Appellate Advocacy Blog

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

Sunday, May 19, 2024

A Font by Any Other Name Does Not Read the Same

Last week, I argued a case in the Tenth Circuit, my first time in that court. Upon arrival in the courtroom, but before that day’s arguments began, the bailiff provided a quick tutorial about how the 15 minutes of oral argument works. A computer display screen to the left of the podium counted down time from 15:00 against a green background at the beginning of each argument. At three minutes remaining, the background screen would become yellow, alerting counsel to the opportunity to reserve some of the remaining time for rebuttal. The bailiff warned that the court likely would continue asking questions even after the request for rebuttal time. In one of the cases before mine, the questions continued one minute past the 15 minutes, but the court afforded the advocate an extra minute for rebuttal.

In every circuit I have appeared other than the Tenth, and I have argued cases in seven other circuits, an advocate asks for a certain amount of time for rebuttal in advance of the argument, either from an inquiry from the clerk’s office well in advance of the argument, or upon checking in that morning. The most frequent amount of time requested in a 15-minute argument is five minutes.

The differences between circuits on that question and others seem odd and haphazard. I was reminded of those differences when I came across a post that laid out different fonts used by different courts in their opinions. The First and Fourth Circuits issue opinions in Courier. The Second and Seventh Circuits utilize Palatino. The Fifth Circuit favors Century Schoolbook, as does the Supreme Court (although its orders are rendered in the very odd Lucida Sans Typewriter) and the Federal Circuit. The rest, the Third, Sixth, Eighth, Ninth, Tenth, and Eleventh rely on Times New Roman.

The circuits do not necessarily require counsel to follow suit in their briefs. Federal Rule of Appellate Procedure 32(a)(5) requires courts of appeal to accept briefs in any proportional typeface so long as the text’s typeface has serifs and is at least 14-point in size, but sans-serif type may be used in headings and captions. If a monospaced face is used, it may not contain more than 10 1/2 characters per inch.

Even so, the D.C. Circuit issued a notice in 2021 that encourages the use of typefaces that are easier to read, such as Century or Times New Roman, while discouraging the use of Garamond, which the court deemed less legible because it is smaller. The preference exists in the practice handbook, but not in the local rules, strongly suggesting that it is always a good idea to check those official handbooks as well as the court’s own rules, even though the court will still accept other typefaces.

The Seventh Circuit’s practitioner handbook discusses the readability of serif-type fonts and appears to suggest that Century Schoolbook, Baskerville, Bookman, Caslon, Garamond, Georgia, and Times, as well as variations on those names, are preferred serif-type fonts. The Eighth Circuit, under a tab entitled “Rules and Procedures,” has a section called “Research Aids” that links to the Seventh Circuit’s handbook, so it apparently endorses its sister circuit’s discussion.

And don’t get me started on the requirements for cover pages, where the Second Circuit is a major outlier.

The bottom line is that every circuit has its quirks that a practitioner appearing in them needs to understand. These circuit conflicts will not likely arrive at the Supreme Court to resolve.

May 19, 2024 in Appellate Advocacy, Federal Appeals Courts, Legal Writing, Oral Argument, United States Supreme Court | Permalink | Comments (0)

Tuesday, May 14, 2024

Priming for Persuasion

One of the most powerful tools in an advocate’s toolbox is the psychological concept of priming.  Priming “occurs when an individual’s exposure to a certain stimulus influences their response to a subsequent prompt, without any awareness of the connection.”[i]  In other words, “[p]riming plants a seed in the brain [that] . . . causes us to form an impression that we then use to interpret new information.”[ii]

For example, in one famous research study, participants were exposed to a list of words associated with either adventurousness or recklessness.[iii]  The participants were then provided with a story involving a protagonist whose behavior was ambiguous with respect to those traits.[iv]  When later asked to characterize the protagonist’s behavior, participants were more likely to characterize the behavior consistent with the traits reflected in the words they were exposed to before reading the story.[v]

The concept of priming involves the inner workings of long-term memory.[vi]  Our long-term memory creates units known as “schemas,” which allow us more efficient access to memories by activating them through associated sights, smells, and sounds.[vii] “Priming suggests that certain schemas are activated in unison, which leads to related or connected units of information being activated at the same time.”[viii]

There are many kinds of priming[ix] that are relevant in legal writing, and among them are the following:

  • Semantic priming—the association of words in a logical or linguistic way[x]
  • Repetition priming—the repeated pairing of stimulus and response[xi]
  • Perceptual priming—the perception of similarity between two things that may not, in fact, be similar[xii]

For semantic priming, think about rhetorical devices, such as parallelism, alliteration, anaphora, epistrophe, or metaphor to name a few.[xiii]  A famous example is Martin Luther King Jr.’s statement, “Injustice anywhere is a threat to justice everywhere.”

For repetition priming, there’s no better public example than Donald Trump’s approach to Robert Mueller’s investigation into potential ties between Trump’s 2016 campaign and Russia.  Over the course of more than two years, when tweeting about the investigation, Trump used the phrase “witch hunt” more than 160 times.[xiv]  A survey conducted around the same time revealed that, while roughly 60% of adults wanted the investigation, half had “‘just some’ or no confidence that a final report . . . would be ‘fair and even-handed.’”[xv]  Additionally, despite the majority support for investigation, 46% of respondents nevertheless believed it would go “too far,” and support for impeachment fell throughout the same time period.[xvi]

For perceptual priming, consider the recent cases of NetChoice v. Paxton and Moody v. NetChoice, wherein the Supreme Court considered the constitutionality of laws in both Texas and Florida designed to regulate how social media companies control content posted on their sites.[xvii]  The states argued that social media platforms are common carriers who may not arbitrarily discriminate against users’ speech,[xviii] while the social media companies argued that social media platforms are “traditional media” requiring “editorial discretion over the expression they disseminate.”[xix]  Though social media is truly neither of those things, the parties sought to have the Court perceive social media to be like the one more favorable to their respective positions.[xx]

Priming is persuasive because the connection is made subconsciously by the reader, and readers tend to trust their own conclusions above others.[xxi]  This is sometimes referred to as “‘the ownness bias’ or the tendency of ‘audience members to consider their own thoughts to be stronger than message arguments.’”[xxii]

Here’s where you can use it in your writing:

  • Issue framing. Consider the abortion context; the issue could be framed as either protecting individual reproductive autonomy or protecting the rights of unborn persons.  By framing the issue favorably to your position at the outset, you are priming your audience to view the case through your chosen lens.
  • Factual opening. Imagine a case involving student speech that led to some kind of disruption at school.  The competing values are a student’s First Amendment right to free speech and the school’s compelling interest in a safe and orderly learning environment.  If you represent the student, you want to open your facts section with a focus on the student and value of the speech the student made, thereby priming your audience to also value both the individual and the speech.  On the other hand, if you represent the school, you want to open with the facts underlying the disruption, priming your reader to see chaos and a justifiable need for school intervention.
  • Argument headings. State your argument headings assertively as the conclusions you want your audience to draw. For example, “Trial counsel’s decision to reject the alibi defense was a matter of reasonable trial strategy”; or “The state presented sufficient evidence of the defendant’s deliberation.” The headings prime your reader to view the analysis and legal authority as consistent with those conclusions.
  • Rule statements. When stating the applicable rules, begin with your position as the default outcome.  For example, when advocating in favor of summary judgment, establish granting the motion as the default position: “Summary judgment shall be granted when there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law.”  Or, when advocating against the entry of summary judgment, establish denial as the default position:  “Summary judgment should be denied unless the moving party establishes that there are no genuine issues of material fact and that the moving party is entitled to judgment as a matter of law.”  Stating the rule with your preferred outcome as the default primes your audience to see your opponent’s position as the exception and yours as the rule.
  • Quotation introductions. Before offering the reader quoted language from either a legal authority, a written document, or witness testimony, prime the reader by summarizing what you want them to understand from the language.  For example,

At the evidentiary hearing, trial counsel testified that she strategically chose not to call the alibi witness because his testimony was inconsistent with the chosen justification defense:  “From the beginning, [the defendant] told me he acted in self-defense, and I think the jury would have been confused if we put his brother on the stand to say he was at a party across town the whole time.”

This kind of priming helps focus the reader’s understanding of potentially ambiguous quoted language favorably to your position and align it with your legal authority.

This list is by no means exhaustive, and priming can be used in each of these areas on both large and small structural scales, from general organization down to sentence structure and word choice.  Priming is an exceptionally powerful persuasive tool.  Both using it and recognizing it can make you a more effective advocate.

 

[i] The Decision Lab, Why do some ideas prompt other ideas later on without our conscious awareness?, available at: https://thedecisionlab.com/biases/priming (last visited May 13, 2024).

[ii] Kathryn M. Stanchi, The Power of Priming in Legal Advocacy: Using the Science of First Impressions to Persuade the Reader, 89 Or. L. Rev. 305, 307 (2010).

[iii] Barbara O'Brien & Daphna Oyserman, It's Not Just What You Think, but Also How You Think About It: The Effect of Situationally Primed Mindsets on Legal Judgments and Decision Making, 92 Marq. L. Rev. 149, 152 (2008).

[iv] Id.

[v] Id.

[vi] The Decision Lab, supra, note i.

[vii] Id.

[viii] Id.

[ix] Id.

[x] Id.

[xi] Id.

[xii] Dave Cornell, 15 Priming Examples (in Psychology) (Jan. 3, 2024), available at: https://helpfulprofessor.com/priming-examples-psychology/ (last visited May 13, 2024).  This site also contains information about additional forms of priming, such as associative priming, cultural priming, affective priming, and more.

[xiii] For definitions of these terms and other common rhetorical devices, see https://www.merriam-webster.com/grammar/rhetorical-devices-list-examples (last visited May 13, 2024).

[xiv] Madison Pauly, Are Trump’s Attacks on Mueller Working? (Jan. 27, 2019), available at https://www.motherjones.com/politics/2019/01/are-trumps-attacks-on-mueller-working/ (last visited on May 13, 2024).

[xv] Id.

[xvi] Id.

[xvii] Amy Howe, Social Media Content Moderation Laws Come Before the Supreme Court (Feb. 23, 2024), available at:  https://www.scotusblog.com/2024/02/social-media-content-moderation-laws-come-before-supreme-court/ (last visited May 13, 2024).

[xviii] Brief of Petitioners, Moody v. NetChoice, available at: https://www.supremecourt.gov/DocketPDF/22/22-277/291860/20231130111448519_2023-11-30%20Final%20NetChoice%20merits%20brief.pdf (last visited May 13, 2024).

[xix] Brief of Respondents, Moody v. NetChoice, available at: https://www.supremecourt.gov/DocketPDF/22/22-277/291860/20231130111448519_2023-11-30%20Final%20NetChoice%20merits%20brief.pdf (last visited May 13, 2024).

[xx] Howe, supra, note xvii.

[xxi] See Michael J. Higdon, Something Judicious This Way Comes . . . the Use of Foreshadowing As A Persuasive Device in Judicial Narrative, 44 U. Rich. L. Rev. 1213, 1225 (2010) (“studies show that when processing messages readers are more persuaded by conclusions that are implicit rather than explicit, especially when the reader is more involved in the communication”).

[xxii] Id.

May 14, 2024 in Appellate Advocacy, Appellate Practice, Legal Writing, Rhetoric | Permalink | Comments (0)

Saturday, May 11, 2024

How To Change Someone's Mind

It is not easy to convince a judge (or any audience) to adopt your point of view, especially when the audience has a firmly entrenched and opposing opinion. Below are a few tips that can maximize the persuasive value of your arguments and enhance your likelihood of success.

1.    Craft a powerful story by showing, not telling.

People are captivated by powerful narratives.

When making an argument, focus on the facts of your case and tell a compelling – and concise – story in which you demonstrate that a result in your favor would be the most fair, just, and equitable outcome. Think of your argument like a fiction book or a movie, in which you do the following:

  • Begin with a powerful opening theme that hooks the audience.
  • Provide the audience with the necessary background facts while omitting irrelevant or extraneous facts.
  • Use the Rule of Three to structure your argument by providing the audience with three reasons justifying your position.
  • Emphasize the most favorable facts that support your argument.
  • Never ignore unfavorable facts; instead, explain why they do not affect the outcome you seek.
  • Use active verbs and vivid descriptions to enable the jury to visualize the story in their minds.
  • Whether in writing or during an oral argument, adopt a composed, mature, and confident demeanor and avoid unnecessary emotion, drama, or over-the-top language.
  • Put yourself in the shoes of your audience and craft your story based on, among other things, the questions and concerns that you expect will arise.

Consider the following examples involving a defamation claim.

Example 1: “In this case, the defendant made defamatory statements about the plaintiff and those statements caused the plaintiff to suffer damages. As we will show, the statements meet the definition of defamation under the relevant legal standards, and no defenses are available that can excuse or otherwise justify the defendant’s statements. We will demonstrate by a preponderance of the evidence that the statements were defamatory and that the plaintiff is entitled to recover damages.”

This statement is about as bland as it gets. Furthermore, it does not show the court anything. For example, it does not identify the precise statements that were defamatory, detail to specific reputational harm suffered, or explain why any potential defenses lack merit. It merely tells the court what happened and tells the court what to do. That is not persuasive at all.

