Appellate Advocacy Blog

It's not just Generative AI, it's Stenographers too

Instances of lawyers’ use (or rather misuse) of generative artificial intelligence tools such as Chat-GPT, have resulted in sanctions for violating rules of professional conduct or court rules. These cases generate much publicity—and no doubt embarrassment—for the lawyers involved. But there is nothing new under the sun (or in the practice of law). These cases simply represent recent and high-profile examples of lawyers being sanctioned or castigated for the way that they used the latest technology in their written advocacy.

In a 1902 case, a court noted that the latest technological advances had contributed to the lawyer’s violation of a court rule governing the contents of an appellate brief.[1] There, the court’s rule required each party to “‘briefly state upon his printed points, in a separate form, the leading facts which he deems established, with a reference to the folios where the evidence of such facts may be found.’”[2] The appellant violated the court’s rule by filing a brief that covered 117 printed pages and included lengthy quotations.[3] Lamenting the lawyer’s failure to comply with the court’s rule, the court said,

When every lawyer wrote his points with a pen, there was no occasion for complaint in this regard; but, since the use of stenographers has become general, the evil has grown until it is so serious that repression is necessary. We feel assured that these suggestions will be sufficient, and that we shall not be compelled to make a hard and fast rule upon the subject, and to provide for its violation by an appropriate penalty. We have been led to make these observations, not simply by this case, but by many, of which this is an example.[4]

 

[1] Stevens v. O'Neill, 169 N.Y. 375 (1902).

[2] Id. at 376.

[3] Id. at 376-77.

[4] Id. at 377.

A Primer on Ninth Circuit Binding Dicta: Judge Forrest’s Stein v. Kaiser Concurrence

Early in law school, you probably learned that dicta is non-binding.  Later, you also probably realized that application of this dicta rule, like so many other rules, depends.  For example, our 1L persuasive writing assignment last semester included a case discussing when Supreme Court dicta can be controlling.  Moreover, the Ninth Circuit has sometimes employed a “binding dicta” rule.

This week, Ninth Circuit Judge Danielle Jo Forrest detailed the history of the Ninth Circuit’s “dicta-is-binding rule,” which she called “burdensome and misguided.”  Stein v. Kaiser Fdn. Health Plan, Inc., __ F.4th __, 2024 WL 4271950, slip op. at 9 (9th Cir. 2024)(en banc)(Forrest, J., concurring).  In an opinion tracing the use of dicta from Sir Frances Bacon to today, Judge Forrest, joined by Judge Bumatay, asked the Ninth Circuit to join every other circuit in not using dicta as binding precedent. 

Judge Forrest explained a rule demanding courts follow some dicta “lacks legal foundation,” “causes unnecessary inefficiency,” “wastes resources,” and “is contrary to the common-law tradition of judging, the jurisprudence of the Supreme Court and every other circuit court in the nation, and the Constitution.”  Stein, Slip op. at 9.  According to the concurrence, the Ninth Circuit “stand[s] out like a flamingo in a flock of finches in treating dicta as binding.”  Id. at 16. 

Judge Forrest noted the Ninth Circuit initially took this “flamingo” approach to dicta without briefing or full discussion, stating:  “Irony upon irony, th[e] pronouncement about dicta was, itself, dictum,” as it came in an en banc case concurrence joined by only four total judges.  Id. at 16-17.  Moreover, she explained the authority “cited [in the dicta-rule-creating concurrence] do not support the dicta-is-binding rule.”  Id. at 17-18.  Thus, “the dicta-is-binding rule did not have the numbers to be real law,” yet “it quickly begat progeny.”  Id. at 18. 

Moreover, even if there had been a justification for a binding dicta rule, perhaps “because [the Ninth Circuit] thought the expansion of judicial decision-making authority would be limited” by the rule, in practice “it has not turned out that way.”  Id. at 18-19.  The history and application of the Ninth Circuit’s rule left Judge Forrest to “wonder:  if all the other federal appellate courts can figure out what is and isn’t dicta without destabilizing their law, why can’t we?”  Id. at 19.

