Thursday, August 30, 2018
Margaret Hannon, guest blogger, Clinical Assistant Professor of Law, University of Michigan Law School
What is a “stylish” citation? It is a citation that is “fully integrated with the prose to convey information in a readable way to a legal audience.” For law-trained readers, well-written citations communicate substantive information about the authorities that support the assertions in the text and the degree of support that the authorities provide. And when citations are well-written, they can “enhance the writer’s experience in the way that well-written prose can.” On the other hand, poorly written citations make it difficult for legal readers to understand the prose. As a result, readers will either skip over the citations or “slow to a painful crawl.”
What makes a citation “unstylish”? Professor Chew groups poorly written citations into two categories: “bumpy” citations and “presumptuous” citations. Bumpy citations interrupt the prose rather than working with it, while presumptuous citations communicate information that the reader expects to see not in the citation but in the prose. Bumpy and presumptuous citations are problematic in and of themselves, but identifying them can also help readers identify other writing problems.
In spite of the communicative role that citations play in legal writing, there is very little guidance about how to cite stylishly. Most legal writing texts don’t treat citation as a facet of legal writing style at all; as a result, they provide little to no advice about how to incorporate citations well. Similarly, many legal writers treat citations as an afterthought—a “separate, inferior part of the writing process, a perfunctory task that satisfies a convention but isn’t worth the attention that stylish writers spend on the ‘real’ words in their documents.”
So, how can you make your citations more stylish? Professor Chew describes a three-part system that any legal writer can follow, focusing on: (1) choosing what to cite; (2) writing the citation; and (3) revising to tie together prose and citations.
Professor Chew begins by providing advice on choosing what authority to cite and how many authorities to cite. She then provides guidance on writing the citation itself—choosing the citation placement, signal, and parenthetical content. As Professor Chew explains, these decisions should not be based on the Bluebook (or any other citation guide). Instead, they “should be driven by your understanding of the prose and its substantive relationship to the cited authority.” Finally, she provides advice on how to tie together the prose and the citations, i.e. how to identify the bumpy or presumptuous citations (which might also be signs of other writing problems) so that you can fix them.
There is one legal writing style expert who does provide guidance about citations—Bryan Garner. But the guidance that he provides isn’t about how to make in-line citations stylish because he views citations as “impediments to stylish legal writing.” Instead, Garner argues that writers should use footnotes instead of in-line citations.
Professor Chew rejects Garner’s critique of in-line citations because it is based on “the premise that writers aren’t up to the challenge of skillfully incorporating citations into their texts in a way that readers can follow.” Using footnotes may avoid some citation problems and may eliminate visual clutter, making it easier for writers to spot poorly written prose. However, it creates other writing problems. Even if citations are moved to footnotes, legal readers can’t ignore them because the citations convey necessary information about the authority that supports the assertions in the text. As Justice Scalia, Garner’s co-author, noted, moving citations to the footnotes thus “forces the reader’s “eyes to bounce repeatedly from text to footnote.” And weaving the details from the citations (such as the case name, court, and date) into the text might solve that problem but creates a new one in that it overemphasizes information that often isn’t worth emphasizing and makes the prose more awkward.
Instead, Professor Chew encourages legal writers to embrace in-line citations. In-line citations give the reader control over how much attention they pay to the citations by skimming them over or reading them in more detail. In general, readers pay less attention to citations than they do to prose, and this allows citations to be placed “right next to the propositions they support, at the reader’s point of need.” As a result, “in-line citations can convey information ‘almost subliminally’ as readers’ eyes speed across them.”
Professor Chew’s article fills an often-overlooked gap in the legal style literature, and it does so in a practical way. I encourage students, professors, and practitioners to read Professor Chew’s article for more detail, especially the “how tos” of making citations more stylish. I didn’t need much convincing about the importance of citation to legal writing, but Professor Chew’s article still made me think more deliberately about the role that citations play in good legal writing. And for those of you who teach legal writing (whether first-year or upper level), her article also makes the case for better integrating citations into the legal writing curriculum. Finally, if, like me, you can’t get enough of Professor Chew’s writing on citations, don’t miss her Citation Literacy article.
Thursday, August 16, 2018
Ruth Anne Robbins, Distinguished Clinical Professor of Law, Rutgers Law School
This is my last post for at least a long while—I will be on sabbatical this semester. What does someone invested in the field of legal writing do for sabbatical? She works to build the discipline. In my case, it’s researching and writing a topic that I hope will be of interest to members of the practicing bar as well as other scholars in the field.
