Friday, December 28, 2018
Each week, the Appellate Advocacy Blog Weekly Roundup presents a few tidbits of news and Twitter posts from the past week concerning appellate advocacy. As always, if you see something during the week that you think we should be sure to include, feel free to send Dan Real 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 News:
Justice Ginsburg is reportedly out of the hospital recuperating from her recent surgery. Adam Liptak of the New York Times tweeted about it here. Additionally, the movie On the Basis of Sex about Justice Ginsburg's time as an advocate was released this week, and is reported here.
Adam Feldman of Emperical SCOTUS takes a look at President Trump's mention of the Supreme Court in the last 365 days here.
Federal Court Opinions and News:
Howard Bashman asked these questions this week: Does an impermissible but timely filed post-judgment motion postpone the time for appeal in a federal civil case, and how should a court calculate a three-month period under Fed. R. Civ. P. 6(a)? And the Court of Appeals for the Ninth Circuit answered them in this opinion.
Practice Pointers and Tips:
Are you a word nerd? Check out three of Bryan Garner's quizzes to test your knowledge.
Happy New Year!
Thursday, December 27, 2018
The week between Christmas and New Year's always feels magical to me. It's like it doesn't count against time, and once Christmas zone is entered, it transports me without notation to the first of January. A lost week.
When I was in practice, though, it was anything but. I can't remember a week between these two points where I wasn't buried deep in writing memos and responses. It was not a time of renewal or relaxation. And as a single mom, it did nothing to help me feel good about being a mother. Hardly a time for balance or reconnection.
As a law professor, however, I now have this glorious downtime, and it gives me the opportunity to think about things. It is a privilege for which I am duly grateful. Since I've been writing here I've gravitated toward ethical issues, a real surprise since I had no special interest and do not teach in the area. Despite that, I have now developed a profound interest in ethics and look for those specific events in legal practice to share here.
Taking advantage of this extraordinary privilege of time off between Christmas and New Year's I am currently traveling to Reykjavik. I am not sure what came over me to visit the land of fire and ice during the time of year where there are only four hours of daylight, but I will try anything once. On my Uber ride to airport I told my driver I was a lawyer. He told me of his terrible experience he had with lawyers. He apologized at the end of the ride and said he hope he had not ruined my trip. He most certainly had not. He set me on fire.
Why is it that so many of the stories that everyday people have about lawyers is how bad they are? From our point of view we work very hard to not make that so, but when we poll the public, we only hear more bad lawyer jokes.
My driver's story was not catastrophic. He had been in a car accident; he was at a stop sign, another driver swerved across the line, she was avoiding a crash on her side of the road. He was not injured but his truck was totaled. His car was in the tow yard, waiting to be fixed, but his insurance would not pay, saying he was at fault. He was not at fault, but needed help to nudge the insurance company. He called many lawyers in town (many prominent names I won't mention here) and none of them would help him. The first question he was asked at each office he called, "Are you injured?" When he said no, they referred him on to someone else. Lawyers are also business people, and we understand exactly what was happening. His case was not worth much without a personal injury. Since that time he has told everyone he knows not to believe the ads on tv. Those lawyers will not get you $300,000 for your car accident. Unless you are in a wheelchair, don't bother calling for help.
My driver did find one young lawyer to help him with his claim. This lawyer knew the claim was not worth much, but for some reason had it in his heart to help. My driver, an older gentleman, told me how he cried when this one lawyer took the time to help him figure this out.
To me, this small assistance is what is gravely needed in legal practice. The cost of legal education is astronomical and does not lend itself to taking on small claims and modest clients. Many other things factor into the cost of legal service that drives the cost up for clients. In the meantime, so many people who need simple help get shuffled around and likely end up not being able to assert their claims.
As a profession we have lots of high level awareness of this problem, but in my estimation it is frequently superficial. We have mandatory pro bono, we have many legal clinics dedicated to the indigent, we have guaranteed representation for criminal clients. But we do not have an industry where everyday people can seek legal advice for a reasonable price. So many people who could benefit from legal counseling forego it because of the cost, or because they don't know how beneficial it would be for them. Simply to have their affairs in order is something everyone should be able to take advantage of.
Perhaps I am wrong in this assessment, but it has been my impression for a long time, and this impression was reaffirmed just today. I would like to hear from our wide variety of readers if as legal professionals we are on the right track, or whether it is time for us to reassess and maybe realign our practice models. After all, the new year is upon us, and this is the perfect time for New Year's resolutions.
Here's wishing everyone a happy and healthy New Year. I hope we all find time to contemplate what matters and make concrete steps toward making life meaningful for ourselves, and for those around us.
Monday, December 24, 2018
Recently, the Ninth Circuit cautioned district court judges against using nationwide injunctions. The case concerned administrative changes by the Trump administration to the ACA's contraception coverage. Last year, a California District Court judge had enjoined the changes. According to the National Law Journal, the Ninth Circuit narrowed the preliminary injunction, "to apply only in California, Delaware, Maryland, Virginia, and New York, states that were the plaintiffs in the underlying lawsuit."
