Monday, January 15, 2018
Today our country remembers Dr. Martin Luther King, Jr. In fact, this year the observed holiday falls on Dr. King's actual birthday--January 15. While there is much to reflect on from Dr. King's life and career, I wanted to focus today on how his writings--specifically his Letter from a Birmingham Jail--can be used to teach persuasive argument.
Dr. King wrote the letter in April 1963, after being arrested for participating in a march without a permit (and in violation of a court order against such demonstrations). The letter was written in response to a statement published in a Birmingham newspaper by eight Alabama Clergymen criticizing the march. The interdenominational group of clergy urged the African-American community in Birmingham to "withdraw support form these demonstrations" and pursue their cause "in the courts and in negotiations among local leaders."
The Letter, which was written in four days, serves as a strong justification for defying unjust laws. It also vividly demonstrates Aristotle's three modes of persuasion: (1) logos (appeal to logic); (2) ethos (appeal to character); and (3) pathos (appeal to emotion). Interesting, as Professor Emertius Mark DeForrest has noted, citing one of Dr. King's associates, Dr. King "had a comprehensive mastery of the forms of classical rhetoric, obtained not directly from the classical Greek and Roman sources, but from the religious patrimony of scripture and pulpit." Still, as Professor DeForrest demonstrates in his article, Dr. King's Letter "can function effectively as an introduction to classical methods of persuasion because the strategies
and tactics of his presentation exemplify those rhetorical tools."
For example, Dr. King demonstrates logos early in the Letter when "he explains to his readers why it is he came to Alabama to engage in non-violent direct action." As Professor DeForrest explains,
The clergy claimed that the situation in Birmingham was one of “new hope,” and that such “extreme measures” as non-violent protests were unnecessary. King effectively
thwarts that argument by noting that Birmingham’s civil rights situation was far from hopeful—the city was, in his words, “probably the most thoroughly segregated city in the United States.” King then focuses on the recurring and insistent call by the clergymen for local negotiations to solve the racial difficulties in Birmingham.
After reciting a litany of abuses heaped upon the African-American community in Birmingham, King notes that African-American leaders had sought to negotiate with the leadership of the city, but to no avail. He goes on to recount that efforts to talk to members of the business community also were fruitless. In the end, King states, “[W]e had no alternative except to prepare for direct action. . . .” Yet, he explains, the purpose of direct action was not to prevent dialogue, but to create the conditions necessary for real negotiation to occur.
Dr. King also uses ethos in the Letter, especially in explaining the need for civil disobedience. Professor DeForrest writes,
King addresses the issue head on and notes that the clergymen had “express[ed] a great deal of anxiety over our willingness to break laws.” This concern went to the heart of King’s character and credibility. After all, could it not be inferred from his selective embrace of the law—supporting the enforcement of Brown v. Board of Education while refusing to follow the ordinances of Birmingham, Alabama—that he was a dangerous hypocrite, a radical who would speak out of both sides of his mouth in order to get what he wanted? King does not try to minimize or explain away the clergymen’s concern, but acknowledges that it was “legitimate.” It appeared “paradoxical,” he writes, to insist
on obedience to Brown v. Board of Education while at the same time advocating the non-violent violation of laws pertaining to marches and other forms of demonstration. King then launches into a sustained explanation of the moral basis of the Civil Rights Movement’s use of civil disobedience, pointing out that the paradox
was resolved once one understood the distinction between just laws, which should be obeyed, and unjust laws, which “one has a moral responsibility to disobey. . . .”
Finally, with respect to pathos, Professor DeForrest notes that Dr. King uses it in the Letter to support his logical and factual arguments. Professor DeForrest specifically points to "one of the most moving passages in the letter" where Dr. King uses history and vivid examples of segregation and it's impact of segregation on the African-American community to challenge the clergymen's call to just wait.
In addition to discussing Dr. King's use of classical rhetoric, Professor DeForrest points out other ways in which Dr. King uses persuasive tactics to convince his audience--including Dr. King's use of authorities and "evocative, plain language." For those looking for a new teaching tool this spring, Dr. King's Letter and Professor DeForrest's article provide an excellent framework.
Thursday, January 4, 2018
Extra! Extra! In a Post-Facts World, Facts Still Matter!
Yesterday, Slate published an important cover story written by Daniel Engber, LOL, Something Matters, in which he assures readers that facts still have power. In it, he outlines and reviews some of the scientific studies, old and new, that have analyzed the effects of presenting facts to counter false beliefs. There’s good news in the most recent studies. Facts do have an effect on debunking false information or myths.
