Appellate Advocacy Blog

The Ongoing Experiment of State Judicial Selection

In my last article I commented briefly on the political history of the selection and number of justices on the Supreme Court of the United States. As I was writing that piece, a committee was taking testimony in the Texas legislature on a bill attempting to change the Texas judicial selection process. While federal judicial selection is largely a set process, the method of selection of state judges is an experiment in democracy that continues to change today.

Prior to the mid-1800s, most states selected their judges in a way that mirrored the federal system – gubernatorial appointment with legislative confirmation - with a minority of states using direct legislative selection. The Jacksonian era saw a renewed concern with accountability and public participation, and this led to rapid change. In 1832, Mississippi became the first state to switch to a popular election for judges. After a few years of observation, New York and several other states followed suit. By 1861, 24 of the 34 states used the new election system.

There have been several experiments since. Nonpartisan elections were used by 12 states in 1927. Since 1940, over thirty states have adopted some form a system of appointments (either solely gubernatorial or gubernatorial selection from a merits-based nomination system, which is called the “Missouri plan”) with nonpartisan retention elections. Today, only ten states use some kind of partisan election process to select their high court justices, and only five states rely solely on partisan elections.

My home state of Texas is one of them. In the most recent election cycle, for reasons that political wonks can (and do) argue about endlessly, this resulted in a seismic shift on the bench. 35% of all intermediate appellate justices were replaced. One-fourth of all trial judges, at all levels, were also replaced. Four of the largest state appeals courts flipped along partisan lines. By one count, over 700 years of judicial experience were removed from the bench.

The response has been a re-evaluation of the method the State uses for judicial selection. Official committees have been formed to re-evaluate judicial selection and qualification, and there has been vigorous debate over the pros and cons of each system.

The hearing on HB 4504, proposing a new judicial appointment and retention vote system (similar to the "Missouri plan"), covered the gambit of options and perils. Chief Justice Nathan Hecht framed the discussion in terms of the inherent conflict between impartiality and accountability. To be truly impartial, judges must be free of outside influence. At the same time, there must be some accountability for their stewardship of power. But if a judge rules contrary to popular opinion in order to remain impartial, yet is subject to removal through election by that same population, this balance is imperiled.

Calling partisan election an “utter failure,” Hecht opined that partisan election often means there is no true accountability for judges, since the focus is on partisan affiliation rather than performance. He also warned against the risk to impartiality in such a system:

If you want judges who rule in favor of the Republicans or Democrats, in favor of the left or the right, in favor of the establishment or the outsiders, in favor of the rich or the poor, then we should keep partisan judicial elections. But be clear - today, tomorrow, or the day after, the powerful will win that struggle.

Former Chief Justice Wallace Jefferson, the first African American member of the Supreme Court of Texas, while supporting the system, acknowledged that any system needs to increase diversity on the bench, and briefly discussed the impact of implicit biases based on different life experience. Former Chief Justice Tom Philips also supported the bill, asserting that for the vast majority of judges, the partisan label is meaningless, because they seek to serve the people and follow the law. Partisan labels, however, serve to undermine faith in their decision-making. Other practitioners spoke out against partisan elections because the cost in terms of the loss of judicial experience is too high when those elections result in sweeps, and because the system prevents some well-qualified candidates from ever running.

Speaking against the bill, Judge Eric Moyé, a longtime Dallas District Court judge, started with a reference to the importance of local government and local citizen control. Noting that judges are the most direct contact most citizens have with government, Moyé expressed his concern than any appointment process would bypass citizen control. Gloria Leal from the Mexican American Bar Association also testified against the bill, noting that 39% of the Texas population was Hispanic, a proportion that was not reflected on the bench (by my quick calculation of data from the Texas Office of Court Administration published on September 1, 2018, about 17% of the bench is Hispanic), and that popular election was the best way to reach a bench composition that matched the population.

In short, the testimony largely fell along the lines of the tension recognized by Justice Hecht – impartiality versus accountability. This balance was one of the many areas that Hamilton and Jefferson (as well as Madison) disagreed upon, with Hamilton arguing for a truly independent judiciary in Federalist 78, while Jefferson was primarily concerned that the judiciary remain accountable to the people through elections. Over the years, the various states have experimented with numerous ways to maintain that balance.

