Monday, June 2, 2014
Adam Liptak has a terrific, if deeply disturbing, piece in the New York Times: Final Word on U.S. Law Isn’t: Supreme Court Keeps Editing last week.
The Supreme Court has been quietly revising its decisions years after they were issued, altering the law of the land without public notice. The revisions include “truly substantive changes in factual statements and legal reasoning,” said Richard J. Lazarus, a law professor at Harvard and the author of a new study examining the phenomenon.
The article identifies a handful of cases that received more than typographical or editing changes. While none of the changes located actually reverse the Court's decision, some certainly alter substantive comments of the Court and involve language already under discussion by the bench, bar, and legal academia. These identified changes are almost certainly only the tip of the iceberg. The NYT piece is worth reading, and hopefully Lazarus' study will make some waves.
Wednesday, May 28, 2014
In a 5-4 decision, the United States Supreme Court has just given Freddie Lee Hall another chance to live. With an IQ of 71, Mr. Hall was sentenced to death row in 1978 for the kidnap, beating, rape, and murder of a 21-year-old pregnant newlywed. Shortly after this murder, Mr. Hall and his co-defendant also killed a sheriff’s deputy. In 2002, the Supreme Court held that the execution of individuals with intellectual disabilities violates the protections of the Eighth and Fourteenth Amendments to the Constitution. Atkins v. Virginia, 536 U. S. 304, 321 (2002). Based on this decision, Mr. Hall appealed his conviction. The Florida Supreme Court affirmed his conviction holding that Mr. Hall’s 71 IQ was above the threshold mark of 70 and Mr. Hall was therefore not intellectually disabled. Now, in an opinion authored by Justice Kennedy, the U.S. Supreme Court has declared that use of such a rigid measure does not preserve the value of human dignity, and it “creates an unacceptable risk that persons with intellectual disability will be executed, and thus [it] is unconstitutional.” Hall v. Florida, 572 U. S. ____ (2014).
Tuesday, May 27, 2014
When I first began blogging, I focused on exploring category construction as a tool of appellate advocacy. Today, I want to talk about the second given: categories imply a world that contains them. It basically boils down to container logic—does the object fit within the parameters defining the category? If so, it belongs, and if not, it obviously does not belong.
The way a category is defined necessarily constructs the boundaries surrounding what belongs. Take for instance the category of planets. When I was growing up, I was taught we had nine planets in our solar system: Mercury, Venus, Earth, Mars, Jupiter, Saturn, Uranus, Neptune, and Pluto. Those nine belonged to the “world” of planets. But in 2006, astronomers declared that Pluto is no longer a planet. This change occurred because the category of planets was redefined. Pluto belonged to the world of planets when the definition did not require a planet to dominate the neighborhood around its orbit. Once the category changed to require a planet dominate its neighborhood, Pluto, whose moon is half its size, got nudged out of this world containing planets.
In terms of appellate advocacy, this principle becomes incredibly important, especially in light of the first principle that categories are made and not found. We see attorneys constantly battling over how to define the legal world applicable to a given case, and in judicial opinions we see judges struggle to define a world clearly encompassing the resolution of the case. Take for example a recent Ninth Circuit opinion, United States v. Ezeta. There the defendant successfully moved to dismiss an indictment by claiming that the defendant did not “obtain” federal financial aid as defined by the statute. The defendant claimed that “obtain” as used in the statute meant to exercise dominion and control over the financial aid, and that since the defendant had assisted other students in completing and submitting forms, he had not exercised dominion and control over the funds in violation of the statute.
On appeal, the Ninth Circuit reasoned that the category of “obtain” as adopted by the district court defined a world that was far too narrow. In a relatively straightforward statutory analysis, the Ninth Circuit defined a world around the meaning of “obtain” to include procurement on behalf of someone else. In so doing, the Court created a world large enough to encompass the acts committed by Mr. Ezeta, and his case has now been remanded for prosecution in District Court.
