Appellate Advocacy Blog

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

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, 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)

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)

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)

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)

Thursday, April 5, 2018

A Few Practical Tips for Oral Argument

Introducing students to appellate advocacy includes practicing and building on basic skills of persuasive brief writing and oral presentations. Students refine their research choices, incorporate multiple draft editing, and learn to moot their oral arguments. In practice, appellate lawyers learn there is much more to know about making a successful appeal. According to David Lat at Above the Law, even seasoned lawyers can improve their chances at winning on appeal with some thought to more practical issues encountered at the appellate level. Lat distilled the points made by appellate practitioners and judges in creating this list:

1. Select an issue on appeal that is attractive for oral argument. Cases where oral argument was held had better chances of reversal, because the judges had to spend more time with the case.

As Judge Higginson explained, if your case doesn’t get oral argument, the judges won’t have to sit down and prepare for argument, which involves close reading of the briefs and record; the judges won’t get to hear from you as an oral advocate, emphasizing key points or dispelling misimpressions; and the judges won’t discuss the case face to face with their colleagues, instead handling the matter by email.

2. Select an issue that has been preserved at the trial level, is legal in character, and makes a difference beyond the individual case. Understanding why the appellate court might be interested in a case helps the advocate to craft an approach. An appellate court will be more likely to defer to the trial court on a factual issue, so that would be harder to win. But if the question is legal in nature and is not well settled, the court many have more interest.

How can you find such issues? Judge Higginson said to look out for intra-circuit conflicts, or inconsistencies between different precedents from your circuit; inter-circuit conflicts, which suggest that a legal issue doesn’t have an obvious resolution; questions left open by the U.S. Supreme Court (e.g., “we do not decide [x]” in this ruling, or an issue raised by a certiorari petition that SCOTUS keeps relisting); and questions that get debated in law professor blogs, which often involve unsettled issues or percolating problems in an area of law.

3. Know the players, and know your audience. Does the trial judge have a good reputation; how about the lawyers involve in the case? How has the court ruled on similar issues in the past? This will help you gauge how successful your appeal may be, give you an idea of the most persuasive approach, and whether you should spend all those hours on something that may never have a chance. Lat says these things shouldn't matter, but they do.

As a practical matter, though, things like the district judge being reviewed, the lawyers involved in the case, and the appellate judges on the panel actually matter. Some district judges have better reputations than others at the circuit court, as do some lawyers. And you definitely want to find out how the members of your appellate panel have ruled in the past on issues like the ones raised in your appeal (which you can figure out easily through judge-based searches on Westlaw and other legal research platforms).

4. Be precise and accurate with the facts and the law. Catching an advocate in misrepresentations or inaccuracies is easier than ever, and immediate. Judges have hyperlinks right in from of them as they read your brief or as you argue and can instantly check the veracity of your statements. Ensure that any fact or point of law you discuss is spot on.

Things that judges look out for when reading briefs: (1) ellipses (the judges will check to see what you left out); (2) words like “clearly” or “obviously” (especially when they’re not accompanied by citations); and (3) substantive matters discussed in your footnotes (because lawyers like to subordinate hard issues, and that often means dropping them in the footnotes).

5. Mooting is not moot! Students do a lot of this in law school, but practicing lawyers shouldn't abandon this practice arena in the lead up to their oral argument. Lat says this is still the best way to prepare a presentation for the court.

Think carefully about the colleagues you pick for your moots. You want skeptical lawyers who aren’t afraid to grill you (which is why having subordinates on your moots — e.g., associates if you’re a partner — isn’t always the best idea). Having people who will put the time in to prepare for your moot and familiarize themselves thoroughly with your case can be helpful because they will subject you to the toughest questioning. But it’s also not a bad idea to have one questioner who isn’t as deeply familiar with the case, to simulate a busy judge who doesn’t have the time to give your case as much attention as it might deserve. As experienced advocates know, judges vary significantly in their levels of preparation for argument.