Legal writing is a misnamed field. Scholars and teachers focus less on the mechanics of writing than they do on rhetorical analysis, and the nature of communication as part of client representation. A modern legal writing professor cares less about the sections of a memo than she does about the science of persuasion and the implications for legal advocacy. In this pursuit, the scholar connects with the practitioner. Many, many articles are written for a practitioner audience. I have had the joy of talking about several in this blog, and the bloggers who are taking over after this will be doing the same.
At a recent national conference, a group of legal writing “discipline-builders” sat around and talked about the landscape and trajectory of scholarship. We created a word cloud to capture the dialogue already out there—most of it created in the last twenty years. Here’s what it looks like:
As you can see, the conversations is rich, and varied. It's not your Mom's legal writing course anymore. Rather, the dialogue is dynamic and deep. This is an exciting time for scholarship in the discipline. I hope that you will join the conversation. And, thank you for reading these blogs.
Thursday, August 2, 2018
Ruth Anne Robbins, Distinguished Clinical Professor of Law, Rutgers Law School
Dr. J. Christopher Rideout, at Seattle School of Law wants lawyers to appreciate the elements of narrative plausibility (colloquially: story believability). The believability quotient is affected by whether the proffered story’s structure bears up in its consistency and completeness, and whether the story's substance jibes with the audience's experiences and lessons learned from those experiences. In his Journal of Legal Writing article Storytelling, Narrative Rationality, and Legal Persuasion, Rideout explains that his understanding of what persuades in law has shifted from one grounded primarily in rhetorical models of persuasion to now include narrative models as well.
To be persuasive, a narrative must possess narrative probability and narrative fidelity. Narrative probability is formalistic, in that it is structural. It involves two elements: coherence and correspondence. Narrative fidelity, in contrast, is substantive, focusing on the content. The bulk of rhetorician’s work on the persuasive structure of narratives has focused on the structural features. The way in which a story is told influences its credibility. “regardless of the actual truth status of the story.”
Narrative coherence refers to the way the parts of the story fits together. The story structure should have a cause and effect flow. Having that cause and effect flow makes a story feel feasible—thus, the story that is presented most coherently will be the story that feels the most probable. To be coherent, a story must also be complete—that it contains all of the expected parts of a story. While the audience may be able to fill in some of the elements with inferences, a story that is too incomplete will appear to have logical gaps.
Narrative correspondence. the second formal (structural) requirement, lines up what the audience believes typically happens in the world. As story consumers we are always comparing the story being told with how we have experienced our world’s physical properties or within the audience’s mental storehouse of social knowledge. A story that contradicts the audience’s understandings of how things work will lack plausibility. While the story need not conform precisely to the most-common-flow in a given situation, it must be congruent to how humans react in given situations.
Dr. Rideout spends the second half of the article working through his suggestion that when competing legal narratives have equally compelling story probability, the substantive concept of narrative fidelity may tip the persuasion scales. Narrative fidelity may feel like narrative correspondence but is not structural in nature. The story must present good reasons for belief or action. It must fit with the social norms of the setting and moment in time. Fidelity goes beyond formal inferences to include what one rhetorician terms “communal validity.” The story should have a “tug” to it because it appeals to our lived experiences and the values derived therefrom. Stories that win, do so for the logical construct but also for the substantive fit.
 W. Lance Bennett & Martha S. Feldman, Reconstructing Reality in the Courtroom: Justice and Judgement in American Culture, 89 (Rutgers Univ. Press 1981).
 Robert Burns, A Theory of the Trial, 217 (Princeton Univ. Press 1999).
Thursday, July 19, 2018
Ruth Anne Robbins, Distinguished Clinical Professor of Law, Rutgers Law School
Dr. Joan Magat, a law professor at Duke, wants you to know that hyphens matter, and they are too often underused. For years she has tried to convince the editors at Legal Communication & Rhetoric: JALWD that the phrase should be “legal-writing document” rather than “legal writing document.” And that lawyers who work with clients who have been charged with crimes are “criminal-defense attorneys,” rather than “criminal defense attorneys.” The latter isn’t distinguishable from someone trying to describe one of those specialists who themself was convicted of a crime. That lawyer would be a “criminal defense attorney.” See the problem? Although she often finds herself on the losing side of these battles, Joan Magat isn’t wrong.
