Appellate Advocacy Blog

The Court Is in Recess, and in Transition

Yesterday, Chief Justice Roberts gaveled the last session of the term to a close. This was the completion of a big year on the Court: a new justice was sworn in, and several consequential decisions were handed down. This year, there were also rumors that Justice Kennedy may be retiring, so on the last day of the session, Court watchers were anxious to see what may develop in the last few hours.

The procedures and customs of the Court frequently give away what may happen on any given day - despite the Court never giving a heads-up to the public. Observers just have to wait and see. Frequently when a justice is scheduled to present an opinion, his or her family members or special guests may arrive in the gallery. This week, this custom was upheld when Justice Thomas' wife, Ginny, appeared on Tuesday for his reading of the majority in National Institute of Family and Life Advocates v. Becerra, and Justice Breyer's wife was in attendance yesterday for his reading of the majority in a water rights case of Florida v. Georgia. Nothing unusual, yet.

Then, a whole hoard of what appeared to be Justice Kennedy family members entered the courtroom. Observers and reporters perked up! There were no further opinions expected, so why the special guests of Justice Kennedy? After the announcement of the opinions, Chief Justice Roberts teased everyone by announcing three retirements, but all were of Court staff. The Court then filed out. Observers did not know it yet, but that was the last time Justice Kennedy would exit the chamber. He announced his retirement later that afternoon. 

Justice Kennedy's announcement provides President Trump an opportunity few presidents ever have. To appoint one Supreme Court Justice is not so unusual, but to be able to appoint two is close to monumental. Our public conversation has become nearly irretrievably controversial, so while Justice Kennedy settles into retirement this summer, everything else, and not just the temperature, is going to heat up. 

End of the SCOTUS Term & Other Appellate Court News

My email has been filled recently with appellate court news.  Much of the news is focused on the end of the Supreme Court term, but there is news about other appellate courts too.

This morning the Supreme Court issued two opinions, added some cases to its docket for next term, sent back two cases to the lower courts to reconsider, and denied cert in some news worthy matters.  The two cases sent back to the lower courts are getting quite a bit of attention.  One of the cases involves a florist who would not do flowers for same-sex weddings.  That case was sent back in light of the Court's decision in Masterpiece Cake.  The other case concerned partisan-gerrymandering, and it was sent back in light of Gill v. Whitford. 

Among the cases denied cert was Brendan Dassey's challenge to the voluntariness of his confession.  Many people are familiar with Dassey's case thanks to the Netflix documentary Making a Murder.  Dassey's lawyers argued that Dassey, a juvenile at the time of this confession, "was subject to coercive police tactics and that he is borderline intellectually disabled."

In addition to waiting for the Court to issue its final opinions, potential Supreme Court vacancies are also making the news.  This weekend Fox News feature a profile of Leonard Leo.  During his interview with Chris Wallace, Leo, who has been instrumental in assisting the Trump administration with judicial vacancies, predicted that President Trump might get the opportunity to fill at least one more vacancy on the Supreme Court.  And speaking of vacancies, the federal appellate vacancies are getting press too.  Arizona Senator Jeff Flake, a Republican, has confirmed that he is holding up President Trump's judicial nominees over the issue of tariffs. President Trump has been able to fill a large number of appellate vacancies, but that action appears to be on hold for a few weeks while things get worked out with Senator Flake.

 

Technology Shouldn't be a Legal Writer's Trigger Word

Once a new technology rolls over you, if you’re not part of the steamroller, you’re part of the road.

–Stewart Brand

Technology. To many of us legal folks, a trigger-word. Maybe you’re flooded with memories of that time you were typing away, 50 pages into a brief, and your laptop crashed. Or the time you spent an evening trying to excise weird formatting that was embedded so deep in your document, you gave up and started copying and pasting things into a new version. 

What’s sad is that these tech headaches make us lose sight of all the amazing things that technology can do for us. Both small and big. When you embrace it—truly embrace it—technology opens up new possibilities. New ways of thinking; new ways of writing; new ways of lawyering.

I’ve been developing a couple projects that use nifty tools to shed light on interesting legal questions (well, interesting to me at least, for example: can data reveal which words and phrases our judges prefer so that we can better communicate with them?). In sifting through the new stuff out there, I thought it was time for another post on leveraging technology as a legal writer.

I’ve got enough information for you that I’ll dish it out in two posts. First, today, some nuts-and-bolts for using the lawyer's best friend--Microsoft Word. Then next week, a few tools for the more ambitious looking to up their writing game in bold new ways.

