Appellate Advocacy Blog

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

Saturday, September 29, 2018

Building Rules Instead of Finding Them


Rules

You have to learn the rules of the game. And then you have to play better than anyone else.

-Unknown

According to recent data, "68% of judges have experienced missing precedent impacting the outcome of a motion or proceeding.” That same data says that 25% of judges complain that the lawyers miss precedent in the majority of cases. Wow.

Those years in law school don't seem to have made much of an impression. All those days reading casebooks stuffed full of cases interpreting cases. All those principles we learned about stare decisis and how the common law works (you know: prior cases being important and stuff). 

This data highlights how far our legal writing has fallen in the rule department. Anecdotally, I sure agree. I clerked for several years for different judges and saw tons of briefs and motions. And I can't tell you how many times a quick Westlaw search turned up key authority that was conspicuously missing from the papers. Or how often the rule sections were made up of little more than copy-and-pasted block quotes from a smattering of cases. 

So let's give some thought to how we explain rules to our judges. In trying to figure out how to help my students pick up these skills, I've come up with four basic steps to crafting better rule sections. 

Step one: Figure your rules out.

Before writing out your draft, find tons of authority and give yourself time to marinate in it all. The goal is to come up with a plan for how all the important rules work. Don't shirk this step. You can't write a good rule section until you know the rules deeply

It's easy to get lost during the research phase. So consider creating two lists to help keep you grounded in what matters: first, a list of the legal questions that you need to tackle in your document; second, a list of all the good facts for your position—as well as the bad ones out against you.

That issue list will prevent you from getting sidetracked on irrelevant questions. The fact list is even more important: because whether a rule can help you hinges entirely on the facts of your case. If you don't have the facts to support a rule or interpretation of a rule--the rule is useless. With these lists in hand, you'll have a much easier time with the research and planning. 

Once you find the raw authority you need and a general plan, you can start crafting what you'll need to persuade: a set of specific, bite-size legal principles that address all the good and bad facts for you—answering the key legal questions on your plate. These refined rules should tell your reader precisely how the law works so that--later--it will become obvious that your facts come out on the winning side.

To refine these specific rules, two tools may be helpful: a carving tool and a honing tool. First, carve up the rules into small, easy-to-understand chunks. This will make your rules a lot easier to digest and apply.

Second, hone your rules with specific guidance that shows your reader how the facts fit into the rule’s crevices. This is the essential step in the refinement process. If you don’t hone your rules so that your reader knows where to slide in the facts, you face a real risk of losing. Because the judge may end up applying the rules to the facts in ways you didn't anticipate. 

Crucially: you should create these special refined rules only for the key legal issues that you think you might lose on. Don’t go through all this work for some uncontested or easy issue. When your research suggests that you could lose on a point, that’s when you bring out the refined rules.

To make this step concrete, let's take a quick example. 

Say that you have a battery case. The defendant purposely flew a drone towards your client in the park, the drone struck your client’s backpack, and the backpack then flipped up and cut your client’s forehead. The bad facts become obvious: the defendant didn't actual touch your client--a drone touched his backpack. 

You do your research and realize that only the contact element is a possible loser for you. Let’s say you find several helpful cases and brainstorm two refined rules on this point—carved into two separate principles and honed to specifically address your facts:

Making contact with something the plaintiff is carrying on his body qualifies as contact.

And:

Putting something into motion that makes contact is enough—defendants need not touch their victims themselves.

These specific, bite-sized rules tell your judge precisely how to deal with the bad facts in your case. 

Step two: tell your reader—clearly—what each of your refined rules are.  

Research and planning done for now, start writing. This is where you should take all that amazing work you did in carving up and honing your rules and put it to use. You get to tell your reader about each of your refined rules.

Make these refined rules extra obvious in your document. After all, you don’t want your reader to miss them. You can do that by

  • introducing them in the introduction or summary of the argument;
  • echoing them in the beginning of your sections throughout, and
  • clearly stating each one in the first sentences of the rule paragraphs that you ultimately use to explain the rules in detail.

When you get to the detailed rule explanation, it’s important to lay out your refined rules simply and sensibly. 

First, give your specific rules some context by providing background. Then discard any parts of the rule that don’t matter. Finally, show your reader what you came up with for the important parts of the rule: the specific, bite-sized rule interpretations that you carved up and honed.

Taking our example from earlier: 

Battery includes four elements: an (1) intentional (2) contact (3) with another that is (4) harmful or offensive [the background rule for some context]. There is no dispute that the defendant acted intentionally or that plaintiff was harmed [cutting away the irrelevant parts of the background rules].

Contact does not merely include touching someone with your hand, it also includes both (1) making contact with something the plaintiff is carrying, and (2) putting something into motion that makes contact [the specific, bite-size rule interpretation that will help the judge deal with the bad facts out on you].

You’ve now cut up your black letter rule into the two specific rules that matter for your facts. And if the court agrees with them: you already know how your facts will apply. 

Step three: Persuade the judge to adopt your refined rules.

At this point, your judge should understand your specific interpretation for how the rules work. But she may still be suspicious. Are these really the way the rules work? So you must prove your craftmanship: show your reader why your carved and honed your rules the way that you did.

This is a tough skill to master. The idea is to use all sorts of tools to interpret the authority and convince the judge that your view of the rules is the only one that makes sense. In some ways, you are showing off so that the judge will want to steal your reasoning. 

You have many tools in your toolbox to persuade readers to follow your refined rules. Here are a handful to think about:

  1. Quotes from cases. Use specific quotes to illustrate how rules work or apply.
  2. Comparing language from different cases. This is a classic: comparing language or facts used in different cases. Compare to your own (to support or distinguish) or to others.
  3. Contradicting language. Suggest a court did not really mean what it said by pointing to contradicting language within that same case, or from other relevant cases. Even if language just seems inconsistent, that is enough to plant a seed of doubt.
  4. Full fact-to-fact explanation of cases. Compare specific facts from prior cases to your case. Often, it’s best to try to compare an actor in an authority case to an actor in your case.
  5. Analyze the quality of cases.  This is a crucial, and often ignored, set of persuasion tools. All sources are not created equal. Consider the age of the case, thoroughness of reasoning, what court it came from (mandatory? reputable?), who wrote it, the level of the court, how other authorities have treated it, whether published, how many judges signed on.
  6. Identify a line of cases and discard them all in one swoop because of an earlier case that was wrong or of poor quality. This is a great one when facing a daunting line of cases that are against you. 
  7. Argue based on which facts a case emphasized most, or emphasized least, or ignored.
  8. Argue about why a court was silent about a fact or rule, despite that it was relevant or obvious.
  9. Argue a case distorted the previous rule of law. Identify the inherited rule in a case (the rule as it was before the case) and the processed rule (the rule after the case has applied the rule to facts).
  10. Argue about the broadness of the rule. Did the case narrow its holding to certain triggering facts, or are there broader principals?
  11. Explaining where the rule came from or its original purpose can help prove your rule interpretation.
  12. Other similar statutes, laws, etc.—how they work, how they’re applied or interpreted—can all shed light on your rule interpretation.
  13. Similarly, fundamental legal principles can help: like equity, basic rules about intent, basic rules about causation, and more.
  14. Legislative history: how did the legislature intend for this rule to operate?
  15. Textual interpretation canons, when interpreting statutory rules. Know the big ones, like textualism, prior antecedent, etc.
  16. Policy. Do this after the law. But policy is powerful. There are tons of policy arguments—from the less controversial, like clarity for future litigants, to the more controversial, like fairness to one of the parties. Fold policy in subtly after the legal analysis is through. And give some thought to which policies might be most persuasive to your judge.
  17. Common sense. Judges use theirs, so you should, too. What is the most sensible interpretation of the rules?

