Thursday, May 31, 2018
As users of language, we become masters of slang, idioms, hyperbole, and other techniques using words to convey a message. We teach classes in rhetoric, and study the methods of persuasion. But most of us likely do it all in one language - English. Have you ever wondered whether other languages employ these same techniques? Of course they do, but according to the researcher in this Ted Talk, the language itself might influence thought. From a linguist-enthusiast point of view this is very interesting, but there are also practical implications for our profession.
For example, in English we might say, "I broke the glass." It could be an accident, but that particular construction assigns blame. Another language, like Spanish would likely construct the same idea in another way, "The glass broke." While this is a passive construction, it focuses more on the action of what happened, and leaves out who is to blame for the action. This distinction between passive and active voice is all very familiar to writing lawyers. And we know how to use each to our advantage.
But does this construction also influence how we think about the person who broke the glass? This researcher says it does. In an English speaking society, we would tend to remember more about who is to blame, and in a Spanish speaking society, we would tend to remember more about what actually happened, than who did it. This has important implications for both eye witness testimony and rendering punishment.
Monday, May 28, 2018
Today our country observes Memorial Day--a time to remember and honor individuals who died while serving our country in the military. As the wife of a Marine Corps veteran, holidays like Memorial Day and Veterans' Day are dear to my heart.
As I was thinking about the upcoming holiday, I pondered how many Supreme Court Justices have served in the military. The Supreme Court has decided several cases that impact the military, but how many are familiar with military service? In searching the Internet for an answer, I stumbled across an August 2012 Atlantic article by Andrew Cohen, addressing the very topic. According to Cohen, none of the current members of the Court have "active, wartime military experience." (Note: Justice Gorsuch, who joined the Court after the article was published, also doesn't have military experience). The last Justice with such experience was Justice John Paul Stevens, who served as a cryptographer in World War II.
Reviewing the backgrounds of the 112 Justices of the Supreme Court, Cohen estimated that only 41 had military experience, but "many never served in active duty during wartime or fired at an enemy." Included in this group is Justice Kennedy (California Army National Guard), Justice Alito (ROTC and Army Reserves), and Justice Breyer (Army service).
Cohen's detailed research reviews each war and notes which Justices served. Some notable veterans: Justice Holmes, Justice Black, Chief Justice Warren, Justice White, and Chief Justice Rehnquist. Cohen notes, however, that since World War II, no future justices have served in combat. As he states, "three generations of justices have come and gone since the end of hostilities in 1945, and yet none have seen combat before their tenure on the Court. Never before in our history, or in the history of the United States Supreme Court, has this occurred."
If Justice Kennedy does retire, perhaps President Trump will consider a veteran for the high court. At least one member of his "shortlist"--Margaret Ryan--would fit that bill.
Friday, May 25, 2018
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). You can also send emails to Danny Leavitt at Danny@tsalerno-law.com or a message on twitter @Danny_C_Leavitt.
Supreme Court Opinions and News:
Much has been written this week about the decision in Epic Systems Corp. v. Lewis regarding employers requiring workers to go through arbitration rather than going to court or joining class action suits or grievances. The Court held that neither the Arbitration Act's saving clause nor the National Labor Relations Act (NLRA) supersedes Congress's instructions in the Federal Arbitration Act that arbitration agreements providing for individualized proceedings must be enforced. Justice Neil Gorsuch delivered the opinion for a 5-4 majority. JusticeClarence Thomas filed a concurring opinion. Justice Ruth Bader Ginsburg filed a dissenting opinion in which Justice Stephen Breyer, Sonia Sotomayor, and Elena Kagan joined. Read about the opinion here, here, or here.
More was reported on the potential retirement of Justice Anthony Kennedy, despite him already hiring law clerks for next term. The Hill has this article. And Adam Feldman of Empirical SCOTUS reports on the SCOTUS blog here.
Boston University School of Law professor Jay Wexler measured laughter in Supreme Court transcripts to determine who the funniest justice this term. Justice Breyer caused the courtroom to break out in laughter 38 times. The short article is here.
Federal Appellate Court News:
The D.C. Circuit Court will live stream oral arguments beginning this fall. The announcement is here.
State Appellate Court News:
With likely appellate consequences, a Nebraska court was asked to show a video on implicit biases to the venire. The article reporting on the petition from a deputy public defendant and the prosecuter's objection is here.
