaps why the falsities spread).

This isn’t said in the text of the handbook, but the examples do mention a need for alternative explanation to  present as a cohesive, alternative narrative. In other words, story persuades. Stories are organizational scaffolds that present information as cause à effect

Graphics

Core facts should be displayed graphically, if possible.

For lawyers, the legal reasoning may also be presented with infographics. But, not all infographics are useful infographics--some are merely decorative and others might be off-point. The writer must always balance the usefulness with the impact on persuasion. For more on this, see Steve Johansen and Ruth Anne Robbins, Art-icuating the Analysis: Systemizing the Decision to Use Visuals as Legal Reasoning, 20 Legal Writing 57 (2015).

[1] 32 Political Behavior, 303 (2010). The study used 130 undergraduate students at a Catholic university. These students were split among four different modules. Id. at 312.

[2] Brendan Nyhan, Ethan Porter, Jason Reifler, and Thomas Wood, Taking Corrections Literally but not Seriously? The Effect of Information on Factual Beliefs and Candidate Favorability (June 29, 2017), available on SSRN at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2995128 (last accessed January 3, 2018).

[3] 60 Rutgers L. Rev. 381 (2008).  

[4] Id. at 390–92.

 

January 4, 2018 in Appellate Advocacy, Appellate Practice, Current Affairs, Law School, Legal Ethics, Legal Profession, Legal Writing, Moot Court, Rhetoric, State Appeals Courts | Permalink | Comments (0)

Monday, December 25, 2017

Happy Holidays from the Appellate Advocacy Blog

We hope that you have a wonderful holiday season! Christmas Meme

December 25, 2017 | Permalink | Comments (0)

Friday, December 22, 2017

Appellate Advocacy Blog Weekly Roundup December 22, 2017

Weekly Roundup Logo

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:

In the wake of the sexual harassment allegations rocking the judiciary, Chief Justice Roberts called for a review of the federal judiciary's procedures for protecting court employees from misconduct. CNN has this report

 

On Wednesday, December 20, 2017, the Supreme Court blocked  a lower court's decision  to force the Department of Homeland Security to turn over more documents relating to the decision to rescind DACA.  More information can be found HERE

 

If you need a last minute gift for an appellate lawyer, the Supreme Court has you covered. Table for 9: Supreme Court Food Traditions & Recipes is a new cookbook with a forward by Justice Ginsburg and includes recipes associated with the justices and their families. Information about the cookbook can be found in this report from the Associated Press

 

Federal Appellate Court Opinions and News:

Judge Alex Kozinski of the 9th Circuit resigned this week after being accused of sexual harassment. In a statement given on Monday, December 18, 2017, Judge, Kozinski explained that he was resigning because the allegations would hinder his effectiveness as a judge and would be a distraction to the judiciary. The New York Times has this report

 

The Washington Post reports that the U.S. Court of Appeals for the District of Columbia upheld Metro's ban on displaying Christmas ads on the sides of buses. Click HERE for the article. 

December 22, 2017 | Permalink | Comments (0)

Tuesday, December 19, 2017

The Federal Law Clerk Handbook Has Been Amended, Addresses Harassment Complaints

Sexual harassment claims reached the federal judiciary when Judge Alex Kozinski was accused of sexual misconduct a few weeks ago. He has since resigned. As Tessa wrote here yesterday, one thing that kept some clerks from coming forward to report this misconduct was the policy of strict confidentiality that clerks must uphold while in chambers with their judges. Some judges, like Kozinski, may further rigidly enforce this pact as well, making it very difficult for clerks or other judicial employees to make reports. 

In rapid response to this concern the Federal Judicial Center amended the Federal Law Clerk Handbook yesterday to read:

In a section of the clerk handbook that proclaimed “law clerks owe judges complete confidentiality as to case-related matters,” two boldfaced sentences were added:

“However, nothing in this handbook, or in the Code of Conduct, prevents a clerk, or any judiciary employee, from revealing misconduct, including sexual or other forms of harassment, by their judge or any person. Clerks are encouraged to bring such matters to the attention of an appropriate judge or other official.”

Concurrently, a signature campaign has been circulated to former law clerks and others urging for clarification on the confidentiality rules. It seems at least with regard to the Handbook, the amendment above may be sufficient to ensure judicial personnel feel comfortable making reports. The letter is due to be delivered on Thursday, December 21, 2017, to "Third Circuit Judge Anthony Scirica, chair of the Judicial Conference’s Committee on Judicial Conduct and Disability, Judge Jeremy Fogel, director of the Federal Judicial Center, James Duff, director of the Administrative Office of the U.S. Courts, and Chief Justice John Roberts Jr. in his capacity as presiding officer of the Judicial Conference." The United States Supreme Court is not governed by the Judicial Conference, and the letter makes no recommendations to the Court. 

The letter can be found here and will remain open for signature. 

