Appellate Advocacy Blog

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

Friday, August 31, 2018

Appellate Advocacy Blog Weekly Roundup Friday August 31, 2018

WeeklyRoundupGraphic

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

 

Supreme Court Opinions and News:

Reuters summarized the looming confirmation battle for President Trump’s latest SCOTUS nominee, Brett Kavanaugh, noting that there will be a lot of discussion about Kavanaugh’s position on overruling longstanding precedents that have become divisive political issues, especially abortion.  NEWS ARTICLE.

As Law.com noted this week, with Justice Kennedy’s retirement from the Court and having already hired clerks, the allocation of his clerks to other Justices means that four Supreme Court Justices will have five clerks this term, instead of four – which might result in an increase in the Court’s pace this term.  NEWS ARTICLE

Federal Appellate Court Opinions and News:

The 11th Circuit Court of Appeals this week issued an interesting opinion in which it held that the First Amendment protects sharing food with homeless people.  The suit arose from a challenge to a Fort Lauderdale, Florida, ordinance that requires a permit to share food in public parks.  The appellate court held that feeding the homeless amounts to a form of expressive conduct and that it receives First Amendment protection.  NEWS ARTICLE.   COURT OPINION.

The 8th Circuit Court of Appeals this week issued an opinion in which it reversed the dismissal of a Missouri death row prisoner’s complaint challenging the constitutionality of the State’s method of execution as applied to him. The appellate court held that the inmate, Ernest Lee Johnson, alleged sufficient facts to state a cause of action and merit having the case heard. NEWS ARTICLECOURT OPINION.

August 31, 2018 | Permalink | Comments (0)

Thursday, August 30, 2018

Thinking Thursdays: Making Citations Stylish

Margaret Hannon, guest blogger, Clinical Assistant Professor of Law, University of Michigan Law School

*****

Professor Alexa Chew’s forthcoming article, Stylish Legal Citation, asks whether legal citations can be stylish. Spoiler alert: The answer is yes.

What is a “stylish” citation? It is a citation that is “fully integrated with the prose to convey information in a readable way to a legal audience.” For law-trained readers, well-written citations communicate substantive information about the authorities that support the assertions in the text and the degree of support that the authorities provide. And when citations are well-written, they can “enhance the writer’s experience in the way that well-written prose can.” On the other hand, poorly written citations make it difficult for legal readers to understand the prose. As a result, readers will either skip over the citations or “slow to a painful crawl.”

What makes a citation “unstylish”? Professor Chew groups poorly written citations into two categories: “bumpy” citations and “presumptuous” citations. Bumpy citations interrupt the prose rather than working with it, while presumptuous citations communicate information that the reader expects to see not in the citation but in the prose. Bumpy and presumptuous citations are problematic in and of themselves, but identifying them can also help readers identify other writing problems.

In spite of the communicative role that citations play in legal writing, there is very little guidance about how to cite stylishly. Most legal writing texts don’t treat citation as a facet of legal writing style at all; as a result, they provide little to no advice about how to incorporate citations well. Similarly, many legal writers treat citations as an afterthought—a “separate, inferior part of the writing process, a perfunctory task that satisfies a convention but isn’t worth the attention that stylish writers spend on the ‘real’ words in their documents.”

So, how can you make your citations more stylish? Professor Chew describes a three-part system that any legal writer can follow, focusing on: (1) choosing what to cite; (2) writing the citation; and (3) revising to tie together prose and citations.

Professor Chew begins by providing advice on choosing what authority to cite and how many authorities to cite. She then provides guidance on writing the citation itself—choosing the citation placement, signal, and parenthetical content. As Professor Chew explains, these decisions should not be based on the Bluebook (or any other citation guide). Instead, they “should be driven by your understanding of the prose and its substantive relationship to the cited authority.” Finally, she provides advice on how to tie together the prose and the citations, i.e. how to identify the bumpy or presumptuous citations (which might also be signs of other writing problems) so that you can fix them.

There is one legal writing style expert who does provide guidance about citations—Bryan Garner. But the guidance that he provides isn’t about how to make in-line citations stylish because he views citations as “impediments to stylish legal writing.” Instead, Garner argues that writers should use footnotes instead of in-line citations.

