Appellate Advocacy Blog

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

Monday, October 16, 2017

The Perils of Statutory Interpretation

As someone who has taught legislation and appellate advocacy and worked for both a state legislature and the U.S. Senate, I love a good statutory interpretation case.  Seeing how the advocates and judges approach the statutory text and the legislative intent is always enlightening.  And, the cases can be quite entertaining.  There are some great Supreme Court cases on statutory interpretation, including the famous discussion regarding whether a tomato is a fruit. 

Just last week, a very divided Washington Supreme Court decided a critical issue of statutory interpretation--is a riding lawn mower a motor vehicle under Washington's motor vehicle theft statute?  In 2015, a Washington state resident allegedly attempted to steal a riding lawn mower. He was initially held on theft and criminal trespass charges.  While he was charged with those crimes, he was also was charged with the more serious crime of motor vehicle theft. Naturally, he argued that a riding lawn mower is not a motor vehicle under the statute.  The trial court and intermediate appellate court agreed.  By a 6-3 vote the Washington State Supreme Court affirmed, but in doing so divided sharply on its reasoning and demonstrated the deep divides among judges on how best to interpret statutes.

The lead opinion, which represented the views of three justices on the Court, noted that the motor vehicle theft statute did not define the term "motor vehicle."  Therefore, the justices looked to the dictionary definition of the term, which "could conceivably include riding lawn mowers."  However, because "the legislature . . . explicitly indicated a contrary legislative intent," the Court found that a riding lawn mower was not a motor vehicle for purposes of the statute.

The three concurring justices agreed with the result, but disagreed with the analysis in the lead opinion.  The concurring justices emphasized the need to follow the plain language of the statute if it was unambiguous.  However, they found the term "motor vehicle" in the statute to be ambiguous. In my favorite part of this analysis the concurring justices note, " a riding lawn mower would not meet the definition of a vehicle because it is not the sort of object generally operating on public roads. But see The Straight Story (Walt Disney Pictures 1999)." For those unfamiliar with that particular Disney movie, according to IMDb the movie is about "[a]n old man [who] makes a long journey by lawnmower to mend his relationship with an ill brother." Apparently, the movie has great reviews.  However, this was not enough to render the provision unambiguous.  Thus, the concurring justices turned to the legislative intent.  They agreed with the lead opinion that the legislature did not intent for the motor vehicle theft statute to apply to riding lawn mowers.

In dissent, three justices agreed with the lead opinion that "'a plain reading of the term ['motor vehicle'] could conceivably include a riding lawn mower.'"  Because "it is not inconceivable for the legislature to have intended this result," the dissent would have applied that plain meaning and left it up to the prosecutor to ascertain if a lesser charge should have been filed.

The relatively short opinions provide excellent teaching tools on statutory interpretation.  They clearly set out the legal and policy concerns that are frequently invoked in these types of cases and can serve to remind us that in writing a brief on a statutory interpretation issue we must consider all three approaches, or at least be aware of what approaches the judges in our jurisdiction take.

 

October 16, 2017 | Permalink | Comments (0)

Saturday, October 14, 2017

Editing Alchemy

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Have you heard the secret to being a brilliant writer—appellate or otherwise? Because there is one. An ancient trick used by all the greats, from Justice Kagan to Stephen King. Use this device, and your writing will improve tenfold overnight. And it’s so simple: just edit well. That’s it. Learn to edit well and your writing will be better than you thought possible.

Now, let me be clear: I’m not talking about the quick proofread you do before sending a motion to the partner. I’m not talking about your 5-minute scan for typos, or your last-minute cite-check. I’m talking about strategic, measured, science-based editing. 

Before we get to the how, let’s talk about the why. Psychology tells us a lot about why you might not be editing right. One insight is that our mind is easily overwhelmed when we try to do too much at once. And that counts for editing, too. So if you try to edit for too much, too fast, your “working memory” gets overloaded and you miss things. You need a strategy for breaking up your editing into chunks, or phases, to make sure that you get all the important stuff in.

