Appellate Advocacy Blog

Audio SCOTUS

I love a good audiobook. In fact, I would rather listen to a book than listen to music when I am working out or driving. So, when I received an email about a podcast where some reads the text of SCOTUS opinions, I was intrigued.

The project is the brainchild of Pippah Getchell, a political scientist with a background in government work and teaching.  Ms. Getchell is not an attorney. She is quite clear on that point. But, she does understand the importance that SCOTUS opinions play in interpreting the Constitution. As she explains on her blog, it was the Court's opinion in Dobbs that prompted her to start reading, recording, and disseminating SCOTUS opinions; although in her podcast introduction, she notes that she had been waiting for someone to create such a resource for years. Part of her motivation for recording the opinions is to allow persons to make up their own minds on what the opinions say--certainly a worthwhile endeavor!

I decided to listen to a few excerpts of the podcast to see what sort of a resource I thought it could be for law students and practitioners.  As an initial matter, I enjoyed hearing Ms. Getchell read. The narrator can make or break an audiobook, and I found Ms. Getchell to be a worthy narrator.  Second, she has quite a repertoire of cases that she has read, including Marbury v. Madison, Dred Scott, and Baker v. Carr. She also has several very recent SCOTUS opinions, including Dobbs, Kennedy v. Bremerton School District, and Berger v. North Carolina NAACP.

I listened to the beginning of Marbury and a bit of the Bremerton opinion.  In both cases she started out with a brief 2-3 minute description of the facts of the case. While this can be helpful to the uninformed reader listener, even just stating the "facts" and the key legal issues can color the listener's perspective on the opinion.  After the intro she launches into the reading.

I was curious how she would handle citations and footnotes in her reading. From what I could gather listening to Bremerton (while also looking at the opinion), she skipped both. From a reader and listener perspective, I totally get it. BUT, as a teaching tool, that decision is unfortunate. Citations, however, are critically important for understanding the foundation of the Court's opinions. Students of the law should be aware of the case law that the Court builds its opinion on. Likewise, footnotes often contain important information (I mean, law is full of famous footnotes). Students need to get into the habit early of reading them and assessing their relative value to the holding.

Despite these issues, Ms. Getchell's project is a worthy one. Feel free to head on over to https://whatscotuswroteus.podbean.com/ to see her full list of episodes.

Two Overlooked Tips for Writing Briefs and Arguing Cases

Experienced appellate advocates often tell others that the art of effective brief writing relies on a uniform set of tips, such as keeping sentences short, using topic sentences, and simplifying language. Sometimes, though, violating these precepts can prove effective, even though the advice offered is usually worth following.

Today, however, I want to focus on two key tips that, too often, are ignored: maintaining credibility and making no assumptions about the court’s knowledge of the law. It is critical that your rendition of the facts and the law are credible. In one case years ago, my opponent, a prominent appellate practitioner made a factual assertion that misstated the record. It was not a crucial fact, but it was used by the other side to demonstrate the insensibility of what the court below had done across the board so that he could claim the actual ruling in the case was similarly fanciful. In my reply brief, I dropped a footnote that showed the assertion was wrong with a citation to the record. Surprisingly, during oral argument, my opponent repeated his misrepresentation of the record from his brief. As I jotted down a note to remember to debunk the claim when I stood up, one of the judges eviscerated him for the misstatement. He never recovered from that during the remainder of his argument. To me, the rebuttal was all the stronger because the judge made the point, rather than me. Misrepresenting the record can destroy credibility on other issues, just as he had hoped to harm the credibility of the decision below by making a point that turned out to be unanchored by the evidence.

A similar experience occurred in another case, although this time it concerned the state of the law. My opponent sought to make a seemingly logical argument about why a federal district court should have denied a remand motion after removal from state court. He relied upon support for his position from a nonbinding letter from the general counsel of a federal agency. What he failed to explain, though, was how his position remained credible after three other federal circuits and more than 100 district courts had ruled otherwise. No court had accepted his position. At oral argument, the panel never let him off that point. The issue consumed all his argument time so he had nothing left for rebuttal. On the other hand, in light of how his argument went, I used very little of my time before sitting down.

Where the law is uncertain and conflicting decisions or building blocks render it a close call, credibility can be the key to success. A court is more likely to accept a novel position if it is built on a solid and acceptable foundation, rather than one that does not withstand scrutiny.

Today’s second tip requires you to lay a foundation for the fundamentals that undergird what may be a fairly sophisticated issue. Judges are often generalists and may lack experience with even well-established issues. There are many areas of law where the usual assumptions do not apply. Burdens can shift to defendants, proximate cause standards can vary based on statutory text, and developing trends can signal a change when the context of the dispute creates new considerations. A credible and informed brief will explain the basic rules, whether they apply or require adjustment because of the context of the case. Even during oral argument, it pays to explain fundamentals before reaching the key issue. While most judges are well prepared for oral argument, some may not have read the briefs as carefully as you assume. Without dwelling on basic concepts, it helps to tie them to the issue at hand unless a fair reading of the tribunal indicates a different course. At the same time, one must be alert to a well-informed court that will not patiently await your explanation of basic law.

While no advice about brief writing or oral argument is immutable, credibility and foundational explanations for the legal issue come to providing a consistently helpful approach as any advice you might consider.

An Appellate Practitioner Gives Thanks (2022 Edition)

A lot has happened this year. But regardless of whether one views this year as a good one or a bad one, there always are reasons to give thanks. Last year, I posted what I was thankful for as an appellate practitioner. I felt like I left out a lot, so here is this year's version of what I'm thankful for.

• Acknowledgment by legal writing experts that it's okay to end a sentence with a preposition (otherwise my previous sentence would be problematic).
• Proportional fonts. Sure, I always liked the typewriter lookalike Courier New font. But it's way past time to move on.
• Topic sentences. Not the easiest to write, but they certainly help clarify and strengthen any persuasive argument.
• Voters' approval of a state constitutional amendment changing the name of Maryland's top court from the Court of Appeals to the Supreme Court of Maryland (have you ever seen their spiffy red robes?). Now if New York would only get on board and change their courts' confusing names.
• The fact that when I was in law school there was only IRAC. Now every legal writing textbook has a different acronym, be it TREAC or CREAC or CRExAC or TRIAD, to explain the structure of a legal argument.
• The admission of the public to Supreme Court arguments again.
• Justice Breyer's long service to the nation.
• A new member of the Supreme Court, Justice Ketanji Brown Jackson.
• All the discussion points that the Supreme Court of the United States has given me for my Supreme Court Practice class next semester.
• Appellate advocates who refer to opposing counsel during argument by party name or "opposing counsel" rather than referring to them as "my friend" or "my colleague" (after all, is opposing counsel really your friend or colleague?). Okay, I know some of you like that (and maybe some courts like it, too). But personally I think unless you are Paul Clement or some other elite Supreme Court practitioner you shouldn't do it.
• The apparent soon-to-be demise of the U.S. News & World Report law school rankings. Well, that probably is an exaggeration. Only those law schools that have nothing to lose, e.g., Harvard, Yale, and Berkeley, are likely to pull out.
• All of my appellate mentors over the years, whether they were judges, supervisors, or academics.

And I'm thankful for you, whoever you are, for being interested enough in appellate matters to read this blog. Here's hoping that 2023 will bring us even more to be thankful for. Happy Thanksgiving!

Western Justice Center Gives Ninth Circuit Senior Judge Dorothy Nelson a Lifetime Achievement Award

Many years ago, I was a lucky law clerk working for a wonderful judge at the Ninth Circuit’s  Pasadena courthouse.  One early morning, as I was admiring the flowers growing at the entrance to the gorgeous courthouse, I saw Judge Dorothy Nelson tending to the roses.  She took a moment to chat with me about the roses and litigation, and I have always remembered her kindness and wit.  During my year in Pasadena, I became friendly with Judge Nelson’s law clerks, and learned how much they admired her work for justice and dispute resolution.  See generally Selma Moidel Smith, Oral History of Judge Dorothy Nelson (1988) (interesting interview of Judge Nelson for the Ninth Circuit Historical Society).

Therefore, I was not surprised to see the Ninth Circuit’s recent press release announcing that the Western Justice Center (WJC) honored Judge Nelson “for her vision and dedication in founding the center and decades of visionary work in conflict resolution.”  October 23, 2022 Press Release.  The WJC works to “find innovative ways to handle conflict” by using alternative dispute resolution techniques in and beyond the court system.  The WJC especially focuses on “development of conflict resolution skills and capacity of youth, educators, schools and community partners,” and has trained over “1,000 students, educators and volunteers with the conflict resolution skills they need to transform” schools and “impact . . . youth across” the Los Angeles area.  Id.

As the press release explained, Judge Nelson believes “[e]ighty-five percent of cases could be mediated,” saving the time and money of traditional litigation.   She explained she “want[s] to bring people together, in a collaborative, unifying system,” and she “find[s] there are a lot of people open to that.”  Id.  

