Saturday, March 30, 2019
One of the first presentations I watched at the Corbin Appellate Symposium this week was a talk by a panel of federal appellate judges. "I always like the ABC's in my briefs: Accuracy, brevity, and clarity"--that from Tenth Circuit Judge Mary Briscoe. Judge James Graves, from the 5th Circuit, chimed in: "mine is almost the same! Brevity, clarity, and honesty." After the judges talked about some nuts and bolts for a while, the third member of the trio, Sixth Circuit Judge Jane Stranch, launched into a moving discussion about how far our profession has fallen in the civility department: "attorneys are proud to say they use 'scorched earth advocacy.'" "Choose to be civil; expect others to be civil."
I had heard about the Corbin Appellate Symposium--an event that brings together practitioners, judges, and professors from around the nation to talk everything appellate. It sounded great: World-class speakers, fascinating topics, and a charming Arkansas setting.
But it was so much better in person.
I was lucky enough to be invited to speak at the symposium this year. And this is one of the best conferences I've ever been to. I didn't even make all of the talks, and I learned tons. The bench of presenters (no pun intended) included judges of every variety--state and federal, trial and appellate--which would have been incredible enough on its own. But then pile on folks like Wake Forest's Abigail Perdue (whose talk I missed but heard wild raves about!), How Appealing's founder Howard Bashman, and Williams & Connolly's SCOTUS powerhouse Kannon Shanmugam, and you have something quite unique.
For those of you who missed out, I thought I'd share just a few of the many nuggets of wisdom that the presenters gave us (if you were at the symposium--feel free to shoot me your own and I will add them, or leave a comment!).
Several of the judges lamented how uncivil many attorneys are today. They squabble, lob personal attacks--and often right in front of the judges. This kills your credibility, and your credibility matters when you're asking a judge to listen to you (something I talked about a bit in my talk, too). "Just don't say anything rude about your opponent," said Judge Stranch.
Judge Stranch deserves a special shout-out here. Her passion for civility and educating the bench and bar was obvious. She is deeply concerned about engendering respect for the courts and our profession. This is a topic we all need to be thinking about more.
Be honest and accurate
Several judges and other presenters talked about why lawyers must be meticulously accurate and honest. "The worst thing you can do is lie to us--misrepresent a case or fact," said Judge Briscoe. Other judges agreed: "We are going to check every one of your cites, so you are just going to hurt yourself."
We law profs tell our students why they need to be meticulously accurate and honest, but they don't always believe us. Exaggerating a case or fact is not worth tanking your appeal. Listen to the judges.
Be brief in your briefs
"Use words that cover more ground than they occupy," that gem from Judge Graves. Nearly every judge that I heard from said something about why advocates need to be concise. Nothing new here, but always a helpful reminder. "More is not always better," said Judge Robert Gladwin of the Arkansas Court of Appeals.
Judges talked about how taxing long briefs are and why attorneys are doing themselves a disservice by dropping tomes on their judges: "Don't spend 60 pages of briefing [on small issues]."
Consider using visuals
Judge Lucinda Jesson of the Minnesota Court of Appeals said that she "loves charts, diagrams, and tables." She said that her court even uses an occasional image in their own opinions. "Timelines are great!" said another judge.
Several judges agreed that visuals help them break down complex facts or issues. I heartily agree that visuals are powerful and underused in legal writing (especially from a cognitive science perspective). I hope that judges will continue to encourage lawyers to think about creative ways to present tough information in graphics that can do the job better.
Introductions can win the day
This was one of the main themes of my own talk: beginnings matter. I also talked about the topic at length recently here. It was good to hear several of the judges mention how important first impressions and beginnings matter--both in brief writing and in oral argument. For example, one judge said that when she takes the bench, the only part of the briefs she brings with her is the summary of the argument.
Relatedly, several speakers talked about how the attorney's choices about which arguments to present and highlight influence the judge's thinking about the case. Judge Graves mentioned that he pays attention to which arguments an attorney chooses to focus on in oral arguments: that tells him what the attorney thinks is most important.
Other judges complained about attorneys who include a dozen or more arguments in their briefs: don't "use shotgun appeals," said Judge Jesson. Focus the judge on your "best two or three issues."
Technology is Happening
Several of the judges said that they are using iPads and other technology to help them do their job. So I think the takeaway there is that lawyers need to think about how their briefs (and even their supporting evidence or record) will appeal on screens big and small.
Judge Michael Brown, from the Arizona Court of Appeals, opened my eyes to how tech-savvy some courts are getting. His court aims to have all attorney's briefs hyperlink their fact cites within the next two years. So instead of spending hours tracking down support in the record, judges and clerks can be instantly transported to the pincite in the record with a click of a button. All I can say here is: wow. These sort of tools have been a long time coming, and it's incredible to hear that courts are working on initiatives like this.
Judge Brown also talked about other technology that his court is working on, like better tools for colloborating during the drafting process.
Craft Your Factual Story Carefully
Many of the presenters mentioned how important the factual story is, and why attorneys should be careful in how they present that story. "Your statement of the facts should include everything relevant to the issues, presented in a clear and understandable way," said one judge.
Footnote with Care
Several presenters agreed: "footnotes are the exception." "Argument that you want us to read should not be buried in a footnote," said one judge. Hopefully this comes as familiar advice, but it's constantly ignored so always worth mentioning.
A couple of the judges talked about footnoted citations. I won't wade into that mire much here; smarter people than me have already done that. But I will say, in my view, folks who loathe footnoted citation might actually loathe badly-done footnoted citations. Done right, there are some compelling benefits.
Oral Arguments Matter (Kind of)
Many of the judges were asked about how important oral argument is today, and what lawyers can do to put on better presentations. All of the judges agreed that oral arguments remain important. Some judges said that oral argument only changes their mind in a few cases; some said that the arguments made a difference more often than that. But all the judges agreed that oral argument has the potential to flip the case occasionally, and more often, to change how the judges reason through or dispose of the appeal.
The best practices shared were mostly oldies but goodies:
- Be prepared. Everyone agreed on this one. "Know your cases, know your facts" is something I heard repeatedly.
- "Key your answers to the cases and facts."
- "Have a canned conclusion to offer when your time is up."
- "This should be a conversation. I want to be present with you in your argument."
- "Don't come in with new arguments; you had your chance."
In closing, a heartfelt thanks to everyone that put on this event, including among many others, Judge Herb Wright, Whitley Hobbs, and the Corbin family.
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.
Friday, March 29, 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 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:
- On Wednesday, the Court heard arguments in Kisor v. Wilkie, a case dealing with the "Auer deference" doctrine. Tony Mauro, @Tonymauro, reported the doctrine is named after the 1977 case Auer v. Robbins that directed courts "to defer to an agency's interpretation of its own ambiguous regulations." The Auer deference doctrine has been criticized as giving too much power to regulatory agencies.
Justice Gorsuch vocally challenged U.S. Solicitor Noel Fransisco's position of a middle ground on the doctrine, while Justice Bryer seemed to defend the doctrine. Chief Justice Roberts may be the swing vote.
- On Tuesday, the Court decided the case of Sturgeon v. Frost. The case dealt with whether the Nation River in Alaska was considered "public land." The Court found that it is not. The Park Service thus did not have the authority to regulate Mr. Sturgeon's activities on the river. Justice Kagan concluded the opinion with this quip: "That means Sturgeon can rev up his hovercraft in search of moose." And in reading her summary of the opinion she stated, "Accordingly, we reverse the decision below and wish Sturgeon good hunting.” Evidently, as Tony Mauro puts it, Kagan "knows a thing or two about hunting." Last year she said this about hunting with the late Justice Scalia: "I actually quite liked it, which I think some of my East Coast friends are horrified about."
Federal Court of Appeals News:
- U.S. Court of Appeals for the 2nd Circuit heard arguments about the case of President Trump's tweets. Is the president acting in his official capacity when he communicates with the public, and, if so, does shutting off critics from the platform violate the First Amendment? The Washington Post writes about it here.
- U.S. Court of Appeals for the 9th Circuit remanded a case that revives a lawsuit against student loan collectors. The case was brought by student borrowers who alleged robocalls were made illegally. The case was sent back down to the lower court because the court of appeals found that a reasonable jury could find "vicarious liability" on the part of the collectors. Reuters has this report.
State Supreme Court News:
The Hill reports "the Oklahoma Supreme Court on Monday denied a request by drugmakers to delay the start of an upcoming trial against them in the state for allegedly helping to fuel the opioid epidemic.” The state's case, which targets Purdue Pharma, Allergan, Cephalon and Janssen Pharmaceuticals, “is expected to be the first state lawsuit against opioid manufacturers to go to trial.”
Other Appellate News or Insights:
Bayer AG plans to appeal the $80 million verdict it recently experienced for its weed killer Roundup. The company "doesn't view the ruling as a harbinger for others because each trial has different factual and legal circumstances." Read about the likely appeal here.
Wednesday, March 27, 2019
The United States Supreme Court has long held that criminal defendant has the right to the effective assistance of counsel through his first appeal where an appeal is provided to those who can pay for it. See Griffin v. Illinois, 351 U.S. 12 (1956), Douglas v. California, 372 U.S. 252 (1963). This assistance is not without limits. In Anders v. California, 386 U.S. 738 (1967), the Court held that counsel may not abandon a nonfrivolous appeal, but also allowed an attorney to withdraw from an appeal once the appellate court has verified that there are no nonfrivolous grounds to pursue. In Jones v. Barnes, 463 U.S. 745 (1983), the Court recognized that it is the defendant’s authority to determine whether to pursue an appeal, while it is counsel’s responsibility to make strategic choices concerning which issues to raise on appeal.
Late last month, the United States Supreme Court emphasized that a criminal defendant retains the right to an appeal, and that appointed counsel is obligated to note an appeal upon his client’s request, even if his client has waived his right to an appeal in a guilty plea. The Court has previously held that counsel’s performance is deficient when counsel “disregards specific instruction from the defendant to file a notice of appeal.” Roe v. Flores-Ortega, 528 U.S. 470 (2000) (citing Rodriquez v. United States, 395 U.S. 327 (1969); cf. Puguero v. United States, 526 U.S. 23 (1999)). The Court in Roe held that no showing of prejudice would be required when a criminal defendant can provide that he would have taken an appeal, but for counsel’s deficient performance in failing to consult with defendant regarding an appeal where “a rational defendant would want to appeal …, or … demonstrate to counsel that he was interested in appealing.”
In the almost 20 years since that decision, however, many criminal defendants, who have pleaded guilty and, as part of their bargain, have waived their right to an appeal, have not enjoyed their right to have counsel note an appeal on their behalf. In part, I believe it is because many believed that the appeal waiver resulted in there being no nonfrivolous grounds for an appeal, and because counsel believed that no rational defendant would want to appeal and potentially lose the benefit of the plea bargain. Regardless of the rationale, last month the Court once again reminded the bar that the filing of a notice of appeal is a purely ministerial task, and that failing to do so upon defendant’s request is presumptively prejudicial. Garza v. Idaho, 586 U.S. ___ (2019) (slip op., at 14).
