Appellate Advocacy Blog

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

Monday, April 30, 2018

Final Moot Court Rankings

Forget football and basketball rankings, for many law schools it is the moot court rankings by the University of Houston Law Center's Blakely Advocacy Institute that we wait for each year.  Just a few days ago the final rankings were released.  The top five schools are as follows:

1. South Texas College of Law Houston (alas, I cannot find a nickname or mascot for you--but great job!)

2. Chicago-Kent College of Law (Affiliated with Illinois Institute of Tech--Go Scarlet Hawks!)

3. Baylor University Law School (Go Bears!)

4. University of Oklahoma College of Law (Boomer Sooner!)

5.  NYU Law School (Go Violets? Go Bobcats?)

As usual, the top 16 teams will compete at the Andrews Kurth Moot Court National Championship.  The Sooners are the current champs, so we will see if they can hold on to the title this year.

April 30, 2018 in Appellate Advocacy, Law School, Moot Court | Permalink | Comments (0)

Friday, April 27, 2018

Appellate Advocacy Blog Weekly Roundup April 27, 2018

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 Opinions and News:

Regarding suing foreign corporations for human rights atrocities: 

On Tuesday, the Supreme Court ruled in Jesner et al. v. Arab Bank, PLC, a suit brought under the Alien Tort Statute wherein Petitioners (6,000 foreign citizens) alleged that they or persons on whose behalf they asserted claims had been injured or killed by terrorist acts committed abroad and that the terrorist acts were caused or facilitated by a foreign corporation, Arab Bank, a multinational corporation based in Jordan with a federally chartered branch in New York.  The victims alleged that the U.S. branch of the Bank transferred millions of U.S. dollars that were used to finance terrorist attacks in Israel, the West Bank, and Gaza. The Court’s ruling was split 5-4, and the Court ruled that foreign corporations cannot be sued under the Act for complicity in human rights atrocities that occur overseas.

ARTICLE

OPINION

Regarding Trump Administration Travel Ban:

Travel Ban:  On Wednesday, the Supreme Court heard oral argument on President Trump’s travel ban, more than four months after issuing a ruling that the ban should be allowed to take full effect during the pending litigation.  This is the third version of the travel ban enacted by the administration, but the first to reach the Court for argument.  This case was scheduled to be the final argument of this term.

SCOTUSblog ARGUMENT PREVIEW

PRE-ARGUMENT ARTICLE

POST-ARGUMENT ARTICLE

 

Federal Appellate Court Opinions and News:

Regarding DACA

A federal judge in Washington D.C. issued a ruling this week in which the court found the Trump administration’s rescission of DACA to have been “arbitrary and capricious.”  The court ordered the Department of Health and Human Services to process applications, both new and renewal, but also stayed the order for 90 days to allow the Department “an opportunity to better explain its rescission decision.”

ARTICLE

OPINION

State Appellate Court Opinions and News:

From Pennsylvania:

Pennsylvania Attorney General Josh Shapiro filed a lawsuit challenging regulations promulgated under the Patient Protection and Affordable Care Act that would take away the Little Sisters of the Poor’s religious exemption from a Health and Human Services rule, forcing them back into a dilemma of providing services like the week-after pill that would be contrary to their faith or risk millions in government fines.  The Little Sisters of the Poor had sought an order from a trial court allowing them to intervene in the lawsuit to defend themselves against the potential impact of the lawsuit, but the federal district court kept them out of the case, ruling that they lacked a significantly protectable interest and that their interests were adequately represented by the federal government.  The Little Sisters of the Poor appealed, and this week the United States Court of Appeals for the Third Circuit reversed, allowing them to intervene.

ARTICLE

OPINION

Practice Tips and Pointers:

From Law.com and Georgia Court of Appeals Chief Judge Dillard:

Ten tips on what not to do in front of a judge, based on an interview conducted by an attorney asking questions of a panel of judges.  Judge Dillard specifically advised not to bring up issues on appeal that weren’t properly raised in the court below, not to overlook the value of being concise and focusing on your strongest points, and not to mislead the court.

ARTICLE

From Legal Writing Prof Blog: 

What happens to your appeal when you don’t follow the rules of appellate procedure?  Your appeal gets dismissed.  This blog post from earlier in the week looks at an Illinois Court of Appeals case in which plaintiff failed to follow the court rules and, despite being a pro se litigant, suffered from dismissal of the lawsuit as a consequence.

POST

From Lisa Solomon: 

To Draft a Winning Appeal, Choose Your Issues Wisely – article on questionoflaw.net.

ARTICLE

Appellate Job Postings:

 Assistant United States Attorney, District of Nevada:

POSTING

 

 

 

 

 

 

April 27, 2018 | Permalink | Comments (0)

Monday, April 23, 2018

Week 3--Top Tips From Appellate Judges

For the past few weeks I have been blogging about appellate brief-writing tips from appellate judges, based on my work on the third edition of Winning on Appeal.  You can read the first two posts here and here.

The tip for this week is to be professional in your writing.  There is much that could be said on the topic of professionalism in brief-writing.  I am going to focus on two points--accuracy and civility.

As I discussed in week 1, the most common complaint that judges have about briefs is that they are too long.  One of the other most common complaints that we heard from judges was about accuracy.  They bemoaned lawyers misstating the law and the record, and mentioned how such tactics destroyed a brief-writer's credibility with the court.  Look at this quote from an appellate judge: “To me, the worst thing that a lawyer can do in a brief is to cite cases for proposition that they simply do not support or to falsely state the record.  When I see that, I conclude that I cannot rely on anything in the brief.”

Lack of accuracy can raise ethical issues.  The ABA Model Rules of Professional Conduct state that a "lawyer shall not knowingly: (1) make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer."  Sadly, many misstatements are the result of laziness--failure to fully read cases and failure to fully master the record.  Don't be the lawyer who falls into this trap--take time to adequately prepare your briefs, and be scrupulous about the record!

The other professionalism issue is civility.  Sadly, many lawyers hurt their credibility by attacking opposing counsel or the judge below in their briefs (and oral arguments).  With respect to attacking the judge below, this never made any sense to me.  In the federal system (and, from what I have seen, in many state systems), there is a decent amount of interaction between the different levels of judges.  They are all fairly civil to each other, and most of the judges on the higher courts started off on the trial or intermediate appellate bench.  Starting off your brief by personally attacking the judge below, who is likely a friend of at least of few of the appellate judges deciding your case, seems like really poor strategy.  

As one appellate judge put it, "[e]ngaging in personal attacks on parties, lawyers, or judges is unacceptable."  You can point out flaws in an argument or opinion with stooping to the level of personal attacks.  It will make your brief stronger and more persuasive.

April 23, 2018 in Appellate Advocacy, Appellate Practice, Legal Ethics, Legal Profession | Permalink | Comments (0)

Saturday, April 21, 2018

Lawyers should not always write like Hemingway: the ideas behind your sentences

  800px-ErnestHemingway

I've heard lawyers urge on more than one occasion: "write like Hemingway, not Faulkner." I think this advice is mostly sound. William Faulkner is known for long, ornate sentences that--while carefully crafted--are not always easy to read. Here's just a few lines of a Faulkner sentence:

There was a wisteria vine blooming for the second time that summer on a wooden trellis before one window, into which sparrows came now and then in random gusts, making a dry vivid dusty sound before going away: and opposite Quentin, Miss Coldfield in the eternal black which she had worn for forty-three years now, whether for sister, father, or husband none knew, sitting so bolt upright in the straight . . . 

So yes, that is not the sort of clear, simple writing that skilled lawyers aim for. A judge may have to read that three or four times to appreciate what's going on.

And in terms of sentence shortness, Ernest Hemingway easily has Faulkner beat. After all, Hemingway is best known for, as he called it "writing straight." He packed so much in each word that he needed only a few to get the point across: 

You did not kill the fish only to keep alive and to sell for food, he thought. You killed him for pride and because you are a fisherman. You loved him when he was alive and you loved him after. If you love him, it is not a sin to kill him. Or is it more?

There is a lot to be said about "short sentences" like this. Shorter sentences are easier to follow and easier to process. Even in Hemingway's literary example that is so. You probably absorbed Hemingway's points much quicker than you did Faulkner's. This is equally true for legal writers. Short and concise sentences are easier to read. This is why great legal writers rally around Strunk and White's famous directive to "omit needless words." It's also why we love Justice Robert's famous short sentence: "So too here." 

But there is a feature of both Faulkner and Hemingway's writing that is not as helpful to lawyers. And it's a feature that often steers legal writers wrong when they fixate only on cutting every word possible from their sentences. This feature has to do not with the words and sentences themselves, but with the ideas lurking behind them.

On the surface, sentences all look similar. They are the same letters, same words, over and over, just arranged in different orders. But underneath, sentences are sophisticated idea-producing machines. You remove one word from a sentence, plug in another, and an entirely different idea spurts into your reader's mind. They are as complex of a machine as the assembly of nuts and bolts that make up your car.  

Literary authors tune their sentences to produce some wild ideas. For them, it's a good thing to tinker until something interesting comes out. And maybe it doesn't even matter what those idea are. Some of the best literary sentences produce a tissue of interconnected ideas that we readers spend hours (or centuries) untangling. If two people read the same sentence and have different ideas--all the better. 

But as legal writers, we need our idea-machines to run more precisely. Our readers are busy, harried, and use our writing to complete practical tasks. They don't have time to search for the ideas. And frankly, we don't want them to use their imagination. If our reader takes the wrong idea from a sentence, that may mean the difference between winning and losing for us. 

When it comes to producing particular ideas, shorter sentences are usually better. They keep our reader focused on the point that we are trying to deliver. But this is not always so: short does not always mean simple. Just because a sentence is short does not mean you have control over the ideas it will trigger in your reader's mind. 

Let's go back to Hemingway. One of his most famous sentences is just six words: 

For sale: Baby shoes, never worn. 

What ideas do you take from this sentence? Tragedy? The death of a baby? The morbid realism that life most go on even after a horrible event? Interestingly, this quote may not even be Hemingway's. It may come from an article written in the 1920's, titled "For sale, baby carriage, never been used.” The backstory is nothing so depressing as you might think. The author simply thought it sounded like a good title for a story. 

