Appellate Advocacy Blog

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

Monday, May 20, 2019

Conquering A Fear of Public Speaking

I hate public speaking.  It is, perhaps, one of my greatest fear (that and snakes....).  So, when I took a job teaching, I wondered what on earth I was doing in a profession where I had to talk all the time.  Over seven years later, I still get occasional nerves the first day of class or when I am doing a big speech to an outside group, but that crippling fear that made me want to pass out or throw up (or both), is largely gone.  What has helped me the most has been practice, preparation, and more practice.  By practice, I mean continually accepting speaking engagements or volunteering, for example, to help the dean read names at the awards ceremony.

I know that I am not alone in my fear of public speaking, even among lawyers.  Professor Heidi K. Brown, the Director of Legal Writing at Brooklyn Law School and author of The Introverted Lawyer, recently published an article in ABA Journal that recounts her own struggle with her fear of public speaking.  For Prof. Brown, the advice to just prepare more or to "fake it till you make it" didn't work.  However, she found success in "adopting new mental and physical strategies for stepping into performance events authentically."

First, she rejected the "soundbite messages to simply overprepare, overpractice, fake it and view our nervousness as the world's greatest motivator."  Instead, she identified and wrote down the nasty self-talk that she heard when she did performance events, like "they're going to think that you are incompetent," and identified the sources of those messages.  Once the messages were identified and sourced, they could be recognized and deleted as "outdated and no longer relevant."

She then identified areas in her life where she felt she had "swagger."  Now, when she feels that old, outdated, abusive self-talk come in, she replaces it with the swagger that she feels at those positive times.

Third, she adopts a "power pose" that helps calm her down.  While she still might get nervous at times, she no longer "obssess[es] about outcomes," but rather "assess[es] whether [she] satisfied [her] 'performance process' checklist."

I appreciated Prof. Brown's perspective, and have already shared it with a student who seemed extra nervous during oral argument practice.  I plan on reading Prof. Brown's book soon, to get other tips.  While I will still tell my students to prepare, since I think that a lack of preparation is often their source of nerves, it is helpful to know that for some people that mantra doesn't work.

Do you struggle with oral argument nerves?  Feel free to share in comments your best tips for overcoming those nerves!

 

 

May 20, 2019 | Permalink | Comments (1)

Saturday, May 18, 2019

There, but for the grace of God, go I

A few weeks back, Deputy Assistant Attorney General Thomas Ward argued before the Fourth Circuit.  What followed "May it please the Court," has become a lesson for appellate practitioners everywhere:  Always remember your audience. 

The case is Sanders v. United States, No. 18-1931.  It's a pretty important case in its own right.  Sanders is a Federal Tort Claims Act case.  The plaintiffs alleged that the Government had failed in its duty to conduct a background check on Dylann Roof, the man who murdered nine African-Americans in Charleston, South Carolina. The plaintiffs contended that the Government's failure had allowed Roof to buy the guns used in the shooting.  

The Government contended that the FTCA's discretionary function exemption applied and, thus, that there was no liability.  That argument carried the day at the district court, and the Government relied on the same argument on appeal.  The panel was relatively conservative, so the Government should have felt pretty good about its odds.  

The Fourth Circuit's Chief Judge, Roger L. Gregory, wasn't having it.  He asked a particularly charged question, which ended with Judge Gregory calling the Government's argument "absurd."  That exhortation drew an eyebrow-raising comment from Mr. Ward, who responded, "Your Honor, I know you're not trying to humiliate me by that tone."  What followed was a well-deserved tongue lashing from Judge Gregory, ending with the command to "just answer [the] question." 

Mr. Ward's Sanders argument is a great example for us all.  It's tough to see another attorney go through something like that.  There, but for the grace of God, go I, right?  Even so, the exchange offers an important lesson.  Always keep your audience in mind.  Remember that most judges are warm, friendly people, but that every so often one will find your considered position offensive.  You've got to do your best to put these personal differences behind you.  Otherwise, your argument will end up as a footnote to the much more juicy exchange you had with the bench.  I know I remember very little about the Sanders argument, other than the attention-grabbing bit. 

May 18, 2019 in Appellate Advocacy, Appellate Practice, Moot Court, Oral Argument, Rhetoric | Permalink | Comments (0)

Friday, May 17, 2019

Appellate Advocacy Blog Weekly Roundup Friday May 17

WeeklyRoundupGraphic

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

 

Supreme Court Opinions and News:

This week included the 65th anniversary of the Court's landmark decision in Brown v. Bd. of Education.

 

Franchise Tax Bd. Of California v. Hyatt:

On Monday, the Court overruled a 40-year-old precedent and ruled that states may not be sued in the courts of other states.  The case concerned a long-running dispute between Gilbert Hyatt and California’s tax authorities over the tax authorities’ power to collect taxes from him after he asserted that he had moved to Nevada and the authorities doubted his claim and began an aggressive investigation.  The ruling has little direct impact on the actual issue presented, as many states already grant immunity to other states and shield them from lawsuits, and very few cases even arise where somebody tries to sue a state in another state’s courts.  However, the decision could have far-reaching impact based on its discussion of when precedents may be overruled. The Court’s conservative majority voted to overrule an earlier decision, even while acknowledging that litigants had relied on it and incurred a decade’s worth of expenses as a result.  Justice Breyer authored a dissent that both argued against overruling the precedent and expressed concern about what opinions the Court might decide to overrule next, “only because five members of a later court come to agree with earlier dissenters on a difficult legal question.”  Some commentators believe the Court’s ruling may foreshadow future rulings on reproductive rights and Roe v. Wade.

Links to more:

·         NY Times

·         Bloomberg

 

Apple case:

On Monday, the Court ruled to allow an enormous antitrust class action against Apple to move forward, allowing customers to attempt to prove that Apple used monopoly power to raise the prices of apps purchased for the iPhone.  The lawsuit itself is still in its very early stages, so this ruling does not mean much in terms of the actual outcome or its impact – but the Court’s vote is significant because it allows the case to proceed and allows the biggest legal challenge to Apple in the United States to move on, focusing on the fees that Apple takes on sales made in its App Store..  The opinion was also significant because the 5-4 majority included Justices Kavanaugh in the majority and Gorsuch in the minority.

Links to more:

·         USA Today 

·         AP 

·         Wall Street Journal 

·         Washington Post 

·         Bloomberg

·         NY Times

 

Federal Appellate Court Opinions and News:

The Fourth Circuit Court of Appeals issued a decision finding DACA recission invalid as arbitrary and capricious; President Trump nominee Judge Richardson dissented: 

 

 Practice Tips:

Howard Bashman (@HowAppealing) posted an article this week discussing nonprecedential appellate court opinions.

Matthew Stiegler (@MatthewStiegler) posted an article this week discussing en banc arguments. (HT @HowAppealing)

 

#AppellateJobs:

U.S. Dept. of Justice U.S. Attorney’s Office in Birmingham, AL (USAO Northern District Alabama), seeks one or more Assistant United States Attorneys in the Appellate Division, to practice in the Eleventh Circuit:  https://www.justice.gov/usao-ndal/job/assistant-united-states-attorney-appellate

U.S. Department of Justice U.S. Attorney's Office in Ohio (USAO Southern District Ohio), seeks one or more Assistant United States Attorneys in the Appellate Division, to practice in the Sixth Circuit: https://www.justice.gov/legal-careers/job/assistant-united-states-attorney-appellate-5

New Mexico Supreme Court and Court of Appeals seek Chief Appellate Attorneys:  https://www.nmcourts.gov/jobs.aspx

May 17, 2019 | Permalink | Comments (0)

Tuesday, May 14, 2019

Tailoring the Argument to the Panel

Justice Blind

As the persistent reader may have noticed, I spend a fair amount of time thinking about who my judges are and how they are selected. The topic interests me from a larger political and social perspective, but also from a professional one. I want to know who I am speaking to because I want to know how best to help them to understand my client’s case. I want to know what they will find most interesting and persuasive. I also want to win.

One of my underlying degrees is in communication, and that field of study is heavily involved in audience analysis. Aristotle considered audience analysis so important that one of the three books that make up his seminal work, Rhetoric, is devoted to the topic. Aristotle was convinced that the only way to persuade an audience was to understand it, and tailor the argument to its beliefs as impacted by its background.

Modern communication theory continues to teach the same lessons. Kenneth Burke argued that to be truly persuasive, a speaker has to identify so closely with the audience that they become “consubstantial” – a word drawn from the religious world. Communications theorists stress the importance of knowing and identifying with the audience, because only by fully doing so can a speaker really be sure that the audience will understand the same ideas that are being spoken in the same way the speaker understands them.

With that background, I have always believed that it is important to know and understand my panel before oral argument so I can tailor the argument to be more effective. That means knowing and understanding the judicial mindset in general, and the individuals that make up the panel in particular.

At the most general level, we know that are panels are composed of justices who are trying to get through a full docket of cases and write the most correct opinions possible. From this we know certain things about our audience and their needs.

First, the justices need to receive succinct, accurate information that will assist them in doing their job efficiently. It needs to be apparent to them that you are going to give them practical help with that task and not waste their time.

Your panel will also generally be interested in the same issues that all judges are interested in by nature of their role. Thus, they will be concerned with understanding the factual data (is there a problem here? Why?), the legal data (does the legal precedent give me the authority to solve the problem?), the warrant (is this legal solution just and correct?), the consequences (will the solution make things better or worse?), and the limitations (what is the strength of the other side’s position?) of each argument.

But judges are more than just rational decision-making cogs in the judicial machinery of our nation. They are people. And people are complicated things.

In 1881 Oliver Wendell Jones, Jr. noted in his famous work "The Common Law," that:

The life of the law has not been logic; it has been experience. The felt necessities of the time, the prevalent moral and political theories, intuitions of public policy, avowed or unconscious, and even the prejudices which judges share with their fellow-men, have had a good deal more to do than syllogism in determining the rules by which men should be governed.

This proposition is surprisingly controversial. According to a National Law Journal article, the Seventh Circuit at the time refused to disclose the names of the judges on its panels in part because it encouraged “ad hominem arguments” that it considered improper in the context of delivering arguments that are being presented to the circuit as a whole. The Fourth and the Federal Circuit also withheld that information until the day of argument.

Most circuit courts, and most state courts of appeal, do disclose the panels. Some disclose them as early as the notice of setting, while others stagger the notice until closer to the actual argument.

This difference in practice seems rooted in a different perception of the role of individual judges. If judges are truly and perfectly impartial, fair, independent, and professional, then there is no need to know anything about them as individuals. But if they are humans attempting to fulfill these idealized roles, then they will be influenced by their position and past, and those attempting to communicate them will ignore those influences at their (client’s) peril.

Chad Oldfather, a professor at Marquette University Law School, has written about this tension. See Chad Oldfather, “Judges as Humans: Interdisciplinary Research and the Problems of Institutional Design.”  36 Hofstra Law Rev. 125 (2007). Building on the work of a political scientist named Lawrence Baum, Oldfather considers judges to be human, and not fallible, and thus subjected to influence in the human, fallible ways other humans are influenced.

Baum’s work concludes that judges are influenced by their own audiences of friends, family, the bar, their peers on the bench, the social groups they consider important (including political parties), and so on. In other words, judges have their own audiences that they must consider in their decision making. Noting the work of other disciplines, like the implicit bias research done in the world of psychology and neurology, Oldfather concludes that a “one-size-fits-all” approach to judicial decision making (and thus persuasion) is dangerously insufficient.

