Appellate Advocacy Blog

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

Saturday, January 27, 2018

Making conciseness work: the power of content-word editing

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Vigorous writing is concise. A sentence should contain no unnecessary words, a paragraph no unnecessary sentences, for the same reason that a drawing should have no unnecessary lines and a machine no unnecessary parts.—William Strunk, Jr.

We have it constantly bashed into our heads that as legal writers we should “be concise.” Thanks for that. But how do you write concisely? On that point things become fuzzy. “Omit needless words,” followers of Strunk and White might tell you. Particular to us legal writers, we might hear “cut the legalese.”

“Take out clutter phrases,” is another common one. This last nugget is good advice: train yourself to look for common clutter words or phrases (like “of” and “it is”) and you can make some headway on the conciseness front. 

But none of this advice will make you a concise writer. Your writing might improve so that it no longer resembles a glob of word vomit. But razor-sharp prose requires more fundamental skills. Do you think that the following sentence was written by simply “omitting needless words”: 

“It was a fine cry—loud and long—but had no bottom and it had no top, just circles and circles of sorrow.” —Toni Morrison.

The answer is “no.” So how do great writers do it? They learn how to build sentences, word by word, letter by letter. They don’t rely on ready-made sentences delivered to them by a lifetime of language osmosis. They learn how to strip a sentence to its pieces, rework the mortar, saw out some here, weld some supports there—to build a sentence that is their own.

In short: You can buy sentences off the shelf and repackage them for your reader—or you can learn the art of sentence-crafting for yourself. We lawyers should be building, not buying. 

Much like any craft, becoming a sentence-builder will be a lifelong pursuit. You need a host of tools on your belt, lots of practice, lots of patience. But it all starts with the foundation: the ideas you need to convey to your reader. With these ideas in hand, you are ready to tear apart your sentences and build them with purpose.

We call this practice of building sentences idea by idea “content-word” editing. It goes like this.

  1. You spot a sentence in your draft that you want to rebuild.
  2. You underline the couple of key words that your reader must absorb—the ideas you can’t afford them to miss.
  3. You jot down these crucial words.
  4. Then you rebuild the sentence, one word at a time, to deliver those ideas—and nothing else. You can use the same key words or replace them with new ones .

What you will find is that a lifetime of absorbing clunky writing has made you a poor judge of what really matters in your sentences. Forcing yourself to distill your sentences down to several words—then rewriting from the foundation up—will allow you to skip past the fluff.

Let’s see some content-word editing in action. Take this real-life sentence from a brief:

“The Uniform Trade Secrets Act, inter alia, generally provides a definition of trade secret as follows: any piece or collection or grouping of information or documents has intrinsic value such that it derives value from not being known to competitors.”

Sadly, lawyers write bloated prose like this all the time. And it’s not all our fault. We are just regurgitating the sentences we’ve seen since our first day of law school.

But it’s never too late to break those bad habits. Let’s start by underling the words that really matter here. You will need to use some judgement—and what counts as a “content word” will also depend on your other sentences and context. So if your reader already knows this case is brought under the Uniform Trade Secrets Act, that idea isn’t too important. But if you hadn’t yet told your reader that, maybe it’s important enough to underline:

“The Uniform Trade Secrets Act, inter alia, generally provides a definition of trade secret as follows: any piece or collection or grouping of information or documents has intrinsic value such that it derives value from not being known.”

Those underlined words are probably all that matters here. The idea the author is trying to convey is “what is a trade secret?” So we underline the key words that convey that content.

With these key words in hand, we now have a shot at some conciseness. We can rewrite the sentence to convey only our key words and ideas, with as little distraction as possible. As a reminder, our key words here are “trade secret,” “information,” “value from,” and “not [being] known.” 

“A trade secret is information made valuable by its secrecy.”

Or:

Information that derives value from its secrecy is a trade secret.”

So even with the most basic set of writing tools—once you’ve reduced your sentence to a manageable few words—the options for rewriting it become obvious.

Look at some good writing and usually you can tell that the author has already used some kind of content-word editing. Take a sentence Justice Kagan penned:

“Notorious killers, such as Jeffrey Dahmer, Ted Bundy, and David Berkowitz[], all committed acts of violence against animals before moving on to human victims.”

We probably can’t do much better (Justice Kagan, after all, is one of the best legal writers on any court). But let’s try:

Notorious killers, such as Jeffrey Dahmer, Ted Bundy, and David Berkowitz[], all committed acts of violence against animals before moving on to human victims.”

These underlined words hold the important content. Let’s try using these to rebuild:

 “Notorious killers often abuse animals before moving on to humans.”

Notice we replace the phrase “acts of violence against” with a shorter verb, “abuse”—replacing your key words with new ones is another tool you can use with content-word editing.

If we wanted the examples of famous killers (which is probably important enough to include):

Notorious killers like Jeffrey Dahmer, Ted Bundy, and David Berkowitz abused animals before moving on to humans.”

Now let’s take a sentence from another one of the top judges in the nation, Judge Jennifer Dorsey, a U.S. District Court Judge:

Former cocktail servers Kelly Stewart and Danielle Harrington challenge their 2015 termination from Hyde Bellagio, alleging that Hyde's zero-tolerance alcohol policy was enforced selectively against them.”

