Appellate Advocacy Blog

How is the presidential race like “a knife fight in a phone booth”?

On September 2, 2024, when describing the stakes of this evening’s presidential debate between Vice President Kamala Harris and former president Donald Trump, Steven Shepard of Politico labeled the race “the equivalent of a knife fight in a phone booth.”[i] 

I’m a big fan of the power of metaphor and analogy in persuasive writing, given their abilities to both readily convey complex information in simpler terms and improve concision.  But this particular comparison doesn’t work for me.  The characteristics of a knife fight in a phone booth are (1) two people in a very small space, (2) mortal danger, and (3) a short duration.  Harris and Trump are not, by any stretch of the imagination, in a confined space together.  While they are competing for the office of president, they are not seeking to physically harm or kill one another in doing so.  And while the timeline for this particular match-up is brief in comparison to prior presidential races given Harris’s late entry, it has still been (and will be) a monthslong endeavor.  So how, exactly, is it like a knife fight in a phone booth?

This is not the first time this metaphor has been used in reference to politics.  It is frequently used to describe the political landscape in San Francisco.[ii]  And it was used by Senator Mitch McConnell to describe congressional races in 2016.[iii]

But this phrase has also been used to describe combat in the Iraq War,[iv] dealing with turbulence when learning to fly an airplane,[v] the speed of a bicycle,[vi] competitive strategy in athletics,[vii] competition for real estate,[viii] the setup and play of various board games,[ix] and paralympic wheelchair fencing.[x]

“Knife Fight in a Phone Booth” is also the title of multiple songs by various artists,[xi] a watercolor painting,[xii] an actual board game,[xiii] and even an IPA craft beer (which was also sold in a pineapple version).[xiv]

It is hard to see a common thread.  I suspect the original meaning had more to do with speed than competition.  According to one website, the full phrase comes from the country expression, “faster than a knife fight in a phone booth.”[xv]  This makes a lot of sense; it’s not difficult to imagine that a knife fight in a phone booth would be over quickly.  But that doesn’t really apply to presidential races, which can feel rather long to the average American.

Another variation of the phrase is used to describe a boxing style—“fighting in a phone booth,” where the boxers stay huddled together without using the entire ring.[xvi]  (This version of the phrase has become an actual Russian sport where two people literally box each other inside the confines of a phone booth.)[xvii]  This knifeless version could figuratively apply to the current presidential race, where the real fight seems confined to a handful of swing states, rather than the country as a whole.  But then why the addition of knives?

I suspect the most likely explanation is that the evolution of language has simply morphed this metaphor into one of limited utility.  It makes sense when describing certain board games characterized by “slim mechanics,” “[p]unishing to even minor mistakes,” “[c]laustrophobic,” and “[o]ver in a flash.”[xviii] And it is an apt comparison to paralympic wheelchair fencing, where the competitors’ wheelchairs are locked on a fixed track so that the competitors’ blades are always within striking distance of one another, taking the footwork element out of the sport.[xix] But I struggle to see the connection to a political race.

Analogies and metaphors work by employing three cognitive science processes:  (1) retrieval (finding something known), (2) mapping (identifying similarities between the known and unknown), and (3) transfer (using knowledge about the known to learn or infer something about the unknown).[xx]  Therefore, analogies work best when they (1) compare the current situation with another situation that is familiar, (2) have some emotional resonance, and (3) are free of unintended associations.[xxi]  And maybe this is where the knife-fight-in-a-phone-booth metaphor breaks down for me.  Knife fights of any kind carry no emotional resonance, and using the phrase in reference to politics seems to encourage political violence, which, for most Americans, is a negative association.  And, if I’m being honest, the visual image of Harris and Trump in a literal knife fight in a phone booth is absurd and fails to convey what I believe was the intended meaning—that Harris and Trump are locked in a high-stakes competition with exceptionally close odds for both candidates. 

The moral of this story is this:  analogies and metaphors are excellent communication tools when used well, but they can be off-putting when used incorrectly or when they contain unintended associations.

 

[i] Steven Shepard, Where the race between Trump and Harris stands on Labor Day, according to our polling expert, Politico (Sept. 2, 2024), available at: https://www.politico.com/news/2024/09/02/trump-harris-polls-2024-00176981 (last accessed Sept. 8, 2024).

[ii] See, e.g., Clara Jeffery, Dianne Feinstein and the Knife Fight in the Phone Booth, Mother Jones (Sept. 29, 2023), available at: https://www.motherjones.com/politics/2023/09/dianne-feinstein-dan-white-harvey-milk/ (last accessed Sept. 8, 2024); Jacob Ganz, A Knife Fight in a Phone Booth: The Saga of the San Francisco Mayor's Race, Davis Political Review (June 1, 2018), available at: https://www.davispoliticalreview.com/article/2018/06/01/a-knife-fight-in-a-phone-booth-the-saga-of-the-san-francisco-mayors-race (last accessed Sept. 8, 2024).

[iii] See https://www.c-span.org/video/?c4622795/sen-mcconnell-senate-races-knife-fight-phone-booth (last accessed Sept. 8, 2024).

[iv] Eric Boehler, Knife fight in a phone booth, Salon (Mar. 29, 2003), available at: https://www.salon.com/2003/03/29/baghdad_7/ (last accessed Sept. 8, 2024); Elliott Ackerman, A Knife Fight in a Phone Booth, The Atlantic (Nov. 7, 2023), available at: https://www.theatlantic.com/ideas/archive/2023/11/al-qaeda-fallujah-hamas-gaza-parallels/675912/ (last accessed Sept. 8, 2024).

[v] Knife Fight in a Phone Booth, Southern California Soaring Academy blog, available at: https://soaringacademy.org/news/knife-fight-in-a-phone-booth (last accessed Sept. 8, 2024).

[vi] Bull Moose Bicycles, Facebook (July 16, 2024), available at: https://www.facebook.com/story.php/?story_fbid=1069208224593423&id=100045127670672&_rdr (last accessed Sept. 8, 2024).

[vii] Jonathan Byrd, It’s a Knife Fight in a Phone Booth, 10/20/Life Blog, available at: https://www.powerrackstrength.com/its-a-knife-fight-in-a-phone-booth/ (last accessed Sept. 8, 2024).

[viii] Marc Stiles, Builder says competition for Seattle-area homesites feels 'like a knife fight in a phone booth', Biz Journals (May 17, 2024), available at: https://www.bizjournals.com/seattle/news/2024/05/17/homesite-competition-akin-knife-fight-phone-booth.html (last accessed Sept. 8, 2024).

[ix] https://boardgamegeek.com/geeklist/192508/a-knife-fight-in-a-phone-booth (last accessed Sept. 8, 2024).

[x] @paralympics, TikTok (Sept. 1, 2024), available at: https://www.tiktok.com/@paralympics/video/7409618665819147552 (last accessed Sept. 8, 2024).

[xi] See, e.g., “Knife Fight in a Phone Booth” by Glassmouth, “a chaotic hardcore/mathcore band from the depths of metropolitan Singapore” (https://www.glassmouthband.com/); “Knife Fight in a Phone Booth” by Bleed the Sky, “a metalcore band that originally formed in 2002 in Orange County, California” (https://genius.com/Bleed-the-sky-knife-fight-in-a-phone-booth-lyrics); and “Knife Fight in a Phone Booth” by Knockout Kid, “an American pop punk band from Chicago, Illinois” (https://en.wikipedia.org/wiki/Knockout_Kid).

[xii] “Knife Fight in a Phone Booth” by South African artist Victoria Verbaan, available at: https://victoriaverbaan.com/products/knife-fight-in-a-phone-booth (last accessed Sept. 8, 2024).  This watercolor image depicts a woman facing up to a sky full of fighter jets.

[xiii] “Knife Fight in a Phone Booth” by Long Games, available at: https://www.pnparcade.com/products/knife-fight-in-a-phone-booth (last accessed Sept. 8, 2024).

[xiv] Knife Fight in a Phone Booth by Tattered Flag Brewery, Middletown, PA (https://untappd.com/b/tattered-flag-brewery-knife-fight-in-a-phone-booth/2502698).  Incidentally, the image represented on this beer was a hops flower flying a fighter jet engaged in aerial combat.  This craft brewery closed permanently on October 1, 2023.

[xv] https://www.just-one-liners.com/faster-than-a-knife-fight-in-a-phone-booth/ (last accessed Sept. 8, 2024).

[xvi] See, e.g., What do they mean when they say two boxers were fighting in a phone booth?, Quora, available at: https://www.quora.com/What-do-they-mean-when-they-say-two-boxers-were-fighting-in-a-phone-booth (last accessed Sept. 8, 2024).

[xvii] https://sidekickboxing.co.uk/what-is-phone-booth-boxing/

[xviii] See boardgamegeek.com, supra note ix.

[xix] See @paralympics, supra note x.

[xx] Jacob M. Carpenter, Persuading with Precedent: Understanding and Improving Analogies in Legal Argument, 44 Cap. U.L. Rev. 461, 465-66 (2016).

[xxi] Bruce Ching, Argument, Analogy, and Audience: Using Persuasive Comparisons While Avoiding Unintended Effects, 7 J. Ass'n Legal Writing Directors 311, 312 (2010).

Credibility as the Coin of the Realm in Appellate Advocacy

Credibility with the Court provides one of the key parts of an appellate presentation, whether written or oral. An advocate who fudges the controlling law or precedent or misrepresents it cannot expect the judges to credit other aspects of the argument. Misrepresentations about the record or the caselaw can effectively sink the most unfailingly accurate presentation of all other issues. Misstating something material to the case can plant a seed that grows into doubt about your honesty, your understanding of the law, and the thoroughness of your research.

Persuasive argument requires credibility. Spinning the facts or law in your client’s favor may require emphasis on particular facts or precedents while labeling the more problematic ones “unavailing,” but that does not authorize you to claim support from record evidence or judicial decisions that do not bolster your case.

When incredulous arguments appear in a brief, the responsive brief will usually point those out. If those arguments materialize in reply, it may occasion a sur-reply to inform the court of the filings departure from fair argument. Or it may provide an opponent with a devastating statement at oral argument from which there is no recovery.

