Appellate Advocacy Blog

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

Wednesday, January 30, 2019

I am so good I'm bad

Do you over write your brief or over train for oral argument? Is there such a thing as too much of a good thing? I have asked myself these questions many times in the past, and fairly frequently these days as I prepare my students for moot court competitions and, ultimately, the practice of law. In this week’s post, I am pulled back in time to my first real-world appellate brief.

I will admit to being a tad overly zealous when I first began practicing. In the first brief I filed, my table of authorities was more than two pages. Opposing counsel had cited 6 cases. She said I needed to have my caffeine taken away. She was right. I am not saying that my brief was bad. I didn’t think it was bad then, and I still don’t. It was just too long; the amount of briefing I did was unnecessary.

It is easy to be lulled into believing that you need an elephant gun to kill a house fly. That gun, however, will do far more damage to the house than to the fly. In fact, you might miss the fly altogether. Writing too much can (1) lead your reader to believe you lack confidence in your case, yourself, or your reader; (2) cause you to potentially say something that is better left unsaid, and (3) bore your reader. None of these options is persuasive.

In that first, real-world, appellate brief, I managed not to say something that was detrimental to my argument. And, although I won, I have to credit the correctness of the legal issue rather than my stellar advocacy skills. As I wrote my brief, I was confident … and I wanted the world to know how right I was. I imagine that my reader was not persuaded by my confidence, or that the reader saw any confidence in my writing. While I set out the rules, and where they came from, and described the many ways in which the courts had applied the rules, and compared our facts to the facts of every case I had relied on, repeating and repeating myself, my opponent said only what was necessary. She articulated the legal issues, explained only what needed to be explained, and alluded to arguments that were tangentially related to the main argument, but said no more. I, on the other hand, went after every point with the same enthusiasm my dog exudes when he chases tennis balls. And, just like my dog, as soon as I set my teeth fully into one point, I dropped it to chase after another. Each point was fully made, but just barely, and the reader had to be exhausted trying to keep up.

By using the same level of enthusiasm for every point, I left the reader wondering if I knew what my strongest argument was, or if I understood my opposing counsel’s strongest argument. The reader was likely bored reading pages upon pages about a fairly simple legal issue, and wondering whether I would ever get to the point.    

I cringe when I think that the reader, who was reading my brief for work rather than for pleasure, had to read every one of those pages. After all, the reader couldn’t just skip to the end, lest I had hidden a treasured moment of wisdom somewhere deep inside. My lack of discernment regarding what should be included and what could be left out diminished any trust the reader had that I was correct.

As my career developed, I became a better writer. My writing became direct and straight to the point, allowing logic to guide persuasion, making more of the important points and presenting -- without fanfare -- the foundational points that set the stage for main act. Later, when I became the reader, I valued the simplicity of a well-organized, logical argument.

 

January 30, 2019 in Appellate Advocacy, Appellate Practice, Legal Writing | Permalink | Comments (0)

Monday, January 28, 2019

Rest in Peace Judge Patricia Wald

On January 12, the country lost a legal legend--Judge Patricia Wald.  I was familiar with Judge Wald from my work on the third edition of Winning on Appeal.  She offers some excellent advice in the book.  For example,

  • She admonishes brief-writers to "[v]isualize the whole before you begin.  What overriding message is the document going to convey? . . . Better still, visualize how the judge's opinion should read if it goes your way."
  • She warns brief-writers to keep it brief:  "The more paper you throw at us, the meaner we get, the more irritated and hostile we feel about verbosity, peripheral arguments and long footnotes."
  • She tells oral advocates that "probably the most important thing for an appellate lawyer is to 'know the record.'"

What I didn't know about Patricia Wald, however, is what an amazing person she was.  She was born in 1928, and her father abandoned her family when she was two.  She was raised by her mother, with the help of relatives, and spent time working at the Torrington Co. factory as a teenager.  She attended Yale Law School, graduating in 1951.  She clerked for a federal judge and briefly worked for a firm, before taking time off to raise 5 kids.  As President Obama noted in 2013, when he awarded her the Presidential Medal of Freedom, “When Patricia Wald’s law firm asked if she’d come back after having her first child, she said she’d like some time off to focus on her family — devoted almost 10 years to raising five children. . . .But Patricia never lost the itch to practice law. So while her husband watched the kids at home, she’d hit the library on weekends. At the age 40, she went back to the courtroom to show the 'young kids' a thing or two."