Streamlined and lean, to say the least. There’s not much to rebuild here. We could, of course, replace some words (and perhaps cut a little). Maybe your reader doesn’t need to know the year, or maybe the name of the restaurant doesn’t matter so much:

Former cocktail servers Kelly Stewart and Danielle Harrington allege their employer selectively enforced a zero-tolerance alcohol policy to fire them.”

Content-word editing is the first step to sentence-crafting. Practice. A lot. With this tool in your belt, you can start adding dozens (or hundreds) of other tools—each will help you better convey your points.

But it all starts with content-word editing. Because if you don’t know what ideas you want to sell, all the style in the world can’t help you.

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. Check out his other articles here

January 27, 2018 | Permalink | Comments (0)

Thursday, January 25, 2018

Should Justices Dine with Senators?

The newest justice to the Supreme Court, Neil Gorsuch, is doing his part to keep Twitter rolling. A few days ago he attended a private dinner with Republican Senators Cornyn, Alexander, McConnell, and Secretary of Transportation, Elaine Chao, who is married to McConnell. How do we know this? Senator Alexander tweeted about it saying,

I enjoyed having dinner tonight at the home of Senator John Cornyn and his wife Sandy with our newest Supreme Court Justice, Neil Gorsuch, Transportation Secretary Chao and a few of my other Senate colleagues to talk about important issues facing our country.

The Tweet did not go unnoticed and drew criticism ranging from charges of fraternization to ethical impairment. The action of dining together is not actually against any judicial code of conduct. According to the Code:

Canon 5: A Judge Should Refrain from Political Activity

(A) General Prohibitions. A judge should not:

(1) act as a leader or hold any office in a political organization;

(2) make speeches for a political organization or candidate, or publicly endorse or oppose a candidate for public office; or

(3) solicit funds for, pay an assessment to, or make a contribution to a political organization or candidate, or attend or purchase a ticket for a dinner or other event sponsored by a political organization or candidate.

Sharing a meal would not fall under these restrictions, but could there still be a problem with it? Yes, and the problem is with perception. Justice Gorsuch, by all accounts, seems to be a very even-tempered judge, not subject to whim. He writes thoughtful opinions and might even be called predictable in his votes. Not everyone will like his decisions, but he does not seem susceptible to political pressure.

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However, in light of the current state of the public discourse and political climate, dining privately with politicians of only one political party certainly looks bad, and is not a suggested way to build a public perception of impartiality. Based on what I perceive to be Justice Gorsuch's respect for the judiciary and public perception, I doubt we will see anymore tweets documenting his attendance at dinners like this again. 

 

January 25, 2018 in Current Affairs, United States Supreme Court | Permalink | Comments (0)

Monday, January 22, 2018

Federal Courts and the Government Shutdown

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Americans woke up on Saturday to a government shutdown. (For the curious, "shutdown" is a noun, while "shut down" is a verb.)  According to CNN, this is the 18th shutdown since 1976, but the first modern shutdown where the same party controlled Congress and the White House.

If you are like me, you woke up Saturday with several burning questions: (1) Will my mail arrive? (2) Will TSA be working? (3) Can I hike in the national forest that I live near? And most importantly, (4) Will the federal courts be open?  As it turns out, the answer to nearly all those questions is "yes," although the visitor's center is probably closed at the national forest.  According to the Administrative Office of the U.S. Courts, "Despite a government shutdown, the federal Judiciary will remain open and can continue operations for approximately three weeks, through February 9, by using court fee balances and other funds not dependent on a new appropriation."  While hearing and filing dates may need to be changed if a federal government attorney on a case if furloughed, the actual courts and the Case Management/Electronic Case Files system remain open.  

If the shutdown extends past three weeks, "the Judiciary would then operate under the terms of the Anti-Deficiency Act, which allows work to continue during a lapse in appropriations if it is necessary to support the exercise of Article III judicial powers." This would result in each court determining what level of staffing is necessary. In a report by the Congressional Research Service on government shutdowns, the researchers noted that,

During the FY1996 government shutdowns, the federal courts generally operated with limited disruption to their personnel. In the absence of appropriated funds, the judiciary used fee revenues and “carryover” funds from prior years to support what it considered its essential function of hearing and deciding cases. Internal judiciary guidelines, according to the official publication of the U.S. courts, recognized the “unique function of the Judiciary” and anticipated that all activities “essential to maintain and support the exercise of the judicial power of the United States during a funding lapse” would continue. The funding lapse, however, did affect some court functions, with some judges entertaining motions for continuances in civil cases and at least one district court announcing it would not start any new civil jury trials. An appellate court, it also was reported, had to reschedule several arguments because government lawyers were unable to attend. During the November 1995 government shutdown, lack of funding resulted in furloughs of most of the staff of the federal judiciary’s two support agencies, the Federal Judicial Center and the Administrative Office of the U.S. Courts. During the second shutdown, prior to the judiciary’s decision to use fee revenues and carryover funds to continue essential functions, some courts did furlough personnel “on a limited basis.” (footnotes omitted)

It will be interesting to see how many arguments need to be rescheduled in the federal appellate courts. The Supreme Court isn't scheduled to hear arguments again until mid-February, so hopefully things will be settled by that time and set arguments won't be impacted.

