Appellate Advocacy Blog

Tales of Terror! (Or, Waiver at Trial and on Appeal)

Few words strike more terror into the hearts of appellate practitioners than the word "waiver." It is the monster that lurks under the bed and hides in the closet of those who strive to have issues resolved substantively on appeal rather than simply dismissed.

Waiver can occur at two primary levels: at trial and on appeal. But whenever it rises, it can cause nightmares for you and your client.

Waiver at Trial - The Monster Under the Bed.

At trial, waiver can arise in a variety of ways. It often arises from a failure to preserve error meticulously. Did you get a ruling but fail to make an offer of proof so the court knows what was excluded? Waived! Did you think that the ruling on your motion in limine was good enough, so you didn't renew the objection at trial? Waived! Did you object to an improper or omitted instruction but fail to offer an accurate instruction in its place? Waived! The list goes on and on.

And then there is the infamous Rule 50. Federal of Civil Procedure 50 was practically written by the boogeyman. Rule 50(a) provides that, at the close of evidence, a party challenging sufficiency of the evidence must move for judgment as a matter of law (JMOL) by specifically pointing out the law and facts that entitle that party to judgment. This is presumably so that the challenged party has an opportunity to correct any defect in proof. Rule 50(b) then provides that, after judgment, the sufficiency argument must be renewed if it was not granted the first time.

The traps caused by this two-step requirement have left many appellate practitioners with little to argue. If you did not move for JMOL at both points in the trial, your sufficiency challenge is waived. If your 50(b) points do not match your 50(a) points, many circuits will also find any differing points waived.

Recently, the Fifth Circuit recognized an entirely new Rule 50 monster. In Edwards v. 4JLJ, L.L.C., --- F.3d ---, No. No. 19-40553, 2020 WL 5628689 (5th Cir. Sept. 21, 2020), the appellant filed a JMOL and Motion for New Trial (MNT) on March 12, 2019. The trial court entered judgment March 27th without addressing that motion. The appellant then filed another JMOL/MNT after the judgment that was identical to the first, which was denied on May 20, 2019, and then filed a notice of appeal on June 12, 2019.

Appellants thought they had filed everything on a timely basis. They had filed the JMOL appropriately and avoided the Rule 50 traps. And they thought that filing the second JMOL/MNT had extended their deadline to file the notice of appeal until 30 days after it was decided under Rule 4. They even filed their notice of appeal a bit early.

But not early enough, according to the Fifth Circuit. Instead, the court held that the JMOL/MNT had been implicitly overruled by the trial court when it had entered judgment. Then, since the JMOL/MNT filed after judgment was identical to the implicitly-overruled motion, it was really a motion for reconsideration, and did not extend appellate deadlines. As such, the notice of appeal was not timely, and the court did not have jurisdiction over most of the issues in the case.

Waiver on Appeal - The Monster in the Closet.

Waiver on appeal can be even more insidious. In federal court, the issue technically becomes one of waiver (an intentional relinquishment) versus forfeiture (an unintentional omission). See Wood v. Milyard, 132 S. Ct. 1826, 1832 (2012). But whatever they call it, waiver can arise not only because the issue was not addressed at trial, but because it was not adequately addressed in the brief. Thus, some courts have found waiver where the issue was raised but only in a footnote, or in a page or less of briefing, or without citation to supporting authority. See Barry A. Miller, Sua Sponte Appellate Rulings: When Courts Deprive Litigants of an Opportunity to Be Heard, 39 San Diego L. Rev. 1253 (2002).

This is the type of waiver that can catch even the most astute legal writer. As professionals writing to a very specific audience, we listen closely when that audience speaks. And that audience repeatedly tells us that they are tired of reading our work. "Shorter is better" seems to be the recurring theme. I have even attended conferences where a justice will admonish the audience to stop citing them to authorities everyone knows, like the standard of review.

Shorter is better, but there is a shadowy place where short and concise transitions over into waiver. In the quest to cut the argument down to its finest form, we must not cut too deeply, lest the court determine there is not enough flesh left on the bones. See United States v. Dunkel, 927 F.2d 955, 956 (7th Cir. 1991) ("A skeletal 'argument', really nothing more than an assertion, does not preserve a claim. . . . Especially not when the brief presents a passel of other arguments . . . . Judges are not like pigs, hunting for truffles buried in briefs.").

Indeed, this is part of what makes briefing waiver (or forfeiture) so terrifying. What one justice finds pleasing may cause another justice to find waiver.

And then there is the timeliness of the argument. We consider it a general rule that issues not raised and decided in the trial court should not be considered on appeal, or that issues raised for the first time in a reply brief are forfeited. But the Supreme Court has been careful to preserve the discretion of courts to take up issues, and refuses to pronounce any such "general rule." See Singleton v. Wulff, 428 U.S. 106, 121 (1976).

As a result, one can never be sure when an issue that seems to be dead will suddenly lurch back to life. See Melissa M. Devine, When the Courts Save Parties from Themselves: A Practitioner's Guide to the Federal Circuit and the Court of International Trade, 21 Tul. J. Int'l & Comp. L. 329 (2013). If the court decides that the issue is important, or is required by justice, or involves "basic" issues of pure law, it can resurrect a dead argument sua sponte. Id. Even worse, if you did not address an issue because you considered it waived, you can be deemed to have "forfeited the forfeiture" or "waived the waiver." Cook v. Rockwell Int’l Corp., 618 F.3d 1127, 1139 (10th Cir. 2010).

Waiver and forfeiture really are boogeymen. They can ambush you at trial, trick you into making mistakes in your briefing, and even raise dead issues back to life. If you want to sleep well, keep the above issues in mind when preserving error or writing your next brief.

(Image credit: National Gallery of Art: Death and the Miser, c.1485/1490. Bosch, Hieronymus, Netherlandish, c.1450-1516).

e

Singleton v. Wulff, 428 U.S. 106, 121, 96 S. Ct. 2868, 2877, 49 L. Ed. 2d 826 (1976)

 

 

fore

Edwards v. 4JLJ, L.L.C., No. 19-40553, 2020 WL 5628689, at *2 (5th Cir. Sept. 21, 2020

fore

Edwards v. 4JLJ, L.L.C., No. 19-40553, 2020 WL 5628689, at *2 (5th Cir. Sept. 21, 2020)

fore

Edwards v. 4JLJ, L.L.C., No. 19-40553, 2020 WL 5628689, at *2 (5th Cir. Sept. 21, 2020)

n

Edwards v. 4JLJ, L.L.C., No. 19-40553, 2020 WL 5628689, at *2 (5th Cir. Sept. 21, 2020)

Amy Coney Barrett and Originalism

Amy Coney Barrett will almost certainly be confirmed to the United States Supreme Court – and deservedly so.  Judge Barrett is an extraordinary legal scholar and judge, and numerous former colleagues and students have emphasized that she is a person of outstanding character, integrity, and compassion.

Additionally, Judge Barrett is an originalist, which is a theory of constitutional interpretation that requires judges to interpret the Constitution’s words as they were understood by those who drafted its provisions. Yet, originalism has been criticized by many in the legal academy. For example, some scholars claim that originalism leads to unjust and often draconian results, and fails to account for societal changes that the Constitution’s drafters could not foresee. Some scholars also assert that the broad phrasing of many provisions in the Bill of Rights suggests that the Constitution’s drafters entrusted future generations with the authority to divine constitutional meaning based on contemporary societal attitudes. For these and other reasons, many scholars embrace “living constitutionalism,” which states that the Constitution is a “living document” and that judges have the power to create constitutional meaning based upon the evolving needs of contemporary society.  

These assertions both misunderstand originalism and misrepresent living constitutionalism. The former is, when properly applied, intellectually honest and fundamentally democratic. The latter is neither. For the following reasons, originalism is, without a doubt, the most sensible and commonsense approach to constitutional interpretation.

Originalism does not lead to unjust outcomes. The notion that originalism leads to unjust outcomes is nonsense. This argument misunderstands both originalism and the nature of judging. First, judges should not – and usually do not – decide cases based on the outcome that a judge desires or the policy that a judge prefers. If judges predicated their decisions on subjective policy preferences – and manipulated or disregarded the Constitution’s text to achieve those preferences – democratic choice would be undermined in favor of nine unelected and life-tenured judges. In essence, originalists recognize that the process of judicial decision-making is critically important to ensure, among other things, individual liberty, de-centralization, bottom-up lawmaking, and the judiciary’s institutional legitimacy.  Second, originalism does not lead to objectively unjust outcomes; rather, critics of originalism only object to outcomes with which they subjectively disagree. Of course, that is not a reason to criticize originalism. As Justice Neil Gorsuch explains:

Suppose originalism does lead to a result you happen to dislike in this or that case. So what? The “judicial Power” of Article III of the Constitution isn’t a promise of all good things. Letting dangerous and obviously guilty criminals who have gravely injured their victims go free just because an officer forgot to secure a warrant or because the prosecutor neglected to bring a witness to trial for confrontation seems like a bad idea to plenty of people. But do you really want judges to revise the Constitution to avoid those “bad” results? Or do you believe that judges should enforce the law’s protections equally for everyone, regardless of how inefficient or unpopular or old the law might be? Regardless of who benefits today—the criminal or the police; the business or the employee; immigrants or ICE?[1]

Moreover, to the extent that an outcome is considered unjust, the remedy is to effectuate change by the people through the legislative process – or through a constitutional amendment.

Originalism is fundamentally democratic. Originalism restrains and limits the power of judges to change constitutional meaning. It requires judges to interpret the text honestly and in accordance with what the Constitution’s drafters understood the words to mean. In so doing, originalism promotes respect for the rule of law, prevents unelected judges from substituting their policy preferences for those of legislators and citizens, and preserves a constitutional structure predicated on federalism, separation of powers, and decentralization. As Judge Barrett stated during the hearings, constitutional law is not “the law according to Amy,” but the law as enacted by the people. And contrary to some scholars’ contentions, originalism is not a vehicle by which conservative justices seek to reach conservative results. As Justice Gorsuch explains:

[S]ome suggest that originalism leads to bad results because the results inevitably happen to be politically conservative results. Rubbish. Originalism is a theory focused on process, not on substance. It is not “Conservative” with a big C focused on politics. It is conservative in the small c sense that it seeks to conserve the meaning of the Constitution as it was written. The fact is, a good originalist judge will not hesitate to preserve, protect, and defend the Constitution’s original meaning, regardless of contemporary political consequences. Whether that means allowing protesters to burn the American flag (the First Amendment); prohibiting the government from slapping a GPS tracking device on the underside of your car without a warrant (the Fourth Amendment); or insisting that juries—not judges—should decide the facts that increase the penalty you face in a criminal case (the Sixth Amendment).[2]

The alternative – living constitutionalism – is fundamentally anti-democratic. As stated above, living constitutionalists believe that the Constitution is a “living document,” and that judges have the power to create constitutional meaning based upon evolving societal attitudes. The problem with living constitutionalism is that it enables judges to ignore or manipulate the Constitution’s text to achieve preferred policy outcomes. In so doing, living constitutionalism provides unelected judges with the power to decide issues that should be resolved through the democratic process (e.g., issues on which the Constitution is silent or ambiguous), and thus deprives citizens of the power to effectuate change democratically. As Justice Gorsuch stated:

I suspect the real complaint of living constitutionalists isn’t with old laws generally so much as it is with the particular terms of this old law. The Constitution is short—only about 7,500 words, including all its amendments. It doesn’t dictate much about the burning social and political questions they care about. Instead, it leaves the resolution of those matters to elections and votes and the amendment process. And it seems this is the real problem for the critics. For when it comes to the social and political questions of the day they care most about, many living constitutionalists would prefer to have philosopher-king judges swoop down from their marble palace to ordain answers rather than allow the people and their representatives to discuss, debate, and resolve them. You could even say the real complaint here is with our democracy.[3]

Indeed, the anti-democratic and deleterious nature of living constitutionalism was on full display in Griswold v. Connecticut, where the Court invalidated an admittedly silly law banning contraception.[4] The Court in Griswold acknowledged that the Constitution’s text, particularly the Fourteenth Amendment, did not provide a basis upon which to invalidate the law. However, the Court’s majority remained undeterred and decided to create an unenumerated right out of thin air. Specifically, the Court held that “[s]pecific guarantees in the Bill of Rights have penumbras … formed by emanations from those guarantees that give them life and substance.”[5] In so holding, the Court concluded that a judicially-created, non-textual ‘right to privacy,’ which was implied from the judicially-created, invisible penumbras, supported invalidation of the statute. And in Roe v. Wade, the Court relied upon these very penumbras to hold that the Fourteenth Amendment’s Due Process Clause, which was originally designed only to ensure that life, liberty, and property could not be deprived without due process of law, supported a right to abortion before viability.[6] To be sure, I support abortion rights. But I could never support the reasoning in Roe. It is constitutionally indefensible.

Make no mistake: living constitutionalism is not the knight in shining armor that some would have us believe. In fact, it has led to some of the worst decisions in the history of American constitutional law. As Justice Gorsuch explains:

Virtually the entire anticanon of constitutional law we look back upon today with regret came about when judges chose to follow their own impulses rather than follow the Constitution’s original meaning. Look, for example, at Dred Scott and Korematsu. Neither can be defended as correct in light of the Constitution’s original meaning; each depended on serious judicial invention by judges who misguidedly thought they were providing a “good” answer to a pressing social problem of the day.[7] 

Indeed, Justice Gorsuch highlights the real and substantial harms that living constitutionalism can cause:

Even when it comes to more prosaic cases, leaving things to the moral imagination of judges invites trouble. Just consider the “reasonable expectation of privacy” test the Court invented in the 1960s to redefine what qualifies as a search for Fourth Amendment purposes. Oh, it sounded nice enough. But under that judge-made doctrine, the Court has held—and I’m not making this up—that a police helicopter hovering 400 feet above your home doesn’t offend a “reasonable expectation of privacy.” The Court has even held that the government can snoop through materials you’ve entrusted to the care of third parties because, in its judgment, that, too, doesn’t invade a “reasonable expectation of privacy.” But who really believes that? The car you let the valet park; the medical records your doctor promised to keep confidential; the emails you sent to your closest friend. You don’t have a reasonable expectation of privacy against the government in any of those things? Really?

Put simply, “the pursuit of political ends through judicial means will often and ironically bring about a far worse result than anticipated—a sort of constitutional karma.”[8] In short, living constitutionalism is not a legitimate theory of constitutional interpretation.

Ultimately, Amy Coney Barrett will be confirmed because she is a brilliant jurist, a person of the highest character and integrity, and a judge who recognizes that “the law of Amy” should never be substituted for the law of the people. Originalists also recognize that – and originalism is, as Justice Gorsuch stated, “the best approach to the Constitution.”[9]

 

[1] Justice Neil Gorsuch, Why Originalism is the Best Approach to the Constitution (Sept. 6, 2019), available at: https://time.com/5670400/justice-neil-gorsuch-why-originalism-is-the-best-approach-to-the-constitution/

[2] Id.

[3] Id.

[4] 381 U.S. 479.

[5] Id. at 484 (emphasis added).

[6] 410 U.S. 113 (1973).

[7] Gorsuch, supra note 1, available at: available at: https://time.com/5670400/justice-neil-gorsuch-why-originalism-is-the-best-approach-to-the-constitution/

[8] Id.

[9] Id.

Journal of Appellate Practice and Process Website

It has been a few months since I blogged about the University of Arizona's acquisition of the Journal of Appellate Practice and Process.  But, I am pleased now to share the Journal's new website: www.appellatejournal.com. Eventually, this website will contain the full archive of the Journal, including the material published while the Journal was at UALR.  For now, it just contains the articles published in Volume 20, Issue 2, including an article by Judge Dillard and Justice McCormack entitled, "The Robed Tweeter: Two Judges' Views on Public Engagement."

I must give a shout-out to NITA, who is helping us edit the Journal and has also done significant work on the website. I also want to thank the University of Arizona Libraries for providing an excellent platform to publish the Journal online.

We are working away on our inaugural issue. If you are interested in receiving a notification when the issue is posted online, please sign up here. We are also accepting submissions for our December 2021 issue. Feel free to email me with any questions.

 

Politics and the United States Supreme Court

On the eve of Amy Coney Barrett’s confirmation hearings, members of the Republican and Democratic parties are preparing for what will likely be a difficult and highly partisan hearing. Republicans on the judiciary committee will likely contend that Judge Barrett’s qualifications, reputation, and character overwhelmingly support her confirmation. Democrats will likely contend that confirming Judge Barrett less than a month before the Presidential election is inappropriate, particularly given the Republicans’ refusal to hold hearings for Merrick Garland in the months preceding the 2016 election. Regardless of whether Judge Barrett is confirmed (the odds are solidly in her favor), few can doubt that the hearings will be contentious and reflect the partisanship and divisiveness that currently pervades the political arena. The consequences will not be insubstantial; rather, Judge Barrett’s hearing, like the hearing of then-Judge Brett Kavanaugh, will underscore how political the confirmation process – and arguably the Court itself – has become. And it will potentially undermine the public’s confidence in the Court and the rule of law.

To make matters worse, some members of the Democratic party have threatened to “pack the court” with additional (and arguably liberal) justices to counter the solidly conservative majority that Judge Barrett’s confirmation would likely create. But packing the Court will make the problem worse, not better.  It would be predicated on the assumption that a President’s – and a justice’s – perceived ideology and policy predilections will lead to outcomes that one party deems politically desirable. And if the public perceived as such, the Court would become more politicized, the rule of law more trivialized, and the legitimacy of the Court’s decisions minimized.

So how can we preserve the rule of law, maintain the Court’s independence, and ensure confidence in the Court’s decision-making process? Not through a contentious and partisan confirmation hearing. Not by packing the Court.

Instead, require a supermajority. Specifically, require that to reverse or affirm a lower court decision (and, of course, change the law), six, not five votes, are required.

This solution would have several benefits that would preserve the Court’s legitimacy, protect the separation of powers, and promote democratic choice regarding issues upon which the Constitution is silent. First, 5-4 decisions have been and continue to be the source of substantial disagreement and division. The Court’s decisions in National Federation of Independent v. Sebelius, Obergefell v. Hodges, Shelby County v. Holder, and Bush v. Gore are perfect examples. A six-vote majority would reduce the frequency with which the Court issues controversial decisions.

Second, requiring a six-vote majority would almost certainly lead to incremental, rather than drastic, changes in the law and minimize the risk that the Court’s decisions will be perceived as political and illegitimate. To achieve a six-vote majority, the justices would be forced to compromise and reach a middle ground concerning decisions that affect, among other things, civil rights and liberties. As such, the influence of ideology or policy preferences in the decision-making process would be minimized.

Third, a six-vote majority requirement would likely affect the process by which the Court grants certiorari. The Court would be less likely to accept cases -- particularly those involving divisive social and political issues -- if the justices knew that there was little, if any, likelihood of obtaining a six-vote majority. The effect would be that many decisions concerning divisive policy issues would be resolved through the democratic process, not by nine unelected judges with life tenure.

Fourth, a six-vote majority might incentivize litigants to stop seeking social change through the courts and instead concentrate their efforts on effecting change through the legislature. Doing so would limit the Court’s power in a principled way. The Court would still decide cases that involved violations of specific constitutional or statutory guarantees, but a six-vote majority requirement would make it difficult, if not impossible, for the Court to create rights based on implausible interpretations of the Constitution and thus engender public backlash. This is a good thing; after all, the Court’s decision in Roe. v. Wade, which was indefensible as a matter of constitutional law, has engendered so much backlash that the right to abortion will continue to be litigated for the foreseeable future.

Fifth, a six-member majority requirement would de-politicize the Court and the process by which justices are confirmed, preserve the Court’s independence, and protect the Court’s legitimacy.  Simply put, packing the Court isn’t the answer. Requirement a six-vote majority is – and should be considered seriously.

Appellate Advocacy Blog Weekly Roundup Friday, October 9, 2020

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

US Supreme Court Opinions and News

• The 2020-21 Supreme Court term began this week on Monday, October 5. Why does the new term begin on the first Monday of October? Well, it’s a congressional mandate. For more on how the Court’s sessions were set and what happens on the first day, see The National Constitutional Center. Here’s the list of cases for the October, November, and December sittings. And for commentary on the new term, see reports from NPR, CBS, LA Times, The Hill, The ABA Journal, and CNN.
  
  
• The Court refused to hear the appeal of the former Kentucky clerk, Kim Davis, who gained national attention after she refused to issue marriage licenses for same-sex couples citing her religious convictions. Two of the affected couples sued her for violating their constitutional rights. A lower court ruled the suit could go forward because the couples made a plausible allegation that Davis violated their established right to marry and because Davis was not entitled to qualified immunity as a city official. Although the Court rejected the petition without statement, Justice Thomas, joined by Justice Alito, published a statement reasserting their objections to the landmark case Obergefell v. Hodges, the 2015 case that found a Fourteenth Amendment right to same-sex marriage; the Justices reassert the claim that recognizing a right to marriage could have “ruinous consequences for religious liberty.” See the statement here, and reports from The Washington Post, Bloomberg, The Hill, and The New York Times.
  
  
• The Court refused to reinstate a federal requirement that women appear in person to a medical facility to receive medication to end their pregnancies. The requirement was suspended by a lower court that issued a nationwide injunction in light of the pandemic because needless trip to a medical facility during a health crisis likely imposed an undue burden on the constitutional right to abortion. The Court returned the case to the trial court for a ruling within 40 days, opining that “a more comprehensive record would aid this court’s review.” See the order. For more on this, see The New York Times, The Hill, and Reuters.

Federal Appellate Court Opinions and News

• The Second Circuit ruled that the Manhattan district attorney can enforce the subpoena seeking Donald Trump’s personal and corporate tax returns. The court rejected the arguments that the subpoena was too broad and that it qualified as harassment. The decision will likely be appealed to the Supreme Court. See the order and reports from The New York Times, AP News, and Bloomberg.  
  