Another insight from the world of psychology is that we know more about good writing in the abstract than we ever put into practice. For example, studies show that incoming 1Ls know a good deal about grammar rules—but that they fail to incorporate much of this knowledge in their writing projects. Lawyers are no different. So you need a strategy for taking these writing tools that you know in theory (or will pick up in the future) and incorporating them into everyday writing habits that you will actually use.

Finally, let’s talk about bias. You’re biased; I’m biased; we’re all biased. The best you can do is become aware of your biases and use some strategies to counter them. Two biases that plague us lawyers are advocacy bias and what I call trench bias. Advocacy bias you probably know: it’s that growing certainty that your client, or your position, is right. That inability to see the value in the other side’s arguments. This sort of bias is insidious, and you must counter it to be a good lawyer.

Trench bias can be just as bad: it’s the bias you get when you’re fighting in the trenches and lose sight of the battlefield. It’s the bias that comes from being steeped in the same case, the same facts, the same law for months. With this bias in force, your writing is full of jargon. You forget to give your reader enough context or background so that they understand where you are and where you’re going. Even the best lawyers struggle with this.   

To sum up: (1) you need to force yourself to break editing sessions into manageable chunks; (2) you need to not merely learn new writing moves, you need to turn them into habit; and (3) you need to counter your biases. I have good news. With a few simple editing habits, you can handle these challenges and more.

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First, check the box. 

If you want to edit well, checklists are a must. Good writers edit for tons of writing moves before they send a document out the door. Not just the easy ones, like passive voice—but things like transitions, sentence balance, sentence length, concrete verbs, and much, much more. There is simply no way to track all of this without a checklist. Especially when you pick up new writing moves. Say you’re reading a brief and say to yourself “Wow! I love the way he uses short, pithy sentences to end his sections.” Now fast-forward a week later. You’re working late on a brief. You’re stressed and tired. Do you think you’ll remember to try out that new short-sentence idea? Probably not. But if you put it on a checklist that you run through before finalizing your document, you will.

And when you create your checklist, make sure that you separate your editing into multiple phases. Again, trying to edit for too many things simultaneously isn’t manageable. So edit for a handful of moves at each sitting. Perhaps on your first edit look for substantive problems such as a fact you forgot to explain or an unsupported rule. On your next editing round, you can hit big-picture style points such as ensuring you have roadmaps and transitions. The order doesn’t really matter; what matters is that you are breaking up your editing into manageable bites.

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Second, resist the urge to purge

We all want to push a document out of our mind when we finish a first (or fifth) draft—resist the urge! Get in the habit of leaving your writing for a couple days (or whatever you can manage) and coming back to it later. There is simply no other way to get out of the trench bias and see your writing with fresh eyes. Accountability partners are great for this: wrap up a document and send it to a friend, asking them to take a look and send it back to you in a couple days for your next edit. 

 

Editor

Third, use others to get that “fresh-reader” feel.

No checklist can spot everything, though. So find some good writers to be your editing buddies. And I suggest you have them edit for you in a particular way, what I call “one-read” editing. The quality of editors varies, and good chance you won’t agree with many of their recommendations. Not to mention that many an office friendship has been lost over editing quarrels. So instead of asking for substantive or style edits, tell them to put a star next to any (1) word, (2) sentence, or (3) paragraph that they had to read more than once.

This will give you a true snapshot of your document’s readability. With the road bumps identified, you can now use your own writing tools to smooth them over.

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Finally, discover your own editing likes.

Great writers all have their own editing tricks, and you might find that some of them work for you, too. Stephen King suggests that you vomit out a first draft without self-editing much, so you can stay focused on the content. Many writers swear by reading drafts out loud and editing their writing in paper form. Some warm up by typing out a few sentences from their favorite authors. A couple studies showed that setting aside time to practice editing helps (either on your own past work or on any writing you can find). Insightful technology tools can help you edit better, too, like Grammarly and Hemingway App.

And I think just about every writer would tell you that it’s essential to find good writing mentors to edit your work so that you can learn from their technique. But most important: just get out there and edit.  

