Appellate Advocacy Blog

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

Tuesday, July 16, 2019

Finishing Touches: Editing Descriptions of the Law for Persuasion

Clearly2*Used with permission

Many arguments consist of two main parts—an articulation of the law and an application of that law to the client’s facts. I thought the second part, arguing how the law applies to the facts, is where I persuaded the court to rule in my favor. However, I’ve learned that how I describe the law, before I ever apply it to the case, is equally important for effective advocacy. 

When explaining the law in a brief, attorneys draw from authority. Sources of law are often written objectively. In a brief, simply paraphrasing or quoting court opinions or statues in their objective form neglects an opportunity to tell the client’s story using the law. 

In their book Just Briefs, Laurel Oates, Anne Enquist, and Connie Krontz describe several techniques for telling the client’s story with the law. These techniques focus on presenting the law from the client’s perspective. 

It can be challenging to draft the law from the client’s point of view while pulling from objectively written sources. I recommend writing a clear description of the law and then editing it for persuasion. 

Let’s look at an example of how to edit a statement of the law to punch up its persuasiveness.  

Objective Statement of the Law (First Draft)

[I’ve omitted citations for ease of reading, though citations can also be used to persuade the court.]

Covenants not to compete within employment contracts are matters of law for a court to decide. Typically, covenants not to compete are disfavored under the law. The party seeking to enforce the covenant bears the burden of proving its reasonableness. Courts will find a covenant not to compete is reasonable, and therefore enforceable, when the covenant is “narrowly tailored” to protect the employer’s legitimate interest, the covenant does not impose an “undue hardship on the employee,” and the covenant is not “injurious to the public interest.”  

Persuasive Statement of the Law (Revised Version of First Draft)

[Assume we represent an employee challenging the enforceability of her covenant not to compete with her employer. By editing the objective statement above, we present the law from the client’s perspective, which is that the covenant not to compete is unreasonable and unenforceable.]

The New Hampshire Supreme Court has repeatedly held that covenants not to compete are disfavored under the law. The unreasonableness of a covenant not to compete is a matter of law for the court to decide using a three-prong test. First, a covenant is unreasonable if it is not “narrowly tailored” to protect the employer’s legitimate interest. Second, the covenant is unreasonable if it imposes an “undue hardship on the employee.” Third, the covenant is unreasonable if it is “injurious to the public interest.” A covenant not to compete is unreasonable, and therefore unenforceable, unless the employer, as the party bearing the burden of proof, can prove all three prongs.

Checklist of Edits Transforming Objective Into Persuasive

  • We reworked a sentence describing law that is favorable to our client to emphasize that this point has been routinely espoused by the highest court in the jurisdiction. While the citation would show this statement came from the New Hampshire Supreme Court, our text stresses that this portion of the law is firmly established by precedent.
  • We changed the order of sentences to take advantage of the beginning of the paragraph as a position of emphasis. We start the rule strong.
  • We reworded portions of the rule to reflect the outcome our client wants. We changed “enforceable” to “unenforceable” and “reasonable” to “unreasonable.”
  • We made the three-prong enforceability test, which the opposing side (employer) must prove, appear more difficult to meet by breaking it into three separate sentences.
  • In order to emphasize the conjunctive nature of the rule, we repeat the statement that all three prongs of the test must be met.
  • We end strongly with a portion of the rule that is favorable to our client, which is that the employer bears the burden of proof. The end is also a position of emphasis.

Smitha_6876 (2)Amanda Sholtis teaches legal analysis and writing at Widener University Commonwealth Law School in Harrisburg, Pennsylvania.  You may contact her at alsholtis@widener.edu.

 

 

July 16, 2019 in Appellate Advocacy, Appellate Practice, Legal Writing | Permalink | Comments (0)

Monday, July 15, 2019

Oral Argument Preparation in SCOTUS

This is a guest post by Raffi Melkonian, a partner at Wright Close & Barger in Houston, Texas.

    The day after I gave my first (and only!) United States Supreme Court argument, I put up a thread on Twitter (where I post as @RMFifthCircuit) about my oral argument preparation. It was well-received, and many people encouraged me to tease it out a little into a blog post or article. This is my first attempt to do exactly that.  A caveat: these thoughts are for people like me. That is, lawyers who don’t normally practice in the rarified air of the Supreme Court. It’s advice for the first-time tourist, not the experienced traveler. Maybe it’s even good advice for the new lawyer preparing for their first appellate argument. So if your name is Paul Clement or Neal Katyal, stop reading!

    One more thing. This post is not about briefing.  Yes, it’s conventional wisdom that the merits brief is the most important part of the Supreme Court presentation. I think that’s true. And yet, it’s a complicated topic that goes far beyond the scope of this post.  

    Anyway, oral argument is the moment many first-time advocates focus on, and with good reason. It’s the one time you’re alone with the nine justices of the Supreme Court. No one can help you. And, the stakes for your client are high. Not many cases are won at argument, to be sure, but some are lost. In Justice Ginsburg’s words, “I have seen potential winners become losers in whole or in part because of … oral argument.”  But the advocate too has some skin in the game. As I know from scrutinizing arguments on #AppellateTwitter, a lawyer’s missteps at oral argument are judged harshly by the commentariat. You don’t ever want to be that guy.

    So what then? The answer is intense and unrelenting preparation. Listed below are some of the strategies I used to get ready. But remember, excellent lawyers prepare differently. What may work for me won’t work for you, and the reverse. So, as they say on the Internet, Your Mileage May Vary.

  • My grandmother, like many Catholics, would read a small prayer book every morning, a daily devotional. It seemed to me that I needed to know all of the briefs as intimately as she knew her prayers, so I had all the pleadings set out in a binder – our briefs, their briefs, and the various amici – and I read them every morning. I took notes, of course, but mainly the point was to read them again, and again, and again.
  • David Frederick, the famous Supreme Court lawyer, recommends in his book on oral argument that you spend much of your time thinking of questions the Court could ask you. That’s part of my normal oral argument preparation, and I took his advice doubly to heart for SCOTUS. I spent hours thinking of as many questions as possible. I scrawled some of these questions on note cards, some I typed. No question was too benign, and none too difficult. The hardest work was writing out extensive answers to each question.  
  • I wrote a very short outline of what I wanted to say, and practiced in front of a camera at a podium (well, a cardboard box) many times. A picture I posted on twitter of that effort was even turned into a meme by the incredibly creative @AliceLfc4, a court clerk in Florida (here’s proof!). Every 20 seconds or so, I’d pick a question from my pile and ask it to myself, and then answer, and then practice pivoting back to what I was trying to say. This effort required many edits to my note card answers. Some of my answers were bad, others too long. Over time, they became tighter, more focused, pithy. Well, as pithy as I get, anyway.
  • Ultimately, I became convinced that there were only six thematic sentences I needed to say, no matter what. I wrote these on a notecard and practiced saying them during my note card answers. The goal was to say each of the six at least once in any practice session. I got five of them out during the actual oral argument.
  • I did three moot courts in total, beginning about two weeks before the argument. I spent two days before the moot preparing for the argument, and then the entire day after the moot incorporating the feedback. Needless to say, I am ever grateful to the teams at Stanford, Public Citizen, and the Georgetown University Law Center Supreme Court Institute that mooted me.
  • Finally, consider the physical space. I hadn’t been to the Supreme Court since college, and so I picked an oral argument day earlier in the week to observe. This turned out to be a good idea. The space is both overwhelming and tight, and knowing what it feels like helped put me at ease when I went for real. Plus, I had many guests with me, none of whom had been to the Court either. Being able to give them real world advice about the process of getting in and to the courtroom (though really, you can just read Jaime Santos’s go-to thread) was invaluable.

    An article I read before the argument helpfully advised that most advocates do not faint at the Supreme Court’s podium. At the time, I felt that was rather macabre. But with the right preparation, a Supreme Court argument can be enjoyed rather than endured. I know I enjoyed mine.

July 15, 2019 in Appellate Advocacy, Appellate Practice, Oral Argument, United States Supreme Court | Permalink | Comments (0)

Thursday, July 11, 2019

Lists as Visual Rhetorical Strategy for Brief Writing: Set-Off and Stack-Up

Thursday’s Rhaw Bar:  A Little Bite of All Things Rhetoric and Law

Welcome to a new theme for posts on the Appellate Advocacy Blog: Thursday’s Rhaw Bar: A Little Bite of All Things Rhetoric and Law. In this series, the Blog will explore ideas, theories, strategies, techniques, and critiques at the intersect of rhetoric and legal communication. Today we take a behind-the-scenes look at the rhetorical power of the “visual list” in brief writing.

In his excellent post a few weeks ago, professor and blogger Joe Regalia identified the myriad ways to use visuals in briefing, and he pointed out the “visual list” as a persuasive way to present information.  He noted that the technique is particularly effective for summarizing information.

The list is perhaps the original visual in brief writing—a writer can construct a list on manual typewriter or even with pen and paper; all one needs is the ability to indent, input text, and separate list items, such as with a number or icon (like a bullet point). But why does a list work as a visual as well as a textual persuasion device? In other words, if a reader never actually reads the text of a list, would the list still persuade? Does the list have rhetorical features as a “thing” unto itself, beyond the words that compose it?

As Professor Regalia’s post suggests, a list has a visual rhetorical effect all its own.  A list is effective as visual rhetoric because a list sets off and stacks up information.

1.    Lists visually set off information that the writer wants to mark as important.

Lists effectively use white space to set-off information, which shows its importance. Readers, even if they don’t consciously recognize it, use white space as a cue about how to respond to text. For example, think about paragraph breaks; the white space between two paragraphs and an indentation at the beginning of the first line of the second paragraph (which itself is a unit of white space) are cues to the reader that something important is happening—the new paragraph leaves behind the original topic and introduces a different topic. And the reader gets this information simply by skimming a page; the set-off is persuasive even before the reader actually reads the text content. (Try this yourself—take a look at the whole of a page of text—what does the white space say to you?)