In one case I had, my opponent made a false statement about the record in his opening brief. In my response, I dropped a footnote to rebut it, showing that nothing approximating what he argued was in the record, citing to the part of the joint appendix that would have, but did not, contain the “concession” he claimed. When we got to oral argument, I was shocked to hear my opponent make the claim anew without any acknowledgement of what I had said in my brief. As I began to jot down a note to remember to rebut the statement, Justice Ginsburg interrupted my opponent’s argument to make the point for me. He had no response. After that, what had been a smooth and very professional argument up until that time became disjointed and immeasurably weakened by his misstep. When I stood at the podium, I did not have to say anything about it because a justice’s efforts had done everything I had hoped to accomplish. The result confirmed that impression.

In their book on legal advocacy, Justice Scalia and Bryan Garner emphasize that oral argument requires an advocate to show the court “you are trustworthy, open, and forthright.”[*] If, in posing a question unanticipated in the briefing, you build an answer on a faulty structure that becomes apparent to the Court, either during oral argument or while an opinion is crafted, you will have snatched defeat from the jaws of a possible victory.

 

[*] Antonin Scalia & Bryan A. Garner, Making Your Case: The Art of Persuading Judges 141 (1998).

Citation Overload: Write Smart, Cite Smarter

Citations matter. Love them or hate them: Legal readers want them and, to be fair, they need them. After all, citations are how readers verify what you tell them about the law. But citations are also one of the easiest ways to clutter your writing. So choose your cites with care and make it clear how each supports what you say.

To see why your citation style matters, look at this snippet of legal writing, drowned by cites:

"Defendants contend that the exclusion of evidence relating to the plaintiff's prior legal actions is appropriate pursuant to Rule of Evidence 403, quoting with approval a series of cases that address the question of prejudicial impact versus probative value, including Mercer v. City of Cedar Rapids, 308 F.3d 840, 845 (8th Cir. 2002); Collins v. Kibort,274 F.3d 377, 385 (7th Cir.2001); and Springs v. First Nat'l Bank of Cut Bank, 835 F.2d 1293, 1297 (10th Cir.1988). Further complicating matters, the plaintiff cites to an entirely different set of authorities to counter defendants' argument and to present an antithetical view of the standard for probative value, including Sprint/United Mgmt. Co. v. Mendelsohn, 552 U.S. 379, 384 (2008); Huddleston v. United States, 485 U.S. 681, 688-89 (1988); and L.B. Foster Co. v. America Piles, Inc., 138 F.3d 81, 89-90 (2d Cir.1998). This Court's role is now to untangle the threads of these cases and form a coherent rule to apply here."

Did readers need all these citations? Likely not. Here’s a rewrite without the legalese: 

"Defendants argue for the exclusion of evidence, citing Rule 403 and cases like Mercer v. City of Cedar Rapids, 308 F.3d 840, 845 (8th Cir. 2002). The plaintiff, conversely, offers cases like Sprint/United Mgmt. Co. v. Mendelsohn, 552 U.S. 379, 384 (2008). This Court's role is now to untangle the threads of these cases and form a coherent rule to apply here."

Citations are double-edged. Use them well, and they help. Lean on them too heavily, and your writing loses its voice.

Most importantly, if you cite authority, you should either quote the source or directly paraphrase it. But lawyers constantly drop citations on readers without explaining how those citations support their points. Talk about a credibility killer. If your readers need to go look up a case to figure out how it supports the sentence you’re writing, you’ve likely lost them.

Often the cite’s relationship to your sentence is already clear. As you set up the prep for your rule, you might share general principles that require a quick cite and nothing more. “Plaintiff has the burden here. [cite]” might be an example. But that would still be true only if the case said that in so many words—no inference needed.

In any event, when you start explaining your rule, especially an important one, don’t rely on empty citations. Do the inferential reasoning for your reader and put it on display. Link what matters from the source to your points so obviously that even the busiest readers can’t miss it. 🔗

Say you write this:

"Defendants need not touch the plaintiff’s skin to carry out a battery— touching something laying on the plaintiff’s body is enough. Park v. Hoffman, 324 F.3d 42, 44 (9th Cir. 2018)."

When your reader pulls up page 44 of Park, it should say something like: “A defendant contacts another by touching any item on the plaintiff’s body.” Different words but identical meaning.

If your reader must infer—say, you assume that this was the court’s reasoning based on the facts in the case, or you’re reading between the lines of some language and what the court didn’t say—don’t just cite the case for that general proposition. One option is to explain your inference directly:

"Given that the court in Park addressed a defendant who ripped a plate from the plaintiff’s hand, contact with the plaintiff’s skin is not needed. 324 F.3d 42, 44 (9th Cir. 2018)."

Your citation is not misleading because you’re telling your reader what inferences you relied on. You did the inferential work for them. You could also interpret the rule in your own words then explain the supporting facts or quotes with citations.

"Contact with the plaintiff’s skin is not needed. In Park, the court addressed a defendant who ripped a plate from the plaintiff’s hand. 324 F.3d 42, 44 (9th Cir. 2018). . . ."

Now you made clear where the inference came from. Credibility managed. But when your reader will not instantly know what a case said or why you cited it, explain it. So again, avoid using cites like this:

"The rule of plevin requires courts to inquire further when parties dispute the terms of an agreement. Park v. Hoffman, 654 F.2d 578 (2012)."

Instead, explain the citation’s purpose and operation plainly:

"The rule of plevin requires courts to inquire further when parties dispute the terms of an agreement. Park v. Hoffman, 654 F.2d 578 (2012) (considering a contract dispute and explaining courts cannot stop at plain language when interpreting)."

Journal of Appellate Practice and Process Accepting Articles

Do you have an article or essay on appellate practice that is waiting for publication?  The Journal of Appellate Practice and Process is accepting articles for our Summer 2025 issue. As we explain on our website:

The Journal of Appellate Practice and Process is a professionally edited Journal that focuses on appellate law topics. According to HeinOnline, it is the “the only scholarly law journal to focus exclusively on issues, practices, and procedures of appellate court systems, both federal and state, both American and international.” It “provides a forum for creative thought and dialogue about the operation of appellate courts and their influence on the development of the law.”

The Journal was founded at the University of Arkansas at Little Rock’s William H. Bowen School of Law in 1999, and moved to the University of Arizona James E. Rogers College of Law in June 2020. It is edited in partnership with the National Institute for Trial Advocacy.

Since its founding, The Journal has published scores of important articles. Chief Justice William H. Rehnquist and Justices John Paul Stevens and Stephen G. Breyer of the United States Supreme Court have written for The Journal.  Prominent federal and state appellate judges have also published in The Journal, including:

• • Judge Frank M. Coffin of the First Circuit,
  • Judge Robert A. Katzmann of the Second Circuit,
  • Judge Ruggero J. Aldisert of the Third Circuit,
  • Judge Richard Posner of the Seventh Circuit,
  • Judge Richard S. Arnold of the Eighth Circuit,
  • Chief Justice Randall T. Shepard of Indiana,
  • Chief Justice Vincent L. McKusick of Maine,
  • Chief Justice Charles B. Blackmar of Missouri, and
  • Chief Judge Judith S. Kaye of New York.

The Journal has also published the work of leading legal scholars from law schools across the country that include the University of California at Berkeley, the University of Chicago, Columbia, Cornell, Duke, Georgetown, Harvard, the University of Michigan, New York University, Northwestern, the University of Pennsylvania, Stanford, the University of Virginia, and Yale.

Courts often refer to The Journal in their opinions, citing it over 100 times in 2019 alone.

Feel free to send any submissions to me at [email protected].

A Brief Must be Pudding with a Theme

Winston Churchill reputedly would refer to flavorless food as a pudding without a theme. He employed the same critique occasionally to a disorderly piece of legislation.  In 1935, he criticized a proposed statute, called the India Bill, as a “gigantic quilt of jumbled crochet work.” To him, it had no “theme,” “pattern,” “conviction,” “simplicity,” or “courage.”  It was, in his view, “a monstrous monument of shams.”

A legal argument without a theme and the other deficient qualities Churchill scored is equally indigestible. It suggests that the advocate had no plan in attempting to persuade the court and little faith in the arguments mustered. A theme unites disparate aspects of the case into a single consistent narrative that enables the reader to understand and sympathize with the argument. A theme weaves together the facts, law, and sense of justice in the writing behind a single common idea to convey a strong and favorable reaction from those you seek to persuade. It allows you to demonstrate that your proposed rule of law is fairer, less complex, more consistent with precedent, or more workable. It therefore better fits the established norms, modern trends, or recent developments. Although a reading judge may not later remember specific details about the case, a consistent theme creates a lasting impression and enables even a fuzzy recollection of key elements to blaze a familiar-seeming path to your desired result and imbue the apt analogies you invoke to have irresistible force.

Judge Patricia Wald of the U.S. Court of Appeals for the District of Columbia Circuit once advised that brief writers should:

                        Visualize the whole before you begin. What overriding message is the document going to convey? What facts are essential to the argument? How does the argument                                take off from the facts? How do different arguments blend together? Better still, if it’s a brief, visualize the way the judge’s opinion should read if it goes your way. (Too                       many briefs read as if the paralegal summed up all conceivably relevant facts, and then the lawyer took over with the legal arguments, and never the twain doth meet.)

A theme also allows you to praise the insight or demonstrate the error in the lower court’s decision with proper respect. The theme should fit the case naturally, acknowledging its limits and not be the product of a hard sell. Those limits may involve the types of cases it fits or fact patterns that call for different considerations. Those acknowledgments provide welcome credibility to the judicial reader. By tying together loose ends and excluding problematic applications for separate treatment in a logical fashion, the argument will render the judicial enterprise easier and the argument more appealing.

A theme is compelling storytelling. For a divided court that takes markedly different  approaches to issues, it can make all the difference. Take, for example, statutory interpretation. Some judges adhere to the text and do not look beyond it. Others seek to divine congressional intent from legislative history. Yet others focus on practical issues to make legislation workable. Regardless of the judges’ approach, a theme creates an overarching means of fitting each of those forms of guidance into a consistent answer that can yield a favorable result. Do not leave your panel with a flavorless pudding.

Neurodiversity and Legal Advocacy: Autism

Introduction

The final form of neurodiversity I will address individually is autism. Autism is a complex neurological condition that manifests in different ways. It often includes differences in social communication and interaction, sensory processing, intense passions or interests, and repetitive behavior. About 2.2% of American adults are on the autistic spectrum.

