Appellate Advocacy Blog

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

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 (0)

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. 


[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,

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.


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


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


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 (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


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)

Saturday, December 9, 2017

Issues, issues everywhere, but not a one makes sense

Lady confused

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

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

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

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

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


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

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

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

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

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

Or a more refined rule that you crafted yourself:

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

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

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

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

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

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

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

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

Intent to injure

[Explanation of the intent to injure rule]

Reckless injury

[Explanation of the reckless injury rule]"

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

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

Courts have held a defendant intends to injure . . .

As to reckless injury, courts have held . . .

The defendant intended to injure here because . . .

The defendant was reckless here because . . . "

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

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

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

To recap:

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

 Joe Regalia is an adjunct professor of law at Loyola University School of Law, Chicago and an attorney at the firm of Sidley Austin, LLP. Jory Hoffman is an attorney at the firm of Jenner & Block, LLP. The views we express here are solely our own and are not intended to be legal advice. 

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

Thursday, December 7, 2017

Thinking Thursdays: Negativity, Empiricism, and Legal Advocacy

Negativity landscape

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

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

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

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


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

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

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


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

Thursday, November 9, 2017

Thinking Thursday: When metaphors harm

In a recently released Maryland Law Review article entitled Do Muddy Waters Shift Burdens?, Professors Carrie Sperling and Kimberly Holst walk readers through the history of what was supposed to be one of the country’s most progressive laws allowing post-conviction DNA testing for inmates whose cases did not originally involved that type of evidence. Article 64.03 in the Texas Code of Criminal Procedure created a uniform process for inmates to petition courts for testing, asking inmates to show, “a reasonable probability that he or she would not have been prosecuted or convicted if DNA testing had provided exculpatory results.”Criminal attorneys will recognize the “reasonable probability” test as a well-established standard that courts interpret as a probability that sufficiently undermines confidence in the case’s result.

Nevertheless, Texas courts have latched onto a metaphor introduced by the Texas Court of Criminal appeals a few years after the statute was enacted. That court first found ambiguity in the standard despite its years of interpretation in other contexts. Instead, that court held, the standard must be interpreted to require inmates to show, with reasonable probability, that the DNA testing would prove a convicted person’s innocence. The defendant in the case did not meet that burden, but showed only that DNA testing would “merely muddy the waters.” Despite the Texas Legislature returning to the statute to clarify its intent, Professors Sperling and Holst found that courts continue to use the metaphor as a statement of the governing rule of law.

Metaphors be with you
Doctrinal metaphors abound in our case precedents. The most famous are found in evidentiary analysis, “fruit of the poisonous tree,” and in civil procedure, “long-arm” statutes. Many doctrinal metaphors are extremely useful in helping frame our thinking about more abstract principles. But, in the situation spotlighted by these two professors, a doctrinal metaphor might be harmful or even a misstatement of the law. What should a lawyer do in that situation?

The answer lies in part in a separate article, this one published by the Mercer Law Review and republished in a monograph, written by Professor Michael Smith, Levels of Metaphor in Persuasive Writing. In that article, Professor Smith advises attorneys to challenge the metaphor directly, a strategy he calls the Cardozo Attack. Justice (then Judge) Cardozo warned other jurists that creative metaphors involved with corporate law, “piercing the corporate veil,”  should be used only very carefully and not to the exclusion of more accurate, albeit literal, language. Professor Smith’s article details two examples of successful attacks on doctrinal metaphors.

Both articles spend some time explaining the cognition of metaphor use, which is reason enough to read these two pieces. Beyond that, the articles offer an important lesson for appellate attorneys. First, we must be aware of the notion that metaphoric language is just that: a comparison of two seemingly incongruent things to help readers form connections. By themselves, doctrinal metaphors do not necessarily form the backbone of substantive law. Second, we should spend time in our lawyering process unpacking these metaphors in the event that they conflict with the actual and governing tests. In the event they do, it is incumbent upon us, as part of our client representation, to address the metaphor itself as part of a persuasive argument chain.