As appellate lawyer Cory Webster wisely notes, Judge Forrest’s Stein concurrence could be required reading in a course on the law of judicial precedent.  Cory Webster, LinkedIn, https://www.linkedin.com/feed/update/urn:li:activity:7245432020770693122/.  The opinion is also a very interesting read on dicta, and on persuasive opinion writing.  I will definitely be making the opinion required reading for my class, and I hope you enjoy reading it too.

Different Strokes for Different Courts

In a new book to be published in November, Second Circuit Judge Jon O. Newman and Duke law professor Marin K. Levy detail the many different rules adopted by the federal circuit courts. Written & Unwritten: The Rules, Internal Procedures, and Customs of the United States Courts of Appeals, grew out of Levy’s clerkship experience in the Second Circuit where she wondered whether other circuits used a “non-argument” calendar for a limited range of cases. When she asked the clerk of court that question, she learned that the courts operate in silos and know little about what sister courts do.

At a Constitution Day event sponsored by the Supreme Court Historical Society (September 17), the two coauthors explained that the book reflects an examination of local rules and practices, as well as interviews with chief judges and surveys of court clerks. During their talk, Judge Newman and Professor Levy highlighted three practices from different circuits.

One concerned a situation that often bedevils appellate counsel. You have argued the case or made a motion that is fully briefed, and then you wait and wait for a disposition. Counsel will often sit in frustration at the delay, but rarely attempt to bring the situation to the court’s attention so as not to create a bad impression. In one state court appellate case I argued, I waited more than two years for the court’s opinion, which finally issued the decision earlier this year. When I served on a panel at a conference with another judge from that circuit, I asked whether there was anything I could do to encourage a decision. She told me that there really was nothing to do, although she mentioned a legendary response that had occurred on one occasion: a brave lawyer filed a birthday card on the second anniversary of oral argument. A decision issued soon afterwards. I chose not to follow that approach but received a favorable decision two years and one month after the oral argument.

Many advocates similarly eschew some type of prod to the court. They may file supplemental authority to remind the court that the case is pending, but take no other action. Newman and Levy, though, learned that the Ninth Circuit encourages counsel to contact the clerk over a delayed motion or appeal. The advisory committee note to Circuit Rule 25-2 tells counsel to send a letter to the Clerk. It sets timelines for when a delay is deemed unreasonable: a motion pending more than four months, no notice of oral argument or submission on the briefs within 15 months of the completion of briefing, a merits decision more than nine months after submission, a mandate taking more than 28 days to issue, or a petition for rehearing pending longer than six months. No other federal circuit has made similar provision to address unreasonable delay.

Also unique among the federal circuits is the Federal Circuit instructions on who to refer to the district court in a case. For the past decade, the Federal Circuit has published Internal Operating Procedures that includes Procedure 11, which describes citation rules. Rule 9 of that booklet indicates that it is disrespectful to the originating court for counsel to refer to it as “the court below,” “the lower court,” the lower tribunal,” or “the judge below.” Instead, the court insists that counsel use “district court,” “trial court,” “district judge,” “trial tribunal,” or “court.”

The third unique example the authors discussed was the Second Circuit’s deadline for briefing. Federal Rule of Appellate Procedure 31(a)(1) requires the appellant to file a brief within 40 days after the record is filed. Replies are due within 30 days of that brief, while a reply is due within 21 days as long as it is at least seven days before argument. Rule 31(a)(2) authorizes a court of appeals to shorten the time by local rule or order in a particular case. Yet, the Second Circuit, by local rule, has lengthened the time, requiring the opening brief within 90 days to render unnecessary motions to extend the due date. The parties may confer and set their own times, as long as it does not go beyond 90 days. The court will deny motions to extend beyond that absent “a most extraordinary circumstance.”

A multitude of other differences exist between circuits. For example, in most circuits, you learn of the judges who will serve on your panel 30 days before oral argument. However, in the Fourth and Seventh Circuit, the clerk posts the panel the very morning of argument.

Although it may seem odd that different circuits follow such different rules, it pays for an advocate who argues in more than one circuit to know the differences. Written & Unwritten performs a valuable service for that traveling advocate.

