Appellate Advocacy Blog

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

Monday, October 29, 2018

Making a Murderer, Indian Law, and Habeas Corpus

Recently, habeas corpus has been on my mind.  It is partly because I have started watching season 2 of Making a Murderer.  To me, the most interesting part of the second season is the saga of Brendan Dassey's habeas petition, which is based in part on the involuntariness of his confession.  I found the circumstances around Brendan's confession quite troubling.  Several months ago I spoke at an appellate conference that also featured Steven Drizin, one of Brendan's post-conviction attorneys.  Steven's presentation on false confessions was fascinating.

In season 2 of Making a Murderer, Steven and his colleague Laura Nirider do an excellent job explaining the habeas process in layman's terms.   Because Brendan's conviction was in Wisconsin state court, he cannot prevail on habeas unless he can show that the state court conviction,

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.
 
28 U.S.C. § 2254.
 
If Brendan had been convicted in federal court, he would have to show "that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack . . . ." 28 U.S.C. § 2255.  
 
While it is hard to win on any type of habeas petition, the state standard is extra deferential to the underlying conviction.  As Steven explains in season 2, the state standard was modified in 1996 in the wake of the Oklahoma City bombing with the passage of the Anti-terrorism and Effective Death Penalty Act.
 
So, what does this have to do with Indian law?  My appellate advocacy students are currently working on their briefs for my class.  Their problem involves a habeas petition from a Tribal court.  Under 25 U.S.C. § 1303, "The privilege of the writ of habeas corpus shall be available to any person, in a court of the United States, to test the legality of his detention by order of an Indian tribe."  That is it.  This provision was passed in 1968, and it hasn't been modified since.  As Prof. Jordan Gloss notes in the American Indian Law Review, this hasn't been a big issue historically because federal courts have not had to handle a lot of habeas petitions from Tribal courts. This is due, in part, to the limited sentencing capacity that Tribal courts had.  However, in 2013, Congress passed the Violence Against Women Reauthorization Act, which, in part, gave Tribes that opted-in to the Act limited jurisdiction over certain non-Indians who committed acts of dating or domestic violence against Tribal members. See 25 U.S.C. § 1304.  Additionally, the 2010 Tribal Law and Order Act gives tribes additional sentencing power.  Combined, these two acts mean that federal courts will have to handle more habeas petitions from Tribal courts, potentially including Tribal convictions of non-Indians.
 
I agree with Prof. Gloss that Congress is going to need to step in to clarify what the habeas standard will be for Tribal convictions.  If it doesn't, I am sure that the courts will.

October 29, 2018 in Current Affairs, Federal Appeals Courts, Television | Permalink | Comments (0)

Friday, October 26, 2018

Appellate Advocacy Blog Weekly Roundup, Friday, October 26

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:

Commerce Secretary Wilbur Ross is being challenged for adding a citizenship question to the 2020 Census. Several states and civil rights groups have filed a lawsuit to block the citizenship question. The Supreme Court has shielded him from having to give a deposition in the matter. Despite Ross not having to give a deposition, the case is allowed to continue. Read about the Court's decision here

 

The Masterpiece Cakeshop issue, in effect, has returned to the Supreme Court stage in a petition for review. The case arises from an Oregon bakery. Amy Howe of SCOTUSblog has this post about the petition.

 

Many have heard or read about Sandra Day O'Connor's letter to the public announcing her "beginning stages of dementia, probably Alzheimer's disease." Find the letter here. And current Supreme Court Justices' reactions to O'Connor's service and her announcement can be found here, with Noah Feldman's comments in Bloomberg found here

 

Elana Kagan was asked about term limits for Supreme Court justices. Here are the comments about her response. And Justice Thomas commented on the need for neutrality at the highest court. 

 

Federal Appellate Court News:

 

The 10th Circuit Court of Appeals held a person who performs janitorial services could be found to be an employee under the FLSA, even if the worker formed a corporate entity, entered into a franchise agreement with the franchisor, and entered an independent contractor agreement. Read about the opinion here

 

State Appellate Court News:

 

In New York, even if an arbitration award is wrong, an appellate court ruled against the "manifest disregard" rule, strengthening the finality of arbitration awards. 

