Appellate Advocacy Blog

Qualifying for Qualifying Immunity

Last week, in two per curiam opinions, the Supreme Court reversed decisions of the Ninth and Tenth Circuits by holding that the police officers accused of exercising excessive force were entitled to qualified immunity. In both decisions, the Court found that no clearly established precedent put the officers on notice that their actions violated the suspect’s rights. Many commentators described the decisions as a blow to police reform and asserted that the Court displayed a tin ear about roiling concerns about racial justice and criticisms of qualified immunity.

That dissatisfaction was poignantly expressed at the end of summer by U.S. district court judge Carlton Reeves where he reluctantly applied qualified immunity to dismiss an action against a Mississippi police officer, who pulled over a Mercedes driven by a black man on the assumption by the officer that the driver had to be involved with drugs to be operating the luxury car. He detained the man for nearly two hours while the car was disassembled (and then left that way) in a fruitless search for contraband. Through simple declarative sentences recalling other similarly wrongheaded incidents,[1] many of which resulted in tragic deaths, Judge Reeves made clear how qualified immunity has served as a “shield” for police abuse and misconduct, even as he followed controlling precedent.

To be sure, the judge-made doctrine of qualified immunity has its most urgent and controversial application in the context of police actions. Even critics of qualified immunity acknowledge that some split-second decisions do not allow the type of reflection necessary to understand why certain conduct crosses a line. Yet, qualified immunity applies not only to pressing life or death situations, but also to circumstances where deliberation is possible and where the offender is not a police officer, but people knowledgeable in the law. Two cases in which I have been involved demonstrate the uneven application of qualified immunity and why the doctrine is overdue for an overhaul.

In Stamps v. Town of Framingham,[2] the First Circuit denied qualified immunity to a police officer, who as a member of a SWAT team, was asked to watch an elderly black man while other members of the team searched the man’s apartment for a stepson wanted in connection with selling crack. SWAT had been briefed that Eurie Stamps, Sr., a 68-year-old retired Metro worker, was no threat. Shortly after midnight, the team executed a raid by throwing a flashbang grenade through the kitchen window as others battered down the front door. When they met Stamps, he complied with an order to get down on the floor on his stomach with his hands and feet in the air. The officer asked to watch Stamps as the search continued, pointed his assault rifle at Stamps’s head with the safety off and his finger on the trigger. Then, the officer unintentionally pulled the trigger, killing Stamps. The stepson was not in the apartment.

 Framingham defended by claiming that qualified immunity should require dismissal of the subsequent lawsuit because it was not “clearly established” that the unintentional discharge of the rifle violated the decedent’s rights. The First Circuit made short work of the claim. Pointing the rifle at a person’s head when he posed no threat and was suspected of no criminal act was the intentional act that put in motion the weapon’s discharge and that type of recklessness was comparable to past precedents, making it clearly established and putting police officers on notice. The “clearly established” requirement was satisfied, largely by reference to federal appellate decisions in other circuits.

 However, in Echols v. Lawton,[3] the “clearly-established” requirement defeated the lawsuit. In Echols, the plaintiff had served seven years in prison for a crime he did not commit and that DNA evidence, examined as a result of work by the Innocence Project, finally exonerated him. Echols lost his family, his military career, and his health as a result of his long, imprisonment. He was released, after the State entered a nolle prosequi on the charges. A bill was introduced in the legislature to compensate him, and the Georgia Claims Advisory Board voted unanimously twice to support the bill. However, the bill was derailed when the prosecutor sent letters to key legislators, asserting the conviction was proper and, falsely, that Echols remained under indictment for the original charges of rape and kidnapping. The bill then died.

Echols sued the prosecutor for violations of his First and Fourteenth Amendment rights. The Eleventh Circuit, while finding the prosecutor’s actions, undertaken with deliberation, highly detestable and likely libel per se, nonetheless found that the violations were not “clearly established” in that circuit. Even if other circuits would have found no qualified immunity based on existing precedent, the Eleventh Circuit requires an on-point in-circuit precedent before qualified immunity can be denied. Echols now serves as a precedent for a future case, clearly establishing that a prosecutor cannot misrepresent to other government officials the case’s status. It is now “clearly established” that the same misconduct would not be immunized in the future. It did not matter that rules of ethics and rules specifically applicable to prosecutors plainly prohibited what occurred here; the court required a precedential decision from within the circuit, something that other circuits do not. Oddly, Supreme Court precedent does not even require a prior ruling on the issue.

Interestingly, the panel included a judge sitting by designation from the Sixth Circuit. He concurred in the decision, only because of the Eleventh Circuit requirement of a prior in-circuit decision, stating that his circuit would have denied qualified immunity.

The many decisions that provide qualified immunity insensibly to a host of situations where the violation is patent and the different standards applied by the circuits at this late date in the doctrine’s existence calls for its reexamination. Reconsideration of the doctrine is coming – sooner is much better than later.

 

[1] See Jameson v. McClendon, No. 3:16-cv-595, https://www.documentcloud.org/documents/7013933-Jamison-v-McClendon.html.

[2] Stamps v. Town of Framingham, 813 F.3d 27, 29 (1st Cir. 2016).

[3] Echols v. Lawton, 913 F.3d 1313 (11th Cir.), cert denied, 139 S.Ct. 2678 (2019).

Counterpoint: Use (cleaned up) or something like it

The (cleaned up) debate continues apace. Tessa has articulated well one side of the debate, so I thought I'd quickly respond to her points.

1. Judges can do it, just not attorneys. Let's recall that it was an appellate attorney--Jack Metzler--who came up with it. So if only judges are free to do this sort of innovation, then there will be less--if any--helpful innovation in citations. I started using it a few years ago after a member of our court of appeals used it in an opinion. I see innovations like this being a two-sided conversation with the bench. Of course, you have to know your bench--if it's going to irk the judge(s) you appear in front of, then using it is not worth the distraction that could detract from your arguments.
2. The citations matter. I wholeheartedly agree that citations belong in the body, not footnotes, because the legal reader wants to know at a glance the authority supporting your assertions. But (cleaned up) doesn't have to sacrifice that. Sometimes the source of a quote is important, sometimes not. If it is, cite to the original case--no need to clean up. If it's a fairly mundane proposition, but you like the quote, then use it and clean it up. If the line of authority is important, then don't use (cleaned up) that time .
3. It's too informal. I know a number of attorneys who think that (cleaned up) sounds too informal for a court document. Some members of our court of appeals apparently feel this way, but it doesn't stop them in principle--they just use (quotation simplified) instead.
4. It means more trouble for the court and clerks to look up authority. No judge is going to just take an attorney's word for what a case says, regardless of the parenthetical--they and their clerks will be reading the cases anyway.
5. It's deceptive. Whether something is deceptive depends on the user. Just because I can quote Exodus 20:14 as "Thou shalt . . . commit adultery" doesn't make use of ellipses inherently deceptive. Like any tool, (cleaned up) should be used with judgment and skill, but it's just that--a tool.
6. It's overused. I agree that some attorneys can get carried away with it, but again, I don't see that as an argument against using it well. A lot of people drink too much too, but that's not a reason to stop everyone else from drinking. Those attorneys have issues that go beyond their use of a citation signal.

(Clean[] Up) Your House, Your Car, Your Life--Not Your Citations

Unpopular opinion--Lawyers should not use (cleaned up) citations in their briefs. 

Two years ago Charles Oldfield blogged on this very blog about (cleaned up) citations. As Charlie explained it, in legal writing we often "alter or omit inconsequential parts of the quotation to make the quotation more readable."  All of those alterations and omissions can make a quote difficult to read between the ellipses, the [sic], and the brackets.  The solution, as proposed by Jack Metzler of @SCOTUSPlaces, is to omit these changes and use a parenthetical (cleaned up) to signal to our readers that we have not indicated those changes. 

Metzler published an essay in The Journal of Appellate Practice and Process on (cleaned up) citations a few years ago. Apparently, Bryan Garner has endorsed the practice too--but he also supports the dreaded practice of footnoting citations. The most prominent (cleaned up) user is Justice Thomas, who included it in a February 25 opinion. According to information that Metzler gave the ABA Journal in March 2021, (cleaned up) has appeared in 5000 judicial opinions.

So, now for my unpopular opinion--Judges can use (cleaned up) all they want.  But attorneys should not unless the court rules expressly allow for it.

I have no issue with Justice Thomas or any other judge using (cleaned up). I consider that a benefit of being on the bench.  The truth is that judicial opinions are rarely models of exemplary citation form. And, to be honest, they don't have to be. If the briefing was done well, there shouldn't be many sources in the opinion that come as a surprise to the advocates. Attorneys, on the other hand, write to inform the court about the issues and the law. Citations and explanations of caselaw are a key part of that responsibility. Perhaps one of the best explanations of the role of citations that I have read came from Eugene Volokh.  He wrote:

I remember asking a federal appellate judge once why courts don't shift more to the citations-in-footnotes style, which I had thought looked cleaner and made it easier to follow the flow of the argument. He laughed, and said something like, "You view citations to authority as support for the argument. I view them as often the most important part of the argument."

If judges do view citations and quotations to caselaw as "the most important part of the argument," then they might be wary of efforts to clean those sources up.  As I explained in this blog post, one of judges' most common complaints about briefs is that attorneys misstate the law and record. That post, in fact, discussed a Ninth Circuit opinion where the court chastised attorneys for misrepresenting precedent by altering quotations from cases.

If I were a judge, a brief full of (cleaned up) citations would just annoy me (and my clerks), since we would have to carefully check each cite. Sure, one would hope that the opposing party would help out, but you never know.  And, while I am aware that misrepresenting quotations isn't the spirit of the (cleaned up) citation, I am also aware that regardless of its purpose it would be misused as a citation device.

So, my advice for attorneys (and students) is to avoid (cleaned up) citations for the present. If court rules eventually adopt the practice, then you can use it correctly (and hopefully sparingly).