I understand the position taken by the government, which may not have agreed to a plea deal absent the defendant’s waiver, but I fundamentally agree with the heart of the Court’s rationale. After all, the criminal defendant is wholly dependent upon counsel when it comes to noting an appeal, although it is the defendant’s decision whether to seek that appeal. Whether counsel agrees with the defendant’s decision is of no import, at least regarding this simple task without which all hope is lost.
As the Court noted in Garza, we cannot expect a defendant to prove he would have had successful claims on appeal where the Court has recognized that the task of determining what claims to press on appeal is typically left to counsel. Id. (slip op., at 12); see also Jones, 463 U.S. 745.
If you represent criminal defendants, make sure you take the time to talk with your clients about their right to an appeal. And, whether or not they have pleaded guilty, if they ask, file a notice of appeal.
Tuesday, March 26, 2019
Social media is an interesting experiment. Because of my diverse legal background, I am friends with people who identify with viewpoints from every shade of the political and social spectrum, and I usually enjoy hearing these different perspectives on issues and try to learn from them. But as time passes, I see fewer shades and more rigid, black-and-white positions. There is less thoughtful sharing and more knee-jerk accusation.
This way of thinking in terms of "us" versus "them" is by no means new, but it does seem to be increasingly fortified in our public and private discussions from everything to politics to how we view history. Just try to take a thoughtful, nuanced position on anything from immigration to Civil War monuments (or anything relating to Donald Trump), and you'll quickly see my point.
Perhaps no other profession is as deeply grounded in this adversarial perspective as the law. The idea is reinforced in every filing and letter through the use of a simple "v." Indeed, our modern system has roots in an older system that permitted litigants to hire champions who would bludgeon each other to death or submission to prove their case. Russel, M.J., Trial by Battle Procedure in Writs of Right and Criminal Appeals, 51 Law and History Review 123–134 (1983).
When I serve as counsel, I do so aggressively and make every proper effort to prevail over the party who is "versus" my client. But we have become more civilized over the years in how that process works. Today, lawyers who demonize the other party, or who buy into the "hired gun" mentality and choose to vilify their counsel, are serving neither their clients, themselves, the legal system, or their society.
I serve as, and alongside, trial counsel in small and in multi-million dollar cases as both defense and plaintiff's trial counsel and as appellate counsel. In doing so, I often see the harm that arises from the refusal to see the other side's perspective. We must be zealous advocates as attorneys, but to be effective means we must have a willingness to see the "us" in the other side.
Last week I wrote about the costs of contentious litigation in terms of economic loss and gain, and its impact on credibility. But demonizing our opponents also puts on blinders. What if the claimants aren't just money hungry but are actually injured or their business has been genuinely impacted? What if the defendants really did not intend any of the harm they caused, but did their best to avoid it? What if someone or something else was to blame? What if the failure to disclose or produce important documents by opposing counsel really was a mistake?
Turning opposing counsel or parties into villains means we might not ask these questions, because we assume the answer. If we don't assume the worst, if we are willing to put ourselves in the other side's shoes, if we can see "them" as "us," then we can see more adequately the dangers in our own case and the merits in the other side's position. As a result, we can more appropriately plead and argue our cases, we can more accurately evaluate and forecast outcomes, and we can more readily reach long-term solutions for our clients rather than simply trying to "win" each individual point of contention.
I would also note that, as attorneys, it is particularly important for us to remember that our personal opinions about opposing counsel or their client must be kept to ourselves. We often forget about it, but Rule 3.4(e) of the Model Rules of Professional Conduct states that a lawyer shall not:
in trial, allude to any matter that the lawyer does not reasonably believe is relevant or that will not be supported by admissible evidence, assert personal knowledge of facts in issue except when testifying as a witness, or state a personal opinion as to the justness of a cause, the credibility of a witness, the culpability of a civil litigant or the guilt or innocence of an accused[.]
Aside from raising disciplinary issues, violating this rule can harm our clients. In one Florida car wreck case, trial counsel argued that that the defense did not want the jury to be fair and reasonable, but had instead brought a "bogus counterclaim to make it look like they have something to argue about," and that, in contrast to the defense witnesses, his client was not going to lie. Airport Rent-A-Center Car, Inc. v. Lewis, 701 So. 2nd 893, 896 (Fla. Dist. Ct. App. 1987). On appeal, the court concluded that the defendant was denied a fair trial and reversed the award.
Of course, that means that this tactic worked at trial. Sometimes, you can bludgeon your opponent into submission by demonizing them. At least temporarily. But the costs continue to accumulate personally, professionally, and systemically. And that system is increasingly aware of the problem and fighting back. If you have this tendency, you should fight it back as well.
(Image source: "Single Combat to be decided by the judgement of God." From a miniature in the "Conqêtes de Charlemagne," a Manuscript of the Fifteenth Century, in the National Library of Paris. Internet Archive Book Images/Wikimedia Commons/No Restrictions)
Monday, March 25, 2019
The following is a guest post by Prof. Teri McMurtry-Chubb, Professor of Law at Mercer University School of Law.
On Friday, February 17, 1978 the Chelsea Chapter of the N.Y. Committee to Overturn the Bakke Decision (NYCOBD) met to strategize how best to influence the Supreme Court decision in Regents of the University of California v. Bakke. The purpose of the meeting was to strategize under the banner of the National Committee to Overturn the Bakke Decision (NCOBD) as it planned a unified “March on Washington” in protest. In keeping with the call to arms espoused by its sister chapters throughout the United States, Chelsea NYCOBD boldly stated in its meeting flier:
Fight Racist Attacks on Affirmative Action Programs!
In the spring, the U.S. Supreme Court will render a decision on the Bakke case – one of the most important cases in the last 25 years on the question of racial equality. The Bakke decision, which is based on the absurd and racist idea of “reverse discrimination,” is a serious attack on the rights of minorities to jobs and education. If the Bakke decision is not overturned by the court, affirmative action programs for minorities and women will be threatened with elimination. Join the growing anti-Bakke movement in our demands to: implement, maintain, and expand special admissions and other essential affirmative action programs for minorities and women at all levels of higher education and employment. Fight Racism. Overturn the Bakke Decision!
Although the NCOBD was not successful in overturning the decision, its act of grassroots organizing and educating the public is a primer on the importance of education to informed direct action. 41 years later, our contested, national conversation about affirmative action has continued with the Harvard Affirmative Action Case and the College Cheating Scandal. The scandal has caused us to (again) pause and ponder what is an elite education, who “earns” admission to America’s most prestigious educational institutions, and who deserves access to the America Dream. However, what about the lawyers who litigate these cases? Have you ever considered the views they hold about affirmative action in admissions and how their beliefs shape their discussions about the litigants and the arguments in their briefs that will ultimately become part of the jurisprudential landscape of affirmative action law?
This question, the question of how bias shapes lawyer analytical and reasoning processes, is the subject of a 6-year empirical research study I conducted involving student motion and appellate briefs generated from case files involving social justice issues. The study examines 576 brief submissions from 192 students on topics ranging from hostile work environment claims based on colorism, religion, and national origin to LGBTQIA students’ right to freedom of expressive association in creating the policies for their student organizations. I wanted to know if law student biases concerning race, gender, class, and sexuality colored their analytical and reasoning processes as they drafted the argument sections of their briefs, and if so to what extent. The focus of one of the case files (the universe in which students litigate) was an African American man ranked in the 75th percentile of all law school applicants who was denied admission to law school, even when White legacy students were admitted despite being consistently ranked in the lower 25th percentile of all applicants. The claimant sued the University on grounds that the law school’s legacy admissions policy was an unconstitutional affirmative action program - he argued that a White student “took his seat” in the 1L class. The Bakke case and its progeny were the controlling authority.
Student attitudes about colorblindness led approximately 85% of them to make legal arguments flawed by bias in the first drafts of their briefs. For example, students representing the claimant analyzed his racial classification, “African American,” when the race of the legacy admits, “White,” was the racial classification at issue in the lawsuit. Student arguments advanced the notion of color-blindness or the phenomenon of “not seeing color.” Moreover, students representing the University argued for diversity as a compelling state interest even though the legacy admissions policy favored White applicants over applicants of color - a losing proposition for the University. Simply, they could only see race or ethnicity as anything other than White. These arguments based on biased assumptions led students to make arguments that were incorrect and inconsistent with the major tenets of the Bakke decision, and ultimately contrary to their client’s interests.
The good news is that with critical pedagogical interventions, teaching methods aimed at problematizing students’ biased assumptions, students course corrected their attitudes from color-blind to color-conscious. Approximately 82% of all student final appellate brief submissions, the final assignment submitted by students in the study, evidenced a critical engagement with issues of race and class in higher education admissions policies. Students made arguments that recognized “White” as a racial category of analysis in affirmative action jurisprudence, “legacy” as a function of class hierarchy, and the connection between the two. Most importantly, students continued to engage with each other and their peers around these issues after their time in the study ended.
Law firms, public interest and government agencies should note that unless their attorneys have been taught to recognize and disrupt their biases with respect to race, class, gender, and sexuality, it is probable that they will replicate these biases as they interpret the law and develop the analytical frameworks in their briefs. A heart for justice does not necessarily mean that lawyers will do justice. Rather, it is imperative that legal educators and the bar actively implement interventions to make attorneys aware of how their arguments replicate structural and societal inequities. We can do no less if our expectation is that attorneys serve their clients with excellence and an eye toward equity. You can read a detailed analysis of the study in my article The Practical Implications of Unexamined Assumptions: Disrupting Flawed Legal Arguments to Advance the Cause of Justice, 58 Washburn Law Journal ____ (forthcoming 2019).
Saturday, March 23, 2019
You never get a second chance to make a first impression.
They say that the journey matters more than the destination--but I say it's neither. It's the beginning that matters most.
The beginning is everything. The beginning of your briefs will color everything else that comes after. Same goes for the beginning of your sections, your paragraphs--and even your sentences.
Readers can't help but be swayed by the beginnings. It's science--indeed, one of the most studied phenomena. The moment that your reader picks up your document they start making judgments about you. Some are explicit and some are implicit. And these initial ideas--these judgments about things like your credibility and competency--are nearly impossible to shake. The psychology literature is full of studies showing that even when faced with proof that we were wrong, we humans have a real problem changing our first impressions.
Some of the reason is that once we make initial judgments, we are constantly looking for evidence that we're right about them--also known as confirmation bias. So if your reader spots a poorly written sentence at the outset, their mind can't help but look for more bad writing as they go. Also important is that those first sentences will spark emotions in your readers (either favorable or not). And fascinating studies suggest that sundry other biases (like our hatred of uncertainty, our reliance on imperfect information, and the effects of priming) all conspire to make first impressions count more than they should. Indeed, in multiple studies, readers have distorted facts so that they would conform to their prior impressions.
