Appellate Advocacy Blog

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

Monday, November 11, 2019

Advocating For Veterans

Today is Veterans Day, and a couple of times this weekend I was reminded of the sacrificial service by veterans to our country. First, I spent the weekend in beautiful Gulfport, Florida learning from and connecting with practitioners, judges, and professors at the Reimagining Advocacy Conference hosted by Stetson University. The Keynote Speaker Friday night was Stacey-Rae Simcox, Professor of Law and Director of Stetson University College of Law’s Veterans Law Institute and Veterans Advocacy Clinic. Professor Simcox, a veteran herself, spoke movingly about her work with veterans in Stetson’s Veterans Advocacy Clinic and the need for attorneys to represent veterans in their benefit appeals. Second, I stayed in the Madeira Beach Courtyard Marriott, and Saturday morning as the sun rose, the VFW next door piped patriotic music into the parking lot. As I sat on the balcony listening to the Marines’ Hymn, I decided to dedicate today’s posts to veterans, the legal advocacy challenges they face, and the ways that attorneys can help.

Professor Simcox’s remarks focused on the intersection of Veterans Law and Advocacy. In keeping with the conference theme of Reimagining Advocacy, Professor Simcox stated that the future of advocacy for veterans was collaboration. Professor Simcox helped establish a medical-legal partnership between Stetson University College of Law and the University of South Florida’s Morsani College of Medicine. Partnerships like these help to treat the whole person.

Additionally, Professor Simcox is president and one of the founding members of the National Law School Veterans Clinic Consortium. This consortium allows clinics to share resources and referrals to support each other and offer broader service to veterans around the nation. According to a press release: “NLSVCC members work together on advocacy efforts, including joint amicus briefs to encourage systemic change benefitting veterans; host national conferences to train others how to provide pro bono legal services to veterans; and share best practices among members and community partners such as the VA [and] the ABA.”

As to the specifics of representing veterans in appeals, Professor Simcox pointed out that veterans are only allowed to hire an attorney once their benefit application is denied. Denial of benefit appeals beyond the VA have only been allowed for about 30 years, so it’s still a relatively new practice area. There is a steep learning curve for practitioners looking to represent veterans before the VA. See this ABA Article on Attorneys Representing Veterans. But there is absolutely a need. According to Professor Simcox, 22% of veterans are still pro se in their appeals to the VA.


If you would like to get more involved in helping veterans with their legal needs, the ABA Veterans Legal Service Initiative has compiled resources and volunteer opportunities here. The ABA also has resources for veterans and their families and caregivers on that same page. You can also donate to support the National Law School Veterans Clinic Consortium here. A list of all of the law schools with Veterans Clinics can be found here. If your alma mater has a Veterans Law Clinic, why not designate a gift to that clinic the next time you are contacted for a donation? For those who teach in law schools with veterans clinics, encourage your students to take those clinics.

Finally on this Veterans Day, I want to thank the many veterans I know and respect for their service, including my many veteran students and former students. Also, Professor Ann Ching, one of my former colleagues at Pepperdine and who now teaches at Arizona State University, expanded my awareness of this area of law with her work as pro bono counsel for veterans before the Department of Veterans Affairs and the Court of Appeals for Veterans Claims. As a former JAG officer, Professor Ching serves as an incredible mentor to veteran students in addition to her advocacy for veterans.

While only some of us can take on a veteran appeal, we all can honor veterans’ service and find ways to make sure that our country fulfills the promises we have made to them.

November 11, 2019 in Appellate Advocacy, Federal Appeals Courts, Law School | Permalink | Comments (0)

Sunday, November 10, 2019

Using Innovative Tools Instead of Letting Them Use You

Angry-Robot-by-schwegel-FWhVbz98rhci-1160x772“Computers are useless. They can only give you answers.”
― Pablo Picasso

If you follow my posts or talks lately, you know that I love technology and innovation. The clients we serve, the people who need legal help and can't get it, and the tightening legal market can all benefit from new technologies and new ways of approaching problems. I won't belabor the point. Survey after study have already done so. 

But like every love, this one comes with challenges. Sometimes I spend more time learning a new tech tool or system than I ever save using it. Sometimes I never save any time at all because, after hours exploring a new app--I realize it's hogwash. Not everything needs fixing and often the simplest and oldest methods are the best ones.

Yet for every failure or frustration, I find an incredible tool that works wonders. And with the mountain of challenges and opportunities we lawyers and law students are staring down, we can't afford to ignore those tools. That goes doubly for us law professors looking to empower the next generation of attorneys. 

But in training lawyers how to better use technology in their practice, I often run up against some version of the same problem: Technophobia. Rather than engage with new innovations and figure out how they can be useful, some folks reject them on principle. Maybe they had one of those failures or frustrations I mentioned earlier. Maybe they think the tool or system looks too complicated, so they fall into a cognitive bias like overkill backfire (a bias I'm researching for an article, which causes people to reject more complicated-sounding solutions even when they would work better). 

I get it: Innovating is tough. There is no easy switch to flip. It's about changing your perspective. Becoming more resourceful. Opening your mind up to new roles, new platforms, and new ways of lawyering. From how you get business to how you write briefs. It's not that you have to go find some fancy app for every single thing you do. But if you want to thrive these days, you do need to seek ways to enhance and expand your skills. And to do that, you have to dig deep and engage.  

Writing bots provide a nice case study on this point. A slew of law professors emailed me in recent weeks asking how they can use writing applications like BriefCatch and Grammarly to help law students fill their writing style gaps. I and many others have encouraged profs to try incorporating new technologies like these in their classrooms. Not only do they offer new perspectives for students and great meta-learning opportunities--but they help students pick up basic tech skills. Given that legal employers now rate tech competence as more important than knowledge of the law, that seems a good approach. 

Some professors are conflicted, though. Like the rest of us, they know their law students need help with writing mechanics. But handing off training to a robot is scary. What if it teaches them the wrong things? What if the student spends money on the tool and it ends up useless? A guest recently offered similar thoughts in a post on this blog. All great questions and worries to raise. 

But concerns like these can easily lead to the overkill backfire bias I mentioned earlier. It can feel easier to discount or outright dismiss new tools rather than engage deeply with them and see what useful things they offer. I think a lot of it comes down to the difference between using tools and letting them use you. If you expect a new app or method to revolutionize your practice without any input from you--bad news bears. It isn't happening. Tools are tools. Most of them can do something useful (or at least teach you something). But you have to work at it. 

This was my approach to incorporating writing bots in my own classes. I taught using Microsoft Word's built-in grammar and style features for years (I still teach Microsoft Word basics in my writing classes--check out this article for some ideas of what I cover).  I also used other applications to help students with their writing mechanics--like Hemingway App and Writer's Diet. But as writing apps became more sophisticated, I tried them out. And I found tons of new tools that opened up exciting teaching opportunities for my law students and the lawyers I work with. 

For example, with tools like Pro Writing Aid, my students could see the length of their sentences color-coded--giving them a visual insight into their writing that other tools can't. Tools like PWA can also do cool things like highlight the parts of speech for students, helping them home in on the mechanics visually. 

Then you have legal-specific writing tools, like BriefCatch. For the first time, we had writing apps made for legal writing. Tools that could help law students and lawyers get better at spotting many of the same style improvements that we law professors encouraged--like cutting legalese and jargon. 

At first blush, you might wonder whether a tool like BriefCatch is worth it. After all, even Word has several helpful style checks to improve your writing. And some other free tools can help, too. But BriefCatch is a great example of why digging deep into new innovations is worth it. It turned out there was a lot there for my law students (and me for that matter). 

To give you a concrete example, I wrote an amicus brief a few weeks ago. After I gave it a good polish on my own, I ran Word's grammar and style checker. As always, I had all the advanced style and proofing recommendations checked, like these: 

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Word gave me thirteen style recommendations. Not one of them ended up being all that helpful. A few could have been good teaching opportunities--they suggested a comma after a sentence starting with a conjunction. I would have pointed out to students that most good legal writers wouldn't put a comma there, but some folks disagree.

What's frustrating (and always frustrated me when I used Word's style function as a teaching tool in the past), is that tons more of the recommendations are plain wrong for legal writers. With all of Word's features checked, you end up with pages of highlights that are wrong for legal writing. Often in citations, like these: 

Capture

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BriefCatch, meanwhile, gave me 24 suggestions with highlights. Not one of those mistakes Word made was replicated by BriefCatch.

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Many of these would have made for great teaching moments. For example, the below suggestion gave me several options for rewriting some wordy prose. Word didn't flag any suggestion for the same phrase. Giving students options helps make the writing process less overwhelming while still allowing them to self-direct their learning. I do this all the time with my own lessons, and here BriefCatch is doing it for me: 

Capture

Other BriefCatch suggestions included: 

  • Several recommendations for using a better verb (something that Word says it can help with, but rarely does and did not do in this document). Each of these came with options--a great self-directed learning opportunity for students. I used most of these recommendations to come up with better verbs--sometimes on my own, sometimes using the suggestions. 
  • Bluebooking issues, including some commas I forgot to italicize. I love this feature, especially for 1Ls trying to build good citation habits. Obviously Word didn't catch any of these. 
  • Multiple passive voice constructions that Word did not catch (despite having that feature enabled). Each would have been a fantastic teaching opportunity. A few were passive on purpose to deemphasize the actor; a few worked better in the active voice. 
  • Many suggestions for cutting legalese and jargon. Not a one was caught by Word.  
  • The report feature gave me a simple snapshot of my sentence lengths as well as some words I overused (I know I need to stop saying "indeed" so much!). 
  • A handful of other suggestions for tightening up my prose, most of which I used after thinking about them for a while. 

Oh, also, not a bad score. I felt a bit empowered (sorry Word--learn how to praise me better): 

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I use BriefCatch for this demonstration because I've found it to offer the most writing-style teaching moments for my law students (no, I haven't gotten paid for talking about BriefCatch or the dozens of other tools and apps I've written articles about). And my point is not to cast shame on Word. Nor would I ever discourage folks from questioning whether a new tool or gadget is worth its weight. Not only in money, but also in time. 

But exploring new tools and innovations and looking hard for what they might offer you is worth it. 

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

November 10, 2019 | Permalink | Comments (0)

Friday, November 8, 2019

The Weekly Roundup

 

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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:

  • Next Tuesday, November 12, the court will hear arguments on the validity of President Trump’s decision to terminate the DACA program. More on the case here and a summary of the arguments by Amy Howe (SCOTUS Blog) here.

  • The court has released the January calendar, which begins on January 13, 2020.

  • A new book about a Supreme Court Justice was released this fall about Justice Clarence Thomas. Author Corey Robin answers questions here about “The Enigma of Clarence Thomas” (Metropolitan Books, 2019).

