Appellate Advocacy Blog

Using ChatGPT as an Editor in Three Easy Steps

ChatGPT is great for all kinds of tasks, including editing and revising your writing.  It has endless patience and works on your schedule.  Want to write more like Justice Roberts or Justice Kagan?  It can help you do that.  Need help finding the right turn of phrase?  It can help you do that.  Need to change the tone of your prose to be more assertive?  It can do that, too.

And you don’t need a degree in computer science to do it.

In just three steps, you can turn ChatGPT into a fantastic editor.[i]  Those steps are (1) train it, (2) prompt it, (3) evaluate the output.

Step 1: Train the AI

Training ChatGPT sounds intimidating, especially for those of us who still struggle to order a pizza online, but it’s really just simplified teaching.  Imagine you want your writing to sound more like the late Justice Antonin Scalia’s work.  Before ChatGPT can help you, you have to teach ChatGPT what makes Justice Scalia’s writing unique.  To do that, you could describe his use of various rhetorical devices, wit, and tone. Or you could simply upload some of your favorite examples of his work to ChatGPT.[ii]

Step 2: Prompt the AI

Once you’ve given ChatGPT an idea of what you are looking for, you’ll need to tell it how you want it to assist you.  In your prompt, tell ChatGPT that you want your writing to sound more like the examples; then upload something of your own, ask it to compare your work with the examples, identify distinctions, and suggest changes.  You can ask for this output in whatever form suits you—a chart, a table, a list, etc.

Step 3: Evaluate the Output

In the final step, evaluate ChatGPT’s suggestions to see if they accomplish your stated goal.  If so, great!  If not, tweak your prompt to give ChatGPT more guidance or provide it additional examples to work from.  Using ChatGPT as an editing assistant is an iterative process; the more information you give it, the better output it creates, and the more useful it becomes.  And it will continue working as long as you want and making as many changes as you need, all without complaint.

It can also help by performing smaller tasks.  For example, I recently used ChatGPT to help my students identify passive voice in their own writing.  While their initial thought was to simply ask ChatGPT to analyze a passage and correct the passive voice, that approach does not yield great results. It frequently misidentifies other writing errors as passive voice and fails to identify actual instances of passive voice.  It is much more effective when you give it the same advice I give my students:  identify the verb and insert the phrase “by zombies” after it; if the sentence still makes sense, it’s probably passive voice. 

To try this yourself, first upload a passage of writing and tell ChatGPT to identify and italicize all verbs.  (When I first did this, I checked ChatGPT’s work to see if what it identified were, in fact, verbs.  It was correct about 99% of the time.)  Then, ask it to insert [by zombies] immediately after every verb.  It produces a product where you can easily read each sentence with the phrase “by zombies” after the verbs and more readily identify where passive voice is present.

The ways in which ChatGPT can be used as an editor are limited by only your own imagination.  And though you may have to teach it how you want something done, once you do, it becomes an invaluable and indefatigable assistant.

 

[i] Though I refer to ChatGPT here, this process is equally applicable to other generative AI platforms.

[ii] If you are not sure what makes Justice Scalia’s writing unique, you could also ask ChatGPT what the various examples have in common.  You could then use its answer in conjunction with the examples to help ChatGPT understand what you are looking for.

As-Applied Challenges to the Felon-in-Possession Law: Range III

This is a guest post by Professor Dru Stevenson.

The en banc Third Circuit recently re-decided Range v. Attorney General of the United States (Range III), a closely-watched as-applied Second Amendment challenge to the federal ban on felons possessing firearms in 18 U.S.C. § 922(g)(1). The case came back to the Third Circuit on remand from the Supreme Court, to be reconsidered in light of the Court’s decision in United States v. Rahimi. While no circuits have held that the law is facially unconstitutional, there is now a circuit split about the availability of as-applied challenges to the statute. For example, just a week before, the Fourth Circuit rejected as-applied challenges to § 922(g)(1) in United States v. Hunt.

Mr. Range is a fairly sympathetic party in the area of Second Amendment litigation.  In 1995, he pleaded guilty to one count of making a false statement on an application for food stamp benefits (his wife actually completed the application and penned the false statement, but Mr. Range co-signed the application). Range was sentenced to three years’ probation (no jail time), restitution, and a fine. The statute, however, allowed up to five years imprisonment, so the federal statute applied. Years later, after a couple failed attempts to purchase a firearm (he couldn’t pass a background check), he learned that his misdemeanor conviction for welfare fraud prevented him from doing so.  He sued for a declaratory judgment that § 922(g)(1) was unconstitutional as applied to him, and he asked the court to enjoin enforcement of the law if he bought a hunting rifle and a shotgun for home defense.

The district court ruled against him in 2021, and while his appeal was pending the next year, the Supreme Court upended Second Amendment jurisprudence with New York State Rifle & Pistol Ass'n, Inc. v. Bruen. A panel of the Third Circuit applied Bruen and rejected his challenge, but a rehearing en banc resulted in a reversal. While the case was pending at the Supreme Court in 2024, the Court decided Rahimi, which recalibrated the Bruen methodology somewhat, and then granted certiorari in Range. The Court then vacated and remanded the case to the Third Circuit, which brings us to Range III, which mostly reiterates what the Third Circuit said the last time. Each time the Third Circuit has considered Range, it has provided a lengthy discussion of Founding-era firearms laws, with yet more judicial historiography in long concurring and dissenting opinions. The latest round has four concurrences and a dissent.

One feature of the case that sets it apart from most other challenges to § 922(g)(1) is that Mr. Range was not prosecuted for unlawful possession – this is not an appeal of a conviction, or a motion to have charges dismissed. He sought a declaratory judgment that the law was unconstitutional as applied to him.

In a 2022 law review article, I defended the felon-in-possession law. As the Supreme Court noted in Rahimi, our country has a long historical tradition of legislatures and courts disarming individuals and groups considered a threat to public safety or national security. While Mr. Range does not appear to pose a threat to his community (no history of violent crime), any attempt to distinguish “dangerous” from “non-dangerous” felons or felonies will inevitably plunge courts into the same quagmire they now have with the Armed Career Criminal Act (ACCA), in part because so many penal statutes include provisions for both violent and nonviolent variations on the underlying crime. Thus, I mostly agree with Judge Shwartz’s dissent in the Range case, which was joined by Judge Restrepo, and I disagree with the majority opinion. The basic gist of the dissent is that once we reject facial challenges to § 922(g)(1), which the Third Circuit has already done, it is up to Congress to balance the policy tradeoff and decide which felonies should disqualify a person from possessing firearms, even if the answer is “all felonies.”

That said, I also sympathize with the (lengthy) concurrence by Judge Krause, which takes a moderate approach, one that Congress arguably intended when it enacted the law in the first place. On the one hand, Judge Krause explains, the majority simply ignored many historical examples of the government disarming people for committing crimes or seeming to pose a serious threat to public safety. On the other hand, many, if not most, of these examples included a path for an individual to have their rights restored under certain circumstances. Thus, he concludes, courts should not determine whether the law was always (retrospectively) unconstitutional as applied to certain individuals or types of felons, but there should be a way for felons to petition a court for restoration of their firearm rights, and if they provide sufficient evidence that they pose no threat of violence to anyone, a court should be able to grant the petition.

When Congress enacted the gun ban for felons, it included a way for felons to petition for restoration of their gun rights (the statutory phrase is “relief from disabilities”), in 18 U.S.C. § 925(c).  Petitions were to go to the Attorney General, which in practice meant ATF, with judicial review for denials.  The statute provides:

…the Attorney General may grant such relief if it is established to his satisfaction that the circumstances regarding the disability, and the applicant’s record and reputation, are such that the applicant will not be likely to act in a manner dangerous to public safety and that the granting of the relief would not be contrary to the public interest.

Moreover, a reviewing court “may in its discretion admit additional evidence where failure to do so would result in a miscarriage of justice.” 

From the standpoint of traditional doctrines of Constitutional avoidance, this statutory provision seems like the easy answer.  Unfortunately, after some high-profile cases of felons committing crimes after having their firearms rights restored in the 1980’s, Congress stopped this process by defunding it, though the statute remains intact. As ATF explains on their website,

Although federal law provides a means for the relief of firearms disabilities, ATF’s annual appropriation since October 1992 has prohibited the expending of any funds to investigate or act upon applications for relief from federal firearms disabilities submitted by individuals. As long as this provision is included in current ATF appropriations, ATF cannot act upon applications for relief from federal firearms disabilities submitted by individuals.

