Appellate Advocacy Blog

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

Thursday, November 29, 2018

Justice Kennedy, On Retirement

The retirement of a Supreme Court Justice has become an event surrounded by speculation and spectacle. Justice Anthony Kennedy's retirement this summer lead to the most contentious confirmation process ever, so we can only brace ourselves for what the next retirement might bring. Justice Ruth Bader Ginsberg has faced much criticism for not stepping down during President Obama's tenure. Her supporters fear her trailblazing legacy may be in jeopardy if she is replaced by another justice who could be nominated by President Trump. A fight even more politicized than the last is likely in our future.

And that's why it was especially refreshing to hear Justice Kennedy's thoughts on his own retirement, and particularly the process of it. In a recent interview, Justice Kennedy said that he told none of colleagues of his decision until about an hour and a half before he went to the White House. He asked them not to say anything until he had his meeting with President Trump, who also was not given any advance warning from Kennedy. 

Justice Kennedy recognized his special place in history for his opinions that broke new ground, and were decidedly unpopular in some circles like Obergefell v. Hodges (same sex marriage), and Citizens United v. FEC (campaign finance). As to Obergefell, he remarked,

“I couldn’t hide,” Kennedy added. “The nature of injustice is you can’t see it in your own time. As I thought about it more and more, it seemed wrong to say over 100,000 adopted children of gay parents could not have their parents married. I struggled with it and wrote the case over the weekend. As you write, the reasons either compel themselves or not.”

And as for Citizens United, he noted,

“It’s true there’s a problem with money in politics, but I think we have to address it another way,” said Kennedy. He pointed to disclosure of the sources of the money. “Voters can vote against the candidate if they don’t like it.”

And mostly of his opinions, and those of the Court, he said,

“Our thinking is set forth in the opinions,” Kennedy responded. “We don’t go around later explaining. We hope the opinions are convincing.”

Aside from his written opinions, Justice Kennedy leaves another legacy of sorts: Both Justice Kavanaugh and Justice Gorsuch were clerks for Kennedy. Justice Gorsuch was the first justice to serve alongside his former boss. Kavanaugh now takes over Kennedy's seat, and with six of his former clerks also filling the billets of Supreme Court clerks this year, everyone should feel quite at home. 

November 29, 2018 in Current Affairs | Permalink | Comments (0)

Tuesday, November 27, 2018

Appellate Advocacy Blog Joins the ABA's Best Legal Blog List

Last night our blog received the great news that we have been added to the ABA's list of the best legal blogs.  This year only 10 new blogs were added, and our blog was the only new blog that covers advocacy-oriented topics.  You can see the list of new blogs here.

A team of judges that includes journalists, law professors, and lawyers, has been ranking legal blogs for the ABA Journal since 2012, making it the most trusted source for legal blog rankings.  We here at the Appellate Advocacy Blog are humbled and honored to be included on this list.

A special thanks to David Cleveland, our founding editor, and the folks at the Law Professor Blogs network who keep everything running smoothly.  Thanks also to all the contributing editors who work hard to bring you great content.  And, of course, we want to thank our readers for their support.  We look forward to bringing you more appellate focused stories in 2019!

November 27, 2018 | Permalink | Comments (0)

Monday, November 26, 2018

High Level Thanksgiving Scuffle

While most of America was preparing to stuff their faces with turkey, mashed potatoes, and pie while simultaneously getting into heated family debates at the dinner table, the President and Chief Justice engaged in their own high stakes, high level "family" dispute.  On Tuesday, November 20, President Trump criticized the Ninth Circuit after a district court judge in California blocked an executive order dealing with asylum cases. In his comments, President Trump referred to the district court judge as an "Obama judge."

In a rare move, Chief Justice John Roberts responded publicly to President Trump's comments, stating, “We do not have Obama judges or Trump judges, Bush judges or Clinton judges. What we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them.”  Not to be outdone, President Trump tweeted on November 21, "Sorry Chief Justice John Roberts, but you do indeed have 'Obama judges,' and they have a much different point of view than the people who are charged with the safety of our country. It would be great if the 9th Circuit was indeed an 'independent judiciary,' but if it is why......" 

So, who is correct in this high stakes scuffle?  While, I think that they are both right in a sense.  As former Bush speechwriter Marc Thiessen points out in The Washington Post

If we do not have Obama judges or Trump judges, then why did Senate Republicans block President Barack Obama’s nomination of Merrick Garland to replace the late Justice Antonin Scalia in the final year of Obama’s term? And why did Democrats filibuster Trump’s nominee, Neil M. Gorsuch, to fill Scalia’s seat?

