Appellate Advocacy Blog

The Golden Gate by Amy Chua

A few weeks ago, I received an email from David Lat's substack Original Jurisdiction. The email contained an interview with Yale Law professor Amy Chua, known to some the Tiger Mom for her book Battle Hymn of the Tiger Mom. David's interview, however, centered around Amy's newest book--a novel set in the 1930s and 1940s in San Francisco. The novel, entitled The Golden Gate, was published last week.  

Intrigued, I requested an advanced copy of the book on NetGalley, which I received. David said he consumed the book in two days, an impressive feat for a dad of two young kids. As the mom of two young kids who is also teaching first year legal writing, I was skeptical that I could finish the book in a timely manner.  Fortunately (for this review) and unfortunately (for the rest of my life), I had a few days of not feeling well. This allowed me to cuddle on the couch with my cats and my kindle and devour The Golden Gate in three days.

At its most basic level, The Golden Gate is a double murder mystery--jumping between the tragic death of a young girl in the 1930s and the murder of a notable politician in 1944. Both deaths occurred at the Claremont Hotel. But the novel is so much more than simply a murder mystery--it is a thoughtful, meticulously researched, look at many of the complicated issues of that time (and the present) like race and racial identity, prejudice, gender, social status, mental health, politics, and policing practices. The story is told primarily from the perspective of Al Sullivan (or Alejo Gutiérrez), the detective assigned to solve the second murder, and Mrs. Bainbridge, the matriarch of a wealthy San Francisco family.  Mrs. Bainbridge's granddaughters are implicated in the murder, and her narration comes through in a deposition and a later factual narrative that she wrote for the district attorney.

I don’t want to give away too much of the story #nospoilers, so let me tell you what I loved about the book. In short, nearly everything.

First, it was a gripping story. I definitely wanted to figure out whodunnit, and the author certainly kept me guessing.

Second, the writing and research was phenomenal.  While I expect a Yale Law professor to meticulously research her academic writing, I don’t think that I was prepared for the level of careful detail I saw in a novel. I highly recommend reading the author note at the end of the book for additional resources and further context about the story. But what made the writing and research extra impressive was how accessible it was to the average reader. I would recommend this book both to lawyer friends and to friends who just like a good mystery.  The most lawyerly part of the novel was a brief discussion about incorporation and the exclusionary rule, and even that section was accessible to nonlawyers.

Third, the author addressed controversial, complex topics in extremely thoughtful ways. Her characters were complex—there were few overt “good guys” and “bad guys.” In fact, my opinion of the characters morphed as I read the book. Her characters dealt with difficult questions. Perhaps the most poignant for me was Detective Sullivan’s complex approach to his identity. I appreciated how the topic was personal to the author—it is personal to me as well.

This wouldn’t be a good review if I didn’t point out something that could have been improved. Although I am a bit hard pressed to identify a defect, I will say that the last 25% of the novel dragged a bit (until I got to about 90% finished).

Thank you Netgalley and the publishers for the free e-ARC, and thank you Amy Chua for an excellent read!

Impeachment Fever and the Judiciary

Every appellate advocate wants an impartial and independent judiciary, not a bench populated by people who would trim their sails to whatever political winds put them in their seat or is blowing so hard that the easier course is to let it dictate a result. Instead, we ask for a fair application of the law.

It may seem obvious that our justice system should operate that way, but political partisans often seek to bend the courts to their favor, whether through the appointment process or through elections. Even so, we hope that on the bench our judges will seek to make decisions rooted in law rather than political preference. Not everyone agrees, however.

In 2006, one stripe of political partisans operating under the banner of the South Dakota Judicial Accountability Project sought approval of a constitutional amendment that became known as “Jail for Judges.” The proposed amendment, which was defeated at the ballot box, would have allowed thirteen special grand jurors to decide that a judge’s ruling was wrong and either fine or jail the judge, as well as strip away as much as one-half of earned retirement benefits. Judicial rulings made years ago would have been subject to this process, as long as the jurist was still alive.

As extreme as that measure was, we are seeing a spate of new challenges to our courts that seek to guarantee certain results and threaten judicial independence. One that has received a great deal of attention is the threat of impeachment aimed at a newly installed Wisconsin Supreme Court justice. It has a transparently political purpose: keeping the Court’s new majority from upsetting the legislature’s redistricting handiwork. The basis for impeachment is incredibly weak. During her campaign, now-Justice Jane Protasiewicz called the gerrymandered districts “unfair” and “rigged,” while still avoiding any promise that she would rule one way or another. Republican Assembly Speaker Robin Vos accused her of “prejudging” the challenge to those districts, now before the Court, and has suggested the impeachment was a proper response if she chooses not to recuse herself.

Of course, this is not the first time an elected judge spoke to issues coming before a court. In one instance, the Washington Supreme Court considered whether one of their newly elected members was subject to discipline for his participation in an anti-abortion rally on the day of his swearing-in ceremony. At the “March for Life” rally, Sanders thanked the crowd for supporting his election and expressed “his belief in the preservation and protection of innocent human life.”[1] A judicial conduct commission found probable cause that Sanders violated several different canons of judicial conduct, but the state supreme court found that he acted within his free speech rights and his comments and actions did “not lead to a clear conclusion that he was, as a result, not impartial on the issue as it might present itself to him in his role as a judge.”[2]

In another case that reached the U.S. Supreme Court, Republican Party v. White,[3] the Republican Party and several candidates for judicial office successfully challenged a canon of judicial conduct that prohibited candidates for judicial office in Minnesota from announcing their views on disputed legal and political issues on First Amendment grounds. Justice Scalia’s opinion for the Court distinguished between “pledges or promises,” a prohibition that was not before the Court, and merely announcing ones views, which the Court said does not bind a candidate once elected.[4]

The opinion found it incongruous to permit candidates to express support for a prior judicial decision, but not criticism of it. It further noted that the prohibition related to taking positions on issues, but not expressing oneself for or against particular lawsuit parties. Thus, rather than be aimed at impartiality, which was its putative purpose, the Court found the prohibition was against expressing a view of the law upon which voters might choose to vote. As Justice O’Connor expressed in a concurrence, as long as you have judicial elections, something she disfavored, candidates, including incumbents, are going to express views on issues before the public, and that doing so was necessary to maintain public confidence in the courts.[5]

These cases suggest that the principal basis for impeachment in Wisconsin is inconsistent with established First Amendment principles. Garnering less attention, but no less problematic, is the tactic being employed in North Carolina. Justice Anita Earls, a black jurist on the state supreme court, gave an interview in which she advocated for greater diversity in the state court system, labeled the frequent interruptions of female advocates before the court an example of implicit bias, and bemoaned the termination of racial equity and implicit bias training in the judiciary. She relied on a recent study for her comments and said that diverse decision-making results in better outcomes, assures that a range of perspectives are considered, and secures greater public support because people are confident that more voices are heard.

For those remarks, the North Carolina Judicial Standards Commission began an investigation in August based on reading those remarks as accusing her judicial colleagues of “racial, gender and/or political bias.” The Commission suggested that the remarks “potentially violate[] Canon 2A of the Code of Judicial Conduct which requires a judge to conduct herself ‘at all times in a manner which promotes public confidence in the integrity and impartiality of the judiciary.’” Earls, who believes she was supporting public confidence in the judiciary, filed a federal lawsuit to enjoin the Commission from proceeding, citing First Amendment grounds and intimating that the Commission’s investigation could be used by the legislature to remove her from the bench.[6]

Early in our history, these types of attacks on judges when the political powers that be disagreed with rulings had a brief lifespan. The party of Thomas Jefferson, in control of the presidency and the Congress, was frustrated by the Federalist judicial appointees and their rulings. They tested the impeachment powers first against a New Hampshire district court judge, John Pickering, who was removed from office in 1804 upon apparently deserved accusations of habitual intoxication and insanity. Then Congress went after Justice Samuel Chase in what was generally regarded as a dry run at Chief Justice Marshall. Chase had placed himself in the sights of the new Democratic-Republican majority through partisan rants contained in his jury charges, as well as his handling of cases under the Alien and Sedition Acts. Despite holding a sufficient majority to convict in the Senate, enough party members balked at the process so that conviction fell four votes short, effectively ending the effort aimed Marshall and understood as a commitment to judicial independence that seemed strong until more recently.

As advocates, we need to recommit to first principles and denounce these new efforts to turn the judicial branch into a political football that can be manipulated to achieve what proper legal arguments cannot. While the judiciary is not immune from the ebb and flow of political opinion, it should not be reshaped by political threats based on the expression of views.

 

[1] Matter of Disciplinary Proceeding Against Sanders, 135 Wash. 2d 175, 178, 955 P.2d 369, 370 (1998).

[2] Id. at 768, 955 P.2d at 370.

[3] Republican Party of Minnesota v. White, 536 U.S. 765, 768 (2002).

[4] Id. at 770.

[5] Id. at 788–89 (O’Connor, J., concurring).

[6] Earls v. N.C. Jud. Stds. Comm’n, et al., Complaint, Case No. 1:23-cv-00734 (N.C. M.D., filed Aug. 29, 2023).

Three things to win on appeal

I spent my 2L and 3L years as a law clerk in the criminal appeals division of the Utah Attorney General's Office. After graduation, I stayed on for a few months as I got ready to take the bar and start my career in a county prosecutor's office. Around that time, I went to a division barbecue. As I was heading to my car to leave, the division chief (Fred Voros, later a member of our state court of appeals) stopped to talk to me. He wanted to wish me luck and give some parting advice. He said, "John, if you remember nothing else from your time with us, remember that you need three things to win on appeal: 1. A rule; 2. Someone who broke it; and 3. That it made a difference." 

This has been the most enduring, helpful advice I've ever gotten for appellate advocacy, whether for brainstorming arguments or responding to someone else's. Once this high-level thinking is clear, filling in the details is a lot easier. 

1. What's the rule?

When I first started in criminal appeals as a law student, I was assigned a defense brief to draft the response to. I spent an afternoon reading and re-reading that brief, and could not make heads or tails of it. It had English words organized into sentences and paragraphs, but I could not for the life of me figure out the basis for his claim. He clearly disagreed with the jury verdict, but didn't say what rule was broken. I went to the assigning attorney and told him of my plight; he chuckled a bit and said, "John, there's a certain value in dealing with this level of incompetence; it forces you to understand the issues, and gives you the chance to be helpful to the court." I went back and tried again, and eventually figured out his problem: he thought the jury should have believed his evidence instead of the State's. I was then able to look through the rules for such things and realize that his claimed error--that is, what rule was allegedly violated--was no error at all. Case closed. 

There are many sources of rules in the law--court rules (evidence, procedure, etc.), statutes, case law, constitutions, etc. If you're wondering how to make or respond to a claim, first figure out what the rule is for what happened.

2. Who broke it?

Nicholas Quinn Rosencranz wrote two of the most insightful law review articles I've ever read (sad to say, not a very competitive category): The Subjects of the Constitution, 62 Stan. L. Rev. 1209 (2010), and The Objects of the Constitution, 63 Stan. L. Rev. 5 (2011). The biggest takeaway for me is the need to be precise about the "who" question. Judges and lawyers--in an effort to be nice--often use the passive voice or personify laws to obscure who violated the constitution. For example, they will say, "this statute violates the First Amendment" or "the First Amendment was violated." But saying who violated the rule clarifies the test and its basis. Was it Congress who violated the First Amendment by writing a bad law? That's a facial challenge. Was it the Executive who enforced an otherwise valid law in a bad way? That's an as-applied challenge. There are very different standards to prove depending on the answer to the "who" question. 

