Appellate Advocacy Blog

An Analysis of the Charges Against Derek Chauvin

George Floyd’s death, which was captured on video, is difficult to watch and, quite frankly, disturbing. In that video, former Minneapolis police officer Derek Chauvin kneeled on Floyd’s neck for over nine minutes, including several minutes after which Floyd had lost consciousness.  Floyd’s death sparked protests (and, in some areas, riots) throughout the country for many months and, over the last three weeks, Chauvin has stood trial for Floyd’s murder in Minneapolis. Both the prosecution and defense are expected to deliver closing arguments tomorrow and the jury may begin deliberating as soon as Tuesday.

When deliberations begin, the jury will consider the following three charges against Chauvin: (1) second-degree unintentional murder (felony murder); (2) second-degree manslaughter; and (3) third-degree murder.  Second-degree unintentional murder, which carries a prison sentence of up to forty years, applies to a defendant who “causes the death of a human being, without intent to effect the death of any person, while committing or attempting to commit a felony offense other than criminal sexual conduct in the first or second-degree with force or violence or a drive-by shooting.”[1] Under Minnesota law, the underlying felony must pose a “special danger to human life,” thus requiring at least some risk of death. Second-degree manslaughter applies where an individual’s death results from “the person’s culpable negligence whereby the person creates an unreasonable risk, and consciously takes chances of causing death or great bodily harm to another.”[2] Third-degree murder applies to individuals who “without intent to effect the death of any person, cause the death of another by perpetrating an act eminently dangerous to others and evincing a depraved mind, without regard for human life.”[3]

Determining which, if any, charge will result in a conviction is difficult to predict. During the trial, the prosecution, led by Minnesota Attorney General Keith Ellison, presented thirty-eight witnesses. This included testimony from Minneapolis Police Chief Medaria Arradondo, who stated that Chauvin’s decision to kneel on Floyd’s neck was not an approved police technique and that Chauvin should have ceased kneeling on Floyd’s neck when he longer presented a threat to the officers (the evidence shows that Chauvin continued restraining Floyd for approximately three minutes after Floyd was unconscious). Additionally, the prosecution presented numerous medical experts who testified that hypoxia, which is a low level of oxygen that leads to asphyxia, caused Floyd’s death, and that the asphyxia resulted from Chauvin kneeling on Floyd’s neck for over nine minutes.

The defense, led by attorney Eric Nelson, argued that Floyd’s death was caused by a combination of factors unrelated to Chauvin’s actions, such as drug use and heart disease. For example, the toxicology report revealed that Floyd had ingested a potentially lethal amount of Fentanyl, and that Floyd had methamphetamine and THC in his system. Additionally, Floyd had atherosclerosis and hypertensive heart disease. The defense’s expert, Dr. David Fowler, concluded that these conditions, coupled with the drugs Floyd ingested and his inhalation of carbon monoxide from the squad car, collectively caused his death.  The defense also presented a use-of-force witness who testified that, under the circumstances, Chauvin did not use excessive force.

It is difficult to predict whether the jury will convict Chauvin and, if so, what charge will most likely result in a conviction. The prosecution’s witnesses, particularly Minneapolis Police Chief Medaria Arradondo and Dr. Martin Tobin, were quite compelling. Defense attorney Eric Nelson, however, effectively cross-examined several witnesses and focused extensively on drugs and heart disease as the causes of death.

Arguably, the causation issue will most likely consume much of the jury’s deliberations and will require a determination of whether Chauvin’s actions – or drugs and heart disease – caused Floyd’s death.  Indeed, given the amount of Fentanyl in Floyd’s system and his underlying cardiovascular conditions, it may be difficult for jurors to conclude beyond a reasonable doubt that Chauvin caused Floyd’s death. Importantly, however, the prosecution need only show that Chauvin’s actions were a contributing cause of Floyd’s death, which renders a conviction more likely.

Ultimately, considering the arguments, testimony, and evidence, it seems that, if the jury does convict Chauvin, it will likely be for second-degree manslaughter. A conviction on the third-degree murder charge is implausible because Chauvin’s actions, although reprehensible, did not threaten to harm multiple persons or “others” as the statute requires. Also, a conviction on the second-degree unintentional murder charge seems less likely (although possible) because the felony murder statute has rarely, if ever, been applied to law enforcement officers in the context of restraining a suspect. This is particularly true concerning a suspect who is resisting arrest because, at least for a portion of the time, the restraint used is arguably justified. In addition, given that Chauvin was unaware of the level of Fentanyl in Floyd’s system or of his preexisting heart conditions, it may be difficult to demonstrate that Chauvin intended to inflict bodily harm on Floyd or that he knew his actions were likely to result in such harm. However, a conviction on second-degree manslaughter is arguably justified because Chauvin was culpably negligent by kneeling on Floyd’s neck for minutes after Floyd was unconscious and thus no longer presented a threat to the officers. Indeed, Chauvin’s failure to stop kneeling on Floyd’s neck despite his lack of consciousness cannot be justified.

If the jury returns an acquittal, it will almost certainly result from a belief that, although Chauvin’s actions were appalling and entirely unnecessary, they did not cause Floyd’s death. This is certainly a possibility and will depend on the jury’s assessment of the experts’ credibility and of the relevant medical reports.

Also, if the jury returns a guilty verdict, defense attorney Eric Nelson (or whomever Chauvin retains) will almost certainly appeal. Specifically, Nelson will likely argue, among other things, that Judge Peter Cahill’s refusal to change the venue for the trial deprived Chauvin of the right to a fair trial. And if the jury returns a guilty verdict on the third-degree murder charge, it may be overturned on appeal because Chauvin’s actions, however deplorable, did not threaten harm to multiple people.

Regardless, George Floyd’s death was a tragedy. The video of his death is appalling. Whatever the jury’s verdict, this incident will hopefully lead to reforms in how police are trained in the use of force and de-escalation techniques, such that an incident like this never occurs again.

 

[1] Minn. Stat. 609.19(1).

[2] Minn. Stat. 609.205(1).

[3] Minn. Stat. 609.195.

Lawyer Who Protested Trial Court’s Interlocutory Ruling, Instead of Filing a Writ or Waiting for Appeal, Agrees to Public Reprimand & Judge’s “Bart Simpson” Punishment

On April 9, 2021, the Board of Professional Conduct of the Ohio Supreme Court recommended the court accept an attorney’s agreement to a public reprimand.  See Order (Apr. 9, 2021) http://supremecourt.ohio.gov/pdf_viewer/pdf_viewer.aspx?pdf=901849.pdf.  As Debra Cassens Weiss explained for the ABA Journal, the attorney, Anthony Baker, also agreed the trial judge’s “well-publicized and unusual punishment” was proper.  Debra Cassens Weiss, Lawyer deserves reprimand for courtroom protest that led to 'Bart Simpson-esque' punishment, ethics board says ABA Journal (Apr. 14, 2021).    

Baker represented a criminal defendant in the Cuyahoga County, Ohio Court of Common Pleas, before Judge Nancy Fuerst.  See https://www.cleveland.com/court-justice/2020/02/judge-doles-out-bart-simpson-esque-punishment-to-lawyer-held-in-contempt-for-acting-out-at-trial-in-cleveland.html.  The state charged defendant with felonious assault and domestic violence, and Baker filed a timely notice of defendant’s intent to rely on a claim of self-defense.  Order at 1-2.  The parties tried the case to a jury, and at the close of evidence, Baker requested a self-defense jury instruction.  After hearing argument from counsel, Judge Fuerst denied the jury instruction request.  Id. at 2.

Baker then staged what the parties before the Board called a “protest,” making “repeated efforts to stop the trial from proceeding.”  Id.; Weiss, ABA Journal at 2.  Judge Fuerst ordered Baker “to sit at the defense table and be quiet,” but while the judge was instructing the jury, “Baker left the defense table and stood behind a television stand.”  Order at 2.  Baker admitted to the Board:  “’I moved away from the table so it was clear I'm not participating.’"  Id.  Judge Fuerst then dismissed the jury for a lunch break and documented Baker’s conduct for the record.  When trial resumed, the jury returned a guilty verdict for the lesser offense of aggravated assault and domestic violence, and defendant appealed.  Id.    

In a February, 2021 post-trial proceeding, the judge found Baker guilty of contempt and fined him $500.  Judge Fuerst also ordered what Cleveland.com called a “Bart Simpson-esque dose of punishment” by requiring Baker to hand-write 25 times each:

• I will not engage in conduct that is prejudicial to the administration of justice or in any other conduct that adversely reflects on my fitness to practice law.

• I shall not engage in conduct intended to disrupt a tribunal or engage in undignified or discourteous conduct that is degrading to a tribunal.

Baker immediately complied with Judge Fuerst's order and paid the $500 fine.  In fact, Cleveland.com published photos of Baker sitting at counsel table and writing out his Bart Simpson-style phrases as well as the first page of his phrases. 

Baker also “admitted to the inappropriate nature of his conduct and to deserving the contempt citation.”  Order at 3.  Baker told the ABA Journal he was “’discourteous,’ and that ‘the judge was right in the discipline she gave.’”  Weiss, ABA Journal at 2.  “’As I’ve maintained throughout, what I did in the courtroom was not justified,’” Baker told the ABA Journal.  But Baker also explained he “didn’t engage in any kind of outbursts, and the judge noted that [his] protest did not create a circus atmosphere.”  Id. 

Based on media reports of the sanctions, the Cleveland Metropolitan Bar Association, as Relator, initiated a proceeding against Baker with the Ohio Supreme Court.  Id.  Baker and the Bar Association agreed to an additional sanction of a public reprimand, noting Baker immediately complied with the trial court’s sanctions order and admitted to the inappropriate nature of his conduct.  An ethics hearing panel accepted the public reprimand after finding additional mitigating factors, including the “highly public nature” of the contempt proceedings against Baker, the lack of prior discipline against him, and his cooperative attitude in the ethics proceedings.  Order at 3.   

Judge Fuerst’s punishments—and the Ohio bar sanction—seem to have succeeded where Bart Simpson’s teacher’s punishment failed.  Nonetheless, the real answer here was a properly-perfected appeal, or an interlocutory device like a writ (in jurisdictions allowing writs).  As Baker’s client’s appeal proceeds, it will be interesting to see if the appeals court finds the failure to instruct on self-defense as troubling as Baker did. 

Yes, Persuasive Writing Skills Can Help You in Real Life

I "won" a major appeal this week.  It wasn't in the courtroom, and it wasn't exactly a victory.  Rather, after about two months of back and forth, my employer directed my health insurance company to cover two months of my daughter's specialized amino-acid formula. This "victory" came after I wrote, to paraphrase the representative for the insurance company, a "really good appeal." I laughed when he said this and replied, "Well, my job is to teach law students to write persuasive appeals."  But, in reality, as I sat down late one night to write the appeal, I did think about principles I taught my students.  I wanted to share that here, but first a little backstory.