Professor Chew rejects Garner’s critique of in-line citations because it is based on “the premise that writers aren’t up to the challenge of skillfully incorporating citations into their texts in a way that readers can follow.” Using footnotes may avoid some citation problems and may eliminate visual clutter, making it easier for writers to spot poorly written prose. However, it creates other writing problems. Even if citations are moved to footnotes, legal readers can’t ignore them because the citations convey necessary information about the authority that supports the assertions in the text. As Justice Scalia, Garner’s co-author, noted, moving citations to the footnotes thus “forces the reader’s “eyes to bounce repeatedly from text to footnote.” And weaving the details from the citations (such as the case name, court, and date) into the text might solve that problem but creates a new one in that it overemphasizes information that often isn’t worth emphasizing and makes the prose more awkward.

Instead, Professor Chew encourages legal writers to embrace in-line citations. In-line citations give the reader control over how much attention they pay to the citations by skimming them over or reading them in more detail. In general, readers pay less attention to citations than they do to prose, and this allows citations to be placed “right next to the propositions they support, at the reader’s point of need.” As a result, “in-line citations can convey information ‘almost subliminally’ as readers’ eyes speed across them.”

Professor Chew’s article fills an often-overlooked gap in the legal style literature, and it does so in a practical way. I encourage students, professors, and practitioners to read Professor Chew’s article for more detail, especially the “how tos” of making citations more stylish. I didn’t need much convincing about the importance of citation to legal writing, but Professor Chew’s article still made me think more deliberately about the role that citations play in good legal writing. And for those of you who teach legal writing (whether first-year or upper level), her article also makes the case for better integrating citations into the legal writing curriculum. Finally, if, like me, you can’t get enough of Professor Chew’s writing on citations, don’t miss her Citation Literacy article.

August 30, 2018 in Appellate Advocacy, Appellate Practice, Law School, Legal Profession, Legal Writing, State Appeals Courts, United States Supreme Court | Permalink | Comments (0)

Monday, August 27, 2018

Justice Kavanaugh?

Confirmation hearings for Supreme Court nominee Judge Brett Kavanaugh are set to begin on September 4.  In August, the big story related to the nomination was the need to see documents related to Kavanaugh's time as President George W. Bush's staff secretary and as a White House counsel.  But, getting these documents and ensuring that Kavanaugh's hearings are completed in time for him to join the Court at the start of the October term has proven difficult.  According to a Los Angeles Times article, "Republicans are getting the papers from Bush’s presidential library by having longtime GOP attorney Bill Burck, once a former Kavanaugh deputy, vet them."

Last week, however, there were new calls for a delay in the hearings.  This call focused not on Kavanaugh, but on Michael Cohen's guilty plea.  On August 23, Tom Nichols, a Naval War College Professor and Republican, called on the Senate to delay hearings until after the November election.  Democrats in the Senate have also raised this concern. It remains to be seen what role the Cohen plea will play in the hearings.  We will know for sure in about a week.

August 27, 2018 | Permalink | Comments (0)

Tuesday, August 21, 2018

Call for Papers: The Fourth Annual Law & Corpus Linguistics Conference

I received the following call for papers that might be of interest to our readers:

Deadline: October 10, 2018

Event Date: February 7-9, 2019

Location: Brigham Young University, Provo, UT

Organization: Brigham Young University

Contact: James Heilpern, heilpernj@law.byu.edu

BYU Law School is pleased to announce the Fourth Annual Law & Corpus Linguistics Conference, to be held in Provo, Utah on February 7-9, 2019. The Law School seeks original proposals for papers to be presented at the conference, addressing a broad range of topics related to the emerging discipline of Law & Corpus Linguistics, including (but not limited to), applications of corpus linguistics to constitutional, statutory, contract, patent, trademark, probate, administrative, and criminal law; philosophical, normative, and pragmatic justifications for the use of corpus linguistics in the law; philosophical, normative, and pragmatic criticisms of the use of corpus linguistics in the law; best practices and ethical considerations for the use of corpus linguistics in trial and appellate advocacy; potential applications of corpus linguistics in legislative, regulatory, and contractual drafting; corpus design, especially as it relates to the building of future legal corpora; Law & Corpus Linguistics and statistics; and sociolinguistic insights drawn from corpus linguistics, especially as it applies to the relationship of racial, ethnic, or linguistic minorities to legal and government institutions.

