Appellate Advocacy Blog

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

Monday, October 30, 2017

Does my font choice matter?

According to a recently published column by a North Carolina judge and several litigators, yes, it very well may impact how your brief is read and retained.

The authors begin by explaining the current font status quo, focusing on their home state of North Carolina.  The status quo is that lawyers prefer Times New Roman, a font designed by a London newspaper to facilitate skimming--not something that you want a judge to do to your brief.  As the authors explain,

Today, for whatever reason, Times New Roman has become the standard, including for North Carolina lawyers. As one commentator has remarked, Times New Roman is “the font of least resistance.”  It “is not a font choice so much as the absence of a font choice.” It is the beige of fonts.

On the other side of the font spectrum is Courier New, another common lawyer font.  Courier New was designed with typewriters in mind--its non-proportional format makes it easy to white out one letter in a document and replace it with any other letter, since all letters in Courier New take up the same amount of space.  The problem with Courier New (other than the fact that it is just ugly) is that it takes up a lot of space.  It is also harder to read. As the authors explain, "'[w]hen every character is the same width, the eye loses valuable clues that help it distinguish one letter from another.'"

So what is the solution?  Well, the authors suggest that you think about using fonts in the Century family.  As they explain,

Among its attractive features, Century Schoolbook is “highly readable, yet commands an air of authority with letters that take up more space than Times New Roman.” It has even been called the “crème-de-la-crème of legal fonts.”

The United States Supreme Court publishes its opinions in Century Schoolbook, and several other federal courts endorse the use of Century fonts.  The Seventh Circuit, for example, has posted on its website a six page document entitled "Requirements and suggestions for typography in briefs and other papers" in which they endorse proportionally spaced fonts designed for books, such as Century and Book Antiqua (the go-to font for this blog).

By switching to Century fonts, the authors claim that writers can save money. They cite an NPR report that "when a major university recently switched its e-mail system’s default font from Arial to Century, it saved thousands of dollars annually in printing costs." The authors also claim that switching fonts can help with "readability and retention."  We don't want our briefs to be skimmed. We want them to be savored, studied, and retained.

The authors have convinced me.  I plan on changing my syllabus to require Century fonts.  Perhaps more courts will follow this advice too.

October 30, 2017 | Permalink | Comments (3)

Friday, October 27, 2017

Appellate Advocacy Blog Weekly Roundup October 27, 2017

The weekly roundup image

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 Dan a quick email at DReal@Creighton.edu or a message on Twitter(@Daniel_L_Real).

 

Supreme Court News and Tidbits:

Must the government pay business losses when it takes private property? The Supreme Court may answer that question if it decides to hear the case involving a Louisiana “dirt farmer.” An article by Mark Sherman for the Associated Press explains the case and issue. The article can be found HERE.

 

The Supreme Court Justices took a break from tackling complex legal issues to help celebrate Harvard Law’s bicentennial. The Associated Press has this report.

 

In this essay published in The New York Times, Linda Greenhouse asks: “Will Politics Tarnish the Supreme Court’s Legitimacy?”

 

Appellate Court Decisions:

Garza v. Hargan – The U.S. Court of Appeals for the DC Circuit entered order on a petition for rehearing en banc ordering that an undocumented teen can have an abortion. Merrick Garland is the Chief Judge on the panel. An article on the decision can be found HERE

 

Posner Benchslap – The U.S. Court of Appeals for the Seventh Circuit voted unanimously to reverse the conviction of a pro se litigant whom Posner had berated, which comes on the heels of Posner’s public accusations that he retired because the court needed to treat pro se litigants better. Above The Law has this report. The Court's decision can be found HERE

 

Practice Tips:

UNC Law will host a panel discussion on Appellate Practice, which will include several members of #AppellateTwitter. Click HERE for more information.

 

This article from the Champion provides some great advice on appellate briefing. 

 

Other Items of Interest

In more Posner news, Posner wants to get rid of lawyers. Read his thoughts in this article in the Chicago Tribune

 

October 27, 2017 | Permalink | Comments (0)

Thursday, October 26, 2017

Thinking Thursdays: Visual Impact Moments

What is the narrative climax in the Little Red Riding Hood fable? When the wolf eats Little Red. But what is the visual impact moment? The image you think about when you recall the story? That’s From 2006 AALS Clinic poster session
probably different. It’s either an image of a little girl in a red cape, walking through the woods or it’s the moment when Little Red first sees the wolf in Granny’s bed, wearing Granny’s nightclothes. The visual impact moment can be different from the story’s climax.

Jason Eyster writes about visual impact moments in one of my all-time favorite articles in the Applied Legal Storytelling canon. His article, The Lawyer as Artist, in Vol. 14 of the Journal of Legal Writing, explores the use of scene and setting as a persuasive tool for legal writers. This article is creative, and always fresh. It is one that I re-read and think about at least once or twice a year. The idea of the setting isn’t often discussed in the persuasion literature, but, as Eyster argues, can create lingering impressions. The legal writer who takes time during a description to linger on choice details will make the scene “pop” for the reader those visual images will provoke a natural, emotional response. The visual impact scene need not be the climax, but should connect to the case theme. If you can connect it to the theory of the case, all the better.

So, how do you do it? Eyster offers one idea: the obtuse object. That is something unexpected or incongruous with a scene that draws in the reader through a natural curiosity. In one of his examples, an asylum case, the legal writer zeroes in the description of his client, sitting in her former home and eating a pomegranate just before hearing a sinister knock on her door—one that results in her being dragged away by militia in her country. The simple mention of the pomegranate serves to draw the reader into the scene. It evokes the famous Persephone myth of a young woman dragged into hell while her mother tries to have her released. The scene is made all the more emotional for its layers of meaning. Pomegranate

Think about the scene in your client’s case that you hope the judicial panel will likewise remember when they put down the brief. Is it the scene you want? If it’s the same scene your opponent might choose, think of another one. If it is the scene you want, have you chosen some memorable detail to describe—an action, an object, a character, or the setting itself. Describe it with a name, sensory information, its function, its history, or a metaphor. Things like this put joy and art into the job of legal writing.

October 26, 2017 in Appellate Advocacy, Appellate Practice, Law School, Legal Writing, Moot Court, Rhetoric, State Appeals Courts | Permalink | Comments (0)

Wednesday, October 25, 2017

To Blog or Not to Blog: Moving from the Safety of the Appellate Structure into a Whole New World

 I have probably spent more time changing the subject of this first blog post than I have spent time doing anything else this past week. I know what my problem is: this is different in so many ways. There are two paralyzing differences that I will focus on today: First, my audience is different, and second, the structure I have come to love is absent.

As an appellate advocate, I made it my mission to figure out the needs of my audience. I learned how busy my audience was. Once you understand just how busy the appellate audience is, you know you need to make adjustments to your writing. For instance, the Federal Judiciary’s 2016 Year-End Report reflects that thousands of appeals are filed yearly in the United States Supreme Court, and tens of thousands are filed in the Regional Circuit Courts of Appeal. There is no room for fluff, or rabbit trails. You must be organized, direct, well-written, and succinct. I felt a lot of comfort in knowing that my busy audience needed me to subscribe to a framework that highlighted my analysis, and left room for little else.

