Appellate Advocacy Blog

Drafting a Strong Preliminary Statement

            The preliminary statement, or introduction, is among the most critical parts of a brief. Indeed, the preliminary statement affords you the opportunity to concisely and persuasively explain why you should win, and thus make an excellent first impression on the reader. Below are a few tips on how to draft a strong preliminary statement.

1.    Begin with a strong opening sentence that captures the reader’s attention.

            The first sentence in the opening paragraph of your preliminary statement should tell the court precisely and persuasively why you should win. Put differently, it should contain the theme of the case. Doing so will capture the court’s attention and focus the court’s attention immediately on the arguments that you believe support a ruling in your favor.  Be sure, however, not to draft an opening sentence that contains over-the-top language and unnecessary adjectives, that is excessively long, or that contains excess or esoteric words. Keep it simple and to the point. Consider the following examples:

“The defendant subjectively believed that her life was in danger when she used lethal force, and the decision to use such force was objectively reasonable.”

Versus

“This case is about the defense of self-defense, and the defendant should be found by this court to have exercised the defense of self-defense in this case.

            Of course, the first example is not perfect, but you get the point. The second sentence is an unmitigated disaster and will certainly not capture the judge’s attention (in a positive way) or begin your brief persuasively.

 2.    Tell the court what you want.

            In the first paragraph of your preliminary statement, inform the court of the relief that you are seeking. For example, if you are opposing a summary judgment motion, say, “The defendant’s motion for summary judgment should be denied,” or if you are the plaintiff moving for leave to file an emergent appeal, say, “The plaintiff’s motion for leave to file an emergent appeal should be granted.” It sounds simple – and it is – but it's important to let the court know at the outset what relief you are seeking.

 3.    Tell the court why you should get what you want.

            Explain to the court why you should get what you want. One strategy to ensure the effective organization and flow of your preliminary statement is to use the Rule of Two or the Rule of Three roadmap, in which you state concisely the two or three reasons that support ruling in your favor.  Doing so gives the court an outline of the arguments to expect in the brief and allows you to explain why those arguments are meritorious.  Consider the following examples:

 “The plaintiff’s defamation claim should be dismissed because the allegedly defamatory statements: (1) were substantially true; (2) constituted protected opinion; and (3) did not cause the plaintiff’s alleged harm.”

 Versus

“The plaintiff has alleged that the defendant defamed her, but that claim should be dismissed because, as discussed below, several defenses exist that prohibit the plaintiff from recovering damages in this matter.”

             The problem with the second sentence is that it doesn’t say anything, and it gives the court no indication of the arguments that you intend to rely on to support your position.

            Importantly, each paragraph that follows should be dedicated to explaining separately why each of the two or three reasons supports your position. 

4.    Be concise.

            Always be concise and get to the point, using simple language and, as a general matter, never exceeding three pages. As such, avoid, among other things, Latin, legalese, fancy “SAT” words, long sentences, adverbs, adjectives, over-the-top language, and unnecessary repetition. Using such language suggests that you are trying to artificially persuade the court and do not believe in the strength of your arguments. Consider the following examples:

“On December 1, 2022, a blizzard struck Hasbrouck Heights, New Jersey, a town of 15,000 residents, with accumulations of approximately twenty-two inches of snow. The defendant, Mike Smith, owned Mike’s Grocery Store, a popular destination for many Hasbrouck Heights residents. In the aftermath of the blizzard, and for approximately five days, Mike remained open but did not make any effort to clear the snow and ice that had accumulated in the parking lot and walkway. As a result, on December 3, 2022, as Barbara Johnson, an elderly woman and a frequent patron, was walking to the front door, she fell, suffering severe injuries, including a concussion and broken shoulder. Barbara’s injuries were the direct and proximate result of Mike’s negligent conduct and entitle Barbara to damages.”

Versus

“As discussed in more detail infra, on December 1, 2022, a shocking event occurred in Hasbrouck Heights, New Jersey that no one could have ever predicted or imagined. Almost two feet of snow fell and the deleterious effects on the town’s vulnerable residents were incalculable and incomprehensible. However, despite the undeniable dangers that the storm engendered, Barbara Johnson, an elderly and mercurial woman, make the fateful decision to risk her life by venturing to Mike's Grocery Store, where the parking lot was covered in snow and the deleterious conditions unquestionably apparent. Not surprisingly, Barbara fell while endeavoring to enter the store and suffered injuries that any reasonable person would have foreseen. As such, and as described infra, Barbara’s injuries are ipso facto the result of her negligence and the complaint should be dismissed.

            Again, the first example is not perfect, but the point should be obvious. The second example is about as bad as it gets.

5.    In most instances, do not cite cases in the preliminary statement.

            Some may disagree with this point, but in my view, the preliminary statement should provide a concise and compelling overview (and roadmap) of your arguments, including the facts that support granting the relief you seek. Citing cases can disrupt the flow and is arguably unnecessary because the legal argument section is where you will rely on case law to expand upon and further support your position.

       

When Is a Judge Unfit, and What Can be Done About It?

The controversy surrounding Judge Pauline Newman of the Federal Circuit raises an interesting question for appellate advocates. Judge Newman, age 95 and appointed by President Reagan in 1984, was asked to step down by the circuit’s chief judge but declined the suggestion. Allegations against her include bouts of paranoia in which she claims that the court is spying on her, that her staff is betraying her and at least one of them should be arrested, that she engages in conversations with dead colleagues, and that she forgets how to log into her computer or where files on it can be found.

She is now being investigated by a special committee of the circuit about her competency to continue to serve as a judge. A recently released 26-page Order requires Judge Newman to undergo “neurological evaluation and neuropsychological testing to determine whether she suffers from a disability.” The order follows a previous one where Judge Newman refused to comply, labeling the requested medical records “irrelevant,” objecting to examinations by court-designated professionals and to their scope, and asking that the determination of her fitness to remain on the bench be determined outside the circuit. The new order rejects those objections and includes more specificity about what the investigative committee of fellow judges requires.

Judge Newman has responded with a lawsuit, filed May 10, in the federal district court in Washington, DC. It denies that she suffered a heart attack that prevented her from sitting during the summer of 2021, asserting instead that she was a member of 10 panels from June to September of that year and issued at least eight opinions from those sittings. Her productivity, it alleges, eclipses that of all but two colleagues. It further asserts that the circuit, by unanimous vote of the other judges, refuses to assign her any more cases. The complaint further states that Judge Newman’s judicial assistant and law clerk were reassigned without leave for the judge to replace them.

The complaint argues that the treatment of Judge Newman, constructively a removal from office, violates separation of powers because she serves “during good Behaviour,” removable from office only through impeachment and conviction by Congress. It further asserts that the circuit judicial council acted prematurely under the Judicial Conduct and Disability Act of 1980, which requires a completed investigation before action, comparing the procedure utilized to “Sentence first—verdict afterwards” from “Alice’s Adventures in Wonderland.” It further asserts a Fifth Amendment due-process violation “because the special committee is composed of witnesses to Plaintiff’s alleged disability.”

Judge Newman also claims the court has violated the First Amendment by virtue of a “Gag Order [that] forbids Plaintiff or her attorneys from engaging in any speech that would in any way publicize the ongoing disciplinary proceedings against Plaintiff.” Indeed, until the complaint was filed, the court’s order was filed under seal and released only because of the lawsuit.

Finally, Judge Newman asserts most of the authority claimed by the investigating committee is unconstitutional, due to the vagueness of “what constitutes a mental disability that renders a judge ‘unable to discharge all the duties of office’” and what remedies the judicial council may employ.

For appellate counsel facing a court with a judge displaying erratic behavior or otherwise unable to follow the argument, what happens in Judge Newman’s circumstances could be instructive. We may learn what authority courts have to intervene when a judicial council acts, what authority judicial councils may exercise, and what behavior provides grounds for action against a judge. We may also learn what appointment by the president and confirmation by the Senate, subject to impeachment, means in these circumstances.

Of course, appellate counsel has no means to challenge the assignment of a judge to a matter, absent a clear conflict of interest. Still, the Disability Act and the Rules for Judicial-Conduct and Judicial-Disability Proceedings provide a complaint process, which basically follows the process that the Federal Circuit employed – although in this instance the Chief Judge filed the complaint herself.

We have at least one historic precedent of a court acting to restrict a judge who had lost the ability to discharge his duties. Justice Gabriel Duvall, a once prominent Maryland lawyer and judge appointed to the Supreme Court by President Madison, became so sick and deaf during his final years on the bench that Chief Justice John Marshall ordered that the clerk not supply the infirm justice with any supplies, lest he actually write something about one of the cases before the Court.

Today, we live in a different world, but the problem of a judge who does not recognize when the time to step down has come remains. Whether that time has come for Judge Newman or not, her case and the Federal Circuit’s actions may provide some answers about what a court can do.

On Deadlines

On Tuesday, May 2, the United States Court of Appeals for the Third Circuit amended its local rules to create a uniform filing deadline of 5 pm eastern time. Robert recently posted about the change.

The Third Circuit gives several reasons for the change, including:

• Equalizing deadlines between pro se litigants and attorneys;
• Allowing the Court’s Helpdesk to help with technical issues;
• Eliminating the need for attorneys to check for after hour filings; and
• “alleviating confusion by equalizing the filing deadlines for electronically filed and non-electronically filed documents in most cases.”

As Robert noted in his post, the court’s move was opposed by several groups, including the Pennsylvania Bar Association, the Third Circuit Bar Association, and a group of 43 appellate attorneys that included Howard Bashman, who I greatly respect.  I found this third letter to be the most persuasive.

All of the opposition letters argue that the rule change will not improve attorney quality-of-life. The letters note that solo practitioners and young attorneys who like to leave work early to be with kids and then work after hours will be negatively affected. The letter from the appellate attorneys also mentioned that the rules change will make it harder for clients in Alaska and Hawaii to review filings.

While I sympathize with some of the concerns raised in the letters (I often work after my young kids are in bed), I ultimately have no problem with the rule change.

As a professor, I have had to set deadlines for my students for over a decade. Early in my teaching career, my students had to turn in their papers both in person and electronically by a certain time for their student briefs to be “timely filed.” For the last 6 or so years, I have only required “electronic” filing.  While I am confident that many students find deadlines in legal writing classes to be “arbitrary,” I assure you that they are not.  Rather, they are the product of significant thought, experience, and even coordination.  For example, while students might like an 8:00 am deadline that gives them all night to work, are such deadlines fair to professors who teach morning classes? Are deadlines set in the university’s time zone fair to students taking online classes in other time zones? Do you give students the weekend to work, or do you set deadlines on Thursdays or Fridays to give yourself time to grade over the weekend?

In setting deadlines for assignments, I try to keep a few things in mind.  First, I aim for consistency—assignments are typically due on the same days of the week. My major assignments are usually due on Thursdays, with minor assignments following a set weekly schedule of Tuesday and Friday.  Second, I aim for clarity. My assignments are due at 11:59 pm Arizona time.  I find a midnight deadline to be too confusing. I could easily pick an earlier time in the day, but I haven’t since I moved to pure electronic submission.  Third, I want to encourage good habits. For me this means encouraging my students to develop clear timelines for producing their assignments. I post an extremely thorough syllabus at the beginning of the year with all of the major and minor deadlines clearly listed. This allows students to develop a briefing schedule for submitting their assignments.  If they are working with a partner to submit a final paper, and that partner is going to be busy the evening an assignment is due, they need to figure out how to get that assignment finished early.  And guess what, nine times out of ten that is exactly what they do. They plan ahead and get the work done.

Here, the Third Circuit has set a deadline. While it may seem arbitrary, I find the reasons that they give to be related to their decision and thus, not arbitrary. And while some might not like deadline, it is one that attorneys can easily adapt to and work around. It means that attorneys will have to finish filings sooner, which might be burning that midnight oil the night before the filing is due so that the client in Alaska can review the brief first thing in the morning.

While adapting schedules can be hard, it is what we as attorneys should be able to do best. We pivot to meet the needs of our clients, the court, and the profession.

Should I include a stand-alone “introduction” section in my brief?

I was recently discussing persuasive writing with an appellate attorney, and he mentioned how important he believed the “introduction” section of the brief was.  He wasn’t talking about an introductory paragraph to the argument; he meant an entirely independent, stand-alone section of the brief. 