  
• The Ninth Circuit ruled that AT&T must face a lawsuit alleging its affiliate DirectTV violated consumer protection laws by making robocalls to a consumer's cell phone, rejecting an argument that the suit belonged in arbitration. The court ruled that the customer was not bound by AT&T’s arbitration clause, which requires its customers to submit to arbitration any claims against AT&T or its affiliates, because AT&T had not acquired DirectTV when the customer had signed the agreement. See the order and reports from Bloomberg Law (subscription required) and Digital News Daily.
  
  
• The Ninth Circuit upheld a lower court decision allowing the 2020 census count to continue through October. The administration had attempted to end the count on September 30. See order and reports from the San Francisco Chronicle and AP News.

State Appellate Court Opinions and News

The Pennsylvania Superior Court ruled that the federal Protection of Lawful Commerce in Arms Act is unconstitutional and has allowed a suit against gun manufacturers and sellers to continue. The suit alleges a gun that accidentally killed a teenage boy discharged due to a manufacturing defect. Under the Act, the manufacturer and seller would be immunized against the suit. The decision, a first in the country, found that that Act is “constitutional overreach” and violates the Tenth Amendment, which gives power, such as the tort reform intended by the act, to individual states. The court ruled the Act an overreach because it immunizes “the gun industry from every conceivable type of joint and comparable liability known to the common law” even if a product is faulty and causes harm and “regardless of how far removed from interstate commerce the harm arises.” See the order and reports from Reuters, CNN, and The Hill.

Professionalism in Legal Writing: Dos & Don'ts - Part 1

The Supreme Court of Ohio, Commission on Professionalism, has published Professionalism Dos & Don’ts: Legal Writing.[1] Each Do and Don’t has several subpoints. Over the next few months, I plan to take a more in-depth look at some of these Dos and Don’ts and offer examples and suggestions for how appellate advocates can implement the Dos and avoid the Don’ts.

Do Maintain Proper Focus:

• Do keep your purpose in mind while writing.

Why are you writing what you’re writing? What are you trying to accomplish? While the purpose of most of the writing of appellate advocates is straightforward—persuade the court and win your client’s case—we also write for other purposes. We write to clients, opposing counsel, co-counsel, court staff, prepare CLE materials, etc. We are trying to achieve different things and thus have different purposes, in writing to, or for, each of those audiences. We need to keep that purpose in mind for each thing we write.

• Do tailor your writing to your primary audience, but be aware that others may read what you have written.

We must reach our audience. We are writing for our audience, not ourselves. It’s quite easy to get caught up in our own brilliance and the clever turn of a phrase, but if our audience can’t understand what we’re trying to communicate, we’ve failed as writers.[2]

We must strive to make our writing clear for our audience.[3] One thing that creates ambiguity and confuses readers is vague pronoun references. When a writer uses a pronoun, she knows who or what the pronoun refers to, but it may not be clear to the reader. Take this example: “Ed and Sonny went to dinner and he ordered the fish sandwich instead of a steak.” Who ordered the fish sandwich? Because I’m friends with Ed and Sonny, I know Sonny would always choose a steak over a fish sandwich, but my reader wouldn’t know that. To make the meaning clear to my reader, I should write, “Ed and Sonny went to dinner and Ed ordered the fish sandwich instead of a steak.”

We must communicate clearly to our primary audience while remembering that everything we write has a secondary audience. Sometimes we run into difficulties when we neglect or forget about, that secondary audience. Then our writing may end up as an exhibit, as did this email from plaintiff’s counsel in an insurance-claim dispute:

This is an extreme example—although not the most extreme, even from this twenty-page exhibit. But the point remains, we must anticipate and consider a secondary audience when we write.

So, do identify the purpose of your writing and do keep your primary and secondary audiences in mind while writing.

 

[1] https://www.supremecourt.ohio.gov/Publications/AttySvcs/legalWriting.pdf

[2] Alexa Z. Chew and Katie Rose Guest Pryal, The Complete Legal Writer, 5 (Carolina Academic Press, 2d Ed. 2020).

[3] Id.

A Few Thoughts on Amy Coney Barrett

On September 18, 2020, Justice Ruth Bader Ginsburg unexpectedly died. Undoubtedly, Justice Ginsburg was a brilliant jurist and one of the most influential legal thinkers in recent history. After a period of mourning in honor of Justice Ginsburg, President Donald Trump nominated Judge Amy Coney Barrett to serve as an Associate Justice on the United States Supreme Court. Predictably, some senators vowed to oppose Judge Barrett’s confirmation to the Court, citing both the timing of the nomination and the belief that Judge Barrett would reach decisions that would eviscerate abortion rights and invalidate the Affordable Care Act.[1] In fact, three senators announced that they would not even meet with Judge Barrett before the confirmation hearings begin.[2]

A review of the reasons offered in opposition to Judge Barrett’s confirmation, and an analysis of Judge Barrett’s background and experience, strongly suggests that Judge Barrett will – and should – be confirmed.

To begin with, Judge Barrett’s credentials are impeccable. A graduate of Notre Dame Law School – and an executive editor on the Notre Dame Law Review ­– Barrett clerked for Judge Laurence Silberman of the United States District Court for the District of Columbia and, thereafter, for former Justice Antonin Scalia at the United States Supreme Court. Thereafter, Judge Barrett joined Miller, Cassidy, Larroca & Lewin, a prestigious Washington, D.C. firm before embarking on a career in academia and, ultimately, being confirmed as a judge on the Seventh Circuit Court of Appeals.[3]

Scholars of all political persuasions have offered effusive praise for Justice Barrett’s intellect and legal ability. As former colleague and Notre Dame law professor O. Carter Snead states:

She has an incandescent mind that has won the admiration of colleagues across the ideological spectrum.  Harvard law professor Noah Feldman, a respected liberal legal commentator who, like Barrett, was a Supreme Court clerk during the October 1998 term, has observed that Barrett may well have been the smartest person in that year’s pool of top young legal talent. ‘Any Senate Democrat who tries to go toe to toe with Barrett over her legal abilities,’ he wrote in 2018, ‘going to lose. Badly.’ Barrett has confirmed her brilliance many times over as both a scholar and a teacher, for which she has been recognized three times by Notre Dame law students as professor of the year.[4]

Notre Dame law professor Daniel Kelly echoed these sentiments, calling Judge Barrett “absolutely brilliant," and “one of the warmest open-minded people that anybody could meet.”[5]

Furthermore, Judge Barrett is a jurist – and person – of great character and integrity. As Professor Snead explains, Judge Barrett’s “commitment to treating others with respect grows directly out of her religious convictions,” and “Barrett’s love of neighbor goes beyond merely treating others with dignity.”[6] In fact, “[i]n all the time I have known her, I have never once seen Barrett place her needs above those of others.”[7]

Additionally, neither ideology nor policy predilections appear to influence Judge Barrett’s jurisprudence. As Professor Snead explains, Judge Barrett “genuinely seeks to understand others’ arguments and does not regard them as mere obstacles to be overcome on the way to reaching a preferred conclusion.”[8] To be sure, Judge Barrett is “not afraid to change her own mind in the search for the truth,” and “open-mindedness is exactly what we want of our judges,” particularly on the U.S. Supreme Court. In fact, one of Judge Barrett’s former colleagues – and a former clerk to Justice Ginsburg – stated that Judge Barrett “is ‘not at all ideological’ and believes that she will ‘try as hard as anyone can to bracket the views she has as she decides cases.’”[9]

For these and other reasons, Judge Barrett is admired and respected by her peers and former students – regardless of political persuasion. John Garvey, President of Catholic University and one of Judge Barrett’s former professors, stated that “Amy Coney is the best student I ever had.”[10] While a professor at Notre Dame Law School, Judge Barrett was voted Teacher of the Year three times.[11] Most importantly, Judge Barrett is a good person who has impacted meaningfully the lives of so many. Three of Judge Barrett’s former students state as follows:

Amy Coney Barrett is a woman of both profound intellect and depth of heart. We are better women, friends, and lawyers for having known and learned from her. She has enriched the lives of all who have come to know her at Notre Dame Law School, and we can only hope that the entire country also will be given the benefit of her example and service.[12]

Indeed, as a group of her former students stated, “[w]hile we hold a variety of views regarding how best to interpret statutes and the Constitution, we all agree on this: The nation could not ask for a more qualified candidate than the professor we have come to know and revere.”[13]

Of course, some legal scholars will oppose Judge Barrett’s confirmation and her confirmation hearing before the Senate Judiciary will almost certainly be contentious. Those opposing Judge Barrett’s confirmation will likely argue that Judge Barrett will fortify a conservative majority on the Court, vote to overturn Roe v. Wade, and invalidate the Affordable Care Act. Such concerns are purely speculative; as history reveals, lawmakers cannot know with any degree of confidence how a nominee will rule in a particular case. For example, Justices David Souter, John Paul Stevens, and John Roberts have reached decisions in numerous cases that defy their perceived ideological dispositions.  Furthermore, disagreement with (or, in some cases, disdain for) a nominee’s political beliefs is not the constitutional standard upon which nominees should be evaluated. Such an argument shows no regard whatsoever for or faith in the rule of law and unnecessarily politicizes both the confirmation process and the Court. Put simply, it’s not enough to reject a nominee because you disagree with their political views; in fact, it’s the Senate’s job to confirm a nominee regardless of those views. And the fact that Judge Barrett recognizes that “judges are not policymakers” is a positive, not negative, characteristic.[14]

Others may argue, as Senator Diane Feinstein did during Judge Barrett’s confirmation hearing for a vacant seat on the Seventh Circuit, that Judge Barrett’s religious beliefs suggest that her ideology will influence her decisions.[15] However, concerns about Judge Barrett’s religion or religious beliefs should be entirely irrelevant. Article VI, Clause Three of the Constitution  states that “no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.”[16] Even living constitutionalists could not disagree that Article’ VII’s meaning: you cannot disqualify a judge based on their religious beliefs or affiliations. Also, to look unfavorably upon a nominee because of their religious belief is plain wrong and reflects precisely the type of bias and prejudice that all reasonable people should condemn.

Some senators will also likely argue that Judge Barrett’s interpretive philosophy – originalism – will lead to unjust and inequitable outcomes, and cause Judge Barrett to disregard principles of stare decisis when precedents conflict with the Constitution's original meaning. This concern, again, lacks merit. Originalism does not require judges to overturn precedent that violates originalism’s interpretive philosophy. Furthermore, based on Judge Barrett’s respect for the rule of law and the stability it provides, it is highly likely that pragmatic considerations would influence Judge Barrett’s decision-making process. And by all indications, Judge Barrett would do so in an honest and principled, not partisan and political manner. Moreover, outcome-based objections ignore the complexity of the judicial decision-making process, disregard the seriousness with which the justices take their responsibility to be fair and impartial, and serve to politicize the confirmation process in a manner that threatens the Court’s institutional legitimacy.