I do not yet know what this audience needs. I am certain that over time, as it did in practice, my writing will adjust to meet the needs that I perceive in this new audience. I look forward to that day, when I find as much comfort in writing to meet the needs of my new “friends,” as I did when I wrote for the appellate audience.

The blog’s lack of a strict framework, is the second thing that makes me uncomfortable. I like the structure of the appellate brief, not only because it helps me to meet the needs of the appellate audience, but because the rule-follower inside me needs the structure. I have always been very comfortable working within legal writing’s strict framework. At the moment, I pine away for the freedom provided by such a framework. Let me explain:

I started my legal career a couple of decades ago, and it was love at first draft. From the moment I began, I could see form and structure in legal writing. As I tell my students, once you yield to the structure you will be free to focus on the most important parts of your brief. Whether you use CREAC, CRAC, IRAC, CRuPAC, or some other related structure (follow the link to see a comparison of the many structures), there is freedom in knowing you do not have to figure out where to put your words. That freedom allows the appellate writer to focus on the words themselves.

In preparation for this post, I began reading blog posts. Did you know that they are very different than your average appellate brief? To prove my point about a blog being different from a brief, I have never included a rhetorical question in a brief. Never. Not even once. In addition, I have never written a one-word sentence in a brief. Yet, after reading so many blogs, I understand that doing so is permissible.

But blogs are also very different structurally from an appellate brief. There are so many styles to choose from. A blog’s organization can be casual or informal, and does not follow a strict format. I do not have to “prove” every point I make. Perhaps most disturbing, however, is the lack of strict formatting, which means that I began a “blank” page. That blankness led to a disorienting sense of disorganization. I now have the beginnings of many posts, each of which began as an aside comment, and which then grew until it became a trail that had to be severed before I wrote myself off an abyss.

I long for the structure of an appellate brief, where one never begins with a blank page, because there in the background, waiting to be revealed, is that glorious legal writing framework.

October 25, 2017 | Permalink | Comments (0)

Tuesday, October 24, 2017

#TwitterTuesday--Free Willett

TwitterTuesdays

In late September, President Trump announced his intention to nominate Texas Supreme Court Justice Don Willett to the United States Court of Appeals for the Fifth Circuit.  Justice Willett, the "Tweeter Laureate of Texas" and well-known for his humorous twitter feed, has not tweeted since the nomination was announced.  Frankly, I am not surprised.  I worked on judicial nominations for the Department of Justice and the Senate Judiciary Committee in the early days of Twitter.  Vetting a tweeting nominee would be a lot of work, and it makes sense for him to take a pause during the confirmation process.  

Despite the pragmatic nature of Justice Willett's Twitter absence, Twitter seems a little less fun without him.  In fact, there is a #FreeWillett movement seeking to bring him back.

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Since I don't think that we will see Justice Willett back on Twitter anytime soon, here are a few other judges you can follow on Twitter during Justice Willett's absence:

Justice Jeff Brown (@JudgeJeffBrown)--If you followed Justice Willett for all things Texas, then following Justice Brown won't disappoint.  Justice Brown also highlights relevant days in legal history for his followers.

If it is the memes you miss, then follow Chief Judge Stephen Dillard (@JudgeDillard).  But, be prepared for a lot of tweets on Samford football, which isn't too bad since they are having a good year.

Finally, if it is the Q&A you miss, then follow Justice Beth Walker (@bethwalkr).  Justice Walker is great about answering questions regarding the judicial process.

October 24, 2017 | Permalink | Comments (0)

Monday, October 23, 2017

Is Oral Argument Dying in the Circuits?

 

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Yes, at least according to a recent study by the American Academy of Appellate Lawyers. Jennifer posted an excellent summary of the report last Thursday.  I won't repeat her discussion, but I wanted to focus on a few other points.

The Academy, concerned with both the decline in cases listed for oral argument and the time allotted for oral argument in federal appellate courts, sent their report to Chief Justice John G. Roberts, Jr., and the chief judges of the federal appellate courts.  As Academy member James Martin told the National Law Journal, more oral argument could shed light on the role of judges: "Oral argument is a very unique piece of the civics lesson and one that I personally believe puts the courts in a very good light and is its own almost best explanation of what the third branch does and is all about."

According to the report, there are four federal circuits with oral argument rates in the teens.  The Fourth Circuit is the lowest, with only 11% of cases being scheduled for oral argument.  The D.C. Circuit, with 55% of cases being scheduled for argument, has the highest rate of oral argument.  According to the research I did along with my co-author for the third edition of Winning on Appeal, only 18.6% of federal appellate cases were scheduled for argument in 2015.  In 1990, 44.8% of cases received oral argument, with the Second Circuit granting argument in 76.4% of cases.  And, as we noted in Winning on Appeal, these numbers don't take into consideration the litigants who do not ask for oral argument in circuits that require such a request. So why the decline?

Some of the decline can be attributed to the rise in cases appealed.  In 1969 the federal appellate courts terminated 9,014 appeals. In 2015, that number was 52,881, or an increase of 586%.  It would be incredibly difficult for judges to hear argument in every case given the large number of appeals.  Furthermore, in surveying judges for Winning on Appeal, we found that most judges found the briefs to play a highly significant, if not dispositive, role in helping them resolve the appeal. 

Still, oral argument has its purposes.  In chapter 3 of Winning on Appeal, we set out some of these purposes.  For judges, oral argument allows them to (1) question the legal and factual positions in the briefs, (2) clarify the issues, (3) consider the impact of the positions taken, (4) lobby other members of their court, and, at times, (5) help the advocate present the case.  For attorneys, on the other hand, oral argument allows them to (1) face the decision makers, (2) emphasize or simplify positions in the brief, (3) address the issues that trouble the court, (4) correct misimpressions, and (5) show the logical soundness of their position.  In observing oral arguments, I have found that many attorneys fail to capitalize on these opportunities.  While, as Mr. Martin noted, oral argument puts judges in "a very good light," it doesn't always do the same for attorneys. Perhaps the answer to more oral argument is to ensure that the quality of oral argument is excellent and beneficial to judges and the disposition of cases.

 

October 23, 2017 in Appellate Advocacy, Appellate Practice, Federal Appeals Courts, Oral Argument | Permalink | Comments (1)

Sunday, October 22, 2017

Programming your writing intuition

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I am excited to write this post with Jory Hoffman, a close friend who teaches writing workshops with me and a phenomenal attorney at Jenner & Block LLP. Luckily for us, Jory has agreed to offer his practical insight on writing topics in future posts, too. 

When we ask judges what frustrates them most about lawyers, the conversation often turns to writing. We hear things like: “they can’t write concisely,” and “why don’t law schools teach them how to write?” Despite endless feedback from judges and others about the sorry state of legal writing, the problems endure.

Some fault lies with people who think that writing isn’t that important to good lawyering. More important, these people say, is figuring out the underlying content, like investigating facts or researching law. Writing is just a formality to get all this content to your audience, right?

Wrong. The content is useless on its own; it becomes useful only if two conditions align:

First, you manage to entice someone to listen to you.

Second, you get them to understand you.

Ask a great lawyer (or any great writer) and they will tell you that coming up with the content is a breeze compared to getting people to listen and understand. In other words: how you write is as important as what you write.