 

Why We Should Use Proper Apostrophes, Even on Facebook

Like many, I use “Weird Al” Yankovic’s “Word Crimes” in my legal writing classes.   See    https://www.youtube.com/watch?v=8Gv0H-vPoDc.  In the past few years, I have added a note about not calling each other “morons” when I play the video.  Nonetheless, the song and lyrics still have great examples about why we need Oxford commas, correct apostrophes, and other basic punctuation, all to a catchy tune.  Often, I pair this discussion with an analysis of the 2018 Maine dairy delivery drivers’ dispute about a missing comma and overtime pay.  See https://www.cnn.com/2017/03/15/health/oxford-comma-maine-court-case-trnd/index.html.  I’ve blogged about the Maine case before, as it leads to great teaching discussions.  See also Kelly Gurnett, A Win for the Oxford Comma: This Lawsuit Shows Why It’s So Important (updated Nov. 2, 2020), https://thewritelife.com/is-the-oxford-comma-necessary/ (“For anyone who’s ever wondered what all the fuss is about over Oxford commas, the circuit judge’s [dairy drivers’ pay] opinion says it all: ‘For want of a comma, we have this case.’”).

This month, the District Court of New South Wales in Australia gave us another ruling on punctuation, this time involving defamation and a Facebook post.  See https://www.theguardian.com/law/2021/oct/10/missing-apostrophe-in-facebook-post-lands-nsw-real-estate-agent-in-legal-hot-water.  As New York Times writer Livia Albeck-Ripka explained in her article on the case, “a missing apostrophe in a Facebook post could cost a real estate agent in Australia tens of thousands of dollars after a court ruled a defamation case against him could proceed.”  https://www.nytimes.com/2021/10/11/world/australia/facebook-post-missing-apostrophe-defamation.html#:~:text=Missing%20Apostrophe%20in%20Facebook%20Post%20Lands%20a%20Man%20in%20Defamation,mark%20may%20cost%20him%20thousands.

In his Facebook post, real estate agent Anthony Zadravic appeared to accuse Stuart Gan, his former employer at a real estate agency, of not paying into the Australian government retirement fund for all of the agency’s employees, and not just for one employee.   Zadravic’s Facebook post stated:

Oh Stuart Gan!! Selling multi million $ homes in Pearl Beach but can’t pay his employees superannuation [for the Australian retirement system].  Shame on you Stuart!!! 2 yrs and still waiting!!!

Id.  Gan filed a defamation claim against Zadravic, alleging the Facebook post improperly stated Gan had not paid his contributions for any of his employees, since Zadravic did not use an apostrophe in “employees.”

Although Zadravic explained he meant the singular “employee’s” contributions for his own account, the court refused to dismiss Gan’s case.  The court ruled the plural “employees” without an apostrophe could “be read to suggest a ‘systematic pattern of conduct’ by Mr. Gan’s agency rather than an accusation involving one employee.”  Id.  Thus, the judge allowed the defamation case to move forward.

While there are lower standards for defamation in Australia than in the United States, for example, the punctuation point is well-taken.  Just as we teach our students to be cautious in their work texts and avoid imprecise language, emojis, and the like, we should also caution them be careful not only in content, but also in language on social media. 

My teen/twenty-something sons will roll their eyes (via emojis, no doubt) at my suggestion we use proper grammar on social media.  However, when our students and newer associates are posting about professional matters, they should err on the side of caution.  Many employers, in fact, have strict guidelines on social media posts, and using proper punctuation helps ensure compliance.  

Thus, whether we use the dairy drivers, “Weird Al’s” YouTube videos, or now the Facebook apostrophe case, we have several fun sources to encourage discussion and create teaching moments on commas, apostrophes, and more.  

Becket is Hiring

I received word this week that Becket is hiring. For those who are not familiar with Becket, it is a leading religious liberty public interest law firm with a superb record before the U.S. Supreme Court.  It would be an excellent place to get some appellate experience. The details on the positions are below:

First, Becket is seeking to hire 1-2 new attorneys as Counsel. Ideal candidates will have an appellate clerkship, 1-5 years of post-law-school experience, and excellent litigation skills. You can find more details on the position here: https://www.becketlaw.org/counsel-position/.

Second, Becket is seeking 2-3 new attorneys for its 2022-23 Constitutional Law Fellowship. The fellowship is a one-year position that is open to exceptional recent judicial clerks. It provides immediate, hands-on experience litigating cutting-edge constitutional cases under the mentorship of experienced Becket attorneys. It is also an excellent stepping stone to an additional judicial clerkship, government service, private practice, or public interest law. Fellowships start in fall 2022 and offer a competitive salary and benefits. You can find more details here: https://www.becketlaw.org/constitutional-law-fellow-posting/.

A Supermajority Requirement Would Solve Nothing

            If the solution is simple, it might not actually be a solution. Last week, another contributor to this blog suggested that a six-vote supermajority rule could help resolve concerns about the Supreme Court being just another political institution rendering political decisions. The suggestion struck me as misguided and ineffective.

            In recent weeks, no fewer than four justices have spoken out that they are not, as Justice Amy Coney Barrett put it, “political hacks.” Each made the point that they adhere to a judicial philosophy, rather than carry their political preferences into law. Although I have no doubt that each believes that to be true, the judicial philosophies that each espouses, on many of the hot-button issues that come to the Court, tend to coincide with views of the political party of the president who appointed them, which is why modern Supreme Court nominations generate deep political schisms. To be sure, there are occasional “strange bedfellows,” where the majority line-up includes justices thought to have incompatible philosophies/politics and where the results surprise. Still, most decisions seem to follow political views as much as judicial philosophy so that any distinction that exists appears, at best, a subtle one.

            Accusations that the Court is engaged in politics are not new and would not change if a supermajority requirement were adopted. Two of the most important constitutional law decisions issued by the Court, both of which were unanimous, were criticized as political and evinced a political tinge. The dispute in Marbury v. Madison,[1] for example, came out of the political growing pains of a new nation during the first transition of power from one political party to another. The Federalist administration of John Adams tried to seed the judiciary with party loyalists, just as Democratic-Republican Thomas Jefferson was about to take office. In the rush of appointing “midnight judges,” some commissions were not delivered by Secretary of State John Marshall before his successor, James Madison, took office. It was Madison’s refusal to deliver those commissions that resulted in William Marbury’s lawsuit seeking to complete his appointment as a justice of the peace.

            The new Congress recognized the case would be decided by Federalist appointees, including John Marshall, himself a midnight judge. It cancelled the upcoming Supreme Court term, delaying the case. When the Court finally heard the matter, it was fully aware of the political stakes involved and how a politically problematic decision would generate retaliation against the Court. As the administration and Congress feared, the Court held Marbury was entitled to his commission. Yet, in a masterful twist, the Court also held it was without authority to provide relief because the congressional authorization giving the Court jurisdiction to issue a writ of mandamus conflicted with the Constitution’s limited grant of original jurisdiction. The Court struck down this extra-constitutional authorization, exercising the power of judicial review. It avoided a confrontation with the Jefferson administration over its power to order the seating of Marbury, while establishing the Court as the venue where the Constitution would be authoritatively construed and laws struck as unconstitutional. The decision was a balancing act that operated to preserve – and, indeed, strengthen – the Court as an institution.

            The second landmark foundational case, Brown v. Board of Education,[2] unanimously struck the separate, but equal doctrine. Though it now, deservedly, garners laurels, it generated a storm of criticism at the time, including a massive-resistance movement and Senator James O. Eastland’s declaration that the opinion was a “legislative decision by a political court.” The decision came to be in large part because Chief Justice Earl Warren used his political skills honed as governor of California and the Republican vice presidential nominee before taking the bench to work his colleagues so that a single authoritative opinion spoke for the Court. Similar “political” considerations resulted in the decision in Cooper v. Aaron,[3] signed by each of the justices as though co-authors, to express the Court’s emphatic intolerance of delays in desegregating Central High School.

            These decisions did not merely hew to some abstract concept of law existing somewhere only to be found, but recognized the legal questions being answered existed in a political world in which the Court’s authority would be questioned.

            Requiring a supermajority vote fails to assure public confidence and respect. It is not the line-up of the vote, but the reasoning and consequences that count. Some of the worst decisions in Supreme Court history boasted overwhelming support among the justices, such as: Dred Scott v. Sandford[4] (7-2, holding that African-Americans could not be U.S. citizens and likely precipitating the Civil War ); Plessy v. Ferguson[5] (7-1, creating the separate-but-equal doctrine); Korematsu v. United States[6] (6-3, upholding the internment of Japanese-Americans during World War II); and, Buck v. Bell[7] (8-1, finding no constitutional impediment to a state law mandating sterilization of those deemed “feebleminded” to prevent future generations from inheriting “bad” genes). In each of these cases, the political considerations were determinative.

            The point is that a 6-3 supermajority requirement provides no guarantee that the Court will render decisions divorced from politics – or – decisions that are sounder from some hypothetical purely legal perspective.  And a more closely divided Court is no more or less legitimate than one that garners an additional vote or two for its majority.

            The proposal aired in this blog specifically argued in favor of at least six votes to affirm or reverse a lower court decision. Without a supermajority, the proposal would let the lower court decision, whether it was made in federal or state appeals courts, stand, even if it were the product of a bare majority on that court or constituted a plurality opinion. Those consequences, however, would produce their own political dynamics – a Supreme Court able to avoid controversy due to a lack of supermajority support for one result or another, disharmony on federal questions across the circuits and state courts so that federal law would be different depending on where a person lived, and, possibly, even summary reversals of decisions disliked by a supermajority without an agreed-upon ratio decidendi, creating uncertainty about what rule of law applies. None of these consequences are more desirable than the current approach.

            A supermajority requirement simply would not depoliticize the Court.

 

[1] 5 U.S. (1 Cranch) 137 (1803).

[2] 347 U.S. 483 (1954).