Haley Moss is an attorney who was diagnosed with autism as a child. Here is how she describes her experience:

I was a late talker. I did not speak until I was four years old, and the language I did use was echolalic - often repeating words and phrases my parents used originally heard from cartoons or movies. I regularly stim in order to feel less nervous or to feel a form of sensory input, whether it is twirling my hair, fidgeting, or flapping my hands as form of full body joy when I am so excited, I cannot keep it to myself.

My special interests have changed over the years. While everyone has hobbies or topics that they find enjoyable or fascinating, with autism, it is often the depth of the knowledge that separates the interests from neurotypical pleasure. As a little kid, I was once all-knowing about Ancient Egypt before having an all-encompassing knowledge of the Harry Potter books and movies, to an encyclopedic-level knowledge of Lilly Pulitzer prints and patterns. I would go so far as to say that in law and legal practice, having one particular niche area of practice you enjoy is incredibly similar to an autistic special interest (writing and taking about disability law, the Americans with Disability Act [ADA], and neurodiversity, for instance, surely feels that way for me!).

The executive functions prove to be the most difficult for me, along with social interactions. Sometimes I get so engrossed in a task or something I am passionate about that I forget what time it is or what else to prioritize. I make a lot of lists to make sure the most important things get done. Socially, I will miss the sarcastic joke or put forth double the effort into networking and friendships because it can feel unnatural or far more difficult than it may be for a neurotypical person.

Haley Moss, Great Minds Think Differently: Neurodiversity for Lawyers and Other Professionals 16 (2021)

Strengths

As with other types of neurodiversity, a strengths-based approach to autism helps identify how this different way of thinking can strengthen a practice or legal career, and helps educators focus on leveraging those strengths for their students. The following are some of the strengths identified in those with autism.

• Attention to detail
  Autistic people can enter states of tunnel vision or extreme focus, which, coupled with a strong attention to detail, can lead them to excel at detail-oriented work, including document review, spreadsheet analysis, and similar tasks.
  
  
• Memory
  Many people with autism have excellent focused memory systems, leading to expertise in subject areas and strong recall.
  
  
• Problem solving
  According to some studies, autistic people are up to 40% faster at problem solving, and less likely to be swayed by emotional impact when making decisions.
  
  
• Strong work ethic
  Because of strengths in focus and problem solving, many employers say that autistic employees demonstrate a strong work ethic and satisfaction with tasks, including repetitive tasks.

Weaknesses

As with with forms of neurodiversity, there are attendant weaknesses that are common in people with autism. These weaknesses can be managed and accommodated in various ways.

• Social cue interpretation and display
  Autistic people often have a difficulty in reading emotions, and often are perceived to be emotionless or “flat” by neurotypical people. Awareness of this potential difficulty can prevent misunderstanding.
  
  
• Rigid thinking
  Many autistic people do not respond well to change, and this includes thinking outside of one’s own internal system of thought. Preventing last-minute surprises and change can be very helpful to someone with autism in the workplace. Scheduling events and calendaring deadlines with "tickler" dates to avoid surprises can be very helpful.
  
  
• Self stimulation
  Self-stimulation, or stimming, is a coping mechanism by some people with autism, where they engage in some sort of repetitive physical activity to lessen their anxiety. As Haley Moss describes her own hair twirling or hand movements, it is common for those with autism to use physical movement in ways that can seem distracting. While those with autism may be self-accommodating or undergoing behavioral therapy, cutting down the noise and distraction of work environments is also helpful to avoid the stressors that can lead to the behavior.
  
  
• Compulsions and obsessions
  Many autistic people have intense focus, sometimes resulting in an obsession with a particular subject or object. Setting timers or otherwise blocking out time for projects can help cut short focus on one thing when others must be addressed.
  
  
• Sensory overload
  Many autistic people have difficulty filtering out sensory data. As a result, they have to process all of that information, leading to sensory shutdown or meltdowns. Again, a quiet work environment, without harsh lighting or persistent noise, can be very helpful.
  
  
• Executive functioning
  Many autistic people have difficulty in accomplishing complex tasks when given to them as a block. Some may focus on certain details and miss the big picture. Others may have difficulty in organizing thoughts or paying attention to a given task. Assigning projects in steps rather than as an entire finished product can be extremely helpful.

Adaptations and accommodations

My next entry will answer the "so what now?" question some of you may have. You have been introduced to the concept of neurodiversity and you have some familiarity with the strengths-based approach to leveraging and coping with the strengths of weaknesses of dyslexia, ADD, and autism. But not every student or associate will disclose their particular neurodiversity, and many remain undiagnosed. Fortunately, there are best practices to employ in the classroom and workplace to help those with neurodiversity maximize their potential, and those practices are good for those who are neurotypical, as well. More on that next time.

Further Reading:

https://embrace-autism.com

Haley Moss, Great Minds Think Differently: Neurodiversity for Lawyers and Other Professionals (2021)

(photo attribute: Bill Sanderson, 1997. Credit: Wellcome Collection. CC BY 4.0)

There's No Such Thing As "Legal Writing"

In law school, students take legal writing courses and learn, among other things, how to: (1) analyze and synthesize the law; (2) organize arguments using IRAC/CRAQ; (3) eliminate repetition and irrelevant facts from a legal document; (4) address counterarguments and acknowledge weaknesses in your case; and (5) cite to and rely upon legal authority. These skills are certainly useful and will help students maximize the persuasiveness of a motion or brief.

However, law students and lawyers should recognize that there is no such thing as “legal writing.” There is only excellent writing. In other words, whether you are writing an appellate brief, a fiction novel, a narrative non-fiction book, a textbook, a biography, or, for that matter, directing a movie, the principles and techniques of great writing remain the same.

Great writing has the following characteristics – regardless of whether it is in a legal context – and should be used by law students and lawyers to ensure the quality and persuasiveness of their legal documents.

1.    Hook the reader.

Why should readers care about what you have to say? To engage readers, you must hook them at the beginning of your motion or brief. This requires a powerful opening sentence, a compelling story and narrative arc, a vivid description of the critical events, and an appeal to the reader’s emotion (where appropriate) and sense of justice. Put simply, a great brief is like a great movie.

Consider the following examples:

Example 1:

In this case, the defendant is guilty of murder. On April 17, 2024, she murdered her husband. She did it because she wanted to be free to pursue another relationship with a man who refused to be with her while she was married. So she planned the murder and killed her husband in a very heinous manner that caused tremendous suffering and pain.

Example 2:

On April 17, 2024, at 10:45 p.m., the defendant stabbed her thirty-seven-year-old husband 124 times. Her husband screamed as he experienced unimaginable pain. He begged and fought desperately for his life. But the defendant ignored these pleas. Instead, she plunged a sharp knife into her husband’s body relentlessly. After being stabbed 123 times, seeing that her husband was still alive, the defendant plunged the knife into her husband’s chest one last time, ending a life that had so much promise. And she killed her husband solely because she wanted to be with another man.

The latter example, although not perfect, is more effective. It shows, in vivid detail, how horrible the defendant’s crime was and appeals to the reader’s emotions and sense of justice. After all, if you read the latter paragraph, how would you feel about the defendant? You’d probably want to convict her.

Also, make sure that your introduction is concise. If it is too long, you will lose (or at least annoy) the reader. Think about it: how many times have you gone to see a movie that was scheduled to begin at 8:00 p.m., only to have the movie begin at 8:40 p.m. because there were seven or eight previews? This understandably frustrates many moviegoers, and that frustration may affect how they view the feature.

You never want this to happen when drafting a motion or brief. If you write a lengthy introduction, you risk alienating the reader, and when that happens, it will affect the reader’s view of the credibility and persuasiveness of your arguments. Indeed, a critical part of hooking the reader is to get them to like the writer, which increases the odds that the reader will be captivated by and emotionally invested in your story (and give you the benefit of the doubt in close cases).

2.    Maintain your credibility.

Most people remember the Friday the 13th movie franchise, where Jason Voorhees mercilessly kills numerous groups of unsuspecting camp counselors. Although the first installment of Friday the 13^th received fairly positive reviews, the dozen or so sequels received almost uniformly negative reviews. Why? Well, at least in part, it was because no matter how many times Jason Voorhees was killed, including being axed to death, nearly decapitated, drowned, and ejected from a spaceship, he miraculously came back to life. What nonsense. The Friday the 13th sequels were critically panned because the story had no plausibility or credibility whatsoever.

Never make this mistake in your writing. For example, if you are representing a defendant who is charged with manslaughter for sending text messages to her husband that encouraged him to commit suicide, don’t say this:

The defendant is not responsible for this tragic death. For years, the defendant and her husband enjoyed a blissful marriage. However, the defendant’s husband suffered from depression for many years and, despite receiving treatment for depression and taking numerous medications, failed to improve consistently and substantially. Thus, when the defendant’s husband texted the defendant and expressed a desire to end his life, the defendant agreed that this was a prudent decision, and the defendant, despite the unimaginable difficulty, supported her husband’s choice. In short, this was an act of love. It was an act of mercy. And the defendant misses her husband every day.

Yeah, right. And Elvis faked his death. This is so utterly ridiculous that it requires no further explanation.

Additionally, make sure that your argument is consistent with and supported by the facts and law. Never misrepresent or mislead. Do not make arguments that fail to pass the smell test. Be honest with the reader. Acknowledge weaknesses in your case, such as unfavorable facts and legal authority, and explain why they should not affect the outcome you seek. After all, when you lose credibility, you lose your case – and reputation.

3.    Get to the point.

Over the years, many audiences have watched movies that, while in some instances quite good, could have been great except for the fact that they were insufferably long. For example, Titanic, which won the Academy Award for Best Picture in 1997, was a very good movie but far too long. Specifically, it took three hours and fifteen minutes to tell us what we already knew.

The ship sank.

It hit an iceberg.

There weren’t enough lifeboats.

People died.

Similarly, Pearl Harbor was needlessly three hours long. The Japanese attacked Pearl Harbor. It resulted in a tragedy of immeasurable proportions. We don’t need three hours to understand what we already know.[1]

Why are some movies too long? Because they include, among other things, unnecessary sub-plots, dialogue, and characters.