I love the idea of ordering from secret menus. Like Arby's “Meat Mountain,” Burger King's “Suicide Burger,” and Chipotle's “Burritodilla.” Well, Word has a secret menu, too—little-known keystrokes that will cut time from your writing process. Microsoft publishes a list of all 100 or so strokes here. I thought I'd share a select few that might surprise you. Then I highlight a few other Word features that you might not be using to their full potential. 

Remove all word formatting (font, bold, size, italics, etc.): CTRL + Spacebar. And remove all paragraph formatting with CTRL + Q. 

Align text (center, left, right): CTRL + E, +R, +L, respectively. No more dragging your cursor to the top of the screen! 

Move a paragraph or table row. ALT + Shift + Up/Down Arrows. Click in a paragraph or select more than one and hold down Alt + Shift while pressing the up or down arrows. Your entire paragraph moves! This is helpful in legal documents where you want to change up your arguments’ order.

 

Return to the last edit points. Shift + F5. If you edit text and then move to another place within your document, Shift + F5 will move your cursor back to your previous edit. Very useful during the editing process when you're skipping around. 

Navigate to a specific part of your document. CTRL + G. Allows you to go to specific pages, footnotes etc. Great for editing and reviewing documents. 

Select an entire paragraph. Triple-click anywhere within the paragraph. 

Select a sentence. Hold CTRL and click anywhere within a sentence. Helpful for moving things around or formatting. 

Select a block of text. Hold down the ALT key and drag your mouse to select any rectangular area. This is just crazy--who knew you could do this?

Move Text without Copy-Paste. Highlight any block of text, press F2, and then place the cursor at the spot where you wish to move that text. Press Enter and the selection will be transported! No more CTRL-C and CTRL-V mayhem! 

Add placeholder text for designing your brief. This one will give you some real Word street cred. Word has a built-in text-filler function for putting together templates, designing your documents, etc. Type =rand(p,l). “p” is the number of paragraphs and “l” is the number of lines per a paragraph. 

The magic clipboard. This is going to blow your mind: Word allows you to stack things in your copy-paste clipboard and vomit them all out at once. In other words, you can cut different sets of text and images from multiple locations in a document and paste them all at once to a different location. Select some text and press CTRL+F3. You can highlight and add more entries to the same copy using the CTRL+F3 shortcut. Now press Ctrl+Shift+F3 to paste the content. 

Change the sentence case. Select some text, press shift+F3 and cycle between uppercase, lowercase and camel case (first letter in capital). This also allows you to instantly capitalize the first letter in all sentences that you select. 

Write anywhere on a page. Double click anywhere on the page to type there—most folks don’t realize you can do that.

The mysteries of Microsoft Word’s Style feature: 

Word's formatting uses what it calls “styles” to auto-format your text; you can find this option on Word’s main menu bar. A few styles you want to pay particular attention to:

Normal. Sets the default font type and size. Changing the font on the Normal Style will automatically kick that change down to other Styles like footnote text. If you are a Times New Roman, 12-pointer--set those in Normal. 

Footnotes. Word generally formats footnote text as 2 points smaller than regular text. But many courts (and lawyers) prefer full-size footnotes. You can set that stuff here. 

Headings. You should make sure to set all of the headings that you commonly use—including the highest-level heading, second, and third levels. These heading styles will also carry over into your table of contents.

Here is a link to a tutorial if you are ready to take the plunge on some more styles!

Your Word is your templ(ate).

Styles dovetails nicely into template-talk. You can create templates for all of the legal documents you commonly create, with preset styles and even pre-filled language or headings—for your go-to briefs, memos, letters, etc. You can also create a blank template that has all the default styles that you like to start from. It’s easy to create a template—just save your document as a “Word Template” file instead of a word document. 

Quick-click: your access bar.

Many of us ignore the quick-access bar, but you shouldn’t. Program the quick-access bar with the functions that you use most often (and discover some new functions that you might not know exist).

One of my favorite buttons is word’s calculator function: it instantly carries out any math that you type into your document. Nifty for adding up figures on the fly. Go to Word Options > Quick Access Toolbar, switch to All Commands and add the Calculate Command to your Quick Access Toolbar. Or find some other functions to add to your quick-access bar. 

Word add-ins.