The new science supporting the importance of factual persuasion, ironically has its own factual persuading to do. People who know a little bit about the science of managing adverse material typically rely on a small sample-size study conducted by Brendan Nyhan and Jason Reifler, When Corrections Fail: The Persistence of Political Misperceptions. Two years prior to its actualy publication, the study was written up in mass-consumption media as part of the 2008 election fever. The stories tended to make dire predictions that fact-checking news stories would end up rallying people to become more firmly entrenched in their beliefs in the falsehoods. This phenomenon was termed the “backfire” or “boomerang” effect. Oxford Dictionaries selected “post-facts” as the 2016 word of the year, based in part on these studies.
Graduate students at different universities became interested in the Nyhan-Riefler paper, and attempted to replicate them, to no avail. The new studies were 103 times larger than the studies done by Nyhan and Riefler. One set of graduate students used over 10,000 test-subjects and another graduate student group used almost 4,000. The data tended to show the opposite: none of the conditions resulted in any evidence that people adhered to their views when presented with facts that showed the opposite was true. Rather, the studies showed that the test-subjects were more likely to adapt their views to better fit the facts.
Rather than challenge the new science, essentially debunking theirs, the original scientists, Nyhan and Riefler collaborated with one of the other sets of researchers to conduct new studies. The foursome posted a 60-page article in the summer of 2017, The Effect of Information on Factual Beliefs and Candidate Favorability,  concluding that people are willing to update factual beliefs when presented with “counter-attitudinal informaton.” However, they further concluded that updated factual beliefs might have only minimal effects on attitudes towards a political candidate. The very creators of the backfire/boomerang effect have questioned—some might say debunked—their own previous work. And the Slate article has set out to help publicize the new studies. Facts still matter.
So, what does the appellate lawyer take from all of this? Well, two things. First: the new studies give credence to the idea that the better way to manage adverse material is to disclose and refute it, rather than ignore it. Kathy Stanchi, a Professor of Law at Temple University has advised this in her germinal article, Playing With Fire: The Science of Confronting Adverse Material in Legal Advocacy. As cited in Professor Stanchi’s article, other scientists have suggested ways to confront adverse material—to immediately refute it when mentioned.
Second, the wise appellate lawyer, turns to one of the resources that Daniel Engber cited in the Slate article, John Cook and Stephan Lewandowsky, The Debunking Handbook, available for free download (7 pages). The handbook offers an “Anatomy of an effective debunking” on page 6. The last of the advisory elements is to present information graphically, so I will end this blog post with a chart.
Elements, per handbook
Explanation in handbook
Refute by emphasizing the key facts. This will create a gap in the knowledge of the audience—a hole where the falsities used to take up space
This isn’t said in the text of the handbook, but the examples do mention a need for the key facts to present as a cohesive, alternative narrative.
Before mentioning the myth or falsehood, provide textual or visual cues that upcoming information is false
In legal writing-ese, this advice suggests that the writer mention the myth only after presenting the true facts. That gives the truth the position of emphasis in a subsection or paragraph.
Any gaps left by the debunking needs to be filled. Achieve this by providing an alternative causal explanation for why the myth is wrong (and perhaps why the falsities spread).
This isn’t said in the text of the handbook, but the examples do mention a need for alternative explanation to present as a cohesive, alternative narrative. In other words, story persuades. Stories are organizational scaffolds that present information as cause à effect
Core facts should be displayed graphically, if possible.
For lawyers, the legal reasoning may also be presented with infographics. But, not all infographics are useful infographics--some are merely decorative and others might be off-point. The writer must always balance the usefulness with the impact on persuasion. For more on this, see Steve Johansen and Ruth Anne Robbins, Art-icuating the Analysis: Systemizing the Decision to Use Visuals as Legal Reasoning, 20 Legal Writing 57 (2015).
 32 Political Behavior, 303 (2010). The study used 130 undergraduate students at a Catholic university. These students were split among four different modules. Id. at 312.
 Brendan Nyhan, Ethan Porter, Jason Reifler, and Thomas Wood, Taking Corrections Literally but not Seriously? The Effect of Information on Factual Beliefs and Candidate Favorability (June 29, 2017), available on SSRN at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2995128 (last accessed January 3, 2018).
 60 Rutgers L. Rev. 381 (2008).
 Id. at 390–92.