Mountains of research leave no doubt: We can exponentially increase the persuasiveness of our writing by making the right first impressions on our readers. So how do we do it?
Books could be written about crafting the right lead-ins for your briefs, sections, paragraphs, and sentences. I'm in the middle of some research on this topic right now, and I've read at least 100 studies on everything from affective theory to the uncertainty theorem to choice theory--all of which have something to say about why beginnings are so important.
For now, I thought I'd share some examples of lawyers and judges who are masters of getting off on the right foot. As you read through, I think you'll agree that several best practices stand out:
1. Write with incredible pith at the outset. Top legal writers put their best material in the start.
2. On the flipside: bad writing is nowhere to be seen in the beginnings. That goes for typos, odd constructions, or simply poor word choice or dense sentences. So no long acronyms, strings of cites or party names, or anything else that will bog things down. Leave that stuff for after you've made your impression.
3. Counteract any biases or assumptions your reader has going into things. This helps put them in a better frame of mind when you get to the meat of your arguments.
4. Figure out how you can incorporate key themes, facts, rule statements--or whatever else is most helpful to getting your reader to agree with your ultimate pitch. Often the best way to do this is to pluck memorable phrases or words from the body.
5. Consider how you can put your reader in the right emotional state. If you want them outraged when they get to the details, prod them. If you want them thoughtful, subtly lead them there.
6. Direct dialogue can be a helpful tool to connect with your reader on a deeper level, too. As can all the other rhetorical and style tools that get your readers to listen carefully to the important stuff.
Let's start with a Judge on the 11th Circuit. Below is the first paragraph of her opinion. Note how she takes your assumptions about what a "felony battery" is and blasts them out of the gate. Note also the fantastic style: a well-placed colon, followed by two short conjunctions--and a well-balanced trio of sentences with a medium, short, and longer one to finish. Finally, the judge incorporates her theme: this is a term of art that should be defined by legal analysis and precedent, not gut reactions to what seems "violent."
No question about it: a crime called “felony battery” sure sounds like a violent crime. But sometimes intuition can be wrong. So we evaluate whether a crime qualifies as a crime of violence under the federal definition of that term of art by conducting legal analysis and applying Supreme Court precedent.
Here's an opening sentence from Judge Wood on the Seventh Circuit in the Brendan Dassey case. This is easily the best sentence of her dissent. The theme is blaring: this confession was a script provided by police. And the style is excellent. It's also a great example of a long sentence done right. The phrases in between the punctuation are all well balanced and clear, with little room to get lost:
Psychological coercion, questions to which the police furnished the answers, and ghoulish games of "20 Questions," in which Brendan Dassey guessed over and over again before he landed on the "correct" story (i.e., the one the police wanted), led to the "confession" that furnished the only serious evidence supporting his murder conviction in the Wisconsin courts.
Moving to the paragraph level in that same case, Judge Wood continues paying close attention to her first sentences. She persuasively frames what comes after by juxtaposing what the court of appeals should have done with what they did do:
If the Wisconsin Court of Appeals had done what it should have, it could not reasonably have concluded that Dassey's confession was either voluntary or reliable (both of which are required for the use of a confession to be consistent with due process).
And another great first sentence, this time a not-so-subtle effort to color how readers will review a set of facts:
Just as importantly, a closer examination of the supposedly reliable facts on which the majority relies shows that they are no such thing.
And finally, Judge Wood leads into a final section with a sentence that leverages the persuasive power of the judges that agreed with her position, as well as a reference to the particular rule of law that supports her view:
As the district court and the panel majority recognized, we have before us just such an extreme malfunction.
Here's an opening salvo in another federal appellate dissent. Again, so much of the persuasive theme is packed into two sentences. Even the key language that forms the crux of the disagreement. The reader could stop there and get the point. Another great move, not necessarily about first sentences--the author gives the majority's argument a name, the "capacity test." Naming things is a powerful tool--either to frame an opposing argument persuasively or to give your a reader a memorable slogan for your own pitch:
The Majority derives its capacity test from a single sentence in Curtis Johnson: “[T]he phrase ‘physical force’ means violent force—that is, force capable of causing physical pain or injury to another person.” To the Majority, the word “capable” in that sentence is dispositive, establishing a capacity-based definition of “physical force.”
Here's another great opening sentence, this time for a section, which offers specific, tactile examples of a concept:
Touching, tapping, pinching, and other actions involving limited, non-violent contact do not constitute “physical force.” But kicking, striking, punching, and other actions that are associated with violence do constitute “physical force.”
Take this opening line from Judge Davis in a concurrence. Lots of pith and poignant examples to drive his persuasive pitch home:
Our country has a long and ignominious history of discriminating against our most vulnerable and powerless. We have an equally long history, however, of brave individuals-Dred Scott, Fred Korematsu, Linda Brown, Mildred and Richard Loving, Edie Windsor, and Jim Obergefell, to name just a few-who refused to accept quietly the injustices that were perpetuated against them.
This is another great opener from a dissent. Leading with the key persuasive fact--the absurdity of the numbers--puts readers in the right emotional state--skeptical.
In this case the defendant Van Buren County took property worth $206,000 to satisfy a $16,750 debt, and then refused to refund any of the difference. In some legal precincts that sort of behavior is called theft.
Judge Ed Carnes us a great purveyor of first sentences. Here's a stylistic intro that uses a rhetorical flourish: "verbal sleight of hand":
First, we think it unlikely that the Supreme Court would engage in the verbal sleight of hand that Vail-Bailon attributes to it.
Later in that same opinion, Judge Carnes sums up with a pair of emdashes the critical distinguishing facts in the critical authority:
The Court’s concern in Leocal—that the DUI crime at issue did not require the intentional use of any force at all, and that a defendant might be convicted of it after engaging in accidental or at most negligent conduct—is not a concern here.
Perhaps no one is a better first-sentencer than Justive Kagan. Look how simply the Justice sets up--what she thinks--is the key question. This move, anchoring the analysis at the start by controlling the governing question, heavily controls how readers will see the analysis after. Justice Kagan also explains the concept twice in different words, ensuring that her key point is driven home:
In this case, we consider a federal court’s inherent authority to sanction a litigant for bad-faith conduct by ordering it to pay the other side’s legal fees. We hold that such an order is limited to the fees the innocent party incurred solely because of the misconduct—or put another way, to the fees that party would not have incurred but for the bad faith. A district court has broad discretion to calculate fee awards under that standard. But because the court here granted legal fees beyond those resulting from the litigation misconduct, its award cannot stand.
Justice Kagan keeps hitting at the beginnings. Here's an initial paragraph that sets the stage for a section by clearing away the chaff. You'll also see especially excellent style (hallmark-Kagan dialogue with the reader, parallelism in her questions, and great sentence-length balance):
It is an oddity of this case that both sides agree with just about everything said in the last six paragraphs about the pertinent law. Do legal fees awarded under a court’s inherent sanctioning authority have to be compensatory rather than punitive when civil litigation procedures are used? The Haegers and Goodyear alike say yes. Does that mean the fees awarded must be causally related to the sanctioned party’s misconduct? A joint yes on that too. More specifically, does the appropriate causal test limit the fees, a la Fox, to those that would not have been incurred but for the bad faith? No argument there either. And in an exceptional case, such as Chambers, could that test produce an award extending as far as all of the wronged party’s legal fees? Once again, agreement (if with differing degrees of enthusiasm). All the parties really argue about here is what that law means for this case.
Justice Kagan also knows how important it is to not bog down her first sentences with a lot of needless details. Like here, where she foregoes listing out all the defendants (but still includes the plaintiffs--all sympathetic family members who she keeps in for good reason):
Respondents Leroy, Donna, Barry, and Suzanne Haeger sued the Goodyear Tire & Rubber Company (among other defendants) after the family’s motorhome swerved off the road and flipped over.
First Circuit Judge Barron shows off his first-impression chops in the famous comma-case. Style and all the key details to put the reader in the right frame of mind:
For want of a comma, we have this case. It arises from a dispute between a Maine dairy company and its delivery drivers, and it concerns the scope of an exemption from Maine's overtime law. Specifically, if that exemption used a serial comma to mark off the last of the activities that it lists, then the exemption would clearly encompass an activity that the drivers perform. And, in that event, the drivers would plainly fall within the exemption and thus outside the overtime law's protection. But, as it happens, there is no serial comma to be found in the exemption's list of activities, thus leading to this dispute over whether the drivers fall within the exemption from the overtime law or not.
In one of my favorite judicial opinions of late, Judge Thompson crafts an excellent first impression here by using some rhetorical moves and fresh transitions to deliver his key theme:
This is the third and final installment in a trilogy of published decisions in the direct appeal from a judgment of conviction entered against the defendant, Mark J. Zimny. In the opener, we remanded for the district court to conduct an investigation into a colorable allegation of juror misconduct. In the sequel, we addressed Zimny's request for bail pending appeal. Now, in the finale, we tackle Zimny's new claim that the district court erred in conducting its juror-misconduct investigation, as well as the two remaining issues upon which we reserved judgment in Zimny I.
Later, Judge Thompson uses a quote from the losing party to trounce their position:
But, contrary to Zimny's insistence, the purpose of the remand was not “to investigate the potential that the jurors' memories may have faded in the interim since trial.” Rather, the purpose of the remand was to determine whether the juror misconduct alleged in the additional-juror comment actually occurred.
And who could forget Judge Willett? This is one of my favorite first impressions of all time. After reading these opening paragraphs, it's hard not to be persuaded by whatever comes after. The style is impeccable (check out his choice verbs, for one thing). The framing is fantastic ("the text is king"). Multiple rhetorical flourishes convince his readers that he's worth listening (among other things, two sets of echo phrases). And he never takes it too far:
The lion’s share of modern appellate judging is reading legislative language and decoding what it means. On that score, our interpretive precedent favors bright lines and sharp corners. If a case can be decided according to the statute itself, it must be decided according to the statute itself. This is a bedrock principle.
Today’s case asks whether a notice provision in the Texas Premium Finance Act should be read as written, or instead whether the Court should adopt a “substantial compliance” approach that excuses slip-ups. We opt for the former. The Legislature has codified “substantial compliance” throughout Texas law—including in other Insurance Code notice provisions—forgiving less-than strict conformity with various statutory commands. But it did not do so here. We decline to engraft what lawmakers declined to enact.
And to round things out, Circuit Judge Wilson. He makes his first impression here by leading off with some direct dialogue and a hypothetical that gets his readers thinking:
If, while walking down the street, you tap a jogger on the shoulder and the tap startles him, causing him to trip, hit his head, and suffer a concussion, have you committed a violent act? Most would say no. But if you punch the jogger and the punch causes him to fall, hit his head, and suffer a concussion, you have undoubtedly committed a violent act. The difference between a non-violent and violent act, then, is the degree of force used. Both a tap and a punch are capable of causing great bodily harm, but a tap involves a limited degree of force while a npunch involves a substantial degree of force. Or, in the words of the Sentencing Guidelines, a punch involves “physical force.”