Word has some excellent downloadable tools to help you be more productive. Perhaps the most useful is Word timers. This tool allows you to keep track of the time you’ve been working on a document. A built-in timer like this allows you to stay focused by breaking up your writing into chunks and making sure to take breaks. 

Sticky Text lets you save sentences or paragraphs that you use a lot. It also allows you to search the web without actually opening a web browser.

There are tons of other Word forms helping to legal writers, check some out here. 

Numbering formats.

Use Word’s numbering settings to pre-set all kinds of numbered text in your writing. This goes for any sort of numbered list, discovery response numbers, and much more. Setting these up requires two steps. First, define a new number value. Second, adjust the indents and spacing to your liking. 

Track changes and editing with others.

Working on writing projects with others is tricky, and deserves a whole article (or book) to itself. But for now, there are a couple neat tools you should know about. First, make sure you know how to filter out edits from different users. This allows you to see who made what change.

Second, learn how to restrict others’ from changing your document. You can restrict others from making changes in a certain section—say, once a section is final; you can restrict others from changing formatting in the document; or you can restrict people from editing at all. To access these settings, head over to the “Restrict Editing” section.

Finally, make sure you know how to merge edits when more than one person sends you their own versions of a document. This is a lifesaver when working on a bigger team. 

Page and section breaks.

Page breaks are helpful because they allow you to finish a page before its natural end (and keep that page together even when you add things later). Section breaks are like page breaks, except they allow you to have separate formatting for each section. So you can set distinct formatting for your preliminary parts, your main arguments, and your certificates of service, for example. 

Hyperlinking.

Most lawyers ignore the power of hyperlinking. Don't. Try linking citations to the record on PACER or your state’s e-filing system. Many judges will love you for it. More sophisticated folks can also link exhibits and other documents (but that requires some more work). Hyperlinking is also useful for internal documents, like linking background documents in law firm memos to documents in a shared drive folder. 

Stay tuned next week for some more advanced tools--like using Microsoft Flow to automate tasks, alternate version of Microsoft explorer (that allows you to create tabs in folders!), email programs that use AI to sort your inbox--and much more. 

Joe Regalia is a law professor at the University of Nevada, Las Vegas, William S. Boyd School of Law and regularly leads workshops training legal writing and technology. The views he expresses here are solely his own and not intended to be legal advice. Check out his other articles and writing tips here. 

When Justices Cite to Oral Arguments

As the Supreme Court's term finishes with a flurry, this is a great time to glue yourself to Adam Feldman's data dives on his outstanding blog, Empirical SCOTUS (cross-posted since March at SCOTUSblog.com). The site is a treasure trove for Court watchers, and Feldman is terrific at collecting, presenting, and analyzing data about an endlessly fascinating institution.

In a recent post, Don't Cite Me Like That, Feldman touches (tentatively, and appropriately so) on issues that keep a lot of us entertained: Does oral argument change outcomes? If so, how? And how can we tell? This debate was raised afresh late last week in the wake of the Court's decision in Minnesota Voters Alliance v. Mansky, a challenge under the First Amendment to Minnesota's ban on political apparel at polling places. Because polling places are nonpublic fora, governments have considerable latitude to impose even content-based restrictions on speech; those restrictions simply must reasonable and viewpoint-neutral. Writing for a seven-justice majority, Chief Justice Roberts concluded that the ban was unreasonable because the state failed to draw sufficiently sharp lines between permitted and banned political messaging; that is, the Chief says, "a serious matter when the whole point of the exercise is to prohibit the expression of political views."

To illustrate the state's difficulty in drawing lines, the Chief Justice cites to segments of the argument where counsel for the state, like, struggled to draw lines. The key questions came from Justice Alito; Mark Joseph Stern describes the most damning colloquy and provides an audio cut in this piece for Slate. Justice Alito relentlessly presents a chain of hypothetical questions about how a reasonable polling official would apply various bits of expressive apparel: a Colin Kaepernick jersey, shirts displaying rainbow flags or various messages, and so on. Counsel for the state's struggle was real (and understandable). It was also, according to the chief, telling:

My intuition is that justices will most often cite to oral argument for the reasons the Chief did here: to oppose the position of the advocate presenting the argument. My sense, too, is that a major subset of such uses would be to expose overbreadth and faulty tailoring by highlighting awkward responses to scope-testing hypotheticals. Characteristically, Feldman doesn't rely on intuition: he pulls the data. This term, justices have cited to oral arguments 69 distinct times in 26 cases (both numbers went up this morning; the justices dropped cites to oral argument in this morning's opinions in Pereira v. Sessions and Lucia v. SEC). And yes: this term, justices' most common purpose for citing oral argument has been to undercut a party's position, either by using the transcript to "create a straw man argument that the authoring justice later deconstructs" or, as in Mansky, to "more directly oppose a party's position" by detailing "miscalculated or erroneous answers," often to questions about hypothetical applications. To be sure, justices use oral argument transcripts for other purposes, and Feldman breaks down and explains those well. This strikes me as a rich area for further study.

