Appellate Advocacy Blog

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

Monday, December 25, 2017

Happy Holidays from the Appellate Advocacy Blog

We hope that you have a wonderful holiday season! Christmas Meme

December 25, 2017 | Permalink | Comments (0)

Friday, December 22, 2017

Appellate Advocacy Blog Weekly Roundup December 22, 2017

Weekly Roundup Logo

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:

In the wake of the sexual harassment allegations rocking the judiciary, Chief Justice Roberts called for a review of the federal judiciary's procedures for protecting court employees from misconduct. CNN has this report

 

On Wednesday, December 20, 2017, the Supreme Court blocked  a lower court's decision  to force the Department of Homeland Security to turn over more documents relating to the decision to rescind DACA.  More information can be found HERE

 

If you need a last minute gift for an appellate lawyer, the Supreme Court has you covered. Table for 9: Supreme Court Food Traditions & Recipes is a new cookbook with a forward by Justice Ginsburg and includes recipes associated with the justices and their families. Information about the cookbook can be found in this report from the Associated Press

 

Federal Appellate Court Opinions and News:

Judge Alex Kozinski of the 9th Circuit resigned this week after being accused of sexual harassment. In a statement given on Monday, December 18, 2017, Judge, Kozinski explained that he was resigning because the allegations would hinder his effectiveness as a judge and would be a distraction to the judiciary. The New York Times has this report

 

The Washington Post reports that the U.S. Court of Appeals for the District of Columbia upheld Metro's ban on displaying Christmas ads on the sides of buses. Click HERE for the article. 

December 22, 2017 | Permalink | Comments (0)

Tuesday, December 19, 2017

The Federal Law Clerk Handbook Has Been Amended, Addresses Harassment Complaints

Sexual harassment claims reached the federal judiciary when Judge Alex Kozinski was accused of sexual misconduct a few weeks ago. He has since resigned. As Tessa wrote here yesterday, one thing that kept some clerks from coming forward to report this misconduct was the policy of strict confidentiality that clerks must uphold while in chambers with their judges. Some judges, like Kozinski, may further rigidly enforce this pact as well, making it very difficult for clerks or other judicial employees to make reports. 

In rapid response to this concern the Federal Judicial Center amended the Federal Law Clerk Handbook yesterday to read:

In a section of the clerk handbook that proclaimed “law clerks owe judges complete confidentiality as to case-related matters,” two boldfaced sentences were added:

“However, nothing in this handbook, or in the Code of Conduct, prevents a clerk, or any judiciary employee, from revealing misconduct, including sexual or other forms of harassment, by their judge or any person. Clerks are encouraged to bring such matters to the attention of an appropriate judge or other official.”

Concurrently, a signature campaign has been circulated to former law clerks and others urging for clarification on the confidentiality rules. It seems at least with regard to the Handbook, the amendment above may be sufficient to ensure judicial personnel feel comfortable making reports. The letter is due to be delivered on Thursday, December 21, 2017, to "Third Circuit Judge Anthony Scirica, chair of the Judicial Conference’s Committee on Judicial Conduct and Disability, Judge Jeremy Fogel, director of the Federal Judicial Center, James Duff, director of the Administrative Office of the U.S. Courts, and Chief Justice John Roberts Jr. in his capacity as presiding officer of the Judicial Conference." The United States Supreme Court is not governed by the Judicial Conference, and the letter makes no recommendations to the Court. 

The letter can be found here and will remain open for signature. 

December 19, 2017 in Appellate Court Reform | Permalink | Comments (0)

Monday, December 18, 2017

The Kozinski Problem(s)

UPDATE: Judge Kozinski announced this morning that he is retiring, effective immediately.

As Dan mentioned in the Weekly Roundup on Friday, Ninth Circuit Judge Alex Kozinski has been accused of sexual misconduct.  The story broke in the Washington Post on December 8.  According to WaPo, six former clerks and externs alleged to the paper that Kozinski "subjected them to a range of inappropriate sexual conduct or comments."  The article contains the account of former Kozinski clerk Heidi Bond, who claimed that Kozinski "called her into his office several times and pulled up pornography on his computer, asking if she thought it was photoshopped or if it aroused her sexually."  Bond, now a successful novelist, also published on her own website her account of her interactions with Kozinski. It is quite chilling.  She writes that Kozinksi once told her to stop reading romance novels during her free time, telling her that he controlled "what you write, when you eat. You don’t sleep if I say so. You don’t shit unless I say so."

In the days since the sexual misconduct broke, other information has come to light.  None of it is good for Kozinksi.  Really no one has come to his defense, and few people seem surprised by the news. Noted journalist Dahlia Lithwick, who clerked for another Ninth Circuit judge, wrote for Slate of her own interactions with Kozinski.  Lithwick"promised [herself] that if Judge Kozinski was ever to appear before the Senate Judiciary Committee for a Supreme Court confirmation hearing, [she] would testify about the dozens of conversations [she'd] had over the years with other clerks and lawyers about Kozinski’s behavior, about the strange hypersexualized world of transgressive talk and action that embodied his chambers." 

