Appellate Advocacy Blog

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

Thursday, March 21, 2019

Entering Law School at 17

Each fall, upon entry of the newbie 1Ls to law school classes, it always seems to me like they are getting younger and younger. Most years, the perception is just because I am getting older and older! But this fall, at Southern Methodist University's Dedman School of Law, the youth of at least one new 1L will be very, very young.

Haley Taylor Schlitz is only 16 now, but after her birthday, she will be entering SMU's class of 2022. Obviously a bright young lady, Schlitz was homeschooled, graduated high school at 13, and finishes her undergraduate studies this spring. Schlitz was actually accepted at nine law schools, so this girl is the real deal. She is thinking of entering 

I wish this promising young mind well. She clearly has the aptitude for the academic rigor she will encounter, and her young age will add a dimension to the classroom very rarely found. 

I expect that many law professors have had the experience of teaching variously aged and experienced students. I often find I am a bit biased toward the older students who have made a change in the direction of their life (I was one of them myself). They bring a lot of diversity of thought to the classroom. In the classes I teach in admiralty and law of armed conflict I especially enjoy when students can add color to what life on a vessel is like, or how being deployed really feels. I often think in my ideal world, every law student would have significant life experience before coming to law school. But is it necessary to become a great lawyer? No, not at all, because I hope we are always learning no matter where we are in life. 

Best of luck to Ms. Schlitz and I hope to hear great things from her one day soon. But no pressure! 

 

March 21, 2019 in Law School, Legal Profession | Permalink | Comments (0)

Wednesday, March 20, 2019

Not all fun, part of the game: Jacobi & Sag on [laughter] at the Supreme Court

Pexels-photo-208087

I've blogged here about laughter at the Supreme Court. And I've blogged about the fascinating empirical work of Tonja Jacobi and Matthew Sag. So I'm thrilled that Professors Jacobi and Sag have trained their analytical lens on laughter in oral arguments at the United States Supreme Court.

Their new piece is Taking Laughter Seriously at the Supreme Court, forthcoming in the Vanderbilt Law Review; they summarize it in two recent posts (here and here) on their must-read blog, SCOTUS OA. This is not the first scholarly effort to track laughter at the Supreme Court: Jay Wexler, for funsies, has been cataloging SCOTUS laughter since 2005, and rhetoric researcher Ryan Malphurs has dug into the communicative function of humor at oral argument (pdf). But Professors Jacobi and Sag take the scholarship of laughter at SCOTUS—and, more generally, the scholarship of oral argument—to entirely new, deeply serious places. They leverage a remarkable dataset: a database of every SCOTUS oral argument transcript from the 1955 through 2017 terms. In the 1.7 million speech events by justices and advocates in 6,864 cases, 9,378 triggered a [laughter] notation in the transcript; about two-thirds of the laughter events were prompted by something a justice said. Jacobi and Sag supplement their text-mining quantitative analysis with old-school qualitative analysis: they read and cataloged all 1,061 episodes of justice-induced laughter from 2010 to 2017.

Their conclusion: laughter at SCOTUS isn't much about fun and frivolity; it's mostly about the modern blood sport of judicial advocacy. 

The piece builds on and reinforces Jacobi and Sag's prior work about shifts in the dynamics of  SCOTUS oral argument. In an era of sharpening division and partisanship, justices have increasingly used oral argument to advocate rather than inquire. And the justices' use of humor at oral argument is of a piece. Just as justices' use of oral argument time to comment and advocate has increased dramatically in the modern era, so too has the [laughter]. In the 1950s and 60s, laughs were few and far between, and they were prompted nearly as often by advocates as by the justices. This mostly continued into the 1980s. But then, in the late 1980s and again in the mid-1990s, the pace of justice-triggered laughter escalated sharply. And it has stayed high.

There's more: at the same time, the patterns of justice-provoked laughter shifted significantly. Justices tend to draw more laughter during arguments with which they ultimately disagree. Put bluntly, they make jokes at the expense of advocates they oppose. This has mostly been true for most justices since 1955. But the "laughter gap" increased significantly in the mid-1980s and again in the mid-1990s. This too is consistent with the broader trends Jacobi and Sag have identified regarding the rise of judicial advocacy in SCOTUS oral argument. The justices also increasingly use humor as a signal of an advocate's weakness: they direct humor at advocates who are losing. This pattern too deepened in the mid-1980s and again in the mid-1990s. And the justices' use of humor reinforces hierarchy on another dimension: it is directly most often at novice advocates, particularly ones on the losing side. And when one looks at the quips that inspire laughter, the data make sense: a massive share of SCOTUS jokes involve putting advocates in their place. One example, from United States v. Kebodeaux

Screen Shot 2019-03-20 at 6.37.35 PM
Screen Shot 2019-03-20 at 6.37.35 PM

So humor in the contemporary Supreme Court is a sharp and serious tool. And Profs Jacobi and Sag have done sharp and serious work.

March 20, 2019 in Humor, Oral Argument, United States Supreme Court | Permalink | Comments (0)

Tuesday, March 19, 2019

The high cost of contentious litigation

Prescott Incident

As an appellate attorney, I often find myself serving as both attorney and counselor to trial lawyers. As an appellate attorney at trial, I am trying to make sure error is preserved and that we are right on the law and its presentation to the court. As a counselor, I often find myself trying to calm down the rhetoric and rancor.

While the days of "Rambo litigation" have died down a bit, there is still a strong current of thinking in the law that if you aren't being angry and contentious, you just aren't passionate enough about your case. I have always disagreed. I believe that passion is important, but that you can be passionate without being contentious, and that courtesy, instead, is actually more persuasive. Over time, that belief has proven out, as I hear from judges and justices and juries about how they perceive the bluster in a negative light. 

A few months ago, Professor Peter Huang published an article explaining a bit more about (among other things) the economic costs of lawyer hostility and unhappiness. It is an interesting read.  Here is the link to the article: https://content.sciendo.com/view/journals/bjals/7/2/article-p425.xml

While the first part of the article largely recounts Huang's (extraordinary) journey through higher education, what caught my attention was his discussion of lawyers, mindfulness, and happiness. Huang was a professor of mathematics and economics before he went to law school and became a law professor, and his insights into the profession are unique.

For instance, Huang notes studies showing that students tend to enter law school focused on intrinsic values, like the desire to do good, help the vulnerable, and improve society in general. By graduation, they have been altered, and tend to focus on extrinsic values relating to class rank, grades, honors, and salary offers. This journey leaves them scarred: one survey of law students showed that one-quarter to one-third of respondents reported frequent binge drinking or misuse of drugs, and/or mental health challenges, while another Yale survey showed that 70% of the law students surveyed suffered from some type of mental health issue.

Worse yet, when they graduate, they often see that their hostility is financially rewarded, and this behavior is reinforced. Some clients seek out "Rambo" lawyers who will be argumentative and antagonistic, thinking such attorneys are the most effective. And the rules of civil and criminal procedure often appear to incentivize and reward that mindset. Thus, Huang reasons, "An economically-minded observer might simply characterize the unhealthiness of law practice and law school as just additional costs of being a lawyer and law student, albeit emotional health, mental health and physical health costs that are hard to perhaps measure, observe, quantify, and verify."

Those costs, while difficult to measure, are simply too high. Lawyers are the most frequently depressed occupational group in the United States. To cope with that depression and anxiety, many lawyers self-medicate with alcohol or drugs. Attorney overdose and suicide rates are very high. This has not only a personal cost, but a professional one as well.

Huang leaves out another category of costs: the perception of our judges and juries. One need practice only a short time to discover that judges negatively view hostility in those who appear before them. Credibility before the court is hard to quantify, but communication theory since at least Aristotle suggests that its loss has a high (and lasting) cost in lawyer effectiveness before our increasingly frustrated courts.

But even without those costs in his calculations, Huang notes that a recent meta-synthesis of several empirical studies revealed that both clients and attorneys tend to value "soft skills" that relate to empathy and integrity more than they do "hard" expertise. Attorneys value the ability to assess deals and propose solutions, the ability to assess and mitigate risks, honoring commitments, delegation to and management of support staff, integrity and trustworthiness, keeping information confidential, punctuality, and treating others with courtesy and respect. Clients, similarly, value lawyers who accurately estimate and clearly explain attorney fees, communicate with clients, are empathetic, listen well, are responsive to clients, are respectful, have strategic problem solving skills, are trustworthy, and who understand client needs. In other words, other lawyers and clients do not value naked aggression as much as they value other skills that are incompatible with that approach.

What, then, can we draw from this? Huang and the resources he cites (as well as personal experience) indicate that the costs of hostile "Rambo" litigation are simply too high to justify any value that might be perceived to lie in such conduct. This attitude and practice does not lead to personal happiness, but rather leads to high personal costs as well as a loss of credibility with the legal community and courts. And all in the name of trying to enhance one "skill" of questionable worth, while eliminating many other soft skills that clients find truly valuable.

You can be a zealous advocate without being a jerk about it. I have always believed it's the right way to practice, and my anecdotal experience is that it is more effective. It's good to know it makes sense empirically, too.

(Image credit: Scene from a December 1883 incident in a Prescott, Arizona courtroom during the trial of Kelsey v. McAteer, source unknown (likely the local Prescott newspaper), wherein the attorneys' fight over the admissibility of an affidavit escalated into a battle with a knife and gun in the courtroom. For more information: https://www.historynet.com/disorder-in-the-court-the-lamentable-occurence.htm).

March 19, 2019 in Appellate Advocacy, Appellate Practice, Legal Ethics, Legal Profession, Rhetoric | Permalink | Comments (0)

Monday, March 18, 2019

 Moot Court Coaching Tips

Tessa’s moot court posts over the last few weeks have been timely for me, as I am leaving tomorrow with a team from the University of Houston to coach them in the Hispanic National Bar Association in Albuquerque.  I’m a fan of moot court.  Not only is it correlated with bar exam success, but it rewards students for becoming an expert on a topic.  The presentation skills honed translate to areas beyond appellate advocacy, and students have to be able to argue both sides of an issue, creating intellectual flexibility.  Some of our readers may be in a position to give back to their law school by coaching a moot court team, so I wanted to spend some time on moot court coaching.

Before joining UH’s faculty, I directed Pepperdine’s Moot Court program and learned the value of excellent coaching.  My predecessor, the amazing Nancy McGinnis, developed a team of top-notch alumni coaches who invested significant time helping students prepare for oral arguments.  As I learned how to run a program and develop student advocates, I saw how some coaches have consistent success with their teams.  Beyond awards and trophies, though those were plentiful, there were deep relationships built and significant growth in the students.  

