Appellate Advocacy Blog

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

Thursday, November 30, 2017

The Jackson List

During the summers, I usually teach War Crimes and Courts-Martial. The class is pretty popular. We focus on the third and fourth Geneva Conventions and battlefield conduct. We have, unfortunately, lots of current events to incorporate into our discussions. I start the class with the Nuremberg Trials. Through this introduction to the first major international effort to make leaders subject to humanitarian law, Supreme Court Justice Robert H. Jackson looms large. He was a key figure in guiding the structure and process of holding war criminals accountable. For that accomplishment alone, he rightfully deserves a laudable mention in our history. But Justice Jackson did more than serve as prosecutor at Nuremberg. In addition to serving as a justice on the Supreme Court, he was also the Solicitor General and Attorney General - the only person to have ever held all three posts. And all without a law degree.

Roberthjackson-2

Justice Jackson is the last person to sit on the Supreme Court who did not have a law degree. He studied briefly at Albany Law School, but undertook to read the law with his uncle. He earned a certificate of completion and passed the bar in 1913. Through my admiration of Justice Jackson I happened upon a website devoted to his life called The Jackson List. Professor John Q. Barrett is writing a biography of Jackson and maintains his research and writings on the site. Prof. Barrett also sends out periodic emails to subscribers (of which I am one!). The website offers information much more personal and intimate than generic biographies. I highly recommend perusing the site, clicking on any number of fascinating essays, and certainly subscribing to the list. 

Justice Jackson is well-known for his dissent in Korematsu, for his quip on the Supreme Court, "We are not final because we are infallible, but we are infallible only because we are final," and for being a strong defender of procedural due process. Dive into The Jackson List to learn more about the man, the attorney, and the judge, and contemplate how his legacy may provide guidance as we struggle with these same concepts today. 

November 30, 2017 | Permalink | Comments (0)

Wednesday, November 29, 2017

Lessons from the Carpenter oral arguments: SCOTUS echoes with [laughter]

I'm no Orin Kerr, but I've been pretty obsessed lately with United States v. Carpenter, this term's blockbuster Fourth Amendment-meets-technology case. It's a fascinating case, and it features outstanding advocates addressing important issues (and it makes for a nifty moot court problem). So I figured today I'd get the transcript, pore over it, and identify some great moments that let me say useful things about advocates doing advocacy.

There definitely are such moments. Interesting exchanges. Justice Gorsuch sharply pursuing a property-interest line of reasoning. And, most of all, the remarkable Michael Dreeben spinning out elegant prose on the fly.  

But what struck me first was the laugher. Or, in SCOTUS, the [laughter]. Apparently, cell phones bring out the funny in the justices. 

I shouldn't be surprised by this. Talking about Cell Site Location Information allows the justices to mine rich veins of I'm-a-wizened-person-with-life-tenure-and-I-don't-know-how-these-gizmos-work humor. And that's what Justice Kennedy did with the day's first [laughter]:

Screen Shot 2017-11-29 at 7.43.18 PM

And Justice Sotomayor:

  Screen Shot 2017-11-29 at 7.49.41 PM
Screen Shot 2017-11-29 at 7.49.41 PM

OK, so these are not the funniest jokes in the world. But they are, like, legit jokes. And that is not the norm for Justices Kennedy and Sotomayor. They are not humorless folk, but they never rank highly in Jay Wexler's groundbreaking studies of SCOTUS humor. Today's yuk fest means that Justice Sotomayor finally opened up a gap between herself and Justice Thomas in this term's [laughter] count. Justice Kennedy gets in the occasional self-deprecating quip, but his funniest SCOTUS moment before today was when he played straight man for Justice Scalia in the great "What's a footman?" routine of '07. These justices are not Justice Breyer, who can bring down the house with a well-timed utterance of "Limburger cheese." 

Maybe [laughter] will unite the justices. And all of us, every one.

 

November 29, 2017 in Humor, United States Supreme Court | Permalink | Comments (0)

Monday, November 27, 2017

How to win an appellate or holiday dinner argument

Happy belated Thanksgiving from the Appellate Advocacy Blog.  I had intended to write a short post on Thanksgiving day, but those plans got lost in the bustle of the holiday and visiting family.  

My intended post was going to cover a great little piece by Bill Murphy, Jr., entitled "10 Ways to Win the Thanksgiving Argument." In the piece, Murphy, provides 10 tips on how to win the Thanksgiving dinner argument because, as Murphy puts it "it there's anything worse [than] a big argument at Thanksgiving dinner, it's losing a big argument at Thanksgiving dinner."

Since most people must endure at least one more holiday dinner in December, I decided to post on the article even though Thanksgiving is over (just read Christmas or Hanukkah in place of Thanksgiving).  Furthermore, since Murphy is a recovering appellate and trial attorney turned writer, his advice can help in the courtroom too. While I encourage you to read Murphy's entire piece, I would like to highlight the pieces of advice that resonated with me.