Example 2: “The First Amendment is not a license to destroy a person’s reputation. On January 21, 2024, the plaintiff, Sharon Connor, who is the owner of Health Foods Market in the small town of Seashore, New Jersey, awoke at 6:30 a.m. and turned on her computer to respond to emails from several of her employees. One of those emails informed Sharon that, on the website, www.trashmyemployer.com, an employee whom Sharon recently terminated after three consecutive negative performance reviews had posted degrading and demeaning comments about Sharon. They included the following: “Sharon is a Nazi sympathizer;” “Sharon discriminates in the hiring process based on a person’s ethnicity and religious beliefs;” “Sharon artificially inflates prices and mocks the customers for being too stupid to notice;” and “Sharon treats her employees so badly that they are routinely traumatized after leaving work.” In Seashore, New Jersey, a small town where ‘everybody knows your name,’ Sharon was ridiculed, insulted, and ostracized from the community that she had called home for thirty years. She lost friends. Her business has suffered a thirty-five percent decline in profit. And twenty-five percent of her employees have quit. In short, this case implicates precisely what defamation law is designed to protect: a person’s reputation.”

This example is certainly not perfect, but you get the point. It begins with a theme. It tells a story by offering specific and vivid details. Additionally, it shows (not tells) the court why it should rule in the plaintiff’s favor. As such, it is far more persuasive than the first example.

Judges (and most people) do not like to be told what to do or how to think. Rather, they want you to give them the facts in a way that enables them to reach the most fair and just outcome.

2.    Obtain agreement over common values.

When addressing an audience, you are more likely to persuade the audience to rule in your favor if the audience agrees with the common values that undergird your argument. Indeed, when you and your audience, such as a judge or jury, begin a discussion from a point of agreement rather than contention, your likelihood of reaching a positive outcome or, at the very least, a reasonable compromise, increases.

Consider the following hypothetical example of an advocate trying to convince a hostile judge to adopt his or her position that the Constitution does not protect a right to abortion:

Example 1: “Your Honor, the Constitution says absolutely nothing about abortion, and the Supreme Court’s jurisprudence establishing a right to abortion is deeply flawed. The fact is that abortion involves the killing of human life, and it has nothing to do with a woman’s bodily autonomy. Sanctioning the murder of human life is antithetical to every value upon which this country is founded, and women should know that when they get pregnant, they are responsible for a life other than their own.”

This argument is so awful that it will alienate the judge and ensure that you lose. No one likes to be talked down to in such a condescending manner and told that they are wrong. Advocates who adopt such categorical positions are likely to be viewed as ignorant of the complexities that legal issues invariably present. Moreover, the argument is so politically charged that even the advocate’s most ardent supporters might question the advocate’s competency.

Example 2: “Your Honor, the decision whether to have an abortion is deeply personal and private. And we certainly respect a woman’s right to make that difficult decision in consultation with a woman’s health care provider. Our argument is not about the morality of having an abortion. Rather, it is simply about giving the people of each state the authority to decide whether abortion should be legal in their state. Some states may allow it; some may not. But at the end of the day, this is a decision to be made by the people of each state, not nine unelected judges.”

In this example, which is again not perfect, the advocate recognizes that abortion is a complex issue that is deeply personal and private to the individual. Also, the advocate is not denying the fundamental proposition that a woman should have the right to make this decision. Instead, the advocate is arguing that citizens, not the Court, should have the authority to determine the legality of abortion, which will almost certainly guarantee that abortion will be legal in many, if not most, of the states. Of course, this will still upset many abortion supporters, but at the very least it will demonstrate that you are not fundamentally opposed to abortion itself.

This is not to say, of course, that you will win by taking the latter approach. But you will have a more persuasive impact, maintain your credibility, and possibly get the swing justice(s) to rule in your favor or agree to a compromise.

3.    Show that you have empathy and maturity.

Excellent advocates show empathy for an opposing view, recognize the reasonableness of the opponent’s position, and acknowledge the nuances that most legal issues present. Indeed, people have different views based on their experiences and backgrounds. Displaying empathy for opposing views enhances your credibility, makes you likable, and shows that you possess humility and maturity.

Consider the following examples regarding an argument over whether the death penalty should be authorized for the rape of a child.

Example 1: “Your Honor, killing a defendant for the crime of child rape makes no sense whatsoever. The victim in this case is not dead. The victim will fully recover, and because the victim is only ten, will go on to lead a long and productive life. For these reasons, imposing the death penalty on the defendant, who has never killed anyone, is grossly disproportionate to the crime, and permitting the state to murder a child rapist is worse than the act of child rape itself. Anyone who advocates otherwise shows little regard for the sanctity of human life.”

That argument is so bad that even those who may agree with your position may be turned off by the sheer lack of empathy and insensitivity to the gravity of such a horrific crime. It will also likely offend anyone who supports the argument that you just attacked, particularly the victim’s family. And if you make this argument to a jury, you will alienate the jury and come off as an insensitive jerk.

Example 2: “Your Honor, raping a child is a horrific crime. Few words could capture the trauma and devastation that such a heinous act causes and anyone who commits such a crime should be subject to severe punishment. Our position is not that the defendant should not be punished, but rather that the death penalty, given the Court’s jurisprudence, is not the appropriate punishment. Instead, we respectfully submit that sentencing the defendant to life imprisonment without parole will reflect both the proportionality of the offense committed and impose the punishment deserved.”

This argument is better because it empathizes with the victim, acknowledges the irreparable harm caused, and recognizes that severe punishment is warranted. Furthermore, the alternative punishment proposed is reasonable given the gravity of the offense. Ultimately, having empathy shows that you have maturity, compassion, and humility. So make sure that you are respectful and measured and that you never demean an adversary, the court, or the victim of a crime. Instead, conduct yourself with class, dignity, and civility, and realize that most rational people despise jerks. No one likes narcissists. No one likes people who are condescending or insufferable loudmouths.

4.    Focus on the consequences of adopting a particular position.

Judges and juries are human beings. They are not robots. They want to reach outcomes that they believe are just and fair.

As such, they do not mindlessly apply the law without any regard for the present and future consequences that will result from a decision or a verdict. This is especially true given that, in most cases, precedent does not provide a clear answer to a current legal question, and considering that, in many instances, a law or constitutional provision is ambiguous and capable of different interpretations.  Thus, when trying to persuade a court, do not simply engage in a hyper-technical legal analysis that shows no appreciation for the real-world consequences of a ruling in your favor.

Consider the following examples concerning two advocates who are arguing that law enforcement officers should not, under the Fourth Amendment, be allowed to search a suspect’s cell phone incident to arrest.

Example 1: “Mr. Chief Justice, and Members of the Court, the Court’s search incident to arrest jurisprudence makes clear that the primary purpose of warrantless searches incident to arrest is to preserve evidence and protect officer safety. Although the Court has expanded the search incident to arrest doctrine to include searches of closed containers and passenger compartments, it has never applied the doctrine to cellular telephones. And for good reason. Warrantless searches of cell phones do not implicate evidence preservation or officer safety. Thus, expanding the doctrine to include cell phones would completely unmoor the search incident to arrest doctrine from its original purposes and finds no support in the Court’s precedent.”

This argument is not terrible, but it misses the point. The Supreme Court has the authority to limit or expand precedent whenever a majority votes to do so. The Court also has the authority to overrule, disregard, or distinguish its precedent. Thus, the Court will be less concerned with strictly adhering to its precedent and more with the real-world consequences of its decision on future cases involving warrantless searches incident to arrest.

Example 2: “Mr. Chief Justice, and Members of the Court, the original purpose of the Fourth Amendment was to protect citizens’ private papers and effects, which at that time were stored in the home, from unreasonable and warrantless searches. Indeed, the privacy protections that lie at the heart of the Fourth Amendment – and this Court’s jurisprudence – are sacrosanct, and this Court has exercised circumspection when permitting warrantless searches into citizens’ private space. That principle is at issue – and under attack – today because, in the Twentieth Century, cell phones house the private papers and effects that, at the time of the Fourth Amendment’s adoption, were traditionally stored in the home. Cell phones store, among other things, personally identifying information, private photographs, financial information, email and text messages, internet browsing and purchasing history, and personal contacts and telephone numbers. To permit law enforcement to search a cell phone without a warrant in the Twentieth Century is equivalent to permitting law enforcement to search homes without a warrant in the Eighteenth Century. It would permit vast and suspicionless intrusions into private spaces and property and allow the types of warrantless fishing expeditions that the Fourth Amendment and this Court’s jurisprudence prohibit. In essence, privacy rights would become a thing of the past, and warrantless searches into the most private aspects of a citizen’s life would be a thing of the future. It would, simply stated, render the Fourth Amendment meaningless.”

This argument, while again not perfect, is more effective because it brings to the Court’s attention the real-world consequences of a decision allowing warrantless searches of cell phones incident to arrest. And those consequences would be substantial. Privacy rights would be significantly weakened, and law enforcement would be permitted to do exactly what the Fourth Amendment prohibits: warrantless and suspicionless searches of a citizen’s most private information. Faced with such consequences, it should come as no surprise that in Riley v. California, the Court held unanimously that warrantless searches of cell phones incident to arrest violated the Fourth Amendment.

5.    Listen and do not interrupt.

This requires little explanation.

They often say that those who get their way are the ones who talk the loudest. In other words, intolerable jerks usually get what they want because people will do anything to shut them up. This approach may work in a faculty meeting, but it will not work in a courtroom.

Good advocates know how to talk less and listen more. Being a good listener shows that you have humility. It also enables you to identify the specific concerns that judges have when evaluating the merits of your case and to adjust your argument accordingly. Additionally, it shows that you recognize weaknesses in your argument and are willing to address them thoroughly and explain why they do not affect the outcome you seek.

Consider the following example:

Example: “Your Honor, I respectfully submit that the liberty protected by the Fourteenth Amendment to the United States Constitution encompasses a right to assisted suicide.”

Judge: “Well counsel, when we speak of the liberty protected by the –”

Counsel: “Your Honor the Supreme Court has been clear that the word liberty encompasses substantive rights, and no right is more central to liberty than having the right to determine the manner and method by which one dies.”

Judge: “I understand that, but what I’m trying to determine is if the liberty protected must be –”

Counsel: “Your Honor, the Supreme Court has already held that the word liberty protects personal privacy, and nothing could be more private than the decision on when to terminate one’s life.”

Judge: “Let me finish. I am concerned about whether the liberty interests protected under the Fourteenth Amendment must be deeply rooted in history and tradition.”

Counsel: “I apologize Your Honor. I misinterpreted your question.”

This attorney is a moron. The attorney looked foolish and unprofessional and was so oblivious that the attorney stated that the question, which the attorney never allowed the judge to ask, was misinterpreted. Doing something like this will destroy your credibility, infuriate the judge, and make it all but certain that you will lose your case.  It will also ensure that, if married, your partner will divorce you.

***

Presenting a persuasive argument requires you to use techniques that connect with your audience on a personal level and that convince the audience that your argument leads to the fairest and most just outcome. Using the techniques above will help you maximize your argument’s persuasive value and your likelihood of success.

May 11, 2024 in Appellate Advocacy, Appellate Practice, Law School, Legal Profession, Legal Writing, Moot Court, Oral Argument, United States Supreme Court | Permalink | Comments (0)

Monday, May 6, 2024

Belly Buttons and Punctuation

My colleague Diana Simon is my hero--my punctuation and grammar hero. Whenever I have a grammar or punctuation related question, she is the FIRST person that I go to (after Google of course).* In fact just last week I asked her if case law was one word or two. She replied that writing guru Bryan Garner prefers one word, but she and I agreed that we preferred two.

Diana publishes a column on writing and grammar in the Arizona Attorney magazine. Her latest column--Unlike Belly Buttons, Commas and Periods with Quotation Marks Cannot Be Innies or Outies--is a must read. It is a must read not just for its superb humor (a few examples of which I will provide below), but also because it addresses a pervasive problem in writing.  As Diana explains,

the increased placement of period and comma “outies” when quotation marks are used is out of control. Based purely on anecdotal evidence (well, I guess no evidence at all, then), I estimate that the placement of periods and commas outside quotation marks has increased by 165.56 percent.

And while Diana might claim that she has no evidence, she did acknowledge that she has seen an increased improper use of commas, periods, and quotation marks in her student papers. I agree.

So why is this a problem. Well, again Diana explains it well:

When you are a legal writing professor, seeing this trend [improper use of punctuation and quotation marks] can result in, among other things, loss of sleep, loss of hair (from pulling it out), and loss of nails (from biting them).

You might think I am being a tad overdramatic, but I can assure you the improper use of “outies” is a serious offense among legal writing professors. We lead very dull lives, so an issue such as the misplacement of punctuation with quotation marks can cause quite a stir. 

#truth.  I tell my students each semester that they are in America, and as such they MUST put periods and commas inside of quotation marks. If they don't like that rule, they can go become a barrister rather than a lawyer. Diana's article, in fact, tries to recount the history of why our punctuation conventions are historically different in America and why so many people seem to be forgetting those differences in everyday writing. Diana ends the article with the "rules for semicolons, colons, and question marks with quotation marks because there is a whole wide punctuation world that we live in beyond periods and commas, and we don’t want any other punctuation marks to feel left out."    

In short, read this article. Assign it to your students. Hopefully the belly button analogy will stick with them and improve punctuation usage.

*Diana is not, however, my citation hero. But that is a story for a different blog post.