GenAI for Briefs: The Good, the Bad, and the Ugly

Generative AI is transforming legal practice, and not just in the ways you might expect. Sure, you’ve heard about using it to draft briefs or memos. But what if I told you that’s just scratching the surface? By thinking outside the box, lawyers can harness GenAI to improve their practice in ways they never imagined. It’s time to get creative and explore the many avenues GenAI opens up—beyond drafting.

Choosing the Right Tools and Understanding Their Capabilities

Before diving in, it’s important to choose the right tool. GenAI models, like GPT and Claude, all come with different strengths. Some are better at handling legal documents, while others excel at interacting with multimodal inputs like voice. Understanding what a tool is capable of and how to integrate it into your workflow is key to maximizing its potential.

For example, platforms like Claude offer the ability to upload and manipulate entire documents visually, giving you a bird’s eye view of a case or brief. Or take GPT’s custom instructions feature, which allows you to teach the AI how to respond in line with your firm’s style. Specialized tools now are even designed with lawyers in mind, fine-tuning the experience to meet the demands of legal practice.

Embedded GenAI in Legal Tools

Many of the tools you already use might have GenAI embedded in them, helping behind the scenes. Google Docs Editor leverages GenAI to suggest improvements in real-time. Westlaw’s AI now assists with advanced legal research, and platforms like Kramer make it possible to create your own, customized GenAI apps integrated into your own practice structure. Understanding where and how these AI tools are embedded can help you make the most of them.

Ethical Considerations: Using GenAI Wisely

No discussion about AI in legal practice is complete without touching on ethics. The duty of competence is especially relevant here—lawyers must understand the technology they’re using. GenAI can be prone to hallucination (making up facts), and there are confidentiality issues to consider, especially when inputting sensitive client information. But with awareness and care, these risks can be mitigated.

Expanding Beyond Drafting: Where GenAI Really Shines

Now that you know the tools and the risks, let’s talk about what GenAI can do. Here are some of the most innovative ways it can help legal professionals:

1. First Drafts from Your Work: Use GenAI to generate initial drafts based on your own writings, not just templates. This allows you to maintain your voice while saving time.
2. Organization Aid: GenAI can help you reorganize your arguments, briefs, or contracts for better flow and clarity.
3. Mass Rewriting for Specific Goals: Whether it’s simplifying language, adjusting tone, or tailoring to a particular audience, GenAI can rewrite entire sections with ease.
4. Honing Key Sections: It can assist in refining the most critical parts of your documents, like executive summaries, key arguments, or real estate clauses.
5. Spotting Writing Challenges: Need help identifying your blind spots? GenAI can critique your style, spot common mistakes, and provide targeted feedback.
6. Summarizing and Spotting Issues: GenAI excels at summarizing dense legal documents or client policies, often highlighting details you might overlook.
7. Issue Spotting & Critical Critique: It’s a great partner for playing devil’s advocate. Feed it your arguments, and it will help identify weaknesses or counterpoints you hadn’t considered.
8. Checklists and To-Dos: Whether you're prepping for a trial or drafting a complex motion, GenAI can create checklists to ensure nothing slips through the cracks.
9. Post-Source Legal Research: When conducting legal research, AI can process sources and extract the most relevant insights for you.
10. Guidance and Explanations for Clients: AI can draft client-friendly explanations, from legal concepts to case strategies, making your communications clearer and more accessible.
11. Marketing Assistance: GenAI can assist with blogs, social media, or even creating client updates to keep your practice front-of-mind.
12. Deposition Prep & Client Education: AI can help draft deposition questions or even train clients on what to expect during litigation.
13. Building Playbooks: It’s a fantastic tool for creating playbooks—step-by-step guides for everything from litigation to transactional work.
14. Business and Process Improvement: AI can brainstorm ways to improve your workflow, suggest tech tools, or even help solve specific practice challenges.

Making the Most of GenAI: Tips for Success

To truly unlock the creative power of AI, you’ll need to adopt a hands-on, iterative approach. The more specific you are with prompts, the better results you’ll get. Don’t just ask for a general summary; focus on fine-tuning a particular section. Run the same prompt from different angles to see what works best, and don’t be afraid to sandbox—play around with different prompts and parameters to find what works for you.

You can also try combining results from different runs, which can be especially useful for larger projects. Keep track of helpful prompts, and don’t be afraid to experiment.