November 9, 2017 in Appellate Advocacy, Appellate Justice, Appellate Practice, Federal Appeals Courts, Law School, Legal Profession, Legal Writing, Moot Court | Permalink | Comments (0)

Thursday, November 2, 2017

The 2017 Appellate Hot List

Contrary to the enticing moniker, The Appellate Hot List is not a beauty contest! It is an annual round-up of the top law firms who have won significant victories at the Supreme Court or in the federal circuit courts. This year's Hot List naturally includes some repeat offenders, because clearly, once the word gets out that a firm wins in the highest court, more clients will come calling. The National Law Journal did quick summaries of the cases involved, and some of the more prominent attorneys were asked to give advice to their younger selves.


With an eye towards educating my students, the advice portion is the most interesting:

William Jay of Goodwin Proctor won Star Athletica v. Varsity Brands, a copyright case dealing with original artwork on cheerleaders' uniforms. His advice was, "Read as much good writing as you can—nonlegal as well as legal [and] [s]et aside some time each day for long-term planning, because otherwise the immediate tasks at hand will swallow all your time." His first recommendation to read, read, read, is echoed by other top appellate lawyers in this year's list as you will see. The second piece of advice for time management is rarely discussed in law school but is ultimately a key factor to success in practice and living a balanced life.

Steve Rummage of Davis Wright Tremaine, along with his partners, won Microsoft v. Baker, a case about class certification. His advice was, "Focus less on trying to show case law mandates an outcome and more on showing how to reach a just and fair result for your client within the law." This is a lesson moot court students have to be reminded of frequently when they first practice developing their arguments for competition. Many are usually stuck on "precedent" as an argument, but the Supreme Court is more interested in finding the right outcome. Once students internalize this, their creativity bounds.

Adam Unikowsky of Jenner & Block won Kokesh v. SEC, a disgorgement case with the novel argument that it was really a penalty. The argument had never succeeded at the lower courts but ultimately won the day with the Supremes. Unikowsky advised, "If possible, make your brief shorter [and] [i]t is always necessary to be scrupulously accurate—otherwise you will lose all credibility with the court." Concision and accuracy are holy principles in legal writing. It is always nice to see your lessons reinforced by those in the trenches.

Jeffrey Green of Sidley Austin won Dean v. United States, a case regarding how sentences for gun crimes should be determined. Green gave some colorful, but very practical advice:

"Avoid lawyerly ‘splain’in. Explication, exegesis and theorizing rarely have a place. Give reasons instead—nothing more or less. What the Fourth Amendment or case X says is not going to win the day. [And] [s]ay it well, but say it only once. You can’t overestimate the goodwill you earn with any justice or judge by submitting a brief that is just about one-half of the allowable length. Don’t be repetitive about what you want, the justices just want to know why you want it."

At the risk of being repetitive myself, this advice is worth highlighting - simplify and avoid redundancies. Priceless.

Kannon Shanmugam of Williams & Connolly won two victories in the Supreme Court, and two in the circuit courts. Shanmuhagn was most proud of the hard work of the junior associates who won the cases in the lower courts. His advice was, "Take every opportunity you can to stand up in court or even to engage in public speaking. For most of us, oral advocacy is an acquired skill. [And, once again,] [r]ead good writing in any form you can find it. The best writers are voracious readers." Many students are petrified of oral presentations, but the trick is that there is no trick - only practice. Sure, some people do have a gift that gives them a leg up, but most people come by their oral argument skills through lots and lots of practice. And also, read! Read anything and everything. It will show up in your work product either way. 

Observing those who are successful at the highest levels of the profession is always worth a pause, and a thought about incorporating their lessons into our own practice - whether we maintain clients and a case load, or are simply imparting demonstrated wisdom to the youngest new attorneys. 

November 2, 2017 in Appellate Advocacy, Appellate Practice, Current Affairs | Permalink | Comments (0)

Thursday, October 26, 2017

Thinking Thursdays: Visual Impact Moments

What is the narrative climax in the Little Red Riding Hood fable? When the wolf eats Little Red. But what is the visual impact moment? The image you think about when you recall the story? That’s From 2006 AALS Clinic poster session
probably different. It’s either an image of a little girl in a red cape, walking through the woods or it’s the moment when Little Red first sees the wolf in Granny’s bed, wearing Granny’s nightclothes. The visual impact moment can be different from the story’s climax.