Both of my kids have needed to be on amino-acid based infant formula for a milk/soy protein intolerance. The formula is very expensive--a small can costs over $40 and lasts us less than 3 days (assuming no waste).  The formula is also hard to find--it isn't available in most stores, although some Walgreens carry it.  We have had it delivered through a medical supply company. My husband and I are both state employees, and we have the choice of two companies for health insurance. For several years we were on one company, and they covered the formula for both kids with no problem. This year we had to switch companies due to a major restructuring of the state plans.  Our kids see several specialists, and the new insurance company covered them better. 

Of course, I didn't even think about the formula in making the switch. Well, the new company decided to not cover it. Among its many arguments were: (1) the formula is a plan exclusion and (2) it is standard infant formula and over the counter. We appealed the denial, and after claiming for about a week that they didn't receive the appeal and then initially refusing to expediate the appeal (I mean, it isn't like its her FOOD or anything), they finally denied the appeal.  I got the appeal letter right around 5pm on Wednesday night, and I was livid when I read it. The letter said that I could appeal the appeal, and provided a fax number for me to send it to.  I wanted to sit down immediately and type a multi-page diatribe against the company, but cooler heads prevailed (or rather, I needed to get the kids to bed before I had time to type).

When I finally had time to type, I kept three key principles that I teach my students in mind: (1) Lead from strength, (2) Be clear and organized, (3) Use strong persuasion not abusive language.

(1) Lead from strength--My best argument on appeal was that the insurance company in its denial letter misstated my daughter's diagnosis.  The letter didn't list her milk protein intolerance, which was odd, since that is the diagnosis that requires her to have her formula.  So, my first point in the appeal pointed to that misdiagnosis. I provided copies of her medical records stating her correct diagnosis, and I carefully listed her diagnoses in the letter, pointing out the incorrect language that the insurance company used.  Similarly, in writing an appeal, start with your strongest argument, unless there is a threshold issue that you need to address like standing or jurisdiction. You want to put your best argument first, since that is your best opportunity to draw your reader (the judge!) in.  Likewise, be sure to set out your affirmative argument first. Don't come out as too reactionary to either the adverse decision below or your opponent's brief. Of course you need to rebut some arguments, but set out your affirmative case first--showing how the law is in your place.

(2) Be clear and organized--I divided my appeal into three main arguments--the misdiagnosis, the mischaracterization of the formula as standard infant formula, and the failure to explain the plan exclusions.  I set out these three points in my introductory paragraph and then used headings to set apart each argument. It was easy for the reader to follow.  Likewise, clarity and organization are critical in an appellate brief.  If there is one thing that judges almost universally agree upon it is that briefs are too long. Clarity and organization can keep the length of your brief on track, for example by avoiding unnecessary repetition. It can also help a judge follow your argument.  I always tell my students that your point headings should serve as an outline for your brief.

(3) Use strong persuasion not abusive language--I will be honest. I struggled with this point. I used stronger language than I would recommend in a brief, but I also toned down some of my writing as I went along as I thought about this principle. My most strident language was calling their characterization of the formula as "over-the-counter" as "simply false."  By the time I had written the appeal, I had also written several emails to the appeals unit, and some of those were a little harsh. I was frustrated at the amount of time I was spending on the matter and the specious arguments being raised by the insurance company. I also was annoyed because I felt that the company was just trying to delay until my daughter turned one and she could try a milk substitute. Finally, I was frustrated for all the parents of kids who have had to deal with this issue and who might not be lawyers or feel comfortable with the appeals process. These parents might also truly not be able to afford $500-$1000 a month on formula (on top of all the specialist doctor visits). My frustration definitely leaked into my written letters and emails. BUT, in general, you should not take cheap (or expensive) shots at the judge below or opposing counsel in your appellate briefs.  Be persuasive, but don't call names. Sure, you can show how the judge made a legal error or how opposing counsel's case is inapposite, but you don't need to call them liars, lazy, manipulative, or state that they "ignored the law."  Furthermore, rather than saying the law "clearly" supports you, focus on showing how the law clearly supports you.  Strong persuasion is always better than strong words.

I hope that these little tips help you in whatever type of appeal that you are writing.

Is Georgia’s New Voter Identification Law “Jim Crow on Steroids?”

Recently, Georgia Governor Brian Kemp signed legislation that substantially revised Georgia’s election laws. As discussed in more detail below, the law, among other things, requires voters to present a valid state identification when voting in person (similar requirements apply to mail-in ballots), limits the number and location of drop boxes for mail-in ballots, reduces the time for requesting such ballots, and expands early voting in most of Georgia’s counties.[1]

Almost immediately, critics claimed that Georgia’s law was racist.[2] Such critics claimed, for example, that the law will suppress voter turnout and limit access to voting through provisions that will disproportionately impact people of color and various marginalized communities. The result, critics argued, would benefit the Republican party and diminish the voices of Georgia’s increasingly diverse electorate.

Additionally, Major League Baseball joined the chorus of critics in condemning the law as racist and decided to move its annual All-Star Game from Atlanta, even though doing so will likely have a deleterious impact on Atlanta’s minority-owned businesses. Likewise, Delta Airlines, United Airlines, and Coca-Cola criticized the law, with Delta Airlines CEO Ed Bastian stating that the law is “unacceptable and does not match Delta’s values.”[3]

And President Joe Biden stated that Georgia’s voter identification law was “Jim Crow on steroids.”[4]

But is the law racist? Is the law really “Jim Crow on steroids?” A brief analysis of the relevant provisions of Georgia’s law suggests that the answer is a resounding no.

First, the law requires individuals to present a valid state-issued ID when voting in person. For individuals voting by mail, the law requires individuals to submit a valid driver’s license or state identification number, or provide the last four digits of their social security number.[5] Importantly, the Georgia Department of Driver’s Services and county registrar’s offices issue state ID cards at no cost to voters.[6] Given that a valid ID is required, for example, to pick up tickets at an Atlanta Braves game or to board a Delta Airlines flight, it seems rather sensible to require one before voting.

Second, the law expands early voting in most Georgia counties. Specifically, counties must designate at least two Saturdays in which to conduct early voting; counties also have the authority to offer early voting on Sundays.[7] Indeed, because this portion of the bill increases early voting – as Georgia’s previous law only required one Saturday of early voting – it appears that this provision is the antithesis of racist.

Third, Georgia’s law requires one drop box per county (and only one drop box per 100,000 voters). In so doing, the law reduces the number of drop boxes, and limits the locations where, and times in which, they can be accessed.[8] The rationale for this reduction is likely because the coronavirus pandemic, particularly due to current vaccination efforts, is nearing an end and thus does not justify the number of drop boxes made available for the 2020 election.

Fourth, the law bans giving food or water to voters who are waiting in line at the polls, ostensibly to prevent groups from campaigning to voters before they enter the ballot box.[9] However, the law permits poll workers to create self-service areas where voters can hydrate.[10] And, of course, voters are not prohibited from making the sensible decision to purchase water and food before arriving at their designated precinct. Although this provision seems rather unnecessary, there is simply no basis to conclude that it is racist.

Fifth, voters are required to request absentee ballots and must do so within approximately two-and-a-half months (seventy-eight days) of an election.[11] Again, the racist aspect of this provision is not immediately apparent.

Sixth, and in what is perhaps the most problematic (although not racist) provision in the law, the secretary of state will no longer chair the state election board. Instead, the General Assembly will elect the chair and board members, which gives Republicans in the state an unnecessary degree of power in controlling how elections are conducted and how the results are processed.[12]

The law also includes provisions striving to report election results more quickly by allowing counties to begin processing absentee ballots fifteen days before election day, and establishes a hotline that voters can call to report voter intimidation or illegal activity. [13]

Consequently, given that a state-issued ID in Georgia is free, that early voting is expanded, and that little, if any, evidence suggests that any of these provisions will suppress voter turnout,[14] can Georgia’s new law properly be characterized as “Jim Crow on steroids?” Of course not. The assertion is ridiculous on its face – just about as ridiculous as harming minority-owned businesses by removing the All-Star Game from Atlanta.[15]

Importantly, empirical evidence does suggest that voter ID laws are not effective in preventing voter fraud and that instances of voter fraud are relatively rare. However, voter ID laws can increase the perception that elections are being conducted honestly and with integrity, which will enhance public confidence in our electoral and democratic process. Perhaps that is why most states have enacted such laws. To be sure, voter ID laws in states that are the darkest shade of blue, such as New Jersey, New York, and Delaware – President Biden’s home state – are similar to, if not more restrictive than, Georgia’s new law.  In short, Georgia’s law isn’t racist. It’s not “Jim Crow on steroids.”

Ultimately, racism is despicable. Racists should be universally condemned. And efforts to increase access to the polls for marginalized groups, and conduct free and fair elections, is a legal and moral imperative. But neither of these objectives is accomplished when leaders make irresponsible and factually inaccurate statements regarding voter ID laws, and causally make allegations of racism. Doing so only serves to further divide an already divided society and promote misinformation campaigns that are anathema to a healthy democracy.

 

[1] See, e.g., Adam Brewster, What Georgia’s New Voting Law Really Does – 9 Facts (April 7, 2021), available at: What Georgia's new voting law really does — 9 facts - CBS News

[2] See, e.g., Ben Nadler and Jeff Amy, Georgia’s New GOP Election Law Draws Criticism, Lawsuits (March 29, 2021), available at: Georgia's new GOP election law draws criticism, lawsuits (apnews.com)

[3] See, e.g., Natasha Dailey, Coca Cola, Delta, United, and 7 Other Companies Blast Georgia’s New Voting Law In a Wave of Corporate Backlash (April 5, 2021), available at: Coca-Cola, Delta, Others Speak Out Against Georgia Voting Law (businessinsider.com)

[4] Gabe Kaminsky, Biden’s ‘Jim Crow’ Label for Georgia’s Election Laws is Insane – Here’s Why (April 9, 2021), available at: Biden's 'Jim Crow' Label For Georgia Election Laws Is Insane. Here's Why (thefederalist.com)

[5] See Brewster, supra note 1, available at: What Georgia's new voting law really does — 9 facts - CBS News

[6] See id.

[7] See id.

[8] See id.

[9] See id.

[10] See id.

[11] See id.

[12] See id.

[13] See id.