How, then, does the advocate analyze a panel and deliver the argument “to the court” while focused on the individual judges and maintaining a properly respectful approach?  In a word – carefully. Many of the changes that you will make based on your panel’s composition are implicitly directed towards the judges, rather than explicitly naming the judges. You can tailor your argument to the points they have raised in authored opinions and publications, or that they have asked in other oral arguments, or that may be of particularly interest or familiarity to them because of their backgrounds, all without mentioning the judges by name. This should be the default approach.

Certainly assuming that a judge must rule a certain way because they have authored an opinion in the past that says something helpful is the wrong approach, particularly if you express that opinion by calling them out at oral argument. Knowing that the judge has struggled with a particular position in the past and mentioning that discussion in the prior case is riskier, but still likely safe, so long as you suggest that you have an answer for the court and do not single out the judge as being in some way bound by that prior position. Knowing a judge’s background as a scientist or golfer or wine enthusiast and then referencing a scientific or golfing or oenophilic analogy is good practice. Suggesting that the judge is bound by a law review note they wrote as a student is not.

In other words, try to tailor your argument for the individual judges based on what you know of their concerns and interests, but don’t take up the type of ad hominem attack or personally-directed argument that the Seventh Circuit seems to be concerned about. And be aware of the audience that the judges are writing for, as well, as they have their own expectations that need to be met.

No human judge can meet the Olympian ideals set for them, but they try. And most are remarkably successful. They are still human, however, and relating to our judges as humans, while maintaining respect for the ideals they are striving to achieve, is an important part of persuasion.

(image credit: An engraving of "Justice" from "Cardinal Virtues," a work by Nicolaes de Bruyn around 1648-1656).

 

May 14, 2019 | Permalink | Comments (0)

Monday, May 13, 2019

Three Tips for Starting the Brief: Moot Court Edition

Getting started on any task can be tough. For a first-time appellate brief writer, getting from a blank screen to a completed brief may seem nearly impossible. My current series of blog posts (beginning with Questions Presented here), aims to compile good appellate advocacy and legal writing advice for briefs and then frame it with moot court particularly in mind.

Today’s post deals mostly with process: starting at the beginning, but with the end in mind. What is the goal for the final moot court brief? A polished, professional, persuasive product that fully addresses the issues presented in the problem. As I mentioned in the Question Presented post, find the relevant competition’s score sheet if available, and use it as a guide. Reviewing past winning briefs is also very helpful. It pays off to spend some time gathering resources.

Often after moot court briefs have been submitted, I have reviewed them with students. Many miss the mark. There are any number of things that can go wrong, but common themes of lacking briefs revolve around procrastination and bad process. Things veered off track early, and the final product suffered as a result. Here are three categories of advice for starting a moot court brief well, compiled from prior Appellate Advocacy posts and my own experience.

1. Organize and Focus the Research

Unlike real-world appellate practice, moot court students start off with the record compiled, issues identified, and a head start on some of the relevant authorities, which are given in the decisions below. After reading the problem carefully, create a folder with all of the cases in the problem and read them all. Typically, only a small number of the important cases are given, so expand the research using secondary sources and citators. DO NOT JUST USE THE GIVEN AUTHORITIES UNLESS IT IS A CLOSED UNIVERSE PROBLEM. A well-written brief will have a breadth of authority and be well-supported.
Also, read and re-read the issues certified for appeal. Stay focused on those issues (see tip #3). If the problem is well-written, there will be authorities and facts on both sides of the issue. Find a system that works to organize the material and dig in. Once ready to write, find and fill holes using good outlining techniques. I will address the argument organization more in another post.

2. Conquer Procrastination

Many of the issues I see with student briefs can be traced to procrastination. When tables are generated in the middle of the night before the brief is due, it can get ugly fast. Sloppy writing, thin research, and mechanical errors all get blamed on running out of time. These are also some of the easiest points to lose from a brief grader. This post on productivity hacks gives great tools and advice for writing, including a step-by-step drafting plan. I agree that breaking the brief into smaller bite-sized can help make it more manageable.

Adding interim deadlines beyond the competition deadline can also help. Teams should meet and agree on dates to finish particular tasks for the brief. These internal deadlines help spread the workload over time. For some students, external deadlines are most motivating. When I directed a moot court program, I required teams to submit the final brief to me in a sealed manila envelope 48 hours before the competition deadline. I did not give them feedback, as that would violate most competition rules. The purpose of the requirement was solely to force them to have the brief completed in time to do real editing.

3. Play the Game

I encourage my students to try to look behind the problem. What was the problem writer trying to focus attention on? What is the focus of the opinions below? What facts are present and what legal tests utilize those facts? My advice is to focus on those things. I call this “playing the game.” Besides arguing both sides, this is one of the biggest differences I see between moot court and real-world appellate advocacy.

As much as problem writers try to foresee every issue that teams will see, occasionally they do not. In rare instances, students might find issues (or think they have found issues) that could strip the appellate court of jurisdiction or moot the entire case. This is a problem writer’s worst nightmare. If those issues are not certified for appeal, it’s likely the problem writer did not foresee them. I applaud students who spot those issues, and of course, they are critically important in appellate advocacy. The problem writer, however, is usually the bench brief writer, or at least in close communication with the bench brief writer. Staying focused on the issues certified is likely to garner the highest score, because the problem writer did not write a 40-page problem to have it disposed with a single case or on a technicality.

For a serious, uncertified issue, a short preliminary section addressing it is likely the best approach, before moving on to the other sections where the anticipated arguments are addressed. At oral arguments, there are times when a surprise standing or mootness issue can be utilized effectively. But at the brief stage, try to play the game.

Any other tips to the mooters out there once they have their competition problems?

May 13, 2019 | Permalink | Comments (0)

Friday, May 10, 2019

Appellate Advocacy Blog Weekly Roundup May 10, 2019

Appellate Advocacy Blog Image

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

Supreme Court Opinions and News:

  • Tonja Jacobi and Matthew Sag share some interesting statistics about oral arguments in October Term 2018, comparing the ratio of oral advocates and how many words they use. The article is at SCOTUS OA
  • Tom Goldstein, Kevin Russell, and Amy Howe discussed on SCOTUStalk (podcast) about the Court's case next term centering on the relationship between federal employment discrimination laws and LGBT employees. 
  • Nina Totenberg has this piece on retired Justice Stevens. (Note, the article includes an embedded YouTube video of the 99-year old playing ping pong.)

Appellate Court Opinions and News:

  • Michael Park was confirmed this week to the 2nd U.S. Circuit Court of Appeals. He is President Trump's 39th circuit court judge to be confirmed. Read about it here

Other Appellate Highlights:

  • If you're near Miami this week, the ABA is holding its 2019 Appellate Practice Regional CLE Program at Greenberg Taurig, LLP.  Find more information here

May 10, 2019 | Permalink | Comments (0)

Tuesday, May 7, 2019

Artificial Intelligence for the Brief Writer

 

Robot Until recently, whenever someone referenced artificial intelligence (AI), I imagined super robots taking over earth. I did not have a clear idea of what AI is or how it affects law practice. According to a report written by Daniel West for the Brookings Institute, AI is a machine that thinks and responds “to stimulation consistent with traditional responses from humans, given the human capacity for contemplation, judgment, and intention[.]” AI “software systems ‘make decisions which normally require [a] human level of expertise’ and help people anticipate problems or deal with issues as they come up.” Automated machines complete tasks as they are programmed to do, but they do not get any “smarter.” AI machines complete tasks, but they also “learn” how to perform better for next time.

 

Duquesne University School of Law recently hosted various scholars from across the country to discuss artificial intelligence’s impact on law practice.  At Duquesne’s conference, I learned how AI helps attorneys practice more efficiently and effectively.  Below are some AI tools for appellate practice.  If you have experience using these systems, let me know what you think.  Leave a comment or email me at alsholtis@widener.edu.

ANALYTICS

Before AI analytics, an attorney would ask another attorney about a particular judge or a strategy for a certain type of case.  Now, this information is available with the click of a button. Several legal research search engines offer tools to assist attorneys identify persuasive authorities and arguments. 

Litigation Analytics by Westlaw Edge

With Litigation Analytics within Westlaw Edge, you can search for how cases similar to your case were resolved and the investment involved in managing the case.  You gain access to the documents filed in similar matters to help you identify successful arguments and counter-arguments.  You can obtain information about a particular judge, her background, how she has ruled on cases similar to yours, and the authority she has cited in her opinions.  I have access to Westlaw Edge and Litigation Analytics through my law school’s subscription, so I do not have information on pricing.

Clerk by Judicata

Clerk by Judicata offers data similar to Litigation Analytics.  Rather than search a case type or judge like you do with Westlaw, you upload your brief. The software analyzes the authority you cited, reviews your quotations and citations for accuracy, and compares your case to similar types of cases.  It sends you an analytic report and suggests action items to help improve your brief.   Judicata covers California right now but intends to expand to other states.  You can request a free trial.  Pricing information is not available on its website.

EDITING

WordRake

WordRake is like a spell/grammar check, except it is designed for lawyers by lawyer Gary Kinder.   According to its website, WordRake “tightens, tones, and clarifies your writing.”  This would be a great tool for quickly cutting down your briefs in response to the shrinking word-limits imposed by the federal courts.

After installing the software, it operates as a function on the toolbar within Microsoft Word.  You “rake” your document for clutter and it provides line-by-line editing suggestions.  The red-line edits look similar to editing suggestions done with the track-changes function.  You then accept or reject the suggested edits.  Click here for a short video demonstration.  You can try WordRake for a free, seven-day trial.  Yearly subscriptions are available for about $130.  You can pay more to add WordRake to Outlook.

Brief Catch

Imagine you could have your brief edited by Ross Guberman, author of Point Made: How to Write Like the Nation's Top Advocates. You can if you subscribe to Brief Catch. One user described Brief Catch as “Word’s editing tool on steroids: It imbues the word processor with the wisdom of Point Made[.]”  It operates similarly to WordRake as a plug-in within Microsoft Word.  You run the review of your brief and the software provides grammar and writing suggestions that you can ignore or accept.  It also provides you with several scores and indices to help you get a sense of your overall writing proficiency and inspire you to improve with each use.  Brief Catch tells you your “Reading Happiness Score,” “Sentence Length Index,” Flow Index,” “Punchiness Score,” and “Plain English Index.”  Watch a short video demonstration by clicking here.  Brief Catch is only available only for Microsoft Word on PCs.  You can try it for free for two weeks.  An annual subscription is $240.

May 7, 2019 | Permalink | Comments (0)

Monday, May 6, 2019

Ethos & Attire in Court

Don't worry, this post isn't about what color suit and shirt you should wear during an appellate argument (I mean, we all know the answer is charcoal or blue with a white shirt).  This post is about whether you should wear any sort of affiliation pin on that (charcoal or blue) suit.  Should you indicate your support for the Marine Corps, your alma mater, breast cancer research, the Federalist Society, Black Lives Matter, or any other number of groups by wearing some sort of lapel pin?

As I recently learned, the answer is no.  A few weeks ago, I was listening to judges talk to students about appellate advocacy.  One of the students was wearing a lapel pin for one of the branches of the military. A judge commented that the student shouldn't wear the pin at oral argument, and the judge's colleague agreed.  I was surprised by this advice, as I had never heard it before from a judge.  I asked around on a moot court listserv and got surprised responses as well. But, as I reflected on the advice, it made sense.  It especially made sense for attorneys who are appearing before a judge for the first time or who are unknown in the jurisdiction. 

Imagine a scenario where an appellate attorney argues a case before a panel of judges, two of whom have been active in an organization like the Federalist Society or the American Constitution Society.  The attorney dons a lapel pin from that organization.  As he stands up to argue, he is sending a signal to the judges that he is one of them--that he is part of their society and ascribes to the same ideals as the organization that he is representing on his suit collar. It boosts his ethos with the court.