October 26, 2018 | Permalink | Comments (0)

Thursday, October 25, 2018

Thinking Thursdays: Understanding the Value of Voices Briefs in Appellate Practice

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

***

Supreme Court decisions on deeply personal constitutional issues affect far more than the parties themselves. For example, consider the far-reaching effects of the Court’s decision on marriage equality in Obergefell v. Hodges, or on reproductive rights in Whole Woman’s Health v. Hellerstedt. Voices briefs—a form of amicus brief—give non-parties an opportunity to be heard by telling the stories of individuals who are strangers to the case but “whose lives will be profoundly shaped by the Court’s decisions.”

Amicus filings have increased by “an astounding 800%” in the last fifty years. And the filing of voices briefs has also dramatically increased, especially over the last three years. In Professor Linda Edwards’s article, Telling Stories in the Supreme Court: Voices Briefs and the Role of Democracy in Constitutional Deliberation, she considers the legitimacy and value of voices briefs and concludes that “there is little to lose and much to gain when amicus filers tell their stories.”

To date, voices briefs have been used almost exclusively in abortion rights and marriage equality cases. In these cases, “(1) the outcome will have a direct personal impact on the intimate lives of those affected; and (2) the storytellers’ experience is likely outside the Justices’ experience.” Professor Edwards imagines other types of cases with similar characteristics in which advocates might use nonparty stories to help the Court understand the experiences of others. For example, voices briefs could be useful in cases involving immigration, capital defendants, convicted felons, police shootings, and issues of race, class, or power disparity.

Professor Edwards explains that voices briefs serve at least three important roles. First, they allow nonparties who will be intimately affected by the Court’s decision an opportunity to be heard. Second, even if voices briefs don’t succeed in changing the outcome of the case, they may succeed in encouraging the Court to write an opinion that both recognizes and respects opposing views. And, third, voices briefs may encourage the Court to write opinions that model “better public discourse in today’s polarized public square.” As a result, the Court’s opinions may “provide a modicum of healing because readers who lose at least will feel heard, and readers who win may come away with a greater understanding of those on the other side of the issue.”

Professor Edwards analyzes the persuasive potential of voices briefs using cognitive science research focusing on “schemas.” Schemas are “preexisting cognitive patterns providing interpretive frameworks through which we perceive and judge the world.” The perceptions that result from these schemas seem to be natural and objectively true,” as “[t]he schema both highlights information that seems consistent with the schema, and hides inconsistent information.” So, the question is not whether Justices “see the situation through a lens, but which lens focuses [their] view.” And because schemas are unconscious, Justices may “remain unconsciously captive to a set of unexamined assumptions based on preexisting narrative schema.”

Voices briefs seek to challenge the Justices’ preexisting cultural narratives by highlighting voices and stories that don’t fit neatly into their schemas. In our increasingly polarized country, the human tendency to “associate primarily with and listen primarily to those we perceive to be like us” has become amplified. Justices are not immune from this tendency. Indeed, as Professor Edwards notes, Justices have always relied on extra-judicial factual sources and their own preexisting cultural knowledge and personal experiences to inform their decision-making.

Voices briefs thus serve an important role—they help counteract the Justices’ preexisting cultural narratives by exposing them to diverse perspectives that “help to fill the inevitable gap between a Justice’s personal experience and the realities of other lives and perspectives.” Studies have shown that anecdotal messages like the ones communicated in voices briefs may actually be more effective at countering negative preexisting bias than the logical arguments in merits briefs. Professor Edwards concludes that, instead of adding bias to a neutral process, “voices briefs may be the only way to counter the preexisting values bias that accompanies human deliberation.”

Professor Edwards discusses concerns about reliability, relevance, and the risk that non-party stories will be used impermissibly as adjudicative facts, rather than as permissible legislative facts. Professor Edwards concludes that “preserving a role for voices briefs is preferable to limiting their use in ways that ignore modern cognitive science and ancient rhetorical principles, that silence the voices of the governed, or that secretly smuggle in the adoption of a limiting jurisprudential view.”