I am an adjunct professor of law at Loyola University School of Law, Chicago and an attorney at the firm of Sidley Austin, LLP. The views I express are solely my own and are not intended to be legal advice. 

October 14, 2017 in Appellate Advocacy, Appellate Practice, Legal Writing | Permalink | Comments (0)

Friday, October 13, 2017

Appellate Advocacy Blog Weekly Roundup October 13, 2017

The weekly roundup image

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

 

Supreme Court News and Tidbits:

Here are a couple of interesting things that happened this week.

 

  • On Tuesday, October 11, 2017, the Supreme Court dismissed a pending challenge to President Trump’s controversial travel ban.  The Court found that the issue was moot because an earlier version of the travel ban had expired and had been replaced with a newer version. Click here for the article in the ABA Journal. Click here for the Court’s order. 

 

Federal Courts and Opinions of Note:

In Teixeira v. County of Alameda, the Ninth Circuit held that gun sellers do not have a constitutional right to sell guns, and the government could impose restrictions on gun sellers without violating the Second Amendment.

 

Appellate Practice Tips and Tools:

What should you do when you experience burnout? Find out by reading the article shared by the Austin Bar Association.

October 13, 2017 | Permalink | Comments (0)

Thursday, October 12, 2017

Thinking Thursdays: The downsides of maintaining a citation fetish

 

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

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

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

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

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

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

 

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

Friday, October 6, 2017

Appellate Advocacy Blog Weekly Roundup October 6, 2017

The weekly roundup image

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

 

Supreme Court News and Tidbits:

There is never a dull moment in the United States Supreme Court. Here are a few interesting things that happened this week.

  • The new term is in full swing, and one of the cases heard by the Supreme Court, Gill v. Whitford, has dominated legal and political discussions because of the case’s potential to reshape politics. 

 

  • On Monday, the Wall Street Journal published an article that did an excellent job of explaining the background of Gill v. Whitford and gerrymandering. The article provides context for, and explains the issue before the Court. It’s worth a read. 

 

  • On Tuesday, the Supreme Court heard oral arguments in Gill v. Whitford,  which can be heard here. After listening to the arguments, head over to the SCOTUSblog where Amy Howe posted an analysis of the oral arguments.

 

  • In non-gerrymandering Supreme Court news, Scalia Speaks, an anthology of the late Justice Antonin Scalia’s speeches on various topics, has been released. In a segment on NPR, Scalia Speaks  is described as a collection of speeches that provide a “fuller picture” of Justice Scalia.  The NPR segment can be found here.

 

Federal Courts and Opinions of Note:

This week, in Hernandez v. Sessions, the Ninth Circuit Court of Appeals held judges must consider a detainee’s ability to pay when setting bail in immigration court. 

 

Appellate Practice Tips and Tools:

People have strong opinions regarding serial commas. To continue the debate regarding the use of serial commas, on Wednesday, LexisNexis retweeted an article from the DC Bar, which attempted to make a case for using the serial comma for clarity.

October 6, 2017 | Permalink | Comments (0)

Thursday, October 5, 2017

A Remedy for Mistakes at Oral Argument

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

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

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

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

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

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

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

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

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

....

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

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

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

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

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

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

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

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

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

Wednesday, October 4, 2017

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

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

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

Here's the whole thing. Start scrolling:

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(Hat tip: Josh Blackman & Adam Feldman)

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

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

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

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

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

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

Monday, October 2, 2017

First Monday

Happy first Monday!  Today kicks off the start of the Supreme Court's term.  The term last year was something of a snooze-fest as we all waited for the presidential election and the nomination of Justice Scalia's successor on the Court.  This term will likely be much more exciting with union dues, religious liberty, immigration, and sports gambling on the Court's agenda.  Check out this NY Times article and this Washington Examiner article for summaries of some of the key cases.