She was the first woman  to serve on the United States Court of Appeals for the D.C. Circuit, and the first woman to serve as that court's chief judge.  In 1999, she was appointed to serve on the war crimes tribunal at the Hague dealing with the former Yugoslavia.

Judge Wald was certainly a pioneer for women in the legal profession, but in reading about her I loved this quip from President Obama at the Presidential Medal of Freedom ceremony, “Patricia says she hopes enough women will become judges that ‘it’s not worth celebrating’ anymore. But today, we celebrate her.”  

I hope that Judge Wald's life will inspire many women to pursue law so that that Judge Wald's dream can eventually be a reality.

January 28, 2019 | Permalink | Comments (0)

Saturday, January 26, 2019

Edify Your Editing

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"My life needs editing."

-Mort Sahl

How do you edit? If you're like most, there's not much science to it.

For screen editors--you probably scroll through your document, reading along and correcting the occasional typo or clunky sentence that catches your eye. If you're a print-it-out editor, you likely do the same thing just with a red pen in hand. 

But simply scanning and spotting is about the least effective way to edit. Because your mind isn't a computer; it can't pick up every potential edit among the deluge of words. That truth is why--even after multiple rounds of editing--you still miss some real trash. And then later, looking back, you think: how could I have missed that

Everyone has their own editing rituals. And I'm not saying that you should ditch yours entirely. But I rarely meet a lawyer or law student who doesn't benefit from giving some more thought to their editing process--or better yet, adding a new technique or two. 

To that end, I have four editing constructs for you to try. Each aims to focus and declutter your legal writing and catch more problems--even when you're distracted or busy. 

But before getting to the four techniques, consider one that applies to them all: phase editing. The principle behind phase editing is that our minds are easily distracted, and editing is no different. If you try to edit for too much, too quickly, you will inevitably miss some good improvements. With phase editing, you break your process up into more manageable chunks, or phases. Each phase comes with a manageable list of related problems to check for.

Some phases I've seen judges use: 

  • Phase 1: Fact section. Check for needless details to cut, informative headings, missing facts, etc.;
  • Phase 2: Substance. Check for missing arguments or counterarguments, rule or analysis sections to bolster, etc.;
  • Phase 3: Organization and flow. Check for transitions at the section and paragraph level, check headings, etc.;
  • Phase 4: Sentences. Check for sentence length, structure, variety, etc.;
  • Phase 5: Citations. Check for formatting, pin cites, etc.;
  • And so on... 

Phase editing works well with another editing must: a checklist. You don't need to list out every potential edit. But a simple checklist that reminds you about the problems you care about most can focus your editing attention. Checklists are also an excellent way to remind yourself about new techniques that you want to try or bad habits that you want to break. 

Now to the four techniques: (1) S.P.U.P.S., (2) one-read editing, (3) red-flag editing, and (4) content-word editing. We'll finish up with an assortment of other editing tips.  

    1.     S.P.U.P.S. 

The first technique is all about getting back to the basics: a set of simple tools that force you to focus on the five persistent readability problems that plague lawyers and their readers.  I lovingly call it S.P.U.P.S. (note the inclusion of "pups"--everyone likes puppies):

  • Sentences,
  • Punctuation,
  • Using the right words,
  • Paragraphs, and
  • Sections.

Read good legal writing and you'll see the same sentence patterns: mostly shorter, a sprinkling of very-short, and the occasional elegant-long. In other words: simple but elegant sentences with some variety sprinkled in for engagement.  

And that variation goes for punctuation, too. You'll see a colon, em dash, or interesting comma structure in every paragraph or two. But never so much that the writing becomes dragged down by the switchbacks. 

Turning to the words, you'll find masses of short, familiar, few-syllable words, like: “The only thing we have to fear is fear itself.” Indeed, Lincoln's speeches are famous for their short, familiar words. That's some of what made them so good. 