 

January 22, 2018 | Permalink | Comments (0)

Friday, January 19, 2018

Appellate Advocacy Blog Weekly Roundup January 15, 2018

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

 

Supreme Court Opinions and News:

The United States Supreme Court announced that it will consider a challenge to President Trumps latest travel ban. The New York Times has this report

 

Can a lawyer concede a client's guilt when the client maintains his innocence? Is it simply a matter of trial strategy for a lawyer to admit guilt and plead for mercy to avoid the death penalty? These are the questions the Court will answer in McCoy v. Louisiana. The Washington Post has this report. The briefs for the case can be found at this link. The transcript from the oral arguments can be found HERE. The audio recording from the oral arguments can be heard HERE

 

David French has this essay discussing National Institute of Family and Life Advocates (NIFLA) v. Becerra, which is a case that has "almost entirely escaped public attention." The issue presented in the case is: Whether the disclosures required by the California Reproductive FACT Act violate the protections set forth in the free speech clause of the First Amendment, applicable to the states through the 14th Amendment. Click HERE for the briefs in the case.  Different perspectives on the case can be found HERE


Federal Appellate Court Opinions and News:

Chief Judge Sidney R. Thomas of the U.S. 9th Circuit Court of Appeals has taken a proactive step to address workplace sexual misconduct. Chief Judge Thomas has created a committee to review workplace policy and recommend changes to protect employees  after former employees accused Judge Alex Kozinski of sexual misconduct. The Los Angeles Times has this report

 

Sex sells, but there is no constitutional right to sell sex. On Wednesday, the U.S. 9th Circuit Court of Appeals dismissed a lawsuit filed by the Erotic Service Provider Legal Education and Research Project (ESPLERP). Relying on Lawrence v. Texas, ESPLERP argued that California’s anti-prostitution law violated the constitutional rights of prostitutes and clients to engage in consensual sexual activity, claiming that paying for sex was protected commercial speech.  The 9th Circuit was not persuaded by ESPLERP's arguments and it's reliance on Lawrence, finding that  paying for sex was not protected by the Due Process Clause. Read the Court's opinion HERE

January 19, 2018 | Permalink | Comments (0)

Thursday, January 18, 2018

Thinking Thursdays: The idea of "opportune moments" in advocacy.

Appellate attorneys must choose not only the right arguments, but also the right moment for the argument. By that, I mean the right time in the world, and the right time in the brief. The idea of opportune moments draws upon a less-taught rhetorical concept, that of kairos.[1]

In Greek myth, two spirits represented different aspects of time: Chronos and Kairos. Chronos, often depicted as an aged man, was the spirit representing the sequential and linear passage of time. Kairos, the spirit of opportune moments—of possibilities—is shown as a young man, floating on air in a circuitous path. Francesco_Salviati_005-contrast-detail[2] His wings and the long hair growing only out of his face and not on the top or back of his head, symbolizes the need for people to seize him as he approaches, but not after he passed by. In his whirling travel patterns, Kairos—unlike Chronos—may come around again. Thus, the concept of kairos in rhetoric centers on the “opportune moment.” It is the difference between “being in the right time and place” versus the idea that people cannot go backwards in time.    

The “opportune moment” concept of kairos has been part of rhetoric since the time of Aristotle, who took the view that the moment in time in which an argument was delivered dictated the type of rhetorical devices that would be most effective. The sophists took a different view: Kairos is something to be manipulated by the presenter as part of adapting the audience’s interpretation of the current situation. Kairos assists in molding the persuasive message the speaker is communicating. Modern rhetoricians hold a middle view—that a presenter must be inventive and fluid because there can never be more than a contingent management of a present opportunity.

The Greek word kairos and its translation “opportune moment” embody two distinct concepts communicated through metaphors. The first concept, the derivation of the “right moment” half of the definition, is temporal. Greek mythology concentrated the spirit on the temporal. That is, the right time in the history of the world. For lawyers, that is important to know when making a policy argument. Is this the right moment in the trajectory of chronological time to make a particular policy argument. Will it persuade? Appellate attorneys who write civil rights and other impact-topic briefs will immediately understand what I am talking about. There is a right moment in history to make an argument. Some of the most important cases decided by the U.S. Supreme Court depended on the timing of the case—the kairos.  

In an article about creating kairos at the Supreme Court, and published in the Journal of Appellate Practice and Process, Professor Linda Berger has written about the idea of kairos and suggests that temporal metaphors are still useful, because they help explain why today’s dissent in an opinion may become tomorrow’s majority decision. In her analysis, she demonstrates that what may look like a missed or lost opportunity to persuade may still have an impact. A snagged thread in the fabric of the law, which, at an opportune later time, can be pulled to unravel the existing fabric of the legal sky when the opportune moment comes around again.  

Dreamstime now is the right moment teacupBut, the second half of the kairos definition—the opportunity—deals with the spatial. To seize the opportunity at the right time requires one to communicate in the right place and under the right circumstances. Rhetoricians commonly use visualizations of the penetrable openings needed for both the successful passage of the arrows of archery through loopholes in solid walls, and the productive shuttles of weaving through the warp yarns in fabric, as a way to describe the spatial aspect of kairos. Modern rhetoric takes these metaphors and elaborates, defining kairos as “a passing instant when an opening appears which must be driven through with force if success is to be achieved.”The idea is one of force and power.