While I could spend an entire blog post giving recognition to amazing coaches and students, the two that I learned the most from are Pepperdine alums Wendy McGuire Coats and Jeff Belton.  These two have generations of law students who hold them up as extraordinary coaches and professional mentors.  They do most of the things I am suggesting below, and then some.  After observing dozens of competitions, teams, and coaches, and coaching some of my own, here are the top moot court coaching tips I have gleaned:

  1. Establish accountability for students

The best coaches set expectations for the students early.  Solid moot court programs have strong team expectations, but the coach reinforces these and makes sure that students understand the work that they will have to put in to be ready for the competition.  An introductory meeting is a great start.  Plan a schedule of practices leading up to the competition and what students should do on their own.  Encourage the team to read all of the briefs if they are available.  Have them identify the most compelling arguments.  They should make lists of the hardest 15-20 questions for each issue on each side.  Knowing that you, the coach, expect this output from them is key.   

  1. Give them a realistic view of national competitions

This is particularly important for students who have never competed nationally before.  The level of competition that they will see at a national competition is dramatically different than intraschool competitions they might have experienced.  What type of questions are they likely to get? How should they deal with inevitable challenges?  There will be few teams at a national competition that are not well-prepared.  Not every excellent team will win, but an unprepared team will definitely not.  I try to hit this point home, because typically law students involved with moot court are busy with other law school activities.  They need to understand how important their preparation time is. 

  1. Be a coach, trainer, cheerleader, and tour guide all at once at the competition

Finally, once the competition arrives, the coach fills many rolls at once.  As coach, I take notes during the competition of questions asked, feedback from the judges, and any areas that may need tweaking between rounds.  The rounds fly by for the advocates, so it’s helpful to have something to recap.  I’m also ready to advocate for my team with the competition administration, if necessary.  I also think of myself as sort of an athletic trainer, and I try to bring a bag full of potentially useful items – a sewing kit, snacks, highlighters, usb drive, and all of the competition documents.  You never know what might come in handy.  Many students find these competitions stressful, so I see my role as cheerleader, as well.  I know how much hard work has gone into their argument, and I want them to see the value of their experience regardless of the results.  Their job is just to stand up and do their best.  Lastly, I don’t want the advocates to have to worry about anything other than their arguments, so I figure out all of the logistics, find cool places to eat, and try to make the times that they are not arguing fun.  Moot court develops skills, but it also builds relationships, and that’s a big part of what I love about it. 

Coaching moot court has to be one of the most fun and rewarding ways to be engaged with a law school.  Like most things, if you put a lot in, you will get a lot out.  If you are interested in more reading on this subject, I highly recommend The Moot Court Advisors Handbook by James Dmitri, Melissa Greipp, and Susie Salmon. 

March 18, 2019 in Moot Court | Permalink | Comments (0)

Friday, March 15, 2019

Appellate Advocacy Blog Weekly Roundup March 15, 2019

Appellate Advocacy Blog Image

Each week, the Appellate Advocacy Blog Weekly Roundup presents a few tidbits of news and Twitter posts from the past week concerning appellate advocacy. As always, if you see something during the week that you think we should be sure to include, feel free to send Dan Real a quick email at DReal@Creighton.edu or a message on Twitter @Daniel_L_Real.  You can also send emails to Danny Leavitt at Danny@tsalerno-law.com or a message on twitter @Danny_C_Leavitt.

Supreme Court News:

Nina Totenberg offers this book review about First, Sandra Day O'Connor. The book purports to break new ground with O'Connor's papers, journals, and her husband's diary. 

Happy birthday to Justice Ginsburg who turns 86 today. Tony Mauro of National Law Journal has this piece, and apparently Justice Ginsburg followers will show their following of the justice by planking in front of the Supreme Court today 

Federal Appellate Court News and Opinions:

 In a sixth-circuit, three-judge panel Judge Sutton authored an opinion about free speech. An officer in the case stopped a driver for speeding. After giving the driver a warning, the officer noticed the driver raised her middle finger as she drove off, so the officer again pulled the driver over within a hundred yards of the first stop and gave her the speeding ticket. Judge Sutton reasoned "As alleged, the first stop had ended, a constitutionally significant event, before the officer initiated the second, unjustified stop. The Supreme Court has said that any justification for the first stop ceases when that stop ends." In effect, the judge concluded, there was no justification for the second stop. And, importantly, the court found "Any reasonable officer would know that a citizen who raises her middle finger engages in speech protected by the First Amendment."

State Appellate Court News and Opinions:

The Connecticut Supreme Court handed down an opinion (slip opinion here) authorizing the families of the Sandy Hook Elementary School shooting to proceed against the  makers of the AR-15-style Bushmaster to try and hold them liable. The court's ruling was 4-3, agreeing with the lower court that the case cannot proceed based on a variety of theories, but that it could proceed despite federal protection on wrongful marketing claims. Read more about the opinion at the New York Times and the Washington Post

North Dakota Supreme Court Justice McEvers plays the bagpipes in her chambers. Read about it here

@ArizonaAppeals tweeted about Arizona Court of Appeals' recent ruling over the dispute of what to do with frozen embryos when parents disagree, holding that the balance of interest goes to the mother. The opinion is here.

Appellate Job Opportunities:

Texas is looking for an Assistant Solicitor General

 

March 15, 2019 | Permalink | Comments (0)

Wednesday, March 13, 2019

Balancing the Persuasive Statement of the Case

Writing a good statement of the case is a lot like walking a tightrope in the wind. There is such a fine balance involved in providing the court with an understanding of how a case arrived before it, explaining what happened, ethically disclosing all relevant information, and zealously advocating for your position. A statement of the case includes both the procedural history of the case itself, and the factual history forming the basis of the legal issues before the court. And, herein, lies the beginning of the balancing act. I certainly adhere to ideas that we lead with our most affirmative statements, that readers remember the first and last things they read, and that we can minimize the impact of unfavorable facts simply by tucking them in the middle of a sentence or a paragraph. I advocate strongly for the purposeful use of passive voice to further distance yourself from negative facts. I have read briefs where every sentence, and every paragraph, has been drafted with maximum persuasive impact in mind. I certainly applaud the diligence of the authors of these briefs, and understand the desire to take advantage of every opportunity to persuade. I also note that reading such statements of the case can be exhausting.

To me, reading such briefs is like riding a bicycle uphill… all the time. I need to coast from time to time. A well-balanced statement of facts allows for both the emotional appeal, and the opportunity to coast through basic information. For instance, that a complaint was filed or even when it was filed may be presented fairly neutrally without undermining the general persuasiveness of the statement. In addition, I often suggest to my students that they separate descriptions of places, things, and sometimes people, from the story itself. These descriptive paragraphs help to orient the reader and can give the reader a moment to coast before embarking on what will hopefully become a very compelling journey. I believe that such information can be shared in a fairly neutral fashion without undermining persuasive impact.

I also, however, offer words of caution. Do not begin a story, and then abruptly stop the telling in order to describe a person, place, or thing. Just as you have your reader picturing the car stuck on the train track, and hearing the train whistle approaching, do not interrupt the reader in order to describe the town in which the impending collision is likely to occur, or the restaurant in which the lone witness sat. Describe the town first, so the reader better pictures the events happening. Bolster testimony, after you’ve completed the story, by showing the reader what a great vantage point the witness had. By being mindful of where you place the descriptions, you protect the reader from jarring interruptions.

By separating descriptions from the story itself, and by relegating mundane information to its rightful neutral place, you will vary the cadence of story itself. This variety will make your statement of the case more persuasive as you give your reader an opportunity to relax and absorb the impact of the story itself.

March 13, 2019 in Appellate Advocacy, Legal Writing | Permalink | Comments (0)

Tuesday, March 12, 2019

A “Writer’s Toolbox” - Part I (A Practical Writing Library)

As lawyers, we work in words. In “The Simple Secrets for Writing a Killer Brief,” Daniel Karon encourages us to have a “writer’s toolbox.” In his article, Mr. Karon lists the books in his toolbox, which he describes as "a modest but functioning writing library."

While I also have a "modest but functioning writing library," I use more than books to help me write. Over the next several posts, I will explore different facets of my writer’s toolbox. I will describe my electronic writing bank, writing journal, and tech tools. 

Today, I focus on my writer's library.

I have shelves full of books on writing. Some of these books, if I’m honest, I never open. Others are well-worn with use.  Below are some of my favorite writing resources:

Handbook Aspen Handbook for Legal Writers - A Practical Reference by Deborah E. Bouchoux  [ISBN: 9781454889335]

This book does more than list grammar rules. It provides writing and proofreading tips specifically for legal writing. I like that it incorporates legal-citation rules for capitalization and abbreviations along with the grammar mechanics. The index is thorough and helps me quickly locate what I need in the text.

 

 

Plain English for LawyersPlain English for Lawyers by Richard C. Wydick & Amy E. Sloan [ISBN: 978-1-5310-0699-0]

This is my "Strunk and White" for legal writing. It is a simple, short, and straightforward guide to writing well. Read this book. Implement its suggestions. You will become a better writer.

 

 

 

 

Bluebook

The Bluebook - A Uniform System of Citation (20th Edition) compiled by the editors of the Columbia Law Review, the Harvard Law Review, the University of Pennsylvania Law Review, and the Yale Law Review [ISBN 978-0-692-40019-7]

My clerkship with the Pennsylvania Supreme Court taught me that judges care about citation. Judges are meticulous about citation in their writing and respect attorneys who are as well. 

I cut through the massive amount of rules in The Bluebook by using the "Quick Reference" section on the back cover, the Bluepages, and index. I tab pages for rules on cases, statutes, quotations, and abbreviations.

 

Bluebook Uncovered

The Bluebook Uncovered: A Practical Guide to Mastering Legal Citation by Dionne E. Anthon [ISBN: 9781634595377}

This book translates The Bluebook into understandable English. It helped me comprehend some of the more complicated, convoluted citation rules. When I have a citation question, I consult this book first.

 

 

Dernbach

A Practical Guide to Legal Writing and Legal Method by John C. Dernbach, Richard V. Singleton II, Catherine S. Wharton, Catherine J. Wasson, and Joan M. Ruhtenberg [ISBN: 9781454889359]

This book provides step-by-step instructions for every part of the brief-writing process. It is direct and easy to understand. Each chapter contains numerous examples. 

 

 

 

Just Briefs

Just Briefs by Laurel Currie Oates, Anne Enquist, and Connie Krontz [ISBN: 9781454805540]

This is a great resource on persuasion. It explains how to engage the court through effective advocacy. The critiquing checklists for each section of a brief are invaluable.

 

 

 

Webster

Merriam-Webster Smartphone App (available on itunes & google play)

My final go-to reference is an app. I use both the dictionary and thesaurus features. 

 

 

 

Books

What's in your writer's library? 

Please share your favorite resources in the comments section. I would enjoy hearing and learning from you.