On December 14, Law.com reported that the chief judge of the Ninth Circuit, Sidney Thomas, self-initiated a misconduct claim against Kozinski based on the WaPo story. That claim will be handled by the Second Circuit. That same day there were reports that some or all of Kozinski's clerks had resigned. 

Kozinski has denied the allegations, telling the WaPo:  “I have been a judge for 35 years and during that time have had over 500 employees in my chambers. I treat all of my employees as family and work very closely with most of them. I would never intentionally do anything to offend anyone and it is regrettable that a handful have been offended by something I may have said or done.”  He also told the LA Times that he didn't recall "ever showing pornographic material to [his] clerks" and "If this is all they are able to dredge up after 35 years, I am not too worried."

The allegations against Kozinski are deeply troubling.  While they raise many questions, the one that I want to focus on is the issue of clerk confidentiality.  In her personal account, Heidi Bond discusses Kozinski stringent views on clerk/judge confidentiality.  She explains that Kozinski takes an expansive view on the issue--"Clerks owe a bond of loyalty to their judges, and that means 'that, under normal circumstances, whatever one learned inside the Court—whether or not it was covered by the duty of confidentiality—would not be repeated on the outside, especially if it tended to demean the Court, the Justices, or fellow clerks.'"  Because of this strict view of confidentiality that was drilled into her, she basically told no one what happened to her for many years. She didn't even feel comfortable sharing it with a therapist. After Kozinski reached out to her in 2016 asking her to share about her SCOTUS clerkship experience with an individual writing a book, she decided that it was time to explore in greater depths the topic of clerk confidentiality.

She ended up talking to several individuals in the federal judiciary, but ultimately never received a satisfactory answer. The Chair of the Judicial Conduct and Disability Committee did tell her that if her concerns were about personal misconduct by a judge she was not bound by confidentiality.  However, since she was concerned that her experiences with Kozinski could be considered related to a judicial matter (Kozinski had been subject to an ethics investigation instigated by a litigant about porn kept on a personal server but accessible in the office), he could not give her an answer. In fact, he told her "I cannot think of any person, persons, or institution that can give you an answer on this."

In writing about her reasons for speaking out, Bond writes, "I want the law clerk handbook distributed by the judiciary to explicitly state that judges may not compel clerk silence on matters like the ones I have described here. I also believe that there should be a person, or persons, or an institution that clerks can turn to in order to find answers. I understand that there are reasons why no such institution exists now—judicial independence and confidentiality must be fiercely protected. I also believe that the judiciary is capable of coming up with a solution to this problem."

Regardless of what happens with Kozinski, I do hope that Bond's wish comes true.  The clerk/judge relationship is built, as Lithwick put it, "on worshipful silence."  This is especially true when you clerk for an extremely prominent judge known for sending clerks to the Supreme Court. For many people, myself included, a clerkship is a wonderful experience and your judge serves as a friend and mentor. But, if it isn't, there needs to be a place to turn to for help.  Heidi--thanks for sharing your #metoo experience.  I hope your wishes come true!

December 18, 2017 | Permalink | Comments (0)

Saturday, December 16, 2017

Find the right answers, then ask the right questions

Question-peoples-questions-md

What they say about cross examining and depositions is also true for legal writing: asking the right questions is how you get the right answers. But legal writing is trickier — because instead of asking questions directly, you have to convince your reader to ask them for you.  

That’s because reading is solitary. When we read something, we have the luxury of re-framing the questions as we go. We don't need to ask the questions that the author asked. And the big questions often don’t spring from the page at all: they are followup questions formed as we chew on ideas.  

Early on as law students, we are told something about questioning. The infamous IRAC writing mold, for one, is really just a simple question and answer. You identify the issue — a question about whether a rule applies to a set of facts — then you offer an answer by explaining the rule and applying it. And we also learn a lot about the law through the Socratic method, which is pure questioning and answering. 

But most of us don’t think about asking questions when we write a legal document. Indeed, in your brief, you might not ask your reader any direct questions. The thing is, for your reader making the decisions, it’s all about the questions. That is how we humans process information. We ask whether the propositions we read make sense. We ask whether another proposition might make more sense. We ask whether the question posed is even the right one to ask in the first place.

Practically, it’s easy to lose control of which questions your reader is asking when they read your document. A simple issue, like whether a company is liable when one of its workers gets in a brawl with a customer, will spawn tons of new questions for your reader to answer. Some you will expect and are straight-forward; many you will outright pose to your reader as you work through the issues. For example: “Was the defendant an employee?” and “Was he acting within the scope of his employment?"

But as you get into the details, it becomes harder and harder to control the questioning process. Your reader will be asking: “What type of worker should we treat as an employee?” "Does that seem fair?" And so on. You will anticipate some of these tough questions, but it takes a lot of work and careful thought to anticipate them all (and better yet, to ensure your reader doesn’t start asking new questions that will lead them to a bad answer for you). 