December 19, 2017 in Appellate Court Reform | Permalink | Comments (0)

Monday, December 18, 2017

The Kozinski Problem(s)

UPDATE: Judge Kozinski announced this morning that he is retiring, effective immediately.

As Dan mentioned in the Weekly Roundup on Friday, Ninth Circuit Judge Alex Kozinski has been accused of sexual misconduct.  The story broke in the Washington Post on December 8.  According to WaPo, six former clerks and externs alleged to the paper that Kozinski "subjected them to a range of inappropriate sexual conduct or comments."  The article contains the account of former Kozinski clerk Heidi Bond, who claimed that Kozinski "called her into his office several times and pulled up pornography on his computer, asking if she thought it was photoshopped or if it aroused her sexually."  Bond, now a successful novelist, also published on her own website her account of her interactions with Kozinski. It is quite chilling.  She writes that Kozinksi once told her to stop reading romance novels during her free time, telling her that he controlled "what you write, when you eat. You don’t sleep if I say so. You don’t shit unless I say so."

In the days since the sexual misconduct broke, other information has come to light.  None of it is good for Kozinksi.  Really no one has come to his defense, and few people seem surprised by the news. Noted journalist Dahlia Lithwick, who clerked for another Ninth Circuit judge, wrote for Slate of her own interactions with Kozinski.  Lithwick"promised [herself] that if Judge Kozinski was ever to appear before the Senate Judiciary Committee for a Supreme Court confirmation hearing, [she] would testify about the dozens of conversations [she'd] had over the years with other clerks and lawyers about Kozinski’s behavior, about the strange hypersexualized world of transgressive talk and action that embodied his chambers." 

On December 14, Law.com reported that the chief judge of the Ninth Circuit, Sidney Thomas, self-initiated a misconduct claim against Kozinski based on the WaPo story. That claim will be handled by the Second Circuit. That same day there were reports that some or all of Kozinski's clerks had resigned. 

Kozinski has denied the allegations, telling the WaPo:  “I have been a judge for 35 years and during that time have had over 500 employees in my chambers. I treat all of my employees as family and work very closely with most of them. I would never intentionally do anything to offend anyone and it is regrettable that a handful have been offended by something I may have said or done.”  He also told the LA Times that he didn't recall "ever showing pornographic material to [his] clerks" and "If this is all they are able to dredge up after 35 years, I am not too worried."

The allegations against Kozinski are deeply troubling.  While they raise many questions, the one that I want to focus on is the issue of clerk confidentiality.  In her personal account, Heidi Bond discusses Kozinski stringent views on clerk/judge confidentiality.  She explains that Kozinski takes an expansive view on the issue--"Clerks owe a bond of loyalty to their judges, and that means 'that, under normal circumstances, whatever one learned inside the Court—whether or not it was covered by the duty of confidentiality—would not be repeated on the outside, especially if it tended to demean the Court, the Justices, or fellow clerks.'"  Because of this strict view of confidentiality that was drilled into her, she basically told no one what happened to her for many years. She didn't even feel comfortable sharing it with a therapist. After Kozinski reached out to her in 2016 asking her to share about her SCOTUS clerkship experience with an individual writing a book, she decided that it was time to explore in greater depths the topic of clerk confidentiality.

She ended up talking to several individuals in the federal judiciary, but ultimately never received a satisfactory answer. The Chair of the Judicial Conduct and Disability Committee did tell her that if her concerns were about personal misconduct by a judge she was not bound by confidentiality.  However, since she was concerned that her experiences with Kozinski could be considered related to a judicial matter (Kozinski had been subject to an ethics investigation instigated by a litigant about porn kept on a personal server but accessible in the office), he could not give her an answer. In fact, he told her "I cannot think of any person, persons, or institution that can give you an answer on this."

In writing about her reasons for speaking out, Bond writes, "I want the law clerk handbook distributed by the judiciary to explicitly state that judges may not compel clerk silence on matters like the ones I have described here. I also believe that there should be a person, or persons, or an institution that clerks can turn to in order to find answers. I understand that there are reasons why no such institution exists now—judicial independence and confidentiality must be fiercely protected. I also believe that the judiciary is capable of coming up with a solution to this problem."

Regardless of what happens with Kozinski, I do hope that Bond's wish comes true.  The clerk/judge relationship is built, as Lithwick put it, "on worshipful silence."  This is especially true when you clerk for an extremely prominent judge known for sending clerks to the Supreme Court. For many people, myself included, a clerkship is a wonderful experience and your judge serves as a friend and mentor. But, if it isn't, there needs to be a place to turn to for help.  Heidi--thanks for sharing your #metoo experience.  I hope your wishes come true!

December 18, 2017 | Permalink | Comments (0)

Saturday, December 16, 2017

Find the right answers, then ask the right questions

Question-peoples-questions-md

What they say about cross examining and depositions is also true for legal writing: asking the right questions is how you get the right answers. But legal writing is trickier — because instead of asking questions directly, you have to convince your reader to ask them for you.  