Mr. Range would presumably be a good candidate for relief under § 925(c) – he is probably the very type of person Congress had in mind when they enacted this. Congress could fix the problem that was before the (deeply divided) Third Circuit, and that has caused a circuit split, by merely omitting this budget rider in the future. Even though gun rights have long been a partisan issue, even the party that champions gun rights has passed on every opportunity so far to revive this law that allows for restoration of gun rights for nondangerous felons.

My proposal for appellate courts like the Third Circuit (and the Fifth and Sixth Circuits) that choose to recognize as-applied Second Amendment challenges to the felon ban is that they try to approximate the system set forth in § 925(c) – to consider whether a petitioner’s “circumstances of [the original felony conviction], and the applicant’s the record and reputation, are such that the applicant will not be likely to act in a manner dangerous to public safety.”  In other words, courts should deem Congress’ backdoor blockage of the petitions for relief as a constructive denial of the petitions, and proceed with judicial review of the case, just as the courts would have done with denials prior to 1992. Of course, the review would necessarily be de novo, rather than whatever standard of review courts may have used when ATF actually processed the petitions and produced a record of decision in each case.

This approach would avoid the perilous and felony-by-felony road that the Third Circuit is heading down at the moment, and would allow the circuits to coalesce around a reasonable approach, the approach Congress originally intended. The evidentiary burden would be on the felon seeking relief – which the majority of the Third Circuit has not embraced, but Judge Krause insisted was necessary in his concurrence, and which the Sixth Circuit has adopted. Proceeding with a constructive § 925(c) approach would also avoid the disruptions to the background check system that Judge Krause warns about, because the individual’s name would be removed from the FBI’s NICS database. In contrast, approaching these cases by whether the underlying felony was “dangerous” or “violent” throws the entire background check system into uncertainty – if whole categories of individuals should never have been there (the majority’s reasoning), how is a local gun dealer supposed to know whether to consummate a sale? Or the FBI to know whether any given individual’s name should be removed (the records sent to the NICS database do not include all the details about the nature of the crime committed). In addition, the majority’s approach in Range is functionally a judicial amendment or rewriting of the statute – the statute stays, but the court is gradually creating a list of felonies that are unwritten exceptions. Finally, it is also worth noting that some individuals with felony convictions for nonviolent crimes may also have a (sometimes recent) history of violence, even though their violent acts may yet have resulted in felony convictions for a variety of reasons (charged as misdemeanors instead, prosecutors decided it was a low-priority case or had evidentiary problems, etc.).

I have a second, more modest proposal about “as applied” Second Amendment challenges in general. In Bruen and Rahimi, the Court has carved out some categories of exceptions to the Second Amendment, although it has left the parameters of these exceptions mostly undefined and uncertain. They have said that some types of dangerous individuals can be disqualified, some types of unusually dangerous and uncommon weapons can be banned, some regulations of firearms commerce can exist, and some sensitive places can be gun-free zones. Lower courts are now wrestling with undefined categories, and legal academic commentators are still debating where the lines should be. As-applied challenges are inherently individualized – a court decides whether it would be unconstitutional for the law to apply to this person.  Due to the highly particularized nature of these decisions, it would be appropriate for a court to rule on more than one of these categories for the as-applied constitutionality of the law. For example, the Third Circuit mentions that Mr. Range claims he only wants a rifle for hunting and a shotgun for home defense, which does not seem like a threat to the community. Would the court have felt different if Mr. Range announced he planned to amass a huge personal arsenal, enough to outfit an entire local militia, and that he planned to acquire several used fully automatic machine guns, albeit through all the proper NFA registration and licensing channels? What about large capacity magazines, which may or may not be banned? (SCOTUS has yet to decide this question.) The way the court drafted its opinion, there is nothing to prevent Mr. Range from doing this, or from stockpiling military-style weapons while secretly dreaming of starting a civil war. I doubt that Mr. Range will do that, but when this case is applied to the next felon claiming he is not dangerous enough to be banned from gun possession, I am not so sure.

Given the individualized adjudication involved in these “as applied” challenges, including future decisions that will apply Range III as binding precedent, it would have been appropriate for the court to issue a decision tailored to Mr. Range’s situation rather than a general rule that firearms ineligibility for felons is unconstitutional if they are not clearly “dangerous.” The court should have said, “§ 922(g)(1) does not apply to Mr. Range for purposes of owning a hunting rifle and a shotgun for home defense, and the necessary ammunition for these weapons,” and had left undecided questions like whether Mr. Range is eligible to operate a gun dealership, or have guns and accessories that are banned in some states, or can carry his firearms in a gun-free zone whose status is currently being litigated. If the challenge is “as applied to him,” then the decision should be narrowly tailored to him, and should steer clear of these unsettled areas of Second Amendment law.

New Year, and Some New Courts

The start of a new calendar year often presents fresh opportunities. For appellate advocates, cases continue, and new ones develop. That would seem to make January uneventful – just a new month like any other month. Still, in at least some states, courts operate on a calendar-year basis. The end of December may be the end of a state supreme court term and often marks the issuance of the remaining cases of the term. January, then, brings a fresh set of cases and, possibly, new justices and chief justices. The impact of these changes is unpredictable. In some instances, things will continue as they have in the past; in others, significant change may occur.

Past experience with the U.S. Supreme Court and with attempts to avoid it offer some perspective. For example, the change represented by the Warren Court was revolutionary. It had become so trailblazing that state courts had difficulty keeping up and adopted what one scholar called “the drowsy habit of looking no further than federal constitutional law.”[1] In the late 70s and early 80s, the change in direction in the U.S. Supreme Court from the Warren Court’s heyday brought talk of a “New Judicial Federalism,” in which advocates were urged to refocus on state constitutional issues and state supreme courts to achieve their appellate goals. Prominent law review articles to that effect were written by Justice William J. Brennan, Jr.[2] and then-Oregon Justice Hans Linde.[3] A New Jersey supreme court justice even suggested that failing to brief the state constitutional issues fully and separately might be considered malpractice.

As I’ve written before, “[s]tate constitutions have distinctive language, histories, and provisions that combine with the unique nature of state police power and cultural orientations to produce singular takes on American constitutional jurisprudence.”[4] Notably, the New Judicial Federalism also received heavy criticism, with one professor labeling the courts’ emphasis on different state constitutional takes “a vast wasteland of confusing, conflicting, and essentially unintelligible pronouncements.”[5]

The New Judicial Federalism was not something new, though. Instead, it constituted a rediscovery of what state courts had previously undertaken. Many now-familiar federal constitutional holdings and doctrines were first developed in state supreme courts under state constitutions. Judge Jeffrey Sutton, chief judge of the U.S. Court of Appeals for the Sixth Circuit, reminded us of the critical role of state courts and constitutional principles in a 2018 book, “51 Imperfect Solutions: States and the Making of American Constitutional Law.” What advocates discovered in turning to state constitutions was a whole set of independent state law grounds to achieve victories not available under the U.S. Constitution and immune from U.S. Supreme Court review. The popular view was that the U.S. Constitution provided a floor of minimum rights, while state constitutions could provide a higher ceiling.

With a solid more conservative majority on the U.S. Supreme Court, and the aftermath of decisions on reproductive rights, guns, and even presidential immunity, some advocates have once again redirected their gaze at state supreme courts. The Brennan Center for Justice at NYU Law School has taken up its namesake’s reminder about considering state constitutions and now publishes the State Court Report, which follows state courts and state constitutional law. It is a valuable legal resource for appellate advocates.

Today, after appointments and elections this past November have placed new members onto chief justice seats and on various courts, new opportunities arise to test ideas and doctrines in the state courts. Justice Byron White once said that with each new member who joined the U.S. Supreme Court, a new Court was constituted. The same is likely true for our highest state courts.

 

[1]  A.E. Dick Howard, State Courts and Constitutional Rights in the Day of the Burger Court, 62 Va. L. Rev. 873, 878 (1976).

[2] William J. Brennan, Jr., State Constitutions and the Protection of Individual Rights, 90 Harv. L. Rev. 489 (1977).

[3] Hans A. Linde, First Things First: Rediscovering the States' Bills of Rights, 9 U. Balt. L. Rev. 379 (1980).

[4] Robert S. Peck, For Trailblazers, When the U.S. Constitution Is Not Enough, 45 New Eng. L. Rev. 855 (2011).

[5] James A. Gardner, The Failed Discourse of State Constitutionalism, 90 Mich. L. Rev. 761, 763 (1992).

How Will the Arguments on Birthright Citizenship Develop?

Upon taking office again as president, Donald Trump has promised to end birthright citizenship though executive action. Anyone adversely affected will challenge the constitutionality of that effort.