January 4, 2018 in Appellate Advocacy, Appellate Practice, Current Affairs, Law School, Legal Ethics, Legal Profession, Legal Writing, Moot Court, Rhetoric, State Appeals Courts | Permalink | Comments (0)
Thursday, December 7, 2017
Professor Ken Chestek at the University of Wyoming College of Law has created two different empirical studies about persuasion and narrative, using judges as the test subject. For that rarity alone, his scholarship stands out as important for lawyers to read. In his most recent article, Fear and Loathing in Persuasive Writing, he asked the question of whether the “negativity bias,” known to psychologists, works with judges as well as it works with voters. The answer is the standard one you would expect from a lawyer, “it depends.” That the answer isn’t a definitive “no way,” should give us pause as advocates. Our intuitive answer that we naturally graviate towards the positive turns out to be the opposite of how our brains work. Rather, as Chestek writes, “we have a natural inclination to attend to and process negative stimuli.” Scientists posit that we retain negative information longer because the brain processes it more thoroughly—perhaps as a necessary adaption in evolution to keeping ourselves alive. He reviews the science of negativity and implications for lawyers in greater detail in another recent article, Of Reptiles and Velcro: The brain’s “negativity bias” and Persuasion
In his eighteen-month empirical study with 163 judicial readers, Chestek used a series of nine appellate brief preliminary statements to test the power of positive versus negative themes in a simulated case file. Four were positive, four were negative, and one was neutral. By themes, Chestek references George Lakoff’s formuation of “deep frames,” an idea Chestek wrote about in his other empirical study about judges and the persuasive power of story (You can read a snippet of George Lakoff’s framing concepts here).
Ultimately, Chestek’s concludes that the results don’t provide bright-line answers, but instead point towards complexity. Positive themes seem to focus the judges’ attention on the state of the governing law whereas negative themes focus their attention more on the nuances of the facts. He also found that negative themes work better for a David facing Goliath rather than vice versa.
This phenomenon has significant implications for written legal advoacy, starting with theme selection. That strategy should factor in the strength of the legal position or the facts. Second, the negativity bias might lead an advocate to phrase policy arguments in terms of avoiding bad outcomes instead of promoting good outcomes, since the judge may process the negative statement more thoroughly. And, finally, the negativity bias suggests that it is critically important to understand the negative facts of your client’s case and the ways they can or cannot be managed.
 For more on the persuasiveness of Preliminary Statements, see Steve Johansen’s article, Coming Attractions: An Essay on Movie Trailers and Preliminary Statements, and Maureen Johnson’s article, You Had Me at Hello: Examining the Impact of Powerful Introductory Emotional Hooks Set Forth in Appellate Briefs Filed in Recent Hotly Contested U.S. Supreme Court Decisions.
 Base photograph by Kenneth D. Chestek—photography is one of his hobbies.
Thursday, October 26, 2017
What is the narrative climax in the Little Red Riding Hood fable? When the wolf eats Little Red. But what is the visual impact moment? The image you think about when you recall the story? That’s
probably different. It’s either an image of a little girl in a red cape, walking through the woods or it’s the moment when Little Red first sees the wolf in Granny’s bed, wearing Granny’s nightclothes. The visual impact moment can be different from the story’s climax.
Jason Eyster writes about visual impact moments in one of my all-time favorite articles in the Applied Legal Storytelling canon. His article, The Lawyer as Artist, in Vol. 14 of the Journal of Legal Writing, explores the use of scene and setting as a persuasive tool for legal writers. This article is creative, and always fresh. It is one that I re-read and think about at least once or twice a year. The idea of the setting isn’t often discussed in the persuasion literature, but, as Eyster argues, can create lingering impressions. The legal writer who takes time during a description to linger on choice details will make the scene “pop” for the reader those visual images will provoke a natural, emotional response. The visual impact scene need not be the climax, but should connect to the case theme. If you can connect it to the theory of the case, all the better.
So, how do you do it? Eyster offers one idea: the obtuse object. That is something unexpected or incongruous with a scene that draws in the reader through a natural curiosity. In one of his examples, an asylum case, the legal writer zeroes in the description of his client, sitting in her former home and eating a pomegranate just before hearing a sinister knock on her door—one that results in her being dragged away by militia in her country. The simple mention of the pomegranate serves to draw the reader into the scene. It evokes the famous Persephone myth of a young woman dragged into hell while her mother tries to have her released. The scene is made all the more emotional for its layers of meaning.
Think about the scene in your client’s case that you hope the judicial panel will likewise remember when they put down the brief. Is it the scene you want? If it’s the same scene your opponent might choose, think of another one. If it is the scene you want, have you chosen some memorable detail to describe—an action, an object, a character, or the setting itself. Describe it with a name, sensory information, its function, its history, or a metaphor. Things like this put joy and art into the job of legal writing.
Thursday, September 28, 2017
Cartoon feminist-heroine, Kim Possible, knew that understanding the rhetorical situation was key to her work of saving the world. Likewise, it's incumbent upon appellate attorneys to contemplate the process of what it is we do as legal advocates—and why we do it. Understanding the nature of rhetorical situations involved in appellate advocacy make us better lawyers.