As advocates, attorneys must constantly assess the boundaries of the world surrounding legal disputes. This principle that categories imply a world that contains them provides appellate attorneys the creative power to identify existing categories and imagine better ones for solving legal disputes.
Friday, May 23, 2014
Almost a month ago, Legal Ethics Forum mentioned an AP story out of Washington about The Center for Public Integrity's conflict check on the federal appellate courts. CPI examined the last three years of financial disclosure reports of federal appellate judges and the federal appellate cases before each judge. The review found twenty-six cases involving sixteen judges where the a judge had a financial interest in one of the parties or in a law firm appearing before court. Such a small number of cases in the large volume of appeals suggests a reasonably functioning screening system, but even this small number of conflicts calls into question the outcomes in those cases and threatens the public perception of the judiciary as unbiased.
CPI notes that all sixteen judges have now informed the litigants in these cases of the conflict. Litigants whose cases are still pending have some chance at relief, recusal and perhaps a substitute judge added to their panel. Litigants whose cases are closed may have a tougher time of things. Those still in the window for en banc review may seek that rare remedy and getting the Supreme Court to review the cases seems even more remote.
Relatedly, our sister blog, the Civil Procedure and Federal Courts Blog, posted yesterday that the National Law Journal has issued a Special Report on Judicial Transparency and made available in digital format the 2012 disclosure statements of 257 federal appellate judges. Having this data publicly available increases the opportunity for the kind of conflict checking done by CPI as well as allowing for a scholarly or journalistic examination of judges' extra-judicial income. Of course, it also allows for the all-too-human poking our noses into other people's business, should anyone be interested in doing that.
Sunday, May 18, 2014
Friday, May 16, 2014
Last month, I posted a graphic that challenges laypersons to critically assess the social science evidence they cite. As lawyers, we have our own research methods, testing primary sources through syllogistic and analogistic reasoning, among others. Few of us without advanced degrees in other fields apply any of our liberal arts training in scientific methods to our practice.
As appellate lawyers, we are nearly always limited to scientific evidence admitted at trial, but in very special circumstances, we may see an opportunity to use "Brandeis" evidence in socially charged cases. You may be as surprised as I was to learn that even Louis Brandeis himself has been critiqued in recent years over the use of questionable studies in his famous brief from Muller v. Oregon.
In order to use social science research--or any science research--ethically and soundly, lawyers should educate themselves about the scientific method, the various forms of research, and common pitfalls. The same concern applies to appellate advocates who handle cases with a good deal of social or "hard" science evidence introduced at trial. It is all too easy to draw unsupported arguments from research that was not intended to provide conclusive proof. And as the opposing party, even if the trial counsel and experts did not see every chance to expose flaws in the opponent's research-based testimony, appellate counsel may be able to clarify the problems for the higher court.
When examining methodology, it helps to understand the differences between qualitative and quantitative study. Very generally speaking, qualitative research tends to work with smaller samples and to study topics where there is no possible "right" answer due to subjectivity in culture, gender, class, etc. Quantitative research tends to work with much larger sample sizes and with questions that better lend themselves to objective measurement. As you might guess, many studies work with hybrids of the two forms, and each type has several sub-categories of research methods. Finally, before dismissing the use of qualitative research in legal cases, keep in mind that just because a large, statistically valid quantitative study does not exist to support a client's position does not mean that other forms of research are unpersuasive. And conversely, just because qualitative studies deal with objective conclusions and statistical samples does not mean that they do not have a number of pitfalls of their own. Several of them are mentioned in last month's graphic.
Last week I posted about Savannah High School’s moot court reenactment of the Brown v. Board case. After participating in that event as a judge, I became curious about whether other high schools participated in appellate advocacy training. Of course, high school debate and mock trial are pretty common, but I had not yet seen any high school programs that focused on appellate advocacy.