The power of of your reader’s questions throughout the reading process is profound. Say you represent a company who gave confusing instructions to a worker, which resulted in an accident. If after reading your brief and the opposing party’s brief, your reader asks: “Shouldn’t an employer be liable when the worker was simply doing what she was told?”— you might as well call it in. 

But if you guide your reader to a different question instead, you might be getting somewhere: “Isn’t it unfair to hold a company liable when a worker knew the instructions were confusing and never asked the company for guidance—which would have easily prevented the harm?” 

Now the how-to. To get your reader to ask the right questions, you first need to figure out the right answers. It’s not all that different from cross examining or deposing a witness. You write out the admissions you want first, then the questions come.

These two steps are a refining process. You start with a general question you need the reader to answer. You then do a dance of anticipating your reader’s possible follow-up questions and figuring out how to guide them to the right ones. You have myriad tools in your arsenal to guide readers through this questioning process. You have the law; you have policy; you have your writing style — anything you can use to convince your reader to ask the questions in a way that leads to good answers for your client. 

So maybe you start by posing this general question for your reader: “does a three-year or five-year statute of limitations apply to a battery claim?” (knowing you need your reader to answer that it’s three years). A reader given this question will first wonder whether any courts have already addressed which period applies to this sort of claim. If not, your reader might then wonder how courts go about classifying torts under the proper period. Anticipate these questions and guide your reader to the right ones.

Let’s say no courts have directly addressed this question, but you find some authority that suggests assault, which is similar to battery, falls under the three-year period. You might first guide your reader through the self-questioning process like this: “No courts have held that battery falls under the three-year period.” You are anticipating the reader’s first question and quickly guiding them to where you want to go. Your reader’s next question will be: “Ok, then how do courts figure out which period applies to a new tort?” 

Now you come to a crucial part of the questioning process: getting your reader to ask themselves a very narrow and specific question about the law; a question that will likely govern the outcome. 

In the U.S. Supreme Court’s individual-mandate case, for example, how parties framed the commerce clause question was crucial: “Doesn't the commerce clause bar Congress from forcing people to buy things?” Or instead: “Doesn't the Clause allow Congress to regulate a market that all of us are already a part of — the healthcare market?” Both questions were reasonable, and each would lead to a different result. Which question judges and justices chose depended largely on how the lawyers guided them. 

Getting back to our statute-of-limitations example, you have that caselaw suggesting assault falls under the three-year period. And you know assault is similar to battery. So you want your reader to ask themselves this question: “Which tort is similar to battery?” Because we know that answer will be a good one for us. 

Your questioning process might unfold like this: “Which period applies to a tort turns on whether the tort is more similar to the torts falling under the three-year period, or instead, more similar to torts falling under the 5-year period.” You’ve now primed your reader to ask the right question: “Which tort is battery most like?” And because this was all part of our plan, we know the answer: assault (triggering the three-year period we wanted). 

There are lots of ways to push your reader towards the right questions. Sometimes it’s as easy as just writing the question for them: “The crucial question is whether battery is like assault.” Or you can be more subtle, using rhetorical questions or hypotheticals. Justice Kagan is a master of guiding readers to the right questions like this. 

For example, in Justice Kagan’s dissent in Lockhart v. U.S., she posed a question to her readers: 

Suppose a real estate agent promised to find a client “a house, condo, or apartment in New York.” Wouldn’t the potential buyer be annoyed if the agent sent him information about condos in Maryland or California?

Justice Kagan wants the reader to ask themselves this question outright — and she knows there is no bad answer for her position. 

Judge Jennifer Dorsey, a fantastic writer in the U.S. District Courts, loves crafting the perfect questions for her readers, like this gem (which leads off an entire section of one of her orders): 

The threshold question: can Carrion raise a Johnson challenge under § 2255 when the sentencing judge did not expressly state that he relied on the residual clause?

Judge Dorsey is also a master of the hypothetical-string of questions, like she deftly uses in this order: 

Did defendants make material statements to him, or does he just believe they did? Who made them? When? And what was false about them? 

Judge Jay Bybee of the Ninth Circuit is similarly sensitive to this questioning process, directly posing a series of questions for his reader to ask in this section of an opinion: 

If we insist on reading “not less than 7 days” to mean “not more than 7 days,” why should anyone reading our opinions trust that he understands them correctly? If words are so malleable, might we routinely read our own precedents as saying the opposite of what they clearly say? May one panel simply rewrite another panel’s opinion when it thinks the prior opinion is “illogical?” And where might our creativity lead us with provisions of the Constitution that don’t make as much sense as we would like? May we amend even the Constitution at will? If we think that when Congress says “less” it actually means “more,” we should not fault anyone who might, as a result, discount other things that we have written.” 

Justice Gorsuch is also aware of the importance of questioning, often framing legal issues with discrete questions for his reader — and expressly guiding his reader to the questions he wants them to ask: 

The narrow question raised by this pretrial motion is whether, if Antoine Watts is convicted of possessing with intent to distribute five grams or more of crack cocaine, the court will be compelled to impose a minimum . . . 
The broader question is whether federal courts will be required, for the next five years, to perpetuate a congressionally recognized injustice . . . 