May 6, 2024 | Permalink | Comments (0)

Sunday, May 5, 2024

Justices, Not Judges

This past week, I had the privilege of opening the Mid-Year Conference of the California Judges Association with a speech about the rule of law and how we can preserve it. The topic was one the group requested, and it provided me with a welcome opportunity to consider the indefinite meaning of the rule of law without specific laws it seeks to establish as the normative structures of society, its malleability throughout our nation’s history, and the many revolutionary ways it has changed and will likely change in the future.

In this post, however, I do not plan to get into that heavy subject, but instead relate an anecdote about one oral argument at the Supreme Court that exemplifies how the rule of law is really a rule of acceptable norms, not necessarily law itself. I opened my remarks with this story.

When one argues a case at the Supreme Court, upon checking in, you are handed two cards, slightly larger than a business card. One provides a kind of aerial view of the bench, showing the curved bench with boxes depicting the array of the justices, the positions of the marshal and clerk, and the place of counsel at the podium. Each person is depicted as a number, and a legend indicates who each number represents. It provides you with a reminder of where each justice sits.

A second card serves two purposes. One purpose is as an admission ticket that lets court personnel in the courtroom know that you belong at counsel’s table as counsel in a specific case. It also has three instructions. First, it reminds you that you should not speak until acknowledged by the chief justice. Second, it tells you that you should not introduce yourself but begin with the familiar, “May it please the Court, …” And, finally, it says that if you address a member of the Court, it should be as “Chief Justice” or “Justice …,” not judge, with that word italicized on the card.

More than 20 years ago, a novice violated the last of these admonitions, not once, but three times, possibly due to nerves. In response to questions from Justice Kennedy and then Justice Souter, she addressed them as judges. Each time, then-Chief Justice Rehnquist corrected her by saying that’s “Justice ______.” No doubt, the cognoscenti in the courtroom silently clucked at such a faux pas by an advocate. Not long afterwards, however, she compounded these episodes by calling the chief justice “judge.” Rehnquist then said, “Counsel is admonished that this Court is composed of justices, not judges.

Stunned and chastened, the advocate hesitated to say another word, but Justice Stevens interrupted, as he was often prone to do to make counsel more comfortable. He said, “It’s OK, Counsel. The Constitution makes the same mistake.”

Indeed, the Constitution, in Article III, refers to “judges” of the supreme and inferior courts as holding office during good behavior – the only other mention of a member of the Supreme Court is in the impeachment article, where it states that the “Chief Justice” shall preside when the president is subject to an impeachment trial.

Even if the Constitution designates members of the Supreme Court as “judges,” no advocate will ignore the norm that members of that court are called justices, and the card advocates receive continue to tell them not to use the word “judge.” Even though the Constitution is the “supreme law of the land,” it does not supply the rule of law when addressing the Court. Instead, another norm does. That means that while we venerate the rule of law and some of the Court’s end-of-the-term rulings may have many questioning what happened to the rule of law, the admiration and allegiance we hold to the concept reflects only our personal perceptions about the substance of law and how we legitimately determine that substance. Keep that in mind as you review the momentous decisions we expect from the Court this term, and when you ask any appellate court to reach a decision.

May 5, 2024 in Appellate Advocacy, Appellate Practice, Current Affairs, Oral Argument, Rhetoric, United States Supreme Court | Permalink | Comments (0)

Tuesday, April 30, 2024

Lessons in Resilience from Moot Court

Dumier high tribunal of judges

Last year marked my 25th year of coaching moot court. This year was the first year for our program to win ABA NAAC. I think the two are related, and wanted to share some thoughts on what I've learned over the years.

First, moot court, like many skill exercises, prepares students for work in many ways. They learn principles of rhetoric that are too frequently untaught. They learn the importance of standards of review, limiting principles, and the potential impact of new law to judges. And, of course, they learn to organize and simplify their thoughts on both print and at the podium.

But moot court teaches much more than that. It teaches students time-management skills. They learn to collaborate with others. They learn accountability. And they learn to lose.

That last lesson is, I think, key. Even before COVID, psychologists were noting a serious decline in resilience among incoming college students. Many students had become afraid to take risks, because failure was seen as catastrophic. As a result, they had begun to avoid public speaking or competition, and to instead demand easier grading, do-overs, and other safety measures that ensured they would not make lasting mistakes. Or learn from them.

Then COVID hit. Whatever problems were brewing before that were magnified by the isolation and trauma many young people felt.

Studies in resilience show that it has several predictors. High self-esteem and strong social attachments help. And exposure to stressors, in moderation, can build up a sense of resilience. Some have taken to calling this latter form of resilience "grit."

Moot court teaches grit. It teaches students (the vast majority of them, at least) that they will not always win. That sometimes, this will seem subjective and unfair. And that they need to learn from those failures, grow, and try again. It teaches them that failure is fuel.

Our program's success this year was carried by a lot of that fuel. Nine years ago we made it to ABA NAAC nationals and lost. One of those competitors was so fueled by that loss that she became my co-coach, just to help us get back and try again. Three years ago we made it to ABA NAAC finals. We lost again. Those students have volunteered to guest judge every year since. And this year, my teams lost in finals at our state competition, and lost at NY Bar Nationals. Then a dry cleaner lost one student's suits, and an earthquake hit during the competition itself.

None of that mattered. By then, these students had resilience to spare. They had heard the stories, they had experienced the losses, and they wanted nothing more than to keep going, and daring for greater things. And with that resilience, built over a decade of pain in this competition, we won.

Teddy Roosevelt is often quoted for saying:

“It is not the critic who counts; not the man who points out how the strong man stumbles, or where the doer of deeds could have done them better. The credit belongs to the man who is actually in the arena, whose face is marred by dust and sweat and blood; who strives valiantly; who errs, who comes short again and again... who at the best knows in the end the triumph of high achievement, and who at the worst, if he fails, at least fails while daring greatly.”

We need to teach our students to dare greatly. Moot court helps them learn to do just that.

April 30, 2024 in Appellate Advocacy, Law School, Moot Court, Oral Argument, Rhetoric | Permalink | Comments (1)

Saturday, April 27, 2024

Lessons in Appellate Advocacy from the Supreme Court's Oral Argument in Trump v. United States

The recent oral argument before the United States Supreme Court in Trump v. United States, which concerns presidential immunity, provides several lessons about how to argue a case effectively and persuasively. Although the attorneys for the petitioner and respondent used their persuasive advocacy skills to varying degrees of effectiveness, both did so very competently and demonstrated why they are elite advocates. Below are a few lessons in advocacy that were on display at the oral argument.

1.    Have a strong introduction.

Make a great first impression with a strong introduction.  Begin with a powerful opening theme. Tell the court precisely what remedy you seek. And explain why, in a structured and organized way, the Court should rule in your favor. For example, use the Rule of Three, namely, provide the Court with three reasons that support your argument and the remedy sought.

In Trump, the lawyers for the petitioner and the respondent had effective and persuasive introductions. They opened with a strong theme. They got to the point quickly. They explained in detail and with specificity why the Court should rule in their favor. Doing so enabled both lawyers to, among other things, start strong, gain credibility with the Court, and frame the issues in a light most favorable to their side.

2.    Answer the Court’s questions directly and honestly.

Regardless of how persuasive your introduction is, the justices will express concerns about various legal, factual, or policy issues that impact the strength of your case. Thus, when the justices ask questions, particularly those that express skepticism of your argument, view it as an opportunity to address the justices’ concerns and present persuasively the merits of your position. In so doing, make sure to always answer the questions directly and honestly, as any attempt to evade the questions will harm your credibility. Additionally, if necessary, acknowledge weaknesses in your case (e.g., unfavorable facts or law), and explain why those weaknesses do not affect the outcome you seek. Also, be sure never to react defensively in response to a question; instead, act like you expected the question and use the question to enhance your argument’s persuasiveness.

During the oral argument in Trump, the lawyers for the petitioner and respondent were well-prepared, answered the Court’s questions effectively, and conceded unfavorable facts where appropriate. As a result, they maintained their credibility and enhanced the persuasive value of their arguments.

3.    Speak conversationally and confidently.

During oral argument with an appellate court, particularly the U.S. Supreme Court, adopt a conversational tone and confident demeanor. Recognize that the Court is trying its best to reach a fair result that is consistent with the law and the facts. The law and facts, however, often do not dictate a particular outcome, and sometimes judges are left with little more than a desire to reach what they believe will be the best result. Indeed, judges are human, and when they return home after a long day, and their partner asks how their day was, the last thing judges want to say is “Well, I decided several cases that led to horrible outcomes. Other than that, it was a wonderful day.”

As such, your role, while advocating zealously for your client, should be to have a conversation with the Court in which you acknowledge the Court’s concerns and the policy implications of the outcome you seek, and convince a majority of the justices that the result you seek is fair and equitable. Put differently, while you must advocate zealously for your client, you should also display some degree of objectivity that shows an awareness of, among other things, opposing points of view and weaknesses in your case.

During oral argument, both advocates spoke conversationally and confidently and never appeared uncertain, surprised, or equivocal. Projecting confidence is critical to maximizing the persuasiveness of your argument, and speaking conversationally ensures that you can communicate your argument effectively.

4.    Be mindful of your pacing, tone, and non-verbal communication.

It is not just what you say. It is how you say it. Thus, when making an argument, be sure not to speak too quickly. Do not use over-the-top language or attack your adversary. Use strategic pauses to thoughtfully respond to the Court’s questions and transition effectively to different arguments. Never show frustration, surprise, or combativeness in response to a question. Instead, show that you are a composed and thoughtful advocate who listens well, and forms reasoned responses to difficult questions.

Also, be mindful of your non-verbal communication, including your appearance, body language, facial expressions, posture, eye contact, and hand gestures, as non-verbal communication can enhance or detract from the persuasiveness of your argument.

During the oral argument, both advocates avoided speaking too quickly and rushing through their points. They never displayed a combative and adversarial tone. They spoke clearly and articulately, and in a manner that made their arguments straightforward, organized, and easy to understand.

5.    Adjust your argument strategy based on the Court’s questions.

When you begin an oral argument, you know what points you want to emphasize. But the justices may want to discuss other things, and a good advocate recognizes this and adjusts accordingly.

Consider the following example:

Advocate: Your Honor, the warrantless search of the suspect’s house in this case did not violate the Fourth Amendment because the victim’s body was visible to the officer and therefore the search falls within the plain view exception to the warrant requirement.

Justice: But counsel, the officer was unlawfully on private property when she saw the victim’s body, rendering the plain view exception inapplicable. However, it seems that the exigency exception applies because the victim was still breathing, although gravely injured when the officer encountered the victim and entered the home.

Advocate: Your Honor, the plain view exception applies because the officer was on public, not private, property, and as a result, it applies squarely to this case.

Justice: Well let’s assume that I conclude that it was private property. Doesn’t the exigency exception apply?

Advocate: Your Honor, this was public property. The plain view exception is clearly applicable.

***

The advocate’s performance in this colloquy was simply awful.

The justice is unquestionably signaling to the advocate that he or she believed that the exigency, not the plain view, exception to the Fourth Amendment applied to justify the warrantless search. But the advocate, for some reason, did not perceive or simply ignored this and adhered rigidly to his or her argument. That can be a fatal mistake. As stated above, although you may want to emphasize specific points, the justices may not care about those points and instead want to discuss other issues that, in their view, may be dispositive. When that happens, adjust your strategy in the moment and respond to the justices’ concerns. Do not be afraid to abandon your oral argument strategy if, as the argument unfolds, it becomes clear that the case will be decided on facts, law, or policy considerations that you did not anticipate.

During the oral argument, nothing like this occurred because the lawyers for the petitioner and the respondent were far too skilled, intelligent, and experienced to make this mistake.

6.    Be aware of the dynamics in the room and realize that there is only so much you can do.

Judges often have opinions on how to decide a case after reading the parties’ briefs and before the oral argument. Although oral argument can, in some instances, persuade the justices to reconsider their views, oral argument sometimes consists of the justices trying to convince each other to adopt their respective positions, without much regard for what you have to say.

Put simply, sometimes the outcome is preordained. For example, in Trump v. Anderson, it was obvious early in the oral argument that the Court would overturn the Colorado Supreme Court’s decision holding that former President Trump was not eligible to be on Colorado’s primary ballot. If you are faced with this situation, realize that all you can do is make the best possible argument, knowing that losing the case is not a reflection of the quality of your advocacy but rather a reflection of the justices’ predetermined views. In Trump v. Anderson, for example, Jason Murray, the attorney representing the respondents, did an excellent job of making a credible argument despite the obvious fact that the Court would not rule in his favor.

Also, realize that you are not a magician or a miracle worker. Judges can have strongly held views and the results that they reach sometimes have little, if anything, to do with what you said or did not say during an oral argument. If you are arguing that Roe v. Wade was correctly decided and should be reaffirmed, nothing you say is going to convince Justices Thomas or Alito to adopt your position. Likewise, you are not going to convince Justice Sotomayor that affirmative action programs are unconstitutional. You are also not going to convince Justice Alito that the substantive due process doctrine should remain vibrant in the Court’s jurisprudence. Knowing this, focus on the justices that are receptive to your argument, particularly the swing justices, and tailor your argument to their specific concerns. And, if they ask ‘softball’ questions, be sure to seize that opportunity to make your case persuasively because they are using you to convince the swing justices.

Surely, during oral argument, the lawyers for the petitioner and the respondent knew which justices were receptive to their arguments, which were hostile, and which were undecided. And they addressed swing justices’ questions effectively and persuasively.