First Monday also means the start of the FantasySCOTUS season.  By this point, you have an idea of how your Fantasy Football season is going.  Maybe your key draft picks have been injured or just aren't playing up to expectations. Well, it is time to cut your losses and focus on FantasySCOTUS! Created by Professor Josh Blackman and now run by LexPredict, FantasySCOTUS allows anyone to predict how the cases before the Supreme Court will be decided.  User predict how individual justices will vote on cases, as well as the how the case will ultimately be decided.

I have used FantasySCOTUS as a teaching tool in the past, offering incentives for my students to participate in the contest and stay current on what the Court is doing.  The program allows you to create your own league, or you can participate in a law school specific league. There are even prizes for the top predictors! FantasySCOTUS also features {MARSHALL}+, a "revolutionary algorithim that can accurately predict Supreme Court cases."  Created by LexPredict, "{Marshall}+ was able to predict every case decided since 1953 at 70% accuracy."

Although my Fantasy Football team seems to be doing pretty good for the first time in years, I look forward to seeing how my FantasySCOTUS predictions go this term.  Good luck to all of the participants.

October 2, 2017 in Current Affairs, Oral Argument, Sports, United States Supreme Court | Permalink | Comments (0)

Sunday, October 1, 2017

Hello Judge, it's me, Lawyer

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

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

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

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

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

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

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

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

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

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

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

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

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

Friday, September 29, 2017

Appellate Advocacy Blog Weekly Roundup September 29, 2017

WeeklyRoundupGraphic

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

 Supreme Court News and Tidbits:

The new term is getting underway for SCOTUS, which has brought about a fair amount of news and other tidbits of information that might be of interest regarding the Court.  Here are a few of the things that crossed our desk this week:

  • Neal Katyal had a Twitter thread this week discussing what SCOTUS "does" and how it works.  See the thread HERE.
  • Penn Law recently hosted a panel discussion about upcoming SCOTUS cases.  See more information HERE.
  • SCOTUSblog had a post this week discussing the September 25 "long conference" and expectations about grants of certiorari that would come from it.

With regard to upcoming cases that the Court will hear this week, there was an influx of discussion early in the week about the Trump Administration's immigration order (often referred to as the "travel ban" case).  On Monday, the Court entered an order removing the then-pending case from the argument calendar and ordering additional briefing on the question of mootness after the Trump Administration entered a revised order.  NPR included a segment this week discussing that removal and briefing order, and Bloomberg reviewed the new order and discussed how it might be viewed by appellate courts, including the Supreme Court potentially upholding it as Constitutional.

Federal Courts and Opinions of Note:

This week, in Doe v. University of Cincinnati, the Sixth Circuit Court of Appeals affirmed a district court order granting a preliminary injunction barring the University from suspending a student accused of sexually assaulting another student, on the basis of Due Process.

Appellate Practice Tips and Tools:

Finally, we saw some great resources to help with your appellate practice. Here are the best ones to cross our desk this week:

September 29, 2017 | Permalink | Comments (0)

Thursday, September 28, 2017

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

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

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

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

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

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

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

Tuesday, September 26, 2017

#TwitterTuesday--#NationalPunctuationDay

TwitterTuesdays

Sandwiched between Checkers Day and Comic Book Day, September 24 marks the all important holiday--National Punctuation Day.  For #TwitterTuesday today, we are featuring some great grammar twitter resources to ensure that your appellate briefs and the love notes that you might write today, Love Note Day, are free of grammar mistakes.

Mignon Fogarty (@GrammarGirl). Grammar Girl is one of my favorite grammar resources.  Her explanations are spot on and easy to understand.  Her twitter feed is great too (and current).  On Sunday, in the midst of the NFL protests, she tweeted on "kneeled" v. "knelt."

Grammarly (@Grammarly) is another great grammar and writing resource. Grammarly has a great website and offers a Chrome extension to help you spot grammar mistakes in your online writing.

Grammar Monkeys (@GrammarMonkeys). The news editors at The Wichita (Kansas) Eagle tweet about grammar and language tips at Grammar Monkeys. They also have some great retweets on new words and various spelling mistakes.