The argument that the president lacks the power to do so would seem pretty straightforward. The Fourteenth Amendment declares “all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.” The landmark decision interpreting that language, United States v. Wong Kim Ark, 169 U.S. 649 (1898), provides essential background. The plaintiff was the child of immigrants from China, still subjects of the Emperor of China, when Wong Kim Ark was born in California. He remained in the United States when his parents left for China. In 1890, he went on a temporary visit to China. He returned to the United States and was readmitted with the collector of customs recognizing his U.S. citizenship. Four years later, he again visited China, returning to the United States in 1895. This time, however, officials denied him reentry on the supposed grounds that he was not a U.S. citizen and excludable under the Chinese Exclusion Acts.

When the Supreme Court decided the case, the justices relied upon “the common law, the principles and history of which were familiarly known to the framers of the Constitution” to define the meaning of being born in the United States and subject to its jurisdiction. Drawing on the English common law, the Court found guidance in the “fundamental principle” that English nationality applied to persons “within the King’s allegiance and subject to his protection.” It included children of aliens who were born in England, but not children of foreign ambassadors or alien enemies because their allegiance would not be to and thus outside the jurisdiction of the King.

After an extensive survey of English and American law, very much fitting the history and tradition approach that the current Court espouses, the Court concluded that a “child born in the United States, of parent of Chinese descent, who, at the time of his birth, are subjects of the Emperor of China, but have a permanent domicile and residence in the United States, and are there carrying on business, and are not employed in any diplomatic or official capacity under the Emperor of China, becomes at the time of his birth a citizen of the United States.”

Supporters of an end to birthright citizenship often focus on the Citizenship Clause’s language “and subject to the jurisdiction thereof.” They find wiggle room in Wong Kim Ark’s recognition that the Chinese parents had a “permanent domicile and residence in the United States.” In their view, people here illegally and subject to deportation are not subject to U.S. jurisdiction, lack the necessary allegiance to this country, and therefore cannot convey citizenship upon their children by the location of their birth.

Yet, a contrary interpretation, finding that being subject to the jurisdiction only excludes those who, after birth, will return on a permanent basis to the country of their parents by the parents’ choice. Objections to the Citizenship Clause during debates on the Fourteenth Amendment, such as those of Senator Edgar Cowan, complained that the language would grant citizenship to children of foreigners who owe no allegiance to the United States and regularly commit trespass upon its soil. Supporters did not deny that consequence but instead celebrated it.

As every appellate advocate knows, the details of an executive order or other action on birthright citizenship will dictate the arguments for and against. If limited to those in the United States quite recently and illegally and written to apply prospectively, different arguments will be in play than if it reaches back and seeks to deny citizenship to those who have already received the fruits of that status and whose parents have demonstrated a permanence to their residency. Furthermore, it will be a test to the Supreme Court’s allegiance to history and tradition.

Democracy and Deference

In U.S. v. Skrmetti, the United States Supreme Court will determine whether Tennessee Senate Bill 1, which prohibits all medical treatments intended to allow “a minor to identify with, or live as, a purported identity inconsistent with the minor’s sex” or to treat “purported discomfort or distress from a discordance between the minor’s sex and asserted identity,” violates the Equal Protection Clause.

On December 4, 2024, the Court held oral argument, and the attorneys for Petitioner and Respondent presented strong arguments. Among the issues under consideration is whether the prohibition on gender-affirming care discriminates based on age or sex, the latter of which would require heightened scrutiny under the Court’s jurisprudence. Petitioner and Respondent’s attorneys also presented competing arguments regarding, among other things, the benefits and harms that upholding Tennessee Bill 1 would engender. In so doing, the justices acknowledged that both sides presented compelling arguments and that reasonable people could disagree on whether Tennessee Bill 1 furthered legitimate and salutary purposes.

Given this fact, a few justices questioned why the Court, rather than the legislature, should resolve this issue through the democratic process. For example, during oral argument, Justice Kavanaugh stated:

I want to ask about our role here and pick up on the Chief Justice's questions at the beginning, who decides. You've put forth forceful policy arguments to allow these medical treatments, and Justice Sotomayor's questions elaborated on that. But the 20-plus states on the other side put forth very forceful arguments against allowing these medical treatments for minors. So it seems to me that we look to the Constitution, and the Constitution doesn't take sides on how to resolve that medical and policy debate. The Constitution's neutral on the question. At least that's one way to look at it. I want to get your reaction to that. You know, if the Constitution doesn't take sides, if there's strong, forceful scientific policy arguments on both sides in a situation like this, why isn't it best to leave it to the democratic process?[1]

As Justice Kavanaugh stated, “[y]ou say there are benefits from allowing these treatments,” but given that “there are also harms … how do we as a Court choose which set of risks is more serious in deciding whether to constitutionalize this whole area?”[2]

The concern that the democratic process, rather than the Court, should resolve this issue—particularly when reasonable people differ on whether the law is beneficial or harmful and where the Constitution’s text is ambiguous—will likely carry the day. If it does, the Court will rightfully embrace a principle that promotes democracy and bottom-up governance: where reasonable people can disagree about a law’s constitutionality, the democratic, not judicial, process is the proper forum to resolve policy disputes. In other words, when the Constitution’s text is broadly worded and reasonable people can interpret such text differently, the Court should defer to the democratic process. Deference is essential to democracy, the Court’s legitimacy, and the right of citizens to determine whether specific unenumerated rights should be recognized.

Unfortunately, in many instances, the Court has taken the opposite approach and issued rulings in cases that have undermined the democratic process and invalidated legislation promoting participatory democracy and addressing important economic and social issues. For example, in Citizens United v. Federal Election Commission, the Court by a 5-4 margin invalidated a provision of the Bipartisan Campaign Reform Act that limited corporate funding of independent political broadcasts in elections.[3] In so doing, the Court overturned Austin v. Michigan Chamber of Commerce and held that corporations enjoy First Amendment protections.[4] But what language in the First Amendment supported this holding? At the very least, reasonable people could differ on whether, for example, the First Amendment applies to corporations. As such, why didn’t the Court defer to the coordinate branches and uphold a law that sought to reduce the corrupt influence of money in politics? There is no answer—at least not a good one.

Similarly, in Kennedy v. Louisiana, the Court considered whether a law authorizing the death penalty for child rape violated the Eighth Amendment’s prohibition on cruel and unusual punishment.[5] Neither the Eighth Amendment’s text nor its original purpose answered this question; at the very least, reasonable people could differ on whether such a punishment was cruel and unusual. Notwithstanding, the Court ruled 5-4 that the law violated the Eighth Amendment and thus prohibited the states from resolving this issue democratically. In Roper v. Simmons, the Court made the same error, holding that the Eighth Amendment categorically prohibited the execution of minors even though the Eighth Amendment could not possibly be interpreted to support this result, or the “evolving standards of decency” upon which the Court relied to reach its decision.[6]

Improvident intervention in the democratic process is the norm, not the exception, in the Court’s jurisprudence. In Griswold v. Connecticut, the Court invalidated a Connecticut law prohibiting contraception, holding that although the Constitution’s text did not resolve this question, there existed invisible “penumbras” in the Constitution’s text that enabled the Court—and only the Court—to recognize unenumerated rights, such as the right to privacy, and thus impose its policy views on an entire nation.[7] In Roe v. Wade, the Court compounded this error by holding that the right to privacy encompassed a right to terminate a pregnancy, even though nothing in the Constitution’s text could be interpreted to support its holding.[8] To be sure, a deferential approach is not about promoting a particular political viewpoint. Whether one supports a right to abortion is irrelevant; what matters is that nine unelected judges decided that their views should remove this issue from democratic choice.

In contrast, some decisions have demonstrated appropriate deference to democratic processes. For example, in Washington v. Glucksberg, the Court declined to create a right to assisted suicide, holding that because the Constitution’s text was silent on this issue, it should be resolved democratically.[9] Additionally, in National Federation of Independent Investors v. Sebelius, Chief Justice Roberts cast the deciding vote upholding the Affordable Care Act, concluding that the Act’s individual mandate constituted a tax, not a penalty.[10] The primary reason underlying Roberts’ decision was arguably to preserve the Court’s institutional legitimacy by deferring to the coordinate branches and avoiding a decision that appeared politically motivated. In Dobbs v. Jackson Women’s Health, the Court remedied the harm that Roe caused to the Court’s legitimacy by returning the issue to the states.[11]

Of course, the Court has the power to say what the law is, but how can the Court say what the law objectively is when a constitutional provision is ambiguous and subject to differing interpretations? It cannot. In such circumstances, saying what the law is requires the justices to determine subjectively what the law should be. That is the problem. In a democracy, the people have the right to say what the law should be, not nine unelected and life-tenured justices. Thus, where the Constitution is silent or capable of reasonably different interpretations, the Court should defer to democratic choice. A court with limited power is essential for preserving democracy, and the process by which the Court makes decisions is equally, if not more, important than the outcomes it reaches.