7.    Be reasonable.

If you want to retain your credibility, make sure that your argument – and the remedy you seek – is reasonable. Advocating for an extreme or unprecedented result that departs significantly from the Court’s jurisprudence, or that leads to a terrible policy outcome, will get you nowhere. For example, during the oral argument in Trump, Justice Sotomayor asked counsel for Trump whether his argument for absolute presidential immunity would allow a president to assassinate a political rival. Trump’s counsel responded by stating that it would depend on the hypothetical and could constitute an “official act,” thus triggering absolute immunity. Most, if not all, judges would reject this argument because it is simply ridiculous to contend that a president could assassinate political rivals with impunity.

Thus, be reasonable when presenting your arguments and requesting specific remedies. Every argument has weaknesses that those with different perspectives will expose. As such, in most cases, avoid absolute or categorical positions that eschew nuance and that prevent the Court from reaching a compromise. Doing so will enhance your credibility and show that you recognize the complexities of the legal issue before the Court.

During the oral argument, the attorney for Trump, although very skilled, arguably advocated for an unreasonable outcome, namely, that the president is always immune from prosecution for official acts done while the president is in office. The problem with this argument, as Justices Sotomayor, Jackson, and Kagan emphasized was that it would allow a president to engage in a wide array of criminal conduct, including the assassination of a political rival, with impunity. That result is simply not reasonable and consistent with the principle that no person is above the law. A better strategy may have been to adopt a more nuanced argument that recognized when, and under what circumstances, presidential immunity should apply, and to give the Court a workable test to distinguish between official and private acts. Adopting an unreasonable position detracted from the persuasiveness of Trump’s argument, and the Court signaled that it would reject this extreme, all-or-nothing approach.

8.    Realize that nothing you do is as important as you think.

Whether you win or lose, the world will keep turning and the sun will rise tomorrow. Sure, there are incredibly impactful cases, such as Brown v. Board of Education, Bush v. Gore, and Dobbs v. Jackson Women’s Health, which significantly affect the rights and liberties of citizens. Your role in influencing that outcome, however, is often far more insubstantial than what you believe, and inversely correlated to the absurd amount of hours you spent litigating the case. Think about it: do you believe that the oral arguments (or briefing, for that matter) in Brown, Bush, or Dobbs caused any of the justices to change their minds? Why do you think that, in some cases, anyone familiar with the Court can predict how the justices will rule before oral argument even occurs? You should know the answer.

Of course, you should still work extremely hard and hold yourself to the highest standards when arguing before a court. Persuasive advocacy skills do matter, particularly in close cases. However, your ability to affect the outcome of a case or the evolution of a court’s jurisprudence is, in some instances, quite minimal, and your inability to reach the outcome you seek is often unrelated to your performance or preparation. So do not put so much pressure on yourself. Have humility and focus on what you can control – and ignore what you cannot. Doing so will help you to cope with the unpredictable and unexpected outcomes that you will experience in the litigation and appellate process. And remember that no matter what happens, life will go on. You should too. And I suspect that the lawyers for the petitioner and the respondent will do precisely that.

***

Ultimately, what matters is not how many cases you win or how much money you make. What matters is the relationships that you form with other people, which are more important than anything that you will do in the law. So don’t sweat the small stuff, because, at the end of the day, it’s all small stuff.

April 27, 2024 in Appellate Advocacy, Appellate Justice, Appellate Practice, Appellate Procedure, Current Affairs, Law School, Legal Profession, Oral Argument, United States Supreme Court | Permalink | Comments (0)

Sunday, April 21, 2024

Absolute Presidential Immunity as an Appellate Strategy

On April 25, the Supreme Court will hear oral argument in Trump v. United States, the case in which former President Trump’s lawyers will argue, among other things, that a president has absolute immunity from the criminal charges that covers every action of a president. In this instance, they claiming that Trump was advancing electoral integrity when he urged supporters to go to the Capitol on January 6, 2021, which resulted in violence that temporarily halted the tallying electoral votes so that Joseph Biden could take office as the incoming president.

The assertion of absolute immunity may seem incredulous as a strategic choice. Rare is the instance that an appellate advocate should elect to argue the most extreme position possible, particularly when the argument has no textual anchor, no precedential support, and obvious counterarguments. To place a president entirely above the law suggests that the American Revolution, the Constitution, and tradition renders the chief executive a king who wield every possible prerogative and can do no wrong, when we have been taught that the opposite is true.

During argument before the D.C. Circuit, one judge asked whether the president could order Seal Team 6, the elite unit of Navy Seals, to assassinate a political rival. Counsel responded that only impeachment and not criminal prosecution was available under that hypothetical. Judges and the public, expectedly, reacted harshly to that extreme and indefensible position.

The question then, from an advocacy perspective, is why adopt it? Certainly, there are times when a court splits the difference between the positions taken by the two parties, so that the party advocating the most extreme position, as in a negotiation, pulls the center closer to its view. Other times, a position is presented, not to prevail, but to plant a seed that may sprout at a later time. A powerful separate judicial opinion that seeks to justify the position in some instances provides an opportunity to fight another day and to generate more debate and scholarship in favor of the position.

In the Trump case, I doubt that either of these potential outcomes are what his counsel has in mind. Neither is likely to accomplish their client’s current need: the end of the prosecution. Instead, the argument fuels their delay stratagem, which hopes that the trials take place at a time when President Trump can make a triumphant return to the White House and order the Justice Department to drop the prosecutions, or that a defeated candidate who is no longer a threat receives a pardon or other beneficence from the victor to avoid the spectacle of a former president in prison. Still, the argument might produce language, helpful to a defense, about what constitutes the outer boundaries of official action, where the doctrine of qualified immunity provides some guidance.

I expect that this last point is why Trump’s counsel has argued that every act as president is an official act. This argument seeks to goad the Supreme Court into laying down criteria for evaluating when a president is engaged in an official act. Any guidelines are likely to be vague, creating room for exploitation when and if a case goes to trial. While election integrity sounds like official action, the presidency has no specific responsibilities on that issue and exhorting private citizens to march on the Capitol to keep an eye on Congress hardly sounds like official action in support of fair elections.

Still, it is worth noting that the absolute-immunity argument is not counsel’s untethered invention. It borrows from and seeks application of language adopted by the Supreme Court in Nixon v. Fitzgerald,[1] which held that former President Nixon was absolutely immune from private civil actions for “official conduct” even at the outer perimeter of presidential authority. In the case, a former air force employee sued the former president on a claim that Nixon had fired him over his whistleblowing testimony before Congress. The Court reasoned that a failure to immunize presidential actions would encourage lawsuits aimed at presidential actions to a degree that would distract a president from the duties of office and chill presidential choices to an extent that would “render an official unduly cautious in the discharge of his official duties.”[2] Although the Court took pains to distinguish criminal cases because of their greater public interest and importance, that type of marker can erode over time.

Notably, the Court found no distraction issue in 1997 when it held that then-President Clinton had no immunity from a lawsuit involving sexual allegations that predated his presidency in Clinton v. Jones.[3] Key to the decision was that the allegations concerned private actions unrelated to the exercise of presidential power, thus not creating a concern that it would induce hesitancy about official duties.

While I doubt that the absolute-immunity gambit will work in its purest form, Supreme Court decisions often create new issues that become fodder for future cases or arguments in the same case. In United States v. Nixon,[4] the Court unanimously held that the president could not claim executive privilege to avoid the Watergate special prosecutor’s subpoena for presidential audio tapes. Still, in the course of rejecting the executive-privilege argument, the Court gave executive privilege a firmer foundation than it had ever commanded before. Expect the same for presidential immunity in the opinions that come out of Trump v. United States.

 

[1] 457 U.S. 731 (1982).

[2] Id. at 752 n.32.

[3] 520 U.S. 681 (1997).

[4] 418 U.S. 683 (1974).

April 21, 2024 in Appellate Advocacy, Appellate Justice, Appellate Practice, Current Affairs, Federal Appeals Courts, Oral Argument, United States Supreme Court | Permalink | Comments (1)

Saturday, April 20, 2024

An Argument Against Block Quotes

Recently, I saw a long listserv conversation about teaching first-year and LLM students to properly format block quotes. You might remember from your law review days that block quotes are long quotes of “fifty or more words.”  See The Bluebook, Rule 5.1.  Under The Bluebook and other citation manuals, we must set block quotes apart from other text, usually in a single-spaced block of text double-indented from the left and right, with no quotation marks.

Apparently, word processors have made it more difficult to do the left and right indenting needed for block quotes, and the original listserv poster asked for advice on helping students manage block quotes efficiently.  Having noticed the way our Typepad blogging system makes simple indenting more difficult now, and having banned my students from using most block or other long quotes for years, I was intrigued by this thread. 

Some professors on the thread suggested using quotation marks, even in a block quote, to deal with indenting difficulties.  Other professors offered great tips on various word processing program shortcuts and macros to help students properly indent their long quotes.  However, some contributors asked if teaching the format was worth the investment of class time.  The original poster later gave us all a summary of the info gained from the post, and explained that the majority of commenters suggested taking some class time to teach students a tech shortcut. 

To my surprise, I did not see any comments suggesting students simply break apart the quoted material into shorter, more digestible portions for the reader.  Thus, I acknowledge that I might be an outlier here.  Plus, a block quote is much easier to insert into a document–with mere cutting and pasting–than carefully crafted sentences with smaller pieces of the quoted material.  Nonetheless, I ask you to consider clarity and word limits (hopefully in that order), and ban most block quotes from your writing.  

First, think about how often you have actually read the material in a block quote.  Be honest.  If you are like many readers, you tend to skim tightly blocked text, like long brief point headings and block quotes.  See https://proofed.com/writing-tips/5-top-tips-on-how-to-write-for-skim-readers/. Even style manuals allowing the use of block quotes give many tips on how to make sure your reader still gets your point, despite the block quote.  For example, Bryan Garner’s The Redbook Rule 8.10 suggests that we always introduce a block quote with our own assertions, and let the block material simply support our claims.  Just removing the block entirely will increase your chance of the reader truly seeing your ideas.   

Next, think about the lack of clarity from fifty or more words from one source at one time.  Is the material you need from the quote really just on one point?  If so, you likely do not need fifty words or more from the source, added to your own introduction and analysis.  Consider placing the key parts of the quote, likely five to ten words, in your own sentence.  Additionally, if your rationale for using the long block is to cover several points at once, you might be asking too much of your reader.  Your reader will better understand two or three shorter sentences, each with one main point and a relevant short part of the former block quote. 

Finally, look for extra words in the block quote that you don’t need for your point.  Long block quotes are just that; these blocks are long pieces of text that often devour your word count without adding meaningful content.  My students spend a huge amount of time railing against word limits.  Nonetheless, we know word limits are part of any appellate practice.  Thus, I suggest removing long quotes and keeping only what you need.  Sure, you could keep the quote and add ellipses, but too many ellipses are distracting.  See also Jayne T. Woods, The Unnecessary Parenthetical (“Parenthetical”) (April 9, 2024) (explaining research on the way unneeded parentheticals mid-sentence distract readers).  Rather than obscuring your point in a closely-typed long quote with jarring ellipses, use your own words to present the ideas, working in key short quoted phrases.  

Of course, you might have an instance where the clearest and shortest way to convey your point truly is a block quote.  For this reason, I ban most, not all, block quotes.  I urge you to do the same. 

April 20, 2024 in Appellate Advocacy, Appellate Justice, Appellate Practice, Law School, Legal Profession, Legal Writing, Rhetoric | Permalink | Comments (0)

Monday, April 15, 2024

Book Review--A Promise Kept

As readers of this blog know, I love a good book.  If the book covers a Supreme Court case it is all the better.  And if it also concerns my maternal ancestors, well I am guaranteed to love it. A Promise Kept: The Muscogee (Creek) Nation and McGirt v. Oklahoma checked all three of those categories (and it had been sitting in my TBR pile for some time). Written by Robert J. Miller, a professor at the Sandra Day O’Connor College of Law at Arizona State University, and Robbie Ethridge, a professor of anthropology at the University of Mississippi, the book is divided into two key parts.

The first part of the book concisely, yet thoroughly, covers the history of the Muscogee Nation, from the Mississippi “chiefdoms” to the towns and provinces that coalesced into the Creek confederacy. Professor Ethridge covers the divisions within the Nation, especially between the Upper and Lower Creeks, and how those divisions impacted the Nation’s removal (both voluntary and involuntary) from our ancestral lands in the South. Finally, the Nation’s history in Oklahoma is addressed, with detailed discussion of the relevant treaties, the allotment period, and ultimately Oklahoma statehood.

I read this part of the book with rapt attention. I was on the plane to Oklahoma City. In a few weeks I would be visiting the Muscogee Nation and the sites where my grandma and her ancestors lived. As I read, I jotted down notes to check when I had Internet service—I wanted to put my own relatives into this story and look at where they predominantly lived in Indian Territory.

The history was extremely easy to read and accessible to non-anthropologists (myself included). I plan on recommending the book to all my relatives.

