Appellate Advocacy Blog

Let's Get Ready to Rumble: How to Win a "Battle of the Rules" Argument

Occasionally, there is no binding precedent for an issue.  The appellate courts in a jurisdiction have not addressed the issue, and courts outside the jurisdiction have adopted differing rules.  After reviewing the different rules, you may prefer one rule over another because it leads to a more favorable outcome.  Before you can argue how this rule applies to your case in your brief, you must convince the court to adopt the rule you prefer.  At Commonwealth Law, the legal writing professors refer to this as “the battle of the rules.”

I encountered my first “battle of the rules” when writing a brief for a moot court competition in law school.  Initially, the issue intimidated me because it felt different from the analysis I had been taught.  As I encountered more “battle of the rules” issues in practice and teaching, I developed some pointers for how to wage, and hopefully win, the battle.

Battle Strategy #1: Help the Court Understand Its Options.

You may be tempted to begin your argument by describing all the reasons why the court should adopt the rule you prefer.  These arguments could be confusing if the court does not appreciate that this is a “battle of the rules” issue.  It is better to start by explaining that there is no binding precedent on the issue.  Then, provide a brief description of the different rules available based on persuasive precedent.  Educate the court on rule A and rule B, even if you want the court to adopt rule B.

 

Battle Strategy #2: Explain Why the Rule You Prefer Is the Best.

To sway a court toward your preferred rule, rule B, explain why it is the best rule for society in general and your jurisdiction in particular. Focus on the impact of the rule.  Rule B may be more easily applied by law enforcement officers in the field.  Rule B may align with policies foundational to the area of the law, such as torts or contracts.  Also, argue why the other rule, rule A, is not a good choice.  Rule A may open the floodgates to litigation and clog court dockets.  Rule A may place an onerous burden on a segment of the population.  The reasons you provide in favor of your rule and against the other rule should be supported by authority, as explained in my next point.

 

Battle Strategy #3: Anchor Your Argument in Authority.

When asking a court to wade into uncharted waters, provide the security of authority.  Cite to courts that have adopted the preferred rule.  Courts may be persuaded to adopt a rule if most jurisdictions have done so or if it appears to be the current trend.  If some states have enacted statutes or regulations similar to the preferred rule, cite to them.  It is particularly persuasive if you cite cases or legislation from sister jurisdictions. Alternatively, you may be able to analogize your “battle of the rules” issue to an issue with settled law.  For example, argue that a court should recognize a constitutional right by drawing a parallel to other well-established constitutional rights.  Finally, secondary sources may lend support for your arguments.  Law review articles, model codes, or restatements can be helpful additions to the legal authority you provide.

 

Battle Strategy #4: Use CRAC to Organize.

Use the traditional organizational scheme of conclusion, rule, application, and conclusion (CRAC) to set forth your “battle of the rules” argument. 

Conclusion

First, state the conclusion.  Tell the court what rule you want it to adopt. “This Court should adopt Rule B because it is consistent with the remedial purposes of tort law.”

Rule

Second, discuss the rule options.  Begin by explaining that there is no binding precedent for the issue.  Then, help the court understand the rules it could adopt.  Cite to authority for all rule options. 

Application

Third, describe the impact of applying the preferred rule.  Argue that the preferred rule will be better for society.  Respond to your opponent’s arguments as to why another rule is better.  Cite to authority to support these arguments. 

Conclusion

Finally, restate your conclusion and reiterate the rule you want the court to adopt.

 

Battle Strategy #5: Study the Great Fights.

When you encounter a “battle of the rules” issue in practice, observe how the attorneys argued it and the court decided it.  Collect effective arguments in your quiver so you are ready for your own battle.  I give my students an excellent example of a “battle of the rules” argument from a brief written by one of my former colleagues at the Pennsylvania Office of Attorney General.  You may access the brief, and the “battle of the rules” argument on pages 14–24, by clicking here.

 

 

 

Moot Court Season

Moot Court season is upon us.  Law students from around the country are headed off to compete in a mock appellate arguments on a wide range of topics.  This past weekend students competed at the Jeffrey G. Miller National Environmental Law Moot Court Competition (more commonly known as Pace).  Students also competed at the San Francisco and Portland regionals for the National Appellate Advocacy Competition put on by the ABA.  (Congrats to the teams from my school that both made it to the round of 5 at the San Francisco regional). 

This coming weekend Boston and Philadelphia host their NAAC regional competitions. And, my school hosts the National Native American Law Student Association Moot Court Competition.  We are looking forward to hosting 40+ teams from across the country to argue a difficult, but fascinating, Indian Law problem.

The University of Houston has already started tabulating the top moot court programs for its rankings.  This year the current top 5 is Texas heavy:

1. Baylor
2. Loyola University
3. South Texas
4. University of Georgia
5. University of Houston

I really love moot court.  I love coaching, I love judging, and I love seeing students develop over the course of the weeks that they work on the problem.  Moot court has many benefits for students.  While it certainly teaches them teamwork, it also teaches them to be problem solvers and work independently.  For most moot court competitions, students cannot receive any outside help on their briefs.  For some competitions, they can't even receive substantive help during their oral advocacy practices. Moot court also teaches time management.  Some of the major competitions, like the NAAC and the NNALSA, require students to brief over the winter holidays. Finally, moot court helps students learn to become excellent public speakers.  I have heard that the number one fear that people have is public speaking. As a person who formerly hated public speaking, I know that the only thing that has helped me improve is practice, practice, practice.  Moot court does that for law students.

Moot court has benefits for the local legal community too.  Volunteering to judge provides you with more than a few free CLE credits, it allows you to think about and discuss an interesting area of law.  Moot court problems are often centered around an interesting and unsettled area of the law--the kind of question your least favorite professor might put on a law school exam.  It can be fun to get back into law school mode and ponder these questions (especially when you are asking the questions, rather than the other way around).  I also think that moot court gives us hope for the next generation of lawyers.  They can, and will, do great things.  That is exciting.

But, despite the excitement, moot court isn't perfect.  It isn't perfect because we all know that the briefs are way more important than the arguments in real life.  It also isn't perfect because, just like in real life, gender stereotypes can rear their ugly heads.  I was reminded of that this week when I saw an article on Law.com announcing that the first female appellate law clerk had passed away at the age of 94. Carmel Ebb, who graduated first in her class at Columbia Law in 1945, is believed by most to be the first woman to clerk for a federal appellate court judge.  She clerked for Judge Jerome Frank on the Second Circuit.  She interviewed for a Supreme Court Clerkship but, according to her obituary, “Her hopes were dashed when the justice concluded their conversation by saying he had no doubt she would be a fine clerk, but that his wife would never allow him to work in such close proximity to a woman.” Ms. Ebb went on to have a successful career, including making partner at a New York firm.

So how do gender stereotypes play a role in moot court?  Next post I will look at an article on this topic.

 

Is Ghostwriting Legal Blog Content Unethical?

Lawyers engaging in law blog writing is so widespread that the ABA annually recognizes the best blogs. (The Appellate Advocacy Blog was delighted to join the list this year!) The writing done on these kinds of topical law blogs does not pose any ethical issue for authors - because these blogs are not advertisements. They do serve several purposes however: to feed the desire of the writer to write and explore ideas, to join the broader conversation in the legal community, and to inform readers who may be specialty practitioners or the general public. These lawyers, as writers, are not ghostwriters: they write their own content. Considering these purposes, there would be no point to that!

But there is lots of other writing about law going on that is ghostwritten and it is causing some to raise ethical concerns. Law firm and lawyer websites that exist to advertise legal services frequently buy legal content or employ ghostwriters to produce the information on their websites. This may consist of short informative articles about certain aspects of the law in which the firm or attorney practices. Sometimes lawyers sign their names to these types of articles giving the impression that they are also the writer. Some say this is adverting and as such it is misleading. Others say this is no different from a partner signing his name to a brief written by his associate. The ABA has not yet officially weighed in on the controversy.

Barbara S. Gillers, chair of the ABA Standing Committee on Ethics and Professional Responsibility, in an email to the [ABA] Journal. “In my view, ghostwriting a blog post for a law firm is not by itself a problem so long as the lawyers for whom it’s been written approve it, adopt it as their own, and the content comports with the lawyer advertising rules. The fact that the post appears under the name of a person other than the original is not in and of itself improper.”