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.
Friday, March 22, 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 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:
The Court heard arguments this week in Flowers v. Mississippi, in which inmate Curtis Flowers argues that jury selection in his case violated the Constitution. Flowers has been tried on six occasions for the 1996 murders of four people in a Mississippi furniture store. The first two trials resulted in convictions and death sentences, but were reversed by the state supreme court on the basis of findings of intentional misconduct by the lead prosecutor. The same prosecutor was also the lead on the subsequent four trials. After the third conviction and death sentence, the state supreme court again reversed, specifically finding that the prosecutor had violated Batson v. Kentucky when striking African-American members from the jury pool. The fourth and fifth trials resulted in deadlocked juries. In the sixth trial, the prosecutor allowed a single African-American potential juror to be seated, but used peremptory strikes to strike all other African-American potential jurors. That trial again resulted in a conviction and death sentence.
During argument, Justice Alito seemed skeptical that there was enough evidence to conclude that the sixth trial alone demonstrated a violation of Batson. Justice Kavanaugh, however, noted that the history of the prior five trials could not be ignored and noted that throughout the six trials the prosecutor had stricken 41 of 42 African-American potential jurors from the jury pool. The argument was notable in part because Justice Thomas, who had not spoken during oral arguments since 2016, asked a question. On the whole, the tenor of argument suggested that Flowers likely had support from a majority of the Court to find a Constitutional violation.
"Although Roberts began his career on the Court significantly favoring to vote conservatively, this trend diminished over time to the point where in two terms, 2013 and 2014, Roberts actually voted in the liberal direction more frequently than he did in the conservative direction. Since the 2014 term, Roberts’ has voted primarily in the conservative direction, but at a much less aggressive rate than he did earlier in his career. This begins to paint the picture of, at least a less staunch ideologue."
State Court News:
In Wisconsin this week, a circuit court ruled that actions taken by the state's Republican legislature in late 2018 after Republican Governor Scott Walker was replaced with Democrat Tony Evers were unlawful and void. After the election, the legislature scrambled to strip the incoming governor of power, calling a special session and revoking his ability to make a number of executive branch appointments, restricted incoming Democratic Attorney General authority, and slashed early voting across the state. In the decision this week, the circuit court ruled that the session was convened in violation of the state constitution, rendering all of the actions null and void, vacating more than 80 last-minute appointments by outgoing Governor Walker. An appeal is likely.
Thursday, March 21, 2019
Each fall, upon entry of the newbie 1Ls to law school classes, it always seems to me like they are getting younger and younger. Most years, the perception is just because I am getting older and older! But this fall, at Southern Methodist University's Dedman School of Law, the youth of at least one new 1L will be very, very young.
Haley Taylor Schlitz is only 16 now, but after her birthday, she will be entering SMU's class of 2022. Obviously a bright young lady, Schlitz was homeschooled, graduated high school at 13, and finishes her undergraduate studies this spring. Schlitz was actually accepted at nine law schools, so this girl is the real deal. She is thinking of entering
I wish this promising young mind well. She clearly has the aptitude for the academic rigor she will encounter, and her young age will add a dimension to the classroom very rarely found.
I expect that many law professors have had the experience of teaching variously aged and experienced students. I often find I am a bit biased toward the older students who have made a change in the direction of their life (I was one of them myself). They bring a lot of diversity of thought to the classroom. In the classes I teach in admiralty and law of armed conflict I especially enjoy when students can add color to what life on a vessel is like, or how being deployed really feels. I often think in my ideal world, every law student would have significant life experience before coming to law school. But is it necessary to become a great lawyer? No, not at all, because I hope we are always learning no matter where we are in life.
Best of luck to Ms. Schlitz and I hope to hear great things from her one day soon. But no pressure!
Wednesday, March 20, 2019
I've blogged here about laughter at the Supreme Court. And I've blogged about the fascinating empirical work of Tonja Jacobi and Matthew Sag. So I'm thrilled that Professors Jacobi and Sag have trained their analytical lens on laughter in oral arguments at the United States Supreme Court.
Their new piece is Taking Laughter Seriously at the Supreme Court, forthcoming in the Vanderbilt Law Review; they summarize it in two recent posts (here and here) on their must-read blog, SCOTUS OA. This is not the first scholarly effort to track laughter at the Supreme Court: Jay Wexler, for funsies, has been cataloging SCOTUS laughter since 2005, and rhetoric researcher Ryan Malphurs has dug into the communicative function of humor at oral argument (pdf). But Professors Jacobi and Sag take the scholarship of laughter at SCOTUS—and, more generally, the scholarship of oral argument—to entirely new, deeply serious places. They leverage a remarkable dataset: a database of every SCOTUS oral argument transcript from the 1955 through 2017 terms. In the 1.7 million speech events by justices and advocates in 6,864 cases, 9,378 triggered a [laughter] notation in the transcript; about two-thirds of the laughter events were prompted by something a justice said. Jacobi and Sag supplement their text-mining quantitative analysis with old-school qualitative analysis: they read and cataloged all 1,061 episodes of justice-induced laughter from 2010 to 2017.
Their conclusion: laughter at SCOTUS isn't much about fun and frivolity; it's mostly about the modern blood sport of judicial advocacy.
The piece builds on and reinforces Jacobi and Sag's prior work about shifts in the dynamics of SCOTUS oral argument. In an era of sharpening division and partisanship, justices have increasingly used oral argument to advocate rather than inquire. And the justices' use of humor at oral argument is of a piece. Just as justices' use of oral argument time to comment and advocate has increased dramatically in the modern era, so too has the [laughter]. In the 1950s and 60s, laughs were few and far between, and they were prompted nearly as often by advocates as by the justices. This mostly continued into the 1980s. But then, in the late 1980s and again in the mid-1990s, the pace of justice-triggered laughter escalated sharply. And it has stayed high.
There's more: at the same time, the patterns of justice-provoked laughter shifted significantly. Justices tend to draw more laughter during arguments with which they ultimately disagree. Put bluntly, they make jokes at the expense of advocates they oppose. This has mostly been true for most justices since 1955. But the "laughter gap" increased significantly in the mid-1980s and again in the mid-1990s. This too is consistent with the broader trends Jacobi and Sag have identified regarding the rise of judicial advocacy in SCOTUS oral argument. The justices also increasingly use humor as a signal of an advocate's weakness: they direct humor at advocates who are losing. This pattern too deepened in the mid-1980s and again in the mid-1990s. And the justices' use of humor reinforces hierarchy on another dimension: it is directly most often at novice advocates, particularly ones on the losing side. And when one looks at the quips that inspire laughter, the data make sense: a massive share of SCOTUS jokes involve putting advocates in their place. One example, from United States v. Kebodeaux:
So humor in the contemporary Supreme Court is a sharp and serious tool. And Profs Jacobi and Sag have done sharp and serious work.
Tuesday, March 19, 2019
As an appellate attorney, I often find myself serving as both attorney and counselor to trial lawyers. As an appellate attorney at trial, I am trying to make sure error is preserved and that we are right on the law and its presentation to the court. As a counselor, I often find myself trying to calm down the rhetoric and rancor.
While the days of "Rambo litigation" have died down a bit, there is still a strong current of thinking in the law that if you aren't being angry and contentious, you just aren't passionate enough about your case. I have always disagreed. I believe that passion is important, but that you can be passionate without being contentious, and that courtesy, instead, is actually more persuasive. Over time, that belief has proven out, as I hear from judges and justices and juries about how they perceive the bluster in a negative light.
A few months ago, Professor Peter Huang published an article explaining a bit more about (among other things) the economic costs of lawyer hostility and unhappiness. It is an interesting read. Here is the link to the article: https://content.sciendo.com/view/journals/bjals/7/2/article-p425.xml
While the first part of the article largely recounts Huang's (extraordinary) journey through higher education, what caught my attention was his discussion of lawyers, mindfulness, and happiness. Huang was a professor of mathematics and economics before he went to law school and became a law professor, and his insights into the profession are unique.
For instance, Huang notes studies showing that students tend to enter law school focused on intrinsic values, like the desire to do good, help the vulnerable, and improve society in general. By graduation, they have been altered, and tend to focus on extrinsic values relating to class rank, grades, honors, and salary offers. This journey leaves them scarred: one survey of law students showed that one-quarter to one-third of respondents reported frequent binge drinking or misuse of drugs, and/or mental health challenges, while another Yale survey showed that 70% of the law students surveyed suffered from some type of mental health issue.
Worse yet, when they graduate, they often see that their hostility is financially rewarded, and this behavior is reinforced. Some clients seek out "Rambo" lawyers who will be argumentative and antagonistic, thinking such attorneys are the most effective. And the rules of civil and criminal procedure often appear to incentivize and reward that mindset. Thus, Huang reasons, "An economically-minded observer might simply characterize the unhealthiness of law practice and law school as just additional costs of being a lawyer and law student, albeit emotional health, mental health and physical health costs that are hard to perhaps measure, observe, quantify, and verify."
Those costs, while difficult to measure, are simply too high. Lawyers are the most frequently depressed occupational group in the United States. To cope with that depression and anxiety, many lawyers self-medicate with alcohol or drugs. Attorney overdose and suicide rates are very high. This has not only a personal cost, but a professional one as well.
Huang leaves out another category of costs: the perception of our judges and juries. One need practice only a short time to discover that judges negatively view hostility in those who appear before them. Credibility before the court is hard to quantify, but communication theory since at least Aristotle suggests that its loss has a high (and lasting) cost in lawyer effectiveness before our increasingly frustrated courts.
But even without those costs in his calculations, Huang notes that a recent meta-synthesis of several empirical studies revealed that both clients and attorneys tend to value "soft skills" that relate to empathy and integrity more than they do "hard" expertise. Attorneys value the ability to assess deals and propose solutions, the ability to assess and mitigate risks, honoring commitments, delegation to and management of support staff, integrity and trustworthiness, keeping information confidential, punctuality, and treating others with courtesy and respect. Clients, similarly, value lawyers who accurately estimate and clearly explain attorney fees, communicate with clients, are empathetic, listen well, are responsive to clients, are respectful, have strategic problem solving skills, are trustworthy, and who understand client needs. In other words, other lawyers and clients do not value naked aggression as much as they value other skills that are incompatible with that approach.
What, then, can we draw from this? Huang and the resources he cites (as well as personal experience) indicate that the costs of hostile "Rambo" litigation are simply too high to justify any value that might be perceived to lie in such conduct. This attitude and practice does not lead to personal happiness, but rather leads to high personal costs as well as a loss of credibility with the legal community and courts. And all in the name of trying to enhance one "skill" of questionable worth, while eliminating many other soft skills that clients find truly valuable.
You can be a zealous advocate without being a jerk about it. I have always believed it's the right way to practice, and my anecdotal experience is that it is more effective. It's good to know it makes sense empirically, too.