Federal Appellate Court Opinions and News:

  • The Second Circuit ruled that Donald Trump's accounting firm must turn over the returns to Manhattan District Attorney. The three-judge panel rejected Trump’s argument that he is immune as president from criminal investigation while in the White House. Coverage by NPR and Washington Post.
  • An Alabama US District Court has blocked Alabama’s abortion law. The law was a near-total abortion ban that would have taken affect next month. The order calls the law clearly unconstitutional. AP News report.

 

Final Tidbit

Massachusetts Appeals Court ruled that, although improper, appealing to a jury’s “reptile” brain is not enough for a mistrial.  Law360 article here.

November 8, 2019 in Appellate Advocacy, Appellate Practice, Current Affairs | Permalink | Comments (0)

Thursday, November 7, 2019

Humor in The Court

A recent study found over 9,000 instances of laughter in 6,864 United States Supreme Court arguments, from the years 1955 to 2017. There were 1.32 laughs per argument, but recent arguments showed that laughter has been increasing over time, with more than two thirds of the laughs coming from the Rehnquist and Roberts Courts.

It is a well known rule of thumb that oral advocates are generally taught to avoid humor in their arguments. The potential for offense is high and may not serve the interests of the client. So where is all this laughter coming from? From the justices of course. 

Leading in laugh-getting was Justice Scalia with his snark and sarcasm, followed by the "whimsical" Justice Breyer. Justices Roberts, Gorsuch, and Kagan fell in behind.

While the study calculated the instances of laughter, the more interesting part of the study ferreted out possible purposes and motives for the jokes. Some justices are self-deprecating, like Breyer and Kagan, but others used humor in a more calculated way. In transcripts from 2010-2017, researchers found that justices most often direct their comments to lawyers who are inexperienced or that seem to be losing. It may also be no surprise that humor is frequently directed toward advocates with whom the justices disagree.

As noted, oral advocates would rarely craft a humorous argument. Arguing in the Supreme Court is serious business and most clients would have little patience for a comedy routine that falls flat. But judging by these findings, it would serve advocates well to be ready for the one-liner or not-so-hidden barb. Being able to roll with some light-hearted punches could open a door to persuasion. 

 

 

November 7, 2019 in Appellate Advocacy | Permalink | Comments (0)

Wednesday, November 6, 2019

From Novices to Master Legal Writers

Much has been written about how people learn, including studies showing that people move from being novices to masters, passing through various stages along the way.[1]  When learning new skills, novices act with a “rigid adherence to taught rules or plans” and use “little discretionary judgment.”[2]  As they move toward expert and mastery status, they no longer need to strictly rely on “rules, guidelines or maxims.”[3] They have a “vision of what is possible,” they have an “intuitive grasp of situations based on deep, tacit understanding,” and they can improvise.[4] 

Moving from novice to master in any field at any skill typically requires a person to learn fundamentals before learning to manipulate or vary the fundamentals to become more effective at the skill.  For example, when students are taught to form letters at an early age, they are taught to draw the lines of the letters in a particular direction and to match model letters exactly.  Only after mastering the fundamentals of drawing letters do students begin to vary the precise models by adding personal touches that they think look better or flow better, yet still communicate the letters clearly.  Similarly, athletes first learn the fundamental skills of their sports and practice those fundamental skills extensively.  As these athletes practice and learn more about their sports and move toward mastery, they begin to improvise to perform the skills in unique ways that elevate the athletes’ performances to expert or master levels.  Varying the technique of performing a skill by someone who has mastered the skill is accepted and even admired when the person is performing at a top level.  If athletes are not performing effectively, though, coaches often insist that the athletes return to fundamentals to improve their games. 

Like students first learning to draw letters and athletes first learning the skills of their sports, law students and new lawyers must begin with fundamentals and work through the stages, from novice to master, when engaged in legal argument and writing.  Professors and lawyers working with these novices must exercise patience as they wait for these law students and lawyers to develop.  A common refrain from lawyers working with novice legal writers is that these novice writers do not write persuasively enough.  Perhaps this is because they are novices who have not mastered legal argument and writing sufficiently to improvise—to vary from the “taught plans or rules” and use their discretion.  They do not yet have a deep, tacit understanding of how far they can push their arguments beyond the existing law and how strongly they can tell the court how it should find or hold.  They are new to legal discourse; they do not know how bold or creative they can be.  They are like the children learning to draw letters who try to precisely follow the models of letters and do not dare to add an unnecessary flourish or variation.  They have not yet reached mastery. 

Frustrated by the work of novices, professors, lawyers, and judges sometimes criticize these writers for following formulas and not taking more license with their writing.  Novices even worry that their “formulaic” writing may be a problem.[5]  Legal writers are taught to use formulas, such as IRAC and CREAC,[6] to ensure that they provide the information necessary for a solid legal argument and analysis.  These formulas are used because they track a logical way to present information needed for legal arguments.[7]  Judges are looking for arguments that are supported by rules, explanations of those rules, and application to the facts involved in a case.   As these writers practice and learn more about writing legal arguments persuasively, they will become more adept at varying structures of their arguments.  They will learn when to depart from rigid adherence to taught rules when doing so will make their writing more persuasive.    

A suggestion for these novices and their professors and mentors is that the novices write a draft using IRAC or CREAC to ensure that they have included the necessary information.  Once a draft exists, the writer should then revise and edit the work to turn it from an accurate statement of the law and reasoning to a persuasive piece of advocacy.  This may involve deliberately altering the formulas employed.  For example, precedent case discussions might follow a rule as part of a rule explanation when the precedent case discussion is necessary to explain and interpret the rule.  On another point of law or argument, the precedent case discussion might follow the application of the rule to the case at issue.  Deciding to make this move says to the court that this is the rule, this is how the court should apply it to the facts, and the precedent case corroborates the argument being espoused.  This way guarantees that the court will not become distracted by a precedent case discussion when it comes before the argument involving the case at issue.  It also risks that the court might have wanted a fuller exposition of the law before the argument.  As the writer gains expertise and begins to master persuasive legal writing skills, he or she will become better at determining the best way to proceed in writing an argument, confidently moving away from rigidly following taught rules or plans when appropriate.   

Instructing the novice on the necessary parts of an argument and how to order the parts of an argument is valuable, as is emphasizing to the novice the importance of revising and editing.  Even though the novice will adhere to a formula initially, the novice will only improve as a writer if he or she is willing to experiment with revising to make arguments more compelling.   Novice writers tend to underestimate the value and necessity of revising and editing.  The best writers know that rarely if ever is the first draft the best draft.  Once a writer writes the parts necessary to make an argument, that writer should move the parts around, manipulate the language, and present the arguments in the best format to make the case to the court. 

So, to professors and supervising lawyers, expect to instruct students and new lawyers on how to make their writing more persuasive.  Expect to revise and edit their writing to show them exactly how to do this effectively.  Model the behavior you want to see in these novices.  And, with time, the arguments and the writing will be more persuasive as the writers move toward mastery.      

 

[1] See, e.g., Stuart E. Dreyfus, The Five Stage Model of Adult Skill Acquisition (June 1, 2004), https://www.bumc.bu.edu/facdev-medicine/files/2012/03/Dreyfus-skill-level.pdf.

[2] Raman K. Attri, 7 Models from Research Demystify Stages in Novice to Expert Transition (Nov. 18, 2017), https://www.speedtoproficiency.com/blog/stages-in-novice-to-expert-transition/.

[3] Id.

[4] Id.

[5] Mary Beth Beazley, A Practical Guide to Appellate Advocacy 97 (5th ed. 2019).

[6] IRAC: Issue, Rule, Analysis, Application, or Argument, and Conclusion.  CREAC: Conclusion, Rule, Explanation, Analysis, Application, or Argument, and Conclusion.

[7] See Beazley, supra note 5.

November 6, 2019 in Appellate Advocacy, Appellate Practice, Law School, Legal Profession, Legal Writing, Moot Court, Rhetoric | Permalink | Comments (1)

Tuesday, November 5, 2019

Conflicts that Catch the Court's Eye.

Daunier Les Gens de Justice

The last few years I have been unable to attend one of our state-wide appellate conferences because I have been working on appeals. It is a nice problem to have, but it means I am often a little late to the trough of knowledge and have to catch up with my peers through online resources.

One of the presentations I recently watched was by two Supreme Court practitioners on "The Art and Science of Seeking Certiorari." In that presentation, Daniel Geyser and Carl Cecere discuss what the high court is looking for when it reviews petitions.

We all know that one of the best indicators of a successful petition for writ of certiorari is the presence of a split in the circuits. Geyser and Cecere help by pointing out that not all conflicts are created equal, and that some characteristics are more important to the Court than others.

Specifically, they argue that the best conflicts are:

  1.     Fresh and timely, not stale;
  2.     Deep in nature, not shallow;
  3.     Squarely in conflict, not attenuated;
  4.     Balanced in the courts involved on each side of the split, not lopsided;
  5.     Real in the conflict, and not illusory; and,
  6.     Expressly in conflict, and not just implied.

This does not mean that your conflict will not catch the Court's eye if it does not meet all of these characteristics. But it does mean that when you present a conflict, you should address the issues above when they are present so you can more clearly define the importance of the conflict for your court of discretionary review.

Geyser and Cecere give several examples of how advocates make the strength of their conflicts apparent. Some put this information in the issue presented, some in their headers so that the table of contents "speaks" to the issue, and some in their summary of the argument.

The main lesson learned is that you should highlight the importance of your conflict early and often, and not just drop a footnote to a string of cases that disagree with each other. Wake up the Court with the importance of your conflict early on, and they are more likely to pay attention to the substance of your argument later.

(Image credit: A lithograph from Honore Daumier, Les Gens de Justice, 1845.)

 

November 5, 2019 in Appellate Advocacy, Appellate Practice, United States Supreme Court | Permalink | Comments (1)

Monday, November 4, 2019

Grammar: Gidgets and Gadgets Galore

This is a guest post by Joshua Aaron Jones, Visiting Assistant Clinical Professor, Indiana University Robert H. McKinney School of Law.

Attorneys have evolved their tools from paper and quill to digital buttons and data. What once was in our heads and desktop books (remember dictionaries, thesauri, Strunk and White?) now exist in 0's, 1's, and promises. The perfect brief is only a click away! Just buy "this" program - no wait, "that" app. It's in the cloud! The cloud! Fear not. The sky/cloud is not falling under the weight of new grammar check programs.