So when you get a case and you have a rule, ask yourself who it was that violated it. Was it the legislature? Some branch of the executive? The judge? The jury? Counsel? And what about sins of omission? An alleged judicial sin of omission is viewed through the lens of plain error. An alleged error of counsel in criminal cases is viewed through the lens of ineffective assistance. These latter questions concern preservation, and can also greatly affect the analysis of the underlying issue. 

3. Did it make a difference?

“Anyone familiar with the work of courts understands that errors are a constant in the trial process, that most do not much matter, and that a reflexive inclination by appellate courts to reverse because of unpreserved error would be fatal.” Puckett v. United States, 556 U.S. 129, 134 (2009) (cleaned up). To undo the whole process of a lower court proceeding and either forbid future proceedings or get a do-over is serious business, and appellate courts are often reluctant to do it. This manifests structurally in the prejudice requirement--that is, whether an error made a difference, and to what degree. There are different forms for different claims. Most will require the appellant/petitioner to prove a reasonable likelihood of a different result absent the error. But (preserved) constitutional errors switch both the bearer of the burden (from the defendant to the State) and the nature and degree of the burden (to harmlessness beyond a reasonable doubt). Some errors--like a biased trial judge--are structural, and the prejudice is from that judge sitting, not from what the outcome might have been otherwise. And as with the "who" question, preservation can affect this.

So when you're puzzling over a legal issue, step back and ask yourself: what's the rule? who broke it? and did it make a difference? It will help you winnow out bad claims, strengthen good ones, and respond to anything. 

Teaching A New Generation of Law Students (and Students Generally)

     Law students (and students generally) are different than students from twenty or thirty years ago. Below are a few observations about the current generation of students, and a recommendation concerning how to adapt to a changing student population. Of course, this does not apply to all or even the majority of students, but the issues listed below are certainly more prevalent now in universities and law schools.[1]

1.    Students can be entitled and narcissistic.

     Some students are simply entitled and, quite frankly, narcissistic.[2] They lack respect for authority and do not adhere to common norms of civility and respect (e.g., shouting down a speaker with whom they disagree). They believe that they are entitled to a certain grade, to contact a professor at any time of the day, or to challenge any decision that is inconsistent with their expectations (often to administrators so concerned about student retention that they yield to every demand, however unreasonable). They often don’t respect boundaries – or their professors. And they rarely take accountability for their actions, instead blaming others for their failures or behavior. Not to mention, these students’ parents, who are often living in a state of ignorance and believe that their child can do no wrong, react with hostility when their child is subject to criticism.

2.    Students don’t buy into the process of what it takes to be successful.

    Achieving success and performing at a high level requires grit. It requires hard work and sacrifice. It demands that you learn from failure and respond effectively to adversity. It requires discipline, consistency, and commitment. It requires you to take responsibility for the choices and decisions that you make daily. And it requires a recognition that your choices, not your circumstances, determine the likelihood of achieving your goals. Many students, however, do not embrace these principles or the process that it takes to be successful. In fact, over sixty percent of university students have admitted to cheating.[3]

3.    Students lack mental toughness – and other intangibles.

     Some students are too sensitive.[4] They often lack the mental toughness and other intangibles necessary to achieve success in a competitive legal profession. For example, some students react negatively to constructive criticism. They respond poorly to adversity. They make excuses for an unacceptable work product and eschew accountability for their choices. They allow external factors to affect their self-perception and motivation and blame others whenever they experience failure. And they do not interact and work effectively with others, especially those whose viewpoints differ from their own. As one scholar explains:

Gen Z has less resilience than other generations, … It’s less that faculty are making their courses harder and more that students feel greater anxiety and overwhelmed when they perform worse than they expected. This puts them in a ‘fight or flight’ state, and often they’re fighting to get grades changed or to discipline faculty members.[5]

     This is a sad state of affairs.

4.    Students struggle with mental health issues.

     Increasingly, students struggle with mental health and substance abuse issues, which affects their ability to study effectively and perform at a high level. To be sure, approximately sixty percent of college students meet the criteria for at least one mental health problem.[6] One survey concluded as follows:

Specifically, 44 percent of students reported symptoms of depression; 37 percent said they experienced anxiety; and 15 percent said they were considering suicide—the highest rate in the 15-year history of the survey. More than 90,000 students across 133 U.S. campuses participated in the survey.[7]

     Undoubtedly, this affects students’ ability to succeed academically and professionally.

5.    Students are consumed with and affected negatively by social media.

     Many students are consumed with social media, often interested in how many 'likes' they receive for a post on Instagram or Facebook, or engaged in a debate on X, formerly known as Twitter.[8] And for some students, social media is their primary source of information. Unfortunately, this can affect students’ mental health and affect their ability to succeed academically. As one commentator states, “[e]xcessive social media use can … take a toll on young people's mental health.”[9] Indeed, “[a]s college-age students are spending up to an hour or two a day at a minimum on social media, it is cutting into time that they could be studying or engaging in actual social activities.”[10]

6.    Students enter law school lacking analytical thinking and writing skills.

     Students often enter law school without adequate analytical thinking and writing skills, often because their undergraduate institutions did not sufficiently emphasize the development of these skills.[11] This places a substantial burden on professors, especially legal writing professors, to prepare students for law practice. It should come as no surprise that many judges and lawyers criticize law graduates’ writing skills, which can be traced to inadequate emphasis on developing writing skills at the undergraduate level (and to some extent, in legal education).

7.    Students are too political.

     Some students have such strongly held political views that they develop their relationships with, and judgment of, others based on whether they agree with their views.[12] This has led to a failure to respect different viewpoints, which is one of the primary benefits of a diverse student body. It has led to a lack of civility and respect among those with whom students disagree. It has made compromise impossible, and a failure to appreciate nuance prevalent. Indeed, one needs only to look to students’ behaviors in response to university-sponsored speakers that they don’t like to see how pathetic some students have become.[13] If you doubt this, consider how many students claim to feel “unsafe” or cry, scream, or collapse whenever a professor or student says something that “offends” them.  To know that college and even law students behave like this shows how deeply troubled students have become.[14]

     Students and future advocates need to understand that, if you are pro-choice, you can respect and be friends with someone who is pro-life. If you voted for President Biden, you can respect and be friends with someone who voted for Donald Trump. The fact that this even needs to be stated shows how significantly our educational system and culture has declined.

***

      How should law professors (and professors generally) respond to this reality?

     It begins with university administrators. If administrators coddle entitled students and accommodate their every demand, this leaves professors powerless to do anything to ensure student accountability and success. After all, if professors know that their dean will not support them if a conflict with a student arises and where the student is at fault, there is no incentive for professors to do anything other than coddle students and give inflated grades.

     More fundamentally, however, educators, including law professors, should hold students to high standards and focus on preparing them for the real world. This means teaching students how to think analytically and write persuasively and holding them accountable for subpar work. It also means teaching soft skills such as mental toughness, resilience, perseverance, grit, and respect for diverse viewpoints, and emphasizing the coping skills needed to control their emotions and deal with the challenges that law and life invariably present. 

    After all, students need to know how to handle adversity. They need to learn how to respect and work with people who think differently from them – and who they do not like. They need to deal with failure constructively and cope with setbacks effectively.[15] They need to learn that crying and screaming whenever things don’t go their way (or when someone disagrees with them) will not serve them well as a lawyer (or in any aspect of life). As one commentator explains:

College is not summer camp, college is not group therapy, college is not a sanatorium, college is not (despite the current fad for "adventure" bonding experiences prior to the beginning of classes) survival training. They are students (the word comes from the Latin for "to apply oneself seriously"), and the best thing I can do for them, as their professor, is to treat them not as children but as serious people who are there to be serious about the subjects they study.[16]

      Most importantly, students need to know that they are not entitled to anything – except what they earn, and teachers should know that coddling students only sets them up for failure.[17]

 

[1]  See Niraj Chokshi, Attention Young People: This Narcissism is All About You (May 15, 2019), available at: Attention Young People: This Narcissism Study Is All About You - The New York Times (nytimes.com)

[2] See id.; see also Cynthia M. Frisby, “It’s All About ME”: Narcissism and Entitlement Among College Students (2008), available at: Narcissism.pdf (aejmc.com)

[3]  See International Center for Academic Integrity, available at: Facts and Statistics (academicintegrity.org)

[4] See Brett A. Sokolow,  College Students Are Sooo Sensitive (Jan. 6, 2016), available at: College Students Are Sooo Sensitive... | HuffPost College

[5] Chris Burt, Are Gen Z’s Complaints About College Workload Warranted, Or Are They Just Entitled? (October 16, 2022), available at: Are Gen Z’s complaints about college workload warranted, or are they just ‘entitled’? - University Business

[6] See Mary Ellen Flannery, The Mental Health Crisis on College Campuses (March 29, 2023), available at: The Mental Health Crisis on College Campuses | NEA

[7] Id.

[8] See Peter Suciu, Social Media Continues to Affect the Health of College Students (December 12, 2022), available at: Social Media Continues To Affect The Health Of College Students (forbes.com)

[9] Id.

[10] Id.

[11] See John Schlueter, Higher Ed’s Biggest Gamble, Can colleges truly teach critical-thinking skills? (essay) (insidehighered.com)

[12] Georgetown University, One in Four College Students Say They Ruled Out a School Due to Its State’s Political Climate (A One in four college-bound students say they ruled out a school due to its state’s political climate - THE FEED (georgetown.edu)

[13] See Karen Sloan and Nate Raymond, Stanford Apologies After Law Students Disrupt Judge’s Speech (March 13, 2023), available at:  Stanford apologizes after law students disrupt judge's speech | Reuters

[14] See Josh Blackman, Students at CUNY Law Protested and Heckled My Lecture About Free Speech on Campus (April 12, 2018), available at: Josh Blackman » Students at CUNY Law Protested and Heckled My Lecture about Free Speech on Campus

[15] Thankfully, at Georgia College and State University, I have outstanding administrators and students who inspire me to continue teaching.

[16] Daniel Mendelsohn,  How To Raise a Proper College Student (June 28, 2017), available at: Professor Daniel Mendelsohn On Entitled College Students - How to Raise a Proper College Student (townandcountrymag.com)

[17] See Greg Lukianoff and Jonathan Haidt, The Coddling of the American Mind: How Good Intentions and Bad Ideas Are Setting Up a Generation for Failure (Penguin, 2018).

 

Mandatory Civility Rules for Counsel

As I sat down to write this post, I realized it would appear at the beginning of the Jewish new year celebration of Rosh Hashanah and on my twenty-eighth wedding anniversary.  The rabbi who married us all those years ago had to leave our reception early to catch a flight to Israel for the new year, and Rosh Hashanah and our anniversary will always be connected in my mind.  In the spirit of this connection, I send wishes for a sweet and healthy new year to everyone celebrating, and I also share some thoughts on civility and my long marriage.

This week, retired Prof. Scott Fruehwald shared on a list-serv the abstract of Prof. David Grenardo’s upcoming  article on mandating civility, Debunking the Major Myths Surrounding Mandatory Civility for Lawyers Plus Five Mandatory Civility Rules That Will Work, 37 Geo. J. Legal Ethics __ (forthcoming).  While the author notes the article is still in draft form, it has already won the American Inns of Court 2023 Warren E. Burger Prize.  I highly recommend reading it. 

Prof. Grenardo details the way four states—Arizona, Florida, Michigan, and South Carolina—have adopted mandatory civility rules.  See id. at (draft manuscript pages) 10, 12-16.  He also makes powerful arguments that we should follow these states and move from voluntary, aspirational statements of a lawyer’s duty to be civil to mandatory civility rules.  See, e.g., id. at 16-23.  He concludes:  “Talking is not enough—leaders of the legal system need to act. State bars, state supreme courts, and, if necessary, state legislatures must take the step that four brave states already have—mandate civility.”  Id. at 37.

