Saturday, December 16, 2017
What they say about cross examining and depositions is also true for legal writing: asking the right questions ensures you get the right answers. But legal writing is trickier — because instead of asking questions directly, you have to convince your reader to ask them for you.
That’s because reading is a solitary exercise. When we read something, we have the luxury of re-framing the questions as we go. We need not ask the questions as the author posed them. And the crucial questions often don’t spring from the page; they are followup questions formed as we chew on ideas.
Early on as law students, we are briefly taught to frame legal analysis as a questioning process. Indeed, the infamous IRAC writing format is really just a simple question and answer. You identify the issue — a question about whether a rule applies to a set of facts — then you offer an answer (by explaining the rule and applying it). And we also learn a lot about the law through the Socratic method, which is a lot of questioning and answering.
But most of us don’t think about asking questions when we write a legal document. Indeed, in your brief, you might not directly ask your reader any questions. The thing is, for your reader making the decisions, it’s all about the questions. That is how we humans process information. We ask whether the propositions we read make sense. We ask whether another proposition might make more sense. We ask whether the question posed is even the right on to ask in the first place.
Practically, it’s easy to lose control of which questions your reader is asking when they read your document. A simple issue, like whether a company is liable when one of its workers gets in a brawl with a customer, will spawn tons of new questions for your reader to answer. Some you will expect and are straight-forward; many you will outright pose to your reader as you work through the issues. For example: “Was the defendant an employee?” and “Was he acting within the scope of his employment?"
But as you get into the details, it becomes harder and harder to control the questioning process. Your reader will be asking: “What type of worker should we treat as an employee?” "Does that seem fair?" And so on. You will anticipate some of these tough questions, but it takes a lot of work and careful thought to anticipate them all (and better yet, to ensure your reader doesn’t start asking themselves questions that will lead them to a bad answer for your client).
The power of of your reader’s questions throughout the reading process is profound. Say you represent a company who gave confusing instructions to a worker, which resulted in an accident. If after reading your brief and the opposing party’s brief, your reader asks: “Shouldn’t an employer be liable when the worker was simply doing what she was told?”— you might as well call it in.
But if you guide your reader to a different question instead, you might be getting somewhere: “Isn’t it unfair to hold a company liable when a worker knew the instructions were confusing and never asked the company for guidance—which would have easily prevented the harm?”
Now the how-to. To get your reader to ask the right questions, you first need to figure out what answers you need. Then you convince the reader to ask the right questions that will get them there. It’s not all that different from cross examining or deposing a witness. You write out the admissions you want first, then the questions come.
These two steps are a refining process. You start with a general question you need the reader to answer. You then do a dance of anticipating your reader’s possible follow-up questions and figuring out how to guide them to the right ones. You have myriad tools in your arsenal to guide readers through this questioning process. You have the law; you have policy; you have your writing style — anything you can use to convince your reader to ask the questions in a way that leads to good answers for your client.
So maybe you start by posing this general question for your reader: “does a three-year or five-year statute of limitations apply to a battery claim?” (knowing you need your reader to answer that it’s three years). A reader given this question will first wonder whether any courts have already addressed which period applies to this sort of claim. If not, your reader might then wonder how courts go about classifying torts under the proper period. Anticipate these questions and guide your reader to the right ones.
Let’s say no courts have directly addressed this question, but you find some authority that suggests assault, which is similar to battery, falls under the three-year period. You might first guide your reader through the self-questioning process like this: “No courts have held that battery falls under the three-year period.” You are anticipating the reader’s first question and quickly guiding them to where you want to go. Your reader’s next question will be: “Ok, then how do courts figure out which period applies to a new tort?”
Now you come to a crucial part of the questioning process: getting your reader to ask themselves a very narrow and specific question about the law; a question that will likely govern the outcome of your case.
In the U.S. Supreme Court’s individual-mandate case, for example, how parties framed the commerce clause question was crucial: “Doesn't the commerce clause bar Congress from forcing people to buy things?” Or instead: “Doesn't the Clause allow Congress to regulate a market that all of us are already a part of — the healthcare market?” Both questions were reasonable, and each would lead to a different result. Which question judges and justices chose depended largely on how the lawyers guided them in their briefs.