Additionally, many Senators will almost certainly object to Judge Barrett’s nomination on the ground that no nominee should be confirmed during an election year – a position that the Republican party embraced to block the nomination of Judge Merrick Garland. This fact should not preclude her confirmation. Since 1900, six justices have been confirmed during election years.[17] And sufficient time exists to confirm Judge Barrett; Justice Ginsburg, for example, was confirmed forty-two days after her nomination, and former Justice Sandra Day O’Connor was confirmed thirty-three days after her nomination.[18] Of course, the Republicans’ refusal to hold hearings for Merrick Garland understandably angered Democrats and exposes Republicans to charges of hypocrisy in seeking to confirm Judge Barrett on the eve of a presidential election. But at some point, the partisanship and polarization that has characterized recent confirmation hearings must stop. In 1986, Justice Antonin Scalia was confirmed by a vote of 98-0.[19] In 1993, Justice Ginsburg was confirmed by a vote of 96-3.[20] In 2009, Justice Sotomayor was confirmed by a vote of 68-31.[21] Judge Barrett should be confirmed too.

Put simply, Judge Barrett has impeccable credentials and is a thoughtful and conscientious jurist. Most importantly, as her former colleagues and students attest, Judge Barrett is a kind, humble, and caring person. As Professor Snead stated, “[a]t a time when there is so much to worry about in our troubled nation, having a Supreme Court justice who brings such honesty and integrity to her work should be the least of our fears.”[22]

 

[1] See Ana De Liz, Which Democrats are Meeting With Amy Coney Barrett, and Which Are Refusing (Sep. 29, 2020), available at: https://www.newsweek.com/which-democrats-are-meeting-amy-coney-barrett-which-are-refusing-1534955

[2] See Zachary Evans, Several Senate Dems Refuse to Met With Barrett, Come Out Against Confirmation (September 29, 2020), available at: https://www.nationalreview.com/news/several-senate-dems-refuse-to-meet-with-barrett-come-out-against-confirmation/

[3] See Biography: Amy Coney Barrett, available at: https://www.biography.com/law-figure/amy-coney-barrett

[4] O. Carter Snead, I’ve Known Amy Coney Barrett for 15 years. Liberals Have Nothing to Fear (Sept. 26, 2020), available at: https://www.washingtonpost.com/opinions/2020/09/26/ive-known-amy-coney-barrett-15-years-liberals-have-nothing-fear/

[5] WIBC, Notre Dame Colleagues Call Amy Coney Barrett ‘Brilliant, Honest, and Sincere’ (Sept. 25, 2020), available at: https://www.wibc.com/news/local-indiana/notre-dame-colleagues-call-amy-coney-barrett-brilliant-honest-and-sincere/

[6] Snead, supra note 4, available at: https://www.washingtonpost.com/opinions/2020/09/26/ive-known-amy-coney-barrett-15-years-liberals-have-nothing-fear/

[7] Id.

[8] Id.

[9] Id.

[10] Laura E. Wolk, Megan L. McKeown, Alyson M. Cox, Amy Coney Barrett Was Our Professor. She’ll Serve America As Well As She Served Her Students (Sept. 27, 2020), available at: https://www.usatoday.com/story/opinion/voices/2020/09/27/amy-coney-barrett-supreme-court-notre-dame-students-column/3551971001/

[11] Christian Sheckler, Notre Dame Profs Push Back On Amy Coney Barrett Portrayals: Not Just an ‘Ideological Category,’ (Sept. 26, 2020), available at: https://www.usatoday.com/story/news/politics/2020/09/26/amy-coney-barrett-notre-dame-professors-push-back-ideological-portrayals/3546388001/

[12] Wolk, et al., supra note 10, available at: https://www.usatoday.com/story/opinion/voices/2020/09/27/amy-coney-barrett-supreme-court-notre-dame-students-column/3551971001/

[13] Id.

[14] Supreme Court Nominee Amy Coney Barrett, ‘Judges Are Not Policymakers,” available at: https://www.whitehouse.gov/articles/supreme-court-nominee-amy-coney-barrett-judges-not-policymakers/

[15] See New York Times, The Dogma Lives Loudly Within You Sept. 26, 2020), available at: https://www.nytimes.com/2020/09/26/us/politics/the-dogma-lives-loudly-within-you-revisiting-barretts-confirmation-hearing.html

[16] U.S. Const., Art. VI, Cl. 3.

[17] See Zack Budryk, 22 GOP Attorneys General Urge Congress to Confirm Barrett As Supreme Court Justice (Oct. 1, 2020), available at: https://thehill.com/homenews/senate/519130-22-gop-attorneys-general-urge-congress-to-confirm-barrett-as-supreme-court

[18] See id.

[19]  See Dana D. Kelly, Scotus Scores (July 6, 2018), available at: https://www.arkansasonline.com/news/2018/jul/06/scotus-scores-20180706/

[20] See Linda P. Campbell, Ginsburg Confirmed to Court on 96-3 Vote (Aug. 4, 1993), available at: https://www.chicagotribune.com/news/ct-xpm-1993-08-04-9308040122-story.html

[21] See John Stanton, Senate Confirms Sotomayor on Bipartisan 68-31 Vote (Aug. 6, 2009), available at: https://www.rollcall.com/2009/08/06/senate-confirms-sotomayor-on-bipartisan-68-31-vote/

[22] Snead, supra note 4, available at: https://www.washingtonpost.com/opinions/2020/09/26/ive-known-amy-coney-barrett-15-years-liberals-have-nothing-fear/

Good Writing is Rewriting

When I was in college, I had the opportunity to sit and talk for a bit with Ray Bradbury after he gave a lecture on writing. His first advice on writing? "Write the damn thing!" It will probably be garbage, he continued, but you need something to start with. Because, "Good writing is rewriting."

I later learned that Bradbury practiced what he preached. He had a note posted over his typewriter that just said "Don't Think!" But he also was a stickler for rewriting. When he first wrote "Something Wicked This Way Comes," the draft stood at 150,000 words. He then cut 50,000.

Recently, I was reminded of that conversation when, after learning of her passing, I re-read Justice Ruth Bader Ginsburg's interview by Bryan Garner in The Scribes Journal of Legal Writing. She was deeply influenced in her writing, she said, by one of her professors - Victor Nabokov. And Nabokov once said:

“I have rewritten — often several times — every word I have ever published. My pencils outlast their erasers.”

This training led Ginsburg to work "very hard" on every opinion she wrote, going through "innumerable drafts." Her goal was clarity, and that clarity took a great deal of work. Her oftentimes ideological opponent, and friend, Justice Antonin Scalia, agreed in his interview, admitting that he was not a naturally facile writer, and that he continued working on drafts until they took them from his hands.

I take a great deal of comfort from this exchange between Garner and Scalia:

BAG:  Do you think it’s often true that the less facile writers, the ones who really struggle with it the most and put the most effort into it, are the best writers?

AS:  I think it’s probably almost always true.

BAG:  It just looks easy.

AS:  It just looks easy. Yeah. Yes, I don’t believe in the facile writer. Maybe there’s one or two out there, but . . .

One of the greatest compliments I can be paid by a client is often accompanied by a criticism. I know I have done my job well when a client reviews a brief I have written and then expresses dismay when they see the time I spent on it, because the ultimate product makes everything seem so simple. But trust me, it just looks easy.

The picture at the top of the article is ancient. It is a painting from about 500 BC of a scribe using a wax tablet. Wax tablets had two great advantages at the time: You could write quickly on them, and you could even more quickly melt away the words you had written. The modern tablet is even faster at both tasks. Don't ever feel bound by that first draft when it can so easily be melted away and improved.

As I work on a brief this week, those reminders have helped me focus in on what matters. I am working diligently, because I am not, naturally, a facile writer. I am putting down thoughts on paper quickly, and then rewriting painstakingly.

Because, after all, good writing often requires requires a great deal of editing is re-writing rewriting.

(Image attribution: Pottery Fan: photo of Greek art created about 500 BC by Douris / CC BY-SA (https://creativecommons.org/licenses/by-sa/3.0))

Guest Post: Former Law Clerk Influence at the Supreme Court: How Personal Knowledge Gives Former Clerks an Edge

We are pleased to welcome Prof. Ryan C. Black and Prof. Ryan J. Owens for this guest post. Ryan C. Black is Professor of Political Science at Michigan State University.  Ryan J. Owens is the George C. and Carmella P. Edwards Professor of American Politics and the Director of the Tommy G. Thompson Center on Public Leadership, both at the University of Wisconsin-Madison

Recently, we published a study that examined the influence of former Supreme Court law clerks when they return to the High Court to argue cases. We sought to examine two questions: Do former clerks influence their justices? If so, why?

Like a vine that grows toward sunlight, these questions reach toward some of the most normatively important topics in a constitutional republic.  What does it mean for a judicial tribunal to decide cases neutrally? At what point do personal connections supersede legal arguments? How can a court most effectively mete out justice?

Our results show that former clerks exert a significant—though focused—influence over justices. Former clerks are more likely to obtain their own justices’ votes than otherwise identical Supreme Court advocates who never clerked. In numerical terms, an attorney who once clerked for a particular justice has a 73% chance of capturing that justice’s vote, while an otherwise identical attorney who never clerked has only a 57% chance of winning that justice’s vote. Stated otherwise, a former clerk enjoys a 16% greater probability of winning her former justice’s vote than all other attorneys.

This 16% greater probability is substantively meaningful. We suspect nearly anyone would jump at the chance to improve their odds of winning a justice’s vote at all, let alone from 57% to 73%. To place our findings in context, a previous study found that a quality argument by an attorney increased his or her chances of winning by 11%. Our results are even larger, highlighting the sizable influence of former clerks.

The importance of our finding is particularly telling if the case seems headed to a 5-4 outcome. Improving the chances of shifting a 5-4 loss to a 5-4 victory by strategically employing a former clerk seems worth the investment for firms and their clients.  The same could be said of cases where the Court median’s position is unclear. Not sure which way the swing justice will go? Call in that justice’s former clerk to argue the case. It may be the difference between victory and defeat.

Having established that clerks do in fact influence their former justices, we then examined why they enjoyed such success.

We tested a number of theories for that success. One theory argued that former clerks are simply better lawyers or have greater legal knowledge than non-clerks, and their inherent skills make them more successful. While it is true that Supreme Court clerks are indeed intelligent, it is not the case that they are inherently better lawyers than non-clerks. If that was so, all former clerks would have performed better than all non-clerks. Yet, the data did not reveal that outcome. In fact, some former clerks are just as likely to capture some justices’ votes as non-clerks. This finding also casts doubt on the theory that former clerks prevail because they enjoy process expertise. If knowing how the Court operates gives former clerks an edge, all former clerks would perform better than all non-clerks. Again, they do not. It is also possible that former clerks work at better law firms with greater resources, which helps them win. But we examined that dynamic and still found a former clerk influence that is independent of resources.

After a series of tests, we discovered that former clerk influence turns on their personalized knowledge of their justice. Clerks work closely with their justices for a full year, and during that intense time period, they learn much about their justices—how they think, what kinds of cases they like, what sorts of legal arguments work best, and similar bits of information. When they return to the Court to argue as lawyers, they can employ that personalized information to win their former justice’s vote.