Then we have the legal writers who realize that writing style is crucial but hit a wall, failing to make the progress they'd like. Interestingly, this group probably knows a lot more about good writing than they think. For example, a recent study revealed that incoming 1Ls could spot several writing errors in another person's draft, but when asked to write something themselves, often ended up making the same mistakes. When the heat of writing turned up, they didn't use the good writing tools they had. To some extent, this is a problem for all of us.

But this is not surprising. When you try to change how you write, you are butting up against years of subconscious habit—your writing intuition.  This intuition is built over a lifetime of school and experience. You can’t just tell yourself (or anyone else) to change their intuition on the spot. Even if you want to change, in the heat of writing and grappling with complex issues, your basic writing habits will take over every time. Just like making changes to the other deep-seated habits in your life (I’ll start that diet tomorrow, right?), changing your writing intuition takes serious work.

With this in mind, it becomes obvious why most of us don’t improve as much as we want: we don’t treat writing habits with the respect they deserve. The writing feedback we get and give is often canned complaints and unexplained markups on drafts (which is mostly useless fluff). Telling a lawyer to “write more concisely” is like telling a long-distance runner that they will win the race if they just “run faster.” Markups don’t do much if you don’t know why they’re there or how to fix them. And attending a one hour CLE on writing, or perusing the newest legal writing book, won’t magically transform your writing habits either.

So the question is: how do you reprogram your writing intuition in a way that works? It’s not going to be easy, but it’s doable. And we’ve got two steps to get you on the right path.

First, avoid useless writing guidance like “be more concise.” Instead, identify a list of specific writing moves that you want to program into your writing.

Second, use some concrete devices to incorporate these moves so that they become part of your writing intuition.

Let’s talk about the first step. There is  power in focusing on specific moves rather than generic writing principles. It keeps the process manageable and concrete. But more importantly, once you can spot the moves it will be easier to consciously use them. You will see the moves at work in the things you read and in your own writing. With a list of concrete moves in hand, you can begin reprogramming your writing intuition.

But you still need that list. You might already have some writing moves that you’d like to make intuitive. Perhaps using concrete verbs rather than dry ones (“sunder” instead of “separate”), using transitions (“all that said...”), or using short, simple sentences to emphasize key points (“So too here”). And if you can’t think of some new moves, there are dozens of fantastic legal writing books to help you come up with your list.

With your list of writing moves in hand, now comes the hard work: reprogramming your writing intuition. We use a number of methods with our students, and they work.

The most effective is to use your editing time to program new moves. Try picking up a draft that you’ve written and edit it for only a small handful of new writing moves at a time. Mark each time that you already used the move or anytime that you should have. You are training yourself to spot these moves and wiring your brain to recognize when each move is helpful. And focusing on a small batch at a time will keep the process manageable. Once you master this small set of moves, start editing for a different set of moves. And so on.

Another great method is to edit with a checklist. But don’t just passively check off boxes; force yourself to find at least five or ten examples of each move whenever you work on a project. That way, you can be sure to practice the moves, even if it’s just because you’re looking for places to use them.

One of the best ways to pick up new moves is to read writing that uses them. Everyone from Stephen King to Brian Garner recommends this approach, and for good reason. There is no better way to reprogram your writing intuition. So identify some legal writers who you admire, and read them voraciously. Even better, mark in the book you are reading each time you spot one of the moves you happen to be working on at the time. 

Other simple tools that psychologists suggest include keeping a reminder around your computer screen with the list of moves you are working on and editing others’ writing to add some moves that are missing (such as adding transitions to a piece of writing that has none).

All of this advice is equally useful when you are helping others improve their writing. Ask your mentee to use these devices—for example, have them give you a marked-up draft that identifies a couple specific writing moves that you want them to work on. When guiding others, however, we find that it’s important to explain why each move matters.

Be concrete. I can’t tell you how much harder students work once they understand how a move works on the reader. For example: passive voice is a great tool for deflecting attention from the subject of a sentence; transitions help readers connect sentences so that they can understand the logical connection between each point. Taking a few minutes to explain why these moves work, and giving your mentee a few examples of elite advocates using them, will go a long way in convincing them to put in the programming time.

Ultimately, programming your writing intuition is a lifelong pursuit. You must continue to look for new moves and go through the steps of programming them in. And you must always ask whether the writing moves you have are worth keeping (so many lawyers tell me they write “that way” just because they always have). Above all, take control of this process and avoid letting your writing intuition program itself.

Joe Regalia is a law professor at the University of Nevada, Las Vegas, William S. Boyd School of Law and regularly leads workshops training legal writing and technology. The views he expresses here are solely his own and not intended to be legal advice. Check out his other articles and writing tips here

October 22, 2017 | Permalink | Comments (0)

Friday, October 20, 2017

Appellate Advocacy Blog Weekly Roundup October 20, 2017

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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 Dan a quick email atDReal@Creighton.edu or a message on Twitter (@Daniel_L_Real).

 

Supreme Court News and Tidbits:

The Supreme Court is getting ready for beginning operation of its new electronic filing system on November 13, 2017.  Virtually all new filings will be accessible without cost once the system is operating.  More information is available HERE

A recent ProPublica review of Supreme Court opinions over the last several years revealed numerous instances where the opinions of the Court contained "false or wholly unsupported factual claims."  It appears that the errors in the opinions sometimes came from Justices doing their own research and making mistakes, and sometimes from Justices relying on information in submissions that contained errors.  More information is available HERE.  The New York Times weighed in on this on Wednesday, too, with an op-ed calling for the Court to employ fact-checkers. That article is HERE.

SCOTUS made it onto Jeopardy! this week:  See the clip HERE

Appellate Court Decisions:

On Wednesday, the Fourth Circuit Court of Appeals issued an opinion ruling that a towering cross-shaped monument on public land is unconstitutional.  The 2-1 ruling concluded that the monument had "the primary effect of endorsing religion and excessively entangle[d] the government in religion."  

Court Opinion

Washington Post Article

The Massachusetts Supreme Judicial Court ruled against Yahoo! this week in a case where two people fought for years after their brother's death in 2006, seeking to gain access to the contents of his Yahoo! email account.  The court ruled that federal law does not bar Yahoo! from providing such access.  The case isn't quite over  yet, as a probate court still has to rule on whether Yahoo! can refuse to provide the access under its TOS.  More information from Reuters HERE.

Appellate Practice:

An article in the National Law Journal this week addressed the decline in oral argument in appellate courts, citing a recent study by the American Academy of Appellate Lawyers.  See the article HERE.

The Legal Intelligencer had an article this week singing the praises of "Winning on Appeal: Better Briefs & Oral Argument," a book authored by then senior Third Circuit Judge Ruggero J. Aldisert, in which the Judge attempted to educate attorneys on how to succeed on appeal from the perspective of an experienced appellate court judge.  The post is HERE.

Over at PrawfsBlawg, Professor Douglas posted his "Handy-Dandy Guide to Federal Judicial Clerkships."  It contains a wealth of information, including information about why to consider clerking, where to clerk, when to apply, and what to use for writing samples / letters of recommendation.  The post is HERE.

Jaime Santos had a great Twitter post/thread this week discussing some useful tips and reminders for appellate practitioners who have to travel and print at the hotel.  The post is HERE.

The Weekly Standard had an article this week recounting the writing process and thoughts of the late Justice Antonin Scalia.  To Scalia, writers become skilled with "more time and sweat."  The article is HERE.