To finish up our example, using a couple of these tools:

        Battery includes four elements: an (1) intentional (2) contact (3) with another that is (4) harmful or offensive. [Cite.]. There is no dispute that the defendant acted intentionally or that plaintiff was harmed.

        Contact does not merely include touching someone with your hand, it also includes both (1) making contact with something the plaintiff is carrying, and (2) putting something into motion that makes contact.

        Defendants need not make contact with the plaintiff’s skin to carry out a battery—contacting something on the plaintiff’s body is enough. True, the only supreme court case on point involved a punch, but that case is 40 years old [quality]. Cite. And there is no language in that case suggesting that other sorts of contacts do not qualify [facts ignores]. Cite. Other district courts facing this same issue have held that “contact within anything the plaintiff is holding is enough.” [quote] Cite. In Park vs. Hoffman, for example, the defendant was found liable for battery after ripping a plate from the plaintiff’s hands [factual explanation]. Cite.

A final note: Often ignored citation basics.

Remember that if you cite authority you must either be quoting the source or directly paraphrasing it (saying precisely the same thing in slightly different words). If your reader needs to make any inference to agree with your underlying sentence, you need a signal, to make the inference obvious, or to cut the citation altogether and rely on your own credibility.

Say you write this: “Defendants need not touch the plaintiff’s skin to carry out a battery—touching something laying on the plaintiff’s body is enough. Park vs. Hoffman, 324 F. 3d 42, 44 (9th Cir. 2018).” When your reader pulls up page 44 of Park, it better say something like “A defendant contacts another by touching any item on the plaintiff’s body.” Different words, but precisely the same meaning.

If your reader must infer—say, you assume that this was the court’s reasoning based on the facts in the case, or you’re reading between the lines of some language and what the court didn’t say—you can’t just cite the case. You need a signal (like See) or to provide some more explanation to the court about what inference your making. And let me say, the see signal is not always so helpful because you’re asking your reader to do the inference work for you. So avoid that option.

One option is to explain your inference directly: 

Given that the court in Park addressed a defendant who ripped a plate from the plaintiff’s hand, contact with the plaintiff’s skin is not needed. Park vs. Hoffman, 324 F. 3d 42, 44 (9th Cir. 2018).

Your citation is not misleading because you’re telling your reader what inferences you’re relying on. You could also interpret the rule in your own words, then explain the supporting facts or quotes with citations: 

Contact with the plaintiff’s skin is not needed. In Park, the court address a defendant who ripped a plate from the plaintiff’s hand. Park vs. Hoffman, 324 F. 3d 42, 44 (9th Cir. 2018).

Now you are telling the judge that the first sentence is your inference, the second is a direct paraphrase of the fact section of the case. All good.

Joe Regalia teaches at Loyola University School of Law and practices at King & Spalding LLP in Chicago. The views he expresses here are solely his own and not intended to be legal advice. Check out his other articles here

September 29, 2018 | Permalink | Comments (0)

Thursday, September 27, 2018

Thinking Thursdays: Using Screenwriting Techniques to Tell More Compelling Stories

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

***

Storytelling is an integral part of a lawyer’s work, particularly for appellate lawyers. One critical aspect of effective storytelling is structure—and when it comes to structuring an effective story, lawyers can learn a little something from screenwriters.

In Teresa Bruce’s forthcoming article in the Journal of Legal Writing Institute, The Architecture of Drama: How Lawyers Can Use Screenwriting Techniques to Tell More Compelling Stories, Professor Bruce proposes that “lawyers build their stories in the same way Hollywood writers do.” Just as screenwriters follow a formula, lawyers should do the same: as IRAC is to argument sections, SCOR is to fact sections.

Professor Bruce’s article builds on existing storytelling literature, which approaches narrative theory from several different perspectives. The structural perspective uses a pragmatic or pedagogical approach, arguing that “[a] large part of telling an effective story is the order in which the reader presents information.”[i] Scholars in this area argue that an effective story structure helps judges and juries understand and remember information, and the story that flows most logically will be the story that seems most probable. As a result, good story structure can increase a client’s chance of winning.

Professor Bruce’s article takes the structural approach to narrative theory a step further by introducing the SCOR structure. Many lawyers will be familiar with the writing stages identified by Professor Betty Flowers: Madman, Architect, Carpenter, Judge. The Architect stage is where writers focus on “large, organizational, paragraph-level thinking.” The SCOR template gives writers a “flexible, generally applicable template they can use each time they tackle a new case.” This enables “lawyers to skip the Architecture stage entirely when writing a facts section (as IRAC enables them to do when writing an argument section).” Ultimately, Professor Bruce’s hope is that using SCOR will make it easier for lawyers to write their clients’ stories more coherently, which will result in clearer, more compelling, and more convincing stories.

So, what is SCOR? To explain SCOR, Professor Bruce begins with the classic three-act story structure, “the basis of Western storytelling.” Act I, the Setup, establishes the protagonist’s “status quo.” Act II, the Confrontation, breaks the status quo and takes the protagonist on a journey to a point of climax. Act III, the Resolution, introduces the protagonist’s “new normal” and resolves any unanswered questions. Taking this basic story structure a step further, advanced story structure builds additional milestones into each act to create an overarching “story arc” that provides “rising tension throughout the first and second acts and falling tension during the third.” Professor Bruce illustrates both the basic and advanced story structure through a classic movie, The Wizard of Oz.

Professor Bruce then translates this traditional formula into legal writing: Setup, Confrontation, Outcome, Resolution, or SCOR. As in advanced screenwriting, within each act, additional milestones help to give the story added structure and keep audience members engaged.

First, the Setup, Act I, humanizes the client by establishing the client’s life and status quo before the “bad event” of the litigation. Second, the Confrontation, Act II, is the “meat” of the story—it introduces the client’s antagonist and sets out the pivotal (i.e. outcome-determinative) facts. While the opposing party will often be the antagonist, for some clients, the antagonist will be subtler. For example, for less-sympathetic clients, the antagonist might be “mental-health problems, addiction, childhood trauma, or poverty.”

The third and fourth components of the story are the Outcome and the Resolution, Act III. The Outcome is “the end of the protagonist’s quest,” while the Resolution is “where the audience gets closure.” This is the most difficult section for legal writers because a “lawyer cannot simply resolve her client’s story . . . the way a screenwriter can.” Instead, the lawyer may invite closure by inviting “the judge or the jury to resolve the storyline in a way that favors the client.”

To illustrate how this structure works and why it is effective, Professor Bruce uses the statement of facts in the Petition for Certiorari in Miranda v. Arizona. This statement of facts helps illustrate the SCOR structure, but also shows how the structure “can work even for a largely unsympathetic defendant, one who has been convicted of a violent crime.” In addition, Professor Bruce points out that other landmark briefs use a similar story structure.

I encourage practitioners, legal writing professors, and law students to read Professor Bruce’s article. In the article, she provides a more in-depth discussion of advanced storytelling structure, including the milestones within each act. SCOR provides a practical, accessible, and memorable way to help lawyers incorporate storytelling into their legal writing. And if lawyers can make their clients’ stories more accessible to their audiences, those stories will hopefully also be clearer, more compelling, and more convincing.