Practice Pointers and Tips:
This thread live tweeting appellate practice CLE with tips and pointers.
Thursday, May 24, 2018
Ruth Anne Robbins, Distinguished Clinical Professor of Law, Rutgers Law School
Parentheticals. We love them, but we don’t always understand how to use them. An empirical study and article by Professor Michael Murray compiling the most-often use of these legal-writing creatures, demonstrates that most of the time they are used either incorrectly or inefficiently. Parentheticals are best employed to illustrate the governing rule of law by pointing to key facts from precedential narratives. Or, to embed a pithy quote that likewise illustrates a point.
Parentheticals are typically used when an illustration can be easily reduced to a comprehensible present-participle phrase. Experts also consider relevance in the equation. Sometimes the efficiencies suggest the use of a parenthetical to save space, i.e. when the precedential case isn’t important enough to elevate to an in-text explanation. A parenthetical can also be used to make a point about a rule being used in a series of precedential cases. That is, the parentheticals can then form visual support for synthesis such as, “the five cases that analyzed this point all interpreted the term broadly.” Five cites with parentheticals would then follow.
However, the substance inside parentheticals are sometimes visually difficult to locate, coming at the end of a citation sentence. If a case is more relevant to the client’s outcome, a better choice may be using one or two sentences of in-text explanation in lieu of the parenthetical.
Michael Smith, at Wyoming College of Law is *the* expert on this topic, and his Advanced Legal Writing textbook’s Chapter 3 has been termed by 15 years of upper-division law students as “mandatory reading for any to-be lawyer or lawyer.” In the chapter he categorizes types of narration one might do in a parenthetical:
- Illustrate for elucidation (using a parenthetical to illustrate how a rule operated in a precedential case).
- Illustrate for elimination (using a parenthetical to eliminate possible misinterpretations of general rules).
- Illustrate for affiliation (using a parenthetical to tie a rule to something in the everyday knowledge of the reader—a reference to a cultural icon, publication, or phenomenon).
- Illustrate for accentuation (using a parenthetical to demonstrate how one word in the rule that might otherwise be overlooked is actually the key to solving ambiguities).
In my own textbook, written with Steve Johansen and with Professor Smith’s colleague Ken Chestek, we expand slightly on Professor Smith’s categories, by talking about one-word or one-phrase uses of parentheticals. That is used in situations where a single word or phrase can conjure a story-scene for the reader and make the elucidation point. By way of quick example, “New Jersey considers the smallest of offensive touches ‘bodily injury’ in its criminal caselaw. [case cite] (slap); [case cite] (shove); [case cite] (kick); [case cite] (pinch).” We also talk about times when you can use quotations effectively in parentheticals: when it’s unique language that succinctly illustrates the rule. “wall of separation” is a good example of this.
Professor Smith also includes cautions for the use of parentheticals, and it is here that the numbers crunched by Professor Murray in his article make clear what is going wrong in the majority of appellate briefs. The number one and number two issues that Professor Smith sees in the drafting of parenthetical substance? Exactly what Professor Murray sees the most in his data. The error of placing the rule in the parenthetical. Or, the error of restating the rule in the parenthetical. That is, quoting the rule the attorney just synthesized into a client-oriented rule statement—or should have just synthesized that way. Restating the rule is simply a crutch for the writer—as if to say, “I really did read the case!” Restating the rule also ruins the cause-to-effect narrative flow of the rule illustration/rule explanation part of legal analysis.
Other common errors include being too overbroad in the factual illustration or being too specific. The right height to look down on the case and describe facts for parenthetical purposes is something like 30 feet from the ground. What can you see of a precedent’s story from that height? Not every blade of grass, but maybe a person’s front yard.
What is the takeaway? Parentheticals are an important tool in the lawyer’s kit, when used to promote persuasion and efficiency. They can, however, be cluttering and in some cases can add bulk if they are merely repetitive. Use them well—and use them wisely.
 You can preview part of Professor Smith’s Chapter 3 via Google Books. Search string: “Michael R. Smith” & parentheticals
 Do not pay the list price for a new book. The second edition is coming out this fall and will make this first edition a heck of a lot cheaper.
Saturday, May 19, 2018
Unlike the neglected stepchild of writing (the paragraph), sentences get plenty of attention. Dozens of books tell you how to write the "perfect" one. Dozens more try to convince you that the "perfect" sentence doesn't exist. Heck, you can probably get a PhD in the "study of sentences" (I don't know if that's a real thing, but it could be).