For appellate attorneys, this represents the “where” an argument is placed in the internal whole of the document. The kairos of the legal writing. That depends, of course, on the overall narrative structure of the argument, the positions of emphasis in the beginnings and closings of sections and paragraphs, and the lasting imagery the writer wants the readers to walk away remembering. It is, as Professor Scott Fraley has noted in his Primer on Essential Classical Rhetoric for Practicing Attorneys, the idea that the writer understands the right moments “at which particular facts or arguments are inserted into the argument or presentation of the case.” He calls kairos, “the art of knowing when . . . to make the winning argument.” In other words, the strategic advocate spends time thinking about the persuasion of time. 

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[1] Some of this entry relies on language I wrote in an article on a different topic. Ruth Anne Robbins, Three 3Ls, Kairos, and the Civil Right to Counsel in Domestic Violence Cases, 2015 Mich. L. Rev. 1359 (2015). For the background on Kairos and kairos, I rely on these works: Carolyn R. Miller, Kairos in the Rhetoric of Science, in A Rhetoric of Doing: Essays on Written Discourse in Honor of James L. Kinneavy 310, 312–13 (Stephen P. Witte, Neil Nakadate & Roger D. Cherry eds., 1992); James Kinneavy & Catherine Eskin, Kairos in Aristotle’s Rhetoric, 17 Written Comm. 432, 436–38 (2000); and Eric Charles White, Kaironomia: on the Will-to-Invent 13–15 (1987).

[2] Francesco Salviati, Kairos (1552-1554) (fresco); picture courtesy of Wikimedia Commons, https://commons.wikimedia.org/wiki/File%3AFrancesco_Salviati_005-contrast-detail.jpg

January 18, 2018 in Appellate Advocacy, Appellate Practice, Law School, Legal Profession, Legal Writing, Moot Court, Oral Argument, Rhetoric, State Appeals Courts | Permalink | Comments (0)

Monday, January 15, 2018

Aristotle, Classical Rhetoric, and Dr. Martin Luther King, Jr.

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Today our country remembers Dr. Martin Luther King, Jr. In fact, this year the observed holiday falls on Dr. King's actual birthday--January 15. While there is much to reflect on from Dr. King's life and career, I wanted to focus today on how his writings--specifically his Letter from a Birmingham Jail--can be used to teach persuasive argument.  

Dr. King wrote the letter in April 1963, after being arrested for participating in a march without a permit (and in violation of a court order against such demonstrations).  The letter was written in response to a statement published in a Birmingham newspaper by eight Alabama Clergymen criticizing the march.  The interdenominational group of clergy urged the African-American community in Birmingham to "withdraw support form these demonstrations" and pursue their cause "in the courts and in negotiations among local leaders." 

The Letter, which was written in four days, serves as a strong justification for defying unjust laws.  It also vividly demonstrates Aristotle's three modes of persuasion: (1) logos (appeal to logic); (2) ethos (appeal to character); and (3) pathos (appeal to emotion). Interesting, as Professor Emertius Mark DeForrest has noted, citing one of Dr. King's associates, Dr. King "had a comprehensive mastery of the forms of classical rhetoric, obtained not directly from the classical Greek and Roman sources, but from the religious patrimony of scripture and pulpit."  Still, as Professor DeForrest demonstrates in his article, Dr. King's Letter "can function effectively as an introduction to classical methods of persuasion because the strategies
and tactics of his presentation exemplify those rhetorical tools."  

For example, Dr. King demonstrates logos early in the Letter when "he explains to his readers why it is he came to Alabama to engage in non-violent direct action."  As Professor DeForrest explains,

The clergy claimed that the situation in Birmingham was one of “new hope,” and that such “extreme measures” as non-violent protests were unnecessary. King effectively
thwarts that argument by noting that Birmingham’s civil rights situation was far from hopeful—the city was, in his words, “probably the most thoroughly segregated city in the United States.” King then focuses on the recurring and insistent call by the clergymen for local negotiations to solve the racial difficulties in Birmingham.
After reciting a litany of abuses heaped upon the African-American community in Birmingham, King notes that African-American leaders had sought to negotiate with the leadership of the city, but to no avail. He goes on to recount that efforts to talk to members of the business community also were fruitless. In the end, King states, “[W]e had no alternative except to prepare for direct action. . . .” Yet, he explains, the purpose of direct action was not to prevent dialogue, but to create the conditions necessary for real negotiation to occur.

 Dr. King also uses ethos in the Letter, especially in explaining the need for civil disobedience.  Professor DeForrest writes,

King addresses the issue head on and notes that the clergymen had “express[ed] a great deal of anxiety over our willingness to break laws.” This concern went to the heart of King’s character and credibility. After all, could it not be inferred from his selective embrace of the law—supporting the enforcement of Brown v. Board of Education while refusing to follow the ordinances of Birmingham, Alabama—that he was a dangerous hypocrite, a radical who would speak out of both sides of his mouth in order to get what he wanted? King does not try to minimize or explain away the clergymen’s concern, but acknowledges that it was “legitimate.” It appeared “paradoxical,” he writes, to insist
on obedience to Brown v. Board of Education while at the same time advocating the non-violent violation of laws pertaining to marches and other forms of demonstration. King then launches into a sustained explanation of the moral basis of the Civil Rights Movement’s use of civil disobedience, pointing out that the paradox
was resolved once one understood the distinction between just laws, which should be obeyed, and unjust laws, which “one has a moral responsibility to disobey. . . .”