The second part of the book covers the legal stuff.  It recounts the history of the McGirt case and the relevant precedents that address disestablishment of reservations. It also hypothesizes about issues that Oklahoma will face post-McGirt.  As a lawyer, I enjoyed this part. I especially appreciated the history surrounding the disestablishment cases, and I found the discussion of taxes on the newly re-recognized reservations interesting, especially given my pending trip to Tulsa. I also appreciated how Professor Miller stressed the importance of cooperation between the Nation and Oklahoma.  Shortly after McGirt was decided, I heard Muscogee Principal Chief David Hill speak about the case. From what I can tell, the Tribes in Oklahoma are ready to cooperate, but do want Oklahoma to honor and respect the Supreme Court’s decision and the promises made to the Tribes in Oklahoma. Unfortunately, they haven’t seen the same response from some elected officials in Oklahoma.

I highly recommend this book to all citizens of the Nation and those fascinated with Indian law, history, and sovereignty.

April 15, 2024 in Books, Current Affairs, Tribal Law and Appeals, United States Supreme Court | Permalink | Comments (0)

Sunday, April 14, 2024

Tips for Dealing with a Difficult Adversary

During your legal career, whether in litigation, at trial, or on appeal, you will invariably encounter a “difficult” adversary. For this article, “difficult” does not refer to exceptionally talented adversaries. Rather, it refers to attorneys who, for lack of a better word, are jerks. They are the lawyers who, among other things, file numerous and borderline frivolous motions, call you on a Monday morning or Friday evening screaming at you, and file lengthy and incoherent briefs that leave you wondering how to respond. Dealing with these jerks is taxing and time-consuming. Below are a few suggestions to make your experience as painless as possible.

1.    Remain calm, professional, and patient.

When dealing with difficult adversaries, never let them affect you in a manner that causes you to react emotionally and get into a confrontation with them. Doing so will only exhaust you and will not in any way achieve your objectives in a particular litigation.

Instead, realize the type of person with whom you are dealing. In some (or many) instances, difficult adversaries are covert or malignant narcissists. Importantly, narcissists lack empathy, have a grandiose sense of self, display a sense of entitlement and a need for admiration, and consistently manipulate reality to make themselves the “victim” in every situation. When you react emotionally to these jerks and get involved in their drama, you are providing them with narcissistic supply, or the attention that they crave. Once you do this, the cycle of narcissistic abuse never ends because at the root of their problem is insecurity, which fuels their constant need for validation.

As such, never make the mistake of arguing with these people. In all interactions, remain calm, professional, and patient, and never let your emotions show. Once a narcissistic adversary realizes that they cannot provoke you and thus use you to feed their need for attention and validation, they will mediate their behavior. Furthermore, treating your adversaries with respect, even when they are difficult, reflects maturity and good judgment.

2.    Be kind and try to find common ground.

Good people exhibit kindness, cooperativeness, and humility even when it is difficult. Being combative with your adversary will get you nowhere and make it harder to accomplish your objectives. Thus, regardless of how repulsive your adversary is, you should always remain focused on achieving your objectives in a particular case, not on the adversary.

Remaining kind and respectful in the face of a difficult adversary is likely to disarm the adversary and make cooperation and compromise more likely. As they say, you catch more flies with honey than with vinegar.

3.    When necessary, draw boundaries and command respect.

In some situations, particularly when dealing with insufferable narcissists, kindness and patience may not work because an adversary will continue incessantly with their abusive behavior, such as by filing frivolous motions or constantly calling you to scream and yell about some “injustice” that has made them a victim once again.

If, despite your best efforts, this behavior continues, you should draw a boundary and make it clear to your adversary that you will not tolerate such nonsense. That does not mean getting into a confrontation with your adversary because that will likely exacerbate the problem and their behavior. Rather, firmly make clear that their behavior is unacceptable and take measures to draw necessary boundaries, such as by refusing to take their calls and notifying the court of the adversary’s recalcitrant behavior. Put simply, sometimes you must look the bully in the eye and say enough is enough. Knowing when to accommodate and when to be assertive is critical to ensure that your adversary will respect your boundaries. And be sure to document every interaction with your adversary because they can – and will – distort reality (and even lie) to achieve their goals and paint you in a bad light.

4.    Change your strategy.

In some circumstances, an effective way to deal with an adversary is to change your strategy and take a more calculated approach. Indeed, difficult adversaries are often controlling people who will seek to control their interactions and conversations with you. Do not allow them to do that. For example, reframe a legal or factual issue that the adversary raises with you. Identify areas of common ground with your adversary, which may lead to increased collaboration. Ask the adversary to explain the basis for specific discovery requests, and to identify the factual and legal basis for their arguments. And if the adversary continues to be difficult, such as by filing motions and misrepresenting the facts, do not be afraid to hit back with motions or discovery requests in which you expose their duplicity. As stated above, sometimes you must look a bully in the eye and say enough is enough.

5.    Talk to your adversary on the phone (or in person) rather than via email.

Some individuals, particularly difficult ones, use email to send lengthy messages that contain baseless accusations and invective. Certainly, it is easier to hurl insults at people when you are typing on a keyboard in the privacy of your office. But it is not so easy to do so over the phone or in person. So if the adversary sends you an offensive email, do not respond, especially not immediately, when your emotions may affect your rationality. Instead, think carefully about how you want to respond, and then call your adversary. That will enable you to engage in a dialogue, ask questions, and respond in a mature and conciliatory manner, which can increase the likelihood of collaboration and a favorable outcome.

6.    Remember that it is not about you.

Difficult adversaries can affect you emotionally and psychologically, and cause immeasurable stress, because their strategy is to make you believe that you have perpetuated some wrong or injustice, and in some instances to personally attack you. Remember that difficult people frequently, if not always, need to see themselves as the victim.

Never let these ridiculous tactics affect you. A difficult adversary’s behavior has absolutely nothing to do with you. Rather, it reflects their need for control. It results from their insecurity and emotional immaturity. Do not fall for this ridiculous behavior because if you do, you will play right into their hands.

***

Sadly, most if not all lawyers will encounter jerks during their legal career. Knowing how to deal with these people will reduce the stress that they would otherwise cause you and keep you focused on achieving the best result for your client.

April 14, 2024 in Appellate Advocacy, Appellate Practice, Current Affairs, Law School, Legal Ethics, Legal Profession | Permalink | Comments (0)

Tuesday, April 9, 2024

The Unnecessary Parenthetical (“Parenthetical”)

Lawyers love precedent.  And we love it so much that we often fail to stop and consider why we do what we do.  Instead, we blindly follow what we’ve seen before, even when that precedent is nonsensical.  And that is the case with the unnecessary parenthetical.

The unnecessary parenthetical rears its ugly head in all kinds of legal writing, from legal memoranda to appellate briefs and even court opinions.  It looks something like this:

Plaintiff Octavius Doolittle (“Doolittle”) sued his employer Sparks Industries (“Sparks”) for breach of contract.  The trial court (“trial court”) dismissed the action for failure to state a claim.

Sometimes it takes a more egregious form including the word “hereinafter”:

Plaintiff Octavius Doolittle (hereinafter “Doolittle”) sued his employer Sparks Industries (hereinafter “Sparks”).  The trial court (hereinafter “trial court”) dismissed the action for failure to state a claim.

While parentheticals like these are traditionally found in contracts and estate-related documents like wills and trusts, where the drafter must leave absolutely nothing open to interpretation, advocates should pause before inserting them into other forms of legal writing.[i]  Generally, the purpose of these kinds of parentheticals is to clarify or define for the reader how certain individuals or entities will be referred to throughout the rest of the document.  And that’s great if an advocate wishes to shorten a lengthy name to an acronym, such as shortening the Sunny Valley Public School District Number 407 to SVPSD, or to refer to a named individual by that person’s relationship with another, such as referring to Octavius Doolittle’s boss Patrice Longfellow as Boss.  But the parenthetical serves no purpose in the examples above if there is only one person involved in the case with the last name Doolittle or one party with the word Sparks in its name, and, presumably, there is only one trial court.  No reasonable reader is likely to be confused by a reference to the trial court or to Doolittle or Sparks after the initial identification of those parties, and adding the parenthetical simply takes up space and interrupts the flow of the writing.

When these kinds of parentheticals are useful, they should be kept as short as possible.  There’s no need to include either the word “hereinafter” or quotation marks.  Instead, an advocate should simply place the alternate reference within parentheses following the initial introduction of the party or item described:

While working for Sparks, Doolittle was the assistant to Patrice Longfellow (Boss).  Boss worked for Sparks from May 1998 through December 2009.

 

[i] Advocates may want to pause before using these kinds of parentheticals in any legal writing, including contracts and estate documents.  A recent study from MIT found that parentheticals inserted into the middle of sentences, which the researchers called “center-embedded structures,” are wildly prevalent in legal writing and make “text much more difficult to understand.”  Anne Trafton, Even Lawyers Don’t Like Legalese, MIT News (May 29, 2023), available at: https://news.mit.edu/2023/new-study-lawyers-legalese-0529. The study also revealed that these center-embedded structures are not as necessary as many believe, and contracts that were redrafted without them were perceived as equally enforceable to those that included them.  Id.

April 9, 2024 in Appellate Advocacy, Legal Writing | Permalink | Comments (0)

Tuesday, April 2, 2024

Attack the Reasoning, not the Judge

In her post Be Accurate in Your Case Citations, Professor Dysart mentioned two things that she emphasizes when she talks to attorneys and students about professionalism in appellate advocacy. First, the importance of accurately representing case law and the record. (Her post focused on this point.) Second, the importance of not attacking the lower court judge or opposing counsel. The latter point called to mind Sanches v. Carrollton Farmers Branch Independent School District.[1]

There, the appellant’s opening brief contained this paragraph:

The Magistrate's egregious errors in its failure to utilize or apply the law constitute extraordinary circumstances, justifying vacateur of the assignment to Magistrate. Specifically, the Magistrate applied improper legal standards in deciding the Title IX elements of loss of educational opportunities and deliberate indifference, ignoring precedent. Further, the Court failed to consider Sanches' Section 1983 claims and summarily dismissed them without analysis or review. Because a magistrate is not an Article III judge, his incompetence in applying general principals of law are extraordinary.

This paragraph was of much interest to at least one judge on the panel. Appellant’s counsel spent the first five minutes of his fifteen minutes of oral argument time responding to questions about the attack on the magistrate judge’s competence. You can listen to the argument here: Sanches Oral Argument.wma. That time would have been better spent discussing the substance of the appeal.

The court’s PUBLISHED[2] decision called out the attack on the magistrate judge:

Not content to raise this issue of law in a professional manner, Sanches and her attorneys launched an unjustified attack on Magistrate Judge Stickney. The main portion of the argument on this point, contained in Sanches's opening brief, reads verbatim as follows:

The Magistrate's egregious errors in its [sic] failure to utilize or apply the law constitute extraordinary circumstances, justifying vacateur [sic] of the assignment to [sic] Magistrate. Specifically, the Magistrate applied improper legal standards in deciding the Title IX elements of loss of educational opportunities and deliberate indifference, ignoring precedent. Further, the Court failed to consider Sanches' Section 1983 claims and summarily dismissed them without analysis or review. Because a magistrate is not an Article III judge, his incompetence in applying general principals [sic] of law are [sic] extraordinary.

(Footnote omitted.)

These sentences are so poorly written that it is difficult to decipher what the attorneys mean, but any plausible reading is troubling, and the quoted passage is an unjustified and most unprofessional and disrespectful attack on the judicial process in general and the magistrate judge assignment here in particular. This may be a suggestion that Magistrate Judge Stickney is incompetent. It might be an assertion that all federal magistrate judges are incompetent. It could be an allegation that only Article III judges are competent. Or it may only mean that Magistrate Judge Stickney's decisions in this case are incompetent, a proposition that is absurd in light of the correctness of his impressive rulings. Under any of these possible readings, the attorneys' attack on Magistrate Judge Stickney's decisionmaking is reprehensible.[3]

But the court didn’t stop there, it also called out the errors in the appellant’s brief:

Usually we do not comment on technical and grammatical errors, because anyone can make such an occasional mistake, but here the miscues are so egregious and obvious that an average fourth grader would have avoided most of them. For example, the word “principals” should have been “principles.” The word “vacatur” is misspelled. The subject and verb are not in agreement in one of the sentences, which has a singular subject (“incompetence”) and a plural verb (“are”). Magistrate Judge Stickney is referred to as “it” instead of “he” and is called a “magistrate” instead of a “magistrate judge.” And finally, the sentence containing the word “incompetence” makes no sense as a matter of standard English prose, so it is not reasonably possible to understand the thought, if any, that is being conveyed. It is ironic that the term “incompetence” is used here, because the only thing that is incompetent is the passage itself.[4]

Yikes!

Attacking the lower court judge is not just poor advocacy that damages your reputation and your client’s case, it also may subject you to disciplinary action. The Model Rules of Professional Conduct say that “A lawyer shall not make a statement that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge, adjudicatory officer or public legal officer . . . .”[5] So, attack the reasoning, not the judge.

 

[1] 647 F.3d 156 (5th Cir. 2011).

[2] Professor Dysart’s post also noted that the decision she discussed was published. Be Accurate in Your Case Citations.

[3] Sanches, 647 F.3d at 172.

[4] Id. at n.13.

[5] ABA Model Rule of Professional Conduct 8.2(a).

April 2, 2024 in Appellate Advocacy, Appellate Practice, Federal Appeals Courts, Law School, Legal Ethics, Legal Profession, Legal Writing, Moot Court, Oral Argument, State Appeals Courts | Permalink | Comments (2)

Monday, March 25, 2024

Be accurate in your case citations

Last weekend I gave a talk on appellate advocacy to a group of law students interested in public interest work. It was a great crowd. As a former public interest lawyer, it was especially interesting to think about what I might say differently about appellate advocacy to students interested in public interest work.