6. Conclude with a purpose. While the oral argument is a conversation with the court, sometimes judges can monopolize the time and take you off track. If you are nearing the end of your allotted time, do everything possible to make a well-rounded final statement, or perhaps include the points you feel are important but you didn't get a chance to address. Lat suggests:

But as you enter the home stretch, it’s perfectly fine to say something like, “With the court’s permission, in my remaining time I’d like to make two final points.”

Fewer and fewer cases are selected for oral argument these days. Even though so many cases are decided on the briefs alone, it is still advantageous to argue before the court. When the opportunity arises, some strategic thinking and anticipation of a few practical points may be very beneficial to the outcome. 

April 5, 2018 in Appellate Advocacy | Permalink | Comments (0)

Monday, April 2, 2018

Moral Foundation Theory as the Basis for Legal Argument Themes

During the second semester of 1L year, many law school curriculums dive into persuasive writing and oral advocacy. This is the first time students are introduced to themes, and beyond presenting an objective evaluation of a hypothetical problem, they are  asked to find the "right" solution. This is beyond what the precedent may call for, this is advocating on behalf of a client for the most "just" outcome. This is getting closer to Real World law practice (or cynics could say, Ideal World law practice). 

As lawyers we are familiar with all kinds of legal arguments: rule based arguments, analogies and distinctions, inductive reasoning, and policy arguments. Since most moot court problems usually end up based in a fictitious Supreme Court, many arguments frequently come down to policy: "The Supreme Court can do whatever it wants - what should it do?" In introducing these various types of policy arguments to students, certain definitive ideas come to mind like government overreach, privacy, and even economy and efficiency. These ideas seem to have no overarching theme; they sort of have to be dreamt up by the students or gleaned from dicta. However, there may be a more predictable way to organize these disparate ideas and it might be found in something psychologists call Moral Foundation Theory.

In his book, The Righteous Mind, Jonathan Haidt, a research psychologist, has examined the origins of morality. He takes a science based, and in fact Darwinian based, approach to determining where morals come from and how they persist throughout myriad societies. His research is fascinating, but for our purposes none more so in how this theory can be applied to legal argument.

Haidt has found that across societies there are six general moral foundations: Care/Harm, Fairness/Cheating, Authority/Subversion, Sanctity/Degradation, Loyalty/Betrayal, and Liberty/Oppression. Each pair listed shows the positive side of the moral, and the negative side. For example, people who have Care as a strong part of their moral foundation despise or are deeply moved when they see Harm. This is frequently associated with taking care of people, motherhood, parenthood, caring for elders, caring for animals, etc. In Haidt's work he is interested in understanding how these morals interact with each other, how people hold out some as more important than others, and generally from an evolutionary point of view, why all these morals seem to be necessary for a functioning modern society.

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To describe these foundations a bit further, the Fairness/Cheating foundation goes to equality and reciprocity, we don't like it when people get benefits they don't deserve, and we don't like to be taken advantage of; the Loyalty/Betrayal foundation has to do with trust, a love of teammates, and a hatred of traitors; the Authority/Subversion foundation includes a recognition that a hierarchy is needed for an organized society, those who subvert the rules will be punished - prison for example; the Sanctity/Degradation foundation began as rules to maintain health (don't eat rotting food), but today is more closely associated with religious beliefs such as adhering to rules about certain kinds of food, or holding sacred some relics, but even can be seen in healthy trends like exercise and detoxing; and finally the Liberty/Oppression foundation is somewhat of a corollary of the Authority/Subversion foundation in that when Authority becomes too stifling, the Liberty impulse will be to throw off the dominating force, as seen in "freedom fighters" or the teenager who just doesn't want to make curfew. Moral Foundation Theory holds that these six foundations are found consistently throughout both historical and modern societies. They may not always be found with the same amount of importance placed on each foundation, but all are common to human existence.

The Righteous Mind is an excellent read for understanding the science of morality, but as a tool to discover an order to legal arguments it is extremely useful. For example, a 1L appellate problem may have the following facts: a sixteen year old high school student is suspected of associating with terrorists. Law enforcement has received a tip that this student may have planted a bomb at a high school football game. Law enforcement canvasses the stadium, runs down the student, and upon finding his cell phone, manages to immediately access it and finds incriminating text messages. Later, the student wants to suppress the evidence of the text messages based on violations of his Fourth Amendment rights. What kind of arguments, based in Moral Foundation Theory, could each side bring?