Under Rule 7.1 of the Model Rules of Professional Conduct, a lawyer must not mislead the public about his services. 

Information About Legal Services

A lawyer shall not make a false or misleading communication about the lawyer or the lawyer's services. A communication is false or misleading if it contains a material misrepresentation of fact or law, or omits a fact necessary to make the statement considered as a whole not materially misleading.

The argument against ghostwriting for website content is that through the interaction with the content the potential client is developing a trust toward the lawyer. By allowing the client to assume the lawyer is the author of the content the client is mislead in some way. Does this violate Rule 7.1? Is this an omitted fact that is necessary for the client to judge whether the lawyer has mislead her on the services offered? I am not sure that it is. 

A lawyer is not an island. In other words, in order to provide competent legal services, a lawyer almost always needs help - whether it be from the paralegal, the associate, the colleague, or someone writing content for the website. All of these individuals may contribute to a final writing product that a lawyer will present to the public, the court, or to other attorneys. In the case of submissions to the court or another attorney, no "byline" credit is necessarily given to those who have contributed. Website content is simply an extension of the lawyer's practice and it seems inconsistent to require a lawyer to acknowledge a ghostwriter in that context where he would not do the same in legal practice. So long as the lawyer has personally approved the content to be published under his name, it seems like a stretch to say this runs afoul of ethical rules on advertising. 

Perhaps our readers have some other thoughts on this emerging ethical issue?

Masters of Allusion

As appellate writers, we are painfully aware of the fact that our readers aren’t terribly fond of our work product. Judges tell us that our briefs are simply tools, and that they are tired of trudging to chambers with boxes (or ipads) full of briefs that are too wordy, too obscure, and just too painful to read to be of much use. Judges, meanwhile, are accused of writing opinions that are too wordy, too obscure, and inaccessible to anyone but other attorneys.

It is understandable, then, that legal writers both on and off the bench try to liven things up. Like Ralphie in A Christmas Story, lawyers dream of turning in a piece of writing that, through shear skill, will temporarily lift our readers from their depression and convince them to joyfully deliver us our (client’s) wishes.

The use of literary allusion can help us make our writing more lively and informative. Allusions can build our credibility, illustrate the rightness of our position, and make our writing more accessible. But it is a two-edge sword: If used poorly, it can cause the reader to lose what little interest they had in our argument and even obscure our meaning.

Literary allusions can be very effective tools in legal writing.

The use of literary allusions is not universally praised. Indeed, Judge Posner, in his articles and book on the subject, Law and Literature, considers literature of little use to jurists, other than to serve as examples of good writing style. Nevertheless, most persuasive writing experts would argue that there are good rhetorical reasons to use literary allusions.

Aristotle identified three prongs of persuasion: ethos (credibility), pathos (emotional appeal), and logos (logical reasoning). Reference to literary allusion can assist with all three.

First, reference to “great” works can enhance the moral authority of the writer. Merely referencing Homer, Shakespeare, or a religious work such as the Bible, can confer some of the moral authority and weight of those works to the author. It can also demonstrate that the author is well read, and thus all the more to be trusted.

Second, quotations from literature can tie the emotion of the quoted work to the legal argument, invoking pathos. We are all taught to write narratively, because we are all storytellers and listeners by nature. Tying our characters to those of a great work ties the emotions inherent in those works to our characters.

Finally, allusion can help tie together a legal argument by way of illustration. There some general propositions that are difficult to state under stare decisis, but which seem immediately right when viewed through the eyes of literature. Thus, Aristotle invoked Sophocles’ Antigone to support his argument that respect for the dead is a universal law, as did Justice Kennedy, over 2000 years later. See Nat’l Archives & Records Admin. v. Favish, 541 U.S. 157, 168 (2004).

Make sure the allusion agrees with the law.

Justice Oliver Wendell Holmes wrote in his famous essay, The Path of the Law, “[t]he law is full of phraseology drawn from morals, and by the mere force of language continually invites us to pass from one domain to the other without perceiving it, as we are sure to do unless we have the boundary constantly before our minds.” 10 Harvard L. Rev. 457, 469 (1897). These boundaries have often been made apparent when allusions to moral works conflict with statutory sentencing schemes.

For instance, the Fifth Circuit had to step in and correct a criminal defendant’s sentencing when it was based on reference to Dante’s circles of hell rather than the sentencing guidelines. See U.S. v. Andrews, 390 F.3d 840, 850 n.23 (5^th Cir. 2004) (“The district court seems more comfortable with sentencing Andrews based on Dante’s levels of hell, but such a sentencing scheme has not been accepted as the law in this or any other federal circuit.”). Dante’s opinions notwithstanding, it was the duty of the court to apply the law, not literature.

Nevertheless, there are times when literature can inform the sense of justice upon which the law is built. Thus, the Seventh Circuit permitted a judge to rely (in part) on Dante’s Inferno in refusing a federal prosecutor’s recommendation to depart downward from sentencing guidelines because, even though the refusal to depart was stated to be based, in part, on literature rather than law, this was merely a reflection of the discretion vested in the trial judge by the guidelines. See U.S. v. Winters, 117 F.3d 346, 348, 350 (7^th Cir. 1997).

The lesson? Literary allusions can lend force to a legal argument, but they should not supplant it.

Let the reader discover the allusion.

It is often best to let the reader discover the answer themselves. This is particular true with allusions. A quotation often will have less force than the sudden recognition that you are inviting the reader into the argument based on their own experiences.

Bryan Garner, in his A Dictionary of Modern Legal Usage, gives an excellent of example of subtle allusions in legal writing. He cites to the dissent of Justice Robert W. Hansen of the Wisconsin Supreme Court, in Jones v. Fisher, 166 N.W.2d 175 (Wis. 1969) where he wrote: “The road that has brought us to the present state of affairs in regard to punitive damages in Wisconsin courts is a long one, paved with good intentions.” Id. at 182. As Garner notes, this formulations subtly suggests that the line of authority is a road to hell, allowing the reader to reach that conclusion themselves. Had Justice Hansen stated the aphorism directly, it would have been less effective.

Be sure the reader will recognize the allusion, or can understand the point if not.

When we communicate with someone, there is much more being communicated than the words we choose. We are also communicating through filters, and those filters include our shared experiences. Literary allusions, at their best, add to our communications through reference to the experiences writer and reader share in having read the same works.

In using allusions, then, we need to be careful not to obscure the text for the reader who is not familiar with the work. That was the conclusion of the late, great, Charles Alan Wright, when he concluded that it was safe to use allusions in briefs and other legal writings only so long as the text is intelligible even if the reference is not understood. See Literary Allusion in Legal Writing: The Haynsworth-Wright Letters, 1 Scribes J. Legal Writing 1 (1990).

Wright’s example leading to this conclusion is instructive. Wright was taken by the use of Justice Friendly of a reference to a “legal Lohengrin,” because it captured the essence of his legal argument so well by comparing an obscure statute to the character from a Wagnerian opera who depended on the obscurity of his own identity. Judge Haynsworth responded, however, by noting that the reference was itself obscure, and asked: “Should a judge write for the Charlie Wrights or for young law clerks preparing legal memoranda for the use of junior partners in advising clients?” Id.

We should keep the same question in mind. Particularly in a multi-cultural world with changing educational standards. Feel free to use allusions, but err on the side of caution when it comes to obscure ones, and be sure to sufficiently explain yourself to those who do not share the same reading experience.

Take a note from Justice Ginsberg, who made a Biblical allusion without any expectation of biblical scholarship, and then explained exactly what she meant:

No man can serve two masters. If you are negotiating a contract, a lawyer does not represent both clients. That is all that is involved here.

NLRB v. Health Care & Ret. Corp. of Am., 511 U.S. 571, 595 n.14 (1994).

Sometimes allusions can draw the sting out of a rebuke

Finally, I leave you with an allusion born from kindness. There are times when an appellate court has to note a clear mistake made by the lower court, or, worse, an appellate attorney must point out an error made in the law that seems apparent in retrospect. Let me introduce you to a literary allusion that can help you make such a point while actually complimenting the party that made the mistake.

Homer, the author of the Iliad and the Odyssey, two foundational works that should still be at least recognizable to our readers, was known to make mistakes. Indeed, Homer killed a character earlier in one of his texts and then used the same character later, fully alive, in apparent error. This led the Roman poet Horace to write that “even the noble Homer sometimes nods.”

