Appellate Advocacy Blog

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

Monday, March 31, 2014

CATEGORIES 201: Categories are Made, Not Found

This post is the second in the series on Categories that I began late in February.  Today we begin with the first premise: categories are made, not found.  As lawyers, we often take for granted the applicability of pre-existing categories of law.  The doctrine of stare decisis has a stronghold on our legal thought processes.  History teaches us, however, that the law has the ability to evolve and redefine over time.  This phenomenon has been described by Anthony Amsterdam and Jerome Bruner in their book, Minding the Law.  They observe that “category systems derive from canonical general theories of the world and template narratives about life; when these theories or narratives are contorted too much or too obviously, when they come to be seen as endangered, we have culture wars and fierce debates about paradigm shifts…” 

Over the last few years, the Supreme Court has been engaged in just this sort of fierce debate over Fourth Amendment jurisprudence.  Historically, the Fourth Amendment has been categorized as a privacy interest, which the Court defined in Katz v. United States, 389 U.S. 347 (1967).  In 2012, however, the Court articulated a new category of Fourth Amendment protection related to property interests.  United States v. Jones, 132 S. Ct. 945 (2012).  Since then, the Court has been unable to reach strong consensus on its Fourth Amendment jurisprudence, as marked by cases such as Bailey v. United States, 133 S. Ct. 1031 (2013), Missouri v. McNeely, 133 S. Ct. 1552 (2013), Florida v. Jardines, 133 S. Ct. 1409 (2012), and Maryland v. King, 133 S. Ct. 1 (2012), among others.  This new category has prompted a fruit-basket turnover in terms of the alliances amongst the members of the Court, and resolution of Fourth Amendment cases is more unpredictable than ever.  Brooks Holland, Associate Professor of Law at the Gonzaga University School of Law, provides a concise analysis of the competing jurisprudential categories that have emerged since the Jones decision in his review of The Fourth Amendment in the October 2012 Term

The recent evolution of Fourth Amendment jurisprudence proves that the Court is willing to redefine categories of law, even well-established ones.  This evolution does not necessarily occur sua sponte, though.  Appellate advocates participate in the creation of new categories by breaking down existing barriers and reconstructing new ones.  Consider how each case begins with a given set of facts and law.  Within those facts and law, the advocate has the power to tap into pre-existing categories or create new ones.  If a pre-existing category supports the desired result, exploiting that category and relying heavily on principles of stare decisis would be beneficial to the advocate and would perpetuate the existing category.  By the same token, when the law or facts are not easily categorized in existing frameworks, or the existing framework demands a negative result, the advocate must deconstruct and redefine the boundaries in a way that is acceptable to the reader. 

These paradigm shifts, of course, take time.  Recall, that “category systems derive from canonical general theories of the world and template narratives about life.”  (Minding the Law)  Thus, to achieve success an advocate should attempt redefine the law by connecting new categories to life narratives that are already familiar to the reader, just as Justice Scalia in Jones was able to recategorize Fourth Amendment jurisprudence in terms of property doctrine that the Court already understood.

March 31, 2014 in Appellate Advocacy, Appellate Procedure, Rhetoric | Permalink | Comments (0)

Tuesday, March 25, 2014

Familiar Name Once Again Wins Wagner Labor & Employment Law Competition

Perhaps NYLS should rename their competition the NKU Labor and Employment Law Moot Court Competition.  After all, their law school has been nothing short of dominant.  2014 proved no exception as the team once again outperformed 45 other teams to claim the Wagner national championship on Sunday March 23, 2014.  You can hear the final round argument here.  This year the teams tackled a very challenging and timely problem dealing with whether unpaid interns should really be deemed employees pursuant to the Fair Labor Standards Act (FLSA) and thus paid wages, and also whether the interns should be allowed to band together as both a class action under state law and a collective action under the FLSA.

Obviously, NKU advocates are coached well to astutely answer the challenging questions from this year and past years.  How dominant is NKU at the Wagner competition?  Check out this list of accomplishments:

  • 2014 National Champions, Best Preliminary Round Team
  • 2013 Best Brief
  • 2012 Best Brief
  • 2010 National Champions, Best Final-Round Oralist, 3rd Best Petitioner Brief
  • 2009 National Finalists
  • 2008 National Champion, Best Final-Round Oralist, Best Brief, Best Preliminary Round Team
  • 2007 National Finalists, Best Brief
  • 2006 National Quarter-Finalists, Best Brief, Best Preliminary Round Team
  • 2005 National Finalists, Best Final-Round Oralist
  • 2004 National Quarter-Finalists

This year, NKU defeated South Texas College of Law, a team that has also been successful lately.  South Texas is the National Runner-Up for two consecutive years, and also won the best final round oral advocate award for 2014 and a best brief and best preliminary round team award for 2013. 