The proposal deadline is October 10, 2018. Proposals should include an abstract of no more than 750 words, an outline of the proposed paper, and complete contact information. Please send materials to James Heilpern at heilpernj@law.byu.edu.

August 21, 2018 | Permalink | Comments (0)

Monday, August 20, 2018

Huge Loss for Appellate Community

Last week the appellate advocacy community lost one of its stars.  Stephen Shapiro, the founder of Mayer Brown's Supreme Court  practice and a well-known advocate before the high court, was shot and killed in his Chicago-area home.  During his impressive career, Shapiro argued 30 cases before the Supreme Court and briefed at least 200 cases.  He was the author of the treatise "Supreme Court Practice."

Shapiro's brother-in-law, John Gately III, has been charged in the murder.  According to the Chicago Tribune, "Gately also attempted to shoot his sister, Joan Shapiro, the wife of the attorney who was killed, authorities said. They said Joan Shapiro had been paying Gately’s rent and providing him other financial support but that the siblings had argued about how he was handling the money."

Our thoughts and prayers are with the Shapiro family during this time.  

August 20, 2018 | Permalink | Comments (0)

Friday, August 17, 2018

Appellate Advocacy Blog Weekly Roundup August 17, 2018

Appellate Advocacy Blog 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). 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:

News about Judge Kavanaugh continues. First, the hearings for Kavanaugh have been set and documents have been released from his time working in the White House. Amy Howe from SCOTUSblog has an update on some of the content found in the over-100,000 pages of released documents. 

Second, Aaron Nielson (@Aaron_L_Nielson) wrote about Judge Kavanaugh and justiciability, concluding "Although not everyone will agree with all of his justiciability opinions, Kavanaugh’s views on the whole strike me as pretty mainstream." This, Nielson states, won't change if confirmed.

Separately, Adam Feldman crunched some serious, interesting numbers about oral arguments at the Supreme Court. His numbers show how many words the justices used and the advocates. Find the article here.  

And, sadly, news broke this week about the death of a great Supreme Court advocate, Stephen Shapiro. Shapiro headed the Supreme Court and appellate group at Mayer Brown for several years. He left Mayer Brown to serve for a time as the deputy solicitor general under the Reagan administration. Read about the incident and possible motives of the man charged with Shapiro's murder.

State Appellate Court News:

The Virginia House of Delegates voted Monday to impeach four justices on the state's highest court. The issues behind the votes presumably began with the cost of renovations in the justices' chambers. The New York Times has this article, and the ABA Journal wrote about it here. One justice announced her retirement following the vote.

Practice Pointers and Tips:

Best of luck to all 1Ls, either those who already started or those who will begin shortly. And, of course, a tip-a-the hat to all law professors. Here's to another great year. 

Elizabeth Cano (@ElizabethCano23) tweeted Rory Ryan's writing style guide. Rory is a professor of law at Baylor Law. 

 

August 17, 2018 | Permalink | Comments (0)

Thursday, August 16, 2018

Thinking Thursdays: Building a Dialogue Between Scholars and Practitioners

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

This is my last post for at least a long while—I will be on sabbatical this semester. What does someone invested in the field of legal writing do for sabbatical? She works to build the discipline. In my case, it’s researching and writing a topic that I hope will be of interest to members of the practicing bar as well as other scholars in the field.

Legal writing is a misnamed field. Scholars and teachers focus less on the mechanics of writing than they do on rhetorical analysis, and the nature of communication as part of client representation. A modern legal writing professor cares less about the sections of a memo than she does about the science of persuasion and the implications for legal advocacy. In this pursuit, the scholar connects with the practitioner. Many, many articles are written for a practitioner audience. I have had the joy of talking about several in this blog, and the bloggers who are taking over after this will be doing the same.