Special thanks to Alison Doyle for her help with this blog post.

[i] Brian J. Foley & Ruth Anne Robbins, Fiction 101: A Primer for Lawyers on How to Use Fiction Writing Techniques to Write Persuasive Fact Sections, 32 Rutgers L.J. 459, 475 (2001).

September 27, 2018 in Appellate Advocacy, Appellate Practice, Federal Appeals Courts, Film, Law School, Legal Profession, Legal Writing, Moot Court, Oral Argument, State Appeals Courts, Television, United States Supreme Court | Permalink | Comments (0)

Monday, September 24, 2018

Advocacy Before the Eleventh Circuit: A Clerk’s Perspective

Today we are featuring a guest post from Kevin Golembiewski.  Kevin Golembiewski and his colleague, Jessica Arden Ettinger, recently posted a law review article, Advocacy Before the Eleventh Circuit: A Clerk’s Perspective, on the Social Science Research Network.  This post previews the article.

From 2015 to 2017 I served as a law clerk to the Honorable Charles R. Wilson of the United States Court of Appeals for the Eleventh Circuit.  For those two years I was part of something much bigger than myself.  The Eleventh Circuit is not simply a collection of appellate judges—like every appellate court, it’s an institution, with its own unique history, practices, and traditions. 

Attorneys who practice before the Eleventh Circuit should keep this in mind.  Effective advocacy requires recognizing and taking into account the court’s distinct characteristics and institutional features.  For example, the court affords Federal Appendix decisions limited weight, so attorneys should avoid relying on them.  Also, as one of the nation’s busiest circuit courts, the court assigns most appeals to a non-argument calendar, so attorneys should approach briefing as if it’s their only opportunity to persuade the court.

To help attorneys navigate the Eleventh Circuit’s unique institutional features, a former co-clerk, Jessica Arden Ettinger, and I recently wrote an article providing advice that is tailored to the court.  In the article, Advocacy Before the Eleventh Circuit: A Clerk’s Perspective, Jessica and I offer our views, as former clerks, on how to draft a compelling brief and present a persuasive oral argument to the court.

We begin the article by examining the Eleventh Circuit’s history, caseload, and decision-making process.  In 1981, Congress split the old Fifth Circuit, creating the current Fifth Circuit and the Eleventh Circuit.  It assigned twelve judgeships to the Eleventh Circuit.  Although the court’s caseload has drastically increased since 1981, it still has just twelve judgeships.  Even so, the court resolves appeals expeditiously.  The median time between a notice of appeal and a decision in the Eleventh Circuit is just 8.6 months, compared to 9.9 months in the Fifth Circuit and 14.7 months in the Ninth Circuit (the Fifth and the Ninth Circuits are the only two circuit courts with larger caseloads than the Eleventh Circuit).  The court achieves this quick turnaround time by utilizing a Staff Attorney’s Office, maintaining a non-argument calendar, and inviting judges from other courts to sit on oral argument panels.  In the article, Jessica and I discuss how these case-management techniques shape the court’s review process.

After introducing the Eleventh Circuit, Jessica and I offer advice on drafting appellant briefs, appellee briefs, and reply briefs.  In addition to providing advice specific to each type of brief, we offer advice applicable to all of them.  In our view, the first step in drafting any Eleventh Circuit brief is to understand the court’s norms and expectations.  There are two norms that the court prioritizes: collegiality and candor.  The court expects collegiality among its judges, district court judges, and members of the bar.  Disparaging the district court, an adversary, or a prior panel’s decision will undermine a brief’s credibility.  The court also expects candor.  It has thousands of cases to resolve each year—briefs must get to the point and be frank about the appeal’s issues, facts, and applicable law.  Grand assertions about an appeal’s legal significance and attempts to spin the facts and the law will backfire.  As former Chief Judge of the Eleventh Circuit Joel Dubina once said, “A lawyer should not embellish and exaggerate in the Eleventh Circuit.”

Jessica and I conclude the article by offering tips on presenting oral argument to the court.  The court takes a pragmatic approach to oral argument, hearing argument only when it will help the panel decide the appeal.  This pragmatic approach informs our advice.

Clerking on the Eleventh Circuit was one of the best experiences that I’ve had as a lawyer.  It is an institution that I will always revere.  I hope Jessica and my article serves as a useful guide for those who have the privilege to practice before the court.

September 24, 2018 in Appellate Advocacy, Appellate Practice, Federal Appeals Courts | Permalink | Comments (0)

Friday, September 21, 2018

Appellate Advocacy Blog Weekly Roundup Friday, September 21, 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).

North Carolina Bar Association announcement:  The North Carolina Bar Association, FEMA, Young Lawyers Division of the ABA, and Legal Aid of North Carolina, with support from the North Carolina Bar Foundation, are collaborating to provide immediate pro bono legal assistance to survivors of Hurricane Florence through the North Carolina Disaster Legal Services program.  More details and information about how to volunteer are available HERE

 Supreme Court Opinions and News:

 “Supreme Court Sleeper Term Could Have Far Reaching Effects” – article from Bloomberglaw discusses that this might be “the year of the ‘sleeper’ case at the U.S. Supreme Court” with a significant number of cases that are low-profile, but with potentially far-reaching implications.  

Kavanaugh Confirmation News:

Washington Post Column by Margaret Sullivan (@Sulliview) offering perspective that the sexual misconduct allegations raised against Kavanaugh are not a suspicious 11th-hour bombshell because we are not in the 11th-hour.  

Kavanaugh and his accuser have both indicated a willingness to testify concerning the allegation of sexual misconduct in Kavanaugh’s past.  Washington Post; New York Times; LA Times.

Last week, after the allegations of sexual misconduct in Kavanaugh’s past surfaced alleging that he had attempted to sexually assault a woman while in high school, supporters of Kavanaugh presented a letter from a number of women Kavanaugh went to high school with who indicated that the allegation was inconsistent with the Brett Kavanaugh they had known.  Now, more than 200 other women who went to high school with him have signed on to a letter indicating that the allegations are “all too consistent with stories [they] heard and lived while attending” high school with Kavanaugh and indicating that “[m]any of [them] are survivors [them]selves.”  

Federal Appellate Court Opinions and News:

Reuters has an analysis of President Trump’s appointment of judges to the federal judiciary (including the federal appellate courts) at a record pace and how it may tilt the ideological balance on several appeals courts in a more conservative direction.  

State Appellate Court Opinions and News:

The 2017-18 term marked the end of an era at the Iowa Supreme Court, when Justice Bruce Zager retired and former District Judge Susan Christensen was appointed to replace him.  That was the first change in personnel in the Iowa Supreme Court in nearly a decade, after Iowa voters removed three justices in a retention election.  See more here.

Practice Pointers:

The September 2018 edition of Appellate Issues, a publication of the ABA Council of Appellate Lawyers, is now available HERE. It contains a summary of the programming from the 2017 AJEI Summit from last November.  Relatedly, registration is now open for the 2018 AJEI Summit to be held in Atlanta in November, HERE. This year’s Summit will feature a panel with Chief Judge Dillard moderated by Howard Bashman/ How Appealing.  HT: How Appealing.

 

September 21, 2018 | Permalink | Comments (0)

Thursday, September 20, 2018

Must a judge write her own orders?