On the other hand, the quote may also come from a more depressing newspaper ad and followup article written around the same time. The ad read "Baby's hand made trouseeauo and baby's bed for sale. Never been used." And there, indeed, tragedy had struck:

Picture1

The point is that the ideas delivered by that six-word sentence are amorphous--maybe you took away what the author intended, maybe not. This sort of imprecise writing isn't a good thing for a lawyer. If you're a lawyer writing about clothes put up for sale after a baby's death, you are better off with:

The parents were so poor that when their baby died they had to sell his shoes.

Instead of:

For sale: Baby shoes, never worn.

The first version is a bit longer, but the key is that your reader doesn't have to dig for the idea you want. If you want your reader to know that the parents were poor and use the shoe sale to exemplify that--then make sure you deliver precisely that idea. 

Or take another excellent example of this idea-generation problem: 

I never said she stole my money.

Depending on the context and your reader, the ideas delivered by this short and unassuming sentence are legion: 

I never said she stole my money. (Someone else said it.)

I never said she stole my money. (I didn't say it.)

I never said she stole my money. (I only implied it.)

I never said she stole my money. (Someone did, not her.)

I never said she stole my money. (I considered it borrowed.)

I never said she stole my money. (Only that she stole money—not necessarily my own.)

I never said she stole my money. (She stole something of mine, not my money.)

So what's the takeaway for us legal writers? 

First, remember that while non-legal writers have lots of great tools for us, our practical aim for delivering ideas can be quite different. “Literature is not the goal of lawyers,” wrote Justice Felix Frankfurter. And “[t]he law,” said Justice Oliver Wendell Holmes, “is not the place for the artist or the poet.” In many ways, good writing is good writing. But you must balance your efforts to write well with your need to deliver concrete and specific ideas to your reader. The flash is not always worth it. 

Second, your default style should be shorter, concise sentences that deliver a single idea. Shorter sentences are not only easier to read generally--but they give you more control over which ideas your reader will absorb. The more words, clauses, and yes, ideas a sentence has--the harder it is to control your reader's focus and the greater the risk that they will get distracted. Shorter, simpler sentences allow you to dish one carefully-chosen idea to your reader at a time. 

So put yourself in your reader's shoes and build sentences that will deliver one idea at a time--and the idea you choose. Take this snippet of short sentences from a trial court opinion. You get one idea at a time, and a straight-forward one at that: 

Courts don't make rules. Courts follow rules. The attorneys ask that we create a new rule out of whole cloth. That should give us pause.

Third, all that said, a short sentence is not always a clear sentence. And for lawyers desperate to get a busy judge to simply understand, the clarity of your ideas is priority number one. So sometimes you may need an extra word or two to isolate that precise idea you need.

Take a paragraph penned by Justice Gorsuch. The ideas conveyed are simple, clear, and leave little room for interpretation--but they are not always as short as they could be: 

Andrew  Yellowbear  will  probably  spend  the  rest  of  his life  in  prison.  Time  he  must  serve  for  murdering  his daughter.  So  Mr.  Yellowbear  has  found  sustenance  in  his  faith. No  one  doubts  the  sincerity  of  his  religious  beliefs[.] . . . Yet  the  prison  refuses  to open  the  doors  of  [its]  sweat  lodge  to  Mr.  Yellowbear alone. [A]nd so we have this litigation. [T]hose convicted of crime in our society lawfully forfeit a great many civil liberties. [But] Congress  has  []instructed  that  the sincere exercise of religion should not be among them . . .”

Each sentence delivers a straightforward idea. Yellowbear faces a life in prison. He does so because he murdered his daughter. He turned to his faith . . . very little room for interpretation or confusion. 

If nothing else, I think the simple act of realizing that your sentences are constantly churning out ideas can be helpful. And remembering that short sentences do not always equal simple sentences. 

Joe Regalia is an adjunct professor of law at Loyola University School of Law, Chicago and an attorney at the firm of Sidley Austin LLP. The views he expresses here are solely his own and not intended to be legal advice. Check out his other articles here

 

 

April 21, 2018 | Permalink | Comments (0)

Thursday, April 19, 2018

A Nice Recognition

I got an email yesterday from LitigationWorld that two of our posts were selected as the LitigationWorld Picks of the Week.  One of the posts, by Joe Regalia, addressed productivity.  You can read it here.  The other recognized post was on font choice.  You can read it here.

Thanks to our readers and to LitigationWorld!

April 19, 2018 | Permalink | Comments (0)

Wednesday, April 18, 2018

On the Benefits of Moot Court: Writing Development

Often, I find myself in a conversation about the validity of Moot Court programs in law school.  This discussion is perpetual. Indeed, while I was in law school, a pair of articles were published discussing this issue. One clearly opposed, and in support, of the moot court experience. See Alex Kozinski, In Praise of Moot Court--Not! , 97 Colum. L. Rev. 178 (1997); Michael V. Hernandez, In Defense of Moot Court: A Response to "In Praise of Moot Court--Not!", 17 Rev. Litig. 69 (1998).  Those that know me, understand that I am a big fan of moot court, even if you have no intention to enter appellate practice. Over the next few weeks, I will address my views on the moot court experience.

In this post, I address how the moot court experience enhances a student's writing skills.

During the first year of a student's law school experience, we take mostly good, or even excellent writers, and change how they perceive the writing process.  In some instances, we find students who need real work on basic writing skills, but for most, it is just a matter of getting them to buy into a new approach. No longer are students using filler to reach some magical minimum word count, no longer are we rewarding free-flowing prose.  Students must constrain their writing to maximum word counts, and to seemingly arbitrary formulas.  My students complain about CREAC, CRAC, IRAC, or CRuPAC, or whatever the acronym of the day is, at least until they have embraced it.  I liken good legal writing to an instruction manual that must be written in a manner that frees the reader to focus on the analysis. Certainly, by the end of the first-year students are capable of writing good briefs. They reach legal conclusions that are sound and built upon a strong, rule-based foundations.  Such writing is good, and if a student were to enter the legal community immediately after their first year, their writing would be sufficient.

But, sufficiency is not enough. As a practicing attorney, I never had the better part of a semester to write a brief. I've written multiple briefs and pleadings in a single week.  If my writing was only sufficient, I would have struggled to put together coherent briefs and pleadings at that pace.  So I push my students to excellence, and they way to do that is through practice.  The more one writes, the easier it is.

Many law schools with strong moot court programs have a class dedicated to appellate advocacy or brief writing.  These classes take the skills a student learns in their first year and builds on those skills.  Students learn when and how to step away from the basic CREAC formula. They learn how to write many different types of arguments.  They gain extra practice.

Once a student is in competition, the student develops skills that can only come from practicing their skills with no input.  Students gain confidence when they realize that they can write a brief, with difficult legal or factual issues, without getting constant reassurance or guidance from their professors. Students learn the importance of crafting an error free document, and from taking the time to review and edit the document.  When they begin preparing for oral argument they will learn the value of listening to the inner voice that tells you an issue either is or isn't worth mentioning in the brief.  When they compete a second  or third time, that skill will be utilized to create an even better written product.

In short, moot court gives students multiple opportunities to develop and perfect the practice-ready writing skills a student gains in their first year, and which every practice attorney needs. 

 

April 18, 2018 in Appellate Advocacy, Appellate Practice, Legal Writing, Moot Court | Permalink | Comments (0)

Tuesday, April 17, 2018

Thinking Thursdays--err, Tuesdays: Know your Logical Fallacies (Part 3)

Ruth Anne Robbins, Distinguished Clinical Professor of Law, Rutgers Law School

Sorry for the delay, folks. I fell victim to a distraction fallacy.

In my last two Thinking Thursdays, linked here and here, I discussed some common logical fallacies that lawyers may fall prey to. Specifically, I focused on non-sequitur fallacies, insufficient evidence fallacies, and shallow thinking fallacies. Today, I will talk about the last general category: avoidance fallacies.[1] The are also called fallacies of inference.

 When we make a valid argument, we employ a process of using true statements—such as a governing rule of law—to justify the truth of a new statement—i.e. the application of the law to presented facts. Logical fallacies happen when something goes wrong with the legal syllogism.

Logic1. An ad hominem attack challenges the ethos of one’s opponent (either the opposing party or that party’s counsel). Rather than meet the substance of the arguments made, the ad hominem attack claims that the person making the argument is a bad person or not worthy of trust for some reason. The person making ad hominem attacks end up making themself look petty and small, thereby losing some of their own valuable ethos. There are plentiful examples of ad hominem attacks happening on American politics, daily.

Note, however, that avoiding an ad hominem attack should not keep an attorney from attacking the credibility of a witness when the case warrants doing so.   

2. Someone using a straw man fallacy sets up a weak or absurd scenario attributed to the opposing side and then argues against it. This fallacy might take one of a few different forms. A slippery slope policy argument, taken to extremes can become a straw man fallacy. forms. For example, one might claim that since many heroin addicts began using marijuana before using heroin, marijuana use should be made illegal. Somebody opposing making marijuana use illegal might argue that most people began drinking milk before using heroin, so that milk should be outlawed too.

If you do this, however, you will ultimately lose credibility with the audience, because in the end your hypothetical or your imagined counterargument depends on being weak or ridiculous.

3. The last category has several names: red herring, distraction, deflection, misdirection. These are attempts to sidetrack the audience from the argument raised by another party, to hide a lack of a sound counterargument. Schematically it looks like this:

  • Speaker A: Milk chocolate is better-tasting than dark chocolate.  
  • Speaker B: Twenty percent of people surveyed last year believe that chocolate milk come from brown cows.
  • Speaker A: Seriously? 20%?

In law, it can go this way:

  • Major premise: The city may prohibit loudspeaker trucks from driving through residential neighborhoods from 8 pm to 8 am.
  • Minor premise: The city is attempting to enforce the code provision against a political candidate who has been using the trucks at 10 pm at night.
  • Conclusion (goes wide of the original premise’s mark): The city officials are trying to change the election’s outcome by enforcing the code against one party.

In an upcoming article, Professor Melissa Weresh talks in depth about the phenomenon of misdirection, and its place in legal argument.