 

[1] U.S. v. Skrmetti, Transcript of Oral Argument,  (Dec. 4, 2024), p. 40-41, available at: 23-477_c07d.pdf

[2] Id. at 44-45.

[3] 558 U.S. 310 (2010).

[4] 494 U.S. 652 (1990).

[5] 554 U.S. 407 (2008).

[6] 543 U.S. 551 (2005).

[7] 381 U.S. 479 (1965).

[8]  410 U.S. 113 (1973).

[9] 521 U.S. 702 (1997).

[10] 567 U.S. 519 (2012).

[11] 597 U.S. 215 (2002).

A New Rule on Amicus Briefs?

The Advisory Committee on Appellate Rules has published for public comment amendments to Federal Rule of Appellate Procedure 29, which covers amicus briefs. One amendment seeks to impose disclosure requirements so that entities filing as amici can clearly be identified. It would require all amicus briefs to include “a concise description of the identity, history, experience, and interests of the amicus curiae, together with an explanation of how the brief and the perspective of the amicus will help the court.” To reveal whether an amicus was created for purposes of this particular case, the proposed rule also requires an amicus that has existed for less than 12 months to state the date the amicus was created.

These requirements are, in part, designed to prevent parties from extending their briefs through proxies filing as amici. The proponents also claim it will inform the court about how independent the amicus really is. Instead, leave of the court would always be required. The proposed rule would require that the amicus brief bring to the court’s attention “relevant matter not already mentioned by the parties. Briefs that do not accomplish that or are “redundant with another amicus brief” are disfavored. Nothing in the proposal indicates how amici might know what another amicus will file.

The Supreme Court has gone in a very different direction, welcoming all amicus briefs and no longer requiring either leave or consent. The advisory committee chose not to follow suit because the Court’s booklet printing requirement acts as a deterrent to overwhelming the Court, it claims, even though the growth in filing Supreme Court amicus briefs continues.

The proposals were published August 15 and have a comment period that runs through February 17. Comments may be submitted electronically. In addition, the advisory committee will hold two hearings on the proposals next year before the comment period ends. Those interested in appellate advocacy may want to view the proposals and their explanations, which are available at https://www.uscourts.gov/sites/default/files/preliminary_draft_of_proposed_amendments_2024.pdf.

Reframing your Thanksgiving

This last week was a whirlwind. I co-coached a moot court team at the NY Bar National Moot regionals, and my students won. I received some exciting professional news. And I lost a friend.

One day, my friend was shining her brilliant smile and support on everyone she met. The next she was gone.

In the midst of all of these events I found myself pondering the vicissitudes of life. While I was sitting in a room where we applauded our achievements, I was also sitting in grief. And I knew that the following week, we would be celebrating Thanksgiving. And I wondered how my friend's family was going to give thanks at a time like this.

But I know them, and I know they will. Despite her sudden loss, they will give thanks for her life. Despite their tears, they will find joy in their memories, and in her victories and their own. They will give thanks for each other. They will give thanks for her life and their own. Because of their faith and hers, they will be able to grieve and be thankful, together.

As attorneys, we often sit in grief and anxiety. Our jobs are hard. Our clients suffer, and we try to lift them up both as attorneys and as counselors. Opposing counsel can be hateful. Judges can rule in ways that hurt us and our clients. And our friends and families can grow to resent the time and attention our jobs require.

At the same time, as attorneys, we are blessed. We made it through a series of tests and trials that most people could not pass. As a result we have jobs that make a difference. We are able to help people who cannot help themselves. We are financially rewarded for our talent. We have colleagues that support us. We provide for our families and help them solve problems when they arise. We are problem solvers, communicators, writers, and speakers in a world that values those skills.

Those skills and training teach us that how we frame things changes how people see them. We know what to emphasize and what to de-emphasize in our writing. We know that our descriptive language will influence how our readers see the characters we write about. And we know that how we characterize the facts can impact how those characters are ultimately judged.

This training is reinforced by neuroscience. Tversky and Kahnemann were among the first scientists to study the framing effect. Their research, and studies since, show that how things are introduced or described influences the way we think about them. So we know that when marketing meat, consumers will choose ground beef that is "75% lean" over beef that is "25% fat," even though it is the same product. And in a study by Judge Stephanos Bibas, whether a criminal defendant will accept a plea bargain is influenced by whether they are currently incarcerated, since that changes their baseline perception of freedom.

The same is true with how we frame our lives. We each have our share of grief and joy. How we chose to focus in or frame our lives will influence how we perceive it. It can be hard, when the picture of lives seems mostly dim, to find the bright spots. But when we do, and we focus on them, everything else becomes a bit brighter.

In 2022, the ABA GPSolo Report published an article by Rebecca Howlett and Cynthia Sharp (of legalburnout.com), titled The Legal Burnout Solution: How to Improve Well-Being Through Gratitude. In that article they quote Robert A. Emmons, professor of psychology at the University of California Davis and a leading scientific expert on the science of gratitude, who notes that “The practice of gratitude . . . can lower blood pressure, improve immune function and facilitate more efficient sleep. Gratitude reduces lifetime risk for depression, anxiety and substance abuse disorders, and is a key resiliency factor in the prevention of suicide” (Thanks!: How the New Science of Gratitude Can Make You Happier (Houghton Mifflin Harcourt, 2007)).

The article gives several tips for cultivating gratitude, including journaling, breathing exercises, writing thank-you notes, and prayer and meditation. All of these exercises are intended to help us shift our thinking from dwelling on negatives to focusing on positive things. In doing so, you don't lessen the amount of work you need to do or the seriousness of your (or your client's) problems. But you do put those issues into perspective, and reframing your experiences, just like reframing the facts in a legal argument, has lasting impact.

Are you a religious person? Then most likely, your religion teaches the same thing. Jesus's sermon on the mount dealt extensively with anxiety and reframing difficulties, and Paul later wrote in Philippians 4:6 that Christians should "...not be anxious about anything, but in every situation, by prayer and petition, with thanksgiving, present your requests to God." The Quran says in Surah 31:12 "Be grateful to Allah, for whoever is grateful, it is only for their own good." And many Buddhist practices, particularly in Shin Buddhism, focus on gratitude and start each morning giving thanks, even for the difficult things.

So this week, I'm trying to take my own advice and focus on things that are noble and good and true. The friends I've made and kept, and the joy of remembering those I have lost. The family I have left, and the legacy of those I have lost. The people I've helped and the good I have done, and the lessons learned from the cases I've lost and the mistakes I've made. And the time I have left, not the time I have wasted.

And I'm going to say "thank you" much more often. And as I try to think of people to say thank you to, I'm going to be thankful that the list is long. And growing longer every day.

Thank you for reading. Thank you for being who you are. Now, please, go give thanks of your own. Focus on the good. Reframe your experiences. And, in doing so, write yourself a better, and more thankful, story.

(Image credits: Library of Congress, Udo Keppler, Lawyers at least have plenty to be thankful for, Puck, v. 74, no. 1916 (1913 November 19), centerfold)

 

Can You DIG It?

On Friday, the Supreme Court issued its first decision of the term in an argued case – and it was a DIG, dismissed as improvidently granted, in a one-sentence order. The effort and attention given the case until that resolution can seem frustrating and a waste of judicial resources, although respondents generally should be pleased given that their victory below is thereby preserved.

The case was Facebook, Inc. v. Amalgamated Bank, No. 23-980. The issue involved whether Facebook was sufficiently forthcoming in its securities filings when it failed to mention that a risk has materialized in the past, even if that past event presents no known risk of ongoing or future business harm?

The event in the past that animated this case was Facebook’s sharing of user data of some 30 million users without their permission with a researcher who founded the infamous Cambridge Analytica. The data was originally used by Senator Ted Cruz’s presidential primary campaign to target voters. The data was used to place political advertising on Facebook while covering up its cooperation in the effort. Eventually, Facebook’s role in sharing the data became public, and the Securities and Exchange Commission filed suit against Facebook for misleading investors about the risk it incurred from the episode. Facebook paid a $5.1 billion civil penalty in settlement.

When a class of investors sued to recover damages in a securities action, the district court dismissed, but the Ninth Circuit held that Facebook’s risk statements “represented the risk of improper access to or disclosure of Facebook user data as purely hypothetical when that exact risk had already transpired.” The gist of the opinion scored Facebook for portraying the risk of a breach of private users data as if it did not and could not occur, when it had and when it resulted in a significant drop in stock prices.