That’s because reading is solitary. When we read something, we have the luxury of re-framing the questions as we go. We don't need to ask the questions that the author asked. And the big questions often don’t spring from the page at all: they are followup questions formed as we chew on ideas.  

Early on as law students, we are told something about questioning. The infamous IRAC writing mold, for one, is really just a simple question and answer. You identify the issue — a question about whether a rule applies to a set of facts — then you offer an answer by explaining the rule and applying it. And we also learn a lot about the law through the Socratic method, which is pure questioning and answering. 

But most of us don’t think about asking questions when we write a legal document. Indeed, in your brief, you might not ask your reader any direct questions. The thing is, for your reader making the decisions, it’s all about the questions. That is how we humans process information. We ask whether the propositions we read make sense. We ask whether another proposition might make more sense. We ask whether the question posed is even the right one to ask in the first place.

Practically, it’s easy to lose control of which questions your reader is asking when they read your document. A simple issue, like whether a company is liable when one of its workers gets in a brawl with a customer, will spawn tons of new questions for your reader to answer. Some you will expect and are straight-forward; many you will outright pose to your reader as you work through the issues. For example: “Was the defendant an employee?” and “Was he acting within the scope of his employment?"

But as you get into the details, it becomes harder and harder to control the questioning process. Your reader will be asking: “What type of worker should we treat as an employee?” "Does that seem fair?" And so on. You will anticipate some of these tough questions, but it takes a lot of work and careful thought to anticipate them all (and better yet, to ensure your reader doesn’t start asking new questions that will lead them to a bad answer for you). 

The power of of your reader’s questions throughout the reading process is profound. Say you represent a company who gave confusing instructions to a worker, which resulted in an accident. If after reading your brief and the opposing party’s brief, your reader asks: “Shouldn’t an employer be liable when the worker was simply doing what she was told?”— you might as well call it in. 

But if you guide your reader to a different question instead, you might be getting somewhere: “Isn’t it unfair to hold a company liable when a worker knew the instructions were confusing and never asked the company for guidance—which would have easily prevented the harm?” 

Now the how-to. To get your reader to ask the right questions, you first need to figure out the right answers. It’s not all that different from cross examining or deposing a witness. You write out the admissions you want first, then the questions come.

These two steps are a refining process. You start with a general question you need the reader to answer. You then do a dance of anticipating your reader’s possible follow-up questions and figuring out how to guide them to the right ones. You have myriad tools in your arsenal to guide readers through this questioning process. You have the law; you have policy; you have your writing style — anything you can use to convince your reader to ask the questions in a way that leads to good answers for your client. 

So maybe you start by posing this general question for your reader: “does a three-year or five-year statute of limitations apply to a battery claim?” (knowing you need your reader to answer that it’s three years). A reader given this question will first wonder whether any courts have already addressed which period applies to this sort of claim. If not, your reader might then wonder how courts go about classifying torts under the proper period. Anticipate these questions and guide your reader to the right ones.

Let’s say no courts have directly addressed this question, but you find some authority that suggests assault, which is similar to battery, falls under the three-year period. You might first guide your reader through the self-questioning process like this: “No courts have held that battery falls under the three-year period.” You are anticipating the reader’s first question and quickly guiding them to where you want to go. Your reader’s next question will be: “Ok, then how do courts figure out which period applies to a new tort?” 

Now you come to a crucial part of the questioning process: getting your reader to ask themselves a very narrow and specific question about the law; a question that will likely govern the outcome. 

In the U.S. Supreme Court’s individual-mandate case, for example, how parties framed the commerce clause question was crucial: “Doesn't the commerce clause bar Congress from forcing people to buy things?” Or instead: “Doesn't the Clause allow Congress to regulate a market that all of us are already a part of — the healthcare market?” Both questions were reasonable, and each would lead to a different result. Which question judges and justices chose depended largely on how the lawyers guided them. 

Getting back to our statute-of-limitations example, you have that caselaw suggesting assault falls under the three-year period. And you know assault is similar to battery. So you want your reader to ask themselves this question: “Which tort is similar to battery?” Because we know that answer will be a good one for us. 

Your questioning process might unfold like this: “Which period applies to a tort turns on whether the tort is more similar to the torts falling under the three-year period, or instead, more similar to torts falling under the 5-year period.” You’ve now primed your reader to ask the right question: “Which tort is battery most like?” And because this was all part of our plan, we know the answer: assault (triggering the three-year period we wanted). 

There are lots of ways to push your reader towards the right questions. Sometimes it’s as easy as just writing the question for them: “The crucial question is whether battery is like assault.” Or you can be more subtle, using rhetorical questions or hypotheticals. Justice Kagan is a master of guiding readers to the right questions like this. 

