Appellate Advocacy Blog

Settled Precedent or Doctrinal Dinosaur? Handling Stare Decisis.

Last year was a rough year for the doctrine of stare decisis, the rule that prior precedent should be followed in subsequent similar cases. In 2018, in Janus v. American Federation of State, County and Municipal Employees, Justice Alito quoted from Payne v. Tennessee, a 1991 Rehnquist opinion, reasoning that stare decisis as important because it "promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process. Thus, although stare decisis is not an "inexorable command," past precedent should not be overturned without "strong grounds" for doing so. These grounds included an analysis of the quality of the reasoning, the workability of the rule established, its consistency with related decisions, developments since the rule was handed down, and subsequent reliance on the decision.

In his May 2019 majority opinion in Franchise Tax Board v. Hyatt, Justice Thomas concluded, after analyzing four of these factors, that the first three justified overruling prior precedent. In reaction, Justice Breyer noted in his dissent that believing that a case was wrongly decided cannot justify "scrapping settled precedent."  Instead, according to Breyer, since the dissent in the prior precedent had considered the majority decision to be wrongly decided, but still "plausible," overruling a decision that is not "obviously wrong" simply because the majority now agrees with the prior dissent is "obviously wrong."

The next month, Justice Kagan, writing for the majority in Kisor v. Wilkie, again quoted from Payne regarding the importance of stare decisis, and argued that any departure from the doctrine must be supported by some "special justification" beyond the argument that the prior case was wrongly decided. Finding that the precedent at issue was not "unworkable" or a "doctrinal dinosaur," the majority refused to overturn it. Justice Gorsuch, writing a concurring opinion, seemed to reject Kagan's strict approach, instead returning to the Janus factors created by Alito and suggesting that such factors should permit the overturning of precedent when it "no longer withstands careful analysis."

This back-and-forth battle involves more than just a disagreement over the legal standard for overturning precedent. There are political and social subcontexts that are being flagged in these cases. But that is a subject for a different blog. What I am concerned with is what a practitioner, after all of this sparring, is supposed to do with adverse authority now.

First, it should go without saying that you can't ignore adverse authority. ABA Model Rule3.3(a)(2) states that “a lawyer shall not knowingly … fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel.” Even if you think you can distinguish the authority, or that it is a dead doctrine, you must deal with it.

Second, be sure that you are actually dealing with precedent that is directly applicable to your case. If the authority is distinguishable, you don't need to directly attack it. Just show why the decision does not dictate a result in your case. As Justice Frankfurter wrote, "If a precedent involving a black horse is applied to a case involving a white horse, we are not excited. If it were an elephant or an animal ferae naturae or a chose in action, then we would venture into thought. The difference might make a difference." Reid v. Covert, 354 U.S. 1, 50 (1957) (Frankfurter, concurring). Explain why your differences dictate a different outcome.

Third, when you do have to discuss applicable adverse authority,and you cannot distinguish it, use the structure applied by both sides of the debate whenever possible. Both sides of the debate in the Court give lip service to the idea that stare decisis is not a rigid doctrine. One side seems to focus on whether the prior decision is unworkable or out-of-touch with current law, while the other prefers the multifactoral approach under Janus. Using both approaches therefore seems to be the best bet - quote and use the Janus factors, but focus on why the prior case has become unworkable or is out-of-touch with current law.

Fourth, enlist aid when showing why the prior case is unworkable. Surveys of former Supreme Court Clerks indicate that they find amicus briefs particularly helpful when dealing with complex issues beyond their experience. See Lynch, Best Friends?: Supreme Court Law Clerks on Effective Amicus Curiae Briefs, 20 J.L. & Pol. 33 (Winter 2004). If a doctrine has had an unworkable impact in a particular field, then briefing from amicus in that field may be necessary to get across the point. Consider soliciting that briefing at an early stage, as well as setting out the issue even in intermediate appellate courts.

Fifth, and finally, know your enemy. Understand the underpinnings and history of your adverse authority, so you can help the Court understand how some of those underpinnings may have changed over time. This will require extensive research, but if the Court is going to require "special justification" to change the adverse authority, it will require special effort on your part to explain and justify that departure. This may require some legal digging, but if you can show, at the end, that the adverse case is really a dinosaur, all that digging is worth it.

Thanks goes to appellate lawyer Scott Rothenberg's paper, "Prevailing in the Face of Adverse 'White Horse" Authority" for inspiring this post.

(image credit: Dinornis Elephantopus, Roger Fenton c1854 (Digital image courtesy of the Getty's Open Content Program)).

 

Returning to the Court as an Attorney

Last week an email from National Law Journal caught my attention.  The subject read "A Rare Amicus Brief in Church-State Case." Curious about the brief, I opened the email--a weekly Supreme Court Brief from NLJ written by Marcia Coyle and Tony Mauro.  As I read the email, I was fascinated to discover that the "rare amicus brief" was one filed by McGuireWoods partner Joshua Davey in the upcoming U.S. Supreme Court case Espinoza v. Montana Department of Revenue.

The Espinoza case concerns a Montana scholarship program that provided, in the words of the petitioners' brief "a modest tax credit—up to $150 annually—to individuals and
businesses who donate to private, nonprofit scholarship organizations. Scholarship organizations then use the donations to award scholarships to families who wish to send their children to private school."  Religious schools were included in the definition of private schools, as was nearly every other private school in the state.  The Montana Department of Revenue, however, issued a rule that prohibited the scholarships from being used at religious schools.  The Department's decision was based on a provision of Montana's Constitution that mandates separation of church and state.  This provision, known as a Blaine Amendment, is present in the laws of nearly 40 states.

The petitioners', all low-income mothers who used the scholarships to send their kids to private religious school, sued claiming in part that the Blaine Amendment violated the Religion and Equal Protection clauses of the Constitution. The petitioners ultimately lost at the Montana Supreme Court.  The U.S. Supreme Court will hear arguments in the case on January 22.

What made Joshua Davey's amicus brief so interesting is that over fifteen years ago a very different U.S. Supreme Court upheld a Washington Scholarship program that, because of the state's Blaine Amendment, prevented him from using the scholarship that he received to obtain a degree in devotional theology. Josh instead went on to attend Harvard Law School, where, in full disclosure, we were friends.  According to my search of Supreme Court briefs on Westlaw, this is the first brief that Josh has filed in the Supreme Court as an attorney.  It seems fitting that it addresses the same issues that led him to his current career.

Josh's brief is filed on behalf of Forge Youth Mentoring, "a Washington State charitable organization whose mission is to help youth discover their God-given potential by connecting them with older mentors to form intergenerational mentoring relationships."  The brief directly addresses the Court's decision in his case and how it should be read in light of the much more recent Trinity Lutheran (2017) decision.  

The Espinoza case is just one of several big religion cases this term, but it could have huge implications if the Court strikes down Blaine Amendments, something it wasn't willing to do in Trinity Lutheran.

Great Writers Know When to Break the Rules

Excellent legal writers (and writers generally) ensure that their documents adhere to basic rules of grammar and style. Indeed, if an attorney submits a document that contains grammatical or stylistic errors, it will undermine the attorney’s credibility and detract from the persuasive value of the attorney’s arguments.

However, in some circumstances, outstanding legal writers break the rules of grammar and style because doing so increases the persuasive value of a particular document. Below are some of the ways in which breaking the rules of grammar and style will likely enhance the quality of your document.

1.    You can end sentences with prepositions

As a general rule, sentences should not end with prepositions. However, in some contexts, adhering to this rule will result in awkward sentences. Consider the following example:

Who are you referring to?

Versus

About whom are you referring?

The first sentence ends with a preposition but certainly sounds more natural, which can be particularly effective where, for example, you seek to personalize your client.

Thus, don’t necessarily avoid ending a sentence with a preposition. Instead, determine when, and under what circumstances, violating this rule will enhance the flow and readability of your document.

2.    You can write a one-sentence paragraph

Generally, a paragraph should be approximately three to five sentences. It should also include a topic sentence and never occupy an entire page.

In some situations, however, you should break this rule, particularly where you are emphasizing a strong fact or argument that is critical to your case. After all, it should come as no surprise that your audience may not read every word in your document. Thus, using a one-sentence paragraph to emphasize a relevant fact or argument can enhance your prose and the persuasiveness of your document.

3.    You can use the passive voice

The conventional rule is that you should write in the active voice. Sometimes, however, using the passive voice is effective, including where you want to de-emphasize facts that are unfavorable to your client. Consider the following example:

The rule was violated.

Versus

The Defendant violated the rule.

If you are representing the defendant, wouldn’t you rather use the first sentence to acknowledge that your client violated a rule?

Ultimately, in some circumstances, passive voice can be effective, although it should be used sparingly and mostly when you want to de-emphasize an unfavorable fact.

4.    You can use sentence fragments

A complete sentence must include a subject and a verb. Importantly, though, in limited circumstances, using sentence fragments can maximize the persuasiveness of your argument because it is an effective way to emphasize important facts. Consider the following example:

Upon arriving at the crime scene, it was immediately clear that the victim was murdered in a cruel and heinous manner. Bloodied. Dismembered. Fear still in her eyes.

The above example demonstrates how sentence fragments can paint a vivid picture of the underlying events and effectively emphasize important facts.

5.    You can start a sentence with “and” or “but” (or other conjunctions)

Generally, you should not begin a sentence with “and” or “but.”

But doing so can be quite effective in some circumstances. For example, beginning a sentence with “and” or “but” can increase the persuasive force of a sentence and enhance the flow of your narrative. Consider the following example.

The defendant claims that the plaintiff’s not entitled to damages. But the defendant signed the contract. And the defendant admits to doing so.

Versus

The defendant claims that the plaintiff’s not entitled to damages. However, the defendant signed the contract. Additionally, the defendant admits to doing so.

Which do you prefer? The first example both reads and flows better.

6.    You can split infinitives

Some writers – or English teachers – may cringe at the notion that you can split infinitives in your writing. But doing so often makes your writing sound and read better. Consider the following famous phrase:

To boldly go where no man has gone before.

Versus

To go boldly where no one has gone before.

The first example sounds and reads better.

7.    You can use “you” instead of “one”

Sometimes, it is effective to use “you” instead of “one.” Consider the following example:

If one prefers, one may appeal the committee’s decision within ten days.

Versus

You can appeal the committee’s decision within ten days.

The second example sounds better and thus results in more readable prose.

8.    You should frequently use profanity and vulgar language in your legal writing

I’m just kidding. Don’t ever do this!

Ultimately, grammar and style rules are vitally important and should be followed in many circumstances. However, rather than rigidly adhering to these rules, pay close attention to how your writing flows and sounds. Consider the context. Consider your audience. Consider what language maximizes the persuasiveness of your argument. And realize that, sometimes, breaking the rules is the key to excellent writing.

Ideas for Including “Off-Brief” Moot Court Argument Techniques in Our Writing & Teaching

Every appellate practitioner and legal skills professor wishes for the time to do one more draft or add one more really creative and engaging exercise.  As I like to tell my students, since I am not in charge of the world, I cannot offer more time.  However, we can all enhance our written advocacy and teaching by incorporating some aspects of arguing off-brief, a traditional and time-consuming exercise for oral advocacy, into our brief writing and teaching.  

In a traditional moot court competition, oral advocates must argue both “sides” of the mock litigation.  As Dean Dickerson explains, “[t]his is known as arguing ‘on brief’ and ‘off brief.’  In the first round, the student will represent one side on the issues; in the next, the student will represent the other side on the same issues.”  Darby Dickerson, In re Moot Court, 29 Stetson L. Rev. 1217, 1220-21 (2000). 