Other Items of Interest:

The Washington Post had an article this week taking readers back in time to revisit the mid 1800's in the state of Missouri, where a 19 year old slave girl bashed the head of her white slave owner when he attempted to rape her, killing him.  As the article notes, "What followed was her arrest and a groundbreaking legal case known as the State of Missouri vs. Celia, a Slave -- a dispute that played out long before #MeToo hashtags on Twitter and the explosive sexual assault and harassment allegations against Harvey Weinstein, Roger Ailes, Bill O'Reilly, Bill Cosby, and other powerful men."  The article is HERE.

October 20, 2017 | Permalink | Comments (0)

Thursday, October 19, 2017

Is Appellate Oral Argument on the Way Out?

A recent study conducted by the American Academy of Appellate Lawyers showed that the percentage of cases that are argued before a judicial panel are declining to a concerning degree.

Federal Rule of Civil Procedure 34(b) begins with "oral argument must be allowed in every case," subject to certain exceptions. But the task force's statistics showed that oral argument in many circuits instead are either not being allowed or are otherwise not being scheduled. The overall average percentages of oral arguments in the circuit courts, excluding the Federal Circuit, ranged from the mid-teens (Third, Fourth, Sixth and Eleventh) to the low 30s (First, Second and Tenth) and to 45 percent (Seventh) and 55 percent (D.C. Circuit). The lowest was the Fourth Circuit, which heard oral argument in only 11 percent of its cases.

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The Academy says that this decline in oral argument is detrimental to the American legal system. "Oral argument is a very unique piece of the civics lesson and one that I personally believe puts the courts in a very good light and is its own almost best explanation of what the third branch does and is all about," said James Martin, a partner at Reed Smith, and member of the Academy. Martin led the task force that studied the issue, and they found that lack of effectiveness of the arguments and efficiency of the system had led courts to reduce the number of oral arguments, as well as the time allotted for them. In essence, conducting oral arguments takes time and money, and the courts are beginning to feel as if they are a waste of both. 

The task force offered recommendations for the courts to consider, such as: establish pro bono or other programs to provide opportunities for argument in pro se cases; issue focus letters before argument, giving the lawyers advance notice of the issues of most concern to the court; make greater use of technology to enhance outreach and account for geographic challenges; and establish training programs for advocates.

The most frequently cases heard are bankruptcies and civil matters involving the United States. Very few pro se cases are ever argued - which could be some of the most important issues a court may hear. Unfortunately the skill and knowledge needed may not be present in those cases, and are likely not cases the courts look forward to hearing because of possible ineffectiveness of the advocacy.

But the value of the oral argument should not be minimized. When done right, it can be a very effective tool for the litigants, and as Martin stated, oral argument allows the public to better understand the judicial system. With the legal profession shrouded in complex regulations and laws, Latin-named concepts like stare decisis, and sometimes unexplainable jury verdicts, it is important for lawyers and judges to insure the public has an understanding of what happens behind the courthouse doors.

Oral argument, Martin said, is the only time the parties and the court are joined in the decision-making process. "The rest of the time it's behind the curtain," he said. "There's a real value in showing the investment that’s been made in the case when you have to provide explanations to clients and the public about how the system is working."

The criticisms of oral arguments made by the courts do have some justification. It is not unusual for an oral advocate to present a case in a manner that is ho-hum, if not downright dreadful. Frequently we see student advocates that perform much better than practiced attorneys. But this goes to show that oral advocacy is a skill to practiced, not set aside as an afterthought. This is simply part of law practice, and while lawyers rightfully spend mountains of time on their written products, factoring in time to practice an oral presentation is also a necessity. To address this deficiency, the Academy has recently partnered with the American College of Trial Lawyers to produce a nationwide program using video training for appellate advocacy. 

What are your thoughts? Is appellate oral advocacy worth keeping as part of a staple of our judicial process, or is it a long lost skill that need not be resurrected?

October 19, 2017 | Permalink | Comments (2)

Wednesday, October 18, 2017

The advocacy of "the greatest lawyer of the 20th century"

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My law school was fortunate to welcome Elena Kagan earlier this week. (The artist's rendering above is the work of Professor Evelyn Brody.) During a delightfully wide-ranging conversation with Professor Carolyn Shapiro, Justice Kagan took a firm stand on one point: her former boss Thurgood Marshall was "the greatest lawyer of the twentieth century."

No one argued with that.

Marshall

As Justice Kagan noted, we mostly remember Thurgood Marshall, attorney at law, as an appellate advocate, though that might change with the release of the film Marshall, which focuses on his trial work. He is, of course, most celebrated for his work in the Brown v. Board of Education cases. And his advocacy led to key victories in the decade-plus before Brown: in Murray v. Pearson, a groundbreaking Maryland desegregation case; in Shelley v. Kraemer, a landmark case striking down racial covenants; in the Brown precursors Sweatt v. Painter and McLaurin v. Oklahoma State Regents; in dozens of other cases.

To spell out the obvious: there is substance to Marshall's legend. The records of his appellate oral arguments provide ready confirmation of this. It's worth reading in full the transcripts of his oral arguments in Briggs v. Elliott, one of the consolidated Brown cases.  In the original 1952 argument and rebuttal (pdfs), Marshall elegantly handles active questioning from skeptical justices (Reed and CJ Vinson, who reportedly favored upholding the school boards' practices)  and genuinely torn justices (Frankfurter and Jackson, who were sympathetic to the claimants but true believers in judicial restraint). In the 1953 reargument, Marshall offers a rich oral treatise on the Fourteenth Amendment. And his rebuttal is a remarkable closing argument. I won't paste an excerpt here because an excerpt won't do it justice. Trust me: click here; scroll to page 20; start reading the paragraph at the bottom of the page that begins "[t]he argument of judicial restraint has no application in this case"; keep going until you hit "[t]hank you, sir." Ethos, logos, pathos.  

I'd also recommend listening to Solicitor General Marshall's oral argument in United States v. Price, the Mississippi Burning case. Unlike in Briggs/Brown, he's not addressing skeptical or torn justices: he draws only two soft questions from a Court that ultimately ruled unanimously in his favor. So he generates his own momentum: in key segments of his argument, he serves as his own interlocutor, asking sharply-composed questions and offering sharply-composed answers. It works remarkably well; his assurance and comfort in his own skin are a palpable force.

None greater. 

October 18, 2017 in Appellate Advocacy, Oral Argument, United States Supreme Court | Permalink | Comments (1)

Monday, October 16, 2017

The Perils of Statutory Interpretation

As someone who has taught legislation and appellate advocacy and worked for both a state legislature and the U.S. Senate, I love a good statutory interpretation case.  Seeing how the advocates and judges approach the statutory text and the legislative intent is always enlightening.  And, the cases can be quite entertaining.  There are some great Supreme Court cases on statutory interpretation, including the famous discussion regarding whether a tomato is a fruit. 