As an appellate practitioner who appears in different jurisdictions, I can say that by-and-large, these various systems get it right. The professionalism and integrity of our judges is, in fact, remarkable, given the various selection processes and pressures to which they find themselves subjected. This continued discussion, though, is important to ensuring that this remains the case. Only so long as the judiciary remains both impartial and accountable, through whatever procedures and safeguards we can refine, can we ensure a healthy system with judges who are qualified and willing to serve.

(Image credit: Thomas Nast’s cartoon “Princip-als, Not Men – A Lawyer Pleading for his “Client,” Harper’s Weekly, August 7, 1875, showing Nast’s fear that wealth was influencing the bench in its decisions regarding Tammany Hall. The sign on the bar is a quote from King Lear: “Plate sin with gold, and the strong lance of justice hurtless breaks. Arm it in rags, a pigmy’s straw doth pierce it.”).

Questions Presented: Moot Court Edition

As a moot court coach, I am sometimes asked by students how similar moot court is to actual appellate advocacy.   Certainly, there are differences, starting with having to argue both sides of an issue.  But when it comes to the brief writing, one hopes that an amazing real-world brief would score well in a competition.  

Many of the characteristics of the best real-world briefs—clarity, strong theme, readability, focus—are critical in moot court, too.  An appellate attorney and a moot court participant both want to produce a winning brief.  But winning is defined differently in moot court.  Rather than a panel of appellate judges or justices deciding the issues in a case, moot court briefs are scored on a point basis and compared to potentially dozens of other briefs on the same issue and even same side.

My plan over my next several posts is to compile advice for specific sections of Supreme Court briefs generally, then add some thoughts that specifically relate to moot court.  I have scored moot court briefs for several national competitions and graded hundreds of students briefs over the years, and those experiences give me insights into common student pitfalls.  I have also pulled score sheets from a variety of competitions to give concrete examples of moot court scoring criteria.* 

We will start at the beginning with Questions Presented and Issue Statements.  You know what they say about first impressions. . .   It’s absolutely true for briefs.  As a jumping off point and for reference, I compiled a list of many of the Issue Statement/Question Presented blog posts that have appeared on this blog. 

From earlier this month, Chris Edwards on framing issues:

https://lawprofessors.typepad.com/appellate_advocacy/2019/04/getting-to-yes-framing-issues-on-appeal.html

Tonya Kowalski’s series on (1) Deep Issue Statements:

https://lawprofessors.typepad.com/appellate_advocacy/2013/11/framing-the-issues-contraceptive-coverage-and-religious-freedom-in-the-seventh-circuit.html

(2) Streamlining longer issue statements: https://lawprofessors.typepad.com/appellate_advocacy/2014/01/streamlining-longer-issue-statements.html

(3) More Objective Deep Issue Statements:

https://lawprofessors.typepad.com/appellate_advocacy/2013/11/how-to-write-a-more-objective-deep-issue-statement.html

Thomas Burch on which style of Issue Statement/Question Presented is used:

https://lawprofessors.typepad.com/appellate_advocacy/2013/11/framing-the-issues-whether-versus-the-deep-issue-question-presented.html

As you’ll see from these posts, there is not unanimity as to what format is used and preferred in actual Supreme Court briefs.  But it’s helpful to get grounding in how practitioners are framing questions presented. 

As for question presented scoring criteria from moot court competitions, here’s four examples with their respective point values:

---

Competition 1 -         Are the questions posed to frame the issue(s) to be decided in a favorable manner without being    

                                    argumentative?

                                    Is there a clear point of view? (5 points out of 100)

---

Competition 2-          Do they clearly and accurately explain the issues before the court? 

                                    Are they persuasively phrased? (10 out of 100)

---

Competition 3-         Correctly states issues

                                    Articulates legal questions and includes relevant facts

                                    Does not include legal arguments or conclusions

                                    Succinct and concise   (12 points out of 100)

---

Competition 4-          Combine legal principles with key facts

                                     Are persuasive but not conclusory

                                     Are clear and succinct (4 points out of 100)

---

 

All of these criteria include persuasion, argumentation, or relevant facts.  A neutral short framing would not fully comply.  Instead, it’s likely that a well-written, Bryan Garner-esque Deep Issue, as described in the second post above, would be better scoring.  My theory is the professors and students who run competitions and create score sheets have a preference for the more modern, persuasive, multiple-sentence Deep Issue.  Though, I think a short, argumentative question presented with a few key facts could also score well. 