[14] See e.g., German Lopes, A New Study Finds Voter ID Laws Don’t’ Reduce Voter Fraud – Or Voter Turnout (Feb. 21, 2019), available at: Study: voter ID laws don’t reduce voter fraud — or voter turnout - Vox

[15] See, e.g., Katie Daviscourt, MLB’s Decision to Pull All Star Game from Atlanta ‘Crushing’ for Small Businesses (April 7, 2021), available at: MLB's decision to pull All Star Game from Atlanta 'crushing' for small businesses | The Post Millennial

“This is Not Proper Appellate Advocacy”: Third Circuit Slaps Sanctions on Attorney Who Copied and Pasted Trial Court Briefs

This is a guest post by Philip Hall. Philip is a current 3L at Pennsylvania State University’s Dickinson School of Law.  After law school, Philip will be a civil litigator at the law firm of Knox McLaughlin Gornall & Sennett, P.C. in Erie, Pennsylvania.

A week and a half ago, the Third Circuit issued an unmistakable warning: meritless “copy-and-paste appeal[s]” have consequences. 

The case was Conboy v. United States Small Business Administration, and appellants’ counsel was a repeat violator of federal procedural and ethical rules.  On appeal of the district court’s summary judgment, appellants’ counsel filed briefs containing numerous procedural misstatements.  Counsel wrote in the present tense—stating, for example, that “[t]he district court has subject-matter jurisdiction” and that “summary judgment should be denied”—as if he were still arguing to the district court.  And nowhere in counsel’s fifteen pages of argument did he mention how the district court erred. 

The Third Circuit was not fooled.  “Counsel for [appellants] simply took the summary judgment section of his District Court brief and copied and pasted it into his appellate brief. . . .  This is not proper appellate advocacy,” the court said. 

Appellees filed a motion for frivolous-appeal damages under Federal Rule of Appellate Procedure 38.  Unrepentant, appellants’ counsel copied and pasted again, this time from his previous opposition to sanctions in the district court under Civil Rules 11 and 37. 

The Third Circuit sanctioned appellants’ counsel, ordering him to pay appellees’ Rule 38 damages personally.  “[D]espite many cues” from the district court “that [appellants’] cause was wholly meritless,” appellants’ counsel “filed a copy-and-paste appeal without bothering to explain what the District Court did wrong.  It is hard to imagine a clearer case for Rule 38 damages,” the court said. 

This case offers several important reminders.  First, attorneys have an ethical and procedural obligation to research the law and to determine if a claim on appeal is frivolous.  Second, attorneys owe their clients an ethical duty of competent representation, which includes thorough preparation and the “use of methods and procedures meeting the standards of competent practitioners.”  And third, attorneys shouldn’t dream that they can slip one past an appellate court.

Revisiting Defamation Law in the Social Media and Online Blogging Era

Social media and online blogging have created extraordinary opportunities for individuals and groups to publicly disseminate information, participate in public policy debates, and contribute to the marketplace of ideas. Indeed, social media and online blogging certainly have benefits, such as providing individuals with platforms to connect with others, give commentary on political issues, and offer additional and alternative sources of information.

But social media and online blogging also have drawbacks.

For example, social media has been used – and continues to be used – as a vehicle by which to disseminate false or misleading information regarding, among other things, current political issues. As a source of misinformation in some instances, particularly during federal and state elections, social media has the potential to unduly influence voters and thereby indirectly affect election outcomes. Additionally, social media and online blogging have been used to disseminate false commentary about individuals and groups. To be sure, some social media users and online bloggers – using anonymity as a shield – have attacked individuals with deeply offensive insults and scurrilous attacks that contribute nothing to public discourse, and that cause severe and irreparable reputational harm.

Given the proliferation of such offensive and often harmful statements, the question arises whether defamation law provides a remedy to individuals who are the target of such commentary. The answer, in most instances, is no. And that is a problem.

Current defamation law suffers from a significant flaw. Statements that are deemed pure opinions, regardless of the harm they cause, cannot be considered defamatory.[1] This limitation makes it impossible to obtain a remedy for statements that cause substantial, and sometimes irreversible, reputational harm.

By way of background, defamation consists of libel and slander, and is divided into two categories: defamation per se and defamation per quod. Defamation per se is reserved for a relatively narrow category of statements that are considered so inherently defamatory that they are presumed to cause reputational harm. Typically, defamation per se is limited to statements negatively affecting a person’s reputation relating to his or her business or profession, falsely claiming that a person has been convicted of a crime of moral turpitude, has a sexually transmitted disease, or is unchaste. Defamation per quod applies to all other allegedly defamatory statements and requires a claimant to demonstrate that a statement was: (1) published to a third party; (2) provably false; (3) likely to subject the claimant to embarrassment, scorn, and ridicule in the community; (4) negligently made; and (5) caused damages to the claimant’s reputation.

Importantly, however, if a statement is considered a pure opinion rather than a provably false fact, it cannot be defamatory. In Milkovich v. Lorain Journal Co., the United States Supreme Court explained that “under the First Amendment there is no such thing as a false idea … [h]owever pernicious an opinion may seem, we depend for its correction not on the conscience of judges and juries but on the competition of other ideas.”[2] As stated above, this aspect of defamation law makes it impossible to succeed in a defamation action and leaves individuals who suffer severe and often irreparable harm without a legal remedy. That is wrong. Pure opinions should not be categorically exempted from defamation law.

The fact that a statement reflects a speaker’s opinion does not mean that it is not or cannot be defamatory. Opinions can – and do – cause severe reputational harm. In Milkovich and other cases, the Court has acknowledged this fact, holding that opinions that imply underlying facts can be defamatory. Apart from the inherent difficulty of distinguishing pure opinions from opinions that imply underlying false facts, the Court missed the point. Pure opinions can be defamatory, and claimants should be entitled to have a jury decide if they are defamatory.

After all, readers arguably do not distinguish between pure opinions and provably false facts or condition their judgment of a person on whether a statement constitutes an opinion or a provably false fact. As one commentator explains:

Although people are in a position to judge for themselves whether an opinion is justified so long as the alleged facts utilized as a basis for the opinion are proven to be true and are available to them, most, if not all, people are often influenced by others, especially by the press and the media, in formulating their opinions. The reader of a book or an article may have difficulty in assimilating all the facts set forth as the basis for an opinion; as a result, the reader is apt to be more influenced by the opinion than the facts set forth to justify it.[3]

Put simply, the "view that damage to reputation may be minimized by the recipients' ability to judge the soundness of the opinion is naïve … defamatory deductive opinions may be just as damaging to reputation as other defamatory facts."[4] For example:

[C]onsider a hypothetical assertion in an editorial about John Doe, a candidate for city attorney: ‘In my opinion, John Doe is an incompetent lawyer because he was accepted into law school under an affirmative action program and would not have been admitted under the school's standards for whites.’ Even if the premises of this statement are true, a false assertion that Doe is an incompetent lawyer can be very damaging, causing readers to make judgments based on false premises. In part this pure deductive opinion may be persuasive because readers are ill informed; some may assume that the writer is correct that only those who entered law school under the standards applied to ‘whites’ can be competent lawyers.[5]

Of course, some would argue that the First Amendment protects offensive and distasteful speech. Thus, holding individuals liable for such speech would compromise core First Amendment protections by, among other things, chilling speech and inhibiting a true marketplace of ideas. This argument fails to recognize that defamatory opinion "does not advance free speech values … because it is not the type of public discourse that contributes to intelligent decision making or promotes a multicultural society that is both dynamic and durable."[6] Furthermore, the requirement that a claimant demonstrate tangible reputational harm (not merely emotional distress) inherently limits the extent to which opinions will be considered defamatory. To be sure, the problem is not solved by holding that opinions that implying underlying facts can be defamatory. How can courts distinguish between such opinions and pure opinions? There are simply no standards to make this distinction reliably and consistently, and doing so ignores the fact that pure opinions can – and do – cause reputation harm.

For example, imagine a situation where someone states that another person is a “self-serving fraud,” “Nazi war criminal,” or “Charles Manson wannabe.”[7] The courts held that each of these statements constituted pure opinion and, as such, could not be deemed defamatory. Admittedly, depending on the context, such statements may not be defamatory. But to state that they can never be defamatory, regardless of the harm they cause, and simply because they are pure opinion, makes no sense. If a claimant can demonstrate that a pure opinion caused tangible reputational harm (e.g., economic harm), that claimant should have a legal remedy.

In an era where social media and online blogging are replete with slurs, insults, and degrading comments directed at individuals and groups, the law should not categorically shield such statements from legal liability because they are “pure opinions.” Instead, courts should recognize that pure opinions can – and often do – cause substantial and irreversible harm.

 

[1] Milkovich v. Lorain Journal Co., 497 U.S. 1 (1990); see also Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974).

[2] Milkovich, 497 U.S. at 18 (internal citation omitted).

[3] Kathryn Dix Sowle, A Matter of Opinion: Milkovich Four Years Later, 3 Wm. & Mary Bill of Rights J. 467, 495 (1994).

[4] Id. at 575-576.

[5] Id. at 579.

[6] Id.

[7] Nicosia v. De Rooy, 72 F. Supp. 2d 1093 (N.D. Cal. 1999); Koch v. Goldway, 817 F.2d 507 (9th Cir. 1987); Crowe v. Cnty. of San Diego, 593 F.3d 841 (9th Cir. 2010).

Appellate Advocacy Blog Weekly Roundup Sunday, March 28, 2021

Each week, the Appellate Advocacy Blog Weekly Roundup presents a few tidbits of news and Twitter posts from the past week concerning appellate advocacy. As always, if you see something during the week that you think we should be sure to include, feel free to send a quick note to either (1) Dan Real at DReal@Creighton.edu or on Twitter @Daniel_L_Real or (2) Catharine Du Bois at DuBoisLegalWriting@gmail.com or on Twitter @CLDLegalWriting.

US Supreme Court Opinions and News

• The Supreme Court ruled that victims of police shooting may pursue a claim for excessive force under the Fourth Amendment even if the victim is not actually detained at the time of the shooting. The Court held that a “seizure”  occurs the " instant that the bullets str[ike] [the victim]," explaining that “[t]he application of physical force to the body of a person with intent to restrain is a seizure, even if the force does not succeed in subduing the person.” See the order and reports from The New York Times, Reuters, and the Associated Press. 

• The Justices met live for the first time since the pandemic shutdowns, which began over a year ago.  See reports from NBCNews and Bloomberg.

State Appellate Court Opinions and News

• Interpreting Minnesota law, the Minnesota Supreme Court found a victim of rape in Minnesota cannot claim to have been mentally incapacitated and thus unable to consent if she voluntarily consumed alcohol. The court granted a new trial to a man previously convicted of assaulting an intoxicated woman. The Minnesota statute defines “mentally incapacitated” as when “a person under the influence of alcohol, a narcotic, anesthetic, or any other substance, administered to that person without the person’s agreement, lacks the judgment to give a reasoned consent to sexual contact or sexual penetration.” (emphasis supplied.) The court considered whether “administered to that person without the person’s agreement” applied to all items on the list, including alcohol, and found that it did. The court deferred to the legislature saying: “[i}f the Legislature intended for the definition of mentally incapacitated to include voluntarily intoxicated persons, ‘it is the Legislature’s prerogative to reexamine the . . . statute and amend it accordingly.’” See the order here and reports from The Minneapolis Star Tribune and CBSNews.