While former Judge Kozinski took issue with off-brief arguments in his oft-cited attack on moot court, In Praise of Moot Court-Not!, 97 Colum. L. Rev. 178, 185 (1997), many scholars praise off-brief arguing for law students in moot court competitions.  For example, Professor Vitiello explains:  “Students must be able to argue [both] positions because lawyers must be able to anticipate and rebut their opponents’ arguments.  A lawyer who lacks that skill cannot adequately represent her clients.”  Michael Vitiello, Teaching Effective Oral Argument Skills: Forget About the Drama Coach, 75 Miss. L.J. 869, 898-99 (2006).  Similarly, Professor Hernandez reasoned:  the “legal profession should encourage any instruction that prepares law students to avoid the temptation to become a mere hired gun in practice. By requiring competitors to argue off-brief and thereby thoroughly analyze all sides of an issue, moot court competitions provide such valuable training.”  Michael Hernandez, In Defense Of Moot Court: A Response to “In Praise of Moot Court--Not!”, 17 Rev. Litig. 69, 76-77 (1998). 

Moreover, top appellate law firms and appellate departments often hold internal moot courts before particularly important oral arguments, and require attorneys to argue both sides of the case to colleagues serving as mock judges.  While “attorneys generally cannot afford to formulate complete arguments for the other side, primarily because of constraints on time and client resources,” this is a wonderful technique when feasible.  See id. at 74.

The advantages of off-brief oral argument translate well to written work.  Although the scholarly writing in this area focuses on appellate oral advocacy, we all know written briefs carry much more weight than oral argument on appeal.  See, e.g., Ruggero J. Aldisert, Winning on Appeal: Better Briefs and Oral Argument 305 (2d ed. 2003).  A winning brief, like a good oral argument, must “anticipate points of weakness and . . . take preemptive steps to diffuse the force of opposing arguments” just as an off-brief oral argument teaches.  See generally Hernandez, 17 Rev. Litig. at 77.  

Thus, as practitioners and teachers, we can do more than simply edit for and generally teach how to incorporate counterarguments into briefs.  Instead, we should ask our students, and our brief drafters, to create as much of the argument for the other side, in writing, as budget allows. 

For example, in my upper-division legal drafting classes, I often use contract disputes for my final brief projects and ask students, as part of an ungraded assignment, to draft the contract provisions in dispute first to favor their opponent, and then as perfect clauses for their client.  Once I added this relatively quick component to the class, I saw the students’ briefs on the contract issues improve dramatically.

In my first-year classes, I similarly ask students to draft arguments for their opponents.  I frequently use brief and memo problems from prior years for teaching simulations, to avoid any honor code issues from using a current, graded assignment.  Merely asking students to outline or draft bullet points articulating the best arguments for the other side of these past papers can help students see better ways to craft their own graded assignments.  Students have shared with me how much they enjoyed being “forced to see the other side” this way.  And if you are very short on time, consider holding a quick in-class or law firm lunch-time moot court, with advocates presenting the best arguments for an opposing side, even without much prep time.  This exercise can reap large benefits by forcing advocates to acknowledge an opponent’s best points and to draft briefs better refuting those arguments.

Have you used an off-brief technique to enhance your writing or teaching?  Feel free to share your ideas in the comments. 

Award-winning Supreme Court Briefs

In the fall, my University of Houston colleagues Lauren Simpson and Kate Brem and I led an appellate brief writing session at the Fifth Circuit Bar Association. As a part of our presentation, we looked at Supreme Court briefs currently before the court. For example, as we discussed organization and point headings we looked at two briefs filed in the DACA case on the same side and compared the choices made by the attorneys. The practitioners seemed to appreciate the timeliness and relevance of these examples.

Reviewing example briefs is an important way that we grow as writers. Whether you are a practitioner looking to improve your own writing by reviewing others’ work or a professor looking for samples to show your students, it can take a great investment of time to review large numbers of briefs in order to find a worthwhile sample. It can also be difficult to determine which briefs are worthy of emulation.

As mentioned in last week’s Appellate Advocacy Blog round up, the National Association of Attorneys General has selected 3 briefs from 37 entered to receive the 2019 Best Brief Award.

As reported by the press release the winners are:

Missouri: Missouri’s Brief of Respondents in Bucklew v. Precythe, No. 17-815. The authors were State Solicitor D. John Sauer, Deputy Solicitors Joshua M. Divine, Julie Marie Blake, and Peter T. Reed, and Assistant Attorney General Michael Joseph Spillane. It is available here: https://www.supremecourt.gov/DocketPDF/17/17-8151/59531/20180815123218044_2018-08-15%20-%20Bucklew%20v.%20Precythe%20-%20Brief%20of%20Respondents%20-%20FINAL.pdf

New York: New York’s Brief for Government Respondents in Department of Commerce v. New York, No. 18-966. The authors were Solicitor General Barbara D. Underwood, Deputy Solicitor General Steven C. Wu, Senior Assistant Solicitor General Judith N. Vale, Assistant Solicitor General Scott A. Eisman, Chief Counsel for Federal Initiatives Matthew Colangelo, and Acting Chief for Civil Rights Bureau Elena Goldstein. It is available here:
https://www.supremecourt.gov/DocketPDF/18/18-966/94985/20190401162454070_18-966%20Govt%20Resps%20Brief.pdf

Virginia: Virginia’s Brief of State Appellees in Virginia House of Delegates v. Bethune-Hill, No. 18-281. The authors were Solicitor General Toby J. Heytens, Principal Deputy Solicitor General Matthew R. McGuire, Deputy Solicitor General Michelle S. Kallen, and Brittany M. Jones.
It is available here: https://www.supremecourt.gov/DocketPDF/18/18-281/81988/20190128154131232_Va.%20House%20of%20Delegates%20Bethune-Hill%20State%20Appellees%20Brief.pdf

These briefs were selected by a panel of ten Supreme Court experts. I have reviewed these three briefs, and all can be useful learning tools if you are looking for some strong models. The Missouri brief deals with an 8th Amendment challenge to an execution method, the New York brief deals with adding a citizenship question to the census, and the Virginia brief deals with standing in the gerrymandering case. All three demonstrate the hallmarks of effective brief writing. They are well organized, use point headings effectively, are persuasive and clear on what they are asking for, and make complex topics understandable. I'm looking forward to pulling examples from these briefs for my students. Congratulations to these winners!

On Your Feet: Some Simple Steps to Presenting in Person

Oral argument seems to be going by the wayside (especially in federal courts). Many judges have stopped allowing them altogether.

Some folks are critical of this shift, but consider that in surveys, most judges say that oral arguments change the outcome in only a tiny fraction of cases. We can also wonder how online courts might change things on the oral advocacy front. Will we see even less oral argument as disputes are shifted to online platforms and out-of-sync written submissions? 

We can wonder about whether oral arguments will continue mattering so much—but the same can’t be said for in-person presenting. Nearly every lawyer of every kind verbally presents information on the regular. Whether it be to clients, senior attorneys, the government, or in-house stakeholders. For some legal jobs, presenting is more of the day-to-day than writing.

So oral presenting skills matter to us all. It just may not be in court. The good news is that the skills mostly translate. Get good at presenting complex information to a judge and doing the same for others will be a breeze. Whether you are a newer lawyer and still getting the feel of talking on your feet, or an old hat. Here are some thoughts for building this skill. 

1.      Following along when someone is talking is tough. So make it easier. 

Roadmap regularly. Repeatedly remind your listeners where you are, where you’ve been, and where you’re going. Most lawyers shirk this tool. But your listener is breathing a sigh of relief every time you reorient them. 

Break down anything complex into multiple steps or discrete points. Give your reader that framework ahead of time.

Talk slowly and take your time. It seems like a lot in your head, but the points that matter are probably few. Better to step carefully and make sure you do a good job walking through the important stuff. 

Spoon-feed information one bit at a time. The more you pack into sentences or cram together without a thought break, the harder it’s going to be for your listener.

Try to be chronological when you can. About facts. About caselaw. About arguments. 

If the facts matter, turn them into a story at the outset.  That will be much easier for your listeners to remember and keep track of. 

Build rule frameworks that lead to the outcome you want. This means breaking down complex rules into smaller chunks, delivering those chunks one at a time, and framing the rule in a way that the good and bad facts will slot right in. 

2.      Accept that you aren’t getting through everything that’s in your head or in your document.

That is not the point; the point is to convey key ideas and to answer questions and concerns for your listener. Prioritizing is pivotal—both when preparing your presentation and during it.

3.      Be credible.

Your credibility is everything. Be humble but confident in your positions. Concede thoughtfully. Don't exaggerate or oversell.

The gold standard is when a judge or other listener starts to view you as a respected colleague and becomes genuinely curious about what you think.

4.      Body language communicates about as much as what you say.

Learn the basic ways to communicate confidence, openness, and thoughtfulness (voice tone, voice volume, posture, movements, eye contact, verbal fillers, and more).

Use a conversational tone like you would with a respected friend. You need to emotionally connect with your listener, if possible. So use familiar language and avoid legal formalism and jargon.

Be enthusiastic. Judges want lawyers to care about the law, care about the case, and care about the issues they are arguing about. Put some inflection in your voice. Speak loudly enough to be heard. At least pretend you're interested. 

Make eye contact. Judges want you to look at them. When you gaze off into the distance, they feel like you are talking at them. Keep eye contact for 5-7 seconds at a time. Then switch to other listeners (if there are any) or occasionally look at your notes to make sure you’re on track. You don’t want to stare down the judge, either.

Some gestures are ok—but keep them in a box. Keep your hands and arms in a 2-foot by 2-foot box around your midline. Don’t flop your hands all over. And use movements to emphasize or help support your points. 

Facial expressions matter. Try to smile some. And whatever you do, don't say things with your face that you wouldn't with your words (like that your listener is crazy).

5.      Get off on the right foot.

Craft a pithy start.  A great oral argument starts with a line or two that sums up your theme and makes an impression. This is true for oral presentations, too. 

“Malicious prosecution requires the plaintiff to prove there was no probable cause, and this court has repeatedly said that this is a ‘strict requirement.’ The plaintiff didn’t even try to submit evidence about probable cause here, voluntarily dismissing her case because, in her words, she ‘didn’t have the evidence.’”

Roadmap at the start. List off the high-level issues you will cover in the argument. Don't ignore how helpful this is like many lawyers do. 

6.      End on a good note.

There are two types of conclusions. Quick and packaged. Either way, be specific with what you want the court to do. Quick conclusions are when you’ve run out of time and need to sit down. If so, say something like “For all these reasons, we ask that the court dismiss the complaint.”

Packaged conclusions are for when you have some time. There, you should have a nice, prepared finish that wraps in your theme.

“Your honor, the courts have held, three times now, that an allegation of ‘general fraud’ isn’t enough, and that is all we have here because X and Y. So we ask you to dismiss.”

7.      Answer questions first and well.

It's hard to fathom why so many experienced lawyers ignore a basic, common-sense, self-serving truth: Questions are your friends. They tell you what your listener cares about. And what your listener cares about, you should care about. Your priority in nearly every in-person presentation, and especially oral arguments, should be to answer questions and turn your listener's concerns and confusions into a conviction that you are right. Answer questions before moving on to what you think matters. 

Deliver packaged answers. Instead of word vomiting everything you can think of to answer a question, try to come up with a sentence or two that sums up your answer. Like a headline. So many lawyers lose their listeners during long, convoluted answers. 

