Appellate Advocacy Blog

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

Saturday, May 19, 2018

The Art of Legal Writing: The Sentence

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Unlike the neglected stepchild of writing (the paragraph), sentences get plenty of attention. Dozens of books tell you how to write the "perfect" one. Dozens more try to convince you that the "perfect" sentence doesn't exist. Heck, you can probably get a PhD in the "study of sentences" (I don't know if that's a real thing, but it could be). 

The sentence is a real powerhouse; it's true. When we think of great writers, we often remember their greatest sentences. Take Abraham Lincoln. Maybe you recall a couple of his most memorable sentences. Perhaps this one, which seems as relevant today as it was in the 1800s: 

You can fool all the people some of the time, and some of the people all the time, but you cannot fool all the people all of the time.

Sentences can make your reader experience things. I dare you not to cringe as you read this sentence from Penelope Lively:

The pavement rises up and hits her. Slams into her face, drives the lower rim of her glasses into her cheek. 

The pavement is nearly alive, reaching out and slapping you. There is a real power in learning how to write sentences that impact people like this, especially for lawyers. 

But the topic of good sentences can be overwhelming. It's the stuff of Lincoln and Oliver Wendell Holmes. Writing good sentences can seem like an art that only artists do well. First you must attend a silent retreat in a cabin deep in the woods; second, write sentences over and over until the trash can overflows with discarded drafts.

And there is so much advice about how to write sentences that you may just want to give up on the whole endeavor. Better to just rely on your good ole' sentence rules that you picked up in college (always write in the active voice, and always avoid long sentences). 

But consider spending some more time with our friend the sentence. You need not be T.S. Eliot to write exceptional ones. You just need to practice. You aren't going to play the piano in a week, and you aren't going to write great sentences in a week. But there are techniques to learn. And there are sentence-structures to practice. And if you set aside some time to work on your sentences, they will improve. And pretty soon, they will shine. 

One type of sentence technique that you can drill is sentence forms. I love the "apositive cluster" form, which involves using a cluster of examples to illustrate a concept: 

Stacks of books, cavernous classrooms, excited chatter—these mean law school to students.

Another favorite is the "echo word" form, which connects ideas by a common hub word: 

She has a satisfying life, satisfying because of her career and satisfying because of her family.

Or an implied verb form: 

Jenny loves quiet days; Andy, the loud ones. 

These are just a few examples of the many, many sentence forms that you can learn. And each has its uses.  

Then there are more fundamental sentence techniques. Here are five from some reputable sources (including the work being done in cognitive science and readability). There are many more you should learn--for example, verbs requires an entire article of their own--but these are a good start. 

First, pay attention to the start of sentences. The start sets your reader up for everything after. Invite your reader into your sentences with simple, familiar words that put them at ease. Do this by: (1) avoiding introductory phrases, (2) beginning sentences with short words, and (3) beginning sentences with familiar words. 

Avoid intro phrases that aren't needed. They waste your reader's attention and make your sentences a burden: 

Without any need whatsoever, lawyers continue to open their mouths.”

Becomes: 

“Lawyers needlessly open their mouths .”

Start with short words if you can. Short words want to be read. It was true when you were six and it's true now: 

Being funny is not part of lawyering. Additionally, a “funny lawyer” is impossible as a matter of physics. 

Becomes: 

Being funny is not part of lawyering. And a “funny lawyer” is impossible as a matter of physics.

Start your sentences with words that your reader knows something about. Familiar words feel comfortable; new words scare them away: 

“Courts hate word vomit. Something you can fix is word vomit.”

Becomes: 

“Courts hate word vomit. But word vomit is something you can fix.”

Second, pay attention to the end of sentences. The end is emphasized; it's what your reader remembers. So put at the end what you really want your reader to remember. Watch how changing up the ends of these sentences shifts which idea is emphasized: 

“Steve died in Seattle two weeks ago.”

“Steve died two weeks ago in Seattle.

“Two weeks ago, while visiting Seattle, Steve died.”

Third, avoid multiple clauses, but if needed, prefer a subordinate or relative sentence structure. Each additional clause imposes a cost on your writing flow (and your reader's attention). Very skilled writers can guide a reader through even the most complex set of clauses without a hitch. But most of us aren't there yet. Much better to keep things simple until you have the writing chops to start lining up your sentences like train cars, one idea after the next: 

Jory, without knowledge of who the victim was, and without knowing why he was doing so, slapped Joe.

Becomes:

Jory slapped Joe without knowing why he was doing it or who his victim was.

Sometimes you need multiple clauses to explain things clearly. If so, opt for structures that smoothly communicate how each clause relates to the other--subordinate or relative structures. 

I won't belabor the technicalities, but when I say subordinate or relative, I mean that you should try to show the relationship between the clauses in an obvious way. 

For example, you could say: 

“The judge granted the silly motion, and the lawyers were atrocious.”

In that structure, you are telling your reader two things (the judge granted a motion and that the lawyers were bad), but you aren't explaining how those two ideas relate to each other. If there is no relationship between the clauses, you should probably use separate sentence. 

But if the relationship matters, show your reader from the outset: 

Even though the lawyers were atrocious, the judge granted the silly motion.”

Fourth, short sentences punch. Varying your sentence lengths is generally a good idea (so is varying your use of punctuation). But use extra short sentences to emphasize key points or slogans, particularly at the end of paragraphs. The occasional short sentence can stop your reader in their tracks: 

“Substituting one decision maker for another may yield a different result, but not in any sense a more ‘correct’ one. So too here.” –Justice John Roberts

Finally, be thoughtful about the subjects you choose and where you put them. Who sits in that subject position matters. Opt for subjects that people can visualize or connect with, like people or things; try to ensure the subject is in the first five or six words of each sentence, lest your reader get lost; and start at least a third of your sentences with the subject.

The search was conducted several times, but no contraband was revealed.” 

Becomes: 

Police searched several times, but found no contraband.”

And: 

“Making sure their bills were paid first, the attorneys filed the motion.”

Becomes: 

The attorneys made sure their bills were paid—then filed a motion.”

If I've convinced you of nothing else, I hope you at least agree that great sentences are within your grasp. Now go start your own sentence adventure.

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

May 19, 2018 | Permalink | Comments (0)

Friday, May 18, 2018

Appellate Advocacy Blog Weekly Roundup May 18, 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:

The Supreme Court made news last week when issuing its opinion in Murphy v. NCAA, paving the way for states to individually legalize sports betting and striking down as unconstitutional a federal law that limited sports betting.  See the SCOTUSblog page on the case for a variety of entries and articles about the case and its potential impact:  HERE

Empirical SCOTUS took a look last week at the "state of the states" before SCOTUS, reviewing the issues that arose out of state courts during the prior term and how they were handled.  See the article HERE.

Bloomberg compiled a listing last week of the funniest moments from the Supreme Court's 2017 term.  Check it out HERE.

This past week marked the anniversary of Brown v. Bd. of Education, decided in 1954. 

Federal Appellate Court News:

Diana Murphy of the Eighth U.S. Circuit Court of Appeals, the first woman to serve on an appeals court, passed away this past week at the age of 84.  Article from the Minneapolis Star Tribune HERE.

State Appellate Court News:

The New Mexico Supreme Court revisited a case this past week concerning the use of state funds to pay for textbooks for private schools, in a case that may provide the basis for rulings in similar cases in other jurisdictions.  Article HERE.

Practice Pointers and Tips:

A recent article in the Virginia Law Review addresses whether rules committees should have an amicus role cases where the Supreme Court has to interpret the federal rules that are largely drafted by the committees.  See Scott Dodson, Should the Rules Committees Have an Amicus Role?, 104 Virginia L.Rev. 1 (2018).

May 18, 2018 | Permalink | Comments (0)

Monday, May 14, 2018

Trailblazing Appellate Moms

In honor of Mother's Day, I was thinking about some of the amazing women I know who both practice law and raise kids.  I could list several, but as I was considering the trailblazing appellate moms, my thoughts turned to the first two women on the Supreme Court--Sandra Day O'Connor and Ruth Bader Ginsburg.