March 12, 2019 in Appellate Advocacy, Appellate Practice, Books, Legal Profession, Legal Writing | Permalink | Comments (9)

Monday, March 11, 2019

Gender Stereotypes and Moot Court

Two weeks ago I posted about moot court season.  Across the country students are competing in these mock appellate exercises. And, while the exercises have great benefits for students and lawyers alike, they also have a downsides.  One of these downsides is the role that implicit bias and gender stereotypes play in how the competitions are judged and how the competitors perform.

My colleague, Prof. Susie Salmon, has written on this topic.  Her articleReconstructing the Voice of Authority, looks at the way moot court programs may "reinforc[e] longstanding and exclusionary stereotypes regarding the traits that make an effective lawyer" and, in the process, "inadvertently help cement the implicit bias that impedes greater diversity and equality of access in the legal profession."

For those who may doubt the inequality women face in the legal profession, Prof. Salmon cites statistics about women in the legal field, including the fact that, as of 2012, only 27.1% of state and federal judges were women.  And the fact that "[o]f the 66 lawyers most likely to have their clients' cases heard by SCOTUS--dubbed the 'elite' lawyers in a recent Reuters investigation--only eight are women."  

As Prof. Salmon notes, law schools have contributed to the problem of gender bias in the legal profession.  One of the ways that some schools have contributed to the problem is teaching oral advocacy in a way that relates back to Classical rhetoric and the notion of the "military leader or warrior" as being the one who "carries the most credibility and persuasive power."  Advice about vocal tone, stance, and even seeming unassuming or invisible--all relating back to Classical rhetoric--promote the male warrior ideal. 

While I enjoyed the entire article, I was especially astounded by the real examples of feedback that women advocates have received. Prof. Salmon emailed several professional listservs asking for examples of moot court judging or coaching "feedback that reinforced the male paradigm."  Perhaps most appalling to me was the example on the top of page 163, where a female advocate was chastised for smiling at a judge.  He accused her of trying to sway his opinion with her "sex appeal."  Good grief.

Prof. Salmon's article ends with some thoughtful recommendations for moot court coaches and competition administrators on how best to address this problem.  Of particular interest to me was her recommendation that competitions create a webinar to inform judges on the substance of the problem to ensure that judging focuses more on substance and less on delivery.  For the last two years we have used this approach at the University of Arizona James E. Rogers College of Law for our intramural moot court competition.  Judges have uniformly praised the video as being incredibly helpful. While it does put more work on faculty running the competition, the payoff is well worth it.

I commend Prof. Salmon's article to anyone who coaches moot court, administers a competition, or judges in moot court competition. 

March 11, 2019 | Permalink | Comments (0)

Saturday, March 9, 2019

An Introduction to Introductions

The Federal Rules of Appellate Procedure, as well as the Rules adopted by several states, dictate a brief's minimum contents. But they don't set its order.  And they're not exclusive criteria. The upshot? They give you the flexibility to present your argument in a way that best suits the issues in your appeal. 

Over the past three or four years, I've read hundreds of briefs that slavishly tick boxes, running through the required background to get to the argument.  I get it.  The argument is, after all, the point of a brief.  Even so, that approach wastes many words.  Worse, it leaves the reader drowning in facts, grasping for context. 

The problem shows itself most acutely in statutory interpretation cases.  The court considers the facts in a specific context.  Consider ERISA as an example.  The judge needs to understand the players—often a mix of employee, employer, and ERISA plan—to decide the case.  But launching into the "who" and "what" of a pension dispute isn't nearly as important as spending some time unpacking the "why." Why are the parties in court? Why should the court decide the case in your client's favor? And why is the case significant? That one is especially important if you're trying to get oral argument in some circuits.

One method unpacking why is starting your brief with a simple "statement" or "introduction."  It's not required by Rule 28, but it's also not forbidden.   A good statement should have a few simple paragraphs honing the court's interest on the nub of the legal problem it's got to decide.

Some are better done than others. Sticking with my ERISA theme, consider this "Preliminary Statement" from the Appellant's Opening Brief in a recently settled ERISA case from the Fourth Circuit, Longo v. Ascensus Trust Company, No. 16-2168 (4th Cir. Jan. 17, 2017): 

Defendant-Appellant Ascensus Trust Company (“Ascensus Trust”) acted as a Directed Trustee for the Trojan Horse Ltd. 401(k) Plan (the “Plan”). Ascensus Trust was strictly limited by controlling plan documents, and its role was solely to manage contributions that it received from employers.  In an unprecedented and results-driven decision, the District Court held that, notwithstanding its contractually proscribed responsibilities as a Directed Trustee, Ascensus Trust nevertheless breached a non-existent duty to proactively investigate whether the employers in fact made all Plan contributions, and to commence legal action to enforce payment.

This paragraph eventually finds its purpose:  telling the reader that the district court erred when it concluded that Ascensus Trust, a directed trustee, owed Plan beneficiaries a fiduciary duty.  (If you're uninitiated, a directed trustee is exactly what it sounds like.   It's a trustee who acts at the direction of a fiduciary.  42 U.S.C. § 1103(a)(1)).  Before going any further, I want to make one thing clear.  This type of paragraph isn't bad; it's just not so good.  It eventually arrives at the problem with the district court's ruling, but it spends too long airing grievances and using charged language ("unprecedented and results-driven decision," anyone?). 

The paragraph could have been better.  The issue in the case was:  Do "directed trustees" owe fiduciary duties to plan beneficiaries?  The statement would have been more powerful if it had previewed that issue and given enough some context, enough of its argument to teach the reader the law, the facts, and how those two things fit together in Ascensus Trust's favor.  I imagine I would have drafted the statement more like this:

(1) Identify the issue;

(2) discuss the statutory definition of "directed trustee";

(3) discuss, using the other relevant statutes, why directed trustees don't owe fiduciary duties to plan beneficiaries; and

(4) give just enough background to show that Ascensus Trust was a directed trustee. 

Simple, effective stuff. 

I'm not just blowing smoke.  Merits briefs filed in the Supreme Court follow the same pattern.  Consider the Petitioner's Brief in Weyerhauser Co. v. U.S. Fish and Wildlife Services, the dusky gopher frog case.  Weyerhauser was about a complex issue of statutory interpretation.  And Petitioner's counsel didn't shy away from the statute: 

Congress enacted the Endangered Species Act, 16 U.S.C. §§ 1531 et seq. (ESA or Act), to provide “a program for the conservation” of endangered species and to conserve “ecosystems upon which [they] depend.” Id. § 1531(b). To that end, Section 4 of the Act requires the Secretary of the Interior to identify endangered species and to “designate any habitat of such species which is then considered to be critical habitat.” Id. § 1533(a)(3)(A) (emphasis added). Section 3 defines “critical habitat” as certain areas “occupied by the species,” as well as other “areas outside the geographical area occupied by the species” that are determined to be “essential for the conservation of the species.” Id. § 1532(5)(A).

The Fish and Wildlife Service (FWS or Service) designated as critical habitat of the endangered dusky gopher frog 1544 acres of private land in Louisiana, which it labeled as Unit 1. Petitioner Weyerhaeuser operates that property by periodically harvesting and regrowing commercial loblolly pine (i.e., closed canopy) forests. FWS designated Unit 1 though no dusky gopher frog has been seen on that property for more than 50 years and the frog cannot live there absent a radical change in land use because the land lacks basic features necessary for the frog to survive.

In a little more than 200 words, the brief explains the entire case.  Sure, there's a lot left to unpack.  The brief is, after all, 56 pages long.  But by tackling the legal issue head-on, rather than launch into the case background or poke holes in the lower court's decision, the Petitioner's brief orients the reader.  It helps the audience understand why every fact, and every sentence, matters. Remember, it's not enough if you think every sentence advances your argument.  Your reader also needs to know that.  And preliminary statements help. 

 

March 9, 2019 | Permalink | Comments (0)

Wednesday, March 6, 2019

Science & oral argument

Like a lot of advocacy professors, I'm an avid consumer of social-science literature on persuasion, decision-making, and pedagogy. And I'm a fan of efforts by law professors to apply this literature to what advocates do. Sure, we've got to be humble and cautious: I and many of the law professors with interest in this area aren't trained scientists or statisticians, and stuff like the Social Sciences Replication Project and the hubbub over power posing offer healthy reminders that it's possible (even easy, sometimes) for folks trained in the right disciplines to get out over their skies. As Ted Becker points out, we in the persuasion business don't really know much about what really persuades judges. But much of the good, humble, cautious work helps us at least start down the path of sorting out techniques that work from techniques that we adopt just because they're the way we do things. There is a wealth of interesting work being done in this area related to persuasive writing and legal reasoning: Kathy Stanchi's body of work on psychology and persuasion is remarkable; Lucy Jewel's piece on old-school rhetoric and new-school cognitive science is a revelation; Steven Winter's work broke fascinating ground in knitting together cognitive science and legal reasoning. I could mention dozens of other scholars here: exciting things are happening.

We don't have a similar volume, as yet, of scholarship linking social science to oral advocacy. Still: I'd like to devote a few posts to highlighting a couple of pieces that I find particularly useful in refining the advice I give to advocates and in polishing my own performances.

I think it's fair to call the first a classic in the field: Michael Higdon's Oral Argument and Impression Management: Harnessing the Power of Nonverbal Persuasion for a Judicial Audience, published in the Kansas Law Review in 2009. Professor Higdon offers a rich, comprehensive overview of research into the seven basic codes of nonverbal communication: (1) kinesics (i.e., what speakers do with their bodies); (2) physical appearance (i.e., what speakers look like); (3) vocalics (i.e., what speakers sound like); (4) haptics (i.e., how speakers physically touch an audience member); (5) proxemics (i.e., how speakers use physical space); (6) environment and artifacts (i.e., how speakers use instruments and their environment); and (7) chronemics (i.e., how speakers manages time). And he thoughtfully applies that research to what lawyers do in appellate oral argument.

I find Higdon's piece particularly useful in sorting out advice on things like the use of gestures. Quite often, beginning appellate advocates will do stuff with their hands that distracts judges. So they'll get categorical advice: don't talk with your hands. And they take that advice ... and promptly get told by the next set of judges not to be so stiff and nervous. Higdon's piece details research spanning several decades that makes it clear that any "don't use your hands" advice is flatly wrong: gestures are essential to effective in-person communication generally, and they're especially vital to persuasion. But there's a catch: only those gestures that are "synchronized with and supportive of the vocal/verbal stream" enhance comprehension and persuasion. The lesson that emerges: advocates should use purposeful gestures that match and support the points they make verbally, but avoid gestures that simply accompany the verbal stream. So use the hands to help you make a point, but don't let your hands flap around randomly to accompany your talk.

