Wednesday, October 18, 2017
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.
Saturday, October 14, 2017
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.
Thursday, October 12, 2017
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.
Thursday, October 5, 2017
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.
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.
Wednesday, October 4, 2017
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:
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:
He's then interrupted by Justice Kagan, who asks a question that's Breyerian in scope but relatively pointed:
Tseytlin delivers another well-composed response, using the Rule of Three rhetorical device:
I'm looking forward to hearing the audio later this week.
Sunday, October 1, 2017
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: email@example.com. You can also visit my website at www.writinglikealawyer.com
Thursday, September 28, 2017
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
Wednesday, September 20, 2017
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.
Monday, August 7, 2017
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.
Monday, July 10, 2017
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.
Monday, June 26, 2017
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.
Monday, March 20, 2017
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.
Friday, December 9, 2016
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. Apple, the 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.
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.
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!
Thursday, December 8, 2016
January 18, 2017. That's the day the rock band, The Slants, gets to make its case on trademark to the United States Supreme Court.
The band has been battling the U.S. Patent and Trademark Office since 2006 in its quest to trademark the name of the band. The USPTO has refused to grant the trademark on the grounds that "slant" is a racist slur.
"For us, this case has always been about civil rights." The trademark office rejected the band's trademark application, citing a section of the Lanham Act that prohibits registration of trademarks that may disparage "persons, living or dead, institutions, beliefs or national symbols, or bring them into contempt or disrepute." The Slants claim the provision violated the First Amendment. After losing before a three-judge panel of the U.S. Court of Appeals for the Federal Circuit, the en banc court in December 2015 sided with The Slants and struck down the ban on disparaging marks as an unconstitutional regulation of speech.
The Slants seek to protect its First Amendment rights, but underlying the case is the idea of reclamation. Words that have been historically used to disparage minorities are sometimes, and to some degree, reclaimed by those groups as a sign of empowerment. Simon Tam, the band's leader is the named party in the suit, makes the following point in reclaiming, or reappropriating, insulting words:
Tam's brief in the case Lee v. Tam defends the name as part of "the long tradition of 'reappropriation,'" whereby minority groups reclaim insulting words and turn them into "badges of pride." Words like "queer" and "nigger" have been transformed in that way, to varying degrees.
"The Slants' fans are not racists eager to denigrate Asian-Americans," the brief states. "Only an uninformed philistine could find the band's name disparaging."
The Slants' members are all Asian-American and assert that it is their right to use this word as representative of their freedom of expression and celebration of their heritage. They've also written an open letter to the USTPO contesting its decision here.
There's no room/ For your backward feelings/ And your backyard dealings/ We're never gonna settle/ We're never gonna settle.... So sorry if you take offense/ But silence will not make amends/ The system's all wrong/ And it won't be long/ Before the kids are singing our song.
The song is titled "From the Heart."
Monday, November 14, 2016
Last week I blogged on the impact of the 2016 presidential election on the U.S. Supreme Court. On Friday, once the results were in, Dan linked to several articles discussing the results. Today I want to focus on the impact of the election on the state supreme courts by looking at the 2016 state supreme court elections:
Alabama: In Alabama, Michael F. "Mike" Bolin (Republican), Tom Parker (Republican), and Kelli Wise (Republican) won reelection as an Associate Justice on the state supreme court.
Arizona: State Supreme Court Justice Ann A. Scott Timmer won retention election. She was appointed by a Republican governor.
Arkansas: Arkansans elected two Supreme Court Justices in the March 2016 primary. John "Dan" Kemp, a circuit court judge, defeated Associate Justice Courtney Goodson for the chief justice seat. Circuit Court Judge Shawn Womack defeated Clark Mason, a Little Rock attorney, in the other state supreme court election.
Colorado: William W. Hood won a retention election to continue service on the Colorado Supreme Court. He was appointed by a Democratic governor.
Florida: Chief Justice Jorge Labarga, Justice Charles Canady, and Justice Ricky Polston all won retention election. All three were appointed by a then-Republican governor (Charlie Crist).
Georgia: David Nahmias won a retention election to hold his seat on the Georgia Supreme Court in May of this year. Additionally, on November 9, Republican Governor Nathan Deal appointed three justices to the states supreme court—Solicitor General Britt Grant and Court of Appeals Judges Michael Boggs and Nels Peterson.