Judge Patricia Wald is a master of setting up carefully-constructed, nuanced legal questions that will guide her reader to the answer she wants: 

This case presents a straightforward, but nonetheless hard, question of law: Has the United States waived sovereign immunity for a back pay award to an individual denied federal employment in violation of his constitutional rights? 

And perhaps one of the best examples of how a simple question can frame an entire way of looking at an issue: Kathleen Sullivan’s brief in SEC v. Siebel

“Is someone riding around a golf course from shot to shot really a golfer?”

At bottom, the important thing to remember is that any critical reader will process your writing by self-questioning. So anticipate those questions and answer them. But better yet, figure out how to guide your reader to good questions in the first place.

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. The views he expresses here are solely his own and not intended to be legal advice. 

December 16, 2017 in Appellate Advocacy, Appellate Practice, Appellate Procedure, Legal Writing | Permalink | Comments (0)

Friday, December 15, 2017

Appellate Advocacy Blog Weekly Roundup December 15, 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:

SCOTUS declined to take the appeal in a case involving wife swapping by public employees.  In the case, two Louisiana sheriff's deputies fell in love with each other's wives and "swapped" wives and families.  When their supervisor learned of their action, he told them to stop living with each other's spouse until divorce and to cease all contact with them until that point in time.  They refused, and they were fired.  They brought a First Amendment claim based on their right of association.  The federal district court found for the state, and the Fifth Circuit affirmed.  On Monday, SCOTUS declined to hear the appeal: 

ARTICLE.

More background on the case.

Federal Appellate Court Opinions and News:

Allegations of sexual misconduct have now reached the federal appellate judiciary, with allegations being made against 9th Circuit Judge Alex Kozinski.  Several women who served as his clerks and externs have made allegations of misconduct. 

National Center on Sexual Exploitation is calling for him to resign from the bench.

Mid week, a formal complaint was filed before the Judicial Council calling for an investigation. 

And late this week, news came out suggesting that Kozinski's staff has quit amidst these allegations.

Related:  New York magazine article asks whether the federal judiciary is ready for its "#MeToo" moment, looking at Kozinski as an example.

President Trump is on pace to have more federal appeals court judicial nominees confirmed in his first year in office than any president in history.  See this report.  

Appellate Practice Tips and Tools:

The value of oral arguments -- including mooting to help others prepare.  "Oral arguments have an intangible value that lawyers and judges seem to understand instinctively.  At best, they're conversations -- starting in midsentence and with many interruptions -- that mostly seem mutually useful."  From this article.   HT: Chief Judge Dillard.

 

 

December 15, 2017 | Permalink | Comments (0)

Monday, December 11, 2017

State Solicitors General on the Move

At the end of November, Tony Mauro posted a story for The National Law Journal on President Trump's newly announced potential Supreme Court nominees.  The list adds five new names to Trumps list.  Three of the individuals--Britt Grant, Kevin Newsom, and Patrick Wyrick--all served as state solicitors general.  Mauro notes that two of the individuals on Trump's original list--Allison Eid and Tim Tymkovich--also served as state SGs.

As Mauro notes, at least 39 states now have a state solicitor general.  State SGs are increasingly arguing before the U.S. Supreme Court, and they are moving from their SG role to important positions in the judiciary.  Newson, Eid, and Tymkovich are all federal appellate judges.  Kyle Duncan and James Ho, two of President Trump's Fifth Circuit nominees, are both former state SGs.  Sixth Circuit Judge Jeffrey Sutton was the Solicitor General for Ohio, and his role in that office served as a model for other state SG positions. According to biographical data on the Federal Judicial Center website, several other federal judges, both past and present, have served as state SGs--Gary Feinerman (IL), Orrin Grimmell Judd (NY), Richard  House Kyle (MN), Thomas Lee (SC), Emory Speer (GA), John R. Tunheim (MN).  Several federal judges in Puerto Rico previously served as Solicitor General for the Commonwealth of Puerto Rico.

Moving to state supreme courts, several former state SGs serve on the highest court of their state, including Britt Grant (GA), Patrick Wyrick (OK), Nels Peterson (GA), and John Lopez (AZ).  I am sure that there are many others (feel free to let me know in comments!).

I am extremely interested in the role of state SGs both with respect to improving advocacy in the state and federal courts and promoting federalism. These individuals, often graduates of top national law schools, play an important role in our legal structure.  I suspect that we will continue to see presidents of both parties tap these individuals for federal judicial positions.

December 11, 2017 | Permalink | Comments (0)

Saturday, December 9, 2017

Issues, issues everywhere, but not a one makes sense

Lady confused

We are taught that writing with the infamous IRAC moniker is easy, you just: (1) identify the issue (a question about whether a rule applies to facts) (2) explain how the rule works, (3) discuss how this rule applies to the facts, and (4) finish with a brief conclusion that explains how everything comes out. Sounds good in theory, but real life is too messy for IRAC (or IREAC, CREAC, or any other acronym).