As a problem-solver of already existing issues, Kim Possible is channeling Lloyd Bitzer, a rhetorician who wrote a short but germinal essay, The Rhetorical Situation. In that article, Professor Bitzer defined rhetorical discourse as an attempt to problem-solve through communication that has been tailored to the specific circumstances and multiple audiences who can work towards the response. Bitzer’s idea was challenged by Professor Richard E. Vatz, in his article, The Myth of the Rhetorical Situation, with the argument that the situation can be created and defined by the communication rather than vice versa. He takes the position that the writer or speaker’s selection of facts and arguments from the panoply of available material constructs the shape of the situation as perceived by the audience. That is, the speaker/writer has some control about what is or isn’t salient to the audience.
In the world of appellate advocacy, both Bitzer’s and Vatz’s ideas ring true and both are worth considering. The circumstances that form the requirement of our legal communication do exert the type of control on the legal writer’s choices that Bitzer imagines. An appeal is an exigency, and the appellate legal writer’s messaging must take into account the needs of the audience, the constraints of the controlling law, and consideration whether it is the appropriate timing for any policy arguments (i.e. whether this is an opportune moment for that type of argument). At the same time, the decision to take a specific course in a legal matter helps create and shape what will be pertinent. There is no exigency of an appellate brief, for example, until a party files a notice of appeal outlining the issues raised.
What’s the takeaway? Both Bitzer and Vatz have something to teach appellate lawyers. The two articles are easy reads at fifteen pages and eight pages respectively. While it is important to study persuasive techniques to use in an appellate brief—techniques that appeal to the multiple audiences and that suggest a response, lawyers should also remember that the context and form of the rhetorical situation is also at least somewhat in the control of the appellate lawyers.
In the meantime, I am delighted to have been selected to join this group of bloggers. Please: call me, tweet me, if you want to reach me. -Ruth Anne Robbins
Monday, September 11, 2017
This week, Attorney General Jeff Sessions announced the end of Deferred Action for Childhood Arrivals (DACA). This announcement caused a public outcry, as well as a response from former President Obama, whose administration had spearheaded the program.
Sessions and Obama spoke of DACA in very different terms, no doubt trying to persuade those who were still undecided, but also trying to connect with those who already agreed with them. Their two short statements illustrate core principles of legal persuasion because their words created network of favorable connections in the minds (and hearts) of their audiences.
Sessions, for example, referred to the program as “DACA”, a flat, bureaucratic acronym. Is there anything drearier than an acronym? The word “DACA” sounds like something worth getting rid of – whatever it is. Moreover, using “DACA” allowed Sessions to characterize the program as borderline illegal -- “an open-ended circumvention of immigration laws” that allowed “800,000 mostly-adult illegal aliens” to remain in the U.S. In Sessions’ statement, it is easy to dismiss the DACA participants as “other” – as people breaking the law -- not like “us.”
Contrast “DACA” with the program’s popular name, the “Dreamers.” Whereas DACA sounds emotionally flat, “Dreamers” triggers one of the most evocative and compelling cultural stories we have, the American Dream. James Truslow Adams described the American Dream in the early 1930s as the idea that "life should be better and richer and fuller for everyone, with opportunity for each according to ability or achievement" regardless of social class or circumstances of birth.
Imagine how dissonant Sessions’ message would have been if he’d said the “Dreamers” were “mostly-adult illegal aliens.” Such a semantic and emotional flub might have damaged Sessions’ message even with those inclined to agree with him. No American wants to connect the “American Dream” with “illegal” behavior.
By contrast, Obama’s statement took the American Dream connection and ran with it. He called the Dreamers “young people who grew up in America -- kids who study in our schools, young adults who are starting careers, patriots who pledge allegiance to our flag.” Not “other” people but “kids” “Americans” and “patriots” just like “us” (or our kids). More than that, these young “Dreamers are Americans in their hearts, in their minds, in every single way but one: on paper.”
Like these political rhetoricians, lawyers and judges are effective in legal persuasion when they help their audiences make favorable connections. Those connections can be semantic (illegal versus patriot) or they can be emotional (we are all Dreamers). They can prime our biases (those people are illegal or my grandparents were immigrants). In the end, the way we talk about the “dreamers” provides a powerful example of persuasion -- of how to forge connections that allow us to influence others.
UNLV Law Professor Linda Berger and Temple Law Professor Kathy Stanchi are the authors of Legal Persuasion: A Rhetorical Approach to the Science (Routledge), a book that explores how legal persuasion results from making and breaking mental connections, using examples from law and politics.
Monday, July 10, 2017
Chief Justice John Roberts made headlines last week. It wasn’t a hot-button 5-4 opinion at the end of the SCOTUS term that caught the media’s attention this year. But, it was a piece of writing that the Washington Post called “[t]he best thing Chief Justice Roberts wrote this term.” So, what was it? Well, it was a graduation speech delivered to the graduating class at Cardigan Mountain School, where the Chief’s son Jack was graduating ninth grade.
