Appellate Advocacy Blog

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

Saturday, December 16, 2017

Find the right answers, then ask the right questions

Question-peoples-questions-md

What they say about cross examining and depositions is also true for legal writing: asking the right questions ensures 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 a solitary exercise. When we read something, we have the luxury of re-framing the questions as we go. We need not ask the questions as the author posed them. And the crucial questions often don’t spring from the page; they are followup questions formed as we chew on ideas.  

Early on as law students, we are briefly taught to frame legal analysis as a questioning process. Indeed, the infamous IRAC writing format 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 a lot of 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 directly ask your reader any 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 on 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 themselves questions that will lead them to a bad answer for your client). 

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 what answers you need. Then you convince the reader to ask the right questions that will get them there. 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 of your case. 

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 in their briefs. 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Saturday, December 9, 2017

Issues, issues everywhere, but not a one makes sense

Lady confused

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

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

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

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

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

Rule-clipart-1268249lmuvxfrina

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

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

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

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

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

Or a more refined rule that you crafted yourself:

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

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

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

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

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

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

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

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

Intent to injure

[Explanation of the intent to injure rule]

Reckless injury

[Explanation of the reckless injury rule]"

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

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

Courts have held a defendant intends to injure . . .

As to reckless injury, courts have held . . .

The defendant intended to injure here because . . .

The defendant was reckless here because . . . "

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

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

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

To recap:

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

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

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

Thursday, December 7, 2017

Thinking Thursdays: Negativity, Empiricism, and Legal Advocacy

Negativity landscape

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

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

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

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

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

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

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

 

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

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.

APL-Bug-Article-201710311515

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?

 

1200px-New_York_Court_of_Appeals_hearing_oral_arguments

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"

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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.

Marshall

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

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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.

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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.

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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. 

 

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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.

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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)

Thursday, October 12, 2017

Thinking Thursdays: The downsides of maintaining a citation fetish

 

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Citation manuals artfully and autumnally displayed (photo by RA Robbins)

With the return of autumn and the Supreme Court to session, appellate tweets and listservs turn to . . . did I really see a conversation about citation? Why do attorneys give so much credibility to a book developed and maintained by student law review editors who in the 16th edition accidentally tried to change the substance of precedential value by announcing that every citation needed a signal? (See this article by Dean Darby Dickerson for a discussion about that weird story).

Professor Susie Salmon wants you to know that “perfect citation” isn’t really a beautiful unicorn, and that questing for it has expensive downsides. Her article, Shedding the Uniform: Beyond a Uniform System of Citation to a More Efficient Fit, published last year in the Marquette Law Review, looks at the history of the citation fetish (her turn of phrase, not mine!), the rise of the Bluebook dominance, and the lack of uniformity that actually exists in the legal world. She adroitly observes that teaching and living by “perfect Bluebooking” leads to frivolous classroom and billable hours that would be better spent on richer analysis and representation. Instead, she argues, rationality should prevail. Citation, as she reminds us, exists for three purposes: a finding tool for cited authority, a signal about the weight and vintage of the authority, and credit for the author of the authority. These goals can be met with any system that provides these things with accuracy, brevity, and clarity.

Professor Salmon’s article takes us on an interesting historical tour of citation, beginning with the Roman Justinian texts, through Middle English books, to that fateful 1926 summer, when a clever Harvard 2L first wrote a handbook for his fellow law review classmates and eventually for elite-school law review editors who signed on. The story turns darker in the country’s bicentennial year when the Bluebook editors openly determined to dominate legal citation form. In 1981, the editors finally agreed to acknowledge a difference between law reviews and practitioner documents, but did very little to develop that part of the book until faced with competition by the University of Chicago’s Maroonbook and a challenge by practitioners and law professor themselves—the ALWD Citation Manual/Guide.

And, the fetish of uniformity is expensive. Law professors who choose to spend hours on citation teaching and assessing are taking away from time they could spend teaching more client-centered advocacy skills. Practicing attorneys who devote hours to perfecting citation are costing their clients hundreds or thousands of dollars that might not be justifiable. And, relying on the traditional notions of citation also increase the monopoly that West holds on legal materials, to the detriment of an open-access system of legal information.

Ultimately, Professor Salmon raises excellent points. Uniform citation does not exist. Those very smart law review students who knew the Bluebook backwards and forwards while they were 2L and 3L students very well may be referring to wrong parts of the book when citing inside practitioner documents. And, they might be using a superseded Bluebook, that is, an out-of-date model. There are twenty editions, after all, each with changes. Finally, the existence of local rules in many jurisdictions pose other problems, particularly when the local rules are not widely known or widely available, and have their own internal quirks. Things aren’t likely to get better, because the Bluebook’s continued existence depends on the planned obsolescence of earlier editions. Instead, Professor Salmon recommends what others before her have suggested: public domain citation, development of better apps and programs to check citation form, and flexibility to allow that many formats will satisfy the principles underlying a good citation system.