As I read Prof. Grenardo’s draft article, I was thankful (as always) for an appellate career, where I avoided much of the terrible incivility too often present in discovery and trial scheduling issues.  Nonetheless, I also remembered one opposing counsel’s refusal to stipulate to my seven-day extension request for a reply brief when I was in the hospital during a difficult pregnancy and the extension would not have changed the oral argument date in the matter.  You can probably also share a memory of  incivility in your practice.  

How does this connect to my marriage?  When my students ask how my husband and I have been married for more years than most of them have been alive, I tell them, “marriage is respect and compromise.”  Clearly, I am oversimplifying, but maybe only a bit.  And the more I see incivility in the legal profession, the more I see the need for respect and compromise.  Of course, clients deserve vigorous advocacy, and that does not always square with the idea of compromise.  Prof. Grenardo has several answers to this quandary.  For example, he notes that many lawyers “point to civility as a necessary component of effective advocacy,” id. at 34, and being more civil and willing to compromise on meritorious requests saves clients money, id. at 6.  

Whether you agree that we need to mandate civility rules, believe we just need to enforce our aspirational canons better, or find reports of incivility exaggerated, I hope this blog makes you think about compromise and our role as advocates.  I also hope you will read Prof. Grenardo’s article, either now or when Georgetown publishes it.  Happy new year!

Appellate Advocacy Blog Weekly Roundup Friday, September 15, 2023

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 [email protected] or on Twitter @Daniel_L_Real or (2) Catharine Du Bois at [email protected] or on Twitter @CLDLegalWriting.

US Supreme Court Opinions and News

Alabama will again appeal to the Supreme Court asking it to affirm their congressional redistricting map after its recently redrafted map was recently rejected a time because the map failed to comply with previous rulings. This June, the Supreme Court upheld a lower court's decision that rejected Alabama’s congressional redistricting map because it violated the Voting Rights Act by diluting the power of Black voters. (See coverage by Associated Press and NPR.) The map denied Black voters the reasonable chance to elect a second representative of their choice by packing a majority of Black voters into a single district and placing remaining Black voters in the six other districts. The lower court held that the legislature should redraw the map to include at least two districts where Black voters have a realistic opportunity to elect their preferred candidate. The legislature redrew the map, which also included only one district that is majority-Black voters, and the map was again rejected. (See Associated Press coverage). This time the court appointed a special master to redraw the Alabama map, taking the power away from the legislature. See complete coverage from NPR, The New York Times, and The Wall Street Journal.

Appellate Court Opinions and News

The Fifth Circuit upheld a lower court’s decision finding that the CDC violated the First Amendment when it threatened social media platforms to coerce the platforms to remove content. However, the court reversed the holding that blocked the administration’s contacting the platforms to urge them to remove content. The court held that encouragement, as opposed coercion, does not always cross the constitutional line.  See the ruling and coverage by The Associated Press and The Washington Post.

State Court Opinions and News

A California state appeals court upheld a restriction on carrying guns in public that was similar to the New York restriction struck by the Supreme Court last term. The court held that the California law differs from the New York law in a way that makes it meet constitutional muster. Both laws require the gun owner to show good cause, which was the provision that the Supreme Court declared unconstitutional. The California law, however, also includes a provision that requires the owner to be of “good moral character.”  The court determined that “prohibitions on concealed firearms have historically been permitted by the Second Amendment” and that are still allowed if they comply with limits imposed by the Supreme Court.  See the ruling.

Of General Interest

The Federal Judicial Center shared the third edition of “A Primer on the Jurisdiction of the U.S. Courts of Appeals” by Thomas E. Baker. The primer’s purpose is described, in part, as “a brief introduction to the complexity and nuance in the subject-matter jurisdiction of the U.S. courts of appeals.”

Lawyer Barbie and the Role of Emotion in the Law

Yes, the Barbie movie is everywhere but with good reason.  It touches on numerous aspects of gender roles in society, including our legal system. 

Warning:  spoiler alert if you haven’t yet seen the movie.

At the beginning of the movie, the audience is taken on a tour of Barbieland, including a scene where Lawyer Barbie appears to be arguing Citizens United[i] before an all-female Barbie Supreme Court.  After expressing that “money is not speech and corporations have no free speech rights,” Lawyer Barbie states:

“This makes me emotional, and I’m expressing it.  I have no difficulty holding both logic and feeling at the same time.  And it does not diminish my powers. It expands them.”[ii]

Many female lawyers reacted positively to this quote, stating things like, “Being a female lawyer and hearing this line hits different after being told ‘facts not feelings’ in the courtroom over and over again.”[iii]  This reaction is not surprising because, “[g]enerally, we tend to think that people are either rational or emotional, but they can’t be both.”[iv] And “[w]hen a woman’s arguments are attributed to her emotions, it suggests she’s not thinking clearly or rationally. As a result, the legitimacy of her arguments weakens.”[v] But Lawyer Barbie was applauded for her dual display of logic and emotion because, in Barbieland, “all problems of feminism and equal rights have been solved.”[vi]

While there are obvious feminist implications related to the interplay of emotion and logic in law, I want to focus more on the general question of what role—if any—emotion should play in good lawyering, given the “long intellectual tradition that dichotomize[s] reason and emotion.”[vii] 

Though Aristotle famously said that “[t]he law is reason unaffected by desire,” he also recognized that pathos (appeal to emotion) is one of the three pillars of effective persuasion.  And a recognition of emotion’s effect on legal doctrine is weaved throughout our justice system.  In criminal law, for example, victims are allowed to give victim impact statements at sentencing, and a defendant may be convicted of a lesser degree of homicide if the evidence shows provocation by sudden passion.  But it also reaches family law, education policy, corporate and securities law,[viii] and even constitutional theory.[ix]

Trial lawyers have long recognized the power of emotional appeal to a jury.  But many attorneys “discount its value in persuading a trial judge or an appellate court.”[x]  And why wouldn’t they when well-respected appellate judges declare that “jurors, like children, are more likely to make emotional judgments than judges” and refer to emotion as “a more primitive mode of reaching a conclusion”?[xi]

But “[t]he most persuasive arguments are not necessarily those that contain the most empirical data. They are not necessarily the ones that employ the tightest syllogisms or that use the most complicated forms of analysis.”[xii] Instead, “[t]he most compelling arguments are those that connect best with the imagination of those who are listening to [or reading] the arguments.”[xiii] 

While opening statement and closing argument are the best tools in a trial lawyer’s toolbox for emotional appeal, what’s an appellate advocate to use? 

The structure of an appellate brief largely follows the five-part argument structure advanced by classical rhetoricians:  introduction (exordium), statement of the case (narratio), argument summary (partitio), proof of the case (confirmatio), and conclusion (peroratio).[xiv]  An introduction in an appellate brief is the closest analog to an opening statement at trial, but not all briefs include them.[xv]  But all briefs include a Statement of the Case (or Statement of Facts) and Argument (or proof of the case).

Though “the statement of facts is not a vehicle for argument,”[xvi] it is the ideal place for storytelling.  The facts section is where the advocate can reveal “moral purpose”[xvii] by “describing or alluding to the human emotions that motivated the [client’s] behavior.”[xviii]  A well-told story can evoke empathy from the reader, laying the groundwork for a favorable view of the legal arguments that follow.

To tell the story well, the advocate must “show, not tell” by describing the details of the scene or transaction leading to the conflict, while being mindful about the use of adjectives.  Compare “a horrific car accident” with “blood-soaked grass, the car’s body crushed like a tin can, with sunlight glinting off glass shards scattered across the asphalt and the smell of burning rubber still hanging in the air.”  The adjective “horrific” represents the advocate’s conclusion of the scene without showing it to the reader.  But giving the reader the details of the scene leads the reader to draw the same conclusion on their own.  While the party who caused the accident might prefer to use an adjective to describe the scene; the victim of the accident should use the details.[xix] 

For the argument section, an advocate can weave in emotional appeal through the use of “images, analogies, metaphors, stories, symbols, and emotive language.”[xx] Advocates should consider how they refer to the parties and other players in the case.  Use descriptive terms that show relationships between individuals (e.g., victim and perpetrator).  People tend to feel empathy for those who have been hurt or wronged and are more likely to believe justice is served when the outcome favors the person viewed as harmed.

And, because “[a]ppellate judges view themselves as guardians of the law,” a good advocate “appeal[s] to the policies and values that underlie the rule of law” to “emotionally attract the appellate judges to the merits in the client’s position.”[xxi]

In short, emotion has a place in law and should be recognized as coexisting with logic and not as inconsistent with it.  Even the stoic Dr. Spock noted that “[l]ogic is the beginning of wisdom… not the end.”[xxii]

 

[i] Citizens United v. Fed. Election Comm’n, 558 U.S. 310 (2010).

[ii] Barbie, Directed by Greta Gerwig, Warner Bros. Ent., 2023.

[iii] https://www.tiktok.com/@chamcollier/video/7260132015444430123

[iv] Kim Elsesser, Labeling Women As ‘Emotional’ Undermines Their Credibility, New Study Shows, available at: https://www.forbes.com/sites/kimelsesser/2022/11/01/labeling-women-as-emotional-impacts-the-legitimacy-of-their-arguments-according-to-new-study/?sh=643664415b90

[v] Id.

[vi] Barbie, supra note ii.

[vii] Kathryn Abrams and Hila Keren, Who’s Afraid of Law and the Emotions?, 94 Minn. L. Rev. 1997, 2003 (June 2010).

[viii] Id. at 2012.

[ix] See, e.g., J. Joel Alicea, The Role of Emotion in Constitutional Theory, 97 Notre Dame L. Rev. 1145 (2022).

[x] John C. Shepherd and Jordan B. Cherrick, Advocacy and Emotion, 3 J. Ass’n Legal Writing Directors 154, 155 (Fall 2006).

[xi] Richard A. Posner, Emotion versus Emotionalism in Law, in Susan A. Bandes, ed., The Passions of Law 311 (New York U. Press, 1999).

[xii] D. Don Welch, Ruling with the Heart: Emotion-Based Public Policy, 6 S. Cal. Interdisc. L.J. 55, 55 (1997).

[xiii] Id.

[xiv] Michael Frost, Ethos, Pathos & Legal Audience, 99 Dick. L. Rev. 85, 94 (Fall 1994).

[xv] See my previous post, Should I Include a Stand-alone ‘Introduction’ Section in My Brief? (May 9, 2023), for considerations about including introductions, and Adam Lamparello’s post, Drafting a Strong Preliminary Statement (May 28, 2023) for drafting tips.

[xvi] Markowitz & Co. v. Toledo Metro. Hous. Auth., 608 F.2d 699, 704 (6th Cir. 1979).

[xvii] Frost, supra note xiv, at 95.

[xviii] Shepherd and Cherrick, supra note x, at 156.

[xix] Advocates must be careful not to go too far with adjectives.  E.g., Markowitz, 608 F.2d at 704 (stating that describing “the trial court’s findings [as] ‘astonishing,’ and ‘extraordinary,’ or describing an opponent’s position as ‘ludicrous’ is not acceptable”).

[xx] Shepherd and Cherrick, supra note x, at 161.

[xxi] Id. at 163.

[xxii] Star Trek VI: The Undiscovered Country, Directed by Nicholas Meyer, Paramount Pictures, 1991.

Hoisted on Their Own Petard: The Appellate Motion to Strike

The general rule in appellate courts throughout the country is that a reply brief is limited to raising matters preserved in the trial court, issues argued in the opening brief, or arguments made in the response brief. The rationale for this very sensible rule is that making a new argument in a reply brief unfairly deprives the appellee of an opportunity to respond. At least in some jurisdictions, the proper response to a reply brief raising new arguments is a motion to strike.