For example, in Justice Kagan’s dissent in Lockhart v. U.S., she posed a question to her readers: 

Suppose a real estate agent promised to find a client “a house, condo, or apartment in New York.” Wouldn’t the potential buyer be annoyed if the agent sent him information about condos in Maryland or California?

Justice Kagan wants the reader to ask themselves this question outright — and she knows there is no bad answer for her position. 

And Judge Jay Bybee of the Ninth Circuit (whom Joe had the great pleasure of clerking for), is similarly sensitive to this questioning process, directly posing a series of questions for his reader to ask in this section of an opinion: 

If we insist on reading “not less than 7 days” to mean “not more than 7 days,” why should anyone reading our opinions trust that he understands them correctly? If words are so malleable, might we routinely read our own precedents as saying the opposite of what they clearly say? May one panel simply rewrite another panel’s opinion when it thinks the prior opinion is “illogical?” And where might our creativity lead us with provisions of the Constitution that don’t make as much sense as we would like? May we amend even the Constitution at will? If we think that when Congress says “less” it actually means “more,” we should not fault anyone who might, as a result, discount other things that we have written.” 

Justice Gorsuch is also aware of the importance of questioning, often framing legal issues with discrete questions for his reader — and expressly guiding his reader to the questions he wants them to ask: 

The narrow question raised by this pretrial motion is whether, if Antoine Watts is convicted of possessing with intent to distribute five grams or more of crack cocaine, the court will be compelled to impose a minimum . . . 
The broader question is whether federal courts will be required, for the next five years, to perpetuate a congressionally recognized injustice . . . 

Judge Patricia Wald is a master of setting up carefully-constructed, nuanced legal questions that will guide her reader to the answer she wants: 

This case presents a straightforward, but nonetheless hard, question of law: Has the United States waived sovereign immunity for a back pay award to an individual denied federal employment in violation of his constitutional rights? 

And perhaps one of the best examples of how a simple question can frame an entire way of looking at an issue: Kathleen Sullivan’s brief in SEC v. Siebel

“Is someone riding around a golf course from shot to shot really a golfer?”

At bottom, the important thing to remember is that any critical reader will process your writing by self-questioning. So anticipate those questions and answer them. But better yet, figure out how to guide your reader to good questions in the first place.

December 16, 2017 in Appellate Advocacy, Appellate Practice, Appellate Procedure, Legal Writing | Permalink | Comments (0)

Friday, December 15, 2017

Appellate Advocacy Blog Weekly Roundup December 15, 2017

WeeklyRoundupGraphic

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:

SCOTUS declined to take the appeal in a case involving wife swapping by public employees.  In the case, two Louisiana sheriff's deputies fell in love with each other's wives and "swapped" wives and families.  When their supervisor learned of their action, he told them to stop living with each other's spouse until divorce and to cease all contact with them until that point in time.  They refused, and they were fired.  They brought a First Amendment claim based on their right of association.  The federal district court found for the state, and the Fifth Circuit affirmed.  On Monday, SCOTUS declined to hear the appeal: 

ARTICLE.

More background on the case.

Federal Appellate Court Opinions and News:

Allegations of sexual misconduct have now reached the federal appellate judiciary, with allegations being made against 9th Circuit Judge Alex Kozinski.  Several women who served as his clerks and externs have made allegations of misconduct. 

National Center on Sexual Exploitation is calling for him to resign from the bench.

Mid week, a formal complaint was filed before the Judicial Council calling for an investigation. 

And late this week, news came out suggesting that Kozinski's staff has quit amidst these allegations.

Related:  New York magazine article asks whether the federal judiciary is ready for its "#MeToo" moment, looking at Kozinski as an example.

President Trump is on pace to have more federal appeals court judicial nominees confirmed in his first year in office than any president in history.  See this report.  

Appellate Practice Tips and Tools:

The value of oral arguments -- including mooting to help others prepare.  "Oral arguments have an intangible value that lawyers and judges seem to understand instinctively.  At best, they're conversations -- starting in midsentence and with many interruptions -- that mostly seem mutually useful."  From this article.   HT: Chief Judge Dillard.

 

 

December 15, 2017 | Permalink | Comments (0)

Monday, December 11, 2017

State Solicitors General on the Move

At the end of November, Tony Mauro posted a story for The National Law Journal on President Trump's newly announced potential Supreme Court nominees.  The list adds five new names to Trumps list.  Three of the individuals--Britt Grant, Kevin Newsom, and Patrick Wyrick--all served as state solicitors general.  Mauro notes that two of the individuals on Trump's original list--Allison Eid and Tim Tymkovich--also served as state SGs.