Her 2014 article, Hawing Hyphens in Compound Modifiers explains as it proves her point. Although she thanked and dedicated the article to her fellow-editor colleagues, its brevity and clarity offers an argument for all lawyers.
The base rule is easy to remember: compound adjectival-modifiers preceding a noun should be hyphenated. It easy to apply it consistently. Exception exist for phrases in italics, quotes, and proper nouns. Yet, to Professor Magat’s woe, too often writers omit the hyphen, mimicking some of the familiar-but-unhyphenated phrases like “high school student” or “sales tax increase.” She rejects the entries in The New York Times Manual on Style and U.S. Government Printing Office’s Manual of Style, both of which advise against hyphens when the meaning is clear without them. It is up to the writer to determine what might be clear or unclear to the reader. The MLA Style Manual, in contrast, takes the opposite approach and instead requires hyphens to prevent a misreading. Only commonly unhyphenated phrases are excepted. There is much less guesswork involved.
Dr. Magat parses “pointless” from “helpful,” and shrugs off the critique that unexpected hyphens will distract readers. She pushes back, saying that hyphens are unlike scare quotes, exclamation points, or em-dashes used to excess. Rather, the hyphen smooths the way for readers because at times it can become difficult to tell what’s the noun and what’s the modifier. Think about the phrase “common law practice” for a moment. What is that? It could be one of two things. A hyphen could clear it up.
The article ends with a lovely appendix, providing advice about hyphenating compound modifiers. For that alone, the article is worth the thirty-second download time.
Thursday, July 5, 2018
Ruth Anne Robbins, Distinguished Clinical Professor, Rutgers Law School
Professor Andrew Carter has used a juggling metaphor to caution his students about exceeding a reader’s working-memory limitations. A sentence and paragraph need to stay within the boundaries of what a reader can competently hold in her working memory if the writer wants that reader to thoroughly comprehend and maintain the writer’s ideas. His article on the topic provides lawyers with useful information why our writing needs revisions for clarity and, yes, brevity.
Working memory is more than pass-through storage for new information. It is also where we interpret that information and use it to complete tasks. A simple arithmetic problem can be solved in our heads thanks to working memory, because it is there that we are both storing information (the numbers) and processing that information (performing the arithmetic function). At some point, Professor Carter points out, arithmetic becomes too difficult if there are too many numbers to store and manipulate. While we might be able to add numbers in the 100’s, we may need to turn to writing instruments to solve addition or subtraction problems that involve numbers in the thousands or ten-thousands.
Working memory has three different components to it: the first part stores the new information and the second part rehearses it on a loop to avoid forgetting. Third, the central executive component coordinates the information and controls the processing.
Written text likewise engages working memory. But, a reader can process only a limited number of concepts in a single sentence or paragraph before overwhelming the limited capacity of working memory’s ability to store, rehearse, and process information. In the central executive aspect, the reader completes two tasks: discerning the text’s meaning and putting the text into context by mediating interactions with information housed in long-term memory. Thus, says Professor Carter, legal writers need to be cautious about how much information they ask the reader to juggle.
Professor Carter thus offers two sage pieces of advice. First, promote automatic processing. That means keeping the information simplified and free from disruptions. Long sentences with extraneous information, ornate syntax or obscure phrases all inhibit the automatic processing of information. So too will stumbling blocks in the way of grammatical, word-choice, or punctuation errors. Second, manage the cognitive load visually by chunking sentences and paragraphs so the interactivity of ideas is obvious rather than difficult to sus out. Causal ideas (if/then) in sentences and paragraphs should be clear to the reader via small-group chunks that are more automatically processed because they contain recognizable flow.
Naturally, legal readers carry a duty to read and digest the legal writing of an attorney. But, it bears repeating that a piece of writing’s efficacy will turn in part on its readability. Sometimes, keeping it simple is the strategic choice.
Wednesday, June 6, 2018
Over the last few weeks, I've worked with a young lawyer as he prepared for his first appellate oral argument in an important federal case. And I experienced what is, at this point in my career as a teacher of advocacy skills, the familiar thrill of watching a good lawyer quickly get better. I hope the oral arguments in the case lead to better results than we'd see in whatever outcome and reasoning the panel would have reached based on the briefing alone. But I know this: preparing for and presenting the argument has made my colleague better.