The message of white space to set-off text is even more pronounced with lists, particularly when a list is indented from the left margin. When the reader encounters an indented list, the reader gets an immediate cue that something is special about the ideas captured in the list; the white space around it conveys that message. This white space says to the reader “Stop! Look here! This text is different from the rest of the information on this page. It is special, so pay extra attention.”  And this cue works to persuade even before the reader engages the list’s content.

2.    Lists stack up points of information to visually demonstrate weight or volume.

As a visual rhetorical tool, a list can have the effect of stacking up information to convey the weight or volume of the information presented. Think of a tower of kid’s building blocks. The taller the stack, the more impressive and memorable the tower for its sheer size alone. In the context of brief writing, then, a list can visually convey the strength of a point even before the reader reviews the list’s content. For example, take this list of triggers for using a graphic from Professor Regalia’s article:

• You have data—graphs nearly always make data easier to swallow than writing about the results.
• You want to make comparisons, connections, or contrasts between pieces of evidence or information. This is probably the most powerful, and least used tool. A simple table can drive home points like a party failing to submit any rebuttal evidence (one side of the table is your evidence, the other is their lack of it).
• You have a complex process to discuss—like an agency process, or a factual process that a party carried out.
• To show how a statute, regulation, or any other rule operates in steps.
• Any time you can use a chart to plot out a decision tree for your reader with the options laid out.
• Whenever you can come up with a visual that highlights key evidence or authority.

Now compare Professor Regalia’s same list, presented in paragraph form:

Here are some specific triggers when you might consider using a graphic:. You have data—graphs nearly always make data easier to swallow than writing about the results. You want to make comparisons, connections, or contrasts between pieces of evidence or information. This is probably the most powerful, and least used tool. A simple table can drive home points like a party failing to submit any rebuttal evidence (one side of the table is your evidence, the other is their lack of it). You have a complex process to discuss—like an agency process, or a factual process that a party carried out. To show how a statute, regulation, or any other rule operates in steps. Any time you can use a chart to plot out a decision tree for your reader with the options laid out. Whenever you can come up with a visual that highlights key evidence or authority.

Although the traditional paragraph contains the same information as the list, the paragraph makes less of a visual impact in conveying the number of situations where it would be appropriate for a writer to use a graphic in a brief. In the paragraph, the writer loses the visual impact of the “stacked” list, which, by virtue of the height of the stack, effectively conveys the many opportunities for brief writers to use graphics.

In the context of a brief, a list’s visual effectiveness in stacking up its content can prime the reader to understand the list’s content in the way the writer wants.  For example, in Professor Regalia’s list above, the reader who encounters this long list is primed to believe that the circumstances for graphic use are many. In the paragraph format, however, this “stacking” strategy is less effective; it is not as easy for the reader to see, before reading the paragraph in detail, that there are many opportunities for graphic use. (This comparison also suggests that if the writer wants to de-emphasize the weight or volume of information, the reader would not choose a list format and instead keep all of the information in a paragraph.)

If we go one more step and number the list items (i.e., 1., 2., 3., 4.), the list becomes even more visually persuasive because the reader is immediately cued to the size of the stack—six uses of graphics in briefs.

So, what do these two effects—set-off and stack-up—suggest for using lists? Consider formatting information into a list to accomplish these goals:

  • To give the reader the visual impression that textual information is uniquely important and should be given special attention; or
  • To show the reader—through formatting—that the items in your list are weighty, numerous, or otherwise substantial; or
  • To accomplish both.

Kirsten Davis teaches at Stetson University College of Law in the Tampa Bay region of Florida. The views she expresses here are solely her own and not intended to be legal advice.  You may contact her at kkdavis@law.stetson.edu. 

July 11, 2019 in Appellate Advocacy, Legal Writing, Rhetoric | Permalink | Comments (2)

Tuesday, July 9, 2019

Can Learning to Write Well Lead to More Ethical Behavior?

Diogenese

Last month, there was a short article in the Chronicle of Higher Education entitled "Why Writing Better Will Make You a Better Person." In the article, two professors of philosophy who teach ethics (Bob Fischer and Nathan Nobis) put forth the idea that good writing leads to more ethical behavior, because it involves several ethical ways of thinking. The article is linked here.

In their article, Fischer and Nobis suggest that writing is an ethical activity, and that becoming a better writer can make you a better person. In so arguing, they suggest several high-level ethical norms that should motivate good writing:

  • Try to do good things and avoid causing bad ones. Writing causes feelings in the reader. We should try to cause good feelings and good consequences, and avoid causing bad ones.
  • Respect everyone, including your readers, as inherently valuable and rational beings. Don't waste your reader's time. Respect them enough to be clear and concise.
  • Follow the Golden Rule. Treat your reader as you would like to be treated yourself. If you like straightforward, well-referenced, well-organized text, provide it to your readers.

In the end, the authors conclude that good character traits should produce good writing. Empathy requires always considering others and their needs and points of view. Compassion means you don't make your writing any more difficult to read than need be. Honesty requires the full truth, including bad facts and opposing arguments. Humility requires acknowledging that those competing arguments might have merit.

Conversely, the authors suggest that practicing these traits to be a good writer will make the writer a better person. Studiously respecting the reader, considering the merit of opposing arguments, and so on will help strengthen the corresponding ethical traits in the life of the writer.

As lawyers, we often divorce ourselves from general rules of ethics and focus on our professional rules of responsibility. But even there, we have the same obligations to fulfill. Our obligations include a duty of competency that requires thoroughness and preparation, See Model Rules of Prof'l Conduct R. 1.1, and a duty of candor, to the court and third parties, that requires us to admit factual and legal weaknesses in our arguments. See Model Rules of Prof'l Conduct R. 3.3, 4.1. And as the preamble notes, while many of the Rules govern our conduct directly, "a lawyer is also guided by personal conscience and the approbation of professional peers."

Numerous studies demonstrate further that ethical writing is more persuasive and effective. Simpler writing is more easily understand and followed by the courts. Admitting weaknesses enhances credibility, which is the coin of persuasion, while sloppiness in research or citations to facts or the law expends that credibility without reason. Our duties of competence and candor, therefore, are best served by being ethical in our writing, which also leads to the best results for clients.

It makes sense that, over time, adherence to these obligations in our writing and other client representations leads to their refinement in our characters. Ethical writing strengthens behavioral muscle that can, and should, work out in our daily lives. Conversely, unethical writing may serve as a warning sign for issues in the personal lives of counsel.

Seen in this light, teaching good legal writing to our students and young lawyers is an exercise in both effectiveness and ethics. The earlier we can convince our young lawyers of this, the healthier the bar will become.

(Image Credit: AndreasPraefcke, Wikipedia U. "Diogenes in Search of an Honest Man." Ancient History Encyclopedia. Last modified August 06, 2014. https://www.ancient.eu/image/2908/.)

 

 

July 9, 2019 in Appellate Advocacy, Appellate Practice, Law School, Legal Ethics, Legal Profession, Legal Writing, Rhetoric | Permalink | Comments (3)

Monday, July 8, 2019

Statement of Facts: Moot Court Edition

The task of writing a statement of facts in a real-world appellate brief generally requires distilling significant amounts of information from the record. In Moot Court, you have typically have the fact section from the court opinion, a shorter and more focused treatment (though there are a few competitions out there that use entire appellate records). When looking at the fact section of an opinion and trying to make a statement of facts out of it, it can be difficult to write a story that has already been written. Some students are tempted to rely heavily on the phrasing and organization that was given in the problem, but that would be a mistake.

The statement of facts is an important part of your Moot Court brief, and there are some key things you can do to maximize your score in this section. As I’ve done in my other posts on sections of the brief for Moot Court, let’s start with scoring criteria from a sample competition:

STATEMENT OF THE CASE/FACTS
Does it engage the reader’s interest?
Are all legally relevant facts included?
Is it accurately, persuasively, and concisely written?
Is the procedural history clear? (15/100 points possible) ______________

To maximize your score on this section and stand out in all of the right ways, here are some tips:

1. Tell a story. The first criteria in this score sheet looks at whether the reader’s interest is engaged. Focusing on telling a story is the best way to grab your reader. People remember stories. Here’s an excellent blog post by Joe Regalia on Storytelling.

https://lawprofessors.typepad.com/appellate_advocacy/2019/04/storytelling-short-and-dirty.html

One key aspect on storytelling is to start in the right place. Spend time thinking about who your client is and where the story should start to ensure it presents the picture of your client you want.

2. Double check after you have written your argument that you included all of the facts that you used in your statement of facts. While you may write a draft of the statement of facts earlier in the process, until you have finished the heart of your brief, there may be little details that you missed at first.
And when you check your use of facts, make sure that you are giving specifics, not just generalizations. Also, have the record next to you as you draft; don’t just write from your memory. This is how inaccuracies are introduced. If something was said that was important, quote it!

3. Use headings and paragraph breaks to make it more readable. As a scorer, I am instantly annoyed when I confront a wall of text with no breaks. Headings and paragraphs help me see how you arranged and organized the various facts, and I can see how it all fits together before diving in.

4. Avoid arguing, but be persuasive. In the statement of facts, it’s important to be subtle and use focus, organization, and word choice to persuade. Don’t argue or come to legal conclusions, but do frame the facts to your client’s advantage.

Don’t underestimate the power of a strong statement of facts to tell your client’s story, and to help you maximize your brief score.

July 8, 2019 in Appellate Advocacy, Moot Court | Permalink | Comments (0)

Sunday, July 7, 2019

Section Starts: Simple Tools to Introduce Your Brief Sections with Style

Image result for starting line

Everyone writes a little different. But one place where we really change it up is in the beginning of the sections to our arguments. Some lawyers include multiple paragraphs (or even pages) of introductory exposition.

Other lawyers start with nothing at all, like this: 

I.   Argument

[Nothing?]