For more reading about logical fallacies, the website Teachers Pay Teachers offer a variety of teaching materials at low cost that can help us understand what they are. Purdue’s Online Writing lab also offers a synopsis. And, there is also the amusing Illustrated Book of Bad Arguments that can help us learn.

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[1] Thank you to Professor Ken Chestek (Wyoming) and Professor Steve Johansen (Lewis & Clark) for these examples. They come from the upcoming second edition of our co-authored textbook, Your Client’s Story: Persuasive Legal Writing (2d ed. Wolters Kluwer, expected publication date of later this year).

April 17, 2018 | Permalink | Comments (0)

Monday, April 16, 2018

Week 2--Top Tips from Appellate Judges

Last week I blogged about my trip to Little Rock to speak on Top Tips from Appellate Judges.  In that post, I discussed the first tip--to keep your briefs, brief.  Today I want to focus on the second tip--to limit your issues on appeal.  Following this second tip will help you achieve the first.

When we surveyed judges for the third edition of Winning on Appeal, we specifically asked them about selecting issues to appeal.  In response, many judges provided their views on the number of issues that you should raise on appeal.  On the low end was the recommendation to raise “one or two of your best issues that will really decide the case.” On the high end was the advice to “[f]ocus on fewer than five strong points. Three is good.” Most of the judges recommended raising no more than three issues.

So, how do you decide what issues to appeal?  The judges provided several good tips:

  1. "Moot" your issues as you would an argument.  This can help you analyze the strength of each issue.
  2. As yourself if you would be "willing to spend your entire oral argument on [an] issue[.] If so, include it."
  3. Pick only the most “credible” issues or ones that will “really decide the case”  or “really matter.”

Several judges noted that including weak issues hurts the credibility of the brief writer.  As one judge put it, “A brief with fifteen or twenty assignments of error tells me that the attorney is grasping at straws.  No trial judge I ever knew was so bad as to make that many errors.”

There are, of course, complicated cases that may raise more than three issue.  But, as a good rule of thumb, follow the advice to limit your issues on appeal and the judges will thank you!

April 16, 2018 | Permalink | Comments (0)

Sunday, April 15, 2018

Who cares about the law? Legal writing with emotion.

Emotion-faces-picture-e1429925480789

Many of us lawyers love the law. We get lost in the throes of legal research. We can spend hours tracing doctrine from the Magna Carta to present. And we think that judges love the law, too. So our briefs are often chock full of it: brimming with every case, rule, and legal theory that Westlaw spits at us. 

Don't get me wrong, the law is great. And judges do care about it. A common complaint is that lawyers neglect the rule sections of their brief, particularly when it comes to the nuances. Lawyers might not take the time to understand the finer points of the authority; they might miss important cases; or maybe they are simply unable to explain complex legal concepts clearly enough for a generalist judge. 

But all that said, the latest research leaves no doubt: emotions play a profound role in all decision making--including the most "logical" decisions that lawyers and judges make.

Our emotions have an interesting relationship with legal writing. For example, studies suggest that just by using logic-sounding rhetoric, like a syllogism, a reader is more likely to be convinced--even if the ultimate point is dead wrong. We seem to have an emotional response to the logicy-sounding language, even if the logic turns out to be bogus. Our emotions say: "This point must be worth listening to, it sounds like logic." Researchers suspect that our brains may be hardwired to think in logical patterns, and thus are unduly swayed by logical-sounding framework. So even seemingly logical writing can be at least part emotional. 

That our emotions interplay with our decision-making is not all bad news. Because research also suggests that emotional decisions do not necessarily mean bad decisions. In fact, in a recent paper by Susan Bandes and Jessica Salerno, the authors explained that “emotion helps us screen, organize and prioritize the information that bombards us." “It influences what information we find salient, relevant, convincing or memorable.” In other words, our emotions can work as a sort of intuition, feeding us useful information from our past experiences. This emotional processing has spent a lifetime learning from our successes and failures. This is why many experts say that, in some situations, trusting our gut is not such a bad idea. 

Not to mention that studies show that some emotions can help us think better. Bandes and Salerno, for example, explain how sadness may actually make us think more carefully and rush to conclusions less. These authors explain that “[t]he current broad-brush attitude toward emotion ought to shift to a more nuanced set of questions designed to determine which emotions, under which circumstances, enhance legal decision-making.” 

But what's most important for us is that we know favorable emotions absolutely impact how our readers will view and process our legal writing. As Catherine Cameron and Lance Long explain in their book "The Science Behind the Art of Legal Writing," researchers using brain scans have discovered that when we think through issues, our emotional and feeling centers of our brain are triggered long before we even start accessing our rationale and conscious processing centers. In other words, we apply our emotions to decisions before we apply our lawyerly logic. 

Indeed, your reader's ability to even understand your points in the first place may depend in part on their favorable emotional state. Recent research confirms that your reader's mood--which you can no doubt influence through your writing--changes whether and how your reader will turn on their rationale decision-making processes and critically think about your arguments. 

And for readers who start a document already disagreeing with you, triggering favorable emotions may be the only way to break through their echo-chamber so that they can meaningfully listen to you. The research shows that we are disturbingly good at ignoring facts and arguments that we don't want to agree with. If we emotionally want to believe something is wrong, our mind can subtly filter contradicting information as we read. The research on this point is overwhelming and pretty scary

But as important as emotions are to persuading, there is nothing judges or lawyers hate more than legal writing that overtly plays to their emotions. Obvious ploys (like asking a judge to rule for a client because they fell on hard times) will raise the judge's hackles. After all, judges, and all of us lawyers really, like to think that we follow the law, not our hearts.

So what is the take away? While we must avoid overt plays to emotion, we cannot afford to ignore our reader's emotions either. Navigating the emotion minefield will be tricky. The research on which emotions are most helpful is still nascent. But we do know that if we put our readers in a favorable emotional state, this will positively influence how they view our points. We know that readers whose emotions are triggered in the right way will pay better attention to our writing and, perhaps, even change their minds.  

I have a few ideas about how to go about that.

One way is to use storytelling in our legal writing: research shows that stories help readers tap into these subconscious intuitions we have about how things work and how things should go. And although narrative takes a lot of practice, you can capture a lot of this style by channeling great storytellers like Stephen King:

  • Start more sentences with concrete nouns ("Susie ignored the warnings");
  • Keep your reader's focus trained on the same set of actors throughout your document so they can keep a coherent story together ("Susie filed her complaint the next day. Susie's efforts failed, because the court dismissed the case shortly after. Susie hired a lawyer and filed another complaint...");
  • Use concrete verbs to paint active scenes ("Susie smashed the plaintiff's phone"); 
  • Control the pacing: give your reader a sense of time when telling factual or procedural stories ("Two days later, the police showed up to arrest Susie. That same day, Susie's lawyer filed a motion");
  • Let choice, emotional facts do the work--not adverbs and adjectives ("Susie snapped two of the plaintiff's bones in the fight," not "Susie severely and permanently injured plaintiff"); 
  • Trigger your reader's own emotions by placing them in another's shoes ("Plaintiff had just lost her job and had had no way to pay for her 5 year old daughter's surgery, so she asked for a loan"). 

Use these story-telling techniques when explaining rules, too. After all, rules have stories just like the parties' facts do, and they can be emotional ones. For example: 

Before the 1960s, courts had usually held that employers cannot be liable for an employee's intentional torts. But judges then began seeing cases where employers were using that rule to their advantage in unsavory ways. For example, a company ignored obvious red flags about an employee's mental health, and then that employee went on a shooting spree at work. Courts took notice of cases like that one and created a new rule . . .

Other than writing in a narrative, you can highlight important emotionally-laden facts for your reader in several ways. On the macro level, put your hard-hitting facts in obvious places. Too often lawyers bury their good facts in the "fact" section and leave them there. Will a reader work to dig them up? Maybe. But you should instead place those facts in conspicuous places throughout your brief, starting right in the introduction.

People read introductions and they pay attention to them. Dishing up the right facts at the start can put your reader in the right emotional state for the rest of the brief. Look at how former-judge Posner emotionally charges an introduction in a case about discrimination, inserting some facts about abandoned children and who those children would want as parents: 

The argument that the states press hardest in defense of their prohibition of same-sex marriage is that the only reason government encourages marriage is to induce heterosexuals to marry so that there will be fewer “accidental births,” which when they occur outside of marriage often lead to abandonment of the child to the mother (unaided by the father) or to foster care. Overlooked by this argument is that many of those abandoned children are adopted by homosexual couples, and those children would be better off both emotionally and economically if their adoptive parents were married

On a micro level, you can use vivid words and thoughtful word placement to ensure that your facts are doing enough emotional work. Use the right nouns and verbs. And put those heartstrings facts at the beginning or end of your paragraphs and at the start or ending of sentences--where they will be noticed and punch hardest.

Take two sentences: one which buries the emotion-stirring fact, and one which describes it concretely and emphasizes it at the end. Here is the first one:

The next day, three individuals ended up dead during a shootout and the defendant was arrested for it. 

The fact that will really move a reader is the killing of the three people. So use more vivid words and better placement to make sure these facts hit home: 

The next day, the defendant was arrested for a shooting in which three bystanders were murdered

Now, obviously, if you don't want to trigger these sympathetic emotions (maybe you represent the defendant), you just use these tools to trigger different emotions instead: 

During the defendant's arrest for the incident, police beat him with batons until his arm snapped.

Another tactic is to weave more overt emotional policies into your legal writing. Start with the law because that is what all us lawyers and judges want to follow. But support those points throughout your document with more moving policies, too. For example: 

The Ninth Circuit has already told us the right approach here: dismiss this case and allow the plaintiff to file a new one. And the rule makes sense. Defendants in these sorts of cases are usually small mom and pop companies without any sort of insurer paying for their defense. Requiring them to pay for litigation that will likely be mooted--which will likely put them and their employees out on the street--is not the sensible course. 

When including emotional policies (and to some extent, when using all of the above tools), the more you can help your reader relate to the facts and law, the more their emotions will be triggered. That is why the "golden rule" bars lawyers from trying to put jurors in the shoes of a party. Above all, judges and lawyers are humans. And if their subconscious is feeling empathetic, you can be sure that will color how they see your arguments. 

