Thursday, February 27, 2014
This past weekend Professor Lucy Jewel and I presented Categories! A Cognitive Rhetorician’s Approach to Logos and Pathos at the Psychology and Lawyering: Coalescing the Field conference held at the William S. Boyd School of Law at UNLV. The conference itself was superb and presented abundant opportunities to learn about the intersections of law and psychology. The field of cognitive psychology offers insight into how individuals receive and process information, so it presents a gold mine for studies in persuasion. My first few blog posts will tap into this area to offer some of the insights we developed for the presentation on categories.
Principles of cognitive psychology teach us that categorizing objects is natural. Indeed, categorizing is essential to our very survival. Just imagine the cognitive overload if we had to reprocess every daily experience as if it were brand new. Categories form a figurative box permitting us to create cognitive shortcuts to quickly determine whether something fits in or falls out. Categories facilitate the creation of prototypes. For example, if I ask you to think of a bird, you will likely picture something like a sparrow or a robin rather than a penguin. By the same token, categorizing at the fringes presents difficulty—have you ever pondered whether a tomato is a fruit or a vegetable? Categorization also leads to dichotomous thinking—yes/no, black/white, in/out—even though the world cannot be broken down into such simplistic terms.
Because categories tend to oversimplify the complexities of everyday life, they can sometimes interfere with our ability to candidly assess the world. In the instant we categorize something, we cease to see that something for what it truly is. Rather, we only look at how it fits within the assigned category.
Since individuals process and categorize based on their personal experiences, appellate advocates must become adept at predicting existing categories and either utilizing or changing them to advance their clients’ positions. An essential component of persuasive advocacy is reaching the audience in a way that the audience can understand the message. Through categories, an advocate can tap into pre-existing cognitive shortcuts for the benefit of the client. Conversely, if the pre-existing category is detrimental to the client, an advocate may need to insulate against any implicit bias or prejudice that the category is likely to produce.
Regarding categories, Anthony Amsterdam and Jerome Bruner, in their book Minding the Law, posit seven principles:
- Categories are made, not found.
- Categories imply a world that contains them.
- Categories are not always clean-cut.
- Categories serve a particular function
- Categorizing is an act of meaning making.
- Categories become entrenched in practice.
- Categories are never final.
My next several posts will take these principles in turn, break them down, and provide strategies for effectively managing cognitive categories. For now, I leave you to consider the power of categories and the great potential for challenging categories inherent in appellate advocacy. Think about the attorneys who challenged the existing category of separate but equal in the case of Brown v. Board. By deconstructing the doctrine of separate but equal, the advocates were able to reconstruct a new category rooted in the principle that separate is inherently unequal. In a different way, Abe Fortas deconstructed a negative category surrounding his client, Clarence Earl Gideon, to successfully argue for a defendant’s right to counsel in both state and federal proceedings. If we stop to think about it, nearly every landmark Supreme Court case has relied on the successful management of categories.
Wednesday, February 26, 2014
Well-constructed argument headers are a brief-writer’s first opportunity to state a narrow thesis and encapsulate the proof to come. But a poorly planned point header or subheader can leave your reader running in circles. Make your point straightforward by avoiding circular reasoning. For novices, one of the most common iterations of this problem is to state that the client can satisfy the applicable legal test. More experienced legal writers often fall into a subtler form of the same trap, as shown in the “somewhat better” example here:
Poor example: The covenant not to compete contains a reasonable geographic area because Acme can prove it meets the standard for reasonableness.
Somewhat better: The covenant not to compete contains a reasonable geographic area because Acme can show its scope is not too large.
Good example: The covenant’s geographic scope is reasonable because it matches Jones’s sales region and contains 20% of Acme’s active client base.
The difference between the poor and better examples is a slight narrowing of the legal rule; “not too large” is a slightly more specific rendition of “reasonable,” but still basically the same idea. What makes the good example so much improved is that it incorporates two much narrower factors from the test along with the key facts that prove them.