But should you make the motion? That depends on whether you really believe it will help you. Recently, I responded to a motion to strike portions of my reply brief. I suspect that my opponent regrets making the motion. The court has told us it will address it at the same time as the merits, and presumably during the upcoming oral argument.

In this case, I was hired only at the reply brief stage to take over an appeal, so I did not write the opening brief. The issue is whether trial counsel had breached the state equivalent of Model Rule of Professional Conduct 4.2, sometimes referred to as the no-contact rule. The rule prevents undue influence or strategic advantage by preventing one party’s lawyer from contacting a represented party’s lawyer without that lawyer’s consent. In other words, communications with another party must be through that party’s counsel.

In the trial court, defense counsel for a product manufacturer accused plaintiff’s counsel of violating the rule by speaking to an independent authorized service center (ASC) for the product, as well as for the products of other manufacturers. In the complaint, the plaintiff had referred to the ASC as an agent for the manufacturer. However, when he sought discovery in prior litigation for a different plaintiff, the manufacturer (and the same defense counsel) denied that an ASC was an agent, asserted that the ASC was an independent company, and said that any information counsel wanted should be obtained directly from the ASC. However, because plaintiff’s counsel went directly to the ASC in this subsequent case after describing it as an agent, the manufacturer asked for sanctions under Rule 4.2. Counsel did not claim he represented the ASC. Instead, counsel argued that because the plaintiff’s lawyer had “thought” the non-party ASC was an agent, he should have sought permission to contact the ASC – even though defense counsel was in no position to grant or deny permission.

The trial judge bought the argument and disqualified plaintiff’s counsel. The opening brief on the appeal of that disqualification explained the facts, the rule, and what it would take to treat an “agent” as fitting within the rule. The response brief reiterated the trial court opinion, focusing on how the definition of “person” in the rule included “agents.” My reply brief opened with the fact that the briefing to date established that the ASC was not a represented person so that Rule 4.2 did not apply and that by itself was dispositive. It explained the underlying purpose of the rule and how that was completely tied to being a “represented person.”

The motion to strike soon followed, asking the court to strike every portion of my brief that made the represented-person argument, explaining that it was a new argument made by new counsel. In a footnote, added under an abundance of caution, the response brief provided a substantive response to the argument. My reply to the motion pointed out that the issue was not at all new. The trial court transcript included an argument about the rule only applying to a represented person. The opening brief quoted the rule and made arguments about the meaning of agent that assumed the rule applied only to represented persons. And the defendant’s brief also opened the door to the argument by focusing on the meaning of “person” without including the very necessary word “represented” that came before “person” and limited the latter word’s scope. Each of these facts independently supported the propriety of making the argument in the reply brief. I also pointed out how incongruous it would be to suddenly apply a rule that is explicit in its scope to situations that are plainly outside it and that the consequences of such a ruling would change the dynamics of litigation in ways that could not be justified by forcing counsel to forego contact with independent non-parties to prepare a case absent permission of opposing counsel who did not represent that party.

The battle over the motion to strike, though still undecided, had the effect of further highlighting my argument about the necessity of representation, while its substantive response, albeit in a footnote, telegraphed to me the other side’s likely position on why representation is unnecessary when the issue is joined at oral argument. Strategically, it makes little sense to highlight an opponent’s strongest point, which is what this motion did. It seems unlikely that the motion could succeed when it asks a court to read out of the applicable statute (or rule) a textual qualification to the part of the law that a party relies upon.

If I am correct in believing that the word “represented” is dispositive of the appeal, the motion to strike provided me with an opportunity to fine-tune the argument by resort to the record and what the trial court ignored, as well as to tie it even more closely to my opponent’s argument. I doubt that the motion provided a benefit to the other side. Instead, I suggest that this was one of those instances where counsel would have been better off foregoing the motion to strike.

Journal of Appellate Practice & Process Looking for State-focused Articles

The Journal of Appellate Practice & Process is looking for one or two more articles or essays for our Summer 2024 issue.  In particular, we are looking for articles that focus on either the work of state appellate courts or appellate practice issues in state courts.

The Journal is a professionally edited Journal that focuses on appellate law topics. According to HeinOnline, it is the “the only scholarly law journal to focus exclusively on issues, practices, and procedures of appellate court systems, both federal and state, both American and international.” It “provides a forum for creative thought and dialogue about the operation of appellate courts and their influence on the development of the law.”

We tend to prefer shorter, more practical oriented articles, but we have published longer pieces in the past. If you are interested in submitting an article, please email me at [email protected].

Thanks!

The Optics of Ending Affirmative Action

In Students for Fair Admissions v. Harvard, the United States Supreme Court ended affirmative action in college admissions.[1] Specifically, the Court held that race-based considerations in the admissions process violated the Fourteenth Amendment’s Equal Protection Clause.[2] Writing for the majority, Chief Justice John Roberts stated that such affirmative action policies “lack sufficiently focused and measurable objectives warranting the use of race, unavoidably employ race in a negative manner, involve racial stereotyping, and lack meaningful end points.”[3] Chief Justice Roberts also interpreted the Equal Protection Clause to require that universities act "without regard to any difference of race, of color, or of nationality," and emphasized that “[e]liminating racial discrimination means eliminating all of it.”[4] This language is reminiscent of Roberts’ opinion in Parents Involved in Community Schools v. Seattle School District No. 1, where he stated that “the way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”[5]

Importantly, however, the Court did not prohibit universities from considering race in the admissions process "so long as that discussion is concretely tied to a quality of character or unique ability that the particular applicant can contribute to the university."[6] In other words, although an applicant’s race cannot, by itself, be a factor in the admissions process, it can be considered if an applicant explains, such as in a personal statement, how the applicant's race created unique obstacles or adversity that the applicant overcame.

Regardless of one’s opinion about the constitutionality – or efficacy – of affirmative action programs, the Court’s decision undermined its legitimacy and reinforced the notion that the Court is a political institution. To begin with, Chief Justice Roberts’ opinion effectively overruled three precedents – Regents of the University of California v. Bakke, Grutter v. Bollinger, and Fisher v. University of Texas – thus making stare decisis appear like a doctrine of convenience rather than conviction.

What’s worse, the Court’s decision reflects the deeply troubling reality that the Constitution’s meaning changes when the political affiliation of the Court’s members changes. Let’s be honest: the only reason that the Court ended affirmative action in college admissions is because Justice Brett Kavanaugh replaced former Justice Anthony Kennedy and because Justice Amy Coney Barrett replaced the late Justice Ruth Bader Ginsburg. To be sure, ten years ago, the Court would have decided Students for Fair Admissions differently, and only because the political affiliations of the Court’s members at that time were different. Indeed, the Court’s decision suggests that constitutional rights can be tossed in the proverbial garbage simply because there are more conservatives on the Court in 2023 than there were in 1978 (when Bakke was decided) or 2003 (when Grutter was decided). That is the point – and the problem. The Court’s decision cheapened constitutional meaning and contributed to transforming the Court into a political, not legal, institution. The justices surely understand this, but probably do not care.[7]

Lest there be any doubt, consider Dobbs v. Jackson Women’s Health, where the Court overturned Roe v. Wade and Planned Parenthood v. Casey and held that the Fourteenth Amendment did not protect a right to abortion.[8] Although the Court’s decision was correct as a matter of constitutional law, it was also incorrect from a pragmatic standpoint. After all, just as one wonders what made the justices discover an unenumerated constitutional right in those invisible penumbras that the Court created in Griswold v. Connecticut, one must also wonder what made the justices suddenly discover that the Constitution did not protect a right to abortion. The answer is obvious: the justices’ political preferences. Unfortunately, the public’s opinion of the Court is damaged when it perceives that politics, not law, and party affiliation, not principle, motivate the Court’s decisions. And although the justices continually emphasize that policy preferences do not motivate their decisions, the fact remains that perception matters more than reality. In fact, it is reality.

This raises a broader point: why is the Court getting involved in these cases? Where reasonable people can disagree regarding the Constitution’s meaning, such as where the text is broadly phrased or ambiguous, why is the Court deciding for an entire nation what should be decided democratically? For example, in Kennedy v. Louisiana, the Eighth Amendment’s text could not possibly answer the question of whether authorizing the death penalty for child rape constituted cruel and unusual punishment.[9] Likewise, in Clinton v. New York, the Presentment Clause provided no guidance on the Line-Item Veto Act’s constitutionality.[10] Additionally, in Citizens United v. FEC and McCutcheon v. FEC, the First Amendment’s text could have been interpreted differently when deciding the constitutionality of limits on independent expenditures.[11] As a result, the Court should have allowed the people to decide these issues democratically.  But the Court refused to do and, in so doing, nine unelected justices –who graduated from elite law schools and come from a privileged pedigree – substituted their judgment for that of citizens and Congress. Not to mention, it is quite problematic to preach deference to the coordinate branches in cases such as National Federation v. Independent Investors v. Sebelius, and then in Shelby County v. Holder to simultaneously invalidate portions of the Voting Rights Act that the Senate reauthorized by a vote of 99-0.

If the Court wants to maintain its legitimacy, it should show greater respect for its precedents and stop getting involved in cases where the Constitution’s text nowhere demands its involvement.

 

 

[1] See Slip Op. at 20-1199 Students for Fair Admissions, Inc. v. President and Fellows of Harvard College (06/29/2023) (supremecourt.gov)

[2] Id.

[3] Id.

[4] Id.

[5] 557 U.S. 701 (2007).

[6]  See Slip Op. at 20-1199 Students for Fair Admissions, Inc. v. President and Fellows of Harvard College (06/29/2023) (supremecourt.gov)(emphasis added).

[7] This is not to say that the majority was wrong as a matter of constitutional law, or in any way to question the justices’ motivations. It is to say, however, that their decision suggests that politics, not law, drove the decision.

[8] 142 S. Ct. 2228.

[9] 554 U.S. 407 (2008).

[10] 524 U.S. 417 (1998).

[11] 558 U.S. 310, (2010); 572 U.S. 185 (2014).

The newest issue of the Journal of Appellate Practice and Process

The old adage "better late than never" certainly applies to the latest issue of the Journal of Appellate Practice and Process. Here is a press release from NITA, our editing partner, announcing its release:

Journal of Appellate Practice and Process Publishes Summer 2023 Issue

LOUISVILLE, Colo., August 22, 2023 — The National Institute for Trial Advocacy (NITA) and the University of Arizona James E. Rogers College of Law (University of Arizona Law) have released the Summer 2023 issue of the influential Journal of Appellate Practice and Process. The issue features a selection of articles on appellate practice.

The issue opens with a look into tribal courts and the issues surrounding self-represented litigants, before moving onto articles that make a case for terminating the United States Court of Appeals for the Armed Forces; examine the courts’ power to recall mandate and how recall can be used in habeas and post-conviction relief cases even after the passage of AEDPA; investigate whether better briefs and oral arguments impact how Supreme Court justices vote; expound on what judges want (and don’t want) to see in appellate opinions; and offer thoughts on writing a reply brief. Two book reviews on recent publications of interest to appellate practitioners round out the Summer issue.  

The issue’s contributors are Pamela C. Corley, Southern Methodist University; Adam Feldman, Optimized Legal Solutions Consulting; Eugene R. Fidell, Feldesman Tucker Leifer Fidell LLP; Elizabeth M. Fritz, University of Virginia School of Law (J.D.); Hon. Carrie E. Garrow, Saint Regis Mohawk Tribal Court and Penobscot Nation Tribal Court; Hon. Gerald Lebovits, New York State Supreme Court; Hon. Danielle J. Mayberry, Te-Moak Tribal Court and Saint Regis Mohawk Tribal Court; Hon. Douglas R. M. Nazarian, Appellate Court of Maryland; Susie Salmon, University of Arizona Law; and Brian Wolfman, Georgetown University Law Center.