Before her nomination to the bench, Judge Nelson served as the Dean of USC’s Gould School of Law.  She was the “first woman dean of a major American law school,” where she “focused on training future lawyers in restorative justice and mediation as an alternative to litigation.”  Id.  Once she joined the Ninth Circuit, she “initiat[ed] one of the first mediation programs for a federal appellate court,” which we use in many circuits today.  See id.

As a past mediator for the Second District of the California Court of Appeal, I know mediating appeals can seem hopeless.  The parties I met with had already invested so much time, energy, and money into their cases that they often saw little reason to settle before oral argument.  However, I did help some parties reach a non-court resolution, and I often thought of Judge Nelson and the roses when I did so. 

Happy Thanksgiving!

The personalities of drafting; or, why I learned to stop worrying and started outlining more

Many years ago, Betty S. Flowers proposed thinking about the drafting process in terms of four different personalities: the Madman, the Architect, the Carpenter, and the Judge. Each should have its turn at the helm during the writing process. For Flowers, this meant writing and re-writing a lot. 

1. Madman: The brainstormer with all the ideas--good and bad. Let her loose to write whatever comes to mind, almost stream-of-consciousness. Write rationally, write emotionally. Don't stop to edit, just produce. When you're out of ideas (or reach a certain time you've set for her), set it aside for a day or two. 
2. Architect: After a bit of time to cool off, turn things over to the Architect. She will sort through the pile of ideas and select the best ones to develop. This is a cold-blooded process; no time for emotional attachment to your creations. She's just going to start envisioning what the structure will look like and how the pieces before her will fit in. She thinks on the paragraph level. 
3. Carpenter: With a general blueprint in mind, it's the Carpenter's turn. She thinks on the sentence level, fleshing out the Architect's ideas into something more connected and seamless, focusing on logical sequence, clear writing, and smooth transitions.  
4. Judge: Finally, it's the Judge's turn. Like a building inspector, she looks at all the small details--word-level thinking. She examines punctuation, spelling, grammar, tone-all the finishing touches.

While this sort of writing and re-writing may serve for most essays and creative writing, I think it's inefficient for legal writing. I know because I used to write this way. When I had finished going through the record and reading the relevant cases, I would have only the vaguest idea of my organization and would just start writing. I figured that it was through writing process that I would come to understand the issues. It worked, but it took many re-writes. My boss suggested that I spend more time outlining and less time writing. I was skeptical; this was how I had always done it and I didn't want to mess with the process (as messy as it was). But I decided to give it a try.

It was a revelation. I found that as I thought about and worked on my organization first, the actual drafting was much faster and more efficient. When I started, I probably spent 10% of my time outlining and 90% writing. At this point, it's more like 70% outlining and 20% writing--and the writing is so much easier. I think there is still room for Flowers's personalities, but they need to be divided up into outlining (Madman and Architect), drafting (Carpenter) and editing (Judge). First, the Madman spins out possible responses. I let those sit for a while before letting the Architect organize the good ones into paragraph-level thinking (complete, in the best cases, with topic sentences). This is where I spend the bulk of my time. Once I have my outline to the point of solid topic sentences (complete with supporting record and case cites), I'm ready to start drafting, letting the Carpenter have his go. After that, the Judge edits. 

A Focus on the Facts

Sometimes the law wins a case; sometimes the facts do. Yet, even when the case presents a purely legal question, it pays to shape the factual narrative to make sense of the applicable law.

In its first-of-the-term oral argument, the Supreme Court heard Sackett v. EPA, No. 21-454, a case that turns on the meaning of “navigable waters” in the Clean Water Act. The long running litigation, returning to the Supreme Court a decade after its first trip there demonstrates the importance of the factual narrative, even if what constitutes navigable waters under the Act seems not to depend on the underlying facts.

The Plaintiff-Petitioners have portrayed the case as one where a couple seeks to build a modest home on their land in a residential zone for near the Canadian border in Idaho and some 300 feet from a nearby lake. Because they failed to seek a permit, they told the Court the EPA stopped the construction and threatened “crushing fines” because the land contains “navigable waters,” even though there are no streams, rivers, lake, or similar waters on the property. Instead, in the Sacketts’ telling of the story, the EPA has made a highly attenuated connection between the lake, which is navigable, through a connected “non-navigable creek” that itself is attached to a ”nonnavigable, man-made ditch” connected to wetlands that are separated from the property by a thirty-foot-wide paved road. Who, the Sacketts ask, could possibly anticipate that this property would be covered by the Clean Water Act. The narrative, which Justice Neil Gorsuch picked up in oral argument, attempts to portray EPA’s definition of navigable waters as unjustifiable based on both text and its attempt to apply to these facts.

The EPA provides a different narrative. In that story, the Sacketts’ property, which was, historically, part of a fen complex that still exists and drains directly into the lake. The property connects to the wetlands and lake through “shallow subsurface flow.” The Sacketts received information about obtaining a site-specific permit that would have covered home construction, but chose to proceed without a permit, using their own commercial construction and excavation business to dump 1700 cubic yards of gravel and sand to fill the wetlands in order to commence construction. Federal officials inspected the site in response to a complaint, finding “soils, vegetation, and pooling water characteristic of wetlands.” The Sacketts own expert then inspected and confirmed that the property was located on wetlands. Because the Sacketts’ wetland property affected the lake’s water quality through sediment retention, contributed base flow to the Lake with beneficial effects to fisheries, and provided flood control, the EPA ordered the Sacketts to remove the gravel and sand they added and restore the wetlands.

The Sacketts’ narrative suggests innocent and sympathetic landowners attempting to build a home, a story that supports the idea that bureaucrats have gotten out of hand. The EPA’s narrative counters that tale by showing that the Sacketts operate a highly relevant business and were informed about how to comply with the law but chose to flout it to challenge the order, pre-enforcement.

 The first narrative portrays a sympathetic set of facts, while the counterstatement undermines that status, while generating some sympathy for EPA’s actions in trying to avoid a problem by providing the means to obtain a permit.

 Ultimately, the decision may turn on what Congress intended to include within EPA’s regulatory ambit. And, at oral argument, the Court seemed divided on that question. Nonetheless, experienced appellate advocates understand that law cannot be determined in a vacuum and will a factual lens from which to read the applicable law.

Disagreement, Civility, and Respect

It’s certainly no secret that we live in very partisan and polarizing times.  But the reasons for such polarization border on the ridiculous.

Indeed, citizens often cannot reasonably and respectfully disagree on matters of public importance, such as abortion, immigration, or education. Additionally, the media, whether it be CNN, Fox News, or MSNBC, has devolved into little more than a partisan enterprise that vilifies anyone with whom it disagrees, and that eschews true intellectual debate (and common sense).  What’s more, the rhetoric of our politicians, both Republican and Democrat, has become so divisive, simplistic, and, quite frankly, dishonest, that any attempt to engage in reasonable discourse is futile. And the United States Supreme Court has contributed to the problem; the meaning of the Constitution seems to depend more on the composition of the Court rather than a reasonable interpretation of its text. In essence, the credibility of many public figures who once inspired trust has vanished as they have unapologetically exposed their personal and political biases.

These factors, among others, have compromised citizens’ confidence in our institutions, in the political and electoral process, and in the ability to disagree on issues of law and policy while maintaining civility and respect. And such factors, not Donald Trump or Joe Biden, is the true threat to a viable and sustainable democracy.

Why is this happening? Below are a few reasons – and suggestions to restore a minimal level of maturity and common sense to public discourse.

1.    The prevalence of groupthink

Groupthink is one of the biggest impediments to a meaningful exchange of truly diverse perspectives. In academia, for example, particularly at law schools, the faculty are overwhelmingly liberal. This is not to say that the views of these professors – or liberals generally – lack merit. It is to say, however, that when you surround yourself with and continually hire people who mostly think like you, opposing perspectives seem so foreign and ‘wrong’ that it precludes meaningful discourse and discourages people from offering diverse viewpoints. Anyone who is a law professor that admires Justice Antonin Scalia – and originalism – will certainly relate. And anyone who has been on the receiving end of students trying to shout you down because you are offering a perspective with which they disagree will likewise relate

2.    A lack of humility – and the failure to admit that you might be wrong

Not everything is about you.

If you’re so self-absorbed that you cannot see past yourself and empathize with others, you cannot form true human connections, make an impact on others’ lives, or make meaningful improvements in your own life. Sadly, inflated egos and narcissistic personalities are prevalent in society, and such people – and personalities – are incredibly toxic. These people almost always think that they are ‘right’ on every issue. They ignore inconvenient facts. They cherry-pick data and evidence to suit their narratives. They hurl insults at those with whom they disagree.  Put simply, they cannot fathom the possibility that maybe, just maybe, their views are inaccurate, incomplete, or incorrect. When a person thinks like that, reasonable discourse is impossible. And the truth is that no one is necessarily right about everything – or anything. It takes humility to listen more and talk less, and to realize that we all have much to learn about life and the law.