 

October 12, 2017 in Appellate Advocacy, Appellate Practice, Law School, Legal Profession, Legal Writing, Moot Court, State Appeals Courts | Permalink | Comments (0)

Thursday, October 5, 2017

A Remedy for Mistakes at Oral Argument

We all hope we never make mistakes at oral argument and likely practice many hours to ensure we've thought of every possible question the court may throw our way. But what happens when a mistake is made, or a question is misunderstood? And this is only realized after the conclusion of the argument?

This recently happened to seasoned attorney (but first time Supreme Court presenter), Richard Griffin, Jr., senior counsel for the National Labor Relations Board, in a trio of consolidated cases regarding the question of whether prohibiting class action suits violate federal labor law. Griffin argued that an employer cannot make as a condition of employment the waiver of this right to bring a class action suit. Chief Justice Roberts asked Griffin a hypothetical, and Griffin, misunderstanding the question, gave an answer that he later regretted. His fellow counsel then later apparently contradicted the position. Here is some of the exchange: 

Roberts: "Let's say the arbitral forum says—the rules of the arbitral forum say you can proceed individually, but you can—and you can proceed collectively, but only if the class represents more than 50 people. Is that alright under your theory?"

Griffin: "That's a rule of the arbitral forum, and the employee takes the rules of the forum as they find them."

Roberts: "So you have a right to act collectively but only if there are 51 or more of you?"

Griffin: "What—no,  your honor. What you have an opportunity to do is to try and utilize the rules that are available in the forum without the employer intervening through a prohibition that's violative of Section 7.”

Justice Anthony Kennedy: "No, the hypothetical—and the chief can protect his own question—the hypothetical is the contract says you have to have 50."

Griffin: Oh, I understood—I'm sorry. I misunderstood."

What followed was Roberts's attempt to clarify the hypothetical and Griffin ultimately agreeing that if the employment agreement says an employee shall arbitrate in a particular arbitral forum that limits collective arbitration to 51 or more persons, that would be OK. When Roberts pressed the same hypothetical on [fellow counsel] Ortiz, the law professor said the employer could not insist on an agreement where the arbitral forum limited collective actions to more than 50 people.

....

Ortiz said there was never a difference of opinion between him and Griffin but just how they understood the question, which even Roberts acknowledged was confusing. "Dick thought the chief was assuming something when he wasn't," Ortiz said. "I assumed when the chief was asking it, he wasn't predisposed in our case."

Ortiz continued, "If you had answered the way Dick did to the way the chief justice was actually asking it, you were basically giving up the right to file collective, joint actions for any number between two and 50. You were saying regardless of what alternative forums existed, the employer could bind the employee to the rules of the forum and they could do the bad work rather than the employment agreement."

Ortiz told Griffin it was not his fault for the confusion. "Dick feels just terrible about this," he said. "His term is up at the end of this month and well, he just feels terrible."

To follow up, Griffin did what others lawyers have done in the past - he sent a letter to the Clerk acknowledging the mistake and seeking to enter the corrected information into the record. Former Clerk of Court, William Suter, said that in the rare cases when this has happened in the past, the letter is forwarded to the justices and placed in the permanent case file, but no transcripts are changed. 

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So while we hope this will never happen to us, there is little guarantee that we will never make mistakes. On the occasion that we do, the recommendation to correct the record is to do exactly this. 

In a footnote in his law review article on oral argument in the Supreme Court, Mayer Brown's Stephen Shapiro said that on "rare occasions," a lawyer might realize after arguments that he or she made an "improvident concession" on a major point. In that situation, he said, counsel should send a "concise letter" to the justices through the clerk, with 10 extra copies, referring to the question and clarifying the response.

"Needless to say, there is no assurance that the justices will honor this kind of retraction," he wrote.

Another example of an attempt to correct the record can be seen in a 2014 case before the Ninth Circuit Court of Appeals. Counsel for the Department of Justice misspoke and sought to ensure the correction of the mistake was brought to the attention of the court. While it can be humbling to point out our mistakes, ethically it is certainly the right thing to do. An intentional misstatement is never ok, but correcting an errant mistake that could hurt the case is still the ethical action to take. It may be humbling, but the effect in the long run is that the principle of candor before the court is strengthened, and too, respect for the justice system grows - an essential factor for a fair and free society. 

