Saturday, December 9, 2017
We are taught that writing with the infamous IRAC moniker is easy, you just: (1) identify the issue (a question about whether a rule applies to facts) (2) explain how the rule works, (3) discuss how this rule applies to the facts, and (4) finish with a brief conclusion that explains how everything comes out. Sounds good in theory, but real life is too messy for IRAC (or IREAC, CREAC, or any other acronym).
After all, you can rarely answer a legal question in a single, simple: Issue/rule/application/conclusion format. Once you dig into a generic, black-letter rule, more issues spawn—more questions about how parts of the rule apply to your facts. A simple issue, like whether a company is vicariously liable for a worker’s tort, can birth tons of “sub” issues. For example: “Was Jory an employee?” and “Was he acting within the scope of his employment?” So where is our trusty IRAC now? Is it: IRIIAC?
The truth is, IRAC isn’t a perfect framework—a perfect framework doesn’t exist. But IRAC can be a powerful tool if you apply its principles and stop getting hung up on the moniker. To make IRAC more useful, we suggest you think about it a bit differently—in particular, the I and the R parts.
Let’s start with the I. The term “issue” often troubles legal writers. What, exactly, is an issue? To make the concept of an issue more useful, consider both its definition and practical use. An issue is simply: “any legal question about how a rule applies to a set of facts.” So: “Did Jory commit battery?” is an issue, as is “Does the relation-back doctrine apply to the defendant’s complaint?” In other words, “issue” is a fancy label for any legal question.
More important is what we do with issues—what’s the point of giving a legal question this special name? It’s all about signposting. We refer to issues just to remind our reader that when we analyze rules and facts, we should start by telling them which particular rule and set of facts we will next address. It’s an organizational tool, nothing more. So if you need to walk your reader through four overarching legal questions, you roadmap those “issues” for your reader first.
Now for the fun part: the R. We usually learn that the rule section is where you generally explain the rule. But consider a slightly different perspective. What you are really doing here is crafting new and more useful rules for your reader that are fashioned for your case’s facts .
First you take a clunky, black-letter rule that doesn’t cleanly fit yet. After all, black letter rules weren’t made for your case (or any other case in particular). They are a starting point.
Then after researching the law you refine that generic rule into new ones that more closely fit your facts. Think about it like this. You start with a lump of marble—your general rule. You then slowly chisel it into a statue—the more specific and bite-sized rule or rules that cleanly address your facts.
To see why refined rules are better, take a simple example. Imagine your client is sued because one of its employees punched someone during an unapproved break. Which rule is more effective?
A generic rule, like: “An employer is not liable when an employee commits a tort not within the scope of employment.
Or a more refined rule that you crafted yourself:
“This court has consistently held that when an employee takes a break without his employer’s permission, the employer cannot be liable for what the employee does on that break.”
A rule refined for your facts like this boxes in the judge and the other side, making it clear how the rule applies to your facts. Yes, you are explaining your rule. But you are also creating a new rule altogether.
Sounds good, but how exactly do you refine rules like this? There are two ways.
First, you can divide the rule into smaller parts. This allows you to discuss the rule in bite-size chunks (which is a lot easier to apply). Sometimes the benefits of dividing the rule are obvious, like if courts already separate the rule into elements.
Other times, you realize it makes more sense to separately analyze different aspects of the rule even though no court has told you so. For example, maybe you identified two situations where a rule commonly applies, say in cases of intentional behavior and cases of reckless behavior. You could craft two new rules: one for intentional conduct and one for reckless.
When crafting new, smaller rules, you have a few options for organizing how you discuss them. One option is to create separate sections in your document; each section explains and applies the new, refined rule. This works best anytime your new rules require a lot of explanation and application.
Let’s explore an example. You research the law and decide that the defendant can meet the intent rule for battery if either (1) he intended to injure or (2) he was reckless about injuring. You could divide this intent rule into two new rules like this:
"Courts have held that a defendant intended a battery if either (1) he intended to injure or (2) he was reckless about injuring. Here the defendant qualifies under both theories.
Intent to injure
[Explanation of the intent to injure rule]
[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.”
- An issue is simply a question about whether a rule applies to a set of facts.
- 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.”
- 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.
- You can refine rules in two ways: (1) dividing them into smaller rules or (2) adding clarifying details about how the rule works.