3.    Immaturity and weak mindsets

It’s amazing how many adults behave like children.

People have different experiences. They come from different backgrounds. They were raised in different environments. They have often suffered unique traumas and disadvantages. These and other experiences shape a person’s values and worldview which, while invariably different from others, are no less worthy of respect. In other words, not everyone thinks like you. And if you had grown up in their shoes, you probably wouldn’t think the way you do now.

So, grow up. The fact that others have different opinions does not make them wrong. It does not make them bad people. It does not make them immoral or invidious. It just makes them different.  And difference is the essence of diversity.

For example, if someone is pro-life, it doesn’t automatically mean that they have no respect for a woman’s bodily autonomy or liberty. If someone is pro-choice, it doesn’t mean that they sanction the killing of human life. It just means that they have different perspectives, which are informed by their personal experiences, including family upbringing and the overcoming of adversity. If someone voted for Donald Trump, it does not mean that the person is racist or unintelligent. It just means that they are different from you and those differences resulted substantially from, among other things, the environment in which they evolved. As stated above, if you grew up in their shoes, your opinions and worldview might be far different from the ones you have now.

If you take offense to or discriminate against those who have different opinions, then it is you who is the enemy of diversity.

4.    Hypersensitivity

Life is difficult. It is unfair. It is unjust. People can be terribly critical and judgmental, and they are often the ones who espouse the very virtues (e.g., tolerance and acceptance) that they lack.  But not every criticism is undeserved, and not every experience of unfairness or injustice is unbearable.

Successful people have strong mindsets. They have a positive thought process. They are mentally tough. They know how to respond to adversity. They realize that your choices, not your circumstances, determine your destiny. They don’t make excuses. They focus on what they can control, and they do not get distracted by external ‘noise.’ In short, they have thick skin while simultaneously treating others with kindness and empathy.

5.    The inability to listen and the unwillingness to learn

So many people just cannot shut up.

These folks often cringe or come quite close to a nervous breakdown when they confront opinions, facts, or evidence that undermine their subjective policy predilections or expose their personal biases. The inability to listen, however, only ensures the impossibility of engaging in respectful and meaningful discourse. Having listening skills is critical to building successful professional and personal relationships, and to creating an environment of mutual respect.

So, start listening more. You might learn something.

6.    Vilifying people personally because you disagree with them politically

It’s shocking how people resort frequently to personal attacks to demean and degrade those with whom they disagree. And it’s alarming how many people embrace simplistic narratives and dichotomies such as ‘good’ or ‘bad’ or ‘right’ or ‘wrong.’ Reality is far more complex and often resides in a gray area where no one can claim a monopoly on truth. If you have even the semblance of self-awareness, a modicum of maturity, and an ounce of humility, you know that attacking someone personally based on differences in opinion reflects insensitivity and intellectual dishonesty.

For example, people who supported Justice Brett Kavanaugh’s nomination are not necessarily vile sexists. People who supported Donald Trump are not necessarily ignorant racists. People who support Alexandria Ocasio-Cortez are not necessarily socialists. Likewise, people who support affirmative action do not necessarily believe in ‘reverse discrimination,’ and people who oppose affirmative action are not necessarily racist or privileged. They are just people who think differently than you. They are no better – and no worse.

In the end, our similarities and shared values far outweigh our differences, and the failure to embrace those similarities and respect those differences is corrosive to any society that values liberty and equality.

So, the next time you’re in a faculty meeting, a board meeting, a debate at a bar, or a discussion in a classroom, be open to new perspectives. Choose to truly embrace diversity.

Shortcomings in Arguing Original Public Meaning

From questions posed at the confirmation hearings of now-Justice Ketanji Brown Jackson to the decisions at the end of the most recent Supreme Court term and the lower court decisions that soon followed, the rapid recent embrace of “original public meaning” as the metric for constitutional interpretation now dominates appellate argument. Some judges even somewhat crassly pose the question: is there an originalism argument to support your position?

Originalism’s shortcomings are apparent. James Madison, rightly recognized as the Father of the Constitution, described records of the Constitutional Convention as “defective” and “inaccurate.” Justice Robert Jackson critically explained that “[j]ust what our forefathers did envision, or would have envisioned had they foreseen modern conditions, must be divined from materials almost as enigmatic as the dreams Joseph was called upon to interpret for Pharaoh.” Judges commonly rely on a highly selective use of history that allows the invention of intent, rather than its discovery, as Professor Ronald Dworkin wrote. And, however illuminating the historical inquiry can be, even Justice Antonin Scalia, a leading advocate of this interpretative methodology, described himself as a “fainthearted originalist” in order to avoid the absurd results it could bring about.

Certainly, many underlying assumptions of the society the Framers lived in no longer undergird modern society. Just as their attitudes about gender and race, land ownership and the common good influenced their attitudes about a host of issues of constitutional dimension, modern sensibilities about these topics must look at deeper meanings to understand contemporary application. Even advances in transportation, communications, and science more generally have profound implications for constitutional understandings. And, the Constitution, written in the language of the common law, is capable of sensible application unforeseen by its progenitors. Even the most faithful originalist can only see the past through the eyes of the present.

However, the revolutionary nature and adventurism of the Constitution seems missing from the debate over originalism and its application to current issues. Ideas from the Enlightenment and idealized versions of what good government means animated the effort, even if myopic about how those ideals contradicted slavery and other institutions left unaffected. Still, those who framed the Constitution and supported its instigation publicly sought two things: a government with the energy to prove Montesquieu wrong about the viability of an extended republic by enabling an experiment in self-government across vast territory and a regime capable of respecting rights grounded in ideals of liberty, justice, and equality. They imagined continuing change toward a “more perfect union,” never believing that their efforts had achieved that goal. And they imagined continuing debates on what they had wrought. As Madison stated during the debate on the Jay Treaty in the First Congress, the Framers were not of one mind about the words of the Constitution. Instead, “whatever veneration might be entertained for the body of men who formed our Constitution, the sense of that body could never be regarded as the oracular guide in expounding our Constitution.”

Indeed, the change of attitude he and others adopted about the authority of the federal government to charter a national bank reveals that understandings can change based on arguments and experience that demonstrate greater flexibility than some thought the words portended. Notably, on the issue of a national bank, respected constitutional framers divided on its legality from the start.

We see the same indeterminacy in the affirmative action cases before the Supreme Court tomorrow. Contradicting amicus briefs by historians explain why one side or the other should prevail. The opposing parties also invoke Brown v. Board of Education, claiming it supports them and not the other side. All of it confirms that advocacy is about argument – and no side has a monopoly on any mode of interpretation.

There is a lesson to be drawn. The appellate advocate must enter the courtroom clear-eyed, aware of the outsized role that history now plays in constitutional interpretation while cognizant of its shortcomings. The advocate must address that thirst for historical support while also understanding that other tools exist to reach a result faithful to the Constitution with an equal claim to grounding in history. Anyone who tells you only a single path exists to reach the right result misunderstands the interpretative exercise.

No Laughing Matter: Pop Culture and Humor in Judicial Opinions

I recently participated in a panel discussion, organized by Scribes, titled "No Laughing Matter: Pop Culture and Humor in Judicial Opinions." You can find a recording of the event here. Present company excluded it was a distinguished panel:

• Hon. James C. Ho, United States Court of Appeals for the Fifth Circuit
• Hon. John B. Owens, United States Court of Appeals for the Ninth Circuit
• Jason P Steed, Kilpatrick Townsend
• Chad Baruch, Johnston Tobey Baruch
• And me

The discussion was moderated by Scribes president-elect, John Browning.

Despite the fact that my cats engaged in several spirited fights during the panel and my two year-old popped in twice, I had a fabulous time discussing such an important, and controversial, topic.  While I encourage you to watch the entire recording, I thought that I would touch on a few salient points from our discussion.

First, there was agreement on the fact that pop culture references, humor, and the use of narrative or storytelling are separate and distinct tools used by  judges in opinion-writing, and, as such, separate "rules" should govern their use (or in some cases discourage their use).

Second, several us of noted that judges need to be mindful of how pop culture and humor references might "age." While we all might be streaming X,Y,Z show at the present, will readers 10, 20, or 30 years later catch the reference or humor?

Third, there was also near consensus that pop culture and humor should be used sparingly and with an attention to the gravity of the issues in the case. There was also general consensus that, as one panelist put it, the use of humor or pop culture should be a means to an end and not the ultimate end.

Finally, interestingly, most of the panelists agreed that use of humor or pop culture by an attorney should be done even more sparingly.

Thank you Scribes for organizing such an outstanding discussion!