The idea of an “introduction” (or preliminary statement) section has taken hold over the past few years in the appellate practice world.  It was mentioned on this very blog back in 2019:  https://lawprofessors.typepad.com/appellate_advocacy/2019/12/writing-an-outstanding-appellate-brief.html. But those who support it also recognize that not all appellate courts authorize it.[1]  And that raises several questions.

• What is an “introduction” section?

An introduction section has been described by advocates as “a short and persuasive overview of the case,”[2] or “a concise statement of the issues and arguments that the writer view[s] as most important, as well as the desired outcome.”[3]  

While most appellate courts do not expressly authorize its inclusion in briefs, some do.  Arizona, Illinois, Kentucky, Maine, Minnesota, Utah, and Washington all expressly authorize (or require) an introduction section in their state appellate court rules.[4]  Utah’s rule says that “[t]he introduction should describe the nature and context of the dispute and explain why the party should prevail on appeal,” while the Illinois rule provides a model:  “This action was brought to recover damages occasioned by the alleged negligence of the defendant in driving his automobile. The jury rendered a verdict for the plaintiff upon which the court entered the judgment from which this appeal is taken. No questions are raised on the pleadings.”[5]  But the other state rules provide less guidance, suggesting that the introduction should address the “nature of the case” (Kentucky and Maine) or be “concise” (Washington), while Arizona and Minnesota provide no guidance at all.

With respect to the federal circuits, none address introductions in their local rules, but Westlaw’s Practical Law toolkits suggest that introductions are commonly included by practitioners in the First, Second, Fifth, Eleventh, and Federal Circuits.  These introductions are generally described as “a short preliminary explanation of the facts and procedural history of the case [with an] expla[nation] why the . . . Circuit should grant the appellant relief from the district court’s order or judgment.”[6]

• What are the pros and cons of using an introduction?

As with any persuasive writing, you must first know your audience.  As a law clerk, I’ve seen only a few of these (they are not expressly authorized by my state’s rules), and I was neither put off nor blown away.  For me, it was meh.  But it’s really the judges’ opinions that matter, so I asked the judge I work for if she had noticed them and what she thought.  She also expressed mixed feelings, noting that introductions were helpful only if they were well-written, avoided redundancy, were brief, and acted as a guide for analyzing the claims on appeal.[7]

There are several potential benefits from a well-written introduction section.  You get to frame the case; you get to prime your reader to accept your legal positions or view the facts favorably to your claims;[8] and you can help the court navigate your brief.

But there are risks, as well.  The most obvious is potential redundancy.  Most appellate courts permit or require a summary of the argument section.  According to the federal rules, this section “must contain a succinct, clear, and accurate statement of the arguments made in the body of the brief, and . . . not merely repeat the argument headings.”[9] And, presuming your argument identifies the nature and context of the dispute and explains why your client should prevail, it’s hard to see the distinction between the summary of the argument and an introduction.  As one author put it, “At best, the brief simply contains two summaries of the argument, rather than one.”[10]  And one Florida court noted, “Outlines of substantive arguments are more proper in a brief's summary of argument section.”[11]

An additional (and very real) risk is violating a procedural rule.  Most appellate courts allow for dismissal of appeals in the face of briefing rule violations.  Even in jurisdictions allowing introductions, failing to write them properly (or taking liberties with the opportunity) can land you in a court’s crosshairs.  See, e.g., Yakima Sch. Dist. No. 7 v. Magee, 16 Wash. App. 2d 1079 (Wash. App. Div. 3 2021) (rejecting the appellant’s “preamble” as “a confusing jumble of words” that failed to “help the court or opposing counsel ‘expeditiously review’ the issues in the case”).  Furthermore, in jurisdictions without express rules, it is unclear whether an introduction counts in the page and word limits or whether the failure to include legal or record citations constitutes a violation of other briefing requirements.  And both the Second Circuit and the United States Supreme Court have rules requiring briefs to be free of “irrelevant” or “immaterial” matter.[12]

In short, the inclusion of an optional or unauthorized introduction is a gamble with some significant risk for potentially high reward—but only if it is done well.

• How do I effectively use an introduction?

The first decision is where to put it.  Its name, alone, suggests it should appear near the beginning of the brief, and jurisdictions with express rules generally say it should appear immediately after the table of authorities.[13]  In federal circuits where common practice exists, introductions appear immediately after the table of authorities (First and Second Circuits), after the statement of issues presented (Fifth Circuit), or between the statement of related cases and the jurisdictional statement (Federal Circuit).  Common practice in the Eleventh Circuit appears variable, with some introductions appearing at the very beginning, some after the table of authorities, and some as the first heading in the statement of the case.  (Though it seems odd to include the introduction within the statement of the case, the reason for doing so may be logistical; some appellate judges rely on summaries provided by staff attorneys, and including the introduction in the statement of case increases the likelihood that it will be included in those summaries.  Of course, placing the introduction within the statement of case may also increase the likelihood of a rules violation if the introduction lacks citation or includes argument.)[14]

The next decision is whether to include citations to either the record or legal authority.  In Washington, “[t]he introduction need not contain citations to the record or authority.”[15]  And judges who are open to introductions generally suggest that citations in this section detract from its purpose and effectiveness.  But, as mentioned above, whether you are required to include record citations depends to some degree on location of your introduction, and many appellate courts require citations to the record for every factual assertion in the brief.[16]

Additional considerations are whether introductions are appropriate in every case and, if included, how long they should be.  Considering how judges and law clerks use introductions, they are most effective when included in complex cases and least effective in simpler ones.  And there is universal agreement that they must be brief and concise or risk being ignored.  Thus, one author suggests, “Where introductions are concerned, you should make sure that every single word counts.”[17] 

As for contents, begin by describing the type of case (e.g., premises liability, landlord/tenant dispute, employment discrimination) and then provide a roadmap (as opposed to a summary) for the main arguments.  “This roadmap should say, in basic terms: what happened; what law applies; and what the result should be.”[18]  Here’s an example from a brief in the Eleventh Circuit:

This is a dispute regarding insurance coverage. [Insured] lived at Lakeview apartments. She sued Lakeview after she slipped and fell on a leak when the “air conditioning units” at the apartments stopped working. At issue is whether a Water Related Exclusion, which precludes coverage for bodily injuries arising out of, related to, or in any way involving a discharge or leak from “appliances,” applies to [Insured’s] lawsuit against Lakeview.

[Insurer’s] position is it does not have a duty to defend because [Insured] clearly alleges her bodily injuries arise out of a leak from an appliance, i.e., the air conditioning units. While the word “appliance” is not defined in the Policy, its ordinary meaning is a “device for a particular use or function.” An air conditioning unit meets this definition; simply, it is a device used to heat or cool air. There is no coverage under the terms of the Policy.

The district court disagreed and concluded [Insurer] has a duty to defend because it is not clear whether an HVAC system is an appliance. In the district court's view, an “appliance” means something “that you plug in, like a dishwasher or refrigerator.” The district court appears to have been swayed by Lakeview's expert who opined that the word “appliance” does not mean a building's HVAC system.

Applying the ordinary definition of “appliance” it is clear the Water Related Exclusion applies to the allegations in [Insured’] complaint. Moreover, expert opinion is irrelevant to the duty to defend. See Selective Ins. Co. v. William P. White Racing Stables, 718 Fed. Appx. 864 (11th Cir. 2017). This Court should reverse.[19]

The Takeaways:

• Check your local rules first to see if introductions are authorized, and if so, whether there are any requirements or constraints on usage;
• Use introductions for only complex cases where they can be a helpful guide for your reader;
• Ensure you are complying with other briefing requirements (e.g., record references and word/page limits); and
• Be concise—limit yourself to one page at most.[20]

 

[1] See, e.g., Chris W. Altenbernd, Legalizing the Appellate Introduction, 90 Fla. Bar J. 60 (Sept./Oct. 2016), available at https://www.floridabar.org/the-florida-bar-journal/legalizing-the-appellate-introduction/.

[2] Savannah Blackwell, Legal Writing Tip:  Start Your Brief With a Solid Introduction, available at https://www.sfbar.org/blog/legal-writing-tip-start-your-brief-with-a-solid-introduction/

[3] Lance Curry, No Introduction Needed?  The Effectiveness of Introductions in Appellate Briefs, The Record, Journal of the Appellate Practice Section of the Florida Bar (Winter 2011), available at http://therecord.flabarappellate.org/wp-content/uploads/2018/07/AP-Winter-11.pdf.

[4] See Ariz. R. Civ. App. P. 13(a)(3); Ill. Sup. Ct. R. 341(h)(2); Ky. R. App. P. 32(A)(1); Me. R. App. P. 7A(a)(1)(C); Minn. R. Civ. App. P. 128.02.1(d); Utah R. App. P. 24(a)(4); Wash. R. App. P. 10.3(a)(3). 

[5] According to Illinois law, “The introductory paragraph should not include lengthy recitations of fact and should not contain argument.”  Slater v. Illinois Lab. Rel. Bd., Loc. Panel, 144 N.E.3d 618, 624 (Ill. Ct. App. 1st Dist. 2019).  Thus, it is probably not the kind of introduction most advocates envision.

[6] See, e.g., Fifth Circuit Appellant's Brief, Practical Law Standard Document w-000-5018.

[7] These views have been echoed by other appellate judges, though some believe the introduction (if not expressly authorized by rule) is not only a waste of time but also a violation of appellate briefing rules.  Curry, supra note 3.

[8] Joe Regalia, Eight Easy Strategies to Write Better Introductions, available at https://write.law/blog/eight-simple-strategies-to-write-better-introductions

[9] Fed. R. App. P. 28(a)(7).

[10] Altenbernd, supra note 1.

[11] Florida Second District Court of Appeal, PRACTICE PREFERENCES, pg. 4, available at www.2dca.org.   

[12] 2d Cir. R. 28.1(a); Sup. Ct. R. 24.6.

[13] See Ariz. R. Civ. App. P. 13(a)(3); Ill. Sup. Ct. R. 341(h)(2); Ky. R. App. P. 32(A)(1); Me. R. App. P. 7A(a)(1)(C); Minn. R. Civ. App. P. 128.02.1(d); Utah R. App. P. 24(a)(4); Wash. R. App. P. 10.3(a)(3).  But see Ky. R. App. P. 32(A)(1) (indicating the introduction should be the first section of the brief); Minn. R. Civ. App. P. 128.02.1(d) (indicating the introduction should appear between the facts and the argument sections).

[14] See Curry, supra note 3, pg. 13-14.

[15] Wash. R. App. P. 10.3(a)(3); but see Est. of Gilkey v. Gilkey, 11 Wash. App. 2d 1080 (Wash. App. Div. 1 2020) (unpublished) (stating, “we disregard factual statements not supported by the record in the introduction, just as we disregard them in other parts of a brief”).

[16] E.g., 3d Cir. R. 28.0(c) (“All assertions of fact in briefs must be supported by a specific reference to the record.”); 5th Cir. R. 28.2.2 (“Every assertion in briefs regarding matter in the record must be supported by a reference to the page number of the original record”); 6th Cir. R. 28(a) (“A brief must direct the court to the parts of the record it refers to.”); 9th Cir. R. 28-2.8 (“Every assertion in the briefs regarding matters in the record, except for undisputed facts offered only for general background, shall be supported by a citation to the Excerpts of Record”); 11th Cir. R. 28-1(i) (“In the statement of the case, as in all other sections of the brief, every assertion regarding matter in the record shall be supported by a reference to the record”) (emphasis added); Fed. Cir. R. 28(f) (“Any reference in a brief to the underlying record . . . must be to the corresponding appendix page number(s) assigned to the material”); D.C. Cir. R. 28(b) (“When citing to the record, authorities, or any other material, citations must refer to specific pages of the source”).

[17] Jon Barnes, Intro to Intros: How to Write the Winning Preliminary Statement, 58-APR Ariz. Att’y 28 (April 2022).

[18] Id.

[19] KINSALE INSURANCE COMPANY, Plaintiff-Appellant, v. LAKEVIEW TOWER VENTURE, LP, et. al., Defendant-Appellee., 2023 WL 1778409, at *1-2 (11th Cir. App. Br.).

[20] Federal practice suggests that one-to-two pages is an acceptable length, but some state court rules expressly limit introductions alone, or in combination with other sections, to one page.  See, e.g., Ky. R. App. P. 32(A)(1).