    A.   Section 1...

I think the latter approach may be a mistake (at least in most cases). Readers crave guidance and a roadmap at the outset of each section is helpful. And I don't mean just listing out the issues--but a meaningful roadmap. Explain why you are analyzing these issues, explain how the issues fit together with eachother, and explain how this section fits in with any others in your brief. That context will make it a lot easier for your reader to see the forest before the trees. 

And these introductions can do even more. Like the overarching introductions to your briefs, these seques can include some persuasive framing to set up the coming arguments. Think of this like your section's brochure. And remember that, like any beginning, writing inviting prose here will instill a good first impression. 

Consider: 

  1. Identifying each key point you will analyze in the section that follows.
  2. Disposing of any relevant side issues that you will not analyze, and explain why.
  3. Giving your reader any helpful context.
  4. Highlighting a persuasive fact or argument. 
  5. Making the section look inviting--don’t bog it down with tons of cases of heavy writing.

Here’s an example of a roadmap done right from a brief filed in the Fifth Circuit. Note that the lawyer previews the persuasive pitch of the section (that the other side’s use of this doctrine is unprecedented and improper). Then he sets up the following three sections: one looking at the doctrine’s source, one discussing the underlying purpose of the doctrine, and a final section walking through the precedent: 

Although González never identifies it by name, his argument is premised entirely on the application of the entry-fiction doctrine to this case. By invoking the entry fiction, he proposes to treat Martinez-Agüero as if she had been completely outside U.S. territory when he attacked her. What González does not disclose, however, is that the entry fiction has never been applied to determine legal rights and obligations vis-à-vis mistreatment of aliens as opposed to admission or exclusion determinations. Nor does he acknowledge this Court’s explicit rejection of the entry-fiction doctrine in such circumstances. An examination of the doctrine’s source, its rationale and the cases applying it demonstrates its inapplicability here.

Here’s another great one that roadmaps and inserts some zest from the persuasive argument coming. This writer also makes it even easier with a numbered list: 

First, Ms. Gratz’s motion to intervene is untimely. Second, Ms. Gatz lacks a substantial legal interest sufficient to support her intervention. At most she has a mere desire to see Proposal 2 upheld for political and ideological reasons. Third … 

Remember that, like headings, this introductory section sets the tone for the rest of the section. So make it look inviting. Good style will help with that. Avoid weighing this roadmap down with lots of citations, heavy sentences, complex details and concepts--or anything else that will make your reader dread reading on. Save the tough stuff for the body. 

The start of your sections should be an elevator pitch that sells your section and promises an engaging and organized read to come.  Here are some famous legal writers taking their time to roadmap their sections with fresh style. Note that the persuasive pitch for each section is bottled up in a quick intro sentence or two.

First, Justice Kagan: 

That conclusion raises a second dispute between the parties: What is the proper scope of judicial review of the EEOC’s conciliation activities? The Government (once having accepted the necessity for some review) proposes that courts rely solely on facial examination of certain EEOC documents...

Justice Gorsuch: 

So with that guidance in mind, what's the prison's compelling interest at play in this case? We see three possibilities. [Followed by three summaries of the sections analyzing the possibilities]...

Judge Bybee (note how this Judge makes this intro even more useful by signaling to the reader that it's skippable): 

In this section, I provide background on the source of Congress’s and the President’s authority to exclude aliens, the Executive Order at issue here, and the proceedings in this case. The informed reader may proceed directly to Part II. 

Judge Goldgar:

Earley’s plan properly treats Traid’s claim as unsecured, but not because Hunt controls the issue. It does not. Triad’s claim is unsecured because of the nature of Triad’s lien and the interplay between [one Act] and the automatic stay under the Bankruptcy Code...

Some legal writers dive deeper into the persuasive pitch, especially if it's a big section with moving parts: 

The two primary goals of this class action are to: (1) set aside Rapid Cash’s default judgments procured through its fraud upon the courts of Clark County and (2) judicially compel Rapid Cash to disgorge the substantial sums that it has collected from the class members under the purported force and effect of its illegally obtained judgments. The crux of this class action is thus equitable, not legal or procedural, in nature. In challenging district court jurisdiction, Rapid Cash relies heavily on the portion of JCRCP 60(b) authorizing motions to set aside justice court judgments. That rule and the specific portion relied on by RapidCash, however, has no relevance because this is an original, independent action in equity under the savings clause of NRCP 60(b), which falls within the exclusive jurisdiction of the district courts...

Take advantage of that empty space after your headings. Your readers will thank you. 

Joe Regalia teaches at Loyola University School of Law and practices at King & Spalding LLP in Chicago. The views he expresses here are solely his own and not intended to be legal advice. Check out his other articles here

July 7, 2019 | Permalink | Comments (0)

Friday, July 5, 2019

Appellate Advocacy Blog Weekly Roundup Friday, July 5

WeeklyRoundupGraphic

Each week, the Appellate Advocacy Blog Weekly Roundup presents a few tidbits of news and Twitter posts from the past week concerning appellate advocacy. As always, if you see something during the week that you think we should be sure to include, feel free to send Dan Real a quick email atDReal@Creighton.edu or a message on Twitter (@Daniel_L_Real).  You can also send emails to Danny Leavitt at Danny@tsalerno-law.com or a message on twitter @Danny_C_Leavitt

 

Supreme Court Opinions and News:

@Steven Mazie had an article in the Economist this week reviewing the past term of the Court, its movement to the right, and the emerging political alignment of Justices Kavanaugh and Gorsuch.

The New Yorker had an article this week addressing how the Court’s recent decision in Gundy v. United States  likely foreshadows a shift in the Court’s position with regard to allowing Congress to broadly delegate authority to agencies.  Gundy involved a challenge to Congress’ delegation to the Attorney General the decision of whether mandatory registration requirements under the Sex Offender Registration Act apply to individuals who were convicted prior to the Act’s passage.  Gundy is such a defendant, did not register, and was charged and convicted as a result.  He challenged Congress’ delegation as impermissible.  As the article notes, the Court has long allowed Congress broad authority to make such delegations.  In Gundy’s case, the Court was divided with the four more liberal Justices voting to continue allowing delegation, three more conservative Justices voting to deviate from prior law, and Justice Alito siding with the more liberal Justices but explicitly indicating that if a majority of the Court was inclined to change the law, he’d be on board.  The decision in Gundy strongly suggests that the next case to raise the issue to the Court will likely be decided differently because Justice Kavanaugh had not yet been confirmed when it was argued and did not participate.  The article notes that changing this practice of delegation may result in wide sweeping changes to federal government, as a substantial amount of federal law currently depends heavily on such delegations to agencies.

FiveThirtyEight.com had an article this week reviewing the voting habits of the members of the Court (especially the conservative members) since the retirement of “swing vote” Justice Kennedy.  The article suggested that the Court could be viewed now as having three swing Justices, depending on the issues presented – Justice Gorsuch joined the more liberal members of the Court in more closely divided cases than any of the other more conservative Justices, while Justice Roberts provided the decisive vote on the recent census case.  Additionally, the early voting trends suggest that Justice Kavanaugh is likely the current “middle” of the Court, pushing it more conservative even while he seems to be more ideologically moderate than Justice Gorsuch.

The ABA Journal took a look this week at Justice Thomas' 30 year career on the Court, emphasizing his enigmatic persona -- "supporters and detractors are still debating who he really is."  He's now the longest-serving member of the Court and the senior associate Justice.  On the bench, he's known for rarely speaking; off the bench, he's known for being quite jovial and chatty. 

 

Federal Appellate Court Opinions and News:

In the Third Circuit Court of Appeals, Amazon was held strictly liable for injuries caused by defective products sold by other vendors on its website.  The case was Oberdorf v. Amazon.com.  More from the CA3blog.

 

State Appellate Court Opinions and News:

The Iowa Court of Appeals this week reversed a jury's decision that had awarded an Iowa couple $3.25 million after they claimed their adoption attorney failed to file paperwork on time and lead to them losing the child they planned to adopt.  The couple cared for the boy for a few months, but were then required to return him to his biological parents after the couple's attorney did not have the biological parents sign termination of parental rights documents.  The child died from severe head injuries a month later, and the biological father was convicted of second-degree murder.  In reversing the malpractice damage award, the appellate court concluded that the couple had failed to show that the attorney engaged in illegitimate conduct especially likely to produce serious emotional harm and had not show that he had a duty to exercise care to avoid causing emotional harm.  More here.

 

Practice Tips and Pointers:

#AppellateTwitter discussion this week on Twitter addressed lawyers and social media – many good thoughts throughout the Twitter thread started by @RachelGurvich  right here.

July 5, 2019 in Appellate Advocacy, Appellate Practice, Current Affairs, Federal Appeals Courts, State Appeals Courts, United States Supreme Court, Weblogs | Permalink | Comments (1)

Tuesday, July 2, 2019

Brief Writing: Where Do I Even Begin?

        The record has been compiled. Your research is complete. You stare at notes you scribbled while brainstorming. Now it’s time to write the brief. Where do you start?

        Honestly, I never thought much about how to start writing briefs while I was in practice. I tackled each brief from the beginning with the Caption Page. I’d skip over the Table of Contents and Table of Authorities. Then, I wrote each section of the brief in the order it appeared, saving the Summary of Argument until after I finished the Argument section. Finally, I would compile the Table of Contents, the Table of Authorities, and the Certificate of Service. It never occurred to me that there may be a different way.

        When I teach brief writing, I encourage students to start writing the most difficult section, the Argument, first. If a student is struggling with writer’s block, I will recommend she begin by writing a few of the “easier” sections, like the Caption Page, Conclusion, and Statement of Jurisdiction, before writing the Argument. These “easier” sections are independent of the arguments in the brief and can be written any time. Ideally, I think writing the Argument first is beneficial for several reasons.