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Embracing the power of "because" in headings

Appellate judges read A LOT of briefs. Odds are that they will give yours a single careful reading. After that, they're likely to use shortcuts to remind themselves of your arguments. Different judges will rely on different sections--some like the introduction as a refresher before oral argument; some prefer the argument summary; still others will flip to the table of contents and just read the headings. All of these short forms of your argument should be honed and re-honed to make clear exactly what your asking the court to do and why.

Many headings advocate without explanation. For example:

I. The trial court erred by admitting the victim's police interview statements.

II. The trial court abused its discretion by excluding Dr. Ramsey's testimony.

III. Trial counsel performed deficiently. 

They are topical in the sense that they inform the court of what was wrong, but none of them sums up the why. To take care of this, always include the why by adding "because" (or its equivalent) and explaining. If you need more explanation to get to the salient points, add subheadings.

I. The trial court erred by admitting the victim's police interview statements because they were hearsay and met no exception. 

A. They were not present sense impressions because they were given hours after the alleged crime.

B. They were not prior inconsistent statements because they were consistent with the victim's trial testimony.

C. They were not admissions of a party opponent because a victim is not a party.

II. The trial court abused its discretion by excluding Dr. Ramsey's testimony because, as a certified pulmonologist, he was qualified to testify about events that can trigger an asthma attack like the one the defendant had. 

III. No reasonable attorney would have held back an objection to the victim's mother's bolstering testimony that her daughter was "telling the truth" about the rape. 

This second set will give the court a much better refresher about your arguments. They will also find it helpful before they even start to read, because you've given them the gist of your arguments before getting into the details. 

So embrace the power of "because"--your arguments will be clearer to you and clearer to the court. 

The Curse of Legal Knowledge

The curse of legal knowledge. Sometimes we call it advocacy bias. You've been living and breathing this issue for weeks (or longer). You know it backward and frontward. So what often happens? You forget that once you're an expert, it's really hard to remember what it was like to be a newbie.

This disconnect between lawyers who are experts in their cases--and audiences who are not--is to blame for many major writing pitfalls. Cursed with deep knowledge and insight about the issues, legal writers often fill their writing with jargon, forget to offer basic context new readers need, and generally abandon readers to piece everything together. 

Let's explore a few tools that will help you fight to reach your readers where they are looking from, instead of your vantage.  

First, define or explain terms.

If you're using a term that you aren't sure every legal reader will instantly understand, take a moment to define it. This is true for legal terms as much as it is for terms that come up in your facts. Jargon, terms of art, and frankly any long or unfamiliar word can often use a quick definition. Of course, if you can cut these esoteric in the first place, all the better. 

Here's Justice Kagan being the ever-helpful definer, breaking down some math for her readers in simpler terms: 

“That is a mouthful[]. So again, in general terms: The numerator is the number of patient days attributable to Medicare patients who are poor. The denominator is the number of patient days attributable to all Medicare patients. Divide the former by the latter to get the fraction 'expressed as a percentage.'"

Second, offer laymen recaps when helpful. 

When you've forced readers through some dense concepts or details, it's often helpful to give a quick recap that simply summarizes the complexity. This gives your readers a confirmation that they got out of the section what they should have. 

Take this snippet, penned by a federal appellate judge. Readers had just run a gauntlet of legal exposition, including lengthy explorations of two key cases. The author thought readers could use a quick recap of what they should have taken away. You can't get much better than doing some simple synthesizing so readers don't need to work so hard. 

“If we consider Maciolek and Spencer together, what emerges is a workable standard for judges and juries to evaluate: The act must warrant alarm in a reasonable person for the safety of others.” 

Here is Justice Kagan masterfully recapping the takeaway from a series of longer case expositions--with the added bonus of teeing up the key issue for readers: 

"In each [of the above cases], the Court observed that using a different method required no change in the State’s statute, but only a change in an agency’s uncodified protocols. Here, all parties agree that Georgia would have to change its statute to carry out Nance’s execution by means of a firing squad. They dispute whether that fact switches Nance’s claim to the habeas track."

Third, orient readers. 

Fresh readers usually need you to start at as high a level as you can. In your introduction and first pages of your document, that means literally "why the heck are we even here?"  When you get to specific sections, including your facts, take the same approach. 

Start by orienting readers to each situation or issue from the highest level. Then quickly guide them to what matters. 

Federal Judge Jennifer Dorsey is a pro at this high-level orientation that readers love:  Not procedural details or in-the-weeds legal standards, but the simple background of a person purchasing a home and buying insurance for it. Then the judge quickly guides us to what matters--the particular policy clause everyone's fighting over. 

When Teresa Sivil purchased her Eagle River, Alaska, home in 2014, she entered into an insurance agreement with Country Mutual Insurance Company through its Alaska broker, Melissa Izzat Insurance Agency, LLC (MIIA). That policy covered the peril of sudden and accidental water damage. When Sivil moved to Nevada three years later, she contacted an MIIA representative to remove personal-property coverage from the home policy. Allegedly without Sivil’s knowledge or consent, the representative also removed coverage for sudden and accidental water damage. When a pipe broke at Sivil’s Alaska home the following winter, she submitted the claim to Country Mutual, who quickly denied it, citing the modification of the policy to remove coverage for water damage. Sivil sues Country Mutual for breach of contract, breach of the implied covenant of good faith and fair dealing, and violations of Nevada’s unfair-claims-settlement-practices statute.

Consider the path most writers would take here. Most would have dived deep from the start, beginning with something like: 

"Defendant Country Mutual Insurance Co., moves for summary judgment on the grounds of breach of contract and lack of evidence to support bad faith claims..."

Yes, the judge's version uses some more real estate. But a paragraph of orientation will be oh-so-welcome for new readers. 

Fourth, give readers more context for key points. 

Your key points, whether in the law or the facts, can often benefit from some favorable context or priming. Tell readers why the point matters. How the point fits into the overall case or argument. In short, give readers helpful context for them to extract what they need from your main points. 

SCOTUS regular Paul Clement and his team offer a great example of context at work. Clement's team was arguing about a complex procedural issue and wanted to offer some context for why their interpretation was the better one. So before getting into the weeds, these writers offered some context for why, practically, protective notices of appeal work as they do: 

"Protective notices of appeal play an essential role in preserving appellate rights when a party seeks to appeal a district court order of uncertain appealability. In such circumstances, litigants are not forced to forgo good-faith objections to appealability in order to pursue an appeal on the merits. To the contrary, as officers of the court, would-be appellants are duty-bound to notify the appellate court of potential jurisdictional defects. The solution to this potential dilemma is straightforward: Appellants in such circumstances are advised to 'consider a protective appeal.'”

Fifth, give readers frameworks before details. 

Finally, strive to always give readers roadmaps and frameworks for all the main points you're going to deliver. Start with your introduction, but the same goes for every major section in your document.

Give readers the big-picture storyline before all the details. Give readers the key rule concepts and elements before all the authority. Offer your overall pitch for the document before all the dense sections.  

Justice Kagan often offers these frameworks in her introductions and throughout her documents. For example, in this intro to a short opinion, she offers all the major legal concepts in two paragraphs. Now when folks read the meat, they already have a simple framework of the law to help them categorize the pieces: 

"To prevail on [method of execution claim], a prisoner must identify a readily available alternative method of execution that would significantly reduce the risk of severe pain. In doing so, the prisoner is not confined to proposing a method authorized by the executing State’s law; he may instead ask for a method used in other States.

This case concerns the procedural vehicle appropriate for a prisoner’s method-of-execution claim. We have held that such a claim can go forward under 42 U. S. C. §1983, rather than in habeas, when the alternative method proposed is already authorized under state law. "

Fact statements, part II

Following up on my last post, a few more pointers on writing compelling statements of fact. 

4. Prime the pump. There are only two ways to become a great writer: (1) read good writing; (2) try to echo it until your own voice emerges. On the first, it's helpful to read good legal writing, but it's more helpful to read just good writing period. Pull out some Shakespeare, some Milton, some modern author whose prose you find compelling (I'm a big Joseph Conrad fan myself). Figure out what makes it compelling--how are the sentences structured? How did they craft a particular turn of phrase? What punctuation helped you speed up or slow down as you read? How did they draw attention to something and how did they brush something aside? And don't forget some poetry. Poets often convey a great deal of meaning with very few words. That is the work of a great appellate attorney--making things as simple as possible, but not simpler; finding simplicity on the other side of complexity (as Justice Holmes said he longed for). I know that law students read a lot, and it can be exhausting to think about picking up a book or magazine after setting down your case book. But if you enjoy the author, it's no chore. You won't win any literary awards for your legal writing, but you just may keep your reader's attention for longer and improve your odds of persuading them by being more interesting. 