Giving your law clerks an awesome experience

Recently I traveled to a neighboring state to talk to state appellate judges about maximizing their law clerks' experience. This invitation stemmed in part from my recent book, The Short & Happy Guide to Judicial Clerkships. While that book largely focuses on how to apply for clerkships, I do briefly talk about how law clerks can get the most out of their clerkship year.

In preparing for the talk, I found that there is not a lot written on the topic of maximizing the clerk experience.  Well several articles and books exist about how law clerks can be good clerks (like my brief discussion)--there is less instruction for judges on how to ensure that their clerks have a positive experience. I have decided to spend some time this summer writing an essay to help fill this gap. 

Specifically, I am going to look at three topics:

(1) What can judges do to make the clerk experience positive? 

(2) How can judges best mentor law clerks?

(3) What can judges do to help their clerks learn how to research and write effectively?  

There are a few articles on this last topic, notably this excellent, short piece by Sara Warf.

I would like to invite readers of this blog, both judges and former (or current) clerks to reach out to me with their thoughts on this topic.  I am interested in the perspectives of both trial and appellate judges and clerks. Thanks!

To Burn the Midnight Oil . . . or Not

On Tuesday, the U.S. Court of Appeals for the Third Circuit adopted a rule that requires filings be submitted by 5 pm on the due date, rather than any time before midnight that day as part of an effort to impose better work-life balance on lawyers and their staffs, effective July 1. To help people get used to the new rule, a “grace period” allowing acceptance of filings submitted later in the day will be permitted through the remainder of 2023.

The new L.A.R. 26.1 applies the Clerk’s Office’s closing time to electronic filings. Fed. R. App. P. 26(a)(4)(B) sets the deadline for electronic filings in a court of appeals to be midnight in the court’s time zone on its due date. However, that rule is premised on the condition that no “different time is set by a statute, local rule, or court order.” The Third Circuit is the only circuit to take advantage of that clause to set a uniform 5 pm filing deadline.

In a Public Notice issued May 2, the court explained that the new deadline permits its Helpdesk to assist with last-minute filing problems during regular business hours, the Clerk’s Office to extend deadlines on the due date, and allows judges to receive and review the filings at an earlier hour. The court also expressed concern for pro se filers, who comprise more than half the court’s filers and do not have access to the electronic filing system and thus must file by paper in the clerk’s office. The court stated that a 5 pm deadline equalized the requirements between attorneys and pro se litigants. The rules was also aimed at the “practice by some of unnecessary late-night filings intended to deprive opponents from hours that could be used to consider and formulate responses to such filings,” while saving opposing counsel from checking their email to see if the papers were filed yet. Finally, the court said the rule prevents confusion on when the filing must be made. It noted that about a quarter of all filings come in after business hours.

The rule was promulgated over the opposition of bar groups. The Pennsylvania Bar, for example, argued that the court’s quality-of-life concerns were misplaced because further constraining the time to file “intensifies the existing strain on the well-being of the lawyer,” would alternatively engender more 11th-hour motions to extend the time to file, and, consequently, further burden “scarce judicial resources.” The bar’s letter also noted that the “brunt” of the burden from a shortened deadline would fall on small firms and individual practitioners with more limited resources. Finally, the Pennsylvania Bar asserted that the rule would increase confusion by making the Third Circuit different from each of the other federal circuits, where the same appellate lawyers might practice.

The Third Circuit Bar Association also complained. It noted that the reduced hours took away flexibility needed to address “family care, medical appointments, unforeseen circumstances, and other work obligations” that could crop up. It also asserts that the fairness concerns are overblown and easily addressed on a case-by-case basis.

Forty-three appellate lawyers sent a memorandum that praised the flexibility that a midnight deadline provides, noting that post-COVID that many people work non-regular hours from home, and urged the court to keep the old rule.

None of these pleas were successful. Some of the arguments were or should have been easily dismissed. While uniformity among the circuits is desirable, appellate lawyers, like their trial-level counterparts, should read the local rules. For example, Fed. R. App. P. 32 sets the word count for principal merit briefs at 13,000 words and reply briefs at 6,500 words. The Ninth Circuit, however, its Cir. Rule 32-1 maintains the old rule of 14,000 and 7,000. On the other hand, the idea the public notice advances that a judge was anxiously awaiting the filing to begin diving into the brief that evening seems pretty farfetched for everything but emergency filings, which often have their own specific deadlines.

Others should have been taken more seriously. I look at the issue from the perspective of a solo practitioner with a national practice. In the last several circuit arguments I have made no one came from within that circuit. In arguments in the Seventh and Ninth Circuits, both parties were represented by counsel from Washington, DC. In the Fifth Circuit, my opponent was from New York. The point is that a substantial number of appellate lawyers practice in circuits where they do not reside. If the Ninth Circuit adopted a 5 pm deadline, the time difference from Washington, DC gives me an extra three-hour window. By the same token, the Third Circuit’s new rule would deprive a practitioner from San Francisco of three hours of regular business time due to the time difference.

In a world adjusting to remote work where offices have become less meaningful, the idea that a 5 pm deadline will have meaning for quality-of-life concerns strikes me as fanciful. In all likelihood, it merely shifts the extra hours needed to the days before. As the Supreme Court term started moving toward its last few months, Justice Byron White would tell his clerks that it was time to start burning the midnight oil. What the Third Circuit seems to be saying by its new rule is burn the midnight oil every day up to but not including the due date for a filing.

Legal Communication and Rhetoric: JALWD Turns 20

The journal, Legal Communication and Rhetoric: JALWD, (formerly the Journal of the Association of Legal Writing Directors) will publish its twentieth volume this year. The journal has this mission statement:

The journal is dedicated to encouraging and publishing scholarship (1) focusing on the substance and doctrine of legal writing. Legal writing is broadly defined to include many types of writing in a lawyering setting; (2) grounded in legal doctrine, empirical research, or interdisciplinary theory; and (3) accessible, helpful and interesting to all “do-ers” of legal writing: attorneys, judges, law students, and legal academicians. Published articles are intended to reach all of those audiences.[1]

The journal regularly includes articles that appellate practitioners will found helpful and it publishes articles written by practitioners as well as academics. Here are just a few examples:

• Raffi Melkonian, Thoughts and Worries About Appellate Practice Post-Pandemic, 19 Legal Commc’n & Rhetoric 129 (2022)
• Stephen Boscolo, Using Judicial Motives to Persuade Judges: A Dramatistic Analysis of the Petitioners’ Brief in Lawrence v. Texas, 17 Legal Commc’n & Rhetoric 103 (2020)
• Scott Fraley, A Primer on Essential Classical Rhetoric for Practicing Attorneys, 14 Legal Commc’n & Rhetoric 99 (2017)
• Barbara K. Gotthelf, The Lawyer’s Guide to Um, 11 Legal Commc’n & Rhetoric 1 (2014)
• Stacy Rogers Sharp, Crafting Responses to Counterarguments: Learning from the Swing-Vote Cases, 10 Legal Commc’n & Rhetoric 201 (2013)
• Scott Fraley, A Primer on Essential Classical Rhetoric for Practicing Attorneys, 14 Legal Commc’n & Rhetoric 99 (2017)

You’ll find a complete archive of the journal here Legal Communication & Rhetoric: JALWD

 

[1] https://www.alwd.org/aboutlcr

Succeeding in the 1L Year

Recently, several of my undergraduate students who are attending law school next semester expressed anxiety and uncertainty about the first year. Certainly, these feelings are normal and shared by many incoming first-year law students. But this need not be the case. Below is the advice that I gave to my students as they prepare to enter law school.

1.    Don’t focus on succeeding in class; focus on succeeding on the exam.

In law schools, many professors use the Socratic Method, in which they question law students regarding, for example, the facts, holdings, and reasoning of particular cases.  Many incoming law students fear the Socratic Method, worrying that they will embarrass themselves in front of the class. As such, these students often spend hours preparing for class and briefing cases.

That is the wrong approach.

At the overwhelmingly majority of law schools, your performance in class means absolutely nothing. Quite frankly, none of your fellow students care about how you perform in class. They are just relieved that they weren’t the one that the professor called on. Furthermore, don’t be impressed by the “gunners,” namely, those who talk excessively in class or ask what may appear to be incisive questions. They usually do not get the best grades – or even good grades.  And your grades and class ranking, not your performance in class, are, by far, the most important factor in determining your job prospects upon graduation.

This doesn’t mean, of course, that you shouldn’t be prepared for class. But you should be aiming for a merely average, not an exceptional performance because your time should be dedicated to far more important matters.

Specifically, from day one, you should be focused on preparing for the final examination, which in most law school’s doctrinal courses determines your final grade.

How do you do that?

First, learn how to take a law school exam. To do so, purchase the Legal Essay and Essay Writing primer, which is available at www.leews.com. This program will teach you how to draft an effectively organized and persuasively presented answer. It will teach you CRAC or, as some professors prefer, IRAC, which will ensure that your answer is structured properly. 

Second, take practice exams – under timed conditions. Doing so will simulate what you will face when taking the final exam and, ultimately, maximize your chance of obtaining a high grade. Additionally, review model answers to those exams, including those written and graded by your professor, to learn what constitutes an outstanding answer.

Third, don’t brief cases. Instead, purchase commercial outlines and other instructional materials, such as Emmanuel’s Law School Outlines and Joseph Glannon’s Civil Procedure coursebook. Why? Because you need to identify the relevant rules of law that govern the resolution of particular legal disputes, and because you need to know how to apply those rules to the novel fact pattern that a final examination will present. In other words, the facts of the cases you read during the semester are ultimately irrelevant. Thus, briefing those cases is an unnecessary waste of time.

Fourth, draft an outline that concisely summarizes the legal rules for each topic that you have studied. Do not draft a 120-page outline that summarizes the facts and holdings of every case. Rather, draft a twenty-page outline that contains only the relevant legal rules because those rules are what you will need to know for the final exam.

To summarize:

• Don’t worry about how you perform in class.
• Purchase the Legal Essay and Essay Writing primer.
• Take practice exams.
• Don’t brief cases.
• Purchase commercial outlines.
• Draft your own outlines.

Now, many law professors will tell you the opposite in law school. They may tell you, for example, not to purchase commercial outlines. Don’t fall for it. If you follow the approach outlined above, you will improve your critical thinking skills and maximize your chances of success in the first year.

2.    Membership on Law Review (or at least a law journal) matters to employers.

At many law schools, law review membership is typically reserved for students who graduate in the top 10% of their class after the first year or who gain membership through other means, such as a writing competition.

To be sure, employers value law review membership because it signals to them that the applicant is a high-quality student. Thus, strive for membership on your law review or, at least, on a specialized journal at your law school.

3.    Improve your writing and critical thinking skills.

Excellent writers and critical thinkers make excellent lawyers. From day one, focus on developing your persuasive writing skills and focus on gaining experience in drafting the most common litigation and transactional documents. Law firms and clients value immeasurably graduates who can write persuasively and whose analytical skills are second to none.

4.    Develop relationships with your peers and professors.

Employers are not simply looking for quality law school graduates. They want to hire good people. No one likes a jerk, an unbearable narcissist, or someone who just can’t seem to shut up.

Put simply, your reputation is critical to your success.

As such, conduct yourself with class. Be honest. Be nice. Have integrity. Support your classmates. Listen more than you talk. Don’t gossip. Don’t base your self-esteem on what grade you received in Torts. And realize that there is so much more to life than the law.

Additionally, get to know your professors. Schedule an appointment with them during their office hours to introduce yourself, to receive feedback on an assignment, or to ask questions about the practice of law. Most importantly, if you need help, ask for it.   

5.    Develop a strong mindset.

In law school, there will be times when you will fail. There will be times when you fail to live up to your expectations. And there may be times when, as in life, you experience unfairness.

But that does not determine your destiny. Failure is a good thing because it enables you to learn lessons that will enhance your growth as a lawyer and as a person. Not meeting your expectations can teach you what you need to do differently in the future to achieve the result you desire. And unfairness can teach you the value of justice.

Indeed, your choices, not your circumstances, determine your destiny; how you respond to adversity is critical to whether you achieve failure or success. Put simply, how you think impacts what you believe and, ultimately, what you do.

So be sure to focus on both your professional and personal development in law school. Doing so will enable you to be successful -- and happy.

Appellate Advocacy Blog Weekly Roundup Friday, April 28, 2023

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 [email protected] or on Twitter @Daniel_L_Real or (2) Catharine Du Bois at [email protected] or on Twitter @CLDLegalWriting.

