Appellate Advocacy Blog

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

Monday, April 6, 2020

#ToddlersofAppellateTwitter

Let's be honest for a minute--parenting is hard.  So is being a lawyer.  So is living through a pandemic.  Add all those things together, and you have life as we now know it for many  lawyers across the country.  While most courts are being generous with granting extensions and hearing arguments remotely, briefs still need to be filed and cases still need to be argued.  And, for many people, these tasks must be completed at home with extra helpers on hand--helpers who version of "help" might not be the same as the attorney heading up the office.  

I read a draft motion a few weeks ago that asked for a time extension due to the fact that "the undersigned has two new full-time coworkers (ages 4 and 6) who need time to get up to speed on office procedures and workflow."  I imagine that many lawyers can relate. On #appellatetwitter, I see  attorneys discussing the difficulties they are having getting work done and homeschooling and supervising their young kids.  Their days involve early mornings and late nights of work, with homeschooling and kid-wrangling in between.  The same is true with law professors, who are still trying to deliver a quality legal education, albeit remotely.  

Samantha Stokes of Law.com had a great story on this issue last week, entitled "Your Clients Need Attention. But So Do the Kids." In the story, several female lawyers recount the struggles with managing workload, competing schedules, and young children.  While courts are generally being sympathetic and understanding, the stress of getting work done, of keeping the kids sane, of finding toilet paper, and if everything else that this pandemic brings has been hard.

While I don't have any great solutions (I write this post as my toddler naps), I hope that we can continue to show grace and understanding to those we interact with on a daily basis--whether that be opposing counsel, the court clerk, law students, or delivery drivers.  I would like to think that we are all doing the best we can.  Hang in there and #staysafe!

April 6, 2020 | Permalink | Comments (0)

Monday, March 30, 2020

Clear is Kind When It Comes to Scheduling During a Pandemic

Tomorrow is the last day of March, and if internet memes are to be believed, this month has felt a lot longer than its 31 days. It certainly has for me. At the beginning of March, I was still teaching classes in-person, still eating out, still thinking we would be finishing our semester in-person. Some Supreme Court advocates thought they would argue before the Court; litigants thought their cases would be heard. COVID-19 appeared only a distant threat.

As Spring Break at my University stretched on, we were on a rollercoaster (as many of you were, too), not knowing if we were coming back after Spring Break, then an extension on Spring Break, then online teaching until April 3rd, and then finally we received word that we would be teaching online for the rest of the semester. While it has all been challenging, I have felt my anxieties lessen as I have more of a concrete sense of what work will look like, even as COVID-19 has become a growing, terrible reality. Knowing that we will be staying home and working remotely for an extended period of time has given me an ability to focus, which was elusive in the middle of the month when everything was up in the air.

Seeing this headline today on CNN, “Spring cases in limbo without Supreme Court guidance on arguments during pandemic” gave me real empathy for the litigants and attorneys whose cases are in limbo. While the Supreme Court issued another order on March 19, 2020, lengthening deadlines for filing petitions and stating that motions for extensions would be granted as a matter of course, these “modifications to the Court’s Rules and practices do not apply to cases in which certiorari has been granted or a direct appeal or original action has been set for argument.” Some cases are still scheduled for arguments in late April, despite President Trump’s extension of the social distancing orders though the end of April. Additionally, there have been no announced plans for when the already-cancelled oral arguments from March will be held. Some are criticizing the Court’s unwillingness to adopt new technology, as many other courts are doing, in order to hear some of the important cases scheduled. Perhaps this pandemic will be what shifts some of the Court’s traditions, but there has been no indication of that so far.

I’m a fan of the Brené Brown idea that “clear is kind, unclear is unkind,” and in times of uncertainty it is especially true. We know leaders do not have all the answers, but our institutions, including the Supreme Court, need to make and publish clear guidance on how that institution will function. Over-communicate in a time of crisis. More guidance and clarity from the Court will allow litigants, attorneys, and the entire country to adjust as quickly as possible, just as we are all adjusting to staying at home.


March 30, 2020 in Appellate Practice, Appellate Procedure, United States Supreme Court | Permalink | Comments (0)

Sunday, March 29, 2020

Teaching Legal Writing in the Coronavirus Era

The spread of the coronavirus has resulted in law schools transitioning to online learning. The delivery of legal education online certainly presents challenges for law students and legal writing professors (and professors generally). Below are tips (some rather obvious) that can hopefully contribute to facilitating a reasonably smooth transition to teaching legal writing online, and in a manner that: (1) maximizes students’ attainment of relevant learning outcomes; and (2) creates a supportive learning environment.

1.    Be clear about the requirements and expectations going forward

The spread of the coronavirus – and the transition to online legal education – will cause many students to experience increased stress, uncertainty, and anxiety, the severity of which will vary based on each student's circumstances. Indeed, these effects will impact some students more directly and substantially than others.

To facilitate the transition to online education, professors should communicate clearly to students the requirements and expectations regarding assignments and grading, particularly if assignments or grading policies have been modified. For example, many law schools have decided to transition to pass/fail (or credit/no credit) grading for all courses. As such, professors should explain to students the criteria that distinguish passing from failing grades (e.g., a passing grade is the equivalent of a ‘C’ or better).

2.    Provide students with writing checklists to make them aware of your grading criteria and to help students edit their work

Professors should consider creating a one or two-page checklist that sets forth the criteria (essentially, the rubric) that they will use when assessing the students’ work. Doing so will enable students to focus their writing and editing on the most relevant aspects of an assignment (e.g., effective topic sentences, proper IRAC structure), and help them to produce their best work.

3.    Draft a one or two-page summary each week highlighting the major points of that week's classes

As stated above, the transition to online learning will likely cause many students to experience increased stress and anxiety due to, for example, increased family obligations and financial difficulties. Indeed, students may have less time to devote to their studies or simply struggle to focus on their work, particularly if they are living with family members or home-schooling children. For these and other reasons, students may struggle to complete reading assignments or otherwise dedicate sufficient time to mastering the material.

Drafting a one or two-page summary of the major points covered each week (with examples) will simplify the material and help students focus their attention on the most relevant legal writing skills.

4.    Shorten the remaining assignments

In courses where students are required to write, for example, a pre-trial motion, appellate or trial brief, professors should consider shortening their assignments if the circumstances warrant. For example, professors may consider requiring students to write only the legal argument section of a pretrial motion or appellate brief. And professors can consider incorporating smaller, problem-based assessments to focus on areas that may not be required in a summative assessment.

5.    Consider reducing or even eliminating the research aspect of an assignment

Some students will have reduced access to internet service and to electronic platforms such as Westlaw, Lexis, and Casetext. As such, professors should consider closed universe assignments that provide students with relevant legal authority.

6.    Be as accessible as possible and provide as much feedback as possible

The transition to online learning will significantly impact students’ ability to meet with their professors for individualized feedback and support.

Two approaches may lessen the resulting impact on students. First, professors can hold a few optional classes for the entire class, in which the professor provides generalized feedback on the students’ work and offers suggestions for improvement. Second, professors can, at the outset of online learning, hold 10-minute conferences in which the professor provides support and feedback to each student (based on, for example, prior assignments). And in providing feedback, be mindful that students lack access to some, if not all, of the support services (e.g., a writing center, face-to-face interaction, academic success) that were previously available. This should cause law schools who remain on a grading system to consider adjusting their grading curve upward or permitting students who are particularly disadvantaged the option to take one or more courses on a pass/fail basis.

7.    Consider holding online legal writing classes only once per week

This suggestion may not apply to some law schools, but at law schools where legal writing courses are held two or more times per week, professors should consider switching to a once-a-week format. Doing so will enable law professors to devote sufficient time to discussing the relevant material and reduce the burden on students who may struggle to coordinate their schedule in light of personal circumstances.

8.    Take ten minutes at the end of each class to show that you care

Certainly, this is a difficult time for law students and law professors. One way to help students is to devote ten or fifteen minutes at the end of each class to simply asking the students how they are doing and encouraging them to share their respective experiences. Doing so will help to create a constructive ad supportive learning environment.

9.    Be optimistic and inspire students

Many students will probably rely to some degree on professors and others to provide support during this difficult time. This places professors in a position to offer encouragement, optimism, and inspiration to their students, and to show students that they can succeed despite adverse circumstances.

10.    Balance compassion with rigor

Certainly, this is an extraordinary time that requires compassion and understanding for students. At the same time, compassion should be balanced with rigor. Professors should continue to challenge students to put forth their best effort and reward those who produce the highest quality work. Indeed, just as this is a time for compassion, it is also an opportunity to teach students that, no matter what circumstances they may face in life, they must possess the mindset and coping skills to succeed despite adversity.

11.    Take care of yourself

Law students and law professors should be particularly mindful of their physical and mental health during this period. Exercise. Eat healthy foods (and junk food in moderation). Practice mindfulness techniques. Communicate with friends and family. Do things that make you happy (listening to Elvis Presley’s music is likely to create substantial happiness) and remember that this, too, shall pass.

March 29, 2020 in Current Affairs, Law School, Legal Profession, Legal Writing | Permalink | Comments (0)

Saturday, March 28, 2020

Some Simple Tips For Presenting Remotely

I love working with folks virtually. It's easy for us to focus on documents or presentations. It's easy to give things attention when they deserve it. It's also easy to keep meetings and presentations more concise. So whenever folks say they're open to a virtual meeting or presentation, I take them up on it. Who wants to fly across the country to give an hour talk when you can give the same talk in your PJ's? 

In this new world where we are all lawyering from home, I thought I'd share some simple tips I've learned over the years. 

Capturing audio for your audience. 

First, figure out how you'll capture your voice. You'll often have more success with an external microphone rather than the built-in ones (for most computers). The built-in ones just aren't designed to pick up quality audio. Especially as you get into your presentation and move around some. 