Thematic arguments the student might want to make would touch on government overreach, invasion of privacy, innocence due to age. The first two ideas trigger Liberty/Oppression themes in the overzealous law enforcement actions through the heavy handed way of searching the cell phone and perhaps jumping to conclusions on little evidence. Liberty as asserted through Fourth Amendment protections would be a key theme, as would be asserting a Care/Harm argument that emphasizes the innocence of a sixteen year old who was simply attending a high school football game. The overwhelming power of the police is no match for a kid. These ideas are overarching themes that would underly the concrete references to violations of the law in warrantless searches and lack of exceptions to the constitutional requirements of the Fourth Amendment. 

The government might want to bring arguments that justify its actions based on national security and protecting innocent life. Therefore the government would be asserting an argument of Authority, and also cleverly using the Care/Harm moral to generate empathy for innocent people who may be in harm's way if an active bomb is found. The government would then try to make a concrete argument using exceptions to warrantless searches, in this case, say exigent circumstances where the law actually waives the requirement of a warrant when public safety is at issue. The moral foundation background gives the argument the moral authority of the argument - the "righteousness of the cause." Judges know what the law is, but they need a reason to apply it on behalf of your client that makes sense in a moral way. Finding a moral foundation for your concrete argument may be the key to persuading the court. 

In reviewing these different morals as societal foundations, it seems that nearly all legal arguments - even ones based on more objective legal reasoning theories can be categorized into these moral foundations. Rule based arguments goes along with the Authority foundation, i.e., a body that has been recognized as having Authority promulgated the law, therefore it must be respected. Equal rights and laws against discrimination are clearly linked to the Fairness/Cheating moral foundation. Debates over abortion, the death penalty, euthanasia, and even legalizing marijuana for recreational use can be linked to the moral foundation of Sanctity/Degradation. Laws prohibiting treason, fraud, or requiring fiduciary duties rest on ideas of Loyalty/Betrayal. 

In the Real World, judges and courts may not always clearly indicate which moral foundations their opinions rely on, but by recognizing the importance of moral foundations and their connection to legal arguments, our own advocacy can become more persuasive and powerful. In an Ideal World, this is how we find the "just" outcomes for our clients and for our causes. 

 

April 2, 2018 in Appellate Advocacy | Permalink | Comments (0)

Thursday, March 29, 2018

Thinking Thursdays: Know your Logical Fallacies (Part 2)

In my last Thinking Thursday, I discussed some common logical fallacies that lawyers may fall prey to. Specifically, I focused on non-sequitur fallacies and insufficient evidence fallacies. Based on responses to my previous blog entry, I am going to review one category in this piece, and one more in the next entry.

Today I am focusing on shallow thinking fallacies. [1]

By way of quick review, logical fallacies happen when something goes wrong with the legal syllogism. Here is a proper albeit simplistic legal syllogism:

            Major premise:           The speed limit where defendant was arrested is 45 MPH.

             Minor Premise:          The working-perfectly radar gun clocked defendant at 63 MPH.

            Conclusion:                    Defendant was speeding

In shallow thinking fallacies, the advocate begins with a faulty major premise. The claimed “rule” is not a rule at all or is poorly articulated. Below are four shallow thinking fallacies.

Logic 2

1. You can spot a false dichotomy fallacy when you are presented only two choices to a complex issue that in fact offer multiple choices. For example, “If you don’t like chocolate, you must like vanilla.” Or, “you are either a Star Trek or a Star Wars person.”

Here’s how the syllogism goes wrong:

The False Dichotomy

Major Premise

Minor Premise

Conclusion

People can either like Star Wars or Star Trek, but cannot like both

You like Star Trek

You do not like Star Wars

False

True

Logical but incorrect

Some legal maxims are actually examples of this fallacy, including one of the trial lawyer’s favorites: falsus in uno, falsus in omnibus (if a witness lies about one thing, he is lying about everything).