Now, telling someone they made an obvious error is a delicate task. Comparing them to one of the most famous authors of all time while doing so, however, draws the sting a bit.

When Justice Cardamone was tasked with telling the district court judge that the Second Circuit had already set out the law of the case in a prior appeal, and that law had not been followed, he used this literary reference in his opening:

When one of the cases of this consolidated appeal was before us seven years ago, we set out some guidance on the law, which the district court [sic] either misinterpreted or missed. If the latter, such forgetfulness is understandable because we know that even Homer nodded.

Brooklyn Legal Servs. Corp. v. Legal Servs. Corp., 462 F.3d 219, 219 (2^nd Cir. 2006).

While some judges might disagree about the effectiveness of literary allusion, I doubt anyone would complain about being corrected in this gentle manner.

(The author wishes to credit John M. DeStafano III, On Literature as Legal Authority, 49 Ariz. L. Rev. 521 (Sept. 2007) for inspiring this article. Image credit: Matt Buck / CC-BY-SA-4.0).

Issues have to Percolate: Mandamus not available for Google in East Texas Venue Challenge

This is a post by one of our new authors: Hilary Reed, Clinical Associate Professor Lawyering Skills and Strategies at the University of Houston Law Center.

Though Google has no offices, employees, or store fronts in East Texas, it does have some servers there.  Last year, in a patent case, a district court judge deemed those servers a “place of business” in the Eastern District of Texas and established venue under 28 U.S.C. § 1400(b).  The Eastern District of Texas is known as a “rocket docket” and has a reputation as a plaintiff-friendly patent jurisdiction.  Google requested a writ of mandamus on the venue issue from the Federal Circuit. That writ was denied by a panel in October.  Earlier this month the Federal Circuit denied a rehearing by the panel and a rehearing en banc on the writ in In re Google LLC, 2019 WL 438198 (Fed. Cir. Feb. 5, 2019). It’s hard to imagine that this issue won’t ultimately be decided on the merits by the Federal Circuit because of the decision’s wide-spread implications for tech companies, potentially subjecting them to venue anywhere they own equipment.  But for now, the Federal Circuit has said that this is not one of those extraordinary causes mandamus should remedy.      

For more discussion of the venue issue, check out this blog post. 

While the underlying venue issue is certainly interesting, I want to focus here on the Federal Circuit’s mandamus analysis, particularly on the denial of the writ and Judge Jimmie Reyna’s strong dissents to both the original panel decision and the en banc rehearing denial.  From a practical perspective, how big do the stakes have to be for the appellate court to take up an issue on a writ of mandamus?

Writs of mandamus allow litigants to request appellate review before there is a final judgment in a case.  In the original panel decision, the Federal Circuit explains that “[a] writ of mandamus is a ‘drastic and extraordinary remedy reserved for really extraordinary causes.’”  In re Google, LLC, 2018 WL 5536478, *1 (Fed. Cir. Oct. 29, 2019) (citation omitted).  It then lays out the three requirements for a writ of mandamus:

[f]irst, the petitioner must ‘have no other adequate means to obtain the relief’ desired. Second, the petitioner must show that the ‘right to issuance of the writ is clear and indisputable.’ Third, ‘even if the first two prerequisites have been met, the issuing court, in the exercise of its discretion, must be satisfied that the writ is appropriate under the circumstances.”

Id.  The court reminds us that “a post-judgment appeal generally is an adequate remedy for asserted §1400(b) violations.”  Id. at *2.  But mandamus can be available “in certain exceptional circumstances” in order to assure proper judicial administration. Id.   

According to the majority, those circumstances do not exist in Google’s case—the issue needs to continue to percolate at the district court level. The court states that Google “failed to show that the district court’s ruling implicates the ‘special circumstances justifying mandamus review of certain basic, unsettled, recurring legal issues over which there is considerable litigation producing disparate results.’” Id.  The court points to the small number of cases dealing with this issue at the district court level, and says that the “extraordinary remedy of a writ of mandamus is not currently warranted.” Id. at *3.

Judge Reyna’s dissents present an entirely different picture.  I found his reasoning relating to the Court’s supervisory and instructional duties compelling, as well as his identification of a growing trend of suits against Google in the Eastern District of Texas.  He warns that the court’s decision here weakens the Federal Circuit’s Writ of Mandamus jurisprudence.  Part of the role of mandamus is to ensure “proper judicial administration.”  The Federal Circuit also has a special role of supervision of lower courts on patent issues because of its exclusive subject-matter jurisdiction.  By failing to issue the writ, the court allows a question to remain open that affects many technology companies and where they can be sued.  Judge Reyna notes that a large technology company may own equipment in all jurisdictions, potentially subjecting it to nation-wide venue, which is not in line with Supreme Court jurisprudence. 

As to the majority’s “percolation” principle, Judge Reyna states that “there is no principled reason to wait for these questions to ‘percolate’ further among districts . . . I see no justification for us to sit idly by while uncertainty builds and litigants and courts expend their resources on issues that we could have provided guidance on here.” Id. at *4.  In fact, Judge Reyna reviewed the Eastern District of Texas docket and identified a growing trend of suits against Google—thirty-four new suits from October 29, 2018 when the panel denied the petition for mandamus until February 1, 2019. 

Certainly, any adverse decision at the trial level can feel to the litigant like it should meet the mandamus standard because of the resources that they must spent before getting a final, appealable decision.  Google now will litigate this case and possibly a large number of others in the Eastern District of Texas, with the possibility that a later appellate decision will find that venue was improper the entire time.  While mandamus is supposed to be an extraordinary remedy, this seems like precisely the scenario where it makes sense.  Of course, it’s hard to muster much sympathy for a resource-rich company like Google having to pay more in legal fees, but the current uncertainty on the venue question needs settling.  And I’m sure to tech companies, the sooner the better.  Unfortunately for them, the Federal Circuit decided they can wait. 

Keep it Simple: Using Your Brief to Educate

Recently, Tessa wrote about useful tools for scoping out the court.  In her post, Tessa discussed resources for learning more about your audience, so you can effectively tailor your brief and argument.

In this post, I'll address some strategies for those times when learning more about your audience just isn't possible.  For instance, if you're arguing to a panel of the Fourth Circuit, you'll have no idea who's been pouring over your brilliant brief until it's show time.  Similarly, if your audience is a state supreme court, it's unlikely that any specific tidbit is going to save you.  Consider the odds.  In North Carolina, where I practice, you'd be left trying to anticipate the desires of seven justices, each with a different background.  

So what's the advocate to do?  Use your brief not only to argue but also to educate. 

Here's some background. Recently, I heard North Carolina's Senior Associate Justice, Paul Newby, speak at a CLE. Justice Newby was tasked with explaining the Supreme Court of North Carolina's mandatory appellate jurisdiction in complex business cases.

The Justice made the point that too often the nuance of a complex business case may be lost on his colleagues.  Each of them has a different background, and only one -- himself -- had a history of litigating business disputes, like shareholder derivative actions.  

The problem isn't that the justices don't approach each case carefully.  Quite the opposite.  It's that they're spending too much time trying to grasp the foundational principles, which the attorneys didn't explain sufficiently, and thus don't have enough time to digest the arguments. 

That got me thinking.  Lawyers get tunnel vision.  We know our case -- the ins, the outs, the twists, the turns.  Sometimes, we've lived with it for months or maybe even years. We've done the legal research and read all the pertinent authorities. 

Being so caught up may not be such a bad thing.  If you were involved before the appeal, you have an intimate knowledge of the case that an appellate lawyer will try her best to recreate.  But being so caught up also has its downsides. It's easy to become too comfortable with a set of facts, or with a legal principle.  

But skimping on the basics can keep your reader from buying what you're selling.  If a judge has to read your argument multiple times to get a basic grasp on the issues, you're losing ground.  The time that a judge spends re-reading your brief, pouring over the record, or, worst of all, doing background legal research is time that he or she is not spending thinking critically about your case.  Chief Justice John Roberts said as much in a 2007 interview with Brian Garner.  (Read the whole thing, but especially check page 28 of the PDF). 

So what can we do about it? Like all good legal problems, the answer depends.  The answer depends on whether the wrinkle in your case is factual or legal. 

If the complicated issue is factual, consider a tactic that a partner of mine calls "putting on the white hat." Take the opportunity to explain, as honestly as you can, not only the facts behind your case but also the context.  Why are the parties fighting? What are their motivations? 