A retired judge in Iowa recently defended himself in a hearing of a contested order by saying, "I didn't write this thing." A review of Judge Edward Jacobson's rulings found that he had failed to notify the parties in 13 cases where he had signed proposed rulings written by lawyers (presumably the lawyer involved in the litigation). Judge Jacobson said he believed it was common practice to have the lawyers in the case write the orders.

I think the judge is correct - it is common practice for the court to ask one of the attorneys to write orders at various stages of any case. The difference is that this is usually common knowledge to the parties involved in the case, and opposing counsel is consulted before submission of the proposed order, or at some stage before the order becomes final. The request for the order writing is usually done in the presence of both attorneys, so all parties are fully aware of the plan. This was not done in several of Judge Jacobson's cases.

This practice raises a question though, should this be the practice at all? Why is it that the work emerging from a judge's chambers is primarily drafted by a lawyer involved in the litigation? Isn't a judge who does this just shifting her workload to the lawyer who will presumably bill the client for the time spent drafting an order? Or is it proper and more expedient for the lawyers in the case to do it themselves? They are better acquainted with the intricacies of the issues that must be addressed in any order, and would be ready to critique a judge-drafted order that missed important items anyway, which would slow down the process.

At first glance, having the lawyer in the case write the order seems to undermine the ethics of an unbiased system. Each lawyer will have an interest in writing an order most favorable for their desired outcome, and in fact these orders are frequently (always?) written by the prevailing side in the dispute. A prevailing (and unethical) lawyer may try to sneak in some traps or pitfalls for the other side, but it should at least be assumed that the order will include language that will advantage the winner. Without review by the adversary, an order like this does present ethical problems and the process should not be condoned.

However, if we agree that an efficient judicious process carries weight, it may be appropriate for the practice of lawyer-written orders to continue with certain conditions. First, opposing counsel must be fully aware of and have the opportunity to participate in the process and make objections. Second, the judge who will sign the order must use due diligence and use her position of neutrality to evaluate every order for accuracy and legality - even if no issues have been raised by the side who did not write the order. Finally, the judge must be prepared to take ownership of the order and at no time try to pass off responsibility for the effect of a poorly written order. 

One final admonishment is necessary too for the lawyers involved in these situations: Always consult opposing counsel before submitting a proposed order to the court. This will save time in the case that the order is contested, and more importantly, this will have the effect of bolstering collegially and trust in the bar. Even if the judge doesn't direct a lawyer to share the proposed order with the other side, a lawyer should remember her obligations to a fairly administered justice system. That includes giving the other side a chance to be informed and an opportunity to be heard in the final decision.

September 20, 2018 in Legal Ethics | Permalink | Comments (1)

Monday, September 17, 2018

Mugel Tax Moot Announcement

The Mugel Tax Moot is back in Buffalo!

Hosted by the University at Buffalo School of Law for more than thirty years, the Mugel Competition is the oldest national tax moot court competition in the United States. Each year, the Mugel Competition gives law students from across the nation an opportunity to demonstrate their proficiency in oral advocacy and brief writing on a cutting-edge issue of federal tax law and policy.

This year, the competition will be held on March 9, 2019, at the University at Buffalo School of Law. For more information, and to register your team, please follow this link: Albert R. Mugel Tax Law Moot Court Competition, or contact Patrick J. Long at pjlong@buffalo.edu.

September 17, 2018 | Permalink | Comments (0)

Saturday, September 15, 2018

The Pitfalls and Power of the Paragraph

Paragraph

 For the speedy reader, paragraphs become a country the eye flies over looking for landmarks, reference points, airports, restrooms . . .

—William H. Gass


Years ago, I listened to a lecture by Dr. Brooks Landon, a well-known writing professor at the University of Iowa. The lecture was mostly about sentences, but about halfway through, Dr. Landon started talking about something else: the paragraph.

Honestly, I hadn't given paragraphs much thought before then. I knew that they shouldn't be too long, nor too short. I knew that each sentence within one should loosely relate to a single idea. And I knew that you indent the first sentence. I thought that was all there was to know. 

Those are great starting points, but as I learned that day, there’s a lot more to it. Paragraphs are powerful. And how you choose to craft them will profoundly change not only the readability of your writing—but its persuasiveness, too. 

To see why, think about what paragraphs are. Bryan Garner says that “[g]ood writers think of the paragraph—not the sentence—as the basic unit of thought.” I agree.  I like to think of them as the smallest units of persuasion. 

It takes some real inertia to persuade someone about a point. A word isn't going to do it. Nor is a sentence, no matter how pithy. But string a few sentences together that build on each other just right, and you can convince someone of a small idea. Persuade your reader about enough small ideas—layering one after the other—and boom, your reader is sold. 

To leverage the power of the paragraph, I have two buckets of tools for you. The first is a set of basics that will ensure your paragraphs are always doing their job. The second includes more advanced techniques to power up your paragraphs to another level. 

Toolbox 1: Paragraph basics. 

  1. Most importantly, know that the easier you make it for your reader to figure out a paragraph’s single main point, the easier it will be for them to remember it and be persuaded.

After all, your legal document probably has a lot of paragraphs (read: lots of small ideas for your reader to keep clear in their mind). How many ideas can they hold in their head at the same time? Not many. But how about if those ideas are blurry, convoluted, or mixed up with other ideas? Fewer, to say the least.

So make sure each of your paragraphs have a single, easy-to-see and easy-to-digest idea. The best way to do that is to get meticulous about the beginning sentence or two of your paragraphs.

Everyone knows that you should start paragraphs with a topic sentence: A sentence that introduces your reader to the general topic of the paragraph. But good legal writers take this a step further and open with a thesis sentence: A sentence that captures the persuasive point of your paragraph, often by previewing key facts, words, or phrases from the paragraph’s meat. This tact has the added advantage of persuasively priming your reader for the detailed pitch coming in the rest of the paragraph. 

This thesis sentence allows you to spoon feed the persuasive point of your paragraph in a single, easy-to-digest package.  Legal writers often struggle with the introductions to their rule paragraphs in particular—diving straight into the dense details before giving the reader the persuasive point that the paragraph is trying to drive home. Good thesis sentences will help.

Look at how this Justice gets to the heart of a paragraph with a first sentence—and offers a brief mention of how this point fits into the document. You don't even need to keep going to get the point:  

To begin, however, we reject any analogy between the NLRA—which is about process—and Title VII—which is about substance. [insert sentences detailing NLRA’s process focus and Title VII’s substantive focus]. 

You could imagine a blander topic sentence:

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

Or even worse, a first sentence that dives into the details without any preview at all: 

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

What about if your paragraph has more than one main idea? That’s a problem. I like to tell my students: if a point is not important enough to build a paragraph around it, it probably isn’t worth wasting a busy judge’s time with that point. We legal writers don’t have the luxury of drowning our readers with ideas. We must pick the ones that really matter and make darned sure that those ideas are easy to find and easy to remember. And filling a paragraph with multiple ideas just dilutes each of them.

So if a point is worth making, use a cohesive paragraph to prove it. If you can’t write a cohesive paragraph around a single, identifiable point written out in a thesis sentence—then snip the whole thing. 

One final aside on thesis sentences: sometimes you need to use the first sentence of a paragraph to transition from a prior paragraph or section. That’s fine. The real thesis sentence can be the second one (or part of the first sentence and leading into the second). The point is just to have an obvious, clear preview planted at the beginning of each paragraph.