Getting back to our statute-of-limitations example, you have that caselaw suggesting assault falls under the three-year period. And you know assault is similar to battery. So you want your reader to ask themselves this question: “Which tort is similar to battery?” Because we know that answer will be a good one. Your questioning process might unfold like this: “Which period applies to a tort turns on whether the tort is more similar to the torts falling under the three-year period, or instead, more similar to torts falling under the 5-year period.” You’ve now primed your reader to ask the right question: “Which tort is battery most like?” And because this was all part of our plan, we know the answer: assault (triggering the three-year period we wanted).
There are lots of ways to push your reader towards the right questions. Sometimes it’s as easy as just writing the question for them: “The crucial question is whether battery is like assault.” Or you can be more subtle, using rhetorical questions or hypotheticals. Justice Kagan is a master of guiding readers to the right questions like this.
For example, in Justice Kagan’s dissent in Lockhart v. U.S., she posed a question to her readers:
Suppose a real estate agent promised to find a client “a house, condo, or apartment in New York.” Wouldn’t the potential buyer be annoyed if the agent sent him information about condos in Maryland or California?
Justice Kagan wants the reader to ask themselves this question outright — and she knows there is no bad answer for her position.
And Judge Jay Bybee of the Ninth Circuit (whom Joe had the great pleasure of clerking for), is similarly sensitive to this questioning process, directly posing a series of questions for his reader to ask in this section of an opinion:
If we insist on reading “not less than 7 days” to mean “not more than 7 days,” why should anyone reading our opinions trust that he understands them correctly? If words are so malleable, might we routinely read our own precedents as saying the opposite of what they clearly say? May one panel simply rewrite another panel’s opinion when it thinks the prior opinion is “illogical?” And where might our creativity lead us with provisions of the Constitution that don’t make as much sense as we would like? May we amend even the Constitution at will? If we think that when Congress says “less” it actually means “more,” we should not fault anyone who might, as a result, discount other things that we have written.”
Justice Gorsuch is also aware of the importance of questioning, often framing legal issues with discrete questions for his reader — and expressly guiding his reader to the questions he wants them to ask:
The narrow question raised by this pretrial motion is whether, if Antoine Watts is convicted of possessing with intent to distribute five grams or more of crack cocaine, the court will be compelled to impose a minimum . . .
The broader question is whether federal courts will be required, for the next five years, to perpetuate a congressionally recognized injustice . . .
Judge Patricia Wald is a master of setting up carefully-constructed, nuanced legal questions that will guide her reader to the answer she wants:
This case presents a straightforward, but nonetheless hard, question of law: Has the United States waived sovereign immunity for a back pay award to an individual denied federal employment in violation of his constitutional rights?
And perhaps one of the best examples of how a simple question can frame an entire way of looking at an issue: Kathleen Sullivan’s brief in SEC v. Siebel:
“Is someone riding around a golf course from shot to shot really a golfer?”
At bottom, the important thing to remember is that any critical reader will process your writing by self-questioning. So anticipate those questions and answer them. But better yet, figure out how to guide your reader to good questions in the first place.
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, 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.
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: firstname.lastname@example.org. 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
Monday, September 11, 2017
This week, Attorney General Jeff Sessions announced the end of Deferred Action for Childhood Arrivals (DACA). This announcement caused a public outcry, as well as a response from former President Obama, whose administration had spearheaded the program.
Sessions and Obama spoke of DACA in very different terms, no doubt trying to persuade those who were still undecided, but also trying to connect with those who already agreed with them. Their two short statements illustrate core principles of legal persuasion because their words created network of favorable connections in the minds (and hearts) of their audiences.
Sessions, for example, referred to the program as “DACA”, a flat, bureaucratic acronym. Is there anything drearier than an acronym? The word “DACA” sounds like something worth getting rid of – whatever it is. Moreover, using “DACA” allowed Sessions to characterize the program as borderline illegal -- “an open-ended circumvention of immigration laws” that allowed “800,000 mostly-adult illegal aliens” to remain in the U.S. In Sessions’ statement, it is easy to dismiss the DACA participants as “other” – as people breaking the law -- not like “us.”
Contrast “DACA” with the program’s popular name, the “Dreamers.” Whereas DACA sounds emotionally flat, “Dreamers” triggers one of the most evocative and compelling cultural stories we have, the American Dream. James Truslow Adams described the American Dream in the early 1930s as the idea that "life should be better and richer and fuller for everyone, with opportunity for each according to ability or achievement" regardless of social class or circumstances of birth.