After all, you can rarely answer a legal question in a single, simple: Issue/rule/application/conclusion format. Once you dig into a generic, black-letter rule, more issues spawn—more questions about how parts of the rule apply to your facts. A simple issue, like whether a company is vicariously liable for a worker’s tort, can birth tons of “sub” issues. For example: “Was Jory an employee?” and “Was he acting within the scope of his employment?” So where is our trusty IRAC now? Is it: IRIIAC?

The truth is, IRAC isn’t a perfect framework—a perfect framework doesn’t exist. But IRAC can be a powerful tool if you apply its principles and stop getting hung up on the moniker. To make IRAC more useful, we suggest you think about it a bit differently—in particular, the I and the R parts.

Let’s start with the I. The term “issue” often troubles legal writers. What, exactly, is an issue? To make the concept of an issue more useful, consider both its definition and practical use. An issue is simply: “any legal question about how a rule applies to a set of facts.” So: “Did Jory commit battery?” is an issue, as is “Does the relation-back doctrine apply to the defendant’s complaint?” In other words, “issue” is a fancy label for any legal question.

More important is what we do with issues—what’s the point of giving a legal question this special name? It’s all about signposting. We refer to issues just to remind our reader that when we analyze rules and facts, we should start by telling them which particular rule and set of facts we will next address. It’s an organizational tool, nothing more. So if you need to walk your reader through four overarching legal questions, you roadmap those “issues” for your reader first.

Rule-clipart-1268249lmuvxfrina

Now for the fun part: the R. We usually learn that the rule section is where you generally explain the rule. But consider a slightly different perspective. What you are really doing here is crafting new and more useful rules for your reader that are fashioned for your case’s facts .

First you take a clunky, black-letter rule that doesn’t cleanly fit yet. After all, black letter rules weren’t made for your case (or any other case in particular). They are a starting point.

Then after researching the law you refine that generic rule into new ones that more closely fit your facts. Think about it like this. You start with a lump of marble—your general rule. You then slowly chisel it into a statue—the more specific and bite-sized rule or rules that cleanly address your facts.

To see why refined rules are better, take a simple example. Imagine your client is sued because one of its employees punched someone during an unapproved break. Which rule is more effective?

A generic rule, like: “An employer is not liable when an employee commits a tort not within the scope of employment."

Or a more refined rule that you crafted yourself:

“This court has consistently held that when an employee takes a break without his employer’s permission, the employer cannot be liable for what the employee does on that break.”

A rule refined for your facts like this boxes in the judge and the other side, making it clear how the rule applies to your facts. Yes, you are explaining your rule. But you are also creating a new rule altogether.

Sounds good, but how exactly do you refine rules like this? There are two ways.

First, you can divide the rule into smaller parts. This allows you to discuss the rule in bite-size chunks (which is a lot easier to apply). Sometimes the benefits of dividing the rule are obvious, like if courts already separate the rule into elements.

Other times, you realize it makes more sense to separately analyze different aspects of the rule even though no court has told you so. For example, maybe you identified two situations where a rule commonly applies, say in cases of intentional behavior and cases of reckless behavior. You could craft two new rules: one for intentional conduct and one for reckless.

When crafting new, smaller rules, you have a few options for organizing how you discuss them. One option is to create separate sections in your document; each section explains and applies the new, refined rule. This works best anytime your new rules require a lot of explanation and application.

Let’s explore an example. You research the law and decide that the defendant can meet the intent rule for battery if either (1) he intended to injure or (2) he was reckless about injuring. You could divide this intent rule into two new rules like this:

"Courts have held that a defendant intended a battery if either (1) he intended to injure or (2) he was reckless about injuring. Here the defendant qualifies under both theories.

Intent to injure

[Explanation of the intent to injure rule]

Reckless injury

[Explanation of the reckless injury rule]"

Another option is to discuss your new rules in the same section—and then apply each new rule separately. If you go this route, use separate paragraphs and signposts to tell your reader exactly which rules you are explaining and applying where. Then apply each separate rule in the same order that you explained them. For example, taking the same new rules again:

"Courts have held that a defendant intended a battery if either (1) he intended to injure or (2) he was reckless about injuring. Here the defendant qualifies under both.

Courts have held a defendant intends to injure . . .

As to reckless injury, courts have held . . .

The defendant intended to injure here because . . .

The defendant was reckless here because . . . "

In addition to dividing, you can also refine a rule by adding clarifying details about how the rule works. Anytime it’s not obvious what a rule means, you should consider adding clarifying details to make it clearer. So instead of saying an employee’s conduct must be within the “scope of employment,” you can add detail: “scope of employment, which includes an employee’s specific job duties and anything roughly related to those duties.” By creating more specific rules that fit with your case’s facts, you guide your reader to how the case should come out.

Most important, though, is that good lawyers repeat this rule-refining process as many times as they can. Above we refined the generic, black-letter rule for intent into two new rules—one for intentional acts and one for recklessness. You would want to try to refine these rules again, either by division or adding details about how they work. And once you’ve refined that rule, try to refine it again, on and on. The more specific and bite-sized you can make your rules, the better your reader will understand you (and the more persuasive your writing will be).