(Image credit: Scene from a December 1883 incident in a Prescott, Arizona courtroom during the trial of Kelsey v. McAteer, source unknown (likely the local Prescott newspaper), wherein the attorneys' fight over the admissibility of an affidavit escalated into a battle with a knife and gun in the courtroom. For more information: https://www.historynet.com/disorder-in-the-court-the-lamentable-occurence.htm).
Monday, March 18, 2019
Tessa’s moot court posts over the last few weeks have been timely for me, as I am leaving tomorrow with a team from the University of Houston to coach them in the Hispanic National Bar Association in Albuquerque. I’m a fan of moot court. Not only is it correlated with bar exam success, but it rewards students for becoming an expert on a topic. The presentation skills honed translate to areas beyond appellate advocacy, and students have to be able to argue both sides of an issue, creating intellectual flexibility. Some of our readers may be in a position to give back to their law school by coaching a moot court team, so I wanted to spend some time on moot court coaching.
Before joining UH’s faculty, I directed Pepperdine’s Moot Court program and learned the value of excellent coaching. My predecessor, the amazing Nancy McGinnis, developed a team of top-notch alumni coaches who invested significant time helping students prepare for oral arguments. As I learned how to run a program and develop student advocates, I saw how some coaches have consistent success with their teams. Beyond awards and trophies, though those were plentiful, there were deep relationships built and significant growth in the students.
While I could spend an entire blog post giving recognition to amazing coaches and students, the two that I learned the most from are Pepperdine alums Wendy McGuire Coats and Jeff Belton. These two have generations of law students who hold them up as extraordinary coaches and professional mentors. They do most of the things I am suggesting below, and then some. After observing dozens of competitions, teams, and coaches, and coaching some of my own, here are the top moot court coaching tips I have gleaned:
- Establish accountability for students
The best coaches set expectations for the students early. Solid moot court programs have strong team expectations, but the coach reinforces these and makes sure that students understand the work that they will have to put in to be ready for the competition. An introductory meeting is a great start. Plan a schedule of practices leading up to the competition and what students should do on their own. Encourage the team to read all of the briefs if they are available. Have them identify the most compelling arguments. They should make lists of the hardest 15-20 questions for each issue on each side. Knowing that you, the coach, expect this output from them is key.
- Give them a realistic view of national competitions
This is particularly important for students who have never competed nationally before. The level of competition that they will see at a national competition is dramatically different than intraschool competitions they might have experienced. What type of questions are they likely to get? How should they deal with inevitable challenges? There will be few teams at a national competition that are not well-prepared. Not every excellent team will win, but an unprepared team will definitely not. I try to hit this point home, because typically law students involved with moot court are busy with other law school activities. They need to understand how important their preparation time is.
- Be a coach, trainer, cheerleader, and tour guide all at once at the competition
Finally, once the competition arrives, the coach fills many rolls at once. As coach, I take notes during the competition of questions asked, feedback from the judges, and any areas that may need tweaking between rounds. The rounds fly by for the advocates, so it’s helpful to have something to recap. I’m also ready to advocate for my team with the competition administration, if necessary. I also think of myself as sort of an athletic trainer, and I try to bring a bag full of potentially useful items – a sewing kit, snacks, highlighters, usb drive, and all of the competition documents. You never know what might come in handy. Many students find these competitions stressful, so I see my role as cheerleader, as well. I know how much hard work has gone into their argument, and I want them to see the value of their experience regardless of the results. Their job is just to stand up and do their best. Lastly, I don’t want the advocates to have to worry about anything other than their arguments, so I figure out all of the logistics, find cool places to eat, and try to make the times that they are not arguing fun. Moot court develops skills, but it also builds relationships, and that’s a big part of what I love about it.
Coaching moot court has to be one of the most fun and rewarding ways to be engaged with a law school. Like most things, if you put a lot in, you will get a lot out. If you are interested in more reading on this subject, I highly recommend The Moot Court Advisors Handbook by James Dmitri, Melissa Greipp, and Susie Salmon.
Friday, March 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 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:
Nina Totenberg offers this book review about First, Sandra Day O'Connor. The book purports to break new ground with O'Connor's papers, journals, and her husband's diary.
Happy birthday to Justice Ginsburg who turns 86 today. Tony Mauro of National Law Journal has this piece, and apparently Justice Ginsburg followers will show their following of the justice by planking in front of the Supreme Court today
Federal Appellate Court News and Opinions:
In a sixth-circuit, three-judge panel Judge Sutton authored an opinion about free speech. An officer in the case stopped a driver for speeding. After giving the driver a warning, the officer noticed the driver raised her middle finger as she drove off, so the officer again pulled the driver over within a hundred yards of the first stop and gave her the speeding ticket. Judge Sutton reasoned "As alleged, the first stop had ended, a constitutionally significant event, before the officer initiated the second, unjustified stop. The Supreme Court has said that any justification for the first stop ceases when that stop ends." In effect, the judge concluded, there was no justification for the second stop. And, importantly, the court found "Any reasonable officer would know that a citizen who raises her middle finger engages in speech protected by the First Amendment."
State Appellate Court News and Opinions:
The Connecticut Supreme Court handed down an opinion (slip opinion here) authorizing the families of the Sandy Hook Elementary School shooting to proceed against the makers of the AR-15-style Bushmaster to try and hold them liable. The court's ruling was 4-3, agreeing with the lower court that the case cannot proceed based on a variety of theories, but that it could proceed despite federal protection on wrongful marketing claims. Read more about the opinion at the New York Times and the Washington Post.
North Dakota Supreme Court Justice McEvers plays the bagpipes in her chambers. Read about it here.
@ArizonaAppeals tweeted about Arizona Court of Appeals' recent ruling over the dispute of what to do with frozen embryos when parents disagree, holding that the balance of interest goes to the mother. The opinion is here.
Appellate Job Opportunities:
Texas is looking for an Assistant Solicitor General.
Wednesday, March 13, 2019
Writing a good statement of the case is a lot like walking a tightrope in the wind. There is such a fine balance involved in providing the court with an understanding of how a case arrived before it, explaining what happened, ethically disclosing all relevant information, and zealously advocating for your position. A statement of the case includes both the procedural history of the case itself, and the factual history forming the basis of the legal issues before the court. And, herein, lies the beginning of the balancing act. I certainly adhere to ideas that we lead with our most affirmative statements, that readers remember the first and last things they read, and that we can minimize the impact of unfavorable facts simply by tucking them in the middle of a sentence or a paragraph. I advocate strongly for the purposeful use of passive voice to further distance yourself from negative facts. I have read briefs where every sentence, and every paragraph, has been drafted with maximum persuasive impact in mind. I certainly applaud the diligence of the authors of these briefs, and understand the desire to take advantage of every opportunity to persuade. I also note that reading such statements of the case can be exhausting.
To me, reading such briefs is like riding a bicycle uphill… all the time. I need to coast from time to time. A well-balanced statement of facts allows for both the emotional appeal, and the opportunity to coast through basic information. For instance, that a complaint was filed or even when it was filed may be presented fairly neutrally without undermining the general persuasiveness of the statement. In addition, I often suggest to my students that they separate descriptions of places, things, and sometimes people, from the story itself. These descriptive paragraphs help to orient the reader and can give the reader a moment to coast before embarking on what will hopefully become a very compelling journey. I believe that such information can be shared in a fairly neutral fashion without undermining persuasive impact.
I also, however, offer words of caution. Do not begin a story, and then abruptly stop the telling in order to describe a person, place, or thing. Just as you have your reader picturing the car stuck on the train track, and hearing the train whistle approaching, do not interrupt the reader in order to describe the town in which the impending collision is likely to occur, or the restaurant in which the lone witness sat. Describe the town first, so the reader better pictures the events happening. Bolster testimony, after you’ve completed the story, by showing the reader what a great vantage point the witness had. By being mindful of where you place the descriptions, you protect the reader from jarring interruptions.
By separating descriptions from the story itself, and by relegating mundane information to its rightful neutral place, you will vary the cadence of story itself. This variety will make your statement of the case more persuasive as you give your reader an opportunity to relax and absorb the impact of the story itself.
Tuesday, March 12, 2019
As lawyers, we work in words. In “The Simple Secrets for Writing a Killer Brief,” Daniel Karon encourages us to have a “writer’s toolbox.” In his article, Mr. Karon lists the books in his toolbox, which he describes as "a modest but functioning writing library."
While I also have a "modest but functioning writing library," I use more than books to help me write. Over the next several posts, I will explore different facets of my writer’s toolbox. I will describe my electronic writing bank, writing journal, and tech tools.
Today, I focus on my writer's library.
I have shelves full of books on writing. Some of these books, if I’m honest, I never open. Others are well-worn with use. Below are some of my favorite writing resources:
Aspen Handbook for Legal Writers - A Practical Reference by Deborah E. Bouchoux [ISBN: 9781454889335]
This book does more than list grammar rules. It provides writing and proofreading tips specifically for legal writing. I like that it incorporates legal-citation rules for capitalization and abbreviations along with the grammar mechanics. The index is thorough and helps me quickly locate what I need in the text.
Plain English for Lawyers by Richard C. Wydick & Amy E. Sloan [ISBN: 978-1-5310-0699-0]
This is my "Strunk and White" for legal writing. It is a simple, short, and straightforward guide to writing well. Read this book. Implement its suggestions. You will become a better writer.
The Bluebook - A Uniform System of Citation (20th Edition) compiled by the editors of the Columbia Law Review, the Harvard Law Review, the University of Pennsylvania Law Review, and the Yale Law Review [ISBN 978-0-692-40019-7]
My clerkship with the Pennsylvania Supreme Court taught me that judges care about citation. Judges are meticulous about citation in their writing and respect attorneys who are as well.
I cut through the massive amount of rules in The Bluebook by using the "Quick Reference" section on the back cover, the Bluepages, and index. I tab pages for rules on cases, statutes, quotations, and abbreviations.
The Bluebook Uncovered: A Practical Guide to Mastering Legal Citation by Dionne E. Anthon [ISBN: 9781634595377}
This book translates The Bluebook into understandable English. It helped me comprehend some of the more complicated, convoluted citation rules. When I have a citation question, I consult this book first.
A Practical Guide to Legal Writing and Legal Method by John C. Dernbach, Richard V. Singleton II, Catherine S. Wharton, Catherine J. Wasson, and Joan M. Ruhtenberg [ISBN: 9781454889359]
This book provides step-by-step instructions for every part of the brief-writing process. It is direct and easy to understand. Each chapter contains numerous examples.
Just Briefs by Laurel Currie Oates, Anne Enquist, and Connie Krontz [ISBN: 9781454805540]
This is a great resource on persuasion. It explains how to engage the court through effective advocacy. The critiquing checklists for each section of a brief are invaluable.
My final go-to reference is an app. I use both the dictionary and thesaurus features.
What's in your writer's library?
Please share your favorite resources in the comments section. I would enjoy hearing and learning from you.