The Supreme Court granted certiorari after the petition suggested that a three-way split existed in the circuits. It claimed that the Sixth Circuit took the position that no disclosure of past instances was necessary. It then claimed that six other circuits require disclosure of past risks but only if the company knows it will harm the business. It then asserted that the Ninth Circuit, along required disclosure even if there is no known threat of business harm.

The Brief in Opposition, known as the BIO, asserted that the question presented assumed a factual premise that the Ninth Circuit rejected as unsupported by the record. According to Facebook, when it filed its disclosures with the SEC, the breach was public without adverse consequences. The claimed sequence of events and the lack of adverse public reaction, the BIO asserted, was inconsistent with the Ninth Circuit’s filings. It then claimed that the case did not qualify for certiorari, because the Supreme Court had recently advised that granting certiorari is “imprudent” when the premise of the issue presented “does not hold.” DeVillier v. Texas, 601 U.S. 285, 292-93 (2024).

Even so, the Court granted certiorari, received full briefing, and conducted oral argument earlier this month. When the Court decides to DIG a case, something that happens once or twice a term, it usually does not provide an explanation. The usual assumptions are that the case turned out to be a poor vehicle for resolving the issue, the issue granted turns out not to be the principal basis for the petitioner’s argument in a bait-and-switch stratagem, new developments either in the case or related to the issue changes the need for a decision, or the justices are so divided on what the real issue is that the case no longer looks to them to be what it was when certiorari was granted.

In this case, it seems likely that the arguments about what the Ninth Circuit did or did not decide that were made in the BIO became clearer to the justices and resulted in the DIG. Still, it often seems that a more careful review of the BIO would certainly result in fewer cases that are granted for plenary review only to be rejected without decision through a DIG with the result being the same as it would have been if certiorari had been denied.

How to Persuade Judges When a Constitutional Provision is Ambiguous

The ability to persuade judges—or anyone, for that matter—when a law is ambiguous and open to different interpretations is exceedingly difficult. Yet, it’s a challenge lawyers often face, especially when arguing cases that hinge on interpreting broadly worded constitutional provisions. For instance, in Kennedy v. Louisiana, the U.S. Supreme Court considered whether imposing the death penalty for child rape violated the Eighth Amendment’s prohibition against "cruel and unusual punishment." Reasonable minds could—and did—differ on what constitutes such punishment.

Similarly, in Snyder v. Phelps, the Court examined whether the First Amendment’s protection of free speech allowed individuals to display signs like “Fags Doom Nations” and “Thank God for 9/11” outside a soldier’s funeral, despite the severe emotional distress this caused the bereaved family. Whether the First Amendment shields such offensive speech posed a profound challenge.

In Riley v. California, the Court had to decide whether searching a cell phone without a warrant during an arrest constituted a “reasonable” search under the Fourth Amendment.

And in Roe v. Wade, the Court tackled whether the right to privacy—previously recognized in Griswold v. Connecticut as part of the “liberty” protected by the Fourteenth Amendment’s Due Process Clause—extended to a woman’s right to terminate a pregnancy. This theme of interpreting broad and ambiguous constitutional language also appeared in cases like National Federation of Independent Business v. Sebelius, which questioned whether the Affordable Care Act's individual mandate was constitutional under the Commerce Clause, and Clinton v. New York, which challenged whether the Presentment Clause permitted the president to use a line-item veto.

These examples highlight how the Court has repeatedly interpreted ambiguous constitutional provisions to resolve significant legal issues that affect citizens’ rights and liberties. In these cases, reasonable judges and legal scholars have reached different conclusions. What can a lawyer do to persuade a court to adopt their interpretation? Here are three strategies to maximize the likelihood of success:

 1.    Know your audience and adopt an incremental approach.

When advocating for a particular interpretation of an ambiguous constitutional or statutory provision, it’s essential to understand the judges' ideological leanings and policy preferences. For example, before Dobbs v. Jackson Women’s Health Organization overturned Roe v. Wade, a state law banning abortions after 15 weeks would have faced skepticism from justices who supported Roe, like Justices Sotomayor, and Kagan. Conversely, Justices Alito, Thomas, Gorsuch, Kavanaugh, and Barrett would have been more sympathetic.

Given this landscape, how can you bridge the ideological divide? One effective approach is to emphasize that your interpretation is a modest, incremental departure from existing precedent rather than a radical overhaul. Acknowledge that precedent may not fully support your position but argue that it aligns with the underlying purpose of those prior decisions. This can make your argument more palatable to justices inclined to oppose you while also appealing to those who might favor a more substantial shift in the law.

This incremental strategy can be particularly effective when the court’s ideological balance is against you. While some cases, like Dobbs, show that the Court can make sweeping changes, in many situations, a minor adjustment to the legal landscape is more likely to gain broader acceptance.

 2.    Emphasize pragmatic consequences and underlying purposes.

Judges are not robots; they care about the real-world impact of their decisions. Highlighting the practical implications of a ruling against your position and emphasizing the broader purposes behind constitutional or statutory provisions can be persuasive.

For example, in Riley v. California, the Court had to determine whether the Fourth Amendment allowed warrantless searches of cell phones during arrests. Previous rulings like U.S. v. Robinson and Arizona v. Gant had expanded the scope of searches incident to arrest. However, the lawyers in Riley argued that the original intent of the Fourth Amendment was to protect the most private information of citizens—traditionally found in the home. They drew a parallel between modern cell phones and the private papers the Fourth Amendment was designed to protect, emphasizing that cell phones store extensive personal data, such as photos, emails, and financial records. This argument, grounded in the purpose behind the Fourth Amendment, led the Court to unanimously rule that searching a cell phone without a warrant was unconstitutional.

By framing your argument around the broader purposes and pragmatic outcomes, you increase your chances of persuading judges who are concerned with both the letter and spirit of the law.

 3.    Appeal to common sense and fairness.

Judges, like all of us, value fairness and reasonableness. An argument that aligns with common sense can be highly effective, especially when dealing with controversial issues.

Consider Snyder v. Phelps, where the Court was asked whether the First Amendment protected the hateful speech of the Westboro Baptist Church outside a soldier’s funeral. Despite the repugnant nature of the speech, the Court upheld its protection under the First Amendment, emphasizing the broader principle of a marketplace of ideas where even offensive speech is tolerated. The underlying concern was that restricting such speech could lead to a slippery slope where the government might censor other unpopular opinions, thereby undermining the fundamental right to free speech.

Appealing to common sense and the broader implications of a ruling can help you frame your argument in a way that resonates with judges' innate sense of fairness.

***

In some cases, there may be little you can do to change a judge’s mind, especially if a judge is firmly committed to a particular ideological stance. However, by taking an incremental approach, emphasizing pragmatic considerations, and appealing to common sense, you can maximize your chances of persuading a court to adopt your interpretation.

Legal Writing for the Digital Reader - CLE

Scribes, the American Society of Legal Writers will host a free one-hour CLE on Legal Writing for the Digital Reader at noon on December 13, 2024. From the announcement,

Led by Professor Joseph A. Rosenberg of CUNY Law School and Ivy Grey of WordRake, this one-hour session will equip you with cutting-edge strategies for creating clear and compelling content tailored for digital readers. Unlock practical tips to ensure your writing always stands out.

More information and registration link available here Legal Writing for Digital Readers.

The “Boneless” Chicken Case

Borrowing a line from Oliver Twist, Justice Brennan once wrote that “[t]o say that ‘the law is an ass, a idiot’ is not to impugn the character of those who must administer it.”[1] Imperfections in the law, he wrote, do not reflect on the judges, but on a system judges are powerless to change when they adhere faithfully to what is required of them. Still, there are times when a fair reading of the law and a judicial decision seem so at odds with each other that one must wonder whether the judges in such a case occupy a universe of their own making. An opinion issued in July by the Ohio Supreme Court seems likely to evoke that type of response. The case has come to be known as the “‘boneless’ chicken” case.

The dispute originally arose when the plaintiff ate his usual order of “boneless” wings at a restaurant he frequented. He suffered serious medical problems when a chicken bone lodged in his throat while eating that meal. Doctors at the emergency room found 5-cm long chicken bone had torn his esophagus and created a bacterial infection along with other medical issues.

A deposition of the restaurant’s cook explained that the wings were made from pre-butterflied, boneless and skinless chicken breasts, which were cut into one-inch chunks before being served to customers. In suing, the plaintiff claimed that the restaurant and its supplier were negligent by serving a boneless wing with a hidden bone in it and no warning of any kind that it may contain a bone.