The court's discussion of nationwide injunctions starts on p. 43 of the opinion. The discussion of the court's concerns is quite informative:
First, “nationwide injunctive relief may be inappropriate where a regulatory challenge involves important or difficult questions of law, which might benefit from development in different factual contexts and in multiple decisions by the various courts of appeals.”[citation omitted]. The Supreme Court has repeatedly emphasized that nationwide injunctions have detrimental consequences to the development of law and deprive appellate courts of a wider range of perspectives. [citations omitted].
The detrimental consequences of a nationwide injunction are not limited to their effects on judicial decisionmaking. There are also the equities of non-parties who are deprived the right to litigate in other forums. See Zayn Siddique, Nationwide Injunctions, 117 COLUM. L. REV. 2095, 2125 (2017) (“A plaintiff may be correct that a particular agency action is unlawful or unduly burdensome, but remedying this harm with an overbroad injunction can cause serious harm to nonparties who had no opportunity to argue for more limited relief”). Short of intervening in a case, non-parties are essentially deprived of their ability to participate, and these collateral consequences are not minimal. Nationwide injunctions are also associated with forum shopping, which hinders the equitable administration of laws. See Samuel L. Bray, Multiple Chancellors: Reforming the National Injunction, 131 HARV. L. REV. 417, 458-59 (2017) (citing five nationwide injunctions issued by Texas district courts in just over a year).
These consequences are magnified where, as here, the district court stays any effort to prepare the case for trial pending the appeal of a nationwide preliminary injunction. We have repeatedly admonished district courts not to delay trial preparation to await an interim ruling on a preliminary injunction. [citations omitted]. “Because of the limited scope of our review of the law applied by the district court and because the fully developed factual record may be materially different from that initially before the district court, our disposition of appeals from most preliminary injunctions may provide little guidance as to the appropriate disposition on the merits.” [citation omitted]. The district court here failed to give any particular reason for the stay,8 and this case could have well proceeded to a disposition on the merits without the delay in processing the interlocutory appeal. "Given the purported urgency of" implementing the IFRs, the agencies and intervenors might “have been better served to pursue aggressively” its defense of the IFRs in the district court, “rather than apparently awaiting the outcome of this appeal.” Global Horizons, 510 F.3d at 1058.
I suspect that we will see the Supreme Court take up a nationwide injunction case in the not too distant future. Perhaps even this one.
Saturday, December 22, 2018
Authors often spend months agonizing to find the perfect title for their books. And it’s because titles matter. They change how readers see everything that comes after the cover is opened.
What would be lost if these books were named something less: “A Brave New World,” “A Hundred Years of Solitude,” or, of course “To Kill a Mockingbird”? And take a few modern titles that undeniably do some work: “The Particular Sadness of Lemon Cake,” “The God of Small Things,” and “No One Belongs Here More Than You.”
We use titles in legal writing, too. We just call them headings. And because our briefs often contain many stories (whether legal or factual), we use different headings to capture each distinct part. If anything, these headings are more important to lawyers than they are to novelists. Headings can be game changers—and crafting good ones is an art unto itself:
- If headings are pithy and well organized, they will convince your reader to read your document and keep reading;
- If they are easy to navigate, your reader (say, a judge) might refer to your document later as a reference;
- Headings can show your reader at the highest level how all the pieces of your analysis fit together: delivering a type of persuasion that just can’t be evoked piece by piece;
- This is particularly true in the table of contents: a great set of headings can give your reader a one-page story;
- Well-crafted headings that capture your best points will persuade;
- Finally, headings can do wonders for your storytelling skills: framing how your readers see good and bad facts.
And at bottom, as Bryan Garner points out, until you’re ready to write excellent headings that capture the essence of each section—you probably don’t understand your points well enough to persuade.
Despite all this, many lawyers ignore headings. They copy and paste the same titles in every brief they churn out. There is a “Background” heading, an “Argument” heading, and one for the “Conclusion.” If the reader is lucky, there are a few (often generic and nondescript) headings dropped into the Argument section.
So how do you build the heading of your dreams? First, I have few basic heading musts. Then I offer some advanced tools if you’re ready to truly embrace the power of the heading.
Heading musts: Use them more, don’t let them get too long and make them look nice
These basics shouldn't be negotiable. First, use headings anytime they will help your reader—which for most lawyers, means using them a lot more than they do. There is no reason to force a reader to skim pages of argument, paragraph by paragraph, to figure out what points are where. Nor is there any reason to drop a reader into a factual abyss with mountains of details and no headings to guide them.
Use headings in your fact sections; use them throughout your argument. Not only can you use headings for each issue or sub issue—you can use them within a section to signal subparts. Take this example from an excellent brief:
There are two rules that emerge from this trio of cases.