Of course, it is obvious that justices have come to trust their former clerks. In other words, it could be possible that the “causal arrow” points from justice to former clerk rather than from former clerk to justice. We suspect there is something to the argument that justices trust their former clerks and thus vote for their position. Still, that alternative theory likely does not explain the 16% increase we discover. After all, justices can also come to trust the information other attorneys provide them. Clerking definitely provides someone the opportunity to gain a justice’s trust, but so too does a lifetime of litigating before that justice. In other words, if justices simply vote for those they have come to trust, one would expect them to be just as likely to vote for successful (i.e., trustworthy) repeat players who never clerked as they would their former clerks. The results, however, show that justices are still more likely to vote for their former clerks even when compared against successful repeat litigators who never clerked. Personalized information matters.

One alternative approach to examine the impact of personalized information would be to examine how justices treat lower court opinions written by their former clerks who have gone on to become judges. If the personalized information is the currency we believe it is, then we should expect that justices might be more likely to take cases decided by their former clerks, particularly when their former clerks write dissents. Those judges will know what it takes to capture their former boss’s attention. Future scholarship should investigate this dynamic.

Personal information is gold. And, if our study has anything to say about it, former clerks are swimming in it.

Appellate Advocacy Blog Weekly Roundup Saturday, September 27, 2020

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

 

Justice Ruth Bader Ginsberg died on September 18 and was honored this week in Washington, D.C. She was the second woman to be appointed to the Supreme Court and served 27 years as a Justice. And, she was the first woman ever to lie in state at the US Capitol. Her legacy as a respected lawyer, jurist, and social justice icon has been detailed in countless news items and articles, including at SCOTUS Blog, which includes a series in tribute. For other tributes and coverage see The BBC, The New York Times, NPR, and The Washington Post.

 

While there is undoubtedly other appellate news this week, in honor of Justice Ginsberg, I'll leave the other news to next week. 

A Fairy Tale Brief Teaches Clarity and Form

Once again, we find ourselves at the end of a week full of heavy news.  While we mourn the passing of Justice Ruth Bader Ginsburg and the staggering loss of so many to COVID-19, and worry about the rampant injustice made even more evident this week, we might also take a mental break for something lighter.  If you are looking for a fun piece on briefing to take your mind off the news of the day, check out this sample from the California Court of Appeal:  https://www.courts.ca.gov/documents/2DCA-eFiling-Sample-Brief.pdf. 

In a cheerful, light-hearted way, the Court’s sample brief helps pro se litigants, but also reminds us all to make our briefs simple and clear.  See https://www.law.com/supremecourtbrief/2019/03/06/this-8-page-cert-petition-caught-the-justices-eyes-clarence-thomass-many-doubts-meet-the-last-supreme-court-crier/ (discussing a more “real life” example of short, clear writing in a successful eight-page cert petition).  The sample also helps litigants include all opening brief sections required by the California Rules of Court.

For example, the Court’s Statement of the Case provides a truly brief summary of the key facts, with no unneeded detail or argument.  In two sentences, the sample summarizes the parties’ status and introduces the important facts: 

The Three Bears filed a complaint in August 2001 alleging Goldilocks had trespassed on their property by entering their home when they were not at home, consuming a meal and falling asleep in a bed. The complaint alleged that Baby Bear had suffered physical and mental damages as a result of being frightened upon discovering Goldilocks. (CT 1-4.) 

The brief also shows proper record cites to the Clerk’s and Reporter’s Transcripts in all sections, something too often missing from briefs. 

The sample brief continues with a very straightforward recitation of the facts. including the fun note Baby Bear’s treating doctor was an “expert bear cub psychologist, Dr. Dramatic.”  In five paragraphs, the Court’s sample outlines the testimony from the parties, Dr. Dramatic, and a neighbor, Gloria Gardener.  For example, “Goldilocks testified she was looking for a boarding facility to take a rest, the Bears' house was very large, there was no fence to indicate this was private property, the door of the house was open and there was a mat at the front door that said ‘WELCOME.’  (RT 25-26.)”   Since Goldilocks “thought this was a commercial boarding establishment, as large amounts of food were set out as if for guests, “ she “looked for someone to ask about spending the night[,] saw several sets of chairs and beds all in different sizes (RT 27-28.),” and fell asleep.

As this image shows, the Argument section of the sample brief has three subsections, including the separate sections required in California and many jurisdictions on the standard of review and the elements of the action: 

While the Court’s sample is not perfect, and I would remove passive voice and add more express application of the law to the underlying facts, the brief still follows a clear CRAC format.  Finally, the brief concludes briefly, as all appellate writing should.  Instead of an overly argumentative or detailed conclusion, the sample very quickly summarizes and then asks for specific relief:  “Goldilocks respectfully asks that this Court reverse the decision of the trial court and vacate the award of damages.”

Hopefully, the fairy tale context of the Court’s sample will make you smile.  But on a deeper level, the brief helps unrepresented litigants and law students with basic brief format.  The Court’s brief also reminds experienced practitioners to always check local rules and keep our briefs as straightforward and simple as possible.

Confrontation Rights and COVID-19

Suppose you are a criminal defense attorney preparing a case for trial. Opposing counsel informs you that the key eyewitness is medically vulnerable to COVID-19 and plans to seek court permission to testify remotely while wearing a mask. Does the confrontation clause prohibit such testimony, requiring in-person, maskless cross-examination to vindicate the defendant’s constitutional rights?

Several courts across the country have recently addressed this question, with surprisingly disparate results and analyses.[1] The cases remind us of just one more way that the COVID-19 pandemic places tension on both our everyday lives and our constitutional rights.

First, consider whether remote testimony is viable option that would meet the confrontation clause’s requirements. Some witnesses can testify remotely to prevent other harms; Maryland v. Craig, 497 U.S. 836 (1990) allowed young children who have been subject to significant trauma to testify remotely via one-way closed-circuit television. Craig demonstrates that the clause is not an absolute requirement for in-person testimony. Prosecutors might argue that pandemic conditions likewise justify limits on the full confrontation right such that remote testimony is sufficient. Yet Craig is likely limited to its facts, and it seems undermined by the fuller explication of the confrontation clause in Crawford v. Washington, 541 U.S. 36 (2004). Crawford was authored by Justice Scalia, who vehemently dissented in Craig, and who later suggested that remote testimony for adults might not satisfy the confrontation clause.[2] Even if the argument in favor of remote testimony is stronger today given advancements in video conferencing technology, the confrontation clause does not come with any clear “exigent circumstances” exception that might apply to pandemic conditions. And it seems likely that frequent remote testimony would not meet with Supreme Court approval if used beyond Craig’s circumstances.

But the confrontation clause still permits prosecutors to admit prior recorded testimony from outside the courtroom in some situations. Where a witness is unavailable to testify at trial, the right to confrontation can be satisfied if that witness is first subject to an in-person evidence deposition during which the defendant had the opportunity to cross-examine. The evidence deposition is admissible as evidence at trial. The “unavailability” that triggers such a procedure has included a witness’s extreme, even life-threatening, illness. A witness whose health conditions make travel and in-court testimony during a pandemic a similarly life-threatening endeavor might also be considered unavailable, such that an evidence deposition taken prior to trial is a viable option.

But what if the witness wants to wear a mask while testifying? This may present thorny confrontation problems for either in-court or evidence deposition testimony. The right to confrontation exists in part to ensure that the defendant, and potentially the jury, can observe the demeanor of the declarant to assess her credibility. Does a mask preclude that needed evaluation of one’s demeanor?

Fortunately, masks do not fully preclude credibility assessment by defendants and jurors. Observers can still assess a masked witness’s demeanor by noting her body language, eye contact, and tone of voice. Indeed, courts have permitted testimony under conditions that only partially limit observers’ views of the witnesses face, such as testimony from behind a partial veil that does not cover the eyes and provides an opaque view of the witness’s lip movements.[3] Masks with clear windows over the lips, permitting observers to see the speakers mouth while talking, are readily available. Thus, even if jurors can detect lies based upon live witnesses’ demeanors—a dubious proposition in its own right—the experience can be replicated through a mask. Thus, it is likely that courts can work around confrontation clause concerns, even in pandemic conditions, to ensure that the criminal justice system continues to function.

 

[1] See, e.g., Puerto Rico v. Rosario, 2020 WL 5238749 (P.R. Sup. Ct.); People v. Jemison, No. 157812, slip op. (Mich. June 22, 2020); United States v. Donzinger, 2020 WL 5152162 (S.D.N.Y.); United States v. Casher, 2020 WL 3270541 (D. Mont.).

[2] Richard D. Friedman, Remote Testimony and the Coronavirus, http://confrontationright.blogspot.com/2020/05/remote-testimony-and-coronavirus-crisis.html, May 4, 2020 (noting that Scalia argued against a proposed federal rule of criminal procedure that would have allowed for remote testimony in some cases).

[3] Eugene Volokh, Does Letting Witness Testify Wearing Partial Veil Violate the Confrontation Clause?, https://reason.com/2019/06/10/does-letting-witness-testify-wearing-partial-veil-violate-the-confrontation-clause/, June 10, 2019.

Students for Fair Admissions, Inc. v. President and Fellows of Harvard College: An Analysis of the Future of Affirmative Action

I.    Background

In Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, the plaintiff, an organization that opposes affirmative action, filed suit against Harvard University in the United States District Court for the District of Massachusetts, alleging that Harvard’s affirmative action program unconstitutionally discriminated against Asian-American applicants.[1] In September 2019, U.S. District Court Judge Allison Burroughs rejected the Plaintiff’s claim, holding that Harvard’s affirmative action program neither engaged in racial balancing (quotas) nor placed an undue emphasis on an applicant’s race in the admissions process.[2] Accordingly, although Harvard considered race as part of its holistic admissions process, its process did not discriminate impermissibly based on race and thus passed constitutional muster.[3] Subsequently, Students for Fair Admissions, Inc. appealed to the First Circuit Court of Appeals, arguing that Harvard’s admissions process imposed a de facto “racial penalty” on Asian-American applicants.

On September 16, 2020, the First Circuit heard oral arguments and the three-member panel appeared skeptical of the appellant’s arguments.[4]  Judge Sandra Lynch, for example, stated that “[y]our argument seems to come down to ‘Harvard must admit based only on academic rating and may not consider anything else,’” an argument that would contravene the United States Supreme Court’s jurisprudence holding that race may be considered as part of a holistic admissions process.[5] The oral argument suggests that the First Circuit is likely to uphold the district court’s decision, but that will almost certainly not be the end of the story. The Supreme Court will likely grant certiorari to consider the permissible contours of affirmative action programs and the extent to which colleges and universities may consider race in the admissions process.

II.    Analysis of Affirmative Action Jurisprudence

The United States Supreme Court’s jurisprudence regarding affirmative action provides a reasonably justifiable basis upon which to uphold the constitutionality of affirmative action programs.