Idaho: Attorney Robyn Brody defeated Republican State Senator Curt McKenzie for a seat on the Idaho Supreme Court.
Iowa: Chief Justice Mark Cady and Associate Justices Daryl Hecht and Brent Appel won retention election. Chief Justice Cady was appointed by a Republican governor and Justices Hecht and Appel were appointed by a Democratic governor.
Kansas: Chief Justice Lawton Nuss and Justices Marla Luckert, Carol Beier, Daniel Biles, and Caleb Stegall were all retained.
Kentucky: State Appeals Court Judge Larry VanMeter, a registered Republican, defeated another state appellate judge, Glenn Acree, a registered Democrat.
Louisiana: Incumbent Marcus Clark (Republican) won an unopposed election for the Fourth District seat on the state supreme court. Additionally, Republican James Genovese defeated Republican Marilyn Castle for the Third District seat.
Michigan: Incumbent Republicans David Viviano and Joan Larsen survived election challenges to remain on the state supreme court.
Minnesota: Incumbent Natalie Hudson beat attorney Michelle L. MacDonald for a seat on the Minnesota Supreme Court. Justice Hudson was appointed by a Democratic governor.
Mississippi: Three incumbents won reelection to the Mississippi Supreme Court. Incumbent Jim Kitchens beat State Appellate Court Judge Kenneth Griffis. Incumbent Dawn Beam beat Michael Shareef. Incumbent James D. Maxwell won an unopposed election. Additionally, Robert P. Chamberlin won a four-way race for the state supreme court.
Montana: In June, Chief Justice Mike McGrath and Justice Jim Shea both ran unopposed for their seats, which was treated per Montana law as a retention election. Shea had been appointed by a Democratic governor. Additionally, on November 8, Kristen Juras beat Dirk M. Sandefur for the vacancy caused by Justice Patricia O’Brien Cotter’s retirement.
Nebraska: Chief Justice Michael Heavican and Justices John Wright and William Cassel all were retained. Chief Justice Heavican and Justice Cassel were appointed by Republican governors, while Justice Wright was appointed by a Democratic governor.
Nevada: Justices James Hardesty and Ron Parraguirre were both retained on the state supreme court.
New Mexico: Justice Barbara J. Vigil, a Democrat, was retained to the state supreme court and Republican incumbent Judith Nakamura, a recent appointee, defeated Democrat Michael Vigil.
North Carolina: Incumbent Justice Bob Edmunds, a Republican, lost to Mike Morgan, a Democrat, in North Carolina’s nonpartisan supreme court election. This gives Democrats a majority on the state supreme court, but the state legislature is allegedly considering expanding the size of the court.
North Dakota: Justice Lisa Fair McEvers, an incumbent, ran unopposed for her seat on the state supreme court. Jerod Tufte defeated Robert V. Bolinske, Sr., to replace Justice Dale Sandstrom on the state supreme court.
Ohio: Republican Justice Maureen O’Connor won an unopposed election for the chief justice seat. Republican Pat DeWine defeated Democrat Cynthia Rice for a seat on the Supreme Court. Republican Pat Fischer holds a narrow lead over Democrat John O’Donnell in the other supreme court race.
Oklahoma: Justices James R. Winchester and Douglas L. Combs were both retained to the state supreme court.
Oregon: Justice Lynn Nakamoto won an unopposed election to remain on the state supreme court. In May, Justices Rives Kistler and Jack Landau also won unopposed elections.
Tennessee: Three state supreme court justices were retained in August—Justices Holly Kirby, Jeff Bivins, and Roger A. Page. All three were appointed by a Republican governor.
Texas: Texas has two high courts—the state supreme court and the Court of Criminal Appeals. For the state supreme court, the three Republican incumbents—Debra Lehrmann, Paul Green, and Eva Guzman—defeated their Democratic challengers Mike Westergren, Dori Contreras Garza, and Savannah Robinson. On the Court of Criminal Appeals Democrat incumbent Larry Meyers was defeated by Republican Mary Lou Keel. Incumbent Republican Michael Keasler defeated Democrat Robert Burns. For the open seat, Republican Scott Walker defeated Democrat Betsy Johnson.
Washington: Incumbents Mary Yu, Barbara Madsen, and Charlie Wiggins defeated challengers David DeWolf, Greg Zempel, and Dave Larson to remai on the state supreme court.