Sandra Day O'Connor was born in 1930 in El Paso, Texas.  She graduated third in her class from Stanford Law School in 1952 (the same year as William Rehnquist graduated from Stanford).  According to the Sandra Day O'Connor Institute:

After graduating from law school, O'Connor busily went about applying to law firms in San Francisco and Los Angeles, but because of the prejudices against women at that time, she could not get a job as a lawyer. She was offered a position as a legal secretary, which did not match her education and training. Instead, she took a position as a deputy county attorney in San Mateo, California, initially offering to work for no salary or office, and where she shared space with a secretary.  

During this same time she got married, and she and her husband spent some time overseas.  They eventually returned to Arizona, and she eventually took a job in the Arizona Attorney General's office, after taking some time off to raise her three sons.  She later served in the state senate, on the Maricopa County Superior Court, and on the Arizona Court of Appeals.  It was from the state appellate court that President Reagan picked O'Connor to serve as the first woman on the U.S. Supreme Court.  O'Connor served 24 years, retiring to, among other things, spend time with her husband.  

Ruth Bader Ginsburg also has an amazing story.  Born in 1933 in Brooklyn, she attended Cornell University, graduating in 1954.  She was married that year and quickly had her first child.  She actually started attending law school when her daughter was barely just one year old.  According to a biographical website:

[Ginsburg] encountered a very male-dominated, hostile environment, with only eight other females in her class of more than 500. The women were chided by the law school's dean for taking the places of qualified males. But Ginsburg pressed on and excelled academically, eventually becoming the first female member of the prestigious Harvard Law Review.

Prior to her appointment and confirmation to the Supreme Court, Ginsburg was an accomplished attorney, serving as the first female tenured professor at Columbia and arguing 6 important cases for the ACLU before the U.S. Supreme Court.  She served on the D.C. Circuit for over a decade before being nominated and confirmed to the U.S. Supreme Court in 1993.  As Jennifer mentioned in a recent post, she is also the subject of a newly released documentary.

Thank you to these trailblazing female appellate attorneys, and a happy belated mother's day to all the moms out there.

May 14, 2018 | Permalink | Comments (1)

Friday, May 11, 2018

Appellate Advocacy Weekly Roundup May 11, 2018

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 Real a quick email atDReal@Creighton.edu or a message on Twitter(@Daniel_L_Real). 

Supreme Court Opinions and News:

Adam Feldman from Empirical SCOTUS writes about data and analysis of SCOTUS oral arguments--how much justices spoke, what they spoke about, and who spoke--from the past term.

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Ilya Shapiro from The Federalist has this review of what decisions from the past term tell us about the newest member of SCOTUS, Justice Gorsuch.

Article

           

Federal Appellate Court Opinions and News:

A 9th Circuit nominee apologizes for comments made in a Stanford newspaper back in the early '90s. 

Article

 

State Appellate Court Opinions and News:

Justice Neil Gorsuch swears in Nebraska Supreme Court's youngest member, Jonathan Papik, stating "I can assure all of you, the job is safe with him." 

Article

 

 

Appellate Job Postings:

U.S. Solicitor General's Office--attorneys 

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GA Supreme Court--judicial law clerks

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New federal law clerk hiring plan/process pilot program)

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May 11, 2018 | Permalink | Comments (0)

Thursday, May 10, 2018

Thinking Thursdays: Two-spacers, please stop being so selfish

 

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

The big news this week in field of law and typography[1] was a Washington Post story about a study that purports to settle the one versus two-space controversy that rages on appellate-minded websites, listservs, Facebook pages, and Twitter accounts. Even on this Appellate Advocacy Blog, editor Tessa Dysart chimed in earlier this week. For those of you who are two-space fanatics, I am going to do more than repeat what you may have already heard, i.e. that the study is deeply flawed (although I will quickly review it). Mostly, I am going to suggest that you reflect on your dry, compassionate-less soul and then put down your personal preferences to instead be a citizen of the world.

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But before I continue along these lines, I want to reiterate the scientific flaws in the study that have been ably and articulately pointed out by the best typographer and design expert in law—Matthew Butterick. I have had the pleasure of presenting with LWI Golden Pen recipient Matthew Butterick, and I know that when he writes something, he’s carefully researched and analyzed it first. Right away, Butterick calls attention to the central flaw of the study. It was done using the monospaced (typewriter-like) typeface of Courier, which is still required by the upper courts of New Jersey. To try and shake loose the New Jersey committee overseeing court rule changes, I researched the educational and cognitive science of readability and in 2004 published Painting with Print: Incorporating Concepts and Layout Design into the Text of Legal Writing Documents. The New Jersey officials were not persuaded but other courts were, and the article appeared by invitation on the 7th Circuit’s website for twelve years.

Because it is a monospaced typeface, two spaces must appear at the end of each sentence. Otherwise it is too difficult to determine whether there has actually been a break in the prose. But people don’t use typewriter fonts when they have the choice to use a proportionally spaced one such as the one you are reading right now. And there’s a reason for that. Courier, and typefaces like it, are 4.7% more difficult to read than proportionally spaced type. That equals a slowdown of fifteen words per minute, which Dr. Miles Tinker, the lead psychologist who studied the issue deemed “significant.” In his studies, readers consistently ranked proportionally spaced typefaces ahead of monospaced ones.[2] In other words, the new study is flawed both in using a typeface that people don’t normally choose, and in using a typeface that essentially requires two spaces to be able to discern the difference between the end of a sentence or not. The people conducting the study put the cart before the horse. That’s just poor science.

Now, I promised you a lambasting, and here it is. Two spaces after periods take up more space and for lawyers who find themselves up against a page limit, or who wonder why paper is so expensive, think about whether you can save yourself some space and money by switching over to one space instead.[3] You can also cut down on use of one of the most noxious and wasteful products we use: paper. In this country, paper is the largest source Eagle_Paper_and_Flouring_Mill_Kaukauna edited of municipal waste, and paper creation is the fourth worst industry for the environment. I wrote about this too, in a follow-up article, Conserving the Canvas: Reducing the Environmental Footprint of Legal Briefs by Re-imagining Court Rules and Document Design Strategies. Two spaces after periods actually contribute to the polluting of the environment. Yes, that extra space really does cost something to use.

And, if you are in the Seventh Circuit, you don’t even have a choice. The judges care a great deal about typography and instruct lawyers to use only one space after periods.

Al Gore thumbs up editedSo, there you have it, two-spacers. An inconvenient truth. There’s logos, pathos, and ethos to using only one space. Your preference harms the Earth, eats into your page limits, and costs you and your clients more money to use. The so-called study is junk science. Are there really any justifiable reasons left to continue your inconsiderate punctuation practices?

 

 

 

[1] Sure, that’s a thing, per Derek Kiernan-Johnson

[2] Miles A. Tinker, Legibility of Print 47–48 (Iowa State U. Press 1964) (synthesizing several decades of psychological research on typeface and readability).

[3] There are also other ways to save yourself some money and ecological ruin. When rules don’t require double-spacing: don’t. It’s harder to read anyway. And when courts allow you to use double-sided printing, do so.

May 10, 2018 in Appellate Advocacy, Appellate Court Reform, Appellate Practice, Appellate Procedure, Federal Appeals Courts, Law School, Legal Profession, Legal Writing, Moot Court, Rhetoric, State Appeals Courts, United States Supreme Court, Web/Tech, Weblogs | Permalink | Comments (0)

Monday, May 7, 2018

Are Two Spaces Better Than One?

What better way to start out your Monday morning than a debate on the number of spaces to put after a period?  On Friday, May 4, the Washington Post published a story about a recent study that found that putting two spaces after a period improves readability.  The study, conducted by psychology researches at Skidmore College, had 60 students type a paragraph read to dictated to them.  Of the 60 students, 21 put two spaces after the period.  The researches then had the students read some paragraphs and used eye-tracking software and comprehension questions to test readability. 

The study concluded that the two spaces, according to the Washington Post, made "reading slightly easier."  But as the Post story and another article by typography expert Matthew Butterick point out, the answer really isn't that simple.  First, the only people who showed improvement were those who originally typed with two spaces after the period, and the improvement was pretty slight.  Second, Butterick notes that the improvement was only in reading speed and not in reading comprehension.  Third, the experiments were conducted using Courier New font, which is a fixed-width font that is very different from the modern variable-width fonts used more commonly today on computers.  Butterick points out a few other faults in his article, including the fact that the paragraphs the students had to read were rather short.