US Supreme Court Opinions and News

• In the final oral argument of the term, the Supreme Court heard a case about whether the state should be allowed to retain profits when a property is sold after being seized for failure to pay taxes. The challenge is to a Minnesota tax law that allows the state to take absolute title of a property if the owner fails to pay taxes for five years. Under that law, Minnesota seized Petitioner’s home, sold the home in a tax foreclosure sale, and kept the $25,000 profit. The petitioner claims that the law violates both the Fifth Amendment’s bar on uncompensated taking of private property and the Eighth Amendment’s protection against excessive fines. A ruling is likely this summer. See reports from NPR, Reuters, and NBC.

• The Supreme Court issued a ruling preserving the status quo about the national availability of an important abortion pill, Mifepristone, keeping the drug widely available pending the Court’s review of the merits. The ruling became necessary after a stunning pair of decisions from Texas. The first decision was issued by a federal district judge and attempted to block the medication nationwide. That decision ruled that the 23-year-old FDA approval of the drug had exceeded the FDA’s authority. (Note, the statute of limitation to challenge FDA approval is six years.) The second decision issued from the Fifth Circuit and was a partial stay of the widely-criticized district decision. That decision also attempted to limit national availability of the drug by questioning the FDA’s process and authority following 2016 and 2021 revisions to the drug’s risk assessment. The Supreme Court blocked the rulings last Friday; Alito dissented and Thomas would have denied the application. See the Supreme Court order and dissent. See reports concerning the Texas decision from The New York Times, Reuters, and NPR and about the Supreme Court’s decision from Washington Post, The Wall Street Journal, and The New York Times.

State Court Opinions and News

• Judge Rowan Wilson was confirmed as chief judge of the New York Court of Appeals, the highest court in New York. Judge Wilson will be the first Black chief judge.  See a report from The New York Times.

Writing like Justice Kagan, Part IV

Justice Kagan's opinions are such target-rich environments for good techniques that I keep coming back. A few more I noticed in the past couple of weeks:

18. Change the grammatical structure mid-stream.

Rhetoriticians call this technique “anacolouthon” (from the Greek meaning “it does not follow”), in which the author/speaker interrupts herself and changes the grammatical structure of a sentence part way through. It is useful to emphasize something through an aside or exclamation:

“And if all that leaves the tiniest doubt—well, still we are not done.” Helix Energy Solutions Group, Inc. v. Hewitt, 598 U.S. 39, 55 n. 5 (2023).

She leaves an air of exasperation with the argument that she’s responding to. And speaking of things not following, she leads into this thought with the line: “That is a non-sequitur to end all non-sequiturs.” This can be overdone or ill-advised in many instances, but can be effective when used sparingly, particularly in oral advocacy.

19. The rhetorical instruction.

Justice Kagan’s writing is just lousy with rhetorical instructions, and to good effect. This is an important part of what gives her opinions an instructional, friendly tone. In Romance languages, this is called the imperative—the command form of a verb. Sounds militaristic, but done correctly, it’s received as an invitation instead of a marching order.

She came out swinging with this one: “More than two dozen times in her first two terms on the Court, Kagan opens a sentence with a direct invocation to the reader, much as a teacher addresses her students.” Laura K. Ray, Doctrinal Conversation: Justice Kagan’s Supreme Court Opinions, 89 Ind. L. J. Supp. 1, 2 (2015).

“Pretend you are financing your campaign through private donations. Would you prefer that your opponent receive a guaranteed, upfront payment of $150,000, or that he receive only $50,000, with the possibility—a possibility that you mostly get to control—of collecting another $100,000 somewhere down the road? Me too. That’s the first reason the burden on speech cannot command a different result in this case than in Buckley.” Arizona Free Enter. Club’s Freedom Club PAC v. Bennett, 131 S. Ct. 2806, 2838 (2011) (Kagan, J., dissenting).

And the hits just keep on coming this term:

“Now, though, add a layer of complexity to that description: The Secretary has implemented the bona fide executive standard through two separate and slightly different rules, one applying to lower-income employees and the other to higher-income ones.” Helix Energy Solutions Group, Inc. v. Hewitt, 598 U.S. 39, 45 (2023).

“Consider again §602(a)’s text, focusing on how it excludes daily-rate workers.” Id. at 50.

“Suppose (to approximate the compensation scheme here) such a worker is paid $1,000 each day, and usually works seven days a week, for a total of $7,000.” Now suppose he is ill and works just one day in a week, for a total of $1,000.” Id. at 51.

“Suppose a lawyer tells a client that she wishes to “receive her pay on an hourly basis.” The client would understand that the lawyer is proposing an hourly billable rate, not delivery of a paycheck every hour. Or consider a nurse who says she gets paid on a daily basis. She means that she receives compensation only for the days she works—not that she collects a paycheck every day. So too here, an employee receives compensation on a weekly—as opposed to a daily or hourly—basis, as § 602(a) demands, when he gets paid a weekly rate. The provision's temporal dividing line is not about paycheck frequency.” Id. at 53.

“Recall our task: to decide if a claim is ‘of the type’ Congress thought belonged within a statutory scheme.” Axon Enterprise, Inc. v. FTC, 598 U.S. ___, 10 (2023).

20. Change sentence length and using punctuation to improve flow.

Ross Guberman calls the punctuation technique “freight train,” and notes that breaking up a long sentence with commas or semicolons can make a long sentence seem much shorter than it is, and more effectively connect related thoughts than a series of rapid-fire short sentences would. It also helps to set off that long sentence with shorter ones, for contrast. An example from Justice Kagan:

“But that interpretation of the “weekly basis” phrase—even putting §602(a)’s other language to the side—is not the most natural one. As just suggested, a “basis” for payment typically refers to the unit or method of calculating pay, not the frequency of its distribution. Most simply put, an employee paid on an hourly basis is paid by the hour, an employee paid on a daily basis is paid by the day, and an employee paid on a weekly basis is paid by the week—irrespective of when or how often his employer actually doles out the money. The inclusion of the word “receives” in §602(a) does not change that usual meaning.” Helix Energy Solutions Group, 598 U.S. at 53.

Notice her use of repetition and parallelism (paid on . . . basis, paid by . . .) to create a refrain, improve flow, and connect the ideas together. So good!

And in Axon Enterprise (with citations omitted):

“If an appellate court had ruled in favor of the coal company or the federal employee on review of an agency decision, the court could have remedied the party’s injury. It could have revoked the fine assessed on the company or reinstated the employee with backpay.  But not so here. The harm Axon and Cochran allege is “being subjected” to “unconstitutional agency authority”—a “proceeding by an unaccountable ALJ.” That harm may sound a bit abstract; but this Court has made clear that it is “a here-and-now injury.” And—here is the rub—it is impossible to remedy once the proceeding is over, which is when appellate review kicks in.” Axon Enterprise, 598 U.S. at 13.

Long, long, short, long with punctuation to seem short, etc. Really makes for good flow and keeps the reader’s attention.

Imagining the Appeal if the Dominion v. Fox News Case Had Gone to Trial

The highly anticipated trial of Dominion Voting System’s defamation lawsuit against Fox News evaporated on the cusp of trial with a settlement. As a result, we can only speculate about what an appeal might have looked like – but that does not prevent us from engaging in the thought experiment of what might have occurred. Both sides were prepared for an appeal regardless of the trial’s outcome. And the First Amendment implications of the case could well have garnered interest in the U.S. Supreme Court.

At trial, Dominion had two overriding burdens. It had to prove that Fox’s reporting on the voting machine manufacturer was not true and that, in doing so, Fox engaged in actual malice because it knew the claims were false or showed a reckless disregard for the truth. On the first issue, the truth or falsity of the on-air assertions by Fox, the judge had granted summary judgment in Dominion’s favor – Fox could not overcome the evidence that its on-air claims were false. The trial, then, would likely have focused on whether the actual malice standard was met and the resulting damages.

Although a host of issues may have arisen from the conduct of the trial or objections and rulings made during the course of trial, it is not hard to imagine that, if Fox had lost, some of the issues it might have appealed.

First, was the trial court’s decision on summary judgment supported by uncontroverted evidence? A court may only grant summary judgment if no material issues of fact exist, thereby entitling the movant to judgment as a matter of law.[1] The court reviews factual assertions in the light most favorable to the party opposing summary judgment, and any inferences drawn must operate to the benefit of that nonmovant.[2] Moreover, using a burden-shifting standard, the nonmoving party’s evidentiary obligation is triggered only if the moving party’s evidence appears to establish each element of the case.[3] The U.S. Supreme Court has described the burden the nonmovant bears to be to create more than “some metaphysical doubt as to the material facts.”[4]

My purpose in reviewing the applicable standards is not to comb through the evidence proffered in the case to support summary judgment, but to show that the standard, at face value, disfavors summary judgment as long as an operative fact is in real dispute. Even so, an appellate court examines a grant of summary judgment de novo, because the absence of contradictory facts renders the issue a question of law.[5]

Second, one can imagine an appeal focusing on whether the actual-malice standard, deemed protective of the First Amendment rights of the media, was met. Under New York Times v. Sullivan[6] and Curtis Pub. Co. v. Butts,[7] both public officials and public figures seeking to recover compensation for a defamatory falsehood must show that the defamation was the product of actual malice. That standard, as articulated in Butts, tellingly states that it requires “a showing of highly unreasonable conduct constituting an extreme departure from the standards of investigation and reporting ordinarily adhered to by responsible publishers.”[8] The reports on the evidence amply show that Fox’s on-air personalities and owner Rupert Murdoch understood that the claims of election fraud that were common currency on the network were laughably false and suggest that Dominion had the goods to overcome the actual-malice hurdle.

On the other hand, observers have no idea whether Fox had evidence that demonstrated sufficient doubt from reliable quarters that would have chipped away at any finding of malice. Even so, taking a different angle to an appeal, it is fun to imagine counsel for Fox attempting to contrive an argument that the modern standard for investigation and reporting by today’s “responsible publishers” is greatly diminished from when Butts was rendered so that the standard was satisfied in this instance. That Fox itself is heavily responsible for that lowering of standards would not seem to enter into that calculation.

Finally, the most interesting potential issue on appeal could be whether the New York Times test is still valid as a constitutional command. Concurring in a 2019 order that denied certiorari in a defamation case brought by an alleged victim of sexual assault against actor and comedian Bill Cosby, Justice Clarence Thomas solicited an appropriate case to review New York Times v. Sullivan and its progeny, asserting that the standards it set were “policy-driven decisions masquerading as constitutional law” and that providing extra protection for public officials and figures lacked support in the First Amendment’s original understandings.[9] Justice Thomas reiterated this stance in 2021 and 2022, both times dissenting from the denial of cert and suggesting that each petition provided a good vehicle to reevaluate the interplay of the First Amendment and libel law.[10]

In the 2021 case, Justice Thomas was joined in this sentiment, by Justice Neil Gorsuch, who wrote separately. Justice Gorsuch agreed that the First Amendment involved no special solicitude for libel that should affect its treatment in court, but he also suggested that circumstances had changed. He noted that in today’s world, everyone can become a publisher and a public figure in ways unimaginable in 1964.[11] He speculated that the New York Times majority may have believed that the rule they announced “would apply only to a small number of prominent governmental officials whose names were always in the news and whose actions involved the administration of public affairs.”[12] Now, he said, it applies much more widely in a world where expediency is valued over “investigation, fact-checking, or editing.”[13]

Justice Gorsuch’s speculation seems about the New York Times majority’s presumptions seems off the mark. In the original case, plaintiff L.B. Sullivan, a Montgomery, Alabama city commissioner with supervisory authority over the police department sued the Times over its publication of a one-page newspaper advertisement by place by four black clergymen decrying the treatment of nonviolent civil rights demonstrators by “Southern violators.” Though he was not named as one the Southern violators, Sullivan claimed the advertisement defamed him. As required by Alabama law, he wrote the Times and demanded a retraction before suing. Rather than enter a retraction, the Times wrote back, “‘we . . . are somewhat puzzled as to how you think the statements in any way reflect on you.’’’[14] It seems highly unlikely that the majority imagined they were covering a “small number of prominent government officials whose names were always in the news.”

Even so, more potential tests of New York Times are likely coming. A Dominion loss would have opened the door to a challenge in this instance against a conservative media institution, but the idea of a challenge has become a cause for a number of conservative politicians. The markers laid down by members of the Supreme Court remain invitations in an appropriate case, making it likely that a case is coming, even if it will never be Dominion’s lawsuit against Fox.