• The California Supreme Court has reformed the CA cash bail system ruling that “[t]he common practice of conditioning freedom solely on whether an arrestee can afford bail is unconstitutional.” The ruling identifies other means of monitoring that can meet the goals of cash bail, including for example, electronic monitoring, mandatory check-ins, or stays at community housing facilities, and holds that “where a financial condition is nonetheless necessary, the court must consider the arrestee’s ability to pay the stated amount of bail—and may not effectively detain the arrestee ‘solely because’ the arrestee ‘lacked the resources’ to post bail.” See the order here and reports from The Associate Press, The Los Angeles Times, and The Courthouse News.

Certainty vs. Exigency: The Role of Modern Police Officers in Lange v. California

    When the Supreme Court recently heard arguments in Lange v. California, Justices were forced to consider how a police officer should react to emergencies in the field—perhaps their primary role in modern policing. The case concerns the arrest of Arthur Lange, who was convicted of driving under the influence of alcohol in Sonoma, California.[1] Lange was driving home while playing loud musing with his windows down and occasionally honking his horn; a California highway patrol officer followed him into his neighborhood.[2] Though the officer turned on his lights as Lange approached his driveway, Lange did not see him, pulled into the garage, and closed the door.[3] The officer used his foot to block the garage door from closing, and when it reopened the officer entered the garage, smelled alcohol, and arrested Lange.[4] Lange challenged the evidence collected in the garage as the fruits of a warrantless arrest; the California Court of Appeal held that this evidence was admissible under the “exigent circumstances” exception to the warrant requirement because the officer had probable cause to arrest Lange and was in “hot pursuit,” even if the offense Lange appeared to commit was merely a misdemeanor.[5]

        The Justice’s arguments often returned to the issue of when and how officers can determine that an emergency is genuine, and thus the exigent circumstances exception to the Fourth Amendment’s warrant requirement applies. For instance, Justice Gorsuch worried that creating too many categorical exceptions to the warrant requirement, including one that always allowed warrantless hot pursuit of a misdemeanant, generated limitless government authority contrary to the intent of the Fourth Amendment’s drafters.[6] But as Lange’s attorney noted, the Court has never required officers to be certain of an emergency before acting under the exigent circumstances doctrine.[7]

What’s the Emergency?

    In an era of widespread citizen distrust of officers, one primary police function that can still garner widespread support is emergency response. When a genuine emergency is present,[8] immediate police action is so beneficial to citizens that officers should be able to dispense with the warrant requirement. In contrast, where officers merely seek to avoid the warrant requirement to avoid inconvenience or some slight delay that would have no evidentiary or real-world consequences, the exigent circumstances exception does not apply.[9]

    But the Court has not offered a clear rule to distinguish these two situations.[10] If the exigent circumstance doctrine requires something less than an officer’s absolute certainty in an emergency,[11] just what mental state must officers possess before acting?

    Many cases in the last half-century seemed to suggest that officers must have probable cause to believe that the exigency exists before proceeding.[12] But more recently, the Court appears to have softened the required proof of exigency before the exception applies, even while insisting that judges evaluate the totality of the circumstances in each case rather than devising categorical rules.[13] Phrases like “reasonable suspicion” and “objectively reasonable basis to believe” in an emergency have dotted the jurisprudential landscape.[14]

Terry To the Rescue

    There is good reason, both in precedent and policy, to equate the quantum of suspicion of an exigency needed to invoke that exception to the Terry-style reasonable suspicion standard. First, regarding precedent, Terry used the phrase “reasonable grounds to believe”—the very phrase that both the Supreme Court and circuit courts have subsequently applied in exigent circumstances cases—when finding that the stop-and-frisk in Terry was constitutionally justified.[15] Terry’s requirement seems to be the closest analogue to any “reasonable belief” or “reason to believe” standard that might emerge as the touchstone for applying the exigent circumstances standard.

    Furthermore, applying a robust version of Terry’s reasonable suspicion standard makes good policy sense. A probable cause standard requires more certainty than is typically possible in responding to an emergency. Probable cause—the Constitutional standard for obtaining a warrant[16]—contemplates a traditional, fully-considered investigation under relatively calm circumstances. The exigent circumstances doctrine evolved to create a lower threshold for constitutional investigation when officers are forced to respond quickly to rapidly-evolving circumstances. To achieve that level of discretion in emergencies, officers’ suspicion of an emergency must be lower than the probable cause requirement that officers must meet in more deliberate, considered investigations.

    At the same time, any floor lower than a full-throated version of reasonable, articulable suspicion is misguided. Officers need at least that much suspicion that an emergency is afoot—even when acting in the spur of the moment—before the warrant requirement can be dispensed.[17] Officer must also not be permitted to create exigencies that can serve as pretexts for warrantless searches. The Court should expand the prohibition on officer-created exigencies to ensure evidence is excluded where there is objective evidence that officers plotted in advance to generate exigent circumstances or followed a department-wide policy or practice to excuse the need for warrants.[18]

    Terry-style reasonable suspicion is also appropriate because of its inherent flexibility to adapt to new circumstances or changing facts. Fourth Amendment reasonableness is not a static concept, but one that can evolve as new types of officer-citizen interactions arise. Officers will need that kind of flexibility—though always grounded in what they can articulate as a basis for suspicion—to respond to exigencies in real time.

    Reasonable suspicion can bear the weight of determining when exigencies are genuine, even though it is not a clear, bright-line rule. The exigent circumstances exception is based in common sense and reasonableness. [19] Apply Terry returns the exception to its roots and prescribes a sphere of constitutional action for officers that is easy both to understand and to justify. The Court should rely on this standard in cases like Lange to clarify the scope of the exigent circumstances exception.

 

[1] Amy Howe, Justices to Consider Whether “Hot Pursuit” Justified Entering the Home Without a Warrant, SCOTUSblog, Feb. 23, 2021, https://www.scotusblog.com/2021/02/justices-to-consider-whether-hot-pursuit-justifies-entering-the-home-without-a-warrant/.

[2] Amy Howe, Justices to Consider Whether “Hot Pursuit” Justified Entering the Home Without a Warrant, SCOTUSblog, Feb. 23, 2021, https://www.scotusblog.com/2021/02/justices-to-consider-whether-hot-pursuit-justifies-entering-the-home-without-a-warrant/.

[3] Amy Howe, Justices to Consider Whether “Hot Pursuit” Justified Entering the Home Without a Warrant, SCOTUSblog, Feb. 23, 2021, https://www.scotusblog.com/2021/02/justices-to-consider-whether-hot-pursuit-justifies-entering-the-home-without-a-warrant/.

[4] Amy Howe, Justices to Consider Whether “Hot Pursuit” Justified Entering the Home Without a Warrant, SCOTUSblog, Feb. 23, 2021, https://www.scotusblog.com/2021/02/justices-to-consider-whether-hot-pursuit-justifies-entering-the-home-without-a-warrant/.

[5] Amy Howe, Justices to Consider Whether “Hot Pursuit” Justified Entering the Home Without a Warrant, SCOTUSblog, Feb. 23, 2021, https://www.scotusblog.com/2021/02/justices-to-consider-whether-hot-pursuit-justifies-entering-the-home-without-a-warrant/.

[6] “[W]e live in a world in which everything is illegal, you put that together with the good faith exception and the—the fact that an officer is not being tested on his subjective intentions, which may be nefarious, but whether a reasonable officer could think as he did, and hot pursuit could be pretty tepid, it turns out, have we come pretty close to—doesn’t that sound a bit like the general war—world and –and the founding that the framers were so concerned about rejecting?” Transcript of Oral Argument at 105-06, Lange v. California, Feb. 24, 2021, No. 20-18

[7] “You already have built into the Exigent Circumstances Doctrine a less-than-certitude requirement.” Transcript of Oral Argument at 35, Lange v. California, Feb. 24, 2021, No. 20-18

[8] “Any warrantless entry based on exigent circumstances must of course be supported by a genuine exigency.” Kentucky v. King, 563 U.S. 452, 470 (2011).

[9] Although the “investigation of crime would always be simplified if warrants were unnecessary . . . the mere fact that law enforcement may be made more efficient can never by itself justify disregard of the Fourth Amendment.” Mincey v. Arizona, 437 U.S. 385, 393 (1978); see also Chapman v. United States, 365 U.S. 610, 615 (1961) (“Any assumption that evidence sufficient to support a magistrate's disinterested determination to issue a search warrant will justify the officers in making a search without a warrant would reduce the Amendment to a nullity and leave the people’s homes secure only in the discretion of police officers.”).

[10] “Rather than providing a readily applicable definition, the U.S. Supreme Court has held that exigent circumstances should be examined on a case-by-case basis.” Di Jia et al., An Analysis and Categorization of U.S. Supreme Court Cases Under the Exigent Circumstances Exception to the Warrant Requirement, 27 C.R. L.J.  37 (2016).

[11] Transcript of Oral Argument at 35, Lange v. California, Feb. 24, 2021, No. 20-18

[12] See, e.g., Welsh v. Wisconsin, 466 U.S. 740, 750 (1984); Tennessee v. Garner, 471 U.S. 1, 3 (1985); Minnesota v. Olson, 495 U.S. 91, 100 (1990).

[13] See Riley v. California, 573 U.S. 373, 402 (2014) (“The critical point is that, unlike the search incident to arrest exception, the exigent circumstances exception requires a court to examine whether an emergency justified a warrantless search in each particular case.”) (citation omitted).

[14] See, e.g., Kit Kinports, The Quantum of Suspicion Needed for an Exigent Circumstances Search, 52 Mich. J. L. Reform 615, 615 (2019) (“The Supreme Court opinions describing the amount of exigency needed to support a warrantless search under the exigent circumstances exception to the Fourth Amendment’s warrant requirement have long varied. Some decisions speak in terms of probable cause, others require reasonable suspicion, and many others use amorphous, undefined phrases such as ‘reasonable to believe.’”); see also Richards v. Wisconsin, 520 U.S. 385, 394 (1997); Brigham City v. Stuart, 547 U.S. 398, 400 (2006); Michigan v. Fisher, 558 U.S. 45, 47 (2009).

[15] Kit Kinports, The Quantum of Suspicion Needed for an Exigent Circumstances Search, 52 Mich. J. L. Reform 615, 625 (2019) (quoting Terry v Ohio, 392 U.S. 1, 30 (1968)).

[16] U.S. Const., amend. IV.