As readers of this blog can tell, I am fiercely loyal to the two spaces approach (and the Oxford comma, but that is another story).  While I would love to make some argument about readability, for me it is just force of habit.  Those two clicks of the thumb on the space bar are just second nature.  As we move into more and more electronic reading, I do wonder if the spaces provide a little break for the eye or an informal mind cue that that a sentence is ending.  So, I will keep my double spaces (and publishers and law reviews will continue to remove them).

 

May 7, 2018 | Permalink | Comments (1)

Saturday, May 5, 2018

Pulling at the judicial heartstrings: emotion-laden language in your legal writing

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We know that triggering the right emotional response in our readers is a powerful legal writing tool. For better or worse, emotions affect legal decision making.

But how does that square with the longtime advice--given by legal writing gurus ranging from Bryan Garner to the late Justice Scalia--to avoid emotionally-laden language and overt plays to a judge's emotions? This advice is nothing new. It has been around for hundreds of years. Nor is it political. Justice Sotomayor remarked during her confirmation hearing: “Judges can’t rely on what’s in their heart. . . . It’s not the heart that compels conclusions in cases, it’s the law.” Likewise, Justice Scalia advised attorneys not to “make an overt, passionate attempt to play upon the judicial heartstring” because “[i]t can have a nasty backlash.”

Yet many lawyers can't help themselves. You don't have to look very hard to find examples of lawyers using obvious emotional plays in courts across the nation--state and federal, big stakes and little. 

Take this gem from a firm that will remain unnamed: 

The defendant is nothing more than a weasel. He sniffed around for evidence to fire plaintiff, then when he couldn't find any, slinked away to find another victim. The defendant's deplorable conduct deserves swift and entire justice. 

Some lawyers defend this sort of emotionally-charged language as part of our job to "zealously" advocate for our clients.

For one, that is not technically a thing. Over two decades ago, the ABA replaced the duty to "zealously advocate" with the duty to use "reasonable diligence." And this shift was no accident. It came on the heels of a national discussion (that continues today) about the state of professionalism in modern legal practice. As one court explained: “[w]ith alarming frequency, we find that valuable judicial and attorney time is consumed in resolving unnecessary contention and sharp practices between lawyers . . . [and] refereeing abusive litigation tactics.” Dondi Props. Corp. v. Commerce Sav. & Loan Ass’n, 121 F.R.D. 284, 286 (N.D. Tex. 1988).

For another, we now have proof that blustery, emotional lawyering doesn't work. According to a recent and quite fascinating study, empirical evidence shows that emotionally-charged language is more likely to harm than help. 

A powerhouse team of researchers set out to test whether emotional language influences a brief's chances of success. The team used complex software to test 1,677 cases decided in the Supreme Court from 1984 to 2007. The software flagged emotionally-charged words like “outrageous,” “apprehensive,” “wonderful,” and “glorious.” 

The researchers did an admirable job of attempting to control for a number of factors, including case quality, attorney quality, oral arguments, and the court's ideological preferences. After all of this was taken out of the equation, the results were clear: the more overt emotional language in a brief, the less likely that brief was to convince a justice.

I assumed that, like most empirical studies on writing quality, various hard-to-control-for factors would would mean that the results of the data would be nominal. But quite the opposite. For petitioners, the impact was about 10% to the negative--using this language reduced your chances of success by about 1 in 10. For respondents, the difference was even bigger--coming in at a whopping 16% negative effect. 

Given the lengths lawyers go to in trying to eek out just a slight increase in their chances of success--take, for example, the amount spent on jury consulting these days--this research should make any lawyer think twice before loading up their documents with heart-wrenching language.  

The authors surmise (and I tend to agree), that the harms are caused by attorneys simply losing credibility with their audience. Judges and lawyers want to view themselves as followers of the law. The more you come off as trying to ply a judge with emotion instead of logic, the less the judge will respect what you have to say. 

The easiest way to avoid a blatantly and patent emotional tone? Simply cut down on your use of lazy descriptors. Often we insert adverbs and adjectives into our sentences in an attempt to manhandle our reader into feeling a certain way about a fact or argument. For example: 

This was a heinous and viscous attack that caused severe and permanent injuries to plaintiff.

Instead, use choice details and clean prose to focus your reader's attention where the emotional response will build naturally: 

The defendant used an aluminum baseball bat to beat plaintiff until his knee caved in

Another move to reduce obnoxious emotional language and increase your credibility: avoid any sort of name calling and petty characterizations--whether it be about parties, attorneys, or anyone else. State the facts about what a party or attorney has done. But as soon as you start characterizing or name calling, your credibility disappears. You implicate yourself in the drama. 

For example, Bryan Garner shares this sample in a recent article

Seeking once again to dupe this Court and to waste the time and money of OpusTV, thereby meriting the imposition of pretrial sanctions by this Honorable Court, Rembrandt has submitted woefully deficient infringement contentions to OpusTV. Rembrandt’s current violations, outrageous as they are, follow closely on the heels of its previous violations of the Joint Discovery Plan.

Garner is spot on in his followup comments "You’re asking the judge to become empathetically aligned with your position, to walk with you. If you’re excoriating the other side with emotional billingsgate (yes, I’m afraid I used that word), you’re making it hard for the judge to adopt your position." 

Exactly (and who doesn't love cool words like "billingsgate"). I recently asked Judge Jennifer Dorsey about this same issue, and she and Garner are on the same page: 

Let the judge judge; don't you do it. A lawyer should paint the picture with true, hard facts describing conduct that will lead the judge to do what the judge does—pass judgment. Don't usurp the judge's function by jumping to the conclusion for her.

Even if your anger is justified because an attorney or party is truly a bad actor, by allowing emotion to bleed into your writing, you may make yourself just as unlikable. If that happens, the judge will do anything she can to not join with your position. Pretty much worst case scenario.  

A less obvious tip is to carefully craft your document and case themes to have an emotional flavor, but also a concrete grounding in the law. If your theme stems entirely from emotion, it may backfire on you. So perhaps instead of a theme painting a plaintiff as a "bad actor," you opt for a theme about how acts like the plaintiff carried out are precisely what Congress meant to regulate in passing the relevant statute. 

Next, try to remove yourself from the equation as much as possible. There is rarely a reason to write in the first person--or to make a point based on your "belief" or "position." Make your arguments all about what the facts say or what the authority says.

So not:

"Our position is that this discovery is too burdensome to be permitted." 

But instead: 

"This discovery will burden defendant with an estimated $2 million in costs, which is not warranted under the Federal Rules for X and Y reasons." 

In sum: emotions are part of the legal writing craft, but obvious emotional ploys will not help you or your client. You must be subtle, reasonable, and maintain your credibility. And emotionally-charged language gets you none of that. 

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 he expresses here are solely his own and not intended to be legal advice. Check out his other articles here

 

 

May 5, 2018 | Permalink | Comments (0)

Thursday, May 3, 2018

Would you get an RBG tattoo?

Supreme Court Justice Ruth Bader Ginsberg has become quite the pop icon. She is the subject of a documentary (opening May 4, 2018), and picked up the moniker Notorious RBG. Tumblr memes abound. When she gives talks to various groups, she is given the rock star treatment. She takes this all in humble stride, but even she thinks getting a tattoo of her face might be taking it a little too far. 

While flattered by superfans who get tattoos of her face, the 85-year-old has also said she was "a little distressed that people are really doing that."

In an interview she elaborated:

Ginsburg: I saw that. And I thought it was — I thought it was a joke. I thought it was something you pasted onto your arm. But I'm a little distressed that people are really doing that.

Carmon: Distressed why?

Ginsburg: Because why would you make something that can't be removed on yourself?

I mean, it's one thing to make holes that you can use or not. My granddaughter for awhile was wearing a nose ring. Now she's not anymore. But a tattoo you can't remove.

Carmon: Well, I think it's because they admire you, that's why. This is the second tattoo I'm aware of. The other one has a picture of you. And it says, "Respect the bench."

Ginsburg: Well, that's a nice sentiment.

It is unknown how many RBG tattoos adorn peoples' bodies, but so far the trend is reportedly limited to women, some are lawyers, others are not, but they all still see her as their personal hero.