 

[1] Moore v. Sizemore, 405 A.2d 679, 680 (Del. 1979). Because the trial was to take place in a Delaware state court, Delaware precedent is cited here.

[2] Merrill v. Crothall-Am., Inc., 606 A.2d 96, 99-100 (Del. 1992)

[3] Moore, supra note 1, 405 A.2d at 681.

[4] Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).

[5] Bryant v. Maffucci, 923 F.2d 979, 982 (2d Cir. 1991).

[6] 376 U.S. 254, 279-80 (1964).

[7] 388 U.S. 130, 155 (1967).

[8] Id. at 155.

[9] McKee v. Cosby, 139 S. Ct. 675, 676. 678 (2019) (Thomas, J., concurring in denial of cert.).

[10] Coral Ridge Ministries Media, Inc. v. S. Poverty L. Ctr., 142 S. Ct. 2453, 2455 (2022) (Thomas, J., dissenting from denial of cert.); Berisha v. Lawson, 141 S. Ct. 2424, 2425 (2021) (Thomas, J., dissenting from denial of cert.).

[11] Id. at 2428-29 (Gorsuch, J., dissenting from denial of cert.).

[12] Id. at 2428.

[13] Id.

[14] New York Times, 376 U.S. at 261.

Comments Against Angel Reese Call Us to Check for Bias in Our Writing

As I’ve mentioned before, I was lucky enough to teach a seminar on bias in legal analysis and writing this semester.  Much of the class focused on implicit bias and the way we can use words as lawyers to help find and remove bias.  Occasionally, we encountered bias in court opinions, legal scholarship, and the like that was almost express.  While easier to spot and remove than subtle implicit bias, overt bias also reminds us, as lawyers and legal writers, to scrutinize our own writing. 

One example of clear bias in the media that could help us as legal writers came at the end of the NCAA basketball tournament this year.  Students and I were struck by social media and sportscaster disparate discussion of a strong, powerful player for the University of Iowa and a strong, powerful player for Louisiana State University.  These women, Angel Reese of LSU and Caitlin Clark of Iowa, are incredible competitors who each led their teams to the NCAA championship game.  Along the way to the final game against each other, which LSU won, both played beautifully and both sported almost identical ponytails.  Both also made the same “you can’t see me” taunt to opponents during the tournament by waving their outstretched hands in front of their faces, to show they were too quick for opponents to see and stop.  In response to these taunts, Clark faced praise, including from ESPN and pro wrestler John Cena, who invented the “you can’t see me” taunt, but Reese faced profanities and statements she was “classless.”   

The difference:  Clark is white, while Reese is Black.  Our class had a robust discussion of what the different language used to describe these similar athletes using identical taunts in the same tournament meant to us as legal writers, and the students inspired me to share this incident here.

As Mike Freeman of USA Today explained, “Clark is a skilled trash talker and used the John Cena "you can't see me" taunt multiple times throughout the tournament.” Mike Freeman, Reaction to Angel Reese taunting Caitlin Clark shows the double standard for Black Athletes,  https://www.usatoday.com/story/sports/columnist/mike-freeman/2023/04/03/angel-reeses-taunt-iowas-caitlin-clark-shows-double-standard/11591498002/ (Apr. 3, 2023).  Freeman continued, “[i]n the closing moment of the championship game, Reese did the same taunt and also pointed to her hand, signaling she was getting a championship ring.”  Id.   

Aisha Sultan of the St. Louis Post-Dispatch noted Clark often taunted opponents.  Sultan explained:  the “you can’t see me,” gesture “had been used by Clark toward a Louisville opponent in the Elite Eight” round of the NCAA tournament, and “ESPN even produced a segment hailing Clark as the “Queen of Clapbacks” featuring these moments of taunting by her.” Aisha Sultan, Backlash to Angel Reese raises question: Which athletes get called 'classless'?, https://www.stltoday.com/lifestyles/parenting/aisha-sultan/sultan-backlash-to-angel-reese-raises-question-which-athletes-get-called-classless/article_fa75a30d-67d7-56c1-aac6-ea09c00b638f.html (Apr. 3, 2023).  “The reaction to Reese [using the taunt in the final game], however, included Dave Portnoy, founder of the site Barstool Sports, tweeting that she was a ‘classless piece of (expletive)’ and Keith Olbermann calling her an ‘(expletive) idiot’ on Twitter.”  Id.

Freeman honed in on the use of language here, and his notes are especially helpful to appellate writers as we edit our work.  For example, he described what he called stereotypes of sports as:

When Black players are aggressive, and talk trash, they are thugs and animals.

When white players are aggressive, and talk trash, they are passionate and fiery.

This stereotype goes back decades. Larry Bird was the greatest trash talker of all time but was celebrated for his passion. Tom Brady screamed at teammates and coaches and was viewed as scrappy. John Thompson's Georgetown Hoyas, who played defense with spirit and ferocity, were called thugs. Fight[ing] in hockey is seen as tradition. Fight[ing] in NASCAR is seen as cool and spirited. Fights in NBA games lead to white commentators asking: "Where are the fathers?"

https://www.usatoday.com/story/sports/columnist/mike-freeman/2023/04/03/angel-reeses-taunt-iowas-caitlin-clark-shows-double-standard/11591498002/

What can we learn from this incident to catch less obvious bias in our own writing?  The long answer: my class spent fourteen weeks looking at scholarship on writing and bias to help us start to answer this question, and removing bias takes work and careful attention.  One shorter answer:  many of the rules of good writing, like using active voice and direct sentence structure, help us avoid bias.  Being attentive to our own underlying privilege and bias and asking a trusted colleague to proofread helps too.  There are many thoughtful ideas on addressing bias in our legal publications.  For just a few, consider recent articles, like I Think He’s Nice But He Might Be Mad About Something, 25 U.C. Davis Soc. J. L. Rev. 73, 99 (2021), and older scholarship, like Prof. Lucinda Finley’s Breaking Women’s Silence in Law:  The Dilemma of the Gendered Nature of Legal Reasoning, 64 Notre Dame L. Rev. 886, 886-97, 909 (1989).

I give this example of overt bias in sports discussions not as a suggestion appellate lawyers often show such bias, but as a reminder we all must be as thoughtful as possible in the words we choose.  My students helped me see we should all take the time to edit for bias when we check for clarity and punctuation, and we should mentor new appellate writers to do the same.

When is an appellate decision not precedent?

When is an opinion of an appellate court not precedent? The answer to that question largely depends on the jurisdiction.

In a recent opinion, the North Carolina Supreme Court brought forth another related question: when can the highest appellate court of a jurisdiction decide that an intermediate appellate court's decision is not precedent? The answer to that question also varies from jurisdiction to jurisdiction.

For many years the issue of how to treat "unpublished" opinions--are they precedential or not?--has bounced around in various appellate courts. Before the internet age, unpublished opinions truly were unpublished. After all, the opinions did not appear in the printed reporters and were only available if one went to a clerk's office and asked for a copy. Back then, no one really was citing an unpublished opinion in a brief unless it was for some kind of res judicata purpose--mainly because no one even knew what the opinions said.

At some point, these so-called unpublished opinions began appearing on appellate court websites. And eventually they ended up on Westlaw and Lexis. You can hardly call them unpublished now--not many people reach for a reporter when searching for case law anymore. At most, they may--depending on the jurisdiction--still be considered non-precedential.

After much criticism and at least one opinion declaring unconstitutional the practice of considering opinions denominated unpublished as non-precedential, the Federal Rules of Appellate Procedure were amended in 2006 to provide that courts could not prohibit parties from citing unpublished opinions. See Fed. R. App. P. 32.1(a); Anastasoff v. United States, 223 F.3d 898, 901 (8th Cir.), vacated as moot, 235 F.3d 1054 (2000). Even so, the new rule does not tell the courts that unpublished opinions must be considered as precedent or otherwise how to utilize them. See Elizabeth Earle Beske, Rethinking the Nonprecedential Opinion, 65 UCLA L. Rev. 808, 810 (2018).

States also have various rules concerning unpublished opinions. In North Carolina, for instance, a rule provides that the North Carolina Court of Appeals need not publish an opinion if the panel deciding the case believes that "the appeal involves no new legal principles and that an opinion, if published, would have no value as a precedent[.]" N.C. R. App. P. 30(e). The rule further provides that an unpublished opinion "does not constitute controlling authority" and that citation to unpublished decisions is "disfavored." Id. Nevertheless, the rule does permit citation of an unpublished opinion "[i]f a party believes . . . an unpublished opinion has precedential value to a material issue in the case" and there are no published opinions "that would serve as well[.]" Id.

Additionally, some states provide that their supreme court gets the final word on what opinions of the state's intermediate appellate court are published. In California, the California Supreme Court can "depublish" a decision of the California Court of Appeals. Cal. Rules of Court, Rule 8.1125. In Kentucky, the Kentucky Supreme Court decides which opinions of the Kentucky Court of Appeals are published. Ky. Rev. Stat. § 21A.070.

In a recent decision of the North Carolina Supreme Court, the court decided per curiam that discretionary review of a published North Carolina Court of Appeals decision was "improvidently allowed." Mole' v. City of Durham, No. 394PA21, 2023 N.C. LEXIS 274 (Apr. 6, 2023). The court did not issue a merits opinion. That in and of itself is not unusual. But the court's decision also provided that the court of appeals decision, while "left undisturbed," would stand "without precedential value."

A two-justice concurrence in Mole' stated that "unpublishing" the court of appeals decision was nothing new. Indeed, the court had routinely ruled that decisions of the court of appeals were left undisturbed but without precedential value.

Two dissenting justices in Mole' contended that the high court had in the past left decisions of the court of appeals undisturbed but without precedential value only when at least one of the court's seven justices was recused and the vote of the remaining justices were either equally divided or consisted of a majority of justices not equal to at least four.

The average person, of course, will not find this the least bit interesting. But for those of us appellate types, it does lead to some interesting questions that eventually will have to be answered.

First, is this so-called unpublishing a good idea? Some of the criticism of California's rule allowing for "depublishing" is that it reduces transparency and accountability, permitting the higher court to do away with precedent it does not like without specifying its reasons in writing. See Philip L. Dubois, The Negative Side of Judicial Decisions Making: Depublication as a Tool of Judicial Power and Administration on State Courts of Last Resort, 33 Vill. L. Rev. 469, 476-78 (1988). The concurring justices in Mole', on the other hand, believed the result was better than having a fractured and confusing decision from their court.

Should there even be non-precedential opinions of an appellate court? Some of the original reasons for having unpublished opinions, still noted for example in the North Carolina rule, were the cost of publication and need to provide storage space. See N.C. R. App. P. 30(e). Whether those remain concerns or not, some courts and commentators believe there are constitutional problems related to not treating all appellate court decisions as precedent. See Johanna S. Schiavoni, Who's Afraid of Precedent?: The Debate Over the Precedential Value of Unpublished Opinions, 49 UCLA L. Rev. 1859 (2002).

The bottom line is that the days of unpublished opinions being unavailable for citation are long gone. More and more states eventually will have to come to terms with how to treat these opinions (or whether to even have them) and whether any published case should ever be stripped of its precedential value if not reversed by a higher court.

 

Demeanor in the virtual courtroom

The United States Supreme Court provides counsel with a "Guide for Counsel in Cases to be Argued Before the Supreme Court of the United States." In that guide, counsel can learn how they should dress (conservative business dress in traditional dark colors), where they should sit, how they should move to and from those seats, how they should address the justices ("justice," and never "judge"), and so on. Similarly, in moot court, there is a category on most ballots labeled "courtroom demeanor," where fledgling appellate advocates are judged in how they comport themselves in court.

In the trial world, counsel is often reminded that the jury is always watching. Anecdotes abound. One attorney, who represented a car manufacturer at trial, was seen driving a car manufactured by another company. The jury decided he did not believe in his client and penalized him at trial. Another attorney told the jury in voir dire about his wife and family. The jury noted he was not wearing a wedding ring, and decided he was a liar. Eye rolls, sighs, and disrespect shown in a multitude of ways are blamed for countless lost cases.

But for some reason, when appearing virtually, many lawyers forget that demeanor matters. At one recent matter, I saw opposing counsel sighing, rolling eyes, getting up, getting snacks and water, and laughing with staff, all on camera, and all while opposing counsel, witnesses, and even the judge were speaking.