West Virginia: In May, incumbent Republican Brent Benjamin faced a five-way race for his seat involving two Republicans and three Democrats. He lost to Republican Beth Walker.
Wisconsin: In April, incumbent Rebecca Bradley defeated JoAnne Kloppenburg to remain on the state supreme court.
Wyoming: Justices Kate M. Fox, William U. Hill, and Keith G. Kautz, all appointed by Republican governors, were retained.
Friday, November 11, 2016
Here are a handful of tidbits on appellate practice from around the web this past week. 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).
Presidential Election and the Courts:
The Presidential election dominated news this week, in blogs, online news sites, and Twitter. As a result, the biggest discussion point this week regarding appellate practice was the variety of thoughts about how Donald Trump's election will impact the courts -- the Supreme Court and other federal courts.
Here at the Appellate Advocacy Blog, Tessa posted on the topic in a post on Monday: The Election and the Courts. But that discussion ramped up even more starting midweek, after the election and Donald Trump's victory. Discussions of how the Supreme Court is likely to change under a Trump presidency made headlines at The Economist, Bloomberg, the New York Times, NPR, and other sites. A list of the potential candidates from which Trump might pick a replacement for Justice Scalia (and other potential vacancies) is on the Trump/Pence website. The National Law Journal expanded the discussion to remind us of the 52 nominees for open federal court seats already put forth by President Obama but not acted on.
Appellate Judges Education Institute:
The 2016 Appellate Judges Education Institute Summit begins today in Philadelphia. The annual summit provides a variety of educational opportunities specifically designed for appellate judges, lawyers, and staff attorneys. When I worked for the Nebraska Court of Appeals, I was fortunate enough to attend the summit one year, and it is without a doubt one of the best appellate-specific educational opportunities there is.
If you are an appellate practice person -- lawyer, judge, casual fan -- you are likely already aware of the Twitter hashtag #AppellateTwitter. It's continuing to grow, and is a source of some really great Twitter users, posts, and practice tips and discussion. Jason Steed (@5thCircAppeals) recently indicated an interest in creating some #AppellateTwitter swag -- starting with coffee mugs. And he's following through on it. He posted on Twitter this week how you can order your own #AppellateTwitter coffee mug, paying through Paypal. Sign me up.
Friday, October 28, 2016
Here are a handful of tidbits on appellate practice from around the web this past week. 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).
Continuing Impacts of the Supreme Court Vacancy
This week, Lyle Denniston (@lylden) took a look at three Supreme Court cases that were accepted right before Justice Scalia's death, but haven't received an oral argument date yet. Denniston noted that the cases have intentionally been bypassed as hearings have been scheduled, and argued that the most likely reason for the intentional bypassing of these three cases – which have been waiting the longest to be argued – is that the Justices are inclined to think that they would wind up in 4-to-4 splits.
One of the cases, Trinity Lutheran Church v. Pauley, is about school access to a state government program for turning tires into playground sufaces. The case implicates state constitutional clauses in more than 30 states that deny equal access to government benefits for an organization that is a house of worship or is directly affiliated with one.
The second case, Murr v. Wisconsin, involves the question of how private property is defined when the government seeks to prevent or regulate development because of environmental concerns.
The third case, Microsoft v. Baker, involves suit by a group of consumers in Washington against Microsoft, in which they complain that the Xbox 360 had a defect that caused its optical disc to damage the machine to the point that it was unplayable. Although the plaintiffs in the suit were denied class action status, they managed to get the case dismissed in a manner that allowed them to appeal as a class.
Each of the three cases involves matters in which Justice Scalia had been outspoken in decisions in recent years.
Posner Declares the Supreme Court "Awful"
Judge Richard Posner of the Seventh Circuit Court of Appeals made headlines again this week. This time, the headlines stemmed from a recent appearance at the Seminary Co-op Bookstore in Chicago, in connection with the launch of a biography on Posner.
At the event, Posner said that he was working on a new book about the federal judicary. He said that he had "about ten pages on the strengths and about 320 pages on the weaknesses." Posner continued to say that he was "very critical" and that he does not "think the judges are very good. [He thinks] the Supreme Court is awful. . . . Probably only a couple of the justices, Breyer and Ginsburg, are qualified. They're okay, they're not great."