One point that I didn't change in my standard advocacy talk was Tip #5--Be Professional. When I talk to attorneys and students about professionalism and appellate advocacy I tend to emphasize two points. First, I talk about the importance of being accurate in how you represent cases and the record.  When we surveyed judges for Winning on Appeal, we found that complaints about the misstating the law or the record was probably the second most common complaint that judges had about brief writing (the first being that briefs are too long). The second point I emphasize is the importance of not attacking the judge below or opposing counsel.

As I sat in my hotel room doing my final prep before my talk, I received an email from a legal writing professors listserv that provided me with a prime example on this point. Just a few days ago the Ninth Circuit issued an opinion dismissing an appeal and striking a brief because the appellant's brief "represent[] a material failure to comply with [the court's] rules." Ouch. The primary problem with the brief was that it fabricated caselaw and cited cases that did not stand for the propositions for which they were cited. From the opinion:

Here, Appellants filed an opening brief replete with misrepresentations and fabricated case law. For example, the brief states that Hydrick v. Hunter, 669 F.3d 937 (9th Cir. 2012), “examined a claim of false imprisonment brought by a parent whose child was unlawfully removed from the home by government officials.” Hydrick, however, discusses no such claim. The case instead concerns a conditions of confinement claim brought by a class of persons civilly committed under California’s Sexually Violent Predator Act. Id. The words “parent” and “child” appear nowhere in the opinion. Similarly, Appellants’ brief states that Wall v. County of Orange, 364 F.3d 1107 (9th Cir. 2004), “addressed intentional infliction of emotional distress claims against police officers who unlawfully removed a child from her parent.” Wall instead concerns allegations of excessive force, false arrest, and false imprisonment brought by a dentist who was arrested after an altercation at an auto shop. Id at 1110–12. The words “parent” and “child” are, once again, absent from the opinion. Beyond Hydrick and Wall, Appellants also misrepresent the facts and holdings of numerous other cases cited in the brief. See, e.g., Smith v. City of Salem, 378 F.3d 566 (6th Cir. 2004); Yvonne L. v. N.M. Dep’t of Hum. Servs., 959 F.2d 883 (10th Cir. 1992); Smith v. City of Fontana, 818 F.2d 1411 (9th Cir. 1987); Wilkins v. City of Oakland, 350 F.3d 949 (9th Cir. 2003); Harris v. Roderick, 126 F.3d 1189 (9th Cir. 1997); Mattos v. Agarano, 661 F.3d 433 (9th Cir. 2011); Henderson v. City of Simi Valley, 305 F.3d 1052 (9th Cir. 2002); Johnson v. City of Seattle, 474 F.3d 634 (9th Cir. 2007); Brooks v. City of Seattle, 599 F.3d 1018 (9th Cir. 2010); Devereaux v. Perez, 218 F.3d 1045 (9th Cir. 2000); Wallis v. Spencer, 202 F.3d 1126 (9th Cir. 2000). 

It gets worse. The Court issued a focus order before argument asking the parties to discuss two cases that were cited in the brief but did not appear to exist. At oral argument, "[c]ounsel . . . did not acknowledge the fabrications" and failed to provide other "meaningful support for Appellants' claims." The opinion even includes a colloquy with the court on these issues. It isn't great for the attorney. 

As I pointed out to the students, this is bad. Things like this ruin your reputation with the court and the judges for your entire career. In fact, the court was so upset by the attorney's actions that it PUBLISHED the opinion. Yes, it published it.

So, let this be a lesson to be accurate in your case citations. Your reputation depends on it.

(Thanks to Cory Webster for sharing the opinion and Prof. Sarah Ricks for disseminating it on the listserv).

March 25, 2024 | Permalink | Comments (0)

Sunday, March 24, 2024

And or Or

Statutory construction figures in many appeals. Despite well-known canons that guide courts in interpreting statutes, advocates and courts frequently dispute a written law’s meaning. The overarching principle used in both federal and state courts seeks to read a statute to reflect the intent of the legislature that enacted it. To determine legislative intent, precedent advises that the law’s text, read as a whole, is the best indicia of what the enacting body intended. In taking a textualist approach, courts attempt to read the words of a statute in their ordinary meaning, absent some indication that the words have a technical meaning or are used as terms of art.

When a plain-meaning approach does not resolve ambiguities in the text, courts often resort to legislative history, hoping to derive an answer from hearings, reports, and legislators’ remarks. One example of particular contention is the legislative use of “and” or “or.” The controversy over their usage has given rise to what is called the conjunctive/disjunctive canon. The canon holds, as one might assume, that the use of “and” is conjunctive, which means that the items in a list are joined. The use of “or” is disjunctive, which tells you that the items in a list are alternatives. Yet, nothing is as simple as that might seem to make it because lists can include negatives, plurals, and other phrases that create ambiguities.

In 2018, Congress enacted a criminal justice reform called the “First Step Act.” Among other things, it created criteria that would allow avoidance of mandatory minimum sentences. To apply this safety valve, a court must, in addition to other criteria, find:

        the defendant does not have--

                (A) more than 4 criminal history points, excluding any criminal history points resulting from a 1-point offense, as determined under the sentencing guidelines;

                (B) a prior 3-point offense, as determined under the sentencing guidelines; and

                (C) a prior 2-point violent offense, as determined under the sentencing guidelines.

In Pulsifer v. United States, decided on March 15, the Supreme Court grappled with what had baffled the circuit courts: must all three conditions be met as signified by the word “and,” or should the “does not have” that introduces the list indicate that A, B, and C are alternative qualifications.

The government argued to the Court that the requirements mean that a defendant with any one of the disqualifying criteria was ineligible for the leniency the law granted, as though it read A or B or C. The defendant arguing the use of and was conjunctive, argued that the law only disqualified a defendant if the record reflected all three at the same time.

A six-member majority sided with the government, but the line-up was a bit unusual. Justice Kagan wrote for a majority that included Chief Justice Roberts and Justices Thomas, Alito, Kavanaugh, and Barrett. Justice Gorsuch authored a dissent, joined by Justices Sotomayor and Jackson.

The majority said that there were “two grammatically permissible ways to read” the provision, so that either the government’s or the defendant’s might be plausible. However, grammatical rules alone could not answer the Question Presented, because the language had to be read in context. In other words, reliance simply on the conjunctive/disjunctive canon would be misplaced.

Invoking an example from the children’s book, The Very Hungry Caterpillar, Justice Kagan explained that sometimes in a series is joined by a single verb so when the caterpillar “ate through” a number of food items we understand that each listed food had a hole through which the caterpillar traveled. She then states that when a person says, “I’m not free on Saturday and Sunday,” . . . he most likely means “I’m not free on Saturday and I’m not free on Sunday.” What the person does not mean is that he is only available “one of those days,” but the entire weekend.

However, the inclusion of “does not have” at the top of the list “refers independently to crimes satisfying (1), crimes satisfying (2), and crimes satisfying (3)—not to whatever crimes manage to satisfy (1), (2), and (3) all at once.” Thus, even if Congress could have framed the criteria more clearly, the majority resolved the issue by determining that Congress could not have created an exception that swallowed the rule, but that recognized ineligibility for a more lenient sentence based on the seriousness of the offense. That sensible view, the majority surmised, is reflected in the government’s favored interpretation.

Justice Gorsuch’s lengthy dissent largely applies the conjunctive/disjunctive canon, refusing to rewrite the statute from its plain text where “or” must mean “or.”

Although the decision resolves the meaning of the First Step Act, both sides have provided advocates with ample argument points the next time legislation is less than translucent.

March 24, 2024 in Appellate Advocacy, Appellate Practice, Current Affairs, Federal Appeals Courts, Legal Writing, Oral Argument, State Appeals Courts, United States Supreme Court | Permalink | Comments (0)

Monday, March 18, 2024

Journal of Appellate Practice and Process V.24 Issue 1 Now Online

I am thrilled (relieved) to announce that volume 24, issue 1 of the Journal of Appellate Practice and Process is now online.  We have had several hiccups in finalizing this issue, not the least of which was a new publishing company, but we made it!

Our Journal team is working diligently on the next issue, and I am accepting articles for volume 25.  I have pasted the full list of pieces in the current issue below.

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

The Winter 2024 issue of The Journal of Appellate Practice and Process (Volume 24, Issue 1) is now available. It features the following pieces:

March 18, 2024 | Permalink | Comments (0)

Sunday, March 17, 2024

A Few Thoughts on Judge McAfee's Decision

On March 15, 2024, Judge Scott McAfee denied the defendants’ motion to disqualify Fulton County District Attorney Fani Willis from the case involving the prosecution of former President Donald Trump and other defendants.

Below are a few observations from Judge McAfee’s decision and the hearing.

1.    Judge McAfee should have disqualified Willis.

Given the facts and evidence, Willis should have been disqualified. Her conduct demonstrated an actual conflict of interest and the appearance of a conflict of interest.

First, on January 14, 2024, Willis gave a speech at an Atlanta church that all but accused Trump’s and the other defendants’ lawyers of racism – stating they would play the “race card” – and, in so doing, showed an alarming lack of judgment.[1] Although not mentioning the defense attorneys by name, it was clear who Willis was targeting, and her comments, which could taint the jury pool, were inappropriate and unethical.  It should come as no surprise that Judge McAfee suggested that a gag order may ultimately be necessary to ensure that such conduct does not occur again.[2]

Second, Willis and Wade likely provided untruthful testimony on the witness stand when they stated that their romantic relationship began in 2022. To begin with, Willis’s former friend Robyn Yeartie testified under oath that the relationship began in 2019, which was before Willis hired Wade as a special prosecutor. Additionally, Wade’s former attorney and law partner, Terrence Bradley, exchanged text messages in January 2024 with Ashleigh Merchant, one of the defendants’ attorneys, in which he responded “absolutely,” when Merchant asked him whether the relationship began before 2022 (and offered specific details regarding when it began).[3] It is incomprehensible why Bradley, who previously represented Wade in a divorce proceeding, would communicate with an attorney seeking Willis’s dismissal from the case. And it was equally troubling that, when testifying, Bradley evaded nearly every question, suddenly claiming that he did not recall when the relationship began. Bradley’s text messages, not his dishonest testimony, tell the story.[4]

Also, Wade’s testimony was inconsistent with the answers he provided to interrogatories in his prior divorce proceeding. As Judge McAfee stated, Wade’s “patently unpersuasive explanation for the inaccurate interrogatories he submitted in his pending divorce indicates a willingness on his part to wrongly conceal his relationship with the District Attorney.”[5] Well, if Wade’s explanation that the relationship began in 2022 was “patently unpersuasive,” then Willis’s testimony was too. As they say, what is good for the goose is also good for the gander.

Lest there be any doubt, the defendants provided evidence that, before 2022, Willis and Wade had exchanged thousands of text messages and that Wade was located near Willis’s residence approximately thirty-five times.[6] What’s more, after the hearing, two additional witnesses came forward with information that the relationship began before 2022, but Judge McAfee declined to hear their testimony.[7]

Third, Willis’s claim that she reimbursed Wade in cash for money that he expended on their numerous vacations – while Willis employed and supervised Wade – strains credulity. Indeed, Willis’s explanation for the reimbursements is quite convenient because it ensures that they cannot be traced. And it is odd that a district attorney, who, as a public servant, arguably has an obligation to disclose such reimbursements, would select a method for which no documentation would exist. One would think that, in the interest of disclosure and transparency, Willis would do the opposite.

Judge McAfee summarized Willis and Wade’s questionable conduct as follows:

Even if the romantic relationship began after … Wade’s initial contract in November 2021, the District Attorney chose to continue supervising and paying Wade while maintaining such a relationship. She further allowed the regular and loose exchange of money between them without any exact or verifiable measure of reconciliation. This lack of a confirmed financial split creates the possibility and appearance that the District Attorney benefited - albeit non-materially - from a contract whose award lay solely within her purview and policing.[8]

Judge McAfee almost certainly did not believe Willis and Wade, stating in his opinion that “the General Assembly, the Georgia State Ethics Commission, the State Bar of Georgia, the Fulton County Board of Commissioners, or the voters of Fulton County may offer feedback on any unanswered questions that linger.”[9] That should tell you all you need to know.

Given his findings, how could Judge McAfee conclude that the defense had failed to establish by a preponderance of the evidence that the relationship began before 2022, that Willis was not truthful on the stand, and that Willis should not be disqualified? No one can know the answer to this question, but a few explanations appear likely. Judge McAfee may have been afraid to disqualify Willis because of the far-reaching implications of such a decision. Doing so would have made it highly likely that Trump would not be prosecuted, and that McAfee would face a significant backlash from Fulton County’s legal community and voters. Additionally, considering that Judge McAfee is a new judge in an overwhelmingly liberal county, and married with two children, he may have feared that disqualifying Willis would have threatened his career and safety.

Alternatively, Judge McAfee may have honestly believed that he was reaching the right result because, despite Willis’s and Wade’s unethical conduct, no actual conflict of interest existed. But if the relationship began in 2019 or 2020, which the evidence overwhelmingly suggests, Willis had an actual conflict of interest when she hired Wade, when she chose Wade the lead the prosecution against Trump and the other defendants, when she continued to employ and supervise him, and when she paid him hundreds of thousands of dollars for his services. And Willis’s lack of candor on the stand is itself a conflict of interest because her and Wade’s personal interest in concealing the relationship conflicted with their duty to testify truthfully and disclose that relationship. Under these circumstances, disqualification should be the remedy for precisely the type of egregious and unethical conduct that Judge McAfee cited in his decision.