FDCPA claims cannot be brought after the statutory period. Both Gracey and Park repeat that the statutory period still matters.
. . .
FDCPA claims cannot be brought by a third party. The Park court went to great lengths carving third parties out from the sorts of plaintiffs who can bring these claims.
. . .
Second, don't make your headings too long. Even a few lines of clunky text can do more harm than good. A dense heading, aside from probably being skipped altogether, just signals that a verbose slog must be coming in the body. I don’t know about you, but I would find something else to do if I opened a brief and this (real) heading greeted me:
This Court Should Grant Certiorari Pursuant to Rule 39(a)(1)(D) Because the Court of Criminal Appeals’ Decision Affirming Summary Dismissal of Mr. Marin’s Claim that He Received Ineffective Assistance Of Appellate Counsel Due to Appellant Counsel’s Failure to Argue That Remand Was Necessary to Demonstrate That Mr. Marin Reasonably Relied on the State’s Action Is In Conflict With Moore v. Texas, Montgomery v. Louisiana, Brumfield v. Cain, Hall v. Florida, and Smith v. State”
Instead, consider aiming for a couple lines of tight text. It’s going to take some crafting, but the payoff is real:
Counsel was ineffective because he failed to explain to the lower court that, once free, Rene spent four years building a family and career—all in reliance on the state’s mistake.
Next, make sure your headings are formatted consistently. That means the same ordinals, the same formatting, and the same spacing for each equivalent heading throughout your document.
Traditionally, headings in legal documents start with roman numerals at the top level (I, II, III); then go to capitals (A, B, C); numerals (1, 2, 3); lowercase letters (a, b, c); then romanettes (i, ii, iii). For the more bold, some folks suggest that a numeral system is easier to read. So 1, then 1.1, and so on.
Finally, headings are no excuse to use a different tone than you would in the body. Lawyers often throw sensational advocacy into their headings—like personal attacks or over-the-top characterizations. Just because a heading is not followed by a cite does not mean that your credibility is any less at stake. So please none of this, from a real filing:
Plaintiffs lost this case and they know it, so they are desperately grasping for life on a new legal theory about statutory remedies that utterly fail out of the gate.
Some more advanced moves: Crafting headings that hit
There are several heading techniques that the best advocates use. And for good reason: some of these are supported by cognitive science and research. If nothing else, many of the most winningest advocates use them.
Style matters, so craft headings using vibrant, concrete words and sentence structure
Headings are your readers’ first introduction to your section—so they should be inviting. By sprucing up the yard of your section, your readers will want to come in and read more. Your headings are your promise that clear, engaging prose will be inside. Take this engaging nugget from a motion for summary judgment:
Marx sidestepped the extra tax penalties by ballooning the fees he raked in from his own customers.
Other than using strong verbs and nouns—the pithier and smoother you make your headings, the better they will stick in your reader’s mind. So use tools like sentence balance, echo words, alliteration, and the array of sentence-level style tools at your disposal.
Try this heading out for size, and note the word balance, the placement of “buyout” at the end of the first clause to emphasize that key word, the repeated “b” words, and the trio of parallel phrases to tie things up:
Plaintiffs press for an interpretation where they can breach and buyout—but that has never been the parties’ intent, they said so under oath, and their actions confirm it.
You aren’t going to craft gems like this without some thought, but the effort will pay off.
The same typography science I’ve covered in other posts applies to headings: weird fonts or emphasis combinations are harder to read. A lot of people like all caps, but the only research on point I know of suggests that it’s harder to read. Many counsel against underlining for the same reasons, and I tend to agree. But what I know can’t be good is a mashup of emphasis like this:
This Court Should Grant Certiorari Pursuant to Rule 39(a)(1)(D) Because the Court of Criminal Appeals’ Decision Affirming Summary Dismissal of Mr. Hoffman’s Claim that He Received Ineffective Assistance Of Appellate Counsel Due . . .
And I don’t know why you’d use different fonts for headings than you use in the rest of the document—but lawyers do that al the time. Look at the difference in readability when you just bold the heading:
This Court should grant certiorari pursuant to Rule 39(a)(1)(D) because the Court of Criminal Appeals’ decision affirming summary dismissal of Mr. Hoffman’s claim . . .
To make this part easy, try programming the heading format you like into Word’s style feature. I put together a visual guide to doing that here.
Don’t let headings come as a surprise
One of the most frustrating things for me as a reader is when a brief has a bunch of headings that are either so deep into the weeds or lack so little setup beforehand—I can’t actually get anything out of them until I read the whole section.
That strategy makes no sense. If your reader has no context to understand your headings, they are unlikely to remember them in the first place (all readers want to connect what they are learning to what came before). And how can your heading frame or persuade if your reader can’t even understand it? Not to mention that, as explained above, some of the magic of good headings is that they tell a mini-story about your entire brief right in the table of contents.