I know, I know.  That sounds more like a mediation statement than an appellate brief.  But the reader will appreciate it. By putting the case in context, you'll have gained two advantages.  First, you will have explained the case in a way that helps the judge or her law clerk understand it. It's likely your opponent won't, which also means you'll get a chance to present your case's human factors.  And that leads to the second point. By explaining the human factors motivating your case from your client's perspective, you'll gain a subjective advantage. You'll humanize your client. 

Sometimes, putting your facts in context is as simple as an extra sentence, or an extra phrase.  For instance, if you're in an employer-union ERISA dispute, consider telling your reader what the employer does.  Likewise, consider telling your reader who the union represents.  Sure, these facts have nothing to do with the nuance of the ERISA plan in dispute, and you probably won't reference them anywhere in the brief.  But this type of stuff is important if you want your brief to do more than recite facts; it helps your brief tell a story. 

In any case, if the complicated issue is legal, then the best approach is to keep it simple.  Remember, judges are generalists. While you might live and breathe environmental or bankruptcy or intellectual property law, that doesn't mean that your judge does.  So think twice before you start using terms of art without first describing them in plain English.  Slow the pace of your brief, educate your reader, and then explain why you should win.  

I recognize that it might be frustrating to go back to basics.  But there's yet another benefit. You have the chance to teach the judge the applicable law as you see it. It's another chance for advocacy, no matter how subtle. 

To conclude, I'll leave you with this thought, which, to some extent, ties these points together.  Be creative about how you structure your brief. For instance, if you're arguing about a novel issue of statutory interpretation or a complex statutory scheme, the court will likely be less interested in the facts of your case than with an overview of the statute.  Lead with it.  Embrace it. You can take a lot of approaches when writing your brief and, fortunately, very few are wrong. But more on that in my next post. 

Appellate Advocacy Blog Weekly Roundup February 15, 2019

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 [email protected] or a message on Twitter @Daniel_L_Real.  You can also send emails to Danny Leavitt at [email protected] or a message on twitter @Danny_C_Leavitt. 

Supreme Court:

The Washington Legal Foundation held its mid-term assessment of upcoming arguments. The presenters scarcely mentioned the February arguments. 

Linda Greenhouse writes this op-ed for The New York Times about Chief Justice Roberts' position last week in June Medical Services, LLC v. Gee.  The Chief Justice stayed the Court of Appeals for the Fifth Circuit's ruling pending a petition for certiorari by the petitioners, an abortion clinic and its doctors.  

Justice Sotomayor spoke at the Law Library of Congress about her career, among other things. Particularly relating to appellate judges, she spoke of how the justices get along despite legal disagreements. Watch the event here. 

Practice Pointers and Tips:

Law.com has this article discussing whether Twitter helps or hinders practicing attorneys in their legal careers.

Judge Richard Minor @JudgeMinor, of the Alabama Court of Criminal Appeals, tweeted about his first oral arguments as a judge on the Court of Criminal Appeals in coming weeks. He asked for advice about how to prepare and participate as a judge. Many replying noted how refreshing it was that a judge would ask others about preparing.

Attorney Kristen Jernigan has these 10 ways to avoid waiving error for appeal.  

 

Can your Argument be so Good that no Questions are Allowed

As a follow up to my last post, I ask: Have you perfected your oral argument skills to the point where you have lost the very essence of the practice itself? Have you adopted a style that is not truly your own, but that you have seen successfully wielded by others? There are guidelines that should be followed, but they seem to be contradictory. For example, consider the following rules: Don’t just rehash your brief, but don’t raise anything new. Don’t be too comfortable, but remember to be conversational. Stand up straight, but don’t be stiff. Bring your notes to the podium, but don’t read them. I can imagine why, if you have seen someone do it well, you would be tempted to adopt that person’s style.

Here is the downfall to mimicry: it isn’t genuine, and your listener can tell. You get hung up on the act of giving the argument, and the performance of it all, as opposed to getting hung up on “having” the argument.   We all “give” arguments from time to time. At its essence giving an argument is what we do when we “say our piece.” It is more of a soliloquy than anything else. It doesn’t invite give and take, nor does it want to be questioned. At work, we give arguments when we give presentations, or lectures. We are happy to take questions … but, please, hold them until the end.

When you are truly having an argument with someone, there is give and take … in the moment. If one must wait to ask questions, the question itself loses its meaning. The answers are even farther removed, and they lose their power. Answers draw strength from context. Why would you ever want to disembody your answer by removing it from its contextual location?

If your argument is too perfect, or too unnatural for you, it will become a presentation. An argument that is too tight does not invite questions. In creating the perfect argument, you give off the aura that to disagree with you is to be wrong. Or it appears that you are so right in your position, your authority is not to be questioned. Your panel will follow along, but there will be no opportune moment to interrupt such a presentation. It will feel like interrupting, which is not conducive to conversation.

The best advocates are comfortable in their own skin. If they are nervous, it may show at first, but as the argument progresses and the conversation begins, even the most nervous of advocates settle into the conversation. Settle into the confidence of the argument itself. Your argument doesn’t have to be perfect, although it should be legally sound and logically organized; it merely needs to be inviting. With all the formality of the brief, you have already detailed a step-by-step approach to solving the problem before the court. Your argument is the time to explore the problem, and explain why your position is preferable to any alternative. Feel free to look down one rabbit trail or another, but confident enough to explain to the court why it does not want to, or should wait to, follow that trail. The more welcoming you are to questioning, the more confident your position will seem, and that is the key to a winning argument.

Appellate Advocacy 101: On the Basis of Sex

Last night, I watched On the Basis of Sex with first-year law students.  Munching on popcorn and candy, the students learned about Justice Ruth Bader Ginsberg and her first gender-discrimination case, Moritz v. Commissioner of Internal Revenue, 469 F.2d 466 (10th Cir. 1972).  Moritz challenged section 214(a) of the Internal Revenue Code, 26 U.S.C. § 214(a) (1954), because it precluded him, as an unmarried man, from claiming a caregiver deduction despite caring for his elderly mother.

On the Basis of Sex provides 1Ls with an excellent introduction to appellate advocacy.  The movie begins with Ginsberg’s first day of law school, then chronicles her writing her first brief and delivering her first oral argument.  After the movie, I discussed with the first-year students how the movie compares with what they will do when they receive their first appellate problem in a few weeks.  Below are some of the lessons learned.

Appellate Practice Is a Lot of Work

Most of the movie occurs outside the courtroom.  Students saw Ginsberg meet with Moritz to discuss taking an appeal.  They saw her strategize with other attorneys about arguments.  She works with her husband, a tax attorney, and her staff and students at Rutgers Law School.  She researches, writes, and rewrites the appellant’s brief.  When appellee’s brief arrives with an appendix of over six hundred federal laws that distinguish between men and women, Ginsberg and her team look up and discuss each one.  She takes a settlement offer to her client.  Before oral argument, Ginsberg practices before a moot court and then before a mirror.  Ginsberg works hard.  The process takes a long time. 

Oral Argument Is a Little Scary

The climax of the movie is during the final minutes when the parties argue before the Tenth Circuit.  Students noted how different oral argument looks from the trials they had seen on TV.  There is no jury.  A lone attorney stands before a panel of three judges.  They remarked how Ginsberg was nervous and awkward at first.  The judges directed the course of the argument.  They interrupted with questions. 

The students began to imagine what it will be like when they argue in April.  We discussed how preparation goes a long way toward easing nerves.  I shared that they will have the opportunity to practice before moot courts organized by our Moot Court Honor Society.  I encouraged them to practice in front of a mirror like Ginsberg.  I shared that it is normal to be nervous, especially for your first argument.   

One Case Can Be Two Different Stories

The underlying dispute in Moritz involved the denial of a tax deduction because the taxpayer did not meet the qualifications in the tax code.  The law was clear.  Mr. Moritz did not qualify for the caregiver deduction because he was an unmarried man.  Had he been a woman, divorced, or a widower, he would have been eligible for the deduction. 

The students observed how the lawyers (arguing for the IRS) and Ginsberg (arguing for Mr. Moritz) told two different stories based on the same case.  The IRS portrayed Mr. Moritz as a tax cheat.  Ginsberg held him up as a loving and devoted son.  The IRS, armed with one hundred years of precedent, argued that the Tenth Circuit should protect society by maintaining the status quo on gender.  Ginsberg advocated for new law because precedent had failed to keep up with society’s evolving views on gender.