Journal Editor-in-Chief and contributor Tessa L. Dysart said, “This issue continues the Journal’s practice of publishing interesting scholarship from a diverse set of authors. This issue truly represents how wide-ranging appellate-focused scholarship can be.” Dysart serves as the assistant director of legal writing and clinical professor of law at University of Arizona Law.

To access the Summer 2023 issue, click here.

 

Political Debates and Oral Advocacy: Differences and Similarities

Watching the past week’s Republican presidential candidate debate and its subsequent press coverage caused me to reflect on the differences between that type of political debate and appellate oral argument. Some of the differences are obvious.

In political debate, candidates are free to ignore the question posed to them and discuss something entirely different, make baseless claims without fear that it will adversely affect the decision they seek, and treat the time limits as advisory. They may also get an off-the-wall question, like when former New Jersey Governor Chris Christie fielded a question on alien life and UFOs.

Now, imagine the appellate advocate doing the same things or facing a similar set of questions. It is hard to do. Judges are usually well informed about an advocate’s position. They have read the briefs, reviewed underlying authorities, and expect answers to their questions. Because advocates are hoping to win over the judges themselves, rather than an unseen audience of the public, they must be both more respectful of their inquisitors and more concerned that their answer provides the grist that the judge seeks. They must also be highly accurate, both about the record and about the precedents they cite. Credibility is the coin of the realm for an advocate, and real-time correction of a false assertion can occur. In one of my arguments, my opponent made the same claim orally as he did in his opening brief about the record, which I had rebutted in my response. The judges were all over him as soon as the error was uttered. By the time he was able to return to his argument, the judges appeared unwilling to listen to his additional points.

Also, unlike in politics where differentiating yourself from your co-debaters may encourage it, oral advocates cannot engage in theatrical stunts. It will not play to the decision-makers that matter in a court of law.

On the other hand, there are similarities in some aspects of effective political debate and oral advocacy. Telling a succinct story can be tremendously effective in both forums. That is why politicians will often turn their biography into a compelling narrative. It memorably makes a connection with their audience that is essential. Advocates also find storytelling an important skill. Whether it is fashioning the record into a powerfully sympathetic description of what is at issue or presenting precedents so that they inexorably lead to the preferred result, advocates seek to tell a story that strikes a responsive chord in their panels.

Both debaters and advocates must be skilled in transitioning from questions to other important points. A minor issue on the debate stage should not take up important time, so a skilled politician must be capable of answering succinctly and use the remaining time to raise a more important point that might otherwise go undiscussed. Similarly, an advocate who can dispose of a simple question quickly can return to the one or two points that may be more critical to discuss.

Candidates and advocates both also seek to show why their opponent is wrong. It can be that the policy/result their opponent seeks makes little sense, conflicts with successful positions/prior precedent that experience supports, or fails to address the real underlying issue. And, it helps in both forums to have a winning personality and pleasant demeanor. Just as a politician who comes off as dour wins few votes, an advocate who treats every question with hostility rarely comes off well. Unpleasantness, though, may not lose a case, even if it could lose a political vote. When I worked at a court, I recall hearing one judge comment after an oral argument where the advocate “admonished” the judges that the lawyer had hurt herself. In the end, that advocate won a unanimous decision. I never understood how she hurt herself. Perhaps the decision was written more narrowly than the judges were otherwise inclined to do.

Yet, despite these similarities and skills that can prove effective in both forums, appellate advocacy is a less wide-open and emotional endeavor than political debate. And the best oral advocates understand that.

Dear Arizona Supreme Court--Please Keep the Table of Authorities.

Earlier this year I blogged about a rules change petition pending before the Arizona Supreme Court to do away with the Table of Authorities. As I explain in the post, the attorneys petitioning the Court for the change argue that,

The Table of Citations is no longer needed to help a reader navigate to a particular cited source because most briefs are filed in electronic format with searchable text. Cumulatively, appellate litigants spend an unjustifiable amount of time and resources creating Tables of Citations.

Apparently, lots of attorneys in Arizona (and elsewhere) agree.  In reading the comments on to the petition, I was surprised to see that most persons and groups supported the change--including the state bar, the Pima County Bar Association, and the Attorney General's office.  There was even an appellate judge who wrote in favor of the change. 

However, two criminal defense attorneys wrote comments against the change. One comment, filed by attorney Kevin Heade, even includes a Table of Authorities. Heade cites to my February blog post and the arguments I made against the change.  Mr. Heade explains in his comment how he uses the Table of Authorities:

As opposing counsel, I am often more concerned about the authority that my opponent relies upon than their actual argument. This is because I am concerned with convincing the court that the authority—not necessarily my argument—requires that my client to prevail.

         When I get an opposing party’s brief, I review the table of contents, hoping that opposing counsel has provided me the courtesy of including subheadings of their arguments in their briefs. I review the argument headings and then flip to the table of citations to review the authority offered to support their arguments. Within seconds, I have a strong grasp on the merits of their brief.

          My subsequent review of the contents of the brief is aided by this efficient survey of the authorities provided by opposing counsel’s table of citations. In a way, the table of citations serves an important foreshadowing function that aids the reader in processing the argument. See Michael J. Higdon, Something Judicious This Way Comes . . . the Use of Foreshadowing As A Persuasive Device in Judicial Narrative, 44 U. Rich. L. Rev. 1213, 1219 (2010) (discussing how foreshadowing aids in information processing.).

          The ability to efficiently survey the authorities in a brief also has a persuasive effect on the reader. Briefs that are supported by ample authority conveyed in a cleanly presented table of citations are likely to create a better first impression on the reader. The reader can anticipate that the argument sections will be rooted in controlling authority. Competence is pre-established. This, too, is a psychological benefit of foreshadowing provided by the table of citations. Id. at 1226-1233. (discussing role of foreshadowing in priming and schema theories of information processing.).

Talk about working smart! And no one can argue that Mr. Heade, a criminal defense attorney who represents indigent clients, has a lot of time on his hand. My guess is that he is one of the busiest attorneys who comment. 

I understand that the Court will be considering this rules change tomorrow. I hope that it keeps the Tables!

What Makes a Great Attorney – The Intangibles

The best attorneys often, but not always, share common characteristics. They are incredibly intelligent. They often graduated from top law schools and were ranked at the top of their law school classes. They were on law review. They obtained federal clerkships. And they received an offer from a large law firm in, for example, New York, Los Angeles, or Chicago.

But what truly distinguishes the best from the very good (and mediocre) attorneys is the intangibles, namely, those characteristics that you cannot teach in a classroom or learn from a textbook. Below is a list of the intangibles that are essential for greatness in the law – or any aspect of life.

1.    Hard work.

This doesn’t need a detailed explanation. The best attorneys will always outwork their adversaries. They never use notes. They know every precedent that is relevant to their litigation. They can recite the page and line numbers of every deposition that was taken in their case. And they will spend however long it takes to ensure that their preparation is as perfect as possible. In short, they are tough, and they have heart.

As legendary coach Vince Lombardi stated, “[i]f you’re lucky enough to find a guy with a lot of head and a lot of heart, he’s never going to come off the field second.”[1]

2.    Doing things right all of the time, not some of the time.

Vince Lombardi stated that “[w]inning is not a sometime thing; it’s an all the time thing. You don’t win once in a while; you don’t do things right once in a while; you do them right all of the time.”[2] He was right.

The best attorneys demonstrate unwavering commitment, unparalleled motivation, and unquestionable discipline every day, and in every case. And they do so when their circumstances, whether professional or personal, are less than ideal. After all, it’s easy to do the right things when you’re doing something that you want to do, or when your life circumstances are perfect. But it’s harder to do the right things when you are required to do a task that you despise or when you are facing professional or personal adversity. The best attorneys do the right things regardless of external factors because they focus on what they can control and never get distracted by what they cannot.

Most importantly, the best attorneys focus on the process by which a successful outcome is achieved, and not on the outcome itself. They know that if they make the right choices, the results will take care of themselves. They also know that success must be sustained if one is to truly be called successful.

3.    They take responsibility for their choices and don’t make excuses or blame others.

The best attorneys -- indeed, the best people – recognize that their choices and decisions, not their circumstances, determine their destiny. They take responsibility for their life (and happiness) and make choices and decisions daily that maximize their chances for success. As Vince Lombardi stated, “truth is knowing that your character is shaped by your everyday choices.”[3]

And when things go wrong, such as by receiving an unfavorable ruling, they don’t make excuses. They don’t blame others. They learn. They take responsibility. And they grow.

4.    Responding positively to failure.

Everyone fails at some point in the law and in life. As stated above, the best attorneys do not respond to failure by making excuses or blaming other people and circumstances. Instead, they view failure as an opportunity to enhance their self-awareness and their ability to self-assess. To grow. To improve.

As Nick Saban, the head coach of the University of Alabama’s football team stated, you should “never waste a failure.”[4]

5.    Humility.

The best attorneys are humble. They listen to and learn from their colleagues. They accept criticism. They collaborate. And they value different perspectives because they know that they don’t know everything, that they aren’t always right, and that others may have something to teach them.

Lawyers (and people generally) who lack humility often harm their careers because, among other things, no one likes to work with them. In so doing, they prohibit meaningful professional (and personal) relationships. If you doubt that, have a conversation with your local narcissist(s).

6.    Adaptability.

The best lawyers know how to adapt to changing circumstances. They do not, for example, follow a script when making an oral argument or taking a deposition. Rather, they listen to a judge’s questions, or a deponent’s answers, and adapt their strategy based on a judge’s concerns or a deponent’s evasiveness. The ability to adapt, particularly when circumstances are unexpected and situations are fluid, is critical to success.

7.    Control of emotions.

The best lawyers are mature. They exercise outstanding judgment, particularly when confronted with incomplete facts. Most importantly, they know how to control their emotions. When they lose a motion, they don’t get angry (or cry) and let it affect their preparation. When a judge (or a client) is difficult, they maintain professionalism and focus on the facts. And they know how to put the past behind them and focus on living in the moment, in which past failures do not affect or influence future success. 

***

Ultimately, as Vince Lombardi said, “winning is not everything, but making the effort to win is.”[5] Lombardi summarized it perfectly when he stated that “the difference between a successful person and others is not a lack of strength, a lack of knowledge, but rather in a lack of will.”[6]

Making the effort to win – and making the right choices – isn’t determined by an LSAT score or a class ranking. It depends on whether you have the intangibles. And those with the right intangibles recognize that life “ain’t about how hard you hit. It’s about how hard you can get hit and keep moving forward. That’s how winning is done.”[7]

 

[1] Vince Lombardi, What It Takes to Be Number One, available at: What It Takes to Be Number One - YouTube

[2] Id.

[3] Id.

[4] Jason Kirk, Nick Saban Explains the Most Precious Fuel of All: Failures (July 13, 2017), available at: Nick Saban explains the most precious fuel of all: failures - SBNation.com

[5] Vince Lombardi, What It Takes to Be Number One, available at: What It Takes to Be Number One - YouTube

[6] Id.

[7] Rocky Balboa (2006), available at: HD - Rocky Balboa (2006) - inspirational speech - YouTube

Judge Michael’s Brief-Writing Tips, Part 2

Last post, I shared part of a great list of ten brief-writing tips from the Hon. Terrence L. Michael, Chief U.S. Bankruptcy Judge for the U.S. Bankruptcy Court for the Northern District of Oklahoma and a member of the Bankruptcy Appellate Panel of the Tenth Circuit.  