In the last two posts on this blog, Tessa and Dan discuss recent pieces in the New York Law Journal and the National Law Journal on the steep quantitative decline of oral argument in the federal circuit courts. This decline is, perhaps, inevitable in an era of expanding dockets and technological advances that make briefs relatively cheap to generate and consume (I said relatively; don't @ me). But my reflex is to bemoan the lack of betterment that must accompany this decline. I'm not talking so much about the betterment of case outcomes or of society more generally. The hit to that species of betterment is, no doubt, real and worthy of discussion. And it has been discussed, well and often, on this blog and elsewhere. See, for example, pieces by Jennifer and Tessa discussing a report from the American Academy of Appellate Lawyers on why the decline matters; see also this piece by David Cleveland and Steven Wisotsky. But the benefits of oral argument in bettering outcomes and society are marginal and difficult to quantify; perhaps they're mostly not worth the cost. I don't know.
I'm concerned about the betterment of lawyers. It's not just that, as oral argument rates decline, fewer emerging lawyers will develop experience in the art of oral advocacy. After all, if the need for oral argument artisans declines, then bemoaning the loss of opportunities to practice the craft would be like getting upset over the scantiness of job listings for haberdashers.
It's that doing oral argument makes one a better lawyer. Preparing for oral argument makes one a better lawyer. Deeply. Quickly.
If one prepares properly, appellate oral argument is a nearly perfect pedagogical tool. One basically can't prepare for and present an oral argument without working through virtually all of the techniques recommended by learning scientists (summarized nicely in the book Make It Stick: The Science of Successful Learning). Oral argument is an intricate, dynamic exercise in retrieval practice; as such, it leverages the testing effect. It demands elaboration: advocates must explain complex subjects clearly and vividly, show connections, relate the abstract to the concrete, and so on. It requires one to construct and use a network of mental models. As advocates move though disparate bits of the argument, they interleave material. Particularly because advocates naturally spend much of their time at the podium getting tested, through interrogation, about the most challenging aspects of their theory of the case, oral argument produces desirable difficulty. Judges' reactions provide real-time feedback. Post-moot periods promote reflection, a key component of sophisticated learning and skill development. The dynamic of oral argument lends itself to spaced practice. And anyone who has had to perform in oral argument learns quickly that our usual, misguided ways of "learning" material -- reading and cramming, with little retrieval or performative practice -- don't help much. Prepared oral advocates learn, deeply, then teach, and learn more deeply for having taught. The expertise sticks.
Let's say I'm right that doing and preparing for oral argument is an especially powerful way for lawyers to develop expertise and skill. And let's say that oral argument skeptics and realists are correct that oral arguments only rarely affect outcomes in cases and most often aren't worth the cost. Maybe we can agree on this: let's push more oral arguments down to junior attorneys. That'll drop the costs. Maximize the benefit. Make a lot of forward-thinking courts happy.
Thursday, May 31, 2018
As users of language, we become masters of slang, idioms, hyperbole, and other techniques using words to convey a message. We teach classes in rhetoric, and study the methods of persuasion. But most of us likely do it all in one language - English. Have you ever wondered whether other languages employ these same techniques? Of course they do, but according to the researcher in this Ted Talk, the language itself might influence thought. From a linguist-enthusiast point of view this is very interesting, but there are also practical implications for our profession.
For example, in English we might say, "I broke the glass." It could be an accident, but that particular construction assigns blame. Another language, like Spanish would likely construct the same idea in another way, "The glass broke." While this is a passive construction, it focuses more on the action of what happened, and leaves out who is to blame for the action. This distinction between passive and active voice is all very familiar to writing lawyers. And we know how to use each to our advantage.
But does this construction also influence how we think about the person who broke the glass? This researcher says it does. In an English speaking society, we would tend to remember more about who is to blame, and in a Spanish speaking society, we would tend to remember more about what actually happened, than who did it. This has important implications for both eye witness testimony and rendering punishment.
Thursday, May 24, 2018
Ruth Anne Robbins, Distinguished Clinical Professor of Law, Rutgers Law School
Parentheticals. We love them, but we don’t always understand how to use them. An empirical study and article by Professor Michael Murray compiling the most-often use of these legal-writing creatures, demonstrates that most of the time they are used either incorrectly or inefficiently. Parentheticals are best employed to illustrate the governing rule of law by pointing to key facts from precedential narratives. Or, to embed a pithy quote that likewise illustrates a point.