October 5, 2017 in Appellate Advocacy | Permalink | Comments (0)

Wednesday, October 4, 2017

Oral argument in Gill v. Whitford: big questions, well-composed answers

In yesterday's oral arguments to the Supreme Court in Gill v. Whitford, the closely watched partisan gerrymandering case, Justice Breyer uncorked a doozy of a question. As he winds up, he promises to take "exactly 30 seconds." Then he, like, does not.

The question spans three pages and 57 lines in the transcript. According to Josh Blackman, who tracks the length and volume of Justice Breyer's questions so you don't have to, this appears to have shattered the justice's previous record, which I naively thought was the Article III equivalent of Joe Dimaggio's hitting streak

Here's the whole thing. Start scrolling:

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(Hat tip: Josh Blackman & Adam Feldman)

Like a lot of Breyer's long questions, this one had a pretty simple, IRAC-y structure and goal. First, he identifies a sticking point around which the Court would have to work to rule for one party or the other. Here, that's whether there are judicially manageable standards for evaluating claims of that partisan redistricting violates the Constitution. Second, he spins out his ideas about a solution (or, in other cases, his ideas about why the sticking point means the Court might be stuck). Here, that's his multi-step control > asymmetry > persistence > outlier > justification approach. And third, he asks the question. It's usually a 50+ word version of "so what do you think?"

I was impressed with the choices made by Wisconsin Solicitor General Misha Tseytlin -- an outstanding advocate -- in his answer. The question marked a shift in the direction of the argument from a conversation about one potential justiciability obstacle (standing) to another (political question). After the inevitable (laughter) that accompanies almost every Breyer mega-question, Tseytlin signaled, quite succinctly, to which of Justice Breyer's cues he would respond and how he had already touched on another earlier in the argument. And then he deliver a sharply composed, concrete multi-part answer: 

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He's then interrupted by Justice Kagan, who asks a question that's Breyerian in scope but relatively pointed:

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Tseytlin delivers another well-composed response, using the Rule of Three rhetorical device:

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I'm looking forward to hearing the audio later this week.

October 4, 2017 in Appellate Advocacy, Oral Argument, United States Supreme Court | Permalink | Comments (0)

Sunday, October 1, 2017

Hello Judge, it's me, Lawyer

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Having clerked at the Ninth Circuit and taught appellate and other legal writing for years now, I'm a big fan of the Appellate Advocacy Blog. I'm now delighted to join this outstanding group as a new contributor. In my posts, I plan to focus on my favorite thing: writing. And what better way to start than by talking about the beating heart of any brief. Something that is often neglected by appellate lawyers, and outright excised by trial ones. The introduction.

This is the lynchpin of everything you write as a lawyer. I would wager that whether you win or lose an appeal, or a motion, can more often than not be traced back to your introductions. Let me first convince you that you should be spending way more time on this section of your documents. Then I have some ideas about how to write good ones. 

First off, introductions signal to a judge something profound: that the lawyer can help the judge write a better opinion. When you think about it, briefs are just cheat-sheets for a judge to use when writing their own documents. Supreme court and circuit opinions are chock full of phrases and concepts stolen from good lawyers. If you don’t convince the judge that your brief is worth stealing from, chances are they won’t give it a second glance. After all, they have an opinion to write. Lawyers often forget that there is no rule requiring judges to use briefs, or even finish reading them. You must convince the judge that you’re worth paying attention to. 

Another way to think about introductions is to see your brief for what it is: a conversation with a judge. It’s a bit odd because your side of the conversation is prerecorded. But make no mistake, it’s a conversation. Your judge is responding to every word in your document.  They’re asking questions. They’re arguing back. They’re criticizing. Hopefully, they’re agreeing.

If we take what we know about good conversations and apply it to writing, the importance of introductions becomes obvious. For starters, first impressions are everything when we meet a stranger. They shape how we perceive the speaker, how we gauge their credibility, their intelligence, their trustworthiness, and, ultimately, their competence.

For another, our ability to follow a conversation usually depends on how well the speaker frames the topic and organizes their thoughts at a high level. If the speaker launches into the details without giving some context, the listener is quickly lost.

And think about how quickly you tune out someone who drones on and on in a conversation without ever getting to the point. Same here. Many busy judges are skimming readers, which means that they might not read much past the introduction. Particularly if you bore or confuse them.

Cognitive science also has a lot to say about introductions. This science sheds light on how readers process the things they read. And it leaves no doubt that your introduction is crucial. Take the concept of priming. Readers are more likely to believe a point that they were well primed for earlier in a document (such as in the introduction). Or take the concept of chaining, which tells us that the way you organize and present your points influences whether your reader will believe you. The self-consistency and self-observation principles suggest that if you sell your judge in the introduction, they will subconsciously see everything that comes after in a better light. And the concept of fluency suggests that the readability of your introduction plays a role in whether your reader’s more skeptical modes of thinking are triggered—or whether, instead, your reader will be persuaded. Each of these cognitive science principles agree: good introductions are a key component of good legal writing.