Some trial court judges have specific rules preventing attorneys from wearing "political pins" in court.  One listserv member shared a story about an attorney in Ohio  who was held in contempt of court for wearing a Black Lives Matter pin into such a courtroom in 2016.  Although the attorney appealed the decision, the case was settled and she stated that she "now understands 'that a courtroom is a nonpublic forum over which [the judge] had the authority to dictate decorum.'"

Without digging into the constitutional issues, the no pins policy seems to be a prudent one.  The logos, ethos, and pathos of an attorney's argument should carry the day, rather than the "I'm part of your secret society" message that some lapel pins might attempt to convey.  I do think, however, that some pins, especially school affiliation or military ones, become less of an issue with attorneys who practice regularly before the same judges.  My husband was a prosecutor for many years in Virginia.  He practiced primarily in juvenile court before the same three judges.  After a few years of practice, I am sure that the judges didn't care if my husband had a lapel pin reflecting his military service--they knew that he was reliable, dependable, and prepared based on the years of seeing him in court.

For my students who are still building their ethos, I will now be telling them to (1) button their jacket when they stand to address the court, and (2) be cognizant of wearing a lapel pin that might be seen as an attempt to improperly influence a judge.

May 6, 2019 in Appellate Advocacy, Appellate Practice, Law School, Moot Court, Oral Argument | Permalink | Comments (0)

Sunday, May 5, 2019

Want People To Actually Read Your Legal Writing? Use Two Types of Sentence Variety

So-Much-Fruit-To-Grow-And-Eat-So-Its-Time-To-Start-Planting-A-Variety-Of-Fruit-Trees-Now

The secret of happiness is variety, but the secret of variety, like the secret of all spices, is knowing when to use it. - Daniel Gilbert

Monotony is tiresome. It's as true for speaking as it is for writing. Good writers get that. Take a look at a snippet from Malcolm Gladwell's excellent article in the New Yorker last year. Consider the ebb and flow of each sentence's length. Notice the sprinkling of punctuation marks and the differing structures. And pay attention to how this elegant variation makes you feel: 

Capture

Could Gladwell have conveyed the same details using predictable, monotonous sentence lengths and structure? Sure:

The woman resides in Waseca, Minnesota. On April 29, 2017, she was washing dishes and observed a man walking through her backyard. The man had a backpack and carried a fast food bag. He was walking in the direction of the MiniMax Storage facility next to the woman's home. The woman was concerned about the man walking through her backyard. [and so on]

That's how most lawyers would have written it. But through variety--and decisions about what words Gladwell thought made good bedfellows in each sentence--those same details leap off the page and into your mind. This variety mimics good oral storytelling: It builds anticipation, pauses, and excitement. Those two longer sentences at the start pack a lot of details in, but the language and structure are so simple you can keep up. The images play out on a reel without any pauses--like it happened for the woman that night. And see how the short, punchy sentence "Something about him didn't seem right" stops you short after the long visual narrative? Then some questions and a mix of longer and shorter sentences rounds out the paragraph. 

Legal writers often fall into a rut of boring patterns. They write with the same sentence structure or length, over and over, all through their brief. Some of this comes from our infatuation with short sentences. Strunk and White say to "omit needless words"--but many lawyers take that to mean "omit every possible word." Good legal writers know it's more tricky than just writing short sentences. That is just choppy. Real choppy. Like this. It starts. To get. Annoying.

The point is to have a purpose for every word, and every word that you put it in a sentence with, and every punctuation mark you include with the words. There are good reasons to combine two ideas in the same sentences: to compare, contrast, build on an idea, or emphasize similar points. Longer sentences make a more detailed point--a point that you want to explain or give some nuance and character. Other times, there are good reasons to write simple sentences that deliver a single idea. Short sentences punch. They pop. 

Good writers inject smart variety to build engaging prose. Prose that sounds and feels more like good oral storytelling than it does the instructions for your vacuum. In other words, shorter to medium sentences with some occasional variety spattered in for engagement or purpose. And it's not just variety in length, but also in form. So you'll see some coordinating conjunctions, some em-dashes, and a sprinkling of semi-colons and colons.   

Here is an example of a legal writer ignoring these principles. The entire paragraph is two jammed-together sentences with so many ideas spurting out that the reader is sure to get lost: 

Plaintiff Randy Springer defaulted on his home loan and defendant U.S. Bank National Association, the current holder of Springer’s mortgage note, began foreclosure proceedings on Springer’s home.  Springer brought this action, pro se, to stop the foreclosure, and he claims that there is a problem with U.S. Bank’s chain of title and that U.S. Bank thus has no basis to foreclose, finally arguing that U.S. Bank and the other defendants committed fraud, that they are violating Nevada foreclosure laws, and that Springer is entitled to a declaration of the parties’ rights.

Look at what a difference you can make just by paying attention to the average sentence length, including some variety, and isolating ideas. It’s not that every sentence is super short. Or that some sentences can’t have a couple ideas or a list. But the sentences tend to be shorter and simpler, and only one sentence packs in more than a couple ideas: 

Plaintiff Randy Springer defaulted on his home loan. So defendant U.S. Bank National Association, the current holder of Springer’s mortgage note, began foreclosing on Springer’s home.  Springer brought this action, pro se, to stop the foreclosure. He claims that there is a problem with U.S. Bank’s chain of title and that U.S. Bank thus has no basis to foreclose.  He finally argues that U.S. Bank and the other defendants committed fraud, that they are violating Nevada foreclosure laws, and that Springer is entitled to a declaration of the parties’ rights.

To help you on your path to variety, I have two sets of moves for you this week. Some ideas to inject some more elegant variety into sentences, and a few ideas for punctuation, too. 

Sentences

Step 1: Keep your sentences mostly on the shorter side (less than 20 words).

Most writing authority suggests averaging about 20 words or less per sentence. I see that in the best legal writers’ briefs and the research agrees. You are better off keeping most of your sentences shorter and simple so that each idea is spoon-fed to your reader. This is not an exact science, it’s just a way to give yourself a sense about when sentences start becoming so long that the ideas may tend to trail off and readers can get lost.

If 20 sounds like a small number, it’s really not. You can pack a lot into 20 words. 20 words can be too many.

Here’s a 20-worder:

The court issued three declaratory rulings that each implicated a different legal doctrine or theory, each in a different way.

That’s still a lot of content, and good sentences will often come in at less.

Step 2: Avoid long sentences close to each other that will create too much drag.

The occasional elegant-long sentence can be useful. Longer sentences help you contrast or compare ideas or concepts, they allow you to weave together ideas that are more persuasive taken together, and they are a vehicle to offer examples for your reader. Like the sentence you just read.

So don't shy away from the occasional longer sentence, just make sure you punctuate and organize it so well that your reader won't get lost.  Em-dashes, semi-colons, a coordinating-conjunction comma, or a colon are all good tools for creating clear divisions and organization in your sentences. These punctuation marks can be almost as clear as a period. 

And if you do use an occasional long sentence, avoid piling them on top of each other.  So avoid this:

In their written response to defendant’s motion, plaintiffs relied, in part, on Laffoon v. Bell & Zoller Coal Co., 65 Ill .2d 437, 447, 3 Ill. Dec. 715, 359 N.E.2d 125 (1976), where our supreme court held that section 5(a) ‘‘confer[s] immunity upon employers only from common law or statutory actions for damages by their immediate employees.’’ (Emphasis added.) Confronted with that legal authority, defendant stated in its reply to plaintiff's’ response that its prior reference to its ‘‘ ‘obligations’ ’’ under section 1(a)(3) was ‘‘merely to the fact [that] the Act requires there to be coverage for workers/employees generally and [was] in no means intended to imply that [ENS] was uninsured.’’

Two heavy sentences together create too much drag. Instead, break up the ideas as much as you can with periods or hard punctuation breaks (like semicolons, colons, or a comma and conjunction):

In their written response to defendant’s motion, plaintiffs relied, in part, on Laffoon v. Bell & Zoller Coal Co., 65 Ill .2d 437, 447, 3 Ill.Dec. 715, 359 N.E.2d 125 (1976). There, our supreme court held that section 5(a) ‘‘confer[s] immunity upon employers only from common law or statutory actions for damages by their immediate employees.’’ (Emphasis added). Confronted with that legal authority, defendant attempts to sidestep by pointing to language in the statute: ‘‘ ‘obligations’ ’’ under section 1(a)(3) refers ‘‘merely to the fact [that] the Act requires there to be coverage for workers/employees generally and [was] in no means intended to imply that [ENS] was uninsured.’’

Step 3: Include some variety in sentence-length every paragraph or so.

The final basic mistake that many legal writers make is to ignore the power of variety. Fluency studies suggest that some variety in sentence length (and, as we will see next, punctuation) makes reading more engaging and easier to get through.

So when you’re editing, make sure each sentence is not nearly-identical in length. You are looking for a blend of mostly shorter, the occasional very-short, and the occasional elegant long (that is still organized with hard-break punctuation to keep ideas straight). 

Punctuating Perfectly

Punctuation is part of the machinery of your sentences. And refining this machinery has a payoff. Using punctuation right can make your writing far more fluent, more engaging, and it can also help you highlight ideas so that they stick. 

Step 1: Vary your punctuation.

Just like our sentence length, the best legal writers and science both suggest spicing up your prose with different punctuation. You shouldn’t randomly sprinkle semicolons and em-dashes throughout your paragraphs. But do replace the occasional period or comma with a different device—where it will be helpful to organize, compare, or contrast ideas.

Step 2: Use semicolons to contrast two ideas or concepts.

Semicolons separate two independent clauses and the occasional semicolon helps make your writing engaging; it also helps form a connection between two ideas.

So use this mark when you want your reader to see two ideas compared, contrasted, linked, or elaborated on. This last use is often ignored; semicolons can be a great way to continue building on an idea while keeping each of the constituent parts neatly separated.

Here is an example of a contrast semicolon from Justice Kagan:

The word “applicable” is not necessary to accomplish that result; it is necessary only for the different purpose of dividing debtors eligible to make use of the tables from those who are not.

And here is an example of the semicolon-as-expander, using the mark to build on an idea:

Deceit such as tall tales that defendants told about Q-Ray Ionized bracelets will lead some consumers to avoid treatments that cost less and do more; the lies will lead others to pay too much for pain relief or otherwise interfere with the matching of remedies to medical conditions. - Judge Easterbrook

And this classic: 

To exclude others from the enjoyment of a chattel is one thing; to prevent any imitation of it, to setup a monopoly in the plan of its structure, gives the author a power over his fellows vastly greater… - Judge Learned Hand

Step 3: Use em dashes to emphasize a critical point or idea.

The em-dash is the neon sign of punctuation. Use em-dashes for emphasis at the end of a sentence for a dependent clause, or to set off an interjecting thought with emphasis.

Em dashes also create white space in your sentence (another reason it's so good at emphasizing). This is why the em-dash is the most powerfully-emphasizing mark of them all (even more than the !, which, in any event, you can't use in your brief anyways).

Look at how these authors smartly put within em-dashes the most critical themes of their documents. Like semicolons, don’t waste this power by em-dashing both the important and mundane. People pay attention to what’s inside the em-dash: 

When those words lose their ordinary meaning—when they become so elastic that they may mean the opposite of what they appear to mean—we cede our right to be taken seriously. 

Or this one:

A review of the history of alienage jurisprudence, with a particular review of Graham—both what it said and how it has been applied (and not applied) in the past forty years—suggests that it is time to rethink the doctrine. Judge Bybee

Step 4: Use colons to explain a general concept with more specificity.