Now for a bit of shameless self-promotion:  the Appalachian School of Law team that I coach also performed very well, advancing to the quarter-finals and winning an award for best octo-finalist team. 

March 25, 2014 in Law School, Moot Court | Permalink | Comments (0)

Monday, March 24, 2014

Best practices for explanatory parentheticals

200px-Parentesi.svgProfessor Eric Voigt has published a very persuasive and practical guide to explanatory parentheticals in the McGeorge Law Review. The article is full of examples and guidelines, making it user-friendly for academics and practitioners alike. Find the full article for free download at SSRN.

Image: By GJo (Own work) [Public domain], via Wikimedia Commons

March 24, 2014 | Permalink | Comments (0)

Do intensifiers such as "clearly" help or hurt a brief?


Most of us learned in law school that using "intensifying" words like clearly and obviously in briefs actually weakens our arguments. But what does the empirical evidence say? For those who missed the article when it was first published, research by Professor Lance Long of Stetson Law School shows a measureable positive correlation between the use of some intensifiers and success on appeal. But he also points out that the reasons for that relationship are not so clear.

See the abstract and download the full article for free at SSRN.

Image:, via Wikimedia Commons

March 24, 2014 | Permalink | Comments (0)

Sunday, March 23, 2014

Beyond the Record on Appeal

The Sixth Circuit Appellate Blog has an interesting piece on when it's acceptable for advocates and appellate judges to go beyond the appellate record to do internet research (or even live reenactments). I think that all such outside references present a problem, but the issues are different depending on whether the advocates or court is doing the extra-record research. When the parties make extra-record references, those references are subject to the adversarial process. As the Sixth Circuit Appellate Blog post notes, a motion to strike can be considered and pursued or waived depending on the importance of the content and egregiousness of the extra-record reference. When the court does its own research, whether that's internet research or live reenactments, the action is not subject to the adversarial process. A party's only recourse is to seek hearing en banc or Supreme Court cert, both exceedingly rare audiences to obtain.

As outside research becomes easier, particularly through the internet, the boundaries of such research should be carefully considered and enforced.

March 23, 2014 in Appellate Advocacy, Appellate Court Reform, Appellate Practice, Federal Appeals Courts, Web/Tech | Permalink | Comments (0)

Friday, March 21, 2014

Not Prepared For Oral Argument? Go Anyway!

The show must go on.  This is the lesson that Illinois attorney Michael Joseph Finn learned.   He was accused and later admitted to faking an illness in order to get out of doing an oral argument before the 7th Circuit Court of Appeals.  

On the day in question, he alerted the court that he was sick and had vomited earlier that morning.  He later reiterated the story once questioned by the ethics board before finally admitting that he was simply unprepared to present that day.  This admission led to the Illinois Supreme Court issuing an order on March 14, 2014 suspending his license for 60 days.  He also received a $1,000 fine and was ordered to pay restitution of $5,000 to the client.  

The moral to the story:  be prepared.  If you are not prepared, timely request a continuance.  If it is too late to make such a request, do not fake an illness to avoid your responsibility to your client.  The better route is to pull and all-nighter preparing, show up and do your very best, and then vow that you will never put yourself in such a precarious situation again.

Hat tip to ABA Journal. 

March 21, 2014 in Appellate Advocacy, Legal Ethics, Oral Argument | Permalink | Comments (0)

Friday, March 14, 2014

A Funny Thing Happens While Preparing For Oral Argument

Uncertainty.  Second-guessing.  This week I have (once again) watched it unfold.  While this situation involves a team preparing for a moot court competition next week, the scenario is certainly apropos to anyone in this preparation situation.

Best practices dictate that it is important to "vet" your argument in front of valued sources.  By letting them hear your argument, it is surmised that you will get good feedback on what to include and remove from it - thus coming away with a pristine presentation worthy of Supreme Court Justice admiration.  But sometimes I cannot help but wonder if this process does just as much harm as it does good.  

Let's take my moot court team for example.

The team has just completed its 15th oral argument practice session.  The first 8 or 9 sessions involved just the team working with me as coach.  Together, we analyzed the issues and talked ad nauseam about appropriate responses to anticipated complex questions.  This process seemed to have formulated what we thought was a solid argument with few, if any, holes.  But then we invited in guest judges (a mixture of law professors, practitioners, and law students who have taken course(s) in the subject matter) to observe the practices, ask questions, and offer feedback.  

Let the uncertainty begin.