At a recent national conference, a group of legal writing “discipline-builders” sat around and talked about the landscape and trajectory of scholarship. We created a word cloud to capture the dialogue already out there—most of it created in the last twenty years. Here’s what it looks like:

DBWG#3 Wordle shown at 2018 biennial conferenceAs you can see, the conversations is rich, and varied. It's not your Mom's legal writing course anymore. Rather, the dialogue is dynamic and deep. This is an exciting time for scholarship in the discipline. I hope that you will join the conversation. And, thank you for reading these blogs.

August 16, 2018 in Appellate Advocacy, Appellate Practice, Law School, Legal Profession, Legal Writing, Rhetoric | Permalink | Comments (1)

Saturday, August 11, 2018

Of Robots and Law School

Digital-brain

Perspectives: Teaching Legal Research & Writing is one of my favorite journals. It's dedicated to articles about teaching law students (and that is one of my favorite things). The editors put out an interesting call for papers recently. They asked: Will AI change how we teach the law? 

It got me thinking. 

As much as technology is disrupting the practice of law, it has the potential to downright flip the teaching of law on its head. After all, technology not only brings new ways of lawyering—which will change what we teach—but it's also changing how we teach. 

I thought it would be fun to brainstorm a bit. How could just one form of technology—artificial intelligence—change things for us law professors in the next few years? I have a big list, and I think it will be interesting to lawyers and law students, too. 

But first, some vocabulary. I'm confining things here to "artificial intelligence"—technology that aims to mimic human thinking and complete tasks that require human-level intelligence. There is a lot more technology that might disrupt lawyering and legal teaching, like virtual reality or online learning, but we'll leave those for another day. 

Let me say at the outset: AI should be exciting for anyone involved in teaching law students. The realities of today's legal market mean that students need more practical skills. Some smart folks predict that lawyering will become more and more project-based in coming years. The number of solo and small-team practitioners are likely to rise. Our students will need entirely new skill sets. They must be flexible, resourceful, and adaptable. And AI can help us close a lot of skill gaps and empower students in ways never possible before. 

Now to the AI. My running list of ways that autonomous tech will likely change legal education (and it is a running list; I'm sure there are loads more), includes:

  1. We need to prepare students for new AI-related laws;
  2. Students need to know how to deal with the ethical implications of AI;
  3. Students need practical training on new AI legal research tools;
  4. Students need to understand how to use AI-aided drafting and analysis tools (including the shortcomings of these tools);
  5. We need to show students how to deal with AI evidence in court;
  6. We need to give students an understanding of what AI can and cannot do for lawyers
  7. We need to train students fundamental skills for learning and using new technology tools, including those leveraging AI;
  8. We need to learn how to use AI to help us teach better.

First, the obvious change is that AI is already creating new laws that we'll need to teach our students about. For example, autonomous cars are a hot topic for legislatures across the country. But the big changes will come as AI penetrates deeper into the fabric of our civilization: AI investments; AI decision-making about benefits, or hiring decisions—or a million other business matters; autonomous weapons systems; safety regulations for AI; privacy regulations for AI; AI competition regulation; AI workforce regulations; and on and on.  

Indeed, Congress recently introduced the Future of AI Act (H.R. 4625) to broadly consider new AI legislative issues. Several other AI bills have been introduced: the AI Jobs Act of 2018, the Self-drive Act, the AV Start Act, and more. AI-related laws are going to be a bigger deal each year, and to equip our students for the future, we law professors will want to wade into this new doctrinal frontier.

Second, AI poses all sorts of legal-ethics issues. As I touch on below, AI will soon predict the outcomes of litigation with frightening accuracy. How much can a lawyer rely on those predictions in advising a client? In taking particular litigation positions? Can a lawyer solely rely on legal research done by AI (that is probably better than the research most folks do, anyway) and still comply with her ethical demands? What about when a lawyer uses AI to file lawsuits autonomously? 

Next, AI legal research is probably the most obvious way our teaching has already changed. I recently touched on some groundbreaking AI legal research programs in another post. Not only can these tools find cases better than humans, but they can crawl through the data and keep lawyers updated. These programs are already giving attorneys a tactical advantage—at least, for those daring and patient enough to learn them. So what better way for us to support our students than to teach them how to use these tools, too?