I get it. Having a camera on you for hours desensitizes you to the technology. If you don't have your camera shown, in particular, you can quickly forget that you are seen. But most counsel I know use "gallery view" in their zoom or other virtual software, as do most judges, so that not just the speaker is shown. And just like in the real courtroom, your behavior on that screen matters.

Credibility is the coin of persuasion. Why waste that credibility by acting poorly on screen? And while the behavior I described above was at a hearing, I have seen similar behavior during oral argument, when the justices are going to go back into chambers (virtually, perhaps, or in person), where you should hope they will discuss the merits of your argument, and not the content of your character writ large on their screens.

So please, even when appearing virtually, remember that demeanor matters. And don't forget to wear your conservative business dress in traditional dark colors.

(image credit: Image created in Bing Image Center, Powered by DALL-E AI image generator, using the prompt "attorneys behaving badly at counsel table, in the style of Thomas Nast.")

The Journal of Appellate Practice & Process is now accepting articles

The Journal of Appellate Practice and Process is now accepting articles for its Winter 2024 issue, which is set to be published in January/February 2024. For submission guidelines and to submit an article, please visit here. We tend to favor shorter, more practice-oriented pieces that would be of interest to judges and practitioners.

Please feel free to reach out to me with any questions about submitting!

Why Paul Clement Is So Good

Attorney Paul Clement is among the best attorneys – and oral advocates – in the United States. And for good reason. His oral advocacy skills are second to none. In fact, listening to even one of Paul Clement’s arguments before the United States Supreme Court provides law students and young lawyers with invaluable tips on what it takes to be an outstanding advocate. Below are a few reasons why Paul Clement is among the country’s best lawyers.

1.    Confidence

As Woody Allen said, 90% of life is just showing up. And when you do show up, it’s critical to have confidence. Paul Clement has the confidence (or ‘swagger’) that reflects self-assuredness and conviction in his arguments. Put simply, he owns the courtroom and commands respect.

2.    Preparation

No attorney can outwork Paul Clement. He is so prepared that he never uses notes and can cite the page and line number of, for example, a deposition. In short, Clement knows every detail of his case, including the law that governs its disposition.

3.    Conversational tone

Many lawyers who argue before the United Supreme Court will understandably be nervous and, perhaps, overly formalistic when making their arguments.

Not Paul Clement. When Clement argues before the Supreme Court, he has a conversation with the Court, much like you would have a conversation with one of your friends. As Professor Richard Lazarus of Harvard Law School states, “[h]e’s very smooth. He’s engaging. Formal but not too much so. Extremely credible and straight with the justices. You don’t have the sense that anyone is trying to sell you anything.”[1]

It almost seems that Clement enjoys engaging with the justices, which reflects his confidence and personability.

4.    Integrity and credibility

Paul Clement has integrity. He never misrepresents the law or the facts. He never acts in an arrogant, disrespectful, or dismissive manner. Rather, he presents the law and facts honestly and thoroughly, and explains with persuasiveness why he should win. Doing so reflects his integrity and enhances his credibility with the Court.

As one Supreme Court advocate stated, “[h]e just doesn’t do things that upset people … [t]here’s no edge to him.”[2]

5.    Persuasiveness

Paul Clement is extremely persuasive. Whether it is, for example, his tone, word choice, ability to distinguish precedent, skill at addressing unfavorable facts and crafting a compelling narrative, or using non-verbal techniques, Paul Clement is among the most talented at telling a persuasive story that maximizes his likelihood of success.

6.    Answering judges’ questions directly and effectively

One of the most important aspects of effective appellate advocacy is answering a judge’s questions directly and persuasively, and adjusting your argument based on the concerns that a judge expresses about the merits of your case. Paul Clement is among the best, if not the best, at doing so.  An excellent example is Clement’s argument in Kennedy v. Bremerton School District (21-418_3dq3.pdf (supremecourt.gov)).

Ultimately, Paul Clement’s oral advocacy skills exemplify what it means to be a great lawyer and advocate. Both law students and young law lawyers would benefit from listening to his oral arguments. 

 

[1] Natalie Singer, ‘Defending Unpopular Positions is What Lawyers Do,’ says Paul Clement, ’92 (January 31, 2012), available at: 'Defending unpopular positions is what lawyers do' says Paul Clement '92 - Harvard Law School | Harvard Law School

[2] Jason Zengerle, The Paul Clement Court (March 16, 2012), available at: Why Paul Clement Is the GOP’s Great Hope for This Supreme Court Season -- New York Magazine - Nymag

When an Ethics Code is Not Enough

Revelations that Justice Clarence Thomas and his wife received more than two decades of luxury trips and gifts from a billionaire friend, who has donated significant amounts to conservative political causes, have raised the volume on calls for a set of ethics rules for Supreme Court justices. The largesse that took place over two decades to the Thomases largely went unreported on financial disclosure forms the justice filed because he understood that the rules exempted personal hospitality. While others have interpreted the rules to require disclosure, new rules that went into effect in March have removed any ambiguity – and Justice Thomas has indicated that he would report the trips and gifts in the future.

The new information, the product of a ProPublica investigative report, piles onto other developments that have raised the temperature on the absence of a binding ethics code for Supreme Court justices. These include allegations that Justice Samuel Alito or his wife may have leaked the result in Burwell v. Hobby Lobby Stores, Inc. in 2014 several weeks before it was announced, the leak of the draft opinion in Dobbs v. Jackson Women’s Health Org. last year, and Justice Thomas’s refusal to recuse himself from cases arising from the 2020 presidential election even as his wife was involved in activities to overturn its result.

Federal law already mandates that “[a]ny justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.”[1] That seemingly comprehensive standard also has a largely amorphous quality to it. Still, it is supplemented by a number of specific examples of circumstances that warrant recusal: instances where the justice harbors a “personal bias or prejudice concerning a party” or “personal knowledge of disputed evidentiary facts,” where the justice previously served as a lawyer or practiced with one concerning the matter or was a material witness in the case; where the justice had participated, even to the point of expressing an opinion, in the matter as a government employee; where the justice, a spouse, or child living in the household has a financial or other interest that could be “substantially affected” by the outcome of the of the proceeding.[2]

New rules promulgated by the Judicial Conference and that went into effect in mid-March require federal judges, including Supreme Court justices, to report all travel by private jet and paid-for stays at commercial properties, such as hotels, resorts or hunting lodges.

Still, some members of Congress have pledged to investigate the facts behind the latest revelations and consider imposing an ethics code on the Supreme Court. Senator Sheldon Whitehouse (D-RI) has noted that, out of all federal officials, only Supreme Court justices lack a binding ethics code.

In the absence of a mandatory code, and perhaps to stave off a conflict between branches of government, Chief Justice Roberts has said that the justices voluntarily consult the law applicable to other federal judges in making ethical determinations. From time to time, justices have suggested that the Court might adopt a code of its own, yet mounting pressure has not resulted in a Supreme Court-specific set of rules.

The current financial disclosure requirements applicable to federal judges are subject to review and potential punishment by the chief judge of the respective circuits yet does imbue the Chief Justice with the same authority over the justices. Chief Justice William H. Rehnquist considered that type of discipline or oversight outside of his authority, noticing that recusal was a question that that “each justice must decide” individually under settled practices.[3] In fact, it is often said that the chief justice is merely the first among equals. The chief justice’s dilemma recalls an incident involving Justice James McReynolds, a Woodrow Wilson appointee remembered for racist, misogynistic, and  anti-Jewish outbursts and actions. To assure Justice McReynolds’s on-time arrival on the bench for Court, Chief Justice Charles Evans Hughes sent a messenger with a polite request. The acerbic response from the associate justice: “Tell the Chief Justice that I do not work for him.”

And that highlights the dilemma that any Supreme Court ethics code faces: how can it be enforced? Transparency through disclosure has its benefits, but lifetime tenure provides a significant buffer to any condemnatory reaction from the public, even when the public gives more than fleeting attention to the transgression. However, flaunting disclosure rules or refusing to recuse under the guise of necessity can be harmful to the fair administration of justice. In Caperton v. A. T. Massey Coal Co.,[4] the Court recognized that there are situations, such as one where the financial interest of a political supporter is at stake, that creates a danger of actual bias is so great that the Constitution itself requires recusal.[5]

In Caperton, the failure to recuse required the West Virginia Supreme Court of Appeals to rehear the dispute without the justice who should have recused. If the same situation arose in the U.S. Supreme Court, it would undoubtedly be messier. It would require a decision of the other justices that found a constitutional violation in a colleague’s decision not to recuse. Unless the consequent due-process violation was utterly crystalline, it seems unlikely that the justices would act. That leaves but one other enforcement mechanism: impeachment. And in today’s political environment, the possibility seems theoretical at best. That leaves a new ethics code as largely hortatory, which would still have some value but allow a rogue justice to resist compliance.

 

[1] 28 U.S.C. § 455(a).

[2] Id. at § 455(b).

[3] William Rehnquist, “Let Individual Justice Make Call on Recusal,” Atlanta J.-Const., Jan. 29, 2004, at 15A.

[4] 556 U.S. 868 (2009).

[5] In the new controversy, Justice Thomas’s benefactor, real estate developer Harlan Crow, denied that he had any cases before the Supreme Court or discussed or attempted to influence any case where the justice might have been involved. Still, reports indicate that Crow provided financial support to at least two groups that filed amicus briefs whose views were, unsurprisingly, consistent with the way Justice Thomas voted.

Prompt Engineering for ChatGPT Can Improve Your Legal Writing—Even if You Never Use ChatGPT

Thursday’s Rhaw Bar: A Little Bite of All Things Rhetoric and Law—exploring ideas, theories, strategies, techniques, and critiques at the intersection of rhetoric and legal communication.

Prompt Engineering for ChatGPT Can Improve Your Legal Writing—Even if You Never Use ChatGPT

Generative artificial intelligence (AI), like ChatGPT and Bing’s AI-powered chat, is motivating a fundamental reconsideration of the ethics and practicalities of how humans can produce good writing.  In the legal writing context, there’s plenty of discussion around whether and how legal writers should use generative AI as part of writing practice.  While I’m not going to delve into the questions about whether and how to best use generative AI like ChatGPT in legal writing (I’ve already done a little bit of that here), I want to look at a skill necessary for working effectively with generative AI that I think can help you be a better writer in general:  prompt engineering or prompt design.   Understanding prompt engineering and applying it to your own writing can help you write better.

What is Prompt Engineering?

Prompt engineering is the process of using specific words and phrases along with choices about the structure and organization of those words and phrases to write instructions that improve generative AI’s ability to provide a response that is useful to a human prompter.  The emerging literature around generative AI suggests that prompt engineering will be a skill that writers will need to competently use large language models like ChatGPT. 

Prompting for ChatGPT is done in natural language, in everyday conversational English (for English speakers). This is because ChatGPT is trained to understand and respond to conversation in a conversational manner.  So no specialized programming knowledge is needed to prompt ChatGPT;  instead, a human prompter needs two things:  (1) an understanding the rhetorical situation to which ChatGPT is being asked to respond, and (2) an ability to communicate that rhetorical situation precisely and clearly to ChatGPT in everyday language.

Prompt Engineering and the Rhetorical Situation

Prompt engineering, at bottom, represents a human ability to carefully describe rhetorical situations that call for some kind of communicative response.  In other words, prompts give ChatGPT a way to get to know the rhetorical situation confronting the human prompter, which includes the needs of the audience, the limitations and opportunities presented by the context, and the purpose of the writing in relation to the issues confronted by the writer. Like all other writing, writing generated by ChatGPT is more effective if it is written specifically for the rhetorical situation the human writer envisions; that is, it is written for a specific audience, with a specific purpose, and in an appropriate tone.  The better engineered a prompt, the better chance there is of generating useful text appropriate for the rhetorical situation. 

An Example of the Basic Techniques of Prompt Engineering

Ultimately, prompt engineering is a set of techniques that encourage ChatGPT to generate more useful responses.  There’s quite a bit to know about prompt engineering, but reviewing the basic concept will help you understand how prompt engineering techniques can improve your own writing regardless of whether generative AI is part of the process.  Let’s walk through an example of how we might prompt ChatGPT to generate content about an appellate standard of review.

 “Write a paragraph that sets out the de novo standard of review.”