Higdon's points on speed of delivery (somewhat fast is actually good, so long as it doesn't flatten out a speaker's pitch and tone) and on managing the judges' dominance are similarly illuminating. If it is read as widely as it should be, the generations of appellate advocates will tilt their heads eight degrees to the right (see p. 643). And win.

 

March 6, 2019 in Appellate Advocacy, Moot Court, Oral Argument, Science | Permalink | Comments (1)

Tuesday, March 5, 2019

When the law loses its way

1024px-Trial_of_a_sow_and_pigs_at_Lavegny

There are times when we, as advocates, must argue for a change in the law. Going into the case, we know that the law, as it exists, is against our clients. Our job in those cases is to be candid and admit this, and then argue that this law must be changed. To do so, we need to examine the history and reasoning behind the law, look for allies who might have questioned it in the past, and not feel tied to earlier justifications that may have lost their appeal over time. Our job is made easier when that work reveals that the law has become unmoored from the reasons that justified its genesis.

Civil forfeiture – the idea that the state can take any item arguably involved in the commission of a crime, regardless of the fault of the owner – is one such area of the law. The Supreme Court recently ruled that state civil forfeiture awards are subject to constitutional challenge under the excessive fines clause of the Eighth Amendment. Timbs v. Indiana, No. 17-1091, 2019 WL 691578 (Feb. 20, 2019). But there is a bigger problem with civil forfeiture: it has lost its connection to historical justifications.

Justice Thomas raised this concern when he issued a statement on denial of certiorari in Leonard v. State of Texas, 137 S.Ct. 847 (2017) (mem.). After briefly analyzing the origins of the law, he concluded that “[w]hether this Court’s treatment of the broad modern forfeiture practice can be justified by the narrow historical one is certainly worthy of consideration in greater detail.”

A brief look at the historical foundations of modern civil forfeiture statutes reveals how badly they totter when asked to support the modern practice. For instance, the Bible is often cited as a source for the law, where, in Exodus 21:28, it is said that “if an ox gores a man or a woman to death, the ox shall be stoned, and its flesh shall not be eaten, but the owner of the ox shall not be liable.” However, even a cursory look at this passage reveals no mandate that the state gets to eat the ox. Rather, this verse stands for the principle that if an animal causes unexpected injury, only it should bear the cost and no one should profit from the resulting death. This is also in accord with the Talmudic interpretation.

Sometimes, ancient Greek law is quoted, where inanimate things that cause death were cast out beyond the borders. Other times, ancient practices with impressive sounding names like “deodand,” “wergild,” and “bane” are cited. But in each case where early examples are found, the ancient practice is distinguishable. It was only in the English common law that something similar to our current American systems was found, and then only because the state replaced the church as the beneficiary of the proceeds of sale of an item (or ship) that caused injury, largely because it could. When we adopted that common law, this practice found its way into our legal system. The fact that Great Britain later discarded the practice when it adopted wrongful death actions providing for recovery directly to the victim’s family (at the urging of railroad companies alarmed at the potential for loss) apparently went unnoticed.

Oliver Wendell Holmes, Jr, noted that, in 1881, this was already a very common and recognizable phenomena in the development of the law:

The customs, beliefs, or needs of a primitive time establish a rule or a formula. In the course of centuries the custom, belief, or necessity disappears, but the rule remains. The reason which gave rise to the rule has been forgotten, and ingenious minds set themselves to inquire how it is to be accounted for. Some ground of policy is thought of, which seems to explain it and to reconcile it with the present state of things; and then the rule adapts itself to the new reasons which have been found for it, and enters on a new career. The old form receives a new content, and in time even the form modifies itself to fit the meaning which it has received.

After analyzing this growth and the history of civil forfeiture, in particular, he had this to say:

The foregoing history, apart from the purposes for which it has been given, well illustrates the paradox of form and substance in the development of law. In form its growth is logical. The official theory is that each new decision follows syllogistically from existing precedents. But just as the clavicle in the cat only tells of the existence of some earlier creature to which a collar-bone was useful, precedents survive in the law long after the use they once served is at an end and the reason for them has been forgotten. The result of following them must often be failure and confusion from the merely logical point of view.

Oliver Wendell Holmes, Jr., The Common Law, chapter 1 (1881).

And yet, almost 100 years later, the Supreme Court cited the passage in Exodus, the law of deodand, and Holmes’ discussion of other historical antecedents in concluding that a civil forfeiture statute that permitted the forfeiture of a yacht without first proving the guilt of the owner was constitutional, largely because it was ancient. Calero-Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663, 680–686 (1974). No mention was made of Holmes’ conclusion that this historical analysis gave no real support for modern civil forfeiture.

Not surprisingly, a long catalogue of abuses followed.

In Tenaha, Texas, while Jennifer Boatright and her children rode through town on their way to buy a used car, she has stopped by the police for driving too long in the passing lane. When the police found the cash she was carrying to buy the new car, they took it. At the station, Boatright was given the option of forfeiting the cash and being released without charge, or going to jail for suspected money laundering and child endangerment, while her children were taken by CPS. She chose to keep her children.

In Emporia, Virginia, when Victor Ramos Guzman was stopped for speeding, the officers searched his vehicle and found $28,000 in cash. The driver was a Pentecostal Church secretary from El Salvador, who explained (and later proved) that he was taking the money -  donated by parishioners - to buy a parcel of land. Although no contraband was discovered, the money was seized.

In Philadelphia, a couple's home was seized after their son was arrested for making a $40 drug deal inside.

More recently, Tyson Timbs was arrested in Indiana for selling less than $400 worth of heroin. Although the maximum fine for his offense was $10,000, the police opted to seize his $42,000 Land Rover, bought with insurance proceeds from his father's death. This was the case that eventually rose to the Supreme Court.

These and other cases are often referred to as examples of “policing for profit.” The catalog of abuses is impressive, and the effect is disproportionately felt by the poor, who often cannot afford to challenge the seizures. These statutes are far removed from the original idea that no one should profit when an animal or inanimate object causes a death. And yet there are still efforts to justify these actions by referencing their ancient antecedents.

Civil forfeiture statutes are an important tool for law enforcement departments faced with sophisticated drug operations transporting drugs and laundered cash across the country. Reform efforts requiring guilt on the part of the owner and limitations on police department spending have helped rein them in. But they must also be tempered by constitutional concerns, no matter what ancient civilizations may have to say (or not say) on the subject.

Holmes’ reasoned that “[t]he history of what the law has been is necessary to the knowledge of what the law is.” This history is also important to understanding what the law should be. The historical supports given for civil forfeiture statutes do not bear the weight of many modern civil forfeiture schemes. It should not have taken us this long to figure that out, given an honest review of their history.

(Image credits: "Trial of a sow and pigs at Lavegny" from Chambers Book of Days (1864). According to the book, “Among trials of individual animals for special acts of turpitude, one of the most amusing was that of a sow and her six young ones, at Lavegny, in 1457, on a charge of their having murdered and partly eaten a child. … The sow was found guilty and condemned to death; but the pigs were acquitted on account of their youth, the bad example of their mother, and the absence of direct proof as to their having been concerned in the eating of the child.”)

March 5, 2019 in Appellate Advocacy, Appellate Practice, Current Affairs, Federal Appeals Courts, Legal Writing, Rhetoric, United States Supreme Court | Permalink | Comments (0)

Monday, March 4, 2019

Ninth Circuit Judge’s Death Allows the Supreme Court to Sidestep the Equal Pay Act and Prior Salary Questions

Last week, the Supreme Court handed down an opinion vacating and remanding a Ninth Circuit en banc decision issued on April 9, 2018 - 11 days after Judge Stephen Reinhardt’s death in March of 2018.  Judge Reinhardt, known by some as the Liberal Lion of the federal court, had written the opinion and fully participated in the case before he died, and his vote was necessary for the opinion to constitute a majority and bind the Ninth Circuit.  The Supreme Court held that “[w]hen the Ninth Circuit issued its opinion in this case, Judge Reinhardt was neither an active judge nor a senior judge” and thus “without power to participate in the en banc court’s decision at the time it was rendered.” 

In a memorable quote—one that has been picked up by news outlets covering this case—the Court said “federal judges are appointed for life, not for eternity.”  The opinion is short and to-the-point – bordering on terse.  It does not address the substantive issues in the case and focuses purely on whether Judge Reinhart’s vote could be counted.

The substantive issues in the Ninth Circuit opinion, Rizo v. Yovino, 887 F.3d 453 (9th 2018) (en banc), revolved around the Equal Pay Act of 1963.  Reinhardt opened the en banc opinion forcefully:

“The Equal Pay Act stands for a principle as simple as it is just: men and women should receive equal pay for equal work regardless of sex. The question before us is also simple: can an employer justify a wage differential between male and female employees by relying on prior salary? Based on the text, history, and purpose of the Equal Pay Act, the answer is clear: No.” 

In light of such bold language, it's not a big leap to conclude that the “Liberal Lion’s” sudden passing allowed the Court to reverse the Ninth Circuit holding without taking a substantive position on a hot-button issue. 

If you’re interested in reading more about Judge Reinhardt’s legacy, Harvard Law Review dedicated an issue in 2018 to Judge Reinhardt and published this In Memorium:

https://harvardlawreview.org/2018/06/in-memoriam-judge-stephen-reinhardt/

Particularly affecting is the portion by Benjamin Sachs, law professor and former Reinhardt clerk, detailing the Rizo en banc decision overturned by the Supreme Court here.  Professor Sachs said:

“the posthumous publication of Rizo . . .  had a deep poignancy. Reading the words of this groundbreaking decision — a decision that prohibits employers from justifying salary differentials between men and women on the basis of prior salaries — felt like hearing the Judge speaking still.”

Judge Reinhardt’s words live on in this opinion, but as the Supreme Court has reminded us, his death a mere 11 days before its official issuance denied those words the force of law. 

March 4, 2019 | Permalink | Comments (0)

Sunday, March 3, 2019

Four ways to harness the power of words in your legal writing

Images"Words are free. It's how you use them that may cost you."

- Rev. J Martin

There's a carefully-guarded secret among judges and senior attorneys. It's a secret you won't often hear them mention out loud, lest they hurt your feelings. But nearly all of them are in on it. 

The secret is that your bad legal writing goes in the trash. 

Tossing your brief may seem harsh. When I have this talk with my law students, they certainly think so. But can you blame your readers? If it's a judge, they have 300-plus cases on their docket. Drowning in briefs and motions and exhibits--if your brief isn't worth reading, why would they?

Briefs can go bad in many ways, but usually, it starts with the words. Many are dull, flimsy, or flat. In a word: boring. And the sentences bury their points in piles of needless nouns, descriptors, and glue words, with the reader shouldering the work of sorting the useful from the useless. The combo of boredom and denseness convinces the reader that their time will be better spent tracking down the answers on their own. 