For example, there's a literary technique called a zeugma in which a writer applies a modifier to two or more objects in different ways--often, to some literally and others metaphorically. For example, in To Kill a Mockingbird, Harper Lee wrote about the character Boo Radley: "Boo was our neighbor. He gave us two soap dolls, a broken watch and chain, a pair of good-luck pennies, and our lives." A colleague once echoed this technique in a very effective fact statement about a murder: "At closing time on February 15, 1994, someone robbed the Payless Shoe Source Store in West Jordan, Utah.  He took $849.73, a pair of size 10 men’s “Attack” athletic shoes with teal trim, a pair of size 10½ black “Honcho” boots with distinctive green stitching, and the life of the only employee in the store. . . ." The zeugma and the fine detail of inconsequential things really draws the reader's attention to the true loss. 

5. Slang and contractions. This one divides a lot of lawyers and judges--usually (but not always) by age. Some think that putting a contraction or bit of slang into a brief or opinion causes the bowels of the earth to shake and the majesty of the law to crumble. Others write briefs and opinions so laden with informality that the reader is left to wonder whether she is reading something of import at all.  I tend to fall between those extremes. The point of legal writing is to persuade. Persuasion often requires careful emphasis. By sprinkling your brief with calculated  informality, it can draw the reader's attention in a persuasive way. It's like cinnamon--a little bit goes a long way, but none robs the dish of flavor. Now, it must be the right case and at the right time. But I think there's a place for it, if done sparingly. And if you're uncomfortable doing it in a brief, it can at least be helpful in oral argument, which tends to be a bit looser than written advocacy. Whatever you do, do it on purpose, and you'll likely be more effective.   

6. Genre. Sometimes you are gifted with a case in which you can echo literature or media to good effect. By favorite example of this was a dissent from a denial of certiorari from Chief Justice Roberts, in which he echoed film noir: "North Philly, May 4, 2001. Officer Sean Devlin, Narcotics Strike force, was working a morning shift. Undercover surveillance. The neighborhood? Tough as a three-dollar steak. Devlin knew. Five years on the beat, nine months with the Strike Force, He’d made fifteen, twenty drug busts in the neighborhood. Devlin spotted him: a lone man on the corner. Another approached. Quick exchange of words. Cash handed over; small objects handed back. Each man then quickly on his own way. Devlin knew the guy wasn't buying bus tokens. He radioed a description and Officer Stein picked up the buyer. Sure enough: three bags of crack in the guy's pocket. Head downtown and book him. Just another day at the office.” Pennsylvania v. Dunlap (2008) cert. denial dissent.

If you are familiar with the genre, you can hear the grizzled, world-weary voiceover and see the gumshoe detective walking the mean streets of North Philly (notice: not Philadelphia). The tone doesn't keep up throughout the opinion, but it lasts long enough to make a point: the officer had probable cause to arrest. If this were made into a movie and you watched it, you wouldn't have the slightest doubt about what just went down. This opinion generated a lot of debate, but for me it was quite effective (and entertaining). 

The New World of Constitutional Appellate Advocacy

Appellate decisions may decide a dispute between opposing parties and articulate a rule of law, but they often create new issues that can flood the courts. The Supreme Court’s newly energized reliance on history and tradition, rather than balancing tests and levels of scrutiny, has opened the door to arguments that that previously had little chance of success. And, advocates, unsurprisingly, have shown no hesitation to take up the cudgel now available to them.

Take the new attacks on gun regulations. At the end of last term, in New York St. Rifle & Pistol Ass’n v. Bruen, the Supreme Court struck down New York’s 1911 law that required proper cause or special need to obtain an unrestricted gun license. It held that the Second Amendment, no less than any other constitutional right, does not require the demonstration of a special need to justify its exercise. Instead, regulations and restrictions on guns had to fit within historical traditions. Under that approach, the 6-3 majority stated in an opinion by Justice Thomas, “sensitive places,” like courthouses and polling places, might legitimately impose restrictions on carrying firearms, but the urban character of a place could not. Public safety considerations, the opinion established, do not outweigh the constitutionally recognized right.

As predictably as night follows day, other gun regulations came under attack as inconsistent with historical traditions. Courts have now struck down a variety of gun regulations. For example, in Firearms Policy Coalition, Inc. v. McCraw, a Texas law prohibited persons under twenty-one from carrying a gun off their premises except in limited situations. The district court, which stayed its decision pending appeal, held that the “Second Amendment’s text, as informed by Founding-Era history and tradition, . . . protects [18-to-20-year-olds] against this prohibition.” The court reasoned that the Second Amendment included no textual age restriction, the historical analogues that Texas produced to meet its burden to uphold the law lacked the necessary specificity, and that examples from the 19^th century failed because they were not from the founding era.

A federal law that restricted handgun purchases to those under indictment for crimes that involve at least one year of imprisonment suffered a similar fate when a federal judge found insufficient evidence that it “aligns with this Nation’s historical tradition.” In United States v. Quiroz, the court acknowledged “valid public policy and safety concerns,” but found the Bruen’s historical tradition analysis swept those aside.

In New York, a federal judge limited New York’s post-Bruen statute that attempted, among other things, to define “sensitive” or “restricted” locations” by declaring unconstitutional its application to places that lacked historical precedent. In Antonyuk v. Hochul, the court struck down restrictions that applied to summer camp, public transportation, places of entertainment or amusement where alcohol is served, Times Square, and a generally defined sensitive or restricted places.

To this list, in the past week another decision came down. In United States v. Price, a federal district court struck down the federal law that prohibits possession of a firearm with an altered, obliterated, or removed serial numbers because it lacked historical analogue. The court notes that it is “undisputed that serial numbers were not required, or even in common use, in 1791,” but came into effect only with the mass production of firearms. Even then, serial numbers became mandatory only after passage of a 1968 federal law. Those facts were determinative under Bruen’s mandatory mode of analysis.

These examples demonstrate the limited value of the type of rigid analysis adopted by the Court. Even so, an advocate pressing an issue cannot forego utilizing the Court’s new-found fondness for historical tradition when advancing arguments under other constitutional provisions. And, under that approach, settled law can become unsettled. It may even be a form of malpractice to accept precedent not based on historical conventions without making new arguments that place the advocate’s position within that accepted tradition. Welcome to the new world of constitutional appellate advocacy.

Free CLE: No Laughing Matter: Pop Culture References and Humor in Judicial Writing - October 19 at 12:00 p.m. CDT

I am participating in a Scribes CLE that might be of some interest to readers of this blog. Details below:

Webinar - No Laughing Matter: Pop Culture References and Humor in Judicial Writing - October 19 at 12:00 p.m. CDT

The ongoing debate over judicial use of humor and pop culture references is the subject of our upcoming CLE webinar, featuring distinguished jurists from the federal appellate bench, along with distinguished panelists from the legal academy and the world of appellate practice. The panel will discuss examples of the use of humor and pop culture references in opinion writing, its advantages and disadvantages, and circumstances in which it may be inappropriate. 

On October 19 at 12:00 p.m. CDT, join our distinguished panelists–U.S. Court of Appeals for the Fifth Circuit Judge James C. Ho, U.S. Court of Appeals for the Ninth Circuit Judge John B. Owens, University of Arizona College of Law Prof. Tessa L. Dysart, Georgia State University College of Law Prof. Anthony Michael Kreis, Jason P. Steed of Kilpatrick Townsend, and Chad Baruch of Johnston Tobey Baruch–in a discussion moderated by Scribes President-Elect John Browning.

Scribes is seeking 1.25 hours CLE credit in Illinois and Texas and can provide certificates of attendance for attendees seeking credit in other jurisdictions. Register here. We will record the session for later viewing as well.

Why Judicial Deference Matters Now More Than Ever

As the United States Supreme Court begins a new term, its approval among the public is alarmingly low[1]. Whether driven by the Court’s recent decision in Dobbs v. Jackson Women’s Health, the fact that the justices’ decisions often conveniently coincide with their political beliefs, or the fact that the Court’s composition, rather a principled interpretation of the Constitution, seems to determine whether a right is fundamental, there can be no doubt that the Court’s legitimacy is at stake.[2] Put simply, the Court is now viewed by many as a political institution, where constitutional meaning changes based on whether its current members are conservative or liberal.  

So how can the Court’s legitimacy remain intact and the public’s confidence in the Court be restored?

Certainly not by expanding the Court, which is liberals’ way of saying that they want to put more liberal justices on the Court to reach outcomes that they like. 

Certainly not by endorsing living constitutionalism, which basically means that the justices can manipulate or ignore the Constitution to reach decisions that comport with their subjective policy predilections.[3] Certainly not by having an on-again, off-again relationship with stare decisis, in which the Court’s adherence to precedent depends on whether a majority of the justices are Republicans or Democrats.