And perhaps most important, a good introduction forces you to distill your understanding of complex issues into simple prose. After all, until you can explain the key points of your document in a short, clean introduction, you don’t understand them as deeply as you need to. Put in the work to write a phenomenal introduction and you might actually say something clear enough to stick in a judge’s mind.

Hopefully I’ve convinced you introductions are important. Now let’s talk about some concrete ways to put these principles into practice.

  • Make your reader like you. Dozens of studies across disciplines agree that if your reader likes you, you are much more likely to persuade them. There are a few simple tactics here. Make yourself credible by conceding small issues. And when a legal or factual question is a tough one, say so. Your judge will already be struggling, so you might as well be sympathetic. Thinking through simple ways to help your reader is also great--such as using clear roadmaps and summaries. Another fantastic trick is to directly dialogue with your reader (Justice Kagan does this all the time). Use an occasional hypothetical or “you” language to create a personal connection. Finally, use some common-sense social skills. For example, no one likes people who are overly dramatic. No one likes a tattle-tale who complains about trifling things (like the other side making some clerical mistake). No one likes a complainer who turns small problems into big ones. Just remember: if you say something in a document that would be annoying in the outside world--writing it down makes you no less annoying.
  • Show off. The introduction is also your chance to show your reader that you are an elite lawyer who has the chops to help the judge write a better opinion. To create that image, your writing style must be impeccable. Typos are not an option: if your introduction’s sloppy, your reader will assume the rest of your document is too. Beyond that, this is the time to show off your writing skill. Analyze every word, every sentence, every way that you can arrange the syntax--in other words, every possible writing choice you have. Science tells us that, aside from the content, legal readers are influenced by the quality of a lawyer’s writing style.
  • Tantalize. No one wants to read boring writing. Making your writing easy to read is great, making it interesting is a whole other level. Use concrete examples, a couple saucy facts, pithy phrasing, and all the wordsmithing you can muster to make your introduction fun to read. This will increase your chances of getting a reader to forge on to the body.
  • Think about the stories your reader knows. We humans love stories. Everything we see, hear, or read we turn into a story. And that counts for legal writing, too. You can use this psychological insight to improve your introductions. Think about your case and the document you are writing, and imagine how it will fit in with the stories your reader is likely to know. If your motion advocates for an exception to the battery rule, incorporate the exception into an existing narrative about the battery rules your reader knows: “Battery normally requires that a defendant actually touch the plaintiff, but if the defendant causes something else to contact the victim, that counts, too, because the plaintiff suffers the same harm and the defendant is just as blameworthy.” Explain the familiar story and then explain how your part fits into the narrative.  
  • Emphasize what you add to the story. Keeping this narrative point in mind, don’t dwell on the mundane stories your reader already knows. Blandly reciting the basic elements of battery in your intro isn’t helpful. Emphasize what is tough or interesting about your case and the law you advocate for. In other words, focus on what you add to the story. Frankly, this goes for the body of your legal documents as well; spending a lot of time on dry, undisputable black-letter law isn’t helpful. Keep your eye trained on the prize: persuading your reader of the nuances that matter in your case.
  • Embrace the bad. Embrace the bad facts and bad law and put them into context. So many advocates run from the hard parts of their case, preferring to discuss (at length) the facts and law that support them. But this is the worst possible strategy. Your judge is going to sit down and write an opinion. Either tell them how to deal with the bad stuff so that they can write an opinion with you on the winning end--or ignore it and leave them to their imagination.
  • Roadmap smartly. We often hear the advice that you should roadmap your arguments. And it’s good advice. But roadmapping isn’t just about giving your reader a laundry list of every possible thing you will discuss in your document; it’s also about giving them a sense of what matters. So if there are a couple issues that are sure throw-aways, tell your reader. Then tell them about the issues that matter and how those important issues fit with eachother: “Personal jurisdiction is not meaningfully disputed here, but subject matter jurisdiction is—and there is none. But even if there is subject matter jurisdiction, the contact element of the battery claim is not adequately pleaded so the complaint must be dismissed anyway.”
  • Include the entire elevator pitch. Sometimes lawyers don't include their best stuff in their introductions, preferring to hold back some for the body. Maybe they want to tease the judge with some juicy details without putting all the pieces together yet. This is a horrible strategy. Judges, like most readers these days, are busy. Let's be honest, sometimes they can't do much more than skim. If you don't make your key points in your introduction, you may never get the chance. Even if your judge makes it through the details, when they return to your brief to write their opinion or for an oral argument, it's even more likely they won't make it past the intro. So make your introduction a full elevator pitch for your document: all the key law and key facts you need to win. And if you manage to actually persuade your judge on some points at the outset, cognitive science tells us that it will be much harder for them to change their mind later when they get into the weeds. 