September 26, 2017 | Permalink | Comments (0)

Monday, September 25, 2017

Justice Kagan on the Benefits of the Supreme Court Bar

As we get closer to the start of the Supreme Court's October 2017 term, it is time to think once again about the lawyers that we will likely see before the Court.  Undoubtedly veteran Supreme Court advocates like Paul Clement and Neal Katyal will make an appearance.  As the National Law Journal recently reported, Clement is set to argue a set of important labor cases.  And as Jennifer noted earlier this week, we will certainly see Noel Francisco, the newly confirmed Solicitor General, before the Court this term.  Francisco has successfully argued three cases before the Court.

Is the existence of a veteran Supreme Court Bar a good thing?  In a recent talk to students at the University of Wisconsin Law School, Justice Elena Kagan complimented the Supreme Court Bar, noting that it is "'pretty much a nightmare'" to argue before the high court, but that Supreme Court Bar is of "'extremely high caliber.'" She praised the veteran advocates for knowing what the Court likes.

It is undisputed that arguing before the Court can be a difficult venture. The late-Justice Antonin Scalia has been credited for changing oral argument, especially with respect to the number of questions asked. As Justice Kagan explain to the Wisconsin law students,

"It's very rapid fire. You have to have really thought through stuff before you get to the podium. Often the justices aren’t really asking you questions; they don’t really care about the answers you give. They're making points to their colleagues. I say this not in a pejorative way. I do it all the time, and I think it's actually an important part of the process that we're talking with each other up there. But it makes it extremely hard for the lawyers who want to occasionally interject at some point. It's a good thing to realize so let's give these people a little bit of a break."

While Justice Kagan is supportive of the Supreme Court Bar, not everyone agrees.  In reporting on Justice Kagan's talk, Marcia Coyle of the Legal Times noted that a 2008 Reuters investigation "said the repeated appearance of the same advocates 'has turned the Supreme Court into an echo chamber—a place where an elite group of jurists embraces an elite group of lawyers who reinforce narrow views of how the law should be construed.'"

Despite legal scholars' criticism of the Supreme Court Bar, there is evidence that hiring a veteran litigator increases your chance of success.  Perhaps it is a self-fulfilling prophecy, but is likely one that is here to stay.

September 25, 2017 | Permalink | Comments (0)

Friday, September 22, 2017

Appellate Advocacy Blog Weekly Roundup September 22, 2017

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

 

SCOTUS:

A variety of items in the news this week concerned the Supreme Court.

Green Bag published Erwin Chemerinsky's review of the 2016 term of the Court, titled, "Waiting for Gorsuch."

Adam Feldman had a post on his blog, Empirical SCOTUS, providing "A Primer on The Government's Participation Before the Supreme Court at the Start of the 2017 Term."

Politico had a feature on Hogan Lovells partner Neal Katyal and his role in battling the Trump administration's travel orders in the appellate courts, including his upcoming 35th appearance before the Supreme Court, which will break Thurgood Marshall's record for minority lawyers arguing before the high court.

For #AppellateTwitter members, Adam Hanson posted a tweet this week providing a sneak peak of the new Justice Alito bobblehead, courtesy of the Green Bag.

Judge Posner in Appellate News:

As Jennifer discussed recently on this blog, Judge Posner rather unexpectedly announced his retirement earlier this month.  But that has not kept him from being a topic of appellate practice news.

Slate has been "running a series of monthly dialogues between" Posner (formerly of the 7th Circuit bench) and U.S. District Judge Jed Rakoff, moderated by Joel Cohen.  This month's dialogue was published earlier in the week and is titled, "Should a Judge Rely on the Law or His Own Common Sense?" 

Along with his sudden retirement, Posner also released a new book earlier this month, discussing conflict within the 7th Circuit concerning the handling of pro se appeals.  Matthew Stiegler reviewed the book on his blog, CA3blog earlier this week, in a post titled, "Posner's new book is bananas, but you might want it anyway."

Appellate Practice Jobs:

The United States Attorney's Office, Appellate Division, in the District of Colorado is accepting applications for an Assistant US Attorney to serve in Denver, Colorado, as part of the Appellate Division.  Details HERE.