As Mauro notes, at least 39 states now have a state solicitor general.  State SGs are increasingly arguing before the U.S. Supreme Court, and they are moving from their SG role to important positions in the judiciary.  Newson, Eid, and Tymkovich are all federal appellate judges.  Kyle Duncan and James Ho, two of President Trump's Fifth Circuit nominees, are both former state SGs.  Sixth Circuit Judge Jeffrey Sutton was the Solicitor General for Ohio, and his role in that office served as a model for other state SG positions. According to biographical data on the Federal Judicial Center website, several other federal judges, both past and present, have served as state SGs--Gary Feinerman (IL), Orrin Grimmell Judd (NY), Richard  House Kyle (MN), Thomas Lee (SC), Emory Speer (GA), John R. Tunheim (MN).  Several federal judges in Puerto Rico previously served as Solicitor General for the Commonwealth of Puerto Rico.

Moving to state supreme courts, several former state SGs serve on the highest court of their state, including Britt Grant (GA), Patrick Wyrick (OK), Nels Peterson (GA), and John Lopez (AZ).  I am sure that there are many others (feel free to let me know in comments!).

I am extremely interested in the role of state SGs both with respect to improving advocacy in the state and federal courts and promoting federalism. These individuals, often graduates of top national law schools, play an important role in our legal structure.  I suspect that we will continue to see presidents of both parties tap these individuals for federal judicial positions.

December 11, 2017 | Permalink | Comments (0)

Saturday, December 9, 2017

Issues, issues everywhere, but not a one makes sense

Lady confused

We are taught that writing with the infamous IRAC moniker is easy, you just: (1) identify the issue (a question about whether a rule applies to facts) (2) explain how the rule works, (3) discuss how this rule applies to the facts, and (4) finish with a brief conclusion that explains how everything comes out. Sounds good in theory, but real life is too messy for IRAC (or IREAC, CREAC, or any other acronym).

After all, you can rarely answer a legal question in a single, simple: Issue/rule/application/conclusion format. Once you dig into a generic, black-letter rule, more issues spawn—more questions about how parts of the rule apply to your facts. A simple issue, like whether a company is vicariously liable for a worker’s tort, can birth tons of “sub” issues. For example: “Was Jory an employee?” and “Was he acting within the scope of his employment?” So where is our trusty IRAC now? Is it: IRIIAC?

The truth is, IRAC isn’t a perfect framework—a perfect framework doesn’t exist. But IRAC can be a powerful tool if you apply its principles and stop getting hung up on the moniker. To make IRAC more useful, we suggest you think about it a bit differently—in particular, the I and the R parts.

Let’s start with the I. The term “issue” often troubles legal writers. What, exactly, is an issue? To make the concept of an issue more useful, consider both its definition and practical use. An issue is simply: “any legal question about how a rule applies to a set of facts.” So: “Did Jory commit battery?” is an issue, as is “Does the relation-back doctrine apply to the defendant’s complaint?” In other words, “issue” is a fancy label for any legal question.

More important is what we do with issues—what’s the point of giving a legal question this special name? It’s all about signposting. We refer to issues just to remind our reader that when we analyze rules and facts, we should start by telling them which particular rule and set of facts we will next address. It’s an organizational tool, nothing more. So if you need to walk your reader through four overarching legal questions, you roadmap those “issues” for your reader first.

Rule-clipart-1268249lmuvxfrina

Now for the fun part: the R. We usually learn that the rule section is where you generally explain the rule. But consider a slightly different perspective. What you are really doing here is crafting new and more useful rules for your reader that are fashioned for your case’s facts .

First you take a clunky, black-letter rule that doesn’t cleanly fit yet. After all, black letter rules weren’t made for your case (or any other case in particular). They are a starting point.

Then after researching the law you refine that generic rule into new ones that more closely fit your facts. Think about it like this. You start with a lump of marble—your general rule. You then slowly chisel it into a statue—the more specific and bite-sized rule or rules that cleanly address your facts.

To see why refined rules are better, take a simple example. Imagine your client is sued because one of its employees punched someone during an unapproved break. Which rule is more effective?

A generic rule, like: “An employer is not liable when an employee commits a tort not within the scope of employment.

Or a more refined rule that you crafted yourself:

“This court has consistently held that when an employee takes a break without his employer’s permission, the employer cannot be liable for what the employee does on that break.”

A rule refined for your facts like this boxes in the judge and the other side, making it clear how the rule applies to your facts. Yes, you are explaining your rule. But you are also creating a new rule altogether.

Sounds good, but how exactly do you refine rules like this? There are two ways.

First, you can divide the rule into smaller parts. This allows you to discuss the rule in bite-size chunks (which is a lot easier to apply). Sometimes the benefits of dividing the rule are obvious, like if courts already separate the rule into elements.

Other times, you realize it makes more sense to separately analyze different aspects of the rule even though no court has told you so. For example, maybe you identified two situations where a rule commonly applies, say in cases of intentional behavior and cases of reckless behavior. You could craft two new rules: one for intentional conduct and one for reckless.