The trial court initially granted judgment on the pleadings to the defendants, but an intermediate appellate court reversed and remanded the case as plausibly stating a cause of action for negligence. The defendants moved for summary judgment, which the court granted because “common sense dictated that the presence of bone fragments in meat dishes—even dishes advertised as “boneless”—is a natural enough occurrence that a consumer should reasonably expect it and guard against it.”[2] The intermediate appellate court affirmed, holding that “the bone was natural to the boneless wing.”[3]

The Ohio Supreme Court considered the case in light of another it had decided in 1960, where it had applied a reasonable-expectation test to ingesting a foreign substance. Under that test, a court considers what a reasonable consumer would expect to encounter in the food and thus guard against, so that its presence does not impose a duty of care on the supplier when the substance should not be a surprise. That determination, the Court held, is reflected in a companion “foreign-natural” test, which assesses whether the substance in the food was natural to it and thus not a foreign substance. In the 1960 decision, the Court ruled that a piece of oyster shell in or attached to any oyster should be anticipated and not impose a duty on the restaurant.[4]

The Court then found no error in the appellate court’s determination that a chicken bone was natural to chicken meat and thus not an “unnatural or ‘foreign substance.’”[5] That the meal was sold as “boneless” did not change the Court’s conclusion, given that “’everyone … knows that tiny bones may remain in even the best fillets of fish.’”[6] The Court also held that the bone was large enough that, “as a matter of law, he reasonably could have guarded against it.”[7]

Further dismissing the argument that the food was advertised as a “boneless wing,” the Court characterized that representation as “merely a description of  the cooking style.”[8] The Court then adopted a strange analogy, saying that a:

    diner reading “boneless wings” on a menu would no more believe that the restaurant was warranting the absence of bones in the items than believe that the items were made from     chicken wings, just as a person eating “chicken fingers” would know that he had not been served fingers. The food item’s label on the menu described a cooking style; it was not a     guarantee.[9]

The majority also defended against a criticism in the dissent about food advertised as lactose- or gluten-free: the  presence of lactose or gluten in a food that was advertised as lactose-free or gluten-free is not something a consumer would customarily expect and be able to guard against.[10]

As the dissent pointed out, the decision allowing a court to determine as a matter of law what the reasonable diner might expect appears to put “another nail in the coffin of the American jury system.”[11] It further argues that the existence of three dissenting justices demonstrates that a reasonable person could reach a conclusion contrary to the majority’s.[12]

The dissent’s points about the determination falling within the jury’s constitutionally guaranteed prerogative are well taken. The Ohio Constitution guarantees the right to a jury trial as “inviolate.”[13] Even so, one finds it difficult to understand how the sale of  “boneless chicken” does not create an expectation that it is bone-free because it is being sold as devoid of bones. Nor can it be justified as a mere “cooking style,” a terminology that I would associate with Southern, French, Basque, or Chinese cooking as examples. Boneless is not a cooking style. In an era in which public respect for the courts is perilously low, the decision will confound the public and suggest that words do not mean what they say – at least as a matter of law, which is why most commentators have had a bone to pick with the Ohio Supreme Court.

 

[1] In re Sawyer, 360 U.S. 622, 634 (1959).

[2] Berkheimer v. REKM, L.L.C., 2024-Ohio-2787, ¶ 9 (characterizing ruling).

[3] Id. at ¶ 10.

[4] Id. at ¶ 17 (characterizing Allen v. Grafton, 170 Ohio St. 249, 251, 164 N.E.2d 167 (1960)).

[5] Id. at 20 (quoting 2023-Ohio-116, 206 N.E.3d 90, at ¶ 26 (12th Dist.)).

[6] Id. at ¶ 21 (quoting Mathews v. Maysville Seafoods, Inc., 602 N.E.2d 764 (12t Dist. 1991)).

[7] Id. at ¶ 22.

[8] Id. at ¶ 23.

[9] Id.

[10] Id. at ¶ 24.

e[11] Id. at ¶ 27 (Donnelly, J., dissenting).

[12] Id.

[13] Ohio Const. art. I, § 5.

Great Attorneys Have The Intangibles

As a professor and pre-law advisor, countless students express a passion for and commitment to a legal career every semester. In so doing, they always ask the same question: what skills are needed to be a great lawyer? Intelligence, critical thinking, research, and writing skills are essential. However, the intangible skills truly separate a mediocre lawyer from an elite lawyer. And although students certainly need to improve their critical thinking, research, and writing skills, they also need to develop intangible skills. Below is a list of some of the most important intangible skills.

1.    Emotional intelligence and common sense.

Emotional intelligence may matter more than raw intelligence. This refers to a person’s ability to manage their emotions and cope well during times of stress, pressure, and adversity. Emotionally intelligent people are self-aware, thrive under difficult circumstances, empathize with others, overcome challenges, and address interpersonal conflict effectively. Lawyers who lack emotional intelligence and the ability to self-regulate are at high risk for developing depression or struggling with substance abuse – a fact that is well-documented in the legal profession.

Common sense refers to the ability to perceive personal and professional situations accurately to enable you to exercise good judgment and make correct decisions in response to those situations. If you lack common sense, your judgment and ability to navigate complex and difficult situations will be affected.

Simply put, it is not sufficient to have an IQ of 130 or an LSAT score of 170. You have to be “street smart” and have the emotional maturity to deal with and thrive under the adversity that a life in the legal profession engenders.

2.    Hard work, resilience, and perseverance.

Many students lack a true understanding of what it means to work hard, prepare, and persist under difficult circumstances and unexpected challenges. Sometimes, particularly in the legal profession, you have to work day and night – for months and even years – litigating a complex case or preparing for a trial or appellate oral argument. You will be exhausted and struggle to operate at a high level. In these circumstances, elite lawyers persevere, remain resilient, and maintain focus and discipline. Put simply, hard work does not mean working until you get a task right. It means working until you cannot get it wrong. And great lawyers work harder and prepare more than anyone, thus ensuring that they can produce a peerless work product.

Ultimately, although most people can excel when circumstances are ideal, far fewer can excel when life gets difficult, such as when experiencing, for example, the breakup of a marriage, coping with the death of a family member, or struggling with anxiety or depression. Great lawyers can compartmentalize and excel despite these challenges.

3.    Creativity.

Great lawyers think outside of the box. They do not simply make arguments in a formulaic and predictable manner or based solely on precedent. Rather, in appropriate cases, they develop creative and original arguments, present them persuasively, and move the law forward.  For example, in Griswold v. Connecticut and Roe v. Wade, who would have thought that the Fourteenth Amendment’s Due Process Clause, which prohibits the government from depriving citizens of “life, liberty, or property…without due process of law” would include an implicit right to privacy and a right to terminate a pregnancy? Great lawyers made those arguments and the United States Supreme Court agreed that this unenumerated substantive right was encompassed within the “liberty” protected by the Fourteenth Amendment. Additionally, in National Federation of Independent Investors v. Sebelius, who would have thought that the Affordable Care Act’s individual mandate could be interpreted as a tax, as Chief Justice Roberts held, rather than a penalty? Again, great lawyers made those arguments because they were creative and thought outside of the box.

4.    Judgment and strategic thinking.

Elite lawyers exercise great judgment and think strategically to achieve the best result possible for their clients. Good judgment and strategic thinking require the ability to, among other things, make the right decisions based on incomplete facts and data, anticipate an opponent’s arguments, predict what questions a court will ask at oral argument, know what questions to ask during a deposition, and understand how to negotiate a settlement. Good judgment and strategic thinking are a product of common sense, experience, and instinct; lawyers lacking these skills will struggle to achieve positive outcomes for their clients.

5.    Communicate effectively – and listen meaningfully.

Excellent lawyers know how to communicate – and how to listen. Excellent communication skills involve, for example, knowing how to simplify and make understandable complex facts and legal issues, adapting your communication strategy based on the audience to whom you are speaking, providing unfavorable opinions to a client in an empathetic manner, and choosing words that maximize persuasion and credibility.

Great communicators are also great listeners. They know that listening actively enables you to accept feedback constructively, benefit from different perspectives that challenge your opinions, foster strong relationships, facilitate better decision-making, and avoid unnecessary conflicts.

6.    Confidence and humility.

If you want to be a great lawyer, you must have confidence. That means believing in yourself and your ability, and not being intimidated by your adversary or the court. It means trusting in your preparation and having pride in your performance, knowing that if you prepare well, you will excel consistently. If you lack confidence, the court, the adversary, and your client will perceive it immediately and it will undermine the persuasiveness and credibility of your arguments.