In my research, I came to discover that American University Washington College of Law hosts an annual high school moot court competition. In preparation for competition, high school students study a problem comprised of judicial opinions, the party briefs, case law, and articles. Over the course of two days in the Spring, students present oral arguments on the issues presented by the moot court problem. The competition is open to all students, even those who are home schooled, and there is no requirement of prior experience with moot court or mock trial.
This type of program is positioned to impart a number of skills upon the students. Aside from the obvious ones like poise and public speaking, the studying of cases and defending a position through oral expository argument engages the brain in sophisticated problem-solving thought processes. Furthermore, asking young students to contemplate social justice issues and policy concerns in the context of legal precedent creates opportunities to ignite passion for the law and respect for its power.
I know many attorneys and academics seek opportunities to give back to their communities. Partnering with a high school to train students for appellate advocacy is an excellent way to give back by passing along attorney-specific knowledge to a younger generation.
Monday, May 12, 2014
Last week I blogged about who should teach appellate advocacy. A commenter on the post led me to think a little more about the topic and, more specifically, how we should be teaching appellate advocacy. The commenter referenced his concern regarding new associates who have no knowledge about syllogistic (deductive) reasoning. While this is certainly, or at least should be, a staple of legal education, should we expect appellate advocacy professors to teach this or should this be left to the first year learning extrapolated from legal writing/process classes? While some modicum can certainly be taught in appellate advocacy, I believe the vast majority of teaching relative to this way of thinking and writing should be left with the legal writing curriculum and not the advanced appellate advocacy courses.
On a related note, since appellate advocacy is not a bar course and relieves the professor of the need to teach with an eye towards a future substantive examination, should appellate advocacy professors be more concerned about teaching appellate advocacy skills for law practice readiness or should the teaching be geared towards moot court readiness? Is there really a difference? I am not sure there is a major difference.
While some might posit that moot court is merely a glorified beauty pageant, students do learn valuable skills. They learn about decorum before the bench, effectively dealing with both hostile and docile judges, professionalism in dealing with opposing counsel, and most importantly they gain additional experience writing a brief and arguing on both sides of the issue - a task that prevents getting tunnel vision and keeping an eye towards seeing both the strengths and weaknesses of both sides of the issue(s). Yes it is a little odd that moot court neatly provides two issues so that two advocates can argue on each side (I have argued many appeals in the real world and I have never been exposed to a tag-team approach to oral advocacy), but beyond that it seems to me that the learning extrapolated and the similarities between moot court and real appellate advocacy outweighs the differences.
I also believe students are better served being taught from the perspective of advocacy before appellate courts rather than the Supreme Court. After all, many practitioners will eventually argue before either a state or federal appellate court, whereas very few get the glory of arguing before the highest court in their state or this country. Lastly, although it is preferable that professors err on the side of focusing their teaching on getting students prepared for the real-world practice of appellate advocacy, students taught more from a 'lets prepare to win at moot court' angle should not be severely disadvantaged.
What do you think?
In response to a commenter, I am posting a link to Judge Kozinski's article. He does not have a favorable opinion of moot court. For your viewing pleasure or horror (video production value is not one of my strengths), I am also posting a video blog (vlog) I did early last year which, in part, takes issue with Judge Kozinski's view.
Thursday, May 8, 2014
Sometimes I wonder about this question. After all, there seems to be several approaches. While many would agree that primarily doctrinal professor generally are not best suited for the task, either due to a lack of interest or lack of expertise or a combination of both, what about the other camps? Should it be taught by a clinician? An adjunct? A legal writing professor? Which type of professor would be best?
Clinical professors, focus on experiential learning, and appellate advocacy does fit the bill. This is especially true when thinking about preparing students for oral argument. The experience preparing for an presenting an oral argument before a panel of (mock or real) judges is an invaluable academic experience. Clinical professors with legal backgrounds doing appellate advocacy work are assets in this capacity.