The colon is as academic as it sounds: It’s used to teach. Use colons to introduce a concept or term and its explanation or definition. The colon is brilliant because it functions consistently for your reader: They always know what to expect.

But like the other marks, don’t use this one arbitrarily. Too many writers insert colons where commas or semicolons should go. This is not getting the most out of this mark:

If they see a colon: they know they will be reading an explanation …

Because the colon isn’t really set up a nice concept/explanation relationship. So why not just keep it simple and use a comma? 

The judge filed two orders: One dismissing the claim and the other awarding fees.

Step 5: Parentheses do the opposite of the em-dash: they deemphasize.

The parenthesis is like whispering to your reader. Parenthesis, aside from being used as parentheticals, deemphasize whatever you put in them. Use these when you think some sort of aside is valuable to subtly prod your reader, without drawing their attention too closely or distracting them.

Plaintiff alleges no facts (nor could he) to support this claim.

This aside probably isn’t important—there are no critical details or facts that you need your reader to remember—so a parenthesis is less distracting and a good choice.

Finally, because so many legal writers struggle with some of the basics, I’ve put together a simple chart that reminds you how and when to use each of them—lest you distract your reader with a mistake. 

Commas (,)

Separates two independent clauses (full sentences) with a coordinating conjunction. “Joe went to Saipan, and he loves reading.”

Sets off an introductory phrase. “Knowing it was warm, Joe brought shorts.”

Sets off a nonrestrictive clause (one that can be removed from the middle of the sentence). “Joe began, knowing he should, by talking about commas.”

Coordinate adjectives (both adjectives modify the same thing, not each other). “The yellow, angry bee.” But not: “The bright, yellow bee.”

Separates days from years. “December 12, 2018”

To set off a quotation. “The court held as much repeatedly, ‘….’”

NOT: to join full sentences without a conjunction (comma splice). “Joe went to Saipan, he likes to read.”

NOT: Anywhere else generally.

Semicolons (;)

Separate two independent clauses (full sentences). “Joe loves Saipan; he loves the air.”

Separate list items where the items have commas in them. “Joe loves: reading, but only in bed; writing; and science.”

Colons (:)

To join two separate but related clauses or phrases—often to explain or add more detail to the first. “Joe loves Saipan: He comes here every year.”

If what follows the colon is a complete sentence, capitalize the first word.

To introduce a list. “Joe loves the following punctuation marks: commas and em-dashes.

To introduce a quote. “The court held as much: “….”

Periods (.)

Use these more: separate long sentences with lots of ideas by breaking them up into shorter sentences. Your readers will thank you.

Em-dashes (—)

Can be used to set off interjecting phrases or clauses in the middle of a sentence—or at the end.

Use these to emphasize important points in your document—like themes, critical issues, etc. “The plaintiffs filed the motion—three days too late—and then moved to dismiss.”

Parenthesis ()

Use in the same way you use em-dashes, but when you want to deemphasize a point. “The court noticed the error (for reasons not relevant here) and corrected it.”

En-dashes (-)

Used for page ranges mostly. P.30-32.

Hyphens (-)

Used anytime you connect two words together, like phrasal adjectives. “The blue-black haze hung around the room.”

Quotations (“”)

Periods and commas always go inside these. “I wonder what he did there,” he said.

Quote material up to 50 words. Then it becomes a block quote without quotes.

Remember, quotes within quotes use a single mark: ‘.

Check apostrophes (‘)

Collective nouns are treated singularly. Team, family, board. You use a single apostrophe when two subjects both share the same trait: Susie and Joe’s religion (if they are both Christian); Susie’s and Joe’s religions (if they have different ones)

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

May 5, 2019 | Permalink | Comments (4)

Friday, May 3, 2019

Appellate Advocacy Blog Weekly Roundup May 3, 2019

WeeklyRoundupGraphic

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

Supreme Court Opinions and News:

Recently, the Court heard oral argument in a trademark case, Iancu v. Brunetti, in which Erik Brunetti applied to register for federal trademark protection his trademark FUCT for use as a brand of clothing. For decades, the Lanham Act has prohibited registration of marks that are deemed offensive as being “scandalous” or “immoral.”  The US Patent and Trademark Office examining attorney rejected the application on the basis that the mark is a phonetic equivalent of a vulgar work, and the Trademark Trial and Appeal Board affirmed that refusal.  On appeal, the U.S. Court of Appeals for the Federal Circuit ultimately reversed the board’s holding, finding that the bar on registration of scandalous and immoral trademarks violates the First Amendment.

The Court also recently heard arguments in a criminal case involving the constitutionality of language in a federal law used to prosecute gun crimes.  In the case, United States v. Davis, Maurice Davis and Andre Glover were convicted and sentenced under 18 U.S.C. 924(c)(3)(B) for committing “crime[s] of violence”   related to a string of armed robberies They challenged, alleging the language is unconstitutionally vague and arguing that it violates due process protections. 

Bloomberg had an article recently featuring two women advocates appearing before the US Supreme Court and discussing the disparity between men and women appearing before the Court. 

State Appellate Court Opinions and News:

In Washington, the Supreme Court issued an opinion in which it purported to "overturn" a conviction on a 4-4 ruling.  Based on some sleuthing done by Gene Johnson, a Seattle-based AP writer, it appears that the conviction was intended to stand -- the Washington Court of Appeals denied review, and then the defendant sought review by the Supreme Court.  According to the Washington Courts, the result of the decision was that the conviction stood, despite the language in the opinion.

Practice Pointers:

Kimberly Robinson of #AppellateTwitter posted recently about the Supreme Court adopting rule changes that, among other things, reduced the word count for merit briefs and shortened the time for reply briefs.

Appellate Job Openings:

May 3, 2019 | Permalink | Comments (0)

Thursday, May 2, 2019

Admin Law, Stare Decisis Still Left on Court Docket, TBD

As the latest Supreme Court term winds down, the remaining decisions will be cast into one of two main themes, according to Erwin Chemerinsky. Chemerinsky, who argued the Franchise Tax Board v. Hyatt case in January, says the Court will be contemplating standards of review for administrative law, and whether to overrule precedents in several cases. 

Chemerinsky's case, Hyatt, deals with whether Nevada v. Hall should be overruled. Nevada v. Hall set the precedent that a state may be sued in the court of another state. Chemerinsky was surprised to find that when he argued the case, the justices were most concerned with the overarching question of stare decisis and overruling precedent, and not so much with his client who had been harassed by the state of California when he moved to Nevada. Several other cases deal with this larger issue as well. Knick v. Township of Scott, Pennsylvania asks the question whether a person must exhaust all state law remedies before bringing claims in federal court for a taking. A ruling in this case may overrule Williamson County Regional Planning Commission v. Hamilton Bank (1985) that allowed some exceptions to the rule that says a case may be brought in federal court without exhausting all state court claims. Gamble v. United States asks the Court to overrule the "separate sovereign doctrines" that allows prosecution in both federal and state court for the same crime, without implicating double jeopardy. 

Additional cases touch on stare decisis as well, but more specifically implicate administrative law delegation and deference. Kisor v. Wilkie prompts the Court to review whether courts ought to defer to reasonable agency interpretations of ambiguous regulations. Chemerinsky highlights this issue because of the scrutiny the Chevron doctrine has received in recent years. Gundy v. United States will decide the extent of Congress' legislative delegations of power, and whether they are constitutional. The Court has not decided an issue like since 1935, Chemerinsky says.

The most high profile case awaiting ruling is Department of Commerce v. New York that deals with what questions may be asked on the 2020 census. The controversial "citizenship" question is at issue. Detractors say including the question will inhibit responses resulting in a miscount. The question has been included on census forms before from 1820-1950. After that, some households continued to receive the question from 1960-2000. 

The Court's final arguments were on April 24, and it will be issuing opinions until the end of June.

May 2, 2019 in United States Supreme Court | Permalink | Comments (0)

Tuesday, April 30, 2019

The Ongoing Experiment of State Judicial Selection

Nast Aug 7 1875

In my last article I commented briefly on the political history of the selection and number of justices on the Supreme Court of the United States. As I was writing that piece, a committee was taking testimony in the Texas legislature on a bill attempting to change the Texas judicial selection process. While federal judicial selection is largely a set process, the method of selection of state judges is an experiment in democracy that continues to change today.

Prior to the mid-1800s, most states selected their judges in a way that mirrored the federal system – gubernatorial appointment with legislative confirmation - with a minority of states using direct legislative selection. The Jacksonian era saw a renewed concern with accountability and public participation, and this led to rapid change. In 1832, Mississippi became the first state to switch to a popular election for judges. After a few years of observation, New York and several other states followed suit. By 1861, 24 of the 34 states used the new election system.

There have been several experiments since. Nonpartisan elections were used by 12 states in 1927. Since 1940, over thirty states have adopted some form a system of appointments (either solely gubernatorial or gubernatorial selection from a merits-based nomination system, which is called the “Missouri plan”) with nonpartisan retention elections. Today, only ten states use some kind of partisan election process to select their high court justices, and only five states rely solely on partisan elections.

My home state of Texas is one of them. In the most recent election cycle, for reasons that political wonks can (and do) argue about endlessly, this resulted in a seismic shift on the bench. 35% of all intermediate appellate justices were replaced. One-fourth of all trial judges, at all levels, were also replaced. Four of the largest state appeals courts flipped along partisan lines. By one count, over 700 years of judicial experience were removed from the bench.

The response has been a re-evaluation of the method the State uses for judicial selection. Official committees have been formed to re-evaluate judicial selection and qualification, and there has been vigorous debate over the pros and cons of each system.

The hearing on HB 4504, proposing a new judicial appointment and retention vote system (similar to the "Missouri plan"), covered the gambit of options and perils. Chief Justice Nathan Hecht framed the discussion in terms of the inherent conflict between impartiality and accountability. To be truly impartial, judges must be free of outside influence. At the same time, there must be some accountability for their stewardship of power. But if a judge rules contrary to popular opinion in order to remain impartial, yet is subject to removal through election by that same population, this balance is imperiled.

Calling partisan election an “utter failure,” Hecht opined that partisan election often means there is no true accountability for judges, since the focus is on partisan affiliation rather than performance. He also warned against the risk to impartiality in such a system:

If you want judges who rule in favor of the Republicans or Democrats, in favor of the left or the right, in favor of the establishment or the outsiders, in favor of the rich or the poor, then we should keep partisan judicial elections. But be clear - today, tomorrow, or the day after, the powerful will win that struggle.

Former Chief Justice Wallace Jefferson, the first African American member of the Supreme Court of Texas, while supporting the system, acknowledged that any system needs to increase diversity on the bench, and briefly discussed the impact of implicit biases based on different life experience. Former Chief Justice Tom Philips also supported the bill, asserting that for the vast majority of judges, the partisan label is meaningless, because they seek to serve the people and follow the law. Partisan labels, however, serve to undermine faith in their decision-making. Other practitioners spoke out against partisan elections because the cost in terms of the loss of judicial experience is too high when those elections result in sweeps, and because the system prevents some well-qualified candidates from ever running.

Speaking against the bill, Judge Eric Moyé, a longtime Dallas District Court judge, started with a reference to the importance of local government and local citizen control. Noting that judges are the most direct contact most citizens have with government, Moyé expressed his concern than any appointment process would bypass citizen control. Gloria Leal from the Mexican American Bar Association also testified against the bill, noting that 39% of the Texas population was Hispanic, a proportion that was not reflected on the bench (by my quick calculation of data from the Texas Office of Court Administration published on September 1, 2018, about 17% of the bench is Hispanic), and that popular election was the best way to reach a bench composition that matched the population.