This is a basic prompt in the form of an instruction, and I used it to get this result from ChatGPT: 

The de novo standard of review is a legal standard applied by courts when reviewing decisions made by lower courts or administrative agencies. Under this standard, the reviewing court gives no deference to the decision made by the lower court or agency, and instead, conducts a completely fresh review of the evidence and legal arguments presented. This means that the reviewing court does not consider the lower court or agency's decision as binding or controlling and has the power to make an entirely new decision based on the evidence and arguments presented to it. The de novo standard of review is typically used in cases where there are no factual findings to be reviewed, or when the issue being reviewed is a question of law.

Not too bad, but through prompt engineering, I might generate a better result.  First, I can give ChatGPT context about the rhetorical situation, specifically describing the audience for whom it is writing: 

“You are writing an appellate brief for the United States Court of Appeals for the 11^th Circuit.  Appellate court judges are your audience.”

I can also describe to ChatGPT the specific output I expect: 

“Write a paragraph that sets out the de novo standard for the standard of review section of the appellate brief.”  

So now, my more specific, detailed, and rhetorically aware prompt looks like this:

“You are writing an appellate brief for the United States Court of Appeals for the 11^th Circuit.  Appellate court judges are your audience. Write a paragraph that sets out the de novo standard for the standard of review section of the appellate brief.”

In this prompt, I've added more information about the rhetorical situation for ChatGPT to draw upon as it attempts to predict the best response for the prompt.  (Remember, ChatGPT and other generative AI predict what words are appropriate in response to the prompt; they do not think, analyze, or evaluate, they predict using mathematical models for language). 

This was the response to my new prompt:

In this appellate brief, we are appealing a decision made by a lower court to the United States Court of Appeals for the 11th Circuit. As appellate court judges will be our audience, it is important to explain the standard of review that will be applied in this case. Under the de novo standard of review, the appellate court will review the lower court's decision without giving any deference to the lower court's findings or legal conclusions. The appellate court will instead conduct a fresh review of the record and make its own determination as to the appropriate legal outcome. This standard of review is typically applied in cases where the lower court's decision involved purely legal issues or when there were no factual findings made by the lower court. In this case, we argue that the de novo standard of review should be applied to our appeal.

Two notable things happened here. First, expert legal writers will recognize stylistic junk in the response.  Specifically, a clumsy first sentence, an explicit nod to judges as the audience, and a specific statement that it is important to identify the standard of review are all stylistically awkward choices for an appellate brief.  But second, and more favorably, experts will recognize that ChatGPT generated a response that is more rhetorically aware:  it generated a response that is less academic in its tone and is written from the point of view of the appellant. While the voice of the paragraph needs more attention in revision, ChatGPT has improved the rhetorical sensibility of the response.

But I think I can get ChatGPT to do better.

Rather than having ChatGPT start over with a new paragraph, I’m going to give it a chance to revise the existing paragraph.  I will ask ChatGPT to revise what it wrote, and I will give it more detailed information about the rhetorical situation (in other words, I will add more input data for it to work with in generating a response).  I’ll tell ChatGPT that I am dealing with an appeal from summary judgment and that I’d like some case citations:

“Revise this paragraph to focus on the standard of de novo review for summary judgment motions.  Add citations to cases from the United States Court of Appeals for the Eleventh Circuit that support the assertions in the paragraph.”

Here’s the response:

In the United States Court of Appeals for the Eleventh Circuit, the standard of review for summary judgment motions is de novo. This means that the appellate court will review the lower court's decision on summary judgment without any deference to the lower court's findings or legal conclusions. The appellate court will conduct a fresh review of the record to determine whether there are any genuine issues of material fact and whether the moving party is entitled to judgment as a matter of law. As stated in Gil v. Winn-Dixie Stores, Inc., 257 F.3d 1258 (11th Cir. 2001), "we review a grant of summary judgment de novo, applying the same legal standards as the district court and viewing the evidence in the light most favorable to the nonmoving party." Similarly, in Rice-Lamar v. City of Fort Lauderdale, 232 F.3d 836 (11th Cir. 2000), the Eleventh Circuit held that "we review the grant of summary judgment de novo, drawing all inferences in favor of the nonmoving party." Therefore, we ask the appellate court to apply the de novo standard of review in this case to ensure a fair and impartial review of the lower court's decision on summary judgment.

A good appellate writer will recognize that there’s still some stylistic awkwardness in this paragraph that can be eliminated with some revision.  For example, the paragraph can be made more concise by eliminating the quoted material from the case law and instead using the citations provided (assuming they are accurate—accuracy cannot be assumed with ChatGPT) to support the first three sentences of the paragraph. But what is good about the paragraph is that its detail, point-of-view, and tone are more tailored to the rhetorical situation confronting the appellate writer, and the paragraph is responsive to the human prompter’s details. At minimum, there is more richness in the content that the human drafter can use to write  an effective statement of the standard of review.

In sum, three ideas about writing emerge from our prompt engineering example:

• Good writing depends on the writer’s ability to carefully interrogate and explicitly articulate the features of the rhetorical situation.
• Being able to identify and articulate the specific writing task to be performed, the context for that task, the details of that context, and the output to be generated can improve the chances of writing to effectively respond to the rhetorical situation.
• Prompt engineering can improve the process of making targeted, thoughtful, and specific revisions.

Using Prompt Engineering in Your Own Writing (and in Mentoring Others’ Writing)

Even if a legal writer never uses a tool like ChatGPT to generate text, using the techniques of prompt engineering in the writing process can help legal writers write better.

It’s likely true that experts in appellate writing subconsciously generate prompts like those we’ve examined here, and those subconscious prompts guide their writing. But remember that ChatGPT got better at its task when it received explicitly stated, detailed prompts.  What might it look like to do the same thing in your own writing, to use prompt engineering as a conscious step?  And could prompt engineering help expert writers mentor inexperienced ones?

Here’s an example of how prompt engineering might help a more experienced writer mentor a more novice one.

Imagine this case. A school district disciplines a high school student for refusing to participate in a school assembly honoring Veteran’s Day.  The student asserts a political motive for refusing to participate and that the discipline violates her free speech rights.  Both the school district and the student move for summary judgment before the trial court.  The court grants summary judgment for the school district and denies it for the student.  The student’s lawyers, one senior appellate lawyer and one junior one, are working together on the appeal, arguing that, as a matter of law, the trial court decided the cross-motions incorrectly.

The junior lawyer has written the first draft of the brief, but the senior lawyer has found it lacking in persuasiveness, particularly because the junior lawyer has not been effective in supporting her argument with factually analogous cases that have outcomes favorable to the student’s position.

In guiding the junior lawyer’s revisions (whether in conversation or in writing), the senior lawyer could use prompt engineering techniques.  The senior lawyer could give the junior a basic instruction like “Improve the quality of the analogies in the arguments.”  But engineering that prompt could yield better results. First, a better instruction would clarify the task: “Add to the argument analogies to cases that are factually similar and support the outcome we seek.”

Then the prompt would include context that helps the junior lawyer see the rhetorical situation more clearly and from the point of view of the more experienced lawyer.  For example, the senior lawyer could add:

“The judges will find analogies to cases persuasive.  Cases where an appellate court has reversed summary judgment on similar facts are good for analogies. Ideally, you want to draw the court’s attention to cases where a student was silent or absent from a required school activity and asserted a political reason and the court thought the student was entitled to summary judgment.”

Even further, a good prompt from the senior lawyer could include the output expectation:  “Revise your argument paragraphs to add comparisons to at least two cases (if you can find them) that are analogous on their facts and favorable on their outcome.  Be specific about the analogies—use details to show how the cases are similar to our case.”

So, what’s going on here?  We’ve engineered a prompt—from senior lawyer to junior one—that is more likely to yield what the senior lawyer knows will be more effective argument in the appellate brief. It includes detailed instructions, input data about useful analogies, audience information, and clear output instructions.

While this example reflects communicating a prompt between two people, you can be your own audience for a prompt.  Before beginning a project,  you might write a prompt that will guide the drafting. In addition, when you are struggling with a particular part of a document, you might stop and ask, “What is my prompt for writing this?”  “What instructions do I give myself here?  What is the context, the audience, the purpose?  What is the output I’m seeking?”  You might even take a moment and write that prompt down to focus your efforts.  By using the techniques of prompt engineering, you can slow down the process and explicitly analyze the rhetorical situation, which can improve the output.

The Recap

Prompt engineering is a useful technique for working with generative AI because prompt engineering can improve the quality of the responses generated.  But prompt engineering can also be a useful technique for legal writers more generally because prompting forces writers to carefully articulate the demands of the rhetorical situation and define precisely what response to that situation is appropriate.  The prompt engineering method of creating precise writing instructions, contextualizing those instructions with detail about rhetorical situation, and describing the desired output can help a writer generate text, revise existing text, or give good feedback to other writers.  Prompt engineering can help with writing and revision at all levels, from drafting the entire document to the revision of sentences.

Kirsten Davis teaches at Stetson University College of Law and in the Tampa Bay region of Florida. She is the Co-Director of the Institute for the Advancement of Legal Communication. The Institute’s mission is to study legal communication issues and provide programming and training that improves legal communication skills. Among other things she’s up to right now, she’s currently working on a writing handbook written specifically for trial lawyers. The views she expresses here are solely her own and not intended to be legal advice. You can reach Dr. Davis at [email protected]

The Trump Indictment

Donald Trump has been indicted. Although this is not a surprising development, it is not a good day for the rule of law or for public confidence in our institutions.  

To begin with, a grand jury indictment is not nearly as significant as some in the media would have you believe. As the saying goes, grand juries would indict a “ham sandwich” because the threshold for securing an indictment is not high, and the defense’s ability to test the prosecution’s case is limited.[1] Furthermore, the investigation occurred in New York City, where liberals substantially outnumber conservatives, and where Trump is, to put it mildly, not admired. When you combine these factors with a district attorney – Alvin Bragg – who seems hellbent on indicting Trump (as evidenced by his public statements and legal theory) you have the perfect storm for an indictment that appears more political than principled.[2]

Indeed, Bragg appears to care more about convicting Trump than addressing the approximately 22% increase in various crimes in New York City. As Harvard Law Professor Dershowitz, who did not vote for Trump, explains:

When a district attorney who ran as a Democrat and promised to “get” Donald Trump indicts the candidate running for president against the incumbent head of his party, he had better have a slam dunk case. Although we don't know exactly what the Manhattan grand jury indicted Trump for, it seems likely, based on what we know, that this is a very weak case which would never have been brought against anyone else.[3]

Put simply, the case against Trump is not strong. In fact, if media reports are correct about the charge Trump is facing, it is incredibly weak. As George Washington law professor Jonathan Turley states, Bragg “is attempting to bootstrap [a] federal crime into a state case,” and “if that is the basis for the indictment … it’s illegally pathetic.”[4]  Likewise, former Whitewater deputy counsel Sol Wisenberg characterized the legal case against Trump as “preposterous.”[5] Even some liberal commentators agree that the case against Trump is not strong.[6] For example, Elie Mystal asserts that “the odds that the path to real justice, let alone prison time, runs through the Manhattan DA’s office still seem very, very long.”[7]

Specifically (and again, if media reports are correct), the charge against Trump is falsifying business records, which requires, among other things, an intent to defraud. The legal theory, apparently, is that Trump falsified business records (characterizing them as legal expenses) when reimbursing Michael Cohen for paying Stormy Daniels $130,000 to conceal Daniels’ affair with Trump (to be clear, paying “hush money” to another is not, in itself, a crime). In New York, this is a misdemeanor, and it only becomes a felony “if it was in service of another crime,” which Bragg allegedly “posits is a [federal] campaign finance violation.”[8]  

Importantly, the Southern District of New York, which investigated this matter, declined to prosecute the case.[9]  Also, former Manhattan District Attorney Cy Vance, did not pursue an indictment.[10] And for good reason. Why would a prosecutor try to convict a former president for a misdemeanor, particularly where the Southern District of New York declined to prosecute, the case is so weak, and where doing so would appear politically motivated?

None of these factors seem to matter to Bragg, a Democrat who in his campaign for Manhattan District Attorney promised to focus on investigating Trump, stating that it “merits the attention of the DA personally.”[11] Apparently, Bragg is attempting to connect Trump’s alleged misdemeanor-level misconduct to a federal campaign finance violation, which is a felony, by alleging that the payments to Cohen constituted an illegal contribution to the Trump campaign.