But preparing for oral argument is only a portion of the course. In some instances, such as at my law school, the oral argument portion is only 1/3rd of the course, with the other 2/3rds being focused on writing both an appellate and an appellee brief. And best practices for writing briefs falls squarely within the wheelhouse of legal writing professors. Many of the legal writing professors I know also have some law practice experience, but is it plausible to assume they have some experience making oral presentations in court, and especially in appellate courtrooms? These professors are excellent writers, but are they skilled oralists as well? I am sure it is a case-by-case scenario.
And then we have adjunct professors. While in some ways an adjunct seems the perfect fit, in other ways I question it. A lawyer immersed in appellate advocacy would be a wonderful resource for students. Thinking logically, it might be best to learn from someone presently doing the work, from both a brief writing and oral argument capacity. However, as a former adjunct myself, one challenge is always availability for students after class. Law practices are demanding, and appellate advocacy students can be some of the most time-demanding students. A lot of hand-holding takes place when considering individual conferences to discuss drafts submitted for both briefs, meetings to discuss grades on final drafts submitted, and even more meetings and conferences to prepare the students for the nerve-racking oral arguments. Do adjuncts have the time to devote to this? If they do not, the student experience will surely suffer.
Perhaps more importantly, will (or should) adjuncts stay true to the stylistic best practices of briefs? It is easy to learn the shortcuts in brief writing that specific courts and judges will allow once you have been practicing for awhile. It is easy to pass these tricks and tips off to students either consciously or subconsciously. But not knowing whether the student will be practicing in the same jurisdiction upon graduation might hamper the student, because an allowable shortcut in one jurisdiction (i.e. no need for formal a formal introduction during oral argument, or no need to file an appendix or table of authorities outlined which page each case cited appears in the brief), might become a death knell to the brief or oral argument in another.
I see pros and cons to each approach. Inevitably this brings me back to my question: who should teach appellate advocacy?
Tuesday, May 6, 2014
I was recently asked to participate as a judge in a high school “moot trial” competition amongst three of our local high schools. I was intrigued by the notion of a high school “moot trial,” so I of course began asking questions about the event.
It turns out the students had been studying Brown v. Board of Education, and our local Board of Education wanted to host a capstone event to celebrate that study. What they really wanted was to host a debate on the issues in Brown, and I think they really meant moot court, not moot trial. While it was a good idea, the implementation became problematic as the organizers, who were not lawyers, could not understand the full vision or magnitude of the task assigned to the students. After some conversation with me and other professors, however, the vision narrowed to a more manageable scope for the students. In the end, the students basically reconstructed the oral arguments from Brown and delivered them in a moot court style.
I have to admit, I was skeptical going in about the ability of the students to grasp the issues without having had any formal guidance or legal training. The students, however, were nothing short of amazing. Don’t get me wrong—they aren’t ready to argue at the Supreme Court, but these students showed great potential as blossoming appellate advocates. They were poised, confident, thoughtful, and prepared. Until hearing them, I would have thought it unproductive to use Supreme Court precedent in this fashion at the high school level. Surely high schoolers are not open to learning about important historical developments in our law through the reading of the actual cases and briefs, right? Now, though, I see a number of opportunities for awakening social justice issues by engaging in brief studies of major Supreme Court decisions, and I think the context of the cases and briefs is exactly what the students need to stimulate a desire to learn and understand the issues of the day.
Wednesday, April 30, 2014
Oral arguments in Riley v. California and United States v. Wurie have revived the discussion about the future of cellphone searches by law enforcement. Amy Howe over at SCOTUSblog has an excellent plain English summary of the arguments.