Monday, March 11, 2019
Two weeks ago I posted about moot court season. Across the country students are competing in these mock appellate exercises. And, while the exercises have great benefits for students and lawyers alike, they also have a downsides. One of these downsides is the role that implicit bias and gender stereotypes play in how the competitions are judged and how the competitors perform.
My colleague, Prof. Susie Salmon, has written on this topic. Her article, Reconstructing the Voice of Authority, looks at the way moot court programs may "reinforc[e] longstanding and exclusionary stereotypes regarding the traits that make an effective lawyer" and, in the process, "inadvertently help cement the implicit bias that impedes greater diversity and equality of access in the legal profession."
For those who may doubt the inequality women face in the legal profession, Prof. Salmon cites statistics about women in the legal field, including the fact that, as of 2012, only 27.1% of state and federal judges were women. And the fact that "[o]f the 66 lawyers most likely to have their clients' cases heard by SCOTUS--dubbed the 'elite' lawyers in a recent Reuters investigation--only eight are women."
As Prof. Salmon notes, law schools have contributed to the problem of gender bias in the legal profession. One of the ways that some schools have contributed to the problem is teaching oral advocacy in a way that relates back to Classical rhetoric and the notion of the "military leader or warrior" as being the one who "carries the most credibility and persuasive power." Advice about vocal tone, stance, and even seeming unassuming or invisible--all relating back to Classical rhetoric--promote the male warrior ideal.
While I enjoyed the entire article, I was especially astounded by the real examples of feedback that women advocates have received. Prof. Salmon emailed several professional listservs asking for examples of moot court judging or coaching "feedback that reinforced the male paradigm." Perhaps most appalling to me was the example on the top of page 163, where a female advocate was chastised for smiling at a judge. He accused her of trying to sway his opinion with her "sex appeal." Good grief.
Prof. Salmon's article ends with some thoughtful recommendations for moot court coaches and competition administrators on how best to address this problem. Of particular interest to me was her recommendation that competitions create a webinar to inform judges on the substance of the problem to ensure that judging focuses more on substance and less on delivery. For the last two years we have used this approach at the University of Arizona James E. Rogers College of Law for our intramural moot court competition. Judges have uniformly praised the video as being incredibly helpful. While it does put more work on faculty running the competition, the payoff is well worth it.
I commend Prof. Salmon's article to anyone who coaches moot court, administers a competition, or judges in moot court competition.
Saturday, March 9, 2019
The Federal Rules of Appellate Procedure, as well as the Rules adopted by several states, dictate a brief's minimum contents. But they don't set its order. And they're not exclusive criteria. The upshot? They give you the flexibility to present your argument in a way that best suits the issues in your appeal.
Over the past three or four years, I've read hundreds of briefs that slavishly tick boxes, running through the required background to get to the argument. I get it. The argument is, after all, the point of a brief. Even so, that approach wastes many words. Worse, it leaves the reader drowning in facts, grasping for context.
The problem shows itself most acutely in statutory interpretation cases. The court considers the facts in a specific context. Consider ERISA as an example. The judge needs to understand the players—often a mix of employee, employer, and ERISA plan—to decide the case. But launching into the "who" and "what" of a pension dispute isn't nearly as important as spending some time unpacking the "why." Why are the parties in court? Why should the court decide the case in your client's favor? And why is the case significant? That one is especially important if you're trying to get oral argument in some circuits.
One method unpacking why is starting your brief with a simple "statement" or "introduction." It's not required by Rule 28, but it's also not forbidden. A good statement should have a few simple paragraphs honing the court's interest on the nub of the legal problem it's got to decide.
Some are better done than others. Sticking with my ERISA theme, consider this "Preliminary Statement" from the Appellant's Opening Brief in a recently settled ERISA case from the Fourth Circuit, Longo v. Ascensus Trust Company, No. 16-2168 (4th Cir. Jan. 17, 2017):
Defendant-Appellant Ascensus Trust Company (“Ascensus Trust”) acted as a Directed Trustee for the Trojan Horse Ltd. 401(k) Plan (the “Plan”). Ascensus Trust was strictly limited by controlling plan documents, and its role was solely to manage contributions that it received from employers. In an unprecedented and results-driven decision, the District Court held that, notwithstanding its contractually proscribed responsibilities as a Directed Trustee, Ascensus Trust nevertheless breached a non-existent duty to proactively investigate whether the employers in fact made all Plan contributions, and to commence legal action to enforce payment.
This paragraph eventually finds its purpose: telling the reader that the district court erred when it concluded that Ascensus Trust, a directed trustee, owed Plan beneficiaries a fiduciary duty. (If you're uninitiated, a directed trustee is exactly what it sounds like. It's a trustee who acts at the direction of a fiduciary. 42 U.S.C. § 1103(a)(1)). Before going any further, I want to make one thing clear. This type of paragraph isn't bad; it's just not so good. It eventually arrives at the problem with the district court's ruling, but it spends too long airing grievances and using charged language ("unprecedented and results-driven decision," anyone?).
The paragraph could have been better. The issue in the case was: Do "directed trustees" owe fiduciary duties to plan beneficiaries? The statement would have been more powerful if it had previewed that issue and given enough some context, enough of its argument to teach the reader the law, the facts, and how those two things fit together in Ascensus Trust's favor. I imagine I would have drafted the statement more like this:
(1) Identify the issue;
(2) discuss the statutory definition of "directed trustee";
(3) discuss, using the other relevant statutes, why directed trustees don't owe fiduciary duties to plan beneficiaries; and
(4) give just enough background to show that Ascensus Trust was a directed trustee.
Simple, effective stuff.
I'm not just blowing smoke. Merits briefs filed in the Supreme Court follow the same pattern. Consider the Petitioner's Brief in Weyerhauser Co. v. U.S. Fish and Wildlife Services, the dusky gopher frog case. Weyerhauser was about a complex issue of statutory interpretation. And Petitioner's counsel didn't shy away from the statute:
Congress enacted the Endangered Species Act, 16 U.S.C. §§ 1531 et seq. (ESA or Act), to provide “a program for the conservation” of endangered species and to conserve “ecosystems upon which [they] depend.” Id. § 1531(b). To that end, Section 4 of the Act requires the Secretary of the Interior to identify endangered species and to “designate any habitat of such species which is then considered to be critical habitat.” Id. § 1533(a)(3)(A) (emphasis added). Section 3 defines “critical habitat” as certain areas “occupied by the species,” as well as other “areas outside the geographical area occupied by the species” that are determined to be “essential for the conservation of the species.” Id. § 1532(5)(A).
The Fish and Wildlife Service (FWS or Service) designated as critical habitat of the endangered dusky gopher frog 1544 acres of private land in Louisiana, which it labeled as Unit 1. Petitioner Weyerhaeuser operates that property by periodically harvesting and regrowing commercial loblolly pine (i.e., closed canopy) forests. FWS designated Unit 1 though no dusky gopher frog has been seen on that property for more than 50 years and the frog cannot live there absent a radical change in land use because the land lacks basic features necessary for the frog to survive.
In a little more than 200 words, the brief explains the entire case. Sure, there's a lot left to unpack. The brief is, after all, 56 pages long. But by tackling the legal issue head-on, rather than launch into the case background or poke holes in the lower court's decision, the Petitioner's brief orients the reader. It helps the audience understand why every fact, and every sentence, matters. Remember, it's not enough if you think every sentence advances your argument. Your reader also needs to know that. And preliminary statements help.
Wednesday, March 6, 2019
Like a lot of advocacy professors, I'm an avid consumer of social-science literature on persuasion, decision-making, and pedagogy. And I'm a fan of efforts by law professors to apply this literature to what advocates do. Sure, we've got to be humble and cautious: I and many of the law professors with interest in this area aren't trained scientists or statisticians, and stuff like the Social Sciences Replication Project and the hubbub over power posing offer healthy reminders that it's possible (even easy, sometimes) for folks trained in the right disciplines to get out over their skies. As Ted Becker points out, we in the persuasion business don't really know much about what really persuades judges. But much of the good, humble, cautious work helps us at least start down the path of sorting out techniques that work from techniques that we adopt just because they're the way we do things. There is a wealth of interesting work being done in this area related to persuasive writing and legal reasoning: Kathy Stanchi's body of work on psychology and persuasion is remarkable; Lucy Jewel's piece on old-school rhetoric and new-school cognitive science is a revelation; Steven Winter's work broke fascinating ground in knitting together cognitive science and legal reasoning. I could mention dozens of other scholars here: exciting things are happening.
We don't have a similar volume, as yet, of scholarship linking social science to oral advocacy. Still: I'd like to devote a few posts to highlighting a couple of pieces that I find particularly useful in refining the advice I give to advocates and in polishing my own performances.
I think it's fair to call the first a classic in the field: Michael Higdon's Oral Argument and Impression Management: Harnessing the Power of Nonverbal Persuasion for a Judicial Audience, published in the Kansas Law Review in 2009. Professor Higdon offers a rich, comprehensive overview of research into the seven basic codes of nonverbal communication: (1) kinesics (i.e., what speakers do with their bodies); (2) physical appearance (i.e., what speakers look like); (3) vocalics (i.e., what speakers sound like); (4) haptics (i.e., how speakers physically touch an audience member); (5) proxemics (i.e., how speakers use physical space); (6) environment and artifacts (i.e., how speakers use instruments and their environment); and (7) chronemics (i.e., how speakers manages time). And he thoughtfully applies that research to what lawyers do in appellate oral argument.
I find Higdon's piece particularly useful in sorting out advice on things like the use of gestures. Quite often, beginning appellate advocates will do stuff with their hands that distracts judges. So they'll get categorical advice: don't talk with your hands. And they take that advice ... and promptly get told by the next set of judges not to be so stiff and nervous. Higdon's piece details research spanning several decades that makes it clear that any "don't use your hands" advice is flatly wrong: gestures are essential to effective in-person communication generally, and they're especially vital to persuasion. But there's a catch: only those gestures that are "synchronized with and supportive of the vocal/verbal stream" enhance comprehension and persuasion. The lesson that emerges: advocates should use purposeful gestures that match and support the points they make verbally, but avoid gestures that simply accompany the verbal stream. So use the hands to help you make a point, but don't let your hands flap around randomly to accompany your talk.
Higdon's points on speed of delivery (somewhat fast is actually good, so long as it doesn't flatten out a speaker's pitch and tone) and on managing the judges' dominance are similarly illuminating. If it is read as widely as it should be, the generations of appellate advocates will tilt their heads eight degrees to the right (see p. 643). And win.
Tuesday, March 5, 2019
There are times when we, as advocates, must argue for a change in the law. Going into the case, we know that the law, as it exists, is against our clients. Our job in those cases is to be candid and admit this, and then argue that this law must be changed. To do so, we need to examine the history and reasoning behind the law, look for allies who might have questioned it in the past, and not feel tied to earlier justifications that may have lost their appeal over time. Our job is made easier when that work reveals that the law has become unmoored from the reasons that justified its genesis.