Judge Michael has many helpful forms, orders, and links on his chamber’s webpage, which you can see here:   https://www.oknb.uscourts.gov/content/honorable-terrence-l-michael.  The judge’s website material includes his Ten Tips for Effective Brief Writing (at Least With Respect to Briefs Submitted to Judge Michael), at https://www.oknb.uscourts.gov/sites/oknb/files/briefwritingtips.pdf.

In response to my post, several other writers shared their excellent tips with me.  Of special note, Judge A. Benjamin Goldgar, Chief Judge of the U.S. Bankruptcy Court for the Northern District of Illinois, shared his short and helpful tips originally published in a Chicago Bar Association piece.  I highly recommend you check out Judge Goldgar’s article here:  https://1.next.westlaw.com/Link/Document/FullText?cite=20-MAY%20CBA%20Rec.%2051&findtype=Y&__lrTS=20230819185138613&transitionType=Default&contextData=%28sc.Default%29.

Moreover, I have a few more of Judge Michael’s tips for you.  As a reminder, Judge Michael started his tips with these notes:    

I was once asked (OK, I once wished that I had been asked) what judges look for in written submissions. After considerable thought, and with some trepidation, I have tried to set some general principles down in writing.  What follows is a list of ten ideas/suggestions for your consideration. I do not purport to speak for any of my colleagues; this list, for better or worse, is my own.

For this post, I’m summarizing Tips Six to Ten, with a focus on the parts of Judge Michael’s tips that are especially helpful for appellate writing.   

Tip 6.  Quality Is Job One (so Check Your Cites).  When students, or lawyers, complain to me about citations, I am honest.  I do not like The Bluebook and I am open to any consistent system of citation in general.  However, properly applying a style manual, like The Bluebook, helps increase your credibility with the court.  Judge Michael explains why in this tip on checking citations and ensuring your cases support your points: 

Check your cites. Make sure they are accurate and that each case you are relying on is still good law. We do. There is nothing more frustrating than being unable to find a case because the citation contained in the brief is wrong. There is nothing less persuasive than finding out that a case you have cited to us has been overruled or misquoted. These flaws weaken your entire presentation.

Tip 7.  Present the Facts of Your Case Accurately.  While Judge Michael phrased this tip for bankruptcy court, where the judge is the finder of fact in trial-level proceedings, this point is well taken at the appellate level as well.  The judge explained, “[i]f you are submitting a post-trial brief, make sure the facts are in the record.”  Moreover, as with case citations, make sure your appellate briefs properly cite the record and do not lose persuasion by misstating the facts.  As the judge notes, his point on making sure the facts actually appear in the record “sounds too basic to merit discussion,” but nonetheless “[t]his advice is based upon experience.”

Tip 8.  Tell the Court Exactly What You Want.  Inexperienced appellate counsel often ask reviewing courts for relief they cannot provide, like new rulings on trial motions, or fail to explain exactly what relief their client wants beyond a “reversal.”  Judge Michael makes this point in his seventh tip, saying:  “It seems simple, but it isn’t. Every brief (and motion, for that matter) should conclude with a statement telling the judge exactly what you want done in the particular case. We need to know.”

Tip 9.  Leave the Venom at Home.  Despite this point appearing on almost every list on legal writing I’ve ever seen, it bears repeating.   According to Judge Michael:  “I have yet to meet a judge who enjoys reading a brief filled with hostility toward and/or personal attacks upon the other side.”  He explains that, “[w]hether you like (or get along well with) your opposition has little to do with the merits of a particular case.”  Instead, the “most effective attack you can make is to persuade (there’s that word again)” the court “that the other side is wrong.”  

The judge cautions us:  “Remember, if you win, they lose. Isn’t that enough? Words like these:

ridiculous

scurrilous

ludicrous

preposterous

blatant

self-serving (come on, all evidence and argument is self-serving)

nonsensical

do not help you. Don’t use them.”

Tip 10.  Seek Reconsideration Sparingly (But Appeal).  In his final tip, Judge Michael reminds us not to ask for reconsideration automatically.  Appellate counsel can use this tip to be more thoughtful about asking for rehearing on appeal. 

In his tip ultimately stressing the right to appeal, the judge first explains that he has “been surprised by the number of motions to reconsider which counsel file.”  He asks:  “If we spend 50 or more hours researching and writing an opinion (which is not uncommon), why would one expect us to change our mind unless there is an obvious and egregious error.”  Thus, “[m]ost motions to reconsider are a waste of everyone’s time. If you don’t like the decision, appeal. It is your right. We don’t take offense if you exercise it.”

Can AI prepare me for a clerkship interview?

It seems like everywhere I look I am hearing something about generative AI. Lawyers are freaking out that we will be replaced, judges are freaking out that attorneys are over relying on it, and academics are freaking out about how to manage it in the classroom. Schools, including law schools, are adopting AI policies. For example, the Sandra Day O'Connor College of Law at Arizona State University has announced that students may use generative AI to prepare their applications.

Between prepping a new class for the fall and sending my kids to new schools (including the start of kindergarten for my youngest!), I haven't been able to keep up with the AI drama. But, after a meeting with some colleagues I decided to play around with Google Bard a bit. In the spirit of Jayne Woods's excellent post on using ChatGPT to prepare for oral argument, I decided to see if Google Bard could prepare me for a clerkship interview. Spoiler alert--it did a pretty good job with the general questions.

As an initial matter, I picked Google Bard because it is free and we are a Team Android family (there are no fruit branded devices in our house). Plus, Bard is a cool name.

I first asked Bard to tell me what questions a judge might ask in a clerkship interview. Here is what it said:

Sure, here are some questions a judge might ask in a clerkship interview:

• • Why do you want to clerk? This is a common question that judges ask to get a sense of your motivation for wanting to clerk. Be sure to have a thoughtful answer that highlights your interest in the law and your desire to learn from a judge.
  • Why do you want to clerk for me? This question is a chance for you to sell yourself to the judge. Be sure to mention specific things that you admire about the judge's work, and how you think you would be a good fit for their clerkship.
  • Why do you want to clerk for a trial/appellate court? This question is important because judges have different expectations for their clerks depending on the type of court they sit on. Be sure to have a clear understanding of the differences between trial and appellate courts, and why you think you would be a good fit for one type of court over the other.
  • What are you looking for in a clerkship? This question gives you a chance to talk about your specific interests and goals for your clerkship. Be sure to mention things like the type of cases you want to work on, the level of responsibility you want, and the kind of learning experience you're looking for.
  • To which other judges/courts have you applied? Why did you choose them? This question is a way for the judge to gauge your interest in other clerkships. Be sure to have a thoughtful answer that explains why you applied to the other judges/courts and why you think they would be a good fit for you.
  • Why did you go to law school? This question is a way for the judge to get to know you better. Be sure to have a thoughtful answer that explains why you decided to go to law school and what you hope to achieve in your legal career.
  • What are your career plans after law school? This question is important because judges want to know that you're serious about a career in law. Be sure to have a clear plan for your future, and how your clerkship will help you achieve your goals.
  • How does a clerkship fit into your long-term career plans? This question is similar to the previous one, but it's more specific to clerkships. Be sure to explain how a clerkship will help you develop the skills and experience you need for your future career.
  • Where would you like to work ultimately? This question is a way for the judge to get a sense of your long-term goals. Be sure to have a realistic answer that takes into account your qualifications and the current job market.
  • How would you describe yourself? This question is a chance for you to sell yourself to the judge. Be sure to highlight your strengths and accomplishments, and how you would be a valuable asset to the judge's clerkship.
  • How would you describe your work style? This question is important because judges want to know that you're a hard worker who can manage your time effectively. Be sure to mention things like your attention to detail, your ability to meet deadlines, and your willingness to go the extra mile.
  • How would you describe your writing style? This question is important because judges want to know that you can write clearly and concisely. Be sure to mention things like your attention to grammar and punctuation, your ability to organize your thoughts logically, and your ability to explain complex legal concepts in a way that is easy to understand.
  • What is your favorite course in law school and why? This question is a way for the judge to get to know your interests in law. Be sure to choose a course that you're passionate about and that you can speak intelligently about.
  • What is your least favorite course in law school and why? This question is a way for the judge to get to know your weaknesses. Be sure to choose a course that you struggled with, but that you learned from.
  • What are your greatest strengths? Your greatest weaknesses? This question is a chance for you to be honest about your strengths and weaknesses. Be sure to focus on your strengths and how they would make you a good clerk, and be prepared to discuss how you're working on your weaknesses.
  • Tell me about your work with (journal/clinical). This question is a way for the judge to get to know your experience outside of the classroom. Be sure to highlight your accomplishments and how your work has prepared you for a clerkship.
  • Who is your favorite Supreme Court justice and why? This question is a way for the judge to get to know your views on the law. Be sure to choose a justice who you admire and who you can articulate their views on the law.
  • **What do you think about the Supreme Court's recent ruling in ______?

Overall I thought that both the questions and Bard's little explanation about each question were quite good.  My only quibble is with the question "What are you looking for in a clerkship?"  While that is certainly a question you might get, you need to be careful about being too selective about a certain type of case you want and describing "the level of responsibility you want." If you aren't careful, you might just explain yourself out of a clerkship. I do think that judges try to give clerks at least one case a term that falls into a subject matter interest, but most judges don't get to decide what cases they hear, so you (and the judge) are stuck with the docket. 

Next, I decided to be a little more specific. I asked Bard, "What questions might a trial judge ask me in a clerkship interview?"  Again, Bard did a nice job:

Trial judges might ask you the following questions in a clerkship interview:

• • Tell me about a time when you had to make a difficult decision. This question is a way for the judge to assess your judgment and decision-making skills. Be sure to choose a situation where you had to weigh the pros and cons of different options and make a decision that was in the best interests of everyone involved.
  • How would you handle a case where the evidence is unclear? This question is a way for the judge to assess your ability to think critically and analyze evidence. Be sure to explain how you would gather all of the relevant evidence, evaluate it carefully, and make a decision based on the facts.
  • What do you think is the most important quality in a trial judge? This question is a way for the judge to get a sense of your values and priorities. Be sure to choose a quality that is important to you and that you believe would make you a good trial judge.
  • What is your experience with trial practice? This question is important because trial judges need clerks who have experience with the trial process. Be sure to mention any internships or externships you have done that involved trial practice, and be prepared to discuss your experiences in detail.
  • What are your views on the role of a trial judge? This question is a way for the judge to get a sense of your understanding of the role of a trial judge. Be sure to explain what you believe the role of a trial judge is, and how you would fulfill that role.
  • What do you think is the most challenging part of being a trial judge? This question is a way for the judge to assess your understanding of the challenges of being a trial judge. Be sure to mention some of the challenges that you think trial judges face, and how you would deal with those challenges.
  • What do you think is the most rewarding part of being a trial judge? This question is a way for the judge to get a sense of your passion for the law. Be sure to mention some of the things that you think are rewarding about being a trial judge, and why you are interested in clerking for a trial judge.

In addition to these questions, trial judges may also ask you questions about your specific interests and qualifications. Be sure to do your research on the judge and the court before the interview so that you can answer these questions intelligently.

A few of the question explanations seemed to tie too closely to the clerk wanting to be a trial judge, but I think that most of the actual questions are ones that clerk applicants should be prepared to answer.