Just last week, a very divided Washington Supreme Court decided a critical issue of statutory interpretation--is a riding lawn mower a motor vehicle under Washington's motor vehicle theft statute?  In 2015, a Washington state resident allegedly attempted to steal a riding lawn mower. He was initially held on theft and criminal trespass charges.  While he was charged with those crimes, he was also was charged with the more serious crime of motor vehicle theft. Naturally, he argued that a riding lawn mower is not a motor vehicle under the statute.  The trial court and intermediate appellate court agreed.  By a 6-3 vote the Washington State Supreme Court affirmed, but in doing so divided sharply on its reasoning and demonstrated the deep divides among judges on how best to interpret statutes.

The lead opinion, which represented the views of three justices on the Court, noted that the motor vehicle theft statute did not define the term "motor vehicle."  Therefore, the justices looked to the dictionary definition of the term, which "could conceivably include riding lawn mowers."  However, because "the legislature . . . explicitly indicated a contrary legislative intent," the Court found that a riding lawn mower was not a motor vehicle for purposes of the statute.

The three concurring justices agreed with the result, but disagreed with the analysis in the lead opinion.  The concurring justices emphasized the need to follow the plain language of the statute if it was unambiguous.  However, they found the term "motor vehicle" in the statute to be ambiguous. In my favorite part of this analysis the concurring justices note, " a riding lawn mower would not meet the definition of a vehicle because it is not the sort of object generally operating on public roads. But see The Straight Story (Walt Disney Pictures 1999)." For those unfamiliar with that particular Disney movie, according to IMDb the movie is about "[a]n old man [who] makes a long journey by lawnmower to mend his relationship with an ill brother." Apparently, the movie has great reviews.  However, this was not enough to render the provision unambiguous.  Thus, the concurring justices turned to the legislative intent.  They agreed with the lead opinion that the legislature did not intent for the motor vehicle theft statute to apply to riding lawn mowers.

In dissent, three justices agreed with the lead opinion that "'a plain reading of the term ['motor vehicle'] could conceivably include a riding lawn mower.'"  Because "it is not inconceivable for the legislature to have intended this result," the dissent would have applied that plain meaning and left it up to the prosecutor to ascertain if a lesser charge should have been filed.

The relatively short opinions provide excellent teaching tools on statutory interpretation.  They clearly set out the legal and policy concerns that are frequently invoked in these types of cases and can serve to remind us that in writing a brief on a statutory interpretation issue we must consider all three approaches, or at least be aware of what approaches the judges in our jurisdiction take.

 

October 16, 2017 | Permalink | Comments (0)

Saturday, October 14, 2017

Editing Alchemy

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Have you heard the secret to being a brilliant writer—appellate or otherwise? Because there is one. An ancient trick used by all the greats, from Justice Kagan to Stephen King. Use this device, and your writing will improve tenfold overnight. And it’s so simple: just edit well. That’s it. Learn to edit well and your writing will be better than you thought possible.

Now, let me be clear: I’m not talking about the quick proofread you do before sending a motion to the partner. I’m not talking about your 5-minute scan for typos, or your last-minute cite-check. I’m talking about strategic, measured, science-based editing. 

Before we get to the how, let’s talk about the why. Psychology tells us a lot about why you might not be editing right. One insight is that our mind is easily overwhelmed when we try to do too much at once. And that counts for editing, too. So if you try to edit for too much, too fast, your “working memory” gets overloaded and you miss things. You need a strategy for breaking up your editing into chunks, or phases, to make sure that you get all the important stuff in.

Another insight from the world of psychology is that we know more about good writing in the abstract than we ever put into practice. For example, studies show that incoming 1Ls know a good deal about grammar rules—but that they fail to incorporate much of this knowledge in their writing projects. Lawyers are no different. So you need a strategy for taking these writing tools that you know in theory (or will pick up in the future) and incorporating them into everyday writing habits that you will actually use.

Finally, let’s talk about bias. You’re biased; I’m biased; we’re all biased. The best you can do is become aware of your biases and use some strategies to counter them. Two biases that plague us lawyers are advocacy bias and what I call trench bias. Advocacy bias you probably know: it’s that growing certainty that your client, or your position, is right. That inability to see the value in the other side’s arguments. This sort of bias is insidious, and you must counter it to be a good lawyer.

Trench bias can be just as bad: it’s the bias you get when you’re fighting in the trenches and lose sight of the battlefield. It’s the bias that comes from being steeped in the same case, the same facts, the same law for months. With this bias in force, your writing is full of jargon. You forget to give your reader enough context or background so that they understand where you are and where you’re going. Even the best lawyers struggle with this.   

To sum up: (1) you need to force yourself to break editing sessions into manageable chunks; (2) you need to not merely learn new writing moves, you need to turn them into habit; and (3) you need to counter your biases. I have good news. With a few simple editing habits, you can handle these challenges and more.

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First, check the box. 

If you want to edit well, checklists are a must. Good writers edit for tons of writing moves before they send a document out the door. Not just the easy ones, like passive voice—but things like transitions, sentence balance, sentence length, concrete verbs, and much, much more. There is simply no way to track all of this without a checklist. Especially when you pick up new writing moves. Say you’re reading a brief and say to yourself “Wow! I love the way he uses short, pithy sentences to end his sections.” Now fast-forward a week later. You’re working late on a brief. You’re stressed and tired. Do you think you’ll remember to try out that new short-sentence idea? Probably not. But if you put it on a checklist that you run through before finalizing your document, you will.

And when you create your checklist, make sure that you separate your editing into multiple phases. Again, trying to edit for too many things simultaneously isn’t manageable. So edit for a handful of moves at each sitting. Perhaps on your first edit look for substantive problems such as a fact you forgot to explain or an unsupported rule. On your next editing round, you can hit big-picture style points such as ensuring you have roadmaps and transitions. The order doesn’t really matter; what matters is that you are breaking up your editing into manageable bites.

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Second, resist the urge to purge

We all want to push a document out of our mind when we finish a first (or fifth) draft—resist the urge! Get in the habit of leaving your writing for a couple days (or whatever you can manage) and coming back to it later. There is simply no other way to get out of the trench bias and see your writing with fresh eyes. Accountability partners are great for this: wrap up a document and send it to a friend, asking them to take a look and send it back to you in a couple days for your next edit. 

 

Editor

Third, use others to get that “fresh-reader” feel.

No checklist can spot everything, though. So find some good writers to be your editing buddies. And I suggest you have them edit for you in a particular way, what I call “one-read” editing. The quality of editors varies, and good chance you won’t agree with many of their recommendations. Not to mention that many an office friendship has been lost over editing quarrels. So instead of asking for substantive or style edits, tell them to put a star next to any (1) word, (2) sentence, or (3) paragraph that they had to read more than once.

This will give you a true snapshot of your document’s readability. With the road bumps identified, you can now use your own writing tools to smooth them over.

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Finally, discover your own editing likes.

Great writers all have their own editing tricks, and you might find that some of them work for you, too. Stephen King suggests that you vomit out a first draft without self-editing much, so you can stay focused on the content. Many writers swear by reading drafts out loud and editing their writing in paper form. Some warm up by typing out a few sentences from their favorite authors. A couple studies showed that setting aside time to practice editing helps (either on your own past work or on any writing you can find). Insightful technology tools can help you edit better, too, like Grammarly and Hemingway App.

And I think just about every writer would tell you that it’s essential to find good writing mentors to edit your work so that you can learn from their technique. But most important: just get out there and edit.  