Civil forfeiture – the idea that the state can take any item arguably involved in the commission of a crime, regardless of the fault of the owner – is one such area of the law. The Supreme Court recently ruled that state civil forfeiture awards are subject to constitutional challenge under the excessive fines clause of the Eighth Amendment. Timbs v. Indiana, No. 17-1091, 2019 WL 691578 (Feb. 20, 2019). But there is a bigger problem with civil forfeiture: it has lost its connection to historical justifications.
Justice Thomas raised this concern when he issued a statement on denial of certiorari in Leonard v. State of Texas, 137 S.Ct. 847 (2017) (mem.). After briefly analyzing the origins of the law, he concluded that “[w]hether this Court’s treatment of the broad modern forfeiture practice can be justified by the narrow historical one is certainly worthy of consideration in greater detail.”
A brief look at the historical foundations of modern civil forfeiture statutes reveals how badly they totter when asked to support the modern practice. For instance, the Bible is often cited as a source for the law, where, in Exodus 21:28, it is said that “if an ox gores a man or a woman to death, the ox shall be stoned, and its flesh shall not be eaten, but the owner of the ox shall not be liable.” However, even a cursory look at this passage reveals no mandate that the state gets to eat the ox. Rather, this verse stands for the principle that if an animal causes unexpected injury, only it should bear the cost and no one should profit from the resulting death. This is also in accord with the Talmudic interpretation.
Sometimes, ancient Greek law is quoted, where inanimate things that cause death were cast out beyond the borders. Other times, ancient practices with impressive sounding names like “deodand,” “wergild,” and “bane” are cited. But in each case where early examples are found, the ancient practice is distinguishable. It was only in the English common law that something similar to our current American systems was found, and then only because the state replaced the church as the beneficiary of the proceeds of sale of an item (or ship) that caused injury, largely because it could. When we adopted that common law, this practice found its way into our legal system. The fact that Great Britain later discarded the practice when it adopted wrongful death actions providing for recovery directly to the victim’s family (at the urging of railroad companies alarmed at the potential for loss) apparently went unnoticed.
Oliver Wendell Holmes, Jr, noted that, in 1881, this was already a very common and recognizable phenomena in the development of the law:
The customs, beliefs, or needs of a primitive time establish a rule or a formula. In the course of centuries the custom, belief, or necessity disappears, but the rule remains. The reason which gave rise to the rule has been forgotten, and ingenious minds set themselves to inquire how it is to be accounted for. Some ground of policy is thought of, which seems to explain it and to reconcile it with the present state of things; and then the rule adapts itself to the new reasons which have been found for it, and enters on a new career. The old form receives a new content, and in time even the form modifies itself to fit the meaning which it has received.
After analyzing this growth and the history of civil forfeiture, in particular, he had this to say:
The foregoing history, apart from the purposes for which it has been given, well illustrates the paradox of form and substance in the development of law. In form its growth is logical. The official theory is that each new decision follows syllogistically from existing precedents. But just as the clavicle in the cat only tells of the existence of some earlier creature to which a collar-bone was useful, precedents survive in the law long after the use they once served is at an end and the reason for them has been forgotten. The result of following them must often be failure and confusion from the merely logical point of view.
Oliver Wendell Holmes, Jr., The Common Law, chapter 1 (1881).
And yet, almost 100 years later, the Supreme Court cited the passage in Exodus, the law of deodand, and Holmes’ discussion of other historical antecedents in concluding that a civil forfeiture statute that permitted the forfeiture of a yacht without first proving the guilt of the owner was constitutional, largely because it was ancient. Calero-Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663, 680–686 (1974). No mention was made of Holmes’ conclusion that this historical analysis gave no real support for modern civil forfeiture.
Not surprisingly, a long catalogue of abuses followed.
In Tenaha, Texas, while Jennifer Boatright and her children rode through town on their way to buy a used car, she has stopped by the police for driving too long in the passing lane. When the police found the cash she was carrying to buy the new car, they took it. At the station, Boatright was given the option of forfeiting the cash and being released without charge, or going to jail for suspected money laundering and child endangerment, while her children were taken by CPS. She chose to keep her children.
In Emporia, Virginia, when Victor Ramos Guzman was stopped for speeding, the officers searched his vehicle and found $28,000 in cash. The driver was a Pentecostal Church secretary from El Salvador, who explained (and later proved) that he was taking the money - donated by parishioners - to buy a parcel of land. Although no contraband was discovered, the money was seized.
In Philadelphia, a couple's home was seized after their son was arrested for making a $40 drug deal inside.
More recently, Tyson Timbs was arrested in Indiana for selling less than $400 worth of heroin. Although the maximum fine for his offense was $10,000, the police opted to seize his $42,000 Land Rover, bought with insurance proceeds from his father's death. This was the case that eventually rose to the Supreme Court.
These and other cases are often referred to as examples of “policing for profit.” The catalog of abuses is impressive, and the effect is disproportionately felt by the poor, who often cannot afford to challenge the seizures. These statutes are far removed from the original idea that no one should profit when an animal or inanimate object causes a death. And yet there are still efforts to justify these actions by referencing their ancient antecedents.
Civil forfeiture statutes are an important tool for law enforcement departments faced with sophisticated drug operations transporting drugs and laundered cash across the country. Reform efforts requiring guilt on the part of the owner and limitations on police department spending have helped rein them in. But they must also be tempered by constitutional concerns, no matter what ancient civilizations may have to say (or not say) on the subject.
Holmes’ reasoned that “[t]he history of what the law has been is necessary to the knowledge of what the law is.” This history is also important to understanding what the law should be. The historical supports given for civil forfeiture statutes do not bear the weight of many modern civil forfeiture schemes. It should not have taken us this long to figure that out, given an honest review of their history.
(Image credits: "Trial of a sow and pigs at Lavegny" from Chambers Book of Days (1864). According to the book, “Among trials of individual animals for special acts of turpitude, one of the most amusing was that of a sow and her six young ones, at Lavegny, in 1457, on a charge of their having murdered and partly eaten a child. … The sow was found guilty and condemned to death; but the pigs were acquitted on account of their youth, the bad example of their mother, and the absence of direct proof as to their having been concerned in the eating of the child.”)
Monday, March 4, 2019
Ninth Circuit Judge’s Death Allows the Supreme Court to Sidestep the Equal Pay Act and Prior Salary Questions
Last week, the Supreme Court handed down an opinion vacating and remanding a Ninth Circuit en banc decision issued on April 9, 2018 - 11 days after Judge Stephen Reinhardt’s death in March of 2018. Judge Reinhardt, known by some as the Liberal Lion of the federal court, had written the opinion and fully participated in the case before he died, and his vote was necessary for the opinion to constitute a majority and bind the Ninth Circuit. The Supreme Court held that “[w]hen the Ninth Circuit issued its opinion in this case, Judge Reinhardt was neither an active judge nor a senior judge” and thus “without power to participate in the en banc court’s decision at the time it was rendered.”
In a memorable quote—one that has been picked up by news outlets covering this case—the Court said “federal judges are appointed for life, not for eternity.” The opinion is short and to-the-point – bordering on terse. It does not address the substantive issues in the case and focuses purely on whether Judge Reinhart’s vote could be counted.
The substantive issues in the Ninth Circuit opinion, Rizo v. Yovino, 887 F.3d 453 (9th 2018) (en banc), revolved around the Equal Pay Act of 1963. Reinhardt opened the en banc opinion forcefully:
“The Equal Pay Act stands for a principle as simple as it is just: men and women should receive equal pay for equal work regardless of sex. The question before us is also simple: can an employer justify a wage differential between male and female employees by relying on prior salary? Based on the text, history, and purpose of the Equal Pay Act, the answer is clear: No.”
In light of such bold language, it's not a big leap to conclude that the “Liberal Lion’s” sudden passing allowed the Court to reverse the Ninth Circuit holding without taking a substantive position on a hot-button issue.
If you’re interested in reading more about Judge Reinhardt’s legacy, Harvard Law Review dedicated an issue in 2018 to Judge Reinhardt and published this In Memorium:
Particularly affecting is the portion by Benjamin Sachs, law professor and former Reinhardt clerk, detailing the Rizo en banc decision overturned by the Supreme Court here. Professor Sachs said:
“the posthumous publication of Rizo . . . had a deep poignancy. Reading the words of this groundbreaking decision — a decision that prohibits employers from justifying salary differentials between men and women on the basis of prior salaries — felt like hearing the Judge speaking still.”
Judge Reinhardt’s words live on in this opinion, but as the Supreme Court has reminded us, his death a mere 11 days before its official issuance denied those words the force of law.
Sunday, March 3, 2019
- Rev. J Martin
There's a carefully-guarded secret among judges and senior attorneys. It's a secret you won't often hear them mention out loud, lest they hurt your feelings. But nearly all of them are in on it.
The secret is that your bad legal writing goes in the trash.
Tossing your brief may seem harsh. When I have this talk with my law students, they certainly think so. But can you blame your readers? If it's a judge, they have 300-plus cases on their docket. Drowning in briefs and motions and exhibits--if your brief isn't worth reading, why would they?
Briefs can go bad in many ways, but usually, it starts with the words. Many are dull, flimsy, or flat. In a word: boring. And the sentences bury their points in piles of needless nouns, descriptors, and glue words, with the reader shouldering the work of sorting the useful from the useless. The combo of boredom and denseness convinces the reader that their time will be better spent tracking down the answers on their own.
But while the wrong words can tank your brief, the right ones can transform it into something powerful: A vehicle to change the minds of even your most skeptical readers.
I've talked about a magical method to pare down your sentences to the words that matter--content word editing. This simple technique is popular and works. But we talked only about cutting the excess, not how to improve the words themselves.
So I thought I'd share some methods for polishing up your words. But before going there, consider a few principles that prop up these methods--straight from cognitive science.
First, we need our readers to remember what we write. And we are working uphill. We all hear about studies showing that readers retain only a tiny fraction of what they read. Imagine how true that is for our legal readers, who are harried and distracted to begin with. One way to make our words memorable is to use ones that will be easy to visualize. By one study, words that created visual images were retained over 50% better than blander versions. Another helpful principle is to remember the power of narrative: People think in stories and remember in stories. So words that tell vivid narratives stick better.
Second, our writing should be easy to process. Fluency refers to how easy it is for your reader to process your writing. It helps your reader get wrapped up in your voice and shut out the distractions and skepticism. Simple and familiar words--and transitions--are just some of what makes your writing fluent.
Third, persuasion works best when it's subtle. People don't like being told what to think. So you're better off choosing words that lead your reader to a helpful perspective--but without forcing them into it.
Let's see how we can put these principles to work in our words.
Nouns to remember: Familiar, Short, and Specific
As Stendhal said: "Only great minds can afford a simple style." Simple words are usually the best ones. They are easier to read and easier to process. Why did President Lincoln's best speeches use the shortest, simplest, and most familiar words? In the Gettysburg Address and Second Inaugural Address (widely considered to be his two best), nearly 75% of Lincoln's words have a single syllable. That style works.