Cycling back to the initial question: did the state's struggles in the Mansky oral argument effect the outcome? Obviously, we can't know with the information we have, and given the marginal, late-in-the-game impact of oral argument, a good hypothesis in almost any case would be no. But, as Feldman cautiously explains, Mansky might be different. Justices Kennedy, Ginsburg, and Kagan sided with the majority. But their questioning patterns at oral argument (and, to some degree, the substance of their questions, particularly those of Justices Kennedy and Ginsburg) would suggest that they might have been inclined to rule the other way. And Justice Sotomayor's position in dissent—certify the case to the Minnesota Supreme Court for a possible saving construction—was a modest one. And yet: 7-2, with the oral argument transcript cited six times in the majority opinion (the Court also cited twice to oral arguments in Burson v. Freeman, a 1992 case addressing campaigning restrictions near polling places; see footnote 1 of the Mansky slip opinion).

So perhaps oral argument really mattered here. 

Mostly, though, just add Empirical SCOTUS to your must-read list if you haven't already. 

In Honor of Father's Day

Last month, in honor of Mother's Day, I posted about Trailblazing Appellate Moms--highlighting the careers of Justices Ginsburg and O'Connor.  Unfortunately, I couldn't think of a similarly snappy post in honor of Father's Day. (Side note--Father's Day is the correct punctuation.)  As I thought about appellate lawyer dads, the picture that kept coming into my mind was that of Jack Roberts "dancing" during President Bush's televised announcement that he was nominating Jack's father--John Roberts--to the United States Supreme Court.  In case you haven't seen the video, you can see it here.

Chief Justice Roberts later shared more about the event in an interview with Jan Crawford Greenburg:

CHIEF JUSTICE ROBERTS: ....

And jus[t] before the announcement, someone told Jane, "All right, go after the kids and stand there right next to the lectern." And Jane immediately said, "Well, that's not a very good idea," but it was boom, boom, boom and they were standing there. People think Jack was dancing. He was not dancing. He was being Spiderman. He was shooting the webs off…

CRAWFORD GREENBURG: But did he think the cameras were there for him? Was he performing?

CHIEF JUSTICE ROBERTS: Yes, you know, there were spotlights and he figured, 'I might as well take advantage of it.' And I remember thinking—well, what I was thinking was what any father and husband would think, which is why isn't Jane doing anything. And later on, on the ride home, she explained, and I think quite correctly, that if she had tried to do anything, there was no telling what Jack would have done and it would have escalated a little bit.

But the cameras were at the president's shoulders and above, so we got through it all right.

CRAWFORD GREENBURG: Could you hear the president or was it distracting?

CHIEF JUSTICE ROBERTS: No. I kind of pretended it wasn't happening and just tried to listen to what was going on.

Perhaps I should have included Jane Roberts, an accomplished attorney, in my May post for keeping her cool during the whole ordeal.  Anyway, to all the appellate dads who work the long hours but still try to make soccer, baseball, gymnastics, and ballet recitals, we salute you!

 

Appellate Advocacy Blog Weekly Roundup June 15, 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 [email protected] or a message on Twitter(@Daniel_L_Real). You can also send emails to Danny Leavitt at [email protected] or a message on twitter @Danny_C_Leavitt. 

In Supreme Court news, a 7-2 vote in Minnesota Voters Alliance v. Mansky held that Minnesota's ban on political apparel at polling places violated the First Amendment's free speech clause. Justice Roberts authored the opinion, and Justice Sotomayor authored a dissent in which Justice Breyer joined. Articles about the case are here, here, and here. Other coverage of the case can be found at SCOTUSblog, here.

Other Supreme Court news includes a 5-4 vote in Hughes v. United States. The Court decided whether the process Ohio uses to remove voters on change-of-residence grounds violates the National Voter Registration Act. Amy Howe at SCOTUSblog has this take on the case. 