There are a few strategies to make sure that your headings will make sense to the new reader. First, keep your headings at a high enough level—and in a sensical order—so that your reader can understand the basics when they first read the table of contents. Indeed, that’s a good test. If a fresh reader would have no idea what your headings mean or how they fit together from reading them in isolation, you aren’t getting all that you can out of this tool.
Take this example from a transgender-bathroom-ban case penned by writing guru and federal judge Jennifer Dorsey. Notice how you need no extra explanation to follow these fact headings:
- Brandilyn Netz becomes Bradley Roberts.
- [The school district] officially bans Roberts from both the men's and women's bathrooms.
- [The district] circulates an email informing Roberts's coworkers that they should refer to him as a man.
- Roberts files administrative charges and [the district] lifts the bathroom ban.
Second, to make them hit even harder, setup your headings beforehand. In your introduction, you can preview the substance of all the headings that are coming. Then as you enter each section, you can further roadmap the coming headings and briefly explain why they matter. This allows you to add a little more nuance. See how easy it is to pick up on this heading with just a little setup:
Because the plaintiff has alleged no injury caused by the cars, there is no standing here. But even if there were, the alleged harm was all suffered back before the statute of limitations ran.
A. Plaintiff alleges only that he was unable to use his car for an hour—that is not the sort of injury required to have standing.
. . .
B. In any event, Plaintiff’s allegations are all about things that happened before 2012, so the 4-year statute of limitations has ran.
Finally, avoid acronyms (unless your reader is sure to know it, like CIA) or any other word, phrase, or concept that won’t make sense when reading the heading alone.
Facts plus headings become stories
Headings may be at their most powerful when used in fact sections. Headings can help compartmentalize facts, you can use them to frame how your readers will see both the good and the bad, and they are just plain useful for trudging through the details that overflow most legal writing.
Consider also starting your fact section with a brief overview of your headings—I like to think of it as a movie trailer. You are offering a sneak peek of the big picture, and at the same time, setting up all of your fact headings.
Your fact headings should usually be chronological, and if not, at least in some easy-to-see logical order. Otherwise good luck putting together a story. Quotes can also help give a sense of narrative to your headings. And one final recommendation for fact headings: the present tense helps deliver a sense of time and narrative.
Check out this example, which brings all these techniques together: note the movie-trailer introduction, the use of quoted facts, the logical progression, and the present tense:
Park was in the fold from the start. She was told about EmGen diving, she then sold her stock, and then she lied and encouraged others to do so, too . . .
“Peter Bacanovic Thinks EmGen is Going to Start Trading Downward”
Park Sells Her ImClone Stock
“Something is Going on With EmGen and Park Wants to Know What”
February 4, 2002: Park Lies to Investigators
February 13, 2002: Jamie Lies in Sworn Testimony
March 7, 2002: Sampson Lies to Investigators Again
April 10, 2002: Park Lies to Investigators Again
Park’s False Public Statements
Jamie Reveals the Truth
To make your headings persuade, highlight key facts, phrases, or themes from the section.
As I’ve said about introductions before: a lot of persuading is simply highlighting the right facts and points in the right way. And headings are another excellent place to do that highlighting. By sifting through your section to find those gems of key facts or law, you will be dishing your best work up on a platter for your reader.
Check out how this federal litigator flashes the key facts and legal points from his sections:
The defendant had no expectation of privacy in his bathroom because he “called police on the phone” and “asked them” to come inside.
This court has no jurisdiction because the deadline to file the complaint was June 2017 and plaintiff filed in September of that year.
The Supreme Court caselaw requires alleging the date, time, and means of carrying out the conspiracy.
Look at this clunker from a habeas brief. Not only is it long, but it doesn’t even capture any of the key persuasive points from the section:
This Court Should Grant Certiorari Pursuant to Rule 39(a)(1)(D) Because the Court of Criminal Appeals’ Decision Affirming Summary Dismissal of Mr. Hoffman’s Claim that He Received Ineffective Assistance Of Appellate Counsel Due to Appellant Counsel’s Failure to Argue That Remand Was Necessary to Demonstrate That Mr. Hoffman Is Intellectually Disabled.
Now check out how a rewrite—with even fewer words—can do more just by highlighting the right facts and points:
Cert is warranted because trial counsel never even mentioned that Mr. Hoffman was intellectually disabled—despite that he has an IQ of 50 and this court has held that an IQ of 65 warrants relief.
And for a more legal-centric example, take this beauty, again compliments of Judge Dorsey. And note the use of key points and phrases to highlight the essence of her analysis:
The weight of authority suggests that Title VII's use of the word “sex” encompasses protections for discrimination against gender identity
I join the weight of authority and hold that discrimination against a person based on transgender status is discrimination “because of sex” under Title VII.
And here’s some excellent examples shared by Bryan Garner:
The four-year statute of limitations bars this action because Mr. Smith waited six years to file this suit.
Two essential elements of fraud—intent to deceive and detrimental reliance— were not established.