In short, the testimony largely fell along the lines of the tension recognized by Justice Hecht – impartiality versus accountability. This balance was one of the many areas that Hamilton and Jefferson (as well as Madison) disagreed upon, with Hamilton arguing for a truly independent judiciary in Federalist 78, while Jefferson was primarily concerned that the judiciary remain accountable to the people through elections. Over the years, the various states have experimented with numerous ways to maintain that balance.

As an appellate practitioner who appears in different jurisdictions, I can say that by-and-large, these various systems get it right. The professionalism and integrity of our judges is, in fact, remarkable, given the various selection processes and pressures to which they find themselves subjected. This continued discussion, though, is important to ensuring that this remains the case. Only so long as the judiciary remains both impartial and accountable, through whatever procedures and safeguards we can refine, can we ensure a healthy system with judges who are qualified and willing to serve.

(Image credit: Thomas Nast’s cartoon “Princip-als, Not Men – A Lawyer Pleading for his “Client,” Harper’s Weekly, August 7, 1875, showing Nast’s fear that wealth was influencing the bench in its decisions regarding Tammany Hall. The sign on the bar is a quote from King Lear: “Plate sin with gold, and the strong lance of justice hurtless breaks. Arm it in rags, a pigmy’s straw doth pierce it.”).

April 30, 2019 in Appellate Court Reform, Appellate Justice, Current Affairs, Legal Ethics, Legal Profession, State Appeals Courts | Permalink | Comments (0)

Monday, April 29, 2019

Questions Presented: Moot Court Edition

As a moot court coach, I am sometimes asked by students how similar moot court is to actual appellate advocacy.   Certainly, there are differences, starting with having to argue both sides of an issue.  But when it comes to the brief writing, one hopes that an amazing real-world brief would score well in a competition.  

Many of the characteristics of the best real-world briefs—clarity, strong theme, readability, focus—are critical in moot court, too.  An appellate attorney and a moot court participant both want to produce a winning brief.  But winning is defined differently in moot court.  Rather than a panel of appellate judges or justices deciding the issues in a case, moot court briefs are scored on a point basis and compared to potentially dozens of other briefs on the same issue and even same side.

My plan over my next several posts is to compile advice for specific sections of Supreme Court briefs generally, then add some thoughts that specifically relate to moot court.  I have scored moot court briefs for several national competitions and graded hundreds of students briefs over the years, and those experiences give me insights into common student pitfalls.  I have also pulled score sheets from a variety of competitions to give concrete examples of moot court scoring criteria.* 

We will start at the beginning with Questions Presented and Issue Statements.  You know what they say about first impressions. . .   It’s absolutely true for briefs.  As a jumping off point and for reference, I compiled a list of many of the Issue Statement/Question Presented blog posts that have appeared on this blog. 

From earlier this month, Chris Edwards on framing issues:

https://lawprofessors.typepad.com/appellate_advocacy/2019/04/getting-to-yes-framing-issues-on-appeal.html

Tonya Kowalski’s series on (1) Deep Issue Statements:

https://lawprofessors.typepad.com/appellate_advocacy/2013/11/framing-the-issues-contraceptive-coverage-and-religious-freedom-in-the-seventh-circuit.html

(2) Streamlining longer issue statements: https://lawprofessors.typepad.com/appellate_advocacy/2014/01/streamlining-longer-issue-statements.html

(3) More Objective Deep Issue Statements:

https://lawprofessors.typepad.com/appellate_advocacy/2013/11/how-to-write-a-more-objective-deep-issue-statement.html

Thomas Burch on which style of Issue Statement/Question Presented is used:

https://lawprofessors.typepad.com/appellate_advocacy/2013/11/framing-the-issues-whether-versus-the-deep-issue-question-presented.html

As you’ll see from these posts, there is not unanimity as to what format is used and preferred in actual Supreme Court briefs.  But it’s helpful to get grounding in how practitioners are framing questions presented. 

As for question presented scoring criteria from moot court competitions, here’s four examples with their respective point values:


Competition 1 -         Are the questions posed to frame the issue(s) to be decided in a favorable manner without being    

                                    argumentative?

                                    Is there a clear point of view? (5 points out of 100)


Competition 2-          Do they clearly and accurately explain the issues before the court? 

                                    Are they persuasively phrased? (10 out of 100)


Competition 3-         Correctly states issues

                                    Articulates legal questions and includes relevant facts

                                    Does not include legal arguments or conclusions

                                    Succinct and concise   (12 points out of 100)


Competition 4-          Combine legal principles with key facts

                                     Are persuasive but not conclusory

                                     Are clear and succinct (4 points out of 100)


 

All of these criteria include persuasion, argumentation, or relevant facts.  A neutral short framing would not fully comply.  Instead, it’s likely that a well-written, Bryan Garner-esque Deep Issue, as described in the second post above, would be better scoring.  My theory is the professors and students who run competitions and create score sheets have a preference for the more modern, persuasive, multiple-sentence Deep Issue.  Though, I think a short, argumentative question presented with a few key facts could also score well. 

Finally, there are a few key errors that will really impact the question presented score on a moot court brief.  First, as a brief scorer, I gave very little credit for just copying the issue certified for appeal.  That is not the task at hand.  Don’t do it.  Take the time to frame a well-written issue for the court.  It’s possible you could lose 5-10% of your brief score by copying and pasting the issues certified for appeal.    

Second, in moot court briefs there are usually two or three separate issues that need questions presented.  Try to make them stylistically similar.  It’s not cohesive to have one deep issue and one neutral short issue.  Yes, this takes time and possibly teamwork.  But your questions presented set the tone for the brief.  If it’s obvious they were slapped together at the last minute, that’s not a good sign for the rest of the brief. 

Third, on a technical note, do not rely on spell check for ALL CAPS in Word.  If you type in ALL CAPS, spell check does not pick up spelling errors.  Either proof read it carefully, or type it in regular font, then go to font and change it to the ALL CAPS.  I see more typos in headings and questions presented than anywhere else because of this.  A question presented with spelling errors also sets a poor tone. 

Overall, students participating in moot court should start with the good advice in the posts above for practitioners about focusing and selecting the issues and framing them clearly and positively.  But, since most competitions seem to prefer a persuasive style with concise inclusion of facts, I’d avoid a neutral short issue for questions presented in moot court competitions.    

For those of you involved in moot court, do you have any other suggestions? 

 

* Of course, students should try to find and refer to the score sheet of their own competition if it’s available.   

 

April 29, 2019 in Appellate Advocacy, Legal Writing, Moot Court | Permalink | Comments (0)

Saturday, April 27, 2019

Five Secrets To Harness The Power of Rules in Your Legal Writing

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“Know the rules well, so you can break them effectively.” 
― The Dalai Lama

Pick up the average brief and skim through it. Good chance that one section will stand out as extra flabby. The lawyer will have dropped loads of complicated, abstract ideas on you with little guidance--leaving you to parse apart what they might mean and how they might work. What's crazy is that this section will be the cornerstone of the brief. It will be what anchors the analysis--and ultimately, who wins and who loses. 

I'm talking about the rule section: The section that many judges say is the single biggest shortcoming for most lawyers. In a recent survey about the state of legal writing, judges complained about missing rules, missing cases, and just plain confusing discussions about the rules. 

The facts are key. We know that because storytelling is so powerful. But rules are powerful for legal readers, too. Because when you explain rules, you are telling the reader a story about what facts matter. This framework gives them a feeling of control. A feeling that they know what to do with the wave of facts coming.

A few cognitive science principles are at work with rules. One is the need for fluency in a world that is very un-fluent. Rules are complicated and talking about rules is tough. So if you manage to distill rules into simple, easy-to-digest writing—you are already ahead of the pack. 

Another principle is that the more uncertainty inherent in a rule, the more uncomfortable your reader will be with it. We humans don’t like uncertainty. Our minds crave someone to connect all the dots for us. So focus on showing your reader how to interpret the rule in your case so that the facts smoothly line up with the standards.  One study showed that the more similar your rule explanation is to the ultimate conclusion you want the reader to draw—the more likely the reader is to agree with you on the whole.

A final principle to think about is skepticism. Once you are arguing about your facts, your reader can’t help but question your motives. But when you're discussing rules, your reader can see a different persona. Done right, your reader can see this section as a primer on how the law works. So steer clear of extra-strong advocacy-sounding language and maintain credibility. If you do that, you can thread a needle that is powerfully persuasive.

To get you started, I have a few moves for you to try out. 

Use your own, simple, voice

Unless there’s a reason to quote (e.g., statutory language or when the original writer matters), explain rules using your own, simple, words. The same science applies to explaining rules that applies to all your writing: your sentence structure, word choice, and style will change how swiftly your readers understand and accept your points.

Do you really need to block quote a procedural rule when the wording doesn’t matter? Instead, explain the concepts in your own clear writing:

Federal Rule of Civil Procedure 19 works in two steps.  First, the court decides if there are missing parties who are necessary to resolving this case.  If so, the court tries to join them; if not, the court must decide whether they are so crucial that they are indispensable and their absence warrants outright dismissal of the action. At least for now.

Here’s another example that avoids bland quotes about the background criminal process:

Criminal proceedings generally unfold in three discrete phases. First, the State investigates to determine whether to arrest and charge a suspect. Once charged, the suspect stands accused but is presumed innocent until conviction upon trial or guilty plea. After conviction, the court imposes sentence. There are checks against delay throughout this progression, each geared to its particular phase. 

Frame rules to win

Many legal writers describe the important rules without giving any thought about how to frame them persuasively. Instead of blandly copying and pasting the rule’s language, try to rework the rules so that they are always in a form that pushes your reader towards the ultimate goal.

One way to do this is to push the least favorable parts into a dependent clause-- deemphasizing them.

So for the plaintiff:

Even though failing to allege enough facts undermines a claim, if all elements are alleged the claim survives dismissal.

Notice that the independent clause is the plaintiff's favorite part of the rule. 

For the defendant, you can do the same thing:

If the plaintiff fails to allege a single element of her claim, her claim must fail.

You can also use tools that emphasize and deemphasize in other ways. Like putting the favorable rules in places of emphasis (headings, introductions, and the starts and ends of paragraphs and sections). Or use other sentence-level tools that emphasize, like italics, em-dashes, or colons: 

If the plaintiff fails to allege a single element of her claim--her claim must fail.

Another tool here is to reframe the rule in absolutes--with an eye towards emphasizing the best parts of the rule for your side: 

So for the plaintiff:

If a plaintiff alleges specific facts to support her claim, the complaint is sufficient as a matter of law.

For the defendant:

If a plaintiff fails to allege facts to support a single element of her claim, that claim fails as a matter of law.

Telling the rules' story

One of the most powerful stories is a type you might not think about: Rule stories.

Really, every rule is a story. Whether it be a statute, a common law principle, or a case's reasoning. Some situation or circumstance gave birth to the rule. The rule grew over time—changed, expanded. Perhaps it matured into a more flexible version of itself, benefiting from the wisdom of experience. Or maybe it became strict and unyielding after too many litigants took advantage of it.

There is a lot of magic to explore here. For one, when you have a critical rule interpretation that may make or break your brief—telling the rule's life story can be the most memorable, engaging, and persuasive tool in your belt. Rule stories just beg to be read.

Most legal writers would introduce a rule like this:

The Free Exercise Clause does not exempt religious persons from laws of general applicability. Employment Division v. Smith, 494 U.S. 872 (1990).

Look how different it is when the rule is explained in story-form by Justice Gorsuch:

Bbb

Once your reader absorbs your rule's story, it will be hard for them to shake. The other side's surface interpretation will ring hollow.  

Another power of the rule story is that it gives you flexibility. Root around long enough in any rule's past, and you'll find some skeletons. Perhaps a shoddy case that twisted the law in a way it shouldn’t have. Or some assumptions or factual circumstances that suggest an entirely different purpose animated the rule than what you might expect.