The factors can be inferred from the facts. “Matches Jones’s sales region” indicates that the territory restricted to the employee must be commensurate with his or her former area of activity. “Contains 20% of Acme’s active client base” suggests that another factor is whether the restriction continues to protect a significant business interest.
Finally, the header manages to stay concise by narrowing the issue; it focuses not on whether the entire covenant is reasonable but on whether the geographic restriction is reasonable.
Accordingly, the takeaway is: don’t prove a rule with another rule; prove it with facts, and focus only on the narrow issue at hand.
Stadium Image: L. Willms (Own work) [CC-BY-SA-3.0], via Wikimedia Commons
Tuesday, February 25, 2014
A recent piece in the Legal Intelligencer by Howard Bashman examines the issue of what denial of oral argument means for the likelihood of a reversal. He's exactly right (the answer is "dismal" but not impossible) and for the right reasons (multifarious factors go into deciding an appeal).
I would add, though, that the main reason for being denied oral argument in the federal appellate courts is that the case has been tracked in a way that gets less process and less Article III judge attention overall.
The column is certainly worth a read.
Sunday, February 23, 2014
Monday, February 17, 2014
Catching up on some blog reading over the weekend, I noticed that the Sixth Circuit Appellate Blog has a recent post on the issue, Practitioner Perspective: Oral Arguments. How timely. The post is an interview with Sixth Circuit Appellate Blog Editors, Pierre Bergeron and Phil Calabrese, and it covers several different issues related to oral arguments. The pair gives some great advice, particularly on preparation and directness. As this blog has previously noted, appellate courts expect a high level of preparation and expect you to respond to their questions and address their issues. Being unprepared or unresponsive is a recipe for disaster.
What interested me most, though, were the first couple paragraphs about the importance of oral argument. As I'm sure my last post made clear, I think it's very important, and at a systemic level, it bothers me that both the number and duration of oral argument has been diminshed. So I was interested in the practitioner's perspectives:
What is your view on the current importance of oral arguments?
Pierre: For the average appeal, oral arguments are less important today than they used to be. And you see courts cutting back on the number of oral arguments in recognition of that fact, instead relying on the briefs. But the flipside of courts cutting back on the number of oral arguments is that when you are scheduled for oral argument it suggests some significance. So you could also view oral arguments today as being more important than ever because if the court schedules your case for argument then it has probably decided that something in the oral argument could help its decision.
I agree. As a descriptive matter, fewer oral arguments means that orality is less important to appeals than briefing. But when you are granted oral argument, it takes on greater importance than in the average appeal. It signals that oral argument may allow one to influence the court.
Going beyond the descriptive, oral arguments are important for several reasons, including providing litigants: 1) engagement in the decisionmaking process; 2) an opportunity to be heard; 3) an opportunity to affect the outcome; and 4) the opportunity to affect the scope or breadth of the decision, even if the outcome is unchanged. There are also benefits to the judiciary and legal system such as greater legitimacy, transparency, and judicial engagement.
Check out the whole post, it's a quick read with some good practitioner insights.
Sunday, February 16, 2014
For our academic readers: the Institute for Law Teaching and Learning is holding its Spring conference on April 5 in sunny Little Rock. Assessment of student learning is more than just writing a good exam. It should be happening in every class, and there are many small, easy ways you can learn at this conference. Here are the details:
Assessment Across The Curriculum
Institute for Law Teaching and Learning Spring Conference 2014
Saturday, April 5, 2014
“Assessment Across the Curriculum” is a one-day conference for new and experienced law teachers who are interested in designing and implementing effective techniques for assessing student learning. The conference will take place on Saturday, April 5, 2014, at the University of Arkansas at Little Rock William H. Bowen School of Law in Little Rock, Arkansas.