It is hard to believe that the Chief’s son is graduating ninth grade. I remember seeing him “dance” at the press conference in July 2005, when President Bush announced John Roberts’ nomination to the SCOTUS. You can watch the video here. Apparently, young Jack was impersonating Spiderman.
What makes this speech so great? It is certainly funny (see this line: “You’ve been at a school with just boys. Most of you will be going to a school with girls. I have no advice for you.”). But that is not what makes the speech stand out. What makes the speech so unique, and what has drawn attention, is the section of the speech where Chief Justice Roberts tells the students that he hopes that they will be “treated unfairly” and have “bad luck.” He says:
Now the commencement speakers will typically also wish you good luck and extend good wishes to you. I will not do that, and I’ll tell you why. From time to time in the years to come, I hope you will be treated unfairly, so that you will come to know the value of justice. I hope that you will suffer betrayal because that will teach you the importance of loyalty. Sorry to say, but I hope you will be lonely from time to time so that you don’t take friends for granted. I wish you bad luck, again, from time to time so that you will be conscious of the role of chance in life and understand that your success is not completely deserved and that the failure of others is not completely deserved either. And when you lose, as you will from time to time, I hope every now and then, your opponent will gloat over your failure. It is a way for you to understand the importance of sportsmanship. I hope you’ll be ignored so you know the importance of listening to others, and I hope you will have just enough pain to learn compassion. Whether I wish these things or not, they’re going to happen. And whether you benefit from them or not will depend upon your ability to see the message in your misfortunes.
Chief Justice Roberts does offer the students some advice that I think relates to appellate advocacy. He reminds the students that, although they are “privileged,” they should not act like it. Rather, when they get to their new schools, they should “walk up and introduce [themselves] to the person who is raking the leaves, shoveling the snow or emptying the trash. Learn their name and call them by their name during your time at the school.” He also told them to smile and say “hello” to people that they do not recognize when taking walks. He said, “[t]he worst thing that will happen is that you will become known as the young man who smiles and says hello, and that is not a bad thing to start with.”
This exhortation to treat others with kindness is a lesson that many attorneys could stand to learn. When I was clerking, there was a story told around the courthouse about some attorneys looking for a courtroom. One of the judges, who was not in his robe, stopped to help them. But, when he told them that he only knew the courtrooms by carpet color (which is how all the judges, clerks, and court staff referred to the courtrooms) and not number, the attorneys were quite rude to him. He wasn’t on their panel, but I do believe that he spoke to the judges who were. A little kindness to the clerk’s office, the marshals, the janitorial staff, and the unknown person offering help, goes a long way!
The Chief offers some other great advice, so I encourage you to read his full remarks here.
Monday, December 19, 2016
It is the "most wonderful time of year" for law professors--grading season! So, the blogging may be a little light over the next few weeks. Still, I wanted to blog on what I have been reading when I am not reading exams.
I have been on a mission to read a biography of every president. I was inspired by Stephen Floyd, an investment banker who has been reading and reviewing presidential biographies since 2012. The Washington Post also has a list of good presidential biographies. Reading presidential biographies has added a lot to my teaching, especially in constitutional law. I was thinking the other day, however, about our early president-lawyers and effective communication.
Three of our four first presidents were trained in the law--John Adams, Thomas Jefferson, and James Madison. These three men were gifted writers and credited with drafting (or playing a significant role in drafting) our country's most foundational documents. Jefferson (with Adams' help) drafted the Declaration of Independence, and Madison is often called the "father of the Constitution." Madison is also well-known for his writings related to Virginia politics.
Of these three men, however, only Adams was a gifted speaker. Jefferson, Madison, and Washington, were all terrible public speakers. When they delivered public addresses to Congress people often had to strain to hear them.
With the advent of radio and television, we put much greater emphasis today on our presidents being excellent public speakers. Bill Clinton--another president-lawyer--was known as the great communicator. President Obama too is effective at pubic speaking. While these men have written books as well, as have many past presidents, these books tend to be more of the autobiographical genre, rather than the political philosophy that our early president-lawyers wrote on.
In law school we focus heavily on teaching our students to be effective legal writers. Sadly, this task is getting more difficult each year. Twitter, Snapchat, Facebook, and the like are changing how our students think about writing and communicating. However, we must not got weary in our task. So, grade on law professors, grade on!
Thursday, September 4, 2014
Just nine days after hearing argument, the Seventh Circuit has issued its opinion in Baskin v. Bogan. Unsurprisingly, the court affirmed the district court judgments “invalidating and enjoining . . . prohibitions of same-sex marriage.” In the 40-page opinion, Judge Posner took time to address the ineffectiveness of the arguments advanced by the petitioners. He wrote, “the only rationale that the states put forth with any conviction—that same-sex couples and their children don’t need marriage because same-sex couples can’t produce children, intended or unintended—is so full of holes that it cannot be taken seriously.” (emphasis in original). Even though the states had significant legal precedent on their side, at the time of the oral arguments it did not seem like the Seventh Circuit was likely to be persuaded by any of those arguments. This opinion is final confirmation.