“Yes your honor. Because Park v. Gesmundo held that claims like these are barred. [more explanation, if you need it, detailing this headline]”

8.      Manage your anxiety.

Most of us are anxious (or downright panicked) about public speaking. You can't ignore that; you need to work through it. Anxiety is both physical and mental. And there are easy ways to work on both ends. Here are some proven methods that work:

Control your breathing. When you feel yourself panicking, take a couple of minutes to do a breathing regimen. A tried-and-true method is the 747:

1. Count to 7 as you breathe in;
2. Hold the breath for 4;
3. Count to 7 as you breath out;
4. Repeat six times.

You can do this right before your argument, but it’s even more effective if you do it each time you have anxiety at the thought of the argument. Train your brain to stop the anxiety response. I’ve used this simple technique with hundreds of law students and lawyers. And it works every time.

Next to breathing techniques, visualization is one of the best tools to combat fear and anxiety. To get the most bang for your buck, try to imagine for all your senses: smells, sights, sounds. Visualize the argument going well, feeling good about it, and getting excellent feedback.

Talk (nicely) to yourself. Self-talk has a lot of science behind it. Don’t be negative—your psyche starts to believe you. Reassure yourself.

Create some rituals around your public speaking. By having a ritual and practicing with it, you start to train your body and mind to get to the same centered state when the ritual is triggered. It can be as simple as bringing a favorite pen or a giving yourself a quick affirmation. Some neat research supports rituals like these. 

Practice in unfamiliar locales. Real public speaking often happens in unfamiliar places and sometimes without much warning. So emulate those uncomfortable aspects by pushing yourself to speak in different environments.

Do more public speaking. Embrace the chance to get up and talk and respond. Each time, you hone your skill.

Joe Regalia is a law professor at the University of Nevada, Las Vegas, William S. Boyd School of Law and regularly leads workshops training legal writing and technology. The views he expresses here are solely his own and not intended to be legal advice. Check out his other articles and writing tips here. 

Appellate Advocacy Blog Weekly Roundup Friday, January 3, 2020

Each week, the Appellate Advocacy Blog Weekly Roundup presents a few tidbits of news and Twitter posts from the past week concerning appellate advocacy. As always, if you see something during the week that you think we should be sure to include, feel free to send a quick note to either (1) Dan Real at DReal@Creighton.edu or on Twitter @Daniel_L_Real or (2) Catharine Du Bois at DuBoisLegalWriting@gmail.com or on Twitter @CLDLegalWriting.

Happy New Year!  Wishing the readers of the Appellate Advocacy Blog (and everyone else!) a happy and healthy 2020!

 

Looking for what to watch in your practice area in 2020?  On January 1, Law360’s Appellate News posted a series of what to watch in 2020 in various practice areas. Check it out on the Jan 1 postings here.

US Supreme Court Opinions and News:

• Chief Justice Robert’s 2019 Year-End report on the Federal Judiciary was published Tuesday. Find it here.  In it, he calls on his judicial colleagues to “each resolve to do our best to maintain the public’s trust that we are faithfully discharging our solemn obligation to equal justice under law.”
  
  
• The Hill’s John Kruzel and Harper Neidig posted a report on the 2020 Supreme Court cases to watch. Find it here.
  
  
• The Supreme Court will hear arguments this year in a First Amendment free exercise of religion case concerning the use of public funds in religious schools. The appeal from Montana will ask the court to consider “whether states are free to erect a wall between church and state high enough to exclude religious groups from some state benefits.” See Adam Liptak’s report in the New York Times.
• Court will also hear a decades-long legal battle over water between Florida and Georgia.  Listen to (or read the transcript of) the NPR report here. 

Federal Appellate Court Opinions and News:

• The Second Circuit has raised privacy questions over the government’s warrantless searches of NSA surveillance data.  Although recognizing that the gathering of data is lawful, the court questions the searching of that data, characterizing it as more like under a “general warrant.”  The court wonders, “[i]f such a vast body of information is simply stored in a database, available for review … solely on the speculative possibility that evidence of interest to agents investigating a particular individual might be found there, the program begins to look more like a dragnet, and less like an individual officer going to the evidence locker to check out a previously-acquired piece of evidence against some newfound insight.”  See order and reports from Reuters and Washington Post.
  
  
• The Appeals Court for the DC District upheld the designation of Northeast Canyons and Seamounts National Monument, a national monument off the coast of New England.  Fishing groups had objected to the monument because it restricted their fishing area. See ruling here and reports by Maine Public Radio and Cape Cod Times.
  
  
• The Second Circuit ordered resentencing for a “shockingly low” 17-year sentence for an ISIS supporter who attempted to kill an FBI agent.  See reports from NYT, Washington Post, the AP, and Reuters.
  
  
• Finally, the Ninth Circuit has ruled that the label “diet” on a soft drink is not a promise to help you lose weight or keep it under control. The Court refused to allow fraud claims (by the same plaintiff) against both Diet Coke and Diet Dr. Pepper. According to the Dr. Pepper decision,  “[t]he prevalent understanding of the term in (the marketplace) is that the ‘diet’ version of a soft drink has fewer calories than its ‘regular’ counterpart.” However, “[j]ust because some consumers may unreasonably interpret the term differently does not render the use of ‘diet’ in a soda’s brand name false or deceptive,” the court ruled.

Other Appellate News

The NAAG announced the winners of Winners of 2019 Supreme Court Best Brief Awards. Check out the list here

 

Tips to Immediately Improve Your Writing Skills

Developing excellent writing skills requires time, practice, and repetition. As Justice Antonin Scalia once stated, “there is an immense difference between writing and good writing,” and “it takes time and sweat to convert the former into the latter.”[1] Indeed, developing excellent writing skills is a lifelong process; those who write effectively enhance the persuasive value of their arguments and maximize their chances of succeeding on the merits. Below are tips that will enable attorneys to quickly and significantly improve the quality of their writing.

1.    Eliminate the B.S.

Be sure to eliminate unnecessary words. These words add no persuasive value to your argument and they will likely distract or annoy the reader. Thus, you should eliminate words such as “very,” “entirely,” “only,” “really,” and “actually.”

Also, avoid adverbs, adjectives, and over-the-top language. These words do not enhance the quality of your writing or the strength of your argument. For example, do not say “The defendant ran extremely fast in the store.” Say, “The defendant sprinted into the store.”

2.    Outline your argument

 Before drafting a brief, outline your arguments, including the relevant facts that support those arguments. Doing so will enable you to assess whether the brief is organized effectively, flows well, and includes the relevant facts and legal principles.

3.    Write shorter paragraphs and focus on only one point

When drafting a legal document, such as a memorandum or brief, you should draft short paragraphs (e.g., three to five sentences in length). Long paragraphs can distract the reader and thus fail to keep the reader engaged. Indeed, imagine if you were reading a brief and on every page, you encountered a long paragraph that occupied the entire page. Would you want to keep reading?

Additionally, only discuss one point (or element of a legal argument) in a paragraph, and always begin a paragraph with a topic sentence. Thus, do not include multiple legal arguments (or standards) in a single paragraph because it will disrupt the flow and organization of your argument.

Relatedly, avoid block quotes unless absolutely necessary. Some attorneys reserve block quotes for information that they consider exceedingly persuasive or relevant. However, some judges do not read block quotes, which means that they will skip the passages that you consider most important.

4.    Use headings and subheadings

Heading and subheadings enhance the flow and organization of your argument. For example, the four elements of negligence are: (1) duty; (2) breach of duty; (3) direct and proximate causation; and (4) damages. Thus, when drafting, for example, a memorandum, you can organize your analysis as follows:

A.    Duty

B.    Breach of Duty

C.     Causation

        1.    Direct Causation

        2.   Proximate Causation

D.    Damages

When organized in this manner, your memorandum will flow effectively and the reader will easily follow the logic and flow of your analysis.

5.    Write shorter sentences

Shorter sentences engage the reader and keep the reader’s attention. Longer sentences do the opposite. Furthermore, short and direct sentences can effectively emphasize a particularly favorable fact or legal principle. Thus, as a general rule, avoid sentences that are over twenty-five words.

6.    Vary sentence length

Varying the length of your sentences keeps the reader’s attention. If your brief consists of excessively long sentences, the reader will likely become bored. And if you include only short sentences, your writing will be choppy and lack flow. Ultimately, therefore, to ensure that your brief flows effectively (and to maximize its persuasive value), vary the length of your sentences.

7.    Use transition words to enhance the flow of your document

To ensure that your arguments flow effectively, use transition words such as “Furthermore,” “Moreover,” “Additionally,” and “Also.” Doing so enhances the flow and organization of your argument.

8.    Repeatedly re-write and edit your brief, and do so on paper, not a computer

Studies have shown that writers who edit and proofread their work on paper identify more mistakes than those who edit and proofread on a computer.

9.    Don’t change tenses

Be sure to write your sentences in the same tense. Consider the following example:

The plaintiff walked out of the door and the defendant strikes the plaintiff, causing severe injuries.

Although there may be circumstances when changing tenses is appropriate, you should, as a general rule, maintain the same tense.

10.    Be simple and straightforward

When writing any document, you must consider the audience to whom it is directed. Indeed, the tone, complexity, and style of your writing may change depending on, for example, whether it is directed to a client or court. Regardless of your audience, however, you should always strive to draft legal arguments in a simple, straightforward, and easy-to-understand manner. After all, would you want to read a brief that is riddled with ‘SAT’ or esoteric words, and Latin? Of course not.

11.    Use Grammarly or another reputable editing service

Using a reputable editing service, such as Grammarly, can ensure that you identify most, if not all, of the spelling and grammatical errors in your document.

12.    Purchase books that serve as quick and effective reference tools

Be sure to consult references that will assist you in adhering to grammar and style rules. Books such as The Elements of Style by Strunk and White, or the Texas Manual of Style, are easily accessible and effective references to ensure that your writing is free of grammatical or stylistic mistakes.

13.    Read excellent writing

One of the best ways to become an excellent writer is to read excellent writing. The website below, for example, contains briefs written by the Solicitor General of the United States: https://www.justice.gov/osg/supreme-court-briefs.

 

[1] Edward A. Adams, Scalia: Legal Writing Doesn’t Exist (Aug. 9, 2008), available at: http://www.abajournal.com/news/article/scalia_legal_writing_doesnt_exist.

Advice for New Lawyers

Graduating from law school is a significant accomplishment and you should be proud and excited to begin your legal career. Whether you are employed in a private law firm, a government position, or a clerkship, be sure to conduct yourself in a manner that will maximize your chances of achieving success in the legal profession. Below are some tips to help with the transition from law school to law practice.

1.    Understand that ‘soft skills’ are extremely important to your success

Success as an attorney doesn’t depend solely or even primarily on your ability to analyze precedent, apply the law to the facts, or draft persuasive briefs. In the legal profession, attorneys who possess ‘soft skills’ are valued highly and often achieve greater degrees of success. Thus, understand that it’s not just your legal ability that matters. Rather, you must demonstrate to colleagues, judges, and clients that you possess the requisite soft skills to succeed in the profession. These skills include:

• Interpersonal skills
• Teamwork
• Work ethic
• Time-management
• Creativity
• Problem-solving
• Listening skills
• Having a positive attitude
• Coping with stress effectively

Accordingly, focus on developing these and other soft skills because they are essential to becoming a competent and successful attorney.