And a noteworthy appellate tidbit from @AdamSFeldman's Twitter post sharing a piece by Warren D. Wolfson on oral arguments.  

 

 

What is so hard about attribution?

A Chicago attorney may be in trouble for plagiarism. The abrupt writing style change in the middle of his brief was easily Googled and more than 1,000 words were discovered to be lifted from two separate sources - a law bulletin and a primer series. 

Plagiarism of this sort is not hard for the reader to detect. For law students, it means an honor code violation, and for licensed attorneys it means possible ethical violations. There is little room to argue that it was done unknowingly, and at the least, this type of behavior is negligent. Using over 1,000 words though, it is a stretch to believe that laziness and arrogance weren't also involved.

Most people first encounter the concept of plagiarism in an academic setting, where they are taught that plagiarism consists of using the words or ideas of another without attribution. For example, the Modern Language Association defines plagiarism thus:

“Using another person’s ideas or expressions in your writing without acknowledging the source constitutes plagiarism.... [T]o plagiarize is to give the impression that you wrote or thought something that you in fact borrowed from someone, and to do so is a violation of professional ethics.

“Forms of plagiarism include the failure to give appropriate acknowledgment when repeating another’s wording or particularly apt phrase, paraphrasing another’s argument, and presenting another’s line of thinking."

In academic writing, a premium is put on finding and communicating ideas that have not been discovered before. Law students must write their law review articles on a subject not yet preempted by another author. They must find something unique to say about a topic. Practicing attorneys, on the other hand, have a different focus. Most often they need to use another's words in order to support their own argument. It is the existence of another's idea that makes their case stronger. So it remains baffling why a practicing attorney would not give attribution to his source. (Frequently, it appears as if attribution is given because citations are copied and paste along with the text - but another has arranged these words in a particular, unique way, and that must be credited).

This behavior is further puzzling when it is done without much effort to to hide the offense. Some work went into finding the excerpt, and shoving it into the right spot in the document, so why not revise the words and the style to match the rest? Does this plagiarizer think he can so blatantly submit a patchwork document and it not be noticed? Not likely, and not ethical or professional.

In the case of the Chicago attorney referenced here, he charges $400.00 per hour. Apparently, copy and paste is the best his client can expect for that pittance of a fee. 

Return to Judgment (not Judgement)

Earlier this year I blogged about students (and a well-known national gym franchise) spelling the word judgment with the letter "e" appearing twice--in "judge" and in "ment."  In my initial post, I took a cursory look at how the U.S. Supreme Court spells the word, finding that it overwhelmingly prefersthe single "e" version of the word.

The topic intrigued me so much, I decided to dig a little deeper and write a short article on it.  I am pleased to announce that the article will be published in the Spring 2018 edition of The Green Bag.  You can preview the article here.

The article starts with an Originalist inquiry into the spelling of judgment--looking at how the word was spelled in state constitutions and other important founding documents.  I then explore English language and legal dictionaries to see how those sources spelled the word.  I end with a much more detailed look at the Supreme Court's treatment of the word, using various legal research databases to identify every instance of "judgement" appearing in the U.S. Reports.  

Although I do encourage you to read the article (it is quite short), I am happy to share my conclusion in this post. In legal writing, judgment should be spelled with only one "e."  That is the preferred spelling of the early sources, the dictionaries, and the U.S. Supreme Court.  For those who want to cling to the double "e" version of the word, I implore you to be consistent in your writing. While seeing judgement in a brief does cause me to cringe, I cringe even more when I see the word spelled two different ways, sometimes in the same paragraph or sentence.

What a Doctor of Design Can Teach You About Legal Writing

I’m always on the lookout for an interesting book or new research that might offer something to us legal writers. This week I found insightful advice hidden in a cranny I would never have thought to search: A book on design. 

The book is Susan Weinschenk's "100 Things Every Designer Needs to Know About People." Weinschenk is a seasoned behavioral scientist who has spent thirty years applying psychology to the design of communication. Who better to ask for advice on legal writing? And Weinschenk's insights do indeed echo many of the great ideas percolating across the legal writing community, if with some twists.

Let me say, the whole book is worth a read. Weinschenk brings her considerable knowledge and experience to bear on some fascinating topics, many of which are useful to legal writers. Like: 

Which parts of a written page are shown to grab and hold a reader's attention?

What can you add to your writing to help make memories stick? 

Why do the things in our periphery sometimes end up being just as important as the things we try to focus on? 