Poorly written motions and briefs make similar mistakes. They include irrelevant facts or law. They discuss legal issues that are tangential or entirely inconsequential. They incorporate unnecessary details. They are unduly repetitive. They cite five cases to support a basic legal proposition. In so doing, they tell a story that is more akin to Friday the 13th, Part 9 than Gone With the Wind.

When in doubt, err on the side of brevity rather than length, as unnecessarily long motions or briefs will bore a judge, damage your credibility, and decrease your chances for success. Get to the point quickly. Tell the court what you want and why you should get it. In many cases, less is more.

4.    Polish.

Your legal filings must be polished. They should have, among other things, no grammatical or spelling errors, artificial emphasis, unnecessary block quotes, and useless string cites.

If you cannot follow these rules, why should the reader trust that your arguments accurately reflect the law and facts?

5.    Appeal to common sense.

Judges are human beings, not robots. They do not apply the law to the facts in a hyper-technical manner. Rather, they want to do the right thing. Accordingly, and particularly where the law is broadly worded and can be interpreted differently, do not just argue that the law supports the result you seek. Instead, explain why it is the right and equitable result. In other words, where appropriate, incorporate policy arguments in your motion or brief.

***

Ultimately, do not think that legal writing is a separate genre or specialized form of writing. It isn’t. Focus on being a great writer, not a great legal writer.

 

[1] Certainly, some movies are justifiably lengthy, but only because the complexities inherent in the story and its characters require such length. Examples include Gone With the Wind and The Godfather, Part II.

Breaking Down ABA Formal Opinion 512 on Generative AI Tools

On July 29, 2024, the ABA issued Formal Opinion 512, addressing the integration of generative artificial intelligence (GAI) tools into legal practice. This landmark opinion outlines the ethical considerations for lawyers leveraging these powerful new technologies. Here’s what you need to know to stay compliant and enhance your practice with GAI tools.

Generative AI Basics

Generative AI tools can create new content, including text, images, audio, video, and software code, in response to user prompts. Unlike traditional AI applications that analyze existing data, GAI tools generate new content by predicting statistically probable outputs based on vast datasets. They are already making waves in tasks such as legal research, contract analytics, document review, and document drafting.

Key Ethical Considerations

1. Competence (Model Rule 1.1): To use GAI tools competently, lawyers must understand their capabilities and limitations. While you don’t need to become a GAI expert, you should have a reasonable understanding of the benefits and risks associated with these tools. This involves continuous education and staying updated on technological advancements. Attending relevant CLE programs and consulting with tech experts can help maintain this competence. And, while GAI may be a starting point for a legal task, the opinion clarifies that it cannot be the end point: “lawyers may not abdicate their responsibilities by relying solely on a GAI tool to perform tasks that call for the exercise of professional judgment.”
2. Confidentiality (Model Rules 1.6, 1.9(c), and 1.18(b)): Client confidentiality is paramount. Before using GAI tools, evaluate the risks of disclosing or providing unauthorized access to client information both outside and inside your organization. Especially with self-learning GAI tools, ensure you obtain informed consent from clients before inputting sensitive data. Understand the terms of use and privacy policies of the GAI tools you employ, and consider consulting IT or cybersecurity professionals to safeguard client information.
3. Communication (Model Rule 1.4): Effective communication with clients about your use of GAI tools is crucial. You must disclose if these tools significantly influence your decisions or if your client expressly inquires about your methods. Incorporate discussions about usage and charges for GAI tools into your engagement agreements to manage expectations and maintain transparency.
4. Meritorious Claims and Candor Toward the Tribunal (Model Rules 3.1, 3.3, 8.4(c)): The opinion directs that “output from a GAI tool must be carefully reviewed to ensure that the assertions made to the court are not false.” Carefully review GAI-generated outputs to ensure accurate assertions of both fact and law. Misleading the court, even unintentionally, can have severe repercussions. The opinion also advises lawyers to consult local rules regarding GAI usage disclosure requirements, suggesting that the failure to do so could implicate Rule 3.4(c)’s obligation of fairness to opposing parties and counsel.
5. Supervisory Responsibilities (Model Rules 5.1 and 5.3): If you are in a managerial or supervisory role, the opinion expressly directs that you establish clear policies on the use of GAI tools. Ensure that all members of your firm, including nonlawyer assistants, are trained on the ethical use of these tools. This training should address “the basics of GAI technology, the capabilities and limitations of the tools, ethical issues in use of GAI[,] and best practices for secure data handling, privacy, and confidentiality.”
6. Fees (Model Rule 1.5): When billing clients for work involving GAI tools, ensure that fees are reasonable and reflect the actual time and direct costs incurred. The opinion provides the following example: “If a lawyer uses a GAI tool to draft a pleading and expends 15 minutes to input the relevant information into the GAI program, the lawyer may charge for the 15 minutes as well as for the time the lawyer expends to review the resulting draft for accuracy and completeness.” And, with respect to flat fees, “if using a GAI tool enables a lawyer to complete tasks much more quickly than without the tool, it may be unreasonable under Rule 1.5 for the lawyer to charge the same flat fee when using the GAI tool as when not using it.” Lawyers should not charge clients for time spent learning how to use these tools unless specifically agreed upon. Transparent communication about the basis of these fees is essential to maintain trust and compliance with ethical standards.

Embracing Technology Responsibly

The integration of GAI tools in legal practice offers unprecedented opportunities to enhance efficiency and quality. However, it also demands a heightened awareness of ethical obligations. By following the guidance in ABA Formal Opinion 512, lawyers can navigate this technological frontier responsibly, ensuring that their use of GAI tools benefits both their practice and their clients.

As we step into this new era, staying informed and adaptable is key. For more detailed guidance, refer to the full text of ABA Formal Opinion 512. And keep an eye out for ongoing educational opportunities and discussions within the legal community.

Academic Appellate/Clinical Job Opportunity

All--here is an interesting job opportunity out of Rutgers (you can find the official job posting here):

The Newark location invites applications for a strong leader and clinical teacher in its newly created Ruth Bader Ginsburg Women’s Rights and Gender Justice Clinic on its Newark campus. This Clinic will be a critical new addition to an already well-established and well-recognized clinical program. The applicant primarily will be responsible for developing the curriculum and docket of this new clinic. However, teaching outside of the clinic also will be part of this position. Scholarship, clinical teaching, and legal practice experience related to gender, gender identity, or sexual orientation discrimination; reproductive rights; domestic violence; or other gender justice issues is required. The ideal candidate will have tenure; however, strong applicants who are pre- tenure will be considered. Minimum requirements include a J.D. degree and membership in good standing of the Bar of any state; at least 5 years of related legal experience and/or 5 years of clinical teaching experience; and a demonstrated potential for scholarship.

All applicants will receive consideration for employment without regard to race, religion, gender, sexual orientation, gender identity or expression, national origin, disability, protected veteran status, or any other classification protected by law. Interested applicants should submit at this link:

• a curriculum vitae
• a cover letter, including an indication your desired campus location, if any.
• your research agenda
• a sample of your academic writing
• if you so choose, a statement of your professional contributions to diversity and equity.

Questions and references can be addressed to:

Professor Laura Cohen, Chair, Faculty Appointments Committee; [email protected]

* Rutgers University is committed to a policy of equal opportunity for all in every aspect of its operations. *

Writing Briefs, Rather than Literary Works

Some great literary works feature elegant and meticulously assembled sentences of considerable length. They carry you away like a leaf dancing in the wind, sending you headfirst into a wonderous and unfamiliar world. Like an evocative musical passage, it demands attention and provokes both emotions and thoughts that you know will reach completion in a way and with timing not yet knowable. It achieves its goals by sowing confusion and surprise in a calculated fashion but its words seem to be uttered breathlessly with the elongation of a wind instrument’s musical note held longer than thought humanly possible.

The task of brief writing plays a markedly different tune, even if it embodies literary qualities unique to the genre. It seeks not to astonish but to develop a clear, logical, and compelling path to the advocate’s preferred result. A brief advances abstract legal concepts but then dresses them in examples, often drawn from precedents that provide concrete applications that align with the case at hand.

The best brief writers prepare the reader for what is to come. The opening sentence of a section or a paragraph will provide a signpost about what is ahead. It prepares the reader to receive the thought. A sentence that begins with “ordinarily” advises a reader that the rest of the sentence will declare something familiar and seemingly unassailable. Yet, it also signals the reader that the sentences that follow will explain why this case does not involve ordinary circumstances but a distinctive situation that demands a conceptually different approach.

Signals may be individual words, or they may be clauses or full sentences. In one argument I had before the Supreme Court, Justice Breyer asked me to name the best precedent to support my point. He correctly anticipated the case I would cite. He told me that he had the case in front of him and asked me to explain a sentence in it that seemed to undermine my point. The Respondent’s reply brief also homed in on that sentence. I responded to Justice Breyer by explaining that he (as well as my opponent) had left off a dependent clause that proceeded the words he quoted. That clause, I explained, changed the sentence’s meaning in my favor. Justice Breyer chuckled at my response and agreed with my position. Rather than serve as a question designed to trip me up, he was looking to evoke the response I made.

The episode also demonstrates that judicial opinions often have signals or signposts to aid the reader in understanding the ruling. The legal issues that often provide the fodder of appeals usually involve submerged complexities lurking below the simplicity found on the surface. The writer who wishes to provide a clear path to a result understands that a brief or court opinion may need to build toward that end by assuring that the reader anticipates the path ahead as essential to understanding why it compels a favorable result.

Passing the (Blog) Torch

Between politics and the Olympics, the image of a torch is certainly in the news now. In the spirit of passing the torch, this post is to update our readers on new leadership for the Appellate Advocacy Blog. 

I am pleased to announce that Charles (Charlie) Oldfield will be the new managing editor of the Appellate Advocacy Blog. Charles is the Director of Legal Writing at Akron Law and an Assistant Professor there. He has extensive practice experience, including an all-important judicial clerkship. And he loves baseball. I am thrilled to pass the blog to him.

I will still blog as my schedule allows, but I have taken on a new role at the University of Arizona as the Assistant Vice Provost for Native American Initiatives. I am honored and excited to be tapped for this role, which is focused on student success, faculty development, and building strong partnerships with Native nations in Arizona and beyond. I will still remain engaged in the College of Law, and I still plan on editing the Journal of Appellate Practice and Process.