Imagine how dissonant Sessions’ message would have been if he’d said the “Dreamers” were “mostly-adult illegal aliens.” Such a semantic and emotional flub might have damaged Sessions’ message even with those inclined to agree with him. No American wants to connect the “American Dream” with “illegal” behavior.
By contrast, Obama’s statement took the American Dream connection and ran with it. He called the Dreamers “young people who grew up in America -- kids who study in our schools, young adults who are starting careers, patriots who pledge allegiance to our flag.” Not “other” people but “kids” “Americans” and “patriots” just like “us” (or our kids). More than that, these young “Dreamers are Americans in their hearts, in their minds, in every single way but one: on paper.”
Like these political rhetoricians, lawyers and judges are effective in legal persuasion when they help their audiences make favorable connections. Those connections can be semantic (illegal versus patriot) or they can be emotional (we are all Dreamers). They can prime our biases (those people are illegal or my grandparents were immigrants). In the end, the way we talk about the “dreamers” provides a powerful example of persuasion -- of how to forge connections that allow us to influence others.
UNLV Law Professor Linda Berger and Temple Law Professor Kathy Stanchi are the authors of Legal Persuasion: A Rhetorical Approach to the Science (Routledge), a book that explores how legal persuasion results from making and breaking mental connections, using examples from law and politics.
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, June 12, 2017
Last week it seemed like the only thing on cable news was former FBI Director James Comey's testimony before Congress. While the content of Comey's written and oral testimony has received a lot of press, one surprise feature of the hearing was the praise Comey received for his writing. Here is the exchange Comey had with Senator James Risch from Idaho:
RISCH: Yesterday, I got, and everybody got, the seven pages of your direct testimony that’s now a part of the record, here. And the first — I read it, then I read it again, and all I could think was, number one, how much I hated the class of legal writing when I was in law school.
And you were the guy that probably got the A, after — after reading this. So I — I find it clear, I find it concise and, having been a prosecutor for a number of years and handling hundred — maybe thousands of cases and read police reports, investigative reports, this is as good as it gets.
And — and I really appreciate that — not only — not only the conciseness and the clearness of it, but also the fact that you have things that were written down contemporaneously when they happened, and you actually put them in quotes, so we know exactly what happened and we’re — and we’re not getting some rendition of it that — that’s in your mind. So...
COMEY: Thank you, Senator.
RISCH: ... so you’re — you’re to be complimented for that.
COMEY: I had great parents and great teachers who beat that into me.
While it is a shame that Senator Risch disliked legal writing in law school (and that he mentioned the fact at a hearing that was nationally televised), I appreciate the shout-out for the importance of clear and concise writing (and parents and teachers who encourage such writing).
Over at the Lady (Legal) Writer blog, Prof. Kirsten Davis has an excellent post on why she thinks Comey's testimony is "A" worthy. All of her comments are spot on. A few of the comments pertain directly to appellate writing, such as organizing information chronologically (almost always a great strategy in the statement of facts) and showing how his ideas connect together. She also notes the effective nature of the introductory paragraph that Comey uses and how he could have improved it. I appreciate Kirsten's insight, and I am considering using Comey's testimony in my Advanced Legal Writing course this fall when we discuss the statement of the case.
Monday, December 19, 2016
It is the "most wonderful time of year" for law professors--grading season! So, the blogging may be a little light over the next few weeks. Still, I wanted to blog on what I have been reading when I am not reading exams.
I have been on a mission to read a biography of every president. I was inspired by Stephen Floyd, an investment banker who has been reading and reviewing presidential biographies since 2012. The Washington Post also has a list of good presidential biographies. Reading presidential biographies has added a lot to my teaching, especially in constitutional law. I was thinking the other day, however, about our early president-lawyers and effective communication.
Three of our four first presidents were trained in the law--John Adams, Thomas Jefferson, and James Madison. These three men were gifted writers and credited with drafting (or playing a significant role in drafting) our country's most foundational documents. Jefferson (with Adams' help) drafted the Declaration of Independence, and Madison is often called the "father of the Constitution." Madison is also well-known for his writings related to Virginia politics.