Which brings us to the meat: the drafting itself. AI is already offering help here—even on the complex analysis. AI programs can draft contracts, and even divorce degrees, better than us mortals. Take JP Morgan’s COntract INtelligence program, COIN, which analyzes legal document with fewer errors than humans. Or ROSS, which can prepare legal memos with rule discussions that can be plug-and-played into a brief.

Or Judicata’s new tool, Clerk, which picks apart the cases and legal analysis in your brief and then tells you how to do it better. Here are a couple shots of this tool in action. First, the AI plucks out an argument from a brief and gives you some advice:

Case analysis

Here is a snapshot of Judicata’s tool working to analyze the cases a brief uses to support an argument:

Cases strengthOther tools can help not only with analyzing caselaw or arguments—but they can actually predict the likelihood that a particular argument will succeed with a particular judge. Lawyers can equip themselves with insight about what a judge may like in a brief, how opposing attorneys are likely to advocate, and more. Lex Machina, for example, applies natural-language processing to millions of court decisions to identify trends that can be used to help lawyers craft better arguments. The program can do things like summarize the legal strategies of opposing lawyers based on their case histories and determine the arguments most likely to convince specific judges:

LexOther tools, like Premonition, can predict the winner of a case before it even goes to court, allowing lawyers to better advise clients at the outset of a case. These AI briefing and analysis tools can give our students a huge leg up as they enter practice (often opposite lawyers who have no idea these tools even exist).

Next, AI is already beginning to influence the evidence lawyers use in court. AI can process data in new ways, giving us accurate predictions and insights into the world. This will mean that, soon, we will see lawyers using AI to bolster factual evidence, expert valuations, and more. Imagine how much more accurate an AI would be at estimating damages or causation (with its ability to crunch massive sets of constantly-updated data). Some of this is already happening. 

With all of the changes AI is bringing, lawyers (and thus our students), will need to understand enough of how AI works so that they speak the language and argue about its shortcomings. After all, lawyers still need to interpret all the data that spits out of these AI tools. For example, lawyers need to understand how AI can actually magnify data problems and why, sometimes, its conclusions can be undermined by bad inputs. A lot of lawyers hear about some technology tool and exclaim: “oh wow, a company says this analysis is 98% accurate? It must be trustworthy!”

But instead, the lawyer should know enough to at least ask the right questions, like: “Can you show me the set of metrics that this AI analysis used? Why did you select these? Why did you leave out what you did? What process did you use to get your underlying data?”

A related skill that students will need is the ability to discern between the good and the bad of technology. There are tons of new AI and other tech tools released each month, and much of it is garbage. For hapless lawyers who don’t understand what’s under the hood, it can be tough to tell the difference. Even simple best practices—like knowing to do manual quality checks of the results you get from a tool—can go a long way.

Let me give you two final ways AI should change how we’re teaching law. First, students need the basic tech skills that will allow them to research and pick up new AI tools as they roll out. Every tool will be different, with new user interfaces, new options, and new quirks to master. Students need to know the right questions to ask and the basics of how each type of tool work. For example, e-discovery platforms all have a common set of features (like tagging, search organization, and data fields). We can teach students these common features, as well as strategies for how to quickly learn the ins and outs of a new tool, so they don't have to rely on trial and error.

Finally, AI can help us more directly with our teaching. There are so many possibilities here I will just leave you with a couple.

AI analytics can tell us which legal fields are the hottest—allowing us to focus more on those doctrinal areas so that students are better positioned for success.

AI can give us insights into learning data on various dimensions, helping us identify which teaching methods work, how better to structure the learning process, and which teaching strategies are better correlated with learning outcomes. Is a teaching method working? Have an AI review your students work before and after--it will be able to tell you. 

Something I am experimenting with a bit right now, AI can even do some of the teaching itself. Imagine an AI that can give your students live feedback on their legal writing—pointing out improper citations and guiding them in writing a correct one, pointing out grammar problems with examples of how to fix them, pointing out poor headings, poor rule explanations, or poor applications—or problems with formatting or any of a dozen other things we are constantly trying to teach our students (but never have enough time for). And how thankful would our students be for high-quality essay feedback, on demand? 