  1. Give some thought to the length of your paragraphs. 

Some folks offer concrete guidelines for how long a paragraph should be. I've seen all sorts of recommendations, from 3-4 sentences to as many as it takes to explain a point. But based on the bulk of authority and my review of lots of great writers, I suggest the following yardsticks.

Break up a paragraph if it goes on for much longer than half a page. When you approach page-long paragraphs, readers may be scared off. And let's be real: if your paragraph is that long, it’s probably hiding at least a couple big ideas and needs to be broken up with separate thesis sentences anyways.

Bryan Garner suggests an average of 150 words—which is a nice aim. As he points out, during the 20th century paragraphs shrunk considerably across the board, and readers are now comfortable with that style. Not to mention that cognitive science supports smaller, easier-to-digest points (which would suggest that smaller paragraphs are better). 

      3. A couple of other basics to keep in mind.

Aside from capturing the persuasive point, your initial sentence will often need to transition from the prior paragraph and lay out the organization for your coming paragraph. 

And be consistent in point of view, verb tense, and number. If you shift subjects too much within the same paragraph, or use different tenses, like mixing present and past, or shift between plurals and singulars—these will all make your readers stumble. 

Toolbox 2:  Some more advanced tools that can make paragraphs particularly persuasive. 

  1. Use care when picking which sentences to mix together in a paragraph.

Paragraphs are powerful for persuasive writers because they allow you to mix together component words and sentences to create ideas that are greater than the sum of their ingredients. It’s like a recipe. Put the wrong thing in the paragraph and the dish will be off.

Take these few sentences. Watch what happens to the ideas when I change nothing else but which paragraph pot the sentences are plopped into: 

The defendant knew what he was doing when he shot the officers that day. He picked up his gun from his friend’s house before he left for work. He even made sure he had extra bullets stashed in his waistband. The defendant then arrived at the grocery store, gun drawn. He shot the teller three times. When officers approached him, he shot them, too.

Vs.

The defendant knew what he was doing when he shot the officers that day. He picked up his gun from his friend’s house before he left for work. He even made sure he had extra bullets stashed in his waistband.

The defendant then arrived at the grocery store, gun drawn. He shot the teller three times. When officers approached him, he shot them, too.

It’s subtle, but by taking those last three sentences out of the first paragraph, you suddenly evoke two very different scenes. First, the preparation, building the suspense about what’s coming. Then the actual act. Playing around with which sentences go where can achieve tons of different effects.

  1. Vary your sentence length and structure within each paragraph.

Vary your paragraph length. Paragraphs create a cadence to your writing, just like sentences do. Varying your paragraph length (mostly shorter, some extra short, some a bit longer) will make your writing engaging and easier to follow.

Try to vary the sentence structures, too. Sprinkling in a semi-colon or em-dash sentence can increase readability. Just don’t overdo it. If a paragraph is full of complex constructions, it’s going to become dense reading. Just use a dash of punctuation spice.

  1. Craft your paragraphs with a sense about the places of emphasis.

Most folks agree that the beginning and end of your paragraphs are the most important. That is why it’s so important to craft that first thesis sentence persuasively to prime your reader.

But it’s also why you should put the important stuff in the last sentence or two as well. That’s what your reader will remember. So drop that crucial fact or pithy phrase right at the end.

  1. The short sentence punch.

You don’t want to use this one in every paragraph. But occasionally, when you really want your reader to slow down and pay attention, include an extra short sentence (even a fragment) to make a point unmissable.

An example is Justice Roberts’s famous short-sentence punch:

Substituting one decisionmaker for another may yield a different result, but not in any sense a more “correct” one. So too here.

  1. Burying bad stuff in the middle: primacy and recency.

The places-of-emphasis concept also suggests something else: that bad information should be pushed towards the paragraph’s middle. So when your paragraph is touching on some bad facts or bad law, move those points to the center sentences, if possible. That way your reader begins and ends with your more favorable ideas. 

  1. Make sure that each of your paragraph’s sentences are tightly connected to each other.

Starting with the thesis sentence, each sentence should seamlessly connect to the next. Catherine Cameron and Lance Long’s book, The Science Behind the Art of Legal Writing, reviews the research showing that readers find it much easier to follow paragraphs if each sentence follows the next sequentially. 

Walking through all the sorts of transitions you can use is too much for this article. But remember that for your readers, the links between each sentence are much more obvious to you than they are to them. Use transition phrases, echoed words or phrases, or pointing words (like “this plan” or “that test”) to make the links from sentence to sentence extra obvious.

  1. Finally, the occasional one-sentence paragraph is perfectly fine.

Bryan Garner, John Trimble, and others all say so. One-sentence paragraphs should probably be viewed as a finite resource: a tool to emphasize a point or two in a document, but not a technique to use frequently in the same document. 

But they can pack a punch when used right.

Joe Regalia teaches at Loyola University School of Law and practices at King & Spalding LLP in Chicago. The views he expresses here are solely his own and not intended to be legal advice. Check out his other articles here

 

September 15, 2018 | Permalink | Comments (0)

Friday, September 14, 2018

Appellate Advocacy Blog Weekly Roundup Friday September 14, 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:

Adam Liptak (@adamliptak) of the New York Times related that Justice Ginsburg was asked "if any current justice can do more pushups than she does." Her reply: “Maybe Justice Gorsuch." And then she added, "Our Chief is a possibility." See his Twitter post here.

Federal Appellate Court News:

 

When President Trump was campaigning for the presidency in March 2016, an incident occurred where protestors were instructed to leave a rally and evidence of violence occurred. Those protestors lodged complaints and appeals followed. An appeals court tossed the lawsuits this week. Read about the case here.

 

A federal district court will review challenges to the Affordable Healthcare Act. Although not dealing with appellate matters at this point, it will likely hit the appellate forum once the district court decides. According to the Balkinization blog, the judge disregarded many amicus briefs authored by stakeholders in the healthcare industry.

 

Practice Pointers and Tips:

 

To surreply or not to surreply? The answer depends on the local rules, so found The Court of Appeals for the Seventh Circuit.  The court ruled recently that a party may waive arguments on appeal by failing to file a surreply allowed by right. The court ruled in favor of a defendant where the plaintiff did not counter with a surreply when the case was before the trial court. The appellate case can be found here. And the ABA's piece about the case can be found here.

 

 

  

 

 

 

 

September 14, 2018 | Permalink | Comments (0)

Thursday, September 13, 2018

Thinking Thursdays: ALWD Guide to Legal Citation -- the Sixth Edition is better than ever.

Abigail Patthoff, guest blogger, Professor of Legal Writing, Chapman University Fowler School of Law

When the much-anticipated ALWD Citation Manual: A Professional System of Citation was first published in 2000, it was heralded by many as the answer to the legal citation woes of so many law students, law professors, and practitioners.  An end to the tyranny of The Bluebook! A coup de grace!  

And indeed, the manual delivered a citation system that was as user-friendly as The Bluebook is daunting. In doing so, in addition to offering more example formats, more navigable organization, and a more approachable book design, the manual also set out to improve upon the substance of the rules themselves. Most significantly, early editions of the manual eliminated The Bluebook’s double set of rules calling for different citation formats for practitioners’ documents and academic articles. The purpose was sensible – to offer a single, consistent set of rules that operate across all settings and to prioritize the kinds of citations being used in legal practice rather than legal academia.