With all technology, the legal industry has a history of early alignment with the digital developers, without enough pause and consideration before adopting the snake oil offered. Of course, it's a no-brainer to adopt some innovations, such as solutions to logistical and clerical matters. However, the avalanche of apps that erode professional skill and judgment should be held at bay, lest we drive our credentials to extinction.

For sure, we needed some of the great developments of the last half-century. This author cannot imagine practice without a word processor. Manual typing - as in, actual typing on an analog typewriter - was a physical, laborious aggravation. If there has never been a study on the enormous time-savings offered by the electric typewriter and then word processor, please alert your nearest empirical jurist. These inventions vastly increased clerical efficiency. However, the act of typing is a logistical, lower-level skill, not a matter of professional judgment, such as analysis and writing, and to be clear, this piece is not an argument against efficiency. Most technologies have revolutionized our services for the better. Yet, the current wave of artificial intelligence lubes a slippery slope, and grammar check software is the black diamond among them. They promise to let you blather on with wild abandon, ignoring comma-splices, run-on sentences, and noun-verb disagreement. Passive voice in an attorney's writing may be ignored. Grammar check will fix it for you.

Wait, what? Our profession is rooted in educational rhetoric through writing and speech. We should be language ninjas. Students in the United States learn the litany of grammar rules before high school. Attorneys hone those skills over another seven years in college and law school. But we need grammar check software? Even if we allow that an attorney may be less than confident with independent and superior skill in the craft, why on Earth would we pay an extra premium for digital safeguards? Except for those who need added accommodations for disabilities, no attorney should pay for expensive grammar-check apps and subscriptions. It's all built into Microsoft Word.

An appellate lawyer, especially a solo attorney, should realize that they already have equivalent help in the apps they use every day - Microsoft grammar and spell check. I'm a Mac man, but I have to hand it to Microsoft's 2016 Office Suite. The updates to Word's grammar and spell check options rival all the other apps. Given that some of the new language apps cost hundreds of dollars a year, in addition to the very product that you use most of the day, while the exact same functions are sitting in the Options menu, it's no wonder new associates must bill 2000+ hours a year.

To access the proofing functions in Word, simply click on: File menu > Options > Proofing. From there, the sub-menu options are self-explanatory. For a walkthrough with screenshots, please visit my website. A writer can change their auto-correct options and select dozens of grammar check issues, including passive voice, colloquialisms, and personalization. You can even customize for "legal" styles. Table of contents? Table of authorities? Cross-refencing? It's already on your machine! One can add whatever may (but is not) missing; simply find a plugin or add-on. You - and your students, if you are a teacher - do not need to pay extra for anything. Rather, you need to learn Microsoft Office's full functionalities. Learn one Office app, and you are all set with the others.

Adobe, on the other hand, is not as robust for grammar and spell-check. Without the third-party add-on, MindGrammar, which only works with InCopy and InDesign, Adobe fans have only spell check. Yet, law practice needs the Adobe apps, especially Acrobat Pro, to fill the gaps that Microsoft opens - ease of Bate stamping, metadata removal, security, e-signing, and e-portal filing requirements. However, those necessary functions are more about logistics, graphics rendering, and universal accessibility, not the profession's core skill - writing. Few of the newcomer grammar apps offer these functions. None have managed to synthesize the best necessities from Microsoft and Adobe. Thus, the Adobe app suite is still is a wise investment, as a companion to Microsoft Office.

If you are the appellate lawyer who stares in awe-and-wonder at the style headings menu, becomes enraged at the baffling "add space" or "remove" space before/after paragraph, has no idea that there are increase/decrease indent buttons, and didn't know there is an options menu, dig deep, fellow jurist. Click, click, click. Exploration is the fastest route to proficiency. You cannot damage the apps. If Microsoft or Adobe thought you could destroy their programs (which implies a violation of the terms of service), they would hide the function. At the very least, see the Microsoft website or YouTube, both of which have hundreds, if not thousands, of tutorials on the various "hidden" features that illuminate your hard-bound copy of Shepard's Citator this very moment.

I do not suggest that we should ignore the benefits of apps, such as WordRake (Suffolk's new darling), BriefCatch (cozy at Oregon), Grammarly (anyone?), or the dozen other grammar/spell-check options available - some free, some hundreds of dollars a year, and all in a crowd of broad quality. It is unfortunate that k-12 and undergraduate shortcomings force law schools to remediate students' basic language and grammar skills. However, if the academy continues to accommodate the current, failing, data-intensive model of American education, we will always see 1L's who are ill-equipped to maneuver law school writing. Thus, these apps add value to the classroom, but post- juris doctor, surely attorneys have been well-remediated. Attorneys see the shiny new objects flash ads on our social media, and we click, buy, and send grammar skills to the trash folder.

As Occam theorized, "Entities should not be multiplied." We assume that the legal industry needs greater technological innovation. The "new" grammar apps offer nothing towards greater efficiency; they merely muddy the waters and obscure what's already there. Get back to basics, and throttle into the future.

Now, where are my Westlaw CD-ROMs? I need to finish this research so I can dictate a letter for my secretary to type-up in Word Perfect and email to opposing counsel via our office AOL email address on the personal computer? If that gobblasted Gen-Z intern is on my dial-up modem SpaceBooking again, she'll just have to fax it.

Harsh over-exaggeration? A little bit. Truth? A little bit. The one thing that has remained the same, as all those technologies have fallen aside - Microsoft Office. Don't waste your money. You already have the solutions.

Neither Microsoft, Adobe, Suffolk, University of Oregon, or any attorneys who lack a sense of humor have endorsed this article.

November 4, 2019 | Permalink | Comments (0)

Saturday, November 2, 2019

Kahler v. Kansas – Should States Be Permitted to Abolish the Insanity Defense?

On October 7, 2019, the Supreme Court heard oral arguments in Kahler v. Kansas, where the Court will consider whether the Eighth and Fourteenth Amendments permit states to abolish the insanity defense. Currently, Kansas does not allow defendants to plead insanity; instead, a defendant may argue that a mental illness negated the mens rea element of a crime.[1]

By way of background, forty-six states permit defendants to plead insanity as a defense. Only four states – Kansas, Montana, Idaho, and Utah – have abolished the defense.[2] The legal standard for proving insanity, however, varies depending on the state within which the crime was committed. Some states apply the M’Naghten rule, which requires a defendant to demonstrate that, due to mental illness or defect, the defendant did not appreciate the wrongfulness of the conduct at issue or understand that the conduct constituted a crime.[3] Other states have adopted the Model Penal Code’s standard, which states that a defendant with a diagnosed mental illness is absolved of criminal responsibility if the defendant either failed to understand the criminality of his or her actions or, due to such illness, was unable to act within the confines of the law.[4] A few states have adopted the irresistible impulse test, which states that a defendant is absolved of criminal responsibility if the defendant was unable to control his or her actions, even if the defendant knew that such actions constituted a crime.[5] Finally, at least one state has adopted the Durham test, which absolves a defendant of culpability if the crime was considered to be the product of mental illness.[6]

Importantly, however, regardless of the legal standard that is adopted in a particular jurisdiction, the insanity defense is rarely used and, in most instances, is not successful. Indeed, some studies report that defendants plead insanity in one-percent of felony cases and are only successful in approximately twenty-five percent of those cases.[7] The reason for such a low success rate is arguably due, at least in part, to the fact that it is extremely difficult for defendants to demonstrate that they did not know the difference between right and wrong (i.e., that their actions were criminal), that they could not control their actions, or that their actions were exclusively the product of mental illness. Put differently, a defendant may suffer from a serious mental, psychological, or cognitive impairment, but if the defendant nonetheless knew that a particular action was a crime, those impairments, regardless of their severity, will not preclude a finding of guilt. Not surprisingly, therefore, prisons throughout the United States are occupied by many prisoners who suffer from diagnosed mental illnesses.[8] Additionally, even where a defendant is found not guilty by reason of insanity, the result is often worse than the punishment that a defendant would have faced upon conviction. In New York, for example, an individual found not guilty by reason of insanity may spend years in a psychiatric institution and, in some instances, for a period of time that exceeds the maximum sentence of imprisonment to which the defendant may have been subject if convicted.[9]

This is not to say, of course, that the standards used to prove insanity are without justification. Arguably, the law should not allow defendants to claim that having a mental illness entirely absolves them of culpability and punishment for criminal conduct. Doing so would allow scores of defendants to escape responsibility for culpable criminal behavior. And such an approach would likely stigmatize the mentally ill and perpetuate the empirically disproven belief that individuals with mental illnesses are more likely to commit crimes.[10] It is to say, however, that the issue before the Supreme Court in Kahler – whether the Eighth and Fourteenth Amendments prohibit states from abolishing the insanity defense – will not consider the broader problem with the insanity defense, namely, that the M’Naghten, irresistible impulse, and Model Penal Code standards make it difficult, if not impossible, to prove insanity and, in so doing, leave defendants with mental, psychological, and cognitive impairments without meaningful legal protections at the guilt and sentencing phases.

Put differently, defendants with severe mental illnesses who fail to satisfy the insanity defense’s exacting standard are often subject to lengthy periods of incarceration that are similar to defendants who have no history of mental illness. Also, since the insanity defense is rarely used and, when used, is not likely to succeed, the issue in Kahler – whether a state may abolish the insanity defense – is, as a practical matter, inconsequential. Moreover, the Court’s decision will almost certainly not address the broader problems with the criminal justice system, namely, how it considers mental illness in culpability determinations, how it treats mentally ill prisoners once incarcerated, and how it assists mentally ill prisoners to reintegrate into the community upon release. The manner in which states confronts these issues will directly impact the criminal justice system’s efficacy, particularly regarding recidivism rates.

Ultimately, therefore, the answers to these difficult issues will likely require resolution through legislation at the state and federal level. And allowing states to adopt alternative approaches to adjudicating insanity – as Kansas has done – may reflect a productive starting point. Other proposals may involve embracing a middle ground in which courts recognize that defendants with diagnosed mental illnesses, although culpable in some, if not many, circumstances nonetheless warrant reduced sentences that incorporate a rehabilitative component and an increased focus on facilitating a successful re-entry into the community upon release. Another approach would be to recognize, as some states already do, that the concept of mens rea includes a moral, not merely a volitional component.  This would require proof that the defendant intended to commit a criminal act, that the defendant understood that the act was morally wrong, and that the defendant consciously, and without mental, psychological, or cognitive impairment, chose to commit the act.  This will lead to an understanding of mens rea that includes moral culpability within the definition of legal culpability. In any event, do not expect Kahler to resolve much, if anything, regarding the insanity defense, even though the defense is long overdue for principled reforms.