Practice Tips:

The I Object! blog, a blog on preservation of error, had a post this week about the importance of "knowing when the clock starts running on your deadline to appeal."

September 22, 2017 | Permalink | Comments (0)

Thursday, September 21, 2017

Meet Noel Francisco, the new Solicitor General, just in time for First Monday

On September 19, 2017, Noel Francisco was confirmed, 50-47, as the new Solicitor General of the United States. As the Supreme Court is set to begin arguments on October 2, Solicitor General Francisco will have a busy next few days. 

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Francisco has had a distinguished career in both the public and private sector. He most recently joins the DOJ from Jones Day's government regulation practice where he served as chief, but he previously served in the Bush 43 administration from 2001-2005 in the offices of counsel for the president and of the Department of Justice. Francisco was a law clerk for Fourth Circuit judge, J. Micheal Luttig, and for Supreme Court justice, Antonin Scalia. He is a graduate of University of Chicago, BA, and University of Chicago Law School.

Francisco has argued in front of the Supreme Court three times with an overall record of success. He presented the case of McDonnell v. United States, involving federal bribery statutes, resulting in an 8-0 win, the NLRB v. Noel Canning case on recess appointments, with a 9-0 win, and achieved a 4-4 tie in the Zubik v. Burwell case regarding the application of Religious Freedom and Restoration Act (RFRA) to insurance coverage, leaving the lower court's ruling intact.

While working in private practice for the Jones Day law firm, Francisco, 48, successfully argued before the Supreme Court against the constitutionality of President Barack Obama’s recess appointments to the National Labor Relations Board, winning a 9-0 decision.

He also gained a 4-4 tie at the high court after arguing for the Little Sisters of the Poor, a Catholic order of nuns, against Obamacare’s mandate requiring employers to cover contraception and abortion-inducing drugs in employee health plans.

In another widely publicized case that made its way to the high court, Francisco helped overturn the conviction of former Virginia Gov. Bob McDonnell, a Republican, on charges of public corruption.

As Solicitor General, he himself will likely argue up to nine or ten cases per term, with the rest of the office arguing in the neighborhood of seventy or so cases this year. In this office, Francisco has the final say on both whether to assert appeals when the government loses at trial, and when making appeals, guiding appellate strategy. The Solicitor General has an office at the Supreme Court, and maintains a close relationship with the Court. Frequently the Court will take into account the SG recommendation when deciding which cases to grant certiorari.

The new Solicitor General has many cases of significance on his calendar. Upcoming cases concern separation of powers, religious freedom (baker cases), and immigration (travel ban).

Jonathan Turley, law professor at George Washington University, said the confirmation will also bring needed relief to Attorney General Jeff Sessions, who has been leading the Justice Department with “a truly skeleton staff.” Mr. Francisco will now be able to help shape courtroom strategy for the department.

“From amnesty cities to DACA to travel bans to transgender bans, the Trump Administration faces defining moments before the court. It needs a solicitor general at the helm that supports its policies and priorities,” Mr. Turley said.

This time of year, with First Monday right around the corner, tends to be an exciting one, at least for those in academia who get to introduce this yearly opening to brand new law students. The confirmation of a new Solicitor General adds to the occasion this year. There are a few occasions of First Monday in popular culture, (I just learned), and here they are to satisfy your interest: First Monday in October - the movie (see trailer below), 

First Monday in October - the play upon which the movie is based, First Monday - the TV show, and finally, First Mondays - the podcast. which looks to be the very best of the selections.

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The participants host a weekly podcast every week the Court is in session, and have a special summer session. The podcast could be a quick and fun way to keep up to date on the happenings at the Court. Happy First Monday, whether you are in academia, public, or private practice. The Court has a new composition, and the Solicitor General's office has a new leader at the helm. It will be an interesting year. 