Neurodiversity and Legal Advocacy: Tying it All Together

Tying it all Together

Understanding neurodivergence is important if we are going to succeed as advocates. When we deal with colleagues and clients, when we mentor or teach students and associates, and even as we draft our briefs and make our arguments, we must recognize that we are dealing with people who may process information and think differently than we do. And we should be ok with that.

Even as a neurodivergent person myself, growing up dyslexic, this isn’t always easy for me to do. I fumble a bit even with my own family. 

My daughter (who gave me permission to share) is clearly intelligent. I have always had high expectations for her. When she entered middle school, her grades began to suffer and she was obviously unhappy. I couldn’t understand what had changed, and I made moral judgments about her work ethics. She was underperforming (a classic sign of neurodivergence) and clearly just needed to work harder.

Recently, she was diagnosed with ADD and level 1 autism. And as I dug into the research I’ve shared, I came to understand that her issues weren’t with laziness, but with attention, overstimulation, and organization. And that as these were addressed, and her strengths were recognized and grown, she could thrive.

You, your students, or your associates can too. It starts with awareness. Then we need to take action. But what if we are not given a diagnosis?

Disclosure 

At younger stages, it’s the responsibility of school administrators to make sure children with learning disabilities are assessed and identified, regardless of their desire for confidentiality. At college and in the workplace, it’s completely up to the individual to self-identify. As a result, over 94% of high school students with learning disabilities receive assistance, while just 17% of college students receive access to the same services. 

At work, accommodations are required when disabilities are disclosed. But again, there is a stigma to that disclosure. Studies show that persons with disclosed disabilities tend to make less than those who do not disclose. And by the time attorneys, in particular, enter the workforce, they likely have self-accommodated in many ways, and are hesitant to disclose any disability.

Fortunately, the current model of disclosure and accommodations isn’t the only way to address neurodivergence. We can, instead, modify the environment for students and attorneys alike in ways that work better for everyone using a model known as universal design.

Universal Design for Neurodivergent Success

Universal design started as an architectural concept. What if the physical environment people learned and worked in was more usable for everyone? Then the space would not need to be modified for a particular disability, and all users would find it accessible.

To do so, several objectives must be met:

1. all users must find the product or space useful;
2. the space should be flexible to accommodate differences (i.e., not just right hand desks but rather ambidextrous desks);
3. the facility must be simple and intuitive to use;
4. information must be perceptible to everyone;
5. there should be a high tolerance of error to minimize harm from accidents;
6. using the environment should require low physical effort; and,
7. there should be adequate size and space for all bodies to navigate.

Applying some of the lessons we’ve learned from looking at the strengths and weaknesses of ADD, dyslexia, and autism, there are several universal design considerations to make learning and working more successful. Noise should be reduced. Lighting should not be too harsh. Colors should be muted. Privacy should be given. Hours should be flexible. Working from home should be considered as an option.

Most of these environmental adjustments are good for everyone.  

Over half of high performing employees say their environments are too distracting. These changes largely help to reduce distraction and enhance productivity for everyone.

In academics, the two most common accommodations requested regardless of diagnosis are longer times for testing and a quiet place for that testing. These accommodations are relatively inexpensive, and if applied within the larger classroom setting, there would be no need for many students to self-identify. All would benefit.

Universal design also applies to teaching. Multiple teaching modalities help everyone. While most of us older lawyers learned audibly, through lectures, our new generation of students and associates are much more visual. They have learned to learn on the internet with videos and graphics. So using slides, videos, and electronically accessible information textually helps everyone.

This access to software and internet resources is particularly important for those with disabilities. If your information is accessible on the internet, they can use their own accommodation software, like readers, to better use that information. Allowing access to grammar and spellchecking features is particularly important for those with dyslexia. And scheduling and calendaring software (and training) is useful for everyone, but particularly those with executive function issues.