Finally, I’ll leave you with a few observations from Bryan Garner about how the U.S. Solicitor General's office crafts headings. I think they are all great:
- They use full, declarative sentences;
- They use normal type (no all-caps or underlines) and single space;
- Acronyms and initializations are disfavored;
- No citations for cases mentioned in headings;
- The headings all come together in the table of contents to tell a coherent story;
- The headings move from major to minor supporting points—then to points refuting the other side.
So spend some more time on your headings. Your readers will thank you.
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.
Friday, December 21, 2018
Each week, the Appellate Advocacy Blog Weekly Roundup presents a few tidbits of news and Twitter posts from the past week concerning appellate advocacy. As always, if you see something during the week that you think we should be sure to include, feel free to send Dan Real a quick email atDReal@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 News:
At the time of his recent nomination and confirmation to the Supreme Court, Justice Brett Kavanaugh became the subject of 83 ethics complaints. A specially appointed federal panel of judges was tasked with reviewing the complaints, amidst much speculation that Kavanaugh could not be disciplined once confirmed to the Supreme Court. This week, that panel of judges dismissed all 83 complaints, concluding that although the complaints were serious, there does not exist authority for lower court judges to investigate and discipline a sitting Supreme Court Justice.
- NPR Story reviewing the dismissal HERE.
Paul Clement served as United States Solicitor General, and he has argued more than 90 cases before the Court. Clement recently shared stories about his advocacy before the Court as part of the "Countless Stories" video series from Harvard Law School.
- Harvard Law video HERE.
The ABA Journal had a story this week about a recent study wherein researchers studied nearly 3000 hours of oral arguments before the Supreme Court over the past 30 years. According to the study, vocal pitch of the justices during arguments is strongly predictive of their votes. The authors posited that they were able to predict nearly 60 percent of justices' votes accurately and nearly 67 percent of overall case outcomes.
- ABA Journal article HERE.
Federal Court Opinions and News:
The Fifth Circuit Court of Appeals decided a case this week wherein representatives of the victim of a distracted-driving automobile accident sued Apple, alleging that Apple failed to implement patents to lock out phones while driving and failed to sufficiently warn iPhone users about the dangers of distracted driving. The representatives "alleged that receipt of a text message triggers in the recipient 'an unconscious and automatic, neurobiological compulsion to engage in texting behavior.'" The district court granted Apple's motion to dismiss, denied the plaintiffs' motion for leave to amend, and dismissed the complaint with prejudice. The Fifth Circuit affirmed on appeal.
- Fifth Circuit Opinion HERE.
Thursday, December 20, 2018
Margaret Hannon, guest blogger, Clinical Assistant Professor of Law, University of Michigan Law School
Distraction is not the first thing that comes to mind when thinking about effective persuasion. Isn’t the aim of persuasion—and advocacy more generally—to try to avoid distraction? To the contrary, Professor Melissa H. Weresh argues that distraction and redirection are persuasive techniques that advocates can use effectively to influence results. In her article, “Wait, What? Harness the Power of Distraction or Redirection in Persuasion,” recently published in Legal Communication & Rhetoric: JALWD, Professor Weresh “studies how distraction influences results and whether there is therefore a potential for the intentional use of distraction, or redirection, in advocacy.” As a baseline, Professor Weresh defines distraction, misdirection, and redirection as “deliberately redirecting the attention of the listener with persuasive intent in mind.”
Professor Weresh connects the use of redirection in advocacy to principles from storytelling and psychology. All three hinge on the innate human desire for “equilibrium, or resolving uncertainty.” When redirection techniques are used to disorient the listener and shock her out of her equilibrium, a solution can then be offered that resolves the uncertainty and allows the listener to regain her control, leading to a solution that the storyteller wanted all along.
Professor Weresh argues that advocates are already using redirection techniques, even if they are not explicitly described as such. As advocates, lawyers use redirection by making choices “as to what to reveal or emphasize” to “orient the reader’s focus or attention,” which then “redirect[s] the attention to a persuasive result.” For example, criminal defense lawyers have multiple redirection strategies at their disposal. They can use explicit misdirection to create doubt about bad facts and law by “keeping relevant material out of consideration, confusing witnesses, or redirecting the flow of the argument.” With this strategy, the lawyer tries to “undermine the plausibility of the story offered by the prosecution and therefore to interfere with the coherence of the story offered by the prosecutor.” Criminal defense lawyers can also use more implicit redirection strategies, such as using closing arguments to recast the role of the jury as the protagonist. But the use of redirection is not limited to the criminal defense context. Professor Weresh also presents other redirection strategies that can be used more generally. For example, advocates may frame or reframe an issue to invoke the decisionmaker’s fear (“the reptile strategy”). When used by plaintiffs, it “seeks to pit the [decisionmaker] against the defendants by making the [decisionmaker] feel that the defendants’ actions and products threaten themselves, their families, and their societies.”