But while the wrong words can tank your brief, the right ones can transform it into something powerful: A vehicle to change the minds of even your most skeptical readers. 

I've talked about a magical method to pare down your sentences to the words that matter--content word editing. This simple technique is popular and works. But we talked only about cutting the excess, not how to improve the words themselves.

So I thought I'd share some methods for polishing up your words. But before going there, consider a few principles that prop up these methods--straight from cognitive science.

First, we need our readers to remember what we write. And we are working uphill. We all hear about studies showing that readers retain only a tiny fraction of what they read. Imagine how true that is for our legal readers, who are harried and distracted to begin with. One way to make our words memorable is to use ones that will be easy to visualize. By one study, words that created visual images were retained over 50% better than blander versions. Another helpful principle is to remember the power of narrative: People think in stories and remember in stories. So words that tell vivid narratives stick better. 

Second, our writing should be easy to process. Fluency refers to how easy it is for your reader to process your writing. It helps your reader get wrapped up in your voice and shut out the distractions and skepticism. Simple and familiar words--and transitions--are just some of what makes your writing fluent.

Third, persuasion works best when it's subtle. People don't like being told what to think. So you're better off choosing words that lead your reader to a helpful perspective--but without forcing them into it.

Let's see how we can put these principles to work in our words. 

Nouns to remember: Familiar, Short, and Specific 

As Stendhal said: "Only great minds can afford a simple style." Simple words are usually the best ones. They are easier to read and easier to process. Why did President Lincoln's best speeches use the shortest, simplest, and most familiar words? In the Gettysburg Address and Second Inaugural Address (widely considered to be his two best), nearly 75% of Lincoln's words have a single syllable. That style works. 

To achieve this easy reading: Prefer words with few syllables, words that are familiar, and words that are specific rather than vague. This explains why so many people cite the following Justice Roberts passage as among their favorite pieces of legal writing: 

Officer Sean Devlin, Narcotics Strike Force, was working the morning shift. Undercover surveillance. The neighborhood? Tough as a three-dollar steak. Devlin knew. Five years on the beat, nine months with the Strike Force. He'd made fifteen, twenty drug busts in the neighborhood.
Devlin spotted him: a lone man on the corner. Another approached. Quick exchange of words. Cash handed over; small objects handed back. Each man then quickly on his own way. Devlin knew the guy wasn't buying bus tokens. He radioed a description and Officer Stein picked up the buyer. Sure enough: three bags of crack in the guy's pocket. Head downtown and book him. Just another day at the office.

This passage is full of the simple and familiar: "a lone man on the corner," and "cash handed over." And Justice Robers opts for specific words over vague ones. So rather than say that the officer made "many" drug busts, Roberts says he made "fifteen, twenty" of them.

To write like this, prefer the shorter, more familiar, and more specific. 

First: Go with shorter, more familiar words

Try opting for shorter versions of words--and versions that will be more familiar to your reader (not words that we read only in judicial opinions and financial reports). Below are a few examples. For a longer list of I've put together, click here

"Money" or "cash" instead of "funds" 

"Pay" instead of "remunerate" 

"About" instead of "regarding" or "with regard to" 

“After” instead of “subsequent to” "thereafter" 

"Do" instead of "accomplish" 

"Gave" instead of "accorded"

"So" instead of "accordingly" 

"Next to" instead of "adjacent to" 

"Allow" instead of "afford" 

"Say" or "said" instead of "expressed" or "statement" 

“Here” instead of “instant case.”

“Also" instead of “furthermore” or “additionally”

"Some" or "many" instead of "a number of" 

“Shows" instead of “demonstrates”

“Fire” instead of “terminate"

"To" instead of "as a means of"

Second: Go with specific words over vague ones: 
 
Lean towards the specific and away from the vague. Specific words are easier to visualize and remember. Of course, sometimes you'd prefer to take the spotlight off a word or idea--if that's the case, by all means, go with the nebulous. But otherwise, stick with the specific. For example: 
"The brawl" instead of "the incident" 
 
"Stole $500" instead of "theft of funds"
 
"Three broken ribs" instead of "serious injuries"
 
"The police's search" instead of "the underlying act" 
 
"Remember last year's stock price dip" instead of "Remember the event that happened last year" 
 

Verbs that move: Visual, Active, and Targeted

Verbs are the engines of our sentences. Their potential to create imagery and engagement is profound. And harnessing their power is a cornerstone of great writing. 

First: cut bland "state of being" verbs; prefer active and visual verbs. 

The "state of being" verbs tell your reader little, save that you "are" or that something "is." The verb is silent, letting other words do the work. Here are several: 

Is, Am, Are, Was, Were, Be, Being, Been, Have, Has, Had, Do, Does, Did, Shall, Will, Should, Would, May, Might, Must, Can, Could

We can rev up our writing by simply looking for chances to replace these silent verbs with more visual, active ones. I put together a list of hundreds of concrete and active verbs to give you some inspiration.

Check out how Justice Holmes does it. Instead of using bland verbs like most lawyers: 

“The statute has severe restrictions that only affect plaintiff.”

Justice Holmes uses concrete and active verbs that move

“The statute bristles with severities that touch the plaintiff alone.” 

Here are some other great examples of lawyers and judges nixing bland state-of-being verbs for better ones.

First, Judge Jennifer Dorsey:

“Patrol officers running license plates in a drugstore parking lot stumbled on a maroon Saturn.” 

Judge Carlos Bea: 

“They are alleged former child slaves of Malian descent, dragooned from their homes and [enslaved] on cocoa plantations.” 

Lord Denning: 

“Fraud unravels everything.” 

Judge Jay Bybee: 

“Congress drew the lines clearly…” 

Or take two passages from the Obergfell decision. First, Justice Kennedy: 

“The generations that wrote and ratified the Bill of Rights and the Fourteenth Amendment did not presume to know the extent of freedom in all of its dimensions, and so they entrusted to future generations a charter protecting the right of all persons to enjoy liberty as we learn its meaning.” 

Now Justice Roberts: 

“If you are among the many Americans — of whatever sexual orientation — who favor expanding same-sex marriage, by all means celebrate today’s decision . . . Celebrate the achievement of a desired goal. Celebrate the opportunity for a new expression of commitment to a partner. Celebrate the availability of new benefits. But do not celebrate the Constitution. It had nothing to do with it.” 

Don't worry about replacing every one of your state-of-being verbs, but figuring out when a state-of-being verb is the culprit creates a problem—and finding a better, more powerful verb to replace it—is what will make you a better writer.

Second: pick verbs that will evoke targeted images. 

Simply using more active and visual verbs will strengthen your writing. But to take your writing a bit farther, become comfortable with the subtle effects you can achieve by selecting one verb over another. 

This first example is the bland "state of being" version we shouldn't prefer. The second is active in that at least you see the man moving. But the third version is an example of a targeted verb--a verb meant to evoke a specific sort image (Note: Several of the above examples, like "unraveling," are targeted verbs that match up with the content). 

State of being: The woman is walking on the platform. 

Active: The woman walked onto the platform.

Targeted: The woman strode along the platform.

Here is another set of examples: 

State of Being: Jory is a fan of country music. 

Active: Jory likes country music.

Targeted: Jory treasures country music.

And one more: 

State of being: There are three things that may be helpful to the judge. 

Active: Three things may help the judge. 

Targeted: Three things may convince the judge. 

If you don't believe there are enough verbs to evoke just the right image you're looking for, peruse your options for our first verb above, "walk": 

Verbs for walk

Third: turn nominalizations into verbs. 

Always look out for nominalizations, also known as Zombie Nouns. These are verbs in nouns' clothing, often ending in -ion. For example: 

“The court made a determination on three of the counts”

Becomes:

“The court resolved three of the counts”

And: 

“The cases are not in agreement on this point”

Becomes:

“The cases disagree on this point”

 

Descriptors that disappear: Subtly use descriptors and only when they help  

Nothing bogs down your writing like excessive descriptors. Please: Let nouns and verbs do the heavy lifting. Too many adjectives--and especially adverbs--trigger your readers' skepticism, slow down the pace, and disrupt your fluency. There is a reason that Stephen King and other great writers urge us to kick these.

After all, as A.A. Patawaran points out:

A world without adjectives would still have the sun rising and setting, the flowers blooming, the trees bearing fruits, the birds singing, and the bees stinging.

This is a perfect example of descriptors bogging down the writing: 

The Government repeatedly and voraciously argues that under the statute there is very broad authority for EEOC to decide precisely how to engage in, and exactly when to give up on, conciliation.

Excising those and focusing on strong nouns and verbs cuts clutter and hones the points (courtesy of Justice Kagan): 

The Government highlights the broad leeway the statute gives the EEOC to decide how to engage in, and when to give up on, conciliation.

Or take this snippet from another federal brief: 

“Plaintiffs really offer nothing new here: their conclusory and baseless allegations that “they alleged defendant’s knowledge” is the very epitome of a quite desperate ploy."

Much more effective without the descriptors: 

“Plaintiffs argue nothing more than that ‘they alleged defendant’s knowledge.’ This legal conclusion is not the ‘specific fact’ that Rule 12 requires.”

Same with these samples, also from federal filings: 
 
“This case is the absolute epitome of a big corporation attempting to insidiously and vexatiously hurt a smaller one.”
 
Becomes: 
"This is a case of a corporate giant bullying a small business."
 
"The plaintiff sustained horrible and repeated injuries.”
 
Becomes:
“The plaintiff snapped three bones in his arm, twice.”
 
"Courts move as quickly as possible to review motions." 
 
Becomes: 
“Courts review motions within days.”
 
“The lawyers presented a thorough and exhaustive defense.”
 
Becomes: 
“The lawyers mustered every argument they could.”

That's not to say that you should never use descriptors. They can be a force for good. For one, descriptors occasionally convey important information that the nouns and verbs can't muster on their own. But on those rare occasions when a descriptor will help--choose carefully. Empty intensifiers, like "very, "really" and "clearly," rarely add anything worth adding. Good descriptors will convey something useful.

For example, here, by using the word "explicitly," the court is pointing out that a prior case put something down in writing:

[T]his Circuit, almost two months before the district court's ruling in this case, explicitly declined to apply this framework. Liu v. Amway Corp., 347 F.3d 1125, 1136 (9th Cir. 2003). 

And sometimes a brilliant descriptor can pack a wallop, used sparingly and artfully: 

The wall the court erect[ed] between church and state has become even more warped and twisted than I expected.

Sometimes descriptors can also help distinguish:

The testimony is damning; the video is very damning.

 

Replace long, boring transitions with fresher ones  

The best transitions are the ones you never notice. They do their guiding work, but they also contribute important information as a good citizen of the sentence. The abrupt, repetitive transitions that many lawyers use are often useless--simply telling the reader that "something" happened rather than delivering any helpful information about how concepts or thoughts connect to one another. Take this example from a state supreme court filing: 

Furthermore, the defendant's argument fails under governing case law. Such caselaw includes, among other things, this court's own precedent. Moreover, the defendant raises this argument far into the briefing, in a reply. Additionally, this briefing....

