Appellate Advocacy Blog

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

Thursday, March 29, 2018

Thinking Thursdays: Know your Logical Fallacies (Part 2)

In my last Thinking Thursday, I discussed some common logical fallacies that lawyers may fall prey to. Specifically, I focused on non-sequitur fallacies and insufficient evidence fallacies. Based on responses to my previous blog entry, I am going to review one category in this piece, and one more in the next entry.

Today I am focusing on shallow thinking fallacies. [1]

By way of quick review, logical fallacies happen when something goes wrong with the legal syllogism. Here is a proper albeit simplistic legal syllogism:

            Major premise:           The speed limit where defendant was arrested is 45 MPH.

             Minor Premise:          The working-perfectly radar gun clocked defendant at 63 MPH.

            Conclusion:                    Defendant was speeding

In shallow thinking fallacies, the advocate begins with a faulty major premise. The claimed “rule” is not a rule at all or is poorly articulated. Below are four shallow thinking fallacies.

Logic 2

1. You can spot a false dichotomy fallacy when you are presented only two choices to a complex issue that in fact offer multiple choices. For example, “If you don’t like chocolate, you must like vanilla.” Or, “you are either a Star Trek or a Star Wars person.”

Here’s how the syllogism goes wrong:

The False Dichotomy

Major Premise

Minor Premise

Conclusion

People can either like Star Wars or Star Trek, but cannot like both

You like Star Trek

You do not like Star Wars

False

True

Logical but incorrect

Some legal maxims are actually examples of this fallacy, including one of the trial lawyer’s favorites: falsus in uno, falsus in omnibus (if a witness lies about one thing, he is lying about everything).

2.Next is the bandwagon fallacy, or what I like to call “teenager logic,” It goes like this, “everybody agrees with this premise.” The obvious implication—so if everyone agrees, it must be correct. The internet is full of the faceless, nameless, “everyone says so” comments, sometimes supposedly supported by unscientific or undocumented polls. Lawyers might see this argument appear in the guise of an uncited “weight of authority” type of argument: “Most other jurisdictions do it this way!” Or, “This is a well-settled rule of law, dating back to antiquity.” [no or very few citations]. This one is a fallacy mostly because the major premise (“everybody agrees”) is not supported by sufficient authority. The premise might be true, but the skeptical reader will likely see this sort of argument as a cover-up for a weak or non-existent rule. A string citation can help overcome a bandwagon fallacy—one of the few times a string citation is actually useful: To show the weight of authority.

3.The third shallow thinking fallacy, the middle ground fallacy, is also known as the King Solomon Solution. This fallacy assumes that when two parties begin from distant or opposite positions, the position squarely in the middle of those two positions is the optimal solution. This kind of fallacy relies on the predilection of humans to rely on opening anchors for negotiation points--if the opening anchor is unrealistic, the rest of the negotiation can become fallacious. You can read more about this on the website of the Harvard Program on Negotiations.

Once again, this major premise contains fundamental flaws—in this case, the flaw in thinking that both positions are equally valid. They might not be. The problem, of course, is that the solution disregards the possibility that one position is objectively reasonable (or legally sound) and the other is grossly unreasonable (or legally unsound). While our legal system encourages and values compromise, when faced with this particular fallacy compromise leads to unreasonable or legally unsound results.

The Middle Ground Fallacy

Major Premise

Minor Premise

Conclusion

The best resolution of any valuation issue is the average of the two expert opinions

Plaintiff’s expert values the property at $500,000, but Defendant’s expert values it at $150,000

The property is worth $325,000

False

True

Logical but unsupported

4. Related to this, the fallacy of false balances also starts with a fundamental flaw in the major premise. Not all sides of an issue deserve equal weight in every situation. Sometimes one side of a debate has little or no weight at all, and therefore deserves little or no role in the debate. Journalists are often accused of allowing air time to fallacious debates even though one side is without merit.

In practice, this fallacy commonly appears in debates that involve proven science. The scientific method involves repeat experiments by different groups of scientists to verify stated conclusions. Once that has happened and conclusions have been accepted by a majority of scientists in the field, it is a logical fallacy to say that a dissenting view is equally balanced to the proved science. Allowing a debate about whether the moon revolves around the earth or vice versa would fall into this category of fallacies. As with the Fallacy of False Equivalency, lawyers can fall prey to this type of fallacy because we are taught to problem-solve through negotiation and compromise.

The False Balance Fallacy

Major Premise

Minor Premise

Conclusion

The Earth might be flat or round

I believe the Earth is flat

The Earth is flat

False

True (he “believes”)

Logical but False

Keep an eye out in your writing and in your colleagues’ to help correct any of these you spot in their analysis.

Ruth Anne Robbins, Distinguished Clinical Professor of Law, Rutgers Law School

[1] Thank you to Professor Ken Chestek (Wyoming) and Professor Steve Johansen (Lewis & Clark) for these examples. They come from the upcoming second edition of our co-authored textbook, Your Client’s Story: Persuasive Legal Writing (2d ed. Wolters Kluwer, expected publication date of later this year).

March 29, 2018 in Appellate Advocacy, Appellate Practice, Arbitration, Federal Appeals Courts, Law School, Legal Ethics, Legal Profession, Legal Writing, Moot Court, Rhetoric | Permalink | Comments (0)

Wednesday, March 28, 2018

Does the Shape of the Supreme Court's Bench Affect Oral Argument?

Short answer: yes. 