Big headsets often have the best quality, but I find that this can be awkward when presenting because it creates a barrier between you and your listeners. On the other hand, if you have headphones with a mic, like these, they often work just fine and are less obtrusive. The question then becomes whether your laptop has a jack that accepts this input. 

If you want to invest in something more powerful that will pick up everything, I use this after lots of testing. This is bulky and overkill for general chats. Probably more than you want to know, but if you want a powerful mic, you may want one that says it has "Cardioid" mode. Without getting into specifics, this just means the mic is designed to pick up one person in front of it.

How you capture video. 

Next, make sure your audience has no problem seeing your beautiful face. Many laptops and tablets these days have decent cameras. If you'd like to use your built-in camera, I suggest testing your videoconferencing out with someone else to make sure the quality is where you want it. You can do this pretty easily by setting up a videoconference on your computer and joining it with your smartphone or another device. Or asking someone else to test it (feel free to reach out to me!).

If you don't have a good built-in camera you are happy with, this is an easy fix. Like your external mic, external webcams are cheap and easy to use. Here are a couple good ones you can get on Amazon in just a day or two:

Camera 1.

Camera 2 (this one has a nice microphone built in, but it's more spendy). 

One other option is to use your smartphone as a webcam.

This is surprisingly easy, and given the quality of most smartphones, using your smartphone as a webcam can give you great quality.

One of the easiest apps out there to do this is iVCam. It's cheap and setting it up takes only two simple steps. You need to download the app on your computer here. Just install the file and it will take over from there.

Then download the iVCam app on the Apple or Android store. Just search for iVCam on the App Store.

Finally, make sure that both your computer and smartphone are on the same WiFi.

Once both of the apps are installed and both are on the same WiFi, open the app on your smartphone. It should auto-detect your smartphone as a webcam. Now, just select your new "external" webcam, which should be called something like "iVCam" and you're ready to go!

What your audience sees and hears.

Many folks new to virtual meetings forget to consider what you and your surroundings will look like to viewers on the other end. So consider a few tips.

  • What's in your background and in view of the camera?

    Consider positioning your camera so that you have a plain wall or other solid background. Or use a virtual background, if you're conference software has it.

  • Adjusting the camera's field of view.

    Many cameras and software let you zoom the camera in or crop out your surroundings. This can help keep the background less distracting. At the least, you can re-position any external camera (part of why external ones are helpful) to cut out the background and focus on you.

  • Some folks struggle with following both your presentation and your face.

    Most software, like Zoom and Webex, let's you turn off your video altogether and focus on a PowerPoint or other screen. One strategy is to have some fact to face presenting, then transition to the PowerPoint or screen share.

  • Do I need to wear pants?

    In theory, your audience will probably only see the top half of your torso. But what if you need to run to the bathroom and forget? Don't be that person. 

  • Background sounds.

    Any microphone that picks up your voice well is going to pick up background sounds just as well. If there is recurring noise, it can distract your audience. Things like fans can create \real issues for listeners. This is why it's key to test out your setup at least once while you are in your office environment. If you know you are likely to have lots of background noise, consider using a headset microphone which picks up less. 

  • Feedback on your end.

    If you have your microphone near your speakers, when audience members talk, it may create nasty feedback and echos. So keep your speakers away from your mic, if possible. Again: test your setup thoroughly to see if your setup is creating issues like this.

  • Consider configuring where you want the sound to come from on your end.

    If you're using a headset, make sure to select the audio output in your conferencing software to go to your headset, not your computer. Loud sounds from your computer can create echos and feedback.

  • Feedback on your audience's end.

    If your audience's own microphones are on and un-muted, they may create distracting sounds or feedback for the whole group. You can mute participants in any good video conferencing software, like Zoom or Webex. But that isn't going to help when you open up the meeting for discussion. So it can help to ask members ahead of time to only un-mute to ask questions, then to re-mute. And also ask them to be sure they try to minimize background sounds, too.

  • Lighting

    Make sure you have adequate light in your space, but that no lights are pointed directly at your camera. Again, testing once will make sure your space looks inviting to your audience.

Getting your digital workspace set up.

The transition to virtual working comes with a lot of challenges. One of those is juggling more logins, websites, software, and documents.

It can help immensely to organize your desktop and online workspaces a bit extra right now.

For example: When meeting with others, you can't just pull out a document or book off your shelf. You will need to have a digital copy that you can screen share, or at least point them to.

So think ahead to all of the non-digital resources you regularly use when working with others. Then make sure you have them at your fingertips in a virtual environment. 

Getting fancy: Integrating a tablet or other devices

There are a lot of other neat things you can do to set up a virtual presentation space at home or in the office.

For example, using a tablet with Zoom allows you to write on your tablet like a whiteboard, and your audience can see your writing in real-time.

Your physical comfort matters, too.

You will probably be sitting your chair even more during this transition. So it can help to schedule breaks during your meetings so that you and your audience can get up and move around. Making sure you have a comfy chair also helps. 

March 28, 2020 | Permalink | Comments (0)

Friday, March 27, 2020

Appellate Advocacy Blog Weekly Roundup Friday, March 27, 2020

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

US Supreme Court Opinions and News:

  • The Supreme Court ruled that states can eliminate the insanity defense for accused criminals who suffer from mental illness. The ruling upholds a Kansas law that prevents defendants from arguing that diminished mental capacity impaired their ability to understand right from wrong. The court rejected the claim that the law was unconstitutional.  See the opinion and report from the Wall Street Journal, Reuters, Hill, NPR, and APNews.

  • The Supreme Court ruled that states may not be sued for copyright infringement. Specifically, the Court held that the Copyright Remedy Clarification Act was an unconstitutional abrogation of state sovereign immunity. The ruling prohibited an underwater videographer’s suing North Carolina for using his copyrighted videos of a submerged ship used by Blackbeard. See the opinion and reports from NPR, Reuters, Bloomberg, ArsTechnica, and National Law Review.

  • The Supreme Court unanimously ruled that a lower court used the wrong legal standard in a racial discrimination lawsuit. The Court ruled that, for his discrimination case to survive, media mogul Byron Allen must show that race was the determining reason that Comcast refused to carry his channels and sent the case back to the Ninth Circuit for reconsideration. Legal experts and civil rights groups warned that the Comcast victory could make it more difficult to bring racial discrimination cases by setting a high bar. See the opinion and reports from Reuters, Bloomberg, CNBC, and The Hill.    

    The three decisions were issued remotely this week. See reports on the three decisions from The New York Times, the Washington Post, and the Wall Street Journal.

Federal Appellate Court Opinions and News:

  • The Second Circuit affirmed the ruling that the president’s practice of blocking critics from his Twitter account violates the First Amendment. The court will not rehear the case despite a request from the Justice Department. See the ruling and reports from The Washington Post, Politico, The Washington Times, The Associate Press, and CNN.

  • The First Circuit upheld a ruling that the Justice Department cannot compel cities to comply with federal immigration authorities as a condition of receiving federal grants. The cities of Providence and Central Falls had sued the Department of Justice for requiring that recipients of a federal criminal-justice grant cooperate with authorities in the enforcement of federal immigration law. The ruling states that the statutory formula outlining how the grant can be allocated “simply does not allow the DOJ to impose by brute force conditions on [such] grants to further its own unrelated law enforcement priorities.“ See the ruling and reports from Bloomberg and Providence Journal.

COVID-19 and the Courts

  • More courts are holding virtual oral arguments and some are making those arguments available online.  For example, see the Eleventh Circuit’s announcement, the Ninth Circuit’s announcement, the DC Circuit’s announcement, and the Second Circuit’s announcement.
  • New York has issued a wide-ranging order suspending statutes of limitation.  The  executive order temporarily suspended statutes of limitations, service, and other legal time periods through April 19, 2020.

  • Montana Supreme Court Chief Justice has asked state judges to release nonviolent inmates to protect against the spread of Covid-19. See report.

Advocacy tips

Tips from practitioners on telephonic oral argument:

March 27, 2020 in Appellate Advocacy, Appellate Practice, Appellate Procedure, Federal Appeals Courts, Oral Argument, United States Supreme Court | Permalink | Comments (0)

Tuesday, March 24, 2020

Lawyering for Children

    Like most parents across the country, I’ve been suddenly thrust into the rule of chief academic officer of my own home school in the past week. The degree of difficulty, on a scale of 1-10, is somewhere around 9.5. Let me gently suggest that the readers of this blog please hug a teacher whenever the scourge of this virus is past us.

    The challenge of suddenly becoming a teacher for young children does, however, come with some readily identifiable lessons. And fortunately for the readers of this blog, many of those lessons are directly applicable to advocacy.

    I’ll start by expressly disclaiming any suggestion that judges are like children. With that out of the way, though, parallel techniques are important for an effective presentation of material to any impatient audience, regardless of age and education level. This week has reminded me of some guidelines that are useful for lawyers to keep in mind when the world returns to its axis and we return to our courtrooms.

    Whether teaching children or speaking to a court, the speaker must aim to simplify without pandering. Speak in terms too complex and your audience will gloss over. Speak down to your audience and they are liable to scream indignantly in response. The trick is to find the right balance between simplicity and pandering—the place where candor lives. Practice makes perfect, but in the short term, remember to remain flexible and change your approach in response to your audience’s reaction, whether than be a rudely interrupting question or a stomping march accompanied by a pouty frown.

    To effectively present challenging material to any audience, the speaker must avoid creating an us-versus-them mentality. Your audience is not your opponent. The opponent is the difficult information you are presenting, which you and your audience hope to overcome together. Generating the bonhomie necessary to convince your audience that whatever point you are making is the best way to resolve the problem they face is a tremendous challenge. Again, achieving candor is crucial. And no matter how frustrated you may be by an audience that just isn’t getting it, never yell; it just builds a wall between you.