The sentence is a real powerhouse; it's true. When we think of great writers, we often remember their greatest sentences. Take Abraham Lincoln. Maybe you recall a couple of his most memorable sentences. Perhaps this one, which seems as relevant today as it was in the 1800s:
You can fool all the people some of the time, and some of the people all the time, but you cannot fool all the people all of the time.
Sentences can make your reader experience things. I dare you not to cringe as you read this sentence from Penelope Lively:
The pavement rises up and hits her. Slams into her face, drives the lower rim of her glasses into her cheek.
The pavement is nearly alive, reaching out and slapping you. There is a real power in learning how to write sentences that impact people like this, especially for lawyers.
But the topic of good sentences can be overwhelming. It's the stuff of Lincoln and Oliver Wendell Holmes. Writing good sentences can seem like an art that only artists do well. First you must attend a silent retreat in a cabin deep in the woods; second, write sentences over and over until the trash can overflows with discarded drafts.
And there is so much advice about how to write sentences that you may just want to give up on the whole endeavor. Better to just rely on your good ole' sentence rules that you picked up in college (always write in the active voice, and always avoid long sentences).
But consider spending some more time with our friend the sentence. You need not be T.S. Eliot to write exceptional ones. You just need to practice. You aren't going to play the piano in a week, and you aren't going to write great sentences in a week. But there are techniques to learn. And there are sentence-structures to practice. And if you set aside some time to work on your sentences, they will improve. And pretty soon, they will shine.
One type of sentence technique that you can drill is sentence forms. I love the "apositive cluster" form, which involves using a cluster of examples to illustrate a concept:
Stacks of books, cavernous classrooms, excited chatter—these mean law school to students.
Another favorite is the "echo word" form, which connects ideas by a common hub word:
She has a satisfying life, satisfying because of her career and satisfying because of her family.
Or an implied verb form:
Jenny loves quiet days; Andy, the loud ones.
These are just a few examples of the many, many sentence forms that you can learn. And each has its uses.
Then there are more fundamental sentence techniques. Here are five from some reputable sources (including the work being done in cognitive science and readability). There are many more you should learn--for example, verbs requires an entire article of their own--but these are a good start.
First, pay attention to the start of sentences. The start sets your reader up for everything after. Invite your reader into your sentences with simple, familiar words that put them at ease. Do this by: (1) avoiding introductory phrases, (2) beginning sentences with short words, and (3) beginning sentences with familiar words.
Avoid intro phrases that aren't needed. They waste your reader's attention and make your sentences a burden:
“Without any need whatsoever, lawyers continue to open their mouths.”
“Lawyers needlessly open their mouths .”
Start with short words if you can. Short words want to be read. It was true when you were six and it's true now:
Being funny is not part of lawyering. Additionally, a “funny lawyer” is impossible as a matter of physics.
Being funny is not part of lawyering. And a “funny lawyer” is impossible as a matter of physics.
Start your sentences with words that your reader knows something about. Familiar words feel comfortable; new words scare them away:
“Courts hate word vomit. Something you can fix is word vomit.”
“Courts hate word vomit. But word vomit is something you can fix.”
Second, pay attention to the end of sentences. The end is emphasized; it's what your reader remembers. So put at the end what you really want your reader to remember. Watch how changing up the ends of these sentences shifts which idea is emphasized:
“Steve died in Seattle two weeks ago.”
“Steve died two weeks ago in Seattle.”
“Two weeks ago, while visiting Seattle, Steve died.”
Third, avoid multiple clauses, but if needed, prefer a subordinate or relative sentence structure. Each additional clause imposes a cost on your writing flow (and your reader's attention). Very skilled writers can guide a reader through even the most complex set of clauses without a hitch. But most of us aren't there yet. Much better to keep things simple until you have the writing chops to start lining up your sentences like train cars, one idea after the next:
Jory, without knowledge of who the victim was, and without knowing why he was doing so, slapped Joe.
Jory slapped Joe without knowing why he was doing it or who his victim was.
Sometimes you need multiple clauses to explain things clearly. If so, opt for structures that smoothly communicate how each clause relates to the other--subordinate or relative structures.