Joe Regalia is a law professor at the University of Nevada, Las Vegas, William S. Boyd School of Law and regularly leads workshops training legal writing and technology. The views he expresses here are solely his own and not intended to be legal advice. Check out his other articles and writing tips here

October 14, 2017 in Appellate Advocacy, Appellate Practice, Legal Writing | Permalink | Comments (0)

Friday, October 13, 2017

Appellate Advocacy Blog Weekly Roundup October 13, 2017

The weekly roundup image

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 Dan a quick email at DReal@Creighton.edu or a message on Twitter(@Daniel_L_Real).

 

Supreme Court News and Tidbits:

Here are a couple of interesting things that happened this week.

 

  • On Tuesday, October 11, 2017, the Supreme Court dismissed a pending challenge to President Trump’s controversial travel ban.  The Court found that the issue was moot because an earlier version of the travel ban had expired and had been replaced with a newer version. Click here for the article in the ABA Journal. Click here for the Court’s order. 

 

Federal Courts and Opinions of Note:

In Teixeira v. County of Alameda, the Ninth Circuit held that gun sellers do not have a constitutional right to sell guns, and the government could impose restrictions on gun sellers without violating the Second Amendment.

 

Appellate Practice Tips and Tools:

What should you do when you experience burnout? Find out by reading the article shared by the Austin Bar Association.

October 13, 2017 | Permalink | Comments (0)

Thursday, October 12, 2017

Thinking Thursdays: The downsides of maintaining a citation fetish

 

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Citation manuals artfully and autumnally displayed (photo by RA Robbins)

With the return of autumn and the Supreme Court to session, appellate tweets and listservs turn to . . . did I really see a conversation about citation? Why do attorneys give so much credibility to a book developed and maintained by student law review editors who in the 16th edition accidentally tried to change the substance of precedential value by announcing that every citation needed a signal? (See this article by Dean Darby Dickerson for a discussion about that weird story).

Professor Susie Salmon wants you to know that “perfect citation” isn’t really a beautiful unicorn, and that questing for it has expensive downsides. Her article, Shedding the Uniform: Beyond a Uniform System of Citation to a More Efficient Fit, published last year in the Marquette Law Review, looks at the history of the citation fetish (her turn of phrase, not mine!), the rise of the Bluebook dominance, and the lack of uniformity that actually exists in the legal world. She adroitly observes that teaching and living by “perfect Bluebooking” leads to frivolous classroom and billable hours that would be better spent on richer analysis and representation. Instead, she argues, rationality should prevail. Citation, as she reminds us, exists for three purposes: a finding tool for cited authority, a signal about the weight and vintage of the authority, and credit for the author of the authority. These goals can be met with any system that provides these things with accuracy, brevity, and clarity.

Professor Salmon’s article takes us on an interesting historical tour of citation, beginning with the Roman Justinian texts, through Middle English books, to that fateful 1926 summer, when a clever Harvard 2L first wrote a handbook for his fellow law review classmates and eventually for elite-school law review editors who signed on. The story turns darker in the country’s bicentennial year when the Bluebook editors openly determined to dominate legal citation form. In 1981, the editors finally agreed to acknowledge a difference between law reviews and practitioner documents, but did very little to develop that part of the book until faced with competition by the University of Chicago’s Maroonbook and a challenge by practitioners and law professor themselves—the ALWD Citation Manual/Guide.

And, the fetish of uniformity is expensive. Law professors who choose to spend hours on citation teaching and assessing are taking away from time they could spend teaching more client-centered advocacy skills. Practicing attorneys who devote hours to perfecting citation are costing their clients hundreds or thousands of dollars that might not be justifiable. And, relying on the traditional notions of citation also increase the monopoly that West holds on legal materials, to the detriment of an open-access system of legal information.

Ultimately, Professor Salmon raises excellent points. Uniform citation does not exist. Those very smart law review students who knew the Bluebook backwards and forwards while they were 2L and 3L students very well may be referring to wrong parts of the book when citing inside practitioner documents. And, they might be using a superseded Bluebook, that is, an out-of-date model. There are twenty editions, after all, each with changes. Finally, the existence of local rules in many jurisdictions pose other problems, particularly when the local rules are not widely known or widely available, and have their own internal quirks. Things aren’t likely to get better, because the Bluebook’s continued existence depends on the planned obsolescence of earlier editions. Instead, Professor Salmon recommends what others before her have suggested: public domain citation, development of better apps and programs to check citation form, and flexibility to allow that many formats will satisfy the principles underlying a good citation system.

 

October 12, 2017 in Appellate Advocacy, Appellate Practice, Law School, Legal Profession, Legal Writing, Moot Court, State Appeals Courts | Permalink | Comments (0)

Friday, October 6, 2017

Appellate Advocacy Blog Weekly Roundup October 6, 2017

The weekly roundup image

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 Dan a quick email at DReal@Creighton.edu or a message on Twitter(@Daniel_L_Real).

 

Supreme Court News and Tidbits:

There is never a dull moment in the United States Supreme Court. Here are a few interesting things that happened this week.

  • The new term is in full swing, and one of the cases heard by the Supreme Court, Gill v. Whitford, has dominated legal and political discussions because of the case’s potential to reshape politics. 

 

  • On Monday, the Wall Street Journal published an article that did an excellent job of explaining the background of Gill v. Whitford and gerrymandering. The article provides context for, and explains the issue before the Court. It’s worth a read. 

 

  • On Tuesday, the Supreme Court heard oral arguments in Gill v. Whitford,  which can be heard here. After listening to the arguments, head over to the SCOTUSblog where Amy Howe posted an analysis of the oral arguments.

 

  • In non-gerrymandering Supreme Court news, Scalia Speaks, an anthology of the late Justice Antonin Scalia’s speeches on various topics, has been released. In a segment on NPR, Scalia Speaks  is described as a collection of speeches that provide a “fuller picture” of Justice Scalia.  The NPR segment can be found here.

 

Federal Courts and Opinions of Note:

This week, in Hernandez v. Sessions, the Ninth Circuit Court of Appeals held judges must consider a detainee’s ability to pay when setting bail in immigration court. 

 

Appellate Practice Tips and Tools:

People have strong opinions regarding serial commas. To continue the debate regarding the use of serial commas, on Wednesday, LexisNexis retweeted an article from the DC Bar, which attempted to make a case for using the serial comma for clarity.

October 6, 2017 | Permalink | Comments (0)

Thursday, October 5, 2017

A Remedy for Mistakes at Oral Argument

We all hope we never make mistakes at oral argument and likely practice many hours to ensure we've thought of every possible question the court may throw our way. But what happens when a mistake is made, or a question is misunderstood? And this is only realized after the conclusion of the argument?

This recently happened to seasoned attorney (but first time Supreme Court presenter), Richard Griffin, Jr., senior counsel for the National Labor Relations Board, in a trio of consolidated cases regarding the question of whether prohibiting class action suits violate federal labor law. Griffin argued that an employer cannot make as a condition of employment the waiver of this right to bring a class action suit. Chief Justice Roberts asked Griffin a hypothetical, and Griffin, misunderstanding the question, gave an answer that he later regretted. His fellow counsel then later apparently contradicted the position. Here is some of the exchange: 

Roberts: "Let's say the arbitral forum says—the rules of the arbitral forum say you can proceed individually, but you can—and you can proceed collectively, but only if the class represents more than 50 people. Is that alright under your theory?"