At bottom: there is no surer way to alienate a judge or lawyer than by letting them know that you're playing to their emotions. But if you trigger some emotion subtly, there is no surer way to persuade them. 

Joe Regalia is an adjunct professor of law at Loyola University School of Law, Chicago and an attorney at the firm of Sidley Austin LLP. The views he expresses here are solely his own and not intended to be legal advice. Check out his other articles here

 

 

 

 

 

 

 

 

 

 

 

April 15, 2018 | Permalink | Comments (0)

Friday, April 13, 2018

Appellate Advocacy Blog Weekly Roundup April 13, 2018

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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).

Supreme Court Opinions and News:

From Reuters:  Pace of Supreme Court slackens, showing signs that the Court is struggling to resolve some key big cases.  So far this term, the Court has issued only 18 rulings in cases argued this term, fewer than usual at this point in the term.  Of the yet unresolved cases, several are considered big cases, including electoral boundaries and gerrymandering cases, the high-profile religious liberty case involving a Christian baker who refused to make a wedding cake for a gay couple, a case involving union fees, a case involving class-action claims against employers, a case involving the use of cellphone location data by law enforcement, and an abortion case.  The slower pace seems likely attributed, in large part, to the 5-4 ideological split.  Story:  HERE.

From the AP:  Justice Gorsuch is celebrating his one year anniversary on the Court this week.  During that time, he’s heard arguments in more than 60 cases and, while it’s still early in his tenure on the Court, he appears to be delivering the reliably conservative vote that President Trump and his supporters had hoped for.  The early reviews of his writing have received mixed reviews, with some readers appreciating his ability to reach audiences beyond law professors and experts and others highlighting his tendency to talk down to readers and even his colleagues on the other side of issues.  More on his first year in the story:  HERE.

From USAToday:  Also discussing Justice Gorsuch’s first year on the Court.  The general consensus of Gorsuch’s first year is that he has confirmed the hopes of conservatives for the direction of the Court and also confirmed the fears of liberals.  Gorsuch has so far demonstrated that he is as committed to textualism and originalism as any member of the Court.  Story:  HERE.

Federal Appellate Court Opinions and News:

From Bloomberg:   Several Circuit Courts of Appeal to watch.  Several Circuit Courts of Appeal have several vacancies, allowing President Trump the opportunity to  nominate enough Republican/conservative nominees to start shifting the balance on those courts.  Currently, the Second, Third, and Eleventh Circuits have enough current vacancies that President Trump’s nominees could put that balance within striking distance.  Additionally, there are numerous vacancies right now on the Ninth Circuit, allowing President Trump the opportunity to more than double the number of Republican appointees.  Story:  HERE.

New Federal Appellate Court Nominees.  On Tuesday, the White House issued a press release announcing a wave of new nominees for vacancies on the various federal benches, including Circuit Courts of Appeal.  Release: HERE.

 
Practice tips and pointers:

A lesson in tailoring your writing style to the needs of your audience:  A Family Court judge in England recently issued an opinion in a case involving the question of whether to establish a plan to allow a young child to be adopted, rather than returned to his biological family.  The biological parents suffer from learning disabilities, and the judge tailored the opinion to be accessible and meaningful to them, providing a great illustration of tailoring your writing to meet your audience’s needs.  Opinion:  HERE.

From How Appealing:  Appellate E-Filing Evolves in the Third Circuit and Pennsylvania State Courts.  Howard Bashman, a longtime and enthusiastic supporter of electronic filing on appeal, discusses how the process has evolved over the last several years in both the Third Circuit and Pennsylvania’s state appellate court, and advises attorneys practicing in either to become familiar with the process and system and get upgraded to the new system as soon as possible.  Story:  HERE.

From Legal Writing Pro:  Judges Speak Out Behind Closed Doors.   Ross Guberman surveyed thousands of judges about what lawyers do in briefs that bug them and what they would like to see lawyers do more of.  The tips include a variety of style matters – including use of the Oxford comma, putting citations in the text and not in footnotes, and holding on to the practice of placing two spaces after periods – finding appropriate tone, and being concise.  Article:  HERE.

April 13, 2018 | Permalink | Comments (0)

Monday, April 9, 2018

Top Tips From Appellate Judges

After a two week travel hiatus, I am back to posting!

Last weekend I traveled to Little Rock, Arkansas to speak at the First Annual Justice Donald L. Corbin Appellate Symposium.  The Symposium was organized by the Pulaski County Bar Foundation and the Corbin family.  I had a marvelous time!  Not only were the speakers warmly welcomed and well-cared for, I was astounded by the quality of speakers that the Foundation secured.

Although my travel schedule prevented me from attending most of the symposium, I enjoyed Prof. Steven A. Drizin's presentation on false confessions by juveniles.  Prof. Drizin is part of Brendan Dassey's appellate legal team.  Attendees also heard presentations by Dean Erwin Chemerinsky, Judge Beverly Martin, Judge Mary Murguia, and Judge Bernice Donald.  And they heard a presentation from me. 

My presentation was entitled "Top 10 Tips from Appellate Judges."  As I noted at the start of the presentation, the irony of the topic was not lost on me.  Here I was, a law professor, giving tips from judges to a group of people who had heard from several distinguished appellate judges.  But, as I explained, my tips represented the views of the collective judiciary, culled from my work on the third edition of Winning on Appeal.  For the next several weeks, I am going to share a few of the tips from my presentation.

I started the presentation with the most important, most common, complaint about briefs that we received from judges--that they are just too long.  As one judge put it, "They're called briefs, not longs."

Why are overlong briefs so bad?  First, judges have a lot to read. The average federal appellate judge decides about 550 cases a year.  That means reading at least 100o briefs a year.  If each brief is 50 pages long, that means that judges read at least 50,000 pages of  briefs each year.  Second, long briefs are hard to read in one sitting, which makes it hard for judges to compare arguments between briefs.  Third, judges have finite attention spans.  It is hard to remain excited about reading a long, unfocused brief.

So, how do you cut down your brief?  The judges who responded to our survey for Winning on Appeal had some great tips, two of which I will share here:

  1. "Think first, and edit ruthlessly."  Think about what you need to prove to win, and orient your entire brief around that point (or points).  What is the "flashpoint of controversy" in the case.  If it is just about applying the law to the facts, don't spend pages in your brief justifying the legal rule.  Just apply the established rule to your facts.
  2. Avoid needless repetition or extraneous facts.  Again, keep your brief focused on the dispute. Only include materially important facts when describing extraneous cases, and in your statement of facts, don't go overboard on persuasive and background facts.

Writing a detailed outline before you start typing the argument is one way to keep your argument on track.

Next week I will discuss a second tip, which also helps keep your brief concise--selecting issues.

April 9, 2018 in Appellate Advocacy, Appellate Practice, Federal Appeals Courts, Legal Writing | Permalink | Comments (0)

Friday, April 6, 2018

Appellate Advocacy Blog Weekly Roundup April 6, 2018

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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 at DReal@Creighton.edu or a message on Twitter(@Daniel_L_Real) or you can send Joe a message on Twitter (@Joe_A_Esq).

 

Supreme Court Opinions and News:

On Tuesday, April 3, 2018, Justice Sonia Sotomayor spoke to students at a question-and-answer session at Vanderbilt University Law School. Justice Sotomayor urged students not to limit themselves, telling them that courage can be found in unlikely places. Click HERE for more information. 

 

On Wednesday, April 4, 2018, Justice Stephen Breyer spoke at Tufts University as part of the Jonathan M. Tisch College of Civil Life’s Distinguished Speaker Series. Justice Breyer spoke about the role of the courts and the need for judges to remain impartial. Click HERE for more information. 

 

In Kisela v. Hughes, the Court held that a police officer was entitled to qualified immunity because his actions did not violate clearly established statutory or constitutional rights of which a reasonable person would have known. In this article, the Los Angeles Times Editorial Board argues that the court's ruling grants "unhealthy immunity to police accused of wrongdoing." Click Here for the Court's opinion. More information about the case can be found at this link

 

 State Court News:

Rebecca Dallet, a Milwaukee County Circuit judge, was elected  to the Wisconsin Supreme Court on Tuesday. The New York Times has this report

 

Appellate Tidbits:

Through some clever detective work, the person in a painting hanging outside the chief justice's chambers at the Massachusetts Supreme Judicial Court has been identified as Lemuel Shaw, who served as chief justice from 1830 until 1860. Read this report for more information. 

 

Appellate Job Posting:

The Illinois Appellate Court, Fourth District is looking for an Appellate Court Research Attorney to research and prepare legal memos and draft appellate orders and opinions. Follow this link to apply for the position. 

April 6, 2018 | Permalink | Comments (0)

Thursday, April 5, 2018

A Few Practical Tips for Oral Argument

Introducing students to appellate advocacy includes practicing and building on basic skills of persuasive brief writing and oral presentations. Students refine their research choices, incorporate multiple draft editing, and learn to moot their oral arguments. In practice, appellate lawyers learn there is much more to know about making a successful appeal. According to David Lat at Above the Law, even seasoned lawyers can improve their chances at winning on appeal with some thought to more practical issues encountered at the appellate level. Lat distilled the points made by appellate practitioners and judges in creating this list:

1. Select an issue on appeal that is attractive for oral argument. Cases where oral argument was held had better chances of reversal, because the judges had to spend more time with the case.

As Judge Higginson explained, if your case doesn’t get oral argument, the judges won’t have to sit down and prepare for argument, which involves close reading of the briefs and record; the judges won’t get to hear from you as an oral advocate, emphasizing key points or dispelling misimpressions; and the judges won’t discuss the case face to face with their colleagues, instead handling the matter by email.

2. Select an issue that has been preserved at the trial level, is legal in character, and makes a difference beyond the individual case. Understanding why the appellate court might be interested in a case helps the advocate to craft an approach. An appellate court will be more likely to defer to the trial court on a factual issue, so that would be harder to win. But if the question is legal in nature and is not well settled, the court many have more interest.