You become more persuasive interpreting rules as a storyteller than a scrivener:

Florida’s felony battery statute was intended to fill a gap between simple battery, which under Florida Statute § 784.03 is committed when the offender subjects his victim to any type of unwanted physical contact, and aggravated battery, which under Florida Statute § 784.045 is committed when the offender commits a battery and thereby “intentionally or knowingly causes great bodily harm, permanent disability, or permanent disfigurement” to his victim. - Judge Carnes

Fluent citations

Lawyers constantly drop citations on readers without signposting how that citation supports their sentence. Talk about a credibility killer. If your reader needs to go look up a case to figure out how it supports the sentences you’re writing—the game may be lost.

If your reader needs to make any inference to agree with your underlying sentence, consider making that inference crystal clear or cut the citation altogether and rely on your own credibility. Either you make it obvious what the citation is doing for you, or cut the distraction.

You may have some generic rule principles that require a cite and nothing more. “Plaintiff has the burden here. [cite]” could be an example. 

But when you get to the nuances—and especially when it’s an important part of the rule that you need to win your case—avoid relying on empty citations. Do the inferential reasoning for your reader and put it on display.

One option is to explain your inference directly:

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

Your citation's purpose is clear because you’re telling your reader what inferences you’re relying on.

You could also interpret the rule in your own words, then explain the supporting facts or quotes with citations:

Contact with the plaintiff’s skin is not needed. [no cite—you are saying “judge this is the right interpretationl now I’ll show you why.] In Park, the court address a defendant who ripped a plate from the plaintiff’s hand. Park vs. Hoffman, 324 F. 3d 42, 44 (9th Cir. 2018).

Now you are telling the judge that the first sentence is your inference, the second is a direct paraphrase of the case’s fact section. All good. The point is: When your reader won’t instantly know what a case says (at least paraphrased) or why you cited it, make it obvious.

Another option is a parenthetical:

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

Another is a quote:

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

Don’t do a fact-dump in your rules

When discussing rules and authority, many legal writers do the ole’ dump and conclude. They list a bunch of facts from a prior case, then drop a single conclusion at the end about what that means for the rule.

Like this:

In Jasperson, a fuel tanker was carrying supplies to another carrier and hit a reef, damaging the tanker. The insurance companies for the tanker and the shipping company both denied coverage because another carrier was arguably in coverage. The plaintiff made a demand for payment from both insurers and each refused. The court held that this was enough to state a bad faith claim.

Instead, only list facts if you need to—and with a purpose. Some authority doesn’t require a fact recitation; sometimes the language from the authority is all you need. And if the authority’s facts help you prove your rule, try explaining how the prior court used the facts as you go, not just a dump and conclusion at the end.  

Here’s how the above example looks rewritten to avoid the fact dump and conclusion:

In Jasperson, the court held that two insurers could not both refuse coverage merely because the other could also be liable. There, a fuel tanker hit a reef and the owner submitted a claim to his two insurers, one who covered the tanker and one that covered his company. The court held that it was wrong for both insurers to rely on this potentially overlapping coverage as a reason to deny payments.

Here are some other examples. Instead of saying:

In Yearsley, the Supreme Court considered whether a private contractor that was building rivers dikes…

In Ackerson, the Army Corps of Engineers contracted with the defendant contractors to…

Try explaining how the court used the facts as you go:

In Yearsley, the Supreme Court explained that public contractors are immune from suit if they are performing a public function.  A private contractor was…

In Ackerson, the court changed the rule for when damages are awarded, granting trial courts additional discretion….

Use citations to your advantage

Consider moving citations to the end of sentences. Or describe them first with just a shorthand name. Otherwise, they make your writing clunky. 

And consider putting the court, year, and other quality information directly in the text, if it’s helpful. Don’t expect your reader will read the cite (because many don’t).

So instead of:

In Gonzala Orzhina v. Paleot Systems and More Inc., 321 U.S. 141, 155 (2012), the court held …

Try cutting the burdensome citation information:

One court held that … . Gonzala Orzhina v. Paleot Systems and More Inc., 321 U.S. 141, 155 (2012).

Or lead with a short form at least:

In Gonzala v. Paleot, the court …

Dish up the authority’s quality if it helps persuade:

Just last year, the U.S. Supreme Court held …

Some other things to think about when explaining your rules: 

1. When a rule is unsettled or particularly controversial, provide extra, extra detail. Tell the whole rule story and analyze as many cases and sources of support as you can. This is where you have the biggest risk of losing your reader on the merits so that's where you want to allocate your fire and really sell the sizzle. 

2. Identify your opposing party’s best case—and destroy it with particular gusto. Use all the moves you’ve got on this point.

3. Generally, make your best case first—then tear down the opposing party’s rule interpretations. In the best case scenario, you wouldn’t even need to address the other side’s rules too much head on, because your rule stories have already dealt with them.

4. If possible, and you truly need to bring the other side’s arguments out into the light, try reframing (accurately and fairly) the other side’s most critical interpretations. For example: “Thus, as read by the [other side], Williamson County sends these plaintiffs to state court, while state law directs them back to federal.”

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

April 27, 2019 | Permalink | Comments (2)

Tuesday, April 23, 2019

Speed Questioning Builds Students' Confidence for Oral Argument

Group 5
Spring is here, which means budding trees and oral arguments for 1Ls. At Commonwealth Law School, first-year students write appellate briefs addressing two issues. During oral arguments, teams of two argue against each other. Each student argues one of the major issues. 

When I ask students their concerns regarding oral argument, most are worried about answering the judges' questions. I use speed questioning to help students overcome their question anxiety. Speed questioning is modeled after speed dating. Students answer questions posed by the "judges" sitting before them. When the buzzer rings, students rotate for another round of questioning in front of new "judges."  

Students 5

I run speed questioning during class; however, I never conduct it in the lecture room. Speed questioning requires a room with large, open space. I have used moot courtrooms, an art gallery, and classrooms with movable desks, which I pushed off to the sides. Before class, I set up two questioning circles, one for each of the major issues to be addressed during oral argument. I arrange chairs facing outward in two separate circles.

Room Set Up

To begin, students representing the appellee act as judges. Students responsible for issue 1 sit in one circle. Those responsible for issue 2 sit in the second circle. I give each sitting "judge" a list of questions that the students compiled as part of their homework for this class. Some students refer to the list during the speed-questioning rounds. Other students make up questions during the exercise. 

Students 3

Students representing the appellant answer questions first. Each student stands in front of one of the sitting "judges." Students responsible for issue 1 rotate around the issue 1 circle while being questioned by students that will argue issue 1 for the opponent. Similarly, students responsible for issue 2 rotate around the issue 2 circle. The standing students answer questions for three minutes. At the expiration of time, I ring a buzzer. The students stop. The standing students rotate to the next sitting "judge" and another round of questioning begins. Questioning continues for seven or eight rounds until each student works his or her way around the circle.

Students 4
Once appellants have worked their way around the circle, it is time for the parties to switch places. The students who had been sitting now stand to answer questions. The students who had been answering questions sit. Questioning by the sitting "judges" resumes. Students again answer questions for three-minute periods, rotating around the circle for seven or eight rounds.

In the first several rounds, the students are apprehensive. Many shift their weight from foot-to-foot. Some stand with their hands in their pockets or slouch. After about three rounds of questioning, students' demeanors change. They stand tall and still. They gesture naturally with their hands. Some students even smile. Speed questioning challenges students with the portion of oral argument they fear most-- answering judges' questions. Students gain confidence, which they carry with them to the podium for their first oral arguments.

 

 

 

 

 

April 23, 2019 | Permalink | Comments (1)

Monday, April 22, 2019

Supreme Court Adopts Rules Changes

Last November, I blogged about pending rules changes before the United States Supreme Court.  As I wrote at that time:

Under the proposed changes, merits briefs will be cut from 15,000 words to 13,000 words. Amicus briefs at the merits stage would be cut from 9,000 words to 8,000 words.  Finally, reply briefs would be cut from 6,000 words to 4,500 words.  According to the National Law Journal, it seems like this last cut is the one getting the most attention and push back from practitioners.

Last Thursday, the Court issued a press release announcing that some of the rules changes had formally been adopted and will go into effect on July 1, 2019.  According to a National Law Journal story on the new rules:

The changes announced Thursday . . . will limit briefs on the merits to 13,000 words, down from the current 15,000-word limit. Amicus briefs filed by nongovernmental entities will shrink from 9,000 to 8,000 words. But the court, apparently responding to criticism from advocates, decided to keep the word limit for reply briefs at 6,000 words. Its proposed rule changes, made public last November, suggested a 4,500-word limit for reply briefs, a document that advocates view as highly important in culminating their briefing before the Supreme Court.

In published commentary on the changes, the Court explained,

Experience has shown that litigants in this Court are able to present their arguments effectively, and without undue repetition, with word limits slightly reduced from those under the current rule. Reductions similarly designed were implemented for briefs in the federal courts of appeals in 2016.

As part of the rules changes the Court also made clear that documents must be filed both electronically and in paper form.  The guidance reminds litigants that "paper remains the official form of filing" at the Court.

Given the changes in the circuits, the rules changes really aren't a huge surprise. But, they do demonstrate that the Court moves much slower than the federal courts of appeals in making changes.  Perhaps in a few more years we will finally see cameras in the Court.

April 22, 2019 | Permalink | Comments (0)

Saturday, April 20, 2019

Saying Less: the revised Supreme Court Rules and cutting words

On July 1, 2019, the Supreme Court of the United States will impose a new, shorter word limit for principal briefs.  The change affects Supreme Court Rule 33.1(g), decreasing the word limit for principal merits briefs from 15,000 to 13,000.  The change brings the Court in line with the federal Courts of Appeal.  Since December 1, 2016, the Federal Rules of Appellate Procedure have allotted only 13,000 words for opening and response briefs. 

The Court rejected one of the more controversial proposed rules.  That proposal would have limited reply briefs to 4,500 words.  Even so, the Court did shorten the time for filing a reply brief.  Previously, merits replies were due (1) 30 days after the respondent filed its merits response or (2) no later than 2 p.m. on the date seven days before the case was scheduled for argument, whichever was earlier.  The amended rule keeps the 30-day window but pushes the seven-days-before-argument deadline to 10.

 So why did the Court adopt these changes?  I don't claim to know the answer, but I expect that it has something to do with the fact that most briefs are simply too long.  Anecdotally, I once heard an appellate judge comment that every appeal really has one issue, maybe two.  It's clear that some lawyers—yours truly included—forget that sometimes. 

So how can you come in under these shorter word limits?  That's simple—better writing.  Here are some things to do, and to avoid, to bring your brief under the word limit.

  • Do use fewer words, not more: Legal writers often are guilty of using phrases like "pursuant to," "prior to," or "on or about."  Don't.  Instead of these wordy phrases, try "under," "before," and "on."  This seems like a no-brainer, but I've encountered many lawyers that refuse to give these anachronisms up.  As an aside, I've also encountered several that use "pursuant to" incorrectly.  Things don't happen "pursuant to" anyone's recollection.  If you can't replace the phrase "pursuant to" with the word "under," you should re-write.
  • Do run a search for the word "of." I never noticed it, but many phrases with the word "of" can be rewritten to eliminate one, often two words.  Consider the common phrases "the issue of" or "the question of."  You're likely able to pull those out without doing violence to your brief.  Also, if you're using an "of" phrase, there's also a chance you could use a possessive.
  • Do run a search for "ly." You're hopefully not going to find very many adverbs.  But if you do, take them out unless they're necessary.  Consider spending some time with a thesaurus; if you're using a lot of adverbs, perhaps you'd be better served by using stronger verbs.
  • Do not use the words "plaintiff," "appellant," or other, similar procedural phrases to describe any party. Briefing an appeal is about telling a story.  It's your job to tell the court the whole story of the case in the limited (13,000!) words that you have.  Even though replacing your client's four-word name would save space, resist the urge.  I promise, what you're gaining in space, you're giving up in clarity.
  • Do not use precise dates, unless you absolutely need it. The Court doesn't need to know that something happened on April 21, 2019, unless multiple events happened in April 2019.  If you've got to describe a temporal relationship, try words like "later" or "before."  Otherwise, just save the words and use the month or month and year. 