It has been a privilege to manage this blog over the past many years.  Congrats Charlie!

Recognition is Nice, But Results and a Compelling Story is What Counts

Advocates enjoy receiving recognition. We like to think that a job well done is a reward in itself. When the effort establishes an important new precedent, the satisfaction ought to be even better. A week ago today, I was privileged to receive the 2024 Appellate Advocacy Award from the National Civil Justice Institute for a 2022 victory in the Ohio Supreme Court. When the award was announced, I received a nice email of congratulations from a justice on another state’s supreme court, indicating that the award was well deserved based on my win. I appreciated the congratulations that the award and the many emails I received represented, but it also had me pondering what makes a judicial victory sufficiently different that it merits this type of recognition.

Certainly, there are many run-of-the-mill appeals that are taken as of right but do not move the needle on the case or on the law. These appeals are important to the clients, but perhaps to few others. Still, others have great potential to answer issues not yet addressed by the courts or to change the law. My recognition came in a case that successfully challenged the constitutionality of a state law as it applied to our case. It overcame considerable odds to reach that conclusion. The skill and effort I employed, and even the inventiveness of the arguments and strategy I utilized, would have been no different had the sharply divided court come out the other way. So, plainly, one element that counts, disproportionately, is victory. We celebrate winners and not equally important losing efforts that may pay off later.

Another element necessary for recognition is a compelling story. Without one even the most surprising win, the creation of a leading precedent in an area of law, and an innovative approach to the argument may not inspire the recognition that carries with it even broader impact. I was lucky enough to have a case come to me with compelling underlying facts and a cry for justice that melted even the most hardened hearts. It was the story of a young girl, lured to sleepovers at a friend’s home, only to have a nighttime drink spiked to put her in a deep sleep and sexually assaulted by friend’s father – 34 times. He also videotaped the assaults of both this plaintiff and others. He went to prison, but the psychological injury to the plaintiff led to homelessness, drug addiction, and a long road to finding a more normal life.

Despite a substantial jury verdict, consisting entirely of noneconomic damages, state law required that the court reduce it to $250,000, which the trial court did. The reduction sent a message that the value of the plaintiff’s life was a small fraction of what the jury determined. An intermediate appellate court also rejected the constitutional challenge. At the state supreme court, a bare majority agreed that the state damage cap law’s exemption for permanent physical injuries of a catastrophic nature, irrationally excluded permanent, catastrophic psychological injuries, in violation of due process. Dissenters sought to avoid the question by latching onto the idea that the issue was moot because the defendant was judgment-proof. Another dissenter complained that the nine months from oral argument to decision was insufficient time for him to research and write a proper dissent by a majority determined to issue the decision before the end of the year. To me, that seemed an odd complaint, given that appellate advocates normally have but 30 days to brief the issue (especially as I had been brought into the case at the reply-brief stage).

But the dissent was a bid to encourage a motion for reconsideration. The chief justice, who had written the majority opinion, was stepping down at the end of the year due to hitting the mandatory retirement age. If reconsideration spilled over to the new year, a new and very different majority would decide the motion.

Reconsideration was filed late at night on December 26. Anticipating that motion, my response was largely written. I tweaked it to address some unexpected citations and filed the next morning. Reconsideration was denied December 29. The case is Brandt v. Pompa, 171 Ohio St. 3d 693, 220 N.E.3d 703 (2022). And the now-adult plaintiff knows the value of her life was vindicated even if she never sees any of that money – and others in similar circumstances know that their claims will not be artificially degraded.

State Courts are Cool

I have to admit, I took the title of this blog post from Judge Dillard of the Georgia Court of Appeals. He (naturally) is a strong supporter of and advocate for state courts. The most recent issue of the Journal of Appellate Practice and Process, which is now live, is dedicated to the great work of state courts. The formal announcement is pasted below. This issue contains what just might be the first-ever law review essay by a 10-year-old and her 8-year-old brother!  Enjoy!

The Journal of Appellate Practice and Process – Summer 2024 Issue Now Available

The Summer 2024 issue of The Journal of Appellate Practice and Process (Volume 24, Issue 2) is now available. It features the following pieces:

• Tessa L. Dysart—Confession
• Toni M. Massaro—In Memoriam:  Justice Sandra Day O’Connor
• Eric J. Magnuson & Samuel A. Thumma—“Same as it Ever Was”: Why Audio-Video Recordings in and of Trial Court Proceedings Should Not Change the Standard of Appellate Review
• Allegra Collins—A Motion for En Banc Rehearing in the North Carolina Court of Appeals: A Petition for Panel Rehearing in Disguise
• Jeffrey M. Anderson—Writing for Expert Readers
• Peter W. Martin—A New Reporter Confronts the Supreme Court’s Unpublished Decisions
• Lacey Stover Gard & Lisa Howell—ASFLAD: A Structure for Judicial Decision Writing
• Emily Caughey & James Caughey—Exposing Kids to the Judiciary
• Hilary Stirman Reed—Review of The Moot Court Advisor’s Handbook (Second Edition)

A Few Unconventional Writing Tips

Great writing is not simply about following conventional rules. It is about knowing when—and how—to use unconventional writing techniques that enable creativity and enhance persuasion. Below are a few unconventional writing tips that can improve the quality and persuasiveness of your brief.

1.    Reverse the narrative.

There is no such thing as “legal” writing. There is only great writing (and writers).

The best “legal” writers do not simply use conventional writing techniques. Rather, they are creative. They break the “rules” when necessary. Most importantly, they use the same literary techniques used in fiction, narrative non-fiction, and memoirs.[1]

One of these techniques is reversing the narrative. Doing so means that you begin your narrative at the end, not the beginning of the story. The objective is to create a compelling opening scene that captures the audience’s attention and enables them to invest in your story on a personal and emotional level.

Consider the following examples involving a hypothetical case where a plaintiff is suing an airline after a plane crash took the lives of the plaintiff’s two children.

Example 1:

Universal Airlines Flight 5638 departed from Los Angeles International Airport on June 12, 2023, carrying 128 passengers, and bound for Newark, New Jersey. The plane, a Boeing 737, took off without incident and climbed to 35,000 feet. For the next two hours, except for moderate turbulence, the flight proceeded without incident. However, approximately two-and-a-half hours into the flight, the pilots struggled to control the plane, as it lost altitude at a rate of 2,000 feet per minute. Attempting to regain control of the plane, the pilots increased the plane’s speed and rate of ascent, but despite these efforts, the plane entered an aerodynamic stall from which the pilots could not recover because their ability to control the plane diminished substantially. Sadly, the plane crashed in Omaha, Nebraska, killing the pilots, crew, and all 128 passengers. The National Transportation and Safety Board concluded that a fire in the plane’s cargo hold, which was caused by faulty wiring, caused the pilots to lose control of the plane and led to the crash. Universal Airlines was negligent in failing to identify and repair the faulty wires and, as a result, is liable to the plaintiff for damages.

Example 2:

Omaha, Nebraska, a vibrant city where the College World Series is played annually and was scheduled to begin on June 14, 2023, lost its innocence two days earlier on June 12, 2023. In a field spanning 500 yards, 128 bodies, most of which were unrecognizable, lay dead. Among them were fourteen children, including five under the age of three, four beloved high school teachers, and a husband and wife who were traveling to New York with their children to visit Manhattan for the first time. Scattered across the debris field were clothing, jewelry, and stuffed animals. The most heartbreaking discovery was a letter written by a passenger as the plane was going down, which read “Mom, I will always love you.” The tragedy’s magnitude is immeasurable, and the most disturbing aspect is that it was preventable. Universal Airlines had the ability—indeed the responsibility—to fix the faulty wiring in Flight 5638’s cargo hold and to ensure the safety of its passengers. They did not. Valuing profit over safety, Universal Airlines, knowing that the wiring was faulty, deemed it an “acceptable” risk and continually certified that the plane was airworthy, even though it knew that the wiring was essential to maintain the plane’s hydraulic system. As a direct and proximate result of this negligence, 128 passengers never made it to New York. Their final resting place is in Omaha where only a few articles of clothing, stuffed animals, and a letter stating, “Mom, I will always love you,” remain.

This second example, while not perfect, is better. First, it begins at the end and, in so doing, captures the reader’s attention. Second, it appeals to the reader on a personal and emotional level by describing in vivid detail the gravity of this tragedy. Third, it personalizes the victims and emphasizes the need to reach a just result that compensates their families for this tragedy.

Ultimately, think of writing in the same way as directing a movie. Does your narrative hook the audience and maintain its attention? Does it appeal to their emotion? Does it include vivid descriptions that place the reader in the character’s shoes as the character is experiencing noteworthy events? Does it relate to you on a personal level and leave a meaningful—and lasting—impression? Often, beginning at the end is an effective technique by which you can achieve these objectives.

2.    Tell a non-linear story.

Sometimes, you should avoid telling a story, such as in a statement of facts, chronologically. This can produce a tedious narrative that loses the reader’s attention and fails to engage the reader on any meaningful level. It is often more effective to embrace non-linear storytelling, in which you focus your narrative on the major events in the story to highlight, for example, the damage your client has suffered or the appropriateness of the relief you request.

Consider the following examples involving a defamation lawsuit, in which the plaintiff claims that the defendant’s alleged defamatory statements led to substantial reputational harm.

Example 1:

The New Jersey Bobcats drafted the plaintiff in the first round of the major league draft after the plaintiff had a batting average of over .325 during three seasons at the University of Southern California. After two seasons in the minor leagues, the plaintiff was called up to the Bobcats’ major league team, where he played in forty-seven games, batting .279 while committing no errors at shortstop. It quickly became evident, however, that the Bobcats’ manager, Mike Johnson, did not like the plaintiff, likely because the Bobcats had chosen to call up the plaintiff to the major leagues rather than the Bobcats’ other top prospect, Jason Warner, whom Johnson stated publicly was a superior player. Angered by this decision, Johnson berated the plaintiff repeatedly in front of the players and fans and benched the plaintiff for the last two games of the regular season. After the season ended, the plaintiff met with the Bobcats’ general manager and requested to be traded. Subsequent trade talks with several teams, however, proved unsuccessful because of an article published by the New Jersey Times in which Johnson stated that the plaintiff was a bad baseball player, selfish, lazy, and uninterested in the team’s success. The plaintiff also discovered that Johnson had spoken to many teams’ general managers and warned them against acquiring the plaintiff. As a result, although initially expressing interest, no teams decided to acquire the plaintiff, and he was demoted to the Bobcats’ minor league affiliate the next season and eventually released. Johnson’s statements were defamatory and entitle the plaintiff to damages.