The opinion is lengthy but well-written and soundly reasoned. I’d like to highlight just a few characteristics. First, it is an excellent example of issue-framing to achieve a desired result. Rather than getting too bogged down in the minutiae of rational basis, Judge Posner effortlessly frames the question in such a way as to mandate a higher level of scrutiny. Specifically, he reasons that “more than a reasonable basis is required because this is a case in which the challenged discrimination is . . . ‘along suspect lines.’” Second, Judge Posner ably relies on scientific (non-law) data to support his conclusions. He even relates that data, through the “kin selection hypothesis” (or “helper in the nest theory”), to evolution by arguing that “[a]lthough it seems paradoxical to suggest that homosexuality could have a genetic origin, given that homosexual sex is non-procreative, homosexuality may, like menopause, by reducing procreation by some members of society free them to provide child-caring assistance to their procreative relatives, thus increasing the survival and hence procreative prospects of these relatives.” Finally, Judge Posner makes effective use of tabulation to smoothly advance the argument and signpost the logical connections of his reasoning. It’s a fantastic exemplar of writing that simplifies complex legal arguments in a sophisticated and accessible way. Definitely a fascinating and worthwhile read.
Friday, August 29, 2014
Michael Doyle, McLatchy Washington Bureau, has a brief blog post today comparing the opening lines of these D.C. Circuit opinions issued today. He juxtaposes two fact-oriented openings, one that makes terrific use of short, declarative sentences, with a law-oriented opening containing multiple mid-sentence citations.
It’s an interesting dichotomy. This eye-catching difference invites further inquiry into: 1) what is the standard model of judicial opinion writing and 2) what difference does it make in the application of the law. Perhaps further study is warranted by some enterprising scholar, beyond the single day’s anecdote out of the D.C. Circuit, but it seemed worth passing along.
Wednesday, August 27, 2014
Yesterday the 7th Circuit heard argument in Baskin v. Bogan, a case involving Indiana’s same-sex marriage ban. These arguments provide some noteworthy lessons in decorum. Appellant’s counsel began his argument by articulating a precise roadmap in simple, comprehensible terms. He was barely able to finish the first sentence of his first point, however, before being interrupted by one of the judges. Certainly interruptions are to be expected during oral arguments. This interruption, however, initiated a parade of horribles so grand that it left appellant looking like a monster. Throughout the argument, appellant’s counsel struggled to finish a single response before getting pounced with additional questions. When he attempted to advance his own argument in response to a question, he was immediately admonished to answer the question. At one point, another judge even explicitly said the court had no intention of allowing him to advance his own argument. Curiously, the court was not interested in the rich logos arguments appellant was attempting to advance. The judges wanted to know about the pathos arguments like the psychological impact on the children of same-sex couples and the various sociological, anthropological, and psychological literature available on the issue.
Appellant’s counsel professionally withstood the barrage of questions, although his frustration at times was evident in his voice. Toward the end of the argument, though, he became much more adamant in his disagreement with the court’s hypotheticals. His frustration showed both in his word choice and tone of voice. By comparison, both attorneys for the appellee came across much more composed. Granted, the court appeared to favor that side, so their argument was more readily received. The moral of the story is that attorneys should be prepared to frame logos arguments in pathos terms when the logical argument leads to a necessary result the court is reluctant to adopt.
Tuesday, May 27, 2014
When I first began blogging, I focused on exploring category construction as a tool of appellate advocacy. Today, I want to talk about the second given: categories imply a world that contains them. It basically boils down to container logic—does the object fit within the parameters defining the category? If so, it belongs, and if not, it obviously does not belong.
The way a category is defined necessarily constructs the boundaries surrounding what belongs. Take for instance the category of planets. When I was growing up, I was taught we had nine planets in our solar system: Mercury, Venus, Earth, Mars, Jupiter, Saturn, Uranus, Neptune, and Pluto. Those nine belonged to the “world” of planets. But in 2006, astronomers declared that Pluto is no longer a planet. This change occurred because the category of planets was redefined. Pluto belonged to the world of planets when the definition did not require a planet to dominate the neighborhood around its orbit. Once the category changed to require a planet dominate its neighborhood, Pluto, whose moon is half its size, got nudged out of this world containing planets.