Consider your new intent to injure rule. You could refine it by adding clarifying details: “Courts have held that a defendant intends to injure if he wanted to hurt the victim, even in a minor way—he need not intend to commit the injury that the plaintiff actually suffered.”

To recap:

  1. An issue is simply a question about whether a rule applies to a set of facts.
  2. Identifying issues can be helpful because it usually means you should include a signpost for your reader: “Hi reader! Next I am talking about the question of whether the facts here are an intentional battery.”
  3. The rule explanation process is really about taking charge of rules and refining generic standards into more specific versions that cleanly line up with your facts.  
  4. You can refine rules in two ways: (1) dividing them into smaller rules or (2) adding clarifying details about how the rule works.
  5. Don’t stop after you’ve refined a rule once. Try to refine it as many times as you can. The more bite-sized your rules and the more cleanly they apply to your case, the more persuasive you’ll be.

 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. 

December 9, 2017 in Appellate Advocacy, Appellate Practice, Appellate Procedure, Law School, Legal Profession, Legal Writing | Permalink | Comments (0)

Friday, December 8, 2017

Appellate Advocacy Blog Weekly Roundup December 8, 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 December 4, 2017, the United States Supreme Court allowed the Trump administration's travel ban to go into full effect. Lawrence Hurley has this report. The Court's two orders can be found HERE and HERE.

On December 5, 2017, the United States Supreme Court heard oral arguments in Masterpiece Cakeshop v. Colorado Civil Rights Commission, which has dominated Supreme Court news this week. The audio from the oral argument can be found HERE, and transcripts of the oral argument can be found HERE. As expected the Court seemed divided over whether a cake was expressive content protected by the First Amendment. Nina Totenberg discussed the division during this segment on NPR. Cristian Farias, in this essay, argues that the issue in Masterpiece Cakeshop already has been decided against the shop owner. Rick Hills at the PrawfsBlawg argues that "respect for federalism's role in defusing deep disagreements should lead the Court to affirm by deferring heavily to Colorado's characterization of its purpose." In this article at Vox, however, Douglas Laycock and Thomas C. Berg contend that the "Court can recognize a carefully defined right in the case of Jack Phillips, the owner of Masterpiece Cakeshop, and make room for both sides in the culture wars." 

 

Appellate Practice Tips and Tools:

 shared this advice that Nellie Taft gave to her husband, Solicitor General William Howard Taft, about the length of his briefs. 

 

 

December 8, 2017 | Permalink | Comments (0)

Thursday, December 7, 2017

Thinking Thursdays: Negativity, Empiricism, and Legal Advocacy

Negativity landscape

Professor Ken Chestek at the University of Wyoming College of Law has created two different empirical studies about persuasion and narrative, using judges as the test subject. For that rarity alone, his scholarship stands out as important for lawyers to read. In his most recent article, Fear and Loathing in Persuasive Writing,[1] he asked the question of whether the “negativity bias,” known to psychologists, works with judges as well as it works with voters. The answer is the standard one you would expect from a lawyer, “it depends.” That the answer isn’t a definitive “no way,” should give us pause as advocates. Our intuitive answer that we naturally graviate towards the positive turns out to be the opposite of how our brains work. Rather, as Chestek writes, “we have a natural inclination to attend to and process negative stimuli.” Scientists posit that we retain negative information longer because the brain processes it more thoroughly—perhaps as a necessary adaption in evolution to keeping ourselves alive. He reviews the science of negativity and implications for lawyers in greater detail in another recent article, Of Reptiles and Velcro: The brain’s “negativity bias” and Persuasion

In his eighteen-month empirical study with 163 judicial readers, Chestek used a series of nine appellate brief preliminary statements to test the power of positive versus negative themes in a simulated case file. Four were positive, four were negative, and one was neutral.[2] By themes, Chestek references George Lakoff’s formuation of “deep frames,” an idea Chestek wrote about in his other empirical study about judges and the persuasive power of story (You can read a snippet of George Lakoff’s framing concepts here).

Ultimately, Chestek’s concludes that the results don’t provide bright-line answers, but instead point towards complexity. Positive themes seem to focus the judges’ attention on the state of the governing law whereas negative themes focus their attention more on the nuances of the facts. He also found that negative themes work better for a David facing Goliath rather than vice versa.

 This phenomenon has significant implications for written legal advoacy, starting with theme selection. That strategy should factor in the strength of the legal position or the facts. Second, the negativity bias might lead an advocate to phrase policy arguments in terms of avoiding bad outcomes instead of promoting good outcomes, since the judge may process the negative statement more thoroughly. And, finally, the negativity bias suggests that it is critically important to understand the negative facts of your client’s case and the ways they can or cannot be managed.[3]   

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[1] Published as the lead article in Volume 14 of Legal Communication & Rhetoric: JAWLD

[2] For more on the persuasiveness of Preliminary Statements, see Steve Johansen’s article, Coming Attractions: An Essay on Movie Trailers and Preliminary Statements, and Maureen Johnson’s article, You Had Me at Hello: Examining the Impact of Powerful Introductory Emotional Hooks Set Forth in Appellate Briefs Filed in Recent Hotly Contested U.S. Supreme Court Decisions.