- 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.
Thursday, December 7, 2017
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, 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. 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.
 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.
 Base photograph by Kenneth D. Chestek—photography is one of his hobbies.
Thursday, November 9, 2017
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.
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.
Thursday, November 2, 2017
Contrary to the enticing moniker, The Appellate Hot List is not a beauty contest! It is an annual round-up of the top law firms who have won significant victories at the Supreme Court or in the federal circuit courts. This year's Hot List naturally includes some repeat offenders, because clearly, once the word gets out that a firm wins in the highest court, more clients will come calling. The National Law Journal did quick summaries of the cases involved, and some of the more prominent attorneys were asked to give advice to their younger selves.
With an eye towards educating my students, the advice portion is the most interesting:
William Jay of Goodwin Proctor won Star Athletica v. Varsity Brands, a copyright case dealing with original artwork on cheerleaders' uniforms. His advice was, "Read as much good writing as you can—nonlegal as well as legal [and] [s]et aside some time each day for long-term planning, because otherwise the immediate tasks at hand will swallow all your time." His first recommendation to read, read, read, is echoed by other top appellate lawyers in this year's list as you will see. The second piece of advice for time management is rarely discussed in law school but is ultimately a key factor to success in practice and living a balanced life.
Steve Rummage of Davis Wright Tremaine, along with his partners, won Microsoft v. Baker, a case about class certification. His advice was, "Focus less on trying to show case law mandates an outcome and more on showing how to reach a just and fair result for your client within the law." This is a lesson moot court students have to be reminded of frequently when they first practice developing their arguments for competition. Many are usually stuck on "precedent" as an argument, but the Supreme Court is more interested in finding the right outcome. Once students internalize this, their creativity bounds.
Adam Unikowsky of Jenner & Block won Kokesh v. SEC, a disgorgement case with the novel argument that it was really a penalty. The argument had never succeeded at the lower courts but ultimately won the day with the Supremes. Unikowsky advised, "If possible, make your brief shorter [and] [i]t is always necessary to be scrupulously accurate—otherwise you will lose all credibility with the court." Concision and accuracy are holy principles in legal writing. It is always nice to see your lessons reinforced by those in the trenches.
Jeffrey Green of Sidley Austin won Dean v. United States, a case regarding how sentences for gun crimes should be determined. Green gave some colorful, but very practical advice:
"Avoid lawyerly ‘splain’in. Explication, exegesis and theorizing rarely have a place. Give reasons instead—nothing more or less. What the Fourth Amendment or case X says is not going to win the day. [And] [s]ay it well, but say it only once. You can’t overestimate the goodwill you earn with any justice or judge by submitting a brief that is just about one-half of the allowable length. Don’t be repetitive about what you want, the justices just want to know why you want it."
At the risk of being repetitive myself, this advice is worth highlighting - simplify and avoid redundancies. Priceless.
Kannon Shanmugam of Williams & Connolly won two victories in the Supreme Court, and two in the circuit courts. Shanmuhagn was most proud of the hard work of the junior associates who won the cases in the lower courts. His advice was, "Take every opportunity you can to stand up in court or even to engage in public speaking. For most of us, oral advocacy is an acquired skill. [And, once again,] [r]ead good writing in any form you can find it. The best writers are voracious readers." Many students are petrified of oral presentations, but the trick is that there is no trick - only practice. Sure, some people do have a gift that gives them a leg up, but most people come by their oral argument skills through lots and lots of practice. And also, read! Read anything and everything. It will show up in your work product either way.
Observing those who are successful at the highest levels of the profession is always worth a pause, and a thought about incorporating their lessons into our own practice - whether we maintain clients and a case load, or are simply imparting demonstrated wisdom to the youngest new attorneys.
Thursday, October 26, 2017
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
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.
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.
Monday, October 23, 2017
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.
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.
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 21, 2017
On September 19, 2017, Noel Francisco was confirmed, 50-47, as the new Solicitor General of the United States. As the Supreme Court is set to begin arguments on October 2, Solicitor General Francisco will have a busy next few days.