[3] 358 U.S. 1 (1958).

[4] 60 U.S. (19 How.) 393 (1857).

[5] 163 U.S. 537 (1896).

[6] 323 U.S. 214 (1944).

[7] 274 U.S. 200 (1927).

Appellate Advocacy Blog Weekly Roundup Saturday, October 9, 2021

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 2021-22 term began this week, and the Supreme Court held in-person oral argument for the first time since the pandemic closure in May 2020, over 19 months ago. The Court will hear a few interesting and anticipated issues this term. Sources reporting on reopening, the resumption of in-person oral argument, and this term’s agenda include AP News, Reuters, NBC News, The Wall Street Journal, CNN, and the NYT’s The Daily.

• The Court’s shadow docket remains in the news and Professor Steve Vladeck has been the primary source. He spoke with NPR’s Steve Inskeep, appeared before the senate to offer testimony on the issue, including how it relates to the Texas abortion ban, and spoke at an event hosted by Notre Dame Law School, titled “Clearing Up Some Misconceptions About the Supreme Court’s Shadow Docket — and Its Critics.”

Appellate Court Opinions and News

• The controversial Texas abortion ban was blocked and then reinstated this week. The Texas law bans most abortions after about 6-weeks, making abortion virtually impossible in Texas. Judge Pitman of the District Court for the Western District of Texas blocked the ban, recognizing the deprivation of a constitutionally protected right. Judge Pitman wrote: “[T]here can be no question that [the law] operates as a ban on pre-viability abortions in contravention of Roe v. Wade, and ‘equates to a near categorical ban on abortions beginning six weeks after a woman’s last menstrual period, before many women realize they are pregnant, and months before fetal viability.’”  He ends the opinion by finding that “[f]rom the moment [the Texas law] went into effect, women have been unlawfully prevented from exercising control over their lives in ways that are protected by the Constitution. That other courts may find a way to avoid this conclusion is theirs to decide; this Court will not sanction one more day of this offensive deprivation of such an important right.” See Judge Pitman’s decision and reports on the decision from NPR, Reuters, The New York Times, APNews, the Austin American Statesman, and The Washington Post.

• Late Friday, the Fifth Circuit stayed Judge Pitman’s order.

Appellate Practice

The Advocate’s Society, Appellate Advocacy Practice Group: Networking Launch, is offering an online program titled “Dirty Tricks of Appellate Advocacy?” on October 26.

Communicating with Clients, Cultural Competency, and Rhetorical Listening

Thursday’s Rhaw Bar: A Little Bite of All Things Rhetoric and Law—exploring ideas, theories, strategies, techniques, and critiques at the intersection of rhetoric and legal communication.

Just yesterday, the American Bar Association’s Standing Committee on Ethics and Professional Responsibility issued its Formal Opinion 500, “Language Access in the Client-Lawyer Relationship.”  (Formal Opinions are the means by which the ABA offers its advice on how to interpret its Model Rules of Professional Conduct, the model upon which all fifty states ethics rules are based.)  In that Opinion, the Standing Committee took up the question of a lawyer’s duties when the lawyer and client do not share a common language.  The Standing Committee concluded that when a lawyer and a client do not share a common language or mode of communicating, there is room for misunderstanding that can impact the sufficiency of the lawyer-client communication and the competency of the representation.  In other words, if a client cannot understand what the lawyer is saying because of a language barrier or the lawyer cannot fully understand what the client is communicating, the lawyer’s ethical duties of competency and communication are at risk.

In these cases, the Standing Committee said, lawyers have a duty to get assistance from “qualified and impartial” interpreters or employ “assistive or language-translation devices” (such as closed captioning, live transcription, or speech recognition software) that enable the client to participate fully and intelligently in the representation and to ensure that the lawyer is competently gathering information to prepare the client’s case.  Lawyers would be wise to take a look at Formal Opinion 500 as it gives detailed advice on when a lawyer has a duty to employ the services of a translator, interpreter, or other assistive communication device. It also explains what to consider in determining if an interpreter is qualified. 

The most interesting part of the Formal Opinion, however, from a rhetorical perspective, comes at the end in the guidance about cultural competency.  In that section, the Standing Committee turns from a discussion on language and physical barriers to communication to the barriers created by social and cultural differences between lawyers and clients.  The Standing Committee suggests that language differences may indicate cultural differences that impact how lawyers and clients interpret their communications.   In other words, the “[t]he client may view the representation and the choices it entails through the lens of cultural and social perspectives that are not shared by or familiar to the lawyer.”  As a result, the Committee said, the lawyer has a responsibility to develop cross-cultural competence that enables the lawyer to navigate and understand how clients give meaning communications based on the the whole context of their cultural, social, and lived experiences.  Ultimately, the Opinion concludes that effective communication between lawyers and clients exists only when “client[s] understand[] the relevant law and legal, institutional, and social contexts of the communication." In other words, lawyers are responsible not only for the words they choose but for ensuring that clients, from the vantage point of their experiences and perspectives, understand what those words mean.  That is, the Opinion establishes that lawyers have a duty to be culturally competent in their communication to ensure that meaning is not just conveyed but shared.

Having the responsibility to ensure that clients not only hear what the lawyer says but also know what those words mean—and conversely to ensure that the lawyer knows what the client’s words mean­—is a tall order. Thus, the Opinion offers helpful advice to lawyers on how to approach meaning-making in attorney-client communications when cultural differences exist:

• Be aware of cultural differences;
• Understand how they impact the representation;
• Pay attention to how biases distort understanding;
• Frame questions in multiple ways that might help the client in familiar contexts;
• Explain the matter in multiple ways;
• Give additional time in meetings for questions and clarifications; and
• Learn more from both research and experts about how to accomplish mutual understanding.

These are all good pieces of advice, particularly for lawyers who are aware that they regularly work with clients who do not share the lawyer’s cultural expectations, understanding, or contexts.  Moreover, training in cultural competency and effective cross-cultural communication is something every lawyer should seek out to better serve clients. 

Not surprisingly, I suppose, I want to extend the Standing Committee’s discussion into the realm of rhetoric and ask what rhetorical skill might have to do with cultural competency.  Thus,  I’m going to suggest that effectively communicating across cultures is not just a type of cultural competency but instead is also a rhetorical competency—an ability in any given situation to understand the needs of the audience and to communicate effectively with them to create shared meaning.

One specific rhetorical competency that can help with the kind of cross-cultural communication that the Opinion suggests is an ethical duty is rhetorical listening.  Rhetorical scholar Krista Ratcliffe explored the concept of rhetorical listening in the context of her studies on composition, gender, and ethnicity. (See her book and her article on the topic.)  Ratcliffe defines rhetorical listening in her book as a “stance of openness that a person may choose to assume in relation to any person, text, or culture.”  It is a form of listening not for “mastery” but for “receptivity.”  For lawyers, the concept of rhetorical listening has application for thinking about how we might “turn one’s ear,” so to speak, toward the communication needs of clients who come from cultural backgrounds different from one’s own and might improve lawyers’ client interview skills.  What follows is my adaptation of Ratcliffe’s theory to lawyer cross-cultural communication as a rhetorical skill.

Often, when lawyers talk to clients, they are engaged in what Ratcliffe describes as listening for mastery.  I might call that kind of listening the lawyer’s typical “interrogative listening”—listening to extract from the client the information lawyers find legally relevant and filtering the client’s story through one’s own cultural and legal understandings.  When lawyers engage in this kind of listening, lawyers tend to give the words meaning through exclusively their own perspectives, perhaps with only a passing thought to whether the meanings drawn from the client’s words are the meanings shared by the client themselves.   

Conversely, when lawyers rhetorically listen to the client, they are not listening to interrogate the client and extract the story; instead they are listening to be receptive to the possibilities of meaning that might come with what they hear and to question how the client might understand the shared information through their own culture and experiences.  In addition, a lawyer engaged in rhetorical listening will be thinking about whether the messages the lawyer delivers to the client mean the same things to the client as they do to the lawyer.  Rhetorical listening, then, is a way lawyers can listen to clients to focus, as Ratcliffe says, simultaneously on “differences and  commonalities” across the potentially different cultures clients and lawyers occupy. In this way, lawyers’ rhetorical listening creates spaces for accomplishing the shared meaning that the Standing Committee’s Opinion demands.

One way to get one’s head around this somewhat nebulous idea of rhetorical listening, Ratcliffe suggests, is to invert the word “understanding” in the context of communication and think of it instead as “standing under” communication. “Standing under” means to let others’ messages “wash over, through, and around us” while acknowledging at the same time our own “particular and fluid standpoints” and how those might relate to each other.  This means that instead of hearing client messages as a set of building blocks that the lawyer sorts and stacks,  client messages are experienced as a waterfall--immersive, experiential, and exploratory.  I think Ratcliffe may be on to something here for lawyers--rarely, I think, do lawyers let client stories “wash over” them; instead, they seek to fit the client’s story into a particular legal framework with little room for negotiated meaning when cultures collide.  Rhetorical listening may be a game-changing addition to lawyers’ cross-cultural listening skills.

If lawyers are sorting and stacking the client’s story, they are likely narrowly focused on filtering that story through their own cultural understandings and meanings.  The client may not share those understandings, and this is the point the Standing Committee is making in its Opinion.  If lawyers ignore this potential cross-cultural gap in meaning-making, they stand to be less competent and effective.  As the Committee points out, “a lawyer must ensure that the client understands the legal significance of [the lawyer’s] communications and that the lawyer understands the client’s communication, bearing in mind the potential differences in cultural and social assumptions that might impact meaning.”

Ratcliffe’s rhetorical listening gives lawyers a space in which to approach this cross-cultural work, even as they begin to become more knowledgeable of cultural differences between themselves and their clients.  Ratcliffe gives lawyers a way to “listen for that which [they] do not intellectually, viscerally, or experientially know.”  As she suggests, lawyers must “first acknowledge[e] the existence” of different cultural understandings, they must listen for “unconscious presences, absences, and unknowns,” and they must “consciously integrat[e] this information into [their] worldviews and decision-making.”