I encourage appellate practitioners to read Professor Edwards’s article and to think about ways in which you might incorporate voices briefs into your appellate practice when faced with deeply personal constitutional issues that may be out of the realm of the Justices’ own personal experiences.

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

October 25, 2018 in Appellate Advocacy, Appellate Court Reform, Appellate Practice, Appellate Procedure, Federal Appeals Courts, Legal Profession, Legal Writing, Rhetoric, Sports, State Appeals Courts, United States Supreme Court | Permalink | Comments (0)

Wednesday, October 24, 2018

Seventh Circuit Benchslap II: Word Count Edition

So this one was more of a Judge-Easterbrook-wastes-no-teachable-moment moment than a true bench slap of the sort that Tessa discussed this week. But still.

Appellate practitioners in my region know well that the Seventh Circuit is a stickler on all-things-brief. It's not so much that its rules are demanding; Circuit Rule 32, for example, actually imposes looser formatting and word-count rules than the FRAP defaults. But the circuit strictly enforces its rules. And it is quite opinionated about things that keep one's brief from being a miserable slog to read. Like clean, modern typography. Section XIII of its Practitioner's Handbook for Appeals (pdf) offers an excellent set of suggestions for making briefs more readable. The Handbook reflects a lot of knowledge and thought about the art and process of generating printed words on a page.1 Much of that material in the Handbook probably is the handiwork of Judge Frank Easterbrook. As one can see from section III of this piece, Judge Easterbrook (1) has thought a lot about how to generate attractive written work product and (2) knows his stuff about the technical ins and out of producing it.

Which brings up to today's bench-slap-that-was-really-a-gentle-by-Easterbrookian-standards-bench-lesson. As Brad Heath of USA Today tweeted earlier today, Judge Easterbrook issued an opinion this morning that gave a pro-se litigant—and all of us, really—a lesson about the quirks of Microsoft Word and, like, words. As in word counts. And that lesson might help some of us avoid getting benchslapped for real. 

The word-count issue came to Judge Easterbrook in his role as motions judge. An appellee sought permission to file a brief containing more words than permitted by circuit rules. Their justification: their pro-se opponent represented that his brief contained less than 14,000 words, but it actually blasted past the limit by more than 2,500 words. So Judge Easterbrook struck the appellant's brief, ordered him to file a shorter one, and directed him to explain why he should not be sanctioned for falsely representing that his initial brief complied with the word limit. Here's how the appellant responded:

Screen Shot 2018-10-24 at 6.41.52 PM

Seems reasonable, right? Who among us has not looked at the "Properties" panel to get our Word count?

Turns out that we're doing Word wrong. Judge Easterbrook exposes the error of our ways:

Screen Shot 2018-10-24 at 6.46.28 PM

So word to the wise: don't use the "Properties" panel to certify your word count. Especially if your brief has footnotes.

Things ended reasonably well for our Word-challenged pro-se appellant. There was no bench slap; just an order to go forth and be Word savvy and word-count compliant:

Screen Shot 2018-10-24 at 6.48.50 PM

So, at certification time, remember: Word Count panel. Accept no substitutes.


1. For more, read Matthew Butterick's Typography for Lawyers and Ruth-Ann Robbins's classic "Painting with Print: Incorporating Concepts of Typographic and Layout Design into the Text of Legal Writing Documents." 

October 24, 2018 in Appellate Practice, Federal Appeals Courts, Legal Writing | Permalink | Comments (0)

Monday, October 22, 2018

Seventh Circuit Benchslap

Two weeks ago the Seventh Circuit issued a benchslap to a lawyer who modified her brief after being asked to resubmit her brief with a redacted appendix.  The facts of the case are not pretty.  On March 30, the attorney filed her brief (after 5 time extensions, one of which she requested when the brief was a day late).  Opposing counsel realized that the appendix to her brief contained material that the court had ordered redacted. 