I was told once that opinions are like a$$holes, everyone has one.  This is true.  It is especially true in the legal profession where we are paid to have, and share, our opinions.  What happened was inevitable.  The first group of judges didn't like the introductory remarks and thought that the argument on behalf of the plaintiffs was too over the top.  It was too much to paint the corporation as a greedy overlord bent on destruction of the weak.  Ok, this made some sense, so the advocates tweaked the argument.

In came the next set of judges.  "Where is the passion?" They wanted to know.  Their opinion was that the corporation's motive was suspect and the plaintiff needs to exploit this issue before the Court.  "You mean paint them as the evil greedy corporation determined to screw the masses?"  "Yes."

Now it is time to re-work the argument again.  Or is it?

Last night, a few more practices in and only 5 days away from travelling to the competition, yet another guest judge offered suggests to "tweak" the argument.  Of course, these suggestions ran counter to what prior judges mentioned.  The problem at this point becomes whether it is wise to once again re-work the argument so close to "game time."  The goal right now should be perfecting the current road-map, not mapping out a new path.  

What are you supposed to do with advice?

It is time for me to share with the team another bit of wisdom shared with me long ago.  If you are walking down the street and someone tells you that you have a tail, ignore the person.  If a second person also says you have a tail, you should start to wonder.  If a third person tells you that you have a tell, you should turn around and look because you probably do have a tail!  

The moral to that story is to take advice with a grain of salt until it merits serious consideration.  I do believe in getting feedback on oral argument before going "live."  However, if one person disagrees with the chosen path, it might be best to chalk it up as a difference of opinion not warranting a change in the argument.  But if more than one person doesn't like the approach, the advocate should be much more inclined to change it.  After all, two or three brains are smarter than one, and the advocate should not let ego get in the way of excellent advocacy.  

I hope the students preparing for oral argument hear and receive this message loud and clear.

March 14, 2014 in Appellate Advocacy, Appellate Practice, Law School, Moot Court, Oral Argument | Permalink | Comments (0)

Thursday, March 13, 2014

Administrative Office of the U.S. Courts Releases Annual Report

For anyone looking for vital statistics on the federal courts, the Administrative Office annual reports are invaluable. The 2013 Annual Report was posted today.



March 13, 2014 in Appellate Practice, Federal Appeals Courts | Permalink | Comments (0)

Wednesday, March 12, 2014

Brevity Is Not Always The Soul Of Wit

The concepts of brevity and thoroughness are not contradictory, in the sense of Llewellyn's competing canons, but the notion that something can be both thorough and concise is a nuanced one. It can be a challenge to learn and is one of the cognitive challenges of the first year of law school. That said, it's one most student grasp by the end of the year. Carrying that forward into practice, however, requires mindfulness and discipline.  

At a minimum, one expects advocates to make and offer support for their legal argument. In a decision of the Seventh Circuit issued today and authored by Judge Richard A. Posner, the court called out the defendants/appellants for outrageous conduct, "contumacious effrontery," and litigation "shenanigans." Of particular interest to me, though, was the circuit panel's description and disapproval of the defendants/appellants' brief: Hamlet_quarto_3rd

The defendants’ appeal brief is a gaunt, pathetic document (there is no reply brief). Minus formal matter, it is only eight and a half pages long. Brevity is the soul of wit, and all that, but still: the first seven and a half pages are simply a recitation of the history of the Georgia lawsuit, the settlement negotiations, and the present suit, along with questionable and irrelevant facts; and the tiny argument section of the brief—118 words, including citations—states merely, without detail or elaboration, that the defendants do not possess the settlement funds and therefore can’t restore them.

The court's words highlight the importance of fully developing one's legal argument, recognizing that procedural history is not legal argument, and, as always, addressing the issue before the court.

Ultimately, the court dismissed the appeal, deeming it frivolous, and suggested that the district court jail the defendants for their underlying civil contempt. While this is no doubt the result of the defendants' "outrageous" conduct below, their briefing on appeal certainly did nothing to help their case. In fact, given the considerable leeway the defendants received from the district court below, my sense is that the appeal and appellate brief made things worse.

Hat tip: How Appealing

March 12, 2014 | Permalink | Comments (0)

Tuesday, March 11, 2014

Speaking of Document Design...

To follow up on Tonya’s post (something I do regularly because she has many good posts) regarding font choice, I thought I’d raise a few questions about document design generally.  I say “raise a few questions” because I wonder two things: 1) how many of you consider some of these questions when writing a brief; 2) how many of you think it’s a waste of time to consider these questions when writing a brief?  Here are a few basic design choices, other than the font choice question that Tonya already raised:

  • Should I use “full” or “left” justification?
  • What’s the “best” way to format the text in headings?
  • Should I use hanging indents in my headings?
  • Does it matter if I leave a heading “orphaned” at the bottom of a page in the argument section?
  • How much space should I put between lines?
  • How much space should I put between sentences?
  • How much space should I leave in the margins?
  • How should I format case citations in the table of authorities?  Case name and reporter cite all on one line?  Reporter cite on line below the case name?
  • Can I create dot leaders in a way that leaves a consistent margin on the right side of the table of contents and table of authorities?
  • How far should I indent paragraphs?
  • Should I underline or italicize citations?