What are your thoughts?

Kirsten Davis teaches at Stetson University College of Law and in the Tampa Bay region of Florida. She is the Director of the Institute for the Advancement of Legal Communication. The Institute’s mission is to study legal communication issues and provide programming and training that improves legal communication skills. Among other things she’s up to right now, she’s currently serving on the Florida Bar Association’s Special Committee on Professionalism. The views she expresses here are solely her own and not intended to be legal advice. You can reach Dr. Davis at kkdavis@law.stetson.edu.

A Six-Vote Supermajority Requirement is the Solution to De-Politicizing the United States Supreme Court

The United States Supreme Court is struggling to maintain its institutional legitimacy. A recent poll showed that only 40% of Americans approved of the Court.[1] Three factors arguably explain the reasons underlying the public’s negative perception of the Court.

1.    Chief Justice John Roberts

Chief Justice John Roberts is a brilliant and accomplished jurist, and by all accounts a good person. But Roberts has contributed substantially to the Court’s compromised legitimacy. This might appear surprising at first glance, considering that Roberts cares deeply about preserving the Court’s legitimacy and is dedicated to ensuring that the Court is not viewed as a political institution.

Sadly, that very concern is precisely what has politicized the Court. The reason is that, in many cases, Roberts decides cases not based on a reasonable interpretation of a constitutional or statutory provision, but on what he believes will preserve the Court’s legitimacy, which essentially means that Roberts decides cases based on how he subjectively believes the public will react.

The problem with that approach should be obvious. It completely divorces the justices from the law, and from their obligation to reach outcomes based on a reasonable interpretation of constitutional and statutory text. In so doing, it enables nine unelected, life-tenured justices to reach outcomes based on their subjective views regarding what outcomes will be viewed as politically “legitimate.” The result is that the Court’s decisions are ipso facto political.

Roberts has been a disappointment on the Court. His approach betrays the rule of law and the judicial role. Put differently, when the justices base decisions on the desire to appear apolitical, they inherently politicize the Court. And Chief Justice Roberts is the Court’s most political actor.   

2.    The Shadow Docket

The Court’s shadow docket, in which it decides cases and important legal issues without oral argument. For example, in Whole Women’s Health, et al. v. Jackson, the petitioners applied for an order enjoining enforcement of a law in Texas that banned all abortions after six weeks, and that gave private citizens, not the government, the power to enforce the law. The Court denied the application, holding that it did not satisfy the standards required for granting a preliminary injunction. Although this interpretation was not incorrect, it showed that the Court couldn’t see the forest from the trees.

Any person with a pulse would recognize that, whatever one’s views on abortion, the law obviously violated the Court’s poorly-reasoned decisions in Roe v. Wade and Planned Parenthood v. Casey, both of which manipulated the Fourteenth Amendment's Due Process Clause to hold that a woman has the right to terminate a pregnancy before viability (i.e., approximately twenty-four weeks). Thus, because Texas’s law was so ridiculous, the Court should have voted unanimously to invalidate the law. Had the Court done so, it would have sent the message that the justices are not motivated by their policy preferences.  Instead, five members of the Court held that the Petitioner failed to satisfy the standards required for granting injunctive relief and allowed the law to go into effect. It should come as no surprise that the usual suspects – those who are almost certainly pro-life – signed onto this decision (Alito, Barrett, Kavanaugh, Thomas, Gorsuch).

So, when the justices express surprise and indignation that the Court is viewed as a political institution and claim that decisions are not based on the policy predilections, it is hard not to laugh.

3.    The Justices’ Political Views

If you believe that the justices don’t base their decisions on personal policy predilections, then you probably believe that the United States faked the moon landing or that most law schools are deeply committed to ideological diversity.

Think about it: could you imagine Justice Sotomayor ever invalidating an affirmative action program? Could you ever imagine Justice Thomas or Justice Alito relying on stare decisis to uphold Roe and Planned Parenthood? Could you ever imagine Justice Kagan supporting restrictions on same-sex marriage? No.

And don’t be fooled when the justices claim that their decisions reflect differences in interpretive philosophies. Uh-huh. It’s interesting – and amazingly convenient – that the justices’ interpretive philosophies so often comport with their policy preferences. That isn’t an accident.

This fact does not make the justices bad people. It just means that they are human. It means that their personal views impact their decisions, which is precisely why it is so critical for the Court to base their decisions on a reasonable interpretation of constitutional or statutory text. It is why the Court should refuse to hear most cases where the Constitution is silent or ambiguous, and instead defer to the democratic and political process. Doing so minimizes the risk that personal preferences will triumph over the law, and decreases the likelihood that constitutional meaning will depend on whether the Court’s majority is comprised of liberals or conservatives.  

Otherwise, justices will feel free to roam unconstrained in the Constitution’s penumbras,  seeking to discover new rights that reflect the “heady days of the here and now.”[2] That approach, which the Court has embraced at times, explains in substantial part why the public doesn’t view the Court favorably.

The Solution

Chief Justice Roberts is not the solution. Expanding the Court, for obvious reasons, is not the solution. The solution is to require a six-vote supermajority to affirm or reverse a lower court decision.

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. Specifically, 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 divisive, controversial – and politicized – decisions.

Furthermore, 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 likely be minimized.

Finally, 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. 

Without principled reforms, the public perception of the Court will likely remain negative, and with several controversial issues on its current docket, the Court’s legitimacy is likely to go anywhere but up.

 

[1] See Jeffrey M. Jones, Approval of Supreme Court Down to 40%, A New Low (Sep. 23, 2021), available at: Approval of U.S. Supreme Court Down to 40%, a New Low (gallup.com)

[2] Obergefell v. Hodges, 576 U.S. 644 (2015) (Roberts, C.J., dissenting).

If the public’s opinion of the Supreme Court falls in the woods, does anyone hear it?

    Next week, the Supreme Court will return to a crowded docket filled with high-profile cases on abortion rights, religious school instruction, and criminal procedure. The Court will also be returning to in-person arguments sure to generate high drama for court watchers. But with the new term starting, it may have gone unnoticed that public opinion about the Court has fallen precipitously over the past year.

    A Gallup poll released last week showed that American’s opinions of the Court have dropped to an all-time low of only 40 percent approving of its job performance, with another study by Marquette University noting a similarly precipitous drop in public approval. Some of the Court’s recent procedural changes may be an effort to rebuild its public image. As this blog has noted, the Court is changing its oral argument process to allow more individual questioning by Justices and less free-for-all interruption of the advocates—which may or may not be a positive development. But small tweaks to procedure are little salve to the many negative views of the Court as a wholly partisan institution that cannot resolve our nation’s most challenging and fundamental disagreements.

    Some of the disapproval may stem from the Court’s recent emergency rulings that have ended a nationwide eviction moratorium and allowed a Texas law banning most abortions after six weeks of pregnancy to take effect. Such rulings, issued through an opaque process with little input and no public discussion, likely undermine public trust in the Court’s good faith. But the rulings themselves are also notable for the controversial views they adopted largely in the dark. Such opinions are the product of long-standing issues with the Court’s public image that have gone unresolved.

    Partisanship on the Court, real or perceived, has undoubtedly increased in recent years. The nomination process has proven nothing but a political football for Congress. Those in the majority have permitted only favored nominations to go forward. Vetting prospective Justices may be high political theater, but it has little substantive meaning, aside from providing elected officials with the opportunity to publicly display loyalty to their tribe.

    Not surprisingly, the product of that partisan process is a more partisan bench itself, at least in the eyes of the public. Divergent interpretive methods and lengthy, impenetrable rulings give the public the perception that decisions are motivated solely by policy preference, rather than principled legal stances. Those on the right and the left assume that the philosophical underpinnings of most opinions are gobbledygook used to justify a result the Justice had in mind all along.

    Thus, Supreme Court reform has become a popular topic, especially for progressives convinced that adding Justices is the only way to equalize the Court’s intellectual balance. Whether such efforts would achieve balance or not, they are nakedly political. They seek not to reduce the partisan temperature on the Court, but to increase that on the Court’s liberal wing to equalize the passion of those Justices who lean conservative. Matching rancor with rancor forces politics further into the spotlight on the bench. New appointees would have an apparent mandate for progressive rulings, not intellectual honesty or judicial modesty.

    Are there any other options? Perhaps a merit-based selection process for federal judges would convince the public that the courts are not overtly political. Or perhaps simpler changes to the way the Justices approach the decision-making process could be effective. I do not mean to suggest that Justices should frequently cow to public opinion polls when writing their decisions. But they should tend to the institutional goodwill that the Court has long been afforded. The Court would do well to engage openly and honestly with even the most controversial issues. It should avoid decisions masking policy preferences in opaque, scholarly language, especially when deciding without the benefit of full briefing and oral argument. The Justices should write simple, straightforward opinions. They should avoid interpretive debates that have proven both tiresome and inaccessible to most members of the public. They should aim for simplicity, clarify, and honesty in expressing their views. Put another way, writing the way we teach new law students to write might serve the Justices well.

Judicial Selection & A Divided Nation

Two weeks ago I blogged about Lance B. Wickman's article, Lawyers as Peacemakers, in the most recent issue of the Journal of Appellate Practice & Process. Today, I want to discuss part of Dean Erwin Chemerinsky's article--The Non-United States of America.

Dean Chemerinsky spends the first half of his article positing reasons for the deep partisan divides in our country. He identifies structural aspects of our governmental system, like the Electoral College, as partially responsible. He also looks at the role of the media, former President Trump, and the COVID-19 pandemic. According to Dean Chemerinsky, the "deep partisan divide in the United States" is "the greatest threat to democracy that [our country] has faced" and could lead to "serious talk of secession." Despite these dire words, he remains "an optimist and believe[s] that there is much more that unites the American people than divides us."