When crafting new, smaller rules, you have a few options for organizing how you discuss them. One option is to create separate sections in your document; each section explains and applies the new, refined rule. This works best anytime your new rules require a lot of explanation and application.

Let’s explore an example. You research the law and decide that the defendant can meet the intent rule for battery if either (1) he intended to injure or (2) he was reckless about injuring. You could divide this intent rule into two new rules like this:

"Courts have held that a defendant intended a battery if either (1) he intended to injure or (2) he was reckless about injuring. Here the defendant qualifies under both theories.

Intent to injure

[Explanation of the intent to injure rule]

Reckless injury

[Explanation of the reckless injury rule]"

Another option is to discuss your new rules in the same section—and then apply each new rule separately. If you go this route, use separate paragraphs and signposts to tell your reader exactly which rules you are explaining and applying where. Then apply each separate rule in the same order that you explained them. For example, taking the same new rules again:

"Courts have held that a defendant intended a battery if either (1) he intended to injure or (2) he was reckless about injuring. Here the defendant qualifies under both.

Courts have held a defendant intends to injure . . .

As to reckless injury, courts have held . . .

The defendant intended to injure here because . . .

The defendant was reckless here because . . . "

In addition to dividing, you can also refine a rule by adding clarifying details about how the rule works. Anytime it’s not obvious what a rule means, you should consider adding clarifying details to make it clearer. So instead of saying an employee’s conduct must be within the “scope of employment,” you can add detail: “scope of employment, which includes an employee’s specific job duties and anything roughly related to those duties.” By creating more specific rules that fit with your case’s facts, you guide your reader to how the case should come out.

Most important, though, is that good lawyers repeat this rule-refining process as many times as they can. Above we refined the generic, black-letter rule for intent into two new rules—one for intentional acts and one for recklessness. You would want to try to refine these rules again, either by division or adding details about how they work. And once you’ve refined that rule, try to refine it again, on and on. The more specific and bite-sized you can make your rules, the better your reader will understand you (and the more persuasive your writing will be).

Consider your new intent to injure rule. You could refine it by adding clarifying details: “Courts have held that a defendant intends to injure if he wanted to hurt the victim, even in a minor way—he need not intend to commit the injury that the plaintiff actually suffered.”

To recap:

  1. An issue is simply a question about whether a rule applies to a set of facts.
  2. Identifying issues can be helpful because it usually means you should include a signpost for your reader: “Hi reader! Next I am talking about the question of whether the facts here are an intentional battery.”
  3. The rule explanation process is really about taking charge of rules and refining generic standards into more specific versions that cleanly line up with your facts.  
  4. You can refine rules in two ways: (1) dividing them into smaller rules or (2) adding clarifying details about how the rule works.
  5. Don’t stop after you’ve refined a rule once. Try to refine it as many times as you can. The more bite-sized your rules and the more cleanly they apply to your case, the more persuasive you’ll be.

 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. 

December 9, 2017 in Appellate Advocacy, Appellate Practice, Appellate Procedure, Law School, Legal Profession, Legal Writing | Permalink | Comments (0)

Friday, December 8, 2017

Appellate Advocacy Blog Weekly Roundup December 8, 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 Opinions and News:

On December 4, 2017, the United States Supreme Court allowed the Trump administration's travel ban to go into full effect. Lawrence Hurley has this report. The Court's two orders can be found HERE and HERE.

On December 5, 2017, the United States Supreme Court heard oral arguments in Masterpiece Cakeshop v. Colorado Civil Rights Commission, which has dominated Supreme Court news this week. The audio from the oral argument can be found HERE, and transcripts of the oral argument can be found HERE. As expected the Court seemed divided over whether a cake was expressive content protected by the First Amendment. Nina Totenberg discussed the division during this segment on NPR. Cristian Farias, in this essay, argues that the issue in Masterpiece Cakeshop already has been decided against the shop owner. Rick Hills at the PrawfsBlawg argues that "respect for federalism's role in defusing deep disagreements should lead the Court to affirm by deferring heavily to Colorado's characterization of its purpose." In this article at Vox, however, Douglas Laycock and Thomas C. Berg contend that the "Court can recognize a carefully defined right in the case of Jack Phillips, the owner of Masterpiece Cakeshop, and make room for both sides in the culture wars." 

 

Appellate Practice Tips and Tools:

 shared this advice that Nellie Taft gave to her husband, Solicitor General William Howard Taft, about the length of his briefs. 