  • "Know the facts."  When I was clerking, I was astounded at the number of times I saw an appellate attorney unable to answer a simple question about the record. The attorney usually said something like "I am sorry your honor, I don't know the answer.  I was not the attorney below."  The judges were never impressed with that response.  Appellate attorneys must know the facts.  Likewise, as Murphy explains, when it comes to the holiday dinner argument:

Gone are the days when you could bluff your way through an argument; now every person at the dinner table has a handheld device that connects to the entire history of the world's collective knowledge. So know the facts you'll be drawing on, cold. For an added bonus, anticipate the facts your opponent will rely on, and know them as well.

  • "Frame the debate."  Appellate cases need a theme--a statement that summarizes the legal and equitable heart of the case.  As Murphy explains, "[i]t's really the question of what you're actually arguing about."  Just like you should think of your appellate theme from the very beginning of the brief-writing experience, Murphy encourages you to think about how you will frame the dinner debate ahead of time.
  • "Anticipate the other side's argument."  Just like attorneys do mock appellate arguments to prepare for the big day, Murphy advises that you might consider some preparation for your holiday dinner argument.  He states "if you anticipate that your argument will be with your 19-year-old sophomore niece, who absolutely loves Sen. Bernie Sanders, maybe read a couple of articles written by Sanders supporters before dinner."
  • Finally, "[p]ull your punches and save face."   Just like you just need to win your case for your client, you need not go "for total annihilation" at the holiday dinner argument.  Murphy advises to,

build exit ramps into your argument where you can concede that the other side has made some interesting points. Find ways to help your opponent save face. In truth, if you really employ the contents of this article and other argument preparation resources, you'll be way ahead of your opponent and probably win hands down. But you want to be sure she can concede and walk away without feeling stupid.

The rest of Murphy's advice is really quite timeless, both for the courtroom and the dinner table.  Happy holiday season!

 

November 27, 2017 | Permalink | Comments (1)

Friday, November 24, 2017

Appellate Advocacy Blog Weekly Roundup November 24, 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 Opinions and News:

The Post and Courier reports that United States Supreme Court Justice Stephen Breyer will speak at the University of South Carolina's winter commencement. Click HERE for the announcement. 

On November 29, 2017, the Untied States Supreme Court will hear oral arguments in Carpenter v. United States. The Court will decide whether, under the Fourth Amendment, a warrant is required before prosecutors can obtain cell phone tower records showing a person's location. Greg Stohr discusses the case in this article

Will the United States Supreme Court end the use of the death penalty? Keri Blakinger discusses the issue in this article

Did you know that former United States Supreme Court Justice Sandra Day O'Connor and current Justice Sonia Sotomayor make video games? Read this article to see what they are doing and why they are doing it. 

 

Appellate Practice Tips and Tools:

Mark your calendars. DRI is presenting an appellate advocacy seminar in March 2018. Click this link for more details. 

 

Appellate Job Postings:

The Illinois Attorney General's Office is looking to fill a position in its Civil Appeals Division. More information can be found at this link

 

General Interest:

The John Marshall Law School (JMLS) in Chicago and the University of Illinois at Chicago (UIC) are in preliminary discussions about JMLS becoming a part of UIC. If JMLS becomes a part of UIC, it will be the only public law school in Chicago. Crain's has this report

November 24, 2017 | Permalink | Comments (0)

Monday, November 20, 2017

Appellate courts under President Trump

TRIBUNE_JUDGES_AS_TT

Each president makes his (and hopefully someday her) mark on the federal judiciary.  President Trump has been no exception.  In addition to the nomination and confirmation of Neil Gorsuch to fill the vacancy on the Supreme Court caused by Justice Scalia's death, President Trump has nominated 18 individuals to fill vacancies on the federal appellate bench. Eight of President Trump's appellate nominees have been confirmed by the Senate. According to the New York Times' Charlie Savage, that number of confirmations is "the most this early in a presidency since Richard M. Nixon."

Savage's article on Trump's appellate confirmations, recounts how weeks before President Trump took office, the incoming White House counsel met with other attorneys to craft a "secret battle plan to fill the federal appeals court with young and deeply conservative judges." The Republican-controlled Senate appears on board with the president's efforts. It has been holding confirmation hearings approximately every two weeks according to the Senate Judiciary Committee's website.  Just last week the Committee consider the nominations of Justice Don Willett and James Ho to serve on the United States Court of Appeals for the Fifth Circuit.  Justice Willett, who has served on the Texas Supreme Court since 2005, is well-known as the "Tweeter Laureate" of Texas.  James Ho, a well-respected appellate attorney, served as the Solicitor General for Texas.

The decision by Senate Democrats during the Obama Administration to eliminate the filibuster has made things easier for Republicans. As Savage reported, 

Republicans are systematically filling appellate seats they held open during President Barack Obama’s final two years in office with a particularly conservative group of judges with life tenure. Democrats — who in late 2013 abolished the ability of 41 lawmakers to block such nominees with a filibuster, then quickly lost control of the Senate — have scant power to stop them.

While most of President Trump's nominees have strong academic credentials, Savage reports that they are not particularly diverse.  According to Savage, "Of Mr. Trump’s 18 appellate nominees so far, 14 are men and 16 are white."

If Republicans maintain control of the Senate and President Trump keeps up the nominations, his overall impact on the judiciary could be profound.  As Savage explained, "nearly half of the 150 active appeals court judges are eligible to take senior status — semiretirement that permits a successor’s appointment — or will soon reach that age, according to Russell Wheeler, a Brookings Institution scholar."  At the start of President Obama's time in office, that number was at a little more than 27%.