In that spirit, he offers one suggestion--"change the method of picking Justices and lower federal court judges to make it less partisan." Dean Chemerinsky points to states like Alaska that have a merit selection process for picking state court judges.  Arizona has something similar. Our Judicial Nominating Commissions take applications for open judicial positions. The Commissions interview candidates and send a bi-partisan list to the governor, who selects a judge from that list. Many merit  selection states have systems modeled after the state of Missouri.

According to Dean Chemerinsky, former President Jimmy Carter used merit-selection panels for judicial vacancies. Dean Chemerinsky recommends that such panels be ideologically diverse and include non-lawyers. These panels would give the president at least two names to fill vacancies, and the president would promise to select from the list. Obviously, this would be a change from how presidents have nominated judicial candidates in the past. Traditionally, presidents rely heavily on the home state senators who are of the same party as the president for names.

Such a panel is an interesting idea. Dean Chemerinsky states that the panels should send "the most qualified individuals" to the president, but that is certainly an objective standard. And Dean Chemerinsky recognizes that presidents would have to voluntarily agree to create such a commission.  As he writes, "my hope is that once a courageous president creates the system, especially for high-profile Supreme Court nominations, political pressure will be great for others to follow the practice of merit selection."

I do think that the merit-selection process has worked well in some states, and it would be interesting to see something similar adopted at the federal level.

New Supreme Court Procedures Likely to Change Argument Dynamics

            In the late 1980s, I was invited to participate in a project designed to help the Supreme Court of India address a backlog of cases that stretched back a decade. One obvious problem, it seemed to me, was that oral argument for a single case could span days or, in important matters, more than a week, as argument seemed to give rise to lengthy flights of oratory. On my second day in New Delhi, I met with members of their Supreme Court bar. Soon after the meeting began, one practitioner sought to confirm that the U.S. Supreme Court limited oral argument to 30 minutes per side. Upon receiving an affirmative answer to that question, he then asked, “how do you even warm up?”

            The events of that morning recurred to me when I read the Supreme Court’s recent announcement that it was adopting a new procedure as oral argument returned to the courtroom after a pandemic-period process of argument by telephone. The procedure for telephone arguments gave the advocate two uninterrupted minutes to introduce the argument, followed by two minutes of questioning by each justice, seriatim, in order of descending seniority. The procedure was a significant departure from the free-for-all arguments that earned the Court the reputation as a hot bench.

            That type of fast and furious questioning during in-court oral argument is often associated with the late Justice Antonin Scalia, who showed no reticence in lobbing question after question at counsel even during his freshman term. Scalia’s then-unusual amount of questioning reportedly caused Justice Lewis Powell to wonder if the new justice even realized the rest of them were there. By the time Justice Clarence Thomas joined the Court, nearly all justices had adopted an active questioning style, though Thomas, believing it was important to let the advocates speak, remained largely silent for years at a time. During the pandemic’s telephone procedure, though, Thomas, as the senior associate justice, became a regular questioner, showing that procedural changes in oral argument can affect its dynamics.

            As the Court gets underway for the new term, it has adopted a combination of the two procedures. Advocates will still experience 30 minutes of sharp questioning, but then time is added to allow the justices to ask additional questions in order of seniority, just as they did when arguments were conducted by phone. One of my co-bloggers has already expressed approval of the new format https://tinyurl.com/2r49ufkc. I’m more skeptical.

            Although the Court has admonished advocates to “respond directly to the questions posed,” rather than make “additional arguments not responsive to the question,” some oralists, no doubt will find the opportunity to relate an answer to an argument not yet covered in the courtroom irresistible. Those who can do that seamlessly will likely get away with it. One obvious change is that the new procedure is likely to extend oral argument to unknowable lengths of time. Perhaps the justices will have asked all their questions in the earlier period, but that seems unlikely. The extra time will not just lengthen the arguments, but will likely shift oral argument strategy, based on the knowledge that some issues the advocate purposely reserves are likely to be aired during the justice-by-justice round.

            In addition, the new procedure may change a justice’s decision about when to ask a question. Some justices may choose to forego a question during the unstructured argument time because another justice is forcefully seeking an answer to something else during that earlier period. Rather than interrupt the line of questioning as often occurred in the past, a justice may reserve the issue for the latter time period. Doing so, however, could be a disservice. The answer elicited may show the issue to be a critical one that deserves more time for exploration than might remain, which may not have been true if raised earlier.

            Moreover, when questions are posed in order of seniority, particularly subsequent to the usual oral-argument period, the number of questions left unasked will diminish by the time the more junior justices have their turns. If the junior justices begin to appear mute as the formal questioning ends, courtwatchers and the public may mistakenly take away a false impression of disinterest. To combat that image, a junior justice may feel impelled to jump into the conversation more actively in the earlier part of the argument than they might otherwise choose to do. The result will undoubtedly affect the nature of oral argument, but in an artificial way.

            Appellate lawyers – and appellate courts – will watch closely as the new procedure is implemented. Advocates will adjust their strategies, the Court itself may tinker with the procedure as experience suggests changes, and federal circuit courts may choose to adopt it or a variant on it for their own arguments. When telephone arguments were in place, Chief Justice John Roberts kept a firm hand on limiting the justices to their allotted questioning time. The new procedure, which has no apparent time limits on the justices’ questions or the responses,  may call for even more stark time management – perhaps even as strict as those enforced by Chief Justice Charles Evans Hughes, who, when time was up, could stop an advocate in the middle of the word “if.” With the new term commencing October 4, many people will be watching the process of oral argument with the same intensity as they scrutinize the merits of the arguments themselves.

Appellate Advocacy Blog Weekly Roundup Friday, Sept 24, 2021

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

US Supreme Court Opinions and News

• The Supreme Court announced that it will hear an abortion case in the 2021 term that asks the court to overturn Roe v. Wade. The case concerns a Mississippi abortion law that bans abortions after 15 weeks with exceptions "only in medical emergencies or for severe fetal abnormality." The law includes no exception for rape or incest. The case is set to be heard on December 1. See reports from CNN, CNBC, and NPR.  

• The Supreme Court will adopt a hybrid argument format when it resumes in-person argument for the October term. The format will combine the pre-pandemic “free-for-all” style with the pandemic “turn-taking” style. Under the format, after a lawyers’ opening statements and during the allotted argument time, justices will pose questions as they did before the pandemic shut down. According to SCOTUSblog, during the argument, “the justices can presumably interrupt both the arguing lawyer and each other at will.” Then, after a lawyer’s argument time, “each Justice will have the opportunity to question that attorney individually. Questioning will proceed in order of seniority.” See the Guide and reports from Bloomberg and the ABA Journal.

• On September 22, the Federalist Society aired “Supreme Court Preview: What is in Store for October Term 2021.” Find the YouTube link here.

Appellate Court Opinions and News

• The Fourth Circuit vacated its recent ruling that gun laws barring sales to those under 21 are unconstitutional (a ruling we covered in July 2021). The court decided that the decision was rendered moot when the plaintiff turned twenty-one. According to the court, “[a]fter the opinion issued but before the mandate, [Plaintiff] turned 21. And that made her claims moot.” “Despite efforts to add parties and reframe her claimed injuries, it is too late to revive this case.” See the order and reports from Reuters and the Associated Press.

• The Fifth Circuit heard a challenge to the Mississippi voting rights act. The case seeks to overturn a Mississippi law that permanently disenfranchises people who have been convicted of certain felonies.  The argument can be accessed here. See a report from Courthouse News.

 

Call for Submissions--Appellate Practice in and around Indian Country

The Journal of Appellate Practice & Process is currently accepting submissions for Volume 23, Issue 1, to be published in late 2022/early 2023.

This issue will focus on appellate issues in and around Indian Country.  We welcome articles on appellate practice in Tribal Courts, articles exploring Tribal sovereignty and appellate justice, articles that explore jurisdictional questions raised by recent U.S. Supreme Court decisions, and other essays or articles addressing appellate practice issues in and around Indian Country. We welcome articles by academics, judges, and practitioners.

Essays and articles should not exceed 15,000 words in length. Please submit all papers to Prof. Tessa L. Dysart (tdysart@email.arizona.edu) by June 1, 2022.  Acceptances will be emailed by August 1, 2022.

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

Since its founding in 1999, The Journal has published scores of important articles. Chief Justice William H. Rehnquist and Justices John Paul Stevens and Stephen G. Breyer have written for The Journal.  So influential is the Journal that courts often refer to it in their opinions, with over 100 citations in 2019 alone.

The Journal moved to the University of Arizona James E. Rogers College of Law in June 2020. It is edited in partnership with the National Institute for Trial Advocacy. You can find out more about the Journal at www.appellatejournal.com.

A few thoughts on new SCOTUS argument rules

Oral argument in the supreme court has seen many changes over the years. In the early days of the Republic, counsel would often spend hours, sometimes days, arguing a single case. At that time, oral argument, rather than briefing, was the primary vehicle for counsel to communicate their points to the court. Over time, the emphasis switched from speaking to writing, and oral arguments got shorter--down to two hours shortly after the Civil War, to one hour in the early 20th Century, then to the current limit of 30 minutes in the late 1960's. How justices have used that time has also changed. Until the mid-1980's, it was common for justices to ask just a few questions--if any--during oral argument. It was much more an advocate's chance to pitch their view of the case. But all that changed with Justice Scalia's appointment in 1986, as his extensive questioning prompted other justices to take a more active role during arguments. One famous exception was Justice Thomas, who rarely spoke during argument, believing it rude to interrupt counsel's presentation.Before the pandemic, a "hot bench" was very much the norm, with most advocates having little time to make affirmative points between answering a bevy of questions from the court.

The pandemic changed all that, with the court opting to hold telephonic arguments with two new notable rules: (1) counsel had two minutes to say her piece and then (2) each justice had a set time in which to ask questions, uninterrupted by the other justices. Chief Justice Roberts kept the clock and enforced the time limits.