    Engagement is everything. Lecturing just does not persuade. Instead, the speaker should present the audience with the opportunity to creatively resolve an important question, whether it be relatively basic arithmetic or a complex jurisdictional quandary. Putting the problem in a larger context is always helpful. If the audience believes the problem matters not just today, but in the weeks and months ahead, they will be far more receptive to the presentation.

    Finally, the speaker must divide content into digestible chunks, keeping in mind their audience’s cognitive capacity. Don’t overload the audience with factual details they are unlikely to retain; simplify the details to just those needed to address the first piece of the immediate problem ahead. Then present the steps needed to solve that problem as concisely as possible, without detours and aside. Your time is as limited as the audience’s attention span. Condense accordingly

    I hope this is a helpful, and maybe a bit lighthearted, distraction in the midst of the pandemic that is gripping our world. But more importantly, I hope anyone reading this is happy, healthy, and safe.

March 24, 2020 | Permalink | Comments (0)

Monday, March 23, 2020

Moot Court in the Age of Coronavirus

In the wake of the COVID-19 outbreak, Arizona Law decided to move our 2L/3L intramural moot court competition online.  Because our university's announcement about moving to online classes came during spring break, we determined that students who had traveled home for spring break would probably want to stay there to complete classes.  Therefore, we needed an option to allow students to conduct arguments remotely.

While our competition is rather small, it is important!  The winners go on to represent our school at the ABA's national appellate advocacy competition.

While our competition rounds start later this week, for the past several days our moot court board has been hosting practice rounds via Zoom.  I thought it might be helpful to other schools if I shared some tips for creating the competition and for running the rounds.

Competition structure:  Each round consists of three judges, a bailiff, and two advocates.  The bailiff is responsible for creating the Zoom meeting link, disseminating it to participants, and keeping time for the round. I have asked the bailiffs to list me as a co-host for the round in case of an emergency.  As soon as all participants are in the meeting, the bailiff will create break-out rooms for the advocates and the judges.  You can find more information about Zoom breakout rooms here.  The breakout rooms allow the judges to ask the bailiff any questions before the round begins. They also allow the judges to deliberate after the round.

Although the judges preside over two consecutive rounds, we are creating a Zoom link for each separate round. This prevents the second group of advocates from disrupting the end of the first argument.

Tips for judges: On Friday, I asked our moot court board what challenges they had seen in running the practice rooms.  They had some GREAT tips for judges to help make rounds run smoothly.

  • Technology Tips
    • Be sure to keep your microphone muted when you are not talking. 
    • Don't forget to unmute when you want to talk.
      •  I think that the above two points are the cardinal rules for any and all Zoom meetings.
    • Consider wearing a headset or earbuds to cut out background noise and to allow yourself to hear and be heard better.
    • Try to minimize Internet usage in your house during the argument.  Your connection will be better if your kids aren't streaming Disney+ while you are trying to judge (or argue!) a round.
      • When I am teaching an online class I try to close everything on my computer but Zoom and my notes. I don't want loud email notifications during my class.
    • Use gallery view on Zoom to better see everyone.
  • Setting Tips
    • Be mindful of the lighting. Back lighting will make you hard to see.  Front lighting will help you appear clearer.
    • Be sure that there is nothing distracting behind you (or in the room with you!).  My cats get locked out of my office during most meetings.
  • Argument Mechanics
    • Don't mark off for a poor sound connection.  Students have various levels of Internet service.
    • Also, don't mark off for lack of professional attire.  Many of our students went home for spring break not knowing that they would be staying home indefinitely while the whole world shut down. Now, as stores shut down, they might not have the ability to get professional clothes in a timely manner.
    • Don't be afraid to interrupt!  And don't be offended if students slightly talk over you.  Given the lag with online communications, some amount of interruption is inevitable.
      • Try to lean forward, raise your finger, or something to signify to the advocates that you are trying to ask a question.
      • But please ask questions!  This makes the students' experience so much better!
    • Don't be offended if students ask for clarification.

Tips for Participants

  • Read the judge tips--many of those apply to you!
  • Use gallery view to see all judges and the bailiffs. Watch carefully for social cues that indicate the judge has a question, like leaning forward. If you see such a cue, pause.
  • Dress as professionally as you can in the situation. If you don't have a suit (or at least a jacket) try to wear something neutral. Now isn't the time to pull out your "taco cat shirt." (sorry, I love my taco cat shirt).
  • Be mindful of your background.  You don't want the judges asking you about the poster for your favorite political candidate that is hanging the background.
  • Have fun and be patient! COVID-19 is fundamentally changing how courts operate.  Some of this is good. It is time for courts to get up to speed on technology and offer more video/telephonic hearings.  But, these types of proceedings require adjustment by everyone involved. Your video moot court experience will be a valuable one.

Good luck to all participants, and we here at the Appellate Advocacy Blog hope that you stay safe and healthy!

March 23, 2020 in Appellate Advocacy, Law School, Moot Court, Web/Tech | Permalink | Comments (1)

Saturday, March 21, 2020

One Successful Process for Zoom Moot Court Competitions

I hope everyone is staying safe as we navigate our new COVID-19 reality.  In response to the virus, some law schools are canceling oral arguments and moot courts, while others are considering moving arguments online. 

At Pepperdine Caruso School of Law, we just successfully held the preliminary rounds of our annual first-year moot court competition via Zoom.  We are one the first schools to take such a large tournament--with multiple levels of rounds and cash prizes--online.  As I helped move us to an online format in one crazy week, so many people inside and outside of Pepperdine gave me incredible support.  In an effort to pay that support forward, I am sharing our process here.  I hope our lessons can help other schools and moot court competitions make this transition.  Our experience was very positive.  The students are grateful we gave them a formal oral argument opportunity, and many sent thank you emails and even fun Zoom screen shots to us. 

In practice, many of us have appeared via video or phone for short hearings, and even for appellate oral arguments.  See https://www.ca9.uscourts.gov/content/view.php?pk_id=0000000995 (video and audio recordings of the Ninth Circuit argument in Sierra Club v. Trump, 929 F.3d 670 (9th Cir. 2019), where Judge Wardlaw appeared via Zoom).  Currently, courts all over the country are holding their oral arguments online.  See, e.g., https://www.courts.ca.gov/2dca.htm (California Court of Appeal website noting: “Counsel will appear remotely via video conference, by telephone conference, or by other electronic means as available and arranged by the Clerk's Office”).

We knew we wanted to give our students the traditional moot court experience in these new circumstances, and we chose to conduct arguments using Zoom.  We made one major change from the past, as we decided to let students opt out of the arguments to help students who had to leave our dorms quickly or who were otherwise struggling.  Happily, about half of our first-year students still chose to participate. 

We usually have two teams of two advocates each, or four students, argue in each room of our preliminary argument rounds.  With about 90 students arguing this year, we placed 4 students and 2 judges in each of our 23 Zoom "courtrooms." 

To run courtrooms at more or less the same time, we needed 23 Zoom host judges who could create Zoom meetings open to anyone with the links.  These judges also kept time, though we had the students run timers on their phones too.  We suggested on-screen timers shared to the whole courtroom, but the students were concerned the timers would take too much screen space, even with Zoom’s side-by-side view.

Once we identified trusted members of our community to be the Zoom host judges, we created and shared a step-by-step guide for making an open Zoom link.  We asked hosts to name their meetings "Courtroom One 4:15," and so on.  We then collected the hosts' Zoom links and added them to our Google Sheet listing all the students, courtrooms, and argument times.  We shared the sheet with the courtroom assignments and links to all of our first-year competitors.   

We had great support from our faculty, who joined some Moot Court Team members and Law Review students, as well as a few alums, to be our roughly 40 judges.  Some judges helped with multiple rounds, and many judges told us this was almost as fun as in-person arguments.

We ran three preliminary rounds, to spread out the ability for our Moot Court Board and me to “Zoom in” to meetings and help as needed.  We used ten courtrooms each during two evening rounds, and we needed to pop in to only two courtrooms to help.  The next morning, our three courtrooms ran without a hitch.  Having trusted judges as hosts really helped, and we recommend this approach.

We made our score sheet into a Google Form for the judges.  It was fun to watch the scores roll in after the rounds.  Moreover, our competition co-chairs had a spreadsheet right away with the score sheet data.  These chairs could quickly identify our top four teams for the semi-final round, unlike when they type in scores from paper forms.

We will have four teams in our semi-final round Monday night, and then the top two will go to our final round Wednesday night.  We will share the Zoom link for our final round courtroom with our whole school, and we will have sitting judges serving on our final round bench.  We made the judges a separate deliberation room Zoom meeting, to be doubly sure their voting discussion will be confidential. 

In our law school virtual classrooms today, we can still give our students a traditional first-year highlight by moving oral arguments online.  Many of our courts are doing the same thing, and after holding these successful digital arguments at Pepperdine, I can promise you will be glad you saved moot court by moving online too. 

March 21, 2020 in Appellate Advocacy, Appellate Practice, Appellate Procedure, Current Affairs, Law School, Legal Profession, Moot Court, Oral Argument, Web/Tech | Permalink | Comments (0)

Friday, March 20, 2020

Appellate Advocacy Blog Weekly Roundup Friday, March 20

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

 

US Supreme Court Opinions and News:

As Tessa noted in a blog post earlier this week the Supreme Court announced on Monday that it is postponing two weeks of oral arguments amid the coronavirus pandemic.  The Court indicated that it will hold its regularly scheduled Conference on Friday, March 20, although some Justices may participate by telephone, and that it will issue its regularly scheduled Order List onMonday, March 23.  More from Bloomberg.