These empty transitions are verbose and do little to increase your writing's logical flow. Legal writers sometimes forget that the skill of transitioning between sentences and topics is not a matter of simply sprinkling in transition words. 

Consider using (1) shorter transitions, (2) fresher transitions, and (3) transitions in different forms--like beginning your sentences with helpful context that explains how the next thought connects up with the prior one. And don't just insert transitions blindly: sometimes a sentence doesn't need a transition because the connection is obvious. Look at some select Justice Kagan transitions (not an "additionally" or "moreover" within sight): 

Countless cities and towns across America have adopted ordinances regulating the posting of signs, while exempting certain categories of signs based on their subject matter. For example, some municipalities generally prohibit illuminated signs in residential neighborhoods, but lift that ban for signs that identify the address of a home or the name of its owner or occupant . . . In other municipalities, safety signs such as ‘Blind Pedestrian Crossing’ and ‘Hidden Driveway’ can be posted without a permit, even as other permanent signs require one . . . Elsewhere, historic site markers—for example, ‘George Washington Slept Here’—are also exempt from general regulations . . . And similarly, the federal Highway Beautification Act limits signs along interstate highways unless, for instance, they direct travelers to ‘scenic and historical attractions’ or advertise free coffee.” 

Here is a great example of each transition tactic at work. First, poor transitions: 

VMI attracts some applicants because of its reputation as an extraordinarily challenging military school. The math program is a very challenging part of the school and key to why it is so successful. The plaintiff points out that discriminatory policies exist in the math program, which benefit only males.

In 1990, the United States sued the Commonwealth of Virginia, alleging that VMI's violated the Equal Protection Clause of the Fourteenth Amendment by benefiting females unfairly.

Becomes: 

VMI attracts some applicants because of its reputation as an extraordinarily challenging military school. One of the school’s tough programs, the math one, is key to its success. But this math program discriminatorily benefits only males.”

That discriminatory program spurred the United States to sue the Commonwealth of Virginia for violations of the Fourteenth Amendment.

And another: 

"Courts apply a two-pronged test to determine feasibility. If a defendant fails to submit adequate evidence he fails to meet the first prong of the two-pronged test."
Becomes:
"Courts apply a two-pronged test to determine feasibility. The first prong is not met if a defendant fails to submit adequate evidence."

Here are some other examples of smooth transitions that don't rely on the plodding "additionally":

“There’s no jurisdiction here. Setting that aside…”

“Be that as it may…”

“But also…”

“Likewise…”

“Same here: …”

“For example…for one…for another….”

Joe Regalia teaches at Loyola University School of Law and practices at King & Spalding LLP in Chicago. The views he expresses here are solely his own and not intended to be legal advice. Check out his other articles here

March 3, 2019 | Permalink | Comments (0)

Tuesday, February 26, 2019

Let's Get Ready to Rumble: How to Win a "Battle of the Rules" Argument

Occasionally, there is no binding precedent for an issue.  The appellate courts in a jurisdiction have not addressed the issue, and courts outside the jurisdiction have adopted differing rules.  After reviewing the different rules, you may prefer one rule over another because it leads to a more favorable outcome.  Before you can argue how this rule applies to your case in your brief, you must convince the court to adopt the rule you prefer.  At Commonwealth Law, the legal writing professors refer to this as “the battle of the rules.”

I encountered my first “battle of the rules” when writing a brief for a moot court competition in law school.  Initially, the issue intimidated me because it felt different from the analysis I had been taught.  As I encountered more “battle of the rules” issues in practice and teaching, I developed some pointers for how to wage, and hopefully win, the battle.

Gloves

Battle Strategy #1: Help the Court Understand Its Options.

You may be tempted to begin your argument by describing all the reasons why the court should adopt the rule you prefer.  These arguments could be confusing if the court does not appreciate that this is a “battle of the rules” issue.  It is better to start by explaining that there is no binding precedent on the issue.  Then, provide a brief description of the different rules available based on persuasive precedent.  Educate the court on rule A and rule B, even if you want the court to adopt rule B.

 

Battle Strategy #2: Explain Why the Rule You Prefer Is the Best.

To sway a court toward your preferred rule, rule B, explain why it is the best rule for society in general and your jurisdiction in particular. Focus on the impact of the rule.  Rule B may be more easily applied by law enforcement officers in the field.  Rule B may align with policies foundational to the area of the law, such as torts or contracts.  Also, argue why the other rule, rule A, is not a good choice.  Rule A may open the floodgates to litigation and clog court dockets.  Rule A may place an onerous burden on a segment of the population.  The reasons you provide in favor of your rule and against the other rule should be supported by authority, as explained in my next point.

 

Battle Strategy #3: Anchor Your Argument in Authority.

When asking a court to wade into uncharted waters, provide the security of authority.  Cite to courts that have adopted the preferred rule.  Courts may be persuaded to adopt a rule if most jurisdictions have done so or if it appears to be the current trend.  If some states have enacted statutes or regulations similar to the preferred rule, cite to them.  It is particularly persuasive if you cite cases or legislation from sister jurisdictions. Alternatively, you may be able to analogize your “battle of the rules” issue to an issue with settled law.  For example, argue that a court should recognize a constitutional right by drawing a parallel to other well-established constitutional rights.  Finally, secondary sources may lend support for your arguments.  Law review articles, model codes, or restatements can be helpful additions to the legal authority you provide.

 

Battle Strategy #4: Use CRAC to Organize.

Use the traditional organizational scheme of conclusion, rule, application, and conclusion (CRAC) to set forth your “battle of the rules” argument. 

Conclusion

First, state the conclusion.  Tell the court what rule you want it to adopt. “This Court should adopt Rule B because it is consistent with the remedial purposes of tort law.”

Rule

Second, discuss the rule options.  Begin by explaining that there is no binding precedent for the issue.  Then, help the court understand the rules it could adopt.  Cite to authority for all rule options. 

Application

Third, describe the impact of applying the preferred rule.  Argue that the preferred rule will be better for society.  Respond to your opponent’s arguments as to why another rule is better.  Cite to authority to support these arguments. 

Conclusion

Finally, restate your conclusion and reiterate the rule you want the court to adopt.

 

Battle Strategy #5: Study the Great Fights.

When you encounter a “battle of the rules” issue in practice, observe how the attorneys argued it and the court decided it.  Collect effective arguments in your quiver so you are ready for your own battle.  I give my students an excellent example of a “battle of the rules” argument from a brief written by one of my former colleagues at the Pennsylvania Office of Attorney General.  You may access the brief, and the “battle of the rules” argument on pages 14–24, by clicking here.



 

 

 

February 26, 2019 in Appellate Advocacy, Legal Writing | Permalink | Comments (0)

Monday, February 25, 2019

Moot Court Season

Moot Court season is upon us.  Law students from around the country are headed off to compete in a mock appellate arguments on a wide range of topics.  This past weekend students competed at the Jeffrey G. Miller National Environmental Law Moot Court Competition (more commonly known as Pace).  Students also competed at the San Francisco and Portland regionals for the National Appellate Advocacy Competition put on by the ABA.  (Congrats to the teams from my school that both made it to the round of 5 at the San Francisco regional). 

This coming weekend Boston and Philadelphia host their NAAC regional competitions. And, my school hosts the National Native American Law Student Association Moot Court Competition.  We are looking forward to hosting 40+ teams from across the country to argue a difficult, but fascinating, Indian Law problem.

The University of Houston has already started tabulating the top moot court programs for its rankings.  This year the current top 5 is Texas heavy:

  1. Baylor
  2. Loyola University
  3. South Texas
  4. University of Georgia
  5. University of Houston

I really love moot court.  I love coaching, I love judging, and I love seeing students develop over the course of the weeks that they work on the problem.  Moot court has many benefits for students.  While it certainly teaches them teamwork, it also teaches them to be problem solvers and work independently.  For most moot court competitions, students cannot receive any outside help on their briefs.  For some competitions, they can't even receive substantive help during their oral advocacy practices. Moot court also teaches time management.  Some of the major competitions, like the NAAC and the NNALSA, require students to brief over the winter holidays. Finally, moot court helps students learn to become excellent public speakers.  I have heard that the number one fear that people have is public speaking. As a person who formerly hated public speaking, I know that the only thing that has helped me improve is practice, practice, practice.  Moot court does that for law students.

Moot court has benefits for the local legal community too.  Volunteering to judge provides you with more than a few free CLE credits, it allows you to think about and discuss an interesting area of law.  Moot court problems are often centered around an interesting and unsettled area of the law--the kind of question your least favorite professor might put on a law school exam.  It can be fun to get back into law school mode and ponder these questions (especially when you are asking the questions, rather than the other way around).  I also think that moot court gives us hope for the next generation of lawyers.  They can, and will, do great things.  That is exciting.

But, despite the excitement, moot court isn't perfect.  It isn't perfect because we all know that the briefs are way more important than the arguments in real life.  It also isn't perfect because, just like in real life, gender stereotypes can rear their ugly heads.  I was reminded of that this week when I saw an article on Law.com announcing that the first female appellate law clerk had passed away at the age of 94. Carmel Ebb, who graduated first in her class at Columbia Law in 1945, is believed by most to be the first woman to clerk for a federal appellate court judge.  She clerked for Judge Jerome Frank on the Second Circuit.  She interviewed for a Supreme Court Clerkship but, according to her obituary, “Her hopes were dashed when the justice concluded their conversation by saying he had no doubt she would be a fine clerk, but that his wife would never allow him to work in such close proximity to a woman.” Ms. Ebb went on to have a successful career, including making partner at a New York firm.

So how do gender stereotypes play a role in moot court?  Next post I will look at an article on this topic.

 

February 25, 2019 in Appellate Advocacy, Appellate Practice, Federal Appeals Courts, Law School, Legal Profession, Moot Court, Oral Argument, Tribal Law and Appeals | Permalink | Comments (0)

Thursday, February 21, 2019

Is Ghostwriting Legal Blog Content Unethical?

Lawyers engaging in law blog writing is so widespread that the ABA annually recognizes the best blogs. (The Appellate Advocacy Blog was delighted to join the list this year!) The writing done on these kinds of topical law blogs does not pose any ethical issue for authors - because these blogs are not advertisements. They do serve several purposes however: to feed the desire of the writer to write and explore ideas, to join the broader conversation in the legal community, and to inform readers who may be specialty practitioners or the general public. These lawyers, as writers, are not ghostwriters: they write their own content. Considering these purposes, there would be no point to that!