2.Next is the bandwagon fallacy, or what I like to call “teenager logic,” It goes like this, “everybody agrees with this premise.” The obvious implication—so if everyone agrees, it must be correct. The internet is full of the faceless, nameless, “everyone says so” comments, sometimes supposedly supported by unscientific or undocumented polls. Lawyers might see this argument appear in the guise of an uncited “weight of authority” type of argument: “Most other jurisdictions do it this way!” Or, “This is a well-settled rule of law, dating back to antiquity.” [no or very few citations]. This one is a fallacy mostly because the major premise (“everybody agrees”) is not supported by sufficient authority. The premise might be true, but the skeptical reader will likely see this sort of argument as a cover-up for a weak or non-existent rule. A string citation can help overcome a bandwagon fallacy—one of the few times a string citation is actually useful: To show the weight of authority.

3.The third shallow thinking fallacy, the middle ground fallacy, is also known as the King Solomon Solution. This fallacy assumes that when two parties begin from distant or opposite positions, the position squarely in the middle of those two positions is the optimal solution. This kind of fallacy relies on the predilection of humans to rely on opening anchors for negotiation points--if the opening anchor is unrealistic, the rest of the negotiation can become fallacious. You can read more about this on the website of the Harvard Program on Negotiations.

Once again, this major premise contains fundamental flaws—in this case, the flaw in thinking that both positions are equally valid. They might not be. The problem, of course, is that the solution disregards the possibility that one position is objectively reasonable (or legally sound) and the other is grossly unreasonable (or legally unsound). While our legal system encourages and values compromise, when faced with this particular fallacy compromise leads to unreasonable or legally unsound results.

The Middle Ground Fallacy

Major Premise

Minor Premise

Conclusion

The best resolution of any valuation issue is the average of the two expert opinions

Plaintiff’s expert values the property at $500,000, but Defendant’s expert values it at $150,000

The property is worth $325,000

False

True

Logical but unsupported

4. Related to this, the fallacy of false balances also starts with a fundamental flaw in the major premise. Not all sides of an issue deserve equal weight in every situation. Sometimes one side of a debate has little or no weight at all, and therefore deserves little or no role in the debate. Journalists are often accused of allowing air time to fallacious debates even though one side is without merit.

In practice, this fallacy commonly appears in debates that involve proven science. The scientific method involves repeat experiments by different groups of scientists to verify stated conclusions. Once that has happened and conclusions have been accepted by a majority of scientists in the field, it is a logical fallacy to say that a dissenting view is equally balanced to the proved science. Allowing a debate about whether the moon revolves around the earth or vice versa would fall into this category of fallacies. As with the Fallacy of False Equivalency, lawyers can fall prey to this type of fallacy because we are taught to problem-solve through negotiation and compromise.

The False Balance Fallacy

Major Premise

Minor Premise

Conclusion

The Earth might be flat or round

I believe the Earth is flat

The Earth is flat

False

True (he “believes”)

Logical but False

Keep an eye out in your writing and in your colleagues’ to help correct any of these you spot in their analysis.

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

[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).

March 29, 2018 in Appellate Advocacy, Appellate Practice, Arbitration, Federal Appeals Courts, Law School, Legal Ethics, Legal Profession, Legal Writing, Moot Court, Rhetoric | Permalink | Comments (0)

Thursday, March 15, 2018

Thinking Thursdays: Know your logical fallacies (Part 1)

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

Faulty reasoning undermines the substances of a legal argument as well as the credibility of the advocate. After a quick search of the online briefs available on Westlaw and Lexis, I can safely tell you that several thousand appellate briefs reference logical fallacies—typically as a precursor to a direct refutation of an opposing party’s argument. How many of us these days know our logical fallacies as well as we should?

Beyond calling out opposing counsel for these errors, the wise attorney also tests their own writing to see if they have relied on fallacious thinking. In most logical fallacies, something has gone wrong with the legal syllogism. In a sense, the major premise of a syllogism is a rule, while the minor premise is a fact. The conclusion flows from the application of the rule to the fact. Here is a simple example.[1]

            Major premise:          The speed limit where defendant was arrested is 45 MPH.