2.    Don’t be a jerk – you want people to like you

In any organization, one of the most critical determinants of success is whether your colleagues and your clients like you. The following are some, but not all, of the characteristics that enhance your likeability:

• Be humble. It doesn’t matter how highly ranked you were in law school or what law school you attended; being humble demonstrates an awareness that your colleagues are as smart or smarter than you (or at the very least, more experienced) and that you have a lot to learn as a new attorney. 
• Be honest. If you make a mistake, own it and learn from it.
• Be respectful. Treat everyone with respect and kindness. Don’t ever treat the staff poorly. The fact that you have a law degree doesn’t mean that you are superior to or better than those who do not. Indeed, how you treat others reveals much about your character and integrity.
• Never gossip. Gossiping is disrespectful to others and it demonstrates that you cannot be trusted.
• Be receptive to criticism and be willing to learn.
• Be authentic. People don’t want to associate with individuals who are fake or shallow. Be real -- and be yourself.

Put bluntly, don’t be a jerk. In the end, it will negatively affect your career (and probably your personal life).

3.    Work very hard and persevere

In law practice (and in life), those who achieve high levels of success aren’t always or even often the smartest or the most talented. Rather, they work hard. They persevere. They sacrifice. They have the same work ethic and dedication regardless of whether they enjoy a particular assignment. Hard work and perseverance separates you from others and demonstrate your value as an attorney.

4.    Be confident and remember that you control how others perceive you

At the beginning of your legal career, you may feel nervous, insecure, and intimidated. These feelings are normal. It doesn’t mean, however, that you have to convey anxiety and insecurity to your colleagues and clients. You control how others perceive you and, to a degree, you control the opinions that others form of you. As such, be sure to project confidence, conscientiousness, self-awareness, and self-assurance. Your employer wants to know that you are reliable and can be trusted with difficult assignments under high-pressure circumstances. Projecting confidence is essential to gaining that trust.

5.    Continue improving your research and writing skills throughout your career

Excellent research, writing, re-writing, and editing skills are essential to achieving success in the legal profession. As such, dedicate yourself to improving these skills throughout your career. And it doesn’t matter if you obtained an ‘A’ in your legal research and writing classes in law school; becoming an excellent writer is a lifelong process and you should continually strive to improve your research and writing skills.

6.    Communicate honestly and openly with your colleagues

Effectively communicating with your colleagues and clients is essential. For example, if you receive an assignment and you aren’t sure how to complete it, don’t be afraid to ask for help, such as from a mentor that your firm assigns to you or from one of your colleagues. It is far better to ask for help than to complete a project in a substandard manner. And asking for help demonstrates humility and a willingness to learn. Likewise, never promise more than you can deliver or take on too much work. If, for example, a partner asks you to draft a brief on a very tight deadline and you are already extremely busy, be honest with the partner. It doesn’t mean that you are lazy or unwilling to take on a significant workload. It means that you recognize your limitations, which will enable the partner to find someone else who can meet the deadline and complete the brief with the requisite quality.

7.    Accept criticism and failure – and learn from those failures

Even if you graduated first in your class from law school, received a perfect grade point average, and received numerous awards, you will inevitably fail in the legal profession, particularly in your first few years. For example, a partner may be dissatisfied with the quality of your writing on an assignment. Your research memorandum may inadvertently omit a recently-decided and very relevant case. And you may lose a motion because the judge simply disagrees with your position. The point is that you will face criticism and you will experience failure. What matters is how you react to criticism and failure. The most successful attorneys view failure as an opportunity to learn, to grow, and to become better advocates. Thus, don’t be afraid to fail and never waste a failure. Learn from failure. Remember that becoming an excellent lawyer is a process and you have to embrace that process to achieve your goals. So don’t be too hard on yourself. After all, if you cannot accept criticism and learn from failure, you will never grow as a lawyer (or, most likely, as a person).

8.    Set goals and objectives for each day

Lawyers are often very busy and handle many cases simultaneously. To avoid feeling overwhelmed and to avoid mistakes (e.g., missing a deadline to file a motion), be sure, at the beginning of every day, to make a list of the most important assignments or tasks that you must complete. Although other unexpected assignments may arise during the course of a day, make sure that you complete the assignments on your list. In short, you must be organized. Prioritize your tasks and give yourself sufficient time to produce a high-quality product.

9.    Be reliable (always show up on time and always meet deadlines)

As a new attorney, you must demonstrate that you are reliable and trustworthy. Gaining trust begins by always being on time for a meeting or a deposition. If, however, you will be late in a given situation, be sure to communicate with your colleagues and have an exceedingly persuasive reason for your lateness. And never miss a deadline, such as for the completion of a memorandum or brief. When you miss deadlines, it gives the impression that you did not dedicate sufficient effort to completing the assignment in a timely manner, did not prioritize effectively, were not organized, or simply didn’t care.

10.    Pay attention to detail

Excellent lawyers pay attention to every detail, no matter how seemingly minor or inconsequential. As a new lawyer, you demonstrate your reliability and trustworthiness by paying attention to detail. For example, make sure that your brief complies with state or local court rules governing font type and size, and word count. When drafting a memorandum, be sure to include precedent that is not favorable to your position and explain why it does not affect your conclusion. When you bill time for a particular case, make sure that you specify in detail the tasks that you completed. Paying attention to detail demonstrates that you are conscientious and thorough in your work.

11.    Find a healthy balance between your professional and personal life

At the end of the day, what matters most is that you are happy. A critical aspect of being happy as a lawyer is finding a healthy balance between your work life and your personal life. If you become consumed by your work, your personal relationships will suffer. You will miss out on important events in your family. You may become burned out and no longer enjoy practicing law. Your health may suffer. For these and other reasons, you should strive to achieve a healthy balance between your professional and personal life that enables you to have healthy relationships and pursue other interests.

12.    Take care of your health and well-being – and ask for help if you need it

The practice of law can be very stressful at times. You may, for example, have to draft multiple briefs on very tight deadlines while also conducting depositions, appearing in court, and meeting with clients. To best prepare yourself to handle the stress of law practice, you should focus on being as healthy as possible. Take time to exercise. Eat healthy foods. Practice meditation or yoga (or whatever works for you). Get sufficient sleep each night because a lack of sleep will likely impact the quality of your work. And remember that coping with the stress of law practice with alcohol or other substances will cause you great harm over time, both professionally and personally. If you are struggling with alcoholism or drug abuse or suffering from depression, anxiety, or other mental health issues, please ask for help. Most jurisdictions have organizations that assist attorneys on a confidential basis. Additionally, you can seek psychological or psychiatric help, which can help you to develop coping mechanisms or provide you with medication in appropriate circumstances. Whatever you do, prioritize your health and happiness because both are perquisites to achieving success as a lawyer.

13.    Remember that your reputation is everything

In the legal profession, and in most professions, your reputation is everything. You should always conduct yourself in an honest and ethical manner, and demonstrate that you have integrity and strong values. Don’t ever lie. Don’t avoid problems. Don’t try to conceal facts or law from the courts that are unfavorable to your case. Don’t promise your client more than you can deliver. Don’t gossip about your colleagues. Don’t take credit for work that you didn’t do. Remember that your credibility as a lawyer is essential to maximizing the chances of success for your clients (and it shows that you are a decent human being).

14.    Be cautious about dating your colleagues       

In law practice, you’ll spend a significant amount of time with your colleagues and make meaningful friendships. But be careful about dating or getting into a relationship with one of your colleagues. If your relationship is not successful, it could lead to an awkward environment at work and distract you from your work. Of course, this is not always the case, but as a new attorney, it is advisable to keep your professional life separate from your personal life.

15.    Network and get to know your colleagues

Get to know your colleagues and the members of the bar in which you are practicing. Attend your firm’s social events and those sponsored by your bar association. Getting to know people in your profession enables you to establish connections in the profession and demonstrates your interest in becoming a valued member of the bar. But in doing so, don’t be fake or superficial. Be yourself. Be real. Be friendly. Be humble. Be respectful.

16.    Remember that it’s about how happy you are, not how much money you make

Don’t focus solely on making money. The legal profession provides you with an extraordinary opportunity to positively affect the lives of other people and your community. The best way to contribute meaningfully to the lives of others is to pursue what you are most passionate about, not what will make you the most money. Accordingly, you should evaluate whether you are happy at your firm or whether you are satisfied practicing in a particular area of the law. At the end of the day, your happiness – and health – matters more than anything else. Thus, don’t force yourself to stay in a job that you dislike or give up on dreams that you’d still like to pursue. Although change (and the resulting uncertainty) is difficult, you’ll be much happier pursuing goals that you truly desire rather than resigning yourself to a job that doesn’t satisfy you.

17.    Focus on what you can control and don’t waste your time lamenting the past or worrying about the future

The best attorneys learn from their mistakes but do not lament about the past. They do not spend time worrying about the future. Instead, they live in the present and focus on what they can control. You should do the same because it empowers you to devote your attention to excelling at your current responsibilities. After all, if you cannot change the past or predict the future, why should you devote any attention to either? Doing so only compromises your ability to succeed in the present.

Ultimately, listen to your inner voice and do what makes you happy. Life is short, so live it the way you truly desire.

 

 

Are You Ready For Internet Courts?

"[I]f we are to stand any chance of clearing the backlogs around the world and are serious about access to justice, we will need to look beyond human beings assembling in hearing rooms." - Richard Susskind

 

There's been a lot of talk lately about online courts. They can take many forms, but the basic idea is that everyone avoids trekking down to the courthouse and instead attends hearings virtually. The more robust versions are asynchronous: Evidence and arguments are submitted by a deadline and judges render decisions on their own schedules. Many predict that soon AI platforms will handle some small matters with just a little human oversight.

If this sounds like hype: China's "internet courts" have now litigated cases for more than a million people. Think about that. How much strain would a system like that take off the federal and state judiciary?

Richard Susskind has a new book out on this topic and an excellent post dishing up the takeaways. According to Susskind:

"If you plan to be a litigator, you should know that most disputes in the future will be resolved in online courts rather than in physical hearings."

It's hard to argue with him. Setting aside that he's been right about this stuff before--online courts make sense, right? There's a lot of waste in the brick and mortar model. Like much of the AI hype, I'm skeptical about whether we'll be using AI judges anytime soon. But online dispute resolution seems nearly inevitable. And if some of the small tasks can be handled by more sophisticated programs--why not? 

On the skills side, the rise of internet courts will matter. If nothing else, writing will become even more important to lawyering (and given that writing is already much of the game, that's saying something). 

How would you litigate a case differently if you knew: 

• You would never meet the judge in person; 
• Your writing would be all that your decisionmaker ever sees of you; 
• You would never have the chance to verbally explain the evidence; 
• Whether you passed certain case hurdles might be decided by an automated program; 
• The decisionmaker would see all of your arguments and evidence on a screen; 
• The decisionmaker would never see your client in person; and
• Lots of other things I'm not thinking of. 

Joe Regalia is a law professor at the University of Nevada, Las Vegas, William S. Boyd School of Law and regularly leads workshops training legal writing and technology. The views he expresses here are solely his own and not intended to be legal advice. Check out his other articles and writing tips here. 

 

Appellate Advocacy Blog Weekly Roundup Friday, December 20, 2019

Each week, the Appellate Advocacy Blog Weekly Roundup presents a few tidbits of news and Twitter posts from the past week concerning appellate advocacy. As always, if you see something during the week that you think we should be sure to include, feel free to send a quick note to either (1) Dan Real at DReal@Creighton.edu or on Twitter @Daniel_L_Real or (2) Catharine Du Bois at DuBoisLegalWriting@gmail.com or on Twitter @CLDLegalWriting.

A short post this penultimate week of 2019, crafted between grading final papers and sharing the winter break with family. 