But there is lots of other writing about law going on that is ghostwritten and it is causing some to raise ethical concerns. Law firm and lawyer websites that exist to advertise legal services frequently buy legal content or employ ghostwriters to produce the information on their websites. This may consist of short informative articles about certain aspects of the law in which the firm or attorney practices. Sometimes lawyers sign their names to these types of articles giving the impression that they are also the writer. Some say this is adverting and as such it is misleading. Others say this is no different from a partner signing his name to a brief written by his associate. The ABA has not yet officially weighed in on the controversy.

Barbara S. Gillers, chair of the ABA Standing Committee on Ethics and Professional Responsibility, in an email to the [ABA] Journal. “In my view, ghostwriting a blog post for a law firm is not by itself a problem so long as the lawyers for whom it’s been written approve it, adopt it as their own, and the content comports with the lawyer advertising rules. The fact that the post appears under the name of a person other than the original is not in and of itself improper.”

Under Rule 7.1 of the Model Rules of Professional Conduct, a lawyer must not mislead the public about his services. 

Information About Legal Services

A lawyer shall not make a false or misleading communication about the lawyer or the lawyer's services. A communication is false or misleading if it contains a material misrepresentation of fact or law, or omits a fact necessary to make the statement considered as a whole not materially misleading.

The argument against ghostwriting for website content is that through the interaction with the content the potential client is developing a trust toward the lawyer. By allowing the client to assume the lawyer is the author of the content the client is mislead in some way. Does this violate Rule 7.1? Is this an omitted fact that is necessary for the client to judge whether the lawyer has mislead her on the services offered? I am not sure that it is. 

A lawyer is not an island. In other words, in order to provide competent legal services, a lawyer almost always needs help - whether it be from the paralegal, the associate, the colleague, or someone writing content for the website. All of these individuals may contribute to a final writing product that a lawyer will present to the public, the court, or to other attorneys. In the case of submissions to the court or another attorney, no "byline" credit is necessarily given to those who have contributed. Website content is simply an extension of the lawyer's practice and it seems inconsistent to require a lawyer to acknowledge a ghostwriter in that context where he would not do the same in legal practice. So long as the lawyer has personally approved the content to be published under his name, it seems like a stretch to say this runs afoul of ethical rules on advertising. 

Perhaps our readers have some other thoughts on this emerging ethical issue?

February 21, 2019 in Legal Ethics | Permalink | Comments (0)

Tuesday, February 19, 2019

Masters of Allusion

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As appellate writers, we are painfully aware of the fact that our readers aren’t terribly fond of our work product. Judges tell us that our briefs are simply tools, and that they are tired of trudging to chambers with boxes (or ipads) full of briefs that are too wordy, too obscure, and just too painful to read to be of much use. Judges, meanwhile, are accused of writing opinions that are too wordy, too obscure, and inaccessible to anyone but other attorneys.

It is understandable, then, that legal writers both on and off the bench try to liven things up. Like Ralphie in A Christmas Story, lawyers dream of turning in a piece of writing that, through shear skill, will temporarily lift our readers from their depression and convince them to joyfully deliver us our (client’s) wishes.

The use of literary allusion can help us make our writing more lively and informative. Allusions can build our credibility, illustrate the rightness of our position, and make our writing more accessible. But it is a two-edge sword: If used poorly, it can cause the reader to lose what little interest they had in our argument and even obscure our meaning.

Literary allusions can be very effective tools in legal writing.

The use of literary allusions is not universally praised. Indeed, Judge Posner, in his articles and book on the subject, Law and Literature, considers literature of little use to jurists, other than to serve as examples of good writing style. Nevertheless, most persuasive writing experts would argue that there are good rhetorical reasons to use literary allusions.

Aristotle identified three prongs of persuasion: ethos (credibility), pathos (emotional appeal), and logos (logical reasoning). Reference to literary allusion can assist with all three.

First, reference to “great” works can enhance the moral authority of the writer. Merely referencing Homer, Shakespeare, or a religious work such as the Bible, can confer some of the moral authority and weight of those works to the author. It can also demonstrate that the author is well read, and thus all the more to be trusted.

Second, quotations from literature can tie the emotion of the quoted work to the legal argument, invoking pathos. We are all taught to write narratively, because we are all storytellers and listeners by nature. Tying our characters to those of a great work ties the emotions inherent in those works to our characters.

Finally, allusion can help tie together a legal argument by way of illustration. There some general propositions that are difficult to state under stare decisis, but which seem immediately right when viewed through the eyes of literature. Thus, Aristotle invoked Sophocles’ Antigone to support his argument that respect for the dead is a universal law, as did Justice Kennedy, over 2000 years later. See Nat’l Archives & Records Admin. v. Favish, 541 U.S. 157, 168 (2004).

Make sure the allusion agrees with the law.

Justice Oliver Wendell Holmes wrote in his famous essay, The Path of the Law, “[t]he law is full of phraseology drawn from morals, and by the mere force of language continually invites us to pass from one domain to the other without perceiving it, as we are sure to do unless we have the boundary constantly before our minds.” 10 Harvard L. Rev. 457, 469 (1897). These boundaries have often been made apparent when allusions to moral works conflict with statutory sentencing schemes.

For instance, the Fifth Circuit had to step in and correct a criminal defendant’s sentencing when it was based on reference to Dante’s circles of hell rather than the sentencing guidelines. See U.S. v. Andrews, 390 F.3d 840, 850 n.23 (5th Cir. 2004) (“The district court seems more comfortable with sentencing Andrews based on Dante’s levels of hell, but such a sentencing scheme has not been accepted as the law in this or any other federal circuit.”). Dante’s opinions notwithstanding, it was the duty of the court to apply the law, not literature.

Nevertheless, there are times when literature can inform the sense of justice upon which the law is built. Thus, the Seventh Circuit permitted a judge to rely (in part) on Dante’s Inferno in refusing a federal prosecutor’s recommendation to depart downward from sentencing guidelines because, even though the refusal to depart was stated to be based, in part, on literature rather than law, this was merely a reflection of the discretion vested in the trial judge by the guidelines. See U.S. v. Winters, 117 F.3d 346, 348, 350 (7th Cir. 1997).

The lesson? Literary allusions can lend force to a legal argument, but they should not supplant it.

Let the reader discover the allusion.

It is often best to let the reader discover the answer themselves. This is particular true with allusions. A quotation often will have less force than the sudden recognition that you are inviting the reader into the argument based on their own experiences.

Bryan Garner, in his A Dictionary of Modern Legal Usage, gives an excellent of example of subtle allusions in legal writing. He cites to the dissent of Justice Robert W. Hansen of the Wisconsin Supreme Court, in Jones v. Fisher, 166 N.W.2d 175 (Wis. 1969) where he wrote: “The road that has brought us to the present state of affairs in regard to punitive damages in Wisconsin courts is a long one, paved with good intentions.” Id. at 182. As Garner notes, this formulations subtly suggests that the line of authority is a road to hell, allowing the reader to reach that conclusion themselves. Had Justice Hansen stated the aphorism directly, it would have been less effective.

Be sure the reader will recognize the allusion, or can understand the point if not.

When we communicate with someone, there is much more being communicated than the words we choose. We are also communicating through filters, and those filters include our shared experiences. Literary allusions, at their best, add to our communications through reference to the experiences writer and reader share in having read the same works.

In using allusions, then, we need to be careful not to obscure the text for the reader who is not familiar with the work. That was the conclusion of the late, great, Charles Alan Wright, when he concluded that it was safe to use allusions in briefs and other legal writings only so long as the text is intelligible even if the reference is not understood. See Literary Allusion in Legal Writing: The Haynsworth-Wright Letters, 1 Scribes J. Legal Writing 1 (1990).

Wright’s example leading to this conclusion is instructive. Wright was taken by the use of Justice Friendly of a reference to a “legal Lohengrin,” because it captured the essence of his legal argument so well by comparing an obscure statute to the character from a Wagnerian opera who depended on the obscurity of his own identity. Judge Haynsworth responded, however, by noting that the reference was itself obscure, and asked: “Should a judge write for the Charlie Wrights or for young law clerks preparing legal memoranda for the use of junior partners in advising clients?” Id.

We should keep the same question in mind. Particularly in a multi-cultural world with changing educational standards. Feel free to use allusions, but err on the side of caution when it comes to obscure ones, and be sure to sufficiently explain yourself to those who do not share the same reading experience.

Take a note from Justice Ginsberg, who made a Biblical allusion without any expectation of biblical scholarship, and then explained exactly what she meant:

No man can serve two masters. If you are negotiating a contract, a lawyer does not represent both clients. That is all that is involved here.

NLRB v. Health Care & Ret. Corp. of Am., 511 U.S. 571, 595 n.14 (1994).

Sometimes allusions can draw the sting out of a rebuke

Finally, I leave you with an allusion born from kindness. There are times when an appellate court has to note a clear mistake made by the lower court, or, worse, an appellate attorney must point out an error made in the law that seems apparent in retrospect. Let me introduce you to a literary allusion that can help you make such a point while actually complimenting the party that made the mistake.

Homer, the author of the Iliad and the Odyssey, two foundational works that should still be at least recognizable to our readers, was known to make mistakes. Indeed, Homer killed a character earlier in one of his texts and then used the same character later, fully alive, in apparent error. This led the Roman poet Horace to write that “even the noble Homer sometimes nods.”

Now, telling someone they made an obvious error is a delicate task. Comparing them to one of the most famous authors of all time while doing so, however, draws the sting a bit.

When Justice Cardamone was tasked with telling the district court judge that the Second Circuit had already set out the law of the case in a prior appeal, and that law had not been followed, he used this literary reference in his opening:

When one of the cases of this consolidated appeal was before us seven years ago, we set out some guidance on the law, which the district court [sic] either misinterpreted or missed. If the latter, such forgetfulness is understandable because we know that even Homer nodded.

Brooklyn Legal Servs. Corp. v. Legal Servs. Corp., 462 F.3d 219, 219 (2nd Cir. 2006).

While some judges might disagree about the effectiveness of literary allusion, I doubt anyone would complain about being corrected in this gentle manner.

(The author wishes to credit John M. DeStafano III, On Literature as Legal Authority, 49 Ariz. L. Rev. 521 (Sept. 2007) for inspiring this article. Image credit: Matt Buck / CC-BY-SA-4.0).

February 19, 2019 in Appellate Advocacy, Books, Legal Writing, Religion, Rhetoric | Permalink | Comments (1)

Monday, February 18, 2019

Issues have to Percolate: Mandamus not available for Google in East Texas Venue Challenge

This is a post by one of our new authors: Hilary Reed, Clinical Associate Professor Lawyering Skills and Strategies at the University of Houston Law Center.