Redirection strategies, of course, raise ethical concerns. If lawyers are expected to be truthful, then how can they engage in misdirection? There is no bright line between true and false; instead, there is a continuum—some middle ground between absolute truth and deliberate misleading or misrepresentation. Ultimately, advocates must use their own judgment when considering how they can effectively, and ethically, use redirection techniques in their practice.
Professor Weresh’s article pushes readers to consider how redirection could supplement approaches to advocacy and, more generally, to persuasive storytelling.
Special thanks to Alison Doyle for her help with this blog post.
Friday, December 14, 2018
Each week, the Appellate Advocacy Blog Weekly Roundup presents a few tidbits of news and Twitter posts from the past week concerning appellate advocacy. As always, if you see something during the week that you think we should be sure to include, feel free to send Dan a quick email at 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:
The Supreme Court justices had their photo taken this week. The tradition has been longstanding, and a history of the quick event can be found here.
The government has been busy this week asking the Supreme Court for emergency relief. On Tuesday, it asked the Court to allow it to enforce the policy prohibiting immigrants who enter illegally along the southern border from seeking asylum. On Thursday, the government asked the Court to allow it to enforce its military transgender ban. Amy Howe of SCOTUSblog reports about the situations here.
Federal Appellate Court News:
Chief Judge Diane P. Wood of the U.S. Court of Appeals for the Seventh Circuit participated in an event hosted by the National Constitution Center in Philadelphia titled "Judicial Independence and the Federal Courts: A Historical Perspective." Here's a YouTube link to the event. Chief Judge Wood explained how important oral argument is. The arguments, she stated, show the public the judges engage with the arguments of the parties, as reported by Howard Bashman.
Adam Feldman of Empirical SCOTUS wrote about the importance of the Federal Circuit this week.
State Appellate Court News:
In a case that has winded through the courts for years, the Supreme Court of New Mexico issued an opinion Thursday holding that tax payer money can fund non-religious textbooks in private schools.
Practice Pointers and Tips:
Ross Guberman (@legalwritingpro) tweeted about writing more like the solicitors general. His software, briefcatch, helped examine briefs over the pat 20 years. Check out his tip to score your brief too.
West Virginia has a job alert open for appellate attorneys. Jamie Santos (@Jaime_ASantos) tweeted about the job this week. And First Mondays podcast this week guest starred Lindsay See, the Solicitor General of West Virginia, who also shared the job alert, adding that the job provides experience in federal and state court.
Thursday, December 13, 2018
The title of this post is misleading, as it implies a court is threatening to sanction an attorney for a creative submission. While this title may get the reader's attention, the complaint in the form of a screenplay is the least of this attorney's problem.
Ilya Liviz, a Massachusetts attorney, has had several ongoing disputes with the state court about filing procures and requirements. He was seeking to have the federal court hear his constitutional due process claims in these state court dismissals, and this last screenplay filing was enough for Judge Indira Talwani. Judge Talwani warned the lawyer that if he kept filing insufficient complaints, after being given fair notice, sanctions would be imposed under FRCP Rule 11. The screenplay format was mentioned by the judge but it was only a problem because it lacked the necessary substance under FRCP Rule 8.
Liviz filed his Oct. 3 suit on behalf of client Lyudmila Maslyakova, who is referred to as “Grandma” in the screenplay complaint. Liviz said in a “plot” subheading that Maslyakova was ticketed for using her husband’s handicapped placard, and she faces an immediate suspension of her license if a court does not come to her aid....
“Normal sunny day, people are smiling as they are going in and out, of the local store,” the complaint said under an “Act 1” heading. Liviz goes on to describe how Grandma pulls up to the store with her husband, her husband gets out to shop, and Grandma puts the car in reverse to pull away and do her own shopping elsewhere. “All of a sudden she hears the police siren and red and blue lights,” the Act 1 summary said.
A “theme” subhead in Liviz’s complaint said his client is seeking an injunction against the state high court for a constitutional violation of due process access to the courts because of rejected appeals and a refusal to waive filings fees.
Interestingly Liviz responded to the judge's order by moving for sanctions of his own against the court, and asking for the judge's recusal. His response will give the reader an idea of the absurdity that the court has had to put up with. Creative citation and colorful footnotes aside, here is one passage that conveys a bit of the flavor of the filing:
Simply said; this is a frivolous comparison that equates comparing apples to a screwdriver, that is justified with erroneously juxtaposed comparison of ol-lady driver who got screwed while eating an apple. (Say what? Emphasis added.)
That passage is exactly the same as it appears in the filing. The rest of the document is slightly better, but it keeps a mocking tone and has little logical progression. Therefore, it would not be hard to understand why the court felt it necessary to remind Liviz about sanctions.
Liviz said he filed the original complaint as a screenplay because he couldn't get anyone to pay attention to him.
Liviz told the ABA Journal on Dec. 11 that he filed the complaint in the form of a screenplay because he needed to draw some attention to his client’s plight. “If I had filed it regular, not a screenplay, would you have called me?” he asked.