Posner criticized federal judges, including the Supreme Court Justices, as lacking intellect – suggesting that they are appointed for appearance purposes and use clerks to do much of their work. He asserted that the Supreme Court Justices lacked extensive trial experience. And he criticized their writing, suggesting that Breyer and Ginsburg are the only ones who author readable opinions. He also took issue with formalisms like res judicata and continued reliance on precedent.
Posner even took issue with the fact that judges call their offices "chambers," attributing the practice to fourteenth century French language.
(Hat Tip: Above the Law @atlblog )
Clarence Thomas' Majority by Dissent and Jeffrey Toobin's Disdain
Adam White had a piece this week at the Weekly Standard where he discussed Jeffrey Toobin's latest critical piece about Justice Clarence Thomas. Toobin's latest piece in the New Yorker reflected on Justice Thomas' 25-year anniversary with the Supreme Court. White noted that Toobin's premise in the latest piece is that Thomas does not write any significant majority opinions and instead focuses mostly on dissenting from others' opinions and has been "on a Court of his own" for his career with the Supreme Court.
White disagrees with the premise. White notes that Thomas has written dozens of majority opinions, including ones in cases "on questions of state sovereignty, the First Amendment, antitrust, and . . . administrative law." White also contends that it doesn't matter how many majority opinions he has written – because Thomas authors concurrences and dissents, spelling out his own reasoning, and emphasizing his view of original intent in Constitutional thinking. Thomas also notes that while Toobin has praised other justices, like Ginsburg, for being "influential in different ways," he seems to turn a blind eye to that same thought when looking at Justice Thomas.
Adnan Syed's Lawyers Motion for Bail
Adnan Syed, whose murder case was spotlighted on the popular podcast, "Serial," in 2014, has remained incarcerated despite a ruling more than three months granting him a new trial. This week, his lawyers filed a motion asking that he be released on bail. The filing asserted that "Syed has now served more than 17 years in prison based on an unconstitutional conviction for a crime he did not commit."
ABA's Unease Over Trump Article Results in First Amendment Debate
A media lawyer in California, Susan Seager, authored an article reviewing Donald Trump's history as a libel plaintiff. In the article, Seager called Trump a "libel bully" and a "libel loser," because of his record of losing such cases. Her article was originally supposed to run in Communications Lawyer, a quarterly newsletter of an ABA member group. In mid-October, however, discussion between ABA deputy executive director James Dimos, the newsletter's editors, and Seager, resulted in Seager pulling the piece and having it published online at medialaw.org.
Among the suggested edits were recommended deletions of "direct references to Trump as a bully, a description of Trump as 'orange haired and orange tinged,' and a statement that Trump lacked a sense of humor." Additionally, the suggested edits included changing the proposed title of the article from "Donald J. Trump is a Libel Bully but also a Libel Loser," to "Preseidential Election Demonstrates Need for anti-SLAPP Laws."
Although the ABA disputes that its expressed concerns and suggested edits to Seager's language amounted to blocking the initial publication, media lawyers have expressed concern and called the situation an example of censorship.
According to the ABA, the concerns expressed about the language of the article were based on concerns about whether the pointed language in the article amounted to "[n]ame calling and questioning Mr. Trump's mental capacity," were "ad hominem attacks [that could] increase the risk of the ABA being sued by Mr. Trump," and were inconsistent with the ABA's strong policy of being a nonpartisan organization.
SCOTUS Celebrity News
Apparently Chief Justice Roberts and his wife recently purchased a second home on an island off the midcoast of Maine. Although the price was not disclosed, a 15-year mortgage for $1Million was filed.
(Hat Tip: Howard Bashman @howappealing)
#AppellateTwitter Weighs in on Golden Rules of Legal Writing
Joe Fore (@Joe_Fore), Co-Director of the UVALaw legal writing program, asked for #AppellateTwitter's help this week in boiling down legal writing into aa few golden rules – broad take-homes – for his legal writing class. And #AppellateTwitter did not disappoint.
Friday, October 21, 2016
Here are a handful of tidbits on appellate practice from around the web this past week. 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).
Presidential Debate: SCOTUS as a Topic
The third and final debate between Hillary Clinton and Donald Trump was this week, hosted by Chris Wallace. And SCOTUS was a topic.
Law.com ran a story early in the week, in which it reported on the results of efforts by Law.com reporters to reach out to Supreme Court practitioners and other lawyers about what the candidates should be asked about SCOTUS. The ARTICLE highlighted some of the responses.