In a pair of posts last fall (here and here), I discussed examining the issue with my Advanced Appellate Advocacy class. These cases present a question of when law enforcement may search a cellphone seized at the time of arrest without seeking a warrant. I noted then that one way to conceptualize the debate is to attempt to categorize the cellphone as either an "item associated with the arrestee" (which may be freely searched) or merely an "item within the arrestee's control" (which may be searched only with some justification). The government in these cases, particularly Wurie, seemed to employ a bright-line classification argument. That is, the government proposed that a cellphone in the possession of an arrestee should be classified as an "item immediately associated with the arrestee," similar to a wallet or pager, and, therefore, subject to search without limitation. The litigation history at that time suggested the government pushed hard for this classification with very little attention devoted to a fallback or alternative argument. This was in contrast to the defense approach, again, particularaly in Wurie's appellate briefing, of providing alternative arguments for rejecting cellphone searches.
The recap at SCOTUSblog suggests that the Justices did not seem inclined to credit either party's categorical classification argument. Instead, they seemed to be searching for a logical way to draw a line between a permissible and impermissible search. As Howe explains:
Given the lack of support for either bright-line rule, it comes as no surprise that the Justices spent a good chunk of the two hours today mulling over a possible middle ground. But here too there wasn’t much in the way of consensus, as the Court struggled to find a compromise that would genuinely protect privacy.
While the pull of a strict categorical approach is strong, (it was especially strong for my students as new advocates), judges concerned with practical application and balancing the interests often seek out some middle ground. This is even more true in areas of the law concerned with balancing interests, such as the Fourth Amendment's reasonable search arena. Ultimately, the Court in Riley and Wurie will have to find that consensus position, even if it did not find it among the advocates' arguments yesterday.
Photo Credit: Adrian Clark
Tuesday, April 29, 2014
At the beginning of this month, I blogged about the 5th Circuit's Texas decision - applauded by some as responsibly upholding legislation that supports women's health and criticized by others concerned that it will cause an undue burden on access to abortions and possibly hinder health by causing some women to dangerously take matters into their own hands. Here we are at the end of the month and the 5th Circuit is once again facing the same issue. However, this time it may answer some questions left unanswered in the prior case.
While the prior case upheld the legislation requiring abortion clinics to have admitting privileges at a hospital, it also held that the issue of undue burden was not ripe for consideration; after all, there still exists multiple options for abortions throughout the state. However, the state of Mississippi is down to only one abortion clinic. Surely this fact was discussed during oral arguments yesterday. When you couple the lack of access to clinics, especially if this last clinic is forced to close, with the concern raised in the Texas case that allowing hospitals to have control over providing admitting privileges to abortion clinic practitioners might effectively kill off all abortion clinics, it is clear to see the dilemma. Jackson Women's Health Organization, the clinic in question, has stated that it has requested, and been denied, admitting privileges by thirteen different medical facilities. Similar laws are being pushied in Louisiana, Oklahoma and Alabama, causing at least one media outlet to question if this is the beginning of end of abortion access in the South.
Of note, this is a different three judge panel than the one presiding over the Texas case. I suspect SCOTUS will eventually be weighing in on this debate.
Friday, April 25, 2014
One long-running debate in our field is how much appellate lawyers can use non-record social science evidence in their briefs. While there may be a little wiggle room, it's best to be extremely cautious when testing judges' patience. Poor research can harm an attorney's reputation and also lead to a restriction of that little big of wiggle room we have to help build a stronger case theory through social science "evidence." Appellate attorneys should take care to make sure they are using sound, widely accepted research.
I'll be posting more on this over the next several days, but in the meantime, even if it's been a long time science your last college science class, a great place to get your quick refresher is this handy, full-sheet PDF graphic by Compound Interest.
Hat tip: Lifehacker
A postscript: The blog's been quiet for several days but we are still here. Our host, TypePad, faced several hacker attacks last week. Fortunately, things seem to be humming again.