Parentheticals are typically used when an illustration can be easily reduced to a comprehensible present-participle phrase. Experts also consider relevance in the equation. Sometimes the efficiencies suggest the use of a parenthetical to save space, i.e. when the precedential case isn’t important enough to elevate to an in-text explanation. A parenthetical can also be used to make a point about a rule being used in a series of precedential cases. That is, the parentheticals can then form visual support for synthesis such as, “the five cases that analyzed this point all interpreted the term broadly.” Five cites with parentheticals would then follow.
However, the substance inside parentheticals are sometimes visually difficult to locate, coming at the end of a citation sentence. If a case is more relevant to the client’s outcome, a better choice may be using one or two sentences of in-text explanation in lieu of the parenthetical.
Michael Smith, at Wyoming College of Law is *the* expert on this topic, and his Advanced Legal Writing textbook’s Chapter 3 has been termed by 15 years of upper-division law students as “mandatory reading for any to-be lawyer or lawyer.” In the chapter he categorizes types of narration one might do in a parenthetical:
- Illustrate for elucidation (using a parenthetical to illustrate how a rule operated in a precedential case).
- Illustrate for elimination (using a parenthetical to eliminate possible misinterpretations of general rules).
- Illustrate for affiliation (using a parenthetical to tie a rule to something in the everyday knowledge of the reader—a reference to a cultural icon, publication, or phenomenon).
- Illustrate for accentuation (using a parenthetical to demonstrate how one word in the rule that might otherwise be overlooked is actually the key to solving ambiguities).
In my own textbook, written with Steve Johansen and with Professor Smith’s colleague Ken Chestek, we expand slightly on Professor Smith’s categories, by talking about one-word or one-phrase uses of parentheticals. That is used in situations where a single word or phrase can conjure a story-scene for the reader and make the elucidation point. By way of quick example, “New Jersey considers the smallest of offensive touches ‘bodily injury’ in its criminal caselaw. [case cite] (slap); [case cite] (shove); [case cite] (kick); [case cite] (pinch).” We also talk about times when you can use quotations effectively in parentheticals: when it’s unique language that succinctly illustrates the rule. “wall of separation” is a good example of this.
Professor Smith also includes cautions for the use of parentheticals, and it is here that the numbers crunched by Professor Murray in his article make clear what is going wrong in the majority of appellate briefs. The number one and number two issues that Professor Smith sees in the drafting of parenthetical substance? Exactly what Professor Murray sees the most in his data. The error of placing the rule in the parenthetical. Or, the error of restating the rule in the parenthetical. That is, quoting the rule the attorney just synthesized into a client-oriented rule statement—or should have just synthesized that way. Restating the rule is simply a crutch for the writer—as if to say, “I really did read the case!” Restating the rule also ruins the cause-to-effect narrative flow of the rule illustration/rule explanation part of legal analysis.
Other common errors include being too overbroad in the factual illustration or being too specific. The right height to look down on the case and describe facts for parenthetical purposes is something like 30 feet from the ground. What can you see of a precedent’s story from that height? Not every blade of grass, but maybe a person’s front yard.
What is the takeaway? Parentheticals are an important tool in the lawyer’s kit, when used to promote persuasion and efficiency. They can, however, be cluttering and in some cases can add bulk if they are merely repetitive. Use them well—and use them wisely.
 You can preview part of Professor Smith’s Chapter 3 via Google Books. Search string: “Michael R. Smith” & parentheticals
 Do not pay the list price for a new book. The second edition is coming out this fall and will make this first edition a heck of a lot cheaper.
Thursday, May 10, 2018
Ruth Anne Robbins, Distinguished Clinical Professor of Law, Rutgers Law School
The big news this week in field of law and typography 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.
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. 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. 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 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.
So, 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?
 Miles A. Tinker, Legibility of Print 47–48 (Iowa State U. Press 1964) (synthesizing several decades of psychological research on typeface and readability).
 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
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.
Monday, April 23, 2018
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.
Wednesday, April 18, 2018
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.
Monday, April 9, 2018
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:
- "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.
- 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.
Thursday, April 5, 2018
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.
Monday, April 2, 2018
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.
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.
Thursday, March 29, 2018
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. 
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.
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
People can either like Star Wars or Star Trek, but cannot like both
You like Star Trek
You do not like Star Wars
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
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
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
The Earth might be flat or round
I believe the Earth is flat
The Earth is flat
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
 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
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.
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.
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
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.
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.
Thursday, March 8, 2018
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.
Thursday, February 22, 2018
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.