Finally, with respect to pathos, Professor DeForrest notes that Dr. King uses it in the Letter to support his logical and factual arguments.  Professor DeForrest specifically points to "one of the most moving passages in the letter" where Dr. King uses history and vivid examples of segregation and it's impact of segregation on the African-American community to challenge the clergymen's call to just wait.

In addition to discussing Dr. King's use of classical rhetoric, Professor DeForrest points out other ways in which Dr. King uses persuasive tactics to convince his audience--including Dr. King's use of authorities and "evocative, plain language."  For those looking for a new teaching tool this spring, Dr. King's Letter and Professor DeForrest's article provide an excellent framework.

January 15, 2018 in Appellate Advocacy, Rhetoric | Permalink | Comments (0)

Saturday, January 13, 2018

Big ideas in small packages: the power of thesis sentences to distill what matters

Tiny-packages-in-hand

What’s the most important writing skill? Perhaps you might say “conciseness”? “Clarity”? Yawn. Of course those are fine, but as we've discussed in previous posts, challenging yourself with generic goals like "write concisely" won't make much real difference in your everyday writing habits. So let us offer another top writing skill (one you can start practicing today): distilling complex points into sentence-length thesis statements.  

Distilling complex ideas down into small packages may be the most powerful, effective arrow in your quiver. If you want to hone a skill that will produce big results—this is it. Indeed, you briefly learned how to distill ideas into short sentences in college. You included that magical thesis sentence—the main point of your paper—every time you wrote about the history of Prussia.  

But this concept of a thesis sentence is so much more, especially for us legal writers; it’s the concept of distilling down arguments or ideas into a small package that can be swallowed in a single gulp. Ernest Hemingway knew how to do it: "For sale: Baby shoes, never worn." A lot of ideas are packed into these six words. History. Dread. Regret.  

And look at how much Judge Carnes packs into a short line, albeit broken up with some periods: “A woman of childbearing age was hired as a teacher at a small Christian school. Then she got pregnant, married, and fired. In that order.” We know the entire story (or at least what matters).  

Our newly-benched Justice Gorsuch knows how to pack a lot into one sentence, too: "Our story starts with two provisions buried in our immigration laws." This inauspicious sentence actually divulges a lot, including the obscurity of the provisions and that two separate provisions matter.  

Distilling down big ideas into short sentences is a powerful move anywhere in your document—like the first and last line of a section. But to get the most out of this move, try applying it to perhaps the most pivotal part of your writing—the paragraph. The best writers swear by the power of the paragraph. As Paul Auster said: "a paragraph . . . is a bit like a line in a poem. It has its own shape, its own music, its own integrity." So what sentence could be more important to nail than the first sentence of your paragraphs? 

To leverage the power of the thesis in your paragraphs, there are a few lessons we can learn from the best writers.  

First, try to encapsulate the real point of your paragraphs—their thesis—in the first sentence. This has tons of benefits for you: it ensures even a skimming reader will take away your main points, and it will frame the key ideas for your reader as they read the rest of each paragraph.  

Look at how this Justice gets to the heart of her paragraph with the first sentence. You don't even need to keep going to get the point:  

"To begin, however, we reject any analogy between the NLRA—which is about process—and Title VII—which is about substance."  

You could imagine a blander topic sentence:

"To begin, however, we reject any analogy between the NLRA and Title VII" 

Or even worse, a first sentence that dives right into the details: 

"In Park v. Hoffman, the court explained that the "procedures are many" when navigating the NLRA..."

Second, style is paramount in your thesis sentences. Your reader may not make it past the first sentence, and their impression of your credibility, paragraph to paragraph, is set by the first sentence. So spend extra time getting that first sentence just right.

"Transferring the job of saying what the law is from the judiciary to the executive unsurprisingly invites the very sort of due process and equal protection concerns the framers knew would arise if the political branches intruded on judicial functions." Justice Gorsuch 

The best thesis sentences contain words or phrases that will stick with your reader like a slogan. This means picking particular words or phrases that will be hard to forget.

"Plaintiffs are not suing about confidentiality, what they want is secrecy." 

Other than using catchy words or rhetorical devices, you can also make concepts stick by including key facts: 

"The State urges us to follow Seifert and hold that a BB gun is a firearm under" the statute.  

Often you need to use the first sentence of your paragraph to help make a smooth transition from the prior paragraph. Try to incorporate the transition into your thesis sentence and still include the key content; if that is impossible, do a quick transition sentence followed by your real thesis sentence: 

"But those due process and equal protection concerns that animated our holding in De Niz Robles also apply to this case." This thesis sentence transitions and sums up the key point, all in one.  

Don't get caught up on the thesis sentence being a single sentence. If you need a couple short sentences to sum up your paragraph before diving in, so be it. Here is a three-sentence thesis to a long paragraph by Justice Gorsuch:

"That judicial declaration of what the law is turned out to be anything but the last word. Not because the Supreme Court disagreed. But because in 2007 the Board of Immigration Appeals (BIA) issued In re Briones, 24 I. & N. Dec. 355 (BIA 2007)."  

Try to construct thesis sentences that will frame how your reader sees the rest of the paragraph's content. Be subtle, but the more you can prime your reader the deeper your points will penetrate. Take this example, where a judge creates the lens he hopes the reader will use when reading the rest of the paragraph: 

"Conversely, Haywood argues that we should reconsider our holding in Seifert because the definition of 'firearm' applied in Seifert and by the court of appeals does not take into account the word's plain and ordinary meaning." 