[1] See Amy Howe, Argument Analysis: Justices Open New Term With Questions and Concerns About Insanity Defense (Oct. 7, 2019), available at: https://www.scotusblog.com/2019/10/argument-analysis-justices-open-new-term-with-questions-and-concerns-about-insanity-defense/.

[2] See id.

[3] See The Insanity Defense Among the States, available at: https://criminallaw.uslegal.com/defense-of-insanity/the-insanity-defense-among-the-states/.

[4] See id.

[5] See id.

[6] See id.

[7] See Christopher Liberati-Constant and Sheila E. Shea, You’d Have to Be Crazy to Plead Insanity: How an Acquittal Can Lead to Lifetime Confinement, available at: https://www.nysba.org/Journal/2019/May/‘You_Have_to_Be_Crazy_to_Plead_Insanity’/ (“While research varies widely, some studies conclude that the defense succeeds in only one out of four cases, while others have found a success rate as low as one in 1,000”).

[8] See Inside the Massive Jail that Doubles As Chicago’s Largest Mental Health Facility (June 2016), available at: https://www.vera.org/the-human-toll-of-jail/inside-the-massive-jail-that-doubles-as-chicagos-largest-mental-health-facility/the-burden-of-mental-illness-behind-bars.

[9] See Mac McClelland When ‘Not Guilty’ Is a Life Sentence, available at: https://www.nytimes.com/2017/09/27/magazine/when-not-guilty-is-a-life-sentence.html.

[10] Ghiasi, N. & Singh, J. (2019). Psychiatric Illness and Criminality. Retrieved from: https://www.ncbi.nlm.nih.gov/books/NBK537064/.

November 2, 2019 in Appellate Advocacy, Appellate Justice, Appellate Practice, Federal Appeals Courts, United States Supreme Court | Permalink | Comments (0)

AI and Free Legal Research, Annotated

   Fall is in the air (well, maybe not here in Los Angeles), and that means we are in the part of the 1L year when many law students across the country are doing their first in-depth legal research.  Thus, we are also at the time when many writing professors, like me, are looking for a great list of new, preferably free, AI research tools.  Our students see plenty of services affiliated with the legacy databases, but too many do not learn much about the world beyond Lexis and Westlaw, except possibly GoogleScholar.  As new lawyers, especially if they start in small or solo practices, they will need access to free tools. 

   Similarly, appellate practitioners with firm or agency affiliations might have access to Casetext, which will scan briefs and suggest missing case authority, Ravel (now part of Lexis), which uses AI to create “case law maps,” Fastcase, and more.   Some solo practitioners, however, cannot afford even the lower-priced Casetext, and need free AI assistance.  See generally Tom Goldstein, SCOTUSblog is partnering with Casetext, SCOTUSblog (Feb. 28, 2019, 12:00 PM), partnering-with-casetext (noting benefits and low cost of Casetext).

   There are many excellent lists and comparisons of fee-based (and even some free) AI programs for law firms, far beyond the early comparisons of document scanners for discovery.  See, e.g., Jan Bissett and Margi Heinen, EVOLVING RESEARCH:  Habits, Skills, and Technology, 98 Mich. Bar. J. 41 (May 2019); https://www.lawsitesblog.com.  For free AI services, however, some excellent explanations are in the amicus briefs in Georgia v. Public.Resource.org, Inc., 906 F.3d 1229 (11th Cir. 2018), cert. granted, __ U.S. __, 139 S. Ct. 2746 (June 24, 2019). 

   In Georgia v. Public.Resource.org, the Eleventh Circuit ruled the state-created annotations to Georgia’s statutes are not protected by copyright law, and reversed summary judgment for the State on its copyright claims against a public interest provider of free legal content, Public.Resource.org.  According to the Eleventh Circuit, the annotations to the Code were “created by Georgia’s legislators in the exercise of their legislative authority,” and therefore “the people are the ultimate authors of the annotations.”  Id. at 1233; see Jan Wolfe, U.S. High Court to Rule on Scope of Copyright for Legal Codes, June 24, 2019, Wolfe.  The United States Supreme Court will hear argument in Georgia v. Public.Resource.org in December, and could rule that no state can copyright annotated statutes, opening the door for more AI content creators to provide annotated statutes online. 

   Many of the amicus briefs in support of Respondent Public.Resource.org explain the need for free access to statutes and other legal documents among law students, scholars, solo attorneys, and visually impaired counsel.  See https://www.scotusblog.com/case-files/cases/georgia-v-public-resource-org-inc/.  A great many of the amici are, themselves, providers of free AI research, and their briefs give the excellent lists of resources I mentioned. 

   For example, in their brief supporting a grant of certiorari, Next-Generation Legal Research Platforms and Databases describe themselves as:  “[N]onprofit and for-profit creators and developers of next-generation legal research platforms that provide innovative tools and services for the legal community and the public. These tools serve the public interest by dramatically transforming the ways in which the public, courts, law firms, and lawyers access, understand, and utilize the law.”  Next-Gen. Lgl. Res. Platforms, ACB.  In addition to the for-profit AI services like Ravel and Casetext, the brief’s amici include these three providers:

(1)  “Amicus Judicata ‘maps the legal genome’ and provides research and analytic tools to turn unstructured case law into structured and easily digestible data. Judicata’s color-mapping research tool fundamentally transforms how people interact with the law: it increases reading comprehension and speed, illuminates the connections among cases, and makes the law more accessible to both lawyers and nonlawyers.”  Judicata has free and subscription-based services.

(2) “Amicus Free Law Project is a nonprofit organization seeking to create a more just legal system. To accomplish that goal, Free Law Project provides free, public, and permanent access to primary legal materials on the Internet for educational, charitable, and scientific purposes. Its work empowers citizens to understand the laws that govern them by creating an open ecosystem for legal materials and research. Free Law Project also supports academic research by developing, implementing, and providing public access to technologies useful for research.”

(3) “Amicus OpenGov Foundation produces cutting-edge civic software used by elected officials and citizens in governments across the United States. The Foundation seeks to ensure that laws are current, accessible, and adaptable. Everything the Foundation creates is free and open source, allowing the public to use, contribute to, and benefit from its work. Its software, coalition-building activities, and events are designed to change the culture of government and boost collaboration between governments and communities.”

   I plan to share these three resources with my students, and to encourage them to watch Georgia v. Public.Resource.org and stay abreast of other developing AI platforms.  I hope these sources are helpful to you as well.  Happy research, everyone!

November 2, 2019 in Appellate Justice, Appellate Practice, Law School, Legal Profession, Legal Writing, United States Supreme Court, Web/Tech, Weblogs | Permalink | Comments (0)

Wednesday, October 30, 2019

Butterick's Typography for Lawyers is Now Available for Free Online

image from images-na.ssl-images-amazon.com

In the appellate advocacy world, the holidays have arrived early.

As Ruth Anne Robbins put it in her classic 2004 article Painting with Print, "[p]ersuasion includes looking good on paper." So, at some point in our careers, a lot of appellate advocates start fretting about typography. And developing strong feelings about CAPS and fonts with the word "book" in them and the simple human courtesy of not hitting the space bar two freaking times after periods. 

As we should. We are still, in this stodgy profession, grinding our way through the Word Processing revolution. Much of what we learned about "typography" is stuff we picked up in seventh-grade typing class. And many of the conventions we learned about old-school brief formatting—caps for headings and underlining for citations & emphasis and a host of rules built around the fact that we mostly used monospaced fonts—make sense in a typewriter-driven world. And these relics persist in court rules and citation manuals because ... I mean, this is the legal profession. Relics persist.

So as we and enlightened courts embrace the benefits of painting with print, we need help. Typography is a complex bag of art and science. It's easy to fall back on typewriting-era conventional wisdom and default settings and fonts; it's easy to wander unguided into a maze of fonts and styles and emerge with a credibility-searing document in Comic Sans. If we're going to break free of old habits and defaults without generating over-engineered eyesores, we need a knowing guide.

That's where Matthew Butterick's Typography for Lawyers comes in. It's a fabulous book built on three core principles: (1) good typography is part of good lawyering; (2) legal documents are professionally published material and thus should be held to the same typographic standards; (3) any lawyer can master the essentials of good typography.

The book needs no hype from the likes of me. It's in its second edition, and it has been widely praised for years. In 2012, for example, the Legal Writing Institute honored Butterick with the Golden Pen Award. If you've been finding yourself dissatisfied with Times New Roman or passionate about using one space after punctuation, you've likely absorbed Butterickisms or relied on his reasoning to pwn Typewriter Holdouts on #AppellateTwitter. And Butterick's websites—both Typography for Lawyers and the more general Practical Typography—have always been remarkable, rich, free resources.

But here's what's new: the entirety of Typography for Lawyers is available for free online. There are, to be sure, ways to pay Mr. Butterick for his work. And we all should. But free is a powerful thing. And typography, for us, is a consequential thing. So dig in.

October 30, 2019 in Appellate Advocacy, Books, Legal Writing | Permalink | Comments (2)

Tuesday, October 29, 2019

Who Really Drives the Appellate Litigation Bus?

No offense to this blog’s readers, but appellate advocates in general are a narcissistic bunch. We like to think of ourselves as the drivers of legal change in our system. We assume that the arguments we present before appellate courts are the impetus for new opinions that will have far-reaching practical effects in law and society. I feel confident in ascribing this self-important attitude to appellate advocates because I held it dearly when I practiced as an appellate public defender. Nothing could be more meaningful, I assured myself, than a worthy struggle in the arena of ideas that is an appellate courtroom, with the eventual victor illuminating the legal path forward for decades.

When I began wearing an academic hat, I was forced to reexamine my assumptions about the role appellate advocates plays in shaping the law. And that reexamination was sobering. Our judicial system carries a deeply embedded faith in the procedural justice of adversarial litigation—the idea that when parties compete in a fair process for adjudicating disagreements, they will produce the most just results possible. But when I examined both my own experiences as an appellate clerk and the available data on high court adjudication, I was disappointed to realize how often judges themselves, rather than litigants, drive the outcomes in our supposedly adversarial courts.[1] Take the United States Supreme Court, for example. Supreme Court litigants and their attorneys play a diminishing role in actually shaping the direction of the law, while the “umpire” Justices themselves take greater control over the direction of jurisprudence. The Justices have lowered the demands of their discretionary dockets by consistently granting certiorari in fewer than 100 cases per year, while simultaneously increasing the length and originality of their opinions; their written work is both longer and contains less borrowed language from the parties’ briefs than ever before.[2] In those opinions, Justices themselves often participate in a kind of top-down lawmaking. An opinion in a case decided today often ghost-writes the brief the Justice would like to see presented in future appeals, allowing that Justice to shape the law according to their preferences in future case they have transparently invited litigants to file.[3]

Oral arguments are little different. For several decades preceding this term, oral arguments have left less and less space for the advocates themselves to shape opinions. Attorneys in the Supreme Court instead play the role of straight man in conversations dominated by the Justices, who appear disinterested in the responses from the lectern. In a comparison of oral arguments in the 1958–1960 Terms and the 2010–2012 Terms, Barry Sullivan and Megan Canty noted the myriad ways in which Justices have come to dominate the direction of oral argument over the last half-century, including an increase in the ratio of Justice-spoken words to advocate-spoken words, a near doubling of the average number of words spoken by the Justices per oral argument, and far shorter opening monologues by counsel.[4]

It was thus tempting to celebrate the Supreme Court’s recently-announced rule permitting the advocates approximately two minutes of uninterrupted monologue at the start of oral arguments. Perhaps this would mark a sea-change for appellate advocacy, revitalizing the role of advocates in Supreme Court litigation. Yet there is reason for hearty skepticism. Justices have long taken a guiding role in the direction of the law through use of the discretionary docket; invitations for specific arguments in future appeals; and techniques to slowly undermine, or even stealthily overrule, the reasoning in precedent cases.[5] The two-minute rule will not cabin any of those techniques that permit the Justices, rather than the litigants, to drive the appellate litigation bus.