When you zoom out to the paragraphs and sections, you'll spot thoughtful breaks at both levels. Paragraphs will be cut up so that each homes in on a single, cohesive idea. Same goes for the sections, but at a higher level. 

So S.P.U.P.S. editing is a go-to framework for increasing your documents' readability along these five dimensions. Working in phases (passing through the document and editing for one letter at a time): 

1. Sentences: Are they mostly on the shorter side (less than 20 words)? Are there any long sentences close to eachother that will create too much drag? Do you include some variety in length every paragraph or so? Are there transitions linking each one?

2. Punctuation: Do you use punctuation properly throughout (a common mishap), and do you have some variety here, too? 

3. Using the right words: Can you cut legalese? Can you replace or cut any long or complex words? Can you replace any bland verbs or nouns? Can you cut any descriptors? 

4. Powerful Paragraphs: Are most of your paragraphs on the shorter side (usually 4-6 sentence is plenty)? Does the first sentence generally deliver a single, persuasive point that holds the paragraph together? Do your paragraphs transition?

5. Sections: Can you break up any big sections into smaller ones? Do your sections transition?

Take this example from a federal habeas decision. Don't waste your time reading too closely. But we will see how a quick dose of SPUPS will focus on the key readability metrics to get this section into a better place: 

SPUPS

By focusing on SPUPS we can drastically improve the readability here. We cut down long sentences and include some variety, use some engaging punctuation, replace stale or complex words with fresher ones, prune down our paragraphs to single ideas, and cut up the section: 

SPUPS 2

2.               One-Read Editing

This is such a nifty editing technique both when working on your own writing and when asking others to edit for you. In short, instead of giving substantive or style feedback on a document: the editor simply circles every word that they read more than once; puts a check mark next to any sentence they read more than once; and draws a squiggly next to any section they have to reread. 

The idea is that the editor is searching for the bumps in the road, not fixing them. This allows the editor to focus on pure fluency and leave the distracting how or why until later. A good one-read edit provides x-ray vision into your document--with highlights on all the weak areas. With the readability problems mapped out, you can now tackle one at a time with all your writing tools at the fore. 

Editing this way is fast and effective. You are much less likely to get caught up on particular types of edits or problems to the exclusion of others. Just as important, one-read editing diffuses the awkwardness that comes with editing others' work. Instead of pushing your own style ideas (and let's be real, many people don't take those suggestions well), you are merely showing the author where they lost their reader. There isn't anything to argue about on that point. You got tripped up and had to reread something. So whatever they're doing, they can probably do it clearer. The other benefit of this construct is that it encourages yourself and others to not just blindly follow edits from better writers, but to instead figure out how to fix what you're doing wrong.  

3.               Red-Flag Editing

This technique involves using a list of red-flag words, phrases, and other signals to focus your editing. Like one-read editing, you are using these tell-tale red flags to identify potential trouble spots. They won’t always be wrong, but they will often lead you to good edits. Some example red-flags include:

  • Common throat-clearing words and cluttered phrases like  “it is,” “there is,” "as such," “the fact that,” "pursuant to,"  "with regard to" and so on;
  • Generic filler words like "thing"; 
  • Prepositions like "of"; 
  • To-be verbs, which can often become concrete verbs;
  • -ion words, which are often nominalizations that can become juicier verbs;
  • -ing words, which are often wasted and wordy;
  • Lists that can be broken up with bullets or numbers;
  • Latin;
  • There/their/they’re;
  • Affect/effect;
  • Multiple nouns one after the other;
  • Any use of modifiers like “only”; 
  • Intensifiers (clearly, very, really);
  • Any of your own red flags that often signal clutter. 

By focusing on these red flags, you can force yourself to look at your writing through a more objective lens. Take a look at how a markup of just a handful of red flags can signal areas in need of good editing: 

Red flags

4. Content-word editing

The final editing technique works on the smallest scale: your words. This technique has you pluck out the content words from your sentences--then start on a clean slate, rebuilding a new sentence with just those powerful words in hand. For a detailed walk-through on this technique, check out my past article here.