In terms of appellate advocacy, this principle becomes incredibly important, especially in light of the first principle that categories are made and not found. We see attorneys constantly battling over how to define the legal world applicable to a given case, and in judicial opinions we see judges struggle to define a world clearly encompassing the resolution of the case. Take for example a recent Ninth Circuit opinion, United States v. Ezeta. There the defendant successfully moved to dismiss an indictment by claiming that the defendant did not “obtain” federal financial aid as defined by the statute. The defendant claimed that “obtain” as used in the statute meant to exercise dominion and control over the financial aid, and that since the defendant had assisted other students in completing and submitting forms, he had not exercised dominion and control over the funds in violation of the statute.
On appeal, the Ninth Circuit reasoned that the category of “obtain” as adopted by the district court defined a world that was far too narrow. In a relatively straightforward statutory analysis, the Ninth Circuit defined a world around the meaning of “obtain” to include procurement on behalf of someone else. In so doing, the Court created a world large enough to encompass the acts committed by Mr. Ezeta, and his case has now been remanded for prosecution in District Court.
As advocates, attorneys must constantly assess the boundaries of the world surrounding legal disputes. This principle that categories imply a world that contains them provides appellate attorneys the creative power to identify existing categories and imagine better ones for solving legal disputes.
Monday, March 31, 2014
This post is the second in the series on Categories that I began late in February. Today we begin with the first premise: categories are made, not found. As lawyers, we often take for granted the applicability of pre-existing categories of law. The doctrine of stare decisis has a stronghold on our legal thought processes. History teaches us, however, that the law has the ability to evolve and redefine over time. This phenomenon has been described by Anthony Amsterdam and Jerome Bruner in their book, Minding the Law. They observe that “category systems derive from canonical general theories of the world and template narratives about life; when these theories or narratives are contorted too much or too obviously, when they come to be seen as endangered, we have culture wars and fierce debates about paradigm shifts…”
Over the last few years, the Supreme Court has been engaged in just this sort of fierce debate over Fourth Amendment jurisprudence. Historically, the Fourth Amendment has been categorized as a privacy interest, which the Court defined in Katz v. United States, 389 U.S. 347 (1967). In 2012, however, the Court articulated a new category of Fourth Amendment protection related to property interests. United States v. Jones, 132 S. Ct. 945 (2012). Since then, the Court has been unable to reach strong consensus on its Fourth Amendment jurisprudence, as marked by cases such as Bailey v. United States, 133 S. Ct. 1031 (2013), Missouri v. McNeely, 133 S. Ct. 1552 (2013), Florida v. Jardines, 133 S. Ct. 1409 (2012), and Maryland v. King, 133 S. Ct. 1 (2012), among others. This new category has prompted a fruit-basket turnover in terms of the alliances amongst the members of the Court, and resolution of Fourth Amendment cases is more unpredictable than ever. Brooks Holland, Associate Professor of Law at the Gonzaga University School of Law, provides a concise analysis of the competing jurisprudential categories that have emerged since the Jones decision in his review of The Fourth Amendment in the October 2012 Term.
The recent evolution of Fourth Amendment jurisprudence proves that the Court is willing to redefine categories of law, even well-established ones. This evolution does not necessarily occur sua sponte, though. Appellate advocates participate in the creation of new categories by breaking down existing barriers and reconstructing new ones. Consider how each case begins with a given set of facts and law. Within those facts and law, the advocate has the power to tap into pre-existing categories or create new ones. If a pre-existing category supports the desired result, exploiting that category and relying heavily on principles of stare decisis would be beneficial to the advocate and would perpetuate the existing category. By the same token, when the law or facts are not easily categorized in existing frameworks, or the existing framework demands a negative result, the advocate must deconstruct and redefine the boundaries in a way that is acceptable to the reader.
These paradigm shifts, of course, take time. Recall, that “category systems derive from canonical general theories of the world and template narratives about life.” (Minding the Law) Thus, to achieve success an advocate should attempt redefine the law by connecting new categories to life narratives that are already familiar to the reader, just as Justice Scalia in Jones was able to recategorize Fourth Amendment jurisprudence in terms of property doctrine that the Court already understood.
Thursday, February 27, 2014
This past weekend Professor Lucy Jewel and I presented Categories! A Cognitive Rhetorician’s Approach to Logos and Pathos at the Psychology and Lawyering: Coalescing the Field conference held at the William S. Boyd School of Law at UNLV. The conference itself was superb and presented abundant opportunities to learn about the intersections of law and psychology. The field of cognitive psychology offers insight into how individuals receive and process information, so it presents a gold mine for studies in persuasion. My first few blog posts will tap into this area to offer some of the insights we developed for the presentation on categories.