In a recent SCOTUSblog post, Andrew Hamm discusses a fascinating new article in the Journal of Supreme Court History by political scientists Ryan Black, Timothy Johnson, and Ryan Owens. Soon after his confirmation as Chief Justice in 1969, Warren Burger toured the Supreme Court building with his clerks and the Court Marshal. In the courtroom itself, the chief justice stood at the lectern and reminisced about his oral argument to the Court, noting that the justices kept interrupting each other. This happened, he surmised, because the justices could not see or hear each other well. And the situation could be fixed "by curving the bench so each justice could see his colleagues."

 The idea was not new: in the 1950s, Court staff assembled a prototype of a curved bench in the Supreme Court gymnasium:

image from wol-prod-cdn.literatumonline.com

But Chief Justice Burger followed through. Early in 1972, carpenters carved the existing bench into three segments and turned the outer segments in enable the justices -- particularly the junior justices sitting at either edge -- to better see and hear each other.

 

image from wol-prod-cdn.literatumonline.com

So did it work? Science says yes. Black, Johnson, and Owens compared instances where justices interrupted each other in the ten years terms before and the ten terms after the modification of the bench. Result: the justices interrupted each other less frequently on the winged bench. And the effect was most pronounced on the flanks: the junior justices on the edges of the bench were interrupted far less frequently when they and their colleagues could better hear and see each other.

Two takeaways from this piece:

First: it underscores the value of the Oyez Project. The authors note that theirs was the first large-scale empirical analysis to use individual-justice-level oral-argument data for terms prior to 1998. That is because SCOTUS transcripts used to generically tag all remarks by justices as "question" without identifying which justice asked the question. The good folks at Oyez have painstakingly analyzed audio recordings of SCOTUS arguments dating back to 1955 and updated the transcripts. And research like this is now feasible.

Second: the authors include an excellent analysis of the value of appellate oral argument as a discussion among justices. Obviously, oral arguments rarely feature direct dialog between justices (or judges). But, as experienced advocates know well and as Justice Kennedy explains, the court often "has a conversation with itself through the intermediary of the attorney." And, as Chief Justice Rehnquist explained in The Supreme Court, “The judges’ questions, although nominally directed to the attorney arguing the case, may in fact be for the benefit of their colleagues. A good advocate will recognize this fact and make use of it during his presentation."

Just so.

 

March 28, 2018 | Permalink | Comments (0)

Sunday, March 25, 2018

Make Sure You're the Lawyer That the Judge Can Trust

Main-qimg-50696ce4d98b864a65e3e81476545b3e
 
 “If you tell the truth, you don’t have to remember anything.”
 
-Mark Twain 
 
When I talk about legal writing, I like to stick to specifics. Like how to write punchy first sentences. Or tricks for catching typos while you're editing. Or how to spot words that you can cut to better focus on the content.
 
Concrete tips like those are easy to try and easy to train. But there are some bigger writing ideas that are also worth talking about. And one of the most helpful, in my mind, is credibility. Because with the right sort of writing credibility, you can persuade even the most skeptical readers. 
 
Let me say at the outset: Building credibility through your writing is harder than building credibility in person. In person, there are some easy tricks--posture, the tone of your voice, eye contact, a smile--that you can polish up in short order.
 
But when you write, there's a lot more to it. Your reader can't see you; they can't hear you. Everything about who you are must spring from the words on the page. Stated differently, you must build a written version of your self from the feet up. And your written-self better be pretty freaking awesome. 
 
As I write this, how do you see me? Have I convinced you that I'm someone you can trust? Perhaps a little. But do you trust me enough to put your reputation on the line? Say, to take my words, sign your name to them, and send them off to be published to the world? 
 
Because that is what you're asking every time you write a document for a judge. If you hope to actually change a judge's mind and not just go through the motions (no pun intended!) you must convince that judge to trust your written-self like a close friend. Enough to risk reversal or embarrassment if they listen to your advice. 
 
Sculpting your written-self is as much of an art as sculpting clay. Every word, every sentence, and every paragraph will influence the version of you that steps off the page. What details you choose to include; which you choose to excise. Your tone. And certainly every typo. It will all be part of your written-self that gradually takes shape before your reader. 
 
All these possibilities are daunting. But they're also empowering. Because it means that, while you can't completely change your in-person credibility (some of us just have that face); you can absolutely change your written-self credibility in exciting ways. Indeed, to be your best written self, I suggest you actually create multiple personalities--three to be exact. If you manage to embody each, your reader just might take your word for it (whatever that "it" is). 
 
Consider adopting these three new selves: (1) the expert, (2) the confidant, and (3) the smartest person in the room. This is not too far afield from Aristotle's three forms of persuasion through emotion (showing your listener that you have good sense, good character, and good will). But with some modifications for us lawyers.
 
Each of these personas will reassure your reader, in various ways, that you are worth listening to. And ultimately, worth trusting. 
 
The expert. 
 
Your first persona is the expert. She knows how her client works, how the market works. She has been handling this particular species of case for years. She understands the practical ins and outs. She knows how these cases go on appeal. This persona will reassure judges that you've thought about the bigger picture and the repercussions--that your approach will make sense to the real world. 
 
It's about making the judge see you as an experienced professional who can be trusted to think beyond the cases. A person who truly represents her client's perspective
 
Look at how federal Judge Jennifer Dorsey uses her many years of former litigation experience to give off this air of expertise in a real estate case. She lays the groundwork for her expertise in this area, discussing the practical big-picture of Las Vegas's housing market and what lenders and investors have been doing in the real world. Also note the use of accessible industry terms, like "deed of trust," delivered without overwhelming jargon. And a tell-tale expert move, Judge Dorsey's familiar and vivid language suggests she is intimately familiar with these issues (the market "crash[ed]," referring to the "winners" and "losers"):
 
In the years following Las Vegas’s real estate crash, lenders and investors were at loggerheads over the legal effect of a homeowners association’s nonjudicial foreclosure of a superpriority lien on a lender’s first trust deed. The Nevada Supreme Court settled the debate last September in SFR Investments Pool 1, LLC v. U.S. Bank, holding that “NRS 116.3116(2) gives an HOA a true superpriority lien, proper foreclosure of which will extinguish a first deed of trust.”
 