And you can use your thesis sentence to roadmap points if you have more than one in a paragraph: 

"Courts in this district have rejected the waiver theory--and they have rejected the estoppel theory, too" 

You can also use this thesis concept to write thesis paragraphs for sections, too. Look how Justice Kagan sums up the following section in a short, idea-packed paragraph:   

“But . . . the Government takes its observation about discretion too far. Yes, the statute provides the EEOC with wide latitude over the conciliation process, and that feature becomes significant when we turn to defining the proper scope of judicial review. But no, Congress has not left everything to the Commission." Justice Kagan 

Practice taking big ideas and wrapping them in neat little packages—the first sentences of your paragraphs. You can start practicing this skill today. Simply take a piece you're working on and go through, paragraph by paragraph, converting the first sentence of each into an idea-packed thesis. Your readers will thank you.  

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. 

January 13, 2018 | Permalink | Comments (1)

Thursday, January 11, 2018

Rules

At dinner a few weeks ago, I asked some former co-workers what my next blog topic should be and without missing a beat, in unison, they all said, “rules!” Rules. You would think that topic would be unnecessary. After all, appellate advocacy is not easy. There are so many things that can go wrong with an appeal. There are so many choices we need to make when researching the law and writing the brief. One would think that the one area where appellate attorneys would not need help is with court rules. After all, the rules tell us exactly what to do … if you read them and follow them.

Yet I know, as I am sure any appellate attorney knows, that there are numerous cases dismissed each year because of an attorney’s failure to follow rules. In the Court of Appeals of Virginia, for instance, 180 appeals were dismissed in 2011 and 157 appeals were dismissed in 2012 for some procedural defect or another. See Whitt v. Commonwealth, 739 S.E.2d 254 (Va. Ct. App. 2013) (en banc).

Anecdotally, I have lost count of the number of cases I have seen dismissed for failure to follow one rule or another. Why does this happen? I have heard attorneys admit that they did not check the rules prior to filing a brief, or that they were unaware of a particular rule. When discussing this phenomenon, my colleagues expressed similar experiences.

Why take the risk of dismissal? The rules are publicly available, and easily accessible. Most rules are easy to understand, and in my experience, questions are readily answered by helpful clerks and experienced appellate attorneys. The cost is high, as the person who pays the price for an attorney’s failure to follow the rules is the client, who has no control over counsel’s actions in this regard.

In fact, the risk is so high, that in Whitt, the Court of Appeals of Virginia decided that in certain instances it is “more just, prompt, and economical,” to allow an appellant to amend a brief, rather than to dismiss the appeal. Id. at 264. In doing so, the court noted that it did not condone violating court rules, but it recognized that dismissal is a harsh sanction for a client that bears no responsibility for the attorney’s failure. Id. On the other hand, on the same day the court issued the Whitt decision, the court also dismissed an appeal where counsel had been given multiple opportunities to correct a defect, but had failed to do so. See Brooks v. Commonwealth, 739 S.E.2d 224 (Va. Ct. App. 2013) (en banc).

Why risk losing an appeal before you even begin? If you haven’t done so already, take up a little light reading this evening and familiarize (or reacquaint) yourself with your local appellate court rules.

January 11, 2018 | Permalink | Comments (0)

Monday, January 8, 2018

In search of sound "judgement"

Several weeks ago the legal writing professor listserv had a robust discussion over "judgment" v. "judgement."  I smiled at the discussion, having just circled as incorrect several instances of "judgement" in the appellate briefs I was grading. While "judgement" is not technically wrong, as Eugene Volokh points out, "judgment" predominates in American English and, even more so, in American legalese.

Not long after the email exchange, I was reminded of this discussion while driving past a well-known gym franchise.  On the outside of the building, in bright, bold letters, the gym labeled itself the "judgement free zone."  I didn't get a picture (safety first), but below is a picture of the phrase from inside of a building belonging to the same gym franchise.

Planetfitness_1

So how often is "judgement" used in legal writing and opinions?  I did a search of Supreme Court cases and came up with 199 hits on one legal database. In glancing through the results, however, I realized that many of the hits came from the headnotes or summaries, not the text of the opinion. When I narrow it down to just the opinion segment (thanks to the kind research librarians who helped me with the search), I get 67 results. While I didn't review all of the results, my review of about a third of them yielded the following observations:

1) Several of the instances of "judgement" were from quotations of statutes, ordinances, or the opinions of other courts, such as the court below.

2) Several of the instances were from pre-1900 cases.

3) A few of the examples seemed like clear typos--the case was modern and "judgement" was used only once in the case.

With respect to this third bunch, I pulled up the PDFs of the Supreme Court Reporter to see if the error occurred when the case was put on the research database.  In the three cases that I checked, the Supreme Court Reporter PDF contained the word "judgment" not "judgement."  Interesting....

Without passing "judgement" or "judgment" on the gym, the Supreme Court, or the research databases, I plan to stick with "judgment" in my own writing and correct my students' use of the other form.

 

January 8, 2018 | Permalink | Comments (0)

Saturday, January 6, 2018

The Power of the Particular

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I am pleased to welcome Professor Patrick Barry of the University of Michigan Law School to our blog for this guest post. Patrick and I clerked together, and he is one of the finest writers and teachers I know. We are excited to have him as a guest this week. 