Some of these changes are here to stay, at least for now. SCOTUS this week released an updated oral argument guide ahead of returning to in-person oral arguments for OT 2021, which retains the pandemic changes and cautions counsel not to stray from a questioner's direction. A few thoughts on how this affects oral argument preparation and presentation going forward.

1. Justice Thomas. All signs currently point to Justice Thomas continuing his active questioning at argument, since he will have a set time to ask questions without interrupting or being interrupted by anyone.
2. Affirmative points. Going in to most oral arguments, counsel have a choice to make--start with an affirmative point, or pick up the conversation where it left off and start answering questions. Counsel can still take either tack in this new(ish) format, but I think counsel will tend to skew to making affirmative points, since this will be their best or only chance to control the topic of conversation.
3. A little smoother? The new rules were somewhat awkward to enforce during telephonic arguments, as both the justices and counsel lacked visual cues to stop or start talking. In person, the rules should be a little smoother as the participants can see and react to each other.
4. A little nicer? At its most hectic, oral argument can devolve a bit into a duel of perspectives with the justices sometimes speaking to other justices under the guise of questioning the advocate. I think the new format changes that dynamic a bit and makes the tone--for lack of a more lawyerly word--nicer. The justices are forced to deliberately triage their questions, but can't get interrupted by others and thus are not able to get into a back-and-forth with other justices.

Overall, I like the changes and think they improve both the tone and the presentation of argument. What do you think?

Appellate Argument: Tips for Success

For law students (and some lawyers) appellate argument can be a mystery. It's definitely not the first thing the average layperson thinks about when someone mentions "legal argument." Even when Law and Order made a half-hearted attempt to show an argument at an appellate court, it didn't get it right (for example, I've never gotten a ruling from the bench as soon as the argument was over). And the misconceptions about appellate argument sometimes lead to strange behavior even from attorneys: advocates objecting during opposing counsel's argument (yes, that really happens); appellant's attorneys requesting to reserve their entire time for rebuttal (I've seen that happen, too); and lawyers calling opposing counsel their "friend" (okay, some U.S. Supreme Court advocates do that and maybe some of you think it is fine, too).

De-mystifying appellate argument means not only understanding the basics but also understanding the nuances. Anyone who has ever argued in an appellate court or taught students how to make oral arguments knows the basics: make the argument conversational; be prepared for questions; smoothly return to your argument after answering a question. And, of course, an advocate should know the substance of an argument inside and out. But what are some of the finer points of appellate argument that often are missed both by advocates and students?

• Exude Confidence: Doing my best Yogi Berra imitation, I often tell students that being successful in an appellate argument is 95% knowing the facts and the law and 95% sounding like you know what you are talking about. In reality, knowing the facts and the law in depth should lead to more confidence. In the end, why should an appellate court agree with your argument if you don't sound like you believe in what you saying? Even if you aren't so sure yourself, you are representing a client expecting zealous representation. And the other side is going to have a zealous advocate, so you should be one as well.
• Control Your Body Language: Even before you say your first word at an appellate argument, your body is already speaking to the court. The body tells the truth. If you are confident in what you are going to say (see above), then approach the lectern with confidence and own the stage you have been given.
• Vary Delivery: An appellate argument should ebb and flow. Much like a singing performance is rarely effective at 100% volume throughout, an argument without variation will either put the court to sleep or, even worse, cause you to lose your case. Vary pitch, vary pace, vary volume. This will hold the court's attention, properly emphasize the points you want to emphasize, and downplay facts and law that are bad for your argument.
• Pause: Oral advocates often feel that any dead time in their argument, even a brief second or two, is bad. On the contrary, oral advocates probably don't pause enough. Some pauses are good for effect; others are good because they allow the advocate more time to reflect upon an answer. The mind works very quickly, so it doesn't have to be (and you don't want it to be) a long pause if you are trying to come up with an answer. I often suggest to students that they begin drinking some water, if available, when a question is being asked. Judges will not be thrown off by an advocate finishing their sip briefly as the question concludes. This buys just a little more time for formulating the perfect (or near-perfect) answer.
• Control Your Zone of Authority: In conjunction with the use of body language, advocates should control their zone of authority--the area immediately around them that they control. Look judges in the eye, don't break the zone by bending over or looking around the courtroom, keep gestures within the zone, and never point. As my students also always hear me say, don't take a pen with you to the lectern! You likely won't have the opportunity to write anything down while you are arguing. And you are more likely to cause a distraction with the pen by waving it around, pointing with it, or tapping it on the lectern.
• Start/Finish Strong: Start the argument with your theme and end with your theme. Grab the court's attention at the beginning. Then remind the court again what the case is really about when you conclude. Listeners (like readers) tend to remember and are more affected by the beginning and the end of an argument than what is in the middle.

The basics of an appellate argument are important without a doubt. But mastering the nuances will make an argument even more polished and persuasive.

Learning the Language of the Law

British Philosopher Michael Oakeshott thought of the law (and other social institutions, for that matter) as a language.[1] In language[2] as in the law, there are heated debates about what the rules are and the proper rate at which to change them. But rather than wade into that here, I want to focus on the law as a language that lawyers learn to speak. I think that there are three main branches to this language: logic, grammar, and rhetoric.

First, logic. In many ways, law students learn the law as children learn a language or a new game—by observation and imitation. Some have an easier time of it than others. We’ve all met them; they are the ones who just “get” law school from day one. Annoying. I wondered for some time what it was that these students were getting exactly that so many do not. I’m now convinced that it’s mostly that they intuitively understand logical reasoning. But many of the best players can’t tell you how to do what they do; they just know how to do it. This is also true of native language speakers—most aren’t able to say why something is right or wrong in speech, they just have a feel for it.

While going the feel-for-it route may be fine for most day-to-day legal tasks, the best lawyers I know are more conscious about the logical rules that they are following in arguments. They can tell you the specific reason that arguments are fallacious, not just that they are wrong. The more logical rules that you can articulate and use, the more effective you will be.

Second, grammar. Here the language analogy is a bit on the nose, but it holds up well. I’ve learned a couple of languages beyond my native English, and every time I do, I understand English a bit better. Before I was forced to understand things like the subjunctive mood or declension forms, I never really learned the whys behind my speech and writing. At bottom, the law is just words. And the fine details of grammar and punctuation matter. A company can lose millions of dollars because their lawyer didn’t use the Oxford comma in a contract.[3] The result in a case may turn on which words in a sentence a modifier applies to,[4] or whether a drafter used a semicolon or a comma,[5] or any other number of fine grammatical distinctions. One federal judge even recently ordered parties to diagram a statutory sentence to reach a decision.[6]

Most lawyers couldn’t diagram a sentence without a fair bit of googling, and to be sure that’s a rare case. But fewer lawyers than should can lay out grammar and punctuation rules and why they matter. Those who can have the advantage, in statutory interpretation cases in particular.

Finally, rhetoric. Since at least ancient Greece, people have explained the rules of persuasion—the patterns of speech that make it appealing to a listener/reader. Repetition can be pleasing (“of the people, by the people, for the people”) or it can be grating (“Baby shark, do do do do do do”); it is all in the execution. Some are natural orators (Eliza Doolittle’s father comes to mind), but most have to work at it. The lawyers who do will be more persuasive, to both judges and juries.

I’m willing to bet that no reader here had a course in law school explicitly focused on logic, grammar, or rhetoric. Perhaps that’s because there just isn’t time. Or maybe it’s not practical to explain a game that is easier to learn (at first) by playing. But every lawyer should spend some time learning these rules. This is doubly true for appellate lawyers, who rely so much on these tools to convince courts—who are often full of the sort of lawyers that understand and care about the fine distinctions.  

 

[1] Stanford Encyclopedia of Philosophy, Michael Oakeshott, available at https://plato.stanford.edu/entries/oakeshott/#RatiRati.

[2] See Bryan A. Garner, Making Peace in the Language Wars and The Ongoing Tumult in English Usage, reprinted in Garner’s Modern English Usage, xxxiii-lv (Oxford University Press 2016).

[3] Jeff Haden, How 1 Missing Comma Just Cost This Company $5 Million (but Did Make Its Employees $5 Million Richer), available at https://www.inc.com/jeff-haden/how-1-missing-comma-just-cost-this-company-5-million-but-did-make-its-employees-5-million-richer.html.

[4] See, e.g., Lockhart v. United States, 136 S. Ct. 958 (2016).

[5] Mike’s Smoke, Cigar & Gifts v. St. George City, 391 P.3d 1079, 1084 (2017).

[6] Dara Kam, Legal Battle Over Florida Protest Law Could Come Down to ‘Language and Syntax,’ available at https://www.wlrn.org/news/2021-08-25/legal-battle-over-florida-protest-law-could-come-down-to-language-and-syntax.

Keeping the Peace

A few weeks ago I blogged about the latest issue of The Journal of Appellate Practice and Process, which looks at what lawyers and judges can do to help ease our country’s deep divisions along racial, ethnic, religious, political, and socio-economic lines. Today I want to focus on one article in that issue--Lawyers as Peacemakers by Lance B. Wickman.

Lance Wickman has a fascinating background. Since 1995, he has served as the General Counsel for The Church of Jesus Christ of Latter-day Saints. He has also served in LDS church leadership. Prior to becoming general counsel, he worked for the firm of Latham & Watkins in California as a litigation partner. He also served in the Vietnam war. Much of his career has been centered around conflicts, either through war, litigation, or "political and cultural conflicts." Despite this experience, his article explains his belief that "the heart of what lawyers and judges do--or should be doing--is peacemaking."

Mr. Wickman starts his article by exploring the existing divisions in our country, highlighting some disturbing statistics on the increasing lack of faith in the rule of law. He then gives a defense of the concept of "the rule of law," explaining that it needs "constant tending and defense" and that it promotes fair, neutral, and peaceful resolution of disputes.