Tuesday, April 15, 2014
Joan Steinman, Distinguished Professor of Law at Chicago-Kent School of Law, posted a piece on SSRN: The Puzzling Appeal of Summary Judgment Denials: When are Such Denials Reviewable? Steinman is a co-author of the excellent text, Appellate Courts, Structures, Functions, Processes and Personnel (2d ed. & 2009 Supp.). In this article, she examines the fractured state of the law regarding appeals of summary judgment denials, in particular those appeals brought after a trial and final judgment. She identifies both inter-circuit and intra-circuit splits on the appealability of such denials and some confusion over which types of denials are appealable. She notes that the U.S. Supreme Court weighed in on the issue in dicta in Jordan v. Ortiz, 131 S.Ct. 884 (2011), but argues that:
the Court’s approach was off-the-cuff, its thought process superficial and in some respects flatly in error, and its dicta seriously misguided, with the result that the intermediate federal courts of appeals were left in a quandary over whether to follow the dicta. An additional layer of splits among the circuits resulted. Few legal scholars have made a foray into this morass.
Steinman wades into the morass and offers observations, criticism, and a proposed approach to summary judgment appeals. This thoughtful piece is recommended to trial and appellate advocates alike.
Sunday, April 13, 2014
As a follow-up to yesterday's post, another presenter at the Black Lung CLE was Judge William S. Colwell, a lifetime appointed federal Associate Chief Judge with the U.S. Department of Labor. Judge Colwell shared the following advice to advocates:
- Read and "follow" all court orders
- Comply with evidence deadlines and resolve issues with other party
- When submitting a large amount of records, paginate and identify the relevant portions
- Briefs should cite to specific document(s) and page(s)
- Be careful not to focus too much on the law to the detriment of specific fact analysis
- Better briefs identify critical evidence and distinguish contrary evidence
- Deal with unfavorable evidence; this is your chance to shape the case
- Use pinpoint cites
- Don't wait until the last minute to file motions or present surprise issues
- Don't present issues if you lack the evidence to support them
- If it is an elements test, have proof available for "all" elements
- Don't put cases in briefs that have been overruled
- Avoid multiple continuance requests
- Avoid requests for post-hearing submissions if possible, as it shows lack of preparation
- Don't over-paper the case
While I am sure most of you are aware of these tidbits for effective advocacy, a friendly reminder is always helpful!
Saturday, April 12, 2014
Appellate advocates, and attorneys in general, need to be mindful that while it is important to know the jargon and "shop speak" relative to your client's industry, it might not be apropos to utilize this jargon in written and oral advocacy before the court. If jargon must be used, the attorney should define key terms and generally educate the judge about them.
The 7th Circuit Court in Consolidated Coal Co. v. Director, OWCP reminded counsel of this issue in its 2013 decision when it stated "we take this opportunity to remind lawyers that federal judges are generalists who are not necessarily familiar with the industry-specific jargon that lards the briefs in this case (732 F.3d 723). The judge went on to explain that lawyers should not assume they are knowledgeable about every area of law. Using phrases like "working at the tipple", "drove a gob truck", and "on the dragline" only serve to confuse the bench and make the issue(s) convoluted.
How many of you readers know what these terms mean? Unless you work in the coal industry you probably do not. The judge doesn't work in the coal industry either. Remember that you are the expert and you are expected to know the area of law better than the judge. The best advocate is usually the one who not only knows the law and the relevant industry but is also the best at explaining it in such a way that the adjudicator (be it the judge or jury) can understand.
Hat tip to attorney and appellate advocate Ryan Gilligan for sharing this case at a Black Lung CLE presentation today.
Tuesday, April 8, 2014
Like all jargon, our profession uses some words and phrases so much (and so traditionally), that we often don’t stop to think about their origins. Here are a few examples from The Party of the First Part by Adam Freedman (Henry Holt & Co. 2007). Freedman demonstrates that most are also legalese.
Boilerplate: The most prevalent story has it that the word is a newspaper term dating back to the time when typesetters had to use metal plates, and kept standard material on permanent plates.