The SFR decision made winners out of the investors who purchased foreclosure properties in HOA sales and losers of the lenders who gambled on the opposite result, elected not to satisfy the HOA liens to prevent foreclosure, and thus saw their interests wiped out by sales that often yielded a small fraction of the loan balance. Freedom Mortgage Corporation is one of these lenders.

How to build this persona:

  1. Include background facts in your brief that explain how the law intersects with the real world--facts about your client, the opposing party, and the bigger environment they operate in. You are subtly showing the judge that you've been around the block. 
  2. Including some industry-speak can be helpful, but you must quickly explain or define any of this language. And if it's not intuitive or easy to understand, skip it.  
  3. If possible, refer to your judge's past cases or at least some local cases. This shows that you are a frequent flyer to the court (even if you are really a newbie!). 
  4. Lock down the local rules and cross-cite to them for any procedural issues--this will also show the judge you know how things are done in that court.  
  5. Show the judge your experience with these types of cases by discussing case law with a familiarity that makes it seem like you've been here before (even if you haven't). Style moves can help here, like familiar words and easy-to-read, intimate summaries of important authority in that legal field. 
  6. Be able to talk about trends in the law and what well-known or reputable authorities have done with an issue. 
The confidant. 
 
The next persona is about you as a person. It's about being honest and dependable. The type of person others turn to for important projects. The type of person who won't get caught up in their emotions or ego. Steady. A straight shooter. 
 
Not only must you technically tell the truth--you must be honest about the spirit of the truth, too. The judge must never feel misled by you. When you say a case says something or the documents don't: the judge knows that's so. If you tell the judge your kid is sick and you need a continuance--the judge won't find out later that you don't have kids and were actually cosplaying at Comic Con. Hyperbole and stretching is not going to win cases for you. Stick to the facts and details and more subtle style moves. 
 
Viacom used choice details instead of cheap characterizations to keep their credibility in the YouTube v. Viacom case. For example, Viacom wanted the YouTube founders to look like people out for a quick buck who didn't care about the consequences. Instead of saying that themselves and sounding argumentative, they quoted the founders themselves, who had stated in documents that their "dirty little secret . . . is that we actually just want to sell out quickly . . . concentrate all of our efforts in building up our numbers as aggressively as we can through whatever tactics." This is much better than trying to characterize the facts for yourself. 
 
In one Pennsylvania case, the costs of laying it on too thick became all too clear to one attorney. Plaintiff's counsel exaggerated some of the key facts in his brief, and the court called him out on it: "counsel for claimant has seriously undermined his professional credibility." In an Idaho Supreme Court opinion, a lawyer was called out for leaving out out of his brief some bad facts for his client; the court noted that this "damage[d] both his credibility and his client's position."
 
On the other hand, when attorneys are straight, judges notice. Like in a Massachusetts case, where one of the lawyers filed a notice letting the court know of new, binding authority that was unhelpful to his client's case. The court noted "such advocacy comports with the highest level of professionalism and deserves to be praised as exemplary ethical conduct." You can bet that judge will trust anything that lawyer says in the future. Or take a Florida attorney who conceded a number of facts in an appellate brief--and reaped the rewards. The Florida appellate court stated in its final opinion that the attorney: "concentrate[d] on the important matters for our consideration and d[id] not have us counting dancing angels on small promontories. We recognize in his advocacy a lawyer on who we can usually rely to get it right and do it ethically." 
 
Finally, this persona is not just about your honesty, but your character as a whole. You work hard. You look out for the judge's well being. You pay attention to the little things to make the judge's life easier--like appending copies of hard-to-find cases or footnoting some extra explanation for the judge to navigate your exhibits. Others jokingly say they are "officers of the court." But you mean it. You must represent your client, but at the end of the day, the judge is also a client that you can't neglect. 
 
How to build this persona:
 
  • Concede when you have losing arguments; admit when issues are tough. 
  • Even if you can't concede anything important, at least point out where you agree with the other side--this shows you are not fighting just to fight. 
  • Carelessness will kill your credibility. Pay attention to the little things so that the judge knows that if she steals from your brief, she knows you didn't miss something important. 
  • Make your brief user friendly. Always think of ways to help the judge find information and track down references or cross-references. 
  • Cut most adverbs and adjectives that tell your reader what to think; instead, let choice details speak for themselves so that the judge views you as the honest messenger. 
  • Shed the argumentative, judgmental tone. Science shows that this style, in fact, makes your reader less receptive to your arguments and increases their skepticism about what you say. You become a salesmen instead of a teacher or intermediary. So, no using "clearly, obviously, very clear" and the like. 
  • Your facts should be told in a story-form that persuades through your choice of details and subtle moves, like sentences that deemphasize bad facts. If you are calling another party's actions "atrocious" or contend they are "flagrantly violating the rules," you are not building the confidant persona. You just sound like every other hawker. 
  • Generalities and conclusory statements insult your reader's intelligence. If you are genuinely summarizing or introducing, fine. But blanket generalizations that you can't back up just highlights your weaknesses. 
  • Never ignore the bad facts--in the law and story. Nothing makes you look shadier. And when the judge or clerk notices what's missing, you just did the other side a favor and made the bad stuff more obvious.  
The smartest person in the room. 
 
Finally, you have to be the smart one.  You have to be so smart, in fact, that the judge thinks of you like a teacher, walking her through the complexity like it's a breeze. You should have such a clever way of looking at the cases and issues that the judge wants to take your brief--turn it into an opinion--and look good by osmosis. And let's just be honest: we trust smart people. We think they must know what they're talking about. We resist disagreeing with them--after all, we see things just like they do (because we're smart, too!). 
 