I won't belabor the technicalities, but when I say subordinate or relative, I mean that you should try to show the relationship between the clauses in an obvious way.
For example, you could say:
“The judge granted the silly motion, and the lawyers were atrocious.”
In that structure, you are telling your reader two things (the judge granted a motion and that the lawyers were bad), but you aren't explaining how those two ideas relate to each other. If there is no relationship between the clauses, you should probably use separate sentence.
But if the relationship matters, show your reader from the outset:
“Even though the lawyers were atrocious, the judge granted the silly motion.”
Fourth, short sentences punch. Varying your sentence lengths is generally a good idea (so is varying your use of punctuation). But use extra short sentences to emphasize key points or slogans, particularly at the end of paragraphs. The occasional short sentence can stop your reader in their tracks:
“Substituting one decision maker for another may yield a different result, but not in any sense a more ‘correct’ one. So too here.” –Justice John Roberts
Finally, be thoughtful about the subjects you choose and where you put them. Who sits in that subject position matters. Opt for subjects that people can visualize or connect with, like people or things; try to ensure the subject is in the first five or six words of each sentence, lest your reader get lost; and start at least a third of your sentences with the subject.
“The search was conducted several times, but no contraband was revealed.”
“Police searched several times, but found no contraband.”
“Making sure their bills were paid first, the attorneys filed the motion.”
“The attorneys made sure their bills were paid—then filed a motion.”
If I've convinced you of nothing else, I hope you at least agree that great sentences are within your grasp. Now go start your own sentence adventure.
Joe Regalia teaches at Loyola University School of Law, Chicago and practices 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.
Friday, May 18, 2018
Each week, the Appellate Advocacy Blog Weekly Roundup presents a few tidbits of news and Twitter posts from the past week concerning appellate advocacy. As always, if you see something during the week that you think we should be sure to include, feel free to send Dan a quick email atDReal@Creighton.edu or a message on Twitter (@Daniel_L_Real).
Supreme Court Opinions and News:
The Supreme Court made news last week when issuing its opinion in Murphy v. NCAA, paving the way for states to individually legalize sports betting and striking down as unconstitutional a federal law that limited sports betting. See the SCOTUSblog page on the case for a variety of entries and articles about the case and its potential impact: HERE.
Empirical SCOTUS took a look last week at the "state of the states" before SCOTUS, reviewing the issues that arose out of state courts during the prior term and how they were handled. See the article HERE.
Bloomberg compiled a listing last week of the funniest moments from the Supreme Court's 2017 term. Check it out HERE.
This past week marked the anniversary of Brown v. Bd. of Education, decided in 1954.
Federal Appellate Court News:
Diana Murphy of the Eighth U.S. Circuit Court of Appeals, the first woman to serve on an appeals court, passed away this past week at the age of 84. Article from the Minneapolis Star Tribune HERE.
State Appellate Court News:
The New Mexico Supreme Court revisited a case this past week concerning the use of state funds to pay for textbooks for private schools, in a case that may provide the basis for rulings in similar cases in other jurisdictions. Article HERE.
Practice Pointers and Tips:
A recent article in the Virginia Law Review addresses whether rules committees should have an amicus role cases where the Supreme Court has to interpret the federal rules that are largely drafted by the committees. See Scott Dodson, Should the Rules Committees Have an Amicus Role?, 104 Virginia L.Rev. 1 (2018).
Monday, May 14, 2018
In honor of Mother's Day, I was thinking about some of the amazing women I know who both practice law and raise kids. I could list several, but as I was considering the trailblazing appellate moms, my thoughts turned to the first two women on the Supreme Court--Sandra Day O'Connor and Ruth Bader Ginsburg.
Sandra Day O'Connor was born in 1930 in El Paso, Texas. She graduated third in her class from Stanford Law School in 1952 (the same year as William Rehnquist graduated from Stanford). According to the Sandra Day O'Connor Institute:
After graduating from law school, O'Connor busily went about applying to law firms in San Francisco and Los Angeles, but because of the prejudices against women at that time, she could not get a job as a lawyer. She was offered a position as a legal secretary, which did not match her education and training. Instead, she took a position as a deputy county attorney in San Mateo, California, initially offering to work for no salary or office, and where she shared space with a secretary.