Further affiant sayeth naught: Freedman cautions that incorrectly modernizing the archaic “naught” to “not” results in a slightly more negative meaning. Because “naught” means nothing, as opposed to “does not” or “will not,” I suppose he means that it sounds like the witness is refusing to testify further, rather than merely stopping at that point.
Indenture: This word sometimes appears at the top of contracts, but for no good reason; it used to mark the spot where notches in the paper would be cut to show that copies had been executed at the same time and were true copies.
Know all men by these presents: the “presents” refers to the Latin presens scriptum, or “these writings.”
“ss.” (in the venue header for affidavits). No one seems to be able to claim for certain what “ss.” stands for anymore, although it’s been posited that it comes from the Latin scilicet, or “one may know.” Apparently, when read aloud, it is read in English as “to wit.”
Subpoena: If you studied Latin, you may already know that this word literally means “under penalty.”
Freedman’s entertaining book also contains chapters on jargon from various doctrinal fields, such as Torts, as well as a history of the debate between plain legal English advocates and their moral enemies, the “Precision school.”
Sunday, April 6, 2014
Congratulations to the following teams for doing well in recent 2014 competitions. The students deserve a lot of praise for taking extra time to hone their oral and written advocacy skills. Their coaches also deserve a lot of kudos for taking the time to work with the students, often simply for the love of it and without any compensation or praise.
Elon University Billings, Exum & Frye National Constitutional Law Competitions
Champion: Southwestern Law School
Runner-up: Florida Coastal School of Law
Best Briefs: Petitioner - Regent University, Respondent - Southwestern
Best Oral Advocate: Kathy Spurlock, Florida Coastal
Albany Law School Gabrielli National Family Law Competition
Champion: University of Mississippi School of Law
Runner-up: Seton Hall School of Law
Best Brief: Seton Hall
Best Oral Advocate: Shannon Daugherty - Brooklyn Law School
National Native American Law Student Association Moot Court Competition
Champion: William & Mitchell
Runner-up: University of Hawaii
Best Brief: William & Mitchell
Best Oral Advocate: Andy Casey - University of Oklahoma
Capital University National Child Welare & Adoption Moot Court Competition
Champion: Florida Coastal School of Law
Runner-up: Loyola University Chicago School of Law
Best Brief: Loyola University Chicago
Best Oral Advocate: Jordan Griffin - Charlotte School of Law
St John's University Duberstein Bankruptcy Moot Court Competition
Champion: Georgia State University College of Law
Runner-up: Mississippi College School of Law
Best Brief: University of Memphis School of Law
Best Oral Advocate: Jennifer D'Augustinis - Florida Coastal School of Law
Wednesday, April 2, 2014
As readers have probably already determined, I have a particular interest in orality and oral argument. Two recent items caught my attention and seemed worth sharing. First, Listen Like a Lawyer, an excellent blog about a important skill that receives far too little attention, had a post Oral Argument as an Improvised Conversation. It takes the common bromide that advocates should think of oral argument as a conversation with the bench. That leads the author to two inquiries. First, "how can it be an authentic conversation when the power dynamics are so skewed toward the judges and when the attorney is ethically bound to advocate for the client?" This is worth exploring further. Second, if we accept that oral argument is a conversation, albeit one with skewed power dynamics, are there lessons oral advocates can learn from modern sales practices? The blog post and the monograph it examines certainly think so.
Second, PrawfsBlawg had an April 1 post, Orality in Litigation, suggesting The Reappearing Judge (forthcoming in Kansas Law Review) by Steve Gensler (Oklahoma) and U.S. District Judge Lee Rosenthal, which proposes greater contact between trial judges and attorneys. Having documented (and bemoaned) the decline of oral argument at the appellate level, I'm obviously a very receptive audience for these authors. Gensler and Rosenthal offer some excellent ideas about the benefits, obvious and subtle, of increased (or as they call it "reappearing") judicial involvement in real-time, face-to-face meetings with attorneys.