Many legal writing programs in law schools across the country adopted the manual and a number of courts followed suit, adding the ALWD Citation Manual as a permissible alternative system of citation for court filings. Despite early enthusiasm for the ALWD Citation Manual, however, in the 18 years since its initial publication, it has not unseated The Bluebook as the most popular most widely used legal citation manual. Early adopters – myself included – met with pushback from students and colleagues about the differences between the rules in the ALWD Citation Manual and The Bluebook. Would 1Ls be adequately prepared to serve as editors of school law reviews, where The Bluebook remains entrenched? Would a generation of law students schooled in the ALWD Citation Manual be prepared to enter a practicing bar where The Bluebook was still the standard?

Under some pressure, I switched back to teaching The Bluebook. And I didn’t look back until I joined the editorial board of Legal Communication and Rhetoric: JALWD, a peer-reviewed journal, when I was assigned to do a cite check of certain journal submissions. Legal Communication and Rhetoric: JALWD requires ALWD citation format, so for the first time in four or five years I picked up a copy of the ALWD manual, which was now in its 6th edition. And it was a breath of fresh air. There was the user- and learner-friendly formatting I’d remembered, but even better. Fast formats! Charts! Abundant examples! But even more notable was this announcement, quietly made in the preface to the 5th edition: based on the feedback of ALWD members who “urged that ALWD modify its rules to acknowledge” the “staying power of certain scholarly traditions in legal citation” the ALWD Citation Manual underwent significant revision. In other words, the ALWD manual now contains no significant differences in the substance of its rules from the “traditional” rules in the most current edition of The Bluebook. As the Legal Writing Prof blog put it in a brief post acknowledging the publication of the fifth edition, “You'll no longer see differences between citations made with the Bluebook and citations made with the ALWD Manual.  The only difference is that you'll be able to understand and use the ALWD Manual!”  

This change was reflected in a slightly new name for the manual – the ALWD Guide to Legal Citation – but was rolled out with surprisingly little fanfare. So, consider this blog post a trumpet blast in support of the new edition. If you haven’t picked up a copy of ALWD lately, do yourself a favor and run to your preferred bookseller. The sixth edition is excellent. And now that the concerns that created barriers to adopting ALWD have been removed, my students will discover it, too.

September 13, 2018 in Books, Law School, Legal Profession, Legal Writing | Permalink | Comments (0)

Wednesday, September 12, 2018

Jacobi & Sag on The New Oral Argument

As First Monday approaches, SCOTUS watchers would do well to follow SCOTUS OA, a blog launched in August by Tonja Jacobi of Northwestern Pritzker School of Law and Matthew Sag of Loyola University Chicago School of Law. Simply put: Professors Jacobi and Sag are doing fascinating things with a remarkable dataset built around the text of every SCOTUS oral argument since 1955.

Their most recent post, on Judge Kavanaugh and the polarized Court, delves into a topic they explore more deeply in a forthcoming article in the Notre Dame Law Review: the change in the dynamics of SCOTUS oral arguments in the last two decades. As veteran advocates and Court watchers have often observed, oral argument has changed over the last few decades: justices increasingly have dominated, advocates have less opportunity to unspool their arguments free from interruption, justices are engaging with advocates less to gather information and more to persuade their colleagues, and so on. Empirical work comparing oral argument dynamics in the 1960s and 2000s -- this piece by Barry Sullivan and Megan Canty and this by James Carter and Edward Phillips -- has confirmed this. But observation, anecdotes, and well-analyzed slices don't tell a comprehensive story of when and how things changed. And they can't tell us much about why.

Enter the work of Professors Jacobi and Sag. They analyze (as a starting point) more than 1.4 million speech episodes in over 6,000 cases over the last 55 years. And yes: oral argument at SCOTUS has changed. Justices are more active. More judicial advocacy, less judicial inquiry. OK: we know that. But the story the data tell is deep and rich, far more interesting than "Scalia's the reason" or "Breyer started asking a question in 1995 and hasn't finished it yet." For example: the number of questions justices ask per case hasn't varied much from 1960 to 2015. But the justices are saying about twice as many words per argument in the last couple of decades, taking up about 13 minutes more per sixty-minute argument than they used to (and, no, it's not all Breyer). So what's going on? In short: judicial advocacy. Less inquiry, more commentary. Jacobi and Sag develop the point brilliantly. And they demonstrate that the shift in dynamic wasn't simply a gradual evolution or one that can be tied to a change in Court personnel. It happened, they show, in 1995. In happened because, they argue, of political polarization embodied in and brought on by the Contract-with-American Congress

The SCOTUS OA team updates the blog on Monday mornings. I'll be hitting refresh as they do.

September 12, 2018 in Oral Argument, United States Supreme Court, Weblogs | Permalink | Comments (1)

Tuesday, September 11, 2018

Outlining your appellate brief

I spent the weekend grading outlines from my Advanced Legal Writing class.  Since I started teaching appellate writing, I have required my students to turn in an outline of their appellate brief argument section. In the outline I require them to do the following:

  • Identify the issues on appeal and take a stab at drafting issue statements.  I tell them that they should identify each issue with as much specificity as possible, incorporating the law and pertinent facts, where appropriate.  
  • Identify the standard of review for each issue with a cite to authority for the standard.
  • Identify a theme.
  • Include the arguments that they plan to make for each issue.  In outlining these arguments they must: (1) the specific points that you will make to further each argument, (2) the facts, if any, that you will rely on, and (3) the authority that you will cite.  
  • Identify rebuttal points.  Because I require my students to outline both sides of the case (they brief both sides of the case over the semester), this comes naturally.  I do like to see them address the counterarguments in their outlines though.

The outline serves as 8% of the final grade, and it allows me to make sure that the students are on the right track with their arguments, both in terms of substance and organization.  

Appellate argument outlines, however, aren't just great teaching tools.  I think that they can help practitioners too.  Consider the benefits of starting with an outline:

  • It helps you organize your research.
  • It allows you to think carefully about how to arrange your issues--both in terms of identifying your strongest argument and seeing how your issues and arguments fit together.
  • It can help you identify a weak issue or argument that should be omitted.
  • It helps you identify issues or arguments that might need more research before you start drafting.

While taking the time to outline might seem like added billable hours, I find that outlines make my final drafting much more efficient.  I would be curious to hear how many of our readers use outlines to draft their arguments.  Feel free to comment below.

September 11, 2018 | Permalink | Comments (0)

Thursday, September 6, 2018

Kavanaugh Hearings Continue for the Third Day

The Kavanaugh hearings are entering their third day. The place to be to receive thoughtful commentary on Supreme Court happenings is SCOTUSblog. They will be live blogging today's confirmation hearings starting shortly after 9 am eastern. You can find the live stream here. The commentary found on SCOTUSblog is always well balanced if not entirely objective. But even posts that contain a specific point of view do so in a serious, transparent, and respectful way. This is in contrast to how most of us receive our news today. We have to sort through lots of superficial explicit and implicit bias. Some bias is easy to see, some not so much. It's a really unfortunate state of affairs.

There is a surprising contrast to the commentary on the hearings and the facts behind the nominee's voting record. The interesting fact that emerged from the hearings yesterday was how frequently Judge Kavanaugh's opinion aligned with Judge Merrick Garland's opinion. Garland was President Obama's nominee following the passing of Justice Scalia. Judge Garland's nomination was not taken up by the Republican Senate in the election year, so there was no chance for public debate as Kavanaugh is now experiencing. The somewhat shocking statistic is that Judge Garland and Judge Kavanaugh, who both sit on the D.C. Circuit Court, actually voted together 93% of the time: "Judge Garland joined 27 out of 28 opinions written by Judge Kavanaugh, while Judge Kavanaugh joined 28 out of 30 of Judge Garland’s rulings." Each judge was nominated by an opposing political party, and yet the large majority of their opinions are in congruence with each other. 