Pulling this persona off is about your raw writing chops, the time you spend understanding the law, and how deft you are at explaining complex concepts. Look at how one lawyer shows off his smarts with excellent writing skills in the following brief snippet. The writing is as clear and engaging as anything you'll read from a good journalist. He uses simple sentences, compelling structure that subtly emphasizes key points for the reader, vivid verbs, and excellent quoted dialogue. And it's all tackling some complex ideas: 
 
A “surcharge” and a “discount” are just two ways of framing the same price information—like calling a glass half full instead of half empty. But consumers react very differently to the two labels, perceiving a surcharge as a penalty[]. Precisely because the surcharge label is most effective at communicating the true cost[], the [] industry has long insisted that it be suppressed. As one industry lobbyist put it, a surcharge “makes a negative statement about the card to the consumer” and “talk[s] against the credit industry.” In justifying its law, the state openly relied on the effectiveness of the two labels, “even if only psychologically,” to encourage or discourage “desired behavior.” 
 
New York’s no-surcharge law in effect says to merchants: If you use dual pricing, you may tell your customers only that they are paying less to pay without credit (a “discount”), not that they are paying more to pay with credit (a “surcharge”)—even though they are paying more.
How to build this persona:
 
  • Spend enough time editing your prose that your writing has a luster. It must be crisp, fluid, and engaging.
  • Use fresh nouns, vivid verbs, and sentences that subtly emphasize and guide through their structure.
  • Transitions must connect every sentence, paragraph, and section until the entire document reaches a state of pure fluidity. 
  • Your document must be excellently organized so that the reader is never lost: headings are readable and make sense, introductions give the reader enough context to understand your points, and nothing comes as a surprise. 
  • Spend enough time wrestling with the law and authority until you are able to explain how it works to a lay person--like a journalist must. The simpler you can explain tough concepts, the smarter and more credible you look. 
  • To really get there, incorporate advanced writing moves (which I'll continue to cover in future posts) like sentence structures that break the rules (punchy fragments, appositive clusters, rhetorical flourishes, and an endless array of others); figurative language, or powerful examples or comparisons. 
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

 
 
 
 

March 25, 2018 | Permalink | Comments (0)

Monday, March 19, 2018

Supreme Grammar Splits

Last week, Marcia Coyle of the National Law Journal reported on a recent study by Prof. Jill Barton of the University of Miami School of Law that looks at grammar preferences among Supreme Court Justices.  Specifically, Prof. Barton looked at how the Justices use fragments, possessives, and conjunctions. For her study, she examined "every signed opinion, concurrence, and dissent from the 2014 and 2015 terms."  

On fragments, Prof. Barton found the Court split 5-4 in favor of using fragments to spice up their opinions.  While the Justices didn't use fragments frequently, they often used them memorably (think "Pure applesauce.").

On possessives, the Court split again.  Prof. Barton found that a "slim majority" of five Justices left off the apostrophe "s" when making a singular word that ends in "s" possessive (think Congress' v. Congress's).  I have to say, I am with the minority on this point.

Finally, regarding conjunctions, all but one Justice used "So" to start sentences.  The Justices are more split on whether to use "since" when they meant "because."  Three Justices only used "since" to when discussing a temporal relationship. The other Justices, however, used "since" when they really wanted to show a causal relationship.

Prof. Barton concluded with noting that, "[t]his review of the Court’s writing style shows that the Justices lean toward writing in a more liberal, modern fashion."  Interestingly, no one Justice took the "liberal" writing approach on all four points Prof. Barton reviewed.  Five Justices were "liberal" on three points, and the rest split evenly. 

March 19, 2018 | Permalink | Comments (0)

Saturday, March 17, 2018

Passive, Pinker, and Persuasion

Pinker

No construction could have survived for millennia if it did not serve a purpose.

—Steven Pinker, “Passive Resistance”

I am once again pleased to welcome Professor Patrick Barry of the University of Michigan Law School to our blog for this guest post. 

Many lawyers shutter when writers use passive constructions. Some may even hear, ringing in their ears, the voice of one of their former teachers telling them that passive constructions should be avoided at all costs.

I recommend you quiet that voice.

You don’t have to quiet it entirely. You don’t have to silence it.  More than likely, your teacher’s admonition came from a good place, a place that recognizes that active constructions are often preferable to passive constructions, that they can give your sentences a directness and vigor that passive constructions frequently don’t.

Passive constructions can be droopy. They can be sluggish. Worse, they can allow people to duck responsibility. “I’m sorry that your nose was broken” is a pretty lame apology from someone who just punched you in the face. “I’m sorry I broke your nose” is at once more active and more admirable.

 At the same time, however, a categorical ban against passive constructions is like a categorical ban against using your left hand. You may be able to get by without your left hand in many situations. You don’t normally need it, for example, to shake someone else’s hand, or to salute, or to perform the pledge of allegiance. But eventually, if you act as if you can never use your left hand, you’ll unnecessarily limit yourself and forgo a lot of creative versatility. 