 

 

December 8, 2017 | Permalink | Comments (0)

Thursday, December 7, 2017

Thinking Thursdays: Negativity, Empiricism, and Legal Advocacy

Negativity landscape

Professor Ken Chestek at the University of Wyoming College of Law has created two different empirical studies about persuasion and narrative, using judges as the test subject. For that rarity alone, his scholarship stands out as important for lawyers to read. In his most recent article, Fear and Loathing in Persuasive Writing,[1] he asked the question of whether the “negativity bias,” known to psychologists, works with judges as well as it works with voters. The answer is the standard one you would expect from a lawyer, “it depends.” That the answer isn’t a definitive “no way,” should give us pause as advocates. Our intuitive answer that we naturally graviate towards the positive turns out to be the opposite of how our brains work. Rather, as Chestek writes, “we have a natural inclination to attend to and process negative stimuli.” Scientists posit that we retain negative information longer because the brain processes it more thoroughly—perhaps as a necessary adaption in evolution to keeping ourselves alive. He reviews the science of negativity and implications for lawyers in greater detail in another recent article, Of Reptiles and Velcro: The brain’s “negativity bias” and Persuasion

In his eighteen-month empirical study with 163 judicial readers, Chestek used a series of nine appellate brief preliminary statements to test the power of positive versus negative themes in a simulated case file. Four were positive, four were negative, and one was neutral.[2] By themes, Chestek references George Lakoff’s formuation of “deep frames,” an idea Chestek wrote about in his other empirical study about judges and the persuasive power of story (You can read a snippet of George Lakoff’s framing concepts here).

Ultimately, Chestek’s concludes that the results don’t provide bright-line answers, but instead point towards complexity. Positive themes seem to focus the judges’ attention on the state of the governing law whereas negative themes focus their attention more on the nuances of the facts. He also found that negative themes work better for a David facing Goliath rather than vice versa.

 This phenomenon has significant implications for written legal advoacy, starting with theme selection. That strategy should factor in the strength of the legal position or the facts. Second, the negativity bias might lead an advocate to phrase policy arguments in terms of avoiding bad outcomes instead of promoting good outcomes, since the judge may process the negative statement more thoroughly. And, finally, the negativity bias suggests that it is critically important to understand the negative facts of your client’s case and the ways they can or cannot be managed.[3]   

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[1] Published as the lead article in Volume 14 of Legal Communication & Rhetoric: JAWLD

[2] For more on the persuasiveness of Preliminary Statements, see Steve Johansen’s article, Coming Attractions: An Essay on Movie Trailers and Preliminary Statements, and Maureen Johnson’s article, You Had Me at Hello: Examining the Impact of Powerful Introductory Emotional Hooks Set Forth in Appellate Briefs Filed in Recent Hotly Contested U.S. Supreme Court Decisions.

[3] Base photograph by Kenneth D. Chestek—photography is one of his hobbies.

 

December 7, 2017 in Appellate Advocacy, Appellate Practice, Law School, Legal Profession, Legal Writing, Moot Court, Rhetoric, State Appeals Courts | Permalink | Comments (0)

Monday, December 4, 2017

An Appellate Advocacy Teaching Trifecta

Training future appellate advocates can be hard.  But when the bench, bar, and legal educators work together the results can be amazing.  Last week I saw a perfect example of this cooperation when students in the Advanced Legal Writing classes at the University of Arizona James E. Rogers College of Law presented their final arguments for the course at the Arizona Court of Appeals, Division 2.  The arguments were presided over by Division 2 judges, law clerks, staff attorneys, and local attorneys.  In fact, each Division 2 judge participated in at least 2 arguments, and all of the judges were extremely well-versed in the complicated copyright problem that the students had briefed. 

The result of this cooperation was a truly fantastic experience for everyone involved.  The students had an opportunity to experience a real courtroom argument before a real judge--from the "all rise" to the blinking red light.  The students also got some excellent feedback and encouragement.  Several judges commented favorably on the quality of advocacy that they saw from the students. They encouraged students to present a clear theme and roadmap, answer questions directly, and be true to their individual styles. 

The law clerks and attorneys seemed to enjoy being on the other side of the bench.  Many of the law clerks at Division 2 are recent Arizona Law grads who participated in moot court in law school.   They had excellent tips for the students as well.  

Finally, as a professor whose students were presenting argument, it was nice to sit back and just watch and grade the argument, rather than always jumping in with questions. For teachers of appellate advocacy who read this blog, I would encourage you to consider partnering with your local appellate court for final arguments.  It is a tradition at Arizona Law that I hope continues.

December 4, 2017 | Permalink | Comments (0)

Sunday, December 3, 2017

The Immutable Rules

Blogpost

Like most folks who enjoy the craft of writing, I’m not a prescriptivist. At least, not generally. 

When I teach legal writing (and when I write something myself), I come from the perspective that most rules can be broken. If I were a chef instead of a writer, I would prefer the “pinch of salt” method to breaking out the teaspoons and precisely following the recipe. It’s not that I don’t think writing rules and tools help, it’s just that writing (like all human communication) is too complicated for a set of inflexible regulations. 