But the thrust of it is that you circle or underline just a few key content-words that you really want your reader to focus on. You jot those down and erase the old sentence. This forces you out of your normal writing pattern. Now you rewrite the sentence to focus your reader on the content that you care about. 

So for an example: 

Trouble is caused when people disobey rules that have been established for the safety of all.

We pluck those content words out: Trouble, disobey, and rules. Now we rewrite a sentence to focus in on that content alone, ensuring our reader will walk away with what we care about:

Rule-breakers cause trouble.

Or:

The subjects that are considered most important by students are those that have been shown to be useful to them after graduation.

Becomes:

Students think useful classes are the most important.

Finally: 

In our company there are wide-open opportunities for professional growth with a company that enjoys an enviable record for stability in the dynamic atmosphere of aerospace technology.

Becomes:

Our company provides opportunities for growth and stability in the dynamic field of aerospace technology.

Final Editing Tips to Try

  • Resist the urge to purge. We all want to push a document out of our mind when we finish a first (or fifth) draft—resist the urge. Get in the habit of coming back to your writing once more, later, even after you've convinced yourself it's done.
  • Don’t self-edit until you've plotted out the content.  Self-editing tends to shift your focus away from the substance. Focus on the substance and get it on the page. Then craft your prose. 
  • Keep an error list. It’s helpful to keep a running list of your common types of writing errors. Some writers always miss the difference between “it’s” and “its,” or they type “effect” when they mean “affect.” If you are consistently making an error, write it down. Then when you get to the editing stage, search for it using the find feature in your word processor. This way you’ll correct the error and develop the awareness required to permanently banish it from your drafts.
  • Take time away to get the “fresh-reader” perspective. You cannot get into the right editing mindset unless you build in enough time before your writing deadlines so that you can set your document aside for a while (preferably at least a day) and come back to it.
  • Use others to get the “fresh-reader” perspective. Nothing can spot errors you are missing like a truly fresh reader.
  • Edit backward. This will stop you from skipping over things your brain expects to see.
  • Find good writing mentors. To become the best you need to be around the best.
  • The Classics. Read your legal writing out loud, write sections separately, or try printing everything out and editing at least once by hand. 

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

 

January 26, 2019 | Permalink | Comments (0)

Friday, January 25, 2019

Appellate Advocacy Blog Weekly Roundup January 25, 2019

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Each week, the Appellate Advocacy Blog Weekly Roundup presents a few tidbits of news and Twitter posts from the past week concerning appellate advocacy. As always, if you see something during the week that you think we should be sure to include, feel free to send Dan 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 and Opinions:

The Supreme Court is out of session for a few weeks, now that the January sitting is over, although this week saw the issuance of some orders and decisions from last week's conference.

The Washington Post reported earlier this week about how the Court has maintained a relatively "low-key term," delaying taking up a variety of divisive issues such as immigration, abortion, and sexual orientation and gender identity, while also signaling some interest in other controversial topics like transgender service in the military and the Second Amendment.  CNN had a similar story.

Earlier this week, over the objection of the four more liberal members of the Court, the Justices allowed the Trump Administration's ban on transgender members serving in the military to go into effect while the issue is litigated in lower courts.  MSNBC had a report.  CNN also reported, noting the impact the Court might have upon the 2020 Presidential election.

On Tuesday, the Court granted cert in a case involving a challenge to New York City's limits on transporting personal firearms, bringing an opportunity for the Court to provide clarity on its Second Amendment jurisprudence.  With the shifting makeup of the Court now leaning more conservative, there is speculation that the Court will create a test for handgun restrictions that invalidates many local laws.  The case is New York State Rifle & Pistol Association Inc. v. City of New York. More about the case and what the eventual ruling  might  mean for the Second Amendment and gun regulations from the Atlantic and National Review.