"If those who have studied the art of writing are in accord on any one point, it is this: the surest way to arouse and hold the reader’s attention is by being specific, definite, and concrete. The greatest writers — Homer, Dante, Shakespeare — are effective largely because they deal in particulars and report the details that matter. Their words call up pictures."

— William Strunk and E.B. White, The Elements of Style (1959)

Details matter. Pick the right ones, and you can influence all kinds of decision-makers. Justice Sonia Sotomayor realized this when she was still a prosecutor in New York City back in the late 1970s and early 1980s. When crafting questions to ask witnesses at trial, she made sure to include ones that would, as she explains in her autobiography My Beloved World, “elicit details with powerful sensory associations — the colors, the sounds, the smells that lodge an image in the mind and put the listener in the burning house.”

She treated courtroom storytelling the same way. “Before you can engage the jurors’ empathy,” she writes, “put them in the shoes of the accused or victim, make them feel the cold blade against their necks, or the pang of unappreciated devotion that might drive someone to steal from a former employer.”

“It is the particulars,” she insists, “that make a story real.”

Mary Karr offers similar advice in The Art of Memoir, a book based on a creative writing class she teaches at Syracuse University. “A great detail,” in her view, “feels particular in a way that argues for its truth.” This may be why expert storytellers, legal and otherwise, seek out specific images and examples when trying to communicate their ideas. Lisa Blatt, who has argued over 30 cases in the Supreme Court, made strategic use of the following set of details in her winning brief in Adoptive Couple v. Baby Girl, a custody battle that garnered national attention in 2013 and eventually led to Blatt’s clients being reunited with the four-year-old daughter they had adopted at birth. The quoted material is from Blatt’s opening brief.

  • The adoptive mother has “a Ph.D. in developmental psychology and develops therapy programs for children with behavioral problems.”
  • The adoptive couple had already “undergone seven unsuccessful attempts at in vitro fertilization.”
  • The adoptive couple “were in the delivery room during the delivery.”
  • The adoptive father “cut the umbilical cord.”

Are any of these details legally relevant? Probably not — at least in the strictest definition of that term. The Indian Child Welfare Act, which was the governing statute in the case, says nothing about development psychology or therapy sessions or being “in the delivery room.” Nor does any line of applicable precedent.

But that doesn’t mean the details Blatt includes are not relevant in other ways. One thing they do quite well is communicate that the adoptive couple is deeply committed to becoming parents, a key factor in any custody case, regardless of the statute and precedent involved. Nobody who endures “seven unsuccessful attempts at in vitro fertilization” is still on the fence about raising a child.

The details also show that the adoptive couple has the capacity to help a child deal with the difficulties, even trauma, of enduring a multi-year lawsuit.  Telling the justices that the adoptive mother has a “Ph.D. in developmental psychology” would have been good enough; adding, as Blatt does, that the adoptive mother also has experience developing “therapy programs for children with behavioral problems” is an excellent extra bit of advocacy.

Finally, the details reveal that the birth mother trusts the adoptive couple so completely that she invited them to be “in the delivery room during the delivery.” The adoptive father was even the one who “cut the umbilical cord.”

Justice Samuel Alito, who authored the majority opinion in the case, put special emphasis on this last detail when ruling for Blatt’s clients. “Adoptive Couple was present at Baby Girl’s birth in Oklahoma on September 15, 2009,” he wrote, “and Adoptive Father even cut the umbilical cord.” When that happens, when justices or judges pick up, indeed highlight, a compelling detail from your brief, good things usually follow. Your words, your framing, are now planted in their minds.

Indeed, a legal brief is nothing without convincing, evocative details. Nor is a business plan, project proposal, or cover letter. Good lawyers know that if you want to persuade someone to take a certain action or adopt a specific viewpoint, you better have something vivid and concrete to get their attention.

The writer John Updike summed up this point well when he explained, back in 1985, his criteria for selecting that year’s best short stories written by American authors. “I want —perhaps we all want—facts . . . I can picture.”

 

For more on the power of the particular, check out these short videos from a writing workshop I gave to law students at the University of Michigan.

The Power of the Particular: To Write Good Sentences, You Need to Read Good Sentences

The Power of the Particular: Facts vs. Truths

Patrick Barry teaches at the University of Michigan Law School. He is the author of the forthcoming book Good with Words: Writing and Speaking and the curator of Good Sentences, a digital library premised on the idea that to write good sentences, you need to read good sentences.

January 6, 2018 in Appellate Advocacy, Legal Writing | Permalink | Comments (0)

Friday, January 5, 2018

Appellate Advocacy Blog Weekly Roundup January 5, 2018

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:

On Tuesday, January 9, 2018, the United States Supreme Court will hear oral arguments in Byrd v. United States. The issue  raised is whether an unauthorized driver of a rental car has a reasonable expectation of privacy in the rental car that is protected by the Fourth Amendment. The briefs for the case can be found HERE. The New York Times provides this overview of the case. 

 

The petition for writ of certiorari in Hidalgo v. Arizona asks the United States Supreme Court to finally decide that the death penalty is cruel and unusual punishment under the Eighth Amendment. The Editorial Board of The New York Times has this opinion on the issue. 

 

Federal Appellate Court Opinions and News:

In a 2 to 1 decision, the 6th Circuit Court of Appeals upheld a law banning people who have been convicted of domestic battery from owning guns. The Associated Press has this report

 

State Court News:

Adrienne Nelson was recently appointed to the Oregon Supreme Court. She will be the first African-American to ever serve on the state's highest court. The Associated Press has this report

January 5, 2018 | Permalink | Comments (0)

Thursday, January 4, 2018

Thinking Thursdays: New Science on the Ability of Facts to Debunk Myths

 

Extra! Extra! In a Post-Facts World, Facts Still Matter!

Yesterday, Slate published an important cover story written by Daniel Engber, LOL, Something Matters, in which he assures readers that facts still have power. In it, he outlines and reviews some of the scientific studies, old and new, that have analyzed the effects of presenting facts to counter false beliefs. There’s good news in the most recent studies. Facts do have an effect on debunking false information or myths.

The new science supporting the importance of factual persuasion, ironically has its own factual persuading to do. People who know a little bit about the science of managing adverse material typically rely on a small sample-size study conducted by Brendan Nyhan and Jason Reifler, When Corrections Fail: The Persistence of Political Misperceptions.[1] Two years prior to its actualy publication, the study was written up in mass-consumption media as part of the 2008 election fever. The stories tended to make dire predictions that fact-checking news stories would end up rallying people to become more firmly entrenched in their beliefs in the falsehoods. This phenomenon was termed the “backfire” or “boomerang” effect. Oxford Dictionaries selected “post-facts” as the 2016 word of the year, based in part on these studies.

Graduate students at different universities became interested in the Nyhan-Riefler paper, and attempted to replicate them, to no avail. The new studies were 103 times larger than the studies done by Nyhan and Riefler. One set of graduate students used over 10,000 test-subjects and another graduate student group used almost 4,000. The data tended to show the opposite: none of the conditions resulted in any evidence that people adhered to their views when presented with facts that showed the opposite was true. Rather, the studies showed that the test-subjects were more likely to adapt their views to better fit the facts.  

Rather than challenge the new science, essentially debunking theirs, the original scientists, Nyhan and Riefler collaborated with one of the other sets of researchers to conduct new studies. The foursome posted a 60-page article in the summer of 2017, The Effect of Information on Factual Beliefs and Candidate Favorability, [2]  concluding that people are willing to update factual beliefs when presented with “counter-attitudinal informaton.” However, they further concluded that updated factual beliefs might have only minimal effects on attitudes towards a political candidate. The very creators of the backfire/boomerang effect have questioned—some might say debunked—their own previous work. And the Slate article has set out to help publicize the new studies. Facts still matter.

So, what does the appellate lawyer take from all of this? Well, two things. First: the new studies give credence to the idea that the better way to manage adverse material is to disclose and refute it, rather than ignore it. Kathy Stanchi, a Professor of Law at Temple University has advised this in her germinal article, Playing With Fire: The Science of Confronting Adverse Material in Legal Advocacy.[3]  As cited in Professor Stanchi’s article, other scientists have suggested ways to confront adverse material—to immediately refute it when mentioned.[4]

Second, the wise appellate lawyer, turns to one of the resources that Daniel Engber cited in the Slate article, John Cook and Stephan Lewandowsky, The Debunking Handbook, available for free download (7 pages). The handbook offers an “Anatomy of an effective debunking” on page 6. The last of the advisory elements is to present information graphically, so I will end this blog post with a chart.

Elements, per handbook

Explanation in handbook

Blog Analysis

Core facts

Refute by emphasizing the key facts. This will create a gap in the knowledge of the audience—a hole where the falsities used to take up space

This isn’t said in the text of the handbook, but the examples do mention a need for the key facts to present as a cohesive, alternative narrative.

Explicit warnings

Before mentioning the myth or falsehood, provide textual or visual cues that upcoming information is false

In legal writing-ese, this advice suggests that the writer mention the myth only after presenting the true facts. That gives the truth the position of emphasis in a subsection or paragraph.

Alternative Explanation

Any gaps left by the debunking needs to be filled. Achieve this by providing an alternative causal explanation for why the myth is wrong (and perhaps why the falsities spread).

This isn’t said in the text of the handbook, but the examples do mention a need for alternative explanation to  present as a cohesive, alternative narrative. In other words, story persuades. Stories are organizational scaffolds that present information as cause à effect

Graphics

Core facts should be displayed graphically, if possible.

For lawyers, the legal reasoning may also be presented with infographics. But, not all infographics are useful infographics--some are merely decorative and others might be off-point. The writer must always balance the usefulness with the impact on persuasion. For more on this, see Steve Johansen and Ruth Anne Robbins, Art-icuating the Analysis: Systemizing the Decision to Use Visuals as Legal Reasoning, 20 Legal Writing 57 (2015).

[1] 32 Political Behavior, 303 (2010). The study used 130 undergraduate students at a Catholic university. These students were split among four different modules. Id. at 312.

[2] Brendan Nyhan, Ethan Porter, Jason Reifler, and Thomas Wood, Taking Corrections Literally but not Seriously? The Effect of Information on Factual Beliefs and Candidate Favorability (June 29, 2017), available on SSRN at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2995128 (last accessed January 3, 2018).

[3] 60 Rutgers L. Rev. 381 (2008).  

[4] Id. at 390–92.

 

January 4, 2018 in Appellate Advocacy, Appellate Practice, Current Affairs, Law School, Legal Ethics, Legal Profession, Legal Writing, Moot Court, Rhetoric, State Appeals Courts | Permalink | Comments (0)