US Supreme Court Opinions and News:

• The Supreme Court won’t hear the challenge to the Kentucky abortion ultrasound law. The law requires women seeking abortions be given ultrasounds and requires doctors to describe the ultrasounds to the women. Doctors argued that the law violated the First Amendment. The decision leaves the law in place. See reports from NYT, Washington Post, and AP.

• As a follow-up to the previous posts following this issue: the Supreme Court refused the Justice Department’s request to stay the DC District Court order that blocked four federal executions.  The Court recognized that “it would be preferable for the District Court’s decision to be reviewed on the merits by the Court of Appeals for the District of Columbia Circuit before the executions are carried out.” See order here.

• The Court also will not hear the appeal of the Ninth Circuit decision protecting the homeless who sleep on sidewalks, leaving that protection in place. As this column noted previously, the Ninth Circuit held that it was cruel and unusual punishment for a city to “prosecut[e] people criminally for sleeping outside on public property when those people have no home or other shelter to go to.” Opinion p. 4.  The Ninth Circuit noted that “just as the state may not criminalize the state of being homeless in public places, the state may not criminalize conduct that is an unavoidable consequence of being homeless — namely sitting, lying, or sleeping on the streets.” See reports from Washington Post and Reuters.

Federal Appellate Court Opinions and News:

• This week, the Fifth Circuit ruled on the constitutionality of the Affordable Care Act, holding that the individual mandate is unconstitutional but remanding the issue of severability; thus leaving the law intact for now.  See reports from CNBC, Washington Post, and NYT.

• The Second Circuit ruled last week that, in limited circumstances, landlords can be liable for one tenant’s racial harassment of another tenant. The decision holds that, under the Fair Housing Act, landlords can be liable if they fail to address tenant-on-tenant race discrimination in the building.  See report from AP and Court House News.

• The Court of Appeals for the DC Circuit rules that the FDA can regulate e-cigarettes just like conventional cigarettes in this December 10 decision.  The decision recognizes that e-cigarettes are “indisputably highly addictive and pose health risks, especially to youth, that are not well understood.” See Washington Post report here.

• According to the District Court for District of Utah, American Samoans are citizens at birth, not non-citizen nationals. See order and CNN coverage.

Persuasion Is in the Eye of the Beholder: The Value of Giving the Audience What It Wants, Not just What You Think It Needs

Being a persuasive advocate depends on many things, including the strength and appeal of the message, the delivery, and the audience. This post focuses on the value of considering audience preferences to increase persuasiveness. People are persuaded the most by what they value or what resonates with them. We know from systems like Emergenetics¹ and Myers Briggs² that people have preferences in what types of information they value in decision making. To generalize, some people focus on data to drive their decisions, so an argument that would most resonate with such a person would be an argument that is grounded in data. Others value the impact that a decision might make on a group of people, so an argument that explains the impact of a decision on that group would be best. Others value process and consistency, and still others focus on the big picture, such as moving the law forward for the most people. While the advocate will not have a psychological profile on each judge or audience member in advance of an argument, the advocate would be wise to learn about and recognize the different personality types and ensure that arguments are given that provide a little bit of everything to appeal to the various preferences identified. Moreover, as the advocate learns what motivates the decision maker, the advocate should adjust arguments accordingly.

When an advocate appears before a judge frequently, the advocate may learn what the judge tends to value. Just as important, if not more, the advocate must use listening skills to learn what a judge or judges value during an argument. Listening to questions coming from a judge or other decision maker, the advocate can identify and then address the judge’s concerns. When a judge asks a question, the judge is identifying to the advocate his or her concerns or the concerns of other audience members. Too many times, advocates prepare and deliver arguments without adjusting to address these concerns, missing the opportunity to provide the information that will most resonate with the judge. Agility by the advocate can pay dividends in persuasiveness.

For example, some of the most agile advocates are teenagers who become expert at reading their parents’ unspoken reactions and adjusting their arguments to address their parents’ concerns. The teenager wants to attend a party on a Friday night and begins the argument to the parent by explaining that the parent should allow the teenager to attend the party because everyone will be there. The parent reacts negatively to this argument. The savvy teenager then pivots to an argument based on how attending the party will give the teenager an opportunity to get to know some of the parent’s friends’ children. If this argument works, the teenager closes. If this argument does not work the teenager shifts to an argument based on how attending the party will put the teenager in a better position to get elected to a school position the teenager knows the parent would like the teenager to hold. This dance continues until either the teenager persuades the parent or the parent ends the conversation. The teenager is not likely trained in advocacy; the teenager instinctively realizes that he must appeal to what the parent values to get his way.

In the same way, the advocate needs to listen and be attentive to judges’ concerns and cues. After all, the advocate wants to provide the information the judge needs to find for the advocate’s position. Research shows that decision makers are most persuaded when “requests are congruent with our values, self-image, and future goals. In other words, people are easily persuaded of that which they wanted to do in the first place.”³ 

Therefore, to increase persuasiveness, advocates need to speak to the judge in the language that will most resonate with that judge. Advocates can benefit from studying the personality systems referenced herein, which provide information on how best to give each judge or audience member what he needs to make decisions.

¹See Emergenetics International, www.emergenetics.com.
²See The Myers & Briggs Foundation, https://www.myersbriggs.org/my-mbti-personality-type/mbti-basics/home.htm?bhcp=1.
³Tomas Chamorro-Premuzic, Persuasion Depends on the Audience, Harvard Business Review, https://hbr.org/2015/06/persuasion-depends-mostly-on-the-audience (June 2, 2015).

Three Lessons from a Viral Oral Argument

Oral arguments rarely make the news. Normally, the advocates and the court are staid and respectful, the issues are esoteric, and the only discussion following is from law wonks and Appellate Twitter members discussing the finer points of the argument and reading tea leaves. But occasionally, something so extraordinary happens that the oral argument catches the attention of a much wider audience.

Last week, an oral argument went viral after an advocate was removed from the courtroom following a very truncated oral argument. Lawyers, law students, and even those not involved in the law are talking about the event. So while people are thinking about oral arguments, I thought it would be good to learn a few lessons from what happened.

1.    Respect the Tribunal, Even if you Disagree.

The easiest lesson to draw from the argument is that respect for the court must be shown at all times, even (and especially) when you are frustrated. Oral argument can be a very tense experience, with rapid-fire questions from a seemingly hostile bench. The presenter, however, cannot be equally hostile.

This seems unfair. After all, most of us argue that an oral argument should be more like a conversation than a presentation, and in a conversation, if someone fires at you, you fire back. But this is not a conversation between equals. This is a conversation between advocates and a tribunal. The tribunal gets the last word on our client's fate, and we, as attorneys, have obligations to help uphold public trust in that tribunal, whether we agree with its rulings or not.

Thus, when we disagree with a tribunal, we have to make every effort to disagree with the tribunals' reasoning, not with them personally. And when the advocate in the video seemingly implied that the judge had not "done his homework" by reading the briefing, the panel believed he did just that.

2.    Do Not Assume that Questions Show the Panel Has Made Up Its Mind.

Another lesson to draw is that we should not be quick to assume that a given question means that a panel has either made up its mind, or that it has not read our briefing. Questions can come from a variety of motivations. They can signal that the Court does not know the answer, as the advocate here assumes. But they can also be a way for the panel to test the strength of an argument, or even as a way for the judges to open up a discussion they have already had behind closed doors.

Whatever the motivation behind a question might be, we need to see questions as opportunities. If the Court actually does not know an answer, we have not communicated that point well enough, and the Court is giving us an opportunity to explain it. If the Court is asking the question to test the strength of our argument, we need to demonstrate that strength. If the questioner is trying to flag a discussion with another panelist, then you now have an opportunity to advocate for your client in that discussion. These are all good things, and we need to keep that mindset in place even when being hard pressed.

3.     Know When to Keep Quiet.

After the Appellant in the recording had his exchange with the Justice and had been told to sit down, I couldn't help but keep muttering "stay quiet, stay quiet!" to myself as the Appellee approached the podium. The best thing that the Appellee could do was what he did - stand up, introduce himself, and say that he had nothing to add.

It is difficult to scrap your written outline and preparation, but there are times when that is the best move. When an Appellant has had a bad exchange with the panel, and the panel seems to have made up its mind (but be wary of lesson 2!) it may be best for that exchange to be the last thing the panel hears.

Oral argument is designed to raise issues not addressed in the briefing. If the advocate had stood up and tried to justify his client's position after that exchange, he risked doing just that. By staying quiet, he avoided that potential.

He also negated any need for a rebuttal. Although the panel said that the Appellant had "waived" his right to rebuttal by his comments, there really was no need for a rebuttal, because the Appellee had given nothing to rebut. This silence may also be useful when an Appellant appears to have withheld a point in order to make it more strongly in a rebuttal. If you don't address anything that can be rebutted, you can take away that opportunity to have a scripted "parting shot" in rebuttal.

Arguments like this one are, thankfully, rare. Hopefully, by learning from them when they arise, we can keep them that way.

(image credit: Honore Daumier, "Une peroraison a la Demosthene," plate 33 from Les Gens de Justice, November 1, 1847)

Writing an Outstanding Appellate Brief

The most critical factor that influences an attorney’s likelihood of succeeding on appeal is the quality of the appellate brief. Indeed, the appellate brief is, in the vast majority of cases, far more important than oral argument. Thus, drafting a well-written and persuasive appellate brief is essential. Below are tips on how to draft an outstanding appellate brief.

1.    Frame the issue to maximize the persuasiveness of your argument

One of the most important aspects of writing an outstanding appellate brief is to frame the issue (or question presented) in a manner that makes the court want to rule in your favor. Of course, when framing the issue, do not be dishonest or hyperbolic. Instead, carefully present the issue so that it supports the remedy you seek. For example, assume that you represent a client who suffered injuries after slipping on ice in the parking lot of a Whole Foods supermarket and the lower court dismissed your case via summary judgment. When drafting the question presented, consider the following examples:

“The case involves whether the Appellee is liable for negligence”

                                                            versus

“Is Whole Foods liable for injuries that a customer suffered after slipping on ice that Whole Foods failed to remove from its parking lot?”

The second example is far more persuasive than the first because it includes part of the factual background, particularly that Whole Foods failed to remove a dangerous condition from its parking lost that resulted in injuries to a customer. The first example does nothing but merely present the legal issue without any context whatsoever.

2.    Simplify the issue and argument

Regardless of the complexity of a case, attorneys should always try to simplify the issue and arguments for the court, and thus present them in an understandable and relatable manner. Judges (and clerks) are extremely busy; they read many briefs, some of which are quite voluminous, and will appreciate – and thus think favorably of – attorneys who present the issue and arguments in a clear and straightforward manner.

3.    Have an outstanding introduction

An outstanding introduction sets the tone for the entire brief. If you impress and persuade the court at the beginning of your brief, you will make an excellent first impression, gain credibility, and enhance the persuasive value of your arguments. To draft an outstanding introduction, include the following:

• Draft a powerful opening sentence that explains why you should prevail
• Tell the court exactly what you want (i.e., the remedy you seek)
• Briefly present the most persuasive facts and legal authority that support your position
• Include a theme that connects all of your arguments

Finally, in the introduction, tell the court what you are going to say in your brief and thus provide the court with a roadmap of your legal argument.

4.    Tell a story

Boring briefs, like boring books or movies, will not persuade your audience (the judges). Like everyone else, judges appreciate and will view favorably briefs that use narrative techniques to describe the characters, the setting, and the theme. In so doing, you give context to your arguments, humanize your clients, and provide the court with a realistic portrait of the facts. In other words, don’t simply recite the relevant facts and law. Tell a good story. Otherwise, judges may merely skim your brief. When that happens, your chances of succeeding diminish substantially.