To achieve this easy reading: Prefer words with few syllables, words that are familiar, and words that are specific rather than vague. This explains why so many people cite the following Justice Roberts passage as among their favorite pieces of legal writing:
Officer Sean Devlin, Narcotics Strike Force, was working the morning shift. Undercover surveillance. The neighborhood? Tough as a three-dollar steak. Devlin knew. Five years on the beat, nine months with the Strike Force. He'd made fifteen, twenty drug busts in the neighborhood.
Devlin spotted him: a lone man on the corner. Another approached. Quick exchange of words. Cash handed over; small objects handed back. Each man then quickly on his own way. Devlin knew the guy wasn't buying bus tokens. He radioed a description and Officer Stein picked up the buyer. Sure enough: three bags of crack in the guy's pocket. Head downtown and book him. Just another day at the office.
This passage is full of the simple and familiar: "a lone man on the corner," and "cash handed over." And Justice Robers opts for specific words over vague ones. So rather than say that the officer made "many" drug busts, Roberts says he made "fifteen, twenty" of them.
To write like this, prefer the shorter, more familiar, and more specific.
First: Go with shorter, more familiar words
Try opting for shorter versions of words--and versions that will be more familiar to your reader (not words that we read only in judicial opinions and financial reports). Below are a few examples. For a longer list of I've put together, click here.
"Money" or "cash" instead of "funds"
"Pay" instead of "remunerate"
"About" instead of "regarding" or "with regard to"
“After” instead of “subsequent to” "thereafter"
"Do" instead of "accomplish"
"Gave" instead of "accorded"
"So" instead of "accordingly"
"Next to" instead of "adjacent to"
"Allow" instead of "afford"
"Say" or "said" instead of "expressed" or "statement"
“Here” instead of “instant case.”
“Also" instead of “furthermore” or “additionally”
"Some" or "many" instead of "a number of"
“Shows" instead of “demonstrates”
“Fire” instead of “terminate"
"To" instead of "as a means of"
"The brawl" instead of "the incident""Stole $500" instead of "theft of funds""Three broken ribs" instead of "serious injuries""The police's search" instead of "the underlying act""Remember last year's stock price dip" instead of "Remember the event that happened last year"
Verbs that move: Visual, Active, and Targeted
Verbs are the engines of our sentences. Their potential to create imagery and engagement is profound. And harnessing their power is a cornerstone of great writing.
First: cut bland "state of being" verbs; prefer active and visual verbs.
The "state of being" verbs tell your reader little, save that you "are" or that something "is." The verb is silent, letting other words do the work. Here are several:
Is, Am, Are, Was, Were, Be, Being, Been, Have, Has, Had, Do, Does, Did, Shall, Will, Should, Would, May, Might, Must, Can, Could
We can rev up our writing by simply looking for chances to replace these silent verbs with more visual, active ones. I put together a list of hundreds of concrete and active verbs to give you some inspiration.
Check out how Justice Holmes does it. Instead of using bland verbs like most lawyers:
“The statute has severe restrictions that only affect plaintiff.”
Justice Holmes uses concrete and active verbs that move:
“The statute bristles with severities that touch the plaintiff alone.”
Here are some other great examples of lawyers and judges nixing bland state-of-being verbs for better ones.
First, Judge Jennifer Dorsey:
“Patrol officers running license plates in a drugstore parking lot stumbled on a maroon Saturn.”
Judge Carlos Bea:
“They are alleged former child slaves of Malian descent, dragooned from their homes and [enslaved] on cocoa plantations.”
“Fraud unravels everything.”
Judge Jay Bybee:
“Congress drew the lines clearly…”
Or take two passages from the Obergfell decision. First, Justice Kennedy:
“The generations that wrote and ratified the Bill of Rights and the Fourteenth Amendment did not presume to know the extent of freedom in all of its dimensions, and so they entrusted to future generations a charter protecting the right of all persons to enjoy liberty as we learn its meaning.”
Now Justice Roberts:
“If you are among the many Americans — of whatever sexual orientation — who favor expanding same-sex marriage, by all means celebrate today’s decision . . . Celebrate the achievement of a desired goal. Celebrate the opportunity for a new expression of commitment to a partner. Celebrate the availability of new benefits. But do not celebrate the Constitution. It had nothing to do with it.”
Don't worry about replacing every one of your state-of-being verbs, but figuring out when a state-of-being verb is the culprit creates a problem—and finding a better, more powerful verb to replace it—is what will make you a better writer.
Second: pick verbs that will evoke targeted images.
Simply using more active and visual verbs will strengthen your writing. But to take your writing a bit farther, become comfortable with the subtle effects you can achieve by selecting one verb over another.
This first example is the bland "state of being" version we shouldn't prefer. The second is active in that at least you see the man moving. But the third version is an example of a targeted verb--a verb meant to evoke a specific sort image (Note: Several of the above examples, like "unraveling," are targeted verbs that match up with the content).
State of being: The woman is walking on the platform.
Active: The woman walked onto the platform.
Targeted: The woman strode along the platform.
Here is another set of examples:
State of Being: Jory is a fan of country music.
Active: Jory likes country music.
Targeted: Jory treasures country music.
And one more:
State of being: There are three things that may be helpful to the judge.
Active: Three things may help the judge.
Targeted: Three things may convince the judge.
If you don't believe there are enough verbs to evoke just the right image you're looking for, peruse your options for our first verb above, "walk":
Third: turn nominalizations into verbs.
Always look out for nominalizations, also known as Zombie Nouns. These are verbs in nouns' clothing, often ending in -ion. For example:
“The court made a determination on three of the counts”
“The court resolved three of the counts”
“The cases are not in agreement on this point”
“The cases disagree on this point”
Descriptors that disappear: Subtly use descriptors and only when they help
Nothing bogs down your writing like excessive descriptors. Please: Let nouns and verbs do the heavy lifting. Too many adjectives--and especially adverbs--trigger your readers' skepticism, slow down the pace, and disrupt your fluency. There is a reason that Stephen King and other great writers urge us to kick these.
After all, as A.A. Patawaran points out:
A world without adjectives would still have the sun rising and setting, the flowers blooming, the trees bearing fruits, the birds singing, and the bees stinging.
This is a perfect example of descriptors bogging down the writing:
The Government repeatedly and voraciously argues that under the statute there is very broad authority for EEOC to decide precisely how to engage in, and exactly when to give up on, conciliation.
Excising those and focusing on strong nouns and verbs cuts clutter and hones the points (courtesy of Justice Kagan):
The Government highlights the broad leeway the statute gives the EEOC to decide how to engage in, and when to give up on, conciliation.
Or take this snippet from another federal brief:
“Plaintiffs really offer nothing new here: their conclusory and baseless allegations that “they alleged defendant’s knowledge” is the very epitome of a quite desperate ploy."
Much more effective without the descriptors:
“Plaintiffs argue nothing more than that ‘they alleged defendant’s knowledge.’ This legal conclusion is not the ‘specific fact’ that Rule 12 requires.”
"This is a case of a corporate giant bullying a small business."
“The plaintiff snapped three bones in his arm, twice.”
“Courts review motions within days.”
“The lawyers mustered every argument they could.”
That's not to say that you should never use descriptors. They can be a force for good. For one, descriptors occasionally convey important information that the nouns and verbs can't muster on their own. But on those rare occasions when a descriptor will help--choose carefully. Empty intensifiers, like "very, "really" and "clearly," rarely add anything worth adding. Good descriptors will convey something useful.
For example, here, by using the word "explicitly," the court is pointing out that a prior case put something down in writing:
[T]his Circuit, almost two months before the district court's ruling in this case, explicitly declined to apply this framework. Liu v. Amway Corp., 347 F.3d 1125, 1136 (9th Cir. 2003).
And sometimes a brilliant descriptor can pack a wallop, used sparingly and artfully:
The wall the court erect[ed] between church and state has become even more warped and twisted than I expected.
Sometimes descriptors can also help distinguish:
The testimony is damning; the video is very damning.
Replace long, boring transitions with fresher ones
The best transitions are the ones you never notice. They do their guiding work, but they also contribute important information as a good citizen of the sentence. The abrupt, repetitive transitions that many lawyers use are often useless--simply telling the reader that "something" happened rather than delivering any helpful information about how concepts or thoughts connect to one another. Take this example from a state supreme court filing:
Furthermore, the defendant's argument fails under governing case law. Such caselaw includes, among other things, this court's own precedent. Moreover, the defendant raises this argument far into the briefing, in a reply. Additionally, this briefing....
These empty transitions are verbose and do little to increase your writing's logical flow. Legal writers sometimes forget that the skill of transitioning between sentences and topics is not a matter of simply sprinkling in transition words.
Consider using (1) shorter transitions, (2) fresher transitions, and (3) transitions in different forms--like beginning your sentences with helpful context that explains how the next thought connects up with the prior one. And don't just insert transitions blindly: sometimes a sentence doesn't need a transition because the connection is obvious. Look at some select Justice Kagan transitions (not an "additionally" or "moreover" within sight):
Countless cities and towns across America have adopted ordinances regulating the posting of signs, while exempting certain categories of signs based on their subject matter. For example, some municipalities generally prohibit illuminated signs in residential neighborhoods, but lift that ban for signs that identify the address of a home or the name of its owner or occupant . . . In other municipalities, safety signs such as ‘Blind Pedestrian Crossing’ and ‘Hidden Driveway’ can be posted without a permit, even as other permanent signs require one . . . Elsewhere, historic site markers—for example, ‘George Washington Slept Here’—are also exempt from general regulations . . . And similarly, the federal Highway Beautification Act limits signs along interstate highways unless, for instance, they direct travelers to ‘scenic and historical attractions’ or advertise free coffee.”
Here is a great example of each transition tactic at work. First, poor transitions:
VMI attracts some applicants because of its reputation as an extraordinarily challenging military school. The math program is a very challenging part of the school and key to why it is so successful. The plaintiff points out that discriminatory policies exist in the math program, which benefit only males.
In 1990, the United States sued the Commonwealth of Virginia, alleging that VMI's violated the Equal Protection Clause of the Fourteenth Amendment by benefiting females unfairly.
VMI attracts some applicants because of its reputation as an extraordinarily challenging military school. One of the school’s tough programs, the math one, is key to its success. But this math program discriminatorily benefits only males.”
That discriminatory program spurred the United States to sue the Commonwealth of Virginia for violations of the Fourteenth Amendment.
"Courts apply a two-pronged test to determine feasibility. If a defendant fails to submit adequate evidence he fails to meet the first prong of the two-pronged test."
"Courts apply a two-pronged test to determine feasibility. The first prong is not met if a defendant fails to submit adequate evidence."
Here are some other examples of smooth transitions that don't rely on the plodding "additionally":
“There’s no jurisdiction here. Setting that aside…”
“Be that as it may…”
“Same here: …”
“For example…for one…for another….”
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.