            Minor Premise:          The working-perfectly radar gun clocked defendant at 63 MPH.

            Conclusion:                Defendant was speeding

In most logical fallacies, some part of the syllogism fails. There are four major categories of logical fallacies in law. Today’s blog entry goes through the first two groups of common fallacies: the non-sequitur fallacies and the insufficient evidence fallacies. The next Thinking Thursday blog entry will discuss two other categories: shallow thinking and avoidance fallacies.  

Logic 21. Non-sequitur fallacies. In a non-sequitur, the major premise is applied incorrectly to the minor premise. You can recognize these when the conclusion does not logically flow from the premise

1.1  The correlation equals causation fallacy commonly appears with statistical analyses. The arguer claims that because A and B appear together A must have caused B. The argument that the MMR vaccine causes babies to develop autism is a classic example of this type of fallacy. This amusing site shows these fallacies taken to the extreme.

1.2  The post hoc fallacy is closely related to the correlation/causation fallacy. The arguer claims that because A occurrence is followed by B occurrence, A’s occurrence must have caused B to occur. For example, after I ate an apple, I won an award—ergo, eating the apple caused me to win the award. In law, this sometimes shows up this way: When Pat drinks, Pat becomes violent. Therefore, Pat’s violence is caused by alcohol. That is a logical fallacy. Alcohol may lower inhibitions but does not cause violence by itself. 

2. Insufficient evidence fallacies contain faulty minor premises—faulty because they are false or based in inadequate material. There are three major types of these.

2.1  The hasty generalization fallacy happens when lawyers draw big and general conclusions from too small a sample size or from unrelated evidence. “Climate change has been solved because this winter New Jersey saw frigid temperatures in late December and early January, and because it saw two nor’easter storms in March.” In that example, the weather from one three-month period is being used to argue that a decades-old phenomenon is over or never existed. To show this syllogistically:   

Major premise: Climate change is making things warmer

Minor premise (flawed): weather over a three-month period matters to climate change

Conclusion (faulty): Climate change is over or solved.

2.2  The anecdotal evidence fallacy is related to the hasty generalization fallacy. The anecdotal evidence fallacy occurs when there is simply inadequate evidence to support the minor premise.

Major premise:  Some cities offer Segway tours of tourist areas.

Minor premise (flawed): I have never seen people on a Segway tour of Philadelphia.

Conclusion (faulty): Philadelphia does not have Segway tours.

2.3  Finally, shallow legal research can lead to the Texas sharpshooter fallacy. As a classic example, a person shoots an arrow at a barn wall, and then draws a bullseye around the arrow in the wall. That’s a logical fallacy and happens in the minor premise—i.e. “this is a target with a bullseye.” A Texas sharpshooter fallacy happens when someone builds legal analysis and argumentation around incomplete legal research. Think of this fallacy as related to a confirmation bias—when the legal researcher stops researching when they find a result that demonstrates the governing rule that they want for their client, versus what the rule might actually be.

**********

It is easy enough these days to practice spotting logical fallacies simply by watching television. Many advertisements use fallacious reasoning in the marketing. Politicians will sometimes fall into the logical fallacy trap as well—watching the news for a week or two should net you a few examples. But, most importantly, review your own advocacy for these common errors.

] 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).

March 15, 2018 in Appellate Advocacy, Appellate Practice, Appellate Procedure, Federal Appeals Courts, Law School, Legal Ethics, Legal Profession, Legal Writing, Moot Court, Oral Argument, Rhetoric, State Appeals Courts | Permalink | Comments (1)

Monday, March 12, 2018

To footnote, or not?

In Making Your Case: The Art of Persuading Judges, Bryan Garner and the late Justice Scalia provided their opposing views on the use of footnotes in appellate briefs.  Garner advocated for "putting all bibliographic matter . . . in footnotes," but cautioned against putting "any substantive text" or anything "that anyone should have to read" in footnotes.  The late Justice Scalia disagreed, stating that the practice doesn't make briefs more readable, since "the careful lawyer wants to know, while reading long, what the authority is for what you say."  So the reader will constantly be looking down to the footnotes to find the authorities used by the brief writer.