During oral argument, the IRS argued that “radical social change” is something to be feared and must be stopped.  Ginsberg picked up on this point during her rebuttal.  She argued that “radical social change” had already happened and the Tenth Circuit should bring the law into alignment with that change.  Students were struck by this exchange.  Each side used the same words to make two very different points.

At the end of the evening, students left our gathering excited, inspired, and a little nervous.  I’m grateful to have had the opportunity to introduce them to appellate advocacy in such a fun way.  Ginsberg remarks at one point during the film that by teaching law students she hoped to inspire the next generation of lawyers.  Through this movie, Justice Ginsberg is still doing just that.

2019 Justice Donald L. Corbin Appellate Symposium

If you are interested in appellate law and can make it to Fayetteville, Arkansas, on March 28-29, I highly recommend that you attend the 2019 Justice Donald L. Corbin Appellate Symposium.  I spoke at the inaugural symposium last year, and it was one of the appellate conferences that I have attended.

The line-up of speakers is amazing, including:

• Howard Bashman
• Judge Duane Benton (8th Cir.)
• Judge Mary Beck Briscoe (10th Cir.)
• Judge Ralph Erickson (8th Cir.)
• Judge James E. Graves, Jr. (5th Cir.)
• Kannon Shanmugam
• Chief Judge Lavenski R. Smith (8th Cir.)
• Judge Jane B. Stranch (6th Cir.)

The line-up also includes several state court judges and other attorneys, including my friends:

• Lee Rudofsky (former Arkansas Solicitor General, now at Walmart)
• Prof. Abigail Perdue from Wake Forest Law
• And our own Joe Regalia

Honestly, if there wasn't a little boy turning 1 that week at our house, I would seriously be considering a trip to Arkansas that week.  I hope that Joe will write a post or two on the Symposium.

If you would like to register, you can follow this link.

Welcome to our new authors

I am thrilled to announce that we have seven new authors joining the Appellate Advocacy Blog.  With these new authors, we will be able to provide daily new content to the blog.  As you can see from the introductions below, the new authors bring a wealth of diverse experience to the blog.

Lance Caughfield—Lance is a partner at Baker Moran Doggett Ma & Dobbs in Plano, Texas, where he has an appellate and trial practice in state and federal court.  He is a graduate of the University of Texas School of Law, is board-certified in Civil Appellate law, and has coached moot court at SMU’s Dedman School of Law for over twenty years. 

Jason Cohen—Jason is a Clinical Professor of Law at the Sandra Day O’Connor College of Law at Arizona State University.  From 2005 – 2017, he taught at Rutgers Law, where he also served as the law school’s Director of Lawyering.   

Kirsten K. Davis—Kirsten is a Professor of Law and the Interim Dean of Student Affairs at Stetson University College of Law.  She is also the Director of the Institute for the Advancement of Legal Communication.  In addition to her law degree, she holds a Ph.D. in Human Communication for the Hugh Downs School of Human Communication at Arizona State University.

Chris Edwards—Chris is a litigation attorney at Ward and Smith in Wilmington, North Carolina.  He graduated from the Wake Forest School of Law, where he was a member of the moot court board.  He clerked for the Honorable Louise W. Flanagan, U.S. District Court for the Eastern District of North Carolina, and the Honorable G. Steven Agee, U.S. Court of Appeals for the Fourth Circuit.

Allison Kort—Allison is the founding member of the Kort Law Firm in Kansas City, Missouri, where she provides legal services in the areas of appellate advocacy and complex pretrial practice in cases regarding employment discrimination law, higher education and Title IX, and family law.  Prior to starting her firm, she spent ten years teaching Appellate Advocacy and Lawyering Skills at several law schools including Duke and the University of Missouri Kansas City School of Law.

Hilary Reed—Hilary is a Clinical Associate Professor of Lawyering Skills and Strategies at the University of Houston Law Center.  Prior to joining the Houston faculty, she taught at Pepperdine University School of Law and directed Pepperdine’s Appellate Moot Court Program.

Amanda L. Sholtis—Amanda is a Professor of Legal Methods and Director of Academic Success at Widener University Commonwealth Law School.  Prior to joining the Widener faculty she practiced trial and appellate litigation with the Pennsylvania Office of the Attorney General and clerked for the Pennsylvania Supreme Court.

Please join me in welcoming this great group!

Big Little Lies in a Statement of Facts

Hi everyone! I'm grateful to be included as an author on the Appellate Advocacy Blog.  Please bear with me as I get the hang of it.

For my first post, I wanted to address something that has been happening with alarming frequency in my practice.  A little background--in 2015, I opened my appellate practice after teaching lawyering skills for ten years.  Since returning to practice, I have been (perhaps naively) surprised at what attorneys will say in briefs. In my pre-teaching life as a young(er) attorney, the joy in writing briefs was that the record was the record and I didn't have to argue facts. (Insert your favorite "in my day, we had to walk 4 miles through the snow to get to school in the morning....").  And now in my post-teaching life, I find myself responding to Statements of Fact that omit relevant facts, and misrepresent others.  Is this a new trend in line with the whole "Alternative Facts" movement?  And what to do about it?

Of course, everyone knows the rules here.  Federal Rule of Appellate Procedure 28 requires that an appellant's brief contain "a concise statement of the case setting out the facts relevant to the issues submitted for review, describing the relevant procedural history, and identifying the rulings presented for review, with appropriate references to the record."  The state corollary in Missouri, where I have been practicing the last two years, defines the Statement of Facts as "a fair and concise statement of the facts relevant to the questions presented for determination without argument."  Even though the terms "relevant," "concise," and "fair" might have different meanings to different writers, the rules just don't provide for omission of key facts, or reinvention of facts in the record.  

And of course there's Model Rule of Professional Conduct  3.3 requiring "candor to the tribunal." A lawyer may not knowingly: 

(1) make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer;

(2) fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel; or

(3) offer evidence that the lawyer knows to be false. If a lawyer, the lawyer’s client, or a witness called by the lawyer, has offered material evidence and the lawyer comes to know of its falsity, the lawyer shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal. A lawyer may refuse to offer evidence, other than the testimony of a defendant in a criminal matter, that the lawyer reasonably believes is false.

Ultimately, as Garner and Scalia stated: "Never  overstate your case.  Be scrupulously accurate."  

I've discovered a few additional imperatives when reviewing your opponent's statement of facts that I hope you will find useful. 

1. Look carefully for material  omissions.  

Since our first year legal writing class, we have learned that attorneys  can't omit bad facts in the statement of facts.   We are taught how to "artfully" deal with the bad facts, or hide them in plain sight, or just admit them and get the whole business of bad facts out of the way.  But in reality, bad facts are omitted from the Statement of Facts all the time.

Example:  Initially, the parties were granted joint legal and joint physical custody over the child, but Mother had "final say" if the parties could not agree.  After the first custody modification proceeding, that "final say" language was removed from the parties' parenting plan and the parties were ordered to share all decision-making rights. 

So the way these facts are presented, it would seem that as a result of the modification proceeding, neither parent had "final say" in making decisions for the child, right? Wrong. While the facts as stated were themselves accurate, and the words "final say" were removed from the parenting plan, the writer of that brief omitted the following: "in the event that the parties cannot agree, Mother shall have the discretion to make the final decision. . . ."  The prior modification decision wasn't at issue in this appeal, but still. Less than scrupulously accurate?  In your response, point out the omission and correct it, clearly and concisely. 

2.   Identify inaccurate inferences based on trial testimony, or "I don't think that word means what you think it means."

For most appellate lawyers, our job is to identify the meanings of words.  I love nothing more than a good old-fashioned plain language statutory interpretation argument.  But beware of the tendency of some to assume an agreed-upon meaning of what was said.

Example: Mr. Smith consented to his attorney's withdrawal, when Mr. Smith said "okay" after the trial court stated it was granting the attorney's motion to withdraw.

As anyone reading a trial transcript can attest, instances of the word "okay" occur more frequently than we'd like to believe, and do not usually indicate consent.  Get out the old dictionary (I always go with the OED because it is so comprehensive), and point out that the word "okay" also means "introducing an utterance or as a conversational filler, typically without affirmative or concessive force, but rather as a means of drawing attention to what the speaker is about to say: well, so, right."  Done and done. 