Amy Wallace, a 34-year-old attorney in Minneapolis, got a Rosie the Riveter-inspired RBG sleeve last year, which had a blink-or-you'll-miss-it cameo in the new film. "Justice Ginsburg is my only personal hero, and as an atheist, my adoration of her is the closest thing I get to personal worship," she told Refinery29. "The secular iconography of Rosie the Riveter mashed up with Justice Ginsburg seemed like a perfect articulation of the way I feel about her." The idea for it came after seeing someone else's tattoo of Our Lady of Guadalupe with a modern, feminist twist (A.K.A. standing inside a vulva instead of surrounded by a religious halo).

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In a free society, there is certainly no stopping these cultural developments. The prevalence of tattoos in only the last decade or so has risen dramatically, and they are no longer solely associated with prison or gang culture. In fact, tattoos are very close to being considered mainstream (ironically making them much less of a rebellious statement than maybe they once were). So it's not the tattoo that bothers me so much, it's the idolization of any one person in our justice system.

Call me old fashioned, but I have a perception of a justice system that is a bit removed from the hype. I want our judges to be and to be perceived as being unbiased arbiters of the law, and to favor no outcome based on how they will be perceived by the public. Judges should do the right thing because it is the right thing to do. I have no fear that this celebrity in any way sways Justice Ginsburg's approach to her duties. Her life's work has proven her dedication to her own moral compass, and from that direction she has not faltered. But I have not seen the same sober and restrained attitude in all judges in many publicized cases. When judges play to the masses, justice can be undermined, so any action that tends to promote the courts in a superficial way sort of wrankles me.

Judges are people too, and it's good for the public to understand we are all human. Those who practice in the legal system are not above the law, and our legal system should exemplify the rule of law in every one of its actions. This promotes predictability and stability in the law and society. While those who take on unpopular but righteous causes should be admired, and even praised for their courage, we need to be careful about exalting them to a height of idolization. It can become dangerous for the perception of the fairness of the legal system. RBG, through her steadfast dedication to her own moral compass, has led the way for more equality under the law and she should be recognized for that in her lifetime. I'm just not sure tattooing her face on your body is the best way to do it - for her or for justice. 

 

May 3, 2018 in Current Affairs | Permalink | Comments (0)

Monday, April 30, 2018

Final Moot Court Rankings

Forget football and basketball rankings, for many law schools it is the moot court rankings by the University of Houston Law Center's Blakely Advocacy Institute that we wait for each year.  Just a few days ago the final rankings were released.  The top five schools are as follows:

1. South Texas College of Law Houston (alas, I cannot find a nickname or mascot for you--but great job!)

2. Chicago-Kent College of Law (Affiliated with Illinois Institute of Tech--Go Scarlet Hawks!)

3. Baylor University Law School (Go Bears!)

4. University of Oklahoma College of Law (Boomer Sooner!)

5.  NYU Law School (Go Violets? Go Bobcats?)

As usual, the top 16 teams will compete at the Andrews Kurth Moot Court National Championship.  The Sooners are the current champs, so we will see if they can hold on to the title this year.

April 30, 2018 in Appellate Advocacy, Law School, Moot Court | Permalink | Comments (0)

Friday, April 27, 2018

Appellate Advocacy Blog Weekly Roundup April 27, 2018

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:

Regarding suing foreign corporations for human rights atrocities: 

On Tuesday, the Supreme Court ruled in Jesner et al. v. Arab Bank, PLC, a suit brought under the Alien Tort Statute wherein Petitioners (6,000 foreign citizens) alleged that they or persons on whose behalf they asserted claims had been injured or killed by terrorist acts committed abroad and that the terrorist acts were caused or facilitated by a foreign corporation, Arab Bank, a multinational corporation based in Jordan with a federally chartered branch in New York.  The victims alleged that the U.S. branch of the Bank transferred millions of U.S. dollars that were used to finance terrorist attacks in Israel, the West Bank, and Gaza. The Court’s ruling was split 5-4, and the Court ruled that foreign corporations cannot be sued under the Act for complicity in human rights atrocities that occur overseas.

ARTICLE

OPINION

Regarding Trump Administration Travel Ban:

Travel Ban:  On Wednesday, the Supreme Court heard oral argument on President Trump’s travel ban, more than four months after issuing a ruling that the ban should be allowed to take full effect during the pending litigation.  This is the third version of the travel ban enacted by the administration, but the first to reach the Court for argument.  This case was scheduled to be the final argument of this term.

SCOTUSblog ARGUMENT PREVIEW

PRE-ARGUMENT ARTICLE

POST-ARGUMENT ARTICLE

 

Federal Appellate Court Opinions and News:

Regarding DACA

A federal judge in Washington D.C. issued a ruling this week in which the court found the Trump administration’s rescission of DACA to have been “arbitrary and capricious.”  The court ordered the Department of Health and Human Services to process applications, both new and renewal, but also stayed the order for 90 days to allow the Department “an opportunity to better explain its rescission decision.”

ARTICLE

OPINION

State Appellate Court Opinions and News:

From Pennsylvania:

Pennsylvania Attorney General Josh Shapiro filed a lawsuit challenging regulations promulgated under the Patient Protection and Affordable Care Act that would take away the Little Sisters of the Poor’s religious exemption from a Health and Human Services rule, forcing them back into a dilemma of providing services like the week-after pill that would be contrary to their faith or risk millions in government fines.  The Little Sisters of the Poor had sought an order from a trial court allowing them to intervene in the lawsuit to defend themselves against the potential impact of the lawsuit, but the federal district court kept them out of the case, ruling that they lacked a significantly protectable interest and that their interests were adequately represented by the federal government.  The Little Sisters of the Poor appealed, and this week the United States Court of Appeals for the Third Circuit reversed, allowing them to intervene.

ARTICLE

OPINION

Practice Tips and Pointers:

From Law.com and Georgia Court of Appeals Chief Judge Dillard:

Ten tips on what not to do in front of a judge, based on an interview conducted by an attorney asking questions of a panel of judges.  Judge Dillard specifically advised not to bring up issues on appeal that weren’t properly raised in the court below, not to overlook the value of being concise and focusing on your strongest points, and not to mislead the court.

ARTICLE

From Legal Writing Prof Blog: 

What happens to your appeal when you don’t follow the rules of appellate procedure?  Your appeal gets dismissed.  This blog post from earlier in the week looks at an Illinois Court of Appeals case in which plaintiff failed to follow the court rules and, despite being a pro se litigant, suffered from dismissal of the lawsuit as a consequence.

POST

From Lisa Solomon: 

To Draft a Winning Appeal, Choose Your Issues Wisely – article on questionoflaw.net.

ARTICLE

Appellate Job Postings:

 Assistant United States Attorney, District of Nevada:

POSTING

 

 

 

 

 

 

April 27, 2018 | Permalink | Comments (0)

Monday, April 23, 2018

Week 3--Top Tips From Appellate Judges

For the past few weeks I have been blogging about appellate brief-writing tips from appellate judges, based on my work on the third edition of Winning on Appeal.  You can read the first two posts here and here.

The tip for this week is to be professional in your writing.  There is much that could be said on the topic of professionalism in brief-writing.  I am going to focus on two points--accuracy and civility.

As I discussed in week 1, the most common complaint that judges have about briefs is that they are too long.  One of the other most common complaints that we heard from judges was about accuracy.  They bemoaned lawyers misstating the law and the record, and mentioned how such tactics destroyed a brief-writer's credibility with the court.  Look at this quote from an appellate judge: “To me, the worst thing that a lawyer can do in a brief is to cite cases for proposition that they simply do not support or to falsely state the record.  When I see that, I conclude that I cannot rely on anything in the brief.”

Lack of accuracy can raise ethical issues.  The ABA Model Rules of Professional Conduct state that a "lawyer shall not knowingly: (1) make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer."  Sadly, many misstatements are the result of laziness--failure to fully read cases and failure to fully master the record.  Don't be the lawyer who falls into this trap--take time to adequately prepare your briefs, and be scrupulous about the record!