To begin with, in Regents of the University of California v. Bakke, the Court held that the value in promoting educational diversity was sufficiently compelling to justify the use of race in the admissions process.[6] Indeed, few could gainsay that diversity confers a substantial benefit upon universities, students, and the community. A diverse student body exposes students to various perspectives, enables students to interact with others from different backgrounds and experiences, and facilitates an awareness of the obstacles and adversity that many minorities have overcome. As Judge Burroughs emphasized, “students who are admitted to Harvard and choose to attend will live and learn surrounded by all sorts of people, with all sorts of experiences, beliefs and talents,” and, as such, “race-conscious admissions programs have an important place in society and help ensure that colleges and universities can offer a diverse atmosphere that fosters learning.”[7]

Importantly, however, the Court in Bakke emphasized – and rightly so – that a university’s admissions process must be narrowly tailored to ensure a holistic and individualized consideration of every applicant, such that race cannot the sole or even predominant factor in the admissions process.[8] And in Gratz v. Bollinger, the Court reaffirmed this principle, invalidating the University of Michigan’s undergraduate admissions policy because it automatically awarded twenty points toward admission for minority applicants (100 points were required for admission, with a perfect score on the SAT earning twelve points).[9] This approach permitted precisely what Bakke prohibited – an excessive emphasis on race in the admissions process.

Conversely, in Grutter v. Bollinger, the Court upheld the University of Michigan Law School’s affirmative action program, holding that, although the law school’s admissions process favored underrepresented minority groups, the admissions process was sufficiently holistic to ensure an individualized consideration of every applicant.[10] Additionally, the Court held that the law school’s objective of obtaining a “critical mass” of minority students was sufficiently tailored to further the interest in achieving a diverse student body.[11] The “critical mass” rationale makes sense; one could hardly argue that the benefits of diversity are achieved if the percentage of diverse students are so minuscule

Finally, in Fisher v. University of Texas, the Court upheld the University of Texas’s affirmative action program, although its decision brought uncertainty, rather than clarity, to the Court’s affirmative action jurisprudence.[12] In Fisher, the University of Texas automatically admitted all high school students throughout Texas who graduated in the top 10% of their high school class.[13] Although this policy created substantial diversity among the University of Texas’s incoming classes, the university nonetheless included race as a factor in its holistic admissions process, which was reserved for students who did not graduate in the top 10% of their class.[14] A white applicant who had been denied admission through the holistic process sued the University of Texas, arguing in part that, because the university already achieved substantial diversity through the top 10% program, the use of race in its holistic process was not sufficiently narrowly tailored.[15]

The Court rejected this argument, holding that the university’s rationale for its diversity-related goals, which included the elimination of stereotypes, cross-racial understanding, and preparing students for a diverse workforce, were sufficiently measurable to enable judicial review, and that the university’s determination that the top 10% program was insufficient to ensure adequate diversity was entitled to substantial deference.[16] On this basis, the Court upheld the university’s affirmative action program, although the Court’s decision, which failed to apply strict scrutiny (as had been the case in Bakke, Gratz, and Grutter), lacked a meaningful analysis of whether the university’s admissions process was appropriately tailored to ensure an individualized consideration of applicants outside of the top 10% program.[17] Simply put, Fisher muddied the waters and brought confusion, rather than clarity, to the Court’s affirmative action jurisprudence, particularly regarding the legal standards governing the constitutional of affirmative action policies.

Notwithstanding, the Court’s decisions have established several broad principles that provide some guidance regarding the constitutionality of affirmative action policies. First, the interest in achieving a diverse student is undoubtedly compelling, particularly given that it exposes students to different perspectives, facilitates relationships with students of various backgrounds, and, as Judge Burroughs stated, this creates a “diverse atmosphere that fosters learning.”[18] Second, the requirement that universities assess applicants holistically – and thus ensure an individualized consideration of every applicant – at least theoretically ensures that race will not be a predominant or, worse, deciding factor in admissions decisions. Third, it makes sense that courts would be reluctant to interfere in the internal policymaking decisions of universities absent evidence, as in Gratz, that admissions committees are preferencing minority applicants to such as degree  (and thus discriminating against applicants of other races) that renders race, at least in some circumstances, dispositive in admissions decisions. Perhaps for that reason, as Justice Anthony Kennedy stated in Fisher v. University of Texas, universities are entitled to substantial deference in designing affirmative action program 

Opponents of affirmative action, however, offer several arguments that are worthy of consideration. First, the consideration of race to any degree whatsoever is arguably contrary to the fundamental guarantee of equality and equal protection under the law. This argument, however, ignores the fact that for most of this country’s history, universities did consider affirmative action in the admissions process – to the detriment of minority applicants, particularly African Americans. Thus, the notion that we should embrace a color-blind admissions process – in the wake of, for example, segregation and Jim Crow – is untenable and unfair.

Second, opponents may assert the argument that the Court’s attempt to ensure a holistic and individualized admissions process is unrealistic because universities’ contention that race is only one factor in the admissions process is disingenuous. Put simply, in many instances, race is the sole determining factor in whether an applicant is admitted.  To assess this argument, scholars would need to examine the grade-point averages and SAT (or ACT) scores of applicants admitted under universities’ affirmative action programs. If the scores of admitted minority applicants were substantially (not marginally) lower than those of non-minority applicants, one could reasonably argue that race was a predominant, if not determinative, factor. If that were indeed the case, then scholars must examine the percentage of minority applicants that were admitted with lower grade point averages and SAT (or ACT) scores compared to non-minority applicants with similar scores. If such analysis revealed a substantial disparity in the percentage of admitted minority and non-minority applicants, one could make a prima facie case that race was the deciding factor. That would lead to the conclusion that the Court in Bakker refused to countenance: the excessive emphasis on race in the admissions process.

Third, some scholars have argued that affirmative action policies harm minority applicants by admitting such applicants to colleges where they will struggle to succeed academically.[19] Without detailed admissions data from universities and data regarding the academic performance and employment outcomes of minority students, this argument is difficult to assess.

What is certain, however, is that the Court’s decisions, particularly after Fisher, has failed to delineate a workable line between policies that will survive constitutional scrutiny and those that will not. As a result, the law concerning affirmative action remains unstable and unpredictable, resulting in a case-by-case approach that provides insufficient guidance to university administrators. That should change.

III.    Conclusion – The Future of Affirmative Action

Affirmative action policies at universities are likely here to stay for the foreseeable future, and for good reason. Diversity enhances the educational experience for all students and provides underrepresented groups with access to educational opportunities [20]that, for too long, have been wrongfully denied. But affirmative action alone is not sufficient. And there is some merit, based on relevant data, that affirmative action hurts the very groups that there are designed to benefit.[21]

Rather, legislators, policymakers, and scholars should address the root cause of the problem, namely, educational inequality at the grade and high school levels, which results from poverty and affects children of all races. Indeed, after the Supreme Court’s decision in San Antonio School District v. Rodriguez, where the Court held that a school district’s financing system could be based on local property taxes, educational inequality was an inevitable result.  Specifically, the quality of education (and educational resources) in grade and high schools differed substantially, if not alarmingly, depending on whether a community was affluent or poor. For example, the difference between an education at Beverly Hills High School and an education at Crenshaw High School in Los Angeles was like the difference between night and day.

It should come as no surprise, therefore, that students at Crenshaw High School, or other high schools in impoverished communities, lacked many educational resources, such as access to academic support services, extracurricular activities, and SAT or ACT tutoring services. It should also come as no surprise that the standardized test scores of applicants from impoverished communities, which are disproportionately minority, are substantially lower than those of students in affluent communities, which are disproportionately white.[22]  The upshot is that students from impoverished communities, regardless of race, are less prepared for the rigors of university academics than their more affluent peers.

Consequently, although affirmative action policies rightfully increase the diversity of student bodies and enhance access to education, they do not address the fact that students from disadvantaged or marginalized backgrounds often perform poorly in college, have higher dropout rates, and substandard employment outcomes.[23]

Given this reality, affirmative action policies, however well-intentioned, and as Sanders’ mismatch theory suggests, are not sufficient. Rather, universities should adopt and implement mandatory ‘bridge’ programs and mentorship programs for all students, regardless of race, who reside in poor communities and whose standardized test scores and grade point averages suggest that they may struggle to succeed academically. The goal would be to provide students from non-traditional or marginalized backgrounds with the preparation and support necessary to maximize their likelihood of achieving success in college, employment, and life. Such programs could occur in the summer before a student’s freshman year, be four or eight weeks in length, and focus on skills such as writing, analytical thinking skills, and life skills to facilitate the adjustment to university life. Additionally, each student who is considered “at risk” should be provided with faculty and student mentors who provide support to each student throughout the entirety of their undergraduate career.

Put simply, the debate regarding affirmative action misses the point. To truly benefit the groups that affirmative action targets, universities should focus on race and poverty as the driving forces undergirding educational inequality. In so doing, universities should implement programs that help to bridge the preparation and achievement gap, and that maximize the likelihood that students from traditionally disadvantaged backgrounds will succeed academically and, ultimately, prosper economically.

***

*This article was co-authored with Daria Brown, an undergraduate student and aspiring law student at Georgia College and State University in Milledgeville, Georgia. Daria edited and drafted a portion of the article, and provided helpful insights regarding affirmative action policy.

[1] See Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, available at: https://admissionscase.harvard.edu/files/adm-case/files/2019-10-30_dkt_672_findings_of_fact_and_conclusions_of_law.pdf

[2] See id.

[3] Harvard Gazette, Judge Upholds Harvard’s Admissions Policy (Oct. 1, 2019), available at: https://news.harvard.edu/gazette/story/2020/09/appeals-court-panel-hears-oral-arguments-in-harvard-admissions-case/

[4] See id.

[5] Id.

[6] 438 U.S. 265 (1978).

[7] Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, available at: https://admissionscase.harvard.edu/files/adm-case/files/2019-10-30_dkt_672_findings_of_fact_and_conclusions_of_law.pdf.

[8] See Bakke, 438 U.S. 265.

[9] 539 U.S. 244 (2003).

[10] 539 U.S. 306.

[11]  See id.

[12] 136 S. Ct. 2198 (2016).

[13] See id.

[14] See id.

[15] See id.

[16] See id.

[17] See id.

[18] See Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, available at: https://admissionscase.harvard.edu/files/adm-case/files/2019-10-30_dkt_672_findings_of_fact_and_conclusions_of_law.pdf.

[19] See, e.g., Richard Sander and Stuart Taylor, Jr., Mismatch: How Affirmative Action Hurts Students It’s Intended to Help, and Why Universities Won’t Admit It (Basic Books, 2012).

[20] 411 U.S. 1 (1973).

[21] See Richard Sander and Stuart Taylor, Jr., The Painful Truth About Affirmative Action: Why Racial Preferences in College Admissions Hurt Minority Students – and Shroud the Education System in Dishonesty, (Oct. 2, 2012), available at: https://www.theatlantic.com/national/archive/2012/10/the-painful-truth-about-affirmative-action/263122/; Elizabeth Slattery, How Affirmative Action At Colleges Helps Minority Students (Dec. 2, 2015), available at: https://www.heritage.org/courts/commentary/how-affirmative-action-colleges-hurts-minority-students

[22]  See Abigail Hess, Rich Students Get Better SAT Scores – Here’s Why (Oct. 3, 2019), available at:  https://www.cnbc.com/2019/10/03/rich-students-get-better-sat-scores-heres-why.html

[23] See Slattery, supra note 21.