Conference Content: Sessions will address topics such as
· Formative Assessment in Large Classes
· Classroom Assessment Techniques
· Using Rubrics for Formative and Summative Assessment
· Assessing the Ineffable: Professionalism, Judgment, and Teamwork
· Assessment Techniques for Statutory or Transactional Courses By the end of the conference, participants will have concrete ideas and assessment practices to take back to their students, colleagues, and institutions. Who Should Attend: This conference is for all law faculty (full-time and adjunct) who want to learn about best practices for course-level assessment of student learning. Conference Structure: The conference opens with an optional informal gathering on Friday evening, April 4. The conference will officially start with an opening session on Saturday, April 5, followed by a series of workshops. Breaks are scheduled with adequate time to provide participants with opportunities to discuss ideas from the conference. The conference ends at 4:30 p.m. on Saturday. Details about the conference are available on the websites of the Institute for Law Teaching and Learning (www.lawteaching.org) and the University of Arkansas at Little Rock William H. Bowen School of Law (ualr.edu/law).
Conference Faculty: Conference workshops will be taught by experienced faculty, including Michael Hunter Schwartz (UALR Bowen), Rory Bahadur (Washburn), Sandra Simpson (Gonzaga), Sophie Sparrow (University of New Hampshire), Lyn Entrikin (UALR Bowen), and Richard Neumann (Hofstra).
Accommodations: A block of hotel rooms for conference participants has been reserved at The DoubleTree Little Rock, 424 West Markham Street, Little Rock, AR 72201. Reservations may be made by calling the hotel directly at 501-372-4371, calling the DoubleTree Central Reservations System at 800-222-TREE, or booking online at www.doubletreelr.com. The group code to use when making reservations for the conference is “LAW.”
Image: Tulane Public Relations (Dinwiddie Classroom Uploaded by AlbertHerring) [CC-BY-2.0 (http://creativecommons.org/licenses/by/2.0)], via Wikimedia Commons
I have always found the slogan "Virginia is for Lovers" somewhat ironic ever since reading, in law school, the infamous Loving v. Virginia case that dealt with Virginia opposing the loving (interracial marriage) of a black woman and a white man. Even after that 1967 Supreme Court case, the slogan continued to hold curious meaning with Virginia's opposition of gay marriage. This makes the 2014 Bostic v. Rainey decision impactful to the Virginian loving lore.
District Court Judge Arenda L. Wright Allen, nominated to the Virginia federal court in 2011, has brought national attention to her opinion, issued on the eve of Valentine's Day, when she closed by stating that:
"We have arrived upon another moment in history when "We the People" becomes more inclusive, and our freedom more perfect."
I wonder if we have arrived at a more perfect appreciation for love in this Commonwealth where I reside. I suppose the answer to this question will come by the time the deadline for appealing this decision has passed.
Saturday, February 15, 2014
I am sure many advocates will agree that after spending countless hours hashing out arguments in a 20-30 page brief, followed by the painstaking task of crafting an accurate table of authorities, not to mention putting together a clear, concise and persuasive table of contents, the last thing one wants to spend a vast amount of time on is the appendices. In fact, this section is typically an afterthought. After adding the opinion below and the relevant statutes, many advocates stop there (dare I say some even neglect to do the before-mentioned necessities?!). A recent decision should have all appellate advocates reconsidering the attention paid to the appendix section and the relevant FRAP and Circuit rules.
As a nice addition to Professor Burch's post on 7th Circuit Judge Posner, Judge Easterbrook has also openly expressed his frustration about counsel. In the case of United States v. Johnson, decided February 6, 2014, Judge Easterbrook's opinion dedicated approximately four (4) pages towards analyzing and deciding the appeal, followed by almost an equivalent amount of pages blasting Johnson's counsel for his failure to follow Circuit Rule 30(a), 30(b)(1), and 30(d).
Circuit Rule 30 deals with the appendices.
30(a) provides that:
a) Contents. The appellant shall submit, bound with the main brief, an appendix containing the judgment or order under review and any opinion, memorandum of decision, findings of fact and conclusions of law, or oral statement of reasons delivered by the trial court or administrative agency upon the rendering of that judgment, decree, or order.
30(b)(1) provides that:
b) Additional Contents. The appellant shall also include in an appendix:
(1) Copies of any other opinions, orders, or oral rulings in the case that address the issues sought to be raised. If the appellant's brief challenges any oral ruling, the portion of the transcript containing the judge's rationale for that ruling must be included in the appendix.