    3. Beware the Projector, or  "I know you are but what am I?"

After you've filed your brief, whether you're representing the appellant or the respondent/appellee, be prepared for allegations of inaccuracy in your  Statement of Facts.  Urban Dictionary defines"projection" as  "[a]n unconscious self-defence mechanism characterised by a person unconsciously attributing their own issues onto someone or something else as a form of delusion and denial."

Example A. Broad accusations:  The appellant's  one-sided, argument-riddled statement of facts is unfit to be a statement of facts in an appellate brief.

How to respond to this?   I believe in reiterating the scrupulous accuracy and citations to the record for your statement of facts.  Nip that one in the bud, but address it.

 Example B.  Specific false allegations:    In his Statement of Facts, Mr. Smith states that the premarital portion of his             retirement account was valued at $200,000, without disclosing it was just his testimony.

Actual sentence in the Statement of Facts:  "Mr. Smith orally testified that, the premarital portion of the retirement account was valued at $200,000."  

What to even do with that statement? Again, just unpack it for the court, explain the omission and the inaccurate nature of the claims. My suggestion in brief writing, is to tolerate none of this kind of manipulation, even if the issue itself isn't one for the court of appeals. Be unwilling to allow another officer of the court to paint your writing as manipulative or deceptive.  

4.  A few final tips for disputing untruths:  

1. Be short and direct.  Leave the outrage at the door.  (i.e., don't say "nowhere has the undersigned read a more egregiously inaccurate Statement of Facts").
2. Avoid adjectives and adverbs ("Respondent is incredibly, blatantly wrong").  I like to say simply:  "Respondent is wrong."
3. If you are the respondent, better to first set the record straight and dispute inaccuracies made by your opposing counsel; then bolster your own story.  If you are the appellant, brace for the attack, and then respond in your reply brief. 
4. This is a good time for bullet points.  Just list everything in the opposing Statement of Facts that's inaccurate or misleading, or omits information, in bullet form. 
5. Move on to your own story as quickly as possible.

In the world of appeals, we fancy ourselves the intellectuals and academics of legal practice--so why would any  appellate attorney wants to put his or her reputation on the line by omitting and reconstructing facts in the Statement of Facts section of a brief? And then, is it your responsibility to correct these mischaracterizations?  I think yes.  Does it matter how significant the mischaracterizations are?  I think no. 

Correct all outright lies, omissions of critical facts, and suggestions of  blame-shifting.  Use your allotted word count to be scrupulously honest.  

 

And for next time---misrepresenting legal authority.  Or I'm open to suggestion!

Thanks for reading,

Allison

 

 

 

Legal Writing Like an Entrepreneur

"Tomorrow becomes never. No matter how small the task, take the first step now!"

--Tim Ferriss 

Elon Musk's work style embodies what every entrepreneur wants to be: ridiculously efficient, meticulously organized, and so productive that everyone around him wonders how he manages it all. He runs multiple mega companies, dozens of projects, and spends several days a week with his five children. And he does it all by taking the same sort of productivity and organizational principles that startups use to build good businesses--and applying them to his own life. 

This very silicon valley trend of maximizing personal efficiency works. Musk reportedly schedules his day in five-minute increments, making it impossible for him to waste time. "From the second [Musk's] head lifts off his bedroom pillow at 7 a.m., his day has already been pre-planned in advance." And Musk is not an outlier: the best entrepreneurs are famous for bringing efficiency and productivity not just to their businesses, but to their personal habits, too. 

Then you have lawyers. We may be the most inefficient, unproductive gang. We seem to take about twice as long to do everything. People literally talk about hiring a lawyer just to delay things.

It's not just what others think about us: lawyers and law students really struggle with efficiency and productivity. And a lot of it comes down to our writing. I constantly get questions about how to deal with procrastination and the overwhelming feelings that come with putting together briefs and motions. When you step back, it's easy to understand why. Legal writing is overwhelming. You have to figure out your goals, research tons, research some more, organize your points, write something, edit, scrap things (and maybe start over) when it all doesn't turn out--and on and on. Then mix in some unreasonable deadlines. Little surprise that legal writing is where many of us have our meltdowns. 

But entrepreneurs seem to be able to handle multitasking and deadlines just fine. So what can they teach us here?

There are two sets of tools that might help: (1) some silicon valley productivity principles that you can apply to your legal writing, and (2) some technology tools that can help you organize, draft, and manage your writing process. The latter includes everything from cutting-edge legal drafting software (like the amazing Brief Catch and the brainstorming tool Coggle) to teamwork apps that will automate your editing checklists. 

But one thing you need to know before we dive in: improving your productivity requires upfront investment. All of these tools require you to invest time, and sometimes, money. You must learn the tools, set them up, and work with them. And this truth is why most of us remain stuck in the same productivity ruts. So be ready to invest, and you will see results. 

1.    What entrepreneurs can teach us legal writers 

There are tons of productivity systems out there, and I've seen lawyers and law students thrive on many of them. For example, check out: Getting Things Done; the 2-minute rule; Kanban; Eating Live Frogs; Do the Worst Thing First; Must, Should, Want; Pomedero; and To-Done list.

But for this article, I want to get to the tech tools. And before we can do that, we need a couple first principles: Automation and processes. They sound boring, but both pack a punch if you use them right. 

Automation

Automation has you do three things: Take stock, dissect, and optimize. 

1. Take stock. List out all the writing tasks you do on a regular basis (daily, weekly, monthly, multiple times a year). 
2. Dissect. Cut up each task to expose its inner workings and identify each small step you take to complete it. 
3. Optimize. Take one discrete step at a time and ask: Is there a tool or system I can put in place to make this task faster, easier, or better? These tools can be practical or technological. 

To apply automation to legal writing, take some document that you regularly put together. If you're a litigator, maybe start with a motion to dismiss, a client letter, or whatever else you write with regularity. Like anything, it probably makes sense to prioritize the types of writing that you struggle with the most and work on those first. 

Then sit down and brainstorm all the things you usually do to produce an excellent version of that document. Start at the beginning (do you first sift through facts and mark them up? look for similar documents you've written to steal ideas from? talk through ideas with others?) and make sure you ferret out every part of the process--right up to the polished masterpiece that you file or send off. 

Be scrupulous. Even the smallest, most inconsequential tasks can matter. And achieving even small efficiencies or avoiding tiny headaches can build to big results. 

With your long list of discrete tasks, now it's time to optimize. There are tons of tools, and we'll look at some exciting technology in the next section. But the automation frame of mind is what matters here; the mindset that you are searching for ways to optimize what you do. You will be surprised at how even the smallest things help. For example, I always take some time to look up alternative words to replace the boring ones in my writing. That used to require me to open up a separate browser tab and paste words into an online thesaurus. But by spending some time automating, I now use a Grammarly plugin that automatically searches for alternative words just by highlighting them. The same task now takes me seconds: 

Again, there is no perfect way to optimize. But to start you off, here are some ideas for optimizing: 

• Find technology that will do it for you (more on that later);
• Create templates with all the formatting worked out;
• Create quick-access buttons on Word and learn (or program) hotkeys for everything you do a lot;
• Create saved text that you commonly insert;
• Organize and tag documents or information you often use (we will talk about some tech tools to make this easy later);
• Have others help complete tasks who are experts;
• Use checklists to make the task quicker and more efficient;
• Keep track of tasks using project management software; 
• Anything else you can think of! 

Processes

Mark Twain had it right: “The secret of getting ahead is getting started. The secret of getting started is breaking your complex overwhelming tasks into small manageable tasks, and then starting on the first one.” He could have been talking about processes. Processes are different than automation. With automation, you optimize tasks. With processes, you plot out what tasks are helping or hurting and what order you should tackle them in. 

The value of planning out the step-by-step process you use for writing is manifold (Thanks Grammarly!). Perhaps most important, processes suck the anxiety out of overwhelming writing projects. Instead of worrying about the many things you have left to do, you can focus on the tiny next step, which is always more manageable. Building good processes is how I've helped countless students and lawyers get over writing and test anxiety. And it works for all of us. 

Another benefit of processes is that they ensure you don't miss important steps (say, during the editing or research process), while at the same time, allow you to cut any steps that aren't giving you enough bang. Like the famous Toyota Production System, you are designing a foolproof process for creating excellent writing.