And certainly not by listening to the media or, worse, academics’ criticism of the Court, which is as blatantly partisan and equally unprincipled as the Court it so consistently criticizes. Indeed, and quite amazingly, some academics have complained that they now struggle to teach constitutional law, stating that they are ‘traumatized’ by the Court’s recent decisions, which they view as partisan and “results-oriented.”[4] Some have even asserted that decisions such as Dobbs “have unsettled the foundational premises of [their] professional lives,” left them “deeply shaken,” and required their “own personal grieving period” where they look to students to keep them “afloat in darker moments."[5]  

No, this is not a joke. Law professors actually made these statements.

Thankfully, Professor David Bernstein has called out this nonsense:

[T]he fact that the Court is solidly conservative, and the constitutional law professoriate overwhelmingly liberal or further left, is exactly the problem. In the past, the left could count on the Court for sporadic big victories: same-sex marriage, affirmative action, [and] abortion. Now they can't, so they have turned against the Court. We all know that left-leaning lawprofs would be dancing in the streets if SCOTUS were equally aggressive to the left. And indeed, while [Mark Joseph] Stern portrays discontent with the Court as a question of professional standards rather than ideology, he does not manage to find a single right-leaning professor to quote in his article.[6]

That’s because they are practically no conservative law professors in academia – or even the pretense of viewpoint diversity at many law schools.

In any event, how can the Court preserve its institutional legitimacy?

By embracing a more robust form of judicial deference. Put simply, the Court should not invalidate a statute unless it clearly violates a provision in the Constitution, and it should not create a right unless it is based on or reasonably inferable from the Constitution’s text. Thus, when the Constitution is ambiguous and subject to reasonably different interpretations, the Court should defer to the democratic process and not get involved. In so doing, the Court can reduce, at least to some degree, the perception that the existence of constitutional rights and the outcomes of cases depend on whether a majority of the justices are conservative or liberal.

Below are several examples of cases where the Court should have never intervened and where its intervention harmed its legitimacy.

1.    National Federation of Independent Investors v. Sebelius

In National Federation of Independent Investors, the Court addressed whether the Affordable Care Act, including the individual mandate to obtain health coverage, violated the Commerce Clause, which gives Congress the broad power to regulate commerce.[7] The answer to this question, particularly given the Clause’s broad language, is anybody’s guess, and reasonable arguments could be made in favor of and against upholding the Affordable Care Act.  What is known is that both houses of Congress passed and the president signed this legislation. So why did the Court get involved? After all, given that reasonable people could disagree on the Act’s constitutionality, why didn’t the Court simply defer to the coordinate branches and democratic process? That’s anybody’s guess too.

Unfortunately, the Court intervened, and, in a 5-4 decision (predictably divided on partisan lines), the Court upheld most of the Act’s provisions. And Chief Justice Roberts, ostensibly concerned with the Court’s legitimacy, somehow determined that the individual mandate constituted a tax, not a penalty. This reasoning was, to put it mildly, troubling. If the Court was concerned with its legitimacy, it should have never heard the case.

2.    Kennedy v. Louisiana

In Kennedy v. Louisiana, the Court addressed whether a Louisiana law that authorized the death penalty for child rape violated the Eighth Amendment’s prohibition against cruel and unusual punishment.[8] To be sure, the Eighth Amendment, among other things, was intended to prevent the infliction of unnecessary pain when punishing convicted offenders and prohibit sentences that were disproportionate to the severity of the crime. Given this backdrop, the Eighth Amendment’s text, and the Court’s precedent, did the Louisiana law violate the Eighth Amendment?

Who knows. Reasonable jurists can – and did – disagree on this question. What we do know is that Louisiana passed this law democratically.

Accordingly, why did the Court get involved and, in a predictably verbose and wishy-washy 5-4 opinion by Justice Anthony Kennedy, invalidate the law?

3.    Citizens United v. FEC and McCutcheon v. FEC

In Citizens United v. FEC, the Court held in a 5-4 decision that the First Amendment prohibited Congress from restricting independent expenditures by corporations, labor unions, and other associations.[9] And in McCutcheon v. FEC, the Court held, in another 5-4 decision, that limits on individual expenditures to federal and state candidate committees violated the First Amendment right to free speech.[10]

Did the Constitution compel this result? Of course not. The First Amendment protects, among other things, freedom of speech. But does giving money to a political candidate or committee constitute speech? And if so, is the government’s interest in ensuring that wealthy corporations and individuals do not unduly influence elections sufficiently compelling to justify a restriction on this speech? Yet again, reasonable people can disagree.

As such, why did the Court get involved and invalidate legislation that was designed to reduce undue influence by corporations and wealthy individuals in the electoral process?  

4.    Roe v. Wade

There is no need to discuss Roe in detail. Nearly all legitimate constitutional law scholars agree that Roe was a terrible decision. It had no basis in the Constitution’s text, was not inferable from any provision in the text, and was not rooted in history and tradition. Notwithstanding, in Roe, like in Griswold v. Connecticut, the Court invented an unenumerated right out of thin air, thus imposing the subjective values of nine unelected justices on an entire country.[11] And the doctrine upon which Roe was based – substantive due process – was equally as indefensible.

The Court should have never gotten involved. It should have allowed the people to decide whether, and under what circumstances, abortion should be allowed. Although the Court corrected this error in Dobbs, the decision to overrule Roe, which had been the law for nearly fifty years and was affirmed in Planned Parenthood v. Casey, was troubling. Indeed, the only thing that changed since Planned Parenthood was the Court’s composition. Notwithstanding, the fact remains that Roe was the original sin and the product of the Court’s unnecessary meddling in the democratic process.

5.    Clinton v. New York

In Clinton v. New York, the Court addressed whether the Line Item Veto Act of 1996, which authorized the president to repeal portions of statutes that had been passed by both houses of Congress (particularly spending provisions) violated the Constitution’s Presentment Clause.[12] The Clause states in pertinent part that “Every Bill which shall have passed the House of Representatives and the Senate, shall, before it become a Law, be presented to the President of the United States: If he approve he shall sign it, but if not he shall return it, with his Objections to that House in which it shall have originated, who shall enter the Objections at large on their Journal, and proceed to reconsider it.”[13]

The Line Item Veto Act, some argued, violated the Presentment Clause because it allowed the president to unilaterally and without Congress’s approval repeal specific provisions of duly enacted legislation. At the same time, however, Congress, on a bipartisan basis, passed the Line Item Veto Act to, among other things, reduce wasteful government spending. Given these facts, and considering the Presentment Clause’s broad language, was the Line Item Veto Act constitutional?

Certainly, reasonable people could disagree on this question. Thus, why not defer to the coordinate branches and to the democratic process? Unfortunately, the Court yet again intervened and, in a 6-3 decision, invalidated the Act. In so doing, it prevented Congress from addressing the problem of wasteful government spending.

6.    Shelby County v. Holder

In Shelby County v. Holder, the Court invalidated Section 4(b) of the Voting Rights Act, which includes a coverage formula that determines which states (based on a history of discrimination) must seek preclearance before enacting changes to their voting laws.[14] Importantly, in 2006 the Senate reauthorized the Act, including Section 4(b), by a unanimous vote.  

Notwithstanding, the Court decided to get involved and, by a 5-4 vote, invalidated Section 4(b). But was it clear that Section 4(b) violated any constitutional provision? No. So why did the Court get involved? Why didn’t the Court defer to the democratic process and to the Senate’s unanimous vote to reauthorize the Act? Again, it’s anybody’s guess.

***

The above cases are just a sample of those in which the Court’s intervention was unnecessary and unwarranted. Unless a statute clearly violates a provision in the Constitution’s text, the Court should defer to the democratic and political process, and it should not create a right unless it is based on or reasonably inferable from the Constitution’s text.

After all, intervening in such circumstances makes the Court appear political and undermines its legitimacy. The Court’s decision in Dobbs highlights this problem. Although the Court was technically correct to overrule Roe, that doesn’t mean that it should have done so. Why? Because the only thing that changed between Roe and Planned Parenthood v. Casey, where the Court reaffirmed Roe’s central holding, was the composition of the Court. Specifically, the Court in 2022 had more conservative members than in 1992, and its decision sent the message that the existence of constitutional rights depends on whether the Court has a majority of conservative or liberal members. It's difficult to understand how Clarence Thomas, Samuel Alito, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barret could not grasp this fact.  

To restore its legitimacy, the Court should defer more often to the coordinate branches and adhere to stare decisis on a more consistent basis. That can only happen if the Court stops invalidating laws that do not clearly violate the Constitution, refuses to create rights out of thin air, and does not reverse precedent simply because it has a majority of conservative or liberal jurists.