The psychologist Steven Pinker describes this versatility in “Passive Resistance,” an essay that argues active constructions aren’t always the best choice. The author of several books on language and the chair of the Usage Panel of the American Heritage Dictionary, Pinker suggests that passive constructions are supremely useful when you want to put the spotlight, not on the doers of a particular action, but on the recipients. Think of the phrase “all men are created equal” from the Declaration of Independence. The spotlight is on “all men” and the equality each shares. It is not on the being who did the creating. The same is true of the very next clause, which begins “that they are endowed by . . . .“

Pinker doesn’t use the Declaration of Independence to support his point—but he could. He could also use skillful bits of legal writing. Here for, example, are two passages from briefs written by Jeff Fisher, one of the country’s top appellate advocates and the co-director of Stanford’s Supreme Court Litigation Clinic. The first passage comes from Crawford v. Washington, a case in which Fisher, using arguments developed by the University of Michigan’s Richard Friedman, persuaded the Supreme Court to radically transform the way hearsay evidence is treated in criminal trials. I have bolded the passive part.

Applying this traditional, testimonial understanding of the Confrontation Clause, the proper result here is clear: [Crawford’s] confrontation rights were violated because the State introduced a non-testifying accomplice’s custodial examination implicating him in the charged offense.

You could make that passive part active. You could write “The State violated Crawford’s confrontation rights . . . .“ But then the spotlight would be on the State. Fisher, with good reason, kept it on his client (Crawford). The passive part gave Fisher the flexibility to do that. The passive part was purposeful.

Fisher did something similar in United States v. O’Brien, another case he won in the Supreme Court. This time, however, he used a passive construction to put the spotlight, not on a person, but on the absence of an action. In fact, he used three of them right in a row.

When one of the guards fled, the men promptly abandoned the attempted robbery. O’Brien drove Burgess and Quirk away in the minivan. No shots were fired, no money was taken, and no one was injured.

A version of this passive trifecta was picked up and used in the Court’s majority opinion, which eight of the nine justices signed and Justice Anthony Kennedy penned. “[O’Brien, Burgess, and Quirk] abandoned the robbery and fled without taking any money,” Kennedy wrote in his description of the facts of the case. “No shots were fired, and no one was injured.

***

Does this mean that if you use passive constructions, the Supreme  Court and other key decision makers will be persuaded by your arguments?

No. It doesn’t mean that at all. In the Supreme Court and most every place else, sound strategy still favors active constructions. No style guide I know comes out against them. And particularly if you are just starting out at a new job, in a new class, or with a new boss, you should keep in mind that frolics into the passive may be judged harshly. So here’s some advice I give my students. It has three parts.

  • Part 1: Know the difference between passive constructions and active constructions. Writing in the Los Angeles Times, grammar columinist June Casangrande explains the difference this way:

The passive voice, sometimes called simply “the passive,” describes a very specific relationship between a [] verb and its object. For example, “coffee” is the object of the verb “made” in “Joe made coffee.” This is active voice because the doer of the action is also the subject of the sentence.

But what if we said instead, “Coffee was made by Joe”? Now the coffee, the thing receiving the action of the verb, is the grammatical subject of the sentence, upstaging the person who's actually performing that action.

That’s passive voice. It takes the object of a verb and makes it the grammatical subject of the sentence by using a form of the verb “be” paired with what’s called the passive participle, which is identical to the past participle.

The result often takes the form “Blank was blanked by blank.”

  • Part 2: Don’t slip into passive constructions accidentally. They are likely to bring with them a bunch of extra words, each of which may weigh down and de-energize your sentences. They also sometimes make it harder for readers to figure out what you are trying to say. Which is a reason why articles in various science journals—including two of the most prestigious ones—have at different points encouraged writers to use active constructions instead.

Nature journals prefer authors to write in the active voice (“we performed the experiment. . .”) as experience has shown that readers find concepts and results to be conveyed more clearly if written directly.

            —“Writing for a Nature journal” (Nature)

Choose the active voice more often than you choose the passive, for the passive voice usually requires more words and often obscures the agent of action.

            —Submission Guideliness (Science)

  • Part 3: Do use passive constructions purposefully, particularly when trying to keep a certain person, idea, object, or non-action “spotlight” in the spotlight, as Jeff Fisher did in those two Supreme Court briefs and as skilled writers do all the time.

If you are worried that your purposeful use of a passive construction will be interpreted as an accidental use of a passive construction, a further step would be to use a comment bubble, post-it note, or some other annotation to tell your teacher or supervisor that your choice was deliberate. Even if she ultimately changes the construction back to active, at least she’ll know you are someone who thinks carefully, even strategically, about the words you choose. That’s unlikely to hurt your career prospects.

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.

March 17, 2018 | Permalink | Comments (0)

Thursday, March 15, 2018

Thinking Thursdays: Know your logical fallacies (Part 1)

Ruth Anne Robbins, Distinguished Clinical Professor of Law, Rutgers Law School

Faulty reasoning undermines the substances of a legal argument as well as the credibility of the advocate. After a quick search of the online briefs available on Westlaw and Lexis, I can safely tell you that several thousand appellate briefs reference logical fallacies—typically as a precursor to a direct refutation of an opposing party’s argument. How many of us these days know our logical fallacies as well as we should?

Beyond calling out opposing counsel for these errors, the wise attorney also tests their own writing to see if they have relied on fallacious thinking. In most logical fallacies, something has gone wrong with the legal syllogism. In a sense, the major premise of a syllogism is a rule, while the minor premise is a fact. The conclusion flows from the application of the rule to the fact. Here is a simple example.[1]

            Major premise:          The speed limit where defendant was arrested is 45 MPH.

            Minor Premise:          The working-perfectly radar gun clocked defendant at 63 MPH.

            Conclusion:                Defendant was speeding

In most logical fallacies, some part of the syllogism fails. There are four major categories of logical fallacies in law. Today’s blog entry goes through the first two groups of common fallacies: the non-sequitur fallacies and the insufficient evidence fallacies. The next Thinking Thursday blog entry will discuss two other categories: shallow thinking and avoidance fallacies.  