On April 6, the granted the attorney's motion to file a corrected appendix.  The ordered directed her to  "'file by April 11, 2018,  a new electronic version of [the] brief that includes the fully-redacted appendix.'"  She complied with that order, but also made "substantial changes in the body of the brief, altering propositions of both fact and law."  Opposing counsel, once again, caught the discrepancies, and asked for more time to address these changes.  The court granted that request, but also directed the attorney to "file another brief that would eliminate the substantive and wording changes."  The Seventh Circuit cited its opinion in Khan v. Midwestern University, which addressed differences between electronic and paper versions of a brief.  In Khan, the court noted that paper and electronic versions must be identical.

The attorney resubmitted the brief, claiming that it was identical to the March 30 version, but it wasn't.  The attorney claimed that the changes were accidental and asked the court if she could "re-file the March 30 version with handwritten interlineations that would have made the printed brief different from the electronic version" and from the March 30 version.  The court, rather fed up by this point, issued an order giving the attorney "14 days to show cause why she should not be subject to professional discipline, including an order to pay any additional costs that appellants have incurred as a result of [her] repeated alternations of a brief that should have changed."

In her response, the attorney claimed that she thought that the order allowing her to make redactions also allowed her to make substantive changes to the brief.  The court "accept[ed] her assertion that she believed that she could do so," but noted that "errors made with an empty head are hard to excuse."  She blamed "the second error on infelicitous naming of files on her computer."  The court found this excuse harder to swallow, noting that she never compared the documents or reviewed date stamps.  According to the court, "Making an error once is bad; making it twice in a row--and in the teeth of the warning in Khan . . . is unfathomable."

Despite the harsh language, the attorney got off easy--just a public reprimand.

I find this opinion particularly interesting given the uneasy alliance between electronic and print copies of briefs.  Many judges are now working off of electronic copies of briefs, yet many circuit still require paper copies to be filed, sometimes a few days after the e-copy is due.  It is imperative that attorneys file identical copies.  As the Seventh Circuit noted, this requirement ensures that everyone is working for the same version of the document.  I am sure that this attorney learned her lesson.

 

October 22, 2018 in Appellate Advocacy, Appellate Practice, Appellate Procedure, Legal Profession, Legal Writing | Permalink | Comments (0)

Saturday, October 20, 2018

Ross Guberman's "Judges Speaking Softly"

Capture

Ross Guberman has a great read over at the ABA sharing the results of a writing survey he gave to judges. Guberman asked the judges to divulge their peeves and preferences for the briefs they have to read each day. The response set is sizable. It's also refreshingly diverse, covering both state and federal judges at both the trial and appellate levels. 

The results probably won't surprise you--they don't reveal any secret persuasion magic. But that's a good thing. Guberman's findings confirm that judges want what we all know they want (even if we don't always give it to them): 

[S]trong, compelling, yet concise introductions; a restrained use of case law, with quality over quantity; a readable treatment of party names and industry lingo; helpful lead-ins to block quotations; a confident and professional tone; modern diction; and more white space, headings, and visual aids.

A couple thoughts about a few of these judicial preferences. There's a growing awareness that introductions are the lynchpin of good briefs (and probably a lot more important than even the judges know). I talked about the power of introductions not too long ago--reviewing some of the things your introduction can do for you, including priming, framing, and building your credibility--all of which strengthen your entire document. 

Using caselaw the right way is something else we talked about here on the Appellate Advocacy Blog recently. I've heard the same sorts of comments from judges as Guberman shares: They are fed up with lawyers who think that a string cite of cases gets the job done. Judges want the caselaw that matters--and they want it explained simply and concisely so that they can see why it matters. 

The professionalism of your tone is yet another point we've talked about here. All practicing lawyers will, at some point, struggle to keep the scorn they feel from bleeding out into their briefing. There are just some opposing attorneys and parties who can't help but act ridiculous. And you want nothing more than to scream at the judge: "They've lost their minds!" But it sounds like many judges agree with U.S. District Judge Jennifer Dorsey, who I've quoted before: 

Let the judge judge; don't you do it. A lawyer should paint the picture with true, hard facts describing conduct that will lead the judge to do what the judge does—pass judgment. Don't usurp the judge's function by jumping to the conclusion for her.