I am delighted to be selected as a contributor for the Appellate Advocacy Blog. If you have questions or comments (or just want to chat about writing), please email me at: jregalia2@gmail.com. You can also visit my website at www.writinglikealawyer.com 

October 1, 2017 in Appellate Advocacy, Appellate Practice, Law School, Legal Profession, Legal Writing | Permalink | Comments (0)

Thursday, September 28, 2017

Thinking Thursday: What's the (rhetorical) sitch?

Cartoon feminist-heroine, Kim Possible, knew that understanding the rhetorical situation was key to her work of saving the world. Likewise, it's incumbent upon appellate attorneys to contemplate the process of what it is we do as legal advocates—and why we do it. Understanding the nature of rhetorical situations involved in appellate advocacy make us better lawyers. 

As a problem-solver of already existing issues, Kim Possible is channeling Lloyd Bitzer, a rhetorician who wrote a short but germinal essay, The Rhetorical Situation. In that article, Professor Bitzer defined rhetorical discourse as an attempt to problem-solve through communication that has been tailored to the specific circumstances and multiple audiences who can work towards the response. Bitzer’s idea was challenged by Professor Richard E. Vatz, in his article, The Myth of the Rhetorical Situation, with the argument that the situation can be created and defined by the communication rather than vice versa. He takes the position that the writer or speaker’s selection of facts and arguments from the panoply of available material constructs the shape of the situation as perceived by the audience. That is, the speaker/writer has some control about what is or isn’t salient to the audience.

In the world of appellate advocacy, both Bitzer’s and Vatz’s ideas ring true and both are worth considering. The circumstances that form the requirement of our legal communication do exert the type of control on the legal writer’s choices that Bitzer imagines. An appeal is an exigency, and the appellate legal writer’s messaging must take into account the needs of the audience, the constraints of the controlling law, and consideration whether it is the appropriate timing for any policy arguments (i.e. whether this is an opportune moment for that type of argument). At the same time, the decision to take a specific course in a legal matter helps create and shape what will be pertinent. There is no exigency of an appellate brief, for example, until a party files a notice of appeal outlining the issues raised.

What’s the takeaway? Both Bitzer and Vatz have something to teach appellate lawyers. The two articles are easy reads at fifteen pages and eight pages respectively. While it is important to study persuasive techniques to use in an appellate brief—techniques that appeal to the multiple audiences and that suggest a response, lawyers should also remember that the context and form of the rhetorical situation is also at least somewhat in the control of the appellate lawyers.

In the meantime, I am delighted to have been selected to join this group of bloggers. Please: call me, tweet me, if you want to reach me. -Ruth Anne Robbins

September 28, 2017 in Appellate Advocacy, Legal Writing, Rhetoric | Permalink | Comments (0)

Wednesday, September 20, 2017

Oral Argument: Lisa Blatt & the Power of Knowing Your Client's Business

I'm thrilled to join the team at the Appellate Advocacy Blog. I am, literally, a professor of appellate advocacy; I teach and direct the Ilana Diamond Rovner Program in Appellate Advocacy at IIT Chicago-Kent College of Law. I will post about oral argument, psychology and persuasion, snappy legal writing, and other things that fascinate me about appellate courts and the stuff lawyers do to move them.

In an especially excellent episode of the always-great First Mondays podcast, Dan Epps and Ian Samuel interview Lisa Blatt of Arnold & Porter Kaye Scholer (the interview begins at about the 33:30 mark). The interview is full of useful insights about appellate advocacy, particularly oral argument preparation. And it helped me wrap my mind around Blatt's 33-2 record in argued SCOTUS cases; she is brilliant and self-aware, and she has crafted an advocacy style and preparation process that play to her strengths.

 The coolest exchange in the interview is about a snippet in the Supreme Court's Guide for Counsel (pdf):

Know your client's business.... For an excellent example of a counsel who was intimately familiar with her client’s business, see the transcript of argument [pdf link] in United States v. Flores-Montano, 541 U. S. 149 (2004). The case dealt with the searching of vehicle gas tanks by customs agents at an international border. Government counsel had a total grasp of why and how the agents conducted the searches and provided convincing explanations to all questions posed by the Court.

The Guide nails it. In the interview, Blatt details how and why she acquired such expertise: she traveled to a U.S. Customs facility in Virginia to immerse herself in the nitty-gritty of border searches; she worked with agents as they took a gas tank apart; she learned reams of out-of-record information touching on the issues of drug trafficking and border searches; she does this to develop deep empathy with—and to better channel—her client. It's a great story.