Of these three men, however, only Adams was a gifted speaker. Jefferson, Madison, and Washington, were all terrible public speakers. When they delivered public addresses to Congress people often had to strain to hear them.
With the advent of radio and television, we put much greater emphasis today on our presidents being excellent public speakers. Bill Clinton--another president-lawyer--was known as the great communicator. President Obama too is effective at pubic speaking. While these men have written books as well, as have many past presidents, these books tend to be more of the autobiographical genre, rather than the political philosophy that our early president-lawyers wrote on.
In law school we focus heavily on teaching our students to be effective legal writers. Sadly, this task is getting more difficult each year. Twitter, Snapchat, Facebook, and the like are changing how our students think about writing and communicating. However, we must not got weary in our task. So, grade on law professors, grade on!
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, September 16, 2016
This is the first edition of a new regular feature here at the Appellate Advocacy Blog: The Weekly Roundup. Each Friday, we’ll post links to some of the best appellate practice content that we’ve come across in the past week. 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).
How Not to Argue About Extrinsic Evidence
600 Camp – a blog about commercial litigation before the U.S. Court of Appeals for the Fifth Circuit – had a brief post on September 12 about the Fifth Circuit’s unpublished opinion in SmithGroup JJR, PLLC v. Forrest General Hospital. The brief opinion addressed the importance of preserving at the trial level arguments to be raised on appellate review. The particular issue at hand involved the admission and use of extrinsic evidence in the interpretation of a contract.
Blog Post: 600 Camp Blog Post
Fifth Circuit Opinion: SmithGroup v. Forrest General Hospital Opinion
Hat Tip: @David Coale
The 5 Edits I Make Most Frequently
Mark Herrmann, formerly a partner at a leading international law firm and now responsible for litigation and employment matters at a large international company, authored a post at Above the Law this week recounting common editing moves in the writing of briefs. There is a wealth of good advice there, based on real experience.
Blog Post: Above the Law Blog Post
Hat Tip: Raymond P. Ward
A Worthwhile, Four-Day Appellate CLE Is Coming to Philadelphia
Howard Bashman (featured in this week’s “Twitter Tuesday” has written a great post discussing the annual Appellate Judges Education Institute Summit, an annual four-day program hosted by the judicial division of the ABA and the Southern Methodist Dedman School of Law. In a lot of ways it is like a big CLE over several days, featuring a large group of judges and appellate practitioners. This year’s event is being held in Philadelphia in November. If it fits your schedule, it’s a highly beneficial event to attend and participate in.
Blog Post: Bashman Blog Post
Hat Tip: @howappealing
Combination of Clement/Bancroft firm with Kirkland & Ellis
A big news item this week concerns the breaking news that Paul Clement and the Bancroft firm are going to combine with Kirkland & Ellis. This news was reported and discussed in a variety of places, including an article in the National Law Journal, where another prominent SCOTUS bar practitioner was quoted as calling it “the biggest shake-up in the Supreme Court bar since [Clement] left King & Spalding in 2011.”
Article: National Law Journal Article
Hat Tip: @tessadysart
Twitter Thread About Getting Into Appellate Practice
Jason Steed, who was recently mentioned in our Twitter Tuesday feature and who is an appellate practitioner who blogs and tweets about appellate practice (especially in the 5th Circuit), started a twitter thread and discussion about getting into appellate practice that has some great discussion and thoughts. You can follow Jason’s other posts about appellate practice at @5thCircAppeals.
Friday, August 26, 2016
Should judges and lawyers quote profanity in their opinions, briefs, and oral arguments? Zoe Tillman tackled this touchy issue in a recent article on Law.com. The article, aptly entitled "In Quoting Profanity, Some Judges Give a F#%&. Others Don't," Tillman includes several quotes from federal judges on the use of profanity in judicial opinions. Well some try to avoid it at all costs, others don't mind including it, especially if it is relevant to the case.
Profanity has become increasingly prolific in court opinions. Since 2006, the word “fuck” was quoted in approximately 445 federal appeals court opinions, according to a search of court records. That’s nearly as many as the preceding four decades combined.
While judges may have the freedom to quote profanity in an opinion, what should an attorney do in writing a brief or in oral argument? With respect to oral argument, one option is to call the court in advance and notify the court that you plan on using profanity. According to First Circuit Judge Bruce Selya, who was interviewed for the article, his court always gives permission when attorneys ask.