30(d) provides that:
(d) Statement that All Required Materials are in Appendix. The appendix to each appellant's brief shall contain a statement that all of the materials required by parts (a) and (b) of this rule are included. If there are no materials within the scope of parts (a) and (b) of this rule, counsel shall so certify.
Judge Easterbrook took counsel to task on these rules. Specifically, he indicated that counsel violated 30(a) and 30(b)(1) by failing to file the transcript of the trial judge's decision on the motion germane to the appeal. Counsel's contention that this oversight was due to being recently retained counsel was found unpersuasive because the transcript could have been supplemented in the Reply Brief if not ready when the initial brief was filed. When counsel certified, pursuant to Rule 30(d), that the brief contained all of the required parts pursuant to 30(a) and (b) mandates, he subsequently violated that rule as well.
It is the violation of 30(d) that seems to bring the most harsh words from Judge Easterbrook. Because the Judge deemed counsel to be knowledgeable about the omission of the critical transcript, he not only sanctioned counsel $2,000 for the violation, but also left him with some strong words to consider:
"Brindley may not have set out to develop a reputation as a lawyer whose word cannot be trusted, but he has acquired it. This opinion serves as a public rebuke and as a warning that any further deceit will lead to an order requiring Brindley to show cause why he should not be suspended or disbarred."
Friday, February 14, 2014
This article in the ABA Journal provides a link to the argument where Posner tells the attorney representing Notre Dame in its "contraception mandate" case to "stop babbling." Posner and the attorney repeatedly talked over each other, and some media sources are using this as an example of "how not to conduct an oral argument." Take a listen and see if you think that's fair.
Thursday, February 13, 2014
Just over a year ago, Steve Wisotsky and I published an article documenting, and to be frank, bemoaning, the decline of oral argument in the federal courts of appeals. The Decline of Oral Argument in the Federal Courts of Appeals: A Modest Proposal for Reform, 13 J. App. Prac. & Process 119 (2012). Oral argument is just one of a number casualties of the caseload crunch of the 1970s and 80s. Oral argument has gone from being routinely granted and thirty minutes per side to rarely granted and often fifteen minutes or fewer per side. This dramatic reduction coincides with an increase in early tracking of cases into those that receive more appellate process and those that recieve less. The decline oral argument also coincides with a significant decline in reversal rates across all categories of federal appeals. Sacrificing oral argument on the altar of efficiency both reveals and causes a significant diminishment of appellate values. Or so Steve and I argue.
So it was with great interest that I read Joshua Stein's article, Tentative Oral Opinions: Improving Oral Argument Without Spending a Dime, 14 J. App. Prac. & Process 159 (2013), in which he offers an idea for improving the quality of oral arguments. The abstract:
This article explores use of the tentative opinion, two types of which were pioneered by California appellate courts. In 1990, the Second Division of California’s Fourth District Court of Appeal (which sits in Riverside) began disseminating written draft opinions in advance of oral argument. The measure received acclaim from appellate advocates, but did not beget imitation by other courts. In late 2011, however, an appellate court in Los Angeles (the Eighth Division of the Second District) began issuing tentative opinions orally at the beginning of argument. This approach, referred to here as the “oral tentative,” represents an attractive alternative to the written version, which has failed to catch on in other courts.
I was only passingly familiar with this practice, so it was interesting to read about its use in two districts within the California appellate system. I'm not persuaded that it could, or should, be adopted more widely, though. Issuing a tentative opinion a week or so before the oral argument offers advocates the opportunity to tailor their oral arguments to the judge's concerns at cost of requiring courts to review the case in advance and write a tentative opinion. I understand how this benefits the advocate, and perhaps improves the quality of the oral argument, but it does so by shifting the cost of assessing the most important and persuasive arguments to the courts.
An oral tentative opinion, offered immediately prior to the argument, comes too late to offer advocates an ability to focus their oral arguments. I fail to see how a tentative opinion offered in the moments prior to the argument offers any significant advantage over a judge asking questions or even offering such opinions during argument. The only one that comes to mind is that the oral tentative time doesn't come out of the advocates' very limited oral argument time.