After highlighting the importance of the rule of law, Mr. Wickman delves into the role that lawyers and judges can play in defending the rule of law and acting as peacemakers. I don't want to give away the full article, so I will just touch on two of his examples. First, he talks about how lawyers are resourceful. As he writes, "In battles over cultural or moral is-sues, lawyers can help chart approaches that seek fair-ness for all Americans, rather than winner-take-all out-comes that breed resentment and perpetual conflict." As an example, he cites the compromise in Utah over religious freedom and LGBTQ rights that led to the passage of Utah Senate Bill 296. The bill involved collaboration between Equality Utah and the LDS church and "prevented discrimination in employment and housing while preserving religious freedom."

He also writes that lawyers are "resolute."  As he explains, lawyers must "defend the rule of law in the teeth of determined opposition, even when doing so seems to threaten our narrow interests."  For this point he cites the example of John Adams defending the British soldiers charged with murder during the Boston Massacre. Although Adams's action caused him to lose clients, even in his later years, Adams cited his representation as "'one of the most gallant, generous, manly and disinterested actions of my whole life, and one of the best pieces of service I ever rendered my country.'" 

Mr. Wickman ends his article with an excerpt from President Lincoln's first inaugural address. If any person knew how to bring people together, it was Lincoln. I recently finished A Team of Rivals by Doris Kearns Goodwin, which highlights Lincoln's effort to bring several rivals for the presidency together in his cabinet. For those interested in the role lawyers can make as peacemakers, I commend both Mr. Wickman's article and Ms. Goodwin's book.

Tips for Appellate Practice, Fourth Circuit Edition, Part I

 

“Interrogate the cases.” With that interesting turn of phrase, Michael Dreeben, a veteran of the U.S. Solicitor General’s Office, told an online audience last week that appellate advocates need to do more than read and study the cases that form the basis of each sides’ arguments. The half-day session, sponsored by the Fourth Circuit, contained a number of nuggets from judges and practitioners useful to any appellate practice.

Of course, there is no single way to argue a case, and two advocates can take very different approaches yet still achieve equal success. But when experienced voices from the bench and bar dispense advice, paying attention becomes the order of the day -- even if that advice does not work for you or, in your opinion, would not work for most people.

When Dreeben advised that appellate counsel “interrogate the cases,” he explained that it was important to examine more than a case’s facial holdings and reasoning. Interrogation meant that it was important to scrutinize the foundations of the decision’s results, its take on cited precedents, and its treatment in different contexts by other courts. Every appellate lawyer knows how to rely on a straightforward application of a decision’s essential holding or how to distinguish an opinion that has problematic application to the position you are taking. However, the suggestion to “interrogate” requires an advocate to go deeper and expose the either stronger basis for the rule announced by a case, or the weaker underpinning for it, perhaps based on a skewed interpretation of existing precedential building blocks.

Another useful perspective that Dreeben advocated lawyers adopt was to compose your argument while bearing in mind what does an intelligent jurist want to know to get the answer right? His experience taught him that most judges want to find the right answer. Consider what, whether based on the factual record or the posture of the law, will provide the tools that will help the judge rule your way. While anticipating what the inquiring mind of a generic judge might need to rule in your favor, it also helps to know your court and the judges who serve on it. Doing so will guide you about a judge’s willingness to consider legislative history or other tools that you might employ.

Looking at a case from every angle is a common refrain in appellate advocacy seminars, though the advice often has little content. Underscoring what it really means, Judge Paul Niemeyer called knowing how you can lose the case is “one of the most important aspects of preparation.” It forces you to consider the weaknesses in your argument and address them – or, explain why the problem you face does not doom your case.

Another experienced appellate practitioner, Kannon Shanmugam, provided some practical tips on modern brief-writing. He explained that, today, most judges read briefs on-screen, rather than plow through paper copies. To prevent points from being lost, he uses fewer footnotes than he once did to avoid forcing the judge to scroll up and down the page. Briefs should help the court reach a result. Shanmugam said that he considered a brief that runs 12,999 words, when the limit is 13000, a “tell” that the advocate has not helped the court by limiting the brief to its most essential focus.

Judge Niemeyer echoed a similar sentiment, calling for shorter, more focused briefs. He said he finds shorter briefs more powerful than the ponderous ones that are too frequently filed. He also warned against overuse of string citations: “Don’t just list cases. Argue.”

Finally, Judge Stephanie Thacker offered one other practical point that may often be overlooked. “My favorite part of a brief,” she said, “is the summary of argument.” She urged counsel not to give it short shrift or treat it as an afterthought. Instead, it should provide the reader with a clear and concise explanation of the facts and law. It helps the judge understand the entire argument and provides a basis for narrowing the issues the judge might believe critical to the ultimate resolution of the case.

*          *          *               

In a posting last month, I discussed arguments made in three briefs filed in short order, each of which sought the reversal of a precedents. One of those cases was Oklahoma v. Bosse,[1] where the State of Oklahoma filed a petition for certiorari that asked the Court to reconsider its year-old decision in McGirt v. Oklahoma,[2] because of the dire consequences the state had experienced since the decision. Less than a month after filing its petition, Oklahoma dismissed it, reserving for another day and another case its argument on why McGirt should be overturned.        

 

[1] No. 21-186, Pet. for Certiorari (S.Ct. Aug. 6, 2021).

[2] 140 S. Ct. 2452 (2020).

Thursday's Rhaw Bar: The Objectives and Means of Brief Writing: Who Makes the Rhetorical Choices? Does it Matter?

Thursday’s Rhaw Bar: A Little Bite of All Things Rhetoric and Law—exploring ideas, theories, strategies, techniques, and critiques at the intersection of rhetoric and legal communication.

This semester, I’m teaching Professional Responsibility to about 145 second-year law students.  We are on the topic of how the ethics rules allocate decision-making between lawyers and clients.   The allocation of decision-making is an ethical question addressed the American Bar Association’s Model Rules of Professional Conduct, which is a good approximation for the individual state ethics rules.  Model Rule 1.2 (a) and Comment 5 provide that

[A] lawyer shall abide by a client’s decisions concerning the objectives of representation, and . . . shall reasonably consult with the client about the means by which [the objectives] are to be pursued. A lawyer may take such action on behalf of the client as is impliedly authorized to carry out the representation. . . . Clients normally defer to the special knowledge and skill of their lawyer with respect to the means to be used to accomplish their objectives, particularly with respect to technical, legal and tactical matters.

Objectives, Means & The Appellate Brief

Applying this rule to appellate lawyers writing briefs seems straightforward.  When a client decides to appeal a trial court decision, the objective is simple; reverse or somehow otherwise turn the trial court’s decision to the appellant’s favor.  An appellee has the opposite objective—convince the appellate court to affirm what the trial court did. (Of course, I’m oversimplifying a bit here—there could be other objectives like, for example, filing an appeal to encourage the other side to settle.  But generally, the client’s objective is to win on appeal.)  Once the objective of winning on appeal has been set, appellate lawyers, after consulting with the client, decide upon the means to accomplish those objectives. In the context of the appeal, those means almost certainly include crafting winning arguments in the appellate briefs.   In that case, it would seem that the lawyer’s rhetorical choices, that is, the strategies and tactics of persuasion the lawyer chooses in writing an appellate brief, are the means of accomplishing the client’s objective.  If that’s the case, then the ethics rule above suggests that the client should defer to the lawyer on those choices.

So, we might conclude that content of the brief is almost always the means and not the objective of representation.  In other words, it is the appellate lawyer’s task to decide on the strategies and tactics of producing persuasive arguments, of engaging in rhetoric as a productive art.  (I wrote about this concept of rhetoric as productive art last month.)  If rhetoric is a productive art, then one would think that all of the rhetorical choices in a brief, including what issues and arguments to raise and how to raise them are within the lawyer’s purview to decide.  Maybe consultation is required under the ethical rule, but nothing more.  (In fact, in states with ethics codes like Florida, the comments to the rule suggest the lawyer is to “accept responsibility” for the means, which is slightly more clear than the ABA’s Model Rules on the role of the lawyer regarding the means.)

But is it really such an easy call, to say that it is ethical for the lawyer to make decisions about the choices about what is persuasive in a a brief?  Maybe, maybe not.   Perhaps surprisingly, the United States Supreme Court has something to say about this question in the context of the Sixth Amendment right to effective assistance of counsel in criminal cases on appeal.  Even if one is a civil appellate lawyer without the constitutional obligations of the criminal appellate lawyer, the case is nevertheless a fascinating case to know something about, because the opinion helps us ask questions and think more deeply about the rhetorical choices lawyers make when they write appellate briefs.

Raising Issues on Appeal:  The Supreme Court’s View in Jones v. Barnes

In 1976, a New York state jury convicted David Barnes of robbery and assault.  Michael Melinger was assigned to represent Barnes on appeal.  From prison, Barnes contacted Melinger, sending him a letter identifying the issues that Barnes thought should be raised on appeal.  Barnes also enclosed his own pro se brief.

Melinger responded to Barnes rejecting most of his suggested issues and inviting Barnes to consider and respond to the seven issues Melinger concluded could be viable on appeal. Barnes never responded.

In the end, Melinger’s appellate brief (and his oral argument) included three of the seven issues he originally identified and none of Barnes’s.  But Melinger also filed with the appeals court Barnes’s pro se brief.  Melinger lost the appeal.

In later proceedings seeking relief from his conviction, Barnes alleged that because Melinger refused to raise the issues that Barnes wanted raised on appeal, Melinger had provided ineffective assistance of counsel under the U.S. Constitution’s Sixth Amendment guarantee of a defendant’s right to counsel.

This issue eventually made its way to the United States Supreme Court, and in 1983, the Supreme Court held that Melinger did not violate the Sixth Amendment when he refused to raise the issues Barnes had wanted. Ultimately, the Court, said, an indigent defendant had no constitutional right to “compel counsel to press nonfrivolous points requested by the client, if counsel, as a matter of professional judgment, decides not to press those points.”