For the most part, I have agreed with Justice Scalia on this topic, and many of the judges who contributed to the third edition of Winning on Appeal expressed their dislike for footnotes. I generally viewed the footnote approach to be for the convenience of the writer and not the reader.

Last week, over at The Volokh Conspiracy, Eugene Volokh blogged on this very topic, quoting a district court opinion that stated, 

The Court strongly disfavors footnoted legal citations. Footnoted citations serve as an end-run around page limits and formatting requirements dictated by the Local Rules. Moreover, several courts have observed that "citations are highly relevant in a legal brief" and including them in footnotes "makes brief-reading difficult." The Court strongly discourages the parties from footnoting their legal citations in any future submissions.

Eugene also mentioned a federal appellate judge who told him "You view citations to authority as support for the argument. I view them as often the most important part of the argument."

Eugene's post sparked a little discussion on Twitter regarding footnotes in briefs.  I saw at least two judges who disagreed with his conclusion, preferring footnotes in briefs.  So what is the right answer? As in most questions involving appellate advocacy the right answer is to follow the conventions of your particular jurisdiction.  Has the court (or have judges on the court) said/written/tweeted anything on the issue?  If not, perhaps it is time to ask them!  I appreciated the judges who weighed into the Twitter discussion, and I think that more interactions like that can lead to better briefs overall.

 

March 12, 2018 in Appellate Advocacy, Appellate Practice, Legal Writing | Permalink | Comments (0)

Thursday, March 8, 2018

RBG - in theaters May 4

Appellate advocacy and Hollywood meet! For those who toil away in stacks of research, piles of rewrites, and solo rehearsals of oral arguments, appellate law is about to blow up! Well, perhaps that is a bit f an exaggeration, but a quality production film about one of the most well-known members of the Supreme Court is about to hit theaters in just a few weeks. 

RBG is the film documenting the life and career of Justice Ruth Bader Ginsburg. She is a tiny, soft spoken lady, but she has made a big impression in shaping the legal landscape generally, but also specifically blazing a path for women in a profession long dominated by men. Her accomplishments are memorialized in this movie. Perhaps you will recognize some of the players: 

At the age of 84, U.S. Supreme Court Justice Ruth Bader Ginsburg has developed a breathtaking legal legacy while becoming an unexpected pop culture icon. But without a definitive Ginsburg biography, the unique personal journey of this diminutive, quiet warrior's rise to the nation's highest court has been largely unknown, even to some of her biggest fans – until now. RBG is a revelatory documentary exploring Ginsburg 's exceptional life and career from Betsy West and Julie Cohen, and co-produced by Storyville Films and CNN Films.

Starring: Ruth Bader Ginsburg, Jane and James Ginsburg, Clara Spera, Gloria Steinem, Nina Totenberg, Lilly Ledbetter, Sharron Frontiero and Stephen Wiesenfeld, Irin Carmon and Shana Knizhnik, Bill Clinton, Ted Olson, Judge Harry Edwards, Senator Orrin Hatch, Eugene Scalia and Bryant Johnson.

 

Movies about the lives of justices are rarely, (have they ever been?), the subject of a feature film, but Justice Ginsburg has been a significant pioneer for the legal profession. It is good that a woman in a serious profession can command such attention in the mainstream culture. A sign of the times no doubt. 

 

March 8, 2018 in Appellate Advocacy | Permalink | Comments (0)

Thursday, February 22, 2018

In Your Brief, Be Brief

In your brief, be brief. Very quippy that advice, isn't it? Yes, and it's easier said than done. In order to write persuasive briefs, remember an important rule from oral argument. Get your point out right away, and never assume your reader will spend as much time on your brief that you will.

As a writer, your job is to bring added value to the product. Make it easy to read, coherent, and comprehensive. In order to accomplish these goals, you'll do your research, make your outlines, revise your drafts, and edit with a red pen. If you've done your job well, your reader will breeze through without a hitch.

This principle applies across the board in litigation: assume you will get very little time at that status conference, at that argument, on that call, at that hearing, or at that trial. But the best trial lawyers realize that such principle does not only apply to oral advocacy.  In your writing, assume that your reader is distracted, busy, and simply will not spend much time on what you write.