Even Roberts’s fellow justices know there is a difference. If there were no Obama judges or Trump judges, then why did Anthony M. Kennedy wait for Trump’s election to announce his retirement? And why doesn’t Justice Ruth Bader Ginsburg just retire now and let Trump nominate her replacement? Because they both want a president who would appoint a successor who shares their judicial philosophy. (And, lo and behold, Trump appointed a former Kennedy clerk, Brett M. Kavanaugh, to succeed him).

But, Chief Justice Roberts is also right that judges should be above politics.  Most cases that are decided would come out the same way regardless of which president appointed the judges deciding the case.  But those cases usually don't make for interesting news.  Furthermore, judges and justices don't always decide cases the way their nominating president would prefer, which is right.  As Thiessen notes, "We do have an independent judiciary. Judges are not beholden to any president, including the one who appoints them. The judiciary plays a key role in our system of checks and balances. 'Trump judges' should rule against Trump when he is wrong."  

Unfortunately, it seems like neither the President or the Chief focused on the equally interesting issue of nationwide injunctions....

As we move into the next holiday season, hopefully the high level scuffles will end and each branch of government can go back to doing its job in a professional manner. 

 

November 26, 2018 | Permalink | Comments (0)

Tuesday, November 20, 2018

Thinking Tuesdays: Practicing the Violin for Legal Writers

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

***

A violinist studying to be a professional must practice between four to six hours a day, with at least one hour devoted to studies and simple exercises. Professor Ian Gallacher argues that the same should be true of legal writers—just as violinists must practice the violin every day to become better violinists, so must lawyers practice writing every day to become “more reflective, intentional, and more technically assured, writers.” This comparison is the genesis of Professor Gallacher’s article, “Four-Finger Exercises: Practicing the Violin for Legal Writers,” forthcoming in Legal Communication & Rhetoric: JALWD.

The article begins with a slice of music history, focusing on the origins of Beethoven’s Kreutzer Sonata, “arguably the greatest violin sonata composed.” Professor Gallacher weaves together the sonata’s history with the intersection of Beethoven and Rodolphe Kreutzer, “a very obscure French violinist” who found himself the dedicatee of a sonata that he had never performed or heard of, and George Polgreen Bridgetower, a “violin virtuoso” who was the sonata’s likely intended dedicatee (until he got into a fight with Beethoven over a woman, or so the story goes).

But Kreutzer’s greatest legacy is the collection of 42 studies that he wrote while he was a Professor of Violin at the Paris Conservatoire in the late eighteenth century. Each study requires the violinist to explore a specific element of violin technique in a methodical and careful manner. By using only simple and easily remembered notes, the studies allow the violinist to focus on technique without having to worry about musical expressivity. For example, in the famous second study, Kreutzer number two, the violinist is tasked with fifteen versions, or “incipits,” of the first measure of the exercise in order to perfect her bowing technique. The study is a “complete laboratory for bowing, allowing the violinist a place to work on every conceivable style of bow stroke and configuration.”

Just like violinists, legal writers also need to practice the technical components of their craft. But after the first year of law school, most lawyers never practice their writing again. As Professor Gallacher explains, lawyers “perform writing, but don’t practice it.” This lack of practice is understandable: lawyers are overwhelmed by their billable hours, already churning out and handling a “flood of words.” And yet, for “anyone who seeks to persuade, or attempts to summarize complex information in simple, well-structured, and easily read portions,” fine-tuning one’s writing is essential. Thus, Professor Gallacher sets out to propose the legal writing equivalent of Kreutzer’s studies.

So, what does writing training after law school look like? Professor Gallacher begins by introducing suggestions to consider when completing the exercises that he later proposes. His suggestions—“not rules”—include: (1) stepping away from the law and concentrating on the act of writing itself; (2) experimenting with how fonts and text size may impact your work; (3) practicing for 15 minutes, ideally in the morning; (4) practicing daily, or at least regularly; (5) changing your writing medium to see if it affects your style and quality of writing; (6) changing your writing conditions (music in the background? location?) to see if that affects your writing; (7) identifying your writing routine and your “trigger to creativity”; (8) waiting to review your exercise writings for a couple of days, identifying trends (both good and bad), and, for further reflection, joining other lawyers in a writers’ circle; (9) demanding honesty about the merits of the work and kindness to the writer; (10) identifying your weaknesses and coming up with exercises to work on those weaknesses; and (11) recognizing, and being okay with the fact, that these exercises were designed to develop technique, not to produce artistry.