How can you find such issues? Judge Higginson said to look out for intra-circuit conflicts, or inconsistencies between different precedents from your circuit; inter-circuit conflicts, which suggest that a legal issue doesn’t have an obvious resolution; questions left open by the U.S. Supreme Court (e.g., “we do not decide [x]” in this ruling, or an issue raised by a certiorari petition that SCOTUS keeps relisting); and questions that get debated in law professor blogs, which often involve unsettled issues or percolating problems in an area of law.

3. Know the players, and know your audience. Does the trial judge have a good reputation; how about the lawyers involve in the case? How has the court ruled on similar issues in the past? This will help you gauge how successful your appeal may be, give you an idea of the most persuasive approach, and whether you should spend all those hours on something that may never have a chance. Lat says these things shouldn't matter, but they do.

As a practical matter, though, things like the district judge being reviewed, the lawyers involved in the case, and the appellate judges on the panel actually matter. Some district judges have better reputations than others at the circuit court, as do some lawyers. And you definitely want to find out how the members of your appellate panel have ruled in the past on issues like the ones raised in your appeal (which you can figure out easily through judge-based searches on Westlaw and other legal research platforms).

4. Be precise and accurate with the facts and the law. Catching an advocate in misrepresentations or inaccuracies is easier than ever, and immediate. Judges have hyperlinks right in from of them as they read your brief or as you argue and can instantly check the veracity of your statements. Ensure that any fact or point of law you discuss is spot on.

Things that judges look out for when reading briefs: (1) ellipses (the judges will check to see what you left out); (2) words like “clearly” or “obviously” (especially when they’re not accompanied by citations); and (3) substantive matters discussed in your footnotes (because lawyers like to subordinate hard issues, and that often means dropping them in the footnotes).

5. Mooting is not moot! Students do a lot of this in law school, but practicing lawyers shouldn't abandon this practice arena in the lead up to their oral argument. Lat says this is still the best way to prepare a presentation for the court.

Think carefully about the colleagues you pick for your moots. You want skeptical lawyers who aren’t afraid to grill you (which is why having subordinates on your moots — e.g., associates if you’re a partner — isn’t always the best idea). Having people who will put the time in to prepare for your moot and familiarize themselves thoroughly with your case can be helpful because they will subject you to the toughest questioning. But it’s also not a bad idea to have one questioner who isn’t as deeply familiar with the case, to simulate a busy judge who doesn’t have the time to give your case as much attention as it might deserve. As experienced advocates know, judges vary significantly in their levels of preparation for argument.

6. Conclude with a purpose. While the oral argument is a conversation with the court, sometimes judges can monopolize the time and take you off track. If you are nearing the end of your allotted time, do everything possible to make a well-rounded final statement, or perhaps include the points you feel are important but you didn't get a chance to address. Lat suggests:

But as you enter the home stretch, it’s perfectly fine to say something like, “With the court’s permission, in my remaining time I’d like to make two final points.”

Fewer and fewer cases are selected for oral argument these days. Even though so many cases are decided on the briefs alone, it is still advantageous to argue before the court. When the opportunity arises, some strategic thinking and anticipation of a few practical points may be very beneficial to the outcome. 

April 5, 2018 in Appellate Advocacy | Permalink | Comments (0)

Monday, April 2, 2018

Moral Foundation Theory as the Basis for Legal Argument Themes

During the second semester of 1L year, many law school curriculums dive into persuasive writing and oral advocacy. This is the first time students are introduced to themes, and beyond presenting an objective evaluation of a hypothetical problem, they are  asked to find the "right" solution. This is beyond what the precedent may call for, this is advocating on behalf of a client for the most "just" outcome. This is getting closer to Real World law practice (or cynics could say, Ideal World law practice). 

As lawyers we are familiar with all kinds of legal arguments: rule based arguments, analogies and distinctions, inductive reasoning, and policy arguments. Since most moot court problems usually end up based in a fictitious Supreme Court, many arguments frequently come down to policy: "The Supreme Court can do whatever it wants - what should it do?" In introducing these various types of policy arguments to students, certain definitive ideas come to mind like government overreach, privacy, and even economy and efficiency. These ideas seem to have no overarching theme; they sort of have to be dreamt up by the students or gleaned from dicta. However, there may be a more predictable way to organize these disparate ideas and it might be found in something psychologists call Moral Foundation Theory.

In his book, The Righteous Mind, Jonathan Haidt, a research psychologist, has examined the origins of morality. He takes a science based, and in fact Darwinian based, approach to determining where morals come from and how they persist throughout myriad societies. His research is fascinating, but for our purposes none more so in how this theory can be applied to legal argument.

Haidt has found that across societies there are six general moral foundations: Care/Harm, Fairness/Cheating, Authority/Subversion, Sanctity/Degradation, Loyalty/Betrayal, and Liberty/Oppression. Each pair listed shows the positive side of the moral, and the negative side. For example, people who have Care as a strong part of their moral foundation despise or are deeply moved when they see Harm. This is frequently associated with taking care of people, motherhood, parenthood, caring for elders, caring for animals, etc. In Haidt's work he is interested in understanding how these morals interact with each other, how people hold out some as more important than others, and generally from an evolutionary point of view, why all these morals seem to be necessary for a functioning modern society.

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To describe these foundations a bit further, the Fairness/Cheating foundation goes to equality and reciprocity, we don't like it when people get benefits they don't deserve, and we don't like to be taken advantage of; the Loyalty/Betrayal foundation has to do with trust, a love of teammates, and a hatred of traitors; the Authority/Subversion foundation includes a recognition that a hierarchy is needed for an organized society, those who subvert the rules will be punished - prison for example; the Sanctity/Degradation foundation began as rules to maintain health (don't eat rotting food), but today is more closely associated with religious beliefs such as adhering to rules about certain kinds of food, or holding sacred some relics, but even can be seen in healthy trends like exercise and detoxing; and finally the Liberty/Oppression foundation is somewhat of a corollary of the Authority/Subversion foundation in that when Authority becomes too stifling, the Liberty impulse will be to throw off the dominating force, as seen in "freedom fighters" or the teenager who just doesn't want to make curfew. Moral Foundation Theory holds that these six foundations are found consistently throughout both historical and modern societies. They may not always be found with the same amount of importance placed on each foundation, but all are common to human existence.

The Righteous Mind is an excellent read for understanding the science of morality, but as a tool to discover an order to legal arguments it is extremely useful. For example, a 1L appellate problem may have the following facts: a sixteen year old high school student is suspected of associating with terrorists. Law enforcement has received a tip that this student may have planted a bomb at a high school football game. Law enforcement canvasses the stadium, runs down the student, and upon finding his cell phone, manages to immediately access it and finds incriminating text messages. Later, the student wants to suppress the evidence of the text messages based on violations of his Fourth Amendment rights. What kind of arguments, based in Moral Foundation Theory, could each side bring?

Thematic arguments the student might want to make would touch on government overreach, invasion of privacy, innocence due to age. The first two ideas trigger Liberty/Oppression themes in the overzealous law enforcement actions through the heavy handed way of searching the cell phone and perhaps jumping to conclusions on little evidence. Liberty as asserted through Fourth Amendment protections would be a key theme, as would be asserting a Care/Harm argument that emphasizes the innocence of a sixteen year old who was simply attending a high school football game. The overwhelming power of the police is no match for a kid. These ideas are overarching themes that would underly the concrete references to violations of the law in warrantless searches and lack of exceptions to the constitutional requirements of the Fourth Amendment. 

The government might want to bring arguments that justify its actions based on national security and protecting innocent life. Therefore the government would be asserting an argument of Authority, and also cleverly using the Care/Harm moral to generate empathy for innocent people who may be in harm's way if an active bomb is found. The government would then try to make a concrete argument using exceptions to warrantless searches, in this case, say exigent circumstances where the law actually waives the requirement of a warrant when public safety is at issue. The moral foundation background gives the argument the moral authority of the argument - the "righteousness of the cause." Judges know what the law is, but they need a reason to apply it on behalf of your client that makes sense in a moral way. Finding a moral foundation for your concrete argument may be the key to persuading the court. 

In reviewing these different morals as societal foundations, it seems that nearly all legal arguments - even ones based on more objective legal reasoning theories can be categorized into these moral foundations. Rule based arguments goes along with the Authority foundation, i.e., a body that has been recognized as having Authority promulgated the law, therefore it must be respected. Equal rights and laws against discrimination are clearly linked to the Fairness/Cheating moral foundation. Debates over abortion, the death penalty, euthanasia, and even legalizing marijuana for recreational use can be linked to the moral foundation of Sanctity/Degradation. Laws prohibiting treason, fraud, or requiring fiduciary duties rest on ideas of Loyalty/Betrayal. 

In the Real World, judges and courts may not always clearly indicate which moral foundations their opinions rely on, but by recognizing the importance of moral foundations and their connection to legal arguments, our own advocacy can become more persuasive and powerful. In an Ideal World, this is how we find the "just" outcomes for our clients and for our causes. 

 

April 2, 2018 in Appellate Advocacy | Permalink | Comments (0)

Thursday, March 29, 2018

Thinking Thursdays: Know your Logical Fallacies (Part 2)

In my last Thinking Thursday, I discussed some common logical fallacies that lawyers may fall prey to. Specifically, I focused on non-sequitur fallacies and insufficient evidence fallacies. Based on responses to my previous blog entry, I am going to review one category in this piece, and one more in the next entry.

Today I am focusing on shallow thinking fallacies. [1]

By way of quick review, logical fallacies happen when something goes wrong with the legal syllogism. Here is a proper albeit simplistic legal syllogism:

            Major premise:           The speed limit where defendant was arrested is 45 MPH.

             Minor Premise:          The working-perfectly radar gun clocked defendant at 63 MPH.

            Conclusion:                    Defendant was speeding

In shallow thinking fallacies, the advocate begins with a faulty major premise. The claimed “rule” is not a rule at all or is poorly articulated. Below are four shallow thinking fallacies.

Logic 2

1. You can spot a false dichotomy fallacy when you are presented only two choices to a complex issue that in fact offer multiple choices. For example, “If you don’t like chocolate, you must like vanilla.” Or, “you are either a Star Trek or a Star Wars person.”