Finally, I asked Bard about questions an administrative judge or a state judge might ask in a clerkship interview (I asked the question once using administrative judge and once using state judge). The answers it gave were almost identical (just swapping administrative law or judge with state law or judge. Here is the answer:

Here are some questions that an administrative judge might ask you in a clerkship interview:

• • Tell me about yourself. This is a common question that interviewers ask to get to know you better. Be sure to highlight your strengths and accomplishments, and explain why you are interested in a judicial clerkship.
  • Why do you want to clerk for an administrative judge? This question is an opportunity for you to explain why you are interested in clerking for an administrative judge specifically. Be sure to mention what you admire about administrative judges and what you think you can learn from them.
  • What are your strengths and weaknesses? This is a classic interview question that allows you to showcase your positive qualities and areas for improvement. Be honest and specific, and be prepared to explain how you are working to improve your weaknesses.
  • What is your experience with administrative law? If you have any experience with administrative law, be sure to highlight it in your answer. If you do not have any experience, be prepared to explain how you are familiar with administrative law and how you are interested in learning more.
  • What are your thoughts on the role of an administrative judge? This question is an opportunity for you to share your views on the role of an administrative judge. Be sure to mention the importance of judicial independence and the need for judges to be impartial and fair.
  • What is your favorite case? This question is a way for the judge to get to know your interests and values. Be sure to choose a case that is relevant to your clerkship goals and that you can discuss in detail.
  • What are your salary expectations? This is a question that you will likely be asked at the end of the interview. Be prepared to answer it honestly and confidently.

It is also important to be prepared for behavioral questions, which are questions that ask you to describe a specific situation and how you handled it. These questions can be challenging, but they are also an opportunity for you to showcase your skills and experience.

Here are some examples of behavioral questions that an administrative judge might ask you:

• • Tell me about a time when you had to deal with a difficult client.
  • How do you handle stress?
  • Describe a time when you had to work on a tight deadline.
  • What is your greatest strength?
  • What is your biggest weakness?

The best way to prepare for behavioral questions is to think about specific examples from your past that illustrate your skills and experience. Be sure to be specific and to use examples that are relevant to the job you are interviewing for.

I hope this helps!

Thanks Bard, it helped.  While these questions were not as tailored, they were still a helpful starting place.

I can imagine other variations of this exercise, but the point is that AI can be a useful way to think about questions you might get in an interview. I would, however, be cautious about asking it for overly specific information about a judge--there are other resources for that.

All Words are Made Up: Thoughts on Using Dictionaries for Statutory Interpretation

I am a huge fan of the Marvel Cinematic Universe, and one of my favorite lines comes from Thor in Avengers:  Infinity War.  Thor and the Guardians of the Galaxy are trying to stop the mad Titan Thanos from destroying half of all life, and Thor suggests they go to a place where he can get a special “Thanos-killing” weapon made:

Thor : Where we have to go is Nidavellir.

Drax : That's a made-up word.

Thor : All words are made up.

Though this statement is obviously true, the law clerk in me was—as my teenage daughter would say—shook, thinking of how many times I had turned to a dictionary as an authority when analyzing an issue involving statutory interpretation.  Not once had I questioned the wisdom of this practice until Thor so succinctly noted that “all words are made up.”

My state’s governing law very clearly allows appellate courts to consult the dictionary to determine a word’s “plain meaning.”  See, e.g., State ex rel. Burns v. Whittington, 219 S.W.3d 224, 225 (Mo. 2007) (en banc) (“In the absence of statutory definitions, the plain and ordinary meaning of a term may be derived from a dictionary[.]”).  And I assume most jurisdictions are the same.  The United States Supreme Court, itself, has increasingly relied on dictionary definitions to resolve issues of statutory interpretation.[i]  And there are multiple law review articles analyzing which dictionaries are relied on the most and by whom.[ii]

Yet the same appellate courts would likely find error (prejudicial effect to be determined) if a juror consulted a dictionary during deliberations.[iii]  This begs the question:  why do appellate courts so easily rely on dictionaries but find it erroneous for jurors to do the same? 

Before getting into that question, it’s worth exploring the nature of dictionaries and how they function. 

I. How dictionaries work

Dictionaries are the epitome of a “work in progress”; they are constantly evolving because language is constantly evolving.[iv]  And they are continuously edited by a team of lexicographers, who track numerous terms, read copious amounts of writing and transcribed speeches, and use corpora (“big, searchable collections of texts”) to discern actual word usage.[v]  Using this research, they generate “concise, informative definitions (along with supplementary information, such as pronunciations or notes about whether a word is offensive, for example).”[vi] 

The vast majority of modern dictionaries use a descriptive approach, which reflects common usage of words,[vii] but earlier dictionaries—including some of Noah Webster’s early work[viii]—took a prescriptive approach, providing rules as to what proper usage should be.[ix]  Under the descriptive approach, generally, before a word is added to the dictionary, it must meet four criteria:  (1) “relatively widespread use”; (2) “a widely agreed-upon meaning”; (3) “staying power—meaning it’s likely to be used for a long time”; and (4) "useful for a general audience.”[x]

II. Why juries may not use them

It is not unusual for jurors to want “to investigate the dictionary meaning of commonly used words.”[xi]  But, generally speaking, “[t]he use of a dictionary or other similar nonlegal materials by the jury during their deliberations constitutes jury misconduct [because i]t introduces outside information into the process and falls outside the tolerable bounds of jury deliberations.”[xii] Allowing a jury to use a dictionary “to obtain further understanding of the court's instructions poses a risk that the jury will misunderstand the meaning of terms [that] have a technical or unique usage in the law.”[xiii]

Yet, at the same time, “[t]he definition of words in our standard dictionaries is taken as a matter of common knowledge, which the jury is supposed to possess.”[xiv] And, “[w]hen words are not specially defined by the Legislature, they are to be understood as ordinary usage allows, and jurors may freely read the statutory language to have any meaning [that] is acceptable in common speech.”[xv] “If this were not so, every word in every instruction would have to be defined for the jury.”[xvi] 

Though it certainly makes sense to not allow a jury to use a dictionary if the court has already provided the legal definition of a term or if the term has a specialized or unique meaning within the context of the case, it seems considerably less concerning to allow the jury to consult a dictionary for ordinary terms, especially when the appellate courts do so routinely.[xvii]

And that brings me to my next point—why do appellate courts feel so free to rely on the dictionary?[xviii]

III. Authority for appellate court usage of dictionary definitions

The short answer is that appellate courts feel free to do so because the United States Supreme Court has sanctioned reliance on dictionaries since at least 1919 under the theory of judicial notice.[xix] Both the Federal Rules of Evidence and many state rules allow judicial notice of “facts” from “sources whose accuracy cannot reasonably be questioned.”[xx]  And courts applying these rules have expressly concluded that dictionary definitions are such facts.[xxi]

What I find interesting about this approach is that it is rare for any two dictionaries to define a word in precisely the same way.[xxii] And, even when viewing the same dictionary, judges sometimes reach opposite conclusions as to meaning.[xxiii]  Additionally, it is a long-standing mantra of appellate practice that the court is bound by the facts in the record and will not consider outside facts (much like a jury is bound by the evidence and law presented to it during trial).  So, if dictionary definitions are facts, absent some general law in the jurisdiction that all words not defined are to be given their meaning as identified in a specific dictionary, it would seem that any definitions an appellate court wishes to rely upon should be in the record before they may be considered.[xxiv]  Otherwise, using these kinds of outside-the-record facts runs the risk that the court may interpret a word differently than the fact-finder did.  In light of the various challenges using dictionaries present, some authors have advocated that appellate courts use dictionaries with caution and only ever as a starting point rather than an ending point for statutory construction.[xxv]

But should courts use them at all?

IV. The democratic and constitutional implications of using dictionaries

When appellate courts use dictionary definitions, they typically do so to discern legislative intent behind statutory language.  Jurors wishing to use dictionary definitions have a similar, albeit slightly distinct, goal—to understand the law and how to apply it to the facts before them.  But all of it may be an exercise in futility.

“Legislators do not consult dictionaries or incorporate by reference dictionary definitions in drafting statutes.”[xxvi] “Dictionary definitions are not themselves statutes in which the precise words chosen and those omitted have binding legal effect.”[xxvii] And, given the evolving nature of language, does it comport with due process to apply a definition to conduct a person engaged in without some guidance as to how that definition will be discerned?

When a legislature or Congress enacts a statutory definition, it becomes a matter of law, rather than fact. And if their respective constituencies do not approve, the voters can express that disapproval at the ballot box. But no such power exists over lexicographers. Nor should it, because “[t]he lexicographer is a[n] historian, not a lawgiver.”[xxviii] And “[m]odern lexicographers . . . do not expect their definition to give the absolute meaning of the word.”[xxix] 

Yet our appellate courts give those definitions the force of law and often sneer at an arguably more democratic approach to defining terms through crowdsourcing on websites such as Wikipedia or Urban Dictionary.[xxx]

So, what role—if any—should dictionary definitions play in the justice system?

Given that most dictionaries, including crowd-sourced ones, are descriptive in nature, the definitions they contain are simply evidence of language usage, snapshots in time, and they should be treated as such.  Thus, dictionary definitions should come into play only where there’s a factual question about how a word or phrase was used at a given time.[xxxi] Jurors should be encouraged to discuss the meaning of words and phrases that are not defined by court instructions and reach a common understanding.  And appellate courts should limit themselves to the discussion of definitions appearing in the record.  By using dictionary definitions to determine the legal import of words, appellate courts are transforming descriptive dictionaries into prescriptive ones—indicating what words should mean, rather than reflecting how they are actually used.

 

[i] James J. Brudney & Lawrence Baum, Oasis or Mirage: The Supreme Court's Thirst for Dictionaries in the Rehnquist and Roberts Eras, 55 Wm. & Mary L. Rev. 483, 495 (2013) (“dictionary usage in the twenty-five years of the Rehnquist and early Roberts eras (October 1986 to June 2011) more than doubled the Court's total usage in the previous 186 years”).

[ii] See, e.g., Samuel A. Thumma; and Jeffrey L. Kirchmeier, The Lexicon Has Become A Fortress: The United States Supreme Court's Use of Dictionaries, 47 Buff. L. Rev. 227, 262–63 (1999); Nora Coon, 162 Years of Dictionary Use in the Oregon Appellate Courts, 55 Willamette L. Rev. 213 (2019); Brudney & Baum, supra note i.

[iii] See Prejudicial effect of jury's procurement or use of book during deliberations in criminal cases, 35 A.L.R.4th 626, §§5(a), (b) (1985) (noting cases where a jury’s procurement or use of a dictionary—though generally error—was either prejudicial or not, depending upon circumstances).

[iv] How New Words Get Added To Dictionary.com—And How The Dictionary Works (May 12, 2023), available at:  https://www.dictionary.com/e/getting-words-into-dictionaries/ (last accessed Aug. 6, 2023).

[v] Id.

[vi] Id. 

[vii] A Word on ‘Descriptive’ and ‘Prescriptive’ Defining, available at: https://www.merriam-webster.com/grammar/descriptive-vs-prescriptive-defining-lexicography (last accessed Aug. 6, 2023). Whether “offensive” words should be included in dictionaries is its own subject of debate. See How New Words Get Added to Dictionary.com, supra note iv.

[viii] See Peter Martin, The Dictionary Wars, pg. 43 (Princeton University Press 2019).  One judge described Webster’s Dictionary as “stupendous work, filled with inconceivable words and maxims and aphorisms,” before declaring, “No book should be consulted by a jury in arriving at a verdict, and especially one that defines and treats on everything expressed by the English language. No maker of dictionaries should ever be allowed to define legal terms to a jury, unless such definitions go through the medium of the trial judge, the only one authorized by law to give definitions and explanations to a jury.”  Corpus Christi St. & Interurban Ry. Co. v. Kjellberg, 185 S.W. 430, 432 (Tex. Civ. App.--San Antonio 1916), overruled by Travelers Ins. Co. v. Arnold, 378 S.W.2d 78 (Tex. Civ. App.--Dallas 1964).

[ix] A Word on ‘Descriptive’ and ‘Prescriptive’ Defining, supra note vii.