Professor Gallacher builds on the foundation of these suggestions by proposing ten exercises that, like Kreutzer’s violin studies, are intended to help lawyers improve the distinct components of legal writing. Within each exercise, Professor Gallacher includes alternatives and questions for reflection, pushing lawyers to honestly critique their approach and technique. His proposed exercises range from freewriting, designed to “stretch out writing muscles and prepare you for a day’s writing,” to writing about an engaging piece of art without adverbs or adjectives, designed to have you “write objectively about something that is inherently subjective and emotional in nature.” With just a few minutes a day (ideally, fifteen), legal writers can practice their craft so that when it is time to perform, they are ready.

Legal writing is a skill that, like all skills, must be maintained. Professor Gallacher’s article succeeds in explaining why “simple repetition of performative writing is not enough.” His list of suggestions and exercises are both broad enough to stimulate creativity and narrow enough to provide an “action list” for legal writers who want to get better. The article is a great addition to the reading list of any practitioner, judge, or law student who wants to develop and fine-tune their legal writing abilities.

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

November 20, 2018 in Appellate Advocacy, Law School, Legal Profession, Legal Writing, Music | Permalink | Comments (0)

Monday, November 19, 2018

SCOTUS Proposed Rule Changes

Not all that long ago, the Federal Rules of Appellate Procedure were amended to shorten the length of briefs.  While circuits could opt out of the changes, the changes were not a huge surprise to those of us who had heard judges complain about briefs being too long. On November 1, a new set of proposed rule changes came out--this time to the SCOTUS rules.  Under the proposed changes, merits briefs will be cut from 15,000 words to 13,000 words. Amicus briefs at the merits stage would be cut from 9,000 words to 8,000 words.  Finally, reply briefs would be cut from 6,000 words to 4,500 words.  According to the National Law Journal, it seems like this last cut is the one getting the most attention and push back from practitioners.

For years I have taught appellate advocacy using the book Winning on Appeal.  In the second edition of the book, the late-Judge Ruggero Aldisert strongly cautions against filing a reply brief unless one of six situations exists:

  1. Appellee cites a case that you didn't cover in the opening brief and you can distinguish it.
  2. Appellee includes an argument that you didn't address in the opening brief and you have a good rebuttal to it.
  3. Appellee raises a jurisdictional question that you didn't cover.
  4. Cases have been handed down since your opening brief.
  5. Appellee misstated facts or made an irrelevant argument.
  6. Appellee failed to address one of your principal arguments.

In the third edition of the book, Judge Southwick and I noted that Judge Aldisert's dislike for reply briefs is not shared by all judges, and, in fact, some judges really value the reply brief or view the absence of a reply brief as "a surrender on anything in the appellee's brief that is new and for which some reply might have been helpful."  We encourage attorneys to ascertain the custom on reply briefs in their jurisdiction.

These proposed SCOTUS rule changes, however, make it appear that SCOTUS seems to fall more on the Judge Aldisert view of reply briefs--they just aren't that important, or at least attorneys don't need too many words to say what is important.

The proposed changes are open for comment until November 30.

November 19, 2018 | Permalink | Comments (0)

Thursday, November 15, 2018

Jones Day Means Pay Day for Supreme Court Law Clerks

It's no surprise that Supreme Court law clerks searching for a job in private practice will be faced with some tough choices, but determining which firm is offering the highest signing bonuses is not one of them. Jones Day leads the way this year in offering a signing bonus of $400,000. That is nearly double the salaries of the Supreme Court Justices for whom they clerked. And that does not include salary.

It's a given that any firm would be more than happy to hire a Supreme Court clerk. They have already proven their mettle and intelligence, so there is little risk as to whether they can handle private practice. But the opportunity to use the Supreme Court as a pre-screening testing ground for the next newbie associate is a privilege only a few firms can afford.

Michael Scanlon, hiring partner at Gibson, Dunn & Crutcher, which recruited two Supreme Court clerks from last term, said “the market appears to have settled” at $400,000. He attributes the escalating bonus to the fact that “the competition is great” for the small number of talented attorneys—38 or so—the Supreme Court turns out every year.