On Thursday, the Supreme Court announced that it is relaxing certain filing deadlines in light of the coronavirus.  The measure extends to deadlines on filing petitions for review by the Court from lower court judgments to 150 days, instead of the previous 90 days.  More from Bloomberg

Federal Appellate Court Opinions and News:

A Slate article discussed how federal and state courts are scrambling and, often on the fly, making adjustments to how they do business in light of the Coronavirus pandemic. 

Federal courts are seeking financial help to tackle the impact of the coronavirus pandemic as courts across the country limit business.  Much of the money would go toward changes to drug and substance abuse treatment programs for defendants under court supervision, while additional portions would help to make sure judicial employees are able to transition to working remotely.  More from Bloomberg.

The full D.C. Circuit Court of Appeals granted en banc review of two cases involving the ability of Congress to bring lawsuits in court over disputes with the President.  The orders applied to a case involving an attempt to compel congressional testimony from former White House Counsel Don McGahn and to a case concerning assertions that the President overstepped his power by diverting funds to build a border wall.  More from the ABA Journal.

State Appellate Court Opinions and News:

State courts also started extending deadlines, shuttering doors, etc.  

  • The Slate article referenced above also discusses state courts' scrambling to deal with Coronavirus impacts.
In Colorado, a high-profile death penalty trial is moving forward, despite defense attorneys' concerns for the health of their client, jurors, and court personnel.  Defense counsel argued in court filings that jury selection should not proceed without screening and testing procedures for coronavirus in place. The district court judge handling the case denied the defense request, ruling that the court had already taken sufficient precautions by canceling most proceedings and ordering people showing symptoms not to come to the courthouse.  More from the Denver Post
 
 

March 20, 2020 | Permalink | Comments (0)

Tuesday, March 17, 2020

Supreme Court Argument Postponement amid Pandemic


Yesterday, the Supreme Court postponed two weeks of Oral Arguments, releasing this statement:

In keeping with public health precautions recommended in response to COVID-19, the Supreme Court is postponing the oral arguments currently scheduled for the March session (March 23-25 and March 30-April 1). The Court will examine the options for rescheduling those cases in due course in light of the developing circumstances.

The Court will hold its regularly scheduled Conference on Friday, March 20. Some Justices may participate remotely by telephone. The Court will issue its regularly scheduled Order List on Monday, March 23 at 9:30 a.m. The list will be posted on the Court’s Website at that time: https://www.supremecourt.gov/orders/ordersofthecourt/19.

The Building will continue to be open for official business, and filing deadlines are not extended under Rule 30.1. The Court is expanding remote working capabilities to reduce the number of employees in the Building, consistent with public health guidance. The Building will remain closed to the public until further notice.

The Court’s postponement of argument sessions in light of public health concerns is not unprecedented. The Court postponed scheduled arguments for October 1918 in response to the Spanish flu epidemic. The Court also shortened its argument calendars in August 1793 and August 1798 in response to yellow fever outbreaks.

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As has been well-documented, those older than 60 are at greater risk of serious complications and death from COVID-19. Currently, 7 of 9 justices are over 60. Two justices, Ruth Bader Ginsberg and Stephen Breyer, are over 80. Some are already calling for an increase in technological solutions, rather than just postponing to later live hearings.

There are significant numbers of other court closures and scheduling changes happening around the country. As every day brings new announcements, it’s a rapidly changing situation.

March 17, 2020 in Appellate Advocacy, Appellate Justice, United States Supreme Court | Permalink | Comments (0)

Monday, March 16, 2020

Excellent Legal Research and Writing Textbooks for Law Students (and Lawyers)

Developing excellent legal research and writing skills is essential to becoming a competent attorney. Below are some of the most outstanding resources for law students (and lawyers); these books provide excellent real-world tips on how to become a persuasive legal writer and excellent legal researcher.

Bryan Garner, The Winning Brief: 100 Tips for Persuasive Briefing in Trial and Appellate Courts, Third Edition (Oxford University Press, 2014)

In The Winning Brief, Bryan Garner offers law students (and lawyers) with practical and real-world tips to maximize the quality and persuasive value of their wring. Garner includes tips on how to organize a brief, capture the reader’s attention, and edit effectively.

Bryan Garner, Legal Writing in Plain English, Second Edition (University of Chicago Press, 2013)

In Legal Writing in Plain English, Bryan Garner uses real-world examples to show students how to write concise, clear, and persuasive prose. Garner also includes valuable exercises and his advice is applicable to a wide variety of legal documents.

Ross Guberman, Point Made: How To Write Like The Nation's Top Advocates, Second Edition (Oxford University Press, 2014)

Ross Guberman’s book is replete with examples of outstanding writing by the country’s top advocates. Using these examples, Guberman provides students with the techniques necessary to draft excellent and persuasive legal documents.

Noah A. Messing, The Art of Advocacy: Briefs, Motions, and Writing Strategies of America's Best Lawyers (Aspen, 2013)

Professor Messing’s book includes numerous examples of excellent writing that are taken from outstanding motions and briefs. The Art of Advocacy focuses on organization, style, and storytelling, and contains annotations that explain to the reader why particular documents are so effective and persuasive.

Mark Osbeck, Impeccable Research, A Concise Guide to Mastering Legal Research Skills (West, 2010)

Professor Osbeck’s book guides students and new attorneys through each step of the research process. Impeccable Research also includes tips on how to avoid common mistakes when researching and discusses how to address specific difficulties that may be encountered in the research process.

Antonin Scalia and Bryan Garner, Making Your Case: The Art of Persuading Judges (Thompson West, 2008)

In Making Your Case, former Justice Antonin Scalia and Bryan Garner provide invaluable advice to law students and lawyers regarding how to advocate persuasively before a court. The authors discuss, among other things, principles of legal reasoning, briefing, and how to draft an effective argument.

Steven Stark, Writing to Win: The Legal Writer (Three Rivers Press, 2012)

Professor Stark focuses on how to draft persuasive factual narratives and legal arguments, and includes excellent advice on how to draft a variety of real-world documents, such as complaints, answers, trial briefs, and appellate briefs. Additionally, Professor Stark’s book is replete with real-world examples that demonstrate the essence of outstanding writing.

William Strunck, Jr., and E.B. White, The Elements of Style, Fourth Edition (Pearson, 1999)

The Elements of Style shows students and lawyers how to draft clear, concise, and grammatically correct sentences, and is an invaluable resource.

Eric Voight, Legal Research Demystified: A Step-by-Step Approach (Carolina Academic Press, 2019)

Professor Voight provides invaluable instruction that will help students to become outstanding legal researchers. Additionally, Professor Voight includes interactive research exercises that are available on Core Knowledge for Lawyers. Each exercise guides students through the steps identified in the textbook and teaches them to research on Westlaw and Lexis Advance through screen captures and tips. 

Richard Wydick and Amy Sloan, Plain English for Lawyers, Sixth Edition (Carolina Academic Press, 2019)

In Plain English for Lawyers, Professors Wydick and Sloan offer valuable tips to help students draft clear, straightforward, and persuasive legal arguments. This includes, but is not limited to, using simple rather than complex words, drafting short sentences, writing in the active voice, and ensuring that a legal document is easy to read.

Of course, this list is not meant to be exhaustive. There are many excellent books that will assist students and lawyers in developing their research and writing skills. The books listed above, however, are among the best and will certainly accomplish this objective.

March 16, 2020 in Appellate Advocacy, Appellate Practice, Books, Law School, Legal Profession, Legal Writing | Permalink | Comments (0)

Quarantine, Coronavirus, and the Constitution

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Eugene Volokh over at the Volokh Conspiracy recently posted a blog sharing the expertise of law professor and M.P.H. Ed Richards on the issue of the constitution and coronavirus quarantine measures. Professor Richards notes that drastic public health measures were the rule of the day during our republic's early years, and that there is a strong originalist argument in favor of public health concerns trumping certain individual constitutional concerns.

As Richards noted:

Colonial boards of health may have been the first administrative agencies in the US. They exercised Draconian powers that were rooted in English law. The English statutory and common law recognized the right of the state to quarantine and limit the movement of plague carriers. Blackstone observed that disobeying quarantine orders merited severe punishments, including death. The argument of counsel in Smith v. Turner, 48 U.S. 283, 340-41 (1849) described measures to control a yellow fever outbreak in Philadelphia:

 

For ten years prior, the yellow-fever had raged almost annually in the city, and annual laws were passed to resist it. The wit of man was exhausted, but in vain. Never did the pestilence rage more violently than in the summer of 1798. The State was in despair. The rising hopes of the metropolis began to fade. The opinion was gaining ground, that the cause of this annual disease was indigenous, and that all precautions against its importation were useless. But the leading spirits of that day were unwilling to give up the city without a final desperate effort. The havoc in the summer of 1798 is represented as terrific. The whole country was roused. A cordon sanitaire was thrown around the city. Governor Mifflin of Pennsylvania proclaimed a non- intercourse between New York and Philadelphia.

 

These powers are classic police powers, exercised by the states. While they were not at direct issue in Smith, the power to quarantine ships was upheld against commerce clause and foreign affairs challenges in Morgan's Steamship Co. v. Louisiana Board of Health (1886). The power to establish cordons sanitaire was upheld in Compagnie Francaise de Navigation a Vapeur v. Board of Health of State of Louisiana (1902). The right of the state to require vaccination was upheld in Jacobson v. Massachusetts (1905).

As Richards goes on to comment, while the breadth of power the government can exercise is broad, it must be exercised with wisdom. The yellow-fever quarantine, for instance, we now know to be counterproductive: the disease is spread by mosquitoes, and quarantine only kept people in harm's way.

Most governmental limitations on gatherings and the imposition of involuntary quarantine have been, and likely will continue to be, local. The federal government's power to quarantine comes primarily from the Commerce Clause, as well as a statute passed pursuant to the power granted by that clause, 42 U.S.C. § 264. This statute is restricted to the quarantine of people at a certain stage of infection who either cross state lines, or are likely to come into contact with those who will cross state lines.