SCOTUS will hear October arguments by telephone

As the first Monday in October approaches, one thing is now settled: the New Normal will, for now, remain the New Normal. The Supreme Court announced today that it will hear oral arguments scheduled for the October session via telephone conference. This decision was, as the Court's Public Information Office says, prompted by public health guidance. But there's a certain symmetry to it: the ten matters set for the October session were originally scheduled to be argued last spring. And now they will, according to the Court, be argued under the same format as last spring's post-COVID arguments. The justices and counsel will participate remotes. And the Court will adhere to the process it implemented in May: the justices will ask questions seratim in order of seniority. It also will continue to provide a live audio feed to a media pool.

Regardless of whether one loves or hates SCOTUS's format for telephonic argument—and, as Amy Howe explains, reaction has been decidedly mixed—two things are beyond question: the dynamic is different in interesting and potentially relevatory ways. And the live feed has made oral arguments in high profile cases more accessible to the public. As I discussed here last May, telephonic arguments have prompted some interesting and insightful scholarly reactions. That has continued: in June, the New York Times published this piece by Professors Leah Litman and Tonja Jacobi, and Adam Feldman of EmpiricalSCOTUS and SCOTUSblog drilled deeply into the data here and here. We will have ten more sets of argument through which to study the stilted, Chief-managed thing that is SCOTUS by phone. And those stilted exchanges will be more immediately accessible to and more immediately access by the public. As the Reporters Committee for Freedom of the Press explained in a letter to the Court today, the highest profile cases heard last May drew about 50,000 live listeners and nearly 500,000 same-day streamers. These numbers beat the usual by ... I mean, come on: 50,000 and 500,000 folks, respectively. It would be swell to see the Court continue to stream audio of oral arguments live. Even when it doesn't feature the flushing of an Article III commode. 

Guest Post: Casting our rod. Announcing the Lady Justice: Women of the Court Podcast

We are thrilled to feature this guest post by Justice Rhonda Wood of the Arkansas Supreme Court

I (Justice Rhonda Wood[1], Arkansas Supreme Court) am perhaps a little too excited about the new podcast starting on Constitution Day with three of my friends, Justice Eva Guzman[2] (Supreme Court of Texas), Justice Beth Walker[3] (West Virginia Supreme Court of Appeals), and Chief Justice Bridget McCormack[4] (Michigan Supreme Court).  These women are so smart and kind, and I am honored to work with them.

While on the bench all of us have been adamant supporters of civic and legal education. Several of us have worked together on these types of projects. However, the first time the four of us collectively came together was this Spring. Early in the pandemic, educators needed on-line materials and I asked the others if they would record a Zoom video-interview about the judiciary with my granddaughter Blakeley.[5] We did it, and it spurred our desire to keep working on more civic education projects together. You have heard the saying that its better to give than to receive. That is how we feel. The four of us find that when we do educational outreach, we grow personally and professionally.

All of us believe judges have a role in furthering judicial education. We are all on twitter (#appellatetwitter) and find value in using social media to break barriers. So often, the public perceives judges as distant, dare I say stodgy, and the judge’s role in government is misunderstood. We plan to change this.

Through our new Lady Justice: Women of the Court Podcast, we believe we have found a way to reach the public directly and offer insight into state supreme courts, the judiciary as whole, and our role as justices. I think the podcast is one that lawyers will value, but the general public will understand. I also hope that, because we are four women, we can encourage young girls and women to consider the legal profession. Before now, every adjective that describes us: women, state court, and justices, was missing from the podcast arena.

In our first episode, released on Constitution Day, we discuss and compare our various state constitutions. To be honest, we were so fascinated with each other’s constitutions that we secretly wanted to chat much longer than would be reasonable for a podcast.  

In our second episode, we will let our listeners get to know us better and discuss our backgrounds and experiences reaching our current positions. I think after this episode, you will realize why I think so highly of my fellow justices. We also have plans for an upcoming Appellate Court 101 episode. On each episode, one of the justices will lead the discussion. We would also love to hear ideas for episodes from our listeners. The podcast is available on iTunes, Spotify, Stitcher, Podbean, and in other podcasting apps. It can also be found at: www.arcourts.gov/ladyjustice

 

[1] https://www.arcourts.gov/courts/supreme-court/justices/justice-rhonda-wood-position-7

[2] http://www.txcourts.gov/supreme/about-the-court/justices/justice-eva-guzman.aspx

[3] http://www.courtswv.gov/supreme-court/current-justices/justice-walker.html

[4] https://courts.michigan.gov/Courts/MichiganSupremeCourt/justices/Pages/Chief-Justice-Bridget-Mary-McCormack.aspx

[5] https://www.youtube.com/watch?v=NAuJ9NfpPa8

Common Word Mix-ups!

Even the best legal writers have that one word (or two) they always misuse. Which is it for you? It's probably not the they/they're/their debacle. Most of us have that one down. But for whatever reason, several others pop up all the time in briefs, motions, and other documents. No matter who wrote them. 

The best way I've found to cut down on these is to set aside some time to review your writing and keep track of your common pitfalls—then remind yourself to check for them during your editing stage. It can be as simple as writing down a few of them on a post-it. You can easily start retraining your brain to use the wright words (see what I did there?) with a little bit of effort. 

Here are some mishaps I see all the time from lawyers and law students alike: 

Phrasal verbs trip many folks up. People forget that there's often a different form for words used as a verb instead of a noun or adjective.

Take "setup" and "login." I see these misused all the time. 

When you're using them as a noun or adjective, these are a single word: 

"I love your computer setup." 

"The setup time is great." 

"I need to get my login from IT." 

"Do you have your login information?" 

When you're using these as a verb, they become a phrasal verb and need to separate: 

"I need to set up my computer." 

"I need to log in to the firm's platform first." 

Another doozy: Words that have started to take on new meanings in popular usage but haven't quite transitioned yet for many audiences. 

First, some background. You'll hear grammar police correcting folks for misusing words like utilize: "Don't you know utilize means to use something different from how it was intended?" And look,  I'm not a fan of utilize ("use" is shorter and simpler). But we are probably at the point that using utilize instead of use isn't a grammar mistake. Because utilize has taken on a broader meaning for the vast majority of readers.

And so like all words, it's meaning has evolved. 

The meaning of words is always in flux. Before I was a lawyer and law professor, I studied linguistics. And as cool as language is, for legal writers, its purpose is communication and persuasion. And if your audience understands what you're communicating because a word has firmly taken on a new common meaning, in my view, the choice becomes one of style, not correctness. I will leave the prescriptivism vs. descriptivism debate to others. But I hope we can all agree that as legal writers, we write for function, not theory. 

All that said, if a word hasn't firmly taken on the meaning you intend, tread with care. Because you need to connect with readers and build credibility. And if they judge you for what they perceive as a misused word, you should probably avoid it. 

This is most common with word meanings that haven't yet crossed that threshold into common usage. Here are some examples: 

Adverse means detrimental—not averse. So "I am adverse to that" will trip up plenty of readers, even if millions of people use the word to mean "I dislike it" or "I'm against it." 

Begs the question means to assume what the statement should be proving—it does not mean generally raising a question. 

Bemused means bewildered, not slightly amused. 

Criteria is the plural; criterion the singular.

Dichotomy refers to two alternatively that are mutually exclusive, not just a difference or set of two.  

Enormity means extreme evil. Yup, I misuse this one all the time, too. 

Fortuitous means coincidental not lucky or fortunute. 

Hone means to sharpen not to home in on. This is another I always have to catch myself on. 

Hung means suspended, not hanged (a way of killing). 

Literally means in fact (not the very different figuratively). 

Nonplussed means stunned—not bored. 

Practicable means that something is easy to put into practice or make a practice—just just practical. 

Proscribe means to condemn, not to prescribe. 

Reticent means shy, not merely reluctant. 

Simplistic means naive or too simple—not just simple. 

Untenable means indefensible and not unbearable.

Many of these flux words are hiding in our writing. And I will leave it to you to decide when you're comfortable departing from the old and embracing a new, common usage. Just know that, if you're on the fence, your readers might be too. So it may be safer to go with the traditional meaning until it's obvious you're in the clear. 

How about some words that have firmly changed their usage and are safe to use now, even for purposes other than they were originally intended? Data and agenda. Both of these started out as plural count nouns. So before, you would need to say: "This datum supports the argument, but many of the other data refute it." These days, it's all data. I've seen countless lawyers, judges, and other legal writers use it both ways. 

Another example that is probably over the acceptable threshold: Verbal. Technically, this word means to put into language form, not oral. But we've probably all accepted the word as meaning oral or spoken by now. 

 

Grammar School Passive Voice Rules Still Matter

Every year, I ask my students to read a variety of articles on the use of language, especially passive voice.  For the last few years, I’ve included a 2015 New York Times opinion piece on how Texas history books use passive voice to hide the acts of pre-Civil War enslavers and make slavery sound less horrific than it was.  See Ellen Bresler Rockmore, How Texas Teaches History, New York Times (Oct. 21, 2015); see also Dana Goldstein, American history textbooks can differ across the country, in ways that are shaded by partisan politics, New York Times (Jan. 12, 2020)(explaining Texas has started to improve its discussion of enslaved people in its history books).

This year, several students assumed the Texas history article was new, given its timeliness for our national conversations on bias and race, and I realized the author’s points on passive voice really are timeless.  Legal Writing teachers like me suggest removing passive voice because it muddies meaning and takes more words to say less.  Passive voice either removes the actor from the sentence entirely, like “the car was driven,” or obscures the action unnecessarily, such as “the car was driven by Al.”  But as we try to be ever more conscious of bias and strive for neutral language, we should also remove passive for substantive reasons. 

As Rockmore explains, we stress good writing for clarity.  She notes:  “Whenever possible, use human subjects, not abstract nouns; use active verbs, not passive” and do not “write, ‘Torture was used,’ because that sentence obscures who was torturing whom.”  Rockmore, How Texas Teaches History.  Yet in the Texas textbooks she analyzed, the editors “employ all the principles of good, strong, clear writing when talking about the ‘upside’ of slavery,” but “when writing about the brutality of slavery, the writers use all the tricks of obfuscation.”  Id.  For example, “Some slaves reported that their masters treated them kindly,” but “Whippings, brandings, and even worse torture were all part of American slavery.” Id.  Rockmore asks, “where are the [enslavers] who were actually doing the whipping and branding and torturing? And where are the slaves who were whipped, branded and tortured? They are nowhere to be found in the sentence.”  Id.  As one more example, Rockmore notes how the sentence “Families were often broken apart when a family member was sold to another owner,” hides the enslavers.  Id.

As you read these sentences, hopefully you rewrote them in your mind to include the enslavers (without using the word, “owners,” please).  We should all do the same with our own appellate documents, even when our use of passive is less insidious.  We’ll save words for more content, and we’ll communicate more clearly.