It's something to think about that thirty years ago the signing bonuses were in the neighborhood of $10,000, and even in 2015, they were around $300,000. Any way we look at it, Supreme Court clerking has been a bountiful niche to exploit. Supreme Court clerks go on to the most prestigious jobs in private practice, government, and many return to the Supreme Court - as justices. A majority of the Court now contains former Supreme Court clerks (Roberts, Breyer, Kagan, Gorsuch, and Kavanaugh). While the promise of exclusive access to desirable jobs and an extremely large signing bonus are attractive to former clerks, some people don't think it's a good thing.

“It’s become absurd,” said Todd Peppers, who has written books about Supreme Court clerks. “These firms can no longer credibly argue that they are compensating these former clerks for the additional education and training obtained during their Supreme Court clerkships. Yes, these former clerks are very smart. That being said, this is about access and insight into the individual chambers.”

U.C. Hastings College of the Law professor Rory Little, himself a former clerk, said, “If I were a clerk today and knew that I could get an extra almost half-million dollars, I would feel very careful about the firms’ Supreme Court cases while clerking. Seriously, an ethics expert needs to look at this carefully, under the current ethics rules and concerns we adopt for lawyers and judges in other situations. All 37 clerks or more feel that same ‘tug,’ even if it is implicit or unconscious.”

“When the numbers get so high—in terms of the bonus itself and the numbers of hires going to one firm—it unavoidably raises concerns about what is being purchased and the meaning of public service,” Harvard Law School professor Richard Lazarus said in 2015. Lazarus, reached this week, said he stands by those remarks, adding that “a vast majority” of the Jones Day hires are likely to leave the firm in a few years. “Jones Day is paying a lot of money for a photograph,” he said.

It's a point that might have been overlooked if these signing bonuses weren't so large - does the enormity of the sum start to create ethical problems for these lawyers while they are at the Court or for the perception of our justice system? 

 

 

November 15, 2018 in Legal Ethics, Legal Profession | Permalink | Comments (2)

Monday, November 12, 2018

Veteran's Day

Earlier this year, for Memorial Day, I posted about military service and the Supreme Court.  In honor of Veteran's Day (and because I am busy grading papers), I thought I would repost my comments.  As we now know, President Trump did not select a nominee with military service.  Maybe next time....

 

Today our country observes Memorial Day--a time to remember and honor individuals who died while serving our country in the military.  As the wife of a Marine Corps veteran, holidays like Memorial Day and Veterans' Day are dear to my heart.

As I was thinking about the upcoming holiday, I pondered how many Supreme Court Justices have served in the military.  The Supreme Court has decided several cases that impact the military, but how many are familiar with military service?  In searching the Internet for an answer, I stumbled across an August 2012 Atlantic article by Andrew Cohen, addressing the very topic.  According to Cohen, none of the current members of the Court have "active, wartime military experience." (Note:  Justice Gorsuch, who joined the Court after the article was published, also doesn't have military experience).  The last Justice with such experience was Justice John Paul Stevens, who served as a cryptographer in World War II.

Reviewing the backgrounds of the 112 Justices of the Supreme Court, Cohen estimated that only 41 had military experience, but "many never served in active duty during wartime or fired at an enemy."  Included in this group is Justice Kennedy (California Army National Guard), Justice Alito (ROTC and Army Reserves), and Justice Breyer (Army service).

Cohen's detailed research reviews each war and notes which Justices served.  Some notable veterans: Justice Holmes, Justice Black, Chief Justice Warren, Justice White, and Chief Justice Rehnquist.  Cohen notes, however, that since World War II, no future justices have served in combat.  As he states, "three generations of justices have come and gone since the end of hostilities in 1945, and yet none have seen combat before their tenure on the Court. Never before in our history, or in the history of the United States Supreme Court, has this occurred."

If Justice Kennedy does retire, perhaps President Trump will consider a veteran for the high court.  At least one member of his "shortlist"--Margaret Ryan--would fit that bill.

November 12, 2018 | Permalink | Comments (0)

Saturday, November 10, 2018

Grammar Bots Can Help Fix Your Legal Writing

Robot-writer

"To be a good legal writer, honestly, is to know the law, and to be a good writer." -- Justice Elena Kagan

Improving your writing muscle is like improving any muscle: it takes a long time and a lot of effort. Because even after you learn a new writing tool--say, by reading an article or listening to a lecture--it takes extra work for that tool to become part of your everyday writing habit. And if it's not habit, good luck remembering it at 3 a.m. as you pound out a brief. 