I come away thinking that these practices are a result of the California system's requirement that appeals be resolved within ninety days of submission. This "ninety-day rule" forces judges to issue opinions close on the heels of oral argument. Because the system forces judges to prepare a nearly final draft prior to the oral argument, there is little additional cost to distributing that in some form to the advocates. But for any system without such a built-in requirement, I'm skeptical of its utility or desirability. Still, I recommend Stein's article and invite your opinions on the practice.
February 13, 2014 in Appellate Advocacy, Appellate Court Reform, Appellate Justice, Appellate Practice, Appellate Procedure, Federal Appeals Courts, Oral Argument, State Appeals Courts | Permalink | Comments (1)
Tuesday, February 11, 2014
This morning, A Public Defender offers a thoughtful and well documented post about whether and when appellate courts can raise issues sua sponte. As with most things in our field, the answer is "it depends." The post explains the whys, hows, and whens.
Hat tip: Jennifer Murphy Romig, Emory Law School
Image: By walknboston (Flickr: Gavel) CC-BY-2.0, via Wikimedia Commons
Thursday, February 6, 2014
I have heard plenty of dialogue about whether or not attorneys should "respectfully request" that the court rule in a specific fashion. Likewise, I have also heard plenty of debate about whether or not attorneys should "respectfully disagree" with the judges during oral argument. It seems that adding the word "respectfully" is an unnecessary guise for professionalism and politeness, and merely eliminating that words does not diminish the respect the advocate has for the court.
Regardless of what we think about attorney usage of the "respectful request", have you ever heard a court "respectfully request that an appeal be denied"? Over at Volokh Conspiracy, he discusses how this is a growing trend in Pennsylvania. Apparently, in situations where the losing party is likely to appeal the trial court's decision, the court includes a statement at the end of its opinion asking the appellate court to either affirm the order of the trial court or deny the appeal.
Interesting concept. I wonder whether it actually impacts the decision of the appellate court or if it is viewed as a formulaic statement that is ultimately ignored. I'd love to hear from a PA attorney or judge familiar with this practice. I encourage you to check out the post over at Volokh.
Wednesday, February 5, 2014
Sometimes a good snow day gives us a rare chance to slow down and reflect on life, or just to recharge our batteries (after digging out, of course). If you'd like a little professional inspiration for your teaching or that tough appeal you're working on, take a few minutes to learn about Beatrice Mtetwa, a human rights lawyer in Zimbabwe and the subject of a new documentary by Lorie Conway, Beatrice Mtetwa and the Rule of Law.
To get acquainted with her work and story, get inspired by the short, three-minute film trailer or a longer, nine-minute trailer; visit the documentary homepage; or absorb an in-depth Q&A session hosted by the International Bar Association.
Hat tip: The Guardian, Courage of Zimbabwe Human Rights Lawyer Captured in Film
Image: Stephen Morley (Based on File:BlankMap-Africa.svg) [CC0], via Wikimedia Commons ("A map of Africa showing countries' scores on the Safety and Rule of Law category of the Ibrahim Index of African Governance")
Tuesday, February 4, 2014
The Appellate Practice Section of the Georgia Bar will be hosting a seminar in Atlanta on February 25. I've copied the notice below. Speakers include several members of the Georgia Supreme Court, several members of the Georgia Court of Appeals, and several respected appellate attorneys who practice in those courts.
Make your plans now to attend the Georgia Appellate Practice seminar. This section sponsored event will be Feb. 25, at the Bar Center in Atlanta.
- Preserving the Issues for Appeal
- Keys to an Effective Oral Argument
- How to Get What Isn't Necessarily Yours: Discretionary Relief in Both of Georgia's Appellate Courts
- The Future of the Georgia Appellate Courts: The Jurisdictional Divide
- Do I have an Appeal? Interlocutory and Discretionary Avenues
- Professionalism in the Appellate Process
- Appellate Briefs: What Works, and What Doesn't
- The Two-Term Rule: Implications for Jurists and Practitioners
The program qualifies for 6 CLE Hours including 1 Professionalism Hour. For additional information and to register for this program, visit the ICLE website by clicking here.