Federal Appellate Court News and Opinions:

The Eighth Circuit Court of Appeals recently issued a decision in a case that provided some discussion of interest to appellate advocates concerning the procedural distinction between an appeal from a decision granting summary  judgment and a decision denying a motion for reconsideration and the respective standards of review.  The case is SPV-LS, LLC v. Transamerica Life Insurance Company.  Thanks to reader Ben Rand of Harris Beach for the tip about this opinion.  According to Rand (quoting one of the firm's attorneys): "The court focused procedurally on the appellant's efforts to conflate [the decision granting summary judgment and the decision denying reconsideration and the respective standards of review], and the Eighth Circuit carefully distinguished between the separate and distinct standards of review. If there were doubts in the Eighth Circuit regarding these concepts and related standards of review, the Eighth Circuit laid them to rest in this decision."

State Appellate Court News and Opinions:

The Arizona Supreme Court was scheduled this week to hear arguments in a case concerning how far business owners can go in refusing to serve customers because of their sexual orientation.  The case presents the question of whether the owners of a business can refuse to use their talents to design custom wedding invitations and other materials if the couple is of the same gender or whether they are required to serve the couple under a city of Phoenix ordinance barring places of public accommodation from sexual orientation discrimination.  More from Tucson.com. 

Practice Pointers:

Law.com had an article this week feature #AppellateTwitter's Neal Katyal and discussing how he handles juggling multiple and back-to-back appellate arguments.

Appellate Twitter's Matthew Stiegler had a blog post this week providing advice to lawyers preparing for their first-ever oral argument.

Appellate Job Postings:

The Constitutional Accountability Center has a posting for an Appellate Counsel position.

The California Office of the Attorney General has a posting for a Solicitor General position.

January 25, 2019 in Appellate Advocacy, Appellate Practice, Federal Appeals Courts, Legal Profession, Oral Argument, State Appeals Courts, United States Supreme Court | Permalink | Comments (0)

Thursday, January 24, 2019

Harvey Weinstein's Dream Team and Conflicts of Interest

Harvey Weinstein can likely afford the best attorneys money can buy. He has chosen high profile lawyer Jose Beaz, and Harvard Law professor Ronald S. Sullivan, Jr. 

Harvey Weinstein's primary accuser, actress Rose McGowan, is also high profile. She recently pleaded no contest to a drug possession charge where she was represented by .... Jose Baez and Ronald S. Sullivan, Jr. Say what?

Is this a conflict of interest? Perhaps not a technical conflict of interest, but it certainly doesn't feel right.

McGowan is Weinstein's first and most vocal accuser, however, she is not part of the case being prosecuted against him now in a Manhattan court. She is not currently on any witness list for the case, so the reasoning goes that so long as that remains the state of affairs, there is no conflict of interest. 

Under the Model Rules of Professional Conflict, Rule 1.7 discusses Conflict of Interest: Current Clients.

Client-Lawyer Relationship

(a) Except as provided in paragraph (b), a lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if:

(1) the representation of one client will be directly adverse to another client; or

(2) there is a significant risk that the representation of one or more clients will be materially limited by the lawyer's responsibilities to another client, a former client or a third person or by a personal interest of the lawyer.

(b) Notwithstanding the existence of a concurrent conflict of interest under paragraph (a), a lawyer may represent a client if:

(1) the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client;

(2) the representation is not prohibited by law;

(3) the representation does not involve the assertion of a claim by one client against another client represented by the lawyer in the same litigation or other proceeding before a tribunal; and

(4) each affected client gives informed consent, confirmed in writing.

Applying the rule to McGowan's interests, it seems clear that there is no concurrent conflict in that she is no longer represented by Baez or Sullivan, and the matter in which they did represent her is not related to their current representation of Weinstein. Their actions in Weinstein's current case have no definite bearing on any duties they may have to her in the future regarding her previous case. But, it still doesn't feel right.

Curiously, another celebrity just lost his lawyer under similar circumstances. The rapper 6ix9ine (birth name Daniel Hernandez) is standing trial for racketeering, gun crimes, and other charges. When the judge in Hernandez's case learned that his attorney, Lance Lazzaro, had served as the attorney for Hernandez's co-defendants in previous cases, he threw him off the case citing potential conflict of interest. In this case the conflict involves parties to the case, and it's possible that Lazzaro could have possession of information from the previous cases that would help his current client, and harm the co-defendants - even if Lazzaro did not actually have that sort of information. No one can really know, and his presence alone combined with the previous relationships, will create the perception of a conflict. The judge made the right decision in order to safeguard the integrity of the trial.