Whatever the reason, Judge McAfee showed himself to be a careful, thoughtful, and conscientious judge, and his findings regarding Willis’s and Wade’s unethical conduct will surely impact Willis’s ability to remain as the prosecutor going forward.

2.    The prosecution against former President Donald Trump is irreparably tainted.

In his opinion, Judge McAfee criticized Willis for her “tremendous lapse of judgment” and the “unprofessional manner of [Willis’s] testimony,” and concluded that the hearing had an “odor of mendacity” that created the appearance of impropriety.[10] Indeed, Willis’s speech at the church, her previously undisclosed relationship (and vacations) with Wade, her questionable theory of cash-only (and thus untraceable) reimbursements, and her combative testimony under oath, compromised irreparably her credibility and stained the prosecution with an unremovable taint.

For these and other reasons, Willis’s continued involvement in the prosecution will likely undermine the public’s faith in the legal system and the rule of law. As Judge McAfee stated:

As the case moves forward, reasonable members of the public could easily be left to wonder whether the financial exchanges have continued resulting in some form of benefit to the District Attorney, or even whether the romantic relationship has resumed. Put differently, an outsider could reasonably think that the District Attorney is not exercising her independent professional judgment totally free of any compromising influences … The testimony introduced, including that of the District Attorney and Wade, did not put these concerns to rest.[11]

It is deeply troubling that a district attorney, particularly one involved in the very public prosecution of a former president, would behave in this manner, rather than ensure that her conduct was beyond reproach.

In essence, Trump won this hearing even though he did not technically “win.”

3.    The weaponization of the law against Trump threatens to undermine the public’s faith in the rule of law.

If one honestly analyzes the cases and court decisions against Trump, one theme emerges: they are, at least to a degree, politically motivated and reflect personal animus against Trump.

For example, New York Attorney General Letitia James campaigned on the promise that she would target and prosecute Trump. And James brought a lawsuit against Trump under a rarely used statute – and before a decidedly liberal judge – that resulted in an arguably excessive $350 million dollar judgment against Trump.[12] We now live in a country where a prosecutor can openly campaign on and get elected to a position on a pledge to prosecute a specific individual.[13]

Additionally, Willis has been anything but shy about her hatred for Trump. Furthermore, the indictment against Trump – filed in Fulton County, which is overwhelmingly liberal – all but ensures a jury pool consisting of jurors who dislike Trump, much like the jury in Manhattan that awarded E. Jean Carroll eighty-three million dollars in damages for defamation, despite her attorneys seeking only a fraction of that amount.[14]

Likewise, the prosecution against Trump in the District of Columbia, which relates to his conduct on January 6, 2021, will, like in Manhattan and Fulton County, place Trump in an overwhelmingly liberal jurisdiction before an overwhelmingly liberal jury. Moreover, the prosecutors in the pending cases are desperately seeking to begin the trials in advance of the November election. That, again, should tell you all you need to know. The motive for these prosecutions is political, namely, to ensure that Trump loses the election in November.[15]

Regarding recent court decisions, the Colorado Supreme Court’s decision, where four justices (all democrats) held, despite the unambiguous language in Section Five of the Fourteenth Amendment, and the ambiguous language in Section Three, that Trump was an “insurrectionist” and therefore barred from Colorado’s presidential primary ballot, was utterly ridiculous.[16] Not surprisingly, the United States Supreme Court unanimously reversed the Colorado Supreme Court’s decision.

Also, some scholars and media personalities continue to make histrionic and laughable statements that defeating Trump is necessary to save democracy. Former Fourth Circuit Court of Appeals Judge Michael Luttig, for example, consistently foments division and fear by making melodramatic statements, such as that the November election is a struggle for democracy and that democracy’s survival depends on defeating Trump.[17] Well, democracy is not threatened because voters elect someone that you do not like.

4.    Steve Sadow is among the best attorneys in the country. 

Steve Sadow, the lead attorney for Donald Trump, is incredibly talented and among the nation's top attorneys. If law students and young lawyers want to see an example of powerful advocacy, they should look no further than Sadow. Indeed, Sadow eviscerated Terrence Bradley with concise, impossible-to-evade questions that left no doubt that Bradley was being untruthful. And Sadow knows how to craft a question in which he subtly incorporates argument into the lead up to the question, and his forceful and confident tone makes it seem like any answer that a witness gives other than the one Sadow's question implicitly suggests is not credible. 

Additionally, Sadow's preparation is impeccable. His arguments are well-organized, to the point, and delivered with a confidence and authenticity that maximizes their persuasive impact. In short, it's not just what Sadow says, but how he says it, that is so impressive. 

 

***

When Wade resigned as the lead prosecutor, he wrote that he was doing so “in the interest of democracy.”[18] Wade did not resign “in the interest of democracy.” He resigned because he got caught. And when the defendants initially filed their motion to disqualify Willis, she called the allegations in the motion – while under oath -- a lie.[19]  Judge McAfee’s decision demonstrates that the allegations were anything but a lie.

The rule of law, not democracy, is at stake. If prosecutors continue to try to “get Trump,” it will erode public confidence in the rule of law and its leaders.[20] That, and an “odor of mendacity,” is the true threat to democracy.

 

[1] Timothy H.J. Nerozzi, Judge in Georgia Slams Fani Willis’ ‘Improper’ Church Speech, ‘Playing the Race Card,’ (March 15, 2024), available at: Judge in Georgia slams Fani Willis' 'improper' church speech, 'playing the race card' (fox5atlanta.com)

[2] See State of Georgia v. Donald John Trump, et al. (March 15, 2024), available at: 151-ORDER-03-15-2024 (fultonclerk.org)

[3] Srah Fortinsky, Ex-divorce lawyer Key Texts on Willis-Wade Relationship Were Speculation (Feb. 27, 2024), available at: Ex-divorce lawyer: Key texts on Willis-Wade relationship were speculation | The Hill

[4] See id.

[5] State of Georgia v. Donald John Trump, et al. (March 15, 2024), available at: 151-ORDER-03-15-2024 (fultonclerk.org)

[6] See Nick Wooten, Trump Attorney: Cell Phone Data Could Show that Fani Willis Nathan Wade Lied About Relationship Timeline Feb. 23, 2024), available at: Phone data calls into question Wade-Willis relationship timeline | 11alive.com

[7] See Jason Morris, et al., Georgia Judge Asked to Allow New Testimony from Witnesses Who Allegedly Have Information on Willis-Wade Relationship (March 5, 2024), available at: Georgia judge asked to allow new testimony from witnesses who allegedly have information on Willis-Wade relationship | CNN Politics

[8] See State of Georgia v. Donald John Trump, et al. (March 15, 2024), available at: 151-ORDER-03-15-2024 (fultonclerk.org)

[9] Id.

[10] Id. (brackets added).

[11] Id.

[12] See Adam Reiss and Dareh Gregorian, Judge Fines Donald Trump More Than 350 Million, Bars Him from Running Businesses in N.Y. for Three Years (Feb. 16, 2024), available at: Judge Engoron fines Trump more than $350M, bars him from running businesses in N.Y. for 3 years (nbcnews.com)

[13] See Associated Press, NY Attorney General Letitia James Has a Long History of Fighting Trump and Other Powerful Targets (Sept. 28, 2023), available at: NY Attorney General Letitia James Has a Long History of Fighting Trump and Other Powerful Targets (usnews.com)

[14] See Lauren Del Valle, Jury Finds Trump Must Pay 83.3 Million to E. Jean Carroll (Jan. 26, 2024), available at: Trump must pay $83.3 million to E. Jean Carroll, jury says (cnn.com)

[15] The case against Trump in Florida, involving Trump’s alleged refusal to turn over classified documents, is arguably the most meritorious of those brought against Trump.

[16] See Trump v. Anderson, 2023 CO 63, available at: 23SA300.pdf (state.co.us)

[17]  See Shauneen Miranda, Former Pence Legal Aide: Trump’s Hold on the GOP Puts Democracy ‘In Grave Peril’  (Aug. 9, 2023), available at: Former Pence legal aide: Trump’s hold on GOP puts democracy “in grave peril” (axios.com)

[18] The Hill, Nathan Wade’s Resignation Letter (March 15, 2024), available at: READ: Nathan Wade’s resignation letter | The Hill

[19] See Kaitlyn Lewis, Fani Willis Says Lawyer ‘Lying’ During Disqualification Hearing (Feb. 15, 2024), available at:  Fani Willis Says Lawyer 'Lying' During Disqualification Hearing (newsweek.com)

[20]  See Alan Dershowitz, Get Trump: The Threat to Civil Liberties, Due Process, and Our Constitutional Rule of Law (Hot Books, 2023).

March 17, 2024 in Current Affairs, Legal Ethics, Legal Profession, United States Supreme Court | Permalink | Comments (3)

Tuesday, March 12, 2024

Can AI Help with Jury Selection?

A couple of months ago, I had my first experience sitting on a panel for voir dire.  It was a criminal case for the class E felony of fourth-degree domestic assault, which carries a maximum of four years’ imprisonment in Missouri.[i]  Having worked on behalf of the state in criminal cases for six years (and seeing a former colleague sitting at the bench when we walked into the courtroom), I knew I would not make the final cut.  But I did my best to respond truthfully and keep my outside legal knowledge to myself.

As an appellate attorney, I’ve read hundreds of voir dires but participated as counsel in only one, and even then, I was a distant second-chair.  Yet I can probably rattle off dozens of questions likely to be asked by both the prosecution and the defense, so I was thinking about how I would respond to those questions I knew were going to be asked—questions about my knowledge, interactions, and feelings about the criminal justice system, the nature of the crime, the burden of proof, and the presumption of innocence. 

But many of the questions I expected did not come.  We were asked many questions about the burden of proof and presumption of innocence, a few vague and awkwardly worded questions I suspect were directed at specific facts underlying the offense, and some about interactions with law enforcement.  But neither side asked if anyone on the panel had ever been the victim of, accused of, or knew anyone who had been the victim or accused in a domestic violence situation.  Before voir dire concluded, however, a panelist raised her hand and asked counsel if they wanted to know that kind of information, which of course they did.  And roughly five panelists then explained their connections with domestic violence, most of which appeared to be disqualifying connections that never would have come to light but for that one panelist’s question.

And this experience made me wonder if AI could help attorneys ensure that their voir dire questions adequately ferret out any potential bias in the panelists (or at least make a good record to preserve any issues later for appeal).[ii] 

To adequately ferret out bias, we must first understand what leads to bias, so I asked ChatGPT to create a list of potential biases any juror might have in a criminal case, and it identified the following:

  1. Confirmation Bias:
    • Tendency to interpret new evidence as confirmation of one's existing beliefs or theories.
  2. Pretrial Publicity Bias:
    • Opinions formed based on media coverage or public opinion about the case prior to the trial.
  3. Experience-Based Bias:
    • Personal or vicarious experiences with crime, law enforcement, or the legal system that may color perceptions of the case.
  4. Occupational Bias:
    • Work experience in law enforcement, legal, or other related fields that might influence views on evidence or testimony.
  5. Community Bias:
    • Pressure to decide in a certain way because of perceived community opinions or values.
  6. Sympathy Bias:
    • Decisions influenced by feelings of sympathy for the victim, defendant, or their families rather than the evidence.
  7. Prejudice:
    • Biases based on race, ethnicity, religion, gender, sexuality, or socioeconomic status of the defendant, victim, or witnesses.
  8. Authoritarian Bias:
    • A tendency to believe and defer to authorities or officials without sufficient scrutiny.
  9. Moral or Religious Beliefs:
    • Strong moral or religious convictions that might interfere with the juror's ability to consider certain types of evidence or testimony objectively.
  10. Punishment Bias:
    • Fixed beliefs about the criminal justice system, punishment, or specific crimes that might influence the juror's decision-making.
  11. Victim Blaming:
    • A tendency to blame victims for their own victimization, which might affect the juror's interpretation of the evidence or testimony.
  12. Overconfidence Bias:
    • Overestimation of one's own reasoning abilities or underestimation of the complexity of the case.
  13. Halo Effect:
    • The tendency to have an overall impression of a person, witness, or defendant and allow that impression to influence judgments about their specific traits or behaviors.
  14. Groupthink:
    • A tendency to conform to the majority opinion in the deliberation room, rather than independently evaluating the evidence.
  15. Anchoring Bias:
    • The reliance on the first piece of information encountered (initial impressions or evidence) when making decisions.
  16. Selective Memory:
    • Remembering things in a way that confirms one's preconceptions, often while forgetting evidence that contradicts those preconceptions.