 

November 20, 2017 | Permalink | Comments (0)

Friday, November 17, 2017

Appellate Advocacy Blog Weekly Roundup November 17, 2017

WeeklyRoundupGraphic

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 Opinions and News:

Last week, Justice Elena Kagan recused herself from an immigration case that had been argued -- and in which she participated in the arguments -- back in October, after her chambers identified a conflict of interest that had not been flagged prior to the argument.  "Late" identification of conflicts and recusals after Justices have already participated in the case have now happened on several occasions over the past couple of years.  The story is HERE.

In the Masterpiece Cakeshop v. Colorado Civil Rights Commission case, all eyes are on Justice Kennedy and his vote, as he's expected to be the deciding factor.  Advocates are focused on how to win that vote.  More HERE.

Federal Appellate Court Opinions and News:

#AppellateTwitter member Justice Don Willett from the Texas Supreme Court and former state Solicitor General James Ho appeared before the Senate Judiciary Committee as part of the confirmation process for their nominations to the 5th U.S. Circuit Court of Appeals.  The Dallas News has more HERE.

Appellate Practice Tips and Tools:

SCOTUSblog this week had a post discussing mootness and what happens when a case becomes moot while it is pending review by a higher appellate court. 

Slate had an article this week discussing and providing a link to a copy of the demand letter sent by Roy Moore’s attorney to the media demanding a retraction and apology -- the letter went viral as an example of really poor legal writing, editing, and proofreading.  

Appellate Job Postings:

Hiring Announcement:  Law Clerk for Justice David E Nahmias, Supreme Court of Georgia. Job posting HERE.

 

 

 

November 17, 2017 | Permalink | Comments (0)

Thursday, November 16, 2017

Should Judges Tweet?

This week the Senate held confirmation hearings on two nominees to the U.S. Court of Appeals for the Fifth Circuit, Justice Don Willett, a judge on the Texas Supreme Court, and James Ho, a private attorney. Ho fielded few questions compared to Willett's questioning, most likely due to Willett's more high profile media presence - he is known as the Tweeter Laureate of Texas. While Willett exhibits a lighthearted style and does not specifically make political tweets in his twitter feed, his social media presence does raise questions of how the public should view the judiciary. There are several pros and cons to the issue of judges having a social media presence, likely with the general public and the lawyer community having some different ideas.

Don-Willett-Article-201609221145

The benefits to judges having a social media presence is certainly to make the judicial system less mysterious and to promote civic awareness of how government works. It would make the system less intimidating, since people would be able to see that judges are human. It would allow lawyers to get a feel for the personality of a judge before whom they may appear or to whom they may submit a brief. Understanding your audience as a lawyer is an important skill to persuading your listener.

On the other hand, judges having a social media presence may undermine the respect we want people to have for the judicial system. Judges inhabit power positions, and if they are seen as mixing it up on Twitter or other social platforms, it could bring disrespect to the judiciary and reflect on all judges. Perhaps some of the mystery of the courts is necessary to maintain the dignity of the courts. If judges stray from nonpolitical discourse, this could also be quite damaging to the fair and impartial image we expect from the judiciary. 

It's not just Justice Willett, many judges are on social media (and now even courts!), so reversing this trend is unlikely. (Tessa wrote here about getting Justice Willett back on Twitter since he went on hiatus once his nomination was released - he got his own hashtag #FreeWillet). But Justice Willett does provide some guidelines for how to approach social media as a judge. In an interview last year with Texas Lawyer he said this:

Texas Lawyer: As the unofficial “Tweeter Laureate of Texas,” you’ve become one of the most public members of the state judiciary. At 22,500 tweets and counting, the world knows a lot about your sense of humor, family life, sports team allegiances and political leanings. You’ve provided a rare look into the life of a judge. But by revealing so much about yourself, do you think you’ve compromised a judge’s mandate to appear neutral in all matters that may come before the court?

Justice Don Willett: A 2013 ethics opinion from the American Bar Association gives judges a thumbs-up to engage voters via social media, calling it “a valuable tool for public outreach,” but urging caution, as with anything, judges must always be judicious, whether crafting a 140-footnote opinion or a 140-character tweet. I diligently self-censor and aim for carefulness. A few cardinal rules: No discussing cases that could appear before me, and no partisan bomb-throwing. I try to keep things witty and light, regaling people with my random musings on sports, culture, parenthood, law, stuff like that. Judges on social media must be juris-prudent, always honoring our distinctive constitutional role. I take my job seriously, if not myself. The law is a majestic thing, and when citizens confer the title “Justice” on someone, they place in human hands that profound majesty.

In his confirmation hearings this week, Willett was asked whether he would give up tweeting should he be confirmed. He acknowledged that his wife would like him to stop, but that he would take it under advisement. 

Sen. John Cornyn, R-Texas, asked if Willett would keep tweeting if confirmed.

“The short answer is, I don’t know if I’ll continue tweeting,” Willett said. “I haven’t thought a lot about it, but if I do, certainly the frequency and the content would change.”

Willett said if he did tweet as a Fifth Circuit judge, he would focus on “civic education” and improving “our collective national civics IQ.”