Finally, there are a few key errors that will really impact the question presented score on a moot court brief.  First, as a brief scorer, I gave very little credit for just copying the issue certified for appeal.  That is not the task at hand.  Don’t do it.  Take the time to frame a well-written issue for the court.  It’s possible you could lose 5-10% of your brief score by copying and pasting the issues certified for appeal.    

Second, in moot court briefs there are usually two or three separate issues that need questions presented.  Try to make them stylistically similar.  It’s not cohesive to have one deep issue and one neutral short issue.  Yes, this takes time and possibly teamwork.  But your questions presented set the tone for the brief.  If it’s obvious they were slapped together at the last minute, that’s not a good sign for the rest of the brief. 

Third, on a technical note, do not rely on spell check for ALL CAPS in Word.  If you type in ALL CAPS, spell check does not pick up spelling errors.  Either proof read it carefully, or type it in regular font, then go to font and change it to the ALL CAPS.  I see more typos in headings and questions presented than anywhere else because of this.  A question presented with spelling errors also sets a poor tone. 

Overall, students participating in moot court should start with the good advice in the posts above for practitioners about focusing and selecting the issues and framing them clearly and positively.  But, since most competitions seem to prefer a persuasive style with concise inclusion of facts, I’d avoid a neutral short issue for questions presented in moot court competitions.    

For those of you involved in moot court, do you have any other suggestions? 

 

* Of course, students should try to find and refer to the score sheet of their own competition if it’s available.   

 

Speed Questioning Builds Students' Confidence for Oral Argument

Spring is here, which means budding trees and oral arguments for 1Ls. At Commonwealth Law School, first-year students write appellate briefs addressing two issues. During oral arguments, teams of two argue against each other. Each student argues one of the major issues. 

When I ask students their concerns regarding oral argument, most are worried about answering the judges' questions. I use speed questioning to help students overcome their question anxiety. Speed questioning is modeled after speed dating. Students answer questions posed by the "judges" sitting before them. When the buzzer rings, students rotate for another round of questioning in front of new "judges."  

I run speed questioning during class; however, I never conduct it in the lecture room. Speed questioning requires a room with large, open space. I have used moot courtrooms, an art gallery, and classrooms with movable desks, which I pushed off to the sides. Before class, I set up two questioning circles, one for each of the major issues to be addressed during oral argument. I arrange chairs facing outward in two separate circles.

To begin, students representing the appellee act as judges. Students responsible for issue 1 sit in one circle. Those responsible for issue 2 sit in the second circle. I give each sitting "judge" a list of questions that the students compiled as part of their homework for this class. Some students refer to the list during the speed-questioning rounds. Other students make up questions during the exercise. 

Students representing the appellant answer questions first. Each student stands in front of one of the sitting "judges." Students responsible for issue 1 rotate around the issue 1 circle while being questioned by students that will argue issue 1 for the opponent. Similarly, students responsible for issue 2 rotate around the issue 2 circle. The standing students answer questions for three minutes. At the expiration of time, I ring a buzzer. The students stop. The standing students rotate to the next sitting "judge" and another round of questioning begins. Questioning continues for seven or eight rounds until each student works his or her way around the circle.

Once appellants have worked their way around the circle, it is time for the parties to switch places. The students who had been sitting now stand to answer questions. The students who had been answering questions sit. Questioning by the sitting "judges" resumes. Students again answer questions for three-minute periods, rotating around the circle for seven or eight rounds.

In the first several rounds, the students are apprehensive. Many shift their weight from foot-to-foot. Some stand with their hands in their pockets or slouch. After about three rounds of questioning, students' demeanors change. They stand tall and still. They gesture naturally with their hands. Some students even smile. Speed questioning challenges students with the portion of oral argument they fear most-- answering judges' questions. Students gain confidence, which they carry with them to the podium for their first oral arguments.