Finally, these tips from Haley Moss (in her book Great Minds Think Differently: Neurodiversity for Lawyers and Other Professionals (2010)) on managing a neurodiverse practice are useful for any classroom or firm: 

1. Believe when someone tells you something is difficult
2. Be considerate of sensory processing differences
3. Set clear timelines and deadlines and avoid surprises
4. Use different communication methods
5. Check in and encourage feedback, encourage breaks

Closing Thoughts

Hopefully, if you have followed this series of blogs, you have been encouraged to make your office, firm, or classroom more inviting for the neurodiverse. Recognizing that there are strengths alongside weaknesses, that numerous accommodations exist, and that there are strategies for helping the neurodiverse thrive is a big first step. Applying general principles of universal design will help make your practice, office, or classroom more equitable. And as more people become comfortable with disclosing -- perhaps in response to making these changes -- more custom-tailored accommodations can be developed, so that everyone can thrive, no matter how differently they think.

All prior posts with suggested readings:

Neurodiversity and Legal Advocacy - Introduction

Neurodiversity and Legal Advocacy - Dyslexia

Neurodiversity and Legal Advocacy - Autism

Neurodiversity and Legal Advocacy - ADD/ADHD

 

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

Dealing With Difficult Clients

Most attorneys have encountered difficult clients. For example, difficult clients may display narcissistic tendencies (covert and malignant), a sense of entitlement, extreme verbosity (i.e., the “loudmouth”), a need for constant attention, and sheer ignorance of the law while believing that they know more than you. Dealing with difficult clients can be stressful, exasperating, and infuriating.

Below are some tips on how to deal with difficult clients.

    1.    Set boundaries.

Difficult clients will often call you incessantly, demand updates, and make unreasonable demands. Indeed, they often believe that their case is the most important in your firm and that you should prioritize their needs over those of other clients.

Consider the following example:

Client: I called you four times yesterday, and you never got back to me. For the money I am paying you, I deserve to get a callback. And you have not given me an update on our case in over a week, and I feel neglected and disrespected. If you are not interested in representing me, I can find someone better. Plus, I have a new theory of the case that I want you to research immediately. I am going to text and email you as soon as I get home from work, and I need to hear from you.

To deal with these insufferable jerks, you must, at the initial client meeting, set boundaries to ensure that the client does not cause intolerable stress and affect your ability to reach a positive outcome. Setting boundaries includes, but is not limited to, providing an honest assessment of the likely cost of the litigation, explaining that you only answer emails during work hours, that you will respond to phone calls and emails within a specific time (e.g., twenty-four or forty-eight hours), and that you only meet when necessary to discuss case updates. Setting boundaries also requires you to explain what you will not accept, such as daily phone calls or emails, unreasonable demands, or disrespectful behavior.

Additionally, understand that difficult clients often seek little more than attention, relying on you to appease their anxiety and uncertainty about the outcome of their case, which can consume hours of your time. To avoid this, use the “gray rock” technique, which requires you to appear uninterested, non-responsive, or emotionally neutral. Put simply, do not get sucked into the client’s drama. If you do, the client will view you as a source of narcissistic supply, or emotional validation, which will result in the client contacting you incessantly and without regard for your professional or personal space.

        2.    Set realistic expectations.

Always be honest with clients about the merits of their cases and the damages they will recover if a positive outcome is achieved. Never over-promise and make representations that the facts and law do not support. If you do this, you are setting yourself up for failure and a malpractice claim. Of course, difficult clients can often appear so sympathetic or charismatic that you feel tempted to provide more hope to the client than realistic. Never give in to this temptation. It invites disaster.

Consider the following example:

Client: So last month I went to the hospital because I sprained my ankle and was in so much pain. The hospital gave me pain medication and I vomited for three days and felt dizzy the whole time. And they never told me about the side effects of the drug. Then, my third cousin, who just started studying at some law school, said I could sue and get millions because she read a case in her class where some lady got millions because she got burned by McDonald’s coffee that was too hot. I want to sue them for fifty million dollars because of the emotional distress this has caused me.

In this situation, immediately explain that he cannot receive fifty million dollars for such a claim. Be honest. Tell the client that any recovery is unlikely, that if the client prevailed, such recovery would be minimal, and that the cost of litigating it would be far more expensive than the money the client would receive. The client may be disappointed, but your integrity matters far more than the client's disappointment.

    3.    Educate clients about the law.

Clients will often think they know more about the law than you. Be sure to explain respectfully that they do not.  State that you have the knowledge and experience to assess the merits of their case and provide a simple but thorough explanation of the relevant legal principles that will govern the issues in the case.