For law students and young lawyers, a big struggle is simply not having enough writing tools committed to habit yet. And playing catch-up is tough. They are still trying to figure out how the law works, much less the nuances of writing craft. For those of us who begin our legal careers with some big grammar and style gaps--that just compounds the problem. 

As a legal writing teacher, this is an eternal struggle. I sympathize with my students who feel attacked on all sides: not only must they learn how to wrangle all these legal concepts, but now they're expected to be a top-notch writer, too. And I'm not sure which is more difficult. For foreign lawyers, simply writing grammatically can feel overwhelming.  

But fear not, because like so many other things, technology can help. There are now incredible programs that can do wonders for helping you catch problems in your writing--and learn new writing tools while you're at it. What these programs do best is flag style bumps, which not only helps proof your document, but helps you get better at spotting the problems yourself. I find myself using these programs more and more to help students plug their grammar gaps and ease the burden of having to be both advocate and editor. 

In this post and next week's, I'm going to walk you through some of the most exciting automated grammar and style tools out there. In each post we'll look at a few tools that will help with your editing; then a few that will help you learn some new writing moves for yourself. 

1. To help you spot more edits: ProWritingAid, Word Rake, White Smoke, and Grammarly 

Every month there seems to be a new editing tool on the market. I try to demo each one as I find them--and there are some big differences in their capabilities. 

ProWritingAid: The powerhouse of style

For me, this might be the most exciting program because of how many editing tools it has under the hood. PWA gives you more editing suggestions than Grammarly. And it offers new, exciting ways to see your writing mechanics. I love having my law students use this tool when they're learning about sentence length and structure. 

On style, PWA catches things that many other checkers don't--like repetitiveness. We all sometimes repeat a unique word too soon in our writing, which sounds off to the ear. PWA understands that and will flag them. You can see that PWA even color-codes the repeats. 

Repeated

PWA also helps shore up all sorts of other style tools: like missing transitions, pronoun problems, cliches, vague wording, sentence-length variation, over-dependence on adverbs, passive voice, and over-complicated sentence constructions (In other words, a good chunk of the things we all painstakingly edit for). 

Giphy (1)It has one of the coolest style-analysis tools that I've ever seen. PWA gives you a visual snapshot of your sentence lengths throughout your document, helping you home in on the important places to start editing. For law students and young lawyers, I find that looking at visual and data-driven analysis of their writing gives them a whole new perspective. 

Sentence analysis

PWA also breaks down all sorts of writing dimensions: like your most commonly used words, your transition-word index--and so much more. Here is an analysis of a law review article: 

AnalysisPWA has a powerful grammar and spelling checker that catches contextual misspellings and usage problems (which, to be fair, many of the other tools on this list do, too). 

PronounsPWA offers an awesome word finder that that will help you find that perfect concrete verb or descriptor you need to persuade. This tool is advanced: predicting which words or phrases will be most helpful for you given the context added by surrounding words.  PWA can even help you find the perfect sounding words (if you're going for a rhetorical flourish). 

Thesaur

Finally, PWA is pretty good in the learning department, too. It's not designed as a pure education tool, but it offers great explanations of the edits that it suggests.

Giphy (2)Oh, and PWA integrates with Word and other platforms. So no worries there. 

Word Rake: The concise-inator. 

I warn you: for legal writing nerds, this one may blow your mind (and feel a little like magic). Word Rake was built for one thing: conciseness. Click a button and the tool ripples through your writing, clearing away clutter and glue words to leave only those content-packed gems. 

  Work rake

The founders have 9 patents on their clutter-clearing inventions. And the power of the technology shows. 

A Grammarly alternative: White Smoke

White Smoke is less polished than Grammarly, but it boasts some features that the grammar-giant doesn't. White Smoke will catch tons of grammar problems that you would otherwise need to do by hand--like double negatives, subject-verb disagreement, tense shifts, and those pesky dangling modifers. 

The ever-popular (and rightly so) Grammarly

There is a reason that Grammarly is the most popular editing tool on the market: it's good. Grammarly operates smoothly and catches many of the important edits. It's easy to use and fast. And the company is always adding new tools. Grammarly is also pretty good in the teaching department, explaining most of the edits that it suggests.

  Grammmmmy

Grammarly has an updated reports feature, which gives you analysis of your writing style. This is helpful for setting writing goals and tracking your improvement. 