Here’s how the syllogism goes wrong:

The False Dichotomy

Major Premise

Minor Premise

Conclusion

People can either like Star Wars or Star Trek, but cannot like both

You like Star Trek

You do not like Star Wars

False

True

Logical but incorrect

Some legal maxims are actually examples of this fallacy, including one of the trial lawyer’s favorites: falsus in uno, falsus in omnibus (if a witness lies about one thing, he is lying about everything).

2.Next is the bandwagon fallacy, or what I like to call “teenager logic,” It goes like this, “everybody agrees with this premise.” The obvious implication—so if everyone agrees, it must be correct. The internet is full of the faceless, nameless, “everyone says so” comments, sometimes supposedly supported by unscientific or undocumented polls. Lawyers might see this argument appear in the guise of an uncited “weight of authority” type of argument: “Most other jurisdictions do it this way!” Or, “This is a well-settled rule of law, dating back to antiquity.” [no or very few citations]. This one is a fallacy mostly because the major premise (“everybody agrees”) is not supported by sufficient authority. The premise might be true, but the skeptical reader will likely see this sort of argument as a cover-up for a weak or non-existent rule. A string citation can help overcome a bandwagon fallacy—one of the few times a string citation is actually useful: To show the weight of authority.

3.The third shallow thinking fallacy, the middle ground fallacy, is also known as the King Solomon Solution. This fallacy assumes that when two parties begin from distant or opposite positions, the position squarely in the middle of those two positions is the optimal solution. This kind of fallacy relies on the predilection of humans to rely on opening anchors for negotiation points--if the opening anchor is unrealistic, the rest of the negotiation can become fallacious. You can read more about this on the website of the Harvard Program on Negotiations.

Once again, this major premise contains fundamental flaws—in this case, the flaw in thinking that both positions are equally valid. They might not be. The problem, of course, is that the solution disregards the possibility that one position is objectively reasonable (or legally sound) and the other is grossly unreasonable (or legally unsound). While our legal system encourages and values compromise, when faced with this particular fallacy compromise leads to unreasonable or legally unsound results.

The Middle Ground Fallacy

Major Premise

Minor Premise

Conclusion

The best resolution of any valuation issue is the average of the two expert opinions

Plaintiff’s expert values the property at $500,000, but Defendant’s expert values it at $150,000

The property is worth $325,000

False

True

Logical but unsupported

4. Related to this, the fallacy of false balances also starts with a fundamental flaw in the major premise. Not all sides of an issue deserve equal weight in every situation. Sometimes one side of a debate has little or no weight at all, and therefore deserves little or no role in the debate. Journalists are often accused of allowing air time to fallacious debates even though one side is without merit.

In practice, this fallacy commonly appears in debates that involve proven science. The scientific method involves repeat experiments by different groups of scientists to verify stated conclusions. Once that has happened and conclusions have been accepted by a majority of scientists in the field, it is a logical fallacy to say that a dissenting view is equally balanced to the proved science. Allowing a debate about whether the moon revolves around the earth or vice versa would fall into this category of fallacies. As with the Fallacy of False Equivalency, lawyers can fall prey to this type of fallacy because we are taught to problem-solve through negotiation and compromise.

The False Balance Fallacy

Major Premise

Minor Premise

Conclusion

The Earth might be flat or round

I believe the Earth is flat

The Earth is flat

False

True (he “believes”)

Logical but False

Keep an eye out in your writing and in your colleagues’ to help correct any of these you spot in their analysis.

Ruth Anne Robbins, Distinguished Clinical Professor of Law, Rutgers Law School

[1] Thank you to Professor Ken Chestek (Wyoming) and Professor Steve Johansen (Lewis & Clark) for these examples. They come from the upcoming second edition of our co-authored textbook, Your Client’s Story: Persuasive Legal Writing (2d ed. Wolters Kluwer, expected publication date of later this year).

March 29, 2018 in Appellate Advocacy, Appellate Practice, Arbitration, Federal Appeals Courts, Law School, Legal Ethics, Legal Profession, Legal Writing, Moot Court, Rhetoric | Permalink | Comments (0)

Wednesday, March 28, 2018

Does the Shape of the Supreme Court's Bench Affect Oral Argument?

Short answer: yes. 

In a recent SCOTUSblog post, Andrew Hamm discusses a fascinating new article in the Journal of Supreme Court History by political scientists Ryan Black, Timothy Johnson, and Ryan Owens. Soon after his confirmation as Chief Justice in 1969, Warren Burger toured the Supreme Court building with his clerks and the Court Marshal. In the courtroom itself, the chief justice stood at the lectern and reminisced about his oral argument to the Court, noting that the justices kept interrupting each other. This happened, he surmised, because the justices could not see or hear each other well. And the situation could be fixed "by curving the bench so each justice could see his colleagues."

 The idea was not new: in the 1950s, Court staff assembled a prototype of a curved bench in the Supreme Court gymnasium:

image from wol-prod-cdn.literatumonline.com

But Chief Justice Burger followed through. Early in 1972, carpenters carved the existing bench into three segments and turned the outer segments in enable the justices -- particularly the junior justices sitting at either edge -- to better see and hear each other.

 

image from wol-prod-cdn.literatumonline.com

So did it work? Science says yes. Black, Johnson, and Owens compared instances where justices interrupted each other in the ten years terms before and the ten terms after the modification of the bench. Result: the justices interrupted each other less frequently on the winged bench. And the effect was most pronounced on the flanks: the junior justices on the edges of the bench were interrupted far less frequently when they and their colleagues could better hear and see each other.

Two takeaways from this piece:

First: it underscores the value of the Oyez Project. The authors note that theirs was the first large-scale empirical analysis to use individual-justice-level oral-argument data for terms prior to 1998. That is because SCOTUS transcripts used to generically tag all remarks by justices as "question" without identifying which justice asked the question. The good folks at Oyez have painstakingly analyzed audio recordings of SCOTUS arguments dating back to 1955 and updated the transcripts. And research like this is now feasible.

Second: the authors include an excellent analysis of the value of appellate oral argument as a discussion among justices. Obviously, oral arguments rarely feature direct dialog between justices (or judges). But, as experienced advocates know well and as Justice Kennedy explains, the court often "has a conversation with itself through the intermediary of the attorney." And, as Chief Justice Rehnquist explained in The Supreme Court, “The judges’ questions, although nominally directed to the attorney arguing the case, may in fact be for the benefit of their colleagues. A good advocate will recognize this fact and make use of it during his presentation."

Just so.

 

March 28, 2018 | Permalink | Comments (0)

Sunday, March 25, 2018

Make Sure You're the Lawyer That the Judge Can Trust

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 “If you tell the truth, you don’t have to remember anything.”
 
-Mark Twain 
 
When I talk about legal writing, I like to stick to specifics. Like how to write punchy first sentences. Or tricks for catching typos while you're editing. Or how to spot words that you can cut to better focus on the content.
 
Concrete tips like those are easy to try and easy to train. But there are some bigger writing ideas that are also worth talking about. And one of the most helpful, in my mind, is credibility. Because with the right sort of writing credibility, you can persuade even the most skeptical readers. 
 
Let me say at the outset: Building credibility through your writing is harder than building credibility in person. In person, there are some easy tricks--posture, the tone of your voice, eye contact, a smile--that you can polish up in short order.
 
But when you write, there's a lot more to it. Your reader can't see you; they can't hear you. Everything about who you are must spring from the words on the page. Stated differently, you must build a written version of your self from the feet up. And your written-self better be pretty freaking awesome. 
 
As I write this, how do you see me? Have I convinced you that I'm someone you can trust? Perhaps a little. But do you trust me enough to put your reputation on the line? Say, to take my words, sign your name to them, and send them off to be published to the world? 
 
Because that is what you're asking every time you write a document for a judge. If you hope to actually change a judge's mind and not just go through the motions (no pun intended!) you must convince that judge to trust your written-self like a close friend. Enough to risk reversal or embarrassment if they listen to your advice. 
 
Sculpting your written-self is as much of an art as sculpting clay. Every word, every sentence, and every paragraph will influence the version of you that steps off the page. What details you choose to include; which you choose to excise. Your tone. And certainly every typo. It will all be part of your written-self that gradually takes shape before your reader. 
 
All these possibilities are daunting. But they're also empowering. Because it means that, while you can't completely change your in-person credibility (some of us just have that face); you can absolutely change your written-self credibility in exciting ways. Indeed, to be your best written self, I suggest you actually create multiple personalities--three to be exact. If you manage to embody each, your reader just might take your word for it (whatever that "it" is). 
 
Consider adopting these three new selves: (1) the expert, (2) the confidant, and (3) the smartest person in the room. This is not too far afield from Aristotle's three forms of persuasion through emotion (showing your listener that you have good sense, good character, and good will). But with some modifications for us lawyers.
 
Each of these personas will reassure your reader, in various ways, that you are worth listening to. And ultimately, worth trusting. 
 
The expert. 
 
Your first persona is the expert. She knows how her client works, how the market works. She has been handling this particular species of case for years. She understands the practical ins and outs. She knows how these cases go on appeal. This persona will reassure judges that you've thought about the bigger picture and the repercussions--that your approach will make sense to the real world. 
 
It's about making the judge see you as an experienced professional who can be trusted to think beyond the cases. A person who truly represents her client's perspective
 
Look at how federal Judge Jennifer Dorsey uses her many years of former litigation experience to give off this air of expertise in a real estate case. She lays the groundwork for her expertise in this area, discussing the practical big-picture of Las Vegas's housing market and what lenders and investors have been doing in the real world. Also note the use of accessible industry terms, like "deed of trust," delivered without overwhelming jargon. And a tell-tale expert move, Judge Dorsey's familiar and vivid language suggests she is intimately familiar with these issues (the market "crash[ed]," referring to the "winners" and "losers"):
 
In the years following Las Vegas’s real estate crash, lenders and investors were at loggerheads over the legal effect of a homeowners association’s nonjudicial foreclosure of a superpriority lien on a lender’s first trust deed. The Nevada Supreme Court settled the debate last September in SFR Investments Pool 1, LLC v. U.S. Bank, holding that “NRS 116.3116(2) gives an HOA a true superpriority lien, proper foreclosure of which will extinguish a first deed of trust.”
 