Logic 21. Non-sequitur fallacies. In a non-sequitur, the major premise is applied incorrectly to the minor premise. You can recognize these when the conclusion does not logically flow from the premise

1.1  The correlation equals causation fallacy commonly appears with statistical analyses. The arguer claims that because A and B appear together A must have caused B. The argument that the MMR vaccine causes babies to develop autism is a classic example of this type of fallacy. This amusing site shows these fallacies taken to the extreme.

1.2  The post hoc fallacy is closely related to the correlation/causation fallacy. The arguer claims that because A occurrence is followed by B occurrence, A’s occurrence must have caused B to occur. For example, after I ate an apple, I won an award—ergo, eating the apple caused me to win the award. In law, this sometimes shows up this way: When Pat drinks, Pat becomes violent. Therefore, Pat’s violence is caused by alcohol. That is a logical fallacy. Alcohol may lower inhibitions but does not cause violence by itself. 

2. Insufficient evidence fallacies contain faulty minor premises—faulty because they are false or based in inadequate material. There are three major types of these.

2.1  The hasty generalization fallacy happens when lawyers draw big and general conclusions from too small a sample size or from unrelated evidence. “Climate change has been solved because this winter New Jersey saw frigid temperatures in late December and early January, and because it saw two nor’easter storms in March.” In that example, the weather from one three-month period is being used to argue that a decades-old phenomenon is over or never existed. To show this syllogistically:   

Major premise: Climate change is making things warmer

Minor premise (flawed): weather over a three-month period matters to climate change

Conclusion (faulty): Climate change is over or solved.

2.2  The anecdotal evidence fallacy is related to the hasty generalization fallacy. The anecdotal evidence fallacy occurs when there is simply inadequate evidence to support the minor premise.

Major premise:  Some cities offer Segway tours of tourist areas.

Minor premise (flawed): I have never seen people on a Segway tour of Philadelphia.

Conclusion (faulty): Philadelphia does not have Segway tours.

2.3  Finally, shallow legal research can lead to the Texas sharpshooter fallacy. As a classic example, a person shoots an arrow at a barn wall, and then draws a bullseye around the arrow in the wall. That’s a logical fallacy and happens in the minor premise—i.e. “this is a target with a bullseye.” A Texas sharpshooter fallacy happens when someone builds legal analysis and argumentation around incomplete legal research. Think of this fallacy as related to a confirmation bias—when the legal researcher stops researching when they find a result that demonstrates the governing rule that they want for their client, versus what the rule might actually be.

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It is easy enough these days to practice spotting logical fallacies simply by watching television. Many advertisements use fallacious reasoning in the marketing. Politicians will sometimes fall into the logical fallacy trap as well—watching the news for a week or two should net you a few examples. But, most importantly, review your own advocacy for these common errors.

] Thank you to Professor Ken Chestek (Wyoming) and Professor Steve Johansen (Lewis & Clark) for these examples. They come from the upcoming second edition of our co-authored textbook, Your Client’s Story: Persuasive Legal Writing (2d ed. Wolters Kluwer, expected publication date of later this year).

March 15, 2018 in Appellate Advocacy, Appellate Practice, Appellate Procedure, Federal Appeals Courts, Law School, Legal Ethics, Legal Profession, Legal Writing, Moot Court, Oral Argument, Rhetoric, State Appeals Courts | Permalink | Comments (1)

Monday, March 12, 2018

To footnote, or not?

In Making Your Case: The Art of Persuading Judges, Bryan Garner and the late Justice Scalia provided their opposing views on the use of footnotes in appellate briefs.  Garner advocated for "putting all bibliographic matter . . . in footnotes," but cautioned against putting "any substantive text" or anything "that anyone should have to read" in footnotes.  The late Justice Scalia disagreed, stating that the practice doesn't make briefs more readable, since "the careful lawyer wants to know, while reading long, what the authority is for what you say."  So the reader will constantly be looking down to the footnotes to find the authorities used by the brief writer.

For the most part, I have agreed with Justice Scalia on this topic, and many of the judges who contributed to the third edition of Winning on Appeal expressed their dislike for footnotes. I generally viewed the footnote approach to be for the convenience of the writer and not the reader.

Last week, over at The Volokh Conspiracy, Eugene Volokh blogged on this very topic, quoting a district court opinion that stated, 

The Court strongly disfavors footnoted legal citations. Footnoted citations serve as an end-run around page limits and formatting requirements dictated by the Local Rules. Moreover, several courts have observed that "citations are highly relevant in a legal brief" and including them in footnotes "makes brief-reading difficult." The Court strongly discourages the parties from footnoting their legal citations in any future submissions.

Eugene also mentioned a federal appellate judge who told him "You view citations to authority as support for the argument. I view them as often the most important part of the argument."

Eugene's post sparked a little discussion on Twitter regarding footnotes in briefs.  I saw at least two judges who disagreed with his conclusion, preferring footnotes in briefs.  So what is the right answer? As in most questions involving appellate advocacy the right answer is to follow the conventions of your particular jurisdiction.  Has the court (or have judges on the court) said/written/tweeted anything on the issue?  If not, perhaps it is time to ask them!  I appreciated the judges who weighed into the Twitter discussion, and I think that more interactions like that can lead to better briefs overall.

 

March 12, 2018 in Appellate Advocacy, Appellate Practice, Legal Writing | Permalink | Comments (0)

Saturday, March 10, 2018

Appellate Advocacy Blog Weekly Roundup March 9, 2018

The weekly roundup image

Each week, the Appellate Advocacy Blog Weekly Roundup presents a few tidbits of news and Twitter posts from the past week concerning appellate advocacy. As always, if you see something during the week that you think we should be sure to include, feel free to send Dan a quick email at DReal@Creighton.edu or a message on Twitter(@Daniel_L_Real).