One well-worn trope holds that cases are seldom won at oral argument, but can readily be lost if one is insufficiently prepared to defend their brief’s arguments against a barrage of troubling hypotheticals and slippery slopes. If anything, the new rule only erodes that trope at the very extreme margins. Advocates may have slightly greater opportunity, in increments usually measured by a kitchen timer, to shape the direction of the law in their presentation to high courts. But this offers little salve when the hypotheticals come cascading down, with little interruption for actual answers, during the bulk of the argument. For appellate advocacy to meaningfully change, and for advocates to play a more determinative role in shaping the law, the justices themselves must approach their job with greater humility, aspiring to resolve the controversies actually presented rather than those they have hoped to see and invited to come before them. Without that change in attitude and approach, the two-minute rule may be little more than a procedural fig-leaf from a court that has drifted further and further away from the judicial system’s adversarial ideals.

This is all not to say that appellate advocacy has lost its value in today’s world. Preparing for an appeal remains one of the most demanding, rewarding, and fruitful exercises any attorney or law student can undertake. Nothing helps an attorney refine their legal arguments more than planning for the crucible of hypotheticals they might face from a high court. And the history of our nation’s highest courts still suggests that some advocates, through either sheer intellectual brilliance or perfectly-timed moments of inspiration, play a guiding role in shaping the direction of the law. But a clear-eyed evaluation of the appellate advocacy process suggests that Justices are the real drivers of case outcomes. Of course, appellate attorneys must still ensure that their clients receive vociferous representation and a prepared, skilled advocate at the podium. But that podium’s power is limited, and it is not often the driver’s seat for appellate litigation.

 

[1] Michael Gentithes, Check The Invitation: The Trouble with Appeals Invited by Supreme Court Justices, 82 Mo. L. Rev. 339 (2017).

[2] See, e.g., Ryan C. Black & James F. Spriggs II, An Empirical Analysis of the Length of U.S. Supreme Court Opinions, 45 Hous. L. Rev. 621, 630, 634–35 (2008); Adam Feldman, A Brief Assessment of Supreme Court Opinion Language, 1946–2013, 86 Miss. L.J. 105, 137 (2017).

[3] See Michael Gentithes, Check The Invitation: The Trouble with Appeals Invited by Supreme Court Justices, 82 Mo. L. Rev. 339, 341-43 (2017).

[4] Barry Sullivan & Megan Canty, Interruptions in Search of a Purpose: Oral Argument in the Supreme Court, October Terms 1958–60 and 2010–12, 2015 UTAH L. REV. 1005, 1042.

[5] See Barry Friedman, The Wages of Stealth Overruling (with Particular Attention to Miranda v. Arizona), 99 Geo. L.J. 1 (2010).

October 29, 2019 in Appellate Advocacy, Appellate Court Reform, Appellate Justice, Appellate Practice, Appellate Procedure, Federal Appeals Courts, Legal Profession, Moot Court, Oral Argument, State Appeals Courts, United States Supreme Court | Permalink | Comments (0)

Monday, October 28, 2019

Tips for Excellent Appellate Advocacy

Arguing before an appellate court, particularly for recent graduates or those with limited oral argument experience, can be daunting. Below are ten tips that will enhance the persuasive force of your argument, strengthen your oral argument skills, and maximize your chances for success.

    1.     Have an outstanding introduction

When preparing for oral argument, be sure to prepare a concise and persuasive statement (no longer than two minutes in length) in which you set forth the most favorable precedent, facts, and arguments that support the remedy you are seeking. The reason is that the judges will likely begin to ask you questions shortly after you begin your argument. Thus, it is critical to ensure that you begin with a powerful introduction and emphasize the strongest aspects of your argument before the questions begin.

    2.     Anticipate questions that the court will ask – and prepare effective responses

When arguing before an appellate court, the majority of your time will likely be spent responding to the judges’ questions. And you can be sure that the judges will focus on the weakest aspects of your case. Thus, when practicing for oral argument, it is critical for you to identify and address unfavorable facts and precedent. In so doing, your goal should be to convince the judges that the presence of unfavorable law or facts should not affect the remedy you are seeking.

    3.     Prepare, Prepare, Prepare

In the weeks (or months) before an oral argument, you should prepare extensively. Specifically, you should be able to discuss the record below, the relevant facts, and the governing precedent, and address relevant counterarguments without referring to any notes. Indeed, your command of the facts and law will enhance your credibility and enable you to deliver a compelling argument.

    4.    Concede weaknesses in your argument and acknowledge unfavorable facts

In almost any case, there will be weaknesses in your argument. For example, there may be facts or precedents that are not favorable to your position. When arguing before an appellate court, do not be afraid to acknowledge these weaknesses. Doing so will enhance your credibility with the court. For this reason, you should be prepared to explain why unfavorable facts or precedents should not affect the remedy you are seeking. For example, if you are confronted with unfavorable precedent, be prepared to explain why such precedent is distinguishable or would lead to an unjust result.

    5.     Be respectful to the court and your adversary

This should go without saying, but at all times you must be respectful to the appellate court, the lower court, and your adversary. Thus, be sure not to interrupt the judges when you are asked questions. Do not insult or attack the lower court or your adversary. Always speak in a measured and respectful tone, making sure not to use over-the-top language or express unnecessary emotion. Failing to maintain professionalism will detract from your credibility and reduce the likelihood that you will succeed.

    6.    Consider the impact of a ruling in your favor on future cases

Understand that, when an appellate court is deciding your case, the court is also considering how a ruling in your favor will affect future cases. For example, if the court adopts your proposed rule, will it lead to an unjustifiable expansion of the law or have unforeseen consequences that the court would not countenance? Thus, when preparing for oral argument, be sure to consider the policy implications of a ruling in your favor and be prepared to address how such a ruling will impact future cases in different contexts.

    7.     Respond to the judges’ questions directly

Excellent advocates never attempt to evade a judge’s question. If you do so, the court will likely get frustrated and view the strength of your argument less favorably. Accordingly, be sure to answer every question directly by relying on the relevant facts and law. And remember that the judges’ questions are a window into how the judges are considering the merits of your case, and thus an opportunity to convince the judges that their concerns are best addressed by ruling in your favor.

    8.     Speak slowly and be aware of your non-verbal actions

It is natural and entirely normal to experience anxiety before an oral argument. Knowing this, be particularly mindful of the manner in which you deliver your argument. For example, do not speak too quickly. Instead, gather your thoughts and speak in a conversational, respectful tone. And be sure not to fidget or move unnecessarily at the lectern. Keep your composure and your focus on the facts and law. After all, your non-verbal actions can often be as revealing as your verbal communications.

    9.    Be aware of the time – and practice under timed conditions

During most oral arguments, you will have up to thirty minutes (and sometimes less) to present your argument. You should practice under timed conditions to ensure that you can provide the court with the strongest and most relevant points supporting a ruling in your favor. In so doing, you should prepare a concise list of your most important arguments and make sure that, no matter how intense the questioning, you communicate these points either at the beginning or end of oral argument.

    10.   Prepare an excellent closing

Be sure that your closing statement is as powerful as your opening statement. Regardless of the questions that you are asked, make sure that you end your argument by providing the court with the strongest argument(s) that support the remedy you seek. Indeed, just as you want to create an excellent first impression at the beginning of an oral argument, you also want to provide the court with a powerful ending that offers compelling reasons to rule in your favor.

Extra tip: Have fun and do your best. You have a unique opportunity to obtain a favorable ruling on behalf of your client and effectuate a positive change in the law. Don’t put too much pressure on yourself. Do your best and relish the opportunity to make a meaningful difference in law.

October 28, 2019 in Appellate Advocacy, Appellate Practice, Appellate Procedure, Federal Appeals Courts, Legal Profession, Moot Court, Oral Argument | Permalink | Comments (0)

Saturday, October 26, 2019

The Productive Lawyer Redux

Image result for productivity

“Life is too complicated not to be orderly.” – Martha Stewart

I've written about productivity a few times, like here. It's an eternal struggle for many of us lawyers (I know it is for me). Perhaps the worst of it is that after you've had a very un-productive day, you blame yourself. You feel like you could have gotten more done if you just powered through those weak moments. Those times you let yourself click on that twitter feed. Or simply gave up after hours in front of a screen. 

The more I've worked on this problem with others--the more I'm convinced that forcing yourself to power through isn't the answer. The whole concept is wrong. All the science agrees that your will power isn't all that, well, powerful. Instead of beating yourself up over small distractions, you're much better off taking the time to work on your overall process for finishing tasks. In other words: work on your system; don't punish yourself for the one-off times you aren't perfect. 

The good news is that the interwebs is full of good advice for honing your work system. And with the growing number of apps and platforms built to help you on this very point, it's even easier.

So I thought I'd share a handful of tools that I've come across recently. But unlike my prior posts, I'm going to share some unusual ones. One of the best things about technology is its ability to help you change perspective or try something new. And I think these are examples of that principle. 

Not only might you try them, but share them with folks who seem to struggle in the productivity department. I use tools like these with my students all the time. 

Focus tools

The first could be the most fun productivity app out there. It's called Forest. It's similar to the Pomodoro Technique, which has you work for short bits of time without distraction, then take a break. What makes Forest amazing is that it creates a beautiful, cooperative game out of it. You start the timer in the app, work for a set period, and when you're done you get rewards--usually in the form of seeds to plant in your virtual garden. As you plant more trees and earn more rewards, you get to watch your garden grow. You unlock new fauna. And perhaps coolest of all: You can create gardens cooperatively. It's a lot of fun and, weirdly enough, works. It takes our human proclivity for distracting ourselves with silly games and turns it into a productivity weapon. 