Francisco has had a distinguished career in both the public and private sector. He most recently joins the DOJ from Jones Day's government regulation practice where he served as chief, but he previously served in the Bush 43 administration from 2001-2005 in the offices of counsel for the president and of the Department of Justice. Francisco was a law clerk for Fourth Circuit judge, J. Micheal Luttig, and for Supreme Court justice, Antonin Scalia. He is a graduate of University of Chicago, BA, and University of Chicago Law School.
Francisco has argued in front of the Supreme Court three times with an overall record of success. He presented the case of McDonnell v. United States, involving federal bribery statutes, resulting in an 8-0 win, the NLRB v. Noel Canning case on recess appointments, with a 9-0 win, and achieved a 4-4 tie in the Zubik v. Burwell case regarding the application of Religious Freedom and Restoration Act (RFRA) to insurance coverage, leaving the lower court's ruling intact.
While working in private practice for the Jones Day law firm, Francisco, 48, successfully argued before the Supreme Court against the constitutionality of President Barack Obama’s recess appointments to the National Labor Relations Board, winning a 9-0 decision.
He also gained a 4-4 tie at the high court after arguing for the Little Sisters of the Poor, a Catholic order of nuns, against Obamacare’s mandate requiring employers to cover contraception and abortion-inducing drugs in employee health plans.
In another widely publicized case that made its way to the high court, Francisco helped overturn the conviction of former Virginia Gov. Bob McDonnell, a Republican, on charges of public corruption.
As Solicitor General, he himself will likely argue up to nine or ten cases per term, with the rest of the office arguing in the neighborhood of seventy or so cases this year. In this office, Francisco has the final say on both whether to assert appeals when the government loses at trial, and when making appeals, guiding appellate strategy. The Solicitor General has an office at the Supreme Court, and maintains a close relationship with the Court. Frequently the Court will take into account the SG recommendation when deciding which cases to grant certiorari.
The new Solicitor General has many cases of significance on his calendar. Upcoming cases concern separation of powers, religious freedom (baker cases), and immigration (travel ban).
Jonathan Turley, law professor at George Washington University, said the confirmation will also bring needed relief to Attorney General Jeff Sessions, who has been leading the Justice Department with “a truly skeleton staff.” Mr. Francisco will now be able to help shape courtroom strategy for the department.
“From amnesty cities to DACA to travel bans to transgender bans, the Trump Administration faces defining moments before the court. It needs a solicitor general at the helm that supports its policies and priorities,” Mr. Turley said.
This time of year, with First Monday right around the corner, tends to be an exciting one, at least for those in academia who get to introduce this yearly opening to brand new law students. The confirmation of a new Solicitor General adds to the occasion this year. There are a few occasions of First Monday in popular culture, (I just learned), and here they are to satisfy your interest: First Monday in October - the movie (see trailer below),
The participants host a weekly podcast every week the Court is in session, and have a special summer session. The podcast could be a quick and fun way to keep up to date on the happenings at the Court. Happy First Monday, whether you are in academia, public, or private practice. The Court has a new composition, and the Solicitor General's office has a new leader at the helm. It will be an interesting year.
Monday, August 14, 2017
The Supreme Court recently announced that on November 13, 2017, its electronic filing system will be up and running. Thankfully, the Court’s program will not be part of the PACER system. Rather, according to the National Journal, the Court’s main page will include a button for “Electronic Filing.” The filings will be “accessible without cost to the public and legal community.”
While this is a huge step forward for the Court, it will not, initially, eliminate the requirement that parties file paper copies. According to the Court’s press release,
Initially the official filing of documents will continue to be on paper in all cases, but parties who are represented by counsel will also be required to submit electronic versions of documents through the electronic filing system. The filings will then be posted to the Court’s docket and made available to the public through the Court’s website. Filings from parties appearing pro se will not be submitted through the electronic filing system, but will be scanned by Court personnel and made available for public access on the electronic docket.
E-filing has been around for some time, and is mandatory in most, if not all, federal courts. It is slowly taking over in the state courts too. The National Center for State Courts provides information on the state of e-filing in the states, including links to the various court rules.
While e-filing certainly has its strengths, it doesn’t mean that one can procrastinate to file a brief until minutes before it is due. Be sure to understand the requirements for e-filing in your jurisdiction, including any size limitations and the amount of time it takes to get a login.