Local and state governments, however, have no such restrictions on their police power over local conditions regarding health and safety. For a listing of each state's statutory power to quarantine, see this website. As you can see, each state takes a different approach and violations carry different penalties, all of which may be tested under both state and federal constitutional challenges.

Due process challenges may be raised, as they have in the past, in response to the deprivation of liberty interests. Exactly what standard would be applied to these challenges is an interesting question. In Addington v. Texas, 441 U.S. 418 (1979), the Supreme Court dealt with an analogous issue - the involuntary confinement of persons with mental illness to state asylums. Noting that "[t]his Court repeatedly has recognized that civil commitment for any purpose constitutes a significant deprivation of liberty that requires due process protection," the court went on to discuss what standard was necessary in such cases. Id. at 425.

In order to protect competing interests of the State and its wards, the Supreme Court concluded that something more than "preponderance of the evidence" was necessary, but that the "reasonable doubt" standard used in criminal cases was too high. The Court thus held that a "clear and convincing standard" was the constitutional floor for commitment cases. See Id. at 430-33.

It is not entirely clear that the Addington standard would apply to infectious disease quarantine. There would be an argument for a lower standard, given the urgent and emergent nature of the current situation as compared to the usually measured and individual determination of mental illness. But Addington does give those who are curious some reading into the balancing interests at issue in crafting that standard.

Under Addington and other authorities, what must be proven by this "clear and convincing evidence" is not just that the person to be confined was mentally ill, but also that they presented a threat to themselves and others. It is likely that similar proof would be required for quarantine - that the person has been exposed to the virus, and that they present a risk to themselves or others if not confined. See Michael R. Ulrich, et al., Quarantine and the Federal Role in Epidemics, 71 SMU L. Rev. 391 (2018).

This analysis not purely academic. Some of those under voluntary quarantine have already broken their confinement and been placed into involuntary quarantine. More will likely have to be place there. And if conditions continue to deteriorate, the full extent of the federal governments power under 42 U.S.C. § 264 may be tested.

Hopefully, the "curve will flatten" soon thanks to voluntary compliance. If not, local and federal governments have powerful tools available to intercede, limited only by constitutional principles with application that is currently ill-defined.

(image attribution: Attack on the Quarantine establishment [Staten Island, N.Y.] on September 1, 1858, appearing in Harper's Weekly, Sept. 11, 1858).

March 16, 2020 in Current Affairs, United States Supreme Court | Permalink | Comments (0)

Friday, March 13, 2020

Appellate Advocacy Blog Weekly Roundup Friday, March 13, 2020

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

US Supreme Court Opinions and News:

  • The Supreme Court will hear a case from Mississippi that looks at the constitutional limits of sentencing juvenile offenders to life in prison without parole, specifically whether it is a constitutional violation to impose the sentence absent a finding that the defendant is incapable of rehabilitation. See report from the Hill and the NY Times.

  • This week, the Supreme Court granted an emergency request to lift a Ninth Circuit block on an administration immigration policy. The ruling leaves in place the policy that requires thousands of people seeking asylum to wait in Mexico while their claims are adjudicated. See Reuters report.

  • A recent study from Yale looks at the practice of the Supreme Court that gives the solicitor general oral argument time as a “friend of the court.”  The study looks at the history of the practice and its effect on the adversarial process.  See the study and a report in the NY Times.

Federal Appellate Court Opinions and News:

  • The US District Court for the District of Columbia upheld the lower court and held that the Justice Department must release the secret grand jury evidence lawmakers are seeking in the ongoing investigations into the president. See the opinion and a sampling of the reports from the Washington Post, the NY Times, Bloomberg, the Hill.

  • The Ninth Circuit ruled in favor of Led Zepplin in the appeal of a copyright suit claiming the ever-popular “Stairway to Heaven” copied a song by the band Spirit. The en banc opinion of the 11-judge panel affirmed the jury decision that the songs were not substantially similar. The court also took “the opportunity to reject the inverse ratio rule, under which [the Court has] permitted a lower standard of proof of substantial similarity where there is a high degree of access.” The Court ruled that this “formulation is at odds with the copyright statute and we overrule our cases to the contrary.” Some claim that this may be a “precedent-setting win for musical acts accused of plagiarism.” AP News. See a sampling of the many reports here: Rolling Stone, the LA Times, the NY Times, Reuters, Bloomberg, Law.com’s site “The Recorder” (subscription), the Wall Street Journal (subscription).

  • The US District Court for the District of Columbia determined that it lacked the expertise to evaluate a Guantánamo Bay prisoner to determine whether he qualifies for medical repatriation in consideration of his writ for habeas corpus. Instead, in a first for federal courts, the Court ordered a mixed medical panel of American and foreign physicians to evaluate the mental health of the prisoner, Mohammed al-Qahtani, a Saudi Arabian man held at Guantánamo for more than 18 years. See the ruling and reports from the NY Times, the Washington Post (subscription), and the ABA Journal.

COVID-19 and the Courts

COVID-19 is, of course, affecting court operations. Many courts are closing or restricting public access. The Supreme Court has closed its doors to the public as of March 12; the closure will not extend case filing deadlines under Supreme Court Rule 30.1.  For general information about other court closures and restriction, Law360 has an updating list of closures and restricts here. For specific courts, see individual court websites, many of which include statements specific to COVID-19 procedures.

March 13, 2020 in Appellate Advocacy, Appellate Justice, Appellate Practice, Appellate Procedure, Federal Appeals Courts, United States Supreme Court | Permalink | Comments (0)

Monday, March 9, 2020

About that alteration to your quotation....

While judges have lots of complaints about briefs, the two most common complaints from judges we saw in working on the third edition of Winning on Appeal were the following: (1) briefs are too long, and (2) attorneys misstate the law and record.  Recent changes to the Federal Rules of Appellate Procedure have tried to tackle the first complaint, but the second one remains an issue, as seen in a recent Ninth Circuit decision.

The case, which was up on an interlocutory appeal from the denial of summary judgment, involves several issues, including whether the Interstate Commerce Commission Termination Act "'preempts' treaty-based federal common law that allows tribes to exclude non-Indians from Indian land."  BNSF, the appellant railroad company, argued that it did.  In support of its argument it relied on two cases in its brief, but as the Ninth Circuit explains in its opinion, both cases were misrepresented to the Court.  The relevant discussion starts on page 24 of the opinion:

In support of its argument, BNSF wrote in its brief:

Consistent with the statutory text, “[e]very court that has examined [Section 10501(b)] has concluded that [its] preemptive effect . . . is broad and sweeping,” forbidding “impinge[ment] on the [STB]’s jurisdiction or a railroad’s ability to conduct its rail operations.” CSX Transp., Inc., FD 34662, 2005 WL 584026, at *6 (STB Mar. 14, 2005) . . . .

BNSF Brief at 28 (emphasis added; alterations in original). BNSF misrepresented what the STB [Surface Transportation Board] wrote in CSX Transportation. The actual text of CSX Transportation reads as follows:

Every court that has examined the statutory language has concluded that the preemptive effect of section 10501(b) is broad and sweeping, and that it blocks actions by states or localities that would impinge on the Board’s jurisdiction or a railroad’s ability to conduct its rail operations[.]

CSX Transp., 2005 WL 584026, at *6 (emphasis added). BNSF would have the reader understand that the STB had written that the preemptive force of the ICCTA is the same, whether it conflicts with federal law or with state or local law. By replacing the words “blocks actions by states or localities” with the word “forbidding,” BNSF removed the qualification STB included in the actual text.

One paragraph later, BNSF wrote:

This Court, too, has held that ICCTA squarely preempts remedies that “may reasonably be said to have the effect of managing or governing rail transportation.” Ass’n of Am. Railroads v. S. Coast Air Quality Mgmt. Dist., 622 F.3d 1094, 1097 (9th Cir. 2010)[.]

BNSF Brief at 28–29 (emphasis added). BNSF again misrepresented what was written. The actual text of Association of American Railroads reads as follows:

As stated by our sister circuits, ICCTA “preempts all ‘state laws that may reasonably be said to have the effect of managing or governing rail transportation,while permitting the continued application of laws having a more remote or incidental effect on rail transportation.’”

Ass’n of Am. R.R.s, 622 F.3d at 1097 (emphasis added). Again, BNSF would have the reader understand that our court had written that the preemptive force of the ICCTA is the
same, whether it conflicts with federal law or with state law. By replacing the words “all state laws” with the word “remedies,” BNSF removed the qualification we included in
our actual text and at the same time introduced a concept (“remedies”) not included in the text.

These misrepresentations would lead the unwary reader to understand that the STB and our court have both read the ICCTA to preempt broadly, without distinction between state and local law, on the one hand, and federal law, on the other. Such an understanding would, of course, benefit BNSF in this litigation. However, such an understanding is not supported by the decisions whose language is quoted in part by BNSF

As my toddler would say, "Uh oh!"  The Ninth Circuit doesn't stop there. It goes on to explain that after oral argument the panel asked the attorneys for the railroad company "to explain the manner in which they quoted these cases in their brief."  In response, they "defended[ed] their selective quotations" from the cases and said the following:

“Responding to the Court’s inquiry has led Counsel to appreciate, however, that we could have made explicit when first citing CSX and AAR that, even though these cases arose in a distinct context involving state and local law, BNSF contends they nonetheless supply the appropriate principles of law in this case. We regret not taking that approach.”

Unimpressed, the Ninth Circuit's response was that it "regret[ed] that BNSF’s attorneys wrote only that they “could have made explicit,” and that they “regret not taking that approach,” instead of acknowledging straightforwardly that they misrepresented in their brief what the STB and our court had written in those cases."  The Court went on to say, "[w]e expect better from the attorneys who appear before us."  As they should!