Another great app in this group is Freedom. It's an oldie but goodie. Freedom will automatically cut off your digital distractions--even your internet altogether--to help you focus more on discrete tasks. 

Habit-building tools 

Habitify is an example of a class of tools that help you build better habits and keep track of them. You can monitor your progress over time and get a big-picture view of the habits you're trying to adopt. 

Image result for habitify

But if you really want to have fun with habits, try Habitica. Habitica, like Forest, turns habit-building into a game. But Habitica takes it up several notches, creating a deep and interactive experience out of your habits, including the ability to level up characters, purchase game items, and go on quests. And the social accountability works wonders. Pretty darn cool.


Ok, if you are really serious about building better productivity habits, check out Stickk. This app has you wager money on whether you will hit your goals or stick to good habits. If you don't follow through, you can set Stickk to donate your money to a charity--or an anticharity (a charity supporting a cause you disagree with). If money isn't a good motivator, what is? 

Juggling all your tasks in the air 

I love a couple of scheduling apps right now. 

Todoist remains the number one rated task app out there. And for good reason. I use it constantly. It organizes all your tasks, both short term and long term. It's easy to integrate with others in your life, both personal and professional. And it offers tons of tagging and other intuitive management tools to make task management and scheduling a  breeze. 

X.ai is an auto-scheduler that will, literally, give you a robot to handle all your scheduling. The program listens in to your emails and will automatically find the right time for a meeting (including across multiple users) and proceed to schedule it for all involved. Pretty amazing if you ask me. 

Organizing information 

Notion has blown my mind lately. It can do so much to organize, schedule, and simply manage your information--I may be leaving my next-favorite app (Airtable) behind. If you are an Evernote fan, I think Notion leaves it in the dust. There is so much I could cover here. Like how Notion lets you instantly drag and drop tons of pre-made note and organizational templates--from calendars, embedded PDFs, and note boxes to goal charts and interactive trackers. Or like how Notion gives you tagging and cooperative abilities to organize information with others. I think you just have to try it out (or watch this longer video introducing some of the features). 

Some fun bonus tools

To round this list out, a couple of fun but useful apps. 

MyNoise. A free app (also browser-based) that let's you play all sorts of background noise. Not only is the selection of background noise varied and high quality, but you can control the individual tracks. So if you're like me and that seagull annoys you in the ocean track--you can quiet him. 

1Password. In my experience, the best password management app out there. Keeping track of all my passwords is a nightmare. 1Password automatically generates, stores, and plugs in every password in your life. All you have to do is remember a single master key. If you haven't invested in a tool like this yet, it's time. 

Ok, that's probably more than enough apps for one day. But my list of favorites still has a lot left on it (and let's be honest, it grows all the time). So future posts on this topic are coming! 

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

October 26, 2019 | Permalink | Comments (2)

Friday, October 25, 2019

Appellate Advocacy Blog Weekly Roundup October 25

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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 Dan Real a quick email atDReal@Creighton.edu or a message on Twitter (@Daniel_L_Real). 

US Supreme Court Opinions and News:

This week, President Trump nominated his fifth candidate for the federal bench who has been rated as "not qualified" by the American Bar Association. Slate addressed the number of such nominees, the political divide in approving such nominees, and what it all means for the future of the independent judiciary.  Article HERE.

This week, the Supreme Court issued an order allowing government officials to move forward with lawsuits accusing oil and gas companies of climate change.

    • Supreme Court order HERE.
    • New York Times article HERE.
    • Bloomberg article HERE.

Justice Elena Kagan spoke on a variety of topics at Colorado-Boulder law school.  Article about her talk HERE.

Federal Appellate Court Opinions and News:

This week, the 11th Circuit Court of Appeals heard oral arguments in a case in which a historian has attempted to examine records from a grand jury investigation in the 1940's in Georgia concerning the lynching of four African Americans.  The case poses questions of whether federal courts have authority to release grand jury materials.  More HERE.

AppellateTwitter Job Postings:

The Florida First District Court of Appeals is hiring for law clerk positions and a central staff attorney position.  More HERE.

Illinois Supreme Court Justice Garman is hiring for a junior law clerk position.  More HERE.

 

October 25, 2019 | Permalink | Comments (0)

Tuesday, October 22, 2019

More Two-Minute Thoughts

DR1358_125

A couple of weeks ago Kent Streseman posted a blog about the Supreme Court's new "two minute rule," generally allowing the first two minutes of oral argument to proceed without questioning, and how it had been applied in the first couple of oral arguments after its introduction. As he noted, the writers of this blog are watching with interest to see how it is applied and what, if any, difference it makes in oral argument.

Of course, we all have our opinions as to the value of this time and how it should be used. As I ponder the best use, a couple of theories are bouncing around in my head that suggest possible strategies.

First, there is the narrative paradigm. Walter Fisher, a communications theorist, suggested this paradigm in the 70s, and it has continued to have influence since then. Basically, Fisher suggested that the objective notions of rhetoric may be less important than the subjective importance of the story being told to the listener. So long as the story is internally coherent and truthful to the listener's own notions, then the listener will have "good reasons" to believe the story, whether those reasons are objectively true or not. 

As legal practitioners, we tend to shy away from the narrative paradigm. Instead, we tend to couch our "storytelling" in terms of Aristotle's pathos - one of his triad of support for a good argument that involves the appeal to our audience's emotion. But the narrative paradigm goes deeper than this. It suggests that there are "truthy" arguments that appeal to us as storytellers that are more influential than just an appeal to either logic or emotion.

The second theory in some ways justifies Fisher's paradigm with neuroscience. As we have written before on this blog, neuroscience supports the ideal that there is "fast" and "slow" thinking processes at work in all of us. The "fast" processes rely on surface thinking that is informed by often unconscious preconceptions, stereotypes, and biases. It takes little thought to avoid the snarling dog, drive a well-known route, or even read the average blog. Unfortunately, it also takes little thought to dismiss the arguments made by someone against whom the judge has an implicit bias, or rule in a way that is consistent with prior rulings, even though circumstances may have changed. It is important, then, to engage the "slow," deliberate thinking of a panel by exposing implicit bias where necessary.

These two concepts - the importance of storytelling and the dangers of implicit bias - suggest different approaches in different cases. It may be important in your case to unveil potential implicit bias and deal with it explicitly at the start in order to quickly engage deliberative thinking. It may also be important in your case to reframe the story that underlies the facts so that the panel does not lose track of the human story that underlies the legal issue. The two minute rule gives you time to address these issues when they arise.

There are many other strategic uses of the two minute rule. Whatever your thought process, just remember that this time is valuable, and should be used more deliberately than just a time set-aside for a statement of theme and introduction of a roadmap.

(Image credit: Honore Daumier, "He defends the widows and orphans, unless he is attacking widows and orphans," 1846 lithograph from the series "Le Gens de Justice.")

October 22, 2019 in Appellate Advocacy, Appellate Procedure, Oral Argument, United States Supreme Court | Permalink | Comments (0)

Monday, October 21, 2019

Could a Checklist Improve Your Legal Writing?

This is a guest post by D’Andra Millsap Shu (Adjunct Professor, Thurgood Marshall School of Law at Texas Southern University) and Katherine T. Vukadin (Professor of Law, South Texas College of Law Houston)

What if we never made the same legal writing mistake twice? As legal writing students and even as attorneys, we tend to repeat our writing errors. A personalized legal writing checklist may help stamp out this problem.

Checklists are common in professions that call for mastery of extensive knowledge and exacting detail, such as medicine and aviation.[1] Legal writing, in some ways, is no different. Legal writing values precision, and mistakes can have serious consequences for clients and the writer. A checklist cannot of course compensate for mistakes of ignorance—those coming from a lack of knowledge necessary to carry out a task. But it can help us reduce mistakes of ineptitude, or the simple failure to apply our knowledge.[2]

For law students, the checklist can first come from the legal writing professor’s individualized critique of an assignment. When a legal writing professor closely reviews a student’s work, the student will want to adopt each aspect of the critique so the student’s subsequent work can progress in depth and accuracy. A student who creates a checklist from the professor’s critique will gain both understanding of its lessons as well as a tool for applying the critique to the next assignment. Students thus avoid mechanical completion of the professor’s revisions, and instead interact thoughtfully with each point.

The checklist’s creation can be a separate project, completed alongside the professor’s revisions. By sorting and naming the comments, students can keep their particular issues organized and will start to see the areas in which they most need to work. Once the checklist is created, the student can apply it to the next assignment. This way, mistakes from past assignments remain in the past.

Practicing attorneys and law professors too can benefit from a personalized writing checklist. The checklist’s contents can come from a colleague’s friendly revisions, from a legal writing book, from social media (both #appellatetwitter or #legalwriting on Twitter offer inspiration), or from one’s own list of individual quirks, such as frequently repeated or misspelled words. Even the most informal checklist, consisting perhaps of sticky notes attached to the computer screen, can help legal writers think twice before finishing a project.

A useful checklist is carefully designed and selective. No legal writer will have the time or inclination to wade through a list of obvious matters, such as format guidelines that have not proven problematic.  

Once the list is complete and pared down, consider organizing by the section of a legal writing project, for example, with some entries corresponding to the statement of facts, argument, and so forth. Some errors—use of the possessive, for example—may occur throughout a paper and can be placed first on the checklist, with a reminder to check for that item globally. Consider including checklist items specific to a particular assignment, such as a frequently-misspelled name or the transposition of letters in an abbreviation.

All legal writing mistakes are not equal. A misspelled client’s name, for example, can cast an otherwise impeccable brief in a negative light. A checklist can reflect this hierarchy, with the most crucial items starred, bolded, or written in another color. A legal writer is unlikely to ignore a checklist item with a large red dot next to it.

A checklist does not replace careful writing and proofreading, but it can serve as useful tool to help eliminate common, repetitive mistakes.

 

[1] See Atul Gawande, The Checklist Manifesto 34 (Picador 2010).

[2] See id. at 8-10 (discussing the distinction between mistakes of ignorance and ineptitude).

October 21, 2019 | Permalink | Comments (1)

Sunday, October 20, 2019

June Medical Services v. Gee and the Future of Abortion Rights

On October 4, 2019, the United States Supreme Court granted certiorari in June Medical Services v. Gee, where the Court will consider whether a state law requiring that abortion providers obtain hospital admitting privileges constitutes an “undue burden” on a woman’s right to access abortion services.[1] The Court’s decision in June Medical Services will directly impact the extent to which women can obtain abortions and, concomitantly, address the extent to which states may restrict abortion access.