The existence of that fact is bit astonishing when compared to the partisan debates we hear from our news sources. More than anything it appears to show that our appellate court judges work hard to find consensus and perhaps our judicial system is not in as much peril as we are sometimes cajoled into believing.

September 6, 2018 in Current Affairs, United States Supreme Court | Permalink | Comments (0)

Tuesday, September 4, 2018

Guest Post: In Day One of Hearings, Democrats Show Only that Kavanaugh is a Mainstream Judge

Today's big news is the confirmation hearings for Judge Brett Kavanaugh.  Below is a guest post from Lee Rudofsky, former Solicitor General of Arkansas, on Day One of the Kavanaugh hearings.  His views are his own and do not reflect the views of any former, current, or future employers or of the Appellate Advocacy Blog.

There is such bipartisan consensus that Judge Kavanaugh is a well-qualified nominee—in terms of academic pedigree, personal character, legal skill, legal experience, and judicial service—that I hardly need mention it.  Historically, the only other criteria on which Senators base confirmation decisions is whether the nominee’s judicial philosophy is within the mainstream of American legal thought. And we have learned—thanks to the over 3 hours of “introductory remarks” by Democratic Senators—that Judge Kavanaugh is without a doubt a mainstream judge.

How did the Democrats manage to prove something so detrimental to their attempt to derail this nomination?  Let me give you an example. Senator Whitehouse unleashed a verbal assault on 72 recent 5-4 decisions of the Supreme Court that he believed to have been decided incorrectly and in which he believed a Justice Kavanaugh would have sided with the majority.  To be clear, even indulging Senator Whitehouse’s assumption on how Kavanaugh would rule, that means Kavanaugh would have decided these 72 cases the exact same way as Justice Kennedy did. (Justice Kennedy was the fifth vote in those cases.) Is Justice Kennedy outside the mainstream of legal thought?   Obviously not. If Senator Whitehouse says otherwise, all it shows is that the Senator is falsely equating the mainstream of legal thought with ultra-liberal legal thought. The mainstream of legal thought cannot fairly be defined in such a way as to exclude the legal philosophy of nearly half the judges in our judiciary.  

Or take Dianne Feinstein, the Committee’s ranking Democrat.  Senator Feinstein faulted Judge Kavanaugh for saying nice things about the legal analysis in Justice Rehnquist’s dissent in Roe v. Wade.  Put aside for a second one’s view of the legal analysis on which Roe and its progeny depend, and one’s guess as to how a Justice Kavanaugh might rule in a specific abortion case.  The important point here is—or should be—that Chief Justice Rehnquist (a jurist twice confirmed by the Senate for the high court) is decidedly not outside the mainstream of American legal thought.  While many liberals disagree with any legal analysis that might limit, narrow, alter or overrule Roe (or Casey, the actual controlling case at this point), it is empirically undeniable that there is a serious legal debate about Roe’s propriety, with incredibly sophisticated scholars on both sides of the legal issue.  If Senator Feinstein believes that any slight disagreement with Roe means a judge is outside the mainstream of American legal thought, then she either doesn’t understand the concept or doesn’t really care about it.

I could go on and on.  But, in sum, what the Democrats managed to do on the first day of the hearings was to show they don’t really give a hoot about Judge Kavanaugh’s credentials or whether Judge Kavanaugh is a mainstream judge.  Instead, they only care about whether they think Judge Kavanaugh will vote the way they want him to vote on their pet policies. This legal-analysis-be-damned-ends-justify-the-means approach to confirmation is a sad symptom of a bigger problem: the elitist view that unelected judges should decide cases based on their individual policy preferences and their individual beliefs as to what would be a fair outcome, as opposed to dispassionately deciding cases based on the law as written by the people or their democratically elected representatives.  The Senators who indulge and push this approach do us all and our republic a grave disservice.

The first day of the Kavanaugh’s confirmation hearing was marked by liberal protestors continuously interrupting Republican Senators and screaming their heads off that the hearing is a farce.  We’ll see; but if it is a farce, it’s not for the reasons they suggest.

September 4, 2018 | Permalink | Comments (0)

Saturday, September 1, 2018

Your Legal-Writing Voice and the Quotations that Drown it Out

1_gCeap8TaEOgWFLFQ9sJXJg

"Quotation, n: The act of repeating erroneously the words of another."

—Ambrose Bierce

Authors talk about both the sanctity and fragility of the writer-reader connection. Sanctity because there is nothing more valuable to a writer than getting their reader to connect to them. To trust them. To listen. Fragility because, as hard as that connection is to forge, it’s sure easy to break. Studies say that we now have the attention span of a goldfish (or even less). Give your reader an excuse to stop reading, and they’ll take it.  

So how do you keep that connection humming? A lot of it depends on your writing voice: the unique timber that each of us has when we write. Without a distinct voice, our writing is fungible—the author faceless. It's through our voice that readers see who we are, and whether we're worth listening to. 

Our voice coalesces from several components working together: our word choice, word order, organization, and more. If you carefully craft your writing voice—using tools like sentence structure and vivid language—the link will snap into place. Your readers will hear your voice as clear as if you spoke aloud. Use the right voice, and readers will trust you. With their trust won, you can persuade them.

Given how important our voice is, you would think lawyers wouldn’t give it up easily. You’d think that all their writing would be focused on cultivating that personal connection with their reader and grasping tight until the final page.

But many lawyers give up their voice at the first chance—by quoting the voices of others. They quote so much, in fact, that readers aren’t sure whose voices they’re hearing. First, it’s a judge in one quoted case, then another judge in another quoted case—perhaps a professor or two from some block-quoted law review articles. And the lawyer’s voice? Lost in the cacophony.

Quoting is powerful. It allows you to invite other trustworthy voices into your brief. But there is a way to do it without giving up your voice in the process. Great legal writers do it all the time: their distinctive voice rings true throughout their briefs, even with plenty of quoting in the mix. I like to think of these good writers as the narrators of their briefs, and the quotes they use, the characters. You can always tell it’s the lawyer telling the story—even when the characters fall into some dialogue.

To see what I mean, compare these two snippets. First, a legal writer who gave up his voice to his quotes:

“The public trust doctrine is an old common law principle, from whence several concepts have arisen.” James v. Platt, 314 F.3d 524 (7th Cir. 2000). "The doctrine proceeds in several steps, although none of them are dispositive on their own.” Id. “Occasionally, some have framed this doctrine as one of separation of powers..." 

The lawyer's voice is silent. What voices do we hear? Some random judges in other cases. 

Compare that with a quoting pro and Supreme Court frequent flyer:

But as this Court explained in American Needle, “that is not what the statute means.” Id. To take an obvious example, “while the president and a vice president of a firm could (and regularly do) act in combination, their joint action generally is not the sort of ‘combination’ that § 1 is intended to cover.” Id. at 195. Similarly, when two companies pool their capital to form a joint venture to sell a product, the venture’s “pricing policy may be price fixing in a literal sense,” but “it is not price fixing in the antitrust sense.” Id.

It’s still quote heavy, but the author never gives up his voice to his quotes. He both creates a connection with his reader and uses quoted voices to add to his own credibility. 