During this same time she got married, and she and her husband spent some time overseas. They eventually returned to Arizona, and she eventually took a job in the Arizona Attorney General's office, after taking some time off to raise her three sons. She later served in the state senate, on the Maricopa County Superior Court, and on the Arizona Court of Appeals. It was from the state appellate court that President Reagan picked O'Connor to serve as the first woman on the U.S. Supreme Court. O'Connor served 24 years, retiring to, among other things, spend time with her husband.
Ruth Bader Ginsburg also has an amazing story. Born in 1933 in Brooklyn, she attended Cornell University, graduating in 1954. She was married that year and quickly had her first child. She actually started attending law school when her daughter was barely just one year old. According to a biographical website:
[Ginsburg] encountered a very male-dominated, hostile environment, with only eight other females in her class of more than 500. The women were chided by the law school's dean for taking the places of qualified males. But Ginsburg pressed on and excelled academically, eventually becoming the first female member of the prestigious Harvard Law Review.
Prior to her appointment and confirmation to the Supreme Court, Ginsburg was an accomplished attorney, serving as the first female tenured professor at Columbia and arguing 6 important cases for the ACLU before the U.S. Supreme Court. She served on the D.C. Circuit for over a decade before being nominated and confirmed to the U.S. Supreme Court in 1993. As Jennifer mentioned in a recent post, she is also the subject of a newly released documentary.
Thank you to these trailblazing female appellate attorneys, and a happy belated mother's day to all the moms out there.
Friday, May 11, 2018
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 Real a quick email atDReal@Creighton.edu or a message on Twitter(@Daniel_L_Real).
Supreme Court Opinions and News:
Adam Feldman from Empirical SCOTUS writes about data and analysis of SCOTUS oral arguments--how much justices spoke, what they spoke about, and who spoke--from the past term.
Ilya Shapiro from The Federalist has this review of what decisions from the past term tell us about the newest member of SCOTUS, Justice Gorsuch.
Federal Appellate Court Opinions and News:
A 9th Circuit nominee apologizes for comments made in a Stanford newspaper back in the early '90s.
State Appellate Court Opinions and News:
Justice Neil Gorsuch swears in Nebraska Supreme Court's youngest member, Jonathan Papik, stating "I can assure all of you, the job is safe with him."
Appellate Job Postings:
U.S. Solicitor General's Office--attorneys
Thursday, May 10, 2018
Ruth Anne Robbins, Distinguished Clinical Professor of Law, Rutgers Law School
The big news this week in field of law and typography was a Washington Post story about a study that purports to settle the one versus two-space controversy that rages on appellate-minded websites, listservs, Facebook pages, and Twitter accounts. Even on this Appellate Advocacy Blog, editor Tessa Dysart chimed in earlier this week. For those of you who are two-space fanatics, I am going to do more than repeat what you may have already heard, i.e. that the study is deeply flawed (although I will quickly review it). Mostly, I am going to suggest that you reflect on your dry, compassionate-less soul and then put down your personal preferences to instead be a citizen of the world.
But before I continue along these lines, I want to reiterate the scientific flaws in the study that have been ably and articulately pointed out by the best typographer and design expert in law—Matthew Butterick. I have had the pleasure of presenting with LWI Golden Pen recipient Matthew Butterick, and I know that when he writes something, he’s carefully researched and analyzed it first. Right away, Butterick calls attention to the central flaw of the study. It was done using the monospaced (typewriter-like) typeface of Courier, which is still required by the upper courts of New Jersey. To try and shake loose the New Jersey committee overseeing court rule changes, I researched the educational and cognitive science of readability and in 2004 published Painting with Print: Incorporating Concepts and Layout Design into the Text of Legal Writing Documents. The New Jersey officials were not persuaded but other courts were, and the article appeared by invitation on the 7th Circuit’s website for twelve years.
Because it is a monospaced typeface, two spaces must appear at the end of each sentence. Otherwise it is too difficult to determine whether there has actually been a break in the prose. But people don’t use typewriter fonts when they have the choice to use a proportionally spaced one such as the one you are reading right now. And there’s a reason for that. Courier, and typefaces like it, are 4.7% more difficult to read than proportionally spaced type. That equals a slowdown of fifteen words per minute, which Dr. Miles Tinker, the lead psychologist who studied the issue deemed “significant.” In his studies, readers consistently ranked proportionally spaced typefaces ahead of monospaced ones. In other words, the new study is flawed both in using a typeface that people don’t normally choose, and in using a typeface that essentially requires two spaces to be able to discern the difference between the end of a sentence or not. The people conducting the study put the cart before the horse. That’s just poor science.