I've talked about writing processes before. It's going to take some trial and error, but once you have a good process down, you will feel the anxiety and stress melt away. For an example, maybe your writing process starts with: 

1. Take a half a sheet of paper and write down the main questions that your document must answer and your precise goals for the piece. This will anchor you in the next steps.
2. Summarize the main facts that you think matter to the document—in bullet points. This list will change as you research and get drafting, but starting with a simple set of important facts will narrow the field when you start researching, which is often the trickiest step.
3. Get a high-level understanding of the law and write out some bullets points for these, too. Keep them organized around the questions you wrote down earlier. You may already have a sense of the legal principles you care about (say, you are drafting a response to the legal points raised by the other side). But before getting into the weeds of legal research it always helps to orient, or reorient, to the legal big picture. Otherwise, you're liable to scurry down rabbit holes with little payoff.
4. And so on...

2.    Tech tools to organize, draft, and manage your writing

First, check out my recent article looking at some of the latest grammar and style bots. These can eliminate a lot of stress from your editing tasks, at least. And if you're among the few lawyers or law students who haven't yet tried Ross Guberman's Brief Catch, you must. It's the first writing bot built exclusively for lawyers. And it works wonders. A couple of weeks ago I introduced Brief Catch to my second-semester law students, and their minds were blown. I've seen similar reactions from lawyers and judges. 

Second, I've collected some of the hottest tech tools that entrepreneurs use to get ahead--and that I've used with lawyers, law students, and judges to improve their writing process. Exploring them all (and the many others out there) could fill a book. So I've tried to stick to the most exciting and useful for now.  

Stop wasting time surfing and stay up to date

Many of us waste hours surfing for new articles about emerging caselaw, new practice developments, and everything else we care about. But there are tools that will run down these resources and deliver them to you on a platter. 

Westlaw, Lexis, Bloomberg, and Law 360 all offer sophisticated legal-alert tools. And they are easy to use. You simply type in some searches that will pull relevant articles and cases. Google Alerts takes about five seconds to setup: 

Then there are some tools that go deeper. Say you want to be alerted every time there is an update on a website--perhaps when a new opinion is released from a court and uploaded. Programs like Wachete let you do just that: simply select the areas of a website that you want to receive alerts about and the tool does the rest:

Automate your writing 

Several magical tools will help you keep track of your past writing, information, or resources so that it's always at your fingertips. No more searching around for that last motion to dismiss you wrote. My favorite is AirTable. This tool is everything we love about spreadsheets but made easy to use and beautiful. You can create tags and fields like an excel savant, but without any expertise or training. I encourage lawyers to use tools like this to manage all their past documents, cases, resources, or any other information they use a lot. Here is a sample I created for a court recently, which keeps track of past opinions with embedded links to the full documents: 

 

Create a writing and editing process 

This is where technology really shines. One of the most exciting tools for legal writers is Process Street. This program automates all your checklists or processes. Not only can you create clean, printable checklists--but you can embed links and documents within individual items, allowing you to bring your checklists to a whole new level. For example, I create editing checklists for attorneys and attach example images or documents illustrating the writing concept that I'm telling them to check for: 

 

Break through blocks and draft better

Several tools will help you break through writer's block and brainstorm or organize your legal writing. Two that I love right now are Workflowy and Coggle. 

Workflowy is a simple program that compartmentalizes your writing process, helping you focus on one section or topic at a time. The clean, simple interface transforms the drafting experience. And everything is easy to export out to Word.  

Coggle is one of the many brainstorming apps out there that help you visualize ideas as you plan out your documents or arguments: 

 

Organize with others 

Writing with others is tough. And some of that difficulty comes from simply coordinating who is doing what--and when. Technology programs like Monday and Trello make writing with others easy. These tools help you keep track of every aspect of a project with just a few clicks: 

 

Organize your writing tasks 

Keeping track of what you need to do next may be the most annoying part of writing. My favorite tech tool here is ToDoist. So easy to use, and it syncs up with all your devices. It also has an intuitive and simple tagging and calendaring system. If there is anything that lawyers and law students get hooked on when I run them through these technologies, it's ToDoist: 

 

Other tech tools to try

Technology can make writing fun again. But you can't just rely on the tools built for lawyers. And you will need to start investing time in finding and learning new programs. Before we end, here are a couple other ideas to get you excited:

• Google searches: Google has all sorts of special search terms that few folks know about. Check some out here. 
• Hotkeys: Learning hotkeys can cut down little bites of time from each project--which adds up. Find some common ones here. 
• Programs that cut distractions: Freedom and Inbox Pause allow you to filter out annoying internet, email, or social media distraction.
• There are tons of other tools that can help with your writing productivity. For example, the OneTab extension will clear all of your browser tabs and save the links in a file. No more feeling pressured to save all your open browser tabs! 

A more productive you awaits! 

Joe Regalia is a law professor at the University of Nevada, Las Vegas, William S. Boyd School of Law and regularly leads workshops training legal writing and technology. The views he expresses here are solely his own and not intended to be legal advice. Check out his other articles and writing tips here. 

Appellate Advocacy Blog Weekly Roundup February 8, 2019

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[email protected] or a message on Twitter (@Daniel_L_Real).  You can also send emails to Danny Leavitt at [email protected] or a message on twitter @Danny_C_Leavitt. 

 

Supreme Court Opinions and News:

The Supreme Court voted this week by a 5-4 margin to a Louisiana abortion law from going into effect pending appeal.  The law would have required abortion providers in Louisiana to have admitting privileges at nearby hospitals.  Justice Kavanaugh filed a dissent.  The Court's vote likely signals that the Court will hear the case during its next term.

• New York Times story  
• SCOTUSblog coverage from Howe on the Court  
• How Appealing links 

Justice Ginsburg made her first public appearance since her recent hospitalization for cancer surgery, appearing Monday night at an event at the National Museum for Women in the Arts in Washington, D.C.

• • • Washington Post story  

      

Federal Appellate Court Opinions and News:

Fifth Circuit Court of Appeals Judge James Ho authored a dissent this week in which he concluded that Title VII prohibitions on sex discrimination do not extend to prohibit discrimination against LGBT workers.

• • Law360 article 

 

State Appellate Court Opinions and News:

In Texas, the chief justice of the Texas Supreme Court called this week for the state to do away with its system of electing judges by political party when he gave an annual speech to the state's legislature.

• • Dallas News story 

 

Practice Pointers:

The ABA's Council of Appellate Lawyers publication Appellate Issues is out with its January issue.  The issue features articles about the programming during the 2018 Appellate Judges Education Institute Summit from last November.

• Link  
• HT:  Howard Bashman

On #AppellateTwitter this week, Ross Guberman noted an interesting split between appellate attorneys writing "this appeal presents the issue whether a court . . ." vs. ". . . the issue of whether a court . . ."

     

Should PACER be free?

A suit pending appeal in the Federal Circuit Court of Appeals is asking for an end to administrative fees for accessing documents filed in the federal courts. Public judicial documents are located in the electronic database, Public Access to Court Electronic Records system, or PACER. Anyone can access the system, but there is a fee of 10 cents per page. 

The E-Government Act of 2002 authorized the judiciary to charge PACER access fees, but the fees were limited to "the extent necessary" to provide access to these records. At 10 cents per page, it may seem minuscule in the abstract, but when looking at the actual intake PACER has had, there are legitimate questions about whether this charge is exorbitant. For an example, even though PACER cost $3 million to operate in 2016, it brought in over $146 million in fees. For anyone who's had to navigate the clunky interface that reminds a user of the nostalgia of how the internet used to work, it would not be unreasonable to wonder where all that money is going. 

The lawsuit brought against the United States by National Veterans Legal Services Program, the National Consumer Law Center and the Alliance for Justice asks exactly that - where is this money going? 

From 2010 to 2016, the federal courts collected $920 million in Pacer fees. During that period, the judiciary spent about $185 million of the money on courtroom technology, and millions more on other projects, including $75 million for automated notices to creditors in bankruptcy cases.

While those expenditures seem in line with the dictates of the law, the trial court found not all of them to be appropriate. Both sides are appealing this decision.

To go further, a group of retired federal judges have filed an amicus brief substantiating their position that PACER should be free. Judge Posner is among the amici.

In a friend-of-the-court brief filed earlier this month, they argued that PACER should charge no fees at all, citing the need for judicial transparency and the benefits for researchers, journalists, and prisoners who represent themselves in court. “Given the public’s strong interest in accessing court records, the judiciary should bear the cost of PACER’s operations,” the brief said. “This is consistent with the courts’ longstanding tradition of providing free access for all who come into the courtroom.”