With respect to briefs, I think that calling the court to ask how these issues have been handled in the past is always a good option. It also doesn't hurt to do your homework and know the tenure of the court that you will appear before. Finally, ask yourself if it is truly relevant to use the profanity in the brief.
In support of the latter argument [that the Patent & Trademark Office arbitrarily enforces offensive trademarks], the team provides extensive lists of wildly offensive trademarks that the PTO has issued. Certainly many of the issued trademarks mentioned in the brief are so salacious, crass, sexist and/or racist that we hesitate, on this family-friendly blog, to list them here. Indeed, this opening brief is notable in being one of the most [not inappropriately] profanity-laden court filings we have ever seen, and is worth a look for that reason alone.
Tuesday, November 10, 2015
In a recent episode of the Legal Talk Network podcast Lawyer 2 Lawyer, hosts J. Craig Williams and Bob Ambrogi interviewed Judge Alex Kozinski from the United States Court of Appeals for The Ninth Circuit and Judge Richard Kopf from the U.S. District Court, District of Nebraska, to get the judges’ thoughts on the essential elements that go into persuasive legal writing.
If you have about half an hour, you should listen to the whole interview, available HERE via Soundcloud. If you don’t have time to listen to the whole interview, or in the meantime, here are a few of the highlights:
One interesting perspective about the quality of brief-writing that the court comes from Judge Kozinski’s recognition at roughly the 6:30 mark of the interview, where he noted that the court realizes that lawyers are busy. Judge Kozinski noted that the court recognizes that staffing and economic factors certainly play a role in the quality of the briefs submitted by attorneys, and that quality is not solely a function of the lawyers’ abilities. He noted, for example, that staffing plays a role; larger firms with larger clients with larger budgets can devote more resources, including reviewers and editors, to fine tuning and polishing briefs than a solo practitioner representing an individual without deep pockets. He noted that sometimes the quality of briefs submitted to the court are not necessarily representative of failings of the individual lawyers, but are a matter of economic feasibility. Courts recognize that, and courts have their own staff to work on the case and provide additional assistance to the court in reaching the correct result.
At roughly 5:30 into the interview, Judge Kopf advises that attorneys writing briefs try to emulate what one might read in a “really well-written newspaper.” He identifies the three key attributes of effective brief-writing as that it be simple, precise, and readable.
Simplicity is really important to Judge Kopf and, in my experience, most judges. They are busy and are always trying to focus in on the essential aspects of the case to reach a timely and accurate resolution, usually in the most direct way possible. Judge Kopf explains starting at roughly the 11:00 mark of the interview that a litigant who spends a little time narrowing in and simplifying the issue right at the outset of a brief does the court a significant favor. He compares an example wherein a litigant starts a brief by noting that it is in support of “a motion for summary judgment” with one noting that it is in support of “a motion for summary judgment, limited to the issue of qualified immunity.” Simplifying and narrowing the focus at the outset helps the court to understand immediately where the rest of the discussion is going to go.
In cases involving complex technical issues or areas of the law, simplicity obviously becomes all the more important. In class, I always stress to my students the importance of explaining the issues, the law, and the facts in the simplest and most straightforward way possible. I always tell my students that there is little risk of offending any judge by making something seem “too simple,” but there is great risk of a judge not fully understanding technical issues that are not simplified and explained. Judge Kopf echoes this thought at roughly the 30:15 mark of the interview by noting that a litigant writing a brief should “not assume [the judge is] smart.” Judge Kopf advises at roughly the 29:25 mark of the interview that a litigant writing a brief addressing a technical issue have “a real human being” read the brief before it is submitted – someone with no background in that technical area. If that person cannot understand it, the writer needs to reevaluate.
The advice of seeking review by a reader who is not technically trained in the particular subject matter of the brief was also echoed by Judge Kozinski in his final thoughts, at roughly the 31:20 mark of the interview. Judge Kozinski urged writers to ask themselves if they could explain the arguments presented in their briefs to an educated, smart person who is not an expert, in plain language. If not, the writer needs to go back and rethink the argument and rethink how to present it. As Judge Kozinski put it, “writing is thinking.”