The block quote point isn't debatable anymore: Judges don't much enjoy reading these. And if you do use them--just like when you quote anyone else and give up your voice--you should use tools to guide your readers and keep your connection with them. I talked about this a few weeks ago, too. 

Finally, I love that judges are asking for better formatting, white space, and visuals (bullets, numbers, graphs, and even charts!). There's a reason that our students today learn from textbooks containing as many images and graphs as they contain writing. We humans love visuals. Indeed, science suggests we process information better when visuals are used alongside text. 

So give Guberman's article a read. As always, you won't be disappointed. 

Joe Regalia teaches at Loyola University School of Law, the John Marshall Law School, 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

October 20, 2018 | Permalink | Comments (0)

Thursday, October 18, 2018

High Level Judicial Feud in Arkansas

Last year, on a Friday in April, Judge Wendell Griffen participated in an anti-death penalty rally on the steps of the Arkansas capital building and a prayer vigil in front of the governor's mansion. Later the same day, he issued a temporary restraining order to a pharmaceutical company requesting that the state of Arkansas return the drug the state used in carrying out capital punishment. Moving quickly, on Saturday, the Supreme Court of Arkansas heard an appeal of the TRO, reversed the order, and by Monday had directed the lower court to recuse Judge Griffen from the docket of all death penalty cases.

The Arkansas Supreme Court further referred the judge to the judicial discipline commission to determine if he had violated the code of judicial conduct when he attended the rally, a prayer vigil, and after he posted anti-death penalty commentary on his blog. The court asserted that Judge Griffen should be investigated for judicial misconduct because his prior words and actions tended to show he had a predetermined outcome for death penalty cases. 

Shortly thereafter, Judge Griffen filed suit - against the Arkansas Supreme Court justices who issued these orders claiming due process violations. His suit was subsequently dismissed by the Eighth Circuit. But, Judge Griffen filed additional ethics complaints against the justices. Last month the disciplinary commission found probable cause that six of the seven justices violated the canons of judicial ethics. The commission stated that the justices acted arbitrarily and capriciously by ordering recusal and by not giving Judge Griffen enough time to respond. 

This week, five justices filed a petition to dismiss the charges. They declared that the disciplinary commission did not have jurisdiction over these claims since the orders to recuse Judge Griffen were not fraudulent, in bad faith, or because of a corrupt motive. The Arkansas Supreme Court has promised to recuse itself in hearing any of these charges.

This case raises many questions of judicial ethics. Should judges curtail their First Amendment activities if they could be construed as bias on future rulings? Is attending a political rally considered a demonstration of a bias? What actions can courts take to discipline their own judges? Is removing a judge from a particular docket considered a due process violation (8th Circuit said no)? This state court situation may seem removed from the national public discourse, but the answers to these questions will be important for a judiciary that is being placed more into the spotlight than ever before.

October 18, 2018 in Legal Ethics | Permalink | Comments (0)

Monday, October 15, 2018

Federal Appellate Court Nominations Update

A little over a week ago, the Senate narrowly confirmed Brett Kavanaugh as the 114th Supreme Court Justice.  Vice-president Pence presided over the vote, which was interrupted several times by protesters in the Senate gallery.  Shortly after he was confirmed, Justice Kavanaugh made headlines as the first justice to have all female law clerks.

Fresh off his SCOTUS victory, on October 10, President Trump announced his intent to nominate another wave of federal court judges, including two nominees to the Second Circuit and three nominees to California seats in the Ninth Circuit.  The next day, Senator Dianne Feinstein, the ranking member of the Senate Judiciary Committee, released a press statement announcing her displeasure with the pick and the White House's lack of coordination with her.  With the midterm elections just right around the corner, it will be interesting to see if the Senate Judiciary Committee acts on these nominations.  Given my experience with nominations, I imagine that it would be difficult to hold a hearing before the election, since the Senate vetting process usually takes a few weeks.  But, in interest of full disclosure, two of the Ninth Circuit nominees are friends of mine, so I wish them all the best through the process.