5.    Don’t argue the facts (unless absolutely necessary)

Appellate judges defer to the lower court’s factual findings – and for good reason. The lower court is in the best position to evaluate the evidence and make an informed decision regarding the facts. Thus, in your brief, do not argue the facts unless your issue involves a factual determination. But that should be the exception, not the rule. The most successful appellate briefs typically focus on attacking an issue of law, not fact.

6.    Know the standard of review

Be sure to know the standard of review that the court will use to decide your case (e.g., abuse of discretion, de novo, clear error). The standard of review is critical because it provides you with the criteria upon which the court will evaluate your arguments, such as the level of deference that will be afforded to the trial court’s findings. As such, your arguments should always be drafted in light of the relevant standard of review.

7.    Be honest and acknowledge unfavorable law and facts

Don’t make the mistake of concealing unfavorable law or facts. The court (or its clerks) will find the law or facts that you omitted, and your credibility will diminish substantially when questioned about the omission. Instead, acknowledge unfavorable law or facts and explain why they do not affect the remedy you seek. In so doing, you will garner credibility with the court and have the opportunity to address issues that your adversary will surely raise in the opposing brief.

8.    Only present strong legal arguments

Be selective regarding the legal arguments that you include in your brief. Weak arguments detract from the credibility of your brief and the strength of your arguments. Thus, do not “throw in the kitchen sink” and hope that the court will support one of your arguments. For the same reason, be careful about arguing in the alternative. If you do, make sure that your alternative argument is sufficiently strong to merit inclusion in the brief.

9.    Write, re-write, and edit your brief

Appellate briefs should be well-written and avoid the common mistakes that are characteristic of poor writing. For example, don’t be repetitive. Avoid block quotes. Eliminate unnecessary words and adjectives. Don’t use over-the-top language, or attack your adversary or the lower court. Avoid long sentences (i.e., those over twenty-five words) and long paragraphs. Delete complex or esoteric words. Be concise. Avoid footnotes. Make sure that your brief is well-organized and flows logically. And remember that, no matter how strong your legal arguments, bad writing will detract from the persuasiveness of those arguments, which can result in losing the appeal.

10.    Don’t overwhelm the court with needless legal authority

Be sure not to include unnecessary or repetitive legal authority. Thus, do not include string cites that have little or no persuasive value unless you intend to discuss the facts of those cases and explain why they are relevant. For example, when citing well-settled legal propositions (e.g., the negligence standard), there is no need to cite ten cases. Cite one or two cases and make sure that, in the cases you cite, the courts reached outcomes that are consistent with your position. Additionally, unless your case involves a truly unsettled legal issue, be careful of reasoning by analogy because courts will often easily distinguish cases from a different area of the law. The best approach is to discuss the cases most relevant to your issue and explain why they support the outcome you seek.

11.    Don’t use boilerplate conclusions

Make sure that the conclusion of your brief is as powerful as the introduction because you want to leave the court with a favorable impression of your argument. For example, do not simply state, “For the foregoing reasons, the district court’s decision should be reversed.” This says nothing. Instead, in a few sentences, provide the strongest factual and legal bases for granting the relief you seek

12.    Put yourself in the adversary’s and court’s shoes

When drafting an appellate brief, attorneys can become so convinced of the merits of their argument that they lose sight of the opposing arguments, unfavorable facts, or competing policies that the adversary and court will likely raise. Consequently, be sure to objectively evaluate your brief. For example, consider how the court might react to your arguments. What questions might it ask? What weaknesses might it find? What legal or policy arguments might it raise? Viewing your brief objectively enables you to find weaknesses in your argument and revise your brief to effectively address those weaknesses.

13.    Read great appellate briefs

If you want to become an outstanding brief writer, read excellent briefs before you write. For example, read Chief Justice John Roberts’s brief in Alaska v. Environmental Protection Agency, which Roberts drafted when he was a partner at Hogan & Hartson, LLP (now Hogan & Lovells). Roberts’s brief is truly outstanding and demonstrates how narrative and persuasive writing techniques can be used to create a cogent legal argument. You can read the brief at the following link: https://www.findlawimages.com/efile/supreme/briefs/02-658/02-658.mer.pet.pdf.

This Holiday Season, All Our Appellate Courts Want Is Good, Civil Writing

In this season of giving, we have the gifts of two new scathing appellate opinions on poor persuasion and civility to remind us all our courts really want for Christmas (and any holiday) is clear, ethical writing.  While we have plenty of past examples of appellate courts taking poor writers to task, in November, we gained two more published opinions building on past decisions and reminding us truly persuasive writing is both straightforward and civil.

The blogosphere has already discussed the November 7, 2019 Seventh Circuit opinion in McCurry v. Kenco Logistics, where the court explained:  “Bad writing does not normally warrant sanctions, but we draw the line at gibberish.”  942 F.3d 783, 792 (7th Cir. 2019).  For a fun review of McCurry listing the many biting phrases the court used, including the new signal “(all errors in original),” see Kevin Underhill’s November 8, 2019 blog.  https://loweringthebar.net/2019/11/seventh-circuit-we-draw-the-line-at-gibberish.html.

The McCurry court cited Stanard v. Nygren, 658 F.3d 792, 801–02 (7th Cir. 2011), a Seventh Circuit decision ordering an attorney to should show cause why he should not be disciplined for poor writing and lack of civility.  Counsel in Stanard first gained notoriety representing alleged repeat wife-killer Drew Peterson in civil litigation, and faced criticism for his past litigation tactics.  See Howard Posner, “Mind Your Grammar,” Cal. Lawyer (Nov. 2012).  In Stanard, the court chastised counsel for “Lack of punctuation,” “Near incomprehensibility,” “Failure to follow basic directions,” “Grammatical and syntactical errors,” and incorrect statements of fact and law.  658 F.3d at 797-800.  According to Judge Sykes, who also authored McCurry:  “At least 23 sentences [in the Stanard brief] contained 100 or more words. This includes sentences of 385, 345, and 291 words.”  Stanard, 658 F.3d at 798.   Moreover, counsel’s refusal to follow court orders and lack of respect for the trial court hindered his representation of his landowner client in Stanard.  Id. at 800-02.

For years, I have used Stanard in appellate advocacy teaching to support the idea truly persuasive writing is accurate and precise.  I also use the case to show how lack of civility to the court and others inhibits persuasion. 

Now, we can also point students to McCurry, and we have a new case from California expressly saying lack of civility is unpersuasive.  On November 22, 2019, the California Court of Appeal issued its opinion in Briganti v. Chow, ___ Cal. App. 4th __, 2019 WL 6242111, *1 (Nov. 22, 2019), and ordered the opinion published “to draw attention to our concluding note on civility, sexism, and persuasive brief writing.”  See Debra Cassens Weiss, “Appeals court sees lawyer's reference to 'attractive' judge in brief as a 'teachable moment' on sexism,” http://www.abajournal.com/news/article/appeals-court-sees-lawyers-reference-to-attractive-judge-in-brief-as-a-teachable-moment-on-sexism (Nov. 27, 2019).

Briganti involved, in part, an anti-SLAPP motion regarding claims based on Facebook posts.  2019 WL 6242111, *2-4.   In the trial court, then Superior Court Judge Feuer, now a Court of Appeal Justice, made several rulings for and against defendant Chow, and the Briganti court affirmed those rulings.  Id.  After discussing the merits, the court added an opinion section titled “A Note on Civility, Sexism, and Persuasive Brief Writing,” explaining:  “we would be remiss if we did not also comment on a highly inappropriate assessment of certain personal characteristics of the trial judge, including her appearance, [in] Chow’s reply brief. We do so not to punish or embarrass, but to take advantage of a teachable moment.”  Id. at *4.   

This “teachable moment” was a chance to remind us all sexism, in any form, is unprofessional, unpersuasive, and uncivil.  Chow’s reply brief began with comments Justice Feuer was “an attractive, hard-working, brilliant, young, politically well-connected judge on a fast track for the California Supreme Court or Federal Bench,” noting “[w]ith due respect, every so often, an attractive, hard-working, brilliant, young, politically well-connected judge can err! Let’s review the errors!”  Id. at *4.  When questioned at oral argument, Chow’s counsel “stated he intended to compliment the trial judge.” Id.  Nevertheless, the appellate court concluded the brief “reflect[ed] gender bias and disrespect for the judicial system.”  Id.  According to the court:  “Calling a woman judge — now an Associate Justice of this court — ‘attractive,’ . . . is inappropriate because it is both irrelevant and sexist. This is true whether intended as a compliment or not.  Such comments would not likely have been made about a male judge.”  The court cited the California Code of Judicial Ethics, which compels judges to require lawyers “to refrain from” bias based on gender.  Id. at *5.  As the Briganti court explained, “as judicial officers, we can and should take steps to help reduce incivility,” by “calling gendered incivility out for what it is and insisting it not be repeated.”  Id.

The court ended its opinion:  “We conclude by extending our thanks to the many talented lawyers whose excellent briefs and scrupulous professionalism make our work product better and our task more enjoyable.”  Id  According to Briganti,  good brief-writing “requires hard work, rigorous analysis, and careful attention to detail.”  Thus, while courts “welcome creativity and do not require perfection,” Briganti “simply did not find the peculiar style and content of [Chow’s] brief’s opening paragraph appropriate, helpful, or persuasive.”  Id.

Counsel for Chow appears unrepentant, telling the Metropolitan News-Enterprise the court “totally missed the boat on this one, attacking the messenger . . . for using one generally descriptive word ‘attractive’” and exclaiming “Shame on the DCA! Shame on the DCA!” regarding what used to be called the District Court of Appeal.  MetNews Staff Writer, “Reference in Brief to Female Judge as ‘Attractive’ Is Sexist:  Justice Currey Says Note Is Made of Inappropriateness of Conduct for Instructional Purpose,” http://www.metnews.com/articles/2019/attractive112519.htm (Nov. 25, 2019).  While the Briganti court noted the case did not warrant sanctions, the California State Bar has sanctioned Chow’s counsel in the past.  Id.

Despite the Briganti counsel’s rejection of the opinion, the rest of us can add Briganti to McCurry and Stanard, among others, on our personal lists of cases reminding us all courts really want is clear, honest writing that helps them reach proper decisions.  And for those of us teaching and mentoring new legal writers, these November gifts from appellate courts help us remind young attorneys true persuasion is civil and thoughtful.  Happy holidays!

The Genealogy of Law

In Portage County Board of Developmental Disabilities v. Portage County Educators' Association for Developmental Disabilities,[1]  the Ohio Supreme Court held that a court of appeals should review de novo a trial court judgment confirming, modifying, vacating, or correcting an arbitration award.[2] This case resolved a split among Ohio’s intermediate appellate courts, some of which had held that abuse of discretion was the appropriate standard of review.[3]

But why had the split occurred? What support had the lower courts relied upon to conclude that abuse of discretion was the proper standard of review?

It turns out, there wasn’t any reasoned support for the abuse of discretion standard. The split occurred because courts and advocates had failed to trace the genealogy of the law they were citing or had simply said that abuse of discretion applied without explaining why. This shows the need for both advocates and courts to research the origin of the law being cited to ensure well-reasoned arguments and decisions.