Having healthy confidence, however, does not mean being an arrogant, narcissistic jerk. These people, who think that they can do no wrong, and who get offended whenever someone offers constructive feedback or disagrees with their views, are insufferable and never grow as lawyers or people. The best lawyers are confident and humble. They know that they are not right all the time or have the answers to every question. Instead, they listen. They learn. They grow. And they understand that success is so often due to other people who have helped and supported you along the way.

7.    Discipline, focus, and time management.

The best lawyers do not focus on external factors, such as opinions, perceptions, or expectations. Instead, they focus on what they can control and maintain discipline under exceedingly difficult circumstances. They do not get discouraged by a negative ruling, a poor performance, or a challenging workload. They do not get distracted by professional or personal conflicts.

Great lawyers also know how to manage their time. They work efficiently and budget their time to ensure that they can perform consistently at a high level. They do not waste time on needless conversations or meetings, or on tasks that could be delegated to someone else. By doing so, they improve their performance and likelihood of success.

8.    Teamwork.

Excellent lawyers know how to work as part of a team and maximize the contributions of all team members. They know how to lead and how to motivate and inspire a team. They listen to feedback. They delegate. They cooperate. They are humble. They value every member of the team. They offer support, encouragement, and constructive criticism. They understand the strengths and weaknesses of every team member and develop a plan to maximize those strengths. If a lawyer cannot work on a team and effectively navigate group dynamics, it will affect the quality of that lawyer’s representation and the likelihood of achieving success in a given case.  

***

Many law schools do not emphasize the development of intangible skills, in part because they are so difficult to teach. However, for aspiring lawyers, the knowledge that intangible skills are critical to success enables them to focus individually and collectively on developing these skills in their professional and personal lives.

A View of the Supreme Court

In this post, I’m going to be a little self-indulgent. This past week saw the publication of a new book that I wrote with my friend, Anthony Champagne, a professor emeritus of political science at the University of Texas at Dallas. Tony and I served together as Supreme Court Fellows in 1990-91 and became lifelong friends. We discovered early on that we each had collected scores of anecdotes about the Supreme Court and its justices. We each deployed these stories in speeches and lectures, finding that audiences loved the tales. Eventually, we resolved to compile the stories in a book.

Last Monday, the book was published. It is called “Supreme Anecdotes: Tales from the Supreme Court.” Part of the reason for its lengthy gestation period is that we resolved to cover every justice to ever have served on the Court. That meant rifling through judicial biographies, law review articles, tributes, and a variety of other sources to cover even justice. Our original publisher became a victim of business failure during the pandemic. Once we found a new publisher, we needed to update our manuscript to cover some new appointees.

We are heartened by the reception the book has had. Dean Erwin Chemerinsky of the Berkeley School of Law said he could not “think of another book on the Supreme Court that I enjoyed reading more or learned more from.” Former Texas chief justice Wallace Jefferson called it a “must read for all who care about the majesty and frailty of the rule of law.”

Political science professor James Riddlesperger, Jr. of Texas Christian University lauded its appreciation of the Court’s history, as well as “a chuckle a page.” Research professor Royce Hanson of the George Washington University Institute of Public Policy enjoyed the peek it gave at the “foibles, follies, and occasional withering wit of the Supremes.” And Alan Morrison, associate dean at George Washington University, wrote that it “gives the reader a very different side of the Justices, including the fact that many of them did not come close to fitting our ideal of members of the Highest Court.

Certainly, the book tells many funny stories about the Court over the years and that is enjoyable in its own right. Still, it also highlights the ways the Court has changed since its early days – and the ways in which it remains very much the same. I hope that readers of this blog find it useful, as well as an enjoyable romp through Supreme Court history.

Reminder: Keep a Sharp Eye on the Invisible

Our world is filled with data of all kinds, including metadata (“data that provides information about other data”).[i]  Metadata exists in numerous places.  For example, “a digital image may include metadata that describes the size of the image, its color depth, resolution, when it was created, the shutter speed, and other data.”[ii]   Attorneys should be especially interested in the metadata contained within a text document.  “A text document’s metadata may contain information about how long the document is, who the author is, when the document was written, and a short summary of the document.”[iii]  It can also contain information about the number of versions, how long it took to draft, and ways in which it was modified.[iv]

As you can imagine, this can be problematic for a profession that drafts and redrafts highly consequential documents, strategically considering the effect of each word and phrase.  Though there was much talk about metadata in the early 2000s, it seems that lawyers are still failing to heed the warnings.[v]  Lawyers for Sean “Diddy” Combs recently made headlines for failing to remove some track changes language from a court filing, revealing that one reviewer questioned the legitimacy of an assertion before the document reached the court.[vi]

Even the United States Supreme Court is not immune from this kind of mistake.  Earlier this year, when handing down its decision in Trump v. Anderson, the Court failed to scrub some metadata, revealing that what appeared to be a concurring opinion coauthored by three justices was, at one point, an opinion both concurring in part and dissenting in part, drafted by Justice Sotomayor alone.[vii]

It's easy to overlook metadata in our documents because, generally, we don’t see it without taking certain steps to reveal it.  And, without knowing how it is created and stored, we may not realize exactly how easy it is to find and view.  For example, while drafting this post in Word, I did not use track changes, but when I clicked on “version history,” my document appeared as if I had.  I could see every addition, alteration, and deletion from the last auto-saved version—not a big deal for a blog post, but potentially catastrophic for a demand letter, settlement offer, motion, appellate brief, or judicial opinion.

There are several places on the web you can go to find information about how to scrub metadata from your document.[viii]  And you should.

But what if you receive a document with metadata still intact?  There have been many ethics opinions on the issue over the years, but there are still some open questions.[ix]  As one author suggested, “[t]he best rule is for law firms to develop best practices internally to keep metadata from ‘escaping’ in the first place.”[x] 

 

[i] “Metadata.” Merriam-Webster.com Dictionary, Merriam-Webster, https://www.merriam-webster.com/dictionary/metadata (last accessed Oct. 6, 2024).

[ii] “Metadata.” Wikipedia.com, https://en.wikipedia.org/wiki/Metadata (last accessed Oct. 6, 2024).

[iii] Id.

[iv] Marilyn Cavicchia, How Clean is Your Document? What You Need to Know About Metadata, American Bar Association, Bar Leader (Vol. 32, No. 3, Jan.-Feb. 2008), available at:  https://www.americanbar.org/groups/bar-leadership/publications/bar_leader/2007_08/3203/metadata/#:~:text=Where%20is%20metadata?,belonging%20to%20a%20U.S.%20contractor (last accessed Oct. 6, 2024).

[v] Catherine Reach, Exposed! What Lawyers Need to Know About Metadata, North Carolina Bar Association (Jan. 4, 2022), available at: https://www.ncbar.org/2022/01/04/exposed-what-lawyers-need-to-know-about-metadata/ (last accessed Oct. 6, 2024).

[vi] Staci Zaretsky, Lawyers for Sean 'Diddy' Combs Make Embarrassing Mistake in Bail Letter to Judge (Sept. 18, 2024), Above the Law, available at: https://abovethelaw.com/2024/09/lawyers-for-sean-diddy-combs-make-embarrassing-mistake-in-bail-letter-to-judge/ (last accessed Oct. 6, 2024).

[vii] Mark Joseph Stern, Supreme Court Inadvertently Reveals Confounding Late Change in Trump Ballot Ruling, Slate.com (Mar. 4, 2024), available at:  https://slate.com/news-and-politics/2024/03/supreme-court-metadata-sotomayor-trump-dissent.html (last accessed Oct. 6, 2024).

[viii] See, e.g., https://ncculaw.libguides.nccu.edu/Technology/metadata, https://support.microsoft.com/en-us/office/remove-hidden-data-and-personal-information-by-inspecting-documents-presentations-or-workbooks-356b7b5d-77af-44fe-a07f-9aa4d085966f, or https://www.adobe.com/acrobat/hub/remove-metadata-pdf.html.

[ix] In Comment [2] to Rule 4.4(b) (“A lawyer who receives a document or electronically stored information relating to the representation of the lawyer’s client and knows or reasonably should know that the document or electronically stored information was inadvertently sent shall promptly notify the sender”), the ABA notes, “Metadata in electronic documents creates an obligation under this Rule only if the receiving lawyer knows or reasonably should know that the metadata was inadvertently sent to the receiving lawyer.”  https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_4_4_respect_for_rights_of_third_persons/comment_on_rule_4_4/.

[x] Jim Calloway, Metadata – What Is It and What Are My Ethical Duties? LLRX.com (Jan. 5, 2009), available at:  https://www.llrx.com/2009/01/metadata-what-is-it-and-what-are-my-ethical-duties/#:~:text=Without%20authorization%20from%20a%20court,to%20have%20been%20intentionally%20communicated (last accessed Oct. 6, 2024).