All legal readers are busy. Mostly we think of readers we want to impress as including judges, their clerks, managing attorneys, and of course law professors. (In contrast, we want opposing counsel to go weak in the knees). These people generally have much more to do than there is time to do it. They have the experience to know right away if a brief is well written just from an initial glance at a few key places: usually the Table of Contents that provides a wonderful place to outline your case, and then most frequently to a summary section - an Introduction, or Summary of the Argument. These readers have incorporated a first review of these sections because they have become very accustomed to approaching new information by gaining an understanding of the big picture. If your presentation doesn't follow the expected order of information, it will frustrate your reader. No need to make their job any harder.

How do we address this in our writing? We should write our advocacy writings in layers, summarizing the main points as quickly as we can in early layers and building on the layers in the document.This means in a typical trial court brief, we should exploit thoroughly the first advocacy layer of a table of contents. A frightening number of lawyers think tables of contents matter little. They are wrong. I have spoken to far too many judges and clerks who admit that before an argument all they had time to review were the tables of contents of the briefs, or, sometimes, just the table of contents of the reply brief. Your table of contents should be a true, focused summary of argument. If done well, all the reader has to know is your table of contents in order to know your entire argument (if not the nuances of it or the entire story of the case).

Then build from there next approaching an introduction or summary. One irony of producing good legal writing is that you cannot write a good summary until you've written a good discussion or argument, so these tasks must come last in the final draft stage. However, your reader will view the last thing you wrote first. If you've made your process systematic, it will be reflected in your writing, and ultimately produce a solid product that is easy to read.

Even if it were true that your reader isn't already very pressed for time, there is every reason to work hard on your brief so your reader doesn't have to. It goes to the subliminal persuasive value of the case. Alleviating obstacles to understanding the case, and removing frustration from the reader's efforts, will put you on the reader's good side, if not also give your reader another reason to praise your reasoning. 

February 22, 2018 in Appellate Advocacy | Permalink | Comments (0)

Thursday, February 15, 2018

Thinking Thursday: Lincoln would have owned Twitter

Presidents’ Weekend is upon us. Ten score and nine years ago, one of our most eloquent American writers was born. Per Professor Julie Oseid, it’s hard to pin down President Lincoln’s prowess to just one attribute. He was adept at many skills, “including alliteration, rhyme, contrast, balance, and metaphor.” (From her new book, Communicators-in-Chief) In her chapter on Lincoln, however, Oseid focuses on his ability to express a great deal in an economy of words. He developed that style during his 25 years as a trial attorney riding circuit. Collecting his legal writing became a quest for historians, and as a result Lincoln is now the most documented lawyer that we may ever have. You can see some of the work of The Lincoln Legal Papers project online. Oseid summarizes Lincoln’s strategy as not to waste arguments or words, but to use “just the necessary number of those words for essential matters.”

So many of our presidents are known for their rhetorical style that Oseid is able to build a body of work about the takeaways that we, as legal writers, can learn from our bygone leaders. Essays have appeared in Volumes 6, 7, 8, 9, and 10 of Legal Communication & Rhetoric: JALWD. Her new book brings together the rhetorical lessons from these five presidents and does so in a way that is very readable in the gestalt.

Lincoln with pen and paper

Lincoln worked hard for his brevity, pondering and editing mercilessly. He was driven by a need for universal comprehension—something every trial lawyer learns to do. His famous second inaugural address was delivered in six minutes. In 701 words he developed a timeless message of reconciliation—and 505 of the words he used were only one syllable long. His notes of his speech showed emphasis on five words, all verbs.

I asked Professor Oseid, and she agreed that Lincoln would have used Twitter masterfully and eloquently. It is interesting to pause for a few minutes and wonder how he would have used the medium. From what we know of his other writings, I strongly believe that he would have lifted it up, and us up in the process. Lincoln keenly understood that intelligent and powerful communications do not depend on vocabulary, but on conveying a theme with precision and organization.

As I celebrate my favorite presidents this weekend, I will be thinking about those legal writing lessons I can learn from them.