He elaborated on the reason for the unusual filing in an email to the ABA Journal. “No one was listening or helping,” he wrote. “Not the news, not the courts, no one; I needed to get attention to the real issue here, which is proved by your questions. What should be more important and newsworthy; showing interest in a complaint written like a ‘play’ or your attention on the fact that people’s rights are being deprived by the judiciary, which is entrusted in protecting them? I had 14 appeals thrown out in state court. No one was listening, and I feared these matters would be thrown out like all others, without even considering the merits. Thus, I switched strategy, and filed a ‘screenplay.’ ”
If there is to be creativity of this sort involved in official court documents, it usually comes from the bench side. Some judges have written their opinions like a story, or like a poem, and have used pictures to illustrate their points. These opinions are often paying up lighthearted points in the cases. In this instance, the lawyer decided to inject some uniqueness to his otherwise dry case. Because he has a history of what appears to be redundant suits, it's hard to say whether a screenplay, if done well, would be at all persuasive. It's certainly out-of-the-box, but probably a little too far to be taken seriously. It runs the risk of insulting the court, which in this case, it likely did. All things considered, I won't be recommending this structural form to my students.
Monday, December 10, 2018
Recently, The National Law Journal ran a story entitled, "How to Tell a Justice They're Wrong." The story recounted an exchange between Justice Kagan and Lisa Blatt, in which Ms. Blatt told Justice Kagan that she was "fundamentally wrong in several respects." While Justice Kagan took the correction in stride, joking back a bit, it can be hard to correct a justice. As the article recounts, some advocates use the phrase "with all due respect," or prefer a softer word choice than "you are wrong."
While it is important to correct a justice's incorrect notions about a case--that is certainly part of oral argument--what about correcting a justice's pronunciation? Interestingly, my former colleague James Duane and I observed an advocate correct Justice Kagan's pronunciation of the word "antecedent" a few years ago. Jim wrote about the situation in a short article that was published by the Seton Hall Circuit Review. You can also download it here on SSRN. I blogged about the article in 2017. As I wrote then,
During argument in the case, one of the justices asked a question that mentioned the last antecedent rule. The justice pronounced "antecedent" in an unconventional manner. The advocate, who was quite skilled, used the more common pronunciation of the word "antecedent" in her response.
As he reflects in the article, Jim told us after the argument that he has "never contradicted a judge about the pronunciation of any word while arguing a case. I would instead either mimic the judge's mistaken pronunciation, or simply not use that word in my answer." Sound advice.
So, when it comes to "aunt" or "ant" or "tomato" or "tomahto," let the justice be right. BUT, when it comes to the facts or the law, you as an advocate have a duty to respectfully correct the court.
Friday, December 7, 2018
Each week, the Appellate Advocacy Blog Weekly Roundup presents a few tidbits of news and Twitter posts from the past week concerning appellate advocacy. As always, if you see something during the week that you think we should be sure to include, feel free to send Dan a quick email atDReal@Creighton.edu or a message on Twitter (@Daniel_L_Real).
Supreme Court Opinions and News:
Read a preview of the arguments HERE.
Read a Bloomberg Law post-argument review HERE.
Read a Twitter thread post-argument predicting that dual prosecution rule won't be overturned HERE.
Federal Appellate Court Opinions and News:
On Monday, the Administrative Office of the U.S. Courts announced the appointment of the federal judiciary's first judicial integrity officer, Jill Langley, director of workplace relations for the U.S. Court of Appeals for the Tenth Circuit and recognized employment dispute resolution expert. Read more HERE.
State Appellate Court Opinions and News:
The California Court of Appeals this week upheld a finding that universities are responsible for student safety when students are participating in curricular activities. The holding came in the appeal of a case where a student was stabbed. The appellate court had, in a prior appeal, ruled that the school was entitled to summary judgment. That ruling, however, was reversed by the California Supreme Court. After remand for trial and a subsequent appeal of a verdict in favor of the plaintiff, the appellate court has affirmed the school's responsibility. Read more HERE.
#AppellateTwitter member Raffi Melkonin observed a day's worth of oral arguments this past week and put together a Twitter thread on his observations about what differentiated effective and non-effective arguments. Some great information HERE.
Appellate Job Openings:
The Maryland Office of the Attorney General is seeking applicants for an Assistant Attorney General for the Courts & Judicial Affairs Unit. The position would likely include substantial appellate responsibilities on behalf of the state. More information HERE.
Thursday, December 6, 2018
Abigail Patthoff, guest blogger, Professor of Legal Writing, Chapman University Fowler School of Law
You may have heard repetition in writing is bad. But that’s only true for accidental repetition. In his essay, The Rule of Three, in the latest volume of Legal Communication & Rhetoric: JALWD, Professor Patrick Barry explains how legal writers can purposefully use repetition to provide rhythm to their writing. Specifically, Professor Barry focuses on the Rule of Three. The Rule of Three is a principle of writing (and speaking) that recognizes the phenomenon that information delivered in groups of three – not in twos, fours, or other groupings – is the most “comforting syntactic set.”