Now, I promised you a lambasting, and here it is. Two spaces after periods take up more space and for lawyers who find themselves up against a page limit, or who wonder why paper is so expensive, think about whether you can save yourself some space and money by switching over to one space instead. You can also cut down on use of one of the most noxious and wasteful products we use: paper. In this country, paper is the largest source of municipal waste, and paper creation is the fourth worst industry for the environment. I wrote about this too, in a follow-up article, Conserving the Canvas: Reducing the Environmental Footprint of Legal Briefs by Re-imagining Court Rules and Document Design Strategies. Two spaces after periods actually contribute to the polluting of the environment. Yes, that extra space really does cost something to use.
And, if you are in the Seventh Circuit, you don’t even have a choice. The judges care a great deal about typography and instruct lawyers to use only one space after periods.
So, there you have it, two-spacers. An inconvenient truth. There’s logos, pathos, and ethos to using only one space. Your preference harms the Earth, eats into your page limits, and costs you and your clients more money to use. The so-called study is junk science. Are there really any justifiable reasons left to continue your inconsiderate punctuation practices?
 Miles A. Tinker, Legibility of Print 47–48 (Iowa State U. Press 1964) (synthesizing several decades of psychological research on typeface and readability).
 There are also other ways to save yourself some money and ecological ruin. When rules don’t require double-spacing: don’t. It’s harder to read anyway. And when courts allow you to use double-sided printing, do so.
May 10, 2018 in Appellate Advocacy, Appellate Court Reform, Appellate Practice, Appellate Procedure, Federal Appeals Courts, Law School, Legal Profession, Legal Writing, Moot Court, Rhetoric, State Appeals Courts, United States Supreme Court, Web/Tech, Weblogs | Permalink | Comments (0)
Monday, May 7, 2018
What better way to start out your Monday morning than a debate on the number of spaces to put after a period? On Friday, May 4, the Washington Post published a story about a recent study that found that putting two spaces after a period improves readability. The study, conducted by psychology researches at Skidmore College, had 60 students type a paragraph read to dictated to them. Of the 60 students, 21 put two spaces after the period. The researches then had the students read some paragraphs and used eye-tracking software and comprehension questions to test readability.
The study concluded that the two spaces, according to the Washington Post, made "reading slightly easier." But as the Post story and another article by typography expert Matthew Butterick point out, the answer really isn't that simple. First, the only people who showed improvement were those who originally typed with two spaces after the period, and the improvement was pretty slight. Second, Butterick notes that the improvement was only in reading speed and not in reading comprehension. Third, the experiments were conducted using Courier New font, which is a fixed-width font that is very different from the modern variable-width fonts used more commonly today on computers. Butterick points out a few other faults in his article, including the fact that the paragraphs the students had to read were rather short.
As readers of this blog can tell, I am fiercely loyal to the two spaces approach (and the Oxford comma, but that is another story). While I would love to make some argument about readability, for me it is just force of habit. Those two clicks of the thumb on the space bar are just second nature. As we move into more and more electronic reading, I do wonder if the spaces provide a little break for the eye or an informal mind cue that that a sentence is ending. So, I will keep my double spaces (and publishers and law reviews will continue to remove them).
Saturday, May 5, 2018
We know that triggering the right emotional response in our readers is a powerful legal writing tool. For better or worse, emotions affect legal decision making.
But how does that square with the longtime advice--given by legal writing gurus ranging from Bryan Garner to the late Justice Scalia--to avoid emotionally-laden language and overt plays to a judge's emotions? This advice is nothing new. It has been around for hundreds of years. Nor is it political. Justice Sotomayor remarked during her confirmation hearing: “Judges can’t rely on what’s in their heart. . . . It’s not the heart that compels conclusions in cases, it’s the law.” Likewise, Justice Scalia advised attorneys not to “make an overt, passionate attempt to play upon the judicial heartstring” because “[i]t can have a nasty backlash.”
Yet many lawyers can't help themselves. You don't have to look very hard to find examples of lawyers using obvious emotional plays in courts across the nation--state and federal, big stakes and little.