Griffin: "That's a rule of the arbitral forum, and the employee takes the rules of the forum as they find them."

Roberts: "So you have a right to act collectively but only if there are 51 or more of you?"

Griffin: "What—no,  your honor. What you have an opportunity to do is to try and utilize the rules that are available in the forum without the employer intervening through a prohibition that's violative of Section 7.”

Justice Anthony Kennedy: "No, the hypothetical—and the chief can protect his own question—the hypothetical is the contract says you have to have 50."

Griffin: Oh, I understood—I'm sorry. I misunderstood."

What followed was Roberts's attempt to clarify the hypothetical and Griffin ultimately agreeing that if the employment agreement says an employee shall arbitrate in a particular arbitral forum that limits collective arbitration to 51 or more persons, that would be OK. When Roberts pressed the same hypothetical on [fellow counsel] Ortiz, the law professor said the employer could not insist on an agreement where the arbitral forum limited collective actions to more than 50 people.

....

Ortiz said there was never a difference of opinion between him and Griffin but just how they understood the question, which even Roberts acknowledged was confusing. "Dick thought the chief was assuming something when he wasn't," Ortiz said. "I assumed when the chief was asking it, he wasn't predisposed in our case."

Ortiz continued, "If you had answered the way Dick did to the way the chief justice was actually asking it, you were basically giving up the right to file collective, joint actions for any number between two and 50. You were saying regardless of what alternative forums existed, the employer could bind the employee to the rules of the forum and they could do the bad work rather than the employment agreement."

Ortiz told Griffin it was not his fault for the confusion. "Dick feels just terrible about this," he said. "His term is up at the end of this month and well, he just feels terrible."

To follow up, Griffin did what others lawyers have done in the past - he sent a letter to the Clerk acknowledging the mistake and seeking to enter the corrected information into the record. Former Clerk of Court, William Suter, said that in the rare cases when this has happened in the past, the letter is forwarded to the justices and placed in the permanent case file, but no transcripts are changed. 

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So while we hope this will never happen to us, there is little guarantee that we will never make mistakes. On the occasion that we do, the recommendation to correct the record is to do exactly this. 

In a footnote in his law review article on oral argument in the Supreme Court, Mayer Brown's Stephen Shapiro said that on "rare occasions," a lawyer might realize after arguments that he or she made an "improvident concession" on a major point. In that situation, he said, counsel should send a "concise letter" to the justices through the clerk, with 10 extra copies, referring to the question and clarifying the response.

"Needless to say, there is no assurance that the justices will honor this kind of retraction," he wrote.

Another example of an attempt to correct the record can be seen in a 2014 case before the Ninth Circuit Court of Appeals. Counsel for the Department of Justice misspoke and sought to ensure the correction of the mistake was brought to the attention of the court. While it can be humbling to point out our mistakes, ethically it is certainly the right thing to do. An intentional misstatement is never ok, but correcting an errant mistake that could hurt the case is still the ethical action to take. It may be humbling, but the effect in the long run is that the principle of candor before the court is strengthened, and too, respect for the justice system grows - an essential factor for a fair and free society. 

October 5, 2017 in Appellate Advocacy | Permalink | Comments (0)

Wednesday, October 4, 2017

Oral argument in Gill v. Whitford: big questions, well-composed answers

In yesterday's oral arguments to the Supreme Court in Gill v. Whitford, the closely watched partisan gerrymandering case, Justice Breyer uncorked a doozy of a question. As he winds up, he promises to take "exactly 30 seconds." Then he, like, does not.

The question spans three pages and 57 lines in the transcript. According to Josh Blackman, who tracks the length and volume of Justice Breyer's questions so you don't have to, this appears to have shattered the justice's previous record, which I naively thought was the Article III equivalent of Joe Dimaggio's hitting streak

Here's the whole thing. Start scrolling:

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(Hat tip: Josh Blackman & Adam Feldman)

Like a lot of Breyer's long questions, this one had a pretty simple, IRAC-y structure and goal. First, he identifies a sticking point around which the Court would have to work to rule for one party or the other. Here, that's whether there are judicially manageable standards for evaluating claims of that partisan redistricting violates the Constitution. Second, he spins out his ideas about a solution (or, in other cases, his ideas about why the sticking point means the Court might be stuck). Here, that's his multi-step control > asymmetry > persistence > outlier > justification approach. And third, he asks the question. It's usually a 50+ word version of "so what do you think?"

I was impressed with the choices made by Wisconsin Solicitor General Misha Tseytlin -- an outstanding advocate -- in his answer. The question marked a shift in the direction of the argument from a conversation about one potential justiciability obstacle (standing) to another (political question). After the inevitable (laughter) that accompanies almost every Breyer mega-question, Tseytlin signaled, quite succinctly, to which of Justice Breyer's cues he would respond and how he had already touched on another earlier in the argument. And then he deliver a sharply composed, concrete multi-part answer: 

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He's then interrupted by Justice Kagan, who asks a question that's Breyerian in scope but relatively pointed:

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Tseytlin delivers another well-composed response, using the Rule of Three rhetorical device:

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I'm looking forward to hearing the audio later this week.

October 4, 2017 in Appellate Advocacy, Oral Argument, United States Supreme Court | Permalink | Comments (0)

Monday, October 2, 2017

First Monday

Happy first Monday!  Today kicks off the start of the Supreme Court's term.  The term last year was something of a snooze-fest as we all waited for the presidential election and the nomination of Justice Scalia's successor on the Court.  This term will likely be much more exciting with union dues, religious liberty, immigration, and sports gambling on the Court's agenda.  Check out this NY Times article and this Washington Examiner article for summaries of some of the key cases.

First Monday also means the start of the FantasySCOTUS season.  By this point, you have an idea of how your Fantasy Football season is going.  Maybe your key draft picks have been injured or just aren't playing up to expectations. Well, it is time to cut your losses and focus on FantasySCOTUS! Created by Professor Josh Blackman and now run by LexPredict, FantasySCOTUS allows anyone to predict how the cases before the Supreme Court will be decided.  User predict how individual justices will vote on cases, as well as the how the case will ultimately be decided.

I have used FantasySCOTUS as a teaching tool in the past, offering incentives for my students to participate in the contest and stay current on what the Court is doing.  The program allows you to create your own league, or you can participate in a law school specific league. There are even prizes for the top predictors! FantasySCOTUS also features {MARSHALL}+, a "revolutionary algorithim that can accurately predict Supreme Court cases."  Created by LexPredict, "{Marshall}+ was able to predict every case decided since 1953 at 70% accuracy."

Although my Fantasy Football team seems to be doing pretty good for the first time in years, I look forward to seeing how my FantasySCOTUS predictions go this term.  Good luck to all of the participants.

October 2, 2017 in Current Affairs, Oral Argument, Sports, United States Supreme Court | Permalink | Comments (0)

Sunday, October 1, 2017

Hello Judge, it's me, Lawyer

Capture

What better way to start than by talking about the beating heart of any brief. Something that is often neglected by appellate lawyers, and outright excised by trial ones. The introduction.

This is the lynchpin of everything you write as a lawyer. I would wager that whether you win or lose an appeal, or a motion, can more often than not be traced back to your introductions. Let me first convince you that you should be spending way more time on this section of your documents. Then I have some ideas about how to write good ones. 