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

February 15, 2018 in Appellate Advocacy, Appellate Practice, Books, Law School, Legal Profession, Legal Writing, Moot Court, Oral Argument, Rhetoric, State Appeals Courts | Permalink | Comments (0)

Tuesday, February 13, 2018

2018 Justice Donald L. Corbin Appellate Symposium

In March, the Pulaski County Bar Foundation will be hosting the First Annual Justice Donald L. Corbin Appellate Symposium.  Justice Donald L. Corbin, a Marine Corps veteran, was a long-standing member of the Arkansas judiciary and served both on the state's intermediate appellate court and supreme court.  He passed away in late 2016.

The symposium will feature feature several noted speakers, including Roberta Kaplan, Dean Erwin Chemerinsky, and Judge Morris Sheppard Arnold.  I will also be presenting.

The event will be held at the University of Arkansas Little Rock Bowen School of Law.  You can see all of the details and register here.

February 13, 2018 in Appellate Advocacy, Appellate Practice | Permalink | Comments (0)

Thursday, February 1, 2018

Thinking Thursday: St Brigid's Day and our writing process

Today is St. Brigid’s Day, celebrating propagation and creativity (primarily of women, but let’s interpret this broadly). As professional writers whose jobs entail creativity in problem-solving, it is a good day to stop and audit our own methods of propagating our acts of creativity, namely those of writing. The more we understand how we work as writers, the better we will write.

Professor Pam Jenoff—a Rutgers colleague as well as a New York Times Bestseller author—offers practitioners a way to do this in her short and quite readable article in Legal Communication & Rhetoric’s volume 10, The Self-Assessed Writer. In the article she imports tried-and-true methods from fiction-writing, re-imagined to help the legal writer. To improve our writing and our willingness to write, Professor Jenoff recommends we take a little time to express our work styles, optimized environments, and preferred tasks. Her suggestions for doing this exercise are simple to digest and complete. A few pages into the article she offers us a questionnaire that asks us to think about our most productive writing atmosphere. She also asks us to be honest about our task-preferences in the form of writing challenges and strengths.

I have taken this assessment and asked my students to do the same. In doing so, I have come to terms with the actual what and when of my writing successes, which are somewhat different than what I wish I could report are the what and when. I am great at the re-organizing and revising stages of the writing process and will happily work on that for hours on end with only a few breaks. A lengthy first draft will exhaust me, and to get through, I need to work on it in smaller chunks than I do a revising project. When I take mid-session breaks I know that I need to walk to process the information in my head, and I know that I need a notebook in hand or a voice recorder app at the ready, because I will forget every productive thought I had if I don't preserve it during the walk. I also know that I need two screens and therefore a desktop setup for the first-draft process. Research on one side, draft on the other. I need the same as I reorganize because I find it easier to cut and paste into a new document. If I am in later revising stages, a one-screen laptop works fine. This blog entry was written using the two-screen method. If I wrote it on my laptop you would be reading it as Thinking Saturday. 

The point Professor Jenoff makes isn’t that we can always have what we want in our writing milieu. Instead, it’s to understand what is optimal. The further we move from the optimal, the harder our writing process becomes. Conversely, our productivity and the quality of our product increases as we pay ourselves first with an optimized writing process.

Happy St. Brigid’s Day.

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

February 1, 2018 in Appellate Advocacy, Appellate Practice, Law School, Legal Profession, Legal Writing, Moot Court, Rhetoric, State Appeals Courts | Permalink | Comments (0)

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 metaphors are 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 later 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 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)

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)

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. 

Judge Jennifer Dorsey, a fantastic writer in the U.S. District Courts, loves crafting the perfect questions for her readers, like this gem (which leads off an entire section of one of her orders): 

The threshold question: can Carrion raise a Johnson challenge under § 2255 when the sentencing judge did not expressly state that he relied on the residual clause?

Judge Dorsey is also a master of the hypothetical-string of questions, like she deftly uses in this order: 

Did defendants make material statements to him, or does he just believe they did? Who made them? When? And what was false about them? 

Judge Jay Bybee of the Ninth Circuit 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.

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. 

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