 

 

 

 

 

Supreme Court Adopts Rules Changes

Last November, I blogged about pending rules changes before the United States Supreme Court.  As I wrote at that time:

Under the proposed changes, merits briefs will be cut from 15,000 words to 13,000 words. Amicus briefs at the merits stage would be cut from 9,000 words to 8,000 words.  Finally, reply briefs would be cut from 6,000 words to 4,500 words.  According to the National Law Journal, it seems like this last cut is the one getting the most attention and push back from practitioners.

Last Thursday, the Court issued a press release announcing that some of the rules changes had formally been adopted and will go into effect on July 1, 2019.  According to a National Law Journal story on the new rules:

The changes announced Thursday . . . will limit briefs on the merits to 13,000 words, down from the current 15,000-word limit. Amicus briefs filed by nongovernmental entities will shrink from 9,000 to 8,000 words. But the court, apparently responding to criticism from advocates, decided to keep the word limit for reply briefs at 6,000 words. Its proposed rule changes, made public last November, suggested a 4,500-word limit for reply briefs, a document that advocates view as highly important in culminating their briefing before the Supreme Court.

In published commentary on the changes, the Court explained,

Experience has shown that litigants in this Court are able to present their arguments effectively, and without undue repetition, with word limits slightly reduced from those under the current rule. Reductions similarly designed were implemented for briefs in the federal courts of appeals in 2016.

As part of the rules changes the Court also made clear that documents must be filed both electronically and in paper form.  The guidance reminds litigants that "paper remains the official form of filing" at the Court.

Given the changes in the circuits, the rules changes really aren't a huge surprise. But, they do demonstrate that the Court moves much slower than the federal courts of appeals in making changes.  Perhaps in a few more years we will finally see cameras in the Court.

Saying Less: the revised Supreme Court Rules and cutting words

On July 1, 2019, the Supreme Court of the United States will impose a new, shorter word limit for principal briefs.  The change affects Supreme Court Rule 33.1(g), decreasing the word limit for principal merits briefs from 15,000 to 13,000.  The change brings the Court in line with the federal Courts of Appeal.  Since December 1, 2016, the Federal Rules of Appellate Procedure have allotted only 13,000 words for opening and response briefs. 

The Court rejected one of the more controversial proposed rules.  That proposal would have limited reply briefs to 4,500 words.  Even so, the Court did shorten the time for filing a reply brief.  Previously, merits replies were due (1) 30 days after the respondent filed its merits response or (2) no later than 2 p.m. on the date seven days before the case was scheduled for argument, whichever was earlier.  The amended rule keeps the 30-day window but pushes the seven-days-before-argument deadline to 10.

 So why did the Court adopt these changes?  I don't claim to know the answer, but I expect that it has something to do with the fact that most briefs are simply too long.  Anecdotally, I once heard an appellate judge comment that every appeal really has one issue, maybe two.  It's clear that some lawyers—yours truly included—forget that sometimes. 

So how can you come in under these shorter word limits?  That's simple—better writing.  Here are some things to do, and to avoid, to bring your brief under the word limit.

• Do use fewer words, not more: Legal writers often are guilty of using phrases like "pursuant to," "prior to," or "on or about."  Don't.  Instead of these wordy phrases, try "under," "before," and "on."  This seems like a no-brainer, but I've encountered many lawyers that refuse to give these anachronisms up.  As an aside, I've also encountered several that use "pursuant to" incorrectly.  Things don't happen "pursuant to" anyone's recollection.  If you can't replace the phrase "pursuant to" with the word "under," you should re-write.
• Do run a search for the word "of." I never noticed it, but many phrases with the word "of" can be rewritten to eliminate one, often two words.  Consider the common phrases "the issue of" or "the question of."  You're likely able to pull those out without doing violence to your brief.  Also, if you're using an "of" phrase, there's also a chance you could use a possessive.
• Do run a search for "ly." You're hopefully not going to find very many adverbs.  But if you do, take them out unless they're necessary.  Consider spending some time with a thesaurus; if you're using a lot of adverbs, perhaps you'd be better served by using stronger verbs.
• Do not use the words "plaintiff," "appellant," or other, similar procedural phrases to describe any party. Briefing an appeal is about telling a story.  It's your job to tell the court the whole story of the case in the limited (13,000!) words that you have.  Even though replacing your client's four-word name would save space, resist the urge.  I promise, what you're gaining in space, you're giving up in clarity.
• Do not use precise dates, unless you absolutely need it. The Court doesn't need to know that something happened on April 21, 2019, unless multiple events happened in April 2019.  If you've got to describe a temporal relationship, try words like "later" or "before."  Otherwise, just save the words and use the month or month and year. 