  Gramm reports

2. To teach you some new writing moves: Noredink, Hemingway App, and Writing Like a Lawyer

One of the most common questions I get is: how do I work on my basic grammar? A lot of us have grammar gaps coming into the law, and there is nothing that kills credibility faster than glaring grammar mistakes in your legal writing. Luckily there are some great programs for the basics. I'll cover the non-legal ones this week and explore the legal ones (Core Grammar, Writing Like a Lawyer, and others) next week. 

Noredink: Grammar basics 

Noredink is excellent for brushing up on every aspect of grammar and usage. Not only is it a comprehensive resource for grammar lessons--the developers created some neat, intuitive ways to practice.

 

No red ink

Noredink is great for teachers, because you can setup your own custimizable course--focusing students on whichever grammar or usage issues you see them running into. I use it with my foreign law students all the time. 

Noredink options

Hemingway app: a high-level writing highlighter 

Hemingway app is a classic (and free). This tool will train you to spot long sentences, complex phrases, over-used adverbs, and passive voice. It's the easiest tool to use: just paste in your writing and it goes to work. Color-coded highlights will instantly show you what to work on. 

  Hemingway

See you next week!

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

November 10, 2018 | Permalink | Comments (2)

Friday, November 9, 2018

Appellate Advocacy Blog Weekly Roundup, November 9

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:

A lot is happening at the Supreme Court his week. 

Adam Liptak of the New York Times has this report about the Supreme Court declining to hear challenges to the "net neutrality" regulations adopted in 2015 by the Federal Communications Commission. Three members of the Supreme Court — Justices Clarence Thomas, Samuel A. Alito Jr., and Neil M. Gorsuch — said they would have instead vacated the appeals court decision as moot, presumably because the commission reversed itself last year, after a change in its membership.

The Court took up a case with a "peace cross" on public land. The case may affect the Establishment Clause in a big way. The National Law Journal reports about it here. 

On Tuesday the Court heard arguments in an appeal from a death penalty inmate suffering from a rare medical condition his lawyers say will cause excruciating pain if put to death by lethal injection. Liptak's analysis of the case is here, reporting how Justice Kavanaugh will hold a key vote in the case. 

The Court has denied blocking a trial in the case fighting the U.S. Commerce Department's decision to add a citizenship question to the 2020 census.  The ABA reports about the story here.  

Justice Ginsburg reportedly fell in her office Wednesday and was hospitalized on Thursday morning for rib fractures. This morning, she's evidently working in her hospital room, says her nephew. The Washington Post reported her fall here.

And of course the investiture of Justice Kavanaugh occurred on Thursday. Amy Howe from the SCOTUSblog reports about the event here.

State Court News:

Following election Tuesday, many changes took place to the Texas intermediate appellate courts. Many judges were swept out of office by others who are "completely unknown" or who have "little to no experience representing clients before appellate courts." Todd Smith (@dtoddsmith) reports about the effects of the changes here

Other Appellate-Worthy News:

Bryan Garner tweeted about Andrew McCarthy's National Review Article this week that focused on the birthright citizenship debate and the interpretation of the 14th Amendment. Discussions about the topic emerged in the days leading up to the election.   

 

November 9, 2018 | Permalink | Comments (0)

Thursday, November 8, 2018

Thinking Thursdays: Dethroning the Hierarchy of Authority

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

The hierarchy of authority – the ranking of legal authorities within binding/persuasive and primary/secondary categories – is a component of basic lawyering 101. Professor Amy J. Griffin, in her forthcoming article Dethroning the Hierarchy of Authority, however, argues that the conventional view of legal authority as a “hierarchy” is simplistic and fails to adequately capture the complex ways that practitioners and judges select and rely on authority.

Professor Griffin argues that the traditional categorization of legal authority into binary categories that are static is “significantly flawed, and seriously incongruent” with the use of authority in practice. In particular, Professor Griffin focuses on lawyers’ use of persuasive authority – which she calls “optional authority.” This category of authority has drastically expanded in recent years because the internet has made both legal and non-legal information easily accessible.  This accessibility has led lawyers and judges to increasingly cite types of information previously unseen in briefs and judicial opinions – information ranging from social science authorities and empirical studies to tweets.  Professor Griffin observes that despite this explosion in availability of possible optional authorities to cite, the current hierarchy of authority “offers no means of differentiating between sources as disparate as empirical social science studies and legislative history.” The article warns that without a model governing the appropriateness and authoritativeness of such sources, “the only guard against bias seems to be the adversarial design of the judicial system.”