And speaking of story: Blatt's command of the information lets her tell a full and convincing story to the Court. As the audio recording of the Flores-Montano oral argument makes clear, her well-packaged explanations of gas-tank searches and border crossings and "wonderful pieces of equipment" that let officers probe upholstery without leaving a mark do more than establish her credibility as a Knower of Many Obscure Things. They help vividly tell the legal story that matters in the case. The issue, after all, was whether customs officers must have reasonable suspicion to remove, disassemble, and search a vehicle's gas tank for contraband. In the all-things-considered Fourth Amendment stew, the details matter. The details linked to law persuade (and one detail made it into Justice Breyer's concurring opinion). And the whole package makes for a nifty object lesson in world-class advocacy. Listen if you can.

September 20, 2017 in Appellate Advocacy, Oral Argument | Permalink | Comments (0)

Monday, August 7, 2017

Making a Murderer Dassey Case Headed to En Banc 7th Circuit

Somehow I missed this news last week, but the Seventh Circuit has announced that it will rehear, en banc, the case Dassey v. Dittman.  If you watched the Netflix documentary "Making a Murder," you were probably shocked by Brendan Dassey's conviction, which certainly appeared coerced.  

A split panel of the Seventh Circuit had upheld the district court's decision overturning Dassey's conviction.  Now the whole Seventh Circuit will have a chance to opine.  Eugene Volokh's post has some statistical information about the Seventh Circuit, including the number of judges appointed by Republican and Democratic presidents and the gender make-up of the court. Based on the actions of the panel, Prof. Volokh doesn't think that the typical stereotypes apply to this case. This is certainly a case that will attract significant media attention, so it will be interesting to see how it comes out on appeal.

August 7, 2017 in Appellate Advocacy, Current Affairs, Federal Appeals Courts, Film | Permalink | Comments (0)

Monday, July 10, 2017

The Chief's Advice to Young Graduates

Chief Justice John Roberts made headlines last week.  It wasn’t a hot-button 5-4 opinion at the end of the SCOTUS term that caught the media’s attention this year.  But, it was a piece of writing that the Washington Post called “[t]he best thing Chief Justice Roberts wrote this term.”  So, what was it?  Well, it was a graduation speech delivered to the graduating class at Cardigan Mountain School, where the Chief’s son Jack was graduating ninth grade.

It is hard to believe that the Chief’s son is graduating ninth grade.  I remember seeing him “dance” at the press conference in July 2005, when President Bush announced John Roberts’ nomination to the SCOTUS.  You can watch the video here.  Apparently, young Jack was impersonating Spiderman.

What makes this speech so great? It is certainly funny (see this line:  “You’ve been at a school with just boys. Most of you will be going to a school with girls. I have no advice for you.”). But that is not what makes the speech stand out.  What makes the speech so unique, and what has drawn attention, is the section of the speech where Chief Justice Roberts tells the students that he hopes that they will be “treated unfairly” and have “bad luck.” He says:

Now the commencement speakers will typically also wish you good luck and extend good wishes to you. I will not do that, and I’ll tell you why. From time to time in the years to come, I hope you will be treated unfairly, so that you will come to know the value of justice. I hope that you will suffer betrayal because that will teach you the importance of loyalty. Sorry to say, but I hope you will be lonely from time to time so that you don’t take friends for granted. I wish you bad luck, again, from time to time so that you will be conscious of the role of chance in life and understand that your success is not completely deserved and that the failure of others is not completely deserved either. And when you lose, as you will from time to time, I hope every now and then, your opponent will gloat over your failure. It is a way for you to understand the importance of sportsmanship. I hope you’ll be ignored so you know the importance of listening to others, and I hope you will have just enough pain to learn compassion. Whether I wish these things or not, they’re going to happen. And whether you benefit from them or not will depend upon your ability to see the message in your misfortunes.

Chief Justice Roberts does offer the students some advice that I think relates to appellate advocacy.  He reminds the students that, although they are “privileged,” they should not act like it.  Rather, when they get to their new schools, they should “walk up and introduce [themselves] to the person who is raking the leaves, shoveling the snow or emptying the trash. Learn their name and call them by their name during your time at the school.” He also told them to smile and say “hello” to people that they do not recognize when taking walks.  He said, “[t]he worst thing that will happen is that you will become known as the young man who smiles and says hello, and that is not a bad thing to start with.”