September 21, 2017 in Appellate Practice | Permalink | Comments (0)

Wednesday, September 20, 2017

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

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

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

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

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

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

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

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

Tuesday, September 19, 2017

#TwitterTuesday--State Supremes

TwitterTuesdays

Last week I saw some big news on Facebook.  The Georgia Supreme Court is now on Twitter!  Most #appellatetwitter followers are familiar with the tweeting Georgia Court of Appeals Chief Judge Stephen Dillard (@JudgeDillard).  Now we get to hear from the high state court as well.  Follow @SupremeCourtGA for the latest news about the state supreme court. 

The Georgia Supreme Court is not the only state supreme court on Twitter.  You can follow the Texas Supreme Court at (@SupremeCourt_TX), the Florida Supreme Court at (@flcourts.org), and the Illinois Supreme Court at (@illinoiscourts).

Know another state high court on Twitter?  Feel free to share it below!

September 19, 2017 | Permalink | Comments (0)

Thursday, September 14, 2017

Learned Thursdays: Let go the idea that legal analysis involves neatly boxing information.

This post is from one of our new co-editors, Ruth Anne Robbins, Distinguished Clinical Professor of Law, Rutgers Law School.  Look for new co-editors in the upcoming weeks

For seventy-five years, with the release of Snow White and the Seven Dwarves, Disney began categorizing its female characters as “princesses,” “fairies,” or “evil queens.” The Disney Princess Collection as a marketing endeavor has become ubiquitous enough in our American consciousness, that you might already know that Disney schedules character “coronations” for those female characters in the marketing set. In contrast, the Evil Queen collection sports powerful women with destructive magical capabilities. Disney Princesses have no magical powers of their own. Disney held fast to these categories until 2013, when it broke its own mold in the movie, Frozen, by introducing a powerful queen with destructive magic powers—who was also a protagonist. Per the 2014 ABC News piece, The Story of Frozen, Making a Disney Animated Classic, Disney fretted for seventy years about the screenplay of the Snow Queen story: the villain is a queen who can freeze anything in her path. The “evil queen” formula was abandoned when the songwriters charged with Queen Elsa’s solo song engaged in Peter Elbow’s methodological believing: a queen with destructive magical powers, kept or forced into isolation, might simply be misunderstood and still good at heart. Breaking the rigidity of their own categories earned Disney a billion dollars in the year following the movie’s release.

The idea of legal categories is spotlighted in for-practitioner scholarship by Professor Lucy Jewel, a woman whose very name evokes another good-but-magical literary queen adapted for the screen by Disney. Professor Jewel discussed the negatives that can happen in lawyering when categories become rigid boxes. Old-School Rhetoric and New-School Cognitive Science: The Enduring Power of Logocentric Categories, 13 Legal Comm. & Rhetoric: JALWD 39 (2016). Legal categories tend to form based on a classical rhetoric view of information: everything has a place grounded upon its “essence,” and the “essence” fits into a bivalent, and mutually exclusive concept of organization. Membership in a category, according to Aristotle’s principles, is a bivalent and exclusive process; belonging members versus not belonging members. Aristotle believed that we think in what Jewel calls “neat boxes.”

In modern day, however, cognitive scientists have visually mapped out how we think, when we think categorically. Dr. Eleanor Rosch’s work from the 1970’s[1] allowed people like Professor David F. Chavkin to write another wonderful article for lawyers, Fuzzy Thinking: A Borrowed Paradigm for Crisper Lawyering, 4 Clinical L. Rev. 163 (Fall 1997). Members of a set are situated differently within a fuzzier boundary, with stronger members of the set situated in the center, and weaker members situated near the fuzzy boundaries. A robin is a central member of the set “birds,” whereas an ostrich is situated closer to the boundaries.

Jewel does not suggest that categorization is always problematic. The West Key Number system very effectively uses categories to organize legal materials for practitioners. But, she counsels, categories can also lead to injustice through distortions. Boxed legal categories do not help practitioners think through legal problem-solving because we do not actually think in those crisp terms. When lawyers understand the actual way, we process and organize information, new possibilities arise in problem-solving. Being willing to challenge the assumptions of crisp, neat boxes, permits a lawyer to adapt and manipulate the categories as well as the sense of membership hierarchy within a set. Rejecting rigid categorization makes for better client representation. Jewel’s article outlines specific ways lawyers may engage in that kind of unpacking.