Monday, February 3, 2014
Is link rot destroying stare decisis as we know it? That's a great question. If appellate courts are citing to internet sources and those sources are disappearing (link rot), often within just a few years, that does seem to pose a problem for future litigants and courts in determining the basis for the earlier courts' decision.
Arturo Torres, Associate Dean for Library and Information Technology and Professor of Law at the Texas Tech University School of Law, tackled this issue in: Is Link Rot Destroying Stare Decisis as We Know It? The Internet-Citation Practice of the Texas Appellate Courts, 13 J. App. Prac. & Process 269 (2012). The abstract:
In 1995 the first Internet-based citation was used in a federal court opinion. In 1996, a state appellate court followed suit; one month later, a member of the United States Supreme Court cited to the Internet; finally, in 1998 a Texas appellate court cited to the Internet in one of its opinions. In less than twenty years, it has become common to find appellate courts citing to Internet-based resources in opinions. Because of the current extent of Internet-citation practice varies by courts across jurisdictions, this paper will examine the Internet-citation practice of the Texas Appellate courts since 1998. Specifically, this study surveys the 1998 to 2011 published opinions of the Texas appellate courts and describes their Internet-citation practice.
While it appeared in the Journal's Fall 2012 issue, it just popped up on SSRN last month, which makes it current enough to discuss I suppose. The article does a careful and detailed empirical analysis of Texas Supreme and intermediate appellate courts' use of internet citations, citations to publicly available URLs, by court and overall. It then follows up on the internet citations used in these opinions and determines that, of internet citations used in the period between 1998 and 2011, nearly 40% of them no longer function. Table 10 on page 294 documents the link rot year over year, with citations in the late 90s and and early 2000s being mostly non-functional. In addition to documenting the link rot, the article also parses the data in a couple other interesting ways, showing us which courts are more likely to use internet citations and which domains (such as .com, .gov, etc.) are most cited.
In my estimation, the article doesn't really answer whether this admittedly frequent link rot does destroy stare decisis. To answer this question would require examining how the citations were being used and whether their absence affects our ability to understand and apply the cases. The answer may well be "yes," and its a problem that should be addressed regardless, but it may well be that a qualitative analysis of internet citation use proves the loss of these links to be insignificant. For example, if the appellate court gives the substance drawn from the source before citing it, it may often be the court's own adoption or application that matters, and not the availablility of the underlying source. For this or other reasons, link rot may have only a de minimis affect on stare decisis.
Finally, the author's data sorting methodology strikes me as a bit ironic, although this might just be my sensitivity to the issue of unpublished opinions in appellate courts. But given this article's concern with stare decisis, and its conclusion that link rot a priori erodes stare decisis, I was surprised that it completely omits unpublished decisions from the data set. It would seem to me that wholesale elimination of entire appellate opinions (especially in the large volume designated as unpublished) represents a more blatant affront to stare decisis.
Sunday, February 2, 2014
In the category of "not quite new" news, the American Arbitration Association amended its rules effective November 1, 2013. While a number of rules were amended (as discussed more thoroughly at ADR Prof Blog), a significant rule addition of interest to appellate practitioners is the inclusion of an appeals process. This is significant because opponents of arbitration have long argued that arbitration has a much greater likelihood than traditional court litigation to end up with unjust conclusions. This concern is premised on the possibility that arbitrators, some being non-lawyers, may not properly construe the law - resulting in inconsistent and perhaps inconceivable outcomes. When you couple this concern with a strict standard of review on appeal, it is understandable why some people shy away from arbitration.
As it stands without consideration of the AAA rule change
When a party appeals an arbitral award, the Federal Arbitration Act (FAA) section 10 dictates the very limited areas where vacatur is permissible. These primarily include:
(1) where the award was procured by corruption, fraud, or undue means;
(3) where the arbitrators were guilty of misconduct in refusing to postpone the hearing, upon sufficient cause shown, or in refusing to hear evidence pertinent and material to the controversy; or of any other misbehavior by which the rights of any party have been prejudiced; or