Hearings are even less likely since last week the Senate also confirmed 15 Trump nominees, including three appellate court judges.  The move came, apparently, as part of a deal with Senate Democrats that would close up the Senate through election day to allow for campaigning.  If Republicans retain control of the Senate, we can expect to see President Trump plugging ahead with filling judicial vacancies.

 

October 15, 2018 | Permalink | Comments (0)

Friday, October 12, 2018

Appellate Advocacy Blog Weekly Roundup Friday, October 12

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:

 

This week included several oral arguments at the Supreme Court, one of which included Justice Kavanaugh's first time sitting as a justice. Adam Liptak (@adamliptak) writes about it here.

Adam Feldman at SCOTUS blog writes about what to look for in Kavanaugh's first term. View Adam's analysis here.

The D.C. Circuit Court lodged complaints about Justice Kvenaugh's statements he made during his confirmation hearings concerning his time in the Bush administration and statements concerning the Democrats' allegations of sexual misconduct against him. After being sworn in, Justice Kavanaugh stated he bears no bitterness and is grateful to serve as a justice. The complaint is reported about here

Chief Justice Roberts then referred the complaint to the 10th Circuit Court of Appeals. 

 

Federal Appellate Court News:

 

A San Diego prosecutor is among 3 Californians nominated to the 9th Circuit Court of Appeals. Read about it here

 

The Senate has confirmed several judges to the courts of appeals:

 

- Idaho Falls native gets confirmed to the 9th Circuit Court of Appeals. The Post Register reports it here

- Richard Sullivan confirmed to the 2nd Circuit Court of Appeals. The vote to confirm was 79-16

- And this article at the Washington Post about other judges being confirmed. 

 

State Appellate Court News:

 

Washington Supreme Court outlaws the death penalty. Mark Joseph Stern (@mjs_DC) writes about it here

 

Practice Pointers and Tips:

 

Advocates used to write briefs pointed toward Justice Kennedy as the swing vote. Now, briefs may be directed toward Justice Gorsuch. Mark Stern has this piece about the briefs. 

 

 

October 12, 2018 | Permalink | Comments (0)

Thursday, October 11, 2018

Thinking Thursdays: Speak onto the Page

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

Thinking Thursdays: Speak onto the Page

The ideal advocate is both a skilled writer and a skilled speaker. Regardless of practice area, the law is a profession of words, and lawyers must be able to effectively communicate those words whether called upon to do so in a brief, in a contract, at oral argument, or when counseling a client. Yet, many lawyers experience a certain lopsidedness in their communication skills. Some of us are more confident writers than we are speakers (this blog author included!). Others are at our most articulate when speaking rather than writing.

Professor Peter Elbow, a Professor of English Emeritus at the University of Massachusetts Amherst, has written a book called Vernacular Eloquence: What Speech Can Bring to Writing that will appeal to lawyers of both stripes. Professor Elbow’s book sets out to be both theoretical and practical. Harnessing his frustrations about the “snobbery” of the culture of “correct writing” that he posits stifles and excludes many demographics of potentially good writers, Professor Elbow states that the theoretical goal of his book is to prove that “everyone with a native language has what it takes to write well.” Along those lines, the central argument of his book is that “we can enlist the language activity that most people find easiest, speaking, for the language activity most people find hardest, writing.”  

In addition to supporting his theoretical claim by marshaling a breadth of scholarship on writing and literacy, Professor Elbow offers practical suggestions for readers looking to improve their writing. The book suggests two major concrete ways to enlist speech for writing: (1) “talking onto the page” at the early stages of writing and (2) reading aloud to revise at the late stages.

Legal writing has long been criticized for being needlessly opaque. Typical speech, however, is rarely so incoherent. Most writing teachers, when faced with a confusing passage in a student work, will ask, “What did you mean here?” Usually, the student can speak a much clearer explanation of the passage than the passage itself. Professor Elbow says of this paradox, “the incoherence that comes from nonplanning is minor compared to the incoherence that comes from careful planning – unless it’s quite skilled.” In other words, while unplanned conversational speech may contain false starts, hesitations, and digressions, those aspects of speech do not interfere with the listener’s understanding nearly as much as certain aspects of planned typical writing can interfere. 