The other professionalism issue is civility.  Sadly, many lawyers hurt their credibility by attacking opposing counsel or the judge below in their briefs (and oral arguments).  With respect to attacking the judge below, this never made any sense to me.  In the federal system (and, from what I have seen, in many state systems), there is a decent amount of interaction between the different levels of judges.  They are all fairly civil to each other, and most of the judges on the higher courts started off on the trial or intermediate appellate bench.  Starting off your brief by personally attacking the judge below, who is likely a friend of at least of few of the appellate judges deciding your case, seems like really poor strategy.  

As one appellate judge put it, "[e]ngaging in personal attacks on parties, lawyers, or judges is unacceptable."  You can point out flaws in an argument or opinion with stooping to the level of personal attacks.  It will make your brief stronger and more persuasive.

April 23, 2018 in Appellate Advocacy, Appellate Practice, Legal Ethics, Legal Profession | Permalink | Comments (0)

Saturday, April 21, 2018

Lawyers should not always write like Hemingway: the ideas behind your sentences

  800px-ErnestHemingway

I've heard lawyers urge on more than one occasion: "write like Hemingway, not Faulkner." I think this advice is mostly sound. William Faulkner is known for long, ornate sentences that--while carefully crafted--are not always easy to read. Here's just a few lines of a Faulkner sentence:

There was a wisteria vine blooming for the second time that summer on a wooden trellis before one window, into which sparrows came now and then in random gusts, making a dry vivid dusty sound before going away: and opposite Quentin, Miss Coldfield in the eternal black which she had worn for forty-three years now, whether for sister, father, or husband none knew, sitting so bolt upright in the straight . . . 

So yes, that is not the sort of clear, simple writing that skilled lawyers aim for. A judge may have to read that three or four times to appreciate what's going on.

And in terms of sentence shortness, Ernest Hemingway easily has Faulkner beat. After all, Hemingway is best known for, as he called it "writing straight." He packed so much in each word that he needed only a few to get the point across: 

You did not kill the fish only to keep alive and to sell for food, he thought. You killed him for pride and because you are a fisherman. You loved him when he was alive and you loved him after. If you love him, it is not a sin to kill him. Or is it more?

There is a lot to be said about "short sentences" like this. Shorter sentences are easier to follow and easier to process. Even in Hemingway's literary example that is so. You probably absorbed Hemingway's points much quicker than you did Faulkner's. This is equally true for legal writers. Short and concise sentences are easier to read. This is why great legal writers rally around Strunk and White's famous directive to "omit needless words." It's also why we love Justice Robert's famous short sentence: "So too here." 

But there is a feature of both Faulkner and Hemingway's writing that is not as helpful to lawyers. And it's a feature that often steers legal writers wrong when they fixate only on cutting every word possible from their sentences. This feature has to do not with the words and sentences themselves, but with the ideas lurking behind them.

On the surface, sentences all look similar. They are the same letters, same words, over and over, just arranged in different orders. But underneath, sentences are sophisticated idea-producing machines. You remove one word from a sentence, plug in another, and an entirely different idea spurts into your reader's mind. They are as complex of a machine as the assembly of nuts and bolts that make up your car.  

Literary authors tune their sentences to produce some wild ideas. For them, it's a good thing to tinker until something interesting comes out. And maybe it doesn't even matter what those idea are. Some of the best literary sentences produce a tissue of interconnected ideas that we readers spend hours (or centuries) untangling. If two people read the same sentence and have different ideas--all the better. 

But as legal writers, we need our idea-machines to run more precisely. Our readers are busy, harried, and use our writing to complete practical tasks. They don't have time to search for the ideas. And frankly, we don't want them to use their imagination. If our reader takes the wrong idea from a sentence, that may mean the difference between winning and losing for us. 

When it comes to producing particular ideas, shorter sentences are usually better. They keep our reader focused on the point that we are trying to deliver. But this is not always so: short does not always mean simple. Just because a sentence is short does not mean you have control over the ideas it will trigger in your reader's mind. 

Let's go back to Hemingway. One of his most famous sentences is just six words: 

For sale: Baby shoes, never worn. 

What ideas do you take from this sentence? Tragedy? The death of a baby? The morbid realism that life most go on even after a horrible event? Interestingly, this quote may not even be Hemingway's. It may come from an article written in the 1920's, titled "For sale, baby carriage, never been used.” The backstory is nothing so depressing as you might think. The author simply thought it sounded like a good title for a story. 

On the other hand, the quote may also come from a more depressing newspaper ad and followup article written around the same time. The ad read "Baby's hand made trouseeauo and baby's bed for sale. Never been used." And there, indeed, tragedy had struck:

Picture1

The point is that the ideas delivered by that six-word sentence are amorphous--maybe you took away what the author intended, maybe not. This sort of imprecise writing isn't a good thing for a lawyer. If you're a lawyer writing about clothes put up for sale after a baby's death, you are better off with:

The parents were so poor that when their baby died they had to sell his shoes.

Instead of:

For sale: Baby shoes, never worn.

The first version is a bit longer, but the key is that your reader doesn't have to dig for the idea you want. If you want your reader to know that the parents were poor and use the shoe sale to exemplify that--then make sure you deliver precisely that idea. 

Or take another excellent example of this idea-generation problem: 

I never said she stole my money.

Depending on the context and your reader, the ideas delivered by this short and unassuming sentence are legion: 

I never said she stole my money. (Someone else said it.)

I never said she stole my money. (I didn't say it.)

I never said she stole my money. (I only implied it.)

I never said she stole my money. (Someone did, not her.)

I never said she stole my money. (I considered it borrowed.)

I never said she stole my money. (Only that she stole money—not necessarily my own.)

I never said she stole my money. (She stole something of mine, not my money.)

So what's the takeaway for us legal writers? 

First, remember that while non-legal writers have lots of great tools for us, our practical aim for delivering ideas can be quite different. “Literature is not the goal of lawyers,” wrote Justice Felix Frankfurter. And “[t]he law,” said Justice Oliver Wendell Holmes, “is not the place for the artist or the poet.” In many ways, good writing is good writing. But you must balance your efforts to write well with your need to deliver concrete and specific ideas to your reader. The flash is not always worth it. 

Second, your default style should be shorter, concise sentences that deliver a single idea. Shorter sentences are not only easier to read generally--but they give you more control over which ideas your reader will absorb. The more words, clauses, and yes, ideas a sentence has--the harder it is to control your reader's focus and the greater the risk that they will get distracted. Shorter, simpler sentences allow you to dish one carefully-chosen idea to your reader at a time. 

So put yourself in your reader's shoes and build sentences that will deliver one idea at a time--and the idea you choose. Take this snippet of short sentences from a trial court opinion. You get one idea at a time, and a straight-forward one at that: 

Courts don't make rules. Courts follow rules. The attorneys ask that we create a new rule out of whole cloth. That should give us pause.

Third, all that said, a short sentence is not always a clear sentence. And for lawyers desperate to get a busy judge to simply understand, the clarity of your ideas is priority number one. So sometimes you may need an extra word or two to isolate that precise idea you need.

Take a paragraph penned by Justice Gorsuch. The ideas conveyed are simple, clear, and leave little room for interpretation--but they are not always as short as they could be: 

Andrew  Yellowbear  will  probably  spend  the  rest  of  his life  in  prison.  Time  he  must  serve  for  murdering  his daughter.  So  Mr.  Yellowbear  has  found  sustenance  in  his  faith. No  one  doubts  the  sincerity  of  his  religious  beliefs[.] . . . Yet  the  prison  refuses  to open  the  doors  of  [its]  sweat  lodge  to  Mr.  Yellowbear alone. [A]nd so we have this litigation. [T]hose convicted of crime in our society lawfully forfeit a great many civil liberties. [But] Congress  has  []instructed  that  the sincere exercise of religion should not be among them . . .”

Each sentence delivers a straightforward idea. Yellowbear faces a life in prison. He does so because he murdered his daughter. He turned to his faith . . . very little room for interpretation or confusion. 

If nothing else, I think the simple act of realizing that your sentences are constantly churning out ideas can be helpful. And remembering that short sentences do not always equal simple sentences. 

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 he expresses here are solely his own and not intended to be legal advice. Check out his other articles here

 

 

April 21, 2018 | Permalink | Comments (0)

Thursday, April 19, 2018

A Nice Recognition

I got an email yesterday from LitigationWorld that two of our posts were selected as the LitigationWorld Picks of the Week.  One of the posts, by Joe Regalia, addressed productivity.  You can read it here.  The other recognized post was on font choice.  You can read it here.