By way of background, in Roe v. Wade, the Court held that the right to privacy under the Fourteenth Amendment includes a woman’s right to obtain an abortion.[2] In so holding, the Court established a trimester framework in which women have a largely unrestricted right to obtain abortions during the first trimester; in the second trimester, the states could only regulate abortions to preserve a woman’s health, and in the third trimester the states could prohibit abortions except where necessary to protect a mother’s health.[3] Nearly twenty years later, in Planned Parenthood v. Casey, the Court upheld Roe, but rejected the trimester approach and held that abortion restrictions would be invalidated if such restrictions constituted an “undue burden” on a woman’s right to obtain an abortion.[4]

In the wake of the Court’s decisions in Roe and Planned Parenthood, some states developed a strategy to eviscerate abortion rights by enacting legislation that, while not directly challenging Roe, placed significant restrictions on women’s access to abortion. Most recently, in Whole Women’s Health v. Hellerstedt, the Court considered whether a Texas law requiring abortion providers to obtain hospital admitting privileges unduly burdened a woman’s right to access abortion services.[5] Supporters of the law argued that the admitting-privileges requirement sought to facilitate access to a hospital in the event that complications arose during or after an abortion.[6] In a 5-4 decision, the Court rejected this argument, holding that abortion procedures in Texas “were extremely safe with particularly low rates of serious complications,” such that women only experienced complications in one-quarter of one percent of cases.[7] And when complications did occur, they rarely required hospital admission.[8] Additionally, the Court held that the law would likely lead to the closure of many abortion clinics in Texas and require thousands of women to travel more than 150 miles to obtain an abortion. Thus, given that the law offered no tangible benefits – yet imposed substantial burdens on many women in Texas – the Court deemed it unconstitutional. The Court’s decision, however, did not resolve this matter.

In June Medical Services, the Court will again decide the constitutionality of a strikingly-similar law in Louisiana that, like the Texas law, requires abortion providers to obtain hospital admitting privileges. The reason for granting certiorari may be due to the Court’s composition, which has changed significantly and now includes Justices Neil Gorsuch and Brett Kavanaugh, or may involve facts specific to Louisiana that render the consequences of its law far less significant. Notwithstanding, the fact that the Louisiana law is, for all practical purposes, identical to the Texas law suggests that the Court will re-examine Whole Women’s Health and adopt one of three approaches. First, the Court may affirm Whole Women’s Health and hold that the law constitutes an undue burden on a woman’s right to obtain an abortion. Second, the Court may distinguish the facts in Whole Women’s Health from June Medical Services and therefore issue a narrow ruling. Third, the Court may overturn Whole Women’s Health and, in so doing, create uncertainty regarding what precisely constitutes an “undue burden” on the right to abortion, and create doubt regarding whether Planned Parenthood and Roe will be overturned in the future.

Regardless of one’s opinion concerning abortion, these cases underscore a larger problem with the Court’s abortion jurisprudence: the failure to adopt a categorical rule that firmly establishes and resolves the contours of abortion rights. Indeed, the Court’s adoption of the “undue burden” standard in Planned Parenthood was so vague and imprecise that it empowered states to enact statutes that arguably sought, under the guise of protecting women’s health, to do indirectly what they could not do directly: overturn Roe. The recent passage of “heartbeat” laws that prohibit abortions at any point after a fetal heartbeat is detected, which occurs at approximately six weeks into a pregnancy, is another example of the states’ efforts to weaken Roe and its progeny.[9]

This is not to say, of course, that those who support such laws and oppose abortion are unprincipled in their convictions or misguided in their beliefs. Certainly, reasonable people can disagree concerning whether abortion should be legally and morally acceptable. It is to say, however, that the Court would better serve legislators, lower courts, litigators, and the public by adopting a categorical rule regarding the right to abortion rather than a vague, overly general, or unworkable standard. In so doing, the Court can prevent uncertainty in the law and provide a firm – and lasting – resolution. Put simply, regardless of how the Court rules in June Medical Services, it should do so in a manner that finally lays to rest any questions regarding the constitutional right to abortion.

[1] No. 18-1323 (2019).

[2] 410 U.S. 113 (1973).

[3] Id.

[4] 505 U.S. 833 (1993).

[5] 579 U.S              , 136 S. Ct, 2292 (2016). The law stated that a “physician performing or inducing an abortion . . . must, on the date the abortion is performed or induced, have active admitting privileges at a hospital that . . . is located not further than 30 miles from the location at which the abortion is performed or induced.” (quoting Tex. Health & Safety Code Ann. §171.0031(a)).

[6] Id. at 2311.

[7] Id. (internal citation omitted).

[8] Id.

[9] See, e.g., Renae Reints, The Are The States That Passed ‘Heartbeat Bills,’” (May 31, 2019), available at: https://fortune.com/2019/05/31/states-that-passed-heartbeat-bill/.

October 20, 2019 in Appellate Advocacy, Appellate Justice, Appellate Practice, Federal Appeals Courts, Legal Profession, United States Supreme Court | Permalink | Comments (0)

Saturday, October 19, 2019

Blackbeard, Allen v. Cooper, and Research via Public Depositories

    This term, SCOTUS will hear a sovereign immunity case involving Blackbeard’s sunken pirate ship.  In Allen v. Cooper, 18-877, the Court will address whether Congress validly abrogated state sovereign immunity in the 1990 Copyright Remedy Clarification Act (CRCA) by providing remedies for copyright holders when states infringe their federal copyrights. 

    Why does this matter to appellate advocacy, aside from the obvious fun of saying “Aaarrr!” when discussing an Eleventh Amendment case?  The case could impact the scope of free access researchers and appellate practitioners have to online materials.  In fact, while the case raises deep concerns for intellectual property creators, it also shows the increasing push by States to make images and documents available to the public at libraries and universities, and to preserve historic materials digitally.

    In 1718, Blackbeard’s Queen Anne’s Revenge ran aground a mile off the coast of what is now called Beaufort, North Carolina.  Legend says her captain and crew immediately transferred all treasure to smaller ships, and the Revenge remained underwater for over 200 years.  According to the Fourth Circuit’s opinion in Allen v. Cooper, 895 F.3d 337, 343 (4th Cir. 2018), in 1996, a private research and salvage firm operating under a permit issued by North Carolina discovered the wreck of the Revenge.  The researcher hired Petitioner, Frederick Allen, to document the shipwreck.  Id.  Allen obtained the rights to create video footage and photographs of the Revenge with another permit issued by North Carolina, and Allen registered his work over the next 13 years with the U.S. Copyright Office.  Id. at 342, 344.

    At some point, North Carolina posted pieces of Allen’s copyrighted works on State websites and in a State publication.  The State and Allen settled copyright claims from these postings, and the State agreed not to use Allen’s commercial copyrighted material in the future.  Id. at 344-45.  Nonetheless, the State soon published more of Allen’s Revenge video and images online, and then the North Carolina Legislature passed “Blackbeard’s Law,” which converts many of Allen’s images to the public record.  See id. at 342; N.C. Gen. Stat. § 121–25(b) (2015) (providing that photographs and video recordings of shipwrecks in the custody of North Carolina are public records); Amy Howe, Justices grant three new cases, SCOTUSblog (Jun. 3, 2019, 12:16 PM), https://www.scotusblog.com/2019/06/justices-grant-three-new-cases/.

    Allen sued North Carolina for copyright infringement and for a declaration that Blackbeard’s Law is unconstitutional.  The state moved to dismiss on the grounds of sovereign immunity, and Allen argued the CRCA abrogated North Carolina’s immunity.  The district court ruled for Allen, but the Fourth Circuit reversed, holding Congress acted improperly in enacting the CRCA.  Allen, 895 F.3d at 342-43, 350-53.  The Supreme Court granted cert, and will hear the case on November 5.  https://www.scotusblog.com/case-files/cases/allen-v-cooper/.

    Over twenty amici have filed briefs.  Amici in support of Allen make excellent arguments in favor of strengthening IP protection and maintaining the remedies provided in the CRCA.  For example, Oracle, the Software & Information Industry Association, and a group of prominent law scholars have each filed briefs contending Congress properly protected IP rights and innovation in the CRCA.  Oracle ACB, 2019 WL 3828598; SIIA ACB, 2019 WL 3814393, and Scholars ACB, 2019 WL 3828597.  These briefs stress the need to protect inventors and innovators from state action and potential wholesale public adoption of their copyrighted property.

    On the other hand, amici in favor of North Carolina argue copyright holders have remedies aside from the CRCA.  The also claim abrogating immunity will limit the public’s access to documents at public university and government research libraries.  The American Library Association and others stress that public archivists need protection for their large-scale, costly digitization projects to create open access and to save documents of historical significance.  ALA ACB, 2019 WL 4858292.  Similarly, a group of public universities note they are acting in the public interest to promote “education, research and community engagement” when digitizing documents and already carefully respect copyrights.  Public Universities ACB, 2019 WL 4748384.

    Whatever the outcome of these arguments, our appellate community should keep an eye on this case.  Not only does it offer pirate fun, but it presents serious issues of property rights and public access to research materials.

October 19, 2019 in Appellate Advocacy, Appellate Practice, Current Affairs, United States Supreme Court, Web/Tech | Permalink | Comments (0)

Wednesday, October 16, 2019

The Kind of Anxiety Every Client’s Lawyer Should Experience

Advice about appellate advocacy is abundant. How to begin; how to structure an argument; how to respond to questions; how much deference to show to the judge(s); whether to reserve time for rebuttal—these are all things the advocate should consider when preparing for oral argument. The best advocate should also experience a bit of anxiety. Not crippling anxiety; just enough anxiety to get adrenaline flowing; just enough anxiety to evidence that the advocate appreciates the gravity of the task and the client’s cause. “Situational anxiety, if it’s proportionate to the circumstances in which it arises, can have quite a positive impact.”1 

Situational anxiety associated with public speaking is common. In fact, public speaking is ranked highly among things and situations people fear the most, along with snakes and spiders.2 Most law schools require law students to perform some public speaking, from responding in class as part of a Socratic dialogue to delivering a trial level or an appellate level oral argument as part of a moot court exercise. Some law students walk away from these experiences believing that public speaking is not for them because they are anxious about making oral presentations. Others learn to thrive from the rush they feel when under the pressure of public speaking. Law professors and lawyers who mentor students and new lawyers should help students and new lawyers recognize that not only is this situational anxiety good for them, it is also good for their clients. And, it is not unusual. If law students and lawyers could recognize that some level of anxiety is healthy because it shows that the speaker cares about and recognizes the gravity of the task, perhaps some of these students and lawyers would reconsider their perceived aversion to public speaking.