Later, Sen. John Kennedy, R-Louisiana, asked the same question, and Willett gave a similar answer. But Kennedy expressed concern and asked that Willett consider not tweeting if confirmed. Willett promised the senator that if he did tweet, he would “post nothing that could be remotely construed as political.”

“Don’t you think the wiser course would be to just not do it?” Kennedy said. Willett said his wife agreed, and that he would think about it and get back to the senator.

It is not known when Justice Willett's nomination will be voted on, but it will be interesting to watch his reaction on Twitter! 

November 16, 2017 in Federal Appeals Courts, Humor | Permalink | Comments (0)

Monday, November 13, 2017

Arguing a Difficult Case Effectively

This is a guest post from Judd Lindenfeld.  Judd is a litigation and white-collar associate at Wiggin and Dana LLP, a Connecticut law firm.

Three weeks ago, Howard Bashman created a bit of a stir among people who follow appellate law when he posted on his blog, How Appealing, that he would be arguing a sentencing appeal in the Second Circuit. Over the last fifteen years he has been posting, Bashman has become famous to a good many lawyers and judges alike.  Indeed, Bashman posted after oral argument that he was greeted afterwards by a person in the audience who brought his mother too.

But what lessons can we learn from a lawyer who has dedicated his career to appellate argument?

First, the facts of the case.  Bashman was representing Rudell Mullings, a former federal correctional officer who raped a female inmate.  The woman told a fellow inmate and later contacted a special agent with the Bureau of Alcohol, Tobacco and Firearms (for whom she was an informant).  DNA lab results later confirmed that there was ejaculate on Doe’s sock and underwear that matched Mullings’s DNA.

In November 2015, Mullings pled guilty to sexual abuse of a ward, a federal crime that carries a maximum sentence of fifteen years’ incarceration.  According to the Presentence Investigation Report, however, Mullings faced a sentencing range of 12 to 18 months.

Senior U.S. District Judge Edward Korman sentenced Mullings to 84 months.  In giving a sentence over four times the maximum range (and seven times the lower range), the Court stated that the guidelines did not “really reflect the nature of the crime.”

Judge Korman twice referred to New York state law.  For example, at the end of his sentence he stated that “the sentence I gave him is actually above the minimum for rape in New York which is five years, but I think is appropriate under the circumstances.”

Bashman’s argument on appeal was that the district court erred by relying on state law and the case should be remanded for a new sentencing proceeding.

But to get to that conclusion, Bashman conceded that he had three hurdles to overcome.  First, he had to convince the Second Circuit that it was impermissible for a district court to rely on state law.  Second, that the district judge actually relied on state law.  Third, that the standard of review was harmful error, not plain error.

This was an uphill climb – to put it mildly.

Bashman’s strongest argument was that federal law should be uniform – a federal crime committed in New York should receive the same sentence as the same crime committed in Michigan or California. Indeed, this is a well-accepted proposition in a number of other circuits.

Bashman asked the Second Circuit “to go further than it has gone thus far” and agree with those courts. The irony of his argument (which he pointed out) is that it is the defendant who typically asks the judge to consider state law during sentencing, especially in drug and firearm possession cases. When asked if his position was fair to future defendants, Bashman quipped: “Well Your Honor, I’m only a lawyer for this particular person.” The discussion ended there. (He argued later that his position would actually benefit future defendants).

Bashman freely conceded the weaker points of his argument. For example, he acknowledged that one of Judge Korman’s references to state law was by itself innocuous. He also agreed that his argument would be stronger if Judge Korman had referred to state law in his written explanation for the sentence. The effect of these concessions? It lent credibility to the point that he held firm on: that Judge Korman’s statements, taken together, proved that he relied on state law when sentencing Mr. Mullings.

Finally, Bashman made (in the words of one panelist) a “cleverly, very narrow” argument for harmless error review. He conceded that his client’s trial counsel did not raise the issue of state law at sentencing, but argued that Judge Korman’s reliance on state law was so unusual that the defendant should have been notified before the hearing.

Bashman's argument in this case provides us with an example of an effective oral argument. Whether his client prevails or not, Bashman made a persuasive argument, using the facts and the law in creative—but not unreasonable—ways. On a personal note, I look forward to reading the opinion.

November 13, 2017 | Permalink | Comments (0)

Sunday, November 12, 2017

Leveraging Technology as a Legal Writer

Technology_4_8

Technology is not the enemy...

We lawyers and law students are trained to think in the past. We are taught that the law changes slowly, that we should stick to precedent, and that stare decisis is king. But living in the past comes at a cost: we are often the last ones to pick up on new ways of doing things. Technology is no exception. Others have documented how bad lawyers are at adopting new technologies, despite the obvious payoffs.

And that is a travesty. Many of us are scared about how new technologies will change what it means to practice law (or, perhaps, redefine it all together). But that’s the wrong way to look it. This is an opportunity for lawyers to redefine our profession in exciting ways. It’s an opportunity to explore how our unique skills can add value for our clients (and society). Do these changes bring challenges? Absolutely. But make no mistake: these changes also bring possibilities.