Though Google has no offices, employees, or store fronts in East Texas, it does have some servers there.  Last year, in a patent case, a district court judge deemed those servers a “place of business” in the Eastern District of Texas and established venue under 28 U.S.C. § 1400(b).  The Eastern District of Texas is known as a “rocket docket” and has a reputation as a plaintiff-friendly patent jurisdiction.  Google requested a writ of mandamus on the venue issue from the Federal Circuit. That writ was denied by a panel in October.  Earlier this month the Federal Circuit denied a rehearing by the panel and a rehearing en banc on the writ in In re Google LLC, 2019 WL 438198 (Fed. Cir. Feb. 5, 2019). It’s hard to imagine that this issue won’t ultimately be decided on the merits by the Federal Circuit because of the decision’s wide-spread implications for tech companies, potentially subjecting them to venue anywhere they own equipment.  But for now, the Federal Circuit has said that this is not one of those extraordinary causes mandamus should remedy.      

For more discussion of the venue issue, check out this blog post

While the underlying venue issue is certainly interesting, I want to focus here on the Federal Circuit’s mandamus analysis, particularly on the denial of the writ and Judge Jimmie Reyna’s strong dissents to both the original panel decision and the en banc rehearing denial.  From a practical perspective, how big do the stakes have to be for the appellate court to take up an issue on a writ of mandamus?

Writs of mandamus allow litigants to request appellate review before there is a final judgment in a case.  In the original panel decision, the Federal Circuit explains that “[a] writ of mandamus is a ‘drastic and extraordinary remedy reserved for really extraordinary causes.’”  In re Google, LLC, 2018 WL 5536478, *1 (Fed. Cir. Oct. 29, 2019) (citation omitted).  It then lays out the three requirements for a writ of mandamus:

[f]irst, the petitioner must ‘have no other adequate means to obtain the relief’ desired. Second, the petitioner must show that the ‘right to issuance of the writ is clear and indisputable.’ Third, ‘even if the first two prerequisites have been met, the issuing court, in the exercise of its discretion, must be satisfied that the writ is appropriate under the circumstances.”

Id.  The court reminds us that “a post-judgment appeal generally is an adequate remedy for asserted §1400(b) violations.”  Id. at *2.  But mandamus can be available “in certain exceptional circumstances” in order to assure proper judicial administration. Id.   

According to the majority, those circumstances do not exist in Google’s case—the issue needs to continue to percolate at the district court level. The court states that Google “failed to show that the district court’s ruling implicates the ‘special circumstances justifying mandamus review of certain basic, unsettled, recurring legal issues over which there is considerable litigation producing disparate results.’” Id.  The court points to the small number of cases dealing with this issue at the district court level, and says that the “extraordinary remedy of a writ of mandamus is not currently warranted.” Id. at *3.

Judge Reyna’s dissents present an entirely different picture.  I found his reasoning relating to the Court’s supervisory and instructional duties compelling, as well as his identification of a growing trend of suits against Google in the Eastern District of Texas.  He warns that the court’s decision here weakens the Federal Circuit’s Writ of Mandamus jurisprudence.  Part of the role of mandamus is to ensure “proper judicial administration.”  The Federal Circuit also has a special role of supervision of lower courts on patent issues because of its exclusive subject-matter jurisdiction.  By failing to issue the writ, the court allows a question to remain open that affects many technology companies and where they can be sued.  Judge Reyna notes that a large technology company may own equipment in all jurisdictions, potentially subjecting it to nation-wide venue, which is not in line with Supreme Court jurisprudence. 

As to the majority’s “percolation” principle, Judge Reyna states that “there is no principled reason to wait for these questions to ‘percolate’ further among districts . . . I see no justification for us to sit idly by while uncertainty builds and litigants and courts expend their resources on issues that we could have provided guidance on here.” Id. at *4.  In fact, Judge Reyna reviewed the Eastern District of Texas docket and identified a growing trend of suits against Google—thirty-four new suits from October 29, 2018 when the panel denied the petition for mandamus until February 1, 2019. 

Certainly, any adverse decision at the trial level can feel to the litigant like it should meet the mandamus standard because of the resources that they must spent before getting a final, appealable decision.  Google now will litigate this case and possibly a large number of others in the Eastern District of Texas, with the possibility that a later appellate decision will find that venue was improper the entire time.  While mandamus is supposed to be an extraordinary remedy, this seems like precisely the scenario where it makes sense.  Of course, it’s hard to muster much sympathy for a resource-rich company like Google having to pay more in legal fees, but the current uncertainty on the venue question needs settling.  And I’m sure to tech companies, the sooner the better.  Unfortunately for them, the Federal Circuit decided they can wait. 

February 18, 2019 | Permalink | Comments (0)

Saturday, February 16, 2019

Keep it Simple: Using Your Brief to Educate

Recently, Tessa wrote about useful tools for scoping out the court.  In her post, Tessa discussed resources for learning more about your audience, so you can effectively tailor your brief and argument.

In this post, I'll address some strategies for those times when learning more about your audience just isn't possible.  For instance, if you're arguing to a panel of the Fourth Circuit, you'll have no idea who's been pouring over your brilliant brief until it's show time.  Similarly, if your audience is a state supreme court, it's unlikely that any specific tidbit is going to save you.  Consider the odds.  In North Carolina, where I practice, you'd be left trying to anticipate the desires of seven justices, each with a different background.  

So what's the advocate to do?  Use your brief not only to argue but also to educate. 

Here's some background. Recently, I heard North Carolina's Senior Associate Justice, Paul Newby, speak at a CLE. Justice Newby was tasked with explaining the Supreme Court of North Carolina's mandatory appellate jurisdiction in complex business cases.

The Justice made the point that too often the nuance of a complex business case may be lost on his colleagues.  Each of them has a different background, and only one -- himself -- had a history of litigating business disputes, like shareholder derivative actions.  

The problem isn't that the justices don't approach each case carefully.  Quite the opposite.  It's that they're spending too much time trying to grasp the foundational principles, which the attorneys didn't explain sufficiently, and thus don't have enough time to digest the arguments. 

That got me thinking.  Lawyers get tunnel vision.  We know our case -- the ins, the outs, the twists, the turns.  Sometimes, we've lived with it for months or maybe even years. We've done the legal research and read all the pertinent authorities. 

Being so caught up may not be such a bad thing.  If you were involved before the appeal, you have an intimate knowledge of the case that an appellate lawyer will try her best to recreate.  But being so caught up also has its downsides. It's easy to become too comfortable with a set of facts, or with a legal principle.  

But skimping on the basics can keep your reader from buying what you're selling.  If a judge has to read your argument multiple times to get a basic grasp on the issues, you're losing ground.  The time that a judge spends re-reading your brief, pouring over the record, or, worst of all, doing background legal research is time that he or she is not spending thinking critically about your case.  Chief Justice John Roberts said as much in a 2007 interview with Brian Garner.  (Read the whole thing, but especially check page 28 of the PDF). 

So what can we do about it? Like all good legal problems, the answer depends.  The answer depends on whether the wrinkle in your case is factual or legal. 

If the complicated issue is factual, consider a tactic that a partner of mine calls "putting on the white hat." Take the opportunity to explain, as honestly as you can, not only the facts behind your case but also the context.  Why are the parties fighting? What are their motivations? 

I know, I know.  That sounds more like a mediation statement than an appellate brief.  But the reader will appreciate it. By putting the case in context, you'll have gained two advantages.  First, you will have explained the case in a way that helps the judge or her law clerk understand it. It's likely your opponent won't, which also means you'll get a chance to present your case's human factors.  And that leads to the second point. By explaining the human factors motivating your case from your client's perspective, you'll gain a subjective advantage. You'll humanize your client. 

Sometimes, putting your facts in context is as simple as an extra sentence, or an extra phrase.  For instance, if you're in an employer-union ERISA dispute, consider telling your reader what the employer does.  Likewise, consider telling your reader who the union represents.  Sure, these facts have nothing to do with the nuance of the ERISA plan in dispute, and you probably won't reference them anywhere in the brief.  But this type of stuff is important if you want your brief to do more than recite facts; it helps your brief tell a story. 

In any case, if the complicated issue is legal, then the best approach is to keep it simple.  Remember, judges are generalists. While you might live and breathe environmental or bankruptcy or intellectual property law, that doesn't mean that your judge does.  So think twice before you start using terms of art without first describing them in plain English.  Slow the pace of your brief, educate your reader, and then explain why you should win.  

I recognize that it might be frustrating to go back to basics.  But there's yet another benefit. You have the chance to teach the judge the applicable law as you see it. It's another chance for advocacy, no matter how subtle. 

To conclude, I'll leave you with this thought, which, to some extent, ties these points together.  Be creative about how you structure your brief. For instance, if you're arguing about a novel issue of statutory interpretation or a complex statutory scheme, the court will likely be less interested in the facts of your case than with an overview of the statute.  Lead with it.  Embrace it. You can take a lot of approaches when writing your brief and, fortunately, very few are wrong. But more on that in my next post. 

February 16, 2019 in Appellate Advocacy, Appellate Practice, Legal Writing, Oral Argument, Rhetoric, State Appeals Courts | Permalink | Comments (0)

Friday, February 15, 2019

Appellate Advocacy Blog Weekly Roundup February 15, 2019

Appellate Advocacy Blog Image

Each week, the Appellate Advocacy Blog Weekly Roundup presents a few tidbits of news and Twitter posts from the past week concerning appellate advocacy. As always, if you see something during the week that you think we should be sure to include, feel free to send Dan Real a quick email at DReal@Creighton.edu or a message on Twitter @Daniel_L_Real.  You can also send emails to Danny Leavitt at Danny@tsalerno-law.com or a message on twitter @Danny_C_Leavitt

Supreme Court:

The Washington Legal Foundation held its mid-term assessment of upcoming arguments. The presenters scarcely mentioned the February arguments. 

Linda Greenhouse writes this op-ed for The New York Times about Chief Justice Roberts' position last week in June Medical Services, LLC v. Gee.  The Chief Justice stayed the Court of Appeals for the Fifth Circuit's ruling pending a petition for certiorari by the petitioners, an abortion clinic and its doctors.  

Justice Sotomayor spoke at the Law Library of Congress about her career, among other things. Particularly relating to appellate judges, she spoke of how the justices get along despite legal disagreements. Watch the event here

Practice Pointers and Tips:

Law.com has this article discussing whether Twitter helps or hinders practicing attorneys in their legal careers.

Judge Richard Minor @JudgeMinor, of the Alabama Court of Criminal Appeals, tweeted about his first oral arguments as a judge on the Court of Criminal Appeals in coming weeks. He asked for advice about how to prepare and participate as a judge. Many replying noted how refreshing it was that a judge would ask others about preparing.

Attorney Kristen Jernigan has these 10 ways to avoid waiving error for appeal.  

 

February 15, 2019 | Permalink | Comments (0)