Thanks to our readers and to LitigationWorld!

April 19, 2018 | Permalink | Comments (0)

Wednesday, April 18, 2018

On the Benefits of Moot Court: Writing Development

Often, I find myself in a conversation about the validity of Moot Court programs in law school.  This discussion is perpetual. Indeed, while I was in law school, a pair of articles were published discussing this issue. One clearly opposed, and in support, of the moot court experience. See Alex Kozinski, In Praise of Moot Court--Not! , 97 Colum. L. Rev. 178 (1997); Michael V. Hernandez, In Defense of Moot Court: A Response to "In Praise of Moot Court--Not!", 17 Rev. Litig. 69 (1998).  Those that know me, understand that I am a big fan of moot court, even if you have no intention to enter appellate practice. Over the next few weeks, I will address my views on the moot court experience.

In this post, I address how the moot court experience enhances a student's writing skills.

During the first year of a student's law school experience, we take mostly good, or even excellent writers, and change how they perceive the writing process.  In some instances, we find students who need real work on basic writing skills, but for most, it is just a matter of getting them to buy into a new approach. No longer are students using filler to reach some magical minimum word count, no longer are we rewarding free-flowing prose.  Students must constrain their writing to maximum word counts, and to seemingly arbitrary formulas.  My students complain about CREAC, CRAC, IRAC, or CRuPAC, or whatever the acronym of the day is, at least until they have embraced it.  I liken good legal writing to an instruction manual that must be written in a manner that frees the reader to focus on the analysis. Certainly, by the end of the first-year students are capable of writing good briefs. They reach legal conclusions that are sound and built upon a strong, rule-based foundations.  Such writing is good, and if a student were to enter the legal community immediately after their first year, their writing would be sufficient.

But, sufficiency is not enough. As a practicing attorney, I never had the better part of a semester to write a brief. I've written multiple briefs and pleadings in a single week.  If my writing was only sufficient, I would have struggled to put together coherent briefs and pleadings at that pace.  So I push my students to excellence, and they way to do that is through practice.  The more one writes, the easier it is.

Many law schools with strong moot court programs have a class dedicated to appellate advocacy or brief writing.  These classes take the skills a student learns in their first year and builds on those skills.  Students learn when and how to step away from the basic CREAC formula. They learn how to write many different types of arguments.  They gain extra practice.

Once a student is in competition, the student develops skills that can only come from practicing their skills with no input.  Students gain confidence when they realize that they can write a brief, with difficult legal or factual issues, without getting constant reassurance or guidance from their professors. Students learn the importance of crafting an error free document, and from taking the time to review and edit the document.  When they begin preparing for oral argument they will learn the value of listening to the inner voice that tells you an issue either is or isn't worth mentioning in the brief.  When they compete a second  or third time, that skill will be utilized to create an even better written product.

In short, moot court gives students multiple opportunities to develop and perfect the practice-ready writing skills a student gains in their first year, and which every practice attorney needs. 

 

April 18, 2018 in Appellate Advocacy, Appellate Practice, Legal Writing, Moot Court | Permalink | Comments (0)

Tuesday, April 17, 2018

Thinking Thursdays--err, Tuesdays: Know your Logical Fallacies (Part 3)

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

Sorry for the delay, folks. I fell victim to a distraction fallacy.

In my last two Thinking Thursdays, linked here and here, I discussed some common logical fallacies that lawyers may fall prey to. Specifically, I focused on non-sequitur fallacies, insufficient evidence fallacies, and shallow thinking fallacies. Today, I will talk about the last general category: avoidance fallacies.[1] The are also called fallacies of inference.

 When we make a valid argument, we employ a process of using true statements—such as a governing rule of law—to justify the truth of a new statement—i.e. the application of the law to presented facts. Logical fallacies happen when something goes wrong with the legal syllogism.

Logic1. An ad hominem attack challenges the ethos of one’s opponent (either the opposing party or that party’s counsel). Rather than meet the substance of the arguments made, the ad hominem attack claims that the person making the argument is a bad person or not worthy of trust for some reason. The person making ad hominem attacks end up making themself look petty and small, thereby losing some of their own valuable ethos. There are plentiful examples of ad hominem attacks happening on American politics, daily.

Note, however, that avoiding an ad hominem attack should not keep an attorney from attacking the credibility of a witness when the case warrants doing so.   

2. Someone using a straw man fallacy sets up a weak or absurd scenario attributed to the opposing side and then argues against it. This fallacy might take one of a few different forms. A slippery slope policy argument, taken to extremes can become a straw man fallacy. forms. For example, one might claim that since many heroin addicts began using marijuana before using heroin, marijuana use should be made illegal. Somebody opposing making marijuana use illegal might argue that most people began drinking milk before using heroin, so that milk should be outlawed too.

If you do this, however, you will ultimately lose credibility with the audience, because in the end your hypothetical or your imagined counterargument depends on being weak or ridiculous.

3. The last category has several names: red herring, distraction, deflection, misdirection. These are attempts to sidetrack the audience from the argument raised by another party, to hide a lack of a sound counterargument. Schematically it looks like this:

  • Speaker A: Milk chocolate is better-tasting than dark chocolate.  
  • Speaker B: Twenty percent of people surveyed last year believe that chocolate milk come from brown cows.
  • Speaker A: Seriously? 20%?

In law, it can go this way:

  • Major premise: The city may prohibit loudspeaker trucks from driving through residential neighborhoods from 8 pm to 8 am.
  • Minor premise: The city is attempting to enforce the code provision against a political candidate who has been using the trucks at 10 pm at night.
  • Conclusion (goes wide of the original premise’s mark): The city officials are trying to change the election’s outcome by enforcing the code against one party.

In an upcoming article, Professor Melissa Weresh talks in depth about the phenomenon of misdirection, and its place in legal argument.

For more reading about logical fallacies, the website Teachers Pay Teachers offer a variety of teaching materials at low cost that can help us understand what they are. Purdue’s Online Writing lab also offers a synopsis. And, there is also the amusing Illustrated Book of Bad Arguments that can help us learn.

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[1] Thank you to Professor Ken Chestek (Wyoming) and Professor Steve Johansen (Lewis & Clark) for these examples. They come from the upcoming second edition of our co-authored textbook, Your Client’s Story: Persuasive Legal Writing (2d ed. Wolters Kluwer, expected publication date of later this year).

April 17, 2018 | Permalink | Comments (0)

Monday, April 16, 2018

Week 2--Top Tips from Appellate Judges

Last week I blogged about my trip to Little Rock to speak on Top Tips from Appellate Judges.  In that post, I discussed the first tip--to keep your briefs, brief.  Today I want to focus on the second tip--to limit your issues on appeal.  Following this second tip will help you achieve the first.

When we surveyed judges for the third edition of Winning on Appeal, we specifically asked them about selecting issues to appeal.  In response, many judges provided their views on the number of issues that you should raise on appeal.  On the low end was the recommendation to raise “one or two of your best issues that will really decide the case.” On the high end was the advice to “[f]ocus on fewer than five strong points. Three is good.” Most of the judges recommended raising no more than three issues.

So, how do you decide what issues to appeal?  The judges provided several good tips:

  1. "Moot" your issues as you would an argument.  This can help you analyze the strength of each issue.
  2. As yourself if you would be "willing to spend your entire oral argument on [an] issue[.] If so, include it."
  3. Pick only the most “credible” issues or ones that will “really decide the case”  or “really matter.”

Several judges noted that including weak issues hurts the credibility of the brief writer.  As one judge put it, “A brief with fifteen or twenty assignments of error tells me that the attorney is grasping at straws.  No trial judge I ever knew was so bad as to make that many errors.”

There are, of course, complicated cases that may raise more than three issue.  But, as a good rule of thumb, follow the advice to limit your issues on appeal and the judges will thank you!

April 16, 2018 | Permalink | Comments (0)

Sunday, April 15, 2018

Who cares about the law? Legal writing with emotion.