These aren't all the ways to save space.  But writing shorter, more coherent briefs is a mindset.  You have to start somewhere.

April 20, 2019 in Appellate Advocacy, Appellate Practice, Appellate Procedure, Current Affairs, Federal Appeals Courts, Legal Writing | Permalink | Comments (2)

Tuesday, April 16, 2019

The U.S. Supreme Court and Its Political History.

Img54

Over the last several weeks there have been numerous articles about the "unprecedented" politicization of the United States Supreme Court. I have also seen several opinion pieces about growing frustration with the political leanings of the judiciary, and proposals to increase the number of seats on the high court to bypass a feared conservative bloc.

I am fortunate enough to be married to a lovely lady who is, among many other things, a college history professor. While we don't talk shop too often, I am familiar enough with our history to know that none of these complaints are new. Indeed, they say that those who do not know history are doomed to repeat it. So let's learn a bit of history, then, and gain a bit of insight from the past.

First, dissatisfaction with the judiciary is baked into the system. Alexis de Toqueville noted that “[t]here is almost no political question in the United States that is not resolved sooner or later into a judicial question.” Yet Tocqueville considered this a good thing: lawyers by their education and nature were naturally skeptical of change and conservative in nature, and thus provided our best brake against the “revolutionary spirit and unreflective passions of democracy.” Congress and the Executive provide the passion and funding and guidance that moves the State, and the judiciary makes sure that all this passion and money doesn't ruin anything of Constitutional importance.

This inherent conflict between the Supreme Court and the other branches of government has often resulted in moves to make the Supreme Court "more like us." The Constitution does not define the number of seats on the Supreme Court. Thus, the Supreme Court started with just six seats in 1789. It did not take long for this to invite political intervention. In 1801, President Adams and his outgoing Federalist congress passed a bill to restrict the court to five seats, attempting to limit the incoming President Jefferson from meddling with things. Jefferson and his new congress changed the seats back to six by repealing the act.

This tinkering continued. At first, there was the excuse that new circuits meant there was a need for new seats. So, in 1807, when a seventh circuit was added, Jefferson and his congress added a seventh seat to the Court as well. Andrew Jackson followed suit in 1837, adding two more seats to match. When a tenth circuit was added during the Civil War, a tenth seat was added.

After the Civil War, the seats were reduced, at first back to seven, and then to nine, by President Grant and his congress. This number has remained the norm until this day.

That doesn't mean things have gone smoothly. In fact, things were worse in the 1930's than they are now, and we almost wound up with 15 judges a result.

In the 1930's, FDR and his congress passed a number of new laws that were a part of what became known as the New Deal. The Supreme Court was the only thing stopping this change. Time and again, the Court balked at the fairly radical changes that were being implemented. Soon, ideological divisions were noted and mocked. There were four conservatives -- Justices Pierce Butler, James Clark McReynolds, George Sutherland, and Willis Van Devanter -- that the pro-New Deal press began calling "the Four Horsemen." They were opposed by the "Three Musketeers," who favored the changes: Justices Louis Brandeis, Benjamin Cardozo, and Harlan Stone. In the middle were two moderates, Justices Charles Evans Hughes and Justice Owen J. Roberts, with Roberts usually siding with the "Four Horsemen" to overturn New Deal legislation.

The "Four Horsemen" were publicly reviled. Burned in effigy in city squares, they nevertheless stuck to their opposition, often meeting together to formulate opinions and questions at oral argument. In the 1935 term alone, this voting bloc overturned the Agricultural Adjustment Act of 1933, the Federal Farm Bankruptcy Act, the Railroad Act, the Coal Mining Act, the National Industrial Recovery Act, and a New York minimum wage law.

In 1936, FDR won reelection by a landslide and believed that this mandate gave him a chance to defeat the Four Horsemen. He announced legislation that would add (through a thinly-veiled mandatory retirement plan that required retirement at 70 or appointment of an additional judge if retirement was refused) as many as six new justices to the court, turning the conservative voting bloc into a minority. In one stroke, the president proposed to regain "control" of the court.

There was immediate backlash. The public and press were split, but most (along with many in Congress) considered the move to be an improper, and undemocratic, power grab.

Most historians seem to think that the proposal never would have passed. But events on the high court soon made the effort moot. Shortly after its announcement, in a move that the press called "the switch in time that saved the nine," Roberts sided with the Three Musketeers in a minimum wage case, and what support there was for the court-packing bill subsided. Within a year, Van Devanter and Sutherland retired and were replaced by Justices Hugo Black and Stanley Reed, both FDR appointees who proved to be strongly in support of his New Deal.

Modern opinion writers would do well to remember our past. What we are seeing is not a new politicization, but the continuation of a trend that is inherent in our system of checks and balances, and a history of attempted political tinkering that repeats itself with some frequency. There may very well be better ways of constructing the Court, and revisiting the court's role and composition periodically is a healthy thing. But overstating the current state of events, underestimating public esteem for the high court and its fragile but important position, and refusing to acknowledge history, does not help that cause.

(image source: February 1937 cartoon in opposition of FDR's court-packing plan, publication unknown)

April 16, 2019 in Appellate Court Reform, Appellate Justice, Current Affairs, Federal Appeals Courts, Legal Ethics, United States Supreme Court | Permalink | Comments (0)

Monday, April 15, 2019

A Texas Appellate Oddity: How Can One City Be In Two State Appellate Districts?

Despite growing up in a suburb outside of Houston and attending college in West Texas, I have been surprised by some Texas legal system aspects after living my entire professional career—from law school to practice then back to law school to teach— in California. Since returning to Houston to teach at the University of Houston Law Center in 2017, I have learned a lot about the Texas legal system, and some of the things have been interesting enough to share more widely.


The first fact that made me raise an eyebrow was that Houston, situated in Harris County and the fourth largest city in the US, is under the appellate jurisdiction of both the First District Court of Appeals and the Fourteenth District Court of Appeals. I learned this over lunch soon after arriving in Houston. My former student is a Harris County District Attorney, and he casually mentioned the challenge it was in certain circumstances not knowing what law would be applied upon appeal. Not understanding, I asked him to explain further. He shared about the First and Fourteenth Districts and how it was not until the appeal was filed that the case was randomly assigned to either the First or Fourteenth District. As a trial lawyer in one of the ten counties subject to this dual jurisdiction, you do not know which appellate court’s opinions will ultimately be applied if you end up appealing. Here’s the technical explanation from the Fourteenth District Internal Operating Procedures:


The 1st and 14th Courts have concurrent jurisdiction over cases from Harris and 9 other counties: Austin, Brazoria, Chambers, Colorado, Fort Bend, Galveston, Grimes, Waller, and Washington. The trial court clerk randomly assigns each appeal, with one exception: cases in which a related matter has previously been heard by a particular court are assigned to that court.

So how did Texas become the only state in the country with this jurisdictional quirk? It has to do with Texas history. As the state grew, more courts were added in an ad hoc manner. The First District was created in 1892 and located in Galveston. In 1957, after Hurricane Audrey and significant damage to the Old Galveston Court House, the First District was moved to Houston. In 1967, the state legislature added the Fourteenth District because of population growth and also located it in Houston. At that point, the courts were still limited to three justices each, so new districts were added when case loads became too large.
While Texans often take pride in their unique institutions, many have criticized the resulting court system from this add-on approach. According to Judge Willett of the Fifth Circuit while he was a Texas Supreme Court Judge:


Truth be told — and this particular truth has been told repeatedly — the State's entire Rube Goldberg-designed judicial "system" is beyond piecemeal repair; it should be scrapped and rebuilt top-to-bottom. The convoluted make-up of the Texas judiciary — "one of the most complex in the United States, if not the world" — does not lack for critics, from the litigants who endure it, the lawyers who navigate it, and the judges who lead it. . . Texas is the only state in the nation in which trial judges answer to more than one intermediate appellate court, that is, no other state has overlapping appellate jurisdictions. Fifteen counties are in overlapping districts. This Court has lamented the "manifest" problems inherent in overlapping districts: "uncertainty from conflicting legal authority," "the potential for unfair forum shopping," and "jurisdictional conflicts.”


In re Reece, 341 S.W.3d 360 (Tex. 2011) (Willett, J. dissenting).


One shocking example of what can happen when two appellate districts have the same jurisdiction occurred when four passengers were in the same car in a bad accident, and three had the right to sue according to one appellate district, one did not according to the other. Compare Reyes v. City of Houston, 4 S.W.3d 459, 462 (Tex.App.-Houston [1st Dist.] 1999, pet. denied) with Montes v. City of Houston, 2000 WL 1228618, at *4 n. 3 (Tex.App.-Houston [14th Dist.] 2000, pet. denied). While the Texas Supreme Court may grant a petition for review when there is a split of this type, it often does not. There are lots of less dramatic examples of conflicting rulings. Litigants and attorneys are left with a limited ability to predict the law that will be applied in their case, let alone an outcome based on that law.


It’s also worth pointing out that fourteen intermediate appellate districts is a lot, and likely adds to costs and strain on the high courts. Texas has more intermediate appellate courts than there are federal circuits. Though Texas is large in both size and population, it strains reasoning to understand why it needs that many. For reference, California only has six intermediate appellate courts.


Finally, the concurrent jurisdiction has been criticized for diluting voting rights of minority voters in Harris and Fort Bend counties with votes from the other largely Caucasian, suburban counties. With the election in 2018 and the vast changes in the judiciary in Texas, it will be interesting to see if political motives will result in more momentum towards some sort of change.


Overall, forty nine out of fifty state and the entire federal court system operate with unitary intermediate appellate court jurisdiction. Texas is an outlier with this strange system, and I did not find anyone extolling the virtues of it. Perhaps this is a quirk that should be retired.

April 15, 2019 in Appellate Advocacy | Permalink | Comments (3)

Saturday, April 13, 2019

A Plaintiff and a Defendant Walk into a Bar: Simple Tools For Telling Stories in Your Legal Writing

Download"Those who tell the stories rule the world."

- unknown

It is quiet and dark. The theater is hushed. James Bond skirts along the edge of a building as his enemy takes aim. Here in the audience, heart rates increase and palms sweat.  I know this to be true because instead of enjoying the movie myself, I am measuring the brain activity of a dozen viewers. For me, excitement has a different source: I am watching a[] neural ballet in which a story line changes the activity of people’s brains.

That's from Paul Zak, founding Director of the Center for Neuroeconomics Studies. Recently, scientists strapped brain-scanning and other sensors to a group of test subjects and had them watch a Bond movie. The researchers wanted to see how people reacted physically and neurologically to a good story.

"When James Bond found himself in stressful situations--like hanging from a cliff or fighting a bad guy--the audience’s pulses raced. They sweated. Their attention focused." In other words, the subjects connected with the hero on a physiological level, experiencing what Bond was experiencing. And something else: the participant's brains synthesized a neurochemical called oxytocin.

Oxytocin's influential power on our minds is well-documented. And stories trigger it.