A few simple techniques will help you be a better narrator, even when you’re quoting.

First: Quote only when you have a reason—you can often say it better.

There are plenty of reasons to quote, and if you can articulate one of them, then go for it. But please, for the sake of your readers, have a reason before dropping quotes on them. Random quoting is not helping anyone. 

Some common reasons include:

The quoted person’s voice—not just the substance of what they are talking about—is helpful to you. When we’re talking caselaw, that means a particular judge in a particular court might be persuasive to your audience—so you want their voice to join yours. But don’t think that all judges’ voices are equally persuasive. The judge and court's identity will matter as will the style of the quote itself.

That said, if you truly believe that someone's voice will help bolster yours, you probably want to tell your reader who you're quoting so you get the benefits. If you don't make it obvious, don't expect your reader to pick up on a court name in a citation.

These sorts of quotes are most helpful when a credible source has unusually strong language for your position. Take this quote from a motion for summary judgment:

As before, this court should agree with the Ninth Circuit that the public trust is "inalienable"—part and parcel of the state’s job of being a state. 

Or this one, where the identity of the speaker adds some credibility:

The New York Attorney General defends the state’s law as one that “falls squarely within the heartland” of straightforward “economic regulation.”

You want to let the facts speak for themselves, and that includes important conversations. Perhaps you want your reader to understand the tone or language someone used. Take this example from a Susman Godfrey brief before the U.S. Supreme Court:

Martinez-Agüero asked to speak to someone in authority, but González said he was the authority "!Yo soy la autoridad!

You’re analyzing the words used in the quoted material. When you’re parsing statutory or regulatory material, for example, quoting makes sense. When you’re arguing about whether the words the defendant used are offensive enough to be defamatory—by all means, quote.

Sometimes you want to define a term of art (although, if it’s become common usage, you don't need the quotes). This is more common when it’s a factual term of art—like industry-speak.

Initially, cash withdrawals from a foreign ATM involved up to four separate fees. The cardholder might pay a “foreign fee” to her bank (called the “issuing bank”). Id. at 129a. The issuing bank, in turn, would pay a “switch fee” to the network that processed the transaction, and an interchange fee” that would ultimately be received by the ATM’s operator.

Occasionally, you will truly not be able to come up with a better way to say something than a quote you found. If you’re working hard to improve your writing, I doubt this will happen often. But still, it happens. We have some wordsmiths in courts across the country, and judges sometimes do capture points so perfectly that they're worth stealing. 

In the end, I’m not worried as much about encouraging you to quote, because most of us already do it too much. The bigger takeaway is that you can usually convey ideas clearer and more persuasively than others. So don't just quote to quote. Rather than writing like this:

That court stated: “Fraud claims are malum in se and the most deplorable and atrocious of torts given they include requisite elements of falsity and reliance.” Illiam v. Shack, 522 F.2d 155 (3rd Cir. 2000).

You can often write better, like this:

Fraud is the worst of torts: the defendant must lie to a victim knowing she will rely on that lie.

Second, use your own sentence structure and sprinkle quotes within them—unless you truly want your reader to hear the voice of the source without you interfering.

By maintaining your own sentence structure, you keep your voice. Simple as that. Often all you really want is a pithy quoted word or phrase to make your points, like this passage in a SCOTUS brief:

All states allow such dual pricing. But a New York statute . . . seeks to control how merchants may communicate the price difference to consumers: It allows merchants to offer “discounts” to those who pay in cash, but makes it a crime to impose equivalent “surcharges” on those who pay by credit card.

Sometimes you want more of your source’s voice to come through, but still, keep in control if you can. Check out how this lawyer maintains control amid a sea of quotes in a SCOTUS brief: 

Of course, “[n]ot every instance of cooperation between two people” constitutes concerted action within the scope of Section 1. Rather, courts must undertake a “functional” analysis of “how the parties involved in the alleged anticompetitive conduct actually operate.” Where “separate economic actors pursuing separate economic interests” agree to limit competition among themselves, their conduct is “concerted” and subject to Section 1.

You can maintain your voice even when you are quoting an entire sentence, like in this Susman Godfrey brief: 

The entry-fiction doctrine derives from the recognition that the political branches of government are more appropriately suited to function as gatekeeper of the nation’s borders, and thus, “[w]hatever the procedure authorized by Congress is, it is due process as far as an alien denied entry is concerned.”

Third, lead your reader into—and out of—quotes.

Don’t just drop readers into the middle of a quote without a parachute. Give your readers a clear understanding of where the quote is going. This does wonders for maintaining your voice. So not:

The case states in pertinent part…

But instead these examples from some trial-court motions:

The Park court explained that leaving out allegations about the fraud itself dooms the complaint under Rule 8: “without the fraud allegations, the claim must be dismissed entirely."

Or

Indeed, as the court there explained, contracts need not be signed by both parties to be enforceable:

Or:

Because the plaintiff had not proved damages beyond those for breach of contract, the court held that the tort claim should have been dismissed:

Fourth, don’t block quote much. Please. Many readers just skip them.

When readers come upon one of these gargantuans, many feel a powerful desire to turn their eyes away. For me, it’s almost physical. But if you must block quote (and I suppose there may be times where it’s really needed—like when quoting statutory text, longer dialogues from the record, or some other pivotal language), at least give your reader enough of a preview of the blockquote so that they can skip it if they want to.

If nothing else, this introduction will make it less scary for readers to dive into the block-quote abyss: 

The court drew a line between claims about public trust, which can be brought in federal court, and claims about private nuisance claims, which cannot:

[Block quote explaining this same point—on principle, I’m not actually inserting the block quote!]

Finally, a couple other notes about quoting.

Emphasis quotes are not a thing. We can’t air-quote in writing. Your argument does not become more persuasive because the other party "blatantly" ignored its obligations. 

Don't quote common phrases or adages. Like: These are the times that try men’s souls. They don't need quotes anymore. As I mentioned above, same goes for common legal terms of art. 

Don’t use any other scare quotes. Scare quotes loosely refers to using quotation marks around words or phrases that you think are slang or nonstandard—or when you’re being sarcastic or offensive. Greil Marcus points out that scare quotes just make us look unsure about our own writing: 

Scare quotes kill narrative. They kill story-telling. And it’s not a question of parsing, examining, analyzing, laying bare sacred texts. They are a writer’s assault on his or her own words.

Jonathan Chair rightly suggests that they're even more useless because it's often not clear what they mean: 

The scare quote is the perfect device for making an insinuation without proving it, or even necessarily making clear what you’re insinuating.

So don’t do what this attorney did:

Opposing counsel contends that his client has a “case,” but that is patently false.  

No one is going to find this sort of thing persuasive.

Defined terms rarely need quotes. For that matter, defined terms are usually not needed. If your reader will plainly understand what a shorthand refers to—what is the point of a special defined term? We aren’t writing contracts here. And if you really do need a defined term, the parenthesis alone is probably enough, right?

Hoffman Incorporated filed this suit two days ago. Hoffman knew it was late when it filed.

The Trenshion Bank (Bank) knew what it was doing.

A final public service announcement: Commas and periods go within quotes (at least in the U.S.). So: 

The court explained that the theft of several grocery bags was indeed actionable because, "bags are not free here." 

Joe Regalia teaches at Loyola University School of Law and practices law in Chicago. The views he expresses here are solely his own and not intended to be legal advice. Check out his other articles here

September 1, 2018 | Permalink | Comments (0)