Although commentators have previously offered suggestions regarding how lawyers should choose which optional authorities to cite in support of their arguments, Professor Griffin states that “no comprehensive view” has been articulated and argues that “we must resist the appeal of a neat objective ranking.” Instead, she proposes a “shift to a holistic, pluralistic view of legal authority.” This pluralist scheme would permit scholars to develop a theory to explain the use of optional authority and would give lawyers a better predictive model of authority. A key role of lawyers is to predict legal outcomes for clients. If lawyers do not have a theory to explain why judges choose to rely on certain optional authorities over others, then making those predictions becomes significantly more difficult. Although Professor Griffin does not offer a scheme, her article raises interesting and important questions about the weight of authority in a world where lawyers now face more choices of authority than ever. Professor Griffin concludes that “[w]e need a wider lens and more flexible framework” that permits a deeper exploration and understanding of the complexities of the weight of authority.

November 8, 2018 in Appellate Advocacy, Appellate Practice, Law School, Legal Profession, Legal Writing | Permalink | Comments (0)

Friday, November 2, 2018

Appellate Advocacy Blog Weekly Roundup Friday, November 2

 

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:

The Supreme Court has proposed a number of revisions to the Court’s Rules and has invited public comment.  Among the highlights are proposals to lower the maximum word count on merit briefs and tighten filing deadlines.  See more HERE.  

This week the Court denied entry to court to a tribal leader wearing a headdress, making headlines.   Read the story HERE.  The tribal leader, Yakama Nation Tribal Council Chairman JoDe Goudy, was attempting to enter court to hear arguments involving a treaty between his tribe and the federal government, and he insisted on wearing his tribal regalia.  Representatives of the Court indicated that Goudy had been notified ahead of time that head coverings are only permitted in the courtroom for religious or medical reasons.

Justice Sandra Day O’Connor’s announcement that she is withdrawing from public life in the wake of early onset dementia continues to ripple through the legal community; her impact on the American legal landscape really can’t be overstated.  The Washington Post had this opinion piece.  

 

State Appellate Court Opinions and News:

On Thursday this week, the Nebraska Supreme Court heard oral argument in a case involving the Keystone XL Pipeline.  A link to video stream is available HERE

State courts involved in impeachment battles may mark a worrying new trend to challenge judicial independence and legitimacy:  Story HERE.

November 2, 2018 in Appellate Advocacy, Appellate Practice, Federal Appeals Courts, State Appeals Courts, United States Supreme Court | Permalink | Comments (0)

Thursday, November 1, 2018

Highlights from the 2018 Appellate Hot List

The yearly Appellate Hot List recognizes lawyers and law firms who achieved great victories at the Supreme Court or federal appeals courts. This year's list of 22 includes firms perpetually on the list like Jenner and Block, Jones Day, and Mayer Brown. But it's worth clicking over to see short vignettes on each firms' most notable cases for the year.

The money at stake can be astronomical, as in Kathleen Sullivan's victory of a vacation of $139.8 million dollars royalty damages award in Power Integrations v. Fairchild Semiconductor. That was only one of Quinn Emanuel Urquhart & Sullivan's achievements this year in the multi-million, and billion dollar range. Sullivan's advice for succeeding in her complex cases is to "simplify, simplify, simplify."

Geyser PC's Daniel Geyser convinced the Supreme Court to find in his client's favor regarding the Mandatory Victims Restitution Act, also a multi-million dollar case. His client was facing investigatory costs over $5 million. The Court limited the scope of the costs under the act. Geyser credits his success to being creative in his firm's approach to the case. They explore every angle and they keep the same lawyers on the case from start to finish. 

More and more Indian Tribe controversies are gaining public notice, and Pratik Shah of Akin Gump Strauss Hauer & Feld, has a list of victories to show for them. In the Patchak v. Zinke property dispute, Shah developed a second angle to his argument that first focused on separation of powers. His strategy paid off when he won 4 votes from the Court on his primary argument, and 2 more members concurred in the judgment on his alternative legal theory argument. He too emphasizes thinking creatively, and to be confident about rethinking, revamping, and reframing arguments.

 

November 1, 2018 in Appellate Advocacy, Legal Profession | Permalink | Comments (0)