Jason Eyster writes about visual impact moments in one of my all-time favorite articles in the Applied Legal Storytelling canon. His article, The Lawyer as Artist, in Vol. 14 of the Journal of Legal Writing, explores the use of scene and setting as a persuasive tool for legal writers. This article is creative, and always fresh. It is one that I re-read and think about at least once or twice a year. The idea of the setting isn’t often discussed in the persuasion literature, but, as Eyster argues, can create lingering impressions. The legal writer who takes time during a description to linger on choice details will make the scene “pop” for the reader those visual images will provoke a natural, emotional response. The visual impact scene need not be the climax, but should connect to the case theme. If you can connect it to the theory of the case, all the better.

So, how do you do it? Eyster offers one idea: the obtuse object. That is something unexpected or incongruous with a scene that draws in the reader through a natural curiosity. In one of his examples, an asylum case, the legal writer zeroes in the description of his client, sitting in her former home and eating a pomegranate just before hearing a sinister knock on her door—one that results in her being dragged away by militia in her country. The simple mention of the pomegranate serves to draw the reader into the scene. It evokes the famous Persephone myth of a young woman dragged into hell while her mother tries to have her released. The scene is made all the more emotional for its layers of meaning. Pomegranate

Think about the scene in your client’s case that you hope the judicial panel will likewise remember when they put down the brief. Is it the scene you want? If it’s the same scene your opponent might choose, think of another one. If it is the scene you want, have you chosen some memorable detail to describe—an action, an object, a character, or the setting itself. Describe it with a name, sensory information, its function, its history, or a metaphor. Things like this put joy and art into the job of legal writing.

October 26, 2017 in Appellate Advocacy, Appellate Practice, Law School, Legal Writing, Moot Court, Rhetoric, State Appeals Courts | Permalink | Comments (0)

Monday, October 23, 2017

Is Oral Argument Dying in the Circuits?



Yes, at least according to a recent study by the American Academy of Appellate Lawyers. Jennifer posted an excellent summary of the report last Thursday.  I won't repeat her discussion, but I wanted to focus on a few other points.

The Academy, concerned with both the decline in cases listed for oral argument and the time allotted for oral argument in federal appellate courts, sent their report to Chief Justice John G. Roberts, Jr., and the chief judges of the federal appellate courts.  As Academy member James Martin told the National Law Journal, more oral argument could shed light on the role of judges: "Oral argument is a very unique piece of the civics lesson and one that I personally believe puts the courts in a very good light and is its own almost best explanation of what the third branch does and is all about."

According to the report, there are four federal circuits with oral argument rates in the teens.  The Fourth Circuit is the lowest, with only 11% of cases being scheduled for oral argument.  The D.C. Circuit, with 55% of cases being scheduled for argument, has the highest rate of oral argument.  According to the research I did along with my co-author for the third edition of Winning on Appeal, only 18.6% of federal appellate cases were scheduled for argument in 2015.  In 1990, 44.8% of cases received oral argument, with the Second Circuit granting argument in 76.4% of cases.  And, as we noted in Winning on Appeal, these numbers don't take into consideration the litigants who do not ask for oral argument in circuits that require such a request. So why the decline?

Some of the decline can be attributed to the rise in cases appealed.  In 1969 the federal appellate courts terminated 9,014 appeals. In 2015, that number was 52,881, or an increase of 586%.  It would be incredibly difficult for judges to hear argument in every case given the large number of appeals.  Furthermore, in surveying judges for Winning on Appeal, we found that most judges found the briefs to play a highly significant, if not dispositive, role in helping them resolve the appeal. 

Still, oral argument has its purposes.  In chapter 3 of Winning on Appeal, we set out some of these purposes.  For judges, oral argument allows them to (1) question the legal and factual positions in the briefs, (2) clarify the issues, (3) consider the impact of the positions taken, (4) lobby other members of their court, and, at times, (5) help the advocate present the case.  For attorneys, on the other hand, oral argument allows them to (1) face the decision makers, (2) emphasize or simplify positions in the brief, (3) address the issues that trouble the court, (4) correct misimpressions, and (5) show the logical soundness of their position.  In observing oral arguments, I have found that many attorneys fail to capitalize on these opportunities.  While, as Mr. Martin noted, oral argument puts judges in "a very good light," it doesn't always do the same for attorneys. Perhaps the answer to more oral argument is to ensure that the quality of oral argument is excellent and beneficial to judges and the disposition of cases.