Consider the following example:

Client: I went to Bob’s Pizza Place yesterday and I ate a whole pizza and some pasta because I was so hungry. Before that, for about five days, I had a horrible stomach virus because I ate food at Billy’s Seafood Palace that gave me food poisoning. Then, when I finally felt better, I went to Bob’s and after I ate the pizza and pasta, I got sick again and was vomiting for three days. I missed work and got fired. Then I read an article that said you could sue businesses for negligence when they make mistakes and you are harmed. It is like those tobacco companies who had to pay a lot of money because their cigarettes gave people lung cancer. It is called negligence and I have been researching it and almost feel like a lawyer now.

When a client says something like this, always remain polite and respectful, and show empathy. At the same time, you must explain to the client that a negligence claim will not succeed based on these facts. In so doing, explain the elements of negligence and why, based on the facts, the client's claim does not meet at least one of the elements, particularly causation. If you allow the client to develop a false hope regarding the merits of a case, you are again inviting disaster and a malpractice claim when, inevitably, the case is dismissed.  

    4.    Just say no.

Sometimes, you should turn a difficult client away if they will so be “high maintenance” that the emotional cost of representing them outweighs the benefit of achieving a positive outcome. Be wary, for example, of individuals who display covert or malignant narcissism, are emotionally unstable or severely mentally ill, talk forever and with no focus or restraint, are overly aggressive and demanding, or treat you with disrespect.

Consider the following example:

Client: Now listen. I got money. I got connections. And I had my choice of any lawyer in this state, but I chose you. Do you know what that means? It means you answer the phone whenever I call you. It means you get me results. It means you do what I say. Because you work for me. My last lawyer did not listen to me and I straightened him out, so do not make any mistakes. I mean, I’ve been divorced five times, and now I do not tolerate anyone who does not listen to me.

Just say no.  Run far away – and never look back.

It does not matter how much money these jerks will pay you.  Your happiness, stability, and sanity are far more important than the misery that these people will invariably inflict.

In law and life, you will encounter horrible people. Knowing how to deal with them -- and when to eliminate them from your life – is critical to professional and personal well-being.

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

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

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

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

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

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

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

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

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

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

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

 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[xix] See @paralympics, supra note x.

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

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

Credibility as the Coin of the Realm in Appellate Advocacy

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

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

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

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

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

 

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

Citation Overload: Write Smart, Cite Smarter

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

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

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

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

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

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

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

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

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

Say you write this:

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

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

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

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

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

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

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

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

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

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

Journal of Appellate Practice and Process Accepting Articles

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

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

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

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

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

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

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

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

A Brief Must be Pudding with a Theme

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

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

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

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

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

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

Neurodiversity and Legal Advocacy: Autism

Introduction

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

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

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

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

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

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

Strengths

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

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

Weaknesses

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

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

Adaptations and accommodations

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

Further Reading:

https://embrace-autism.com

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

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

There's No Such Thing As "Legal Writing"

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

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

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

1.    Hook the reader.

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

Consider the following examples:

Example 1:

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

Example 2:

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

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

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

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

2.    Maintain your credibility.

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

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

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

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

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

3.    Get to the point.

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

The ship sank.

It hit an iceberg.

There weren’t enough lifeboats.

People died.

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

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

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

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

4.    Polish.

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

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

5.    Appeal to common sense.

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

***

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

 

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

Breaking Down ABA Formal Opinion 512 on Generative AI Tools

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

Generative AI Basics

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

Key Ethical Considerations

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

Embracing Technology Responsibly

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

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

Academic Appellate/Clinical Job Opportunity

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

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

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

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

Questions and references can be addressed to:

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

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

Writing Briefs, Rather than Literary Works

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

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

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

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

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

Passing the (Blog) Torch

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

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

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

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

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

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

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

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

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

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

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

State Courts are Cool

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

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

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

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

A Few Unconventional Writing Tips

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

1.    Reverse the narrative.

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

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

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

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

Example 1:

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

Example 2:

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

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

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

2.    Tell a non-linear story.

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

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

Example 1:

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

 Example 2:

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

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

3.    Break the rules.

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

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

 

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