Principles of cognitive psychology teach us that categorizing objects is natural. Indeed, categorizing is essential to our very survival. Just imagine the cognitive overload if we had to reprocess every daily experience as if it were brand new. Categories form a figurative box permitting us to create cognitive shortcuts to quickly determine whether something fits in or falls out. Categories facilitate the creation of prototypes. For example, if I ask you to think of a bird, you will likely picture something like a sparrow or a robin rather than a penguin. By the same token, categorizing at the fringes presents difficulty—have you ever pondered whether a tomato is a fruit or a vegetable? Categorization also leads to dichotomous thinking—yes/no, black/white, in/out—even though the world cannot be broken down into such simplistic terms.
Because categories tend to oversimplify the complexities of everyday life, they can sometimes interfere with our ability to candidly assess the world. In the instant we categorize something, we cease to see that something for what it truly is. Rather, we only look at how it fits within the assigned category.
Since individuals process and categorize based on their personal experiences, appellate advocates must become adept at predicting existing categories and either utilizing or changing them to advance their clients’ positions. An essential component of persuasive advocacy is reaching the audience in a way that the audience can understand the message. Through categories, an advocate can tap into pre-existing cognitive shortcuts for the benefit of the client. Conversely, if the pre-existing category is detrimental to the client, an advocate may need to insulate against any implicit bias or prejudice that the category is likely to produce.
Regarding categories, Anthony Amsterdam and Jerome Bruner, in their book Minding the Law, posit seven principles:
- Categories are made, not found.
- Categories imply a world that contains them.
- Categories are not always clean-cut.
- Categories serve a particular function
- Categorizing is an act of meaning making.
- Categories become entrenched in practice.
- Categories are never final.
My next several posts will take these principles in turn, break them down, and provide strategies for effectively managing cognitive categories. For now, I leave you to consider the power of categories and the great potential for challenging categories inherent in appellate advocacy. Think about the attorneys who challenged the existing category of separate but equal in the case of Brown v. Board. By deconstructing the doctrine of separate but equal, the advocates were able to reconstruct a new category rooted in the principle that separate is inherently unequal. In a different way, Abe Fortas deconstructed a negative category surrounding his client, Clarence Earl Gideon, to successfully argue for a defendant’s right to counsel in both state and federal proceedings. If we stop to think about it, nearly every landmark Supreme Court case has relied on the successful management of categories.
Friday, January 17, 2014
Earlier this week, Lyle Denniston reported and Josh Blackman commented on Tuesday's Supreme Court oral argument in Marvin Brandt Revocable Trust v. United States. Apparently, there was a "are you talkin' reading to me?" moment between Justice Scalia and one of the advocates. Steven J. Lechner, the lawyer for the trust, had barely begun his argument when Justice Scalia interrupted him to brusquely ask: "Counsel, you are not reading this, are you?" Lechner didn't immediately answer, and Justice Breyer intervened, commenting, "It's all right." Lechner continued his argument and no further mention was made of the issue, though Denniston suggests Lechner was understandably somewhat faltering in the rest of his argument, likely on account of this rough start.
Blackman regards this comment by Scalia as a "dick move," and others proposed we give Mr. Lechner a break. Inversecondemnation suggested:
You know, we've all been there in some venue, haven't we? We're all not übermensch Supreme Court litigators who can do this without a net and who have the stones to go to the lectern sans notes. Heck, we won't even go down to muni court naked (so to speak). Especially when what's at stake is the language in an otherwise obscure 1875 federal statute, where it's important to get the language just so.
The blogosphere and twitterverse were awash in comments, some facepalming at Lechner's reading, some Scalia-blaming, and some genuine sympathy for Mr. Lechner. These all seem appropriate reactions. It's widely known and probably universally taught that judges, at any level, do not appreciate being read to by counsel. Advocates in every legal writing program and moot court organization across the country are taught not to read from a prepared text except when necessary to quote some legally relevant text. The Supreme Court actually has a rule, Rule 28, stating: "Oral argument read from a prepared text is not favored." Similarly, Federal Rule of Appellate Procudure 34(c) states: "Counsel must not read at length from briefs, records, or authorities."
And yet, Scalia could have acheived the goal of taking the advocate off his notes with a substantive question or at least allowed the advocate a bit more time to move to extemporaneous commentary. The man was still giving his introduction, after all. Finally, I, for one, sympathize with Mr. Lechner, not just for the discomfort caused by Justice Scalia's comment but also because of the extensive media commentary that followed, dubbing it, at best, an embarrassing moment.
What can advocates learn from this experience? Well, obviously, that the Supreme Court, or at least some members, have no tolerance for reading prepared statements. And, appellate rules forbid, or at least discourage, reading from prepared texts at the lectern. But more generally, that the instruction to avoid reading to the court is not just something your legal writing or trial ad professor tells you to make your life more difficult. Reading at length to the court is ineffective in building a rapport with the bench, but it also violates a very deeply-rooted tradition about how oral arguments are conducted.