Look, I know there is some worry that AI programs might take over the world and turn us into their slaves. But in the meantime, AI can do a lot of good for us law professors, students, and lawyers. 

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

August 11, 2018 | Permalink | Comments (0)

Friday, August 10, 2018

Appellate Advocacy Blog Weekly Roundup August 10, 2018

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

 

Supreme Court Opinions and News:

CNN featured an article this week on Ruth Bader Ginsburg's 25 years on the Supreme Court.  Article:  HERE.

A lot of the discussion about the coming hearings on Supreme Court nominee Brett Kavanaugh continue to be focused on his prior statements concerning limits on presidential power over executive branch officials.  NPR had this story this week:  HERE.

Federal Appellate Court Opinions and News:

The 11th Circuit Court of Appeals issued an opinion this week excoriating a lawyer for his "'incomprehensible' complaint and multiple delays" and gave him three weeks to explain why the court should not order him to pay double his opponent's costs of appeal.  The court called the complaint "clearly deficient" and asserted that it was filed to engineer to delay or prevent execution of a judgment of foreclosure.  Article:  HERE.

State Appellate Court Opinions and News: 

Four justices on the West Virginia Supreme Court of Appeals were targeted for impeachment this week.  The four justices are accused of unnecessary and lavish spending on things like office renovations, cars, and computers.  The state's House Judiciary Committee approved 14 articles of impeachment, sending them to the full House of Delegates for a vote likely to take place next week.  Story:  HERE. 

Practice tips and pointers:

On Twitter, Professor Mirya Holman (@prof_mirya) had a great thread with advice about "simple, universal things that make articles easier (or harder) to read."  The advice applies to legal writing generally.  Thread:  HERE.

Also on Twitter, #AppellateTwitter had a discussion providing advice for lawyers prepping for their first oral argument in federal court, delivering a wide variety of great tips.  Courtesy of Matthew Bailey (@mindchangeframe).  Thread:  HERE.

The 2018 Appellate Judges Education Institute Summit is now open for registration.  All the details:  HERE.

August 10, 2018 | Permalink | Comments (0)

Monday, August 6, 2018

Maintaining a proper demeanor

When I teach oral advocacy, I often talk to students about maintaining an appropriate attitude from the moment they walk into the courthouse.  I tell them a story about attorneys who, unbeknownst to them,  insulted the chief judge of one federal appellate court who was trying to help them find a courtroom.  The chief judge, naturally, was not in his robes, and the attorneys obviously had no idea who they were talking to.  I also talk to them about maintaining an appropriate demeanor inside the courtroom.  There should be no eye-rolling or crazy facial expressions while opposing counsel is speaking.  They should also avoid distracting mannerisms while at counsel table (or at the podium).  

Last week, Judge T.S. Ellis III had to counsel some real lawyers on this issue as well in the Paul Manafort trial.  According to the National Law Journal, Judge Ellis scolded "both sides for rolling their eyes or making funny faces."  Judge Ellis told the attorneys to "'Rein in your facial expressions,'" calling their use of expressions "'inappropriate.'"

I find Judge Ellis's admonition interesting (and refreshing).  While facial expressions do very little to persuade a judge in a bench trial or an appellate argument, I have always thought attorneys were given a bit more leeway in a jury trial, like the Manafort trial.  But, it sounds like Judge Ellis,  as the National Law Journal put it, is not "shy about controlling the courtroom" in this case. I suspect that Judge Ellis is doing all he can to avoid the trial becoming a political circus.  I appreciate his admonition to the lawyers, and I plan on using it as an example this fall when I talk to my students about oral argument.

 

August 6, 2018 | Permalink | Comments (0)

Friday, August 3, 2018

Appellate Advocacy Blog Weekly Roundup Aug 3, 2018

Appellate Advocacy Blog 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). 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:

Ruth Bader Ginsburg said she will stay on the Supreme Court for "at least five more years," comparing her age in five years to that of Justice John Paul Stevens when he stepped down at the age of 90. 