Law.com followed up after the debate with a review of how the topic was actually handled. Although SCOTUS was scheduled as one of six, 15-minute topics for the debate, moderator Chris Wallace struggled to get the candidates to provide much in-depth discussion about where the Court might go in the next several years and how they viewed the Constitution. Clinton emphasized that she hopes to see the Court "not reverse marriage equality, not reverse Roe v. Wade, and . . . stand up against Citizens United." Clinton also urged Congress to go forward with the process of considering Merrick Garland's nomination to the Court. Trump's vision for the Court included observations that "[t]he justices [he's] going to appoint will be pro-life, they will have a conservative bent, they will be protecting the Second Amendment . . . [and] will interpret the Constitution the way the Founders wanted it."
More on the intersection of the election and SCOTUS and the future of the Court can be found in this week's Thursday Round-Up at SCOTUSblog.
Follow-Up on Donald Trump vs. The New York Times
Last week's Weekly Roundup included the "disagreement" between Donald Trump and the NYT concerning the Times article about women accusing Trump of inappropriate behavior. The letters exchanged between Trump's lawyer and the Times' lawyer went viral
This week, the author of the Times response to Trump, David McCraw, penned a piece for Times Insider, in which he described his reactions to the response letter going viral. See: "I Hardly Expected My Letter to Donald Trump to Go Viral." McCraw notes that he wrote the response letter "in about 45 minutes . . . between a meeting on the company's emergency operations plan and a conference call about a new patent suit." After that, McCraw and three colleagues from the Legal Department spent "about 30 minutes, talking about whether the overall point and tone were right, whether words should be tweaked, whether the ending was right." McCraw notes that when he was ready to publish the letter, he jokingly told his legal department colleagues to "[s]tand by [their] Twitter accounts." Then the letter went viral.
McCraw took note of the Internet debate over things like his comma usage and whether there should be one or two spaces after a period. he received hundreds of emails in response to the letter, mostly from strangers but also from former students, colleagues, and law school classmates. He noted that his intent was not to get into politics, but to focus on the basics of press freedom, in a way merited in many cases removed from the spotlight of Donald Trump. But he also heard from a number of women who felt his letter was also speaking on their behalf, standing up for the women who had come forward to make the accusations against Trump.
According to McCraw, his "favorite email was the one that ended: 'As my sister put it, I've never wanted to hang a paragraph from a lawyer on my fridge before.'"
Washington University Law's Supreme Court Database
First Mondays (@FirstMondaysFM), a seasonal podcast on the Supreme Court, hosted by Ian Samuel (@isamuel) of Harvard Law School and Dan Epps (@danepps) of Washington University St. Louis Law, discussed this resource from Washington University Law in this week's podcast.
The Supreme Court Database is described on Washington University Law's website as "the definitive source for researchers, students, journalists, and citizens interested in the U.S. Supreme Court." It "contains over two hundred pieces of information about each case decided by the Court between the 1791 and 2015 terms."
Put a couple of logs in the fireplace, make some hot cocoa, and settle in for a fall weekend of browsing this resource if you are a fan or follower of SCOTUS. There's just so much great information there.
Hat Tip: Bob Loeb (@BobLoeb).
On the Lighter Side
Jason Steed (@5thCircAppeals) rejoiced this week at discovering a California appellate court published an opinion using Century Schoolbook font. See SoCal Appellate News Blog.
Friday, September 30, 2016
Upcoming SCOTUS Term
SCOTUS kicks off its new term on the first Monday in October. As a result, the week before usually results in quite a bit of chatter, speculation, and discussion about the coming term and what can be expected. Here are a few tidbits in that regard:
SCOTUS Order List:
On Thursday, SCOTUS released an Order List adding eight cases to its new term, to start next week. SCOTUSblog provided a good / quick writeup about the list and a little preview of each case.
SCOTUS 2016 Term: By the Numbers
Bloomberg broke down the upcoming term "by the numbers" -- including how many cases had been docketed at the beginning of the week (out of the 75 or so likely to make up the full docket for the year), the number being heard on direct appeal vs. discretionary grants of cert, original jurisdiction, etc. The article also breaks down civil vs. Criminal cases on the docket, the possibility of the 9th Circuit becoming the most reversed court for this term, etc.