Before the Ohio Supreme Court’s decision in Portage County Board of Developmental Disabilities, three of Ohio’s twelve appellate districts, the Eighth, Tenth, and Twelfth, had held that abuse of discretion was the appropriate standard of review when an appellate court reviewed a trial court’s decision confirming, modifying, vacating, or correcting an arbitration award.[4] So let’s trace the genealogy of the abuse of discretion standard in these three districts.

Ohio’s Eighth District Court of Appeals

Cleveland State University v. Fraternal Order of Police said that abuse of discretion was the appropriate standard of review.[5] The court in Cleveland State cited Citibank, N.A. v. White,[6] which said that abuse of discretion was the appropriate standard but the White court didn’t cite any support for that conclusion or explain why abuse of discretion was the proper standard.

An earlier Eighth District case, Miller v. Management Recruiters International, Inc.,[7] had also applied the abuse of discretion.[8] Miller relied on an Eighth District case, Motor Wheel Corporation v. Goodyear Tire & Rubber Co.[9] But the court in Motor Wheel hadn’t said that abuse of discretion applied; instead, Motor Wheel had recognized that the applicable standard of review was unclear, so the Motor Wheel court reviewed the trial court’s decision under both the abuse of discretion standard and the de novo standard.[10]

Ohio’s Tenth District Court of Appeals

In Dodge v. Dodge,[11] Ohio’s Tenth District Court of Appeals said that abuse of discretion was the appropriate standard of review and cited MBNA American Bank, NA v. E. Paul Jones as support.[12] But the E. Paul Jones court didn’t cite any support or explain why it applied the abuse of discretion standard.[13]

The Tenth District also used the abuse of discretion standard in State of Ohio Department of Administrative Services, Office of Collective Bargaining v. Fraternal Order of Police of Ohio, Inc.[14] That case relied on Licking Heights Local School District Board of Education v. Reynoldsburg City School District Board of Education,[15] which in turn cited MBNA American Bank, NA v. E. Paul Jones.[16] The court in Licking Heights, in citing E. Paul Jones, said that E. Paul Jones cited another Tenth District case, Endicott v. Johrent to support the abuse of discretion standard.[17] While E. Paul Jones had cited Endicott, it did not use Endicott to support the abuse of discretion standard.[18] And Endicott did not say that abuse of discretion was the proper standard of review.[19]

Ohio’s Twelve District Court of Appeals

The Twelve District’s adoption of the abuse of discretion standard appears to stem from the decision of the Ohio Eleventh District Court of Appeals in Citigroup Global Markets, Inc. v. Masek.[20] Masek held that abuse of discretion was the correct standard of review[21] and cited an Ohio Sixth District Court of Appeals decision, Herrendeen v. Daimler Chrysler Corp.,[22] to support the abuse of discretion standard. But Herrendeen didn’t say that abuse of discretion applied—Herrendeen didn’t even discuss the applicable standard of review.[23]

The Masek court also relied on its earlier decision in Rossi v. Lanmark Homes, Inc.[24] The Rossi court did not explain or cite support for its conclusion that abuse of discretion was the appropriate standard of review.

In Buchholz v. W. Chester Dental Group,[25] the Twelfth District cited the Eleventh District’s decision in Masek to support the abuse of discretion standard of review. In re Hamilton cited Buchholz for the same standard.[26]

These cases show the need to trace the genealogy of the law you are relying on. Doing this will allow advocates to develop arguments to support the continued application of precedent or the overruling of precedent. It will also promote the well-reasoned, consistent application of the law.

[1] 103 N.E. 3d 804 (2018).

[2] Id. at 805.

[3] Id.

[4] Dodge v. Dodge, 95 N.E.3d 820, 822 (Ohio App. 10th Dist. 2017), abrogated by Portage County Bd. of Developmental Disabilities v. Portage County Educators' Assn. for Developmental Disabilities, 103 N.E. 3d 804 (Ohio 2018); In re Hamilton v. Intl. Union of Operating Engineers, Loc. 20, 69 N.E.3d 1253, 1255 (Ohio App. 12th Dist. 2016), cause dismissed sub nom. In re Hamilton v. Internatl. Union of Operating Engineers, Loc. 20, 150 Ohio St. 3d 1413 (2017), abrogated by Portage County Bd. of Developmental Disabilities v. Portage County Educators' Assn. for Developmental Disabilities, 103 N.E. 3d 804 (Ohio 2018); and Cleveland State Univ. v. Fraternal Or. of Police, Ohio Lab. Council, Inc., 50 N.E.3d 285 (Ohio App. 8th Dist. 2015), abrogated by Portage County Bd. of Developmental Disabilities v. Portage County Educators' Assn. for Developmental Disabilities, 103 N.E. 3d 804 (Ohio 2018).

[5] Cleveland State Univ., 50 N.E. 3d  at 289.

[6] 99868, 2014 WL 346740, at *3 (Ohio App. 8th Dist. Jan. 30, 2014).

[7] 906 N.E. 2d 1162 (Ohio App. 8th Dist. 2009).

[8] Id. at 1166.

[9] 647 N.E. 2d 844 (Ohio App. 8th Dist. 1994).

[10] Id. at 849.

[11] 95 N.E.3d 820, 822 (Ohio App. 10th Dist. 2017).

[12] Id. at 826, citing MBNA Am. Bank, NA v. E. Paul Jones, 05AP-665, 2005 WL 3485512, at *3 (Ohio App. 10th Dist. Dec. 20, 2005).

[13] MBNA Am. Bank, NA v. E. Paul Jones, 05AP-665, 2005 WL 3485512, (Ohio App. 10th Dist. Dec. 20, 2005).

[14] 89 N.E. 3d 103, 108 (Ohio App. 10th Dist. 2017).

[15] 996 N.E. 2d 1025, 2018 (Ohio App. 10th Dist. 2013).

[16] Id. (“Typically, our review of a trial court decision to confirm an arbitration award is conducted under the abuse of discretion standard. See MBNA Am. Bank, N.A. v. Jones, 10th Dist. No. 05AP–665, 2005-Ohio-6760, 2005 WL 3485512, ¶ 10, citing Endicott v. Johrendt, 10th Dist. No. 97APE08–1122, 1998 WL 212770 (Apr. 30, 1998).”).

[17] 97APE08-1122, 1998 WL 212770, at *1 (Ohio App. 10th Dist. Apr. 30, 1998).

[18] MBNA Am. Bank, NA v. E. Paul Jones, 05AP-665, 2005 WL 3485512, at *2 (Ohio App. 10th Dist. Dec. 20, 2005).

[19] Endicott v. Johrendt, 97APE08-1122, 1998 WL 212770 (Ohio App. 10th Dist. Apr. 30, 1998).

[20] 2006-T-0052, 2007 WL 1395360, at *2 (Ohio App. 11th Dist. May 11, 2007), overruled by Portage County Bd. of Developmental Disabilities v. Portage County Educators' Assn. for Developmental Disabilities, 86 N.E.3d 580 (Ohio App. 11th Dist. 2017).

[21] Id.

[22] L-00-1268, 2001 WL 304843 (Ohio App. 6th Dist. Mar. 30, 2001).

[23] Id.

[24] 94-L-046, 1994 WL 738800, at *6 (Ohio App. 11th Dist. Dec. 30, 1994).

[25] CA2007-11-292, 2008 WL 4541954, at *2 (Ohio App. 12th Dist. Oct. 13, 2008).

[26] In re Hamilton v. Intl. Union of Operating Engineers, Loc. 20, 69 N.E.3d 1253, 1255 (Ohio App. 12th Dist. 2016).

 

 

Gen Z Advocates

Does generational theory have any relevance in Appellate Advocacy? Yes, particularly in its teaching. Dr. Corey Seemiller, an expert in generational theory, recently gave her insights on Gen Z, the cohort born between 1996 and 2010, and how they approach advocacy at the Reimagining Advocacy Conference at Stetson University College of Law. The oldest members of Gen Z are now 24, so many current law students are in this group. Dr. Seemiller's keynote kicked off a weekend-long discussion of how to harness the strengths of Gen Z and bolster some of the weaknesses. Whether you work at a law school with these students right now or are a practicing attorney who will soon have Gen Z colleagues, it’s helpful to learn about some of their strengths and challenges as a group. Dr. Seemiller’s presentation gave the conferenceattendees a shared vocabulary. As a caveat, anytime one deals with generational theory, one deals in broad categories, but individuals and personalities vary. Still, I see applications for how I teach students to work as a team, read materials, approach an audience, and prepare for an oral argument.

So what characterizes Gen Z? Among other things, they are curious, honest, kind, and fair. They are diverse. They have experienced a significant amount of vicarious trauma and do not remember a world before Columbine and 9/11. They are motivated by relationships and by what they believe in. They are constantly connected and often addicted to technology; according to Dr. Seemiller they have an average of 8.7 social media accounts. Gen Z students say that they prefer face-to-face communication, but smart phones have been a part of their world since childhood or birth. They may need coaching in how to have live conversations.

Now that Gen Z has officially arrived at law school, and as we try to train them in appellate advocacy, there is a gap between the advocacy methods they have used and appellate advocacy. Over the last few years they may have engaged in twitter wars, used hashtag activism, and witnessed cancel culture. Appellate advocacy in some ways is the polar opposite of hashtag activism and slogans. Professor Mary Beth Beasley identified mastery as the key to appellate advocacy. Mastery takes focus. When we overburden our short term memories with a constant stream of information (like from a smartphone), we diminish our long term memory capacity. Both long term memory and the ability to build connections between a mass of materials are necessary to effectively advocate at the appellate level. Of course, these skills are important to all of us, but Gen Z has never known a time with out smart phones constantly pulling their attention. Many of these students have not learned to read deeply and sustain prolonged focus. We need to find ways to help them pursue and recognized mastery.

We can also try to harness Gen Zs strengths. Hashtag activism requires the ability to boil things down and be concise, which are helpful skills when thinking about theme. These students care deeply about the causes that are important to them. While they may not be patient in the skills development process, once they see the value in a project, they will buy in.

Gen Z is not alone in being constantly connected to technology; most of us are. So as we prepare to teach the next generation of students how to advocate, we need to consider the way that the audience is changing, too, even though there are not yet Gen Z appellate judges. Ultimately, the boiled down, concise persuasion styles Gen Z gravitates to may be helpful to any audience with a shortened attention span. Fortunately, it’s also good writing. But we need to teach students to achieve mastery, think deeply, and make meaningful connections before they start condensing.

Implicit Bias: Does It Have Any Relationship to Biased Behavior?

In recent years, social scientists have demonstrated that all individuals likely harbor implicit, or unconscious, biases. Additionally, based on empirical research, some scholars contend that laws or policies that disparately impact marginalized groups result, at least in part, from implicit biases. Other studies suggest that certain behaviors, such as statements reflecting subtle prejudice against marginalized groups (e.g., microaggressions) result from implicit biases. As a result, many organizations in the public and private sector have instituted training programs that focus on implicit bias, its allegedly deleterious effects, and the methods by which to alleviate such bias in, for example, the hiring and promotion of employees or admission of applicants to universities throughout the United States. And researchers at Harvard University have developed the Implicit Association Test (IAT), which purportedly measures the degree to which an individual harbors implicit biases in a variety of contexts, including those affecting traditionally marginalized groups.

Certainly, striving to eradicate biases that produce discriminatory or disparate impacts on individuals or groups is a moral and legal imperative; discrimination in any form is intolerable and contravenes the guarantee that citizens of all backgrounds enjoy liberty, equality, and due process of law.

But does implicit bias actually – and directly – correlate with biased behavior?

Recent research in the social sciences suggests that the answer to this question remains elusive and that the effect of implicit bias on biased behavior may not be as significant as previously believed.