 

[1] See Jeffrey M. Jones, Supreme Court Trust, Job Approval at Historic Lows, (Sept. 29, 2022), available at: Supreme Court Trust, Job Approval at Historical Lows (gallup.com)

[2] No.19-1392, 597 U.S.     , available at: https://www.supremecourt.gov/opinions/21pdf/19-1392_6j37.pdf

[3] See, e.g., Neil Gorsuch, Why Originalism is the Best Approach to the Constitution (Sep. 6, 2019), available at: Why Originalism Is the Best Approach to the Constitution | Time

[4] Mark Joseph Stern, The Supreme Court is Blowing Up Law School, Too (Oct. 2, 2022), available at: Supreme Court: Inside the law school chaos caused by SCOTUS decisions. (slate.com)

[5] Id.

[6] See David Bernstein, Why Are Constitutional Law Professors Angry at the Supreme Court? (Oct. 3, 2022), available at: Why Are Constitutional Law Professors Angry at the Supreme Court? (reason.com) (emphasis added).

[7] 567 U.S. 519 (2012).

[8] 554 U.S. 407 (2008).

[9] 558 U.S. 310 (2010).

[10] 572 U.S. 183 (2014).

[11] 410 U.S. 113 (1973); 381 U.S. 479 (1965).

[12] 524 U.S. 417 (1998).

[13] U.S. Const., Art. I, Section 7.

[14] 570 U.S. 529 (2013).

When to Make a Bold Argument

Tomorrow, the Supreme Court launches into a new term that promises to be momentous. A no longer hesitant majority of the Court flexed their muscle last term to launch new approaches to constitutional law and overturn or impair venerable precedent addressing abortion, gun, and religious rights. Seeing the indisputable writing on the wall, some advocates have taken a hefty swing for the rafters on a range of other issues – and it seems likely to pay off because the court’s current membership has signaled its willingness to entertain bold requests, rather than incremental change, despite potential damage to the public’s trust in impartial justice divorced from politics. When a court signals its interests that appear to align with political ideologies, advocates should listen and act accordingly.

 In anticipation of this term, advocates have listened. A cluster of cases have arrived at the Court seeking a pure version of Justice Harlan’s phrase, color-blindness, in civil rights and applying the concept to voting, affirmative action, Native American adoption, and non-discrimination in business dealings. While discussions about the upcoming term often begin and end with the potential of Moore v. Harper to skew our democracy so that parties in power could perpetuate their control regardless of what voters choose by invoking the “independent state legislature theory,” other earth-shaking cases populate the docket as well.

Today, I want to focus on another election law case that the Court will hear this week, which has received far less notice than it deserves and demonstrates the go-bold strategies being brought to the Court. In Merrill v. Milligan, the Court returns to the Voting Rights Act to determine whether Section 2 remains a viable basis for challenging racial gerrymandering. The plaintiffs challenged Alabama’s congressional redistricting plan, which, consistent with longstanding reapportionment decisions in the state, again drew a single majority-Black district out of the state’s seven seats, even though Blacks represent a quarter of the state’s population. The plaintiffs argue that by dispersing Black voters among the other districts the legislature diluted Black voting strength and diminished their opportunity to elect candidates who would represent their concerns and interests. Plaintiffs prevailed on that theory before a three-judge court.

The court below reached its decision by relying on the Supreme Court’s decision in Thornburg v. Gingles, which requires a vote-dilution claim to show a sufficiently large and compact minority group that is politically cohesive and who suffer an inability to elect the candidate of their choice because of non-minority bloc voting. After that determination, a totality-of-the-circumstances assessment then takes place to determine if the minority voters have a lesser opportunity to elect their preferred candidate than the majority voters.

Alabama, however, has asked the Court to change the test. A major part of its proposal asks that courts require plaintiffs to establish that racial discrimination provides the only explanation for the alleged racial gerrymander. In other words, Alabama’s test would authorize states to overcome the accusation by showing that some other purpose, such as party politics, provides at least part of the rationale for the districts drawn.

Without such a test, Alabama contends that Section 2 is unconstitutional because it requires race to be considered. With similar issues raised in affirmative action and Native American adoption cases this term, the Court’s interest in reconfiguring civil rights law seems apparent. Section 5 of the Voting Rights Act, requiring preclearance of certain election law changes, was neutralized in 2013 by Shelby County v. Holder. Similar damage was previously done to Section 2 in Brnovich v. Democratic National Committee last year by reading the statutory provision narrowly.

If Alabama’s argument prevails, Merrill may mark the demise of the Voting Rights Act and vindicate the very bold approach Alabama has taken to defending its gerrymandering with a clear eye on signals sent by members of the Court. Margo Channing’s observation in All About Eve seems to sum up anticipation of this Supreme Court term: “Fasten your seatbelts; it's going to be a bumpy [and long] night.”

Establishing and Maintaining Credibility as an Appellate Advocate

A good reputation is one of the most valuable assets a lawyer can have. Establishing and maintaining credibility as an appellate advocate is especially important. In addition to generally wanting an appellate court to think well of you, credibility plays an important part in being persuasive.

Appellate advocates often appear in the same courts over and over. So, what are ways you can ensure that you have credibility with those courts?

1. Be a zealous advocate. Make a substantive effort for your client. Within the bounds of ethics and professionalism, use tools of persuasion. Use confident language and seek to minimize damage from difficult facts and cases without ignoring them.

2. Exhibit intelligence. There's no real substitute for a good, logical argument. An appellate court will think more of your future arguments when it is convinced that it can generally rely on what you say. You can establish credibility by making persuasive arguments that show strong legal researching and writing skills.

3. Follow all applicable ethics rules. This really is the minimum you can do, and you should do more. Many rules of professional responsibility seem geared toward trial practice. But some are very relevant to appellate work as well. The two most obvious rules that should be important to appellate advocates are found in Rule 3.3 of the Model Rules of Professional Conduct:

    (a) A lawyer shall not knowingly :

(1) make a false statement of fact or law or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer;

(2) fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel[.]

Although fact statements in an appellate brief can and should be subtly persuasive, they can't stretch the facts. Even if you inadvertently state a fact incorrectly, you should correct the error with the court.

Interpretations of case law that pass the "straight face" (or "smell") test also are acceptable, but misstatements of law must be corrected. And if you find a case--especially after completing a brief or oral argument--that says "you lose," you must bring that to the attention of the court.

In the end, there may be some room for interpretation of these rules (for instance, whether an unpublished opinion can constitute legal authority that is "directly adverse" to your client's position). But it's usually best to err on the side of caution.

4. Go beyond the ethics rules; be professional. Go beyond the ethics rules. Some things simply aren't covered by the rules of professional responsibility, and crafty lawyers can sometimes abuse or circumvent the rules. Don't be one of those lawyers.

5. Know when to concede points. Similar to the ethical duty to disclose adverse authority, it is important to know when the concede points. If you can do so without conceding your overall case, that's great. Within the bounds of zealous advocacy, there may also be rare occasions when you must concede your entire case. In either instance, an appellate court is going to appreciate your candor and view you as credible in future cases.

6. Follow formatting rules. Appellate courts like their rules. They have them for a reason. Negligence in following the formatting rules for briefs and other appellate filings will not score any points. And deliberately cutting corners on the rules may get you into hot water.

7. Use proper citations. Whether the appellate court to which you are writing follows the Bluebook or has its own set of citation rules, use proper citations. How can an appellate advocate who doesn't properly use one of the prime tools of the trade be trusted when it comes to substance of an argument? Avoid any reason for the court to be predisposed, consciously or subconsciously, against you.

8. Use correct spelling, grammar, and punctuation. In other words, proofread. Like incorrect citations, shoddy spelling, grammar, and punctuation indicates at best that you are sloppy (and thereby disrespectful to the court) and at worst that you are incompetent (and nothing you say should be given any credit). A good legal writing book can be helpful.

Your good reputation takes some time to cultivate. That reputation can be ruined quickly. Once you have established your credibility with an appellate court, stay vigilant to maintain it.

In Praise of the Second Edition of The Indigo Book: A Manual of Legal Citation

Most appellate practitioners understand the necessary evil of citations, and some of us even enjoy parts of The Bluebook.  On the other hand, I have concerns about Bluebook cost, frequent Bluebook revisions seemingly for the sake of revising, and allegations of law review happy hours funded by Bluebook sales.  See, e.g., Richard A. Posner, The Bluebook Blues, 120 Yale L. J. 850, 851 (2011); Bryan Garner, The Bluebook's 20th Edition Prompts Many Musings From Bryan Garner, ABA Journal (Aug. 1 2015); https://taxprof.typepad.com/taxprof_blog/2022/06/harvard-led-citation-cartel-rakes-in-millions-from-bluebook-manual-monopoly-masks-profits.html.

As I’ve mentioned in the past, California, Florida, and some other states have their own style manuals and do not follow The Bluebook.  Additional states have their own gloss on key Bluebook rules or allow use of other manuals.  Rule 28 of the Alabama Rules of Appellate Procedure, for example, tells counsel to use The Association of Legal Writing Directors Citation Manual: A Professional System of Citation (the ALWD Guide), The Bluebook, or otherwise follow the citation style of the Alabama Supreme Court. 