Such a creative and novel legal approach suggests that Bragg is searching for some way, however untenable, to bring a felony charge against Trump. But it is unlikely to succeed. As Mark Pomerantz, a former district attorney, stated, Bragg will “have to argue that the intent to commit or conceal a federal crime had converted the falsification of the records into a felony. No appellate court in New York had ever upheld (or rejected) this interpretation of the law.”[12] In other words, the “intent to defraud” must include “an intent to commit another crime or to aid or conceal the commission thereof.”[13] That alone will be difficult to prove, as Trump may argue that the payments were intended to prevent his wife Melania from discovering the affair, not to cover up another crime (an illegal campaign contribution). 

Furthermore, if reports from the media are accurate, the primary witness for the prosecution will be Michael Cohen, a disbarred lawyer who pled guilty to, among other things, tax fraud, who served time in prison, and who has lied countless times, including before Congress.[14] If you doubt this, listen to the statements by Robert Costello, who testified recently before the grand jury.[15]  Also, one must wonder how Trump can be prosecuted for a federal campaign violation in New York state court, why such a prosecution should be pursued when the Southern District of New York declined to do so, and where the optics of such a prosecution suggest a political motive.

Such creative lawyering (tying a state law misdemeanor to a federal felony), rather than being a legitimate purpose of the criminal justice system, suggests that the Bragg wants to weaponize the legal system to “get” Trump.  As Dershowitz explains:

This is a case of targeting an individual and then rummaging through the statute books in search of a crime. Prosecutors seem to have come up with nothing under established law, then made up a misdemeanor and then piggybacked it on another alleged crime to create a felony. But one plus one does not equal 11, and zero plus zero equals zero. That is what we seem to have here.[16]

Simply put, this is a weak case that appears as politically motivated as it gets. Indeed, it is quite concerning that, as Bragg has reduced 52% of felony charges in New York to misdemeanors, he now seeks to raise Trump’s alleged crime from a misdemeanor to a felony.[17] Perhaps Bragg’s personal attention should be devoted elsewhere, particularly given the 22% rise in certain crimes in New York City.[18]

Ultimately, no matter what you think of Trump, everyone should, hopefully, believe that the law should be applied in an equal and even-handed fashion. Think about it: if the defendant were anyone other than Donald Trump, would Bragg be pursuing this?

Of course not. 

Well, maybe if it were Richard Nixon.

In essence, Bragg is going after the person (Trump), not the crime. That, in a nutshell, is the point – and the problem.

After all, let’s be honest about what is happening here.

Bragg probably despises Trump. Furthermore, when (and before) Donald Trump was elected in 2016 as an anti-establishment candidate, the mainstream media hated him.[19] Indeed, the mainstream media, which has as much, if not less, credibility than Michael Cohen, did nearly everything in its power to discredit and, quite frankly, destroy Trump, as evidenced by, among other things, the now-debunked allegations of Russian collusion.[20] 

Additionally, the establishment, including individuals such as James Comey and Peter Strzok, hated him. Furthermore, universities, which are overwhelmingly liberal and who employ professors who believe that diversity of thought is more deleterious than the coronavirus, have almost uniformly condemned Trump and unapologetically rejected a free marketplace of ideas. If you doubt this, look at what happened to Fifth Circuit Judge Stuart Kyle Duncan at Stanford Law School, where students and Tirian Steinbach, the Associate Dean of Diversity, Equity, and Inclusion, shouted down Duncan for views that they did not share.[21]  Or observe the circus-like shenanigans of students at Yale Law School, where they ridiculed Kristen Waggoner, an attorney and Supreme Court litigator.[22] The commitment to diversity, equity, and inclusion (and free speech) obviously exists only in the abstract at these schools. 

The consequences that Trump’s prosecution will have to our institutions – and the rule of law – will be substantial. The legitimacy of our institutions depends in substantial part on the perception that our elected officials apply the law equally, fairly, and even-handedly, without regard to political affiliation or personal animus. If the rule of law is perceived as a political weapon (see, e.g., North Korea, Russia), the law itself will be reduced to nothing more than a tool for politicians to use against those who threaten their power. And there is no bigger threat to liberty and equality than a rule of law that is administered based on politics rather than principle, and opportunism rather than objectivity. The rule of law – and the American people – demand much more and should accept no less. 

Put differently, people need to believe that you will never be prosecuted or targeted based on what you believe, what your political affiliation is, or who you are. It should be based on what you did, and whether those actions would result in a prosecution for most, if not all, individuals, regardless of status, who engaged in similar conduct. That is simply not the case here. If the defendant were Joe Biden rather than Donald Trump, there would be no prosecution.

It's no wonder why the American people have lost faith in our institutions, academics, and elected leaders. Years ago, individuals such as Walter Cronkite, Robert C. Maynard, and Peter Jennings exemplified the standards to which journalism – and our institutions – should aspire. Now, the American people are treated to the folks at CNN, Fox News, and MSNBC, few of whom can even remotely compare to the journalistic integrity that the former individuals embodied. Even a few seconds of listening to Bryan Stelter or Joy Reid, or Glenn Beck underscores this point.

Indeed, Bragg’s conduct – and the conduct of many political leaders, prosecutors, and pundits – leads to one ineluctable conclusion.

They are political actors.

Their goal is to advance a political agenda.

And they don’t even hide it anymore.

As Professor Dershowitz stated, “[w]hat matters greatly is that DA Alvin Bragg has weaponized the justice system to target a political opponent based on a nonexistent or, at best, an extremely weak crime.”[23]

Unfortunately, this nonsense is not without precedent.

In 1998, the Republicans spent millions of taxpayer dollars to impeach Bill Clinton (in the House of Representatives) over a consensual affair (and alleged perjury and obstruction of justice) that, while not, to put it nicely, the best exercise of judgment, could not reasonably have been construed as a high crime and misdemeanor. And Ken Starr did everything in his power to degrade and humiliate Clinton with a report laden with salacious details that no sensible person would have included. Well, here we are again: a criminal indictment against a former president and leading candidate for the Republican Party’s nomination based on an affair with a porn star. Not to mention, the United States Supreme Court manufactured out of thin air a right to abortion in Roe v. Wade, and approximately fifty years later, overturned Roe for no other reason than that the political persuasions of the Court had changed.

What’s more, it is nearly impossible to have a civil conversation with those with whom you disagree or to debate issues with others in an atmosphere of civility and respect.  Alvin Bragg’s decision makes this situation worse, not better and makes the country more divided, not united. Put simply, Trump’s indictment is an unsurprising, quite unoriginal, and obviously predictable continuation of this unfortunate chapter in American history.  

Ultimately, almost anyone can respect the rule of law, promote diversity of thought, and remain committed to fairness when they are surrounded by people who agree with them. But true leaders – and people with character and integrity – have the courage to be fair to every citizen, particularly the ones that they despise, just like the First Amendment depends on tolerating speech that you find offensive.

That is what the rule of law – and a society dedicated to liberty, fairness, and equality – demands, and what every citizen deserves.

That includes Donald Trump.

 

[1] Toni Messina, Criminally Yours: Indicting a Ham Sandwich (Feb. 8, 2016), available at: Criminally Yours: Indicting A Ham Sandwich - Above the Law

[2] Of course, this is based on the media reports regarding the legal charges that Trump will face. The indictment may contain facts and charges that make the case stronger.

[3] Alan Dershowitz, Trump Indictment Case Looks Like a Weak Exercise in Creative Prosecution (March 31, 2023), available at: Trump Indictment Case Looks Like a Weak Exercise in Creative Prosecution | Opinion (newsweek.com) (emphasis added).

[4]  Steven Nelson, Democrats Giddy at Trump Indictment, But Legal Experts Warn Case is Weak (March 30, 2023), available at: Democrats giddy at Trump indictment, but legal experts warn case is weak (nypost.com)

[5] Id.

[6] See Elie Mystal, Donald Trump Has Been Indicted/ Don’t Get Your Hopes Up (March 30, 2023), available at: Donald Trump Has Been Indicted. Don’t Get Your Hopes Up. | The Nation

[7] Id.

[8] National Review, The Reckless Trump Indictment (March 31, 2023), available at: Reckless Donald Trump Indictment | National Review (emphasis added) (brackets added).

[9] See Mystal, supra note 6, available at: Donald Trump Has Been Indicted. Don’t Get Your Hopes Up. | The Nation

[10] Jeremy Herb, Kara Scannell, and John Miller, Inside the Long and Winding Road to Trump’s Indictment (April 1, 2023), available at: Donald Trump: Inside the long and winding path to a historic indictment | CNN Politics

[11] See Kara Scannell, New Manhattan DA Alvin Bragg Pledges to Focus on Trump Investigations (Dec. 20, 2001), available at: Alvin Bragg: New Manhattan DA pledges to focus on Trump investigations | CNN Politics (emphasis added).

[12] Jose Pagliery, Manhattan DA Insiders Worry the Trump Hush Money Case is Weak Sauce (March 29, 2023), available at: Manhattan District Attorney Insiders Worry the Trump-Stormy Daniels Alvin Bragg Hush Money Case Is Weak Sauce (thedailybeast.com)

[13] Mark Joseph Stern, The Big Problem with the Trump Indictment (March 30, 2023), available at: Alvin Bragg’s indictment of Donald Trump is full of challenge and promise. (slate.com).

[14] See Laura Nahmias and Daniel Samuelsohn, Michael Cohen Sentenced to 3 Years in Prison (Dec. 12, 2018), available at: Michael Cohen sentenced to 3 years in prison - POLITICO

[15] See Bart Jansen and Kevin Johnson, Lawyer Assails Trump Grand Jury Witness as ‘Liar on Revenge Tour,’ (March 20, 2023), available at: Robert Costello undercuts Michael Cohen in Trump grand jury probe (usatoday.com)

[16] Dershowitz, supra note 3, available at Trump Indictment Case Looks Like a Weak Exercise in Creative Prosecution | Opinion (newsweek.com) (emphasis added).

[17] See Melissa Klein, NYC Convictions Plummet, Downgraded Charges Surge Under DA Bragg (Nov. 26, 2022), available at: Convictions plummet, downgraded charges surge under Manhattan DA Bragg (nypost.com) (emphasis added).

[18] See Chelsia Rose Marcius and Eh Shanahan, Major Crimes Rose 22 Percent in New York City, Even as Shootings Fell (January 5, 2023), available at: Major Crimes Rose 22 Percent in New York City, Even as Shootings Fell - The New York Times (nytimes.com)

[19] See Tony Perkins, The Numbers that Prove How Much the Mainstream Media Hate Trump (Dec. 14, 2017), available at: The Numbers That Prove How Much the Mainstream Media Hate Trump (frc.org)

[20] See Philip Ewing, Mueller Report Finds No Evidence of Russian Collusion (March 24, 2019), available at: Mueller Report Finds No Evidence Of Russian Collusion : NPR

[21] See Stuart Kyle Duncan, My Struggle Session at Stanford Law School (March 17, 2023), available at: My Struggle Session at Stanford Law School - WSJ

[22] See Bradley Evans, ADF General Counsel Harassed at Yale Law School Event (March 21, 2022), available at: ADF General Counsel Kristen Waggoner Harassed at Yale Law School Event | Alliance Defending Freedom (adflegal.org)

[23] Dershowitz, supra note 3, available at Trump Indictment Case Looks Like a Weak Exercise in Creative Prosecution | Opinion (newsweek.com) (emphasis added).

Journal of Appellate Practice and Process Volume 23 Issue 1

The Journal of Appellate Practice and Process – Winter 2023 Issue Now Available

The Winter 2023 issue of The Journal of Appellate Practice and Process (Volume 23, Issue 1) is now available. This special issue focuses on appellate issues in and around Indian country. It features the following pieces:

• Tessa L. Dysart—Appellate Issues In and Around Indian Country
• Todd R. Matha—An Unexpected Challenge: The Consequence of a Limited Tribal Appellate Caseload
• Derrick Beetso, Stacy Leeds, Robert Miller, Kevin Washburn—Oklahoma v. Castro-Huerta—Rebalancing Federal–State–Tribal Power  
• Barbara Ann Atwood—Standing Matters: Brackeen, Article III, and the Lure of the Merits  
• Adèle Auxier Keim—The Religious Freedom Restoration Act and Indian Law: From Individual Advocacy to Collective Action  
• Victoria Sutton—Appellate Courts: Stop Accepting an “Absurd” First Amendment Analysis for Native Nations’ Sacred Site Destruction  
• Neoshia R. Roemer—Reading American Indian Law