Ultimately, the key to leveraging technology as a lawyer—and to avoid being steamrolled by the tech revolution we are in—is to regularly spend time exploring new products and innovations as they come out and embracing new ways of thinking when it comes to how you practice law.  To start you on that path, we’ve interviewed some of the most tech-savy firms and lawyers out there to bring you a list of eight simple ways to start leveraging technology today.

Macro-fy common tasks to save time in Microsoft Word

Creating macros is one of the simplest ways to leverage technology as a lawyer, but also one of the most feared. Lawyers suspect that creating macros requires a computer-science degree. But not so. You can create macros in moments.

The simplest way is using Word’s macro-record feature, with just three easy steps: (1) click on the record macro button (under the View tab) (2) type or carry out a task that you frequently do (like writing out a boilerplate legal standard) (3) stop the recording and save it to a trigger (such as a button or keystroke)—you’ve created a macro without any coding whatsoever. You can now place the macro on your Word toolbar, or trigger it using the keyboard stroke that you setup. Here is a detailed walkthrough if you need more help.

Once you have harnessed the power of the macro, the possibilities are endless:

  1. Create a procedural standard that auto-populates whenever you click a button on your Word toolbar (or whenever you press Cntrl-P-S, for example);
  2. create a macro to populate a table of contents or table of authorities just like you like it;
  3. create a macro shortcut for commonly-used legal phrases (such as precedent, binding authority, Ninth Circuit, district court)
  4. use a macro to create nicely-formatted block quotes or inserted images;
  5. create a macro for your legal citations—one keystroke can populate everything but the case name (for example, Cntrl-9 to create a blank Ninth Circuit citation);
  6. setup editing macros (for example, create macros for different sorts of feedback you commonly give others so that you can add the comment with a button or keystroke);
  7. anything else you can think of—I add new macros to my arsenal every week.

There are also a few built-in key strokes in Word that operate as helpful macros.

  1. CTRL + Spacebar: Remove all character formatting (font, bold, size, italics, etc.) from your selected text. This saves lots of time by allowing you to remove whatever is bothering you without having to select each element of your text.
  2. CTRL + Q: Remove all direct paragraph formatting. We all hate spacing or formatting problems, this key will remove everything troubling you at once.
  3. ALT + Shift + Up/Down Arrows: Move a paragraph or table row. Click in a paragraph or select more than one and hold down Alt + Shift while pressing the up or down arrows. Your entire paragraph moves! This is helpful in legal documents where you want to change up your arguments’ order.
  4. Shift + F5: Return to the last edit points. If you edited text and then moved to another place within your document, Shift + F5 will move your cursor back to your previous edit. This is helpful in all documents, and it is especially helpful in legal documents when you rethink an edit.
  5. CTRL + G: Navigate to a specific part of your document. This is a lifesaver when you need to navigate in large documents.

The mysteries of Microsoft Word’s Style feature 

I constantly talk to lawyers or law students who are about ready to delete Microsoft Word from their computers. The most common problem I hear is that Word is changing their formatting. This is a feature, not a mistake. Word's formatting uses what are called “styles” to auto-format your text; you can find this option on Word’s main menu bar. 

Create an infinite number of styles for all the sorts of legal writing that you do. Instead of manually creating headings in bold, indented etc., create a style for headings and apply it to the text you want to format. For example, if you are having issues with footnote text, check out the Footnote Text style. If you use nothing else in Word’s advanced features, use styles. Here is a link to a tutorial if you are ready to take the plunge.

Don’t reinvent the wheel: create Word templates

You can create templates for all of the legal documents you commonly create—briefs, memos, letters, etc. The default Word template is the “blank” template, with no text on it and basic formatting, but you can easily save a template with your custom styles and pre-populated text (like a caption page) to save time. Here is a link to a more thorough guide if you are interested.

You now have your own personal assistant robot: meet ActiveWords

This simple program turns takes your words and puts them into action. Think of it like setting up macros, but for your entire computer. ActiveWords creates a box for you type commands into on your desktop. Type in “motion for summary judgment” and ActiveWords can open Microsoft Word, pull up your templates, and bring up your summary judgment template.

If you invest some time into this program setting up commands, you will shave hours off your work week. Create a command to enter your signature block whenever you type “sig”; create a command to open Pacer, navigate to a case, and pull open the docket; or create commands to open any other file, folder, webpage, or application. In other words, anything you can do, ActiveWords can do. And now ActiveWords can sync across all of your devices.

Evernote to success

Evernote has been around for a while, but this app just keeps getting better for lawyers. Evernote allows you to easily take notes and store pictures or any other text (such as that brief you are working on) so that you can easily access and edit it from anywhere. For example, the Scannable app uses your device’s camera to capture something on paper and turn it into a high-quality, sharable scan.

Legal research 2.0: Bestlaw

Bestlaw is an extension that automatically adds features to your browser to streamline legal research on Westlaw and Lexis. You have to try it to believe it. Bestlaw reformats how legal research is displayed to you so that the information is more intuitive. For example, statutory text is automatically parsed out into clickable units, and those pesky page numbers in cases are highlighted in Westlaw so that you can easily spot them in the text. Users can also copy Bluebook citations, titles, docket numbers, and full text with one click, jump between footnotes and the main text, and much more.