While McGowan is not expected to participate in Weinstein's current trial, it is not beyond the realm of possibility that her former lawyers possess information that could aid Weinstein's defense, and at least in an indirect and perhaps intangible way, still harm McGowan. She is the face of the #MeToo movement, and this representation undermines her story in a way that is hard to describe, but feels like betrayal to her. As a matter of comity and respect to the client who came first, Baez and Sullivan ought to decline representation of Weinstein. 

McGowan has made claims that, if true, would warrant an ethical investigation. She plead no-contest in her drug possession case, but says Baez did nothing. She derided his professionalism and thinks he was bought off by Weinstein.

“I asked Jose Baez directly if he would ever work with Harvey and I told him it was my fear that he would be bought off while representing me,” McGowan said. “He responded by saying, ‘I don’t like to lose.‘”

Whether any shady dealing happened there, and whether any shady dealing will imbue to the good fortunes of Harvey Weinstein is not presently known, but there is one way to help reassure the public that the officers of the court hold the integrity of the judicial system in high regard. They should take a pass.

 

January 24, 2019 in Legal Ethics | Permalink | Comments (0)

Friday, January 18, 2019

Appellate Advocacy Blog Weekly Roundup, Friday, January 18

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Each week, the Appellate Advocacy Blog Weekly Roundup presents a few tidbits of news and Twitter posts from the past week concerning appellate advocacy. As always, if you see something during the week that you think we should be sure to include, feel free to send Dan 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:

  • Certiorari grants and oral arguments continued this week at the Supreme Court in several cases. Tony Mauro and Marcia Coyle report about those cases. Two such grants went to Supreme Court advocate Neal Katyal and one to well-known #AppellateTwitter's Raffi Melkonian (@RMFifthCircuit). You can read about those grants here.  Tony and Marcia also provide some details about the confirmation hearings for William Barr as U.S. attorney general. One of the cases argued this week includes Tennessee Wine & Spirits Retailers Association v. Blair, "a constitutional hybrid of the Twenty-First Amendment, commerce clause and privileges and immunities clause, all bottled in a challenge to Tennessee's residency requirements for retail liquor licenses." Read about the arguments here.
  • On Monday, the Court turned away a suit brought by United States military troops injured by smoke from open-air pits used to burn waste in Iraq and Afghanistan. The Court was asked to revive the suit that was brought against defense contractors KBR Inc. and Halliburton Co. 
  • Adam Liptak (@adamliptak) tweeted about the "grammar of law" here, commenting on Justice Kagan's question to Paul Clement during oral arguments in Rimini Street Inc. v. Oracle USA, Inc.

Circuit Court News:

  • The Ninth Circuit Court of Appeals issued an opinion affirming that Domino's website and app are places of public accommodation subject to the ADA. The Court found that the ADA applies to services of a public accommodation, not services in a place of public accommodation. The opinion can be found here. Conversely, this article notes a Fourth Circuit Court of Appeals opinion addressing the complications of establishing standing in ADA website litigation. A circuit split may be on the horizon. 
  • Patricia Wald, the first woman to be appointed to the D.C. Circuit Court of Appeals and the first to serve as Chief Judge of that court, passed away on January 12, 2019. Linda Greenhouse has this piece on her, which, in part, describes her writing as a judge. 

Helpful tips:

 

January 18, 2019 | Permalink | Comments (0)

Monday, January 14, 2019

More Appellate Practice Tips from the Bench

Last week I blogged on a Georgia Bar Journal interview with Chief Judge Stephen Louis A. Dillard of the Georgia Court of Appeals.  In the interview, Chief Judge Dillard shared some excellent practice tips.

This week I want to share another article that contains practice tips from judges--this time from the American Bar Association.  The article discusses Ross Guberman's work in surveying judges on "what they want to read in briefs and motions."  As someone who has surveyed judges on this very topic, I am always interested in reading about someone else's work.  While I won't discuss each item on Guberman's list, I do want to highlight a few of my favorites (and a few that I think people miss all the time).