The SFR decision made winners out of the investors who purchased foreclosure properties in HOA sales and losers of the lenders who gambled on the opposite result, elected not to satisfy the HOA liens to prevent foreclosure, and thus saw their interests wiped out by sales that often yielded a small fraction of the loan balance. Freedom Mortgage Corporation is one of these lenders.

How to build this persona:

  1. Include background facts in your brief that explain how the law intersects with the real world--facts about your client, the opposing party, and the bigger environment they operate in. You are subtly showing the judge that you've been around the block. 
  2. Including some industry-speak can be helpful, but you must quickly explain or define any of this language. And if it's not intuitive or easy to understand, skip it.  
  3. If possible, refer to your judge's past cases or at least some local cases. This shows that you are a frequent flyer to the court (even if you are really a newbie!). 
  4. Lock down the local rules and cross-cite to them for any procedural issues--this will also show the judge you know how things are done in that court.  
  5. Show the judge your experience with these types of cases by discussing case law with a familiarity that makes it seem like you've been here before (even if you haven't). Style moves can help here, like familiar words and easy-to-read, intimate summaries of important authority in that legal field. 
  6. Be able to talk about trends in the law and what well-known or reputable authorities have done with an issue. 
The confidant. 
 
The next persona is about you as a person. It's about being honest and dependable. The type of person others turn to for important projects. The type of person who won't get caught up in their emotions or ego. Steady. A straight shooter. 
 
Not only must you technically tell the truth--you must be honest about the spirit of the truth, too. The judge must never feel misled by you. When you say a case says something or the documents don't: the judge knows that's so. If you tell the judge your kid is sick and you need a continuance--the judge won't find out later that you don't have kids and were actually cosplaying at Comic Con. Hyperbole and stretching is not going to win cases for you. Stick to the facts and details and more subtle style moves. 
 
Viacom used choice details instead of cheap characterizations to keep their credibility in the YouTube v. Viacom case. For example, Viacom wanted the YouTube founders to look like people out for a quick buck who didn't care about the consequences. Instead of saying that themselves and sounding argumentative, they quoted the founders themselves, who had stated in documents that their "dirty little secret . . . is that we actually just want to sell out quickly . . . concentrate all of our efforts in building up our numbers as aggressively as we can through whatever tactics." This is much better than trying to characterize the facts for yourself. 
 
In one Pennsylvania case, the costs of laying it on too thick became all too clear to one attorney. Plaintiff's counsel exaggerated some of the key facts in his brief, and the court called him out on it: "counsel for claimant has seriously undermined his professional credibility." In an Idaho Supreme Court opinion, a lawyer was called out for leaving out out of his brief some bad facts for his client; the court noted that this "damage[d] both his credibility and his client's position."
 
On the other hand, when attorneys are straight, judges notice. Like in a Massachusetts case, where one of the lawyers filed a notice letting the court know of new, binding authority that was unhelpful to his client's case. The court noted "such advocacy comports with the highest level of professionalism and deserves to be praised as exemplary ethical conduct." You can bet that judge will be trust anything that lawyer says in the future. Or take a Florida attorney who conceded a number of facts in an appellate brief--and reaped the rewards. The Florida appellate court stated in its final opinion that the attorney: "concentrate[d] on the important matters for our consideration and d[id] not have us counting dancing angels on small promontories. We recognize in his advocacy a lawyer on who we can usually rely to get it right and do it ethically." 
 
Finally, this persona is not just about your honesty, but your character as a whole. You work hard. You look out for the judge's well being. You pay attention to the little things to make the judge's life easier--like appending copies of hard-to-find cases or footnoting some extra explanation for the judge to navigate your exhibits. Others jokingly say they are "officers of the court." But you mean it. You must represent your client, but at the end of the day, the judge is also a client that you can't neglect. 
 
How to build this persona:
 
  • Concede when you have losing arguments; admit when issues are tough. 
  • Even if you can't concede anything important, at least point out where you agree with the other side--this shows you are not fighting just to fight. 
  • Carelessness will kill your credibility. Pay attention to the little things so that the judge knows that if she steals from your brief, she knows you didn't miss something important. 
  • Make your brief user friendly. Always think of ways to help the judge find information and track down references or cross-references. 
  • Cut most adverbs and adjectives that tell your reader what to think; instead, let choice details speak for themselves so that the judge views you as the honest messenger. 
  • Shed the argumentative, judgmental tone. Science shows that this style, in fact, makes your reader less receptive to your arguments and increases their skepticism about what you say. You become a salesmen instead of a teacher or intermediary. So, no using "clearly, obviously, very clear" and the like. 
  • Your facts should be told in a story-form that persuades through your choice of details and subtle moves, like sentences that deemphasize bad facts. If you are calling another party's actions "atrocious" or contend they are "flagrantly violating the rules," you are not building the confidant persona. You just sound like every other hawker. 
  • Generalities and conclusory statements insult your reader's intelligence. If you are genuinely summarizing or introducing, fine. But blanket generalizations that you can't back up just highlights your weaknesses. 
  • Never ignore the bad facts--in the law and story. Nothing makes you look shadier. And when the judge or clerk notices what's missing, you just did the other side a favor and made the bad stuff more obvious.  
The smartest person in the room. 
 
Finally, you have to be the smart one.  You have to be so smart, in fact, that the judge thinks of you like a teacher, walking her through the complexity like it's a breeze. You should have such a clever way of looking at the cases and issues that the judge wants to take your brief--turn it into an opinion--and look good by osmosis. And let's just be honest: we trust smart people. We think they must know what they're talking about. We resist disagreeing with them--after all, we see things just like they do (because we're smart, too!). 
 
Pulling this persona off is about your raw writing chops, the time you spend understanding the law, and how deft you are at explaining complex concepts. Look at how one lawyer shows off his smarts with excellent writing skills in the following brief snippet. The writing is as clear and engaging as anything you'll read from a good journalist. He uses simple sentences, compelling structure that subtly emphasizes key points for the reader, vivid verbs, and excellent quoted dialogue. And it's all tackling some complex ideas: 
 
A “surcharge” and a “discount” are just two ways of framing the same price information—like calling a glass half full instead of half empty. But consumers react very differently to the two labels, perceiving a surcharge as a penalty[]. Precisely because the surcharge label is most effective at communicating the true cost[], the [] industry has long insisted that it be suppressed. As one industry lobbyist put it, a surcharge “makes a negative statement about the card to the consumer” and “talk[s] against the credit industry.” In justifying its law, the state openly relied on the effectiveness of the two labels, “even if only psychologically,” to encourage or discourage “desired behavior.” 
 
New York’s no-surcharge law in effect says to merchants: If you use dual pricing, you may tell your customers only that they are paying less to pay without credit (a “discount”), not that they are paying more to pay with credit (a “surcharge”)—even though they are paying more.
How to build this persona:
 
  • Spend enough time editing your prose that your writing has a luster. It must be crisp, fluid, and engaging.
  • Use fresh nouns, vivid verbs, and sentences that subtly emphasize and guide through their structure.
  • Transitions must connect every sentence, paragraph, and section until the entire document reaches a state of pure fluidity. 
  • Your document must be excellently organized so that the reader is never lost: headings are readable and make sense, introductions give the reader enough context to understand your points, and nothing comes as a surprise. 
  • Spend enough time wrestling with the law and authority until you are able to explain how it works to a lay person--like a journalist must. The simpler you can explain tough concepts, the smarter and more credible you look. 
  • To really get there, incorporate advanced writing moves (which I'll continue to cover in future posts) like sentence structures that break the rules (punchy fragments, appositive clusters, rhetorical flourishes, and an endless array of others); figurative language, or powerful examples or comparisons. 
Joe Regalia is an adjunct professor of law at Loyola University School of Law, Chicago and an attorney at the firm of Sidley Austin, LLP. The views he expresses here are solely his own and not intended to be legal advice. Check out his other articles here

 
 
 
 

March 25, 2018 | Permalink | Comments (0)

Monday, March 19, 2018

Supreme Grammar Splits

Last week, Marcia Coyle of the National Law Journal reported on a recent study by Prof. Jill Barton of the University of Miami School of Law that looks at grammar preferences among Supreme Court Justices.  Specifically, Prof. Barton looked at how the Justices use fragments, possessives, and conjunctions. For her study, she examined "every signed opinion, concurrence, and dissent from the 2014 and 2015 terms."  

On fragments, Prof. Barton found the Court split 5-4 in favor of using fragments to spice up their opinions.  While the Justices didn't use fragments frequently, they often used them memorably (think "Pure applesauce.").

On possessives, the Court split again.  Prof. Barton found that a "slim majority" of five Justices left off the apostrophe "s" when making a singular word that ends in "s" possessive (think Congress' v. Congress's).  I have to say, I am with the minority on this point.

Finally, regarding conjunctions, all but one Justice used "So" to start sentences.  The Justices are more split on whether to use "since" when they meant "because."  Three Justices only used "since" to when discussing a temporal relationship. The other Justices, however, used "since" when they really wanted to show a causal relationship.

Prof. Barton concluded with noting that, "[t]his review of the Court’s writing style shows that the Justices lean toward writing in a more liberal, modern fashion."  Interestingly, no one Justice took the "liberal" writing approach on all four points Prof. Barton reviewed.  Five Justices were "liberal" on three points, and the rest split evenly. 

March 19, 2018 | Permalink | Comments (0)

Saturday, March 17, 2018

Passive, Pinker, and Persuasion

Pinker

No construction could have survived for millennia if it did not serve a purpose.

—Steven Pinker, “Passive Resistance”

I am once again pleased to welcome Professor Patrick Barry of the University of Michigan Law School to our blog for this guest post. 

Many lawyers shutter when writers use passive constructions. Some may even hear, ringing in their ears, the voice of one of their former teachers telling them that passive constructions should be avoided at all costs.

I recommend you quiet that voice.

You don’t have to quiet it entirely. You don’t have to silence it.  More than likely, your teacher’s admonition came from a good place, a place that recognizes that active constructions are often preferable to passive constructions, that they can give your sentences a directness and vigor that passive constructions frequently don’t.