        First, the Argument section is arguably the most important part of the brief. I encourage students to spend the bulk of their time developing their arguments and writing them when they are the freshest. When I grade the brief, I spend most of my time in the Argument and I weigh this section the most heavily. My grading practice corresponds to my focus when I worked as an appellate-court law clerk. When I read the parties’ briefs, I always started with the Argument section. I spent most of my brief-reading time engaged with the parties’ arguments.

        Second, writing the Argument can take a long time. Even if you begin with a detailed outline of points, the act of writing encourages deeper thinking on the issues. You may uncover an argument you hadn’t considered when you compiled your outline. As you write, you may see gaps in your research and may need to stop writing to find additional authority. Your theory or approach to the case may change as you write. You need time for the arguments to take shape. If you start with the Argument, you give yourself that time.

        Third, developing your arguments first may lead to a better overall brief and save you time. The Argument section will likely influence how you write some of the other sections of the brief. You can unify your brief around a common theme, if you understand what your theme is after you have developed your arguments. For example, you may not realize what facts are truly important to your case until you have explored all your arguments. Writing the Argument section before writing the Statement of Facts helps you distinguish between the legally-relevant facts, which should be the foundation of your Statement of Facts, and the irrelevant facts, which should be left out. If you write the Statement of the Issues after you write the Argument section, you can incorporate your theory of the case or some persuasive facts from your arguments. Also, it is easy to highlight your key points in the Summary of Argument if you have fully formed them in your Argument first.

        If you write the Statement of Facts, the Statement of the Issues, and the Summary of Argument before writing the Argument, you may have to spend time revising these sections to match the Argument section. Writing the Argument section first, and using it to guide how you write the other sections of your brief, can result in a better overall document written in less time.

 

July 2, 2019 in Appellate Practice, Legal Writing | Permalink | Comments (0)

Monday, July 1, 2019

Guest Post: Normalizing Struggle

This is a guest post by Prof. Catherine Christopher,  a professor of law and associate dean for bar success at Texas Tech University School of Law.

My recent article, Normalizing Struggle, forthcoming in the Arkansas Law Review, critiques the many ways in which legal education inadvertently teaches students that struggling with course material is the same thing as being a failure. In the article, I reframe student struggle as a productive process that helps students build not only skills and knowledge, but also the resiliency required to be effective, healthy lawyers. I assert that individual professors and law schools as a whole should make changes to help students understand that academic struggles are normal: Lawyers constantly struggle with uncertainty, and it’s not something that can—or should!—be avoided.

Traditional legal pedagogy, with its continued reverence for the Professor Kingsfield caricature, primes students for public humiliation if they deliver less-than-perfect analysis. I’m not arguing that we should abandon cold-calling, but we should make a few things explicit. Namely, that we expect students to struggle with the material, to not have elegant or thorough answers to our questions and hypotheticals. We need to be clear that although it’s unacceptable to be unprepared for class, it’s perfectly fine to have read the assignment and been confused by it.

Many law schools have specialized academic support, academic success, and bar preparation programs, a laudable effort to assist students who find themselves at sea. The risk, however, is that by having specialized offices and personnel who deal with struggling students, law schools send the message that other faculty do not deal with struggle—“normal” students see the “regular” faculty, and struggling students see the specialists. (This risk is compounded when academic support and bar prep faculty are more likely to be female, people of color, lower-status, and less well paid than “casebook” faculty.)

My article recommends that all faculty become experts in academic support. Faculty should educate themselves on learning science, growth mindset, and belonging. We should all be attending academic support conferences. We should all be building formative assessment deliberately into our syllabi, and not just doing it so we can check a box on an ABA report. Formative assessment really helps[1]feedback is crucial to improvement, and if a student’s grade in a course is entirely depending on a cumulative final, struggle really can become literal failure.

Law schools need to be mindful of what institutional norms are being set. Schools should expect students to have time to sleep, to make and eat good food, to practice their religions, to relax. This down-time is incredibly beneficial to their academics, since the brain is busily processing information while the conscious mind is at rest.

At the risk of engaging in kids-these-days grousing, students are matriculating to law school without having experienced significant academic struggle—their K-12 educations were geared toward passing multiple-choice assessments, and college was largely a social experience for them. This is not their fault. They are, however, unprepared for the intellectual and emotional challenge of law school, and too many of them cope in unhealthy ways. Legal education must send clear messages to students that struggle is the sign of emotional strength, not intellectual weakness. It is beneficial, even desirable.

 

[1] Numerous articles, including mine, make suggestions on how law faculty can incorporate formative assessment in the classroom. E.g., Olympia Duhart, The ‘F’ Word: The Top Five Complaints (and Solutions) About Formative Assessment, 67 J. Legal Educ. 531 (2017); Heather M. Field, A Tax Professor’s Guide to Formative Assessment, 22 Fla. Tax Rev. ___ (forthcoming 2019); Steven I. Friedland, Rescuing Pluto from the Cold: Creating an Assessment-Centered Legal Education, 67 J. Legal Educ. 592 (2018); Karen McDonald Henning & Julia Belian, If You Give a Mouse a Cookie: Increasing Assessments and Individualized Feedback in Law School Classes, 95 U. Detroit Mercy L. Rev. 35 (2018); Gerald F. Hess, Michael Hunter Schwartz, and Nancy Levit, Fifty Ways to Promote Teaching and Learning, 67 J. Legal Educ. 1 (2018); James McGrath, Planning Your Class to Take Advantage of Highly Effective Learning Techniques, 95 U. Det. Mercy L. Rev. 153 (2017); James McGrath & Andrew Morriss, Assessments All the Way Down, 21 Green Bag 2d 139 (2018); Deborah Jones Merritt, et al., Formative Assessments: A Law School Case Study, Public Law and Legal Theory Working Paper Series No. 392 (April 19, 2017); Carrie Sperling & Susan Shapcott, Fixing Students’ Fixed Mindsets: Paving the Way for Meaningful Assessment, 18 J. Legal Writing Inst. 39 (2012).

 

July 1, 2019 | Permalink | Comments (1)

Friday, June 28, 2019

Appellate Advocacy Blog Weekly Roundup Friday, June 28

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Each week, the Appellate Advocacy Blog Weekly Roundup presents a few tidbits of news and Twitter posts from the past week concerning appellate advocacy. As always, if you see something during the week that you think we should be sure to include, feel free to send Dan Real a quick email atDReal@Creighton.edu or a message on Twitter (@Daniel_L_Real).  You can also send emails to Danny Leavitt at Danny@tsalerno-law.com or a message on twitter @Danny_C_Leavitt

Supreme Court Opinions and News:

Much has happened in the push to the Court's finish line yesterday for the October 2018 term. The attention on the Court and its opinions this week steals from federal circuit courts and state appellate courts. Here are some links to this week's opinions and news:  

  • Amy Howe discusses Monday's opinions on this week's SCOTUStalk podcast
  • Edith Roberts at SCOTUSblog summarizes the Court's opinions from Thursday, June 27, including the gerrymandering and census cases. A graphic explaining the complexities of gerrymandering can be found here
  • Jay Michaelson writes about judicial deference to administrative interpretation of regulations here
  • Adam Liptak writes about Wednesday's opinion in Tennessee Wine & Spirits Retailer's Association v. Thomas, which strikes down Tennessee's law that barred newcomers from operating liquor stores. Justices Gorsuch in his dissent said that the Court is a "committee of nine" that has "stray[ed] from the text" of the Twenty-first Amendment, and "impose[d] its own free-trade rules" on the States. Alito responded in kind, calling Gorsuch's dissent "empty rhetoric."

Other news, sadly, is that Tony Mauro, the Supreme Court reporter for the National Law Journal, is retiring

Practice Pointers and Tips:

@RMFifthCircuit tweeted about an opinion from the Deleware Supreme Court discussing an attorney's client during a deposition and, perhaps worse, the appellate attorney's performance during oral argument. 

June 28, 2019 | Permalink | Comments (0)

Wednesday, June 26, 2019

In memoriam: Professor Ralph L. Brill (1935-2019)

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Legal education lost an important figure last week: Professor Ralph Brill passed away on Friday, June 21. He was 83.

Professor Brill taught at Chicago-Kent College of Law for more than 50 years. He is, quite justly, most renowned for his work in legal writing: in 1977, he revamped Chicago-Kent's legal writing curriculum, creating an oft-emulated three-year program. He went on to direct that program for fourteen years, and he remained a vibrant, vocal, and revered leader in the legal writing community for the rest of his life.

Professor Brill also was a wizard in appellate advocacy. Immediately after overhauling Chicago-Kent's writing program, he turned his attention to bringing order and rigor to the school's work in moot court. In 1978, he and two students—Tom Krebs and Ron Petri—convinced the faculty to approve the creation of Chicago-Kent's Moot Court Honor Society and to award credit to students who participated, with faculty supervision, in interscholastic moot court competitions. He served as the MCHS's faculty advisor until 1992.

Under Professor Brill's leadership, Chicago-Kent's Moot Court Honor Society enjoyed immediate and profound success. One highlight: in 1980, the Chicago-Kent team of Damon Dunn, Richard Kerr, and Pamela Woldow won the award for national best brief in the National Moot Court Competition. Professor Brill's teams racked up multiple championships in the Chicago Bar Association Competition and the All-Illinois Moot Court Competition, and the school won numerous regional titles in the National Moot Court Competition and the ABA National Appellate Advocacy Competition. 

When Professor Brill stepped down as faculty advisor of the Moot Court Honor Society, he helped to again reshape and improve the program. In 1992, the school launched the Ilana Diamond Rovner Program in Appellate Advocacy. It's a wonderfully-designed co-curricular program, and it remains the umbrella for Chicago-Kent's substantial participation in appellate advocacy. It owes its shape and its culture—and its consistent success—to Ralph Brill. Professor Brill also exerted substantial influence on real-world appellate advocacy: he served as a consultant on major tort cases in Illinois, and he was active in the Chicago Bar Association.

On a personal note: I owe my professional happiness to Ralph. He created Chicago-Kent's Visiting Assistant Professor program; that program gave me my start in academia. He created Chicago-Kent's legal writing program; teaching in that program made me realize I wanted to build a career around teaching smart students to be skilled lawyers. He created Chicago-Kent's appellate advocacy program; I have had the good fortune and profound honor of directing that program for the last 16 years. When he retired two years ago, I took his slot as a Torts professor. He was, as always, remarkably generous about sharing his advice and teaching materials.

We'll miss him. We're better for having known him.

June 26, 2019 | Permalink | Comments (0)

Tuesday, June 25, 2019

Conducting Moot Court in Real Appeals - Part 2

TYLA finals 2019

In my last entry, I gave an overview of how to set up a moot court session for your real appeal, including panelist selection, timing, and preparation. Today, I want to talk in more details about how to set up and conduct the moot court session itself.

1.     Plan Ahead and Be Respectful of your Panel's Time.

Making the most of this time is critical. You are either costing your panelists their time (if they have volunteered) or paying them for it, either in the form of a flat or hourly fee. Be respectful of that time. First, give them copies of the briefing and key cases or statutes far enough in advance that they can time-shift the work needed to be prepared for the session. Second, let them know your expectations for their participation at the session and the anticipated time involved.

2.    Establish a Format for the Session.

The latter bit of information will depend on whether you are going to have a “typical” session or add on time. The “typical” session that I recommend is in two parts. First there is a true “moot court” session, accurately emulating the anticipated oral argument. Second, the panel takes off the robes (literally or figuratively) and talks through their critique of the argument and the answers given. Give yourself time for your moot court (with or without opposing argument presented) and then, as a rule of thumb, at least double that time for the follow-up discussion. Encourage the panelists to raise issues or questions that might not have been brought up during the round.

You can add to this time if you wish. Some practitioners want to give the argument first without questions as a straight run-through, then have the panel hear the argument again and ask questions. I usually counsel against this, because it means your moot panel will have heard the argument much more clearly than your actual panel will.

If your panel has time, you may want to have an initial roundtable after the argument, then watch the video and see what other questions or comments are brought to mind when doing so. As mentioned in the earlier article, you might even want to have a separate brainstorming session before your response or reply are due, in order to flesh out issues during briefing instead of oral argument.

In my moot court coaching, I alternate between informal roundtable discussions, question and answer sessions, and argument. Over the years I have come to believe that it takes all three types of preparation, much like a sports team might have team meetings to discuss plays, conduct skill drills, and then play in scrimmages in order to prepare for a real game.

Whatever the plan is, make it explicit to the panel and be sure to prepare for each step. Do not underestimate the time for your panel if you want them to work with you again.

3.    Accurately Emulate the Oral Argument.

Next, pay attention to the actual setup of the moot court session. I prefer using as realistic a setup as possible. If you have never argued before a particular court before, find out what kind of timing mechanism is used and find one that matches it as closely as possible. If you are not familiar with timing lights, they can be very distracting and a bit confusing. To prepare, you can find timing lights on Amazon or other retailers. Practicing with the light will help you get a better feel for how to time your argument without fearing your first encounter with “the light.”

If possible, try to hold your moot session in a setting that emulates your oral argument environment. Many law schools have practice courtrooms, with some set up for appellate simulation. In a pinch, a conference room will work, but use a podium and have the panel sit together so you can get used to scanning for reaction. Teleconferencing is also an option if time or distance simply do not allow for everyone to be in the same room, but I don’t find it to be as accurate a simulation as other setups.

4.    Prepare Yourself and Your Panel.

When the date of the session arrives be sure that you and your panel are prepared. If you have selected former justices, appellate practitioners, or even former clerks for the court you are approaching, and have provided them with materials in time to prepare, they will be ready to serve as a general panel. If you receive a notice of panel change or setting, be sure to share that with them and discuss potentially doing additional research to emulate a particular justice on the panel, if that is the approach you wish to take.

Prior to the session, practice and refine your argument on your own, and work with potential Q&A that you and your colleagues may have developed. If you are a newer or infrequent advocate, and you are nervous about how to handle questions, one practice technique is to write down anticipated questions on note cards, give them a good shuffle, then start your “speech,” grabbing a card at intervals and responding to the questions while working back into the arguments.

Finally, watch oral arguments from your court, your panel members, and your opponent. The proliferation of online videotaped oral argument is a wonderful preparation tool.

5.     Enjoy the Conversation

The ultimate goal of all of this work is to make yourself comfortable with the subject matter, the format, and the environment to such an extent that you are able to engage in a meaningful conversation with your real panel. Only by working with a practice panel can you reassure yourself that your weaknesses have been fully probed, and only be simulating the experience accurately can you feel comfortable when you stand to speak. But don’t forget to enjoy the moment – oral argument is increasingly rare on appeal, and each time it is granted you are being given an opportunity to meaningfully collaborate with the court in properly developing the law in a setting that is meant to speak your sometimes dry legal arguments to life.

(Image credit: My furtive photo of an excellent simulation experience for two of my SMU Law School moot court students, Adrian Galvan (speaking) and Sydney Sadler (sitting to his left) at the final round of the TYLA Moot Court Competition earlier this month, where they were able to argue in front of all but one of the judges (that is the proper term for this court) from the Texas Court of Criminal Appeals.)

 

June 25, 2019 in Appellate Advocacy, Appellate Practice, Legal Profession, Moot Court, Oral Argument, Rhetoric | Permalink | Comments (0)

Monday, June 24, 2019

Summary of the Argument: Moot Court Edition

Have you ever picked up a book, read the back cover and immediately set it back down, with nothing enticing you to read further? An ineffective summary of the argument can create this effect in your brief.

One of the final parts of the brief to write, the summary of the argument is often the first chance to persuade the judges. But more than that, the summary of argument serves to frame and present the thinking of the brief, and it should do so in a way that draws the judge further into the brief. Some judges read the summary of the argument first, and it’s a mistake to throw something together than is bland and doesn’t get to the heart of your argument.

Judith Fischer’s 2015 article, Summing it up with Panache: Framing a Brief’s Summary of the Argument
takes a deep dive into summaries of the argument and looks at recent Supreme Court briefs’ summaries to gather insights into how appellate practitioners write them. It’s a helpful article in understanding a practitioner approach to the summary of the argument, and it’s rich in examples.

For moot court, I believe scorers are looking for the same thing that a judge would be. Does the summary of the argument give a persuasive overview of the case? Here’s an example of summary of the argument scoring criteria from a competition I have scored before:

________________________________________________________________________


SCORING CRITERIA

SUMMARY OF ARGUMENT:
Is it a succinct, clear, accurate statement of the argument?
Is it persuasively written?
Is it more than a restatement of the point headings?
(10 points possible)
________________________________________________________________________

TOP TIPS FOR THE SUMMARY OF ARGUMENT

1. Include your theme in the first sentence or two of the summary. If I get to the end of the first paragraph and I don’t know your position, that’s a problem.

Here is a great example from Judith Fischer’s article mentioned above comparing the first sentences of petitioner and respondent summaries of argument:

_________________________________________________________________

Eminent domain was the legal subject in Kelo v. City of New London, where the petitioners opposed a local government’s taking of private property for use by a commercial entity. Their summary of the argument opened with an appeal to Americans’ emotional attachment to their homes: “To Petitioners, like most Americans, their homes are their castles.” The brevity of this sentence intensifies its impact.

The respondents’ summary evoked logic rather than emotion: “At the heart of this case are a series of decisions made by the Connecticut legislature and the elected officials of the City of New London as to what will best serve the economic, social, structural and environmental interests of New London's citizens.”

These sentences primed the Court for two contrasting approaches to the case. The petitioners tapped into deep-seated feelings about homes. By contrast, the respondents relied on legal principles, telling a “‘justice’ story” to argue that the city’s decision was correct despite an outcome displeasing to some.
In Kelo, the justice story prevailed when the Court approved the city’s exercise of eminent domain.

_______________________________________________________________

2. Keep it under about 10% of the length of the actual argument. It should be a true summary, not a full recap. Too long, and you risk losing the opportunity to give a good overview to your reader; too short, and it may not be enough to be helpful.

3. Limit citations. It will bog down the summary.

4. Don’t just restate the point headings. It’s lazy and just taking up space.

5. Make sure to leave yourself enough time to give thought to your summary of the argument once you are done with the argument.


Just like authors and editors spend significant time on the back of the book to grab readers’ attention, you should be persuading from the beginning of your brief by having a strong, concise summary of argument.

June 24, 2019 in Appellate Advocacy, Law School, Legal Writing, Moot Court | Permalink | Comments (0)

Saturday, June 22, 2019

Playing to the Crowd: Simple Tips for Crafting Custom Legal Writing

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A little narcissism is good. At least that's what I am telling myself. - Andy Dunn

Usually, I share ideas for writing well--tips backed by science and experience. But today I ask that you suspend a few of those best practices in favor of something more important. Your reader's narcissism. 

Ok, narcissism is a touch strong. But the research is rife with studies showing that readers (like everyone else) love themselves. They love their own ideas; they love their own writing; they love their own voices. In short: If you could convince your reader that they actually wrote your brief, you would probably win every time. 

The truth is that we think that how we do things is the right way. Catch us in a self-reflective moment and, sure, we'll admit we aren't perfect. But in the heat of the moment--say, when reading a brief--we are the boss. Like at Burger King, we want the brief our way. Setting aside that you probably have some sense of this truth already, the science says so, too. This is probably why so many writing experts urge lawyers to "write for their audience."

But what does that mean? There's always some generic advice for using different tools for different types of audiences--for example, writing for judges versus writing for attorneys. 

Yet this cognitive science suggests we should be customizing more than that. Consider emulating how your particular reader approaches and interprets the law, and, perhaps more important, some of their writing style quirks as well. The science suggests that by writing like your reader, your reader is more likely to view you favorably, more likely to agree with you, and in the end, more likely to make you win. 

To do this right, you'll first need some writing samples from your reader. For judges, that is usually easy: Just do some online searches and pull five or so recent opinions. For most lawyers this step is easy, too--just ask them or anyone who works with them. 

With the samples in hand, run through the below list (or make your own) and jot down some of your reader's writing quirks. If you can't bring yourself to adopt some of these--fine. And I'm not suggesting you wholesale copy your reader's every whim. But you will be amazed at how persuasive your reader will find their own voice. 

1. Meaty headings or short ones?

2. Font and other typeface choices?

3. Heading numeral format (all caps? Etc.)?

4. Conclusions: Legalese or substantive?

5. Introductions in formal legalese or straight to substance?

6. One space or two after periods?

7. Paragraph length (shorter or longer)?

8. Sentence lengths?

9. Visuals like bullets and numbered points?

10. Traditional transitions (moreovers and furthermores)?

11. Deep introductions?

12. Extra-short sentences or paragraphs? (If not, they may be in the old-school camp that these are no-nos).

13. Authority or legal background in the fact section?

14. How do they like the structural layout of the document and white space?

15. Footnote use? Substantive footnotes?

16. Fresh and vivid words? Other writing style quirks?

17. Adherence to outdated grammar rules like never splitting an infinitive or starting sentences with conjunctions?

18. Policy-forward discussion at the start?

19. Types of policy—slippery slope, ideological, etc.?

20. Lengthy discussions of rules and authority or more focus on facts?

21. Approaches to interpreting case law? (full fact to fact exposition for every important case?)

22. Textual interpretation—textualism?

23. Legislative history?

24. Formal tone? Neutral? Pay particular attention to old-school legalese like “such as.”

25. Other legalese: Latin phrases, long formalisms at the start of the motion, etc.

26. Naming and definition conventions (e.g., acronym style).

27. Titles of documents (both in caption and digitally)?

28. Literally, anything else you notice in their writing!

The gold standard would be if your reader took a look and said to themselves, "wow, looks like I wrote it." 

Joe Regalia teaches at Loyola University School of Law and practices at King & Spalding LLP in Chicago. The views he expresses here are solely his own and not intended to be legal advice. Check out his other articles here

June 22, 2019 | Permalink | Comments (0)

Friday, June 21, 2019

Appellate Advocacy Blog Weekly Roundup Friday, June 21

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Each week, the Appellate Advocacy Blog Weekly Roundup presents a few tidbits of news and Twitter posts from the past week concerning appellate advocacy. As always, if you see something during the week that you think we should be sure to include, feel free to send Dan Real a quick email atDReal@Creighton.edu or a message on Twitter (@Daniel_L_Real).  You can also send emails to Danny Leavitt at Danny@tsalerno-law.com or a message on twitter @Danny_C_Leavitt

Supreme Court Opinions and News:

The Supreme Court notably avoided the new case over the clash between  same-sex couples and wedding cake bakers. This time, the case  came out of Oregon. Recall that last year the Court ducked the ultimate issue in a case out of Colorado. In the Oregon case, the Court issued a brief order sending the case back down to the trial court for “further consideration” in light of the Colorado case that the Court issued last year. Read about it here, here, and here. 

Tony Mauro and Marcia Coyle in the Supreme Court Brief remind us that on July 1, new court rules will limit briefs to 13,000 words, down from the current 15,000-word limit. They include in their reporting  comments by legal-writing experts Bryan Garner, Hank Wallace, and Ross Guberman. Find their piece here. They include this account by Chief Justice Roberts about cutting from briefs:

But the all-time best technique for trimming may have come from the late Chief Justice William Rehnquist. His successor and prior law clerk John Roberts Jr. recounted the time when he submitted a draft opinion to Rehnquist. Rehnquist circled sections of the draft and told Roberts to “put it all in footnotes.” Roberts did so and gave it back to Rehnquist, who told him, "Now cut out all the footnotes."

And last—about the last week of the Court’s term—Adam Feldman @AdamSFeldman tweets about what we can learn from the Court in its last week. 

The Court has been issuing opinions this week, some of which include the Establishment Clause, the non-delegation doctrine, statute of limitations, and jurisdictional-channeling issues. SCOTUSblog briefs the issues  here

Circuit Court and State Appellate Court Opinions and News:

The Court of Appeals for the First Circuit ruled on behalf of Maine’s former Governor in a lawsuit brought by the state’s former House Speaker. The lawsuit challenged the former Governor’s actions to fund a charter after the former House Speaker was fired from his job with the charter school. The court ruled the former Governor was protected by immunity, with three judges on the panel finding that the former House Speaker’s constitutional rights were violated. The case is reported here.  

Practice Pointers:

Howard Bashman wrote this piece on being aware of appellate waiver traps in state court. 

June 21, 2019 | Permalink | Comments (0)

Tuesday, June 18, 2019

Job Posting--West Virginia Solicitor General's Office

The West Virginia Attorney General’s Office is accepting applications for positions in the Solicitor General group, including a junior/mid-level attorney and a mid- to senior-level attorney.  Excellent writing skills required; clerkship and appellate/administrative law litigation experience preferred.  Must be eligible to waive into the West Virginia Bar or be willing to sit for the West Virginia bar exam.  Positions are based out of Charleston, WV with some geographic flexibility within the State. 

All attorney in the SG group gain significant appellate, administrative, and general litigation experience.  The group practices at all levels in state and federal courts, including before the Supreme Court of the United States.  Attorneys in the group can expect oral argument experience in the Supreme Court of Appeals of West Virginia, as well as opportunities to present argument or second chair in federal appellate courts. 

The group is a small team, with all attorneys taking primary responsibility for their maters and contributing at highly substantive levels.  Responsibilities include primary drafting for major appellate briefs and administrative comments; coordinating multi-state efforts for amicus briefs and multi-state litigation; researching and drafting Attorney General Opinions; and researching and providing strategic advice on high-profile matters to the Attorney General and other constitutional officers. 

Applicants should submit their resume, a writing sample, and a cover letter to jobs@wvago.gov.  Any questions about the position may be directed to Solicitor General Lindsay See at lindsay.s.see@wvago.gov

June 18, 2019 | Permalink | Comments (0)

Monday, June 17, 2019

Tips for Securing an Appellate Clerkship

While we often post on this blog about appellate practice, I thought that I would take a small detour of sorts and post about how to secure an appellate clerkship.  A state or federal appellate clerkship is an excellent stepping stone to an appellate career.  But how do you secure an appellate clerkship?  Although the easiest route to a federal appellate clerkship is to attend a top 5 law school and receive top grades (or lots of high-passes), there are plenty of opportunities for students at non-top 5 law schools to secure clerkships. 

(1) Get good grades:  Regardless of where you attend law school, getting good grades and being ranked in the top 5% or 10% of your class is pretty important.  If you are seeking a federal appellate clerkship from a lower-ranked school, you probably need to be in the top 5% of your graduating class.  Students who aren't ranked in the top 5% but who want to do a federal appellate clerkship should consider starting with a federal district or magistrate clerkship or clerking first at the state supreme court or intermediate appellate court level.

(2) Be on a journal: For many judges it is important for applicants to have journal experience.  Much of the work that appellate law clerks do mirrors journal work.  For some judges, high level moot court experience could replace journal experience.  

(3) Get to know your professors: I have heard from people in the know (judges or their career clerks) that strong letters of recommendation are helpful for securing clerkships.  So, you need to get to know your professors well enough for them to write good letters. One way to do this is to visit office hours or to serve as a research assistant for a professor.  And, in asking professors to write letters, pick the professor who knows you the best, not the professor who is most well-known in academia. If you are particularly well-connected to a professor, that professor might have personal connections with judges and be willing to send a direct email or make a phone call on your behalf. I have done this for students, and I have also connected prospective applicants with friends who have clerked for judges.

(4) Get to know judges: Interning or externing for a judge can be a great segue into a clerkship. You get to know that particular and often the others in the courthouse.  You can see what the judges do, and hopefully end the experience with a great recommendation.  Another way to meet the local judges is to participate in local lawyer activities, like the local bar association, the Federal Bar Association, or legal-organizations like the Federalist Society or the American Constitution Society.  Most of these organizations offer very cheap student memberships, and many local state and federal judges actively participate in these organizations.

(5) Find a connection: Apply to judges with whom you share some sort of connections. Perhaps you went to the same undergraduate institution or law school. Maybe you were both in the girl scouts or some other organization. Maybe you both grew up in the same town.  Find those judges, apply to them, and mention the connection in your cover letter.

(6) Work your way up: When I graduated from law school almost 15 years ago (yikes, I feel old), it was the norm to go straight to a federal appellate clerkship.  That is no longer the case.  Even students from top 5 law schools often stack clerkships--starting with a federal district or magistrate clerkship and moving their way up to a federal appellate or state supreme court clerkship.  If you are interested in clerking at the state level, you could certainly stack a state intermediate appellate clerkship and a state supreme court clerkship.  I also know of a student who went from the state supreme court to the federal district court.  The point is to be creative! If you view each clerkship as a learning opportunity, stacking clerkships just gives you more time to learn.

(7) Don't forget the state courts: If you want to have a predominantly state practice, you should consider a state court clerkship. I believe that the value of a clerkships lies in the experience and mentoring that you receive.  I have met many a state court judge who is better equipped to do this than some federal judges.  So, even though some people might not consider state clerkships to be as prestigious, I would encourage you to consider applying for one, especially if you think that the judge would be an excellent mentor.

(8) Start thinking about a clerkship early: Finally, I would recommend that you start thinking about a clerkship early in your legal education. This allows you to form relationships with professors, request letters of recommendation, apply for internships, and get on a journal. If you aren't sure if you want to clerk, stop by a professor's office to ask about her clerkship experience.  Or, try working for a judge your first summer out of law school.  That experience should help you know a little bit what a clerkship would be like.

Good luck to all of the students applying for clerkships right now!

 

June 17, 2019 in Appellate Practice, Law School, Legal Profession, State Appeals Courts | Permalink | Comments (0)

Friday, June 14, 2019

Appellate Advocacy Blog Weekly Roundup Friday, June 14

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Each week, the Appellate Advocacy Blog Weekly Roundup presents a few tidbits of news and Twitter posts from the past week concerning appellate advocacy. As always, if you see something during the week that you think we should be sure to include, feel free to send Dan Real a quick email atDReal@Creighton.edu or a message on Twitter (@Daniel_L_Real).  You can also send emails to Danny Leavitt at Danny@tsalerno-law.com or a message on twitter @Danny_C_Leavitt

Supreme Court Opinions and News:

The Supreme Court’s Next Three Weeks Could Shake Up the 2020 Election:   “The U.S. Supreme Court enters the homestretch of its term with looming decisions that could affect the 2020 election and thrust the Court even deeper into the nation’s political wars.  Between now and the end of the June, the nine justices will rule on two intensely political issues – whether President Donald Trump’s administration can put a citizenship question on the 2020 census and whether federal courts can strike down voting maps as excessively partisan.  The Court will also be making pivotal decisions about what cases to add for the term that starts in October and ends the following June, during the heat of the presidential campaign.”  More from Bloomberg.

On Monday, the Court issued an opinion in Quarles v. United States, a case about intent requirements for a frequently-litigated sentencing law that imposes mandatory minimums on gun offenders.  The Armed Career Criminal Act imposes 15-year mandatory minimum prison terms for gun offenders with three prior “violent felony” convictions.  In the Quarles case, Quarles pleaded guilty to gun possession in 2015, and he had three prior convictions – two assaults which qualify as violent felonies and a conviction for third-degree home invasion, which does not require that the intent to commit the crime be formed when the defendant enters the location. The issue was whether the lack of an intent-at-entry requirement allowed the conviction to be considered a “violent felony” consistent with the definition of burglary in prior high court cases.  The Court, in a unanimous opinion authored by Justice Kavanaugh, sided with the government in concluding that it was a third “violent felony” conviction. More from Bloomberg.  Opinion.

Challengers of the proposed census question about citizenship filed a motion this week asking the Supreme Court to delay in ruling whether the Trump administration should be allowed to place the question on the 2020 census form.  Since the lower court decisions ruling that the question could not be added, new allegations have surfaced to suggest that the question was added at the urging of a Republican who sought to benefit the Republican party and white voters.  In its motion, the ACLU urged the Court to either uphold the lower court rulings or send the matter back down to the lower courts to consider the new allegations, arguing that the case has sufficient consequences to merit being decided on the basis of a true and complete record.  More from the Washington Post.

Federal Appellate Court Opinions and News:

Led Zeppelin has been involved in ongoing litigation for several years now over claims of copyright infringement concerning portions of the band’s iconic 1971 hit, “Stairway to Heaven.” The trustee for the estate of guitarist Randy California, formerly of the band Spirit, brought suit against Led Zeppelin and asserted the band failed to credit a 1968 Spirit instrumental track for portions of Stairway.  In 2016, the case went to trial and the trial court ruled in Led Zeppelin’s favor.  But a three-judge panel of the Ninth Circuit Court of Appeals overturned the decision last year and ordered a new trial, based on erroneous jury instructions.  Now, the circuit court has agreed to rehear the case before an eleven-judge panel in an en banc hearing. More from TrialInsider.com.

AppellateJobs:

United States Department of Justice, Civil Division is hiring four new Appellate Staff Attorneys (Washington D.C.): More Information HERE.

Illinois Office of the State Appellate Defender his hiring for attorneys in three of its offices (Chicago, Springfield, and Elgin):  More Information HERE.

June 14, 2019 | Permalink | Comments (0)

Tuesday, June 11, 2019

Conducting Moot Court in Real Appeals - Part 1

Dumier high tribunal of judges

As both a moot-court coach and a real-life appellate specialist, I find myself moving back-and-forth between real appeals and simulations on a regular basis. Each one advises the other, and I think the experience makes me both a better coach and practitioner.

One area of overlap is in "mooting" appeals. In law school, it is an exercise in practical skill building with formative assessment in the form of constant feedback. In real appeals, it is the best preparation there is for oral argument, no matter how skilled the presenter might be.

Don't just take my word for it:

No preparation for oral argument is as valuable as a moot court in which you're interrogated by lawyers as familiar with your case as the court is likely to be. Nothing, absolutely nothing, is so effective in bringing your attention to issues that have not occurred to you and in revealing the flaws in your responses to issues you have been aware of.

Antonin Scalia & Bryan Garner, Making your Case: The Art of Persuading Judges 158 (2008)

Your opponents are probably doing it. The United State's Solicitor General's office, as well as Appellate Staff throughout the government, conduct at least one moot session before oral argument. In larger cases, it is increasingly considered best practices to do so. Larger firms often conduct multiple moot sessions in-house. Even in smaller matters, informal mooting sessions are becoming more common.

Fortunately, if you are familiar with moot court from law school, you can probably put together a moot round for your argument. You just need a panel, a video camera, a plan, and time. Lots of time.

1.    Pick your Panel Carefully

In general, you want to pick at least three panelists who will represent the type of judges you anticipate will be on your panel. Legal expertise is less important than appellate experience. For this reason, former appellate judges and appellate specialists are often utilized. Appellate specialists can put together a panel for you if you need the assistance.

Why not pick someone who really knows the substantive law? Because they aren't a good emulation of your court. You want people who will read what the court will read (the briefing, key cases, orders/judgments at issue and record excerpts) and then ask you the type of question that this preparation brings to mind. Someone who knows the law very well outside of this exercise might carry the same blinders you have developed during your time with the case.

If you are appearing before a court en banc or a court with more than three justices, you can use more panelists. Most practitioners do not suggest matching the full number, however, as there is diminished value in adding more seats at the moot.

2.     Prepare For Your Session Wisely

You want to have at least one moot round within two weeks of the oral argument so you have time to prepare and adjust based on your session. If possible, discussing the issue even earlier can be of great benefit. Indeed, if you can schedule a time with your panelists to have a roundtable discussion before you finish briefing, that is ideal. Uncovering arguments and answering questions you had not thought of asking in your briefing, rather than in the oral argument alone, is ideal.

Some research into your potential panelists is a good idea. If you are in a jurisdiction that videotapes oral argument, watch recent arguments on related issues to get a feel for how the justices you might get on your panel are approaching your issues. I recently mooted a panel for a public interest group, and noted that one justice in particular on the circuit tended to focus on a particular statutory issue. I flagged that for them during the moot court, and when that issue arose at oral argument, they were able to answer it when others had not and ultimately prevailed.

You may also wish to find someone willing to argue the other side. The moot session can work with just your side if you are experienced. But if you need work on your rebuttal skills or in shaping your appellee or respondent argument to an unexpected approach or to address questions asked to co-counsel, this step can provide you some additional help.

3.     Videotape the Proceedings

Time acquires a very subjective and malleable quality when one is being grilled by a panel of intelligent skeptics about a topic that has great importance. Before you know it, your time is up and you are sitting down trying to remember what was just said. Videotaping the round ensures that you will remember the questions asked and answered, and you can see how you look and act during your moments of panic and introspection. If you need to work on your "uhs" and tendency to sway while speaking, now is the time to do so.

4.     Take Your Time at Every Stage

Finally, make sure everyone takes the time necessary for the process to work. You need to take your time in preparing your argument and answers for the moot session just like a real argument. Your panel needs to take the time to read the briefing and record. After your session, take the time to round everyone up and discuss what worked and what did not, how answers can be refined, and otherwise discuss the round. Then, if you have time, do it again.

Indeed, you can schedule multiple moots with multiple panelists. There are law schools that have appellate clinics who may be willing to do so for free. If you are arguing in the Supreme Court of the United States, book your time with the Georgetown University Supreme Court Institute as early as possible, as they are "first come first serve" when it comes to sides.

If you pick panelists who will ask you difficult and unexpected questions, if you take the time to prepare your presentation, if you review the videotaped proceeding carefully and refine your arguments, and if you are willing to do it all again if need be, you will go far in refining your argument. There is a reason one of the most commonly-heard comments from real judges who sit on panels for moot court competitions is "I wish the real advocates who appear before me were as prepared and skilled as you are."

In the next installment I will talk in a bit more detail about how to actually conduct the moot session to maximize its usefulness.

(Image credit: Honore Daumier, The High Tribunal of Judges, 1843)

 

June 11, 2019 in Appellate Advocacy, Appellate Practice, Moot Court, Oral Argument, United States Supreme Court | Permalink | Comments (0)

Saturday, June 8, 2019

Winning on the Rules: 23 Tools for Persuading With Legal Authority

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An awesome article about "citation stickiness" made the rounds recently. The thrust of it is that judges don't use many of the cases that lawyers put in their briefs. In other words: Judges are often figuring out the rules on their own. This article is just the latest of many suggesting that lawyers are failing in the law department.  

Does that surprise you? I'm not sure it should. Writing about the facts is intuitive enough, but writing about rules is tough. Cases and statutes are complex and convoluted. Two things that don't make for easy writing. It's tempting to drop a few citations and generic rule statements on your reader and move on. 

But if you do that, you're missing the mark. Your judge will need to craft a compelling account of how the rules work when writing the opinion. So you should, too. Rather than stick to the simple, superficial rule statements that many lawyers opt for, consider the persuasive power of a more sophisticated rule story. Cognitive science supports this approach as well. The more comprehensive your pitch for why a judge should adopt your interpretation of the law, the more likely you are to win. 

To write better rule explanations, try this two-step process.

First, package your winning interpretations into simple slogans. By distilling your rule interpretations into a pithy sentence or two and setting it out at the beginning of your rule sections, your reader will have an easier time following along as you dish out the meat.  

For example, take this packaged rule from an appellate lawyer: 

Whether a putative class member has standing to object turns entirely on whether they will lose money when the class is certified.

This snappy headline instantly gives your reader a snapshot of your take on how the rule works. 

Second, get more sophisticated about how you prove your interpretations. I call this using authority evidence. Authority evidence is the stuff you use to persuade your reader that your take on the rule is worth following. Like factual evidence, authority evidence comes in many forms. Also like factual evidence, all authority evidence is not created equal, nor is it equally useful in every situation. Instead, you should think hard about what authority evidence you can round up in your case and which types will be most persuasive to your particular audience. 

The takeaway: Don't just rely on facts from prior cases to prove your rules. You would never rely on a single piece of factual evidence to litigate a case--and the same is true of authority evidence.  

I've gathered 23 types of authority evidence to inspire you. Many should be familiar, but some perhaps less so. Combine several of these in your rule sections to craft compelling standards that will win. 

1.    Quotes from cases. Use specific quotes to illustrate how rules work or apply.

This Court has said ‘the touchstone is the burden of proof.’ [Cite].

2.    Comparing language from different cases. This is a classic: comparing language used in different cases to help distinguish, explain, and clarify.

While this court said the touchstone was “burden of proof” in Sybeck, it did an about face in Perelis, saying that from now on “intent” is what courts should focus on most carefully.

3.    Contradicting language. Suggest a court did not really mean what it said by pointing to contradicting language within that same case, or from other relevant cases. Even if language merely seems inconsistent, that is enough to plant a seed of doubt.

The court mentioned that specific intent may be required, but then finished its opinion by saying "never before have we required plaintiffs to show precisely what the defendant intended."

4.    Full fact-to-fact explanation of cases. Compare specific facts from prior cases to your case—the similarities for good principles and the differences to distinguish. Often, it’s best to try to compare an actor in a prior case to an actor in your case.

But note there are two sorts of factual comparing: silent fact comparisons and reasoned fact comparisons. Silent fact comparisons are when the precedent opinion never mentioned the fact in its reasoning, but the facts were still there somewhere in the case. Reasoned comparisons are more persuasive because the precedent case said that the fact was important. 

Jones turned on several facts, all of which suggested that the prejudice was so severe that money could not make the plainitiff whole. The company had been slaughtered in the stock market, plummeting so much each day that analysts questioned whether it could ever recover. Not to mention the company’s pure loss of liquid funds, which nearly put it out of operation. The court highlighted both of these facts in granting preliminary injunctive relief…” (reasoned)

Calico did not deal with companies at all: it was a case about a mother asking for custody of her child.” (silent)

5.    Analyze the quality of cases. This is a crucial, and often ignored, set of tools. Consider the age of the case, the thoroughness of reasoning, what court it came from (mandatory? reputable?), who wrote it, the level of the court, how other authorities have treated it, publication status, how many judges signed on, and more. 

The other case that mentioned this rule, Samar Trusts, was decided 30 years ago and gave it only three lines of analysis…

6.    Identify an unhelpful line of cases and discard them all in one swoop because the source case was wrong. Make sure you do some digging for the foundational case, statute, or whatever source the rule comes from. Then see if you can attack an unhelpful principal at the source. Or you can use that source to help support a narrowing or interpretation of the rule that you might like.

This requirement of pleading the relief down to the penny comes from a single line of cases about forfeiture--a context that involves different considerations than garden variety tort claims...

7.    Argue based on which facts a case emphasized most, or emphasized least, or ignored. Often courts give you some idea about which facts were most important. You can use this focus to argue that a fact should be weighed more heavily, or less heavily, than others under the rule.

The court brushed aside Ace’s harms, giving it barely two sentences of consideration. The thrust of the question, instead, was whether Ace had laid out a plausible legal claim in the first place...

8.    Argue about why a court was silent about a fact or rule, despite that it was relevant or obvious. If a court never addressed a fact that the other side thinks matters—and the same rule was being applied—that is evidence that this fact is not as important as people think. 

Plaintiffs urge that their corporate walls shield them from a suit. But not in a single one of their cited decisions did the court mention piercing the corporate veil. That is so despite that each involved a parent and child company waging the same battle that the parties are waging here. The court’s silence is telling...

9.    Argue a point is merely dicta. 

González turns to dicta from a single case—dicta seemingly endorsed by only a plurality of the Supreme Court in United States v. Verdugo-Urquidez. Relying on this dicta, González argues that aliens have no Fourth Amendment rights even when they step onto U.S. territory.

10.    Dig into the record and point out what the parties argued in a prior precedent case to add color to the court’s holding. In discussing the Wickard commerce clause case, for example, one attorney dived into the history to show that this case was about much more than baking bread:

Farmer Filburn was not an organic home baker who had decided to raise wheat for a few loaves of bread. Rather he “raised wheat commercially and regularly sold a portion of his crop on the open market."

11.    Argue a case distorted the previous rule of law. Identify the inherited rule in a case (the rule as it was before the case) and the processed rule (the rule after the case has applied the rule to facts). And point out a disconnect. 

Jerico Systems Inc. says that it applies the "no-flunking" rule, but its reasoning and analysis tell a different story. Before Jerico, never had a court suggested that flunking was even part of the analysis. That goes for all 14 cases that had taken on this same issue before. But Jerico not only considered flunking--the court said that this was the “touchstone” of the case…

12.    Argue about the rule’s broadness. Did the case narrow its holding to certain triggering facts, or are there broader principals you can pull out even if the facts are quite different? 

The High Court made sure lawyers would not use its holding in the future, saying:  ‘if [it] were a different plaintiff and different defendant, the rule would likely come out differently.

Or:

That case addressed a unicorn--a company that had never even sold a product much less practiced its claims invention. Perry says nothing about a blanket rule requiring every company in the nation to support its practice with admissible evidence.

13.    Discredit, or bolster, by looking at how other courts or judges have treated authority.

Lynch has been relied on recently by, among others, the Third Circuit in Chi Thon Ngo, the Sixth Circuit in Rosales-Garcia, and the Ninth Circuit in Kwai Fun Wong v. United States.  It has been continuously cited by this Court as well.

14.    Explain where the rule came from or its original purpose. Legal readers are persuaded by the “why.” Why does this rule exist? Are you trying to twist it in a direction that doesn’t bear any resemblance to its original purpose? 

The exhaustion requirement is about efficiency and expertise. The rule was borne in Tyrion. The court there made clear that if efficiency and expertise are not on the table, exhaustion makes little sense: . . .

15.    When the other side relies on a case heavily, look for ways that the case can also support your position. If you can pull this off, the case will move from your opponent’s column to neutral--or even to your side.

Viacom ignores Grokster’s actual holding. Instead, it tries to shift the legal playing field, disavowing the term “inducement” and contending that liability “rests on the existence of the unlawful purpose itself.’ The murky standard Viacom proposes diverges from Grokster in two critical respects…

16.    Other similar statutes, laws, etc.—how they work, how they’re applied or interpreted—can all shed light on your rule interpretation. Comparing one rule to another can shed light on how the rule should be interpreted or treated. In U.S. v. Jones, Jones did not have much direct authority to support his argument that placing a GPS on his car was a prohibited search. So he brought in principles from criminal and tort law to support his rule interpretation:

A private individual’s surreptitious installation of a GPS tracker onto the property of another to monitor the owner’s movement is not only a trespass to chattels . . . but can form the basis for criminal liability under the laws of various states.

17.    Persuasive and secondary authorities. Make sure never to overplay the precedential value of merely persuasive authority. But persuasive authority can be powerful supporting evidence to help prop up a novel interpretation. Just remember that the difference between saying “this is a good idea—others have seen that” and “this is the law” is important. 

18.    Legal principles like equity, basic rules about intent, and basic rules about causation. Don't ignore that classic legal principles are familiar to your readers and can help nudge them. 

The court has a novel legal question on its hands: interpret the doctrine as applying to companies only, or also to individuals. Applying this rule to individuals will irretrievably change the dynamic of this market, preventing many small business from even entering it...

19.    Legislative history. How did the legislature intend for this rule to operate? Make sure your reader is open to this evidence. But if they are, it can be powerful. 

Congress never intended for one word from one section to modify everything in the Act. It said so and more than once. While the bill was on the floor of the senate, Rep. Michaels explained … In other words, he was concerned about someone making the argument that plaintiff does here…

20.    Textual interpretation canons. Not all legal readers buy into all the canons, but most readers find the basic ones helpful. So make sure to look at the list of canons and find any that might support your interpretation of textual rules.

Because the ordinary meaning of 'gerrymander' is...

21.    Use policy. Do this after the law. But policy is powerful. There are tons of policy arguments—from the less controversial, like clarity for future litigants, to the more controversial, like fairness to one of the parties.

Horace filed suit after trying to live with his illness for twenty years. He did precisely what his doctors told him to. Yet he got worse. All that was needed to prevent two decades of suffering was one more medical test that anyone in the industry would have ordered…

22.    Argue that the other side is creating a novelty. 

González proposes to apply the rule of Mezei—for the first time in its fifty-year history—outside the context of immigration and deportation proceedings, outside the arena of immigration law, and outside the bounds of Congress’s plenary power over  immigration  matters. . . .

23.   Argue common sense and consequences. Judges use theirs, so you should, too. What is the most sensible interpretation of the rules? If you offer the judge common-sense reasons for interpreting the rules in a sensical way, that will often stick.

To require companies to file a form every time they want to sell a device to a patient would shut down [the company] overnight. The FDA takes an average of three months to process a single form. How long will it take them to process 12,000 this month alone?

Really, the possibilities are endless. The power comes from realizing that mustering evidence for your rules is just as important as mustering evidence for trial.

Joe Regalia teaches at Loyola University School of Law and practices at King & Spalding LLP in Chicago. The views he expresses here are solely his own and not intended to be legal advice. Check out his other articles here

June 8, 2019 | Permalink | Comments (0)