First off, introductions signal to a judge something profound: that the lawyer can help the judge write a better opinion. When you think about it, briefs are just cheat-sheets for a judge to use when writing their own documents. Supreme court and circuit opinions are chock full of phrases and concepts stolen from good lawyers. If you don’t convince the judge that your brief is worth stealing from, chances are they won’t give it a second glance. After all, they have an opinion to write. Lawyers often forget that there is no rule requiring judges to use briefs, or even finish reading them. You must convince the judge that you’re worth paying attention to. 

Another way to think about introductions is to see your brief for what it is: a conversation with a judge. It’s a bit odd because your side of the conversation is prerecorded. But make no mistake, it’s a conversation. Your judge is responding to every word in your document.  They’re asking questions. They’re arguing back. They’re criticizing. Hopefully, they’re agreeing.

If we take what we know about good conversations and apply it to writing, the importance of introductions becomes obvious. For starters, first impressions are everything when we meet a stranger. They shape how we perceive the speaker, how we gauge their credibility, their intelligence, their trustworthiness, and, ultimately, their competence.

For another, our ability to follow a conversation usually depends on how well the speaker frames the topic and organizes their thoughts at a high level. If the speaker launches into the details without giving some context, the listener is quickly lost.

And think about how quickly you tune out someone who drones on and on in a conversation without ever getting to the point. Same here. Many busy judges are skimming readers, which means that they might not read much past the introduction. Particularly if you bore or confuse them.

Cognitive science also has a lot to say about introductions. This science sheds light on how readers process the things they read. And it leaves no doubt that your introduction is crucial. Take the concept of priming. Readers are more likely to believe a point that they were well primed for earlier in a document (such as in the introduction). Or take the concept of chaining, which tells us that the way you organize and present your points influences whether your reader will believe you. The self-consistency and self-observation principles suggest that if you sell your judge in the introduction, they will subconsciously see everything that comes after in a better light. And the concept of fluency suggests that the readability of your introduction plays a role in whether your reader’s more skeptical modes of thinking are triggered—or whether, instead, your reader will be persuaded. Each of these cognitive science principles agree: good introductions are a key component of good legal writing.

And perhaps most important, a good introduction forces you to distill your understanding of complex issues into simple prose. After all, until you can explain the key points of your document in a short, clean introduction, you don’t understand them as deeply as you need to. Put in the work to write a phenomenal introduction and you might actually say something clear enough to stick in a judge’s mind.

Hopefully I’ve convinced you introductions are important. Now let’s talk about some concrete ways to put these principles into practice.

  • Make your reader like you. Dozens of studies across disciplines agree that if your reader likes you, you are much more likely to persuade them. There are a few simple tactics here. Make yourself credible by conceding small issues. And when a legal or factual question is a tough one, say so. Your judge will already be struggling, so you might as well be sympathetic. Thinking through simple ways to help your reader is also great--such as using clear roadmaps and summaries. Another fantastic trick is to directly dialogue with your reader (Justice Kagan does this all the time). Use an occasional hypothetical or “you” language to create a personal connection. Finally, use some common-sense social skills. For example, no one likes people who are overly dramatic. No one likes a tattle-tale who complains about trifling things (like the other side making some clerical mistake). No one likes a complainer who turns small problems into big ones. Just remember: if you say something in a document that would be annoying in the outside world--writing it down makes you no less annoying.
  • Show off. The introduction is also your chance to show your reader that you are an elite lawyer who has the chops to help the judge write a better opinion. To create that image, your writing style must be impeccable. Typos are not an option: if your introduction’s sloppy, your reader will assume the rest of your document is too. Beyond that, this is the time to show off your writing skill. Analyze every word, every sentence, every way that you can arrange the syntax--in other words, every possible writing choice you have. Science tells us that, aside from the content, legal readers are influenced by the quality of a lawyer’s writing style.
  • Tantalize. No one wants to read boring writing. Making your writing easy to read is great, making it interesting is a whole other level. Use concrete examples, a couple saucy facts, pithy phrasing, and all the wordsmithing you can muster to make your introduction fun to read. This will increase your chances of getting a reader to forge on to the body.
  • Think about the stories your reader knows. We humans love stories. Everything we see, hear, or read we turn into a story. And that counts for legal writing, too. You can use this psychological insight to improve your introductions. Think about your case and the document you are writing, and imagine how it will fit in with the stories your reader is likely to know. If your motion advocates for an exception to the battery rule, incorporate the exception into an existing narrative about the battery rules your reader knows: “Battery normally requires that a defendant actually touch the plaintiff, but if the defendant causes something else to contact the victim, that counts, too, because the plaintiff suffers the same harm and the defendant is just as blameworthy.” Explain the familiar story and then explain how your part fits into the narrative.  
  • Emphasize what you add to the story. Keeping this narrative point in mind, don’t dwell on the mundane stories your reader already knows. Blandly reciting the basic elements of battery in your intro isn’t helpful. Emphasize what is tough or interesting about your case and the law you advocate for. In other words, focus on what you add to the story. Frankly, this goes for the body of your legal documents as well; spending a lot of time on dry, undisputable black-letter law isn’t helpful. Keep your eye trained on the prize: persuading your reader of the nuances that matter in your case.
  • Embrace the bad. Embrace the bad facts and bad law and put them into context. So many advocates run from the hard parts of their case, preferring to discuss (at length) the facts and law that support them. But this is the worst possible strategy. Your judge is going to sit down and write an opinion. Either tell them how to deal with the bad stuff so that they can write an opinion with you on the winning end--or ignore it and leave them to their imagination.
  • Roadmap smartly. We often hear the advice that you should roadmap your arguments. And it’s good advice. But roadmapping isn’t just about giving your reader a laundry list of every possible thing you will discuss in your document; it’s also about giving them a sense of what matters. So if there are a couple issues that are sure throw-aways, tell your reader. Then tell them about the issues that matter and how those important issues fit with eachother: “Personal jurisdiction is not meaningfully disputed here, but subject matter jurisdiction is—and there is none. But even if there is subject matter jurisdiction, the contact element of the battery claim is not adequately pleaded so the complaint must be dismissed anyway.”
  • Include the entire elevator pitch. Sometimes lawyers don't include their best stuff in their introductions, preferring to hold back some for the body. Maybe they want to tease the judge with some juicy details without putting all the pieces together yet. This is a horrible strategy. Judges, like most readers these days, are busy. Let's be honest, sometimes they can't do much more than skim. If you don't make your key points in your introduction, you may never get the chance. Even if your judge makes it through the details, when they return to your brief to write their opinion or for an oral argument, it's even more likely they won't make it past the intro. So make your introduction a full elevator pitch for your document: all the key law and key facts you need to win. And if you manage to actually persuade your judge on some points at the outset, cognitive science tells us that it will be much harder for them to change their mind later when they get into the weeds. 

Joe Regalia is a law professor at the University of Nevada, Las Vegas, William S. Boyd School of Law and regularly leads workshops training legal writing and technology. The views he expresses here are solely his own and not intended to be legal advice. Check out his other articles and writing tips here

October 1, 2017 in Appellate Advocacy, Appellate Practice, Law School, Legal Profession, Legal Writing | Permalink | Comments (0)