Take this gem from a firm that will remain unnamed:
The defendant is nothing more than a weasel. He sniffed around for evidence to fire plaintiff, then when he couldn't find any, slinked away to find another victim. The defendant's deplorable conduct deserves swift and entire justice.
Some lawyers defend this sort of emotionally-charged language as part of our job to "zealously" advocate for our clients.
For one, that is not technically a thing. Over two decades ago, the ABA replaced the duty to "zealously advocate" with the duty to use "reasonable diligence." And this shift was no accident. It came on the heels of a national discussion (that continues today) about the state of professionalism in modern legal practice. As one court explained: “[w]ith alarming frequency, we find that valuable judicial and attorney time is consumed in resolving unnecessary contention and sharp practices between lawyers . . . [and] refereeing abusive litigation tactics.” Dondi Props. Corp. v. Commerce Sav. & Loan Ass’n, 121 F.R.D. 284, 286 (N.D. Tex. 1988).
For another, we now have proof that blustery, emotional lawyering doesn't work. According to a recent and quite fascinating study, empirical evidence shows that emotionally-charged language is more likely to harm than help.
A powerhouse team of researchers set out to test whether emotional language influences a brief's chances of success. The team used complex software to test 1,677 cases decided in the Supreme Court from 1984 to 2007. The software flagged emotionally-charged words like “outrageous,” “apprehensive,” “wonderful,” and “glorious.”
The researchers did an admirable job of attempting to control for a number of factors, including case quality, attorney quality, oral arguments, and the court's ideological preferences. After all of this was taken out of the equation, the results were clear: the more overt emotional language in a brief, the less likely that brief was to convince a justice.
I assumed that, like most empirical studies on writing quality, various hard-to-control-for factors would would mean that the results of the data would be nominal. But quite the opposite. For petitioners, the impact was about 10% to the negative--using this language reduced your chances of success by about 1 in 10. For respondents, the difference was even bigger--coming in at a whopping 16% negative effect.
Given the lengths lawyers go to in trying to eek out just a slight increase in their chances of success--take, for example, the amount spent on jury consulting these days--this research should make any lawyer think twice before loading up their documents with heart-wrenching language.
The authors surmise (and I tend to agree), that the harms are caused by attorneys simply losing credibility with their audience. Judges and lawyers want to view themselves as followers of the law. The more you come off as trying to ply a judge with emotion instead of logic, the less the judge will respect what you have to say.
The easiest way to avoid a blatantly and patent emotional tone? Simply cut down on your use of lazy descriptors. Often we insert adverbs and adjectives into our sentences in an attempt to manhandle our reader into feeling a certain way about a fact or argument. For example:
This was a heinous and viscous attack that caused severe and permanent injuries to plaintiff.
Instead, use choice details and clean prose to focus your reader's attention where the emotional response will build naturally:
The defendant used an aluminum baseball bat to beat plaintiff until his knee caved in.
Another move to reduce obnoxious emotional language and increase your credibility: avoid any sort of name calling and petty characterizations--whether it be about parties, attorneys, or anyone else. State the facts about what a party or attorney has done. But as soon as you start characterizing or name calling, your credibility disappears. You implicate yourself in the drama.
For example, Bryan Garner shares this sample in a recent article:
Seeking once again to dupe this Court and to waste the time and money of OpusTV, thereby meriting the imposition of pretrial sanctions by this Honorable Court, Rembrandt has submitted woefully deficient infringement contentions to OpusTV. Rembrandt’s current violations, outrageous as they are, follow closely on the heels of its previous violations of the Joint Discovery Plan.
Garner is spot on in his followup comments "You’re asking the judge to become empathetically aligned with your position, to walk with you. If you’re excoriating the other side with emotional billingsgate (yes, I’m afraid I used that word), you’re making it hard for the judge to adopt your position."
Exactly (and who doesn't love cool words like "billingsgate"). I recently asked Judge Jennifer Dorsey about this same issue, and she and Garner are on the same page:
Let the judge judge; don't you do it. A lawyer should paint the picture with true, hard facts describing conduct that will lead the judge to do what the judge does—pass judgment. Don't usurp the judge's function by jumping to the conclusion for her.
Even if your anger is justified because an attorney or party is truly a bad actor, by allowing emotion to bleed into your writing, you may make yourself just as unlikable. If that happens, the judge will do anything she can to not join with your position. Pretty much worst case scenario.