Emotion-faces-picture-e1429925480789

Many of us lawyers love the law. We get lost in the throes of legal research. We can spend hours tracing doctrine from the Magna Carta to present. And we think that judges love the law, too. So our briefs are often chock full of it: brimming with every case, rule, and legal theory that Westlaw spits at us. 

Don't get me wrong, the law is great. And judges do care about it. A common complaint is that lawyers neglect the rule sections of their brief, particularly when it comes to the nuances. Lawyers might not take the time to understand the finer points of the authority; they might miss important cases; or maybe they are simply unable to explain complex legal concepts clearly enough for a generalist judge. 

But all that said, the latest research leaves no doubt: emotions play a profound role in all decision making--including the most "logical" decisions that lawyers and judges make.

Our emotions have an interesting relationship with legal writing. For example, studies suggest that just by using logic-sounding rhetoric, like a syllogism, a reader is more likely to be convinced--even if the ultimate point is dead wrong. We seem to have an emotional response to the logicy-sounding language, even if the logic turns out to be bogus. Our emotions say: "This point must be worth listening to, it sounds like logic." Researchers suspect that our brains may be hardwired to think in logical patterns, and thus are unduly swayed by logical-sounding framework. So even seemingly logical writing can be at least part emotional. 

That our emotions interplay with our decision-making is not all bad news. Because research also suggests that emotional decisions do not necessarily mean bad decisions. In fact, in a recent paper by Susan Bandes and Jessica Salerno, the authors explained that “emotion helps us screen, organize and prioritize the information that bombards us." “It influences what information we find salient, relevant, convincing or memorable.” In other words, our emotions can work as a sort of intuition, feeding us useful information from our past experiences. This emotional processing has spent a lifetime learning from our successes and failures. This is why many experts say that, in some situations, trusting our gut is not such a bad idea. 

Not to mention that studies show that some emotions can help us think better. Bandes and Salerno, for example, explain how sadness may actually make us think more carefully and rush to conclusions less. These authors explain that “[t]he current broad-brush attitude toward emotion ought to shift to a more nuanced set of questions designed to determine which emotions, under which circumstances, enhance legal decision-making.” 

But what's most important for us is that we know favorable emotions absolutely impact how our readers will view and process our legal writing. As Catherine Cameron and Lance Long explain in their book "The Science Behind the Art of Legal Writing," researchers using brain scans have discovered that when we think through issues, our emotional and feeling centers of our brain are triggered long before we even start accessing our rationale and conscious processing centers. In other words, we apply our emotions to decisions before we apply our lawyerly logic. 

Indeed, your reader's ability to even understand your points in the first place may depend in part on their favorable emotional state. Recent research confirms that your reader's mood--which you can no doubt influence through your writing--changes whether and how your reader will turn on their rationale decision-making processes and critically think about your arguments. 

And for readers who start a document already disagreeing with you, triggering favorable emotions may be the only way to break through their echo-chamber so that they can meaningfully listen to you. The research shows that we are disturbingly good at ignoring facts and arguments that we don't want to agree with. If we emotionally want to believe something is wrong, our mind can subtly filter contradicting information as we read. The research on this point is overwhelming and pretty scary

But as important as emotions are to persuading, there is nothing judges or lawyers hate more than legal writing that overtly plays to their emotions. Obvious ploys (like asking a judge to rule for a client because they fell on hard times) will raise the judge's hackles. After all, judges, and all of us lawyers really, like to think that we follow the law, not our hearts.

So what is the take away? While we must avoid overt plays to emotion, we cannot afford to ignore our reader's emotions either. Navigating the emotion minefield will be tricky. The research on which emotions are most helpful is still nascent. But we do know that if we put our readers in a favorable emotional state, this will positively influence how they view our points. We know that readers whose emotions are triggered in the right way will pay better attention to our writing and, perhaps, even change their minds.  

I have a few ideas about how to go about that.

One way is to use storytelling in our legal writing: research shows that stories help readers tap into these subconscious intuitions we have about how things work and how things should go. And although narrative takes a lot of practice, you can capture a lot of this style by channeling great storytellers like Stephen King:

  • Start more sentences with concrete nouns ("Susie ignored the warnings");
  • Keep your reader's focus trained on the same set of actors throughout your document so they can keep a coherent story together ("Susie filed her complaint the next day. Susie's efforts failed, because the court dismissed the case shortly after. Susie hired a lawyer and filed another complaint...");
  • Use concrete verbs to paint active scenes ("Susie smashed the plaintiff's phone"); 
  • Control the pacing: give your reader a sense of time when telling factual or procedural stories ("Two days later, the police showed up to arrest Susie. That same day, Susie's lawyer filed a motion");
  • Let choice, emotional facts do the work--not adverbs and adjectives ("Susie snapped two of the plaintiff's bones in the fight," not "Susie severely and permanently injured plaintiff"); 
  • Trigger your reader's own emotions by placing them in another's shoes ("Plaintiff had just lost her job and had had no way to pay for her 5 year old daughter's surgery, so she asked for a loan"). 

Use these story-telling techniques when explaining rules, too. After all, rules have stories just like the parties' facts do, and they can be emotional ones. For example: 

Before the 1960s, courts had usually held that employers cannot be liable for an employee's intentional torts. But judges then began seeing cases where employers were using that rule to their advantage in unsavory ways. For example, a company ignored obvious red flags about an employee's mental health, and then that employee went on a shooting spree at work. Courts took notice of cases like that one and created a new rule . . .

Other than writing in a narrative, you can highlight important emotionally-laden facts for your reader in several ways. On the macro level, put your hard-hitting facts in obvious places. Too often lawyers bury their good facts in the "fact" section and leave them there. Will a reader work to dig them up? Maybe. But you should instead place those facts in conspicuous places throughout your brief, starting right in the introduction.

People read introductions and they pay attention to them. Dishing up the right facts at the start can put your reader in the right emotional state for the rest of the brief. Look at how former-judge Posner emotionally charges an introduction in a case about discrimination, inserting some facts about abandoned children and who those children would want as parents: 

The argument that the states press hardest in defense of their prohibition of same-sex marriage is that the only reason government encourages marriage is to induce heterosexuals to marry so that there will be fewer “accidental births,” which when they occur outside of marriage often lead to abandonment of the child to the mother (unaided by the father) or to foster care. Overlooked by this argument is that many of those abandoned children are adopted by homosexual couples, and those children would be better off both emotionally and economically if their adoptive parents were married

On a micro level, you can use vivid words and thoughtful word placement to ensure that your facts are doing enough emotional work. Use the right nouns and verbs. And put those heartstrings facts at the beginning or end of your paragraphs and at the start or ending of sentences--where they will be noticed and punch hardest.

Take two sentences: one which buries the emotion-stirring fact, and one which describes it concretely and emphasizes it at the end. Here is the first one:

The next day, three individuals ended up dead during a shootout and the defendant was arrested for it. 

The fact that will really move a reader is the killing of the three people. So use more vivid words and better placement to make sure these facts hit home: 

The next day, the defendant was arrested for a shooting in which three bystanders were murdered

Now, obviously, if you don't want to trigger these sympathetic emotions (maybe you represent the defendant), you just use these tools to trigger different emotions instead: 

During the defendant's arrest for the incident, police beat him with batons until his arm snapped.

Another tactic is to weave more overt emotional policies into your legal writing. Start with the law because that is what all us lawyers and judges want to follow. But support those points throughout your document with more moving policies, too. For example: 

The Ninth Circuit has already told us the right approach here: dismiss this case and allow the plaintiff to file a new one. And the rule makes sense. Defendants in these sorts of cases are usually small mom and pop companies without any sort of insurer paying for their defense. Requiring them to pay for litigation that will likely be mooted--which will likely put them and their employees out on the street--is not the sensible course. 

When including emotional policies (and to some extent, when using all of the above tools), the more you can help your reader relate to the facts and law, the more their emotions will be triggered. That is why the "golden rule" bars lawyers from trying to put jurors in the shoes of a party. Above all, judges and lawyers are humans. And if their subconscious is feeling empathetic, you can be sure that will color how they see your arguments. 

At bottom: there is no surer way to alienate a judge or lawyer than by letting them know that you're playing to their emotions. But if you trigger some emotion subtly, there is no surer way to persuade them. 