These aren't all the ways to save space.  But writing shorter, more coherent briefs is a mindset.  You have to start somewhere.

The U.S. Supreme Court and Its Political History.

Over the last several weeks there have been numerous articles about the "unprecedented" politicization of the United States Supreme Court. I have also seen several opinion pieces about growing frustration with the political leanings of the judiciary, and proposals to increase the number of seats on the high court to bypass a feared conservative bloc.

I am fortunate enough to be married to a lovely lady who is, among many other things, a college history professor. While we don't talk shop too often, I am familiar enough with our history to know that none of these complaints are new. Indeed, they say that those who do not know history are doomed to repeat it. So let's learn a bit of history, then, and gain a bit of insight from the past.

First, dissatisfaction with the judiciary is baked into the system. Alexis de Toqueville noted that “[t]here is almost no political question in the United States that is not resolved sooner or later into a judicial question.” Yet Tocqueville considered this a good thing: lawyers by their education and nature were naturally skeptical of change and conservative in nature, and thus provided our best brake against the “revolutionary spirit and unreflective passions of democracy.” Congress and the Executive provide the passion and funding and guidance that moves the State, and the judiciary makes sure that all this passion and money doesn't ruin anything of Constitutional importance.

This inherent conflict between the Supreme Court and the other branches of government has often resulted in moves to make the Supreme Court "more like us." The Constitution does not define the number of seats on the Supreme Court. Thus, the Supreme Court started with just six seats in 1789. It did not take long for this to invite political intervention. In 1801, President Adams and his outgoing Federalist congress passed a bill to restrict the court to five seats, attempting to limit the incoming President Jefferson from meddling with things. Jefferson and his new congress changed the seats back to six by repealing the act.

This tinkering continued. At first, there was the excuse that new circuits meant there was a need for new seats. So, in 1807, when a seventh circuit was added, Jefferson and his congress added a seventh seat to the Court as well. Andrew Jackson followed suit in 1837, adding two more seats to match. When a tenth circuit was added during the Civil War, a tenth seat was added.

After the Civil War, the seats were reduced, at first back to seven, and then to nine, by President Grant and his congress. This number has remained the norm until this day.

That doesn't mean things have gone smoothly. In fact, things were worse in the 1930's than they are now, and we almost wound up with 15 judges a result.

In the 1930's, FDR and his congress passed a number of new laws that were a part of what became known as the New Deal. The Supreme Court was the only thing stopping this change. Time and again, the Court balked at the fairly radical changes that were being implemented. Soon, ideological divisions were noted and mocked. There were four conservatives -- Justices Pierce Butler, James Clark McReynolds, George Sutherland, and Willis Van Devanter -- that the pro-New Deal press began calling "the Four Horsemen." They were opposed by the "Three Musketeers," who favored the changes: Justices Louis Brandeis, Benjamin Cardozo, and Harlan Stone. In the middle were two moderates, Justices Charles Evans Hughes and Justice Owen J. Roberts, with Roberts usually siding with the "Four Horsemen" to overturn New Deal legislation.

The "Four Horsemen" were publicly reviled. Burned in effigy in city squares, they nevertheless stuck to their opposition, often meeting together to formulate opinions and questions at oral argument. In the 1935 term alone, this voting bloc overturned the Agricultural Adjustment Act of 1933, the Federal Farm Bankruptcy Act, the Railroad Act, the Coal Mining Act, the National Industrial Recovery Act, and a New York minimum wage law.

In 1936, FDR won reelection by a landslide and believed that this mandate gave him a chance to defeat the Four Horsemen. He announced legislation that would add (through a thinