Appellate Advocacy Blog

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

Monday, February 6, 2023

Should Courts Dispense With the Table of Authorities?

Pending before the Arizona Supreme Court is a petition to change court rules and dispense with the table of citations in state briefs. According to the full petition,

The Table of Citations is no longer needed to help a reader navigate to a particular cited source because most briefs are filed in electronic format with searchable text. Cumulatively, appellate litigants spend an unjustifiable amount of time and resources creating Tables of Citations.

The authors claim that readers now use "searchable text and hyperlinks to navigate the brief and locate cited authorities," rather than the table. The tables, are incredibly time-consuming to create:

Petitioners have found no data-driven analyses on the average length of time it takes to build a Table of Citations. Anecdotal estimations, however, abound. For example, the company ClearBrief—which sells AI software that formats and edits appellate briefs—claims that its “conversations with hundreds of attorneys, paralegals, and legal assistants across the country, indicate that manually creating a perfectly formatted and accurate Table of Authorities can take anywhere from 3 hours to a full week, depending on how complicated the document is.” See Clearbrief, How to Create a Table of Authorities in One Click in Microsoft Word, https://clearbrief.com/blog/authorities (last accessed Jan. 8, 2023). Considering that this source is selling a tool that builds Tables of Citations, Petitioners take the high end of that range with a grain of salt. 

Still, U.S. Supreme Court Justice Antonin Scalia and noted legal writing scholar Bryan Garner warn advocates to “[a]llow a full day” to prepare a Table of Citations, and to “[n]ever trust computers to prepare the tables automatically.” Antonin Scalia & Bryan A. Garner, Making Your Case: The Art of Persuading Judges 90 (2008). Experienced advocates working for a firm or company willing to pay for assistive software might manage to generate a perfectly formatted and accurate Table of Citations in less than 45 minutes. Meanwhile, a litigant without access to these programs may spend considerably more time using Word’s built-in citation-marking tool. The tool is not intuitive, and an average-length brief requires anywhere from a couple of hours to a full day to manually mark the citations, depending on the user’s familiarity with the tool. And, many self-represented litigants, particularly inmates, write out their Table of Citations by hand. 

. . . .

Even accounting for time savings from modern technology, the time it takes to compile the Table of Citations, confirm its accuracy, and correct any errors is not insignificant. And all this work must be performed after the substantive briefing is complete, meaning parties are often running up against their deadlines by the time they are ready to build the table. This leaves no room for last-minute adjustments, which creates its own challenges in cases where the drafting attorney needs to seek feedback from a supervisor, trial counsel, or a client. And in both criminal and civil litigation, “the time it takes” translates into actual dollars—either billed to a client at hundreds of dollars an hour or in salary paid to State-funded employees. It is the litigants and taxpayers who ultimately bear these costs.

Petitioners claim that, given the fact that most Arizona courts have now moved to electronic briefs, the "court's infrequent use of the table of citations as a navigational tool renders the cost unjustifiable." They likewise dismiss the non-navigational uses of the table:

Although few people use the Table of Citations as a navigational tool, some have found non-navigational uses, including: (1) to get a “feel” for the case before reading the brief; (2) to check whether a draft decision addresses the main authorities cited by parties; (3) to prepare for conferences or oral argument; and (4) as an aide for finding the correct citation when the citation in the body of the brief is incomplete or inaccurate. See Ball, Jancaitis & Butzine, Streamlining Briefs, at 33–34. None of these uses justify the continued requirement that briefs contain a Table of Citations.

First, readers can “get a feel” for the case by reading the introduction, summary of the argument, and the table of contents. Separately, while first impressions are inevitable when reading any brief, “feeling out” the argument serves little purpose for the end result. Appellate courts base their decisions on the law and facts of the case, not initial impressions. The substance of the arguments should be far more persuasive than a mere list of authorities.

Second, while the Table of Citations may make the brief more formal and emphasize the need to support arguments with legal authorities, other procedural rules and formatting requirements compensate for the loss of the Table of Citations. See, e.g., ARCAP 13(a)(7)(A) (requiring appellate argument contain the litigant’s “contentions concerning each issue presented for review, with supporting reasons for each contention, and with citations of legal authorities . . . .”). Moreover, formatting rules are meant to “promote succinct, orderly briefs that judges can readily follow.” Judith D. Fischer, Pleasing the Court: Writing Ethical and Effective Briefs, 51 (2d ed. 2011). That purpose is not served if the Table of Citations is being used merely to test an advocate’s ability to follow directions. Other aspects of the brief can provide that signal while also improving readability.

Third, while some use the Table of Citations to gather sources to download or refer to at oral argument, it is not a necessary tool to complete either task. More practitioners are hyperlinking their briefs so courts can easily access the cited material as they read the brief. And relatively few cases have oral argument, further diminishing the value of the Table of Citations for this particular purpose.

Finally, the use of the Table of Citations as a “backup” for locating correct citations when they are missing in the body of the brief is unlikely to occur with sufficient frequency to justify the time and resources spent creating the tables. From a logical standpoint, if a litigant has not spent the time ensuring their citations in the body of the brief are accurate, it is unlikely they will have a reliable Table of Citations, or in some cases, any table at all. See State v. Haggard, 2 CACR 2010-0307-PR, 2011 WL 315537, at *2, ¶ 8 (Ariz. App. Feb. 1, 2011) (mem. decision) (attempting to identify cases vaguely referred to in a pro-per brief and noting that no Table of Citations had been provided).

I agree with much of what the Petitioners say. The tables do take a lot of time to prepare, and there are not a lot of great, free, resources for making the tables. I see this with student briefs all the time. I always warn my students to leave time to prepare the tables, and they don't. They then usually comment that they had no idea how time-consuming the tables were to create (despite my prior warning).

Still, I hope that the Supreme Court keeps the table. First, although most briefs are now filed electronically, my research for Winning on Appeal revealed that many judges still like to read briefs in paper form. This means that the table does still play a navigational role. I also find tables useful to identify what cases the parties relied upon. This is more than just getting the "feel" of a brief. It tells me the strength of the reasoning and points me to where in the brief I need to look if I am concerned about a particular case. I think that we often forget how important citations are to the courts. I blogged on this several years ago when talking about citations in footnotes:

Last week, over at The Volokh ConspiracyEugene Volokh blogged on this very topic, quoting a district court opinion that stated, 

The Court strongly disfavors footnoted legal citations. Footnoted citations serve as an end-run around page limits and formatting requirements dictated by the Local Rules. Moreover, several courts have observed that "citations are highly relevant in a legal brief" and including them in footnotes "makes brief-reading difficult." The Court strongly discourages the parties from footnoting their legal citations in any future submissions.

Eugene also mentioned a federal appellate judge who told him "You view citations to authority as support for the argument. I view them as often the most important part of the argument."

I do agree that we need more technology tools to make efficient tables, and I would be happy to highlight any such tools in this blog (just shoot me an email!).

February 6, 2023 in Appellate Court Reform, Appellate Practice, Appellate Procedure, Federal Appeals Courts, Legal Profession, Legal Writing, State Appeals Courts, Web/Tech | Permalink | Comments (1)

Sunday, February 5, 2023

A Call for Law Over Politics

In the novel Guy Mannering, Sir Walter Scott wrote that a “lawyer without history or literature is a mechanic, a mere working mason; if he possesses some knowledge of these, he may venture to call himself an architect.” As lawyers and especially as appellate advocates, we aspire to creating an edifice where the rule of law governs and not simply the politics of the day. We seek to design the law to withstand political winds while capable of change though remaining true to rules and standards that sensibly apply regardless of the ascendant ideologies.

It is not an easy task, and we are not always very good at perpetuating that approach. Sometimes, our inability to do so leads to embarrassment and harm to the rule of law. Other times, it leads to revolutionary and welcome change. Rarely, though, do we realize which outcome is most likely going to result until significantly later as we look back retrospectively.

Today, our courts have lost enormous public confidence and respect, traits that are essential to their salutary operation. We have seen the rhetoric of politics in the place of timeless legal principles populate judicial opinions — and appellate briefing at levels and rates that mark a departure from past instances of the same developments.

New evidence of the escalating trend may have emerged from the North Carolina Supreme Court. The new year saw that court flip from a 4-3 Democratic majority to a 5-2 Republican majority (use of party labels is perhaps unsettling but unavoidable in this instance). The new majority has granted petitions for rehearing in two election law cases: one involving redistricting and another on a voter identification law.

Reconsideration of this type is normally used when a court made its decision under a misapprehension of the record or some other error that demands correction. It is an extremely rare event. Here, it is clear that the law is unchanged, and there are no evidentiary issues. The only thing that changed was the membership of the court — and that is a troubling basis for reconsideration.

            As Justice Anita Earl put it in dissent from the grant of reconsideration:

it took this Court just one month to send a smoke signal to the public that our decisions are        fleeting, and our precedent is only as enduring as the terms of the justices who sit on the bench. The majority has cloaked its power grab with a thin veil of mischaracterized legal authorities. I write to make clear that the emperor has no clothes.

Hall v. Harper, No. 413PA21 (Feb. 3, 2023) (Earl, J., dissenting).

I write this post in a bit of a state of shock, simply because of how blatant and clear the coming reversal is. If law is not to become little more than a yoyo or roller coaster ride, it cannot simply become the spoils of political warfare. As much as there are precedents that I hope will be overturned, and there are past examples of judicial composition driving changes in the law, this precipitous reversal of field renders the law less the work of architects and more a political game where appellate advocacy becomes less relevant. Rather than the rule of law, the rule of seat warmers prevails.

 

 

 

February 5, 2023 in Appellate Advocacy, Appellate Justice, Current Affairs, Federal Appeals Courts, Legal Profession, State Appeals Courts, United States Supreme Court | Permalink | Comments (0)

Wednesday, February 1, 2023

Third Circuit's Proposed Filing Time Rollback Would Reduce Practitioners' Autonomy

The Third Circuit has been in my news feed this week.  Chief Judge Michael Chagares has proposed to roll back the Third Circuit Court of Appeals' filing deadlines from 11:59 pm to 5:00 pm.  The offered justification for the proposal?  Work-life balance.

But of course.  The child of self-preservation, work-life balance has become a go-to intrinsic good.  (What would our grandparents have to say about this, I wonder?)  Unfortunately, citing this popularized concept can also stifle discourse.  Who can argue with the hallowed and lofty buzzphrase of "work-life balance"?

I offer a counterpoint: autonomy.  This is the intrinsic good we should promote in filing deadlines and much else in the legal profession. 

Consider junior associates with very little autonomy over their work and schedules.  They want to know their contributions are valuable, but they don't have the time or autonomy to add value where they already have a leg up in subject matter expertise.  Consider mid-level associates hammering out tricky (or mundane) legal issues in dispositive briefing, all while partners and clients and ping ping ping their phones and inboxes.  Consider working parents who have afternoon pickups and family frivolity to breathe life into their days between leaving the office and opening up their laptops before bed. 

All of us need autonomy in our work.  Work-life balance requires flexibility and autonomy, not harsh--even jurisdictional--cutoffs.  Autonomy gives people freedom to work at quieter hours of the day.  For me, that is often past 7 pm.  For others, it may be early in the morning.  The less harried we are, the more careful and thoughtful we can be.  Midnight filing deadlines give us breathing room to review commas and tables of authorities one more time.  And autonomy breeds creativity, which clients value and the legal profession needs to solve complex problems.

Moreover, the Third Circuit proposal appears to create a problem that does not exist.  In a 2018 study of federal docket filings, only one in ten docket entries in federal courts occurred after 5 p.m., and only one in twenty occurred after 6 p.m.  Most attorneys apparently file documents before 5 p.m., meaning the work-life balance concern is a minor one in federal courts. 

But for all of us who prize autonomy and crave its attendant flexibility in our practice--which transcends life and work stages--the midnight filing deadline is a gift.  We should not easily release it.

The Court is accepting public comments on its proposal until February 18, 2023. 

February 1, 2023 | Permalink | Comments (0)

Saturday, January 28, 2023

Implicit Bias Challenged, If Not Debunked

In recent years, the concept of implicit bias – the belief that all individuals harbor unconscious biases that affect their choices and actions – has been embraced by many law schools and the American Bar Association. In fact, the ABA passed a resolution requiring law schools to provide some type of bias training. But there is one problem – implicit bias research is deeply flawed and, in fact, so flawed that its validity is now in question.[1] Below is a summary of the flaws in implicit bias theory.

1.    The Implicit Association Test (IAT) is deeply flawed.

The IAT, developed by researchers at Harvard University, purports to measure an individual's implicit biases. The problem is that there is little, if any, evidence that IAT scores actually measure unconscious bias. As one scholar states:

The IAT is impacted by explicit attitudes, not just implicit attitudes, . . . It is impacted by people’s ability to process information quickly on a general level. It is impacted by desires to want to create a good impression. It is impacted by the mood people are in. If the measure is an amalgamation of many things (one of which is purportedly implicit bias), how can we know which of those things is responsible for a (weak) correlation with behavior?[2]

Furthermore, individuals who take the IAT are likely to achieve different scores if they take the IAT multiple times.[3] One commentator explains as follows:

The IAT, it turns out, has serious issues on both the reliability and validity fronts, which is surprising given its popularity and the very exciting claims that have been made about its potential to address racism” … That’s what the research says, at least, and it raises serious questions about how the IAT became such a social-science darling in the first place.[4]

Indeed, “much murkiness surrounds (a) the proper causal explanation for alleged IAT effects, (b) the psychological meaning of IAT scores, [and] (c) the statistical generality and potency of alleged relations between IAT scores and actual behavior.”[5] To be sure, Tony Greenwald, who co-created the IAT, acknowledged that the IAT should not be used to predict biased behavior, stating that the IAT is only “good for predicting individual behavior in the aggregate, and the correlations are small.”[6] Put simply, the “IAT provides little insight into who will discriminate against whom, and provides no more insight than explicit measures of bias.”[7]

2.    There is insufficient evidence that implicit bias – or results on the IAT – predicts biased behavior.

Empirical studies suggest that implicit biases do not necessarily cause biased behavior. As one commentator explains:

Researchers from the University of Wisconsin at Madison, Harvard, and the University of Virginia examined 499 studies over 20 years involving 80,859 participants that used the IAT and other, similar measures. They discovered two things: One is that the correlation between implicit bias and discriminatory behavior appears weaker than previously thought. They also conclude that there is very little evidence that changes in implicit bias have anything to do with changes in a person’s behavior. These findings, they write, ‘produce a challenge for this area of research.’[8]

Importantly, these researchers examined “63 studies that explicitly considered a link between changes in bias and changes in actions . . . [but] they found no evidence of a causal relationship.”[9]

3.    There is no way to quantify the impact of implicit bias on biased behavior, particularly given the presence of explicit          biases.

Assuming arguendo that implicit bias exists, there is no reliable way to quantify its relationship to biased behavior, if such a relationship even exists. For example, how can one distinguish between explicit and implicit biases? And how can scholars quantify or measure the impact of implicit biases when explicit bias has a demonstrable relationship to biased behavior?

These and other issues have led some scholars to question the validity of implicit bias as a predictor of biased behavior: As one scholar states:

Almost everything about implicit bias is controversial in scientific circles. It is not clear, for instance, what most implicit bias methods actually measure; their ability to predict discrimination is modest at best; their reliability is low; early claims about their power and immutability have proven unjustified.[10]

Resolving these issues in an intellectually honest manner is critical to determining whether implicit bias bears any relationship to biased behavior.

 4.    Implicit bias training is ineffective.

Not surprisingly, implicit bias training is not effective in reducing biased behavior. For example, a study in the United Kingdom concluded as follows:

[A] 2017 meta-analysis of 494 previous studies of racial sensitivity training programmes found that ‘changes in measured implicit bias are possible, but those changes do not necessarily translate into changes in explicit bias or behaviour’. The Equality and Human Rights Commission published its findings in 2018, stating that ‘the evidence for [unconscious bias training’s] ability effectively to change behaviour is limited’ and that it may cause a ‘backfiring’ effect, actually making people more biased. And last year the Chartered Institute of Personnel and Development (the UK’s main HR professional body) said ‘unconscious bias training has no sustained impact on behaviour’.[11] 

Indeed, “while implicit bias trainings are multiplying, few rigorous evaluations of these programs exist,” the fact remains that “to date, none of these interventions has been shown to result in permanent, long-term reductions of implicit bias scores or, more importantly, sustained and meaningful changes in behavior (i.e., narrowing of racial/ethnic clinical treatment disparities."[12]

Of course, these facts have not stopped the American Bar Association from requiring law schools to conduct training on implicit bias, a proposal that was rightfully met with resistance from established scholars.[13] Perhaps this is because most law faculties are so overwhelmingly liberal that groupthink, rather than critical thinking, precludes a principled assessment of implicit bias’s validity.[14]

Without such an assessment, claims that implicit biases impact biased behavior will continue to lack empirical support. As such, the efficacy of implicit bias training remains dubious.[15]

Ultimately, eradicating bias and discrimination from all facets of society is a legal and moral imperative, but scholars should question seriously whether a focus on alleged implicit biases is an effective way of doing so. And in so doing, scholars should be committed to intellectual honesty to ensure that their own biases do not influence their findings.

 

[1] Lee Jussim, 12 Reasons to be Skeptical of Common Claims About Implicit Bias (March 28, 2022), available at: 12 Reasons to Be Skeptical of Common Claims About Implicit Bias | Psychology Today

[2] See Adam Lamparello, The Flaws of Implicit Bias and the Need for Empirical Research in Legal Scholarship and in Legal Education, available at: The Flaws of Implicit Bias -- and the Need for Empirical Research in Legal Scholarship and in Legal Education by Adam Lamparello :: SSRN.

[3] See The Spectator, The Dangers of Unconscious Bias Training (Aug. 15, 2020), available at: The dangers of unconscious bias training | The Spectator

[4]  Harvard Embraces Debunked ‘Implicit Bias’ Test that Labels You a Racist, (Jan. 22, 2020), available at: Harvard Embraces Debunked 'Implicit Bias' Test that Labels You a Racist (mixedtimes.com)

[5] German Lopez, For Years, This Popular Test Measured Anyone’s Racial Bias. But It Might Not Work After All, VOX (Mar. 7, 2017, 7:30 AM), https://www.vox.com/identities/2017/3/7/14637626/implicit-association-testracism (quoting New York University Professor James Jaccard).

[6] Id.

[7] Tom Bartlett, Can We Really Measure Implicit Bias? Maybe Not, CHRON. OF HIGHER EDUC. (Jan. 5, 2017), https://www.chronicle.com/article/Can-We-Really-Measure-Implicit/238807.

[8] Id.

[9] Brandie Jefferson, Change the Bias, Change the Behavior? Maybe Not, WASH. UNIV. IN ST. LOUIS NEWSROOM (Aug. 1, 2019), https://source.wustl.edu/2019/08/change-the-bias-change-the-behavior-maybe-not/

[10] Lee Jussim, Mandatory Implicit Bias Training Is a Bad Idea, PSYCH. TODAY (Dec. 2, 2017), https://www.psychologytoday.com/us/blog/rabble-rouser/201712/mandatory-implicit-bias-training-is-bad-idea.

[11] Lewis Feilder, The Dangers of Unconscious Bias Training (Aug. 15, 2020), available at: The dangers of unconscious bias training | The Spectator

[12] See Tiffany L. Green & Nao Hagiwara, The Problem with Implicit Bias Training Aug. 28, 2020), available at: The Problem with Implicit Bias Training - Scientific American

[13] See, e.g., Karen Sloan, U.S. Law Students to Receive Anti-Bias Training After ABA Passes New Rule (February 14, 2022), available at:   U.S. law students to receive anti-bias training after ABA passes new rule | Reuters

[14] See Michael Conklin, Political Ideology and Law School Rankings: Measuring the Conservative Penalty and Liberal Bonus, 2020 U. Ill. L. Rev. Online 178, 179 (2020) As Professor Conklin explains:

It was not until 2015 that a robust analysis of law school ideological diversity was published (hereinafter “2015 study”). Before this, it was already well known that law school professors were disproportionately liberal—both when compared to the public at large and when compared to the overall legal profession. A study using 2013 data found that only 11% of law school professors were Republicans, compared to 82% who were Democrats. Not only do conservatives find it difficult to gain admittance into legal academia, but those who do find that they are effectively barred from the more prestigious topics, such as constitutional law and federal courts, and are instead relegated to topics such as law and economics.

[15] See Green and Hagiwara, supra note 12.

January 28, 2023 in Current Affairs, Law School, Legal Ethics, Legal Profession, Science | Permalink | Comments (0)

Friday, January 27, 2023

Appellate Advocacy Blog Weekly Roundup Friday, January 27

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 a quick note to either (1) Dan Real at DReal@Creighton.edu or on Twitter @Daniel_L_Real or (2) Catharine Du Bois at DuBoisLegalWriting@gmail.com or on Twitter @CLDLegalWriting.

U.S. Supreme Court News:

According to Empirical SCOTUS, multiple measures suggest that the Supreme Court is now less efficient.  The 112 days between the first oral argument and the first decision in an orally argued case marked the longest time period ever taken by the justices for that action.  More here.

On Monday, the Court dismissed an appeal in a previously-argued case involving the question of whether attorney-client privilege protects all or none of the advice given when a client confers with a lawyer and receives both legal and nonlegal advice.  As Stephen Gillers noted this week at SCOTUSblog, the dismissal likely does not reflect that the Court has lost interest in resolving the persistent issue, but, rather, only that this particular case was not the appropriate vehicle for resolving the issue.  More here

U.S. Circuit Court News:

The Third Circuit Court of Appeals has proposed new filing deadline rules that would change the court's filing deadline from midnight to 5:00 p.m., for electronic and in-person filings.  The response has been largely negative from practitioners.  More here.

State Appellate Court News:

The Colorado Court of Appeals ruled this week that the Colorado Baker who won a partial U.S. Supreme Court victory after refusing to make a gay couple's wedding cake was not entitled to refuse service to a customer seeking a cake celebrating gender transition.  The court ruled that the cake was not a form of speech and that the state law making it illegal to refuse to provide services to people based on protected characteristics does not violate the business owners' right to practice or express religion.  More here. Opinion here.

 

January 27, 2023 | Permalink | Comments (0)

Tuesday, January 24, 2023

Concrete Economics on the Supreme Court

The Supreme Court has recently offered strikingly similar answers to two seemingly disparate questions. The first concerns Article III standing to bring a case in federal court: What does it mean to show a “concrete and particularized injury in fact” that would, in part, support standing? The second concerns precedent: What does it mean for citizens to “rely” on precedents so that those prior decisions deserve stare decisis protection? The Court’s answers to each of these questions uses similar reasoning to amplify economic interests that are easy to identify and measure. Taken together, these seemingly unrelated jurisprudential developments also have an important real-world effect: they help ensure that our legal system provides the greatest level of protection possible for clear, monetary concerns, relegating more intangible individual rights to a second-class status.

Start with the Courts recent jurisprudence on Article III standing, which includes, as one of its elements, a requirement that plaintiff’s suffer a concrete and particularized injury in fact.[1] Recent Supreme Court analyses have heightened this concreteness hurdle to enter federal courts. In Spokeo v. Robins, the Court suggested that Congress cannot create concrete injuries by fiat simply by including a statutory damages remedy in legislation.[2] Five years later in Transunion LLC v. Ramirez, the Court again noted that an injury does not become concrete simply because Congress creates a statutory cause of action to redress it—although such Congressional action might be instructive.[3] The Court emphasized that it would only resolve “‘a real controversy with real impact on real persons.’”[4] In effect, these decisions emphasize the need for plaintiffs to come to the courthouse with an injury that can easily be measured, typically in real dollars and cents, before filing suit.

Meanwhile, as I have argued, the Court’s treatment of stare decisis in the landmark abortion rights case Dobbs v. Jackson Women’s Health Organization used similar language to signal the Justice’s willingness to overturn a broader swath of the Court’s prior decisions. According to Justice Alito’s majority opinion in Dobbsstare decisis only protects reliance interests that arise “where advance planning of great precision is most obviously a necessity”—not reliance interests that come from the kind of “unplanned activity” that may lead to an abortion.[5] Alito also claimed that stare decisis protects only “very concrete reliance interests, like those that develop in ‘cases involving property and contract rights.’”[6] Courts simply cannot measure, and thus cannot protect, more intangible forms of reliance that involve the organization of intimate relationships and decisions about a woman’s position in her family and community.[7] Though this language appears content-neutral, Alito's approach to stare decisis significantly weakens precedents that protect intangible individual rights. Few citizens make contractual arrangements or economic plans based upon such precedents, and thus those precedents seems less viable in the long term.

Taken together, these trends prioritize economic interests over a number of other important interests that the legal system previously seemed to protect. Many social interests or individual rights are not the subject of economic agreements. And under the Court’s approach to both standing and stare decisis, those rights are less worthy of legal protection, on that basis alone. Put another way, if a legal interest is difficult to quantify economically, it is hardly a legal interest at all.

Without garnering much public notice, these joint emphases on concreteness create new barriers for the protection of individual rights in federal courts. They are perhaps an even greater threat to individual rights than a decision that forthrightly admits it is designed to curb those rights.

 

[1] See, e.g., Valley Forge Christian Coll. v. Ams. United for Separation of Church & State, Inc., 454 U.S. 461, 472 (1982); Lujan v. Defs. of Wildlife, 504 U.S. 555, 560–61 (1992).

[2] 578 U.S. 330, 339-40 (2016); Richard L. Heppner Jr., Statutory Damages and Standing After Spokeo v. Robins, 9 ConLawNOW 125, 125 (2018).

[3] 141 S. Ct. 2190, 2204-05 (2021).

[4] Id. at 2203 (quoting Am. Legion v. Am. Humanist Ass’n, 139 S. Ct. 2067, 2103 (2019) (Gorsuch, J., concurring)).

[5] 142 S. Ct. at  2272, 2276.

[6] Id.

[7] Id. at 2272, 2277.

January 24, 2023 in Appellate Advocacy, Appellate Justice, Appellate Practice, Appellate Procedure, Current Affairs, Federal Appeals Courts, United States Supreme Court | Permalink | Comments (0)

Sunday, January 22, 2023

What is Your Best Case?

“What is your best case?”

That’s a question that many an appellate judge asks during oral argument.

Sometimes, there is an obvious answer: Smith v. Jones holds that the very inaction of the defendant in this case constitutes a breach of duty that warrants liability. Or, Johnson v. Williams holds that  it is not a violation of the statute to engage in the conduct the plaintiff alleges that my client undertook.

Other times, however, the caselaw might appear ambiguous, even if it is not. In one case I argued, Justice Breyer asked first my opponent and then me for our best case on whether the underlying state law was well-established and regularly applied. My opponent cited a case that stated the law somewhat loosely, which allowed him to claim that the law was not clear and thus not established. When I stood at the podium, I mentioned that my brief cited 39 cases over a 78-year period, but that I was happy to rely on one case that both sides cited because I believed it actually favored my argument.

The choice proved a good one. Justice Breyer had also flagged the case and had the opinion in front of him, no doubt because both sides had relied upon it. He asked me to explain a sentence that he read, which he said seemed to cut against my stance. It was the passage that my opponent had also cited in his brief, so I was very familiar with it. I responded that the sentence cited also had a dependent clause that the justice had not read aloud and that the qualification it made changed the entire meaning of the sentence. Justice Breyer chuckled and admitted that he agreed. Some three-and-a-half months later, we prevailed.

Certainly, that type of preparation and anticipation is needed when advocates are challenged by potentially clashing precedent. But what happens when there are no directly on-point cases and your argument is constructed from the logical implications of multiple cases that build upon one another? That is, no single case stands for the proposition you are advocating, but that several separate precedential propositions lead inexorably to your result?

It is important to make clear that a single case does not answer the question when that’s the case. Still, you must explain that the answer to the question presented becomes clear from looking at several cases. Precedent number one holds that the relevant constitutional test is a historical one. Precedent number two demonstrates that common practices prior to 1791, the year the Bill of Rights was ratified, satisfy historic conceptions of due process. Precedent number three is a historic practice indistinguishable from the issue before the court. Therefore, these precedents establish a roadmap that should demonstrate that the practice now before the court is consistent with due process. The deductive reasoning used to tie the precedents into a coherent legal theory becomes the product of multiple precedents and makes the best-case inquiry too simplistic to resolve the dispute.

What if, instead, the mandatory historical inquiry works against your position? It then becomes necessary to demonstrate that our constitutional conceptions are not frozen in time, but establish larger principles that can applied to situations unimagined at the time. Thus, we apply the concept of free speech to radio, television, and the Internet, even if the authors of the First Amendment could not have imagined these mediums. A best case, then, might consist of cases where a court has imagined the principle and applied it analogically.

In the end, a best case may exist – or it may a best case may actually be a series of cases.

January 22, 2023 in Appellate Advocacy, Appellate Practice, Federal Appeals Courts, Oral Argument, State Appeals Courts, United States Supreme Court | Permalink | Comments (0)

Saturday, January 21, 2023

“Read Everything” Is Good Advice at Any Stage of a Case or a Lawyer’s Career

Happy 2023.  I hope the new year is going well for all of you.  As I began moving my students from objective office memos to the joy of appellate brief writing this month, I used a slide titled:  “Read Everything.”  My advice to students was to always read every part of the record, and then read all the relevant case law, and then read everything again.  Thanks to a Northern District of Illinois December 30, 2022 Order in Outley v. City of Chicago, where then District Judge Gary Feinerman dismissed a discrimination case, publicly sanctioned plaintiff’s counsel, and referred counsel for possible discipline, I now have an extreme example of what happens when counsel does not read court documents, among other things.  You can read the order here:  Dec. 30 opinion.

First reported by Law360, the order in Outley made news for what now-retired Judge Feinerman called “the poorest performance by an attorney that the undersigned has seen during his 12-plus years on the bench.”  Order at 2; see Andrew Strickler, “Poorest” Atty Performance Triggers Ethics Referral (Jan. 3, 2023), https://www.law360.com/pulse/articles/1561714/-poorest-atty-performance-triggers-ethics-referral.  In a forty-one page order, the court carefully detailed plaintiff’s counsel’s many transgressions, including what the court characterized as extensive efforts to continue trial, repeated “intemperate” statements to the court like complaints of “get[ting] ripped a new butthole,” and interestingly, a long record of prior sanctions for the same type of antics in state and federal cases in Illinois.  See Order at 3-20, 39-41.

Judge Feinerman’s order covers many instances of what he found to be attorney misconduct, which “went beyond clumsy lawyering.”  Order at 33.  As the order explains, plaintiff, by himself and through counsel, tried to file motions long after deadlines, made the “series of intemperate remarks” during pretrial proceedings and in motions, repeatedly violated the court’s orders in opening statement to the jury, and testified on direct examination to matters excluded by the court and claims dismissed.  Order at 3-20, 39-41.

As examples of various misconduct, the court explained:  “On August 31—four weeks after the extended motion in limine” deadline “and over four weeks after [plaintiff’s counsel] told Defendants’ counsel that Outley would not be filing motions in limine”—Outley “moved for leave to file instanter twenty motions in limine.”  Order at 3.  Moreover, “[c]orrespondence between opposing counsel as well as [plaintiff’s attorney’s] own statements make clear that [plaintiff’s attorney] knowingly and intentionally abandoned the parties’ plan to collaborate on a final pretrial order,” showing counsel’s  “abdication of her responsibilities as counsel.”  Order at 3-4. 

For this piece, I want to highlight the impact of counsel’s admitted failure to read the court’s order on motions in limine and the defendants’ declarations.  See generally Debra Cassens Weiss, Lawyer “turned in the poorest performance” he has seen in 12 years on bench, former federal judge says, ABA Journal (Jan. 5, 2023), https://www.abajournal.com/web/article/federal-judge-says-lawyer-turned-in-the-poorest-performance-he-has-seen-on-12-years-on-bench (providing a complete discussion of all key parts of the district court’s order).  In response to defendants’ motions to exclude some of plaintiff’s evidence, the court “issued an order on Defendants’ motions in limine on September 16,” which “granted in part and denied in part those motions.”  Order at 9.  Although “Outley attached the court’s September 16 order to the emergency injunction motion he filed on September 22” and other motions, “Outley’s September 22 motions revealed that [plaintiff’s counsel] had not read the court’s September 16 in limine order.”  Order at 10.  In pretrial and trial proceedings, plaintiff’s counsel regularly acted as if the court had granted all of defendants’ exclusion requests “in block.”  Order at 10.

In the September 22 motions, Outley claimed:

Honorable Judge Feinerman[] did not explain why he never took Mr. Outley’s timely Response to Defendants’ MILs [in limine motions] under consideration. He ruled straight for the granting of Defendants’ MILs., in block, without ever mentioning Mr. Outley’s Response. . . . [T]he Court never translated its thinking [on Defendants’ Motion in limine No. 13] into a ruling, instead with one swift move the Court later issued a ruling granting Defendants’ MILs in block effectively overruling its prior thinking.

But, “[a]s the September 16 in limine order made perfectly clear, the court acknowledged and considered Outley’s timely response to Defendants’ motions in limine, and it did not grant Defendants’ motions in limine ’in block.’”  Order at 10. 

Additionally, counsel made no timely objection to arguably late declarations filed by the defense, admitting she received them on September 13, 15, and 22, but did not read any of them before September 22, despite a September 23 trial date.  Order at 11-12.  Once trial began, on September 23, “the court warned” plaintiff’s attorney “at a sidebar that she was ‘going beyond what this case is about,’” and only “[a]t that time,” did counsel “claim[] that she had not yet seen the court’s September 16 in limine order . . .—this despite her having attached the order to a motion she filed the previous day.”  Order at 12. 

Perhaps this admitted failure to read led counsel to “repeatedly transgress[] the bounds of appropriate zealous advocacy in addressing the court,” see Order at 36, including through a

motion for declaratory relief against the judge and a judicial notice motion, both based in part on an assumption the court had granted the in limine motions in full, see Order at 5-6, 24.  On the record in court and in filings, counsel often complained her client received unfair treatment, making comments like:  “[I]t would be unwise for the court to try to get along with the defendants and one more time, as it has become the norm in this litigation unfortunately, grant their wishes.”  Order at 6.  The district court found these comments and motions were “to circumvent the court’s pretrial rulings without waiting to pursue an appeal” and to delay trial, all based in part on failure to read.  Order at 5-6, 24.

Despite her allegations like, “a judge can set a court case for a ruling and not be ready and kick it another two months, and that’s just fine; but if a—if a counsel needs a couple of extra weeks, it’s—they get ripped a new butthole, and their case is very close to dismissed,” in the end, counsel admitted she was simply not ready for trial.  Order at 3, 4-5.   In her own words, “I fought so hard to get the trial continued because I’m just physically, mentally, emotionally not up to it.”  Order at 3.  The court concluded:  “Those words, spoken by [plaintiff’s counsel] the day before [causing] the mistrial, were completely on point.”  Id.

As the court summarized:  “It would be a substantial understatement to say that things did not go smoothly.”  Order at 2.   Had counsel read the court’s in limine ruling, perhaps she could have given her client--who the court noted had “a winnable case” depending on who the jury believed--his day in court.  See Order at 5. 

The ABA Journal contacted Outley’s counsel, but she “did not immediately respond” to a voicemail message or an email.  Cassens Weiss, supra.

Here’s to careful reading in 2023.

January 21, 2023 in Appellate Advocacy, Appellate Practice, Legal Ethics, Legal Profession, Legal Writing | Permalink | Comments (0)

Your Legal Writing Process

Sure, if you had years to write your legal documents (like other types of writers do), your documents would all be great. But we legal writers don’t have years to write documents. We have just weeks. Or days. Or even hours. 

Because you want your legal writing to be excellent—but are often constrained by factors like time—you should take a note from other industries and professionals that need to balance quality and limited resources.

Improve your process. 

Today, it's all about process improvement: Tweaking the steps used to produce the product so that the results are consistently great. If you’ve heard of lean, sigma, or design thinking, this is a lot of what it's about. Breaking down a process into steps—and regularly improving them to get better and better results. 

Applying process improvement to your own writing isn’t as hard as it sounds. All you need to do is figure out the steps you take to complete your writing projects. Improve the heck out of those steps. Then regularly revisit and keep improving your process, so you never stop getting better. 

To get started, you’ll need to invest some time into figuring out what your current writing process is, so that you have something to improve. If you aren’t aware of what you’re doing, it’s hard to start getting better at it. 

And if you are on the fence, let me tell you: You need a process and a plan for improving it. Because it’s easy to forget that a lot of legal writing is functional. Checking citation formatting. Checking that citations are actually citing to the right things. Labeling things you’re citing correctly. Even steps like citing to the right case: Is it in your jurisdiction? Are there things in that case that might hurt your client? Is it still good law? Is it a published decision? Have you checked with the client to see how they want to be referred to in your document? Depending on your practice, this list can span pages of things to check for—before you even get to the document’s substance and the words you put on the page. 

So sit down and figure out your existing process. Record all the steps you take from the beginning of a writing project to the finish: Gathering supporting materials, researching the law, researching the facts, figuring out what you want to say and outlining your message, drafting your document, editing it, and then using it. And you’ll need to do this for any regular writing projects you do, because the process for preparing a summary judgment motion is probably different from your process for drafting a contract. 

Once you have the steps down, you can start to identify the parts of your process that are taking forever or creating roadblocks. What steps do you dread? What steps are slowing you down? Usually, you don’t need to waste time improving steps that aren’t creating problems. You have only so much time. So focus on what matters.  

Then you can start exploring improvements for your steps. Are there tech tools that may help automate some annoying repetitive tasks, like citation work? Are there steps you should be delegating to others, or having another pair of eyes on, at least? Are there ways you can better organize your templates or materials to use them in the future? On and on: There are tons of ways to make your writing process more enjoyable, more effective, and more efficient. 

To bring all this together, most folks benefit from a checklist. Not a boring old-school checklist. But a process flow: What are all the major things you want to do, and check, before your writing goes out the door? And this includes not only the functional things (like making sure you include the proper exhibits and check their labels), but also your writing substance and style. 

When it comes to editing your writing, make sure to break it up into chunks, or phases. No one can keep all the different substance and style points in their head at the same time. Our brains are easy to distract. So take four or five things, at most, at a time—and edit for those with purpose. 

Let’s end with a quick example. Say you write a lot of summary judgment motions. You realize that the factual citations to “undisputed facts” take an incredible amount of time, and you often end up with errors even after checking them several times. Most folks would just keep doing it the same way. But what if there were a better option?

It turns out that there are some excellent technology tools that will live-link all your supporting documents to your factual citations in your brief. When you move a citation around in your document, or when you move the supporting exhibits around: the tool automatically updates all the citations in your document. Sounds like that would help a lot!

January 21, 2023 | Permalink | Comments (0)

Friday, January 20, 2023

Appellate Advocacy Blog Weekly Roundup Friday, January 20, 2023

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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 a quick note to either (1) Dan Real at DReal@Creighton.edu or on Twitter @Daniel_L_Real or (2) Catharine Du Bois at DuBoisLegalWriting@gmail.com or on Twitter @CLDLegalWriting.

US Supreme Court Opinions and News

  • The Supreme Court has issued a statement about the leaked draft of the controversial abortion decision in Dobbs v. Jackson Women’s Health Org., stating that it has been unable to identify the source of the leak. The Court’s statement included the report from the Marshal of the Supreme Court, who has been tasked with investigating the leak. The statement also included a statement of Michael Chertoff, former Secretary of Homeland Security, Judge of the U. S. Court of Appeals for the Third Circuit, Assistant Attorney General for the Criminal Division of the U. S. Department of Justice, and U. S. Attorney for the District of New Jersey.  The Court asked Mr. Chertoff to assess the Marshall’s investigation. See a sampling of reports on the statement and the status of the investigation: The Wall Street Journal, The Washington Post, The New York Times, CNN, SCOTUSBlog, Associated Press

  • In Supreme Court news this week is the potential impact of cases that consider the rules regulating online speech and social network platforms. One case, Gonzalez v. Google, to be heard next month, will determine whether social media platforms may be sued notwithstanding a 1996 law that shields online companies from liability for users’ posts. See an October 2022 report from The New York Times. This week, The New York Times reported that the Court will discuss whether to consider two other online speech cases; these cases challenge state laws that bar online platforms from removing political content, one in Florida and one in Texas. This week, the ACLU and the Electronic Frontier Foundation (EFF) filed amicus briefs in Gonzalez, warning of the potential for harm to users’ free speech from changes in the power and responsibility of social networks. 

  • The Court agreed to hear a case asking it to strengthen protections for workers seeking accommodation for religious beliefs and practices. The petitioner, an evangelical Christian, sued after he was forced to resign from the US Postal Service when his job began to require working on Sunday, his Sabbath. The petitioner lost in the federal district court and in the Third Circuit. Federal law requires that an employer permit the religious observance of workers unless doing so would impose an “undue hardship.” Courts currently rely on the rule established by a 1977 Supreme Court case, Trans World Airlines v. Hardison, which found that, to qualify as being subject to undue hardship, an employer need show only a “more than a de minimis cost.” See the case docket, a report from The Washington Post, and a Reuters report at the time of the appeal. Vox and Slate posted essays on the topic as well.

Appellate Court Opinions and News

  • President Biden released the first slate of judicial nominees for 2023 this week. See the White House statement and a report from CNN.

  • The Third Circuit has proposed a change to its local rules that would move its filing deadline from midnight to 5 pm in an effort to improve practitioners’ work life balance. The proposal has generated some debate among attorneys in the circuit. See the proposed amendment and reports from Law.com and Reuters. See also a poll created by Howard Bashman (creator of HowAppealing) asking for comment on whether the proposed change would actually improve work-life balance.

Other News

  • The Federalist Society posted recordings of some the programs from its January 5-6 faculty conference. Recorded topics include “Politicization of the Economy,” “Dobbs & the Rule of Law,” “Election Law in Flux,” and a debate titled “Resolved: The Major Questions Doctrine Has No Place in Statutory Interpretation.

  • Here's an informative and sometimes amusing thread on what signals a good brief. Writers take note!
    Joe Fore posed the following question, which generated a short thread with the kind of advice I give students and practitioners every day:

What's something in #legalwriting that's the *opposite* of a Brown M&M? Is there a small detail--usage, style, formatting--that if you see/saw it in a piece of writing, immediately signals that it's going to be good?

January 20, 2023 in Appellate Advocacy, Appellate Procedure, Federal Appeals Courts, Legal Writing, United States Supreme Court | Permalink | Comments (0)

Wednesday, January 18, 2023

Imitation as progress--learning to write

Oscar Wilde once said that imitation “is the sincerest form of flattery that mediocrity can pay to greatness.” Quite the backhanded compliment to the imitator. Or maybe he was trying to comfort those who had to endure cheap imitations of their greatness. Either way, if he meant that the great never imitate, I think he was wrong. In fact, there’s really no other way to become great at anything.

This dawned on me a few years ago when I read Scott Newstock’s How to Think Like Shakespeare: Lessons from a Renaissance Education. Newstock extracts elements of a Sixteenth Century English education and presents ways that they can help our thinking today. In one chapter, “Of Imitation,” he gives several examples of great writers who found their voice by copying those they admired as closely as they could manage. For example, Robert Lewis Stevenson said that when he read something he liked, he “set [him]self to ape that quality,” and that doing so was the only “way to learn to write.” “Before he can tell what cadences he really prefers, the student should have tried all that are possible; before he can choose and preserve a fitting key of words, he should long have practised the literary scales[.]” And after a time of such creative imitation, the writer would one day find his own voice.

That this same idea applied to legal writing came to me while reading Ross Guberman’s work. I started with his Point Made: How to Write Like the Nation’s Top Advocates. In it, he illustrates principles of good legal writing with examples from leading practitioners. I loved the examples, but didn’t realize quite how to extract ideas from them myself until I read a series of “how to write” posts on his blog (legalwritingpro.com). In “Five Ways to Write Like John Roberts,” or “Five Ways to Write Like Justice Kagan,” for example, he would take snippets he found particularly effective and then articulate exactly what they were doing. Things like “let your facts show, not tell”; “add speed through short and varied transitions”; and to use “light, varied, and logically interesting transitions.”

Carl Jung believed that it was the work of a lifetime to make the unconscious conscious. I think that’s how good writers approach improvement—they articulate the implicit in good writing, extract and distill it, and then try to use it themselves.

Once I realized this, I decided to try my hand at it, creating a series of posts on the legal writing styles of several current SCOTUS justices for the Appellate Advocacy Blog (lawprofessors.typepad.com/ appellate_advocacy/). It’s an ongoing project, but I hope that it illustrates to law students and practitioners alike how to think about writing in a way that will make them more effective at getting their points across. You may not be able to write like John Roberts or Elena Kagan, but you can find out what elements make their writing effective and use those same tools in your own style.

I don’t think that the principle is limited to echoing just good legal writing either—good writing is good writing, and if you can echo good literature or poetry, so much the better. This also includes good rhetoric, which I learned from Ward Farnsworth’s Classical English trilogy (Rhetoric, Metaphor, and Style). Repetition, for example, is one of the oldest tools of persuasion, but not all use it to equal effect. For example, any parent of a young child over the past few years will know the words to Baby Shark (do-do-do-do-do-do). But as that song incessantly bears witness, bare repetition is grating and usually unhelpful. But if you can repeat a point or a phrase while changing it up a bit, it becomes memorable and sticks in your reader’s/hearer’s mind. Lincoln used a rhetorical device called epistrophe—repetition at the end of a phrase—in his most famous address (“...of the people, by the people, for the people...”). Elegant repetition, using the same ending phrase but with a different beginning (there, simple prepositions), leaves a point ringing in the listener’s mind. And if your point is sticking in your audiences’ mind, you’re more likely to win them over. Again, you may not have Abraham Lincoln’s gifts, but neither did he, at first. And you can use the same principles he employed to get your point across.

We live in a world that often celebrates—and rightly so—those who innovate and create new things. But that celebration shouldn’t put us off from encouraging creative imitation. If it was good enough for Shakespeare and Lincoln, it’s good enough for you. Find good writing and think about what makes it good. Once you do, try your hand at doing the same thing. You’ll be surprised at how fast your writing improves. And you may just have some fun while doing it.    

From my recent Utah Bar Journal article

January 18, 2023 | Permalink | Comments (0)

Monday, January 16, 2023

Aristotle, Classical Rhetoric, and Dr. Martin Luther King, Jr.

Happy New Year from the Appellate Advocacy Blog team. We are in the process of updating our blog team and schedule, so please be patient as we work those details out.  If you are interested in joining our blog team, please feel free to email me.

As I was thinking about MLK Day, I wanted to repost this piece from five years ago. Since my original post, Professor DeForrest has passed away, but his article remains timeless.

***

Today our country remembers Dr. Martin Luther King, Jr. In fact, this year the observed holiday falls on Dr. King's actual birthday--January 15. While there is much to reflect on from Dr. King's life and career, I wanted to focus today on how his writings--specifically his Letter from a Birmingham Jail--can be used to teach persuasive argument.  

Dr. King wrote the letter in April 1963, after being arrested for participating in a march without a permit (and in violation of a court order against such demonstrations).  The letter was written in response to a statement published in a Birmingham newspaper by eight Alabama Clergymen criticizing the march.  The interdenominational group of clergy urged the African-American community in Birmingham to "withdraw support form these demonstrations" and pursue their cause "in the courts and in negotiations among local leaders." 

The Letter, which was written in four days, serves as a strong justification for defying unjust laws.  It also vividly demonstrates Aristotle's three modes of persuasion: (1) logos (appeal to logic); (2) ethos (appeal to character); and (3) pathos (appeal to emotion). Interesting, as Professor Emertius Mark DeForrest has noted, citing one of Dr. King's associates, Dr. King "had a comprehensive mastery of the forms of classical rhetoric, obtained not directly from the classical Greek and Roman sources, but from the religious patrimony of scripture and pulpit."  Still, as Professor DeForrest demonstrates in his article, Dr. King's Letter "can function effectively as an introduction to classical methods of persuasion because the strategies
and tactics of his presentation exemplify those rhetorical tools."  

For example, Dr. King demonstrates logos early in the Letter when "he explains to his readers why it is he came to Alabama to engage in non-violent direct action."  As Professor DeForrest explains,

The clergy claimed that the situation in Birmingham was one of “new hope,” and that such “extreme measures” as non-violent protests were unnecessary. King effectively
thwarts that argument by noting that Birmingham’s civil rights situation was far from hopeful—the city was, in his words, “probably the most thoroughly segregated city in the United States.” King then focuses on the recurring and insistent call by the clergymen for local negotiations to solve the racial difficulties in Birmingham.
After reciting a litany of abuses heaped upon the African-American community in Birmingham, King notes that African-American leaders had sought to negotiate with the leadership of the city, but to no avail. He goes on to recount that efforts to talk to members of the business community also were fruitless. In the end, King states, “[W]e had no alternative except to prepare for direct action. . . .” Yet, he explains, the purpose of direct action was not to prevent dialogue, but to create the conditions necessary for real negotiation to occur.

Dr. King also uses ethos in the Letter, especially in explaining the need for civil disobedience.  Professor DeForrest writes,

King addresses the issue head on and notes that the clergymen had “express[ed] a great deal of anxiety over our willingness to break laws.” This concern went to the heart of King’s character and credibility. After all, could it not be inferred from his selective embrace of the law—supporting the enforcement of Brown v. Board of Education while refusing to follow the ordinances of Birmingham, Alabama—that he was a dangerous hypocrite, a radical who would speak out of both sides of his mouth in order to get what he wanted? King does not try to minimize or explain away the clergymen’s concern, but acknowledges that it was “legitimate.” It appeared “paradoxical,” he writes, to insist
on obedience to Brown v. Board of Education while at the same time advocating the non-violent violation of laws pertaining to marches and other forms of demonstration. King then launches into a sustained explanation of the moral basis of the Civil Rights Movement’s use of civil disobedience, pointing out that the paradox
was resolved once one understood the distinction between just laws, which should be obeyed, and unjust laws, which “one has a moral responsibility to disobey. . . .”

Finally, with respect to pathos, Professor DeForrest notes that Dr. King uses it in the Letter to support his logical and factual arguments.  Professor DeForrest specifically points to "one of the most moving passages in the letter" where Dr. King uses history and vivid examples of segregation and it's impact of segregation on the African-American community to challenge the clergymen's call to just wait.

In addition to discussing Dr. King's use of classical rhetoric, Professor DeForrest points out other ways in which Dr. King uses persuasive tactics to convince his audience--including Dr. King's use of authorities and "evocative, plain language."  For those looking for a new teaching tool this spring, Dr. King's Letter and Professor DeForrest's article provide an excellent framework.

 

January 16, 2023 | Permalink | Comments (0)

Saturday, January 14, 2023

What Law Students Should Know About Law Practice

One of the criticisms of law schools is that they do not adequately prepare students for law practice.

In law school, students learn legal doctrines, acquire critical thinking, argumentation, and persuasive writing skills, master IRAC/CRAC, and participate in clinics – all of which help students to obtain the knowledge and skills needed to successfully practice law. But for many years, lawyers and judges have criticized law schools for not producing practice-ready graduates, citing, among other things, graduates’ substandard persuasive writing skills, inexperience in drafting real-world legal documents, and lack of ‘soft’ skills.[1] This criticism, as underscored by graduates at many schools, has some merit, although law schools certainly do their very best, within a limited time of three years, to provide students with the skills to practice law competently upon graduation.

Below are a few tips for students regarding what to expect – and the skills needed – when practicing law.

1.    Learning to work with other people – including those you don’t like – is critical to your success.

In the legal profession – and in life – you are going to encounter people that you despise. Such individuals are not hard to identify and there are many of them in all facets of the legal profession.  They typically display inflated egos, treat others disrespectfully, lack trustworthiness, have narcissistic tendencies, and are so self-absorbed that they cannot possibly appreciate an opposing argument or perspective. Nobody likes these people. Invariably, however, you will almost certainly have to work with them – or for them – in your legal career.

And when you do, the worst thing that you could do is become combative, disrespectful, or dismissive. Doing so will only hurt you – and empower them. Instead, focus on what you can control, such as your work product, your responses to their behavior, and your demeanor. If you do that and, as such, learn to work with difficult people, you will increase your value and reputation. So don’t focus on how others behave or be consumed with external circumstances over which you have no control. Focus on how you behave and conduct yourself.

2.    Confidence and humility are critical to developing strong relationships with your colleagues.

Confidence matters in the legal profession.

But humility matters too.

Regardless of whether you graduate at the top of your class at Harvard, serve as your law review’s editor-in-chief, or publish in the Yale Law Journal, you will face a steep learning curve when you begin practicing law. Recognizing that – and being willing to learn from and listen to your more experienced colleagues – is essential to developing strong relationships with them and mastering the skills necessary to practice law at the highest levels. Thus, being courteous, respectful, and professional is vitally important if you want to cultivate a reputation as a good lawyer – and a good person.

In other words, personality matters. If you are a jerk who gossips about or criticizes your colleagues, boasts about your class ranking or LSAT score, or treats assistants like they are second-class citizens, you will not get very far. If you think that you are ‘right’ all the time or are overly opinionated, most people will despise you. Simply put, don’t be a jerk – the world is already saturated with them, and nobody wants to associate with those types of people. Rather, be authentic, humble, and respectful.

3.    Your reputation and credibility – particularly with your colleagues and judges – are vital to your success.

Reputation and credibility are everything in the legal profession. If you lose your credibility, you lose your ability to garner the trust of your client, your colleagues, or judges. When your reputation or credibility is compromised, your career is likely irreparably damaged.

Accordingly, make sure, for example, that you work diligently to produce an outstanding work product. Always be honest, particularly when you make a mistake. Treat your clients, your adversaries, and judges with respect and civility. Be ethical and professional. And most importantly, be a nice, authentic, and decent person.  As stated above, nobody likes jerks.

4.    Excellent persuasive writing skills are essential.

If you cannot write persuasively, you cannot practice law effectively. Thus, at the beginning of and throughout your legal career (and life), focus on continually developing your persuasive writing skills. In so doing, read outstanding legal briefs and legal writing textbooks. Take the time to thoroughly rewrite and edit your work. Read great fiction books and apply literary techniques to your briefs where appropriate. Ask for feedback from more experienced colleagues about your writing. After all, two or three semesters in legal writing classes, while helpful, is not nearly enough to develop outstanding persuasive writing skills.  Learning to write persuasively is a lifelong lesson and one that you should embrace if you want to be a great lawyer.

5.    Outstanding communication skills are critically important.

Interpersonal communication, whether with a client, an adversary, or a court, is integral to your success as a lawyer. If you cannot, for example, clearly articulate arguments and explain complex legal concepts in an understandable way, you aren’t going to be successful.

Thus, you must know, among other things, how to present an argument concisely, clearly, and persuasively. You must understand that how you say something is just as important as what you say. You must actively listen to and respect others’ opinions. You have to show empathy and compassion for your client. You need to be skillful in negotiating with your adversary, present your argument in a way that convinces others to adopt your position, and have the judgment to know when compromise is appropriate.

6.    Law practice is stressful and can be all-consuming.

The legal profession is often quite stressful. Indeed, at times, the pressure can be all-consuming, such as when preparing for a trial, writing motions and briefs, reviewing voluminous discovery documents, or preparing to argue before an appellate or supreme court. Indeed, practicing law is far from glamorous, as many days and hours are spent reviewing documents and filing motions. Put simply, there’s a reason why many lawyers struggle with alcohol or drug abuse, or mental health issues. The legal profession is difficult and there is no way around that fact. If you are working in a large or medium-sized firm, your billable hours matter. Whether you can attract clients matters. Whether you win matters.

But that doesn’t mean that you have to become the legal profession’s next alcoholic or drug addict. It does mean, however, that you have to prepare yourself for this reality. In so doing, learn how to cope with stress and adversity.  Organize your day and prioritize your tasks. Take care of your physical and mental health, such as by exercising every day, eating healthy, and reserving some time – even if only for an hour – to do something that you enjoy. Spend time with family and friends. And realize that you’re probably not going to change the world, that justice is truly subjective, and that life is going to present far more adversity than you expected. But if you can help your clients to achieve positive results, live a meaningful life, and find happiness, then the law is a profession that can have a noble purpose.

 

 

[1] See, e.g., David Segal, What They Don’t Teach Law Students: Lawyering (Nov. 19, 2011), available at: After Law School, Associates Learn to Be Lawyers - The New York Times (nytimes.com)

January 14, 2023 in Current Affairs, Law School, Legal Ethics, Legal Profession, Legal Writing | Permalink | Comments (0)

Friday, January 13, 2023

Appellate Advocacy Blog Weekly Roundup Friday, January 13

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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 a quick note to either (1) Dan Real at DReal@Creighton.edu or on Twitter @Daniel_L_Real or (2) Catharine Du Bois at DuBoisLegalWriting@gmail.com or on Twitter @CLDLegalWriting.

U.S. Supreme Court News:

  • The Court has yet to release any opinions from cases argued this term.  Although the Court is four months into its current term, it has provided a record-setting silence with regard to opinions in argued cases. Bloomberg discussed the delay in opinions and compared it to prior terms HERE.
  • The Court this week denied an application to vacate a stay in a case involving a New York law that restricts the possession of firearms in specific public locations.  The trial court issued a preliminary injunction in the case, and the Second Circuit Court of Appeals issued a stay that kept the law in effect pending litigation on the merits of the challenge to the law.  The Court's order, issued without opinion and without dissent, allows the stay to remain (and thus, the law) to remain in effect.  The order is HERE.
  • Senate Democrats are poised to push for new ethical standards for the Court after the Court faced increased scrutiny over the last year concerning such matters as financial interest in pending cases, the leak of draft opinions, and other apparent conflicts of interest.  More can be found HERE.
  • A helpful summary of pending criminal law and procedure cases before the Court was posted by Joel Johnson at the ABA this week.  You can review the summary HERE.

Federal Appellate Court News:

  • The United States Court of Appeals for the Federal Circuit heard arguments this week in a case where Apple, Google, and Intel are seeking to revive challenges to a U.S. Patent and Trademark Office policy about contesting the validity of patents before administrative judges.  More can be found HERE.
  • A federal appeals court in D.C. heard arguments this week in a case challenging portions of the Fight Online Sex Trafficking Act and Stop Enabling Sex Traffickers Act (FOSTA-SESTA), a 2018 law passed to crack down on online advertising viewed as facilitating prostitution.  The appellate court panel expressed skepticism about the constitutionality of language in FOSTA-SESTA that makes it a crime to operate a computer service with the intent to promote prostitution.  More can be found HERE.

State Appellate Court News:

  • The New Mexico Supreme Court heard arguments this week in a venue dispute in a lawsuit concerning whether wind leases overlapping with grazing leases can impact a rancher's ability to raise cattle on state trust land in New Mexico.  Right now the question is really about where the arguments over the leases will take place, but the substantive issues to be addressed down the road will determine whether state law and lease contracts may allow for wind energy to be developed on land that ranchers are already leasing.  More can be found HERE.

Appellate Practice Tips:

  • Three Harvard Law advocates recently shared their tips and tales of their times arguing before the United States Supreme Court in an article at Harvard Law Today.  The article includes recollections from Paul Clement, former U.S. Solicitor General and partner at Clement & Murphy in D.C.; Jessica Ring Amunson, partner at Jenner & Block in D.C.; and Deepak Gupta, lecturer at Harvard and founding principal of Gupta Wessler PLLC.  The article can be found HERE.

Appellate Jobs:

  • The Illinois Appellate Court, Third District, is hiring an appellate court law clerk.  Details can be found HERE.

January 13, 2023 in Appellate Advocacy, Appellate Practice, Federal Appeals Courts, Legal Ethics, Legal Writing, State Appeals Courts, United States Supreme Court | Permalink | Comments (0)

Sunday, January 8, 2023

Who Serves on the Bench Matters

As lawyers and appellate advocates, we trust that the rule of law will prevail – that there will be consequences for breaching contracts, for negligence that injures another person, and for violating constitutionally guaranteed rights. We trust that judges will  be impartial and apply the law within a range of accepted conclusions that may not always be right but with an error rate that maintains confidence in the justice system. We believe that the law should not differ because of who serves on the bench because all who do must adhere to the rule of law. And yet, we know that who serves often will make all the difference.

We engage in ideologically tinged battles over who serves on the bench, regardless of whether the path to a judgeship is through appointment or election. Appellate advocates tailor their arguments to the judges who hear a case, combing their past opinions and other writings for clues that might trigger a favorable response for their client or issue. Some judges have expertise on the subject of the appeal, while others do not. Some have staked out positions on the appellate issue that makes the appellate task easier or even insuperable. Some utilize a methodology or a hierarchy of interests that signal the approach a wise advocate should take. A one-time dissenting view can now fit within the mainstream of legal thinking so that it provides a new handle on addressing an issue. That is why advocates are well-advised to know their audiences.

Court memberships shift, and the likely result from a court can shift with it. In an end-of-the-year decision from the Ohio Supreme Court, the justices’ own awareness of that shift was on display. In full disclosure, I was the winning advocate in the case and had the opportunity to watch it play out. By virtue of the mandatory retirement requirements of the state, the chief justice was due to step down from the court on December 31. I argued the case, which challenged the constitutionality of a state statute both facially and as applied, in late March. The decision, striking the law as applied, was written by the chief justice for a 4-3 majority and issued December 16. One dissenter appended a paragraph to the decision complaining of a departure from what he called the “regular and orderly internal rules of operation and practice,” because the majority insisted on issuing the decision so that the current court, rather than its successor, would rule on any motion for reconsideration.[1] He added his apology to the “citizens of Ohio that my individual dissent is not of the quality that I have come to deliver and that the public expects” because his “time on this case was aberrantly and improperly limited.”[2]

That paragraph became the focus of the motion for reconsideration filed just within the deadline on the evening of December 27. It seemed apparent that both the majority and the dissenter were well aware of the consequences of pushing reconsideration off to the new year and the new court. The majority sought to assure that a reconsideration motion would come before the same court that decided the case; the dissenter sought to push the case to the new term where he believed a different membership would reach a different result and his dissent could become the decision of the court.

Taking no chances, I filed my opposition to reconsideration within hours of the motion’s filing so awaiting opposition would not provide an excuse to delay a ruling. On December 29, reconsideration was denied.

The episode demonstrates what we know as advocates: who sits on the bench makes a difference. It also confirms another thing we know – judges are as acutely aware of that as anyone else.

 

[1] Brandt v. Pompa, 2022-Ohio-4525, ¶ 132 reconsideration denied, 2022-Ohio-4786 (Fisher, J., dissenting).

[2] Id.

January 8, 2023 in Appellate Advocacy, Appellate Justice, Appellate Practice, Current Affairs, Federal Appeals Courts, State Appeals Courts, United States Supreme Court | Permalink | Comments (0)

Friday, January 6, 2023

Appellate Advocacy Blog Weekly Roundup Friday, January 6, 2023

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 a quick note to either (1) Dan Real at DReal@Creighton.edu or on Twitter @Daniel_L_Real or (2) Catharine Du Bois at DuBoisLegalWriting@gmail.com or on Twitter @CLDLegalWriting.

Happy New Year from The Weekly Roundup! 

US Supreme Court Opinions and News

  • Justice Roberts’s 2022 Year-End Report on the Federal Judiciary was released on December 31, 2022. Find reviews and analysis of the report from The New York Times, The Washington Post, The Associated Press, Reuters, and Bloomberg.    
  • In December, the Supreme Court announced that this year it will resume the tradition of announcing opinions from the bench. The practice has been suspended since the beginning of the pandemic. The last opinion delivered from the bench was Kansas v. Garcia, delivered March 3, 2020. Opinion announcements will not be livestreamed but will be recorded and available at the National Archives at the beginning of the next Term, which was the pre-pandemic tradition. See reports from The New York Times, CNN, SCOTUSBlog, and Bloomberg Law.

  • This week, the Biden Administration filed a response in the case challenging its student loan forgiveness plan. The Court will hear two challenges: one by states arguing that the plan will harm companies that service the loans and the other by individuals arguing that the plan will harm them because they are excluded from the plan. The administration’s response argues that the challenging parties have failed to show the requisite harm to establish standing and that the administration is within its authority to implement the plan. Late last year, the Court issued an injunction blocking the administration from implementing the plan to forgive up to $20,000 per borrower. Oral argument is set for February 28, 2023. See reports from CNBC and The New York Times.

  • The Court ruled that Title 42, the pandemic-era restrictions on migration along the southern border, must stay in effect pending a ruling. The decision overturns a lower court decision to remove a stay issued against the Biden administration’s attempt to lift Title 42 restrictions. The Court is set to hear argument only on the question of whether the 19 states could pursue their challenges. See reports from The New York Times and The Wall Street Journal.

  • The Supreme Court is set to become the subject of a new primetime legal drama. See descriptions and discussion of the new ABC pilot, “Judgement,” from The Hollywood Reporter, Variety, and Deadline.

Appellate Court Opinions and News

  • The Ninth Circuit ruled that wearing a MAGA hat is free speech. The plaintiff claimed that a school principle violated his first amendment rights by disciplining him for wearing the hat at a teacher-only training session. The court determined that wearing the hat had not caused actual disruption and that evidence that some faculty members were offended was not sufficient justification to infringe the plaintiff’s rights. The court ruled, however, that the plaintiff could not sue the school district for dismissing the harassment complaint. See the ruling and reports from Reuters and CBS News.

  • The Eleventh Circuit upheld a Florida school board’s transgender bathroom policy that segregates bathrooms by sex. A transgender student challenged the policy because it discriminates against transgender students. The court ruled that the policy survives constitutional review because it has the legitimate objective of protecting students’ privacy and shielding their developing bodies from the opposite sex. The dissent recognizes that “[t]he bathroom policy categorically deprives transgender students of a benefit that is categorically provided to all cisgender students—the option to use the restroom matching one’s gender identity.” See the ruling and reports from Reuters and Bloomberg Law.

State Court Opinions and News

  • The Oregon Supreme Court has ruled that the ban on non-unanimous jury verdicts applies retroactively to all convictions in Oregon. The April 2020 Supreme Court case, Ramos v. Louisiana, outlawed convictions based on divided verdicts but the Court declined to apply the ban retroactively, leaving that decision to the states. (See The Weekly Roundup’s coverage here and here.) With the Oregon ruling, hundreds of Oregon felony convictions became invalid. The Oregon court recognized that the policy of allowing non-unanimous verdicts was intended to minimize the voice of non-white jurors and that it “caused great harm to people of color” and “undermined the fundamental Sixth Amendment rights of all Oregonians.” See the ruling and a report from The Oregonian.

This week, a couple of state courts have contributed to the still developing national abortion landscape:

  • The South Carolina Supreme Court struck SC’s 6-week abortion ban on state constitutional grounds, finding the that the “state constitutional right to privacy extends to a woman’s decision to have an abortion” and that the 6-week ban was an unreasonable invasion of privacy. See the ruling and reports from CNBC and The New York Times.

  • Meanwhile, in Idaho, the state supreme court upheld Idaho’s near total abortion ban, finding that the Idaho constitution did not include a right to the procedure. Idaho has three abortion bans, one of which bans abortion from conception. See the ruling and reports from The New York Times and Politico.

Other Appellate News

  • The Eleventh Circuit has held that “and” means “and” not “or” in an analysis of the First Step Act, a law giving offenders a “safety valve” that allowed them to escape certain mandatory minimum sentences. The “safety valve” applies only if certain conditions are met. The list of conditions is connected with the word “and,” which generally means that all conditions must be met. This interpretation significantly limits when an offender would be excluded from enjoying the “safety valve.” However, Florida prosecutors argued that, in this case, “and” meant “or.” The Eleventh Circuit disagreed, applying the common definition of “and.” For those of us who enjoy statutory interpretation and language analysis, the ruling is worth a read. See also reports from Georgia Public Broadcasting and The Atlanta Journal-Constitution.

January 6, 2023 in Federal Appeals Courts, Legal Writing, State Appeals Courts, United States Supreme Court | Permalink | Comments (0)

Wednesday, December 28, 2022

Taking time to reflect

For the many people following my posts, this is a follow up to last week's suggestion to relax. Just as important as getting away from work is taking some time to reflect on it. This takes a bit of distance--hence the need to relax first. But once you're rested and before you head back to  the grind, think about what you do--the whys, the hows, the wheres--and how you might do it better.

For law students, this can mean going over both the micro and macro of your student life. On finals prep, did you start early enough? How efficiently did you use your study time? Did you focus on the right things? Did you help others to understand? For paper classes, did you start early enough to give yourself enough lead time to research and draft? Did you research enough, or too much? And so on. Beyond those things, think about the past semester and what you enjoyed--which professors challenged you? What subjects interested you most? For any legal work you did, what was the most meaningful? And when you leave school, what do you want to do? Where? You won't figure it all out in a sitting, and perhaps just one of these questions will be enough to chew on for a few days. That's okay. However you use the time, just be sure take some of it to think about where you've been and where you're going 

For lawyers, this can mean thinking about your processes--how you get cases, how you work with clients, how efficiently you're using your time--as well as your own purposes--do you enjoy what you do? Who can you most help? What do you want out of your career? 

Without time to reflect, you'll never be the kind of lawyer--or the kind of person--you could be. This is certainly a work in progress for me. In my recent move this year from government to private practice, I feel like I went from being a factory worker to being a farmer. I used to clock into work, produce the widgets assigned to me, and leave. And repeat, repeat, repeat. There was a lot of satisfaction in the work, but it was very predictable and very little within my control. Now that I have much more control, I have a lot less predictability, but the seasonality of workflow for a new firm gives me time to reflect while I'm waiting for the seeds to grow or live on the store while planning for the next case.

Reflection may lead you to short-term discomfort--you may realize, for example, that you don't like what you do. But that's valuable insight gained sooner rather than later. You'll be happier in the long run by thinking about what you want rather than what others want of you. Because if you don't think enough about it, you put others in control.

Everything in its season--hard work, relaxation, reflection--leads to satisfaction. If any of them are missing, that's a problem. All work and no play, as they say. And if any get out of their proper place, it can throw everything else off (think relaxing during finals or reflecting during a big project). 

December 28, 2022 | Permalink | Comments (0)

Sunday, December 25, 2022

Christmas and the Law

Thinking about a holiday-appropriate topic to write for Christmas, the false claims that there is a war on the holiday came to mind. Attempts to acknowledge the holiday but preserve the secular nature of a government that neither advances nor inhibits religion, gave us the two-reindeer rule. The “rule” comes from the 1984 case of Lynch v. Donnelly,[1] where the city of Pawtucket, Rhode Island, had long sponsored a display in a shopping district. That consisted of a Santa Claus house, a Christmas tree, a banner reading "Seasons Greetings," reindeer pulling a sleigh, and a creche.   

In rejecting a challenge to the display based on the Establishment Clause by a 5-4 vote, the Supreme Court held it to be a holiday display, rather than advocacy of a religious message. The Court treated the items featured as advancing the historical origins of the holiday and considered that to provide "legitimate secular purposes." The most religious item in the display, the creche, passively connected to the holiday “like a painting” in a government museum, the Court said. The nearby display of reindeer and a sleigh, it went on to say, were secular symbols that conveyed “a friendly community spirit of goodwill in keeping with the season.” Derisively, the ruling was dubbed the “two-reindeer” rule because, according to a predominant reading of the case, adding two reindeer to an otherwise religious display transformed it into something secular.

Interestingly, modern attitudes toward Christmas have changed substantially. In 1659, Massachusetts had a law called the “Penalty for Keeping Christmas,” that stated:

For preventing disorders arising in several places within this jurisdiction, by reason of some still observing such festivals as were superstitiously kept in other countries, to the great dishonor of God and offence of others, it is therefore ordered by this Court and the authority thereof, that whosoever shall be found observing any such day as Christmas or the like, either by forbearing of labor, feasting, or any other way, upon such accounts as aforesaid, every such person so offending shall pay for every such offence five shillings, as a fine to the country.[2]

The law reflected the thought that making this deeply religious day into a festival brought “great dishonor” to God and reflected Puritan attitudes about Christmas. Puritans believed that celebrating Christmas entailed wasteful activities and social excess that were both immoral and antithetical to Christian beliefs. Fourteen years before the Massachusetts law came into being, the English Parliament promulgated a “Directory for Public Worship” that treated so-called festival days, including Christmas, as periods of private contemplation and not celebration.[3] By 1677, English law flipped, and it became illegal for any ”person whatsoever to do or exercise any worldly labour, business or work of their ordinary callings” on Christmas Day.[4]

Recalling these transformations of attitudes in an appellate advocacy blog serves only to show that even deeply religiously held convictions can change, much as the law itself demonstrates a capacity to develop in sometimes unpredictable ways – and advocacy assumes a significant role in the law’s development.

Still, however you celebrate, enjoy the holiday, and I wish you a happy new year.

 

[1] Lynch v. Donnelly, 465 U.S. 668 (1984).

[2] https://tinyurl.com/58ebmd8x.

[3] https://tinyurl.com/t8e56e23.

[4] https://www.hcrlaw.com/blog/12-laws-of-christmas/.

December 25, 2022 in Appellate Advocacy, Current Affairs, United States Supreme Court | Permalink | Comments (0)

Wednesday, December 21, 2022

Unstring your bow

I was scrolling on LinkedIn the other day and saw a suggestion for law students: do work over Christmas break! Your employer will admire your pluck and you will get good experience! No doubt that can be a good option for some under some circumstances. Many students have families and could use the extra money. Many are home, far from friends and with few things to do. I get it. I am terrible at taking breaks. I get bored after about one day of having nothing to do. As a default, I would usually fill up time with work. But I've learned that's not good long-term.

Lawyers are particularly prone--by predominant personality and by legal culture--to workaholism. Being busy feels virtuous and important. It feels like you're going somewhere. But busyness is a counterfeit for true accomplishment. They can go together, of course, but getting somewhere requires planning, reflection, and time away. 

The title of this post comes from traditional archery. A classic recurve bow, when strung, is under constant pressure--the string pulling against the bow. It's that pressure that gives the bow its power. But if you never give the bow a break by releasing the tension, the bow starts to give in to the string and loses its curve and effectiveness. If you're forever working without reflecting--without thinking about why you work and what you want--you'll lose your motivation and your edge and be a mere tool of someone else's ends. 

So how to do it? Find meaning and challenge outside work. Be with your family--actually be with them, not in their presence with your mind elsewhere. Call up an old friend just to say hi. Read something without any holdings or objections. Listen to and play some music. Then think about what you really want out of life and out of your career. You might be surprised by what you learn. Maybe you'll discover that you actually hate your job. Maybe you'll rediscover a love for it. Maybe you'll even plan to work more for a particular goal. But you can't figure out where to go without stopping to think for a bit.

None of this is new--there are plenty of country songs and movies and cliche social media posts about it. But it's a recurring theme because its true. A world-class musician has to play the rests. A world-class weightlifter has to rest for muscles go grow.  Take a break, and everything you do will be better and more enjoyable. 

December 21, 2022 | Permalink | Comments (1)

Saturday, December 17, 2022

2022 Top Legal Terms Include “Complicit Bias,” “False Narrative,” and “Nuclear Option,” According to Burton’s Legal Thesaurus

Happy December!  Whether you are scrambling to finish grading, like me, or wishing for a holiday with no emergency writs or motions, I hope you are enjoying the many lists of odd and interesting things lawyers did in 2022.  Recently, I saw the newest edition of Burton’s Legal Thesaurus, the Fortieth Anniversary/Sixth Edition, and the editors have added some intriguing new terms as top legal phrases in 2022.

For example:  “Attorneys were busy discussing ‘complicit bias,’ arguing about ‘lawfare’ and discussing the ‘great reshuffle’ this past year, according to Burton's Legal Thesaurus, which released its list of 2022's top new legal terms.”  Karp, “Meme Stock,” “Quiet Quitting” Among Top New Legal Terms, Law360 (Dec. 13, 2022).   “Complicit bias” means “community complicity in sustaining institutional bias and harassment in the workplace.”  See Michele Goodwin, Complicit Bias: Sexual Harassment and the Communities that Sustain It, Huffington Post (Dec. 11, 2017) (credited with creating this new term). 

Other neat new terms include “False Narrative” and “Nuclear Option.”  “False narrative” is a noun, according to Burton’s, and unsurprisingly means:  “a contrived story, artifice,” and “distortion of truth.”  Burton’s confirms the political root of “nuclear option,” defining it as a noun meaning “abolish the filibuster, change in voting, change to majority vote for passage in the US Senate,” or “drastic action, extreme action.”  In a recent Sixth Circuit case showing one way lawyers are using the term, the court found no abuse of discretion where the district court “allowed [a party] to introduce its [opponents'] threats to stop shipping parts into evidence and to compare those threats to a ‘nuclear option.’”  Stackpole Int'l Engineered Prods. v. Angstrom Auto. Grp., LLC, 52 F.4th 274, 284-85 (6th Cir. 2022).

Burton’s contains over 3,000 pages of definitions, but Debra Cassens Weiss summarized some other new items from Burton’s 2022 Top Ten list, including:  “‘Lawfare,’ meaning the use of legal proceedings to damage an adversary; [t]he ‘Great Reshuffle’ a variation of ‘Great Resignation,’ referring to people leaving jobs; [and] ‘Movement law,’ an approach to legal scholarships that works with social movements, rather than simply studying them.”  Cassens Weiss, 'Complicit bias' and 'lawfare' among top new legal terms in 2022, ABA Journal (Dec. 14, 2022).  Cassens Weiss also explained:  “Margaret Wu, a legal writing professor at the University of California at Berkely School of Law, is chair of the Select Committee on Terminology of Burton’s Legal Thesaurus,” and “Wu told Law360 . . . ongoing effects of the COVID-19 pandemic, “sea changes” at the Supreme Court, diversity and equity initiatives and technology” influenced this year’s terms. 

In its pitch for Burton’s Sixth Edition, LexisNexis explains:  “As Justice William O. Douglas penned in his 1979 foreword to Burton’s Legal Thesaurus, ‘[t]he root of all language is individual word. Often, it is the use of a specific word or term upon which a case or controversy may hinge. It is through the use of such a tool as the Legal Thesaurus that one may find the precise term to fit the nuances of a particular situation.’”   Whatever resources you use to find perfect words this month, I wish you happy writing and happy holidays.

December 17, 2022 in Appellate Advocacy, Appellate Practice, Books, Current Affairs, Legal Writing, Rhetoric | Permalink | Comments (0)