[3] Base photograph by Kenneth D. Chestek—photography is one of his hobbies.

 

December 7, 2017 in Appellate Advocacy, Appellate Practice, Law School, Legal Profession, Legal Writing, Moot Court, Rhetoric, State Appeals Courts | Permalink | Comments (0)

Monday, December 4, 2017

An Appellate Advocacy Teaching Trifecta

Training future appellate advocates can be hard.  But when the bench, bar, and legal educators work together the results can be amazing.  Last week I saw a perfect example of this cooperation when students in the Advanced Legal Writing classes at the University of Arizona James E. Rogers College of Law presented their final arguments for the course at the Arizona Court of Appeals, Division 2.  The arguments were presided over by Division 2 judges, law clerks, staff attorneys, and local attorneys.  In fact, each Division 2 judge participated in at least 2 arguments, and all of the judges were extremely well-versed in the complicated copyright problem that the students had briefed. 

The result of this cooperation was a truly fantastic experience for everyone involved.  The students had an opportunity to experience a real courtroom argument before a real judge--from the "all rise" to the blinking red light.  The students also got some excellent feedback and encouragement.  Several judges commented favorably on the quality of advocacy that they saw from the students. They encouraged students to present a clear theme and roadmap, answer questions directly, and be true to their individual styles. 

The law clerks and attorneys seemed to enjoy being on the other side of the bench.  Many of the law clerks at Division 2 are recent Arizona Law grads who participated in moot court in law school.   They had excellent tips for the students as well.  

Finally, as a professor whose students were presenting argument, it was nice to sit back and just watch and grade the argument, rather than always jumping in with questions. For teachers of appellate advocacy who read this blog, I would encourage you to consider partnering with your local appellate court for final arguments.  It is a tradition at Arizona Law that I hope continues.

December 4, 2017 | Permalink | Comments (0)

Sunday, December 3, 2017

The Immutable Rules

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Like most folks who enjoy the craft of writing, I’m not a prescriptivist. At least, not generally. 

When I teach legal writing (and when I write something myself), I come from the perspective that most rules can be broken. If I were a chef instead of a writer, I would prefer the “pinch of salt” method to breaking out the teaspoons and following the recipe. It’s not that I don’t think writing rules help, it’s just that writing (like all human communication) is too complicated for inflexible regulations. 

That said, I do think there are some principles that, while perhaps not set in stone, are at least less fluid. And there is value in distinguishing between which of your writing rules are relatively unchanging and apply broadly to every document you write — and which you should follow only on occasion and with good reason. 

I imagine we all have our own set of principles that we stick to regardless of the document or case. When I had the pleasure of clerking for Judge Jennifer Dorsey, a phenomenal writer on the U.S. District Court bench, I will always remember reading through hers on my first day in chambers. I am not ashamed to say I stole several.

When I teach legal writing, I call mine the “9 immutable rules.” They occasionally change, as my views on writing and my writing process change. But in broad strokes, they have stuck by me for quite some time. I hope that you might consider adding a few of these to your own set. And that you might spend some time thinking about which of your rules deserve to join the club (I just broke a rule right there!). 

1. Reprogram your writing intuition

Just reading about how to write better isn’t enough. When you are in the flurry of writing and wrestling with complex legal questions, the last thing on your mind is some new stylistic flourish you wanted to try. Instead, set aside time to make new writing moves a habit — in other words, reprogram your writing intuition.

It starts with finding new moves you want to incorporate into your writing. Maybe you want to remember to use more concrete verbs, use transitions more, or to tee-up key issues with a rhetorical question. Make a running list of new writing moves that you want to use and keep it handy.

The second step is the tough part: making these moves part of your intuition. There are a number of things you can do: for a few weeks, take the set of moves you are working on and try to spot them in the things you read every day; force yourself to use the moves a few times each day before you start working on projects; use checklists after every project until the move becomes second nature — frankly, it doesn’t matter what methods you use, just take the time.

2. Take active control over your writing moves — down to each word

Writing: Develop the habit of asking why you are making the writing choices you are, get away from autopilot (at least in the editing phase). What does that word, or that sentence, do for you?

Reading: Develop a habit of noticing what moves are being used by the authors you are reading everyday — both legal and non-legal. Why did the author use that phrase? That structure? What works better for you?

3. Adhere to the 2-minute rule

Assume you only have 2-minutes of writing to make your case with any legal reader — because frankly, that may be all the time you have. Allocate your fire by homing in on those points in the law and facts that the case hinges on. Every extra word, sentence, paragraph, or point lessens the force of the things that matter.

This principle applies to your document as a whole (your introduction must pack a punch and include all the key rules and facts you need your reader to walk away with); section by section; and paragraph by paragraph. Pay attention to the beginnings. 