[17] “If law enforcement officials cannot even supply some ‘articulable’ suspicion, if they have only an ‘inchoate and unparticularized suspicion or hunch,’ they have no justification for conducting a warrantless exigent circumstances search or seizure.” Kit Kinports, The Quantum of Suspicion Needed for an Exigent Circumstances Search, 52 Mich. J. L. Reform 615, 627 (2019).

[18] This would require significant revision of the Court’s decision in Kentucky v. King, under which officer-created exigencies only exist when officers “gain entry to premises by means of an actual or threatened violation of the Fourth Amendment.” Kentucky v. King, 563 U.S. 452, 464 (2011).

[19] As Justice Kavanaugh noted in oral arguments in Lange v. California, “the exigent circumstances doctrine [is] a pretty clear rule for officers because the exigent circumstances doctrine really, as I see it, tracks common sense, these are the kinds of cases and the kinds of reasons an officer would do this in the first place, want to go into the house without a warrant, especially escape of the suspect, threats to others, destruction of evidence.” Transcript of Oral Argument at 107, Lange v. California, Feb. 24, 2021, No. 20-18

A Changing Clerk Relationship

I am a huge fan of clerking. As any of my former students know, I strongly advocate that law students consider clerking after law school.  And as my judge friends know, I am not shy to recommend current students to them.  

While there are many benefits of clerking, I usually focus on two when talking to students.  The first is a chance to have a front row seat to the decision making process. Students can learn how judges reach their decisions and what arguments persuade them.  In some chambers, clerks get the opportunity to try to persuade their judge, which can be quite the learning process!  I remember a chambers lunch where I, in essence, played attorney and answered questions from the judge on the case.  It was eye-opening handling all the hypotheticals.

The other great benefit of clerking is the opportunity to develop close friendships and mentorship relationships. A chambers environment is typically very small, especially if your judge doesn't sit in the main circuit courthouse. When I clerked, our chambers spend a lot of time together--from nearly daily lunches to driving to court week together. It was fun, but that was because the people were fun. I learned a lot from them, especially when I could poke my head out my door to ask a question.  Years after my clerkship, I still traveled to Richmond to eat a dinner with my judge when our schedules aligned, and I took students to oral arguments too.

But, as Judge Michael Daly Hawkins writes about in The Journal of Appellate Practice & Process, COVID-19 has changed that relationship. With many clerks working remotely, that mentoring relationship has changed.  Gone too is the easy, in-person exchanges. As he notes, this is certainly a downside of remote work.  In his piece he mentions that he hired a clerk to work remotely who he may never meet in person during her clerkship. I have heard from other judge friends about clerks working remotely. I think that it certainly has its drawbacks, especially for clerks who are right out of law school and need that mentoring relationship.

But, as Judge Hawkins also notes, not all the changes are bad.  Video-conferencing software can make the hiring process easier (and less expensive) for applicants.  There is also the benefit of avoiding commutes and dressing for the office.  In a sentence that I found quite on point, he writes, "When off-camera, the hardest decision is often whether, or when, to move to shorts and flip-flops." I may, or may not, have worn flip-flops for about 6 months straight when the pandemic hit. (And I may be wearing slippers as I type this).

Much like the practice of law will change post-COVID, I do suspect that there will be lasting changes to the clerk relationship, the biggest probably being the interview process. But, inevitably, some ability to work from home will also be more common. Still, I suspect that the bulk of clerk work will still occur in chambers once more universal vaccination occurs.

Advice for First-Year Law Students

Law school can be a stressful experience, particularly in the first year. Indeed, during the first year, a significant amount of stress results from the uncertainty regarding law school (e.g., not knowing how to study effectively or how to prioritize tasks) and the pressure to perform well in your courses. The tips below will help to reduce the uncertainty, relieve the pressure, and ensure that your transition to and performance in law school will be successful.

1.    Learn the Rule of Law and Do Not Brief Cases

As a law student – and as a lawyer – your primary responsibility is to know the relevant rules of law governing a particular legal issue and apply those rules to the facts of your case. Thus, from day one in law school, when reading cases, you should focus primarily on extracting the relevant rule of law from each case. For example, in New York Times v. Sullivan, the relevant rule of law is that to succeed in a defamation action, a public figure must show that an alleged defamatory statement was made with actual malice, namely, with knowledge of the statement’s falsity or with reckless disregard for its truth. You need not – and should not – focus on memorizing the facts of the case or the reasoning underlying the court’s decision, or on the concurring or dissenting opinions. Simply identify the rule of law because on your exams and in law practice, your primary responsibility will be to apply that rule (and precedent) to the facts of your client’s case.

As a corollary, do not brief your assigned cases (i.e., do not summarize the facts, procedural history, legal question, reasoning, and holding, or summarize the reasoning underlying the concurring and dissenting opinions, if any). This will require you to spend countless hours on aspects of cases that will neither be tested on the final examination nor improve your ability to apply the rule of law to a hypothetical fact pattern. Thus, just extract the rule of law and move on to the next case.

2.    Use Commercial Outlines

Sometimes, particularly for first-year law students, it can be difficult to identify the rule of law in a specific case. Indeed, in your first-year courses, for each legal topic, such as personal jurisdiction, you will often read many cases that track the evolution and development of a specific legal rule. Your focus should be to identify the current and governing legal rule because that is the rule you will be required to apply to a hypothetical fact pattern on your exam. To assist you in doing so, commercial outlines, such as Emanuel Law Outlines, are an invaluable resource. These outlines provide you with the current rules of law for each subject that you are studying (e.g., criminal law, civil procedure, torts, contracts) and for every legal topic within that subject. By helping you to quickly identify the relevant rules of law, commercial outcomes allow you to begin – early in each semester – the critical task of preparing for the final exam, which you do by taking practice exams.

3.    Take Practice Exams Early and Often – Under Timed Conditions

One of the best ways to excel in law school is to take practice exams, which your professor may make available to you or which you can find on the internet. Taking practice exams enables you to gain experience in, among other things, applying the relevant rules of law to hypothetical fact patterns, addressing counterarguments, and ensuring that your writing is well organized and follows the “IRAC” or “CRAC” structure (i.e., state your conclusion first, followed by a summary of the relevant rules of law, an analysis in which you apply those rules to the facts, and a conclusion).  Taking several practice exams – under timed conditions – will prepare you effectively for the final (or midterm) examination and maximize your likelihood of obtaining an excellent grade.

4.    Purchase the LEEWS Essay Exam Writing System

Just as commercial outlines will assist you in identifying the relevant rules of law, the LEEWS Essay Exam Writing System, which can be found at https://leews.com, will help you to perform extremely well on your exams. The LEEWS system teaches you, among other things, how to organize and structure your exam answer, how to identify legal issues in hypothetical fact patterns, how to address counterarguments, and how to distinguish relevant from irrelevant facts. LEEWS has been used by thousands of law students and is among the best resources available to maximize your performance in law school.

5.    Your Research and Writing Skills Are Essential to Your Success as a Lawyer

Excellent research and writing skills – particularly persuasive writing skills – are essential to good lawyering. Thus, during your three years of law school, focus on mastering your research and writing skills, including when drafting real-world documents such as complaints, motions, and trial and appellate briefs. If you cannot write effectively and persuasively, you will struggle to succeed in the legal profession.

6.    Develop Your ‘Soft Skills’

You can be the smartest and most talented law student in your law school, but if you’re a jerk, you won’t succeed in the legal profession. Being an excellent lawyer is not simply about knowing how to write persuasively and argue effectively. Rather, excellent lawyers know, among other things, how to cooperate and collaborate well with others, listen actively, accept constructive criticism, demonstrate humility, honesty, and decency, and learn from failure. Simply put, your personality influences how others perceive you – and impacts your likelihood of succeeding in the profession. So, don’t be a jerk. Don’t have an ego. Don’t gossip. Be someone who others want to work with – and who are happy when you walk into the office every day.

7.    Take Care of Your Physical and Mental Health and Remember that Mindset is Everything

Law school is stressful, but the legal profession is infinitely more stressful. It’s particularly important during law school and in your life to take care of your physical and mental health. Regardless of your workload, take time each day or several days a week to exercise. Eat healthy food. Do things that make you happy. And make sure to address any mental health or other issues that may arise. If, for example, you are struggling with depression or anxiety, consult a psychiatrist or a psychologist. If you are struggling with a substance abuse problem, seek help. Don’t ignore it or feel shame. Taking care of your physical and mental health in law school will help you to develop the habits and coping skills necessary to succeed in the legal profession.

Most importantly, remember that mindset is everything. All of us encounter adversity and unexpected challenges in life. The key to overcoming them is you. If you have a strong mindset and an empowering thought process, you can – and will – cope effectively with adversity. And remember that your choices, not your circumstances, determine your destiny.

8.    At the End of the Day, Only Happiness Matters

Don’t let law school or the legal profession consume you. Don’t judge your worth on whether you received an A in Civil Procedure or passed the bar exam on the first try. Don’t be affected by what others say about you. Don’t associate with toxic people. Ultimately, what matters is your happiness. So, put yourself first and do what makes you happy. Pursue your passions, whether in law or elsewhere. And remember that there’s more to life than the law.

9.    Don’t Just Help Yourself – Help Others

Going to law school and becoming a lawyer provides you with a tremendous opportunity to improve the lives of other people and to fight for a fair and more just society. So, remember that your career isn’t just about your success – it’s about whether you used your talents to make a difference in the world.

More Tips on Virtual Arguments

There are many takeaways from the "I am not a cat" video. A quick search of YouTube shows that some of the replays of the video have been watched in the millions of times (one from Guardian News has 8.6 million views). While is isn't quite Baby Shark material, it is certainly funny (even my toddler enjoyed it).

The good people at Bloomberg Law have put together a video of their own, sharing real tips from real judges (not cat judges) on how to succeed at virtual arguments. You can find it here: 

 

Revisiting – and Reconsidering – Implicit Bias

Many academic institutions, professional organizations, and private corporations have embraced implicit bias training as a method by which to combat discrimination. The concept of implicit bias states that all individuals harbor unconscious biases that lead to, among other things, discrimination and the unequal treatment of individuals based on race. Although certainly well-intentioned (eradicating discrimination is a moral imperative), empirical studies suggest that: (1) the Implicit Association Test (IAT), which is used to detect individuals’ implicit biases, is flawed; (2) there is a weak correlation between implicit biases and biased behavior; and (3) few, if any, attempts have been made to quantify the degree to which implicit bias, particularly in light of explicit biases, impacts behavior.

 1.    The Implicit Association Test is Flawed

Some scholars and commentators have relied on the Implicit Association Test (IAT) to diagnose an individual’s implicit biases. The problem is that the IAT is flawed in many respects.