Professor Elbow, however, is careful to qualify his practical advice. He recognizes that professional writing quires a final draft in “correct English.” But he proposes that until that final draft, writers should “speak onto the page” and ignore internal voices that nag and criticize when that speech doesn’t produce polished results.

In the end, as one reviewer noted, “[Professor] Elbow is his own best argument for speaking onto the page: His voice is both authoritative and affable, conversational and professorial.” Lawyers looking to silence their inner critics would benefit from “listening” to Professor Elbow’s book.  

October 11, 2018 in Appellate Advocacy, Books, Legal Writing, Rhetoric | Permalink | Comments (0)

Wednesday, October 10, 2018

Oral Argument: Why I Advise Advocates to Practice Without Notes


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If you're looking to gin up controversy in moot court circles, here's one way: raise the topic of arguing without notes. If the moot-court whisper network and this Reddit thread are to be believed, some faculty coaches insist that their student advocates argue without notes. And, whether coaches insist on it or not, quite a few moot court advocates (including a bunch from my school) compete notes free. Hence the controversy. A lot of folks, like Reddit Person, don't see much genuine benefit to arguing sans notes. Sure, it might intimidate opponents or wow easily-impressed judges. But beyond that? Not much.

I would agree that going notes free probably doesn't offer many benefits in the actual oral argument performance. As the notoriously notes-free Paul Clement explains on page 16 of this article, well-prepared advocates mostly bring notes to the podium. And they mostly don't use them. Of course, as the Supreme Court's Guide to Counsel admonishes, "under no circumstances should you read your argument from a prepared script." But having notes to provide security, especially about key statutory language or sharp bits from the record, and making nondistracting use of them on occasion ... often a good thing, and rarely a bad thing.

But I think going notes-free is incontrovertibly great in one context: practice. Why? Science. As I've argued before on this blog, oral argument is a tremendous tool for learning. And doing it without notes can deepen learning. In a study published a few months ago in Applied Cognitive Psychology, researchers built upon a substantial body of literature showing that teaching material to others enhances the teacher's own learning of the materials. They attempted to figure out why. So they split research subjects—a group of undergraduate students—into four learning groups, all of which were given time to study and prepare to teach a lesson on the Doppler effect. Then two groups actually taught the lesson. One group taught from a script; the second taught without notes. A third group didn't teach, and instead took a free-recall test about the Doppler effect. The forth group—the control—simply did arithmetic problems.

One week later, the subjects were tested on their knowledge of the Doppler effect. And the subjects who taught without a script outperformed those who taught from a script.

The reason: teaching without notes forced subjects to engage in retrieval practice. The experiment suggests that teachers learn by teaching largely because—and when—they are required to extract, with effort, information from their brains. So it isn't the act of teaching per se that boosts learning, but the act of retrieving the information that does the trick. Hence this result: the no-notes teaching group performed as well on the test as the group that engaged in retrieval practices without teaching. And the scripted teaching group barely outperformed the control group. 

As I've said here before: prepared oral advocates learn, deeply, then teach, and learn more deeply for having taught. 

Pull the notes, and the learning is richer and deeper.

October 10, 2018 in Appellate Advocacy, Moot Court, Oral Argument | Permalink | Comments (0)

Friday, October 5, 2018

Appellate Advocacy Blog Weekly Roundup Friday, October 5

 

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:

New term opened on Monday.  National Law Journal had a preview of the upcoming term, including a preview of cases about age discrimination, the death penalty, the First Amendment, and preemption.  Read the preview HERE

Empirical SCOTUS has a statistical breakdown of issues that will be tackled during the upcoming term HERE.  

Transcript from the first oral argument of the term, in Weyerhauser Co. v. U.S. Fish and Wildlife Serv., et. al. is available HERE

On Tuesday, the Court heard a case involving competency in capital cases.  The question posed concerns whether it would violate the Constitution to execute a man convicted of a murder more than 30 years ago when he has suffered several strokes, has experienced significant brain damage and dementia, and has no memory of his crime.  See SCOTUSblog’s preview HERE  and transcript of argument HERE.  