5 Facts about the Supreme Court
Pew Research Center summarized five facts about how Americans view SCOTUS as this year's term looms on the horizon. Americans' opinions of the Court hit a 30-year low last year, but have rebounded; there is a significant partisan gap in views of the Court; those partisan views include sharp divisions about how the Court should interpret the Constitution; voters closer to the conservative end of the Republican spectrum or the liberal end of the Democratic spectrum (as opposed to moderates) view court appointments as more important to their vote in the upcoming presidential election; and most Americans disagree with the current Senate's decision not to hold hearings on the nomination of Merrick Garland. See the article for more in-depth explanation of these five points.
Hat Tip: Robert Barnes (@scotusreporter)
How Clinton's or Trump's Nominees Could Affect the Balance of the Supreme Court
Adam Liptak and Alicia Parlapiano had an article in the NY Times that provided an interactive guide and links to a new study prepared by Lee Epstein of Washington University in St. Louis, Andrew D. Martin of the University of Michigan, and Kevin Quinn of the University of California-Berkeley, discussing predictions about each candidate's potential nominees.
Hat Tip: Howard Bashman (@howappealing)
This week's edition of #TwitterTuesdays here at the Appellate Advocacy Blog focused on Supreme Court related Twitter accounts to keep you informed about all thing SCOTUS.
Judge Clears Path for PACER Overcharge Suit
An article on Law.com this week highlighted that a U.S. Court of Federal Claims judge has denied the government's request to dismiss a class action suit alleging that a computer glitch caused the Public Access to Court Electronic Records (PACER) system to erroneously overcharge users for accessing and viewing federal court docket information. The basis for the government's claim was an assertion that the plaintiffs in the suit were required to exhaust administrative remedies before pursuing the action in court; the judge disagreed. The underlying action is based on "claims for breach of contract, breach of an implied covenant of good faith and fair dealing, and illegal exaction."
Thursday, September 29, 2016
This week the west coast firm of Munger Tolles & Olson LLP announced that well-known former Solicitor General Donald Verilli will lead the opening of its new Washington, D.C., office. Verilli is moving back into private practice after several years at the Department of Justice. He plans to continue his appellate practice but also to build an office that is broad in its reach regarding regulatory issues, counseling, and negotiation.
For Verrilli, heading to Munger Tolles represents a return to private practice. Before his time in government, he worked for Jenner & Block LLP, where he chaired the telecommunications, appellate and Supreme Court practices and developed expertise in areas such as patent law, technology, content and copyright, health care and energy. He also served as deputy White House counsel, and as an associate deputy attorney general at the U.S. Department of Justice before his June 2011 confirmation.
Verilli argued some of the biggest cases ever before the Court:
As the nation’s 46th solicitor general, Verrilli argued the landmark 2012 National Federation of Independent Business v. Sebelius decision, in which a 5-4 majority upheld the constitutionality of most parts of the Affordable Care Act. That, along with 2015's King v. Burwell decision over state health care exchange subsidies, are some of his proudest moments from his service, Verrilli said.
“We were defending social policy of enormous consequence and the stakes could not have been higher,” Verrilli said. “I thought in both those cases, the lawyering really made a difference in the case, and I’m very proud of that work and that I had a chance to do it.”
Arguing cases defending the right to marriage equality was an "enormous privilege," Verrilli said. During his tenure, he argued against the federal ban on same-sex marriage in the Defense of Marriage Act in the 2013 U.S. v. Windsor case and against state bans on same-sex marriage in the 2015 Obergefell v. Hodges case, in which the majority found a constitutional right to same-sex marriage.
Verilli, formerly of Jenner and Block - a Supreme Court powerhouse law firm - is bringing some legal firepower to the new office. Michael DeSanctis, a former partner at Jenner and Block, and Chad Golder, at DOJ and formerly at Wilmer Cutler Pickering Hale and Dorr, will be joining Verilli at the D.C. office. Verilli is also known for his skill in building talented legal teams.
While this "start up" might be a little new to the scene to make the Appellate Hot List for this year, it will likely be a frontrunner before long. The National Law Journal is currently taking nominees for law firms that have done exemplary, cutting-edge appellate advocacy:
Potential nominees must be able to point to least one significant appellate win since January 2015, plus an impressive track record overall. A "significant win" means prevailing before the U.S. Supreme Court, a U.S. circuit court of appeals or a state court of last resort when the financial stakes were high or an important legal principle was at stake.
Munger Tolles & Olson with Verilli at the helm will likely lead the contenders in years to come, but who are your picks for this year?