Misquoting or misstating the law is a fatal mistake in the practice of law.  Attorneys forget that both sides file a brief, and the other side will be quick to point out such mistakes in their briefing. Judges also have law clerks who consider it a badge of honor to identify such mistakes. When judges find such misrepresentations in briefs it leads them to conclude, as one judge said in Winning on Appeal, "that I cannot rely on anything in the brief."  Not a great position to be in if you want to win.

I hope the attorneys learned their lesson.

Thank you to the reader who alerted me to this case.

 

March 9, 2020 | Permalink | Comments (0)

Sunday, March 8, 2020

Oral Argument Recap: June Medical Services, LLC v. Russo

On March 4, the United States Supreme Court heard oral argument in June Medical Services, LLC v. Russo, an important case concerning the states’ ability to regulate abortion providers and access to abortion services. Specifically, the Court will decide the constitutionality of a law in Louisiana that requires abortion providers to obtain hospital admitting privileges at a hospital within thirty miles of where the providers perform abortions.

By way of brief background, in Roe v. Wade, the Court held that the Fourteenth Amendment’s right to privacy, which the Court recognized in Griswold v. Connecticut (and other cases), encompassed a right to abortion.[1] In so holding, the Court established a trimester framework. Under this framework, laws restricting access to abortions during the first trimester were presumptively unconstitutional. During the second trimester, states could only regulate abortion to protect a woman’s health and, in the third trimester, states were generally permitted to prohibit abortions, except to save or preserve the life of the mother. In Planned Parenthood of Southeastern Pennsylvania v. Casey, the Court upheld Roe but rejected the trimester framework. In so doing, the Court adopted an “undue burden” test. Under this standard, the constitutionality of laws regulating abortion depends on whether such laws unduly burden a woman’s right to access abortion services. After Planned Parenthood, several states enacted legislation to regulate and, arguably, restrict abortion access, and the Court, applying the undue burden standard, addressed the validity of these laws on a case-by-case basis. As a result, the nature and scope of the right to abortion remains unresolved.

The Court’s decision in June Medical Services will be among the most significant in the Court’s abortion jurisprudence. To begin with, the Court’s decision will clarify the precedential value of Whole Women’s Health v. Hellerstadt, where the Court invalidated – by a 5-4 margin – a nearly identical law in Texas.[2] In Hellerstadt, the Court held that the law in question conferred no material benefit on women and would likely lead to the closure of several abortion clinics, thus constituting an undue burden on the right to obtain abortion services. Additionally, the Court’s decision will likely impact the states’ ability to restrict abortion access in future cases and may clarify the scope of the right to abortion. Third, although not likely, the Court may adopt a new or, at least, modified standard by which to assess the constitutionality of laws regulating abortion, particularly because the “undue burden” standard has arguably been difficult to interpret and apply with any degree of consistency or predictability.

At oral argument, the justices appeared divided.[3]

Justice Samuel Alito raised the issue of third-party standing and questioned whether physicians who provided abortions could challenge the law on behalf of women. Specifically, Justice Alito appeared concerned that the physicians’ interests (i.e., avoiding unnecessary or burdensome regulations) conflicted with the interests of women seeking abortion services (i.e., safety and continuity of care). The majority of justices, however, did not appear to find this argument persuasive.

Chief Justice Roberts focused primarily on whether the benefits (and burdens) of laws requiring admitting privileges for abortion providers may differ on a state-by-state basis. Justice Brett Kavanaugh also questioned whether these laws would be considered constitutional if abortion providers could easily obtain admitting privileges at a nearby hospital. Roberts’s and Kavanaugh’s questions suggested that the Court may be considering whether these laws are facially constitutional or whether their constitutionality depends on the facts of each case.

Justice Ruth Bader Ginsburg, along with Justices Sonya Sotomayor, Stephen Breyer, and Elena Kagan, appeared skeptical of the law. For example, Justice Ginsburg questioned the utility of requiring that abortion providers obtain admitting privileges within thirty miles of where abortion serves are provided. As Justice Ginsburg stated, since the relatively small number of women who experience complications from medical or surgical abortions go to a hospital nearest to their residence, which almost always outside of the thirty-mile radius, the admitting privileges requirement arguably served no legitimate purpose.

Justice Sotomayor questioned whether, given the various requirements for obtaining admitting privileges at Louisiana’s hospitals, abortion providers could realistically obtain such privileges. For example, one factor is whether the physician has admitted a sufficient number of patients to the hospital to which the physician is applying. Given the fact that women rarely experience complications from abortions and thus are not admitted to a nearby hospital, abortion providers would not, in most instances, meet this requirement. This and other questions suggested that the law in Louisiana, like the law in Texas, reflected an attempt to restrict or even prohibit abortions, rather than to safeguard women’s health. The attorneys for Louisiana disagreed, arguing that most of the physicians who challenged the law had not made reasonable attempts to obtain admitting privileges and thus could not reasonably claim that they were unable to obtain such privileges.

Justice Breyer also questioned whether the Fifth Circuit Court of Appeal’s decision to overturn a portion of the district court’s factual findings satisfied the “clearly erroneous standard.”

And Justice Kagan appeared skeptical of the argument that the law served a “credentialing purpose,” particularly because hospitals could deny admitting privileges to a physician based on factors having no relationship to the quality of that physician.

Ultimately, Justice Breyer expressed a concern that has arguably plagued the Court’s abortion jurisprudence: the difficulty in adopting a reliable, predictable, and workable rule.

I understand there are good arguments on both sides. Indeed, in the country people have very strong feelings and a lot of people morally think it’s wrong and a lot of people morally think the opposite is wrong. And in Casey, and the later cases, I think personally the Court is struggling with the problem of what kind of rule of law do you have in a country that contains both sorts of people.[4]

Based on the oral argument, the Court’s decision in June Medical Services is difficult to predict. The difficulty of applying the nebulous “undue burden” standard, the politically divisive nature of this issue, principles of stare decisis, and concerns for the Court’s institutional legitimacy may certainly influence one or more of the justices.

Notwithstanding, based on oral argument, it seems that the Court may decide June Medical Services by a 5-4 vote, and if the Court invalidates the law, the most likely scenario would involve Chief Justice Roberts joining Justices Ginsburg, Kagan, Sotomayor, and Breyer in the majority. However, it is uncertain how Justices Neil Gorsuch and Brett Kavanaugh will vote, or how the majority decision will be written. It appears unlikely that the Court will simply overturn Whole Women’s Health; rather, if the Court upholds the law, it will likely do so by distinguishing Whole Women’s Health on the facts. The problem is that, if the Court chooses this option, it will fail to effectively guide lower courts and lawmakers, thus inviting additional litigation in the future. As such, the Court may hold that laws requiring abortion providers to obtain admitting privileges are facially unconstitutional because, regardless of the state in which such laws are enacted, they confer no benefit to women.

[1] 410 U.S. 113 (1973); see also Griswold v. Connecticut, 381 U.S. 479 (1965).

[2] 579 U.S.             ; 136 S. Ct. 2292 (2016).

[3] See June Medical Services, LLC v. Russo, Transcript of Oral Argument (March 4, 2020), available at: https://www.supremecourt.gov/oral_arguments/argument_transcripts/2019/18-1323_d18e.pdf.

[4] Id. at 61:24 to 62:9.

March 8, 2020 in Appellate Advocacy, Appellate Justice, Appellate Practice, Current Affairs, Federal Appeals Courts, Legal Profession, Oral Argument, United States Supreme Court | Permalink | Comments (0)

Compose: The Robo-Lawyer We've Been Waiting For?

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"Select from a library of automations tailored to your motion, jurisdiction, and the side you represent. Each automation includes the arguments, legal standards, and supporting authority you need to craft a winning brief." - Compose.law 

Folks have been sounding the alarm about robo-lawyers for decades. "Any day now," they say.

"We'll all be replaced."  

Mostly, that hasn't happened. Yes, lawyers struggle to realize the profits they once did. And yes, some of that is because of technology. But no, we don't have robots arguing motions or writing briefs yet.

Or do we? 

Casetext recently launched a product that brings us one step closer: Compose.law. Other than sporting the fancy .law domain, Casetext has done something exceptional here. They've created an automation tool that integrates legal research, writing, and high-level analysis all in one package. Other tools could replicate some of what Compose does. But no one has pulled off such a seamless product that does so much for so little.

If you're interested in looking under the hood or trying Compose for yourself, there's great press coverage here, and Casetext lets everyone try it for free at Compose.law

I've played around with Compose for a while now, and I'm a big fan. Does it write your brief for you? Not really. It puts together a helpful argument outline, fills in some passable background discussion, and makes it a snap to incorporate research. In short: It looks to be an excellent tool that could offer real efficiency and value. I think you'd be crazy not to try it.  

A few folks have been more skeptical. They worry that a tool like this will short-circuit the all-important critical thinking and judgment that every lawyer must apply to every document they write. And that goes double for law students and young lawyers. 

But there are a few reasons this is probably a worry without a problem. And it mostly boils down to this: Compose is still just a tool. All the major analytical decisions are made by the user. And anything that Compose inserts is obvious. So the user still decides--sentence by sentence--how the final document should come together.

Here's more on why instead of scared, I'm excited. 

First, Compose's decisions are all still user-driven. The user, not Compose, decides which arguments to raise. The user, not Compose, decides which cases to cite. 

Second, the final document that Compose spits out is still quite limited in analysis and legal nuance. For any big-ticket motion or brief, Compose will save you tons of time on the basics (like putting together the background standards), but it isn't going to do all the nuanced analysis that lawyers do. It pre-heats the oven, but lawyers still do the cooking. 