Monday, July 31, 2017
I recently received a link to a Seventh Circuit in-chambers opinion that I thought was worth sharing. On July 10, Chief Judge Diane Wood issued an in-chambers opinion striking briefs in two cases. The briefs, one a respondent brief from the Attorney General and the other an appellee brief from the Air Line Pilots Association, were stricken for failing to comply with court rules. So what court rule did these parties fail to follow? Circuit Rules 3(c)(1) and 28 on jurisdictional statements.
This is surprising, as the briefs that were stricken were from an appellee and a respondent. As Chief Judge Wood explains, however, appellees and respondents have responsibilities too when it comes to the jurisdictional statement. While appellees and respondents are exempted “from filing a jurisdictional statement unless it is ‘dissatisfied’ with the appellant’s statement,” Seventh Circuit Rules “direct that ‘[t]he appellee’s brief shall state explicitly whether or not the jurisdictional summary in the appellant’s brief is complete and correct. If it is not, the appellee shall provide a complete jurisdictional summary.’”
As the Chief Judge points out, “The job of the appellee is to review the appellant’s jurisdictional statement to see if it is both complete and correct. These terms are not synonyms.” So where did the briefs of the Attorney General and the Air Line Pilots Association fall short? With respect to the Attorney General’s brief, the jurisdictional statement only said that the appellant’s statement was correct, not that it was complete. Chief Judge Wood explained, “If the Department [of Justice] concludes that Mr. Baez‐ Sanchez’s jurisdictional statement is both complete and correct, it should say so in the amended brief.” As for the Air Line Pilots Association, while their statement said that the appellant’s statement was complete, but mentioned nothing about correctness. Chief Judge Wood directed the Association to “review the appellants’ jurisdictional statement for both completeness and correctness, and if the statement is wanting on either score, . . . supply a comprehensive statement that complies with FRAP 28(a) and Circuit Rule 28(a).”
So what is the moral of this story? Follow the rules. In both cases, the jurisdictional statements would have been perfectly acceptable if they had two additional words. Now, the parties will have to incur the costs (both in time and money) of filing amended briefs.
Filing a brief that comports with the rules of the jurisdiction should not be such a difficult endeavor. As Chief Judge Wood notes in her opinion, the Seventh Circuit even provides a checklist to assist litigants follow the rules. Other legal writing books or courts provide similar lists or examples. As lawyers, we can, and should, do better.
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!
Friday, November 4, 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).
#AppellateTwitter Threads of the Week:
BobLoeb, of Orrick's Supreme Court and Appellate Litigation practice, started a thread on Twitter this week asking for training or advice tips that were useful to appellate practitioners when they first got started. Lots of great appellate advocates weighed in with some great tips.
While the #AppellateTwitter hashtag has really started to take off, one of its contributors, UNC Law Professor Gurvich, announced plans to start a #PracticeTuesday hashtag for weekly conversations about discussions related to best practices and tips for effective appellate practice. Readers of this blog will surely want to look for that hashtag and tune in.
Just before this past week (Friday, October 28), the Supreme Court announced that it would hear a challenge to a Virginia school district's anti-transgender restroom policy. The case, Gloucester County School Board v. G.G., arises out of a school district policy mandating that students use the restroom matching their biological sex. A transgender student sued, with the support of the ACLU. The trial court ruled in favor of the school district, but the 4th Circuit Court of Appeals ruled in the student's favor. More information available at the ACLU website and at SCOTUSBlog.
The Miami Herald reported this week on an interesting case where the United States and Venezuala are joining on the same side against a U.S. oil company. The case, Bolivarian Republic of Venezuala v. Helmerich & Payne International, was heard on Wednesday of this week. In the case, the U.S. Court of Appeals for the D.C. Circuit determined whether U.S. courts have jurisdiction over a lawsuit against a foreign government by looking only at whether the claim was insubstantial or frivolous. More at SCOTUSBlog.
Earlier this week, the Supreme Court rejected an appeal for Alabama death row inmate Bill Kuenzel. The case involved Kuenzel's claims that evidence was withheld by prosecutors, and gained some national attention when former Attorney General Edwin Meese weighed in and suggested that Kuenzel is "very likely actually innocent." The AP reported.