Take another study showing that when we read a story, the neural activity in our brain increases fivefold. Neuroscientists have a saying: “Neurons that fire together, wire together.” This increased activity, no doubt, makes it much more likely that readers will remember a story over some other random information. 

Research shows that the mere act of reading a story changes how we think. In a 2011 study, participants read stories with strangers. The results? Storytelling, the researchers concluded, “fostered empathy, compassion, [and] tolerance.” Reading a cohesive story (of any kind) affects us. It makes information more palatable and more memorable. This is all piled on top of the long-standing cognitive science research showing that nearly all of our thinking is done by constructing story-like schemas and categories in our minds.

In short: research proves that storytelling engages readers, it burns information into their memories, and it forges the sort of close bonds that you need to persuade them. If anything, these powers are most important for lawyers. We legal writers are desperate to engage our readers--and to get them to care--amid the constant legal noise. Storytelling can cut through that noise and touch our readers on deep levels.

Legal storytelling is a field and art to itself, but I thought I would offer some core storytelling tools that you can easily incorporate into your legal writing. 

1.      Start with a movie-trailer paragraph.

Try taking a paragraph or two at the outset of your factual story to spool up a preview of the best scenes. If your fact section is the movie then this initial section is your movie-trailer. You will not only excite and engage your readers, but you'll lay out the basic storyline so they can better sort the details as they go (an important cognitive science tool).  

The two tricks here are to (1) roadmap the basic storyline and theme ("this is a corporate bullying case") and to play a highlight reel of some of your best material to prime readers and get their emotions in the right place. I've seen good movie-trailers take up a few paragraphs or a few sentences. Take this one from a recent SCOTUS case--it doesn't get  more simple or persuasive than this: 

Capture

Justice Kagan is a fan of the movie trailer. Here she sets up the story in the Sherman case last term: 

Movie trailer and story wowAnd here's another one from a federal motion for summary judgment:

The thrust of the complaint is that plaintiff has worked at the defendant’s store for several years and repeatedly complained about sexual harassment. For example, he complained that his supervisor allegedly made comments about his ‘great stature.’ Eventually, the defendant acted, but by then, plaintiff alleged he had already been harassed so much that he quit.

Here's an example of a lawyer also adding some helpful roadmap to his trailer:

Three periods in plaintiff’s employment are relevant here. First, plaintiff offers allegations about when he was interviewed and how the defendant made promises to him then, like that he would be a foreman within six months. Second, plaintiff alleges that over the next six months, his job turned out to be a “glorified secretary…”

2.     Uncover your familiar plot and highlight it.

We all know the good storylines: the underdog who defeats the bully, rags to riches, the do-gooder who is underestimated by everyone in town. We are hardwired to be moved by these storylines. The good news is that you can construct an emotional storyline out of just about any situation, if you look hard enough. Once you've distilled down your basic plot so that you can relate it in a sentence or two--highlight it at the outset of your story and throughout your brief. 

Supreme Court high-flyer (and one of my favorite legal writers) Deepak Gupta gets the value of building a simple and emotional storyline at the outset.  With these couple paragraphs, Gupta injects his factual theme, storyline, and the punchiest snippets of his factual story. In short, the big bad credit card companies are pulling the wool over innocent consumers' eyes--to the tune of billions:  

Movie trailer used to map and build emotion

Here's another example. This time, it's a story of vulture debt buyers looking to prey on the weak: 


Triggering emotion

3.     Deftly weave emotional facts into the story (even when they are not strictly relevant).

Legal readers hate reading facts that are obviously not relevant to the legal questions they are wrangling with. But if you insert those same facts into a cohesive story about the facts that do matter--your readers will never get wise. For example, Justice Kagan mentions in this snippet below how much the plaintiff spent on fees, even though this fact really had nothing to do with the legal questions presented to the court. But because this fact was weaved into the story about the  background that was relevant--you'd never know: 

Theme underdog 24.    Cut details that don’t matter.

We legal writers are often too specific about things that don’t matter. The problem is that when you give your readers a bunch of specific details without purpose, they get confused. They try to remember everything, not knowing what they'll need for the legal analysis later.

So cut dates, amounts, names, and any other details that won't help you win on the merits. Look how this federal district judge avoids inundating the reader with dates, page numbers, and needless details that other lawyers and judges love to squeeze in: 

Late last year attorney Denton Jackson filed a chapter 13 bankruptcy case [] for debtor Sarah O’Neill. Shortly after filing the case, Jackson filed a form fee application, Form No. 23. In the portion of the application entitled “Use of Model Retention Agreement,” Jackson checked the box indicating: “The attorney and the debtor(s) have entered into the Court’s Model Retention Agreement.” Some months later, chapter 13 trustee Thomas Lanner objected to Jackson’s application because the [Model Retention Agreement] between Jackson and the debtor . . . attached an “addendum” that prescribed fees in addition to the flat fee to which Jackson was entitled.

5.     Try to tell a complete, cohesive story about any important factual events. 

Make sure to tell a complete story--beginning, middle, and end--for any event that matters. Readers get skeptical when there are obvious plot holes. So answer natural narrative questions readers will likely have. Consider telling the story in a familiar arc:

setting > characters > complication/conflict > resolution (how they got to court)

This is a familiar and easy to understand format for readers (as a preview for later--you can use this same structure when telling stories about the rules, too). 

Some other story elements to keep in mind: 

  • Consider whose perspective might be the best to follow as you deliver the facts. The defendant? The plaintiff? Some third party?
  • Focus on people or entities when possible. Frame the story as actions they took out leading to the issues or dispute.
  • Provide your reader with helpful context to set up those important factual events. How did the plaintiff and defendant come to meet? Why were they where they were that night? You don’t want to lose your reader in irrelevant details, but if some factual events are critical, it will be much easier for your reader if you set the scene first.

Here's some nice scene-setting about why there are so few debt-buying firms, which sets up the critical factual events in the case: 

Context for story

Here's a great example of a lawyer telling the whole story and paying attention to familiar story elements: 

Capture

Beginning middle and end context

Here's another cohesive story. Notice how the lawyer keeps the facts in the perspective of the entities, not abstracts. Note also the editorials about what the entities were thinking at the time: 

Defendant Oztark co. launched it’s company last year to help individuals who want to charter a private plane. It filled out its corporate paperwork with the state of Delaware, but it forgot to send in a check to cover the corporate registration fee. Delaware, in turn, sent its request for payments to the wrong address—so Oztark never realized it’s mistake. Oztark then started providing services, not realizing that it was effectively not a legal corporation . . .

Here's an example of some scene setting that lays out how different parties relate to each other. Is it all legally relevant? Probably not. But it sure helps keep the story straight: 

Setting up characters

6.    Share specific details that make a point (rather than telling your reader why they matter).

This is a classic and always important: Use choice details to lead your readers to the emotions and images you want, don't just tell them what matters. 

So instead of telling your reader that “plaintiff was severely and permanently injured” share the specific details: “Plaintiff’s hips were both broken.”

But choose specific details with care. Juicy details will build imagery in your reader’s mind, making the story come to life. And if you choose the wrong details you might lose control.

7.     Use tools to emphasize the good facts.

Emphasize the best facts by describing them with the best style. Imagery-laden, vibrant, and pithy writing is memorable. And using this sort of writing when talking about the good facts will make them stick. 

You can emphasize key facts by placing them in positions of emphasis like the beginning and endings of paragraphs, the beginning or end of sections, and the ending of sentences. You can also emphasize these facts by repeating them subtly, say, in your introduction, in your fact headings, in your movie-trailer section, and in your conclusions. 

Another important way to emphasize key facts is to tell a more detailed story about them. The more details and time you spend setting up a factual event, the more it will be emphasized for your reader. Justice Kagan gets it here, as she spends two paragraphs revealing every detail leading up to the critical event of the banner being unfurled: 

Respondent Joseph Frederick, a senior, was late to school that day. When he arrived, he joined his friends (all but one of whom were students) across the street from the school to watch the event. Not all the students waited patiently. Some became rambunctious, throwing plastic cola bottles and snowballs and scuffling with their classmates.

Then came the incident we are concerned with here. As the torchbearers and camera crews passed by, Frederick and his friends unfurled a 14–foot banner bearing the phrase: “BONG HiTS 4 JESUS.” The large banner was easily readable by the students on the other side of the street.” - Morse v. Frederick, 551 U.S. 393 (modified)

8.    Use the first sentence of fact paragraphs to persuasively frame and prime. 

Like I mentioned recently in "The Strength of the Start," first sentences are powerful. Use the first sentences of your fact paragraphs to set up the persuasive pitch for all the facts that come after. Gupta does just that here: 

Framing good and bad facts at the outsetAnd again here: 

First sentence facts

9.    Use your own voice and narration whenever possible. 

Any good storyteller will tell you that half of this art is in the voice: the power, the pauses, the pitch. For writers, this is tricky, because you must craft a "written voice." One of the big pitfalls here is to let fact quotes drown out your own narration. So consider using some of my prior pointers about quoting here, and keep other people's voices to a minimum. Check out how (yes again) Gupta keeps quotes to a minimum while maintaining his own narrative tone throughout: 

Using quotes from evidence within story tone10.    Defang unhelpful facts (but don’t ignore them).

Defang unhelpful facts by surrounding them with helpful facts (the "halo"), by placing them in the middle of paragraphs, by not repeating them, and by sharing less detail or spending less time exploring their nuances.

But top lawyers will all agree that you should not ignore the bad facts that the other side is sure to raise. That just makes them that more powerful in the other side's hands. But here is an example of an attorney deftly putting bad facts into context. Instead of saying: "Defendant admits he punched the plaintiff in the face," the lawyer says:

Defendant is a nurse. He has never done anything violent. He was being beaten from three sides and—to save his own life—flailed and made contact with one of the assailants in the face. There were no injuries.

11.    Use headings to separate the story's different scenes.

This may be the most helpful fact tool: separate different factual events with headings so that your readers can keep track. Good headings also allow you to help your reader understand what matters from each section. 

For example, this lawyer plucks out the key facts about how long it took to file a motion:

A. The plaintiff waited to file the motion until three months after receiving documents.

Here's another Gupta example of headings that preview key facts and help readers keep track of all the different parts of a single, cohesive story:

Fact headings

12.    Telling the rules' story. 

One of the most powerful stories is a type you might not think about: Rule stories.

Really, every rule is a story. Whether it be a statute, a common law principle, or the reasoning of a court case. Some situation or circumstance gave birth to the rule. The rule grew over time--changed, expanded. Perhaps it matured into a more flexible version of itself, benefiting from the wisdom of experience. Or maybe it became strict and unyielding after too many litigants took advantage of it. 

There is a lot of magic to explore here. For one, when you have a critical rule interpretation that may make or break your brief--telling the rule's life story can be the most memorable, engaging, and persuasive tool in your belt. Rule stories just beg to be read.

Most legal writers would introduce a rule like this:

The Free Exercise Clause does not exempt religious persons from laws of general applicability. Employment Division v. Smith, 494 U.S. 872 (1990).

Look how different it is when the rule is explained in story-form,hereby Justice Gorsuch: Telling a story about cases

Once your reader absorbs your rule's story, it will be hard for them to shake. The other side's surface interpretation of the rule will ring hollow.  

Another power of the rule story is that it gives you flexibility. Root around long enough in any rule's past, and you'll find some skeletons. Perhaps a shotty case that caused a twist in the law that never should have been there. Or some assumptions or factual circumstances that suggest an entirely different purpose animated the rule than what you might expect. You can take more liberty when interpreting rules as a storyteller rather than a scrivener.

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

April 13, 2019 in Appellate Advocacy, Appellate Practice, Appellate Procedure, Law School, Legal Writing | Permalink | Comments (0)