  1. Use party names or descriptors over litigation/appellate labels.  Interestingly, most appellate court rules direct attorneys to use names over labels like petitioner or appellant.  Yet many attorneys, even very accomplished ones, still use terms like petitioner or appellant in their briefs. Judges, however, just want you to use names.  It helps keep the parties straight, and it makes your writing more clear.
  2. "Stay classy."  Judges tire quickly of anything that lacks civility.  Chief Judge Dillard's interview confirmed this point.  So, don't belittle your opponent or their arguments.  Rather, focus on your strengths.
  3. Avoid space wasting phrases like "it should be noted that" and "it is beyond doubt that."
  4. "Be succinct when citing cases."  Guberman quotes one judge who said, “Skip the long description. Just state the damn proposition, cite the damn case and be done with it.”

The rest of Guberman's list is fascinating too (especially his discussion of introductions, which I am still not 100% sold on).  As the ABA article summarizes, "Guberman advises lawyers to 'shoot for strong, compelling, yet concise introductions; a restrained use of case law; and modern diction.'"  Good advice.

January 14, 2019 | Permalink | Comments (0)

Friday, January 11, 2019

Appellate Advocacy Blog Weekly Roundup Friday, January 11

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Each week, the Appellate Advocacy Blog Weekly Roundup presents a few tidbits of news and Twitter posts from the past week concerning appellate advocacy. As always, if you see something during the week that you think we should be sure to include, feel free to send Dan 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

The Supreme Court heard arguments this week in Franchise Tax Board of California v. Hyatt.  The case, in which microchip inventor and multimillionaire Gilbert Hyatt alleged that a California tax board investigator had harassed him by peering through his windows and examining his trash, has been before the Court before. In 2003, the Court denied immunity to California’s Franchise Tax Board.  In 2016, the case was before the Court again, and at that time the Court split 4-4 on the question of whether to overrule Nevada v. Hall, a precedent that allows one state (and its agencies) to be sued in another state’s courts.  After a remand on damages, the case is now back, and with a full number of Justices, the Court will this time answer the question of whether to continue the precedent of Nevada v. Hall or overrule it.  Aside from the specific issue of states being sued in other states' courts, the case also holds implications for how the current makeup of the Court views precedent and the advisability of overruling it.

Read More:

This week’s SCOTUS101 podcast featured discussion about Justice Ginsburg’s absence from oral argument, Justice Kavanaugh’s first opinion, and an interview with #AppellateTwitter’s Sean Marotta.

Listen:

This week’s practice pointers come courtesy of the 2018 edition of the Georgia Bar Journal, in which #AppellateTwitter’s Chief Judge Dillard of the Georgia Court of Appeals was interviewed.  Tessa talked about it at length in her post on this blog earlier this week.

Read More:

January 11, 2019 in Appellate Advocacy, Appellate Practice, Federal Appeals Courts, Legal Writing, State Appeals Courts, United States Supreme Court | Permalink | Comments (0)

Monday, January 7, 2019

Appellate Practice Tips from the Bench

The December 2018 edition of the Georgia Bar Journal has a delightful interview with Chief Judge Stephen Louis A. Dillard of the Georgia Court of Appeals.  Chief Judge Dillard is one of the more well-known state appellate judges due, in large part, to his active social media presence.  He was asked in the interview about why he considers his social media presence so important, and his answer was enlightening:

I think judges have a duty to educate those we serve about the important role the judiciary plays in their daily lives. But in order to do that, we need to rethink the way we engage with the public. In my view, reimagining the judiciary’s engagement with those we serve begins with putting to rest the notion that it is a good idea for judges to essentially separate themselves from the rest of society. Judges are public servants. They are accountable to the people, and they need to be accessible to the people, so long as they do so in a manner that is consistent with their oath of office and the code of judicial conduct. There is no reason that a judge cannot maintain the integrity of his or her office and engage the public in a more meaningful sense. But in order to do this, we—especially those of us in the legal profession—need to get past our collective unease with technology and embrace the social-media platforms that are increasingly used by those we serve. Indeed, the ability of a judge to use social media to directly reach and communicate with his or her constituents is nothing short of revolutionary. And when you serve the public, the public has a right to know who you are as a human being. I want those who follow me on social media to know who I am as a person. I am not just a judge. I am a husband, a father, a person of faith, and I have a life outside of the courthouse. I love reading, history, sports, music, my church, and spending time with my family and friends. And I am blessed beyond measure to wake up every day and work at a job that I dearly love. My hope is that the people who follow me on social media will sense this about me—that I am a joyful public servant. My goal is for my online personality to be an accurate reflection of who I am in real life. And if my constituents truly get a sense of who I am as a person from my engagement with them on social media, then my time online will have been well spent.