Tonya mentioned a good source that answers some of these questions: Matthew Butterick’s Typography for Lawyers (2010).  Here are two others in case you’re interested:

  • Ruth Anne Robbins, Painting with print: Incorporating concepts of typographic and layout design into the text of legal writing documents, 2 J. Ass’n Legal Writing Directors 108 (2004)
  • Seventh Circuit Court of Appeals style rules:

March 11, 2014 in Appellate Advocacy, Appellate Practice, Federal Appeals Courts, Legal Writing | Permalink | Comments (1)

Monday, March 10, 2014

A Font of Wisdom

2000px-CambriaSpecimen (3)

Spring cleaning time is almost here. If you’re tidying up and rearranging your furniture, why not also consider updating your document design, too? While some courts do mandate a particular font or two in their local rules, most do not, and the FRCPs and FRAPs still leave a sensible choice up to the author’s discretion.  The general wisdom remains that readers tend to find a serif font (the kind with little feet and tails, like Times New Roman) easier to read in print, and a sans-serif font like Arial easier on a computer screen. It may be difficult to decide which to use in the case of electronic filing, particularly with appellate panels where judges vary in their online vs. print reading preferences.

As for style, a few searches online yield a variety of opinions about which fonts of each type are “best.” As with all thing involving design, fonts are even subject to fads and fashions, and it’s important to make conservative choices for legal writing. For example, Cambria and Georgia are two popular serif fonts that seem to hold up over time. Finally, while the judicial reader will appreciate true brevity over space-saving “tricks,” the writer can look for space saving fonts in their “condensed” forms.

Further reading:

A summary of court typography rules, see:

A helpful blog post on the best fonts for printed documents (as opposed to those read online):

An interesting discussion board thread about space-saving fonts:

For those wishing to dive further down the rabbit hole, see Matthew Butterick’s highly lauded tome, Typography for Lawyers (there you can also find examples of Equity, his font designed for lawyers):

Image credit: Sun Ladder (Own work) [Public domain, CC-BY-SA-3.0-2.5-2.0-1.0 or GFDL], via Wikimedia Commons

March 10, 2014 | Permalink | Comments (3)

Tuesday, March 4, 2014

Oral Argument Advice

Over at our sister blog Legal Skills Prof Blog, they have a post about prepping for oral argument.  This is especially timely for the countless teams preparing for spring semester moot court competitions.  Check it out here.  

March 4, 2014 in Appellate Advocacy, Appellate Practice, Law School, Moot Court | Permalink | Comments (0)

Saturday, March 1, 2014

Legal Loopholes: Where Money Is Made And Lost

Last week, the Ohio Supreme Court issued a 6-1 decision in a public records access case that has left some scratching their heads.  This is not to say the decision in DiFranco v. City of South Euclid is flawed, but that the state statute can create a problematic outcome.  

The issue involved DiFranco seeking public records.  After she made the request, the City stalled two months and then provided only partial records after she hired an attorney and filed a mandamus action (the City moved to dismiss the action, which the court later converted to a motion for summary judgment).  Aware that the records were deficient, Emilie DiFranco produced an expert affidavit.  This eventually prompted the City to finally turn over the public records, albeit about four more months later.  After the affidavit was filed, the court required the City to respond to the affidavit's allegations.   However, by the time the court issued this order, the City had just provided the deficient documents - making the court order moot.  

Upset that she had to hire an attorney in order to get the requested public records, DiFranco moved for attorney fees.  The request was denied and that denial subsequently affirmed by the appellate and Supreme Court of Ohio.  

The reason:  O.R.C. 149.43, as written, does not mandate the payment of attorney fees if the records are produced prior to a court order compelling production.  

The reality:  Public entities have an incentive to withhold key public documents until the requesting party proves he/she is serious enough to sue for the records.  And if the suit occurs, the public entity can avoid paying attorney fees, and essentially penalize the requesting party by requiring him/her to incur such attorney fees, simply by providing the public records before being forced to do so by the court.  

The result:  Thousands of dollars is lost by people requesing public records by either the intentional or inadvertent acts of the public entity records custodian.  So now that we know where the money is lost due to this legal loophole, where is it made?  By the attorneys unnecessarily involved in the case, where else?!  

This is a case where bad statutory law begets bad case law.

March 1, 2014 in Appellate Advocacy, Appellate Justice, State Appeals Courts | Permalink | Comments (0)