How can you retrofit your communications to be boredom-proof? 

How do you motivate people to continue reading, even when they don't want to?

And then some purely visual stuff: What line length for text is best? And are some fonts better than others?

In case you don't get around to reading it, I thought I'd share some of what I found useful. 

Weinschenk talks a lot about a problem that we are all familiar with: readers distract easily. A reader might  try her best to read your piece carefully. But keeping focused throughout an entire legal document is no easy chore. And if your reader is busy (as most lawyers and judges will be) finishing the entire thing at once is impossible. 

I loved Weinschenk's advice for this problem: make your document cat-video friendly. In short, make your writing so easy to start and stop—in every section—that your reader won't dread coming back and reading more after a session of clicking around on the interwebs.

So how do we do that? 

First, your headings must be both informative and skimmable. They must dish enough information that your reader won’t need to read farther into the section’s text to find her place. At the same time, headings must be simple and readable enough that a quick skim will get the job done. If your headings are essentially block quotes of dense text, just about anything else will sound more appealing than returning to your document. 

The same goes for paragraphs. The distracted reader will be grateful if the first sentences of your paragraphs are both informative and skimmable. It allows her to not only find the section that matters, but the particular paragraph she cares about. Relatedly, by keeping your paragraphs and sections on the short side, you break up ideas into manageable pieces so that the distracted reader can better find their way, and keep it.

Weinschenk also mentions "flow"—a term I’ve always loved. To me, being in “flow” means that you are fully submerged in what you're reading. You could say that flow is the distracted reader’s kryptonite. You’ve been in a flow state, I’m sure. Like when you lose yourself in a book or movie, and then hours later you realize you have no sense of where the time went.   

Achieving flow is magic. If you can put your readers in that state as a legal writer (or even approach it), you'll be the most successful lawyer in practice (judges will read everything you write, and better yet, they will understand it and remember it). 

Weinschenk explains that part of keeping the flow running has to do with regularly triggering dopamine releases in the brain—which happens when readers are entertained, curious, or excited. This includes the good feelings that come with understanding new things (like, say, legal arguments?).

Keeping this constant feel-good state going requires so many things to work together just right.

• Your writing must have zero distractions—a single weird word or stumbling sentence and the flow is gone, perhaps forever. 
• Your writing must consistently engage throughout the document--not just at the start and the end, like many folks recommend.

• Your writing must be engaging enough to draw the reader in. This takes strong style—snappy prose that engages your reader’s senses; and strong substance—careful attention to when and how the underlying content is metered out. If you don’t keep tickling your reader’s attention, they can’t keep their focus trained. And if you overwhelm them with too much substance too soon, they'll get lost.

• Your writing must be orchestrated to perfection. As legal writing guru Steven Stark often says: the tough part of writing is organizing. Weinschenk has something to say on this point, urging writers to use “progressive disclosure.” This means not burdening your reader with too many specifics at one time, and ensuring that they have the big picture before moving to the small one. Legal writers often ignore this advice, diving into the details before fully laying out the aerial view.

• Your writing must be crisp. Excess words or points that go nowhere will kill your reader’s flow. Stop when you’re done.

• Your writing must tell a story—and one that your reader can be a part of. To make sense of the world, we turn just about all information into a story of some sort. And these stories have the same players and the same morals. We share fundamental notions of fairness, order, and empathy. Your writing can tap into these truths by focusing on people and events, subtly weaving emotional facts and vivid imagery into your prose, and becoming aware of devices like pacing and beat. The power of stories is so great, in fact, that a good one can cause readers to ignore contradicting facts or gaps. The brain wants to believe in a complete story, even if in reality, there isn’t one.

Weinschenk also mentions memory, which is a feature we legal writers don’t always consider. The best argument does little good if your reader forgets about it five minutes after reading it. Weinschenk recommends using repetition throughout your writing—what we legal writers would probably call road mapping. Weinschenk’s point, though, is that road mapping is not just about organizing, it’s also about reminding and reinforcing. There is some value to judiciously repeating key points and big picture ideas at regular intervals throughout your document. It helps your reader connect old information to new, makes it more likely that memories will stick, and prevents your reader from ever feeling like they are in unfamiliar territory.

As Weinschenk explains, the act of repeating information physically changes a reader’s neural pathways. The neurons can form a trace so that it’s easier to retrieve memories later. Use this science.