The appellate advocate’s “superior skill” and “professional judgment” in selecting the most persuasive issues on appeal occupied most of the Court’s reasoning in the majority opinion.  Citing commentators on appellate advocacy, the court celebrated the skill of the “discriminating advocate” to “winnow[] out weaker arguments on appeal and focus on  . . . at most a few key issues.”  A good appellate advocate knows, the Court implied, which issues are most “promising” for appeal,  and the lawyer should be the one to choose which of the “few major points” should be raised.  The discerning appellate advocate knows that raising too many issues in a brief “dilutes the force of the stronger ones.” Ultimately the Court said, “A brief that raises every colorable issue runs the risk of burying good arguments—those that  . . . ‘go for the jugular,” . . .—in a verbal mound made up of strong and weak contentions.”

In a footnote, the majority implied that not only would a lawyer act constitutionally in selecting the issues on appeal, they would act ethically as well. The footnote pointed to the ethical duty of the lawyer for the means under the recently adopted Model Rules of Professional Conduct Rule 1.2(a) and noted that the rule expects the lawyer to “take professional responsibility for the conduct of the case, after consulting with the client.” 

In his concurrence, Justice Blackmun agreed with the majority that Melinger did not violate the Constitution regarding the “ideal allocation of decision-making authority between lawyer and client.”  But, Blackman said, as a matter of ethics, he thought an appellate attorney should advise the client on the issues “most likely to succeed,” and, in the end, “should argue on appeal all nonfrivolous claims upon which his client insists.”

Dissenting, Justice Brennan concluded that Melinger’s apparent refusal to raise Barnes’s issues on appeal violated the Sixth Amendment.  At least in the context of an indigent defendant with court-appointed counsel, the autonomy and dignity of that defendant is the dominant concern, Brennan said. Accordingly,  the defeindant retained the right to make the decision about which nonfrivolous issues to raise on appeal, even if that went against the advice of counsel. Even though Brennan agreed with the majority that “good appellate advocacy demands selectivity among arguments,” and that advice “should be taken to heart by every lawyer called upon to argue and appeal,” he found that indigent defendant did not have to follow that advice.  Brennan noted that the ABA’s Criminal Justice Standards (still in effect today) stated that, as an ethical matter, the decision about what “contentions” to “press” on appeal was to be decided by the client.

Brennan was further skeptical of the majority’s view of the importance of the lawyer’s rhetorical choices at the appellate stage. He thought that judges could effectively recognize meritorious arguments, even if the lawyer did not do such a great job in separating the wheat from the chaff.  Brennan said:  “[E]ven if [arguments are] made less elegantly or in fewer pages than the lawyer would have liked, and even if less meritorious arguments accompany it, [a judge can recognize a good argument.]  If the quality of justice in this country is really dependent on nice gradations in lawyers’ rhetorical skills, we could no longer call it ‘justice.’” In only a handful of cases, “especially at the appellate level,” Brennan observed, would “truly skillful advocacy” make a difference in vindicating good claims and rejecting bad ones.

Some Thoughts About Decision-Making, Ethics, and Rhetorical Choices in Appellate Briefs

So, what then, do we have here? 

Ethically, the Model Rules establish lawyers are responsible, after consultation with the client, for the means of the case and, clients, the objectives.  The majority of the Supreme Court holds in Jones that it is constitutional for a lawyer to decide which issues to raise in a criminal appeal and suggests in dicta that selecting issues on appeal is, for ethics purposes, a mean for which the lawyer is responsible.  Conversely, both the concurrence and dissent suggest that the decision about which issues to raise on appeal are so important for a criminal defendant that, ethically (in Blackmun’s dicta) and constitutionally and ethically (in Brennan’s opinion), the choice is an objective for the client to decide.

The implications for Jones v. Barnes are clear for the appellate lawyer representing indigent criminal defendants:  constitutionally, if the lawyer wants to take over the decision-making about what to raise on appeal, the lawyer can do so.  (While the Supreme Court suggests it is also ethical, that is dicta, and the ABA’s Criminal Justice Standards suggest a different result.  The ethics, then, are perhaps not so clear.) For civil appellate lawyers,  on the other hand, the implications of Jones are indirect but interesting.  The opinion is worth contemplating because it gets us thinking about the ethics and professionalism of rhetorical choices in briefs and whether rhetorical choices in briefs have any meaning at all.

            Is brief writing a mean or an objective?

On its face, one might not immediately think about the ethics of decision-making allocation when deciding how and what to write in an appellate brief.  It might seem counterintuitive that the choice about whether to raise a particular issue would be anything other than a mean for accomplishing the client’s objectives.  Accordingly, most lawyers, while consulting with their clients about the brief and perhaps even taking suggestions on a brief’s contents, would consider themselves to be ultimately responsible for making choices about how the brief will persuade. 

But Jones might make the appellate lawyer pause and consider whether there are situations in the civil context where the issues raised on appeal are objectives rather than means.  One might imagine that experienced appellate lawyers can readily share stories where they found themselves in that situation.  In some contexts, perhaps, the client’s desire to have their voice be heard in a particular way or to “have their day in court” becomes a driving force behind the content of the brief, even if the lawyer doesn’t necessarily think that every issue or argument raised in the brief is legally important.  Instead, those issues and arguments might be seen to have a different rhetorical importance—to create in the client feelings of meaningfulness, to feel heard, to feel seen.  Maybe Brennan’s argument for client autonomy and dignity in Jones, even if only analogically and in principle, should extend to all appellate litigants.

            Are legal issues created or identified?

Another question Jones raises is the nature of “issue identification” as a rhetorical  (i.e., persuasive) act.  That is, do lawyers create issues for argument or do they find them?  In other words, if issues raised on appeal are the product of a lawyer’s rhetorical imagination—the product of the lawyer’s ability to invent argument—then the case for issues identification as a mean rather than an objective of the representation is stronger.  But, if the legal issues exist outside of the lawyer’s imagination, only to be identified rather than created, then maybe there’s less of convincing argument that choosing issues on appeal is a means instead of an objective.

But, on the other hand, even issue identification is a rhetorical act.  Aristotle, for example, suggested that logical arguments are informed by artistic and inartistic proofs.  Artistic proofs, Aristotle said, are created by the rhetor.  An inartistic proof exists in sources outside the rhetor, such as in documents, facts, and other data.  So, even if the issues to be raised on appeal are inartistic and not a product of the lawyer’s inventive capacities, there are still rhetorical choices a lawyer makes in finding and selecting those issues. (I tend to think that legal issues are created rather than found, but that depends on one’s view of the rhetorical situation. This classic debate between rhetoric scholars Lloyd Bitzer and Richard Vatz gets at that issue.)

            Which rhetorical choices are means? Which ones are objectives?

Another question that Jones evokes is, if one agrees with Brennan’s view that some rhetorical choices are objectives rather than means, then which ones are which?   For example, an appellate brief should have a theme.  If, as Brennan suggests, the choice of issues can be an objective, is the theme an objective or a mean?  How about metaphors?  How about references to history or popular culture that help make a point?  All of these choices give an appellate brief its character. Does that character belong, ultimately and ethically, to the lawyer or the client?  Whose rhetoric—the lawyer’s or the client’s—should a brief reflect? And then, what should the appellate lawyer do about it?

            Does the appellate lawyer’s professional expertise in legal rhetoric matter?

And finally, what might appellate lawyers make of Justice Brennan’s suggestion that except for a small handful of cases, the lawyer’s rhetorical choices in a brief—good or bad—are not so important?  Brennan’s argument is just the opposite of the majority’s, which places great value on the professional expertise of the appellate lawyer.  Brennan, instead, minimizes the value of the appellate lawyer’s contribution to justice, suggesting instead that, in most cases, judges can figure out the right result regardless of the effectiveness of the brief writing.  If that is the case, what is the value the appellate lawyer adds in anything but a handful of cases?  If the rhetorical, i.e., persuasive, writing of the appellate lawyer does not matter so much, then what does matter?  And, if persuasive writing doesn’t really matter, then maybe in appellate brief writing, it doesn’t really matter if rhetorical choices are objectives or means.

Ultimately, I think that the lawyer’s rhetorical skill is most often a means to accomplish the client’s objectives that is influential and meaningful in the judicial process. That skill guides the decision maker, invents effective argument, brings perspective, and, perhaps, most importantly, shapes the law.  Brennan acknowledged in his dissent that lawyers do, in some cases, help “shape the law.” This impact is even more obvious where judges, in written opinions, overtly respond to the arguments that the lawyers have raised.  And an appellate lawyer’s writing, if not legally, then materially, gives the client voice in a system that may seem to be impenetrable, incomprehensible, and unfair.  This makes the appellate lawyer’s rhetorical skill critical, particularly for clients who are not able to effectively do that for themselves regardless of whether a judge can find the just result all on their own.

That being said, Jones v. Barnes reminds that even if rhetorical choices in brief writing are most likely a means to accomplish the client’s objectives and that civil appellate lawyers are most often the last line of decision-making in which issues to raise on appeal, clients of all stripes deserve an opportunity to influence and their own voice to those choices.  In fact, that kind of consultation can make briefs even more rhetorically effective because clients can invent arguments, too.

What have I missed in my analysis here? What do you think the ethics and rhetoric of raising issues in briefs? Your thoughts are welcome in the comments below.

Kirsten Davis teaches at Stetson University College of Law and in the Tampa Bay region of Florida. She is the Director of the Institute for the Advancement of Legal Communication. The Institute’s mission is to study legal communication issues and provide programming and training that improves legal communication skills. Among other things she’s up to right now, she’s currently serving on the Florida Bar Association’s Special Committee on Professionalism. The views she expresses here are solely her own and not intended to be legal advice. You can reach Dr. Davis at kkdavis@law.stetson.edu.