Chief Judge Dillard also had some great advice on preparing for oral argument:

My oral-argument preparation began with writing the underlying brief. As a practitioner, I spent a considerable amount of time in the record and researching the relevant issues before I even started writing. I also made sure that my brief contained pinpoint citations to the record and relevant case law. . . . As an appellate practitioner, I also spent a significant amount of time preparing for oral argument. The week before an argument, I re-read the briefs and record and then jotted down any new impressions
that came to me from that review, refined my overarching narrative, prepared index cards with the questions I anticipated being asked, and then practiced my opening
remarks and answering questions (both alone and with my colleagues).

In addition to the advice above, Chief Judge Dillard also expressed his wish that lawyers would "[t]reat the law like a profession." As he explained:

Every time you file something with a court, you put your reputation on the line. It takes years to build up your reputation and just a moment to lose it. In my view, many instances of unprofessional behavior stem from lawyers engaging in “zealous advocacy.” I have come to dislike this term because I think it instills in lawyers the idea that they have to act like zealots in order to effectively represent their clients. And the most effective advocates I have seen, as both a lawyer and judge, are those who calmly and dispassionately present their arguments. Your client is important; but when you become so zealous in your advocacy that you fail to treat opposing counsel or the court with respect, or when you misrepresent the facts or relevant law to win a case, then you are harming both your client and the profession. 

Thank you to the Georgia Bar Journal for such a great interview (and for providing it online free of charge).  I also appreciate that, despite their editing guidelines, the Georgia Bar Journal used the Oxford comma in the printed piece out of deference to Chief Judge Dillard's strong (correct) preference for the Oxford comma.

January 7, 2019 in Appellate Advocacy, Appellate Practice | Permalink | Comments (0)

Call for Proposals: Institute for Law Teaching and Learning Summer Conference

CALL FOR PRESENTATION PROPOSALS

Institute for Law Teaching and Learning Summer Conference
“Teaching Today’s Law Students”
June 3-5, 2019
Washburn University School of Law
Topeka, Kansas

The Institute for Law Teaching and Learning invites proposals for conference workshops addressing the many ways that law professors and administrators are reaching today’s law students. With the ever-changing and heterogeneous nature of law students, this topic has taken on increased urgency for professors thinking about effective teaching strategies.

The conference theme is intentionally broad and is designed to encompass a wide variety of topics – neuroscientific approaches to effective teaching; generational research about current law students; effective use of technology in the classroom; teaching first-generation college students; classroom behavior in the current political climate; academic approaches to less prepared students; fostering qualities such as growth mindset, resilience, and emotional intelligence in students; or techniques for providing effective formative feedback to students.

Accordingly, the Institute invites proposals for 60-minute workshops consistent with a broad interpretation of the conference theme. Each workshop should include materials that participants can use during the workshop and when they return to their campuses. Presenters should model effective teaching methods by actively engaging the workshop participants. The Institute Co-Directors are glad to work with anyone who would like advice on designing their presentations to be interactive.

To be considered for the conference, proposals should be one page (maximum), single-spaced, and include the following information:
• The title of the workshop;
• The name, address, telephone number, and email address of the presenter(s); and
• A summary of the contents of the workshop, including its goals and methods; and
• A description of the techniques the presenter will use to engage workshop participants and make the workshop interactive.

The proposal deadline is February 15, 2019. Submit proposals via email to Professor Emily Grant, Co-Director, Institute for Law Teaching and Learning, at emily.grant@washburn.edu.

January 7, 2019 | Permalink | Comments (0)