Happily, those of us in Bluebook jurisdictions have a wonderful alternative, now in its second edition.  The completely free, open source The Indigo Book, which one commentator described as “compatible with The Bluebook [but including] easier-to-use guides,” now has a second edition.  See generally Wendy S. Loquasto, Legal Citation:  Which Guide Should You Use and What Is the Difference?, 91 Fla. Bar J. 39, 42 (2017). 

Here is the final second edition of The Indigo Book, which parallels the twenty-first edition of The Bluebook:  https://indigobook.github.io/versions/indigobook-2.0.html.   Many thanks to Prof. Jennifer Romig of Emory University School of Law, and others, for this resource.  In sharing the second edition, Prof. Romig explained:  “The Indigo Book is a free, open-access citation manual. It is consistent with well-accepted citation practices.”  The new version also “includes enhanced and expanded state-by-state "Local Notes" in Table T3 at the back,” along with “commentary and critique” in “Indigo Inkling” boxes.  Prof. Romig thanked many in our legal writing community who helped her create this wonderful resource, especially David Ziff, and noted “Alexa Chew's work is cited twice.” 

The original Indigo Book was a light-hearted, yet serious resource, which raised important questions about monopoly, ethics, and bias.  Prof. Romig promised, “in general the [second edition] attempts to engage with ongoing conversations about citation ethics and practice, while staying true to its main function as a rule-based manual with examples.”  In my opinion, the second edition of The Indigo Book succeeds in these missions, and I urge you to share this resource with students and practitioners.  

Fact statements and points of view, part I

The fact statement is an advocate's chance to tell a story (within the bounds of the appropriate standard of review) that engages the reader and makes her more likely to see events in a way that elicits sympathy for your client's position. Though not a place for overt advocacy--connecting the dots--it is a place for subtle persuasion--laying out the dots so that the reader clearly sees the picture by connecting the dots for themselves before you do so explicitly in the argument section.

When telling a story, it matters from whose vantage point you recount it. As I read through records, I'm constantly asking myself, "from whose perspective am I going to tell this?" Third-person omniscient? From the victim's point of view? The perpetrator's? A witness? An investigator? Most briefs will include several of those, but choosing whose perspective to use and when takes judgment and skill. 

A few thoughts on how to figure this out:

1. Look for good quotes. Some witnesses are natural storytellers and just have a way of evoking mental images that engage the reader and help her visualize what happened. If you are gifted with such witness testimony, quote it liberally.

2. Develop an eye for irony. Every law school exam is chock-full of dramatic irony. Oh, B--little do you know that A already sold Blackacre to C years ago! And here you are buying it without a records search. Sad! If a witness tells a story well, you'll be able to pick out these kinds of moments and use them to engaging effect. 

An example of the first two principles from Fred Voros, a longtime appellate advocate and former judge on the Utah Court of Appeals. This was a from a case stemming from the kidnapping and abuse of a young girl. The testimony is from the victim's mother: "On May 1, 1993, defendant purchased a red or maroon 1984 Oldsmobile.  One week later, on May 8, he dropped in at a friend’s shop in Brigham City. . . . On 8 May 1993, Ashley H. was six years old and her sister Trisha was five.  At about 6:30 p.m. that Saturday evening the girls got on their bikes to go to a school near their Corinne home.  Ashley “loved to be on her bike, riding the little course she set up at the school.”

The girls’ mother, Deborah H., tried to walk down to the school to be with them, but the phone kept ringing.  Deborah finally told the last caller that she had to leave and “hung up on whoever it was.” Just then, the mother testified, “I thought I heard my daughters’ little prancing feet on the porch, but instead when I popped the door open to welcome them home, it was just [Trisha] dragging her sister’s bike up on the porch.”  Trisha was angry. She said that Ashley had fallen off her bike and then gone with a stranger.  Trisha was “very mad” because she knew “that’s not what we are supposed to do.” Trisha said the stranger took Ashley away in a red car. . . ."

The mother's testimony is almost poetic--you can almost see the movie as she describes the scenes. If you have a little girl, you know what those "little prancing feet" sound like. If you rode bikes as a kid, you know what those "little courses" by the school look like (incidentally, my friends and I had a bike course on a dirt lot set up right across the street from our elementary school). So vivid and (in hindsight) poignant.

That poignancy comes largely from dramatic irony. The reader knows--but the mother doesn't--that something is terribly wrong. And when the it begins to dawn on the mother, it has not even occurred to her younger daughter, who is mad at the wrong person (her sister) and for the wrong reason (not following a family rule). Gripping stuff.

3. Consider formulas that work. There's a reason that Law and Order has been on the air (in various incarnations) for decades and that other such shows (NCIS, CSI, true-crime documentaries) are so successful. The crime procedural formula works. The unsuspecting citizen or cop stumbles across a dead body. Cut to the investigation. Cut to the prosecution. Cut to the denouement and learn how and why the body really got there. You can echo this sort of formula in a brief to good effect. For example, using a flash-forward: start with the biggest/most important event in the case, then go back and show the reader how things got to that point. Or breaking up bits of the story (as Judge Bacharach's book talks about) into digestible chunks to aid reader attention and retention using headings and white space.

Consider this fact statement from a murder case (with record cites omitted): complete with crime-procedural formula, a couple of cliches (break in the case, raining after a murder), and headings.  

“[W]e had no known suspects, we had nothing, we just had a dead girl in the car.”

Officers Jim Spangenberg and Joshua Scharman were patrolling Salt Lake City’s west side one February afternoon.  There had recently been a “rash of Honda thefts” in Salt Lake, and in the parking lot of Poplar Grove Park was a blue Honda Accord “just parked there by itself.”  A light rain was falling, but the driver’s side window was down and the car appeared empty. It seemed like just another stolen car.  The officers stopped to take a look.

While Officer Scharman stayed in the patrol car to run the license plate, Officer Spangenberg looked for signs of tampering with the steering column. At first, Officer Spangenberg did not see anything unusual in the back seat—“a black coat, a towel, some other miscellaneous items, didn’t think too much of it.” But after giving the steering column a once over, he looked back and saw a knee poking out from under the towel.

Under the towel and coat lay the body of Tara Brennan.  She had a belt around her neck, stab wounds to her face, defensive wounds to her hands, and a “significant slash” to her neck.  The car’s interior bore signs of a desperate struggle: shoe scuff marks on the ceiling and a window; a broken rear view mirror and directional signal; and “blood throughout” the back of the car. 

Tara, a bright girl with a promising future, had a troubled past.  Though a college graduate and law student, she struggled with a crack cocaine addiction.  After failing drug treatment programs in California, she returned to Utah to get away from bad influences and get sober.    She spent the day before her murder with her mother, running errands and getting her old Honda Accord running again.  After the errands, Tara drove the car around, ostensibly to see if it still ran well after sitting in her mother’s driveway for a year.  She had about $200 with her. But when police found her body the next day, the wallet and money she had with her the day before were gone.  

Police ran down leads, collected and analyzed physical evidence, interviewed Tara’s friends and family, and re-traced Tara’s steps, all to no avail.  After all that, they had “no known suspects, [they] had nothing, [they] just had a dead girl in the car.”  

A short-lived lead

A few weeks later, crime lab analysts found Defendant’s DNA on a cigarette butt found in a cup holder in the Accord’s front seat.  Police interviewed Defendant and showed him a picture of Tara.  He “recognized her right off,” saying he had seen her near the homeless shelter.  He claimed that she approached him to buy crack cocaine, he obliged, and they smoked it together using his pipe, after which he smoked the cigarette that led police to him. He claimed that after about 45 minutes together, they parted ways and he went to the overflow shelter for the night.  The shelter log did not show Defendant checking in that night, but police “exhausted every lead [they] had,” and the case went cold for more than two years.

A break in the case

Y-STR DNA testing showed promise for a break in the case.  STR (short tandem repeat) testing had been used reliably for some time, but was usually applied to the entire strand of DNA.  Y-STR testing is “the exact same science,” but focuses only on the Y chromosome.  This focus enables analysts to identify a very small amount of male DNA that might otherwise go undetected in the presence of a large amount of female DNA. But because the Y chromosome is usually identical up and down paternal lines, Y-STR can only exclude suspects rather than affirmatively identify them.  Even so, some Y chromosome profiles, or “haplotypes,” are rarer than others.  

Police took the murder weapon and Tara’s fingernail clippings for Y-chromosome DNA testing.  On both the murder weapon and the fingernails, analysts found a male haplotype so rare that it was not even in their DNA comparison database.  It excluded 99.6% of males, but not Defendant.  

In May 2006, police interviewed Defendant again.   He again admitted to being with Tara the night she was murdered, but gave more details of his activities before and after the murder, some of which differed from his first account..."

There are many more techniques that I will lay out in future posts. Stay tuned!