Finally, Billboard magazine reported this week that the Supreme Court has asked for the U.S. Solicitor General to provide the government's view about a nearly decade-old dispute between a mother who posted a 29-second video clip on YouTube of her toddler dancing to the Prince hit, "Let's Go Crazy." She received a takedown notice, and the mother sued and raised misrepresentation of copyright and fair use issues. Neither side was satisfied with the mixed opinion of the 9th Circuit Court of Appeals. The Supreme Court has not yet granted review in the case, but the request of the Solicitor General suggests there is a possibility that such a grant could be forthcoming.
Obama's Judicial Legacy:
Law.com ran a feature this past week, including lots of graphics, analyzing how President Obama's judicial appointments have shaped the federal courts and where changes have started to be evident. Charleston Law professor Jennifer North wrote about that topic right here at the Appellate Advocacy Blog earlier this week.
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."
Friday, September 23, 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 at DReal@Creighton.edu or a message on Twitter (@Daniel_L_Real).
Will the Supreme Court's Vacancy Issues Ever Become an Election Issue?
Chris Geidner had an article on BuzzFeed News this week asking the question. The article recounted how, for a brief moment last weekend, it appeared as if the topic of the vacancy on the Supreme Court and Congress's decision not to consider and vote on President Obama's nominee to fill the vacancy would became a real issue in this year's Presidential election. Hillary Clinton was asked a question about it; a member of Donald Trump's campaign allegedly had been told that he would be a nominee in a Trump administration; Senator John Cornyn (chair of the Judiciary Committee's subcommittee on the Constitution) spoke about hopes of confirmation for a set of lower court nominees back by Republican senators. But the focus quickly shifted away, again. Nonetheless, as the article notes, there are still some key dates coming up that might shift focus back to this topic as a key in the race for the White House, including the Court's new term opening in October, as well as upcoming debates.
Related, Jason P. Steed (@5thCircAppeals) tweeted a link to his April blog post about "Duty" and the Constitution, discussing the debate over whether the Constitution imposes a "duty" on Congress to consider and vote on a nominee to fill a vacant seat on the Court. The post raises some great discussion points about the intersection between whether the Constitution specifically imposes such a duty and whether it's acceptable to conclude that it does not if that conclusion arguably threatens the very function of the Constitution itself.
Finally, Cornell Law Professor Michael Dorf had a post on Justia.com titled, "The Future of the Supreme Court, Regardless of Who Wins the Election." In the piece, he makes the case that although "it is tempting for those of us who follow the work of the high Court to play a waiting game" and acknowledges that "with respect to some important issues, uncertainty . . . warrants caution" he also argues that "Supreme Court watchers who are fearful about the outcome of the 2016 election can take comfort from the fact that it may not matter as much as we expect." He argues that there are "vast swaths of our public life about which the Court has almost nothing to say" and that "[s]ome areas of Supreme Court jurisprudence will likely be unaffected by the next appointment(s) because they rest on broad cross-ideological consensus." While acknowledging that "who appoints the next several justices to the Supreme Court is [not] an unimportant question" he argues that we should not think "that everything is up for grabs" because, at the end of the day, "the Court still decides many more cases unanimously than by a single vote" and also points out that history should tell us that "[e]ven when we know who will apoint justices . . . [and] even when we know who those justices are," their ultimate voting habits with the Court are often unexpected.
Dorf on Twitter: https://twitter.com/dorfonlaw
Oral Argument Preparation Thoughts
Bryan Gividen (@BryanGivi) started a good twitter discussion about oral argument preparation process and tips. David Feder (@davidjfeder) had previously posted an image showing the Solicitor General's process for oral argument prep in cases before SCOTUS. The comments and responses to both provide some great practical thoughts from folks who regularly engage in oral argument preparation.
Gividen Twitter Discussion Link: https://twitter.com/BryanGivi/status/777896705161170944
David Feder Twitter Post: https://twitter.com/davidjfeder/status/777650613114974208
How Many Issues to Raise on Appeal
Mike Skotnicki (@MSkotnicki) tweeted a link to a 2014 blog post he wrote about determining how many issues to raise on appeal. In the post, he discusses striking the balance between raising every issue that you can possibly find and only raising one or two really good arguments, arguing in favor of raising "every argument deemed to have real potential to be found meritorious" and capable of passing the "'red face test' (would you blush raising the argument during questioning at oral argument?)"