 Example 2:

Mike Johnson, the head coach of the New Jersey Bobcats, despised the plaintiff. Indeed, Johnson stated publicly to the media and general managers throughout the major leagues that the plaintiff was a “horrible person,” “a cancer in the Bobcats locker room,” a “below average player who could never succeed in the major leagues,” “a team’s worst nightmare,” and “one of the worst hitters he has ever seen.” Additionally, in the days before he was demoted to the Bobcats’ minor league system, Johnson publicly mocked the plaintiff in the Bobcats’ locker room, calling him a “joke” and “the worst thing to happen to the Bobcats in the last twenty years." Johnson made these statements even though the plaintiff batted .279 – and committed no errors -- in forty-seven games as the Bobcats’ starting shortstop.  Due to Johnson’s abusive behavior, the plaintiff requested a trade, and despite six teams expressing initial interest in acquiring the plaintiff, every one of them declined to pursue the plaintiff after Johnson made the above statements to their general managers. These statements, which were false and defamatory, ruined the plaintiff’s reputation and made it impossible for the plaintiff to pursue the successful baseball career that he had worked so hard for and rightfully earned.

Again, the second example is not perfect but is better than the first. Instead of telling the story chronologically, the second example begins with Johnson’s statements, reflecting the extent of Johnson’s hatred of the plaintiff, and which the plaintiff’s performance on the field contradicts. As a result, the second example portrays Johnson as an unsympathetic figure and someone who intentionally disseminated false information to harm the plaintiff’s reputation. This highlights the benefit of telling a story non-chronologically where the facts warrant.

3.    Break the rules.

This point requires little explanation. In law school, you will learn about IRAC/CRAC and conventional writing techniques, which are useful in many instances. However, great writers know that sometimes you should break the rules.  For example, sometimes you should be redundant. You should use the passive voice. You should use a little hyperbole. You should tell, not show, especially if showing involves including irrelevant or unnecessary details. Knowing when to break the rules is a hallmark of great writers.

In short, the best writers know how to think, not just how to write. They think about how best to tell a story, and sometimes that involves breaking the rules to maximize the persuasiveness of an argument.

 

[1] If you doubt this, read John Roberts’ brief in Alaska v. EPA, which is among the best briefs written in a case pending before the United States Supreme Court.

The Supreme Court Counting Book

I have been an errant blogger over the past few weeks as my family explored Tetons and Yellowstone in our little RV. We had a blast. My 6-year-old liked the geysers, and my 4-year-old loved all of the buffalo.

On Monday, I plan to post about the most recent issue of the Journal of Appellate Practice and Process, which should be hitting your emails soon.  But today I wanted to share about my newest book, which might be interesting to some of you--The Supreme Court Counting Book. 

When my oldest was a newborn, I discovered that there were not a lot of children's books that explained (well) what lawyers do. I decided that I would take my experience teaching and writing about appellate advocacy and start writing a few children's books.  I originally planned to do an ABC book (and I still plan on getting that done!), but after my youngest struggled with counting, I thought that a counting book would be a great place to start.  The Supreme Court proved to be perfect subject for the book, since several numbers between 1 and 10 are important to the work it does!

I was able to team up with a great illustrator and publishing company to make the book a reality. And I learned a lot in the process, both about the Court and about publishing. I hope that you enjoy it! 

Neurodiversity and Legal Advocacy: ADD

I.     Introduction

Attention Deficit Disorder is another type of neurodivergence, or different way of thinking and processing, that impacts a large segment of the population. About 8% of the population has ADD. But according to one study, over 12% of attorneys have ADD.

For years, ADD was primarily referred to as hyperactivity. It was seen as a moral problem - a failure to focus - until recent advancement have shown that it is another heritable series of traits that leads to a different way of thinking, with manageable deficiencies and valuable strengths.

II.     Strengths

Bob Lobel is a legendary sports personality in Boston. He is known for his integrity, his ability to ad-lib, and his creativity. He attributes these strengths to his ADD.

“What makes me unique come straight from my ADD. I’m like the cut up in sixth grade. I thrive on chaos. I love to ad-lib. I think outside the box. Geez, I can’t think inside the box. I can change leads three seconds before airtime and make up the copy as we go on the air. This is just who I am. It comes naturally to me. That’s why I think of ADD as a gift, not as a liability.”

Edward M Hallowell, M.D. and John J. Ratey, M.D., Delivered from Distraction - Getting the Most out of Life with Attention Deficit Disorder 30 (2005).

Many attributes of people with ADD are gifts. Helping them see and nurture those gifts is key to helping them thrive in their practice.

    A.    Creativity
Whether because of their divergent interests, or simply because they see things differently, people with ADD are often creative in their approaches to life. As problem solvers, they tend to be holistic, and often think outside of the box. They also tend to think quickly.

    B.    Charisma
People with ADD are often described as being charismatic. They are empathetic, because they have had to deal with their own struggles, and tend to approach life with a sense of humor. When they focus on a person, that person knows they are being seen. And their energy and creative approach to life can be contagious.

    C.    Energy
Many, but not all, of those with ADD have a strong sense of energy that they have learned to harness over the years. This energy can be motivation and inspirational in a team setting, and certainly valuable in long trials and other legal efforts. In fact, many people with ADD consider themselves to do better when under pressure. They thrive on the chaos that so often arises in our legal practices.

    D.    Focus
When a person with ADD gets into a focused “flow” state, it is hard to shake it. Many successful scientists, writers, artists, and attorneys with ADD attribute their success to their ability to enter into a state of flow for hours on end. In fact, lawyers with ADD often say one of their strengths is the ability to focus on their work under extreme pressure.

    E.    Tenacity
By the time a person with ADD has their law degree, they have overcome a great deal of adversity. They have developed grit. And they are unlikely to experience serious setbacks the next time they encounter difficulty.

III.    Weaknesses

For most of history, the primary effects of ADD - distractability, impulsivity, and restlessness - were seen as moral failings. As science progressed, it was discovered that ADD was a heritable trait, with physiological differences in certain regions of the brain that caused these issues. If you have a student or coworker with ADD, just telling them to “buckle down and pay attention” probably won’t work. They physically may not be able to do so. But they can learn coping mechanisms and structure.

By the time someone with ADD reaches law school, they likely have a successful suite of coping skills. But law school poses a unique challenge. There are few places where focus and discipline are more valued, and certain addictions more fostered, than in law school and the legal academy in general. And often, students and new lawyers have been plucked from their social safety nets to be placed into that environment.

One of the primary things those students need is the structure that a mentor, or group of similarly neurodivergent peers, can bring. Structure, accountability, and encouragement are important for everyone, but particularly those with ADD. Providing that in some way is vital.

In addition to providing that social support, the following are some areas of difficulty that those with ADD have found successful ways to manage.

    A.     Distractability
“Attention Deficit Disorder” is something of a misnomer. There isn’t so much a “deficit” of attention as a surplus that is spread a bit too thin. Coping with that surplus can take many forms.

First, good health can reduce distractability. Adequate sleep, daily exercise, and a good diet have all been shown to improve focus for those with ADD. Some supplements (like Omega 3 fatty acids) have been suggested to help as well. These all require structure, planning, and likely some encouragement. But it is worth the effort.

Many people with ADD benefit from medication. However, 20-30% of those with ADD say medication does not help. And there have been recent shortages in some medications, like Adderall. As a result, when, what, and how to take medication is a highly personal choice for those with ADD.

There are practical structural steps to take as well. ADD law students on Reddit recommend maximizing your word-processing screen so you won’t be tempted by other apps, or even just taking handwritten notes to escape electronics entirely. Some even try to turn each case into a full narrative, or illustrate the margins, just to keep themselves engaged.

    B.    Impulsivity
It can be difficult for a person with ADD to resist certain impulses. This includes addictions already dangerous to our profession, like drugs and alcohol. But it can also result in risk-taking and other damaging activities as they seek to scratch an itch they can't seem to identify.

Some people with ADD may also have a condition known as Reward Deficiency Syndrome. Regular dopamine release just doesn’t quite produce the same feeling of satisfaction or pleasure for people with RDS. As a result, they are more prone to addiction and risk-taking. Diagnosis of that condition can lead to important coping skills and training, and awareness of that potential susceptibility can make it easier to confront.

    C.    Restlessness
When your mind wants to focus on everything, it can be hard to maintain focus on one thing at a time. In men more than women, this can manifest in hyperactivity. In women it can instead appear as “zoning out.”

The opposite side of this coin is hyper focus, or “flow.” There are time when a person with ADD is so engaged that everything else disappears and time seems to stand still. But of course, it doesn’t. And so the flow state can be equally problematic if not managed, leading to the neglect of other important things.

    D.     Time management
ADD makes time management difficult. This is particularly true in the law, where you need to be sure you have read through and analyzed every detail in a given case or exam question. Law students with ADD recommend seeking accommodations for extra time on exams for this reason. They must read the questions several times to catch all the details, then outline and structure the answers carefully to address them all. Then, at the end, they need time to edit out the rabbit trails.

Similarly, law students with ADD stress the need to set early deadlines. In other words, if a paper is due December 1, and that is the only deadline, there is a strong temptation to wait until November 30th to start. So setting earlier deadlines for research completion, first draft, and final edits, for instance, is key.

The same holds true in practice. Deadlines are best broken down and set at earlier increments than what is imposed by the court. And extra time and attention to reading, organizing, and editing is essential.

To help, many students and attorneys with ADD recommend apps. There are free and paid apps that help with scheduling and reminders. The “pomodoro” technique of setting timers for tasks, followed by set breaks, is often helpful, and can be managed with apps.

    E.    Organization
ADD and organization are not friends. Messy desks, disjointed writing, and scattered schedules are fairly common. So purposeful organization is important.

Many lawyers with ADD recommend apps for assistance with organization. As with time management, there are free and paid apps to assist with organization and to keep you on target.