Cleaning up your writing: Hemingway App, PerfectIt, Grammarly, and Writer’s Diet

Linguists have long struggled to create effective grammar-checking technology, but we are finally at the point where these programs can make a big difference to your writing.  Grammarly is probably the most advanced writing technology out there; it will check your writing for the basics (such as passive voice)—but it can also spot sophisticated grammar issues.  PerfectIt is another advanced plugin that comes loaded with styles specifically for lawyers: including legal terms from Blacks Law Dictionary, the Bluebook, and the Red BookHemingway App and Writer’s Diet are free programs that will check your writing for passive voice, adverbs, adjectives, and several other writing red flags. I commonly use all of these programs with my students, and they get results.

For the most adventurous: CARA, Ravel, and more

It’s an exciting time to be a lawyer. New legal tech comes out every day, and if you take the time and effort to embrace these new tools—the rewards will be worth it. For example,  CARA, by Casetext, is an artificial intelligence program that will analyze your brief or other legal document and do legal research for you. Pretty amazing stuff. Ravel offers a suite of advanced legal research tools, including data you can’t find anywhere else (such as statistics about judges and what kinds of decisions they make). And there are dozens of other exciting new legal technology products out there.

 

Joe Regalia is an adjunct professor of law at Loyola University School of Law, Chicago and an attorney at the firm of Sidley Austin, LLP. Jory Hoffman is an attorney at the firm of Jenner & Block, LLP. The views we express here are solely our own and are not intended to be legal advice. 

November 12, 2017 | Permalink | Comments (0)

Friday, November 10, 2017

Appellate Advocacy Blog Weekly Roundup November 10, 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 Opinions and News:

On Monday, November 6, 2017, in a unanimous opinion, the United States Supreme Court upheld the death sentence of a man who cannot remember  his crime. The New York Times has this article

 

On Wednesday, November 8, 2017, Justice Ruth Bader Ginsburg issued a unanimous opinion in Hamer v. Neighborhood Housing Services of Chicago. The oral argument in Hamer can be heard HERE. The Associate Press reports that Justice Ginsburg has dubbed herself "Rapid Ruth" for her opinion writing speed. 

 

Is a wedding cake protected speech under the First Amendment? While the Supreme Court will hear arguments on that question in December, prominent First Amendment lawyers are split on the issue. The New York Times has this report

 

Practice Tips:

In this video, U.S. Circuit Court Judge Alex Kozinski has this advice on using quotes in legal writing. 

 

General Interest:

Former President Barack Obama caused quite a stir at the Daley Center Courthouse this week as he reported for jury duty. The ABA Journal reports that he was not selected as a juror. 

 

This week, the St. John's School of Law announced that it will begin accepting the GRE in lieu of the LSAT. Above the Law has this report

November 10, 2017 | Permalink | Comments (0)

Thursday, November 9, 2017

Thinking Thursday: When metaphors harm

In a recently released Maryland Law Review article entitled Do Muddy Waters Shift Burdens?, Professors Carrie Sperling and Kimberly Holst walk readers through the history of what was supposed to be one of the country’s most progressive laws allowing post-conviction DNA testing for inmates whose cases did not originally involved that type of evidence. Article 64.03 in the Texas Code of Criminal Procedure created a uniform process for inmates to petition courts for testing, asking inmates to show, “a reasonable probability that he or she would not have been prosecuted or convicted if DNA testing had provided exculpatory results.”Criminal attorneys will recognize the “reasonable probability” test as a well-established standard that courts interpret as a probability that sufficiently undermines confidence in the case’s result.

Nevertheless, Texas courts have latched onto a metaphor introduced by the Texas Court of Criminal appeals a few years after the statute was enacted. That court first found ambiguity in the standard despite its years of interpretation in other contexts. Instead, that court held, the standard must be interpreted to require inmates to show, with reasonable probability, that the DNA testing would prove a convicted person’s innocence. The defendant in the case did not meet that burden, but showed only that DNA testing would “merely muddy the waters.” Despite the Texas Legislature returning to the statute to clarify its intent, Professors Sperling and Holst found that courts continue to use the metaphor as a statement of the governing rule of law.

Metaphors be with you
Doctrinal metaphors abound in our case precedents. The most famous are found in evidentiary analysis, “fruit of the poisonous tree,” and in civil procedure, “long-arm” statutes. Many doctrinal metaphors are extremely useful in helping frame our thinking about more abstract principles. But, in the situation spotlighted by these two professors, a doctrinal metaphor might be harmful or even a misstatement of the law. What should a lawyer do in that situation?

The answer lies in part in a separate article, this one published by the Mercer Law Review and republished in a monograph, written by Professor Michael Smith, Levels of Metaphor in Persuasive Writing. In that article, Professor Smith advises attorneys to challenge the metaphor directly, a strategy he calls the Cardozo Attack. Justice (then Judge) Cardozo warned other jurists that creative metaphors involved with corporate law, “piercing the corporate veil,”  should be used only very carefully and not to the exclusion of more accurate, albeit literal, language. Professor Smith’s article details two examples of successful attacks on doctrinal metaphors.