Without having knowledge and information about the expenditures or the entire budget allotted to the federal judiciary it's hard to say whether the money collected via PACER is in compliance with the law or whether it is being wisely spent. However, the unexplained lack of attention to bring the PACER system into the year 2019, sure seems to indicate that the judiciary should try filing some documents in order to gain a perspective for those on the other side of the bench. They may have a new appreciation for techie upgrades!

US Reports the easy way

The official U.S. Reports versions of Supreme Court opinions have been online for a long time. Seriously: all you need to do is cruise over to the Library of Congress's site, do some scrolling and some clicking to hunt down the volume you need, then do some more clicking and some more scrolling to get to case you need. Or, for relatively recent cases, you can go to the Supreme Court's site and do a slightly less elaborate click-and-scroll dance.

It's as tedious as it sounds.

That's why I'm celebrating scotuslink.com, a nifty little online service from Orin Kerr and a dev who goes by the Twitter handle of birds five underscores (@birds_____). The concept is simple: you go to the site, plug in the U.S. Reports citation, and get routed to a PDF copy of the case. The service generates the snarly URI required to get where you need to go in the LoC or SCOTUS catalogs. No searching or scrolling required. I've found it a big time/aggravation-saver for cite-checking and for diving into oldies like Chisholm v. Georgia. 

A nice bonus: the design and code are great: simple, clean, and thoughtful.

Dive in.

Thinking slowly to address implicit bias

As advocates, we frequently represent clients who face potential bias from the jury box or bench. Sometimes the biases are explicit, but most often, the biases are implicit, and the person(s) holding our client's fate in their hands may not even be aware of them.

William Blackstone, writing in the predawn of our American legal system, recognized the problem when he wrote of the danger that judges, "in spite of their own natural integrity, will have frequently an involuntary bias towards those of their own rank and dignity." Blackstone, 3 Commentaries on the Laws of England 379 (1768). Cognitive science caught up with Blackstone's common-sense pronouncements at the turn of this century, with a psychologist/lawyer named Jeffrey Rachlinski at Cornell Law School confirming that even trained jurists are susceptible to unconscious bias, and have difficulty in actually disregarding evidence that should legally be disregarded.

In Texas, where I primarily practice, there have been recent efforts to address these issues. In December 2016, the Supreme Court of Texas invited Dr. Rachlinski to speak at the Beyond the Bench: Law, Justice, and Communities Summit. He reiterated his research suggesting that our intuition is often influenced by unconscious biases, and that these biases also influence trained judicial decision makers. Since that time, the discussion has continued, and there are initiatives to help both judges and potential jurors identify and address those potential biases.

How do we, as lawyers, help our clients ensure that these biases are not going to harm their case? First, we have to understand those biases. I highly recommend the writings of Dr. Rachlinski, as well as the very accessible book "Thinking, Fast and Slow," by Daniel Kahneman. Kahneman, in particular, has a talent for pointing out just how many mistakes we make when we allow our "fast" system of thinking (necessary to so many daily, repetitive tasks) to handle the analysis, and the need to trigger a "slow" analysis to avoid those errors.

Second, we need to make sure that we, as well as our judges, employ a deliberate factual and legal  analysis that engages the more analytical part of our brains rather than permit a simple surface analysis of what a "reasonable juror" might decide. This is particularly true in a world where the member of one political party tends to believe anyone associated with the other political party is incapable of reasonableness.

By understanding the potential biases at play, we can address them and try to prevent them from having a negative impact on our client by drawing them into the light of reason. And by explicitly requiring a system of inquiry that depends on a direct analysis of facts or legal factors before any conclusions can be reached about what is "reasonable," we can try to guide our judges past their unconscious biases and into a more analytical, unbiased frame of mind. We can also support efforts, like the 2016 Summit in Texas, as they educate our judges about their own biases.

In the meantime, be aware of these biases in both your judge and yourself. While we are advocates for our clients, that advocacy can only improve if we use this research to help us eliminate blindspots we ourselves might have because of our own biases.

(An earlier version of this article appeared on LinkedIn. Photo attribute: Bill Sanderson, 1997. Credit: Wellcome Collection. CC BY 4.0)

Tools for Scoping out the Court

When you are writing an appellate brief or preparing for an oral argument, it is important to keep your audience in mind--the judges (and, let's be real, their clerks).  You don't write to impress your client, your boss, our your mom--you write to impress the judges and to get them to decide the case in favor of your client (which will, of course, impress your client, your boss, and your mom).  Part of writing for judges means knowing what they want.  So, how do you figure that out?  Well, for starters, you know that they want shorter briefs.  In surveying judges for the third edition of Winning on Appeal, we found that judges overwhelmingly think that briefs are too long.  It is the single issue that all judges seemed to agree on.  Apart from that, it can be helpful to research the judge or judges that you are appearing before to get an idea of what that judge wants.  

How do you research them?  Apart from talking to others that have appeared before the same court and judges, there are now some really great computer based tools to help.  Today I would like to talk about two such sources.

The first source is Context from Lexis Advance. You can read the Lexis marketing materials on it here.  For those of you who are real research nerds (like me), you might better know Context as Ravel's Judge Analytics.  Lexis acquired Ravel a year or two ago, and they are continuing to integrate all the cool Ravel computer stuff into Lexis.  What can Context tell you about a judge?  Well, a lot.  In addition to a short bio, you can find that judge's opinions by areas of the law.  You can see how the judge rules on particular types of motions (trial judges), and you can see what opinions that judge frequently cites to (and what judges).  For example, I searched for the late  Justice Scalia.  I found that his most cited case was Chevron. Context even shows me the parts of the opinion that he most frequently cited to. His most cited judge was Justice Byron White, followed by Justice Rehnquist and then himself.

Westlaw Next or Edge or whatever we call it now just rolled out a similar product--Litigation Analytics.  You can read the Westlaw marketing materials here.  Their product seems to have more options (you can search law firms too).  I searched for Justice Scalia on Litigation Analytics to see how the results differed.  Litigation Analytics has a nice, comprehensive biography of Justice Scalia's career.  According to Litigation Analytics, Justice Scalia cited to himself most often, followed by Justices Kennedy and O'Connor.  His most often cited case was Payne v. Tennessee.  I am not sure what accounts for the differences between the two services, but it might that one includes Justice Scalia's D.C. Circuit service and the other doesn't.

I think that both resources provide valuable insight into anyone writing an appellate brief (or preparing for oral argument).  Both services include local judges--I looked up by name a local Pima County Superior Court judge and he was there. 

But, apart from their usefulness to appellate attorneys, the services provide another valuable role.  They are excellent for law students who might be interested in interning or clerking for a judge.  You could get a wealth of knowledge about a particular individual before you step into that interview.  I plan on encouraging my students to consult one or the other as they work on their clerkship applications.

Appellate Advocacy Blog Weekly Roundup February 1, 2019

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 [email protected] or a message on Twitter @Daniel_L_Real.  You can also send emails to Danny Leavitt at [email protected] or a message on twitter @Danny_C_Leavitt. 

Supreme Court News:

• Michael O'Donnell has this book review on Joan Biskupic's new book about Chief Justice John Roberts. Joan is a legal analyst for CNN. 
• Abortion providers have asked the Court to rule on an emergency stay of a state law that would leave few doctors to provide abortions. The case may be an early test for the new justices to weigh in on the issue.  The Washington Post has this report about the emergency stay. Perhaps the same approach to Second Amendment issues in front of the new Court is in play. 
• Regarding lifetime tenure of the Court's justices, the Washington Post has this article about the founding fathers not intending for justices to stay on the Court as long as they sometimes do.
• Adam Feldman @AdamSFeldman has this piece at SCOTUSblog or Empirical SCOTUS about oral arguments in front of the justices in the past few months, and how to use those as evidence of what the new Court will do moving forward. 

Federal Appellate Court News and Opinions:

• Carrissa Bryne Hessick has this post at Prawfsblog about a recent amicus brief in the Fourth Circuit. The brief urges the use of corpus linguistics in statutory interpretation, but Carrissa does not. 

Helpful tips:

• The 2019 Justice Donald L. Corbin Appellate Symposium will be held on March 28 and 29. Find information about the link here.