As I prepared for one of my first oral arguments, a mentor advised me that some level of anxiety before an oral argument is healthy. Anxiety borne from a desire to represent your client and your client’s position to the best of your ability, combined with preparation, is good. I would even argue that it is necessary. I have told students that the client who has a lawyer who is not nervous about delivering an argument needs a new lawyer. I think I may have read that somewhere many years ago. Arguably, if the lawyer has no anxiety about delivering the oral argument, then perhaps the lawyer does not care enough and will not be energized enough to deliver a passionate argument. People do not get nervous or worry much about things for which they do not care.

Science supports this theory. Dr. Loren Soeiro explains:  “Anxiety helps us detect and attend to potential threats so that we can avoid danger. In the short term, anxiety can keep you at a heightened state of alert, allowing you to react more quickly when urgent dangers arise—like when you’re driving anxiously in the rain, and you find yourself responding immediately to erratic changes in traffic patterns.”3 He explains that if you face no anxiety when facing life-changing events and choices, you may end up missing something important because you will not fully think through what is going on.4 Situational anxiety serves to enhance your motivation to work hard and perform well, and it boosts your performance levels.5 It can also improve memory and lead to “responsible leadership.”6 “At significant moments when performance becomes an issue, the right amount of anxiety will help us do that much better.”7 

Thus, for the law student or lawyer called upon to represent a moot or a real client, situational anxiety can provide just what is needed to ensure that the advocate is giving the task and the client his or her all, both in preparation and in execution.

Educators and mentors of law students and lawyers should be sure to share this message. Doing so will help to normalize what these students and lawyers may be feeling and allow them to recognize and accept the positive aspects of what is ordinarily considered negative. Moreover, as first generation law students and lawyers enter law schools and the profession, it is especially important to educate these newcomers on the value and, indeed, the routine occurrence of the situational anxiety lawyers experience. These newcomers to the field may lack the opportunities to hear from seasoned lawyers about the anxiety that is common and can be helpful. Recognizing and embracing the kind of anxiety every client’s lawyer should experience before and during an oral argument or presentation should lead to better lawyering and perhaps more well-adjusted lawyers.

 

1Loren Soeiro, 3 Reasons Why Anxiety is Good for You, Psychology Today, May 20, 2019, https://www.psychologytoday.com/us/blog/i-hear-you/201905/3-reasons-why-anxiety-is-good-you.

2Kendra Cherry, 10 of the Most Common Phobias, Verywell Mind Blog, https://www.verywellmind.com/most-common-phobias-4136563 (last updated October 3, 2019) (explaining that fear of public speaking is the most common form of social phobia).

3Soeiro, supra note 1.

4Id.

5Id. (noting that “[r]esearch indicates that student-athletes who feel anxiety are able to perform better in their events — and on college exams! — than those who denied feeling worried.”).

6Id.

7Id.

 

October 16, 2019 in Appellate Advocacy, Appellate Justice, Appellate Practice, Law School, Legal Profession, Moot Court, Oral Argument | Permalink | Comments (0)

Tuesday, October 15, 2019

Ethical Issues on Appeal

Have you thought about the ethical rules that apply to your role as appellate counsel? Ethical rules are probably not at the forefront of your mind when you handle an appeal, but the failure to consider and follow the ethical rules can have serious consequences for appellate clients and counsel. Here we’ll focus on three Model Rules of Professional Conduct that relate to one’s role as appellate counsel and survey instances when appellate counsel might have given more thought to these rules.

Model Rule 1.1: Competence:

A lawyer shall provide competent representation to a client. Competent representation requires the knowledge, skill, thoroughness[,] and preparation reasonably necessary for the representation.

Carlyle Shepperson was a Vermont attorney who was charged with violating DR 6-101(A)(1) and 6-101(A)(2), which were forerunners to Rule 1.1. In re Shepperson, 674 A.2d 1273, 1273 (Vt. 1996). A justice of the Vermont Supreme Court had referred Shepperson to the state disciplinary board over the quality of his work product. Id. Shepperson entered into a remedial stipulation and agreed that he would not practice law until he completed a legal writing tutorial to “develop skills in legal analysis, persuasive writing techniques, writing organization, [ ] use of legal authority, proper citation form, and proper formatting for memoranda and briefs.” Id. at 1273-74. Shepperson later told bar counsel that he would not complete the tutorial and that he had left the United States for an indefinite time. Id.

Bar counsel filed a petition of misconduct and Shepperson filed a response but didn’t appear at the disciplinary hearing. Id. The Board of Professional Conduct recommended that Shepperson be disbarred. Id. The board found that Shepperson’s briefs:

were generally incomprehensible, made arguments without explaining the claimed legal errors, presented no substantiated legal structure to the arguments, and devoted large portions of the narrative to irrelevant philosophical rhetoric. The briefs contained numerous citation errors that made identification of the cases difficult, cited cases for irrelevant or incomprehensible reasons, made legal arguments without citation to authority, and inaccurately represented the law contained in the cited cases.

Id.

The board found Shepperson’s briefs were not competently prepared and didn’t meet minimal standards of competence; that Shepperson didn’t adequately prepare his work or give his work appropriate attention; and that he didn’t properly protect his clients’ interests. Id.

The Supreme Court of Vermont agreed with the board’s findings but issued an indefinite suspension. Id. In doing so, the court noted that Shepperson’s brief in the disciplinary matter showed his deficiencies. Shepperson failed to raise a legitimate legal issue and he didn’t cite a single authority to support his arguments. Id. at 636. Instead, his brief was a “harangue against the legal system” claiming “that the Board and this Court have violated his freedoms of speech and religion and limited his ability to think in diverse ways by dictating what is and what is not a proper legal argument.” Id. The court found that while Shepperson was free to represent himself as he pleased, he could not be allowed to continue to represent clients in a way that failed to safeguard the clients’ interests. The court declined to disbar Shepperson but did suspend him indefinitely.

Appellate counsel also has a duty of candor toward the tribunal. Model Rule 3.3 says:

(a)     A lawyer shall not knowingly:

          ***

          (2) fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel[.]

Gonzalez-Servin v. Ford Motor Co., 662 F.3d 931 (7th Cir. 2011) shows the importance of compliance with this rule.

Gonzalez-Servin involved consolidated appeals from orders transferring cases to courts in Mexico and Israel under the doctrine of forum non conveniens. One case arose from accidents allegedly caused by defects in Bridgestone/Firestone tires installed on Ford vehicles in Latin America. Id. at 933. The other claims concerned contaminated blood products. Id. The Seventh Circuit began its opinion by noting that it had consolidated the cases because each raised “concerns about appellate advocacy.” Id.

In the tire-defect case, the Seventh Circuit found that appellants’ counsel failed to cite adverse Seventh Circuit precedent in either their opening brief or their reply brief, even though the appellees cited the controlling decision in their response brief. Id. The court took the appellants’ failure to cite, “let alone try to distinguish” the adverse case as “an implicit concession that the circumstances of that case [were] ‘nearly identical’ to those of the [tire-defect] case.” Id.

In the blood-products case, the appellants filed their opening brief and then the Seventh Circuit issued two decisions that were adverse to the appellants’ position. Id. at 934. Although the appellees’ brief relied heavily on the newly issued adverse authorities, the appellants’ reply brief discussed one of the adverse cases “a little” and the other “not at all.” Id.

The court admonished:

When there is apparently dispositive precedent, an appellant may urge its overruling or distinguishing or reserve a challenge to it for a petition for certiorari but may not simply ignore it. We don't know the thinking that led the appellants' counsel in these two cases to do that. But we do know that the two sets of cases out of which the appeals arise, involving the blood-products and Bridgestone/Firestone tire litigations, generated many transfers under the doctrine of forum non conveniens, three of which we affirmed in the two ignored precedents. There are likely to be additional such appeals; maybe appellants think that if they ignore our precedents their appeals will not be assigned to the same panel as decided the cases that established the precedents. Whatever the reason, such advocacy is unacceptable.

Id. The court then said that “the ‘ostrich-like tactic of pretending that potentially dispositive adverse authority against a litigant does not exist is as unprofessional as it is pointless’” id. (quoting Mannheim Video, Inc. v. County of Cook, 884 F.2d 1043, 1047 (7th Cir.1989)) and illustrated its point by including these photos in its opinion:

Ostrich

 

Id.

While appellants in those cases didn’t violate Model Rule 3.3(a)(2) (because opposing counsel had disclosed the adverse authority), the court’s opinion makes clear that the better approach is to cite the adverse authority and try to distinguish it.

Finally, appellate counsel must be mindful of Model Rule 8.2(a):

A lawyer shall not make a statement that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge, adjudicatory officer or public legal officer . . . .

Swinka Realty Investments LLC v. Lackawanna County Tax Claim Bureau, 688 Fed. Appx. 146 (3d Cir. 2017) (unpublished) and its aftermath show the importance of following Model Rule 8.2(a).

Swinka arose out of a claim that state officials had violated the Fifth and Fourteenth Amendments in a tax sale. Id. at 147. On appeal, Swinka’s brief included statements accusing the trial court of contradicting itself; intentionally overlooking genuine issues of fact; creating false analysis; lacking understanding of Pennsylvania tax law; misstating the status of the law; padding its opinion with citations to irrelevant cases; trying to deprive the appellant of its rights; and other types of inappropriate conduct. Id. at fn.2.

The Third Circuit emphasized that appellants’ counsel had an ethical duty to avoid making false or reckless statements about the qualifications or integrity of a judge. Id. at fn.3. The court affirmed the trial court’s decision and said:

Swinka’s brief repeatedly casts aspersions on the District Court’s analytical ability. The aspersions lack substance and utterly fail to advance Swinka’s legal arguments. As such, these unprofessional comments reflect poorly on Swinka’s counsel. When counsel wastes ink attacking the ability of able District Courts instead of advancing his or her client’s legal arguments, we smell more than a hint of desperation and confusion about how an appeal works. It is an unbecoming way to brief an appeal.

Id. at 148-49.

Swinka’s counsel was referred to his state’s disciplinary board and he received a public reprimand for violating Rule 8.2(a). http://www.pacourts.us/assets/opinions/DisciplinaryBoard/out/186DB2018-Vinsko.pdf?cb=1.

We must be aware of the Rules of Professional Conduct when we represent clients on appeal. We must be sure that we provide competent, zealous, representation in a way that respects the integrity of the courts and our profession.

October 15, 2019 in Appellate Advocacy, Appellate Practice, Federal Appeals Courts, Legal Ethics, Legal Profession, Legal Writing, State Appeals Courts | Permalink | Comments (1)