Kavanaugh Confirmation News:

The confirmation battle over Judge Brett Kavanaugh continued to make headlines all week, with an FBI investigation, demonstrations and protests, op-ed pieces, and Twitter debates.  Retired Justice John Paul Stevens weighed in with his opinion that Kavanaugh should not be confirmed, citing Kavanaugh's testimony during the Senate hearing as evidence that he would be unable to effectively do the job.  The Senate has scheduled an initial vote for Friday morning, and as of this posting all indications are that the vote is too close to call.

State Appellate Court Opinions and News:

Oregon is one of only two states that allow for split verdicts in most felony cases.  The Oregon Court of Appeals heard a case challenging non-unanimous verdicts after two non-unanimous verdicts have been overturned in the past year.  NPR Morning Edition had a segment on this HERE

 

Appellate Job Openings:

 Washington Court of Appeals, Division I, opening for judicial clerkships for the 2019-2021 terms:  More details HERE.

 

 

October 5, 2018 | Permalink | Comments (0)

Thursday, October 4, 2018

California Overhauls Its Rules of Ethics

New ethics rules for California lawyers will go into effect on November 1. This is the largest reform California has undertaken in 29 years. It brings the state rules in line with the ABA Model Rules.

Driving forces behind the rules were the interest in increased consumer protection and a desire for consistency nationwide. A total of 69 rules will be added or amended. Among the changes to the new rules are: 

  • A rule forbidding attorney-client sex unless there was a preexisting relationship, which broadens lawyers’ restrictions.
  • Changes that make conflict of interests rules broader.
  • No rule on lawyers’ duties when advising clients with diminished capacities. This was requested by the trusts and estates section of the California Lawyers Association (the nonprofit trade association recently spun off from the state bar), but the California Supreme Court did not approve it.
  • The duties of a lawyer when advising clients on breaking the law - an attorney may not counsel to engage in or assist a client on committing a crime (Rule 1.2.1).
  • Commentary that provides guidance to attorneys advising clients on federal and trial law conflicts - likely needed for advising clients in the legalized marijuana industry.
  • A rule that prohibits harassment, discrimination, and retaliation by attorneys, or permits any of the forgoing. This rule gives the responsibility to lawyers to police the behaviors of lawyers and personnel in their own firm. This allows the state Bar to open an independent investigation without a finding by any outside agency. This rule was very controversial, as it was when the ABA adopted it. To date it remains under scrutiny in many states with twenty-one adopting it or having one similar, and nine declining. Fourteen other states are studying whether to adopt it. (Rule 8.4.1).

October 4, 2018 in Legal Ethics | Permalink | Comments (0)

Monday, October 1, 2018

SCOTUS Term Kicks Off With an 8 Member Court

Today marked the start of the Supreme Court's October 2018 Term.  The Court heard argument in two cases.  SCOTUSBlog, as usual, has commentary on the cases and what the Court faces this term.

I last blogged about the Kavanaugh hearings a few days before they started.  I also posted a guest blog on the first day of the hearings.  I think that many people thought, following those hearings, that the October Term would start with a full Court.  However, that is not the case.  On September 14, sexual assault allegations against Judge Kavanaugh became public.  Two days later, we learned that Dr. Christine Blasey Ford, a psychology professor in California, had sent Sen. Feinstein a letter in July accusing Judge Kavanaugh of sexually assaulting her in high school.  Since that time other allegations have been made against Kavanaugh, who has categorically denied them.  

The Senate held supplemental hearings last week on Kavanaugh's nomination, with both Dr. Ford and Judge Kavanaugh testifying. Although Kavanaugh was voted out of Committee on a party-line vote, the full Senate is holding off for a week on the confirmation vote until the FBI conducts an investigation into the claims.  

The allegations have served to further divide a very divided country.  It will be interesting to see where we stand next week--do we have a full Court, or will President Trump be announcing a new nominee?  How will this controversy impact the midterm elections?

 

October 1, 2018 | Permalink | Comments (0)