To begin with, there is a general consensus among scholars that implicit bias exists. Put simply, all individuals, regardless of background, arguably harbor implicit biases or prejudices. Importantly, however, the distinction between implicit and explicit bias is difficult to ascertain and operationalize. In other words, how can researchers claim with any degree of confidence that discriminatory behaviors or policies that, for example, disparately impact marginalized groups are the product of implicit rather than explicit bias? Currently, there exists no reliable and objective criteria to make this distinction.

Furthermore, if, as some researchers contend, implicit bias resides outside of consciousness, it would seem difficult, if not impossible, to remedy the effects of such bias. After all, if we cannot be aware of these biases, how can we regulate their manifestation in particular contexts? Also, how can researchers reliably claim that implicit bias predicts biased behavior if not a single person, including researchers, can be aware of its presence and influence? This is not to say, of course, that individuals are unable to develop an increased awareness of the explicit biases that they harbor and take steps to minimize the effect of such biases on their behaviors. It is to say, though, that the relationship between implicit bias and biased behavior remains uncertain, and that there is no method by which to quantify the effect of implicit bias on biased behavior given the presence of other relevant factors (e.g., explicit bias).

Moreover, recent research suggests that the correlation between implicit bias and biased behavior is dubious:

Researchers from the University of Wisconsin at Madison, Harvard, and the University of Virginia examined 499 studies over 20 years involving 80,859 participants that used the IAT and other, similar measures. They discovered two things: One is that the correlation between implicit bias and discriminatory behavior appears weaker than previously thought. They also conclude that there is very little evidence that changes in implicit bias have anything to do with changes in a person’s behavior.[1]

These findings, the researchers state, “produce a challenge for this area of research.”[2]

Additionally, the IAT, which is a popular assessment of implicit bias, has faced significant criticism concerning its methodology and practical value. For example, the IAT sets arbitrary cutoff scores to determine whether an individual’s responses reveal implicit biases, yet fails to provide any assessments of the differences, if any, between the many individuals who score above or below those cutoffs.[3] Also, scores on the IAT are arguably context-dependent and thus produce different results for individuals who take the test multiple times.[4] Consequently, although results on the IAT are “not as malleable as mood,” they are “not as reliable as a personality trait.”[5] Likewise, it is difficult to assess whether the IAT is measuring unconscious attitudes of mere associations that result from environmental influences.[6]

In fact, researchers have conceded that the IAT is flawed, stating that, although the IAT “can predict things in the aggregate … it cannot predict behavior at the level of an individual.”[7] In fact, one of the IAT’s creators acknowledged that the IAT is only effective “for predicting individual behavior in the aggregate, and the correlations are small.”[8] Perhaps most surprisingly, one researcher explained that “what we don’t know is whether the IAT and measures like the IAT can predict behavior over and above corresponding questionnaires of what we could call explicit measures or explicit attitudes.”[9] As a social psychologist explains:

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

Of course, this does not mean that implicit bias bears no relationship to biased behavior. It simply means that more research is necessary to determine whether, and to what extent, implicit bias predicts biased behavior. After all, given that eradicating all forms of discrimination is a moral imperative, researchers and policymakers should ensure that society is using the most effective measures to do so. This includes assessing whether implicit bias is a credible predictor of biased behavior.

[1] Bartlett, T. (2017). Can We Really Measure Implicit Bias? Maybe Not. Retrieved from: https://www.chronicle.com/article/Can-We-Really-Measure-Implicit/238807 (emphasis added).

[2] Id.

[3] Azar, B. (2008). IAT: Fad or Fabulous? American Psychological Association. Retrieved from: https://www.apa.org/monitor/2008/07-08/psychometric.

[4] Id.

[5] Id.

[6] Id.

[7] German Lopez, For Years, This Popular Test Measured Anyone’s Racial Bias. But It Might Not Work After All. (March 7, 2017), available at: https://www.vox.com/identities/2017/3/7/14637626/implicit-association-test-racism; see also Heather MacDonald, The False Science of Implicit Bias, (Oct. 9, 2017), available at: https://www.wsj.com/articles/the-false-science-of-implicit-bias-1507590908.

[8] Id.

[9] Id. (emphasis added).

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

7 Steps to Appeasing Your Skeptical Legal Readers

We legal writers have the toughest persuasive job around. Because many of our readers have it out for us. They hope we won't persuade them. Maybe another lawyer has already done a good job arguing that we're in the wrong. Or maybe the points we're pressing just happen to butt up against our reader's beliefs or biases. Whatever it is, our readers often start out as our worst enemies. 

So what to do? One idea is to treat your readers like you'd treat anyone else in your life. Be nice to them. Be likeable. Do everything you can to get back on their good side. What I'm pretty sure will not work is coming off like a jerk. 

But that's exactly how many lawyers sound in their writing. They whine; they tattle; they use words meant to make them sound smarter than the person reading. They force their points so fiercely that they sound smug.

In real life, we all know that no one likes people who talk this way. But in our briefs, it suddenly seems ok. And it's not just intuition: Good research shows that an unlikeable tone hurts you in the persuasion department. 

We all stumble with tone sometimes. So here are some ideas to strike a better one.

Step 1: Cut down on subjective adverbs and adjectives—let objective-sounding nouns and verbs do the lifting. 

The easiest way to avoid an annoying tone? Cut down on lazy descriptors. Often we insert adverbs and adjectives into our sentences to try and manhandle our reader into feeling a certain way about something. Judges have heard about so much "blatant disregard" for the law, and even more arguments that "miss the mark." Can you imagine that stuff doing anything but make you sound annoying? 

Instead of calling it a "heinous and viscous attack that caused severe and permanent injuries to plaintiff,” try details like:

“The defendant used an aluminum baseball bat to beat plaintiff until his knee caved in.”

Step 2: Obviously ground your arguments in law—save the emotions, policies, and values for the subtle spaces.

Carefully craft your document and major themes to have an emotional flavor, but give everything an obvious mix of the law. If your points sound like they stem entirely from the non-law stuff, it may backfire on you.

So perhaps instead of a theme painting a plaintiff as a "bad actor," you opt for a theme about how what the plaintiff did is precisely what Congress meant to regulate in passing the relevant statute. And how about instead of calling your opponent's argument a "desperate plea," you just rely on the good authority? 

When you do weave the emotions and policies in, try to keep it under the radar. Tuck these points right behind your rule-based arguments. Or put them in paragraphs with some of the more legal-sounding rhetoric. 

Step 3: Try to remove yourself from the equation.

There is rarely a reason to make a point based on your "belief" or "position." Make your arguments about what the facts say or what the authority does.

So not:

"Our position is that this discovery is too burdensome to be permitted."

But instead:

"This discovery will burden defendant with an estimated $2 million in costs. That burden is not warranted under the Federal Rules for X and Y reasons."

Step 4: Avoid using words that make you sound defensive.

When you forcefully set up an argument with someone else it can make you look defensive or controlling and, funny enough, argumentative.

Take this example from a federal brief:

“Should this Court decide to reach that issue in the first instance it must conclude that the Agreement is unconscionable.”

Many judges’ gut reaction will be: “Oh I will, will I? We will see about that!”

By forcefully telling a legal reader to “ignore” something, that something "doesn’t matter," or that a position is "flat wrong”—science shows you can actually trigger biases against you.

One study showed that when people were told to “ignore” a fact, that fact ended up becoming prominent for the listeners and, ultimately, weighed more heavily in their minds. 

Just make your points on the merits and slide out of the scene without forcing anything on your reader. They must just respect you enough to start listening. 

Step 5: But do use your opponents’ words against them.

Misrepresenting an opposing view is a credibility killer. One way to avoid this (and to avoid sounding argumentative in general) is to simply use your adversary’s words against them.

This means quoting their words and breaking them down. Like this: 

The government now contends that the evidence was “harmless beyond any shadow of doubt and under any standard of review.” This is the same evidence . . . that the government hailed at trial as “powerfully probative evidence” concerning the very “nub” of the case.

Step 6: Avoid using hedging words to describe your own points or good facts.

Avoid using hedging words that undermine your position. You need to be confident—because that confidence is infectious. No, you should not misrepresent anything. And yes, exaggerating will kill your credibility.

But you must find a winning position (or positions) in your case. And then you must argue those points confidently. Otherwise, how can you expect a judge to go out on a limb and adopt your position? The perfect sauce is to be confident while never crossing the line into arrogant. 

So cut down words like these:

maybe
quite possibly
at best/at least
might be
seems to
appears to
perhaps
so-called
implicates
probably
tends to

Joe Regalia is a law professor at the University of Nevada, Las Vegas, William S. Boyd School of Law and regularly leads workshops training legal writing and technology. The views he expresses here are solely his own and not intended to be legal advice. Check out his other articles and writing tips here. 

 

Appellate Advocacy Blog Weekly Roundup Friday, December 6, 2019

Each week, the Appellate Advocacy Blog Weekly Roundup presents a few tidbits of news and Twitter posts from the past week concerning appellate advocacy. As always, if you see something during the week that you think we should be sure to include, feel free to send a quick note to either (1) Dan Real at DReal@Creighton.edu or on Twitter @Daniel_L_Real or (2) Catharine Du Bois at DuBoisLegalWriting@gmail.com or on Twitter @CLDLegalWriting

US Supreme Court Opinions and News:

• A few weeks ago, this column noted that four federal executions had been stayed, effectively blocking the recent Justice Department decision to resume federal executions. This week, after an emergency bid to a federal appeals court was rejected, the Justice Department asked the Supreme Court to reverse that stay. The request asks that the executions be allowed to continue early next week.  See more from CNN and Reuters.

• After the Second Circuit refused to block the House of Representative’s subpoena for Donald Trump’s financial records, the President has petitioned the Supreme Court to void the subpoena. APNews. The Second Circuit ruling finds the House Committee’s “interests in pursuing their constitutional legislative function is a far more significant public interest than whatever public interest inheres in avoiding the risk of a Chief Executive’s distraction." Order at page 105.

• This week, the Supreme Court heard argument on the Second Amendment in New York State Rifle and Pistol Association v. City of New York, the first major gun-related case before them in nearly a decade. The case centers on NYC gun ownership laws, which limited the ability to take a licensed firearm out of the home. However, the laws have since been amended, removing the contested restrictions. Thus, one of the more pertinent questions before the court is whether the case is moot.  See NYT OpEd here.

• The Court is considering an appeal about whether the US Constitution gives homeless people the right to sleep on the sidewalk. Last year, the Ninth Circuit held that it was cruel and unusual punishment for a city to “prosecut[e] people criminally for sleeping outside on public property when those people have no home or other shelter to go to.” Opinion p. 4.

Federal Appellate Court Opinions and News:

• A recent State Department rule requiring that foreigners disclose their social media accounts when applying for a visa is the target of a new federal lawsuit. The suit raises privacy and surveillance issues and argues that the rule violates the US Constitution’s rights to free speech and association.  See NYTimes article here.

• The Eleventh Circuit heard argument this week in a case that could set precedent on the issue of bathroom access by transgender high school students. The lower-court ruling on appeal granted the transgender petitioner access to the boy’s bathroom at his high school in Florida.  See AJC article here. 

State Appeals Court News

• The Ohio Court of Appeals has overturned a zoning board refusal to allow the company “Broke Ass Phone” to use its name on a street sign.  The court ruled that the word “ass” when used in the phrase “broke ass phone” is neither obscene nor immoral and that the company had a First Amendment right to use the word.  See ABA Journal story here.