October 23, 2017 in Appellate Advocacy, Appellate Practice, Federal Appeals Courts, Oral Argument | Permalink | Comments (1)

Wednesday, October 18, 2017

The advocacy of "the greatest lawyer of the 20th century"


My law school was fortunate to welcome Elena Kagan earlier this week. (The artist's rendering above is the work of Professor Evelyn Brody.) During a delightfully wide-ranging conversation with Professor Carolyn Shapiro, Justice Kagan took a firm stand on one point: her former boss Thurgood Marshall was "the greatest lawyer of the twentieth century."

No one argued with that.


As Justice Kagan noted, we mostly remember Thurgood Marshall, attorney at law, as an appellate advocate, though that might change with the release of the film Marshall, which focuses on his trial work. He is, of course, most celebrated for his work in the Brown v. Board of Education cases. And his advocacy led to key victories in the decade-plus before Brown: in Murray v. Pearson, a groundbreaking Maryland desegregation case; in Shelley v. Kraemer, a landmark case striking down racial covenants; in the Brown precursors Sweatt v. Painter and McLaurin v. Oklahoma State Regents; in dozens of other cases.

To spell out the obvious: there is substance to Marshall's legend. The records of his appellate oral arguments provide ready confirmation of this. It's worth reading in full the transcripts of his oral arguments in Briggs v. Elliott, one of the consolidated Brown cases.  In the original 1952 argument and rebuttal (pdfs), Marshall elegantly handles active questioning from skeptical justices (Reed and CJ Vinson, who reportedly favored upholding the school boards' practices)  and genuinely torn justices (Frankfurter and Jackson, who were sympathetic to the claimants but true believers in judicial restraint). In the 1953 reargument, Marshall offers a rich oral treatise on the Fourteenth Amendment. And his rebuttal is a remarkable closing argument. I won't paste an excerpt here because an excerpt won't do it justice. Trust me: click here; scroll to page 20; start reading the paragraph at the bottom of the page that begins "[t]he argument of judicial restraint has no application in this case"; keep going until you hit "[t]hank you, sir." Ethos, logos, pathos.  

I'd also recommend listening to Solicitor General Marshall's oral argument in United States v. Price, the Mississippi Burning case. Unlike in Briggs/Brown, he's not addressing skeptical or torn justices: he draws only two soft questions from a Court that ultimately ruled unanimously in his favor. So he generates his own momentum: in key segments of his argument, he serves as his own interlocutor, asking sharply-composed questions and offering sharply-composed answers. It works remarkably well; his assurance and comfort in his own skin are a palpable force.

None greater. 

October 18, 2017 in Appellate Advocacy, Oral Argument, United States Supreme Court | Permalink | Comments (1)

Saturday, October 14, 2017

Editing Alchemy


Have you heard the secret to being a brilliant writer—appellate or otherwise? Because there is one. An ancient trick used by all the greats, from Justice Kagan to Stephen King. Use this device, and your writing will improve tenfold overnight. And it’s so simple: just edit well. That’s it. Learn to edit well and your writing will be better than you thought possible.

Now, let me be clear: I’m not talking about the quick proofread you do before sending a motion to the partner. I’m not talking about your 5-minute scan for typos, or your last-minute cite-check. I’m talking about strategic, measured, science-based editing. 

Before we get to the how, let’s talk about the why. Psychology tells us a lot about why you might not be editing right. One insight is that our mind is easily overwhelmed when we try to do too much at once. And that counts for editing, too. So if you try to edit for too much, too fast, your “working memory” gets overloaded and you miss things. You need a strategy for breaking up your editing into chunks, or phases, to make sure that you get all the important stuff in.