To begin with, the IAT sets arbitrary cutoff scores to determine whether an individual’s responses reveal implicit biases, yet fails to provide any assessments of the differences, if any, between the many individuals who score above or below those cutoffs.[1] Additionally, IAT scores are arguably context-dependent, as the IAT produces different results for individuals when they complete the test multiple times.[2] Furthermore, the IAT fails to meaningfully distinguish between implicit and explicit bias. As one scholar explains, “the IAT provides little insight into who will discriminate against whom, and provides no more insight than explicit measures of bias.”[3] One commentator states as follows:

The IAT is impacted by explicit attitudes, not just implicit attitudes … It is impacted by people’s ability to process information quickly on a general level. It is impacted by desires to want to create a good impression. It is impacted by the mood people are in. If the measure is an amalgamation of many things (one of which is purportedly implicit bias), how can we know which of those things is responsible for a (weak) correlation with behavior?[4]

To be sure, one scholar acknowledged that “what we don’t know is whether the IAT and measures like the IAT can predict behavior over and above corresponding questionnaires of what we could call explicit measures or explicit attitudes.”[5]

2.    Neither the Implicit Association Test Nor The Presence of Implicit Bias Reliably Predicts Biased Behavior

Empirical studies suggest that implicit biases do not predict biased behavior. Indeed, one researcher acknowledged that the IAT “cannot predict behavior at the level of an individual.”[6]  In fact, the evidence shows precisely the opposite:

Researchers from the University of Wisconsin at Madison, Harvard, and the University of Virginia examined 499 studies over 20 years involving 80,859 participants that used the IAT and other, similar measures. They discovered two things: One is that the correlation between implicit bias and discriminatory behavior appears weaker than previously thought. They also conclude that there is very little evidence that changes in implicit bias have anything to do with changes in a person’s behavior. These findings, they write, "produce a challenge for this area of research.[7]

Additionally, researchers recently “examined 63 studies that explicitly considered a link between changes in bias and changes in actions … [but] they found no evidence of a causal relationship."[8] Put simply, very few, if any, sociological or psychological studies have established with any degree of reliability that implicit bias directly or proximately caused biased, or discriminatory, behavior. As one social psychologist explains:

Almost everything about implicit bias is controversial in scientific circles. It is not clear, for instance, what most implicit bias methods actually measure; their ability to predict discrimination is modest at best; their reliability is low; early claims about their power and immutability have proven unjustified.[9]

This is not to say, of course, that implicit bias does not exist, or that it does not have a material impact on biased behavior. It is to say, however, that the IAT – and evidence supporting a connection between implicit bias and biased behavior – is, at best, premature and, at worst, untenable. As two prominent scholars explain:

[M]uch murkiness surrounds (a) the proper causal explanation for alleged IAT effects, (b) the psychological meaning of IAT scores, (c) the statistical generality and potency of alleged relations between IAT scores and actual behavior, and (d) boundary conditions on alleged IAT effects.[10]

What’s more, even where researchers have claimed to reduce implicit biases, they found no concomitant reduction in biased behavior. That fact alone should cause scholars who have championed implicit bias to think that, just maybe, they have jumped the proverbial gun.

3.    Few, If Any, Attempts Have Been Made to Quantify Implicit Bias’s Impact on Biased Behavior

Assuming arguendo that implicit bias impacts biased behavior, scholars have made little, if any, attempt to quantify implicit bias’s impact on biased behavior. For example, is implicit bias responsible for 5%, 10%, 20%, or 50% (or more) of biased behaviors? This is particularly problematic given that the presence of other factors, such as explicit biases and prejudices, directly impact biased decision-making. This flaw should not be surprising. After all, if implicit bias is the product of unconscious – and thus involuntary – actions, it would appear difficult for researchers to credibly claim that they possess the ability to reliably measure and quantify a phenomenon that resides outside of their conscious awareness. But without attempting to do so, reliance on implicit bias as a predictor of biased conduct raises more questions than answers.

The research cited above is merely a sample of the articles that have cast doubt on the nexus between implicit bias and biased behavior. To be sure, the point of this article is not to say that implicit bias bears no relationship to biased behavior. It is to say, however, that the evidence for such a relationship is inconclusive, contested, and, quite frankly unpersuasive. As such, the adoption of programs in universities and corporations that strive to educate students and employees on the allegedly negative effects of implicit bias is, at best, premature and, at worst, misguided. What’s more, relevant research has produced “little evidence that implicit bias can be changed long term, and even less evidence that such changes lead to changes in behavior.”[11]

Ultimately, eradicating discrimination, addressing inequality, and ensuring equal opportunity are moral imperatives. The question, however, is how best to do that.

 

[1] See Azar, B. (2008). IAT: Fad or Fabulous. American Psychological Association. Retrieved from: https://www.apa.org/monitor/2008/07-08/psychometric.

[2] See id.

[3] Bartlett, T. (2017). Can We Really Measure Implicit Bias? Maybe Not. Retrieved from: https://www.chronicle.com/article/Can-We-Really-Measure-Implicit/238807.

[4] Lopez, G. (2017). For Years This Popular Test Measured Anyone’s Racial Bias. But It Might Not Work After All. Retrieved from: https://www.vox.com/identities/2017/3/7/14637626/implicit-association-test- racism.

[5] Id.

[6] Lee Jussim, Mandatory Implicit Bias Training is a Bad Idea (2017), available at: https://www.psychologytoday.com/us/blog/rabble-rouser/201712/mandatory-implicit-bias-training-is-bad-idea.

[7] Bartlett, supra note 3, retrieved from: https://www.chronicle.com/article/Can-We-Really-Measure-Implicit/238807.

[8] Brandie Jefferson, Change the Bias, Change the Behavior? Maybe Bot (Aug. 2019), available at: https://source.wustl.edu/2019/08/change-the-bias-change-the-behavior-maybe-not/

[9] Jussim, supra note 6, available at:  https://www.psychologytoday.com/us/blog/rabble-rouser/201712/mandatory-implicit-bias-training-is-bad-idea.

[10] Gregory Mitchell & Philip Tetlock, Antidiscrimination Law and the Perils of Mindreading. 67 Ohio St. L. J. 1023- 1121 (2006).

[11] University of Arkansas, Research Questions Link Between Unconscious Bias and Behavior (July 2019), available at: https://www.sciencedaily.com/releases/2019/07/190701144324.htm.

Illinois Follows Nebraska’s Lead in Pairing Law Student Research Fellows and Pro Bono Attorneys

As all appellate practitioners know, legal research takes a great deal of practice.  Unfortunately, we never have quite enough time to assign extra research projects in law school, and all students can benefit from more research experience.  Meanwhile, many practitioners would be much more willing to take on pro bono clients if the practitioners did not have to devote significant time to new research for pro bono matters.  Illinois has a new program to connect law student researchers and pro bono attorneys.  

The Public Interest Law Initiative in Illinois recently launched a program to allow upper division law students to provide research assistance to attorneys offering pro bono services.  https://pili.org/news/pili-launches-illinois-pro-bono-research-alliance/.  As PILI Executive Director Michael Bergmann explained, the Pro Bono Research Alliance works “in coordination with our law school partners to help further engage law students in providing pro bono services and to remove barriers for providing pro bono legal services to those in need.”  Id.  The Research Alliance provides wonderful support for attorneys who might have “hesitated in accepting a pro bono matter that . . . would require significant research” or involves an area of law outside the attorney’s regular area of practice.  Id.  The Research Alliance program “is totally free and is meant to be a useful resource to make pro bono work easier for attorneys, while simultaneously providing law students with valuable experience.”  Id.

PILI’s program “matches student volunteers from Illinois’ law schools with attorneys from across the state.”  https://pili.org/news/pili-launches-illinois-pro-bono-research-alliance/  Research assignments can range “from those taking only a few hours, to larger projects that may last the course of a semester,” and can help with “any non-fee generating civil legal matter where legal services are being provided on a pro bono basis as defined in Illinois Supreme Court Rule 756(f)(1).”  Id.  Accordingly, private pro bono attorneys, legal aid organizations, and nonprofits can use the research assistance. 

Right now, the PILI program has slots for five students per law school (Illinois has nine law schools), but “[i]f the project garners enough interest, PILI will open the program to more law students at a later date.”  Penelope Bremmer,  PILI Launches Pro Bono Research Alliance for Law Students and Attorneys, https://www.2civility.org/pili-launches-pro-bono-research-alliance (Mar. 4, 2021).

Illinois modeled its Alliance on the similar University of Nebraska College of Law program.  See https://law.unl.edu/ProBonoResearch/.  Nebraska College of Law’s Pro Bono Research Fellows Program “is a free service for attorneys in need of research assistance on pro bono legal matters,” and “provides law students and attorneys with an opportunity to work together to provide legal assistance for someone in the community who cannot afford it. “  Id.  Nebraska Research Fellows can also help with more than research in some circumstances, always with oversight from the College of Law.  Id. 

Both programs stress the goal of encouraging “more practicing attorneys to engage in pro bono work, while simultaneously providing students with valuable experience” and “an opportunity to build their professional network[s].”   See id.  Kudos to Illinois and Nebraska for helping more underserved clients access legal services, and for engaging law students in this valuable work.

Appellate Advocacy Blog Weekly Roundup Friday, March 13, 2021

Each week, the Appellate Advocacy Blog Weekly Roundup presents a few tidbits of news and Twitter posts from the past week concerning appellate advocacy. As always, if you see something during the week that you think we should be sure to include, feel free to send a quick note to either (1) Dan Real at DReal@Creighton.edu or on Twitter @Daniel_L_Real or (2) Catharine Du Bois at DuBoisLegalWriting@gmail.com or on Twitter @CLDLegalWriting.

US Supreme Court Opinions and News

• The Supreme Court allowed a free speech suit seeking nominal damages to go forward despite the removal from the policy of the restriction on speech. The plaintiff sued his college over its public speaking policies, asking for nominal damages. The college revised its policy and removed the overly-restrictive limits on speech and the lower court rule the case moot. The Court reversed, finding “[t]his case asks whether an award of nominal damages by itself can redress a past injury. We hold that it can.” The decision was 8 to 1 with Justice Roberts dissenting. Justice Roberts's dissent warns that the decision will result in court’s having to issue the equivalent of advisory opinions.  He wrote: “Until now, we have said that federal courts can review the legality of policies and actions only as a necessary incident to resolving real disputes. Going forward, the judiciary will be required to perform this function whenever a plaintiff asks for a dollar.” See the order and reports from The New York Times, ABC News, and the Associated Press.

• The Supreme Court ruled that immigrants bear the burden to prove that they have not been convicted of a disqualifying crime when trying to cancel a deportation. Although the attorney general has the discretion to stop a deportation, that discretion does not apply under certain circumstances, like in this case, where the immigrant has been convicted of a “crime of moral turpitude.” The issue here was whether the crime qualified as one of moral turpitude and who bore the burden to prove it. The Court ruled that the immigrant bore the burden and that he had not met the burden of demonstrating that the crime was not a disqualifying crime. See the order and reports from NPR and Bloomberg.