The Thing About Dicta

Two weeks ago, my post featured a book that detailed procedural differences between the federal circuits. Since then, the Ninth Circuit handed down an en banc opinion in which the concurring opinion highlighted a strange position unique to that court concerning the treatment of dicta. My colleague on this blog, Stephanie Williams, highlighted that concurrence in a post on September 28. She found it a highly useful discussion of dicta and indicated she would be adding it as required reading in her course. I, too, found it interesting, especially against the backdrop of other pronouncements about dicta. Because I took a different approach to thinking about dicta and the Ninth Circuit’s opinion than Stephanie did, I’m going ahead with posting about it as well.

Dicta, as every law student quickly learns, is not precedent, but an aside that the court makes nonetheless even though unnecessary for the disposition of the case. Though it may be cited, its usefulness normally depends on its persuasiveness. Often what emanates from the court as dicta expresses views on issues that the parties neither briefed nor argued. Because it lacks adversarial vetting courts often treat it somewhat gingerly. Its value arises from its ability to shape issues and the law down the road.

In one case, for example, Justice Breyer, writing for the Court, rhetorically asked: “Is the Court having once written dicta calling a tomato a vegetable bound to deny that it is a fruit forever after?”[1] Answering his own question, he wrote, “we are not necessarily bound by dicta should more complete argument demonstrate that the dicta is not correct.”[2] In support, he cited another case that found the Court was “not bound to follow our dicta in a prior case in which the point now at issue was not fully debated.”[3]

More tellingly, the Court, in dictum, once declared, “[d]ictum settles nothing, even in the court that utters it.”[4] Judges have also warned about the misuse of dicta. Justice Frankfurter, in dissent, wrote that something of a “progressive distortion” takes place by which “a hint becomes a suggestion, is loosely turned into dictum and finally elevated to a decision.”[5] The Sixth Circuit’s Judge Kethledge wrote “dictum is usually a bad idea, because judges think differently—more carefully, more focused, more likely to think things through—when our words bring real consequences to the parties before us.”[6]

So what did the Ninth Circuit do that is so different from its sister circuits? In a False Claims Act case, where the Court had previously found that the first plaintiff to file is the only private party that may file a claim because it is “jurisdictional,” an en banc court overruled its earlier “precedent.”[7] The majority noted that the original designation of being first deprived the court of jurisdiction over subsequent plaintiffs with similar claims even though it occurred “without any analysis,” which subsequent decisions accepted without analysis as well.[8] Yielding to the Supreme Court’s criticism of “profligate use of the term ‘jurisdiction,’”[9] and the modern requirement that only Congress through a clear statement can designate a statutory requirement as jurisdictional,[10] the Ninth Circuit deemed it necessary to convene en banc and overrule its earlier panel decision.

The author of the majority opinion also wrote a concurrence, joined by one other member of the court, declaring that this “case demonstrates that our dicta-is-binding rule is burdensome and misguided.”[11] The concurrence by Judge Danielle J. Forrest called the Ninth Circuit’s solitary approach to in-circuit dicta without “legal foundation” and a cause of “unnecessary inefficiency and waste[d] resources,” a reference to the need to overrule it en banc because no panel could do so.[12] She colorfully added, “[w]e stand out like a flamingo in a flock of finches in treating dicta as binding.”[13] Yet, Judge Forrest’s plea to change the circuit’s approach was in a concurrence, suggesting that she could not bring along a majority of her colleagues – yet.

Circuit differences also exist about how to treat Supreme Court dicta, although there exist a number of competing schools of thought. At one extreme stands the Fourth, Sixth, and Tenth Circuits. As an “inferior court,” the Fourth Circuit holds it must treat as authoritative “carefully considered language of the Supreme Court, even if technically dictum.”[14] That stance leaves a little wiggle room if the dicta is not “carefully considered.” The Sixth Circuit more straightforwardly states that “[l]ower courts are obligated to follow Supreme Court dicta.”[15] The Tenth Circuit similarly asserts “this court considers itself bound by Supreme Court dicta almost as firmly as by the Court’s outright holdings.”[16]

On the other hand, the previously on-board Eighth Circuit retreated from the same approach, declaring that it “goes too far.”[17]  Instead, the circuit will “afford deference and respect to Supreme Court dicta, particularly where, as here, it is consistent with longstanding Supreme Court precedent.”[18] Other circuits emphasize deference as well but with a thumb on the scale in favor of following the Supreme Court. The Third Circuit, for example, recognizes that Supreme Court dicta is not binding but strives to give it due weight because it understands that the Court “uses dicta to help control and influence the many issues it cannot decide because of its limited docket.”[19] That seems to credit the Supreme Court with an intent it may not have. The Seventh Circuit subscribes to an even stronger position, warning against “Appellate courts that dismiss these expressions [in dicta] and strike off on their own increase the disparity among tribunals (for other judges are likely to follow the Supreme Court’s marching orders) and frustrate the evenhanded administration of justice by giving litigants an outcome other than the one the Supreme Court would be likely to reach were the case heard there.”[20] That, too, seems to rely on a predictive model that may not obtain, given the Supreme Court’s own statement that “dicta settles nothing.”

Even the Ninth Circuit, despite its in-circuit attitude, applies deference with by providing Supreme Court dicta with a “weight that is greater than ordinary judicial dicta as prophecy of what that Court might hold.”[21] The D.C. Circuit takes a similar stance.[22]

One thing to keep in mind, though. Much of this is just dicta about dicta.

 

[1] Kirtsaeng v. John Wiley & Sons, Inc., 568 U.S. 519, 548 (2013).

[2] Id.

[3] Id.

[4] Jama v. Immigr. & Customs Enf’t, 543 U.S. 335, 352 (2005).

[5] United States v. Rabinowitz, 339 U.S. 56, 75 (1950) (Frankfurter, J., dissenting).

[6] United States v. Burris, 912 F.3d 386, 410 (6th Cir. 2019) (en banc) (Kethledge, J., concurring in the judgment)

[7] Stein v. Kaiser Foundation Health Plan, Inc., 2024 WL 4271950, *2 (9th Cir. Sept. 24, 2024).

[8] Id.

[9] Sebelius v. Auburn Reg’l Med. Ctr., 568 U.S. 145, 153 (2013).

[10] Santos-Zacaria v. Garland, 598 U.S. 411, 416 (2023).

[11] Id. at *3 (Forrest, J., concurring).

[12] Id. (Forrest, J., concurring).

[13] Id. at *6.

[14] Wynne v. Town of Great Falls, 376 F.3d 292, 298 n.3 (4th Cir. 2004).

[15] American Civil Liberties Union of Ky. v. McCreary Cnty., 607 F.3d 439, 447 (6th Cir. 2010).

[16] Gaylor v. United States, 74 F.3d 214, 217 (10th Cir. 1996).

[17] In re Pre-Filled Propane Tank Antitrust Litig., 860 F.3d 1059, 1064 (8th Cir. 2017).

[18] Id.

[19] In re McDonald, 205 F.3d 606, 612–13 (3d Cir. 2000).

[20] United States v. Bloom, 149 F.3d 649, 653 (7th Cir.1998).

[21] United States v. Montero–Camargo, 208 F.3d 1122, 1132 n.17 (9th Cir.2000) (en banc).

[22] Bangor Hydro–Elec.  Co. v. FERC, 78 F.3d 659, 662 (D.C. Cir. 1996).

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

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

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

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

 

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

[2] Id. at 376.

[3] Id. at 376-77.

[4] Id. at 377.

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

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

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

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

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

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

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

Different Strokes for Different Courts

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

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

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

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

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

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

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

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

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

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

Choosing the Right Tools and Understanding Their Capabilities

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

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

Embedded GenAI in Legal Tools

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

Ethical Considerations: Using GenAI Wisely

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

Expanding Beyond Drafting: Where GenAI Really Shines

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

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

Making the Most of GenAI: Tips for Success

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

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

Neurodiversity and Legal Advocacy: Tying it All Together

Tying it all Together

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

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

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

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

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

Disclosure 

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

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

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

Universal Design for Neurodivergent Success

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

To do so, several objectives must be met:

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

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

Most of these environmental adjustments are good for everyone.  

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

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

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

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

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

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

Closing Thoughts

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

All prior posts with suggested readings:

Neurodiversity and Legal Advocacy - Introduction

Neurodiversity and Legal Advocacy - Dyslexia

Neurodiversity and Legal Advocacy - Autism

Neurodiversity and Legal Advocacy - ADD/ADHD

 

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