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 he expresses here are solely his own and not intended to be legal advice. Check out his other articles here

 

 

 

 

 

 

 

 

 

 

 

April 15, 2018 | Permalink | Comments (0)

Friday, April 13, 2018

Appellate Advocacy Blog Weekly Roundup April 13, 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:

From Reuters:  Pace of Supreme Court slackens, showing signs that the Court is struggling to resolve some key big cases.  So far this term, the Court has issued only 18 rulings in cases argued this term, fewer than usual at this point in the term.  Of the yet unresolved cases, several are considered big cases, including electoral boundaries and gerrymandering cases, the high-profile religious liberty case involving a Christian baker who refused to make a wedding cake for a gay couple, a case involving union fees, a case involving class-action claims against employers, a case involving the use of cellphone location data by law enforcement, and an abortion case.  The slower pace seems likely attributed, in large part, to the 5-4 ideological split.  Story:  HERE.

From the AP:  Justice Gorsuch is celebrating his one year anniversary on the Court this week.  During that time, he’s heard arguments in more than 60 cases and, while it’s still early in his tenure on the Court, he appears to be delivering the reliably conservative vote that President Trump and his supporters had hoped for.  The early reviews of his writing have received mixed reviews, with some readers appreciating his ability to reach audiences beyond law professors and experts and others highlighting his tendency to talk down to readers and even his colleagues on the other side of issues.  More on his first year in the story:  HERE.

From USAToday:  Also discussing Justice Gorsuch’s first year on the Court.  The general consensus of Gorsuch’s first year is that he has confirmed the hopes of conservatives for the direction of the Court and also confirmed the fears of liberals.  Gorsuch has so far demonstrated that he is as committed to textualism and originalism as any member of the Court.  Story:  HERE.

Federal Appellate Court Opinions and News:

From Bloomberg:   Several Circuit Courts of Appeal to watch.  Several Circuit Courts of Appeal have several vacancies, allowing President Trump the opportunity to  nominate enough Republican/conservative nominees to start shifting the balance on those courts.  Currently, the Second, Third, and Eleventh Circuits have enough current vacancies that President Trump’s nominees could put that balance within striking distance.  Additionally, there are numerous vacancies right now on the Ninth Circuit, allowing President Trump the opportunity to more than double the number of Republican appointees.  Story:  HERE.

New Federal Appellate Court Nominees.  On Tuesday, the White House issued a press release announcing a wave of new nominees for vacancies on the various federal benches, including Circuit Courts of Appeal.  Release: HERE.

 
Practice tips and pointers:

A lesson in tailoring your writing style to the needs of your audience:  A Family Court judge in England recently issued an opinion in a case involving the question of whether to establish a plan to allow a young child to be adopted, rather than returned to his biological family.  The biological parents suffer from learning disabilities, and the judge tailored the opinion to be accessible and meaningful to them, providing a great illustration of tailoring your writing to meet your audience’s needs.  Opinion:  HERE.

From How Appealing:  Appellate E-Filing Evolves in the Third Circuit and Pennsylvania State Courts.  Howard Bashman, a longtime and enthusiastic supporter of electronic filing on appeal, discusses how the process has evolved over the last several years in both the Third Circuit and Pennsylvania’s state appellate court, and advises attorneys practicing in either to become familiar with the process and system and get upgraded to the new system as soon as possible.  Story:  HERE.

From Legal Writing Pro:  Judges Speak Out Behind Closed Doors.   Ross Guberman surveyed thousands of judges about what lawyers do in briefs that bug them and what they would like to see lawyers do more of.  The tips include a variety of style matters – including use of the Oxford comma, putting citations in the text and not in footnotes, and holding on to the practice of placing two spaces after periods – finding appropriate tone, and being concise.  Article:  HERE.

April 13, 2018 | Permalink | Comments (0)

Monday, April 9, 2018

Top Tips From Appellate Judges

After a two week travel hiatus, I am back to posting!

Last weekend I traveled to Little Rock, Arkansas to speak at the First Annual Justice Donald L. Corbin Appellate Symposium.  The Symposium was organized by the Pulaski County Bar Foundation and the Corbin family.  I had a marvelous time!  Not only were the speakers warmly welcomed and well-cared for, I was astounded by the quality of speakers that the Foundation secured.

Although my travel schedule prevented me from attending most of the symposium, I enjoyed Prof. Steven A. Drizin's presentation on false confessions by juveniles.  Prof. Drizin is part of Brendan Dassey's appellate legal team.  Attendees also heard presentations by Dean Erwin Chemerinsky, Judge Beverly Martin, Judge Mary Murguia, and Judge Bernice Donald.  And they heard a presentation from me. 

My presentation was entitled "Top 10 Tips from Appellate Judges."  As I noted at the start of the presentation, the irony of the topic was not lost on me.  Here I was, a law professor, giving tips from judges to a group of people who had heard from several distinguished appellate judges.  But, as I explained, my tips represented the views of the collective judiciary, culled from my work on the third edition of Winning on Appeal.  For the next several weeks, I am going to share a few of the tips from my presentation.

I started the presentation with the most important, most common, complaint about briefs that we received from judges--that they are just too long.  As one judge put it, "They're called briefs, not longs."

Why are overlong briefs so bad?  First, judges have a lot to read. The average federal appellate judge decides about 550 cases a year.  That means reading at least 100o briefs a year.  If each brief is 50 pages long, that means that judges read at least 50,000 pages of  briefs each year.  Second, long briefs are hard to read in one sitting, which makes it hard for judges to compare arguments between briefs.  Third, judges have finite attention spans.  It is hard to remain excited about reading a long, unfocused brief.

So, how do you cut down your brief?  The judges who responded to our survey for Winning on Appeal had some great tips, two of which I will share here:

  1. "Think first, and edit ruthlessly."  Think about what you need to prove to win, and orient your entire brief around that point (or points).  What is the "flashpoint of controversy" in the case.  If it is just about applying the law to the facts, don't spend pages in your brief justifying the legal rule.  Just apply the established rule to your facts.
  2. Avoid needless repetition or extraneous facts.  Again, keep your brief focused on the dispute. Only include materially important facts when describing extraneous cases, and in your statement of facts, don't go overboard on persuasive and background facts.

Writing a detailed outline before you start typing the argument is one way to keep your argument on track.

Next week I will discuss a second tip, which also helps keep your brief concise--selecting issues.

April 9, 2018 in Appellate Advocacy, Appellate Practice, Federal Appeals Courts, Legal Writing | Permalink | Comments (0)

Friday, April 6, 2018

Appellate Advocacy Blog Weekly Roundup April 6, 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) or you can send Joe a message on Twitter (@Joe_A_Esq).

 

Supreme Court Opinions and News:

On Tuesday, April 3, 2018, Justice Sonia Sotomayor spoke to students at a question-and-answer session at Vanderbilt University Law School. Justice Sotomayor urged students not to limit themselves, telling them that courage can be found in unlikely places. Click HERE for more information. 

 

On Wednesday, April 4, 2018, Justice Stephen Breyer spoke at Tufts University as part of the Jonathan M. Tisch College of Civil Life’s Distinguished Speaker Series. Justice Breyer spoke about the role of the courts and the need for judges to remain impartial. Click HERE for more information. 

 

In Kisela v. Hughes, the Court held that a police officer was entitled to qualified immunity because his actions did not violate clearly established statutory or constitutional rights of which a reasonable person would have known. In this article, the Los Angeles Times Editorial Board argues that the court's ruling grants "unhealthy immunity to police accused of wrongdoing." Click Here for the Court's opinion. More information about the case can be found at this link

 

 State Court News:

Rebecca Dallet, a Milwaukee County Circuit judge, was elected  to the Wisconsin Supreme Court on Tuesday. The New York Times has this report

 

Appellate Tidbits:

Through some clever detective work, the person in a painting hanging outside the chief justice's chambers at the Massachusetts Supreme Judicial Court has been identified as Lemuel Shaw, who served as chief justice from 1830 until 1860. Read this report for more information. 

 

Appellate Job Posting:

The Illinois Appellate Court, Fourth District is looking for an Appellate Court Research Attorney to research and prepare legal memos and draft appellate orders and opinions. Follow this link to apply for the position. 

April 6, 2018 | Permalink | Comments (0)