On Tuesday, July 31, 2018, the Supreme Court became an eight-member court (for now), as it was Justice Anthony Kennedy's official last day on the Court. The article by Lyle Dennison discusses what retirement might hold for Justice Kennedy. As a reference, here is the letter Justice Kennedy sent announcing his retirement to President Trump. 

Federal Appellate Court Opinions and News:

In case we missed it, the 9th Circuit Court of Appeals held that the Second Amendment protects rights to openly carry a loaded firearm outside the home for the purpose of self-defense. 

Practice Pointers and Tips:

Eugene Volokh has this piece on the development and increased use of the parenthetical "(cleaned up)," which has been interpreted as "internal quotation marks, brackets, ellipses, and citations omitted." It should be noted that Eugene's article recognizes attorney Jack Metzler (@SCOTUSPlaces) for his proposal of the citation's use.  

Bryan Garner's (@BryanAGarner) ABA Journal article this month is about striving for clarity and context when presenting research in emails. 

A UVA law student obtained an assignment to argue in the Fourth Circuit, and a small twitter discussion followed about pointers for one's first oral arguments. 

Appellate Job Postings:

Appellate public defender in North Carolina. The job posting is here

 

 

August 3, 2018 | Permalink | Comments (0)

Thursday, August 2, 2018

Thinking Thursdays: Story Believability

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

Dr. J. Christopher Rideout, at Seattle School of Law wants lawyers to appreciate the elements of narrative plausibility (colloquially: story believability). The believability quotient is affected by whether the proffered story’s structure bears up in its consistency and completeness, and whether the story's substance jibes with the audience's experiences and lessons learned from those experiences. In his Journal of Legal Writing article Storytelling, Narrative Rationality, and Legal Persuasion, Rideout explains that his understanding of what persuades in law has shifted from one grounded primarily in rhetorical models of persuasion to now include narrative models as well.

To be persuasive, a narrative must possess narrative probability and narrative fidelity. Narrative probability is formalistic, in that it is structural. It involves two elements: coherence and correspondence. Narrative fidelity, in contrast, is substantive, focusing on the content. The bulk of rhetorician’s work on the persuasive structure of narratives has focused on the structural features. The way in which a story is told influences its credibility. “regardless of the actual truth status of the story.”[1]

Narrative coherence refers to the way the parts of the story fits together. The story structure should have a cause and effect flow. Having that cause and effect flow makes a story feel feasible—thus, the story that is presented most coherently will be the story that feels the most probable. To be coherent, a story must also be complete—that it contains all of the expected parts of a story. While the audience may be able to fill in some of the elements with inferences, a story that is too incomplete will appear to have logical gaps.

Narrative correspondence. the second formal (structural) requirement, lines up what the audience believes typically happens in the world. As story consumers we are always comparing the story being told with how we have experienced our world’s physical properties or within the audience’s mental storehouse of social knowledge. A story that contradicts the audience’s understandings of how things work will lack plausibility. While the story need not conform precisely to the most-common-flow in a given situation, it must be congruent to how humans react in given situations.

Dr. Rideout spends the second half of the article working through his suggestion that when competing legal narratives have equally compelling story probability, the substantive concept of narrative fidelity may tip the persuasion scales. Narrative fidelity may feel like narrative correspondence but is not structural in nature. The story must present good reasons for belief or action. It must fit with the social norms of the setting and moment in time. Fidelity goes beyond formal inferences to include what one rhetorician terms “communal validity.”[2] The story should have a “tug” to it because it appeals to our lived experiences and the values derived therefrom. Stories that win, do so for the logical construct but also for the substantive fit.   

 

[1] W. Lance Bennett & Martha S. Feldman, Reconstructing Reality in the Courtroom: Justice and Judgement in American Culture, 89 (Rutgers Univ. Press 1981).

[2] Robert Burns, A Theory of the Trial, 217 (Princeton Univ. Press 1999).

August 2, 2018 in Appellate Advocacy, Appellate Justice, Appellate Practice, Law School, Legal Profession, Legal Writing, Moot Court, Rhetoric | Permalink | Comments (0)