That said, I do think there are some principles that, while perhaps not set in stone, are at least less fluid. And there is some value in distinguishing between which of your writing rules are relatively unchanging and apply broadly to every document you write — and which rules you should follow only with good reason. By reminding yourself which rule is which, it can be a bit easier to question the rules you follow. 

I imagine we all have our own set of principles that we stick to regardless of the document or case. When I teach legal writing, I call mine the “9 immutable rules.” They occasionally change, as my views on writing and my writing process change. But in broad strokes, they have stuck by me for quite some time now. 

I hope that you might consider adding a few of these to your own set of immutable rules. And that you might spend some time thinking about which of your rules deserve to join the club (I just broke a rule right there!). 

1. Reprogram your writing intuition

Just reading about how to write better isn’t enough. When you are in the flurry of writing and wrestling with complex legal questions, the last thing on your mind is some new stylistic flourish you wanted to try. Instead, set aside time to make new writing moves a habit — in other words, reprogram your writing intuition.

It starts with finding new moves you want to incorporate into your writing. Maybe you want to remember to use more concrete verbs, use transitions more, or to tee-up key issues with a rhetorical question. Make a running list of new writing moves that you want to use and keep it handy.

The second step is the tough part: making these moves part of your intuition. There are a number of things you can do: for a few weeks, take the set of moves you are working on and try to spot them in the things you read every day; force yourself to use the moves a few times each day before you start working on projects; use checklists after every project until the move becomes second nature — frankly, it doesn’t matter what methods you use, just take the time.

2. Take active control over your writing moves — down to each word

Writing: Develop the habit of asking why you are making the writing choices you are, get away from autopilot (at least in the editing phase). What does that word, or that sentence, do for you?

Reading: Develop a habit of noticing what moves are being used by the authors you are reading everyday — both legal and non-legal. Why did the author use that phrase? That structure? What works better for you?

3. Adhere to the 2-minute rule

Assume you only have 2-minutes of writing to make your case with any legal reader — because frankly, that may be all the time you have. Allocate your fire by homing in on those points in the law and facts that the case hinges on. Every extra word, sentence, paragraph, or point lessens the force of the things that matter.

This principle applies to your document as a whole (your introduction must pack a punch and include all the key rules and facts you need your reader to walk away with); section by section; and paragraph by paragraph. Pay attention to the beginnings. 

4. Adhere to the 1-read rule

Write so that your reader need only read each of your sentences one time to absorb all the information packed inside. Assume that forcing your reader to reread a sentence (or even a word) means you lost them forever. And indeed, it might mean just that. Ask folks to edit your work for this one-readability.

Remember that psychology tells us that, often, writing is a race to making mental connections. The first person to get a reader to simply understand a way of looking at an issue may prevail. That’s because once someone makes a logical mental connection, it has inertia — it takes more energy to break it.

5. Phase-edit over time

Remember that it’s impossible for the human mind to edit for everything in one sitting — you must break the process up into phases, with time to get away and get a “fresh reader” perspective.

So, perhaps, your first phase is editing for content; then you edit for your first ten style moves; then your next ten. And so on. 

6. Take control of the rules and use them to reduce the gray areas in your case

Build your own rules from authority; do not rely on cases or statutes to dish them up. Because only you can explain the rule in the way you have come to understand it after days or weeks of researching and turning it over in your head. Cases or statutory language won't do that for you on their own. A good-sounding quote won't necessarily cut it.

Explain your rules clearly enough, specifically enough, and simply enough so that the judge is given less discretion. Identify where a judge has discretion and figure out how to guide that discretion.

Try to build rules that seamlessly link up to the facts that matter.

To make sure you have built a strong rule, force yourself to write out difficult rules so that they come out the opposite way. Because that is what the judge will do.

Once you have created these nuanced rules, ensure your reader will see it; make them obvious in your document. This means putting your take on the important rules in your introduction, in the leads to your sections--anywhere your reader will see them. 

7. Prove your rules

In explaining rules and analyzing them, show each step of your reasoning process — like a math problem. Use all the persuasive tools at your disposal to convince your reader that the rules work in the way you say they do. Having a good explanation of the rules does you know good if your reader does not believe you. 

8. Hand hold

Keep in mind that your reader should never be lost at any point in your document. This means that every single fact, rule, or other part of your writing cannot come as a surprise.

Use umbrellas, signposts, and transitions. You must give everything context before you dive in.

9. Always tell a story: about the law and the facts

Your reader has heard your facts and your rules before, albeit slightly different versions. Think through how you can meld your story with the existing stories your reader likely knows in a way that tells a cohesive story.

So if you advocate for a new exception to a rule, explain this exception by fitting it into the existing story about how that rule works as a whole. We all process the world by converting information into stories. By ensuring you always tell the whole story, you ensure your reader will follow along. 

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. The views expressed above are solely his own and are not intended to be legal advice. 

December 3, 2017 | Permalink | Comments (0)