Federal Appellate Court Opinions and News

• The Second Circuit ruled unconstitutional Connecticut’s “special circumstances” rule, which imposes unique confinement rules for former death row inmates. The rule was created when the legislature abolished the use of the death penalty for future crimes (the inmate, who had been sentenced to death before the abolishment, was re-sentenced when the Connecticut Supreme Court determined that the death penalty was unconstitutional). The rule applied to inmates formerly on death row and imposed confinement conditions more onerous than those of the general population. The Second Circuit agreed that the special terms of confinement were unconstitutional.  See the order and reports from US News and the CT Mirror.  

• The Second Circuit reversed a lower court ruling denying an injunction against abortion protesters in New York City. The ruling determined that the tactics used by the protestors may violate federal, state, and city laws, like those that prohibit obstructing entrance to a clinic. The ruling recognizes the conflict between the right to protest and the right to be free from harassment: “The right to protest is a fundamental right central to the First Amendment. The right to be free from harassment and threats from protestors is an equally fundamental right. Properly protecting both sets of rights presents some of the most challenging work courts are called upon to do.” See the order and reports from Courthouse News and Law.com.

State Appellate Court Opinions and News

• The Washington Supreme Court overturned automatic life sentences for younger adult defendants. The case involved the sentencing of two young adults, aged 19 and 20, and determined that the court could not be required to impose the mandatory sentence and must consider their youth in sentencing.  See the ruling and a report from the Associated Press. 

Other

• On March 10, the Senate Judiciary Committee’s subcommittee on Federal Courts, Oversight, Agency Action, and Federal Rights hosted a hearing titled “What’s Wrong with the Supreme Court: The Big-Money Assault on our Federal Judiciary.” Find the recorded hearing at this link.

LWI Symposium on Artificial Intelligence and the Legal Profession

The Legal Writing Institute and The Journal of the Legal Writing Institute invite proposals for their virtual symposium on Artificial Intelligence and the Legal Profession, scheduled for Friday, September 24, and Saturday, September 25, 2021, and hosted by Northwestern University Pritzker School of Law. 

Symposium Topic

The symposium will bring together legal scholars, practicing lawyers, technology experts, and others to discuss how rapidly developing technologies are affecting legal research and writing processes, the practice of law generally, the ethics of practice, legal education, and access to justice.  We anticipate a combination of single speaker presentations and panel presentations.

Proposals

We invite proposals for a variety of presentations, including but not limited to

• the nature of artificial intelligence programs (i.e., pleadings analysis, composing software, research tools, and case law analytics)
• the impact of these programs on the development of critical thinking skills
• the extent to which artificial intelligence may replace human lawyering tasks
• the extent to which legal education should be teaching the use of artificial intelligence tools, and 
• how artificial intelligence and related technologies can improve access to justice or perpetuate     implicit bias

Proposal Deadline

Please submit your proposal via this Google form no later than 5:00 p.m. on April 5, 2021, and include the specific proposed topic, a brief description of your proposed presentation, and a CV. Any questions should be directed to Lindsey Gustafson, lpgustafson@ualr.edu; Elizabeth Inglehart, e-inglehart@law.northwestern.edu, or Tiffany Jeffers, tj259@georgetown.edu.

Symposium Committee

Michelle Falkoff, Clinical Professor of Law, Director, Communication and Legal Reasoning Program, Northwestern

Lindsey Gustafson, Former Editor-in-Chief, The Journal of the Legal Writing Institute; Arkansas Bar Foundation Professor of Law, Arkansas, Little Rock

Elizabeth Inglehart, Editor-in-Chief, The Journal of the Legal Writing Institute; Clinical Associate Professor of Law, Northwestern

Tiffany Jeffers, Associate Professor of Law, Legal Practice, Georgetown

Sarah Morath, Managing Editor, The Journal of the Legal Writing Institute, Associate Professor of Legal Writing, Wake Forest

Kristen Murray, Board Member, Legal Writing Institute; Professor of Law, Temple

Dyane O’Leary, Associate Professor of Legal Writing; Director, Legal Innovation & Technology Concentration, Suffolk

Kristen Tiscione, Immediate Past President, Legal Writing Institute; Professor of Law, Legal Practice, Georgetown

Desmund Wu, Legal Writing Lecturer, Wisconsin

Non-Discrimination Policy

The Legal Writing Institute is committed to a policy against discrimination and in favor of equal opportunity for all of its members regardless of race, religion, national origin, sex, age, disability, sexual orientation, gender identity, or any other characteristic protected by law.

Advice on Structuring Appellate Briefs

I am in the middle of grading draft arguments for my students' appellate briefs, so the task of structuring an appellate brief is certainly on my mind.  The most recent issue of The Journal of Appellate Practice and Process contains an excellent article by attorney Thomas L. Hudson on that very topic.  Thom is a partner at Phoenix firm Osborne Maledon.  He is a noted appellate law expert in the state and a graduate of the University of Arizona James E. Rogers College of Law. We were certainly thrilled to publish an article from an alum in our first issue.

Thom starts from the premise that, "perhaps due to their length, structure becomes particularly important. A well-structured brief will stand out, and a poorly organized brief may cause the reader to gloss through it or put it down." He then proceeds to look at five key sections of the brief and how they can be persuasively structured:  the introduction, the statement of the facts and procedural history, the argument section, the reply brief, and the conclusion.

While I commend the whole article to you, I want to focus on his advice for the argument section, since that is what is on my mind as I grade papers. Thom does a great job explaining how the appellant's opening brief should consider arguments that opposing party may make and deal with the contrary opinion below. He rightly notes that  an opening brief should lead from strength.  The advocate should "start by convincing the court that your position is legally correct, and after doing so then discuss why the trial court got it wrong."  As he explains on p. 91-92:

This means that for each issue or sub-issue, you should start the opening brief argument section with the legal principles relevant to the issue. Here, help the reader understand the law necessary to decide the case. After establishing the relevant legal principles, the brief should then explain how these legal principles apply to the facts of the case. If you are the appellant and you have decided to pursue an appeal, the conclusion must be that your client prevails under the relevant law and facts. In other words, make the positive case for why you should win first.

After you have made your positive case, then demonstrate how and why the lower court erred. Here, think about your battleground points, and ideally keep them on the de novo side of the standard of review ledger. Note too that by the time you get to this point, much of the work may already be done. If, for example, the error lies in misapplying the correct state’s law, you can draw on your prior positive case to tee up the rebuttal: “Instead of applying the Kansas rule as required by the governing choice of law rules, the district court looked to Missouri law. It did so because it mistakenly believed . . . .”

He notes that this second step, the analysis of the ruling below, is where the advocate should also deal with the points opposing counsel made below. Thom helpfully includes a sample structure of the point headings to demonstrate this point.

Thom argues that the appellee's brief should follow the same format--first setting out the affirmative case before "debunking your opponent's arguments." He likewise includes a sample structure for the readers to follow along.

Thom's advice is so on point that I am sharing it with my students as they work on their briefs. It can be hard to conceptualize argument structure, and Thom's clear guidance will make any brief-writer's job just a little easier.

Tips for Delivering A Persuasive Closing Statement

Closing argument is among the most critical parts of a trial, as it provides attorneys with one final opportunity to persuade the jury to rule in their favor. Below are tips to maximize the persuasive value of a closing argument.

Begin with a strong introduction. As with opening statements, the best closing statements begin with a powerful – and memorable – introduction. And the best closing statements repeat, in the introduction, the theme that was used in the opening statement, remind the jury of the strongest facts supporting a verdict for your client, and reinforce the weakest aspects of your adversary’s case.

Repeat the Rule of Three from the opening. In the closing, you should repeat the Rule of Three (i.e., the three strongest reasons supporting a verdict in your favor) that was used in the opening statement and add to the explanation of each point the evidence elicited on direct and cross-examination that supports each of the three points. Simply put, your goal should be to ensure continuity and cohesion throughout the presentation of your case. By following the same structure in your opening and closing (e.g., repeating the theme and rule of three), you simplify the argument for the jury and remind the jury of the strongest points justifying a ruling for your client.

Show emotion and passion. Never deliver your closing argument in a monotone or disinterested manner. Show appropriate emotion. Argue with passion. After all, if you aren’t passionate and emotional about your client’s case, how are you going to persuade the jury to rule in your favor?

Never read the closing. Your goal during the closing should be to relate to the jury. You want the jury to like you and trust you. Thus, speak directly to the jury in an authentic and conversational tone. If you read your closing, you create an artificial – and detrimental – distance between yourself and the jury and, in so doing, you minimize the persuasive value of your arguments. Remember that an excellent closing argument is as much about performance as it is about substance.

Address the weaknesses in your case. Before delivering your closing, put yourself in the shoes of the jurors. What questions would you have about the merits of your case? What weaknesses would you identify? When you identify such questions and weaknesses, address them in the closing. In so doing, you give yourself the opportunity to explain why these weaknesses should not affect the outcome or remedy you seek, and you establish your credibility with the jury.

Discuss the evidence in detail but do so in a manner that tells a story. The best attorneys know how to tell a compelling story at trial. They know how to capture and hold the jury’s attention. They highlight favorable facts and explain away unfavorable facts. And in the closing, the best attorneys use the testimony elicited at trial to complete their story, reinforce the theme and the Rule of Three, and make a passionate case for a ruling in their client's favor. The best attorneys also know what not to do: never merely summarize the evidence. Don’t feel the need to discuss the testimony of every witness. Instead, emphasize and highlight the evidence most favorable to your client and structure your presentation in a manner that compliments your theme (and Rule of Three), and convinces the jury to rule for your client.

Use non-verbal techniques. When delivering your closing, remember that jurors want to see you as a relatable human being who has compassion, decency, and common sense. To establish relatability, you should use strategic movements. For example, move to a different space when discussing each rule of three, even if it is merely a couple of feet. Vary your tone and voice projection. Maintain an open stance, with your feet shoulder-width apart. Use facial expressions and hand gestures to emphasize important points. Your goal is to be authentic, not rehearsed, and convincing, not contrived. And most importantly, be confident, because confidence is everything.

End powerfully. Make your last words your best and most memorable. Your objective is to make sure that the most important points supporting your case stick in the jurors’ memories. Thus, your last sentence or paragraph should impact the jurors’ emotions and sense of justice. It should state with simplicity and uncompromising conviction the reason why you should win. For example, in the O.J. Simpson trial, attorney Johnny Cochran stated, “If it doesn’t fit, you must acquit.” People still remember that line today. And for good reason.

Ultimately, attorneys should remember that a closing argument, like any other aspect of a trial, is a performance. It is not merely a presentation of the evidence and an analysis of the facts. It is a uniquely human endeavor.  Thus, your performance, including your likeability, relatability, and authenticity, will matter as much, if not more, than the evidence itself.