    F.   Emotional Tolls
Being labeled an underachiever with moral failings rather than a different way of thinking takes a toll on many people with ADHD. While they have accomplished much by the time they reach law school, or get their law license, they may be saddled with a great deal of insecurity or fear of criticism.

Perhaps one of the most important things a professor, mentor, or law partner can do is encourage their student or employee with ADD. Acknowledge and see their strengths and weaknesses, help them with time management and organization and focus, and see them thrive.

Additional Reading:

Edward M Hallowell, M.D. and John J. Ratey, M.D., Delivered from Distraction - Getting the Most out of Life with Attention Deficit Disorder (2005).

AdditudeMag.com

(Photo attribute: Bill Sanderson, 1997. Credit: Wellcome Collection. CC BY 4.0)

Don’t Forget to Flush

“This stall has a manual flush toilet.  Don’t forget to flush.” 

This is a sign posted in one of the restroom stalls at my institution.  And it irks me every time I see it.  I want to bring my red pen, cross out “Don’t forget,” and replace it with “Remember.”  Why?  Because “remember” is more concise than “don’t forget,” and the cognitive effects of negation on reading comprehension make it more likely that a reader will fail to flush because of the sign.

A lot of psycholinguistic researchers have studied the cognitive effects of negation.  It is generally understood that negation slows both processing speed and accuracy: “[N]egated phrases/sentences are processed with more difficulty (slower, with more errors) than the affirmative counterparts.”[i]  And a recent study discovered that negation can also thwart purpose and intent.

“Intuitively, negated concepts (e.g., ‘not good’) entertain some relation with the affirmative concept (e.g., ‘good’) as well as their counterpart (e.g., ‘bad’).”[ii]  In other words, “negation can either eliminate the negated concept and convey the opposite meaning (‘not good’ = ‘bad’) or mitigate the meaning of its antonym along a semantic continuum (‘not good’ = ‘less good,’ ‘average,’ or ‘somehow bad’).”[iii]

The fact that negation results in multiple possible meanings is not new information; any elementary school educator could tell you that instructing students to “walk in the hallways” is far more effective at obtaining the desired end than directing students, “don’t run in the hallways.”  The former instruction limits the universe of acceptable hallway behavior, while the latter eliminates only one of many possible means of hallway activity (i.e., while not running, one could still skip, somersault, dance, or skateboard in the hallways and comply with the directive).

But researchers discovered that, between the options of elimination and mitigation of a negated concept, people were more likely to interpret negation as mitigating, rather than eliminating, the concept.[iv]  In other words, a reader faced with the sentence, “this coffee is not hot,” is more likely to understand the coffee to be something less than hot (e.g., room temperature) rather than cold.[v]

An additional issue arises with the use of negation—priming your audience for a potentially undesired outcome.  In my restroom example, the word choice in the sentence, “Don’t forget to flush,” primes the reader to forget (the undesired result), rather than remember (the desired result).  And the word choice coupled with the fact that readers tend to overlook the word “not” makes it more likely that the sign would cause someone to forget, rather than remember, to flush.

As professional wordsmiths, attorneys should use care in their choice of when and how to use negation in their writing, recognizing its potential effects on both meaning and understanding.

 

[i] Arianna Zuanazzi, Pablo Ripollés, Wy Ming Lin, Laura Gwilliams, Jean-Rémi King, David Poeppel, Negation mitigates rather than inverts the neural representations of adjectives, PLOS Biology (May 30, 2024), available at: https://journals.plos.org/plosbiology/article?id=10.1371/journal.pbio.3002622 (last accessed July 7, 2024).

[ii] Id.

[iii] Id.

[iv] Id. The researchers also noted that their findings were limited to scalar adjectives (i.e., those that occur on a continuum), rather than true dichotomies (e.g., “dead” versus “alive”).

[v] NPR, Short Wave Science (June 3, 2024), available at https://www.npr.org/transcripts/nx-s1-4978901. Another issue arises with negation—a lack of clarity with respect to which part of the sentence is affected by the negation.  In other words,

in a sentence like Rachel did not bake the bread, potential alternatives for the negation can be found along the dimension of the actor, along the dimension of activities and along the dimension of the patient, that is, Rachel could have baked something else, e.g., a cake, she could have done something else to the bread, e.g., cut it, or someone else could have baked the bread.  As the example demonstrates, alternatives are semantically related to the negated information (e.g., entity, event).

Viviana Haase, Maria Spychalska, Markus Werning, Investigating the Comprehension of Negated Sentences Employing World Knowledge: An Event-Related Potential Study, Frontiers in Psychology (Oct. 2019), available at:  https://www.ncbi.nlm.nih.gov/pmc/articles/PMC6843029/ (last accessed July 7, 2024).

Trapped Between Two Precedents

            Appeals often turn on where the line exists between broad principles and specific applications. Advocates fondly cite high-flown rhetoric about something that favors their clients and the heavy burden that must be met to overcome it. On the other hand, opponents may meet that argument with declarations about how no right is unfettered and provide examples of exceptions that align with their position.

            Take, for example, the right to engage in political discussions. A familiar description of the right holds that it represents “a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.”[1]  The decision also recognizes that “erroneous statement is inevitable in free debate, and that it must be protected if the freedoms of expression are to have the ‘breathing space’ that they ‘need . . . to survive.’”[2] In fact, the New York Times Court laid down the gauntlet by declaring that the First Amendment “was fashioned to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people.”[3]

The clarion call for broad constitutional tolerance of political speech that the opinion represents provides welcome fodder for an advocate seeking to ride a free-speech wave. Yet, just a year later, the Supreme Court retreated a bit from that description of the scope of political speech. Rather than treat the right as completely unfettered, the Court acknowledged that freedom “implies the existence of an organized society maintaining the public order, without which liberty itself would be lost in the excesses of anarchy.”[4]

The two decisions set up a traditional appellate issue that can occur in any area of law: where is the cutoff between the promise and the limitation at issue in a case. Certainly, that conflict cannot be resolved in the abstract. It requires the factual context to determine which approach should prevail in a particular scenario.

            What is important, though, is that an advocate acknowledge the balancing that must take place. Unlike some negotiations, appellate advocacy is not about staking out an extreme position and hoping that a compromise gives you most of what you really want. Instead, it is about convincing your panel that you have adopted a workable and reasonable approach that it should endorse. That is why it is important to recognize the limits of your position, anticipating the pushback and responding to why it still works in your favor.

            At the same time, your position may require new exceptions or a wholesale rethinking of existing precedent. The Supreme Court has developed a reputation for not taking stare decisis as seriously as its predecessors. It has shown a willingness to reconsider precedent and abandon it because it believes the holding was wrong.

            In fact, two justices have called for New York Times, the case I quoted at the top of this post, to be reconsidered, although not as a result of any hostility to free speech per se. Justice Thomas, for example, advocates for reconsideration of the actual-malice standard that New York Times articulated to protect citizens from being sued by public officials over criticism. He has written that the case and decisions extending it “were policy-driven decisions masquerading as constitutional law” without a basis in text, history, or constitutional structure.[5] He has also expressed concern about the “proliferation of falsehoods” as a “serious matter” that might be remedied by “traditional remedies like libel suits.”[6]

            Justice Gorsuch has expressed a similar view, suggesting that the changes in “our Nation’s media landscape . . . in ways few could have foreseen” allows “virtually anyone in this country can publish virtually anything for immediate consumption virtually anywhere in the world” and should permit some type of corrective mechanism like libel to work as it once did.”[7]

            I mention the possibility of an overruling of precedent, not because I believe it warranted in the case of New York Times, but because a request to reconsider precedent at the proper level of court can provide another tool for an advocate boxed in by precedent, particularly when there are ready advocates for that position on the court.

 

[1] New York Times Co. v. Sullivan, 376 U.S. 254, 270 (1964).

[2] Id. at 271-72 (citation omitted; ellipses in orig.).

[3] Id. at 269.

[4] Cox v. Louisiana, 379 U.S. 536, 554 (1965):

[5] Blankenship v. NBCUniversal, LLC, 144 S. Ct. 5 (2023) (Mem.) (citations omitted) (Thomas, J., concurring in the denial of cert.). Blankenship is only the latest of opinions written by the justice expressing this view.

[6] Berisha v. Lawson, 141 S. Ct. 2424, 2425 (2021) (Thomas, J., dissenting from the denial of cert.).

[7] Id. at 2427 (Gorsuch, J., dissenting from the denial of cert.).

Should We Still Avoid Contractions in Formal Legal Writing?

As summer begins in full, I have been reflecting on . . . grading 1L appellate briefs.  I know, this is a sickness.  However, this spring, I marked more papers with incredibly odd contraction use than in past years, so I am pondering “didn’t,” wasn’t,” and more as I spend the summer working on my teaching materials for fall.

Like many, I teach new law students to move past any text-style informal writing with emojis, missing capitalization, and the like.  I assign reading on apostrophes and Oxford commas, and we even work on punctuation in class.  By spring, most of my students are much more precise and careful in their writing, with one large exception:  contractions. 

Given the increase in contraction use by some commentators, like Bryan Garner, and courts too, I expect to see occasional contraction use by my students.  See generally Bryan Garner, The Elements of Legal Style 81-82 (Oxford Press 2001); https://www.plainlanguage.gov/guidelines/conversational/use-contractions/ (explaining why Garner and some others believe contractions can make writing more accessible and understandable).  Many authorities advocating for the use of contractions also advise caution, however.  As one commentator explained:  “To use an example from MLA, if you’re writing to a judge requesting leniency in sentencing, use of contractions could seem dismissive. Like everything in writing, audience and context are key.”  Chris R., When Are Contractions Too Informal?,

https://proofreadingpal.com/proofreading-pulse/writing-guides/when-should-i-use-contractions/(Sept. 1, 2017).

Following this context approach, I suggest my students be direct and clear, but respectful, in their formal writing and avoid contractions in court filings.  Then, we discuss using the “house style” of their future firms, offices, or supervisors for guidance on contractions in their inter-office writing.  I quote Chelsea Lee, who noted:  “Asking whether you should use contractions in formal academic writing is sort of like asking whether you should wear a bathing suit to a party—it depends on the type of party. Is it a pool party or a fancy dinner?”  Chelsea Lee, Contractions in Formal Writing: What's Allowed, What's Not, https://blog.apastyle.org/apastyle/2015/12/contractions-in-formal-writing-whats-allowed-whats-not.html (Dec. 10, 2015). 