Finally, Weinschenk had a lot to say about the “illusion of plentiful choice.” The idea is that people don’t like being forced into a decision, while at the same time, they don’t want too much choice lest they become paralyzed. And if you give people at least the illusion of some choice, they will be more comfortable accepting your recommendation.

For legal writing, we can harness this insight by giving readers alternative paths to an outcome that is agreeable for us—but at the same time, keeping the alternatives to a manageable number. This means not bludgeoning your reader with the one “right” answer. Give your reader at least the illusion of choice by presenting the law and facts in a way that naturally leads them to pick the outcome you’d like.  

Joe Regalia is a law professor at the University of Nevada, Las Vegas, William S. Boyd School of Law and regularly leads workshops training legal writing and technology. The views he expresses here are solely his own and not intended to be legal advice. Check out his other articles and writing tips here. 

Appellate Advocacy Blog Weekly Roundup June 8, 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[email protected] or a message on Twitter (@Daniel_L_Real).

 

The big appellate news this week was the Supreme Court's release of its opinion in the Masterpiece Cakeshop case.  If you follow appellate practice and appellate news, you've likely seen substantial coverage in a variety of media and commentary.  Here are a couple of good ones, just in case:

Supreme Court opinion:  HERE

SCOTUSblog Coverage:  HERE

How Appealing Coverage:  HERE

There were a few tidbits around the internet this week that provide some practice tips and pointers:

Popular #AppellateTwitter judge @JudgeDillard posted a link to an article about his thoughts on judges engaging through social media.  It's definitely worth the read.

At Volokh Conspiracy there was an article on "Tips on Inviting Law Professors to Write Amicus Briefs."

Friday was designated #AppellateTwitter day, and one @Judge_Leben hosted a thread offering Twitter users the opportunity to "Ask an Appellate Judge" questions about appellate practice.  It's a good one to check out.

Oral Argument & Betterment

Over the last few weeks, I've worked with a young lawyer as he prepared for his first appellate oral argument in an important federal case. And I experienced what is, at this point in my career as a teacher of advocacy skills, the familiar thrill of watching a good lawyer quickly get better. I hope the oral arguments in the case lead to better results than we'd see in whatever outcome and reasoning the panel would have reached based on the briefing alone. But I know this: preparing for and presenting the argument has made my colleague better.

In the last two posts on this blog, Tessa and Dan discuss recent pieces in the New York Law Journal and the National Law Journal on the steep quantitative decline of oral argument in the federal circuit courts. This decline is, perhaps, inevitable in an era of expanding dockets and technological advances that make briefs relatively cheap to generate and consume (I said relatively; don't @ me). But my reflex is to bemoan the lack of betterment that must accompany this decline. I'm not talking so much about the betterment of case outcomes or of society more generally. The hit to that species of betterment is, no doubt, real and worthy of discussion. And it has been discussed, well and often, on this blog and elsewhere. See, for example, pieces by Jennifer and Tessa discussing a report from the American Academy of Appellate Lawyers on why the decline matters; see also this piece by David Cleveland and Steven Wisotsky. But the benefits of oral argument in bettering outcomes and society are marginal and difficult to quantify; perhaps they're mostly not worth the cost. I don't know.

I'm concerned about the betterment of lawyers. It's not just that, as oral argument rates decline, fewer emerging lawyers will develop experience in the art of oral advocacy. After all, if the need for oral argument artisans declines, then bemoaning the loss of opportunities to practice the craft would be like getting upset over the scantiness of job listings for haberdashers. 

It's that doing oral argument makes one a better lawyer. Preparing for oral argument makes one a better lawyer. Deeply. Quickly.

If one prepares properly, appellate oral argument is a nearly perfect pedagogical tool. One basically can't prepare for and present an oral argument without working through virtually all of the techniques recommended by learning scientists (summarized nicely in the book Make It Stick: The Science of Successful Learning). Oral argument is an intricate, dynamic exercise in retrieval practice; as such, it leverages the testing effect. It demands elaboration: advocates must explain complex subjects clearly and vividly, show connections, relate the abstract to the concrete, and so on. It requires one to construct and use a network of mental models. As advocates move though disparate bits of the argument, they interleave material. Particularly because advocates naturally spend much of their time at the podium getting tested, through interrogation, about the most challenging aspects of their theory of the case, oral argument produces desirable difficulty. Judges' reactions provide real-time feedback. Post-moot periods promote reflection, a key component of sophisticated learning and skill development. The dynamic of oral argument lends itself to spaced practice. And anyone who has had to perform in oral argument learns quickly that our usual, misguided ways of "learning" material -- reading and cramming, with little retrieval or performative practice -- don't help much. Prepared oral advocates learn, deeply, then teach, and learn more deeply for having taught. The expertise sticks.