[x] How New Words Get Added to Dictionary.com, supra note iv.

[xi] In re Cory's Est., 169 N.W.2d 837, 845 (Iowa 1969).  In a somewhat humorous event, one jury googled the phrase “common sense” because it was so heavily emphasized by counsel for both sides and the court.  Gunera-Pastrana v. State, 137 Nev. 295, 299–300 (2021).

[xii] State v. Tinius, 527 N.W.2d 414, 417 (Iowa App. 1994) (internal citation omitted).

[xiii] People v. Karis, 46 Cal. 3d 612, 642 (1988).  In a Washington case, the court noted a specific concern that arose with respect to the jury relying on Black’s Legal Dictionary—that the definitions provided therein frequently “contain[] legal premises not applicable to the facts of th[e] case, . . . which could . . . confuse[] or misle[a]d the jury.”  Adkins v. Aluminum Co. of Am., 110 Wash. 2d 128, 138 (1988), clarified on denial of reconsideration, 756 P.2d 142 (Wash. 1988).

[xiv] In re Cory's Est., 169 N.W.2d at 846.  See also Dawson v. Hummer, 649 N.E.2d 653, 665 n.3 (Ind. App. 4th Dist. 1995) (“terms within regular dictionaries are generally believed to be within the common knowledge of a jury”).

[xv] Teer v. State, 923 S.W.2d 11, 19 (Tex. Crim. App. 1996).

[xvi] Alvarez v. People, 653 P.2d 1127, 1134 (Colo. 1982) (en banc) (Rovira, J., concurring in part, dissenting in part).

[xvii] See id. (noting the seeming hypocrisy of appellate courts relying on dictionaries for ordinary terms but finding error when a jury does the same).

[xviii] The Indiana Court of Appeals noted a distinction “between referring to a dictionary in a factfinding setting for the purpose of judicially noticing the meaning of a word, on one hand, and consulting such a source upon appellate review to discern the meaning of a term for purposes of, for example, statutory construction.”  Campbell v. Shelton, 727 N.E.2d 495, 501 (Ind. App. 2000).  But the court failed to elaborate on what that distinction might be.  It seems to be one without a difference, given that the purpose in both scenarios is the same:  to apply the law to the set of facts before the jury to determine whether the conduct at issue falls within the statute’s coverage.

[xix] Werk v. Parker, 249 U.S. 130, 132–33 (1919) (holding that it was “clear, beyond question—that the [appellate] court was justified in taking judicial notice of facts that appeared so abundantly from standard works accessible in every considerable library”).

[xx] E.g., Fed. R. Evid. 201(b)(2); Ky. R. Evid. 201(b)(2); Ind. R. Evid. 201(a)(1)(B); Or. Rev. Stat. § 40.065(2).

[xxi] See, e.g., Stokes v. Com., 275 S.W.3d 185, 188 (Ky. 2008); Campbell, 727 N.E.2d at 501; In re Compen. of Calder, 157 Or. App. 224, 227 (Or. App. 1998).  Though dictionaries are largely considered accurate, they are not above the occasional mistake.  A well-known error is the word “dord.”  Dord “was recorded in Webster’s Second in 1934 on page 1711, where it remained undetected for five years.” Herbert C. Morton, The Story of Webster’s Third, pg. 119 (Cambridge University Press 1994). But dord was a ghost-word. It was identified as meaning “density,” but, in fact, it was meant to be an abbreviation—“D or d”—for the term density.  Id. But the entry was misdirected to the “word” department, rather than the “abbreviation” department, and thus became a word entry for a brief period of time.  Id.

[xxii] This may be partially a copyright issue.  See, e.g., Richards v. Merriam-Webster, No. 1:13-cv-13092-IT, memo. & order granting S.J. (Sept. 26, 2014), available at:  https://casetext.com/case/richards-v-merriam-webster-inc-1 (last accessed Aug. 6, 2023).

[xxiii] See Thumma & Kirchmeier, supra note ii at 274–75 (identifying cases).

[xxiv] The Ninth Circuit suggested that, when “[q]uestions or disputes as to the meaning of terms . . . arise during jury deliberations[, they] should be settled by the court after consultation with counsel, in supplemental instructions. Such guidance will avoid the danger that jurors will use the dictionary to construct their own definitions of legal terms which do not accurately or fairly reflect applicable law.”  U.S. v. Birges, 723 F.2d 666, 670–71 (9th Cir. 1984).  This would also ensure that the appellate court applies the same interpretation of terms as the fact-finder.

[xxv] Thumma & Kirchmeier, supra note ii at 293-301.

[xxvi] Ellen P. Aprill, The Law of the Word: Dictionary Shopping in the Supreme Court, 30 Ariz. St. L.J. 275, 299 (1998).  Congress has, however, legislated interpretation of certain words used in the statutes in the Dictionary Act.  1 U.S.C. §§ 1-8.

[xxvii] Aprill, supra note xxvi at 300.

[xxviii] Id. (quoting Jonathon Green, Chasing the Sun: Dictionary Makers and the Dictionaries They Made 16 (1996)).

[xxix] Aprill, supra note xxvi at 285.

[xxx] Jason C. Miller & Hannah B. Murray, Wikipedia in Court: When and How Citing Wikipedia and Other Consensus Websites Is Appropriate, 84 St. John's L. Rev. 633, 639 (2010). On these crowdsourced websites, anyone may contribute and/or vote on the accuracy of information provided.  Id. at 638, 654-55.  And there is transparency with respect to the number of votes in favor and in opposition to definitions and various source material for information contributed.  In State v. Rasabout, 356 P.3d 1258, 1281 (Utah 2015), Associate Chief Justice Lee suggested that, rather than rely on dictionary definitions, courts should consult the Corpus of Contemporary American Usage, “the largest freely available corpus of English, and the only large and balanced corpus of American English.”  But this suggestion puts appellate judges in the shoes of lexicographers, a profession they are unlikely to be trained in, which seems even worse than relying on dictionary definitions that are created by trained, professional lexicographers.

[xxxi] For example, there is frequently a factual question as to the meaning of words or phrases in criminal matters, where slang or code is often used. Issues as to word usage and meaning also frequently arise in contract disputes.

Appellate Advocacy Blog Weekly Roundup Friday, August 4, 2023

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 [email protected] or on Twitter @Daniel_L_Real or (2) Catharine Du Bois at [email protected] or on Twitter @CLDLegalWriting.

US Supreme Court Opinions and News

• The conversation about the Supreme Court’s shadow docket continues this summer. See a piece in The National Law Journal that discusses the shadow docket and some of the recent Court decisions, including those summarized here.  
  
  
• The Court granted the Biden administration request to block a Texas judge’s nationwide ruling that invalidated a federal restriction on ghost guns. The restriction bans “buy build shoot” kits, which can be bought on line without a background check and do not have traceable serial numbers. The Texas court ruled that the administration exceeded its authority in adopting the rule and blocked the rule. The Supreme Court blocked that ruling while it considers whether to reinstate the rule pending appeal to the Fifth Circuit. See reports from Reuters and NBC.
  
  
• The Supreme Court lifted the stay on the construction of the Mountain Valley pipeline project as the appeal continues. The Fourth Circuit had temporarily blocked construction earlier this summer. See reports from The New York Times and The Washington Post.

State Court Opinions and News

• The Ninth Circuit stayed a District Court for Northern California decision blocking the Biden administrations new rules for asylum seekers. The new rules make it more difficult for migrants to get asylum if they cross the U.S.-Mexico border illegally without first seeking protection from a country they’ve passed through to reach the border. The challenge argued that the rules endangered asylum-seekers by requiring them to wait in border towns, and the District Court agreed, blocking the rules. The Ninth Circuit placed the appeal on an expedited schedule but allowed the rules to continue while it considers the case.  See the order and reports from The New York Times, NPR, The Associated Press, and Reuters.

• The Eleventh Circuit held that receiving an “unwanted, illegal text message” constitutes a concrete injury. This decision disagrees with a previous decision finding that a single unwanted text message is a "brief, inconsequential annoyance [that is] categorically distinct from those kinds of real but intangible harms" and therefore insufficient to meet the injury-in-fact requirement. See the TCPA blog.

"You Write Like a Law Clerk." Ouch.

I clerked for three years before entering private practice.  It was easy to be a sponge and soak up the good tactics of the attorneys I observed, the procedures of the courts where I worked, and familiarity with new areas of law I never studied.  I read hundreds of briefs, crafted technically and legally precise bench memos and draft opinions, and examined the issues from all sides to help my judges see the lay of the land and make the best decisions.

One skill I did not learn was how to write for a client.  I learned some of that in law school, through drafting persuasive memos and briefs and some exam essays.  It crept in a bit when my bench memos took a slight step toward intemperate near the end of my clerkships, and I realized I was itching to finally get out there and practice The Law myself.  But writing with a grasp on a client's real-world concerns and goals came much later.

As a new associate, I wrote a lot.  Most of the early comments on my briefs went like this: "This is good, but you write like a law clerk."  Just as my feathers started to puff, I realized that was not a compliment. 

"Writing like a law clerk" means you forgot you have a client.  You are not maximizing the chances of your client winning if you are presenting both sides evenly.  When someone says you write like a law clerk, they are telling you to reconsider these areas of your brief:

• The introduction: Introductions are tough.  They are the most important section of your brief because they may be the only thing a busy judge or colleague will read.  Introductions are also a summary of the brief, but no other rules apply.  In the introduction, you must be both creative and direct.  What's the real reason your client should win on the issue at hand?  What's the real reason the parties are fighting about this issue?  Highlight those.  
• The facts:  The legal standards section should be written persuasively, but it is not where you will convince a judge to rule for you.  That's the fact section.  The law provides the outlines, but the facts fill in the story that underpins your case.  They distinguish this case from others or provide parallels to cases with good outcomes you can highlight.  The facts may tell the liability story or they may detail your efforts to avoid a discovery tiff and incorporate communications  between counsel the judge has not seen yet.  Plus, the facts help to orient the judge and law clerks who (unlike you) have not thought about your case for a few months.  Tell your client's story accurately and persuasively in the facts section, and you are putting your best foot toward victory. 
• The money: If you ignore the damages, fees, or expenses of a case, you are thinking like a law clerk.  Clerks (at least temporarily) accept a sub-private practice salary to bask in ivory towers for a year or two.  Practicing attorneys run a business.  The business needs money to function, and clients care about how much money they are paying.  Money also drives both corporate and individual clients on both sides of the v.  Follow the money.  Is the other party's motion to compel discovery a tactic following stalled settlement talks?  Can you get the other side to stipulate to some facts so no one has to subpoena and depose a third party?  These realities should be reflected in your writing.  And when appropriate, and without disclosing any confidential settlement discussions, explain the reality of the case to the judge.

If you or a colleague think your work product sounds like a law clerk wrote it, take heart.  Focusing on these areas of your writing can turn a balanced brief into a winning brief.

Advice to 1Ls

Because my teaching typically focuses on appellate advocacy, I rarely teach 1Ls. In fact, I have NEVER taught a first year legal writing class--that is until this year.  Yes, this year I will be teaching a fall section of first year legal writing. Although I will miss teaching my upper year course, I am excited to help these 1Ls start their legal education.

Now, many 1L students come into law school with limited knowledge on what to expect (and an overinflated sense of how they will perform). When I was a law student, I could count the number of lawyers I knew on one hand (using one finger). I benefit from good mentors during law school and lots of advice (some good, some not so great).

I have shared in the past my advice to incoming law students. You can read part 1 here and part 2 here. I would love, however, to hear advice from practitioners or relatively recent graduates.  Please feel free to share in the comments your best piece of advice for incoming 1Ls. 

Thanks!