This exhortation to treat others with kindness is a lesson that many attorneys could stand to learn.  When I was clerking, there was a story told around the courthouse about some attorneys looking for a courtroom.  One of the judges, who was not in his robe, stopped to help them.  But, when he told them that he only knew the courtrooms by carpet color (which is how all the judges, clerks, and court staff referred to the courtrooms) and not number, the attorneys were quite rude to him.  He wasn’t on their panel, but I do believe that he spoke to the judges who were.  A little kindness to the clerk’s office, the marshals, the janitorial staff, and the unknown person offering help, goes a long way!

The Chief offers some other great advice, so I encourage you to read his full remarks here.

July 10, 2017 in Appellate Advocacy, Oral Argument, Rhetoric, United States Supreme Court | Permalink | Comments (0)

Monday, June 26, 2017

Lexis Acquires Ravel Law

Earlier this month, LexisNexis announced that is has acquired Ravel Law. My guess is that many of our readers have not heard of Ravel Law.  According to their website:

Ravel is analytical research, a new category of intelligent tool that combines legal research and analytics. Powered by expert legal knowledge, machine learning, and comprehensive caselaw from the Harvard Law Library, Ravel is built by digital natives for 21st Century practice.

Ravel enables lawyers to find what's important, understand why it's important, and put that information to use in the most persuasive way possible. In short, we turn legal information into legal insights.

Ravel's intuitive array of data-driven tools are built from the ground up for the hardest questions, transforming how lawyers understand the law and prepare for litigation.

I first heard of Ravel a year or so ago.  I was particularly impressed by their Judge Analytics.  They market the product as helping you "[u]nderstand how judges think, write, and rule." I think that description is spot-on.  Judge Analytics allows you to find "cases, circuits, and judges your judge finds most persuasive" and "rules and specific language your judge favors and commonly cites."  For appellate advocates appearing before an unfamiliar court, this is an incredibly important research tool.  It is also useful for students applying for clerk-ships.  It collects all of your judge research in one place. 

I don't have a lot to say about Ravel's other features.  I, personally, did not find Ravel's case research to be as useful, but that might be because I did not spend enough time reviewing it.  The connections and graphs were a little too much for me.  I suspect, however, that millennials might really like that feature.

Unfortunately, integrating Ravel into Lexis is going to take some time.  When I called Lexis Advance to ask about the time frame, I was told that the integration would be complete in the first quarter of 2018.  Congratulations to Lexis and Ravel--I suspect that this will be a great deal for both organizations.

June 26, 2017 in Appellate Advocacy, Appellate Practice, Legal Writing | Permalink | Comments (0)

Monday, March 20, 2017

To "Um" or Not--A Discussion of Disfluencies for Lawyers, Professors, and Students

As a moot court coach, I teach my students to not use disfluencies like "um" or "uh" in their oral arguments. According to Prof. Barbara Gotthelf's article, A Lawyer's Guide to Um, my dislike of these disfluencies is not unique, but it might be wrong.  After hearing a moot court judge critique an advocate for her use of "uh" and "um," Prof. Gotthelf "began consulting books on public speaking, including texts written specifically for lawyers, and they all gave the impression that using uh and um might be the single worst thing any speaker could do." Having previously heard from a psycholinguist that "using uh and um was not only 'perfectly normal,' but also helpful in furthering effective communication," Prof. Gotthelf dug even further into the literature and found "a body of scientific literature that supports Dr. Shriberg’s views and demonstrates that, contrary to public perception, uh and um are not only inevitable, but actually useful bits of communication."

Prof. Gotthelf's response to the "um fixation" is expressed in the article, which was published by Legal Communication & Rhetoric: JALWD and is available here.  I haven't had a chance to review it in depth, but I look forward to doing so soon (at least in advance of the below event).

In addition to publishing the article, Legal Communication & Rhetoric: JALWD is holding a live Facebook discussion of the article.  Below is the announcement that I received regarding the event.  I am sure that it will be, uh, a great discussion.

Gearing up for spring oral argument competitions? Join Legal Communication & Rhetoric: JALWD for a live Facebook chat-based discussion of Professor Barbara Gotthelf’s article, The Lawyer’s Guide to Um. This article about disfluencies like “um” and “uh” should be of particular interest to moot court advisors, practitioners, law students, and anyone who teaches oral argument. Should verbal fillers be vilified? Read the article and come weigh in!

The chat will take place on Thursday, April 6 at 3pm Eastern. Professor Jennifer Romig of Emery University School of Law will moderate. To participate in the discussion, join the LC&R Discussion Group here: https://www.facebook.com/groups/304595676586667/. You may join at any time in advance of the chat. When you join, you can check out the archives of our previous discussions.

 Professor Gotthelf’s article can be found here on the Journal’s website: http://www.alwd.org/wp-content/uploads/2014/09/01-Gotthelf_Web.pdf

The Group invites participation by lawyers, law professors, professors from communications and other fields, legal professionals, law students, and anyone with an interest in law and legal communication. It is a forum for the free exchange of ideas with civility and mutual respect.