Both articles spend some time explaining the cognition of metaphor use, which is reason enough to read these two pieces. Beyond that, the articles offer an important lesson for appellate attorneys. First, we must be aware of the notion that metaphoric language is just that: a comparison of two seemingly incongruent things to help readers form connections. By themselves, doctrinal metaphors do not necessarily form the backbone of substantive law. Second, we should spend time in our lawyering process unpacking these metaphors in the event that they conflict with the actual and governing tests. In the event they do, it is incumbent upon us, as part of our client representation, to address the metaphor itself as part of a persuasive argument chain.

November 9, 2017 in Appellate Advocacy, Appellate Justice, Appellate Practice, Federal Appeals Courts, Law School, Legal Profession, Legal Writing, Moot Court | Permalink | Comments (0)

Wednesday, November 8, 2017

Bridging the Gap between Man and Dog

On October 27, 2017, Justice Scott Crichton of the Louisiana Supreme Court took an unusual step and penned a concurring opinion in State v. Demesme.  Why do I say this is unusual?  Well, the concurring opinion was to the denial of a petition for certiorari, for which the Court ordinarily provides no reasons. In the ordinary course of business, one would not know why the Court denied the petition for certiorari, and, frankly, we still do not know why the Court denied the petition.  We would not know Justice Crichton’s reasons if he had not told us what they were in that concurring opinion.  And, that opinion has since “gone viral.”

So what happened? According to the concurring opinion, the Warren Demesme agreed, twice, to being interviewed.  At the beginning of both interviews, the Demesme waived his rights pursuant to Miranda v. Arizona, 384 U.S. 436 (1966).  At some point during the second interview, however, the defendant became overwhelmed, or frustrated, with the way the interview was proceeding.  He told the police, “if y’all, this is how I feel, if y’all think I did it, I know that I didn’t do it so why don’t you just give me a lawyer dog cause this is not what’s up.” __ So. 3d __, 2017-0954 (La. 10/27/17). 

In his concurrence, Justice Crichton cited Davis v. United States, 512 U.S. 452, 462 (1994), and noted that the United States Supreme Court requires attorney requests to be unambiguous.  Justice Crichton then stated, “In my view, the defendant’s ambiguous and equivocal reference to “lawyer dog” does not constitute an invocation of counsel….” __ So. 3d __, 2017-0954.

Orin Kerr, the Fred C. Stevenson Research Professor at GW Law School, weighed in on November 3rd, providing a defense for Justice Crichton, so long as we remove the reference to a “lawyer dog” from the concurring opinion. I cannot agree with Kerr in his assessment, as a court speaks through its written word, which in Justice Crichton’s concurring opinion was not ambiguous. 

And this point highlights my concerns with this case:   After all, unlike Warren Demesme, who likely did not take time to consider how best to punctuate his request, or who likely did not have the opportunity to consider which cases upon which he would rely to properly frame his request for a lawyer, Justice Crichton likely had days to consider whether to write a concurrence, and then had time to carefully frame how he would articulate his reasons.  After careful consideration, away from the pressure of impending criminal charges, and seemingly relentless and repetitive questioning, Justice Crichton specifically quoted the term “lawyer dog” and stated that this phrase was not an unambiguous invocation of counsel.

On the other hand, in his discussion, Kerr does raise a good point. Taking the reference to dog out of the mix, is the sentence containing the “lawyer dog” reference sufficiently clear to make a reasonable police officer aware that one would like to invoke his right to counsel.  After all, that sentence, taken out of context and transcribed onto paper, looks a hot mess.  Kerr points out that Demesme’s sentence could be inferred as a conditional request for counsel, as an attempt to convince his interviewers that they are wrong, and as a polite question.  All of these seem plausible once you reduce Demesme’s request to an inflectionless, punctuation devoid, black and white transcript that reflects none of the personalities, relationships, backgrounds, or experiences that were in that room.

I am certain that, during the interview, there was an understanding that Demesme was referencing the officer to whom he was speaking when he used the term “dog.” I am also certain that the officer, who had hopefully received training on the constitutional parameters and restrictions surrounding interrogations, probably understood that (1) Demesme was asking for an attorney and (2) Demesme likely did not know that his request could theoretically be construed as ambiguous.

Whether it is a lack of judicial understanding of the vernacular use of the word “dog,” or a defendant’s lack of understanding that the time for being polite is NOT when you are asking for an attorney, this case presents a learning opportunity for appellate attorneys. We must take the time to look beyond our own life experiences, beyond a transcripts’ emotionless appeal, and beyond an opinion’s seemingly simple answer to a complex legal issue, and figure out what has really happened and how to make the court see it.  To do that we need to see what our cases actually look like, we need to understand what is actually happening out there, we need to keep up with the world’s constantly evolving language, and we need to make certain our advocacy helps fill the gaps.