The article is worthwhile reading for any practitioner, as is watching her TED-style talk produced by LegalED. The topic alone is interesting, but Jewel’s prominence also adds credibility. The article was recently selected as the inaugural recipient of the Legal Writing Institute’s Phelps Award, chosen out of more than a dozen nominations. In a category of strong scholarship, hers is the exemplar.

*Thank you to my guest research assistant, S.E. Robbins.

 

[1] Eleanor Rosch, Cognitive Reference Points, 7 Cognitive Psychol. 532 (1975).

September 14, 2017 | Permalink | Comments (0)

Monday, September 11, 2017

Guest Post: Dreamers or Illegal Aliens? Framing and Persuasion

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This is a guest post by UNLV Law Professor Linda Berger and Temple Law Professor Kathy Stanchi.

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.

September 11, 2017 in Current Affairs, Legal Writing, Rhetoric | Permalink | Comments (0)

Thursday, September 7, 2017

Judge Posner - A Very Memorable Jurist!

As Tessa wrote earlier this week, Judge Posner, a staple of the Seventh Circuit Court of Appeal, surprised more than a few folks when he announced his immediate retirement this week. 

The influential Chicago judge [is] known for his wit, no-nonsense writing style and his provocative commentary on law, politics and society—which he offered both on and off the bench. Unlike most federal judges, Posner gave interviews and rarely held back—even when the topic was the U.S. Supreme Court.

Judge Posner is 78, and plans to descend the bench by this Saturday. He was appointed by Ronald Reagan in 1981 and served as chief judge from 1993-2000.

I am proud to have promoted a pragmatic approach to judging during my time on the Court, and to have had the opportunity to apply my view that judicial opinions should be easy to understand and that judges should focus on the right and wrong in every case,” Posner said in a statement. He noted that he had written more than 3,300 opinions during this time on the bench.

He said he looks forward to teaching and publishing “with a particular focus on social justice reform.”

As a few notable jurists before him, Judge Posner stands out through his clear prose and frequently humorous writing. He was not a fan of the Bluebook - which depending on who you talk to could be seen as heresy within the profession:

“At the level of form, the first thing to do is burn all copies of the Bluebook, in its latest edition 560 pages of rubbish, a terrible time waster for law clerks employed by judges who insist as many do that the citations in their opinions conform to the Bluebook.”

Nor was he a fan of the class action lawsuit:

    “The realistic alternative to a class action is not 17 million individual suits, but zero individual suits, as only a lunatic or a fanatic sues for $30.”

Ostrich Lawyer

He made quite a stir with his ostrich opinion (the lawyer in the case didn't think it was very funny, or befitting of a legal opinion):

"The ostrich is a noble animal, but not a proper model for an appellate advocate," Posner wrote in a November 2011 ruling that featured an illustration of a man in a suit burying his head in the sand.

Judge Posner's blunt writing style might be held up against Justice Scalia's - not really for their similarity, but for their ability to make readers take notice. Judge Posner made waves when he criticized Scalia for seemingly undermining his staunch aversion to allowing legislative history to creep into his interpretation in Heller:

“[Antonin] Scalia is a pertinacious critic of the use of legislative history to illuminate statutory meaning; and one reason for his criticism is that a legislature is a hydra-headed body whose members may not share a common view of the interpretive issues likely to be engendered by a statute that they are considering enacting. But when he looks for the original meaning of eighteenth-century constitutional provisions—as he did in his opinion in District of Columbia v. Heller, holding that an ordinance forbidding people to own handguns even for the defense of their homes violated the Second Amendment—Scalia is doing legislative history.”

Judge Posner's humor, banter, and incisive writing will certainly be missed. Congratulations on to him on such a monumental career as a jurist and here's to many more years of being an influential force in the legal profession. 

September 7, 2017 in Federal Appeals Courts | Permalink | Comments (0)