This year, however, some of my students included so many contractions in their briefs, despite my PowerPoint slides and rubric expressly banning contractions in briefs, that the contractions interfered with readability.  These students also wrote briefs right at the word limit, and the briefs often read as if the writers made seemingly last-minute decisions to save words by inserting contractions.  

Of course, I deducted writing style credit from these briefs based on the lack of readability caused by using so many contractions.  Nonetheless, I would like to give a greater incentive to follow my contraction suggestions more closely next year.  I want to convince students that there is no advantage to using many contractions instead of carefully editing.  Accordingly, for students’ formal appellate brief assignment, I might count most contractions as two words for word limit purposes.

On the other hand, as more judges use contractions in their published opinions, perhaps it is (dare I say, it’s?) time for me to embrace contractions in briefs too.  In a quick Westlaw search, I found cases on many interesting ways attorneys have tried to circumvent word limits in briefs, but no published cases complaining only about contraction use.   

As you draft your next briefs and motions, I urge you to think about your contractions.  And if you are also spending a possibly-unhealthy amount of time this summer on contractions, please feel free to let me know.

Questions to Consider When Preparing for Oral Argument

Most attorneys understand that you must know the record and the law when preparing for an oral argument before an appellate court.  You must craft a concise, organized, and compelling argument and be able to distinguish unfavorable law and reconcile unfavorable facts.

However, this is often easier said than done. Below are some questions that may help you prepare for oral argument.

    1.    How would you write the opinion?

If an appellate court asked you this question, what would you say?

You must be prepared to explain the reasoning underlying your position. For example, why is your position more consistent with the text of a constitution or statute? Why is your argument consistent with the court’s precedent? Have you considered unfavorable facts and law, and can explain why they do not affect the outcome you seek? How do you address counterarguments and why do those arguments lack merit?

Considering how you would write the opinion in your favor will help to organize your argument, explain your reasoning, and address weaknesses in your position.

    2.    How would you finish this sentence?

You should be able to state in one sentence why you should win your case.

For example, if you argue that imposing a sentence of life imprisonment without parole on a juvenile violates the Eighth Amendment. Imagine if an appellate court asked you to complete this sentence: “Imposing a sentence of life imprisonment without parole on a juvenile convicted of first-degree murder violates the Eighth Amendment because                                     .”

What would you say?

If you cannot state why you should win in one sentence, you will lack the clarity and conviction that excellent appellate advocates present in their arguments.  Consider the following responses to the question above:

Advocate: The Eighth Amendment, as this court is aware, protects against cruel and unusual punishment, and that determination depends on whether a punishment is consistent with evolving standards of decency that mark the progress of a maturing society. When applying this standard, this court should be mindful that circumstances today are far different from those that existed when the Eighth Amendment was adopted. When you consider how standards have changed, it is evident that executing juveniles, who cannot reason like adults, is cruel and unusual because it imposes on them a penalty that can only be justified for adults. The Eighth Amendment should not be interpreted to support unreasonable punishments and contemporary standards of decency counsel against such a draconian remedy.

This response is utter nonsense. It says nothing substantive whatsoever and shows that the advocate cannot concisely articulate why imposing a sentence of life imprisonment without parole would violate the Eighth Amendment.

Advocate: Imposing a sentence of life imprisonment without parole on juveniles convicted of first-degree murder violates the Eighth Amendment because such a sentence fails to consider that juveniles’ brains are not fully developed, disregards the principle that such sentences should only be imposed on the most culpable offenders, and ignores the well-settled rule that sentences must be proportionate to the severity of the offense.

 This response is not perfect, but it clarifies your argument and provides the court with three concise and concrete reasons that explain why imposing a sentence of life without parole on a juvenile violates the Eighth Amendment. That is far more persuasive and likely to garner support from the court.

    3.    Why shouldn’t the Court decide the case on grounds other than the ones you support?

Be sure to anticipate the alternative grounds upon which an appellate court might rule in your favor and be prepared to address them in depth. In so doing, do not argue that those grounds are insufficient, or that your position is superior. Rather, explain why the court’s reasoning is an equally justifiable way to support your position. Consider the following examples:

Court: Counselor, you argue that laws prohibiting abortion violate the right to privacy that is encompassed within the liberty protected by the Fourteenth Amendment’s Due Process Clause. But can’t you argue that such prohibitions violate the Equal Protection Clause because they place a unique and disparate burden on women that prohibits them from participating equally in society?

Advocate: That may be true, but our position, which is consistent with the Court’s precedent, is that prohibitions on abortion violate the right to privacy encompassed within the liberty guaranteed under the Fourth Amendment and that the court should rule on this basis.

   This response is terrible. That response tells the court that you reject the alternative reasoning that it may use to rule in your favor, and only want the court to rule based on the argument you presented. Instead of expanding the grounds on which the court could rule in your favor, this attorney just narrowed them and based his argument on a ground that the court did not even mention.

Consider this response:

Advocate: Certainly, the equal protection clause supports invalidating laws prohibiting abortion. As this court has recognized, such laws impose an undue and disparate burden on women and prohibit women from participating equally in the social and economic life of our society. Indeed, abortion prohibitions enshrine into law the very inequality and disparate impact that the equal protection clause prohibits. As such, these prohibitions violate the equal protection clause and, as we have argued, the liberty interest protected by the Fourteenth Amendment and this court’s jurisprudence.

This response is more effective. It acknowledges the court’s view that laws prohibiting abortion violate the equal protection clause, and it affirms that the equal protection clause could be a basis upon which to invalidate such bans while reinforcing the advocate’s original position that these bans violate the liberty interest protected under the Fourteenth Amendment’s Due Process Clause.

    4.    Why can’t the court rule on a narrower ground?

An appellate court may suggest narrower grounds to support a ruling in your favor. If it does, you should be prepared to support and justify those grounds and thus expand the bases upon which the court can rule in your favor. Consider the following example of a lawyer who is advocating that assisted suicide is a right protected under the Fourteenth Amendment’s Due Process Clause.

Court: Counselor, you acknowledge that your client is terminally ill, having suffered from Stage Four glioblastoma for approximately one year. Doesn’t your argument support a ruling that the right to assisted suicide only exists where individuals seeking to end their lives have terminal illnesses, and thus is not a license for anyone to end their lives simply because they wish to do so.

Attorney: Well, we argue that the right to assisted suicide should not be limited to a specific class of persons. Instead, this is a right that the liberty interests under the Fourteenth Amendment, and this Court’s jurisprudence, protect with qualification.

     This response is awful. The court is telling the lawyer that it wants to rule in his or her favor, but not on grounds as broad as the lawyer is advocating. The lawyer should take the hint and acknowledge that ruling on narrower grounds is justified because it supports a ruling in favor of the lawyer’s client and is a step toward recognizing a right to assisted suicide for all citizens in the future.

Consider this response:

Advocate: The liberty interest protected by the Fourteenth Amendment undoubtedly protects the right to assisted suicide for terminally ill individuals.  This right is based on the fundamental right to privacy and liberty recognized by this court and reflects the principle that if liberty means anything, it means giving terminally ill individuals the right to determine when to choose that they no longer wish to suffer.

   This response is more effective because the attorney pivoted from an absolutist position regarding the right to assisted suicide to a position that is more palatable to the court.  In so doing, the attorney enhanced his likelihood of succeeding and achieving a favorable result for the attorney’s client.

    5.    Will your position lead to unjust outcomes in future cases?

Good appellate advocates recognize that an appellate court does not care primarily about their client or the outcome of the case. Rather, the court cares about how its ruling will affect future cases, and whether such a ruling will lead to unjust outcomes in future cases. Accordingly, attorneys should advocate for a ruling in their favor on the narrowest grounds possible; doing so will make it less likely that such a ruling will lead to concerns about unjust outcomes in future cases.

Consider the following example, which involves a case where an attorney argues that life imprisonment without parole can be imposed on juveniles who commit first-degree murder.

Court: Counselor, if we adopt your rule, a ten or eleven-year-old child could receive a sentence of life imprisonment without the possibility of parole. Does that seem like a just result?

Attorney: Ten and eleven-year-old children are minors and, if they commit the heinous act of first-degree murder, nothing in the Constitution prohibits a sentence of imprisonment of life without parole. Indeed, such a sentence may be necessary to protect society and ensure public safety.

      This response is about as bad as it gets. The court is telling the advocate that it is not comfortable with adopting a categorical rule that all minors can be sentenced to life imprisonment without the possibility of parole. Knowing this, the attorney should immediately adjust his or her position and, to accommodate this concern, narrow the grounds upon which the attorney can achieve a favorable ruling. This attorney failed to do that.

Consider this response:

Advocate: Our position is not that any minor, regardless of age or circumstance, can be subject to a sentence of life imprisonment without parole. Rather, we argue that a categorical rule prohibiting the imposition of life imprisonment without parole of any minor, regardless of the severity of the crime, would allow some minors who engage in heinous acts of violence to escape responsibility for these acts. Of course, the court could rule in a future case that sentencing a ten or eleven-year-old minor to life imprisonment without parole violates the Constitution. Thus, a ruling in our favor does not prevent this court from addressing those concerns.

    This response is better. The attorney effectively addressed the court’s concern and explained that a ruling in the attorney’s favor would not prevent it from ruling that sentences of life imprisonment without parole for ten and eleven-year-old offenders violated the Constitution.

    6.    How does your argument impact the Court’s precedent?

In most instances, arguments that require a significant departure from a court’s precedent are less likely to succeed. Courts and litigants understandably value predictability and stability in the law, and arguments that would require a major departure from, or overruling of, precedent will be met with skepticism, particularly given the doctrine of stare decisis. Although there are exceptions, the best approach is to persuade the court that your argument (and the remedy you seek) is consistent with the court’s precedent or, at the very least, represents a logical expansion of, or imposes proper limits upon, such precedent.

***

When preparing for an oral argument, put yourself in the shoes of the appellate court judges. They want to reach a fair outcome that the facts and law support. If you can see your case from their perspective, and answer effectively the questions raised above, you will maximize your chances for success.