4. Adhere to the 1-read rule

Write so that your reader need only read each of your sentences one time to absorb all the information packed inside. Assume that forcing your reader to reread a sentence (or even a word) means you lost them forever. And indeed, it might mean just that. Ask folks to edit your work for this one-readability.

Remember that psychology tells us that, often, writing is a race to making mental connections. The first person to get a reader to simply understand a way of looking at an issue may prevail. That’s because once someone makes a logical mental connection, it has inertia — it takes more energy to break it.

5. Phase-edit over time

Remember that it’s impossible for the human mind to edit for everything in one sitting — you must break the process up into phases, with time to get away and get a “fresh reader” perspective.

So, perhaps, your first phase is editing for content; then you edit for your first ten style moves; then your next ten. And so on. 

6. Take control of the rules and use them to reduce the gray areas in your case

Build your own rules from authority; do not rely on cases or statutes to dish them up. Because only you can explain the rule in the way you have come to understand it after days or weeks of researching and turning it over in your head. Cases or statutory language won't do that for you on their own. A good-sounding quote won't necessarily cut it.

Explain your rules clearly enough, specifically enough, and simply enough so that the judge is given less discretion. Identify where a judge has discretion and figure out how to guide that discretion.

Try to build rules that seamlessly link up to the facts that matter.

To make sure you have built a strong rule, force yourself to write out difficult rules so that they come out the opposite way. Because that is what the judge will do.

Once you have created these nuanced rules, ensure your reader will see it; make them obvious in your document. This means putting your take on the important rules in your introduction, in the leads to your sections--anywhere your reader will see them. 

7. Prove your rules

In explaining rules and analyzing them, show each step of your reasoning process — like a math problem. Use all the persuasive tools at your disposal to convince your reader that the rules work in the way you say they do. Having a good explanation of the rules does you know good if your reader does not believe you. 

8. Hand hold

Keep in mind that your reader should never be lost at any point in your document. This means that every single fact, rule, or other part of your writing cannot come as a surprise.

Use umbrellas, signposts, and transitions. You must give everything context before you dive in.

9. Always tell a story: about the law and the facts

Your reader has heard your facts and your rules before, albeit slightly different versions. Think through how you can meld your story with the existing stories your reader likely knows in a way that tells a cohesive story.

So if you advocate for a new exception to a rule, explain this exception by fitting it into the existing story about how that rule works as a whole. We all process the world by converting information into stories. By ensuring you always tell the whole story, you ensure your reader will follow along. 

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. The views expressed above are solely his own and are not intended to be legal advice. 

December 3, 2017 | Permalink | Comments (0)

Friday, December 1, 2017

Appellate Advocacy Blog Weekly Roundup December 1, 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 Opinions and News:

The Supreme Court said on Monday it would not take up the Westboro Baptist Church’s challenge to Nebraska’s law barring protests near a cemetery, mortuary, or church from one hour before the beginning of a funeral to two hours after.  More HERE  and HERE.

The Supreme Court on Monday heard arguments concerning the propriety of the U.S. Patent and Trademark Office reviewing its own decisions to issue a patent.  The issue is whether the office should be able to administratively review its own decisions and invalidate previously issued patents, or whether that should only be done by a federal court.  During the arguments on Monday, the Court appeared to be divided, with conservative justices seeming to view the non-judicial review system as unconstitutional and more liberal justices seeming to be inclined to uphold it.  More from Bloomberg  the New York Times.

The Supreme Court will consider whether to accept an appeal challenging Arizona’s death penalty statute.  An op ed in the Washington Post by Laurence Tribe (@tribelaw) argues the Court should take the case and should end capital punishment once and for all.  And a group of Arizona judges, former prosecutors, and legal experts are also urging the Court to take the case and rule the use of capital punishment unconstitutional:  

For the second time this year, the Supreme Court has made a mistake in identity in suspending a lawyer from the Court.  This time the victim, Jim Robbins, is an attorney who actually previously spent 7 years working AT the Court. More HERE and HERE.   

The Supreme Court on Wednesday heard arguments in a major Fourth Amendment case addressing whether law enforcement needs a warrant to obtain cell tower data to track and reconstruct the movements of cell phone users.  More HERE and HERE.   

 

Appellate Practice Tips and Tools:

Hat tip to  Bob Loeb (@BobLoeb) – a link to the Supreme Court Clerk’s Office advice about oral argument and preparing for it being like packing for a cruise.

Hat tip to Howard Bashman (@howappealing) – a link to the ABA Council of Appellate Lawyers’ latest issue of Appellate Issues.  

This week's Practice Tuesday (@practicetuesday) blog post by Joe Fore (@joe_fore) had great advice for giving more effective writing feedback. 

Appellate Job Postings:

Arkansas Court of Appeals Staff Attorney position:  https://courts.arkansas.gov/content/arkansas-court-appeals-staff-attorney 

NYU School of Law Brennan Center Attorney position:  http://brennancenter.theresumator.com/apply/sEH2BhM6Nb/Counsel-Justice-Program

 

December 1, 2017 | Permalink | Comments (0)