November 8, 2017 | Permalink | Comments (0)

Friday, November 3, 2017

Appellate Advocacy Blog Weekly Roundup November 3, 2017

WeeklyRoundupGraphic

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 Opinions and News:

National Law Journal 2017 Appellate Hot List – special report featuring lawyers and firms that posted notable wins at the U.S. Supreme Court or in federal circuit courts this year --   https://www.law.com/nationallawjournal/sites/nationallawjournal/2017/10/30/the-2017-appellate-hot-list/?slreturn=20170930112534

SCOTUSblog post discussing the meaning of state appellate court decisions that “summarily” affirm lower court decisions without an opinion – are those endorsements of the lower court, are something else?  The discussion is in the context of reviewing the Supreme Court’s arguments this week in Wilson v. Sellershttp://www.scotusblog.com/2017/10/argument-analysis-quixotic-search-general-meaning-state-court-summary-affirmances/  + http://www.scotusblog.com/case-files/cases/wilson-v-sellers/

Federal Appellate Court Opinions and News:

National Law Journal 2017 Appellate Hot List – special report featuring lawyers and firms that posted notable wins at the U.S. Supreme Court or in federal circuit courts this year --   https://www.law.com/nationallawjournal/sites/nationallawjournal/2017/10/30/the-2017-appellate-hot-list/?slreturn=20170930112534

State Appellate Court Opinions and News:

SCOTUSblog post discussing the meaning of state appellate court decisions that “summarily” affirm lower court decisions without an opinion – are those endorsements of the lower court, are something else?  The discussion is in the context of reviewing the Supreme Court’s arguments this week in Wilson v. Sellershttp://www.scotusblog.com/2017/10/argument-analysis-quixotic-search-general-meaning-state-court-summary-affirmances/  + http://www.scotusblog.com/case-files/cases/wilson-v-sellers/

 

Appellate Job Postings:

From Justice Rhonda Wood, Justice of the Arkansas Supreme Court (@JudgeRhondaWood) – Posting for law clerk opening:    https://twitter.com/JudgeRhondaWood/status/924801618754834434

November 3, 2017 | Permalink | Comments (0)

Thursday, November 2, 2017

The 2017 Appellate Hot List

Contrary to the enticing moniker, The Appellate Hot List is not a beauty contest! It is an annual round-up of the top law firms who have won significant victories at the Supreme Court or in the federal circuit courts. This year's Hot List naturally includes some repeat offenders, because clearly, once the word gets out that a firm wins in the highest court, more clients will come calling. The National Law Journal did quick summaries of the cases involved, and some of the more prominent attorneys were asked to give advice to their younger selves.

APL-Bug-Article-201710311515

With an eye towards educating my students, the advice portion is the most interesting:

William Jay of Goodwin Proctor won Star Athletica v. Varsity Brands, a copyright case dealing with original artwork on cheerleaders' uniforms. His advice was, "Read as much good writing as you can—nonlegal as well as legal [and] [s]et aside some time each day for long-term planning, because otherwise the immediate tasks at hand will swallow all your time." His first recommendation to read, read, read, is echoed by other top appellate lawyers in this year's list as you will see. The second piece of advice for time management is rarely discussed in law school but is ultimately a key factor to success in practice and living a balanced life.

Steve Rummage of Davis Wright Tremaine, along with his partners, won Microsoft v. Baker, a case about class certification. His advice was, "Focus less on trying to show case law mandates an outcome and more on showing how to reach a just and fair result for your client within the law." This is a lesson moot court students have to be reminded of frequently when they first practice developing their arguments for competition. Many are usually stuck on "precedent" as an argument, but the Supreme Court is more interested in finding the right outcome. Once students internalize this, their creativity bounds.

Adam Unikowsky of Jenner & Block won Kokesh v. SEC, a disgorgement case with the novel argument that it was really a penalty. The argument had never succeeded at the lower courts but ultimately won the day with the Supremes. Unikowsky advised, "If possible, make your brief shorter [and] [i]t is always necessary to be scrupulously accurate—otherwise you will lose all credibility with the court." Concision and accuracy are holy principles in legal writing. It is always nice to see your lessons reinforced by those in the trenches.

Jeffrey Green of Sidley Austin won Dean v. United States, a case regarding how sentences for gun crimes should be determined. Green gave some colorful, but very practical advice:

"Avoid lawyerly ‘splain’in. Explication, exegesis and theorizing rarely have a place. Give reasons instead—nothing more or less. What the Fourth Amendment or case X says is not going to win the day. [And] [s]ay it well, but say it only once. You can’t overestimate the goodwill you earn with any justice or judge by submitting a brief that is just about one-half of the allowable length. Don’t be repetitive about what you want, the justices just want to know why you want it."

At the risk of being repetitive myself, this advice is worth highlighting - simplify and avoid redundancies. Priceless.

Kannon Shanmugam of Williams & Connolly won two victories in the Supreme Court, and two in the circuit courts. Shanmuhagn was most proud of the hard work of the junior associates who won the cases in the lower courts. His advice was, "Take every opportunity you can to stand up in court or even to engage in public speaking. For most of us, oral advocacy is an acquired skill. [And, once again,] [r]ead good writing in any form you can find it. The best writers are voracious readers." Many students are petrified of oral presentations, but the trick is that there is no trick - only practice. Sure, some people do have a gift that gives them a leg up, but most people come by their oral argument skills through lots and lots of practice. And also, read! Read anything and everything. It will show up in your work product either way. 

Observing those who are successful at the highest levels of the profession is always worth a pause, and a thought about incorporating their lessons into our own practice - whether we maintain clients and a case load, or are simply imparting demonstrated wisdom to the youngest new attorneys. 

November 2, 2017 in Appellate Advocacy, Appellate Practice, Current Affairs | Permalink | Comments (0)