Overprepare. Don't Over-Rehearse.

As the calendar turns to February, the stress of moot court teams preparing for their competitions is palpable in law schools around the country. Students spend countless hours in practices to ensure they are ready on the day of the competition. Often, they spend countless additional hours wallowing in self-doubt over their preparation. Did I do enough to get ready? Have I structured my argument in the most persuasive manor possible? Is practicing more better for me, or should I relax and try to get some rest before the big day?

To those nervous advocates, I offer a simple mantra. Overprepare. Don’t over-rehearse.

By overprepare, I mean that advocates should always strive to be ready for the competition as early as possible. Moot court practice is often psychologically painful. Early practices are invariably embarrassing, as a guest judge is almost certain to ask a question the advocates never considered, catching them flat-footed as they grasp for an answer. But this experience need not feel embarrassing. In fact, it’s the whole point. Practice should expose advocates to as many views of the case as possible, allowing them to feel comfortable that, on the day of the argument, there’s nothing truly unexpected that any questioner can throw at them. The early stumbles are necessary signs of growth. And the earlier they occur, the more likely advocates will be able to adjust their presentation and prepare themselves to answer the difficult questions. Those stressful moments expose the gaps in logic that must be resolved before making an effective argument. Advocates should overprepare by starting early, soliciting challenging views whenever possible, and testing out a litany of analytical approaches while staying in character to see what feels most natural, candid, and convincing.

But advocates should not over-rehearse. There is a fine line between learning how to explain the nuances of the problem and the logical gaps of one’s position and memorizing a stilted script to present to a new group of judges. Advocates must avoid the temptation to generate precisely-phrased responses to each possible question. Often, this leads advocates to fall back on a script during argument. That script builds a wall between the advocate and their audience. It forces the advocate to offer stock, generalized answers to judges’ questions, rather than internalizing the questions, processing their nuances, and offering genuine, original responses that fully addresses the judges’ concerns.

One method to overprepare without over-rehearsing is to catalogue some of the most difficult questions faced in practices, jot them down in a deck of note cards, then mix the deck and practice responding to the questions in random order—no matter where they fall in a planned outline of the issues. This will force advocates to provide original responses to the questions in order to weave their presentation back into the original argument structure. Rather than generating canned responses, the advocate will deepen their neural network around the problem, recognizing the relationships between issues and concepts and learning to tack between them smoothly. That mental pliability is a learned skill, not an innate talent. It takes a great deal of preparation, but it can be mastered by anyone willing to put in the necessary effort. And it cannot be reduced to a scripted series of rehearsed answers.

Advocates often work harder in moot court preparation than they have in almost any other aspect of law school. But concerns about perfection can lead them to work in counter-productive ways. A perfectly-scripted answer is not the goal. Instead, advocates must aim to deepen their understanding of each issue so they can comfortably respond in unique ways to each uniquely nuanced question they face. Overpreparation with that goal in mind, while avoiding over-rehearsing, will lead to an argument performance that will make any nagging moot court coach proud.

Appellate Advocacy Blog Weekly Roundup Friday, February 19

Each week, the Appellate Advocacy Blog Weekly Roundup presents a few tidbits of news and Twitter posts from the past week concerning appellate advocacy. As always, if you see something during the week that you think we should be sure to include, feel free to send a quick note to either (1) Dan Real at DReal@Creighton.edu or on Twitter (@Daniel_L_Real) or (2) Catharine Du Bois at DuBoisLegalWriting@gmail.com or on Twitter @CLDLegalWriting.

U.S. Supreme Court News:

The Supreme Court's "Shadow Docket."  This week, a bipartisan panel in the House agreed that the Court should be more transparent about significant rulings in cases on the Court's "shadow docket," and discussed potential legislation to require transparency in the voting of the Justices in such cases.  SCOTUSblog covered this with more analysis and history.

The Supreme Court's Schedule.  This week, the Court released its February Hearings List and its March Calendar.

Federal Appellate Court News:

The Juris Lab had a post this week detailing the oral argument grant rate for each federal circuit court of appeals for last year.

Appellate Practice Tips:

On #AppellateTwitter this week, David Benger had a great thread about state appellate clerkships.  It and the RTs and QTs ended up discussing advice, reading recommendations, and some discussion of the value of state appellate clerkships.

Appeals Bonds Can Be Costly, for Both Sides

A very important -- but often forgotten -- part of many appeals is the appeal bond. Often referred to as a supersedeas bond, an appeal bond is not required to perfect an appeal, but rather serves to suspend enforcement of the judgment during appeal.

Let's say your client obtains a one-million dollar judgment against Badcompany, Incorporated. If they appeal without superseding the judgment, you can execute on that judgment during the pendency of the appeal. Sounds great!

But let's say Frivilous Plaintiff gets a judgment against another on of your clients, Goodcompany, Incorporated, for one-million dollars. Your client barely has $1,000,000 in assets. You scramble to try to suspend enforcement of the judgment and get a bond into place. However, when you try to do so, you find out that the bonding company wants a 2% premium per year for the bond, and wants the bond to be fully collateralized. Although you know the judgment is bad and likely to be overturned, this client can't afford the bond. And if Frivilous Plaintiff's attorney, Shady, executes on your client's assets, you are also pretty sure all that money will disappear before an appeal can be determined, and your client will never get it back. Doesn't sound so great now, does it?

But wait, there's more! Let's go back to your judgment against Badcompany, Incorporated. If they do supersede the judgment, and after five years of appeals (it happens) they get the judgment reversed, imagine having to pay their premium as costs. Yes, that 2% premium per year can be considered a court cost, and at least one circuit says there is no discretion but to award that premium as costs. And now, your client, Widow Righteous, has not only lost her case, but is presented with a cost bill of $100,000 plus deposition fees, copying costs, and filing fees.

Surely this simple procedural rule can't cause so much trouble!? Well, it can.

The Ins and Outs of Supersedeas Bonds

Federal Rule of Civil Procedure 62 provides that execution of a judgment is automatically stayed for 30 days, and can only be stayed thereafter by order of the court upon approval of a bond or other security. Local rules usually set the amount of bond, which typically ranges between 110-120% of the judgment, and is meant to cover the judgment, costs, and interest during the pendency of the appeal.

Large, publicly traded corporations and insurers will either self-bond of obtain a surety bond with a favorable premium rate of 1% or so, and without having to provide collateral, since they are not a risk to the surety. Smaller clients, however, face a different battle. Surety's know that appeal bonds are not great risks, because most appeals do not result in reversal. So for clients with any risk of nonpayment down the road, the surety will require a higher premium and that the judgment be fully collateralized, by cash, letter of credit, real estate, or some other reliable asset. Even clients with higher assets will often use a surety instead of posting a cash bond into the registry of the court, because the surety may offer a higher rate of interest on the money.

Once the bond is approved, it can be adjusted over time as necessary to preserve the status quo. After the appeal is final, the bond is either released or used to pay the judgment, costs, and accrued interest.

Unforeseen Consequences of Appeal Bonds

Sometimes, the appeal bond becomes a bigger issue than the appeal. In Texaco v. Pennzoil, there were a number of fascinating legal issues arising from a verdict of $10.5 billion against Texaco. But none of them mattered when Texaco was unable to pay the full supersedeas bond of $10.5 billion judgment plus costs and interests, and instead filed for bankruptcy. Something similar happened in the more recently lawsuit of Bollea v. Gawker. After Bollea was awarded $140 million against Gawker Media, and Gawker was unable to obtain a stay without a bond, Gawker filed for bankruptcy.

Some states have supersedeas caps, both hard-capped on dollar amounts and on net worth. Other reforms are constantly in the works. And most trial courts have discretion in either adjusting the bond or staying execution without bond in several circumstances. But regardless, counsel is wise to consider these bond issues in conjunction with the legal issues of any appeal. If you have a plan in place for a bond or a good argument for a stay without bond, you can make the most of the 30-day stay in federal court to get something in place that will enable you to pursue the legal issues of your appeal without fear of execution.

The appeal bond can also catch the non-appealing party by surprise. Rule 39 of the Federal Rules of Appellate Procedure provides that if a judgment is reversed on appeal, costs are to be taxed against the appellee. Fed. R. App. P. 39(a)(3). Taxable costs include: (1) costs for the preparation and transmission of the record; (2) costs of the reporter’s transcript, if needed to determine the appeal; (3) premiums paid for a supersedeas bond or other bond to preserve rights pending appeal; and (4) the fee for filing the notice of appeal. Fed. R. App. P. 39(e).

This rule is the subject of a matter recently granted certioari by the Supreme Court of the United States in City of San Antonio v. Hotels.com, et al. In that case, the City of San Antonio brought a class action lawsuit on behalf of 173 municipalities against a group of online-travel companies for failing to pay hotel-occupancy taxes. After a month-long jury trial and unanimous verdict, the district court awarded the class $55,146,489 in unpaid taxes, interest, and penalties.

The appellees posted a supersedeas bond to stay execution, and the matter took years to reach resolution just in the district court, which, after several post-judgment motions, entered an amended judgment of $84,123,089. Eventually, the Fifth Circuit reversed the judgment, and the district court awarded costs under Rule 39 in an amount of $2,226,724.37, over $2 million of which was comprised of bond premiums.

While the City of San Antonio argued that the district court should have exercised its discretion to reduce the amount of those premiums, the Fifth Circuit disagreed, and ruled that it had no discretion to reduce the amount of costs. Likely because this ruling is in conflict with other circuits, the Supreme Court recently granted certiorari in that case.

Should the Bonding System be Changed?

As you can see, the current bond system can result in some very unfortunate circumstances, for both sides. Making the system more fair, however, is difficult, because it arose to make things fair in the first place.

In an ideal world, the supersedeas bond protects the appellant from severe loss so a matter can be appealed on the law, and protects the appellee from loss during this time by ensuring full payment of the judgment. The problems highlighted above are being addressed in some states by laws capping or restricting bonds to certain amounts of net worth or even to an amount that will not economically harm the appellant. And permitting discretion in awarding premiums as costs would prevent situations where a well-funded appellant obtains a low-premium bond, posts cash collateral, and actually makes money on that collateral, then gets the full premium back as a cost of appeal when they win.

Both of those solutions, however, have downsides. If a struggling appellant is able to bond for a minimal amount because they are on financially shaky ground, the appellee may be missing out on the only opportunity to secure what assets that appellant has to pay the judgment. And discretion is potentially a slippery slope when it comes to costs of appeal.

But those are issues for the folks who write the rules. Those of us who follow them just need to be aware of how they work, how they can go wrong, and how we can try to protect our clients as best we can.

(No image this week! I am typing this during a short period of time as rolling blackouts cover my state. Rather than search for an image, I'm going to conserve some energy and take care of my family. If you are also affected, please take care and do the same.)