 

Supreme Court Opinions and News:

The Court has already decided that some offenders are too young to execute. Will the Court now decide that some offenders are too old or too sick to execute? Last week, the Court decided to hear the case of an aging inmate with dementia who was sentenced to death for a crime he can no longer remember. Adam Liptak at The New York Times provides an overview of the case in this report

 

In a recent opinion, the Court resolved a split in the circuits regarding the proper standard of review for reviewing whether a creditor involved a bankruptcy reorganization plan is an insider to the deal who should not vote on the plan. The Court held that the Ninth Circuit correctly applied the "clear legal error" standard of review to the issue. An analysis of the Court's opinion can be found HERE

 

The Court has ruled that the federal government could intervene in a dispute between Texas and New Mexico over Rio Grande water rights. Click this link for the Court's opinion. Click HERE for an analysis of the case and opinion. 

 

Federal Appellate Court Opinions and News:

The U.S. Judicial Panel on Multidistrict litigation said it randomly selected the U.S. Ninth Circuit Court of Appeals to hear the consolidated challenges to the Federal Communications Commission’s repeal of net neutrality rules. Reuters has this report.

 

State Court Opinions and News:

After ruling on a criminal appeal that lingered in the system for ten years, the Georgia Supreme Court instructed the Council of Superior Court Judges of Georgia to work with  prosecutors, defense attorneys, court clerks and others to come up with a proposal to address the problem of extensive and unnecessary appeal delays. The Associated Press has this report

 

Practice Tip:

"Lawyers should be mindful of the duty of confidentiality when they engage in public commentary, including blogging and other online postings, according to an ethics opinion from the ABA Standing Committee on Ethics and Professional Responsibility." The ABA Journal has this report. The opinion from the Committee on Ethics and Professional Responsibility can be found HERE

 

Appellate Job Postings:

The Department of Justice has an opening for a Director of the Appellate Staff, Civil Division. The job announcement can be viewed HERE

March 10, 2018 | Permalink | Comments (0)

Thursday, March 8, 2018

RBG - in theaters May 4

Appellate advocacy and Hollywood meet! For those who toil away in stacks of research, piles of rewrites, and solo rehearsals of oral arguments, appellate law is about to blow up! Well, perhaps that is a bit of an exaggeration, but a quality production film about one of the most well-known members of the Supreme Court is about to hit theaters in just a few weeks. 

RBG is the film documenting the life and career of Justice Ruth Bader Ginsburg. She is a tiny, soft spoken lady, but she has made a big impression in shaping the legal landscape generally, but also specifically blazing a path for women in a profession long dominated by men. Her accomplishments are memorialized in this movie. Perhaps you will recognize some of the players: 

At the age of 84, U.S. Supreme Court Justice Ruth Bader Ginsburg has developed a breathtaking legal legacy while becoming an unexpected pop culture icon. But without a definitive Ginsburg biography, the unique personal journey of this diminutive, quiet warrior's rise to the nation's highest court has been largely unknown, even to some of her biggest fans – until now. RBG is a revelatory documentary exploring Ginsburg 's exceptional life and career from Betsy West and Julie Cohen, and co-produced by Storyville Films and CNN Films.

Starring: Ruth Bader Ginsburg, Jane and James Ginsburg, Clara Spera, Gloria Steinem, Nina Totenberg, Lilly Ledbetter, Sharron Frontiero and Stephen Wiesenfeld, Irin Carmon and Shana Knizhnik, Bill Clinton, Ted Olson, Judge Harry Edwards, Senator Orrin Hatch, Eugene Scalia and Bryant Johnson.

 

Movies about the lives of justices are rarely, (have they ever been?), the subject of a feature film, but Justice Ginsburg has been a significant pioneer for the legal profession. It is good that a woman in a serious profession can command such attention in the mainstream culture. A sign of the times no doubt. 

 

March 8, 2018 in Appellate Advocacy | Permalink | Comments (0)

Monday, March 5, 2018

Winner--The Greatest Supreme Court Justice of All Time

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The votes have been counted. Chief Justice John Marshall has emerged as the greatest Supreme Court Justice of all time with 45 % of the vote.  Justice Holmes came in second with 30% of the vote, and Justice Scalia third with 25 % of the vote.

Chief Justice Marshall's victory is not too surprising.  As Chief Justice, he was instrumental in establishing the Court's role in our political system.  Most notably, in the case of Marbury v. Madison, he explained that "It is emphatically the province and duty of the judicial department to say what the law is."  While the meaning of that phrase has been hotly debated, at a minimum Marshall established the power of the Court to invalidate a law that was contrary to the Constitution.

Chief Justice Marshall also instituted some reforms in how the Court as an institution worked.  For example, he convinced his fellow justices to abandon the practice of issuing opinions seriatim, where each justice issued his own thoughts on the matter.  Rather, the Court started issuing just one opinion that, at least theoretically, spoke for the Court.

According to profile of Chief Justice Marshall,  one of the "persistent myths" about him is that "the Liberty Bell cracked when [it] rung to mark the occasion of his death in Philadephia in 1835."  However, there is "no evidence" supporting this claim.

March 5, 2018 | Permalink | Comments (0)

Sunday, March 4, 2018

Playing well (as a legal writer) with others

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On the big screen, we lawyers are lone gunslingers. We strut into the courtroom and engage our adversaries armed with nothing but our wits. But to steal a cliché: There is no “I” in lawyer. Most of legal practice is a team sport. And as legal matters become more complicated, the need for team-based lawyering is ever more pressing.

Despite that lawyering (and particularly legal writing) is done in teams, law schools don’t offer much training on this skill. This is unlike, say, business schools—another field that requires lots of teamwork.