Just as the waltz (three beats) and the chord (three notes) have a pleasant resonance, words or phrases that come in threes have a similar effect on a reader. Famously, in his Gettysburg Address, President Lincoln emphasized that the Civil War was fought to preserve “government of the people, by the people, for the people.” If concision were Lincoln’s only aim, he might have instead said the war preserved “the people’s government.” And yet, even in his brief 272-word address, Lincoln chose to use the Rule of Three to make the point. The result is a musical phrase that has remained a memorable part of American history.
But the Rule of Three is not reserved for moments of historical importance. In fact, when you start looking for it, you’ll see the Rule of Three everywhere:
- In advertising – “New Year. New Adventure. New Sale.” (Southwest Airlines)
- In literature – “I took a deep breath and listened to the old brag of my heart. I am, I am, I am.” (Sylvia Path, The Bell Jar)
- And in law* – “In subsequent cases also, we have recognized the fundamental right of parents to make decisions concerning the care, custody, and control of their children.” (Justice Sandra Day O’Connor, Troxel v. Granville, 530 U.S. 57, 66 (2000)).
Professor Barry offers these examples and many more. He also offers a formula of sorts for legal writers seeking to add Rule of Three rhythm to their memos and briefs: “short, short, kind of long” or “same, same, kind of different.” It’s as easy as one, two, three.
* See what I did there?
Saturday, December 1, 2018
Empathy (noun): The action of understanding, being aware of, being sensitive to, and vicariously experiencing the feelings, thoughts, and experience of another . . .
In many ways, this is all we need as persuasive writers: Empathy. Writing from a place where you understand your readers' "feelings, thoughts, and experiences." When you tap into empathy, you are tapping into your reader's fears and desires. You're connecting with them on a human level--and they listen.
Rather than do what I usually do, and share some tools and legal writing examples, I want to share a personal (and extraordinary) experience that showed me how powerful this device is. And why it's worth adopting as a life-long goal in your writing.
I've been fascinated by the bar exam for years. But figuring out why people fail is what really intrigues me. And I spend a good chunk of my free time working to help repeat failers get over whatever is stopping them from passing. Last year, I wrote an article about my work with these folks.
My article shared some tricks for taking the bar, but I didn't write it for that. I wrote it simply to help people understand what it means to fail a bar exam. To be one of those people who graduated from law school, often did perfectly well, and will generally make an excellent attorney. But they failed. So now they live in limbo. Condemned to wait and watch as all of their friends start shiny new attorney jobs.
In short, I wrote the article as a plea for empathy. And I had some insight on this point. Something that I didn't share then: much of the motivation to write that article came from knowing a student who had committed suicide after failing several exams. The motivation also came from having seen, again and again, the toll that failing takes on people.
Fast forward a year and a half: that simple article is easily the most widely read and successful piece I've ever written. The writing is nothing special. Nor are the tips. But I receive emails and phone calls every single week from people who read it and want to talk about their own bar exam demons. I've written plenty of articles, and many of them have been read by plenty of people. And for most, I might get a few emails or comments. But for this bar exam article, I've received hundreds.
What is so powerful about this short, simple article that compels so many readers to act on it? I can chalk it up to nothing else but that I captured some measure of what I always aim for, but rarely hit: empathy for a group of readers. Empathy born from time listening to members of that group and trying to understand how they felt.
Nearly every email or call I get starts with a version of the same intro--always about how something in the writing resonated with their experience. Here are a couple of emblematic samples (I won't include the authors' names, but each gave me permission to share):
The reason I am reaching out is because your article was inspiring. I felt like no one understood what I was going through until I read this. That others have taken this same path before gives me hope.
I am writing to thank you for your article. I’m feeling pretty down at the moment and your article is the first (and only) one that articulated how I feel.
No one seems to understand how it feels to fail this thing. I can't thank you enough for sharing with people a little of how it feels.
In other words, the writing resonated with what they were feeling. What they were experiencing. And that resonance was so strong that they wanted to act on it.
I know this isn't all that scientific. But the aftermath of this article has been profound for me. Aside from the countless wonderful (and often tear-filled) conversations it brought, I can't help but believe in the power of empathy.
Write in a way that resonates with what your reader has felt and experienced, and I suspect you'll be on to something as a lawyer. I bet it's one reason why storytelling is such a powerful legal writing device. One that every top advocate uses, and uses well. Good stories resonate with our readers' feelings and experiences in a way that feels like empathy. Like the writer understands them.
I will leave it to other posts to talk about ways you might go about finding empathy for your readers as a legal writer. I imagine it will involve more time thinking through what your readers care about, and more time telling stories that will resonate with their experiences.
Oh, and please consider giving someone who failed the bar a hug today. They probably need it.
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.