Unless you want to hide the actor for positive reasons, like in some criminal defense situations, listen to your grammar school (and Legal Writing) teachers, and avoid passive voice.  

Appellate Advocacy Blog Weekly Roundup Friday, September 11, 2020

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

US Supreme Court Opinions and News

As the Court prepares to begin the 2020-2021 term next month, various groups and scholars are previewing the major cases expected to be heard:

• Georgetown Law’s Supreme Court Institute will hold its annual press briefing on the major cases to be heard. The event will be held remotely on September 22 and will be available to the public via livestream on the Georgetown Law Facebook page.
  
  
• The Pacific Legal Foundation and National Review Institute will preview high-profile cases. The event will be held via webinar on October 2, register here.
  
  
• Amy Howe of Howe on the Court, is looking at the interesting petitions set to be reviewed during the September 29 “long conference” where the Court meets privately to consider pending petitions. The first of the series is here.

Federal Appellate Court Opinions and News

The Eleventh Circuit overturned a lower court ruling concerning the 2018 Florida Constitutional amendment that granted the right to vote to former felons who have completed their sentences. The dispute came down to the definition of what it meant to complete the sentence. The Eleventh circuit upheld the interpretation of the law that includes fines, fees, and restitution as part of the sentence. The lower court had held that that interpretation constituted an unconstitutional “poll tax.” This ruling rejected that characterization and determined that fines, fees, and restitution are “penalties, not taxes,” holding that “[b]ecause court costs and fees are legitimate parts of a criminal sentence — that is, part of the debt to society that felons must pay for their crimes — there is no basis to regard them as a tax.” See the ruling and reports from Bloomberg News, CNN,  The Orlando Sentinel, and Reuters.

Other

While many courts continue to hold proceedings remotely, some courts are resuming in-person appearances; safety is a high priority.  See reports from NPR looking at New York City and from The Associated Press covering New Hampshire and a release from the Administrative Office of the US Courts. 

Requests for Extension of Time on Appeal and the Standards of Appellate Practice

On January 1st, 2020, while on vacation with my family, I was pushed by a passing speadboat into a concealed piece of broken pipe while snorkeling, resulting in a quick trip to the emergency room and 18 stitches. At least I got my bad luck out of the way, I consoled myself, and the rest of 2020 would be better. Right?

I thought about that naivete while I was writing a motion for extension of time in an appeal yesterday. I sought the extension because, the week the clerk certified the record to the court, I was caring for my mother and eventually admitting her to the hospital. The next week, one of my partners at work tested positive for Covid-19, and we had to unexpectedly extend and tighten our work-from-home rules. This week, my wife is going to have surgery. And while I am trying to care for everyone and help my children with school, while keeping up with work, I am hobbling around on a broken foot that is not healing as it should. 

Fortunately, the court I am preparing this appeal in has adopted a code of appellate practice, in this case, the Texas Standards for Appellate Conduct. Adopted in 1999, Texas was the first jurisdiction to adopt such standards specifically for its appellate practitioners. Since then, several courts have adopted similar standards and expect those practicing in the courts to follow them.

In many ways, these standards codify a practice of civility that has traditionally been followed by those who practice regularly in appellate courts. And while the standards are not mandatory, and cannot provide a basis for sanctions, following them is expected and deviation is strongly disfavored.

Being gracious with requested extensions is addressed twice in the standards. First, Standard 10 of a "Lawyer's Duties to Clients," requires that "Counsel will advise their clients that counsel reserves the right to grant accommodations to opposing counsel in matters that do not adversely affect the client's lawful objectives. A client has no right to instruct a lawyer to refuse reasonable requests made by other counsel." And again, Standard 2 of a "Lawyers' Duties to Lawyers," states that "Counsel will not unreasonably withhold consent to a reasonable request for cooperation or scheduling accommodation by opposing counsel."

These two rules are based on different stated principles. First, that the lawyer's duties to the client must be placed in the context of the system in which they work, which also involves duties owed to the courts and opposing counsel. And second, that only if opposing counsel treat each other with dignity and respect can the effectiveness and integrity of the system be preserved.

Some refer to these rules of comity as part of "the golden rule" You should treat opposing counsel as you would wish to be treated. By including this instruction in the section referencing client duties, and by requiring that the standards be given to clients, the rule is placed in the proper context and explained before any accommodations are sought.

If these general principles are not enough to convince you to act fairly with opposing counsel, then the potential loss of credibility should. Courts do not appreciate it when opposing counsel oppose reasonable requests for extension of time. As the Ninth Circuit explained, "Such uncompromising behavior is not only inconsistent with general principles of professional conduct, but also undermines the truth-seeking function of our adversarial system." Ahanchian v. Xenon Pictures, Inc., 624 F.3d 1253, 1263 (9th Cir. 2010).

If there is some reasonable basis for the extension, then it will likely be granted. Opposing such a request not only makes you look unreasonable, but can create a stigma for you to carry around the next time you appear in that court.

Coronavirus, murder hornets, ransomware attacks, fires, rioting, and whatever comes next have already made this an extraordinarily difficult year. Indeed, the practice of law is difficult even in the best of times. A bit of grace is always appreciated, even in good years, and is doubly appreciated now. Not just by opposing counsel, but also by the Courts.

(Image Credit: Andreas Praefcke, Wikipedia U. "Diogenes in Search of an Honest Man." Ancient History Encyclopedia. Last modified August 06, 2014. https://www.ancient.eu/image/2908)

 

 

Jamison v. McClendon -- A Missed Opportunity

In Jamison v. McLendon, District Judge Carlton Reeves drafted a powerfully written and compelling opinion that highlighted a law enforcement officer’s egregious – and unconstitutional – treatment of a suspect in violation of the Fourth Amendment.[1]  

Then, Judge Reeves let the officer off the hook.

Specifically, Judge Reeves held that the qualified immunity doctrine shielded the officer from liability. That conclusion was wrong.

By way of background, in Jamison, a law enforcement officer stopped the plaintiff (Jamison) for an alleged license plate tag violation.[2] The officer believed that Jamison had illegal items in his car, although this belief was not based on any facts whatsoever.[3] Nevertheless, and based on a mere hunch, the officer repeatedly pressured Jamison for almost two hours to consent to a search of his car, including pleading with Jamison five times before he relented and permitted the search.[4] To make matters worse, before obtaining consent, the officer allegedly “placed his hand into the car … patted the inside of the passenger door,” and “moved his arm further into the car … while patting it with his hand.”[5]

Jamison sued the officer and alleged, among other things, that the officer’s conduct violated the Fourth Amendment. Judge Reeves ruled, albeit reluctantly, that the qualified immunity doctrine shielded the officer from liability. Specifically, and despite highlighting the officer’s egregious conduct, which certainly violated the Fourth Amendment, Judge Reeves held that the officer’s conduct did not violate “clearly established law” and thus applied the qualified immunity doctrine. In so doing, Judge Reeves vociferously criticized the qualified immunity doctrine (and relevant precedent), arguing that it had become tantamount to absolute immunity. Ironically, Judge Reeves’s decision afforded the qualified immunity doctrine precisely the absolutism he eschewed – and for no good reason.

To be clear, Judge Reeves is an outstanding writer and his opinion is a textbook example of how to draft a persuasive legal narrative. Law students – and lawyers – would benefit from reading Judge Reeves’s opinion.

The praise afforded to Judge Reeves’s opinion, however, should stop there.  Specifically, the qualified immunity doctrine did not require Judge Reeves to reach this most unjust result because the officer’s conduct unquestionably violated Jamison’s Fourth Amendment rights. As Professor Orin Kerr explained, “the Fourth Amendment law of searching a car is a clearly established bright-line rule,” and “[b]ecause it's a bright-line rule, the violation becomes obvious even if there is no factually identical or closely similar case.”[6] Professor Kerr further stated as follows:

My sense … is that McClendon did violate clearly established law. Sticking his arm inside the car and patting down the inside of the door was obviously a search. It was governed by the rule, long recognized in the Fifth Circuit as clearly-established law, that the officer needed some justification for that search—probable cause, or a warrant, or a safety concern, or a special needs concern.  But there's no plausible argument I am aware of that any of those justifications could apply.  To use the Fifth Circuit's language in Mack, this was ‘a random search of a vehicle where none of the above justifications apply.’[7]

For these reasons, if Judge Reeves felt so appalled at the officer’s behavior – as any reasonable person would be – he should have held that the qualified immunity doctrine did not apply.

More broadly, Judge Reeves’s criticism of the qualified immunity doctrine is questionable. The doctrine is not necessarily the problem; rather, the courts’ interpretation of that doctrine, which has, as a practical matter, created near-absolute immunity for law enforcement officers, is where the problem lies. But in Jamison, the relevant precedent did not compel the result Judge Reeves reached because, as Professor Kerr stated, the officer’s conduct “did violate clearly established law.”[8]  Indeed, the opinion is quite ironic. On one hand, Judge Reeves criticized the qualified immunity doctrine for, among other things, being tantamount to absolute immunity. On the other hand, Judge Reeves applied the doctrine in a manner that arguably afforded the very absolute immunity he eschewed, despite conduct by a law enforcement officer that unquestionably violated the suspect’s Fourth Amendment rights – and clearly established law.  The idea that Judge Reeves’s hands were tied, and that he was forced to reach a conclusion that so profoundly contravened his beliefs, is unpersuasive. The decision was the legal equivalent of a self-fulfilling prophecy. After all, if the conduct Judge Reeves criticized so vociferously was not, in his view, sufficient to invoke the qualified immunity doctrine, what is?  

Thus, although Judge Reeves’s opinion should be praised as an example of outstanding legal writing, it should be criticized for the reasoning upon which it was predicated. As a practical matter, Judge Reeves’s decision deprived an individual, who suffered an egregious violation of his Fourth Amendment rights, of a well-deserved legal remedy. As Professor Kerr stated, “[i]t seems to me that Judge Reeves likely was wrong, and that the officer was not entitled to qualified immunity.”[9]

Ultimately, as the saying goes, “be the change you want to see in the world.” Judge Reeves stated in his opinion, “[l]et us waste no time in righting this wrong.”[10] But then Judge Reeves did the very thing he cautioned against by refusing to right a constitutional wrong. 

Judge Reeves – and courts across the country – should interpret the doctrine to mean what it says – immunity is qualified, not absolute.

 

[1] Jamison v. McLendon, 2020 WL 4497723 (S.D. Miss. Aug. 4, 2020) (the opinion is also available at: http://cdn.cnn.com/cnn/2020/images/08/04/jamison-v-mcclendon.pdf)

[2] See Orin Kerr, Did Judge Reeves Reach the Correct Result in Jamison v. McClendon? (Aug. 6, 2020), available at: https://reason.com/2020/08/06/did-judge-reeves-reach-the-correct-result-in-jamison-v-mcclendon/?amp

[3] See id.

[4] See id.

[5] Id.

[6] Id.

[7] Id. (internal citation omitted) (emphasis in original).

[8] Id. (emphasis in original).

[9] Id.

[10] Jamison v. McLendon, 2020 WL 4497723, at *29.