A less obvious tip is to carefully craft your document and case themes to have an emotional flavor, but also a concrete grounding in the law. If your theme stems entirely from emotion, it may backfire on you. So perhaps instead of a theme painting a plaintiff as a "bad actor," you opt for a theme about how acts like the plaintiff carried out are precisely what Congress meant to regulate in passing the relevant statute.
Next, try to remove yourself from the equation as much as possible. There is rarely a reason to write in the first person--or to make a point based on your "belief" or "position." Make your arguments all about what the facts say or what the authority says.
"Our position is that this discovery is too burdensome to be permitted."
"This discovery will burden defendant with an estimated $2 million in costs, which is not warranted under the Federal Rules for X and Y reasons."
In sum: emotions are part of the legal writing craft, but obvious emotional ploys will not help you or your client. You must be subtle, reasonable, and maintain your credibility. And emotionally-charged language gets you none of that.
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.
Thursday, May 3, 2018
Supreme Court Justice Ruth Bader Ginsberg has become quite the pop icon. She is the subject of a documentary (opening May 4, 2018), and picked up the moniker Notorious RBG. Tumblr memes abound. When she gives talks to various groups, she is given the rock star treatment. She takes this all in humble stride, but even she thinks getting a tattoo of her face might be taking it a little too far.
While flattered by superfans who get tattoos of her face, the 85-year-old has also said she was "a little distressed that people are really doing that."
In an interview she elaborated:
Ginsburg: I saw that. And I thought it was — I thought it was a joke. I thought it was something you pasted onto your arm. But I'm a little distressed that people are really doing that.
Carmon: Distressed why?
Ginsburg: Because why would you make something that can't be removed on yourself?
I mean, it's one thing to make holes that you can use or not. My granddaughter for awhile was wearing a nose ring. Now she's not anymore. But a tattoo you can't remove.
Carmon: Well, I think it's because they admire you, that's why. This is the second tattoo I'm aware of. The other one has a picture of you. And it says, "Respect the bench."
Ginsburg: Well, that's a nice sentiment.
It is unknown how many RBG tattoos adorn peoples' bodies, but so far the trend is reportedly limited to women, some are lawyers, others are not, but they all still see her as their personal hero.
Amy Wallace, a 34-year-old attorney in Minneapolis, got a Rosie the Riveter-inspired RBG sleeve last year, which had a blink-or-you'll-miss-it cameo in the new film. "Justice Ginsburg is my only personal hero, and as an atheist, my adoration of her is the closest thing I get to personal worship," she told Refinery29. "The secular iconography of Rosie the Riveter mashed up with Justice Ginsburg seemed like a perfect articulation of the way I feel about her." The idea for it came after seeing someone else's tattoo of Our Lady of Guadalupe with a modern, feminist twist (A.K.A. standing inside a vulva instead of surrounded by a religious halo).
In a free society, there is certainly no stopping these cultural developments. The prevalence of tattoos in only the last decade or so has risen dramatically, and they are no longer solely associated with prison or gang culture. In fact, tattoos are very close to being considered mainstream (ironically making them much less of a rebellious statement than maybe they once were). So it's not the tattoo that bothers me so much, it's the idolization of any one person in our justice system.
Call me old fashioned, but I have a perception of a justice system that is a bit removed from the hype. I want our judges to be and to be perceived as being unbiased arbiters of the law, and to favor no outcome based on how they will be perceived by the public. Judges should do the right thing because it is the right thing to do. I have no fear that this celebrity in any way sways Justice Ginsburg's approach to her duties. Her life's work has proven her dedication to her own moral compass, and from that direction she has not faltered. But I have not seen the same sober and restrained attitude in all judges in many publicized cases. When judges play to the masses, justice can be undermined, so any action that tends to promote the courts in a superficial way sort of wrankles me.
Judges are people too, and it's good for the public to understand we are all human. Those who practice in the legal system are not above the law, and our legal system should exemplify the rule of law in every one of its actions. This promotes predictability and stability in the law and society. While those who take on unpopular but righteous causes should be admired, and even praised for their courage, we need to be careful about exalting them to a height of idolization. It can become dangerous for the perception of the fairness of the legal system. RBG, through her steadfast dedication to her own moral compass, has led the way for more equality under the law and she should be recognized for that in her lifetime. I'm just not sure tattooing her face on your body is the best way to do it - for her or for justice.