Third, from what I've seen, many of Compose's suggestions are spot on. If a tool will help you produce something helpful to your client, how can that be a bad thing? Our job is to represent clients the best we can. It's not to win awards for our writing acumen. 

Fourth, good lawyers and firms have been trying to replicate this same stuff for ages. Compose is like a world-class knowledge management system integrated with legal research tools. In other words, it's a knowledge management system that actually works and people may actually use. 

Fifth, Compose produces first drafts, not final products. It frees up lawyers to spend more time debating our analytical and persuasive decisions, and less time on rote tasks like finding and describing a general background principle. 

Sixth, the idea that a lot of lawyerly judgment and thinking is needed (or used) on every document is just not true. Big caseloads and cost pressures already force lawyers to rinse-and-repeat prior motions they've written. In some practice areas, you'd be an outlier if you didn't copy and paste your litigation documents. Both as a clerk and in studying legal writing since, I've seen it more times than I can count (the giveaway is that one wrong name that the lawyer missed in their find-and-replace run). With a tool like Compose, these lawyers should put together a better document for their judges. 

Finally, the possibilities for the public excite me. The tool is a bit spendy for them (for lawyers, given the potential time savings, I think it's a steal). But I'd love to see a tool like this available to pro se folks. 

Instead of Compose making our skills atrophy, most lawyers and law students will learn a lot from the platform. I know I did, and I've only tinkered with it a few times. I can't wait until Casetext makes it available to law students and faculty, so I can start incorporating Compose in my classes. 

March 8, 2020 | Permalink | Comments (0)

Friday, March 6, 2020

Appellate Advocacy Blog Weekly Roundup Friday, March

WeeklyRoundupGraphic

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

US Supreme Court Opinions and News:

Mary Harris had a piece at Slate this week in which she discussed the Supreme Court’s decision last week in Hernandez v. Mesa, wherein the Court ruled that the parents of a Mexican child who was shot and killed by a U.S. Border Patrol agent – while the child was on the Mexican side of the border and the agent on the U.S. side – could not seek damages for their child’s death.  She titled the piece, “The Supreme Court Just Gave the Border Patrol a License to Kill.” 

The Court heard arguments this week in June Medical Serv’s LLC v. Russo, in which the Court is reviewing a Louisiana law that limits access to abortions; critics of the law say that it will leave just one doctor in the entire state able to perform the procedure.  The Louisiana law is similar to a Texas law that the Court struck down four years ago.  However, the makeup of the Court has shifted significantly in the past four years, and the exchanges during oral argument suggested that the Court now may be poised to uphold the law.  Is strongly appears that Chief Justice Roberts may be the key vote on whether the law is upheld or stricken down.

The Court heard arguments this week in Seila Law LLC v. CFPB,  in which the Court is asked to make a ruling that will likely impact the future independence of the Consumer Financial Protection Bureau, and perhaps signal the future for the independence of other governmental agencies.  The specific issue raised concerns whether the vesting of significant executive authority in the Bureau violates the separation of powers. 

    • More from NPR

This week, Senator Chuck Schumer said that Justices Neil Gorsuch and Brett Kavanaugh will “pay the price” if they sided against abortion access.  The same day, Chief Justice John Roberts delivered a rebuke of Schumer, chastising him for “threatening” the justices. 

Federal Appellate Court Opinions and News:

D.C. Circuit Judge Thomas B. Griffin announced this week that he is retiring from the bench, effective September 1.

State Appellate Court Opinions and News:

Pennsylvania was in the news last week, when Montgomery County’s Board of Commissioners fired the two leaders of the Montgomery County Public Defender Office shortly after they filed an amicus brief recounting injustices in the county’s bail practices.  The firings have raised concerns about the independence of public defenders and the impact on the integrity of the justice system. 

AppellateTwitter Job Postings:

The Supreme Court of Texas is seeking a staff attorney for original proceedings (ie. a “Mandamus Attorney).  The successful candidate will assist with original proceedings like madamus, habeus, prohibition, etc.) and assist with direct appeals and certified questions.  The position is located in downtown Austin. 

Public Citizen Litigation Group is seeking a staff attorney to develop and litigate public interest cases.  The Group is located in Washington, D.C., and serves as the litigating arm of the consumer advocacy organization Public Citizen.  The successful candidate will practice at all levels of the federal courts, including the U.S. Supreme Court.

 

 

March 6, 2020 | Permalink | Comments (0)

Tuesday, March 3, 2020

Make the Standard of Review Work for You

Black’s Law Dictionary defines “Standard of Review” as, “The criterion by which an appellate court exercising appellate jurisdiction measures the constitutionality of a statute or the propriety of an order, finding, or judgment entered by a lower court.”[1] But the standard of review is more than that. The applicable standard of review may determine whether a case is appealed and if so, what issues are raised. And the standard of review may determine whether the trial court’s judgment is affirmed or reversed.[2] Judge Patricia Wald of the United States Court of Appeals for the D.C. Circuit has said, “Appellate courts have to decide what the ‘standard of review’ is, and that standard more often than not determines the outcome.”[3] Given the importance of the standard of review, appellate advocates should seek to convince the court to apply the standard of review that is most likely to lead to success for their client.

In any appeal, appellate counsel will spend hours deciding whether to appeal and if so, what issues to raise. Appellate counsel will devote considerable time and resources to researching the substantive law applicable to the case, reviewing the record, and drafting the brief. But how much time do we spend thinking about the standard of review and how we can make the standard of review work for our client? Is the standard of review section of the brief just copied from an earlier brief? If so, are we missing a chance to shape the standard of review and find arguments for a less deferential standard of review (or more deferential standard of review if you’re appellee’s counsel) that might help us win our client’s case? What if we could turn an issue that is, at first blush, reviewed for an abuse of discretion into one the court reviews de novo? That’s what happened in West Branch Local School District Board of Education v. West Branch Education Association.[4]

West Branch involved the non-renewal of a teacher’s contract.[5] The West Branch Local School District Board of Education and the West Branch Education Association were parties to a collective bargaining agreement that included a grievance and arbitration procedure.[6] A grievance was defined as a claim that there had been a violation, misrepresentation, or misapplication of the terms of the collective bargaining agreement.[7]

The collective bargaining agreement also contained a teacher evaluation procedure that superseded the evaluation procedure in the Ohio Revised Code.[8] In April 2013 the school board notified a teacher that it intended to non-renew her teaching contract and gave her a statement of reasons for the non-renewal.[9] The school board gave the teacher a hearing on her non-renewal and then voted to non-renew her teaching contract.[10]

The Association thought the school board had violated, misrepresented, or misapplied the collective bargaining agreement’s teacher evaluation procedures, so it filed a grievance.[11] The school board's superintendent denied the grievance and the association then submitted a request for arbitration.[12] That prompted the school board to file a lawsuit to enjoin the association from going to arbitration.[13] The trial court granted a permanent injunction in favor of the school board.[14] The association appealed the trial court’s judgment.[15]

The issue on appeal in West Branch was whether the trial court erred in granting a permanent injunction--a decision that would generally have been reviewed for an abuse of discretion.[16] The association, however, argued that the court of appeals should review the trial court’s judgment de novo.[17]  The association contended that the substantive legal issue that led to the permanent injunction involved the application of the terms of a contract—the collective bargaining agreement.[18] The association said that the terms of the collective bargaining agreement were unambiguous, so the application of the contract was a question of law, and questions of law are reviewed de novo.[19] The court of appeals agreed, reviewed the contract issue de novo, and reversed the trial court’s judgment,[20] a result that would have been unlikely had the court of appeals reviewed the trial court’s judgment for an abuse of discretion.

 

[1] Standard of Review, Black's Law Dictionary (11th ed. 2019).

[2] Timothy J. Storm, The Standard of Review Does Matter: Evidence of Judicial Self-Restraint in the Illinois Appellate Court, 34 S. Ill. U. L. J. 73, 74 (Fall, 2009).

[3] Patricia M. Wald, The Rhetoric of Results and the Results of Rhetoric: Judicial Writings, 62 U. Chi. L. Rev. 1371, 1391 (1995).

[4] 35 N.E.3d 551 (Ohio 7th Dist. Ct. App. 2015).

[5] Id. at 553.

[6] Id. at 552.

[7] Id. at 555.

[8] Id. at 555-58

[9] Id. at 552.

[10] Id.

[11] Id. at 553.

[12] Id.

[13] Id.

[14] Id.

[15] Id.

[16] Id.

[17] Id.

[18] Id.

[19] Id.

[20] Id. at 554-59.