I then asked it to identify general topics that should be addressed in voir dire for any criminal matter, and it responded:

  1. Juror Background Information:
    • Basic personal information (e.g., occupation, education).
    • Any connections to the legal or law enforcement communities.
  2. Knowledge of the Case:
    • Exposure to pre-trial publicity and media coverage.
    • Pre-existing knowledge or opinions about the case or parties involved.
  3. Experience with the Legal System:
    • Prior jury service and the nature of the case(s).
    • Personal or family experience with the legal system, whether civil or criminal.
    • Experience with being a victim, witness, or defendant in a legal proceeding.
  4. Views on Law and Order:
    • Beliefs about the criminal justice system's fairness and effectiveness.
    • Opinions on law enforcement and the legal process.
  5. Potential Biases and Prejudices:
    • Any biases or prejudices that could affect impartiality.
    • Attitudes towards race, ethnicity, religion, gender, or socioeconomic status that may be relevant to the case.
  6. Moral, Ethical, and Philosophical Beliefs:
    • Beliefs that might affect perceptions of guilt, innocence, or the nature of justice.
    • Opinions on controversial issues that might relate to the case (e.g., drug use, corporal punishment).
  7. Ability and Willingness to Serve:
    • Availability for the entire duration of the trial.
    • Any personal or professional conflicts that may affect the ability to serve.
  8. Understanding and Acceptance of Legal Principles:
    • Acceptance of the presumption of innocence.
    • Willingness to make decisions based solely on evidence presented in court.
    • Understanding of the standard of proof required in a criminal case (beyond a reasonable doubt).
  9. Decision-making and Deliberation:
    • Ability to deliberate fairly and openly with fellow jurors.
    • Willingness to change one's opinion if evidence warrants.
    • Comfort with discussing potentially distressing or sensitive topics.
  10. Case-specific Issues:
    • Attitudes towards specific aspects of the case (e.g., views on mental health issues if relevant to the case).
    • Opinions or knowledge about specific types of evidence (e.g., DNA evidence, eyewitness testimony).

While many of these questions were covered in the original juror questionnaire, it’s still a great list to consult to ensure full coverage.

Finally, I asked it to “draft a list of questions for voir dire in a state criminal case where the defendant is charged with two counts of fourth degree domestic assault and the victims are his wife and child.”  And the AI gave me this:

Background Questions

  1. General Information:
    • Can you please state your name, age, and occupation?
    • Have you or anyone close to you ever served in law enforcement or the legal profession?
  2. Case Awareness:
    • Have you heard about this case prior to today? If yes, what have you heard?
    • Have you formed any opinions about this case based on what you might have heard or read?
  3. Legal System Beliefs:
    • What are your general impressions of the criminal justice system?
    • Do you believe that the system is fair to defendants? Why or why not?
  4. Media Consumption:
    • Do you regularly follow news stories about criminal cases, either in the news, on television, or via social media?
    • Have you watched or read any true crime shows, podcasts, or books? Do you think these have influenced your views on criminal cases?

Experience with Domestic Violence

  1. Personal Experience:
    • Without providing specifics, have you or someone close to you ever been involved in an incident of domestic violence?
    • If yes, was the incident reported to law enforcement, and were you satisfied with the outcome?
  2. Perceptions and Beliefs:
    • What comes to mind when you hear the term 'domestic violence' or 'domestic assault'?
    • Do you believe that domestic violence is a private matter or a public concern? Please explain.
  3. Legal Perspective:
    • Do you believe that people accused of domestic violence should be considered innocent until proven guilty beyond a reasonable doubt?
    • In your opinion, are there ever situations where domestic violence is justified or excusable?

Attitudes Towards Defendants and Victims

  1. General Sentiments:
    • How do you generally view individuals who have been accused of a crime?
    • Do you feel that you can listen to testimony about alleged domestic violence and assault without forming a judgment until all evidence is presented?
  2. Child Involvement:
    • The alleged victims in this case include a child. Does this information affect your ability to remain impartial?
    • In cases where a child is involved as a victim, do you believe your emotions could interfere with your ability to weigh the evidence objectively?
  3. Defendant-Victim Relationship:
    • Do you believe that a spouse or a child is more or less likely to be truthful about accusations of domestic violence against a family member?
    • How do you feel about cases where family members are involved in legal disputes with each other?

Ability to Serve

  1. Time and Attention:
    • This trial may last several weeks. Do you have any personal or professional commitments that would prevent you from serving for the entire trial?
    • Are you willing and able to give your full attention to the evidence presented during this time?
  2. Decision Making:
    • Are you comfortable with the concept of deliberating in a group and coming to a unanimous decision?
    • Can you think of any reason why you would not be able to deliver a verdict based solely on the evidence presented and the judge's instructions on the law?

I understand that there’s a lot of “horse sense”[iii] involved in the actual strikes, but new or inexperienced attorneys may not yet have fully developed or honed this sense, and their clients also deserve a fair and impartial jury.  AI tools can be very helpful to not only discern what leads to bias but also provide potential questions to help draw it out.

 

[i] Mo. Rev. Stat. § 558.011.1(5) (Cum. Supp. 2023).

[ii]Voir dire examination serves the dual purposes of enabling the court to select an impartial jury and assisting counsel in exercising peremptory challenges.” Mu'Min v. Virginia, 500 U.S. 415, 431 (1991). And the importance of ferreting out bias pretrial lies not only in the right to a jury trial itself but also in the “no-impeachment rule,” which generally precludes jurors from later impeaching their own verdict through either affidavit or live testimony. Pena-Rodriguez v. Colorado, 580 U.S. 206, 209 (2017); see also Fed. R. Evid. 606 (Juror’s Competency as a Witness).

[iii] “Horse sense” is a term apparently coined by Karl Llewellyn in The Common Law Tradition: Deciding Appeals (1960), and it means “the balanced shrewdness of the expert in the art.”  Charles L. Barzun, Justice Souter's Common Law, 104 Va. L. Rev. 655, 726 n.238 (2018).

March 12, 2024 in Web/Tech | Permalink | Comments (0)

Sunday, March 10, 2024

Oral Argument and Proper Preparation

Briefing, rather than oral argument, makes the difference, the common wisdom holds. While an excellent oral argument may not win a case, the assumption is that an exceedingly poor one might lose a case, unsettling what the judges had thought established by the briefs and caselaw. When the briefs establish a powerful case for one side or the other, a prepared court will use oral argument to explore the limits to that argument or the consequences of accepting the principle put forth. Yet, in a rare case, the briefing from both sides may be too good and the relevant precedents may pull equally in opposite directions. In those cases, the decision may rest on the presentation of the argument and the advocates’ responses to questions.

I emphasize “may” in that last sentence because a court may balk at picking between competing lines of precedent, choosing instead a theory that neither party has raised. A classic example of that is Mapp v. Ohio,[1] the  1961 ruling that applied the exclusionary rule for illegally seized evidence to the States.  The case entered the Supreme Court as a First Amendment issue. Police had mistakenly entered Dollree Mapp‘s apartment without a warrant, while searching for a person wanted in connection with a bombing. They apparently had the wrong apartment, mistakenly entering Mapp’s second-floor apartment, when the apartment they sought was on the first floor. When police came up empty on evidence related to the bombing, they continued the search while hoping to find something that would support a criminal charge. Finally, they found a trunk that contained a French sex book and nude sketches. Mapp was charged with possession of obscene materials. Although the case was briefed and argued as a First Amendment case, it left the Court as a landmark Fourth Amendment decision.

Advocates cannot and should not hope that a court will do the work for them. They must provide the judges with the tools that will bring about a favorable ruling. It means being prepared regardless of the direction the case takes. In the short handbook for counsel arguing cases in the Supreme Court that is provided to counsel, there is a telling example of how an advocate should even know his client’s business beyond what the case may involve. The case involved an issue of commercial speech. While arguing that his client had a First Amendment right to indicate the alcohol content of its beer on the label despite a prohibition in government regulations, the late Bruce Ennis was asked by a justice about the difference between beer and ale. Without missing a beat, despite the irrelevant nature of the question, Ennis provided a simple and satisfying answer.[2] Although the answer had nothing to do with the merits or the result, Ennis prevailed[3] – and made a very good impression on the Court for that answer to be included in its guide to advocates.

The need for preparation hit home for me again this past week, when I argued a case involving the constitutionality of a state statute in a state trial court. I had a principal argument in which I had great confidence but was prepared with several different back-up arguments that would achieve the same result if the court did not agree with the approach I opened with. My opponent had moved to dismiss the case, arguing that the plaintiffs were relying on a new, but unconstitutional change to the statute of limitations. The judge was well-prepared and had clearly read the briefs and cases thoroughly. She asked good questions of both of us. While opposing counsel presented his rebuttal, she asked him whether he had an alternative argument if she did not find his primary argument convincing. He seemed surprised that he needed one. It became clear that he had put all his eggs in one basket. After a two-hour morning argument, the judge returned that afternoon to the bench (having warned us she would) and ruled in my favor on my primary argument. Perhaps no backup argument would have derailed that train, but it seems as though at least one should have been advanced. Obviously, the briefs had made the difference, but oral argument could have provided more food for thought and perhaps some doubt about the proper result.

N.B.: a trial judge has an advantage in providing a quick, dispositive ruling that can be announced from the bench, as I experienced in the case described above. Even when there is an appellate panel, the court’s view may be obvious and reflected in a rapidly issued decision. Last year, the Seventh Circuit treated me to one very quick and favorable decision within weeks of the argument, where the court had made its unanimous view very clear. On the other hand, appellate courts can inexplicably drag their feet in deciding cases. This past Friday marked the two-year anniversary of an oral argument in a state intermediate appellate court, where I am still awaiting a decision.

 

[1] 367 U.S. 643 (1961).

[2] Supreme Court of the United States, Guide for Counsel in Cases to be Argued before the Supreme Court of the United States 6-7 (Oct. Term 2023), available at https://www.supremecourt.gov/casehand/Guide%20for%20Counsel%202023.pdf.

[3] Rubin v. Coors Brewing Co., 514 U.S. 476 (1995).

March 10, 2024 in Appellate Advocacy, Appellate Practice, Federal Appeals Courts, Oral Argument, State Appeals Courts, United States Supreme Court | Permalink | Comments (0)

Saturday, March 9, 2024

Using Verbs to Help Avoid Bias under ABA Model Rule 8.4(g)

As many know, I push students to avoid passive voice as a way to increase clarity.  We can also use careful verb choice to help remove bias.  Under ABA Model Rule 8.4(g) (2016), “It is professional misconduct for a lawyer to” engage in biased conduct, including “discrimination on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status in conduct related to the practice of law.”  Comment 3 explains “[s]uch discrimination includes harmful verbal or physical conduct that manifests bias or prejudice towards others.”  See https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_8_4_misconduct/?login

In my classes, we discuss recognizing express and implicit bias, and then I suggest some concrete ways to help avoid bias in our legal writing.  One concrete way to eliminate bias is to choose verbs carefully. 

We know from social science that our verbs matter.  For example, in 1974 Loftus and Palmer published their famous study on eyewitness suggestion via verbs.  See https://www.simplypsychology.org/loftus-palmer.html.  Loftus and Palmer divided 45 students into 5 groups, asked them all to watch a video of a car crash, and then asked each group a slightly different question about the speed of the cars.  Loftus and Palmer manipulated the verb used in the question.  They asked the groups:  “How fast were they cars going when they smashed/collided/bumped/hi /contacted?”  Id.  Participants who heard “smashed” reported an average speed of 40.5 mph, while participants who heard “contacted” reported an average speed of 31.8 mph.  Id.  In other words, the eyewitnesses to the video crash responded to the verbs used by others to describe the crash.

When we hide the actor connected to our verbs, through passive voice, we can manipulate meaning even more.  See Robert C. Farrell, Why Grammar Matters: Conjugating Verbs in Modern Legal Opinions, 40 Loy. U. Chi. L.J. 1, 13-14 (2008).  For example, saying an “enslaver often withheld foods from the enslaved people on his plantation” has a very different meaning than “sometimes, enslaved people were not given food.”  When we use the passive voice about enslavers in my example, we are presenting a biased view of reality by not naming the actor who withheld food.  Thus, by removing the passive verb construction, we also decrease bias. 

Case law also shows how passive voice can create issues.  For example, in United States v. Zavalza-Rodriguez, 379 F.3d 1182, 1183 (10th Cir. 2004), the outcome turned on two competing provisions of the Federal Sentencing Guidelines.  The first provision used passive voice and allowed for a sentence enhancement “if a dangerous weapon” “was possessed.”  Id. at 1183-84.  The second clause allowed for a sentence reduction, under the active voice, if “the defendant” did not “possess a firearm or other dangerous weapon” in “connection with the offense.”  Id. The government argued because the defendant stipulated in plea agreement that a weapon “was possessed” under the first of these provisions, he could not assert he had not “possessed” a weapon under the second.  Id. at 1185. 

The Court of Appeals disagreed, noting, “[u]nder the first enhancing provision, the verb was ‘written in the passive voice, requiring a sentence enhancement “if a dangerous weapon (including a firearm) was possessed.”’  Id.  According to the court, “[t]his verb form did not identify who was doing the possessing and thus was broad enough to cover situations of ‘mere proximity’ to a weapon by a defendant, without a showing of ‘active possession.’”  However, “the verb form in the second, mitigating section, ‘did not possess . . . a firearm,’ is in ‘the active voice[,] requiring the defendant to do the possessing,’ or more accurately, requiring the defendant not to do the possessing.”  Id. at 1186-87.

Hopefully, these ideas will resonate with us as we do our best to avoid any express or implicit bias in our writing.  The more we choose verbs and verb construction carefully, the better chance we have of clearly conveying points for our clients in an unbiased way.

March 9, 2024 in Appellate Advocacy, Appellate Court Reform, Appellate Justice, Appellate Practice, Federal Appeals Courts, Legal Ethics, Legal Profession, Legal Writing, State Appeals Courts | Permalink | Comments (0)