Another insight from the world of psychology is that we know more about good writing in the abstract than we ever put into practice. For example, studies show that incoming 1Ls know a good deal about grammar rules—but that they fail to incorporate much of this knowledge in their writing projects. Lawyers are no different. So you need a strategy for taking these writing tools that you know in theory (or will pick up in the future) and incorporating them into everyday writing habits that you will actually use.

Finally, let’s talk about bias. You’re biased; I’m biased; we’re all biased. The best you can do is become aware of your biases and use some strategies to counter them. Two biases that plague us lawyers are advocacy bias and what I call trench bias. Advocacy bias you probably know: it’s that growing certainty that your client, or your position, is right. That inability to see the value in the other side’s arguments. This sort of bias is insidious, and you must counter it to be a good lawyer.

Trench bias can be just as bad: it’s the bias you get when you’re fighting in the trenches and lose sight of the battlefield. It’s the bias that comes from being steeped in the same case, the same facts, the same law for months. With this bias in force, your writing is full of jargon. You forget to give your reader enough context or background so that they understand where you are and where you’re going. Even the best lawyers struggle with this.   

To sum up: (1) you need to force yourself to break editing sessions into manageable chunks; (2) you need to not merely learn new writing moves, you need to turn them into habit; and (3) you need to counter your biases. I have good news. With a few simple editing habits, you can handle these challenges and more.


First, check the box. 

If you want to edit well, checklists are a must. Good writers edit for tons of writing moves before they send a document out the door. Not just the easy ones, like passive voice—but things like transitions, sentence balance, sentence length, concrete verbs, and much, much more. There is simply no way to track all of this without a checklist. Especially when you pick up new writing moves. Say you’re reading a brief and say to yourself “Wow! I love the way he uses short, pithy sentences to end his sections.” Now fast-forward a week later. You’re working late on a brief. You’re stressed and tired. Do you think you’ll remember to try out that new short-sentence idea? Probably not. But if you put it on a checklist that you run through before finalizing your document, you will.

And when you create your checklist, make sure that you separate your editing into multiple phases. Again, trying to edit for too many things simultaneously isn’t manageable. So edit for a handful of moves at each sitting. Perhaps on your first edit look for substantive problems such as a fact you forgot to explain or an unsupported rule. On your next editing round, you can hit big-picture style points such as ensuring you have roadmaps and transitions. The order doesn’t really matter; what matters is that you are breaking up your editing into manageable bites.


Second, resist the urge to purge

We all want to push a document out of our mind when we finish a first (or fifth) draft—resist the urge! Get in the habit of leaving your writing for a couple days (or whatever you can manage) and coming back to it later. There is simply no other way to get out of the trench bias and see your writing with fresh eyes. Accountability partners are great for this: wrap up a document and send it to a friend, asking them to take a look and send it back to you in a couple days for your next edit. 



Third, use others to get that “fresh-reader” feel.

No checklist can spot everything, though. So find some good writers to be your editing buddies. And I suggest you have them edit for you in a particular way, what I call “one-read” editing. The quality of editors varies, and good chance you won’t agree with many of their recommendations. Not to mention that many an office friendship has been lost over editing quarrels. So instead of asking for substantive or style edits, tell them to put a star next to any (1) word, (2) sentence, or (3) paragraph that they had to read more than once.

This will give you a true snapshot of your document’s readability. With the road bumps identified, you can now use your own writing tools to smooth them over.


Finally, discover your own editing likes.

Great writers all have their own editing tricks, and you might find that some of them work for you, too. Stephen King suggests that you vomit out a first draft without self-editing much, so you can stay focused on the content. Many writers swear by reading drafts out loud and editing their writing in paper form. Some warm up by typing out a few sentences from their favorite authors. A couple studies showed that setting aside time to practice editing helps (either on your own past work or on any writing you can find). Insightful technology tools can help you edit better, too, like Grammarly and Hemingway App.

And I think just about every writer would tell you that it’s essential to find good writing mentors to edit your work so that you can learn from their technique. But most important: just get out there and edit.  

I am an adjunct professor of law at Loyola University School of Law, Chicago and an attorney at the firm of Sidley Austin, LLP. The views I express are solely my own and are not intended to be legal advice. 

October 14, 2017 in Appellate Advocacy, Appellate Practice, Legal Writing | Permalink | Comments (0)