Passive constructions can be droopy. They can be sluggish. Worse, they can allow people to duck responsibility. “I’m sorry that your nose was broken” is a pretty lame apology from someone who just punched you in the face. “I’m sorry I broke your nose” is at once more active and more admirable.

 At the same time, however, a categorical ban against passive constructions is like a categorical ban against using your left hand. You may be able to get by without your left hand in many situations. You don’t normally need it, for example, to shake someone else’s hand, or to salute, or to perform the pledge of allegiance. But eventually, if you act as if you can never use your left hand, you’ll unnecessarily limit yourself and forgo a lot of creative versatility. 

The psychologist Steven Pinker describes this versatility in “Passive Resistance,” an essay that argues active constructions aren’t always the best choice. The author of several books on language and the chair of the Usage Panel of the American Heritage Dictionary, Pinker suggests that passive constructions are supremely useful when you want to put the spotlight, not on the doers of a particular action, but on the recipients. Think of the phrase “all men are created equal” from the Declaration of Independence. The spotlight is on “all men” and the equality each shares. It is not on the being who did the creating. The same is true of the very next clause, which begins “that they are endowed by . . . .“

Pinker doesn’t use the Declaration of Independence to support his point—but he could. He could also use skillful bits of legal writing. Here for, example, are two passages from briefs written by Jeff Fisher, one of the country’s top appellate advocates and the co-director of Stanford’s Supreme Court Litigation Clinic. The first passage comes from Crawford v. Washington, a case in which Fisher, using arguments developed by the University of Michigan’s Richard Friedman, persuaded the Supreme Court to radically transform the way hearsay evidence is treated in criminal trials. I have bolded the passive part.

Applying this traditional, testimonial understanding of the Confrontation Clause, the proper result here is clear: [Crawford’s] confrontation rights were violated because the State introduced a non-testifying accomplice’s custodial examination implicating him in the charged offense.

You could make that passive part active. You could write “The State violated Crawford’s confrontation rights . . . .“ But then the spotlight would be on the State. Fisher, with good reason, kept it on his client (Crawford). The passive part gave Fisher the flexibility to do that. The passive part was purposeful.

Fisher did something similar in United States v. O’Brien, another case he won in the Supreme Court. This time, however, he used a passive construction to put the spotlight, not on a person, but on the absence of an action. In fact, he used three of them right in a row.

When one of the guards fled, the men promptly abandoned the attempted robbery. O’Brien drove Burgess and Quirk away in the minivan. No shots were fired, no money was taken, and no one was injured.

A version of this passive trifecta was picked up and used in the Court’s majority opinion, which eight of the nine justices signed and Justice Anthony Kennedy penned. “[O’Brien, Burgess, and Quirk] abandoned the robbery and fled without taking any money,” Kennedy wrote in his description of the facts of the case. “No shots were fired, and no one was injured.

***

Does this mean that if you use passive constructions, the Supreme  Court and other key decision makers will be persuaded by your arguments?

No. It doesn’t mean that at all. In the Supreme Court and most every place else, sound strategy still favors active constructions. No style guide I know comes out against them. And particularly if you are just starting out at a new job, in a new class, or with a new boss, you should keep in mind that frolics into the passive may be judged harshly. So here’s some advice I give my students. It has three parts.

  • Part 1: Know the difference between passive constructions and active constructions. Writing in the Los Angeles Times, grammar columinist June Casangrande explains the difference this way:

The passive voice, sometimes called simply “the passive,” describes a very specific relationship between a [] verb and its object. For example, “coffee” is the object of the verb “made” in “Joe made coffee.” This is active voice because the doer of the action is also the subject of the sentence.

But what if we said instead, “Coffee was made by Joe”? Now the coffee, the thing receiving the action of the verb, is the grammatical subject of the sentence, upstaging the person who's actually performing that action.

That’s passive voice. It takes the object of a verb and makes it the grammatical subject of the sentence by using a form of the verb “be” paired with what’s called the passive participle, which is identical to the past participle.

The result often takes the form “Blank was blanked by blank.”

  • Part 2: Don’t slip into passive constructions accidentally. They are likely to bring with them a bunch of extra words, each of which may weigh down and de-energize your sentences. They also sometimes make it harder for readers to figure out what you are trying to say. Which is a reason why articles in various science journals—including two of the most prestigious ones—have at different points encouraged writers to use active constructions instead.

Nature journals prefer authors to write in the active voice (“we performed the experiment. . .”) as experience has shown that readers find concepts and results to be conveyed more clearly if written directly.

            —“Writing for a Nature journal” (Nature)

Choose the active voice more often than you choose the passive, for the passive voice usually requires more words and often obscures the agent of action.

            —Submission Guideliness (Science)

  • Part 3: Do use passive constructions purposefully, particularly when trying to keep a certain person, idea, object, or non-action “spotlight” in the spotlight, as Jeff Fisher did in those two Supreme Court briefs and as skilled writers do all the time.

If you are worried that your purposeful use of a passive construction will be interpreted as an accidental use of a passive construction, a further step would be to use a comment bubble, post-it note, or some other annotation to tell your teacher or supervisor that your choice was deliberate. Even if she ultimately changes the construction back to active, at least she’ll know you are someone who thinks carefully, even strategically, about the words you choose. That’s unlikely to hurt your career prospects.

Patrick Barry teaches at the University of Michigan Law School. He is the author of the forthcoming book Good with Words: Writing and Speaking and the curator of Good Sentences, a digital library premised on the idea that to write good sentences, you need to read good sentences.

March 17, 2018 | Permalink | Comments (0)

Thursday, March 15, 2018

Thinking Thursdays: Know your logical fallacies (Part 1)

Ruth Anne Robbins, Distinguished Clinical Professor of Law, Rutgers Law School

Faulty reasoning undermines the substances of a legal argument as well as the credibility of the advocate. After a quick search of the online briefs available on Westlaw and Lexis, I can safely tell you that several thousand appellate briefs reference logical fallacies—typically as a precursor to a direct refutation of an opposing party’s argument. How many of us these days know our logical fallacies as well as we should?

Beyond calling out opposing counsel for these errors, the wise attorney also tests their own writing to see if they have relied on fallacious thinking. In most logical fallacies, something has gone wrong with the legal syllogism. In a sense, the major premise of a syllogism is a rule, while the minor premise is a fact. The conclusion flows from the application of the rule to the fact. Here is a simple example.[1]

            Major premise:          The speed limit where defendant was arrested is 45 MPH.

            Minor Premise:          The working-perfectly radar gun clocked defendant at 63 MPH.

            Conclusion:                Defendant was speeding

In most logical fallacies, some part of the syllogism fails. There are four major categories of logical fallacies in law. Today’s blog entry goes through the first two groups of common fallacies: the non-sequitur fallacies and the insufficient evidence fallacies. The next Thinking Thursday blog entry will discuss two other categories: shallow thinking and avoidance fallacies.  

Logic 21. Non-sequitur fallacies. In a non-sequitur, the major premise is applied incorrectly to the minor premise. You can recognize these when the conclusion does not logically flow from the premise

1.1  The correlation equals causation fallacy commonly appears with statistical analyses. The arguer claims that because A and B appear together A must have caused B. The argument that the MMR vaccine causes babies to develop autism is a classic example of this type of fallacy. This amusing site shows these fallacies taken to the extreme.

1.2  The post hoc fallacy is closely related to the correlation/causation fallacy. The arguer claims that because A occurrence is followed by B occurrence, A’s occurrence must have caused B to occur. For example, after I ate an apple, I won an award—ergo, eating the apple caused me to win the award. In law, this sometimes shows up this way: When Pat drinks, Pat becomes violent. Therefore, Pat’s violence is caused by alcohol. That is a logical fallacy. Alcohol may lower inhibitions but does not cause violence by itself. 

2. Insufficient evidence fallacies contain faulty minor premises—faulty because they are false or based in inadequate material. There are three major types of these.

2.1  The hasty generalization fallacy happens when lawyers draw big and general conclusions from too small a sample size or from unrelated evidence. “Climate change has been solved because this winter New Jersey saw frigid temperatures in late December and early January, and because it saw two nor’easter storms in March.” In that example, the weather from one three-month period is being used to argue that a decades-old phenomenon is over or never existed. To show this syllogistically:   

Major premise: Climate change is making things warmer

Minor premise (flawed): weather over a three-month period matters to climate change

Conclusion (faulty): Climate change is over or solved.

2.2  The anecdotal evidence fallacy is related to the hasty generalization fallacy. The anecdotal evidence fallacy occurs when there is simply inadequate evidence to support the minor premise.

Major premise:  Some cities offer Segway tours of tourist areas.

Minor premise (flawed): I have never seen people on a Segway tour of Philadelphia.

Conclusion (faulty): Philadelphia does not have Segway tours.

2.3  Finally, shallow legal research can lead to the Texas sharpshooter fallacy. As a classic example, a person shoots an arrow at a barn wall, and then draws a bullseye around the arrow in the wall. That’s a logical fallacy and happens in the minor premise—i.e. “this is a target with a bullseye.” A Texas sharpshooter fallacy happens when someone builds legal analysis and argumentation around incomplete legal research. Think of this fallacy as related to a confirmation bias—when the legal researcher stops researching when they find a result that demonstrates the governing rule that they want for their client, versus what the rule might actually be.

**********

It is easy enough these days to practice spotting logical fallacies simply by watching television. Many advertisements use fallacious reasoning in the marketing. Politicians will sometimes fall into the logical fallacy trap as well—watching the news for a week or two should net you a few examples. But, most importantly, review your own advocacy for these common errors.

] Thank you to Professor Ken Chestek (Wyoming) and Professor Steve Johansen (Lewis & Clark) for these examples. They come from the upcoming second edition of our co-authored textbook, Your Client’s Story: Persuasive Legal Writing (2d ed. Wolters Kluwer, expected publication date of later this year).

March 15, 2018 in Appellate Advocacy, Appellate Practice, Appellate Procedure, Federal Appeals Courts, Law School, Legal Ethics, Legal Profession, Legal Writing, Moot Court, Oral Argument, Rhetoric, State Appeals Courts | Permalink | Comments (1)