 

March 20, 2017 in Appellate Advocacy, Appellate Practice, Moot Court, Oral Argument | Permalink | Comments (0)

Friday, December 9, 2016

Appellate Advocacy Blog Weekly Roundup December 9 2016

WeeklyRoundupGraphic

As  we do every Friday, the Appellate Advocacy Blog presents a few tidbits of news and Twitter posts from the past week concerning appellate advocacy. As always, if you see something during the week that you think we should be sure to include, feel free to send Dan a quick email atDReal@Creighton.edu or a message on Twitter (@Daniel_L_Real).

Ruling in Samsung v. Apple

On Tuesday, a unanimous Supreme Court ruled in favor of Samsung in Samsung v. Applethe patent infringement suit brought by Apple, sending the case back to the Federal Circuit for further consideration.  In the case, Apple alleged that Samsung infringed on patents covering specific design elements of Apple's iPhone, including the rectangular front face with rounded corners and colorful grid of icons. Federal law provides that companies found to have infringed design patents on an "article of manufacture" are liable for their total profits. The lower court had awarded Apple $399 million in damages for Samsung's design patent infringement.  In the Supreme Court opinion, Justice Sotomayor wrote that the operative phrase in the statute, "article of manufacture," could sometimes be the entire product (the phone) and sometimes be the components found to have infringed the design patent. The Supreme Court opinion held that the Federal Circuit erred in ruling that the "article of manufacture" must always be the end product (the phone), but did not resolve whether the article of manufacture in the case was the whole phone or parts of it. 

Coverage:

New York Times

Reuters

SCOTUSBlog

Ruling in Salman v. United States

On Tuesday, the Supreme Court unanimously ruled in Salman v. United States, a significant insider trading case that raised the question of whether gifts of confidential information from business insiders to family members without direct financial benefit violate securities law. The Court ruled in favor of prosecutors, ruling that gifts to friends or relatives, whether in the form of cash or a tip of information, sufficiently "benefit" the insider to be considered a violation of securities law.

Coverage:

New York Times

Fortune

Bloomberg

SCOTUSBlog

 

Takeaways from 2016 SCOTUS Oral Arguments So Far:

Adam Feldman writes on the Empirical SCOTUS blog about "Four Takeaways From this Term's 2016 SCOTUS Oral Arguments" so far. There is a wealth of great information about the Justices' interactions with one another and with advocates during the first 1/3 of this term's oral arguments, including which Justices tend to speak the most (or the least), the issues that interest the Justices the most, and the tendencies of some of the best and most frequent advocates to appear before the Court.

Highlights from Appellate Twitter:  #PracticeTuesday

On Tuesdays the brilliant tweeters of #AppellateTwitter post a variety of useful tips, strategies, guidelines, advice, etc.  Here are a few of the highlights from this week, where the topic was mythbusting -- conventional wisdom with which experienced appellate practitioners disagree:

  • Sean Marotta (@smmarotta) argued against the myth that a law student should take "any" clerkship, regardless of location, judge, etc.  He argued that young graduates should definitely consider costs to family, significant others, and other factors when deciding whether a clerkship is really the right opportunity to pursue.
  • Rachel Gurvich (@RachelGurvich) argued against one of my personal favorite myths, that being on Law Review is some kind of prerequisite to a successful legal career. I always tell students that law review is not for everyone and is not a magic bullet -- the key is to find something that catches a potential employer's eye and once you get your foot in the door, you can explain why you didn't go the law review route.
  • Bryan Gividen (@BryanGivi) argued against the myth that a young associate should never so no to an assignment -- because if you don't learn how to say no to assignments that you cannot perform well, you are sure to start alienating colleagues and clients with poor work product.
  • Jennifer Romig (@JenniferMRomig) argued against one that is dear to my heart, as an educator -- the myth that law school conclusively reveals whether someone will be a good lawyer.  I've known many students who were "average" or even below in performance in law school, but went on to be fine and highly successful members of the legal community -- even some who took a couple of tries to pass the bar exam. I've known students who excelled in classes, but not so much in the real world. There's just more to it than that.
  • Finally, Supreme Court Places (@SCOTUSPlaces) called for the debunking of a myth that is near and dear to the hearts of anyone who has ever clerked for an appellate court -- "There must be a case for that simple, seemingly incontrovertable proposition."  It's amazing how often you think that but research seems to come up empty!

December 9, 2016 in Appellate Advocacy, Appellate Practice, Current Affairs, Federal Appeals Courts, United States Supreme Court | Permalink | Comments (0)