March 3, 2020 in Appellate Advocacy, Appellate Practice, Appellate Procedure, Legal Writing, State Appeals Courts | Permalink | Comments (0)

Sunday, March 1, 2020

The Friendship Between Justices Antonin Scalia and Ruth Bader Ginsburg – A Lesson in Professionalism, Civility, and Respect for Diverse Viewpoints

Justices Antonin Scalia and Ruth Bader Ginsberg were, as Justice Ginsburg stated, “best buddies.”[1]

Some might find their friendship surprising. After all, Justices Scalia and Ginsburg embraced very different views regarding constitutional theory and interpretation. Justice Scalia was an originalist and thus believed that the Constitution’s words were fixed and should be interpreted based on what the drafters intended those words to mean.[2] Justice Ginsburg is arguably a “living constitutionalist" and believes that the Constitution’s meaning may change over time to comport with contemporary understandings and present-day realities.[3]

Not surprisingly, Justices Scalia and Ginsburg disagreed – often strenuously – in many significant and controversial decisions, such as in Lawrence v. Texas, where the Court invalidated a statute banning same-sex sodomy, Atkins v. Virginia, where the Court held that the execution of intellectually disabled defendants violated the Eighth Amendment, National Federation of Independent Investors v. Sebelius, where the Court upheld the Affordable Care Act, Obergefell v. Hodges, where the Court invalidated same-sex marriage bans, and Bush v. Gore, where the Court overturned the Florida Supreme Court’s decision ordering a statewide recount of votes cast in the Presidential election between George W. Bush and Al Gore.[4]

Despite these disagreements – and despite fundamentally different approaches to constitutional interpretation – Justices Scalia and Ginsburg were, as Justice Ginsburg stated, “best buddies.”[5] As Justice Ginsburg explained:

Toward the end of the opera Scalia/Ginsburg, tenor Scalia and soprano Ginsburg sing a duet: “We are different, we are one,” different in our interpretation of written texts, one in our reverence for the Constitution and the institution we serve. From our years together at the D.C. Circuit, we were best buddies. We disagreed now and then, but when I wrote for the Court and received a Scalia dissent, the opinion ultimately released was notably better than my initial circulation. Justice Scalia nailed all the weak spots — the “applesauce” and “argle bargle”—and gave me just what I needed to strengthen the majority opinion. He was a jurist of captivating brilliance and wit, with a rare talent to make even the most sober judge laugh. The press referred to his “energetic fervor,” “astringent intellect,” “peppery prose,” “acumen,” and “affability,” all apt descriptions. He was eminently quotable, his pungent opinions so clearly stated that his words never slipped from the reader’s grasp. Justice Scalia once described as the peak of his days on the bench an evening at the Opera Ball when he joined two Washington National Opera tenors at the piano for a medley of songs. He called it the famous Three Tenors performance. He was, indeed, a magnificent performer. It was my great good fortune to have known him as a working colleague and treasured friend.[6]

Justice Scalia was similarly complimentary of Justice Ginsburg, describing her as an “intelligent woman and a nice woman and a considerate woman — all the qualities that you like in a person.”[7] Indeed, when asked about their friendship, Justice Scalia replied: “what’s not to like?”[8]

In fact, Justices Scalia and Ginsburg “frequently dine[d] and vacation[ed] together,” and “[e]very Dec. 31, they [rang] in the new year together.”[9] As one commentator described:

They and their families spent New Year's Eve together every year. They rode together on an elephant in India (Scalia joked that Ginsburg betrayed her feminism by sitting behind him), and Scalia watched Ginsburg go parasailing in the south of France (“She's so light, you would think she would never come down. I would not do that”).[10]

Ultimately, Justices Scalia and Ginsburg demonstrate that it’s ok to disagree – even strenuously – on various issues and still be friends. After all, people come from different backgrounds and experiences. They see the world differently and have different perspectives. This doesn’t mean that one person’s viewpoint is more ‘right’ than another’s. It simply means, as Justices Scalia and Ginsburg sang in a duet, “[w]e are different, [but] we are one.”[11]

Lawyers and law students should remember the example set by Justices Scalia and Ginsberg. Put simply, “[t]hey weren't friends despite their divergent interpretations of the Constitution … [t]hey were friends, in part, because of it.”[12]

[1] Pete Williams and Elisha Fieldstadt, Justice Ruth Bader Ginsburg on Justice Antonin Scalia: We Were Best Buddies’ (Feb. 2016), available at: https://www.nbcnews.com/news/us-news/justice-ruth-bader-ginsburg-justice-antonin-scalia-we-were-best-n518671 (emphasis added).

[2] See Lawrence B. Solum, Originalism Versus Living Constitutionalism: The Conceptual Structure of the Great Debate, 113 Nw. U. L. Rev. 1243 (2019); see also Justices Ginsburg and Scalia, A Perfect Match Except for Their Views on the Law (Feb. 2015), available at: https://www.npr.org/sections/thetwo-way/2015/02/13/386085342/justice-ginsberg-admits-to-being-tipsy-during-state-of-the-union-nap

[3] See id.

[4] 539 U.S. 558 (2003); 536 U.S. 304 (2002); 567 U.S. 519 (2012); 135 S. Ct. 2584 (2015); 531 U.S. 98 (2000).

[5] Williams supra note 1, available at: https://www.nbcnews.com/news/us-news/justice-ruth-bader-ginsburg-justice-antonin-scalia-we-were-best-n518671 (emphasis added).

 [6] Id. (emphasis added).

[7] Joan Biskupic, Scalia, Ginsburg Strike a Balance (Dec. 2007) available at: https://abcnews.go.com/TheLaw/story?id=4053142&page=1

[8] Ariane de Vogue, Scalia-Ginsburg Friendship Bridged Opposing Ideologies (Feb. 2016), available at: https://www.cnn.com/2016/02/14/politics/antonin-scalia-ruth-bader-ginsburg-friends/index.html

[9] David G. Savage, From the Archives: BFFs Ruth Bader Ginsburg and Antonin Scalia agree to disagree (June 2015), available at: https://www.latimes.com/local/lanow/la-na-court-odd-couple-20150622-story.html (brackets added).

[10] Dara Lind, Read Justice Ginsburg’s Moving Tribute to her “Best Buddy” Justice Scalia (Feb. 2016), https://www.vox.com/2016/2/14/10990156/scalia-ginsburg-friends.

[11] Williams and Fieldstadt, supra note 1, available at:  https://www.nbcnews.com/news/us-news/justice-ruth-bader-ginsburg-justice-antonin-scalia-we-were-best-n518671 (brackets added).

[12] Sasha Zients, Justice Scalia's Son: Washington Can Learn From Dad's 'Rich Friendship' with RBG (Aug. 2018), available at: https://www.cnn.com/2018/08/23/politics/scalia-son-rbg-podcast-cnntv/index.html (emphasis added).

March 1, 2020 in Appellate Advocacy, Appellate Justice, Appellate Practice, Current Affairs, Law School, Legal Ethics, Legal Profession, United States Supreme Court | Permalink | Comments (0)

Friday, February 28, 2020

Consider Doing Initial Oral Argument Preparation As You Finish Your Brief

 Every appellate practitioner knows oral argument rarely changes a case outcome.  See, e.g., Ruggero J. Aldisert, Winning on Appeal: Better Briefs and Oral Argument 305 (2d ed. 2003).   However, whether you are a first-year law student, certified appellate specialist, or advocate between those levels of experience, you probably still spend a great deal of time prepping for oral argument.  This time can be hard to justify to clients, but an advocate must be prepared for oral argument.  See generally Cal. Rules of Ct., R. 1.1, 1.3 (2018).

In my last post, I suggested ways to use off-brief oral argument techniques to improve your brief writing.  For this post, I propose using an early, short, oral argument prep before filing the brief as a way to streamline your oral argument preparation while also improving your brief.  Using this technique can make your oral argument preparation time more useful, shorter, and easier to justify to clients.

In my advocacy classes, I tell my students to distill their oral argument points to one piece of paper, or something very similar.  My “one piece of paper rule” forces students to take the main points from their briefs and organize their arguments in one place.  This process requires students, and counsel, to review the briefs and record, reread key cases, and be familiar enough with all aspects of the case to synthesize their points on one page.  Along with the paper, I recommend students have one binder with their case charts, all briefs, copies of any key pages from the record, and extra paper for notes during the opponent’s argument.  The binder should be tabbed and organized for very quick reference.   The process of making the binder is also very useful for both final brief editing and oral argument preparation.

On a practical level, my one piece of paper rule also keeps students from reading from their briefs or reading a longer, prepared statement to the court.  Since most courts either ban or strongly disfavor counsel reading from briefs or papers at argument, this is a good lesson to learn early.  See, e.g., 5 Am. Jur. 2d Appellate Review § 501 (2d Ed. Feb. 2020).  Additionally, an advocate who has organized his or her thoughts well enough to note them on only one piece of paper is unlikely to make the mistake of carting a box of scattered materials to counsel table.  One piece of paper is easy to follow under pressure, and can help counsel get back on track smoothly and confidently when the court’s questions move away from main points.  Advocates also have an organized binder if they do need to check something quickly.

In content, the one piece of paper should include bullet point arguments on each prong, element, or claim, noting the best points for the advocate’s side.  The paper should also have bullet points on counsel’s best responses to his or her opponent’s brief. 

I recommend students create their one sheet by first copying over their point headings from the brief Table of Contents.  Then, students should take the key points from their Introduction or Summary of Argument, and weave these ideas, all with a focus on their theory of the case and key case law, into bullets under each point heading.   I ask my first-year students to make this page before turning in their briefs.  I suggest they then use the paper as an editing checklist for the brief.  The process of distilling the whole case onto one page can reveal holes in the students’ briefing and help with final brief polishing.  Practitioners would reap the same benefit in brief writing from doing an initial oral argument preparation shortly before filing a brief.

In the law school setting, making the oral argument sheet before filing the brief is also efficient.  First-year oral arguments come shortly after the brief writing, and students can easily review the one piece of paper they prepared as a brief editing tool and be ready for oral argument. 

In practice, however, we often wait months after filing a brief for oral argument.  Nonetheless, creating an initial one sheet for argument before filing the brief can still be efficient and helpful in practice.  By creating the one page when most familiar with the record and the law, in the midst of brief polishing, counsel can ensure he or she does not miss any key points for later oral argument.  Also, while attorneys will still need a refresher on the facts and law before oral argument, following an outline created while drafting the brief will streamline the review process, leading to better preparation in a shorter time.  Finally, creating this type of one sheet for the whole appellate case before filing the brief can make final edits of the brief more useful, ensuring the brief is as perfect as possible.     

For all of these reasons, consider taking a quick break from your usual brief editing to create one piece of paper for oral argument, or anything similar that works for you, with an organized binder.  Doing so can show where you have missed something in briefing and can save time later. 

February 28, 2020 in Appellate Advocacy, Appellate Practice, Appellate Procedure, Law School, Legal Profession, Legal Writing, Moot Court, Oral Argument | Permalink | Comments (0)