Saturday, October 31, 2015
I am constantly stressing to my appellate advocacy students the importance of not just excellent substance in their briefs, but also the importance of complying with the court’s technical rules. There is nothing more frustrating as a legal writing professor than reading a brief that makes great legal arguments, but is so poorly formatted that the substance is lost in the technical errors.
A few days ago one of my students sent me a post by Casey C. Sullivan on FindLaw’s Strategist Blog about an attorney in Indiana who requested permission to file a corrected Table of Contents and Table of Authorities in a case before the Court of Appeals of Indiana. The court granted the request, but directed that “[n]o substantive changes . . . be made to the Amended Appellant’s Brief.”
According to the court’s opinion the new Table of Contents represented “at best, an abject failure to understand the most basic requirements of appellate briefing.” The attorney expanded the one-page Table of Contents in her first brief to a whopping thirty-seven pages in the amended brief. The Table of Authorities was expanded from four to eleven pages. The court’s opinion contains a few snippets from both tables including this gem from the Table of Authorities:
Hirsch v. Merchants Nat’l Bank & Trust Co. of Indiana, 336 N.E.2d 833 (Ind. Ct. App. 1975) (providing eight percent interest in action for breach of lease). When the parties’ contract does not provide an interest rate; therefore, the statutory interest rate of eight percent is applicable. (cited in App. 75-76) [appearing on page] 12
Unfortunately for the attorney, not even the page number in this entry was correct, as page 12 of the brief contained no case citations at all and was actually part of the Statement of Facts. According to the court, “the Table of Authorities fail[ed] at its basic and only purpose of informing us of the cases cited in the brief and directing us to where in the brief a particular case is discussed.”
The attorney’s failure to follow the rules came at a steep price—the court disregarded the entirety of both Tables—proving once again that formatting matters!
Thursday, October 15, 2015
With the Supreme Court’s new term now underway, there is likely to soon be much to discuss in the world of appellate advocacy and developments from cases heard by the Court. In the interim, I thought I’d share a handful of links for those who are in practice or in law school settings, working on drafting an appellate brief, and looking for some little tidbits concerning ways to maximize effectiveness. The following links cover a wide range of brief-writing topics and perusing them might offer some new thoughts or perspectives to increase your overall impact.
Overview of Each Section:
The Duke Law School has a helpful guide to appellate advocacy on its website that includes a table of contents and then individual sections addressing various parts of an appellate brief, including the Question Presented, the Tables, the Statement of the Case, the Argument, and the Conclusion:
Finding Your Appellate Voice:
Some Tips Regarding Your Statement of the Case / Fact Section:
Stephen V. Armstrong (Director of career Development at Wilmer, Cutler & Pickering, an international firm based in Washington, D.C. and former Director of Professional Development and Training at Paul, Weiss, Rifkind, Wharton & Garrison, a law firm based in New York City) and Timothy P. Terrell (Professor of Law at Emory University in Atlanta, Georgia, and former Director of Professional Development a the law firm of King & Spaulding in Atlanta) present tips on “Organizing Facts to Tell Stories” in the Winter 2001 edition of Perspectives:
Palmer Gene Vance II and Madonna E. Schueler (both of the firm of Stoll Keenon Ogden PLLC in Lexington, Kentucky) present “Ten Tips for Developing Your Case Theme” in the September/October edition of GPSolo, a publication of the American Bar Association:
Standard of Review:
Mike Skotnicki, an appellate attorney in Alabama, presented “The Standard of Review is the Lens Through Which You View Your Facts and Issues” on his appellate practice blog, Briefly Writing, back in January 2012:
Paragraph and Sentence Structure:
Mike Skotnicki presented “Borrowing a Fiction Writing Technique: Using Pacing by Paragraph and Sentence Length to Build to a Conclusion” on his appellate practice blog, Briefly Writing, back in March 2012:
Raymond Ward, an appellate lawyer in New Orleans, linked to articles by Stephen V. Armstrong and Timothy P. Terrell from recent issues of Perspectives, concerning “Lessons in Paragraph Building” on his blog, the (new) legal writer:
Editing to Meet Page Limits:
Lady (Legal) Writer presented a blog entry in September about “Editing to Meet Page Limits”:
If you have links to articles, blog posts, or other resources that you’ve found to be useful with tips and thoughts on ways to improve appellate brief writing, share them in the comments!