Let's say I'm right that doing and preparing for oral argument is an especially powerful way for lawyers to develop expertise and skill. And let's say that oral argument skeptics and realists are correct that oral arguments only rarely affect outcomes in cases and most often aren't worth the cost. Maybe we can agree on this: let's push more oral arguments down to junior attorneys. That'll drop the costs. Maximize the benefit. Make a lot of forward-thinking courts happy. 

Oral Argument News

Over the past two weeks there have been a few prominent stories on oral arguments.  These stories were featured in the Weekly Roundup, but I wanted to elaborate on them a bit more.

The first story concerns the D.C. Circuit's decision to live-stream the audio of oral arguments.  Danny noted the D.C. Circuit's announcement in the May 25 Weekly Roundup. In short, the D.C. Circuit has provided recordings of oral arguments since September 2013.  However, now they will live-stream arguments (barring any sort of "classified or sealed matters.").  This is great news!  Honestly, the federal courts are way behind on live-streaming.  Nearly two years ago I blogged on state efforts to live-stream arguments.  Many states live-stream more than just audio--they include video as well.  As a teacher of appellate advocacy, having my students watch oral arguments is a great teaching tool.  Those arguments don't always have to be live, but it does add a nice element.  For practitioners, the ability to listen or watch an argument from the office, rather than heading down to the courthouse, saves those precious billable hours.  Kudos to Chief Judge Garland for making this happen!

The second story, which Dan mentioned in the June 1 Weekly Roundup, is a story from the National Law Journal on the decline of oral arguments in the circuits.  While I wasn't able to pull up the NLJ article, on May 31 the New York Law Journal posted an article on the same subject.  According to the article:

The most recent year statistics available from the Administrative Office of the U.S. Courts—the 12-month period ending Sep., 30, 2017—had just 6,913 arguments out of the 34,561 appeals decided on the merits. That 20 percent is a far cry from the 27.3 percent of all cases a decade ago (8,662 arguments heard), and an even more steep decline from the 40.1 percent of cases (10,357 arguments heard) just 20 years ago—when oral argument data became available from the Administrative Office.

The article does a nice job of highlighting the arguments for and against oral argument.  In a nutshell--oral argument is expensive, time consuming, and not always helpful.  On the other, oral argument is an important bench/bar relationship and can help clarify judicial misperceptions in a case.  

It will be fascinating to see if argument numbers continue to decline. 

Appellate Advocacy Blog Weekly Roundup June 1, 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[email protected] or a message on Twitter (@Daniel_L_Real).

Supreme Court Opinions and News:

• This week, the Supreme Court released its opinion in Collins v. Virginia.  In the opinion, the Court held that the Fourth Amendment prohibited law enforcement from searching under a tarp in a citizen's driveway to locate and search a motorcycle, rejecting arguments that the automobile exception to the warrant requirement should be extended to such a situation involving a citizen's curtilage.  Justice Alito was the sole dissenter, arguing that there was no meaningful intrusion into privacy; Justice Thomas wrote a separate concurrence, in which he asserted that the it is improper to require state courts to apply the exclusionary rule.

Read the Court's Opinion HERE.

Federal Appellate Court Opinions and News:

•  An article last week in the National Law Journal discussed a recent trend where the number and percentage of cases actually resulting in oral argument at the federal appellate level has been declining.  The article also discussed what this trend means for some of the nation's top firms, where federal appellate work sometimes makes or breaks professional reputations and is a big component of firm billing.

Read the Article HERE. 

Practice tips and pointers:

• Lisa Solomon (@lisasolomon) had an article at Question of Law this week stressing the importance of not overusing intensifiers in legal writing -- authors often use them as a crutch in the belief that they will convey a sense of importance to the object being modified, but sophisticated legal readers typically have the opposite reaction, discounting the credibility of the author.

Read the Article HERE.

• Announcement:  The ABA Section of Litigation will be holding a Roundtable on Effective Oral Argument Preparation on Wednesday, June 27.

More Information HERE. 

Appellate Job Postings:

•  Assistant Attorney General for New Mexico, Criminal Appeals Division

View the Posting HERE.