So let’s give some thought to how we can build top-notch legal-writing teams. A large body of research can help us. First, we’ll look at some high-level ideas. Then we'll consider some more specific suggestions for how you can play well with others.

A couple of years ago, Google announced that it discovered how to build the perfect team. After years of analyzing data from more than 100 teams, it found that raw skill was not all that important. What matters most? Emotional intelligence and wide-open flows of communication. In other words, an environment where everyone feels emotionally comfortable and supported. That was the single best determiner of team success.

Google’s most recent team research concluded much the same: the critical predictor of team success was “psychological safety”—whether team members feel safe to let their guard down and speak their mind without fear of judgment or retribution.

That people work best when they feel emotionally and psychologically comfortable makes sense. Tons of research suggests that we are most productive when we feel supported by those around us. And research also shows that being open to disagreement is critical to producing high quality results. For example, studies on team deviants—where you designate someone on your team to play the devil's advocate—show that creating an environment of psychological safety can profoundly influence a team’s success.

Google’s research also suggests that good teams are ones where members are (1) dependable, (2) have clear roles, and (3) find their work meaningful and impactful. Loads of research backs these points up, too: teams work best with upfront expectations, clear individual roles, and assignments that resonate with each member.

What can we take from all this? First, creating an environment of psychological safety where communication flows freely—and even designating a team deviant who is tasked with disagreeing—may do wonders for your end product. This will combat the pervasive groupthink and bias that often runs rampant, and it will increase everyone’s motivation and buy-in to the team.

Another takeaway is clearly setting out at the beginning of a project, in writing, your expectations. Take a few minutes to brainstorm and write down the practical goals for your document and who is in charge of what. This will ensure everyone is on the same page, it will balance everyone’s expectations, and it will streamline workflow.

Regular feedback for team members is also crucial (and has been the subject of countless studies). If folks don’t tell each other what they are doing well and what they can improve, don’t expect the process to get any better—now or in the next project.

Post-mortems are great, where the team talks through a past project to learn how to do things better next time. But also consider a pre-mortem: getting the team together at the start to guess what will go wrong and working backwards from there.

Make sure to balance each member’s role. Uneven teams are just asking for trouble. Some members will start to feel less of a member. Some may feel overworked.

Give some thought also to ways you can encourage communication flow generally. For legal writing in particular, the flow of communication (like editing comments) can range from nonexistent to overwhelming.

How about things we can do an individual level?

  • First, be supportive of your teammates. This includes sharing credit with them, being reliable and finishing your projects on time, and honing your emotional intelligence (often, what we say does not reflect what we are feeling—watch out for when others may need some emotional support or a break). Multiple studies suggest that the most successful team members are those who spend the time to cultivate strong relationships with their teammates.
  • Listen well. And if you’re bad at listening, use tools to get better—like counting to three before you respond to someone else’s comment.
  • Give, and ask for, plenty of feedback. You can’t know what you’re doing right and wrong without feedback on your writing. And the same goes for others.
  • Be meticulously reliable. Not following through on a single task can disrupt the entire drafting process. And it will undermine your credibility from then on. For legal writing in particular: if you don’t get everyone your edits or drafts when you said you would, good luck getting anyone to work with you in the future.
  • Make sure you actively participate. Jump to take on new tasks and involve yourself in team activities. The less you participate in the team, the less you will feel like a member.
  • Be disruptive and self-motivated. Team members who focus on innovation, anticipate problems, and recognize when the team needs to change add tons of value.
  • Never, ever, gossip about other members. There is no surer way to destroy a team.

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

March 4, 2018 | Permalink | Comments (0)

Friday, March 2, 2018

Appellate Advocacy Blog Weekly Roundup March 2, 2018

The weekly roundup image

Each week, the Appellate Advocacy Blog Weekly Roundup presents a few tidbits of news and Twitter posts from the past week concerning appellate advocacy. As always, if you see something during the week that you think we should be sure to include, feel free to send Dan a quick email at DReal@Creighton.edu or a message on Twitter(@Daniel_L_Real).

 

Supreme Court Opinions and News:

On Monday, the Court heard oral arguments in Janus v. American Federation. The Court will decide whether non-union public employees have to pay fees to  cover the union’s costs to negotiate a contract that applies to all public employees, even the non-union public employees. The oral arguments can be heard HERE. The Los Angeles Times has this report

 

On Tuesday, the Court heard oral arguments in United States v. Microsoft Corporation. The Court will decide whether an email provider who has been served with a warrant is required to provide the federal government with emails when the email records are stored exclusively outside the United States. The oral arguments can be heard HERE. Politico has this report

 

On Wednesday, the Court heard oral arguments in Minnesota Voters Alliance v. Mansky, a case that challenges a Minnesota law that prohibits political apparel in polling places. The oral arguments can be heard HERE. The New York Times has this report

For now, the Court has declined to hear President Trump's appeal aimed at ending DACA. Bloomberg has this report

 

Justice Stephen Breyer gave a talk at the University of Virginia Law School on Thursday. Follow this link to view the video posted to Youtube. 

 

Federal Appellate Court Opinions and News:

The United States Court of Appeals for the Second Circuit has ruled that Title VII of the 1964 Civil Rights Act prevents discrimination based on sexual orientation, overturning its prior precedent. The Court's opinion can be found HERE. The Washington Post has this report

 

State Court Opinions and News:

The California Supreme Court found that long sentences that do not recognize a juvenile offender's youth and ability to be rehabilitated are unconstitutional.  Click HERE for the Court's opinion. The Associated Press has this report

 

Appellate Job Postings:

The Department of Justice has an opening for an appellate attorney. The job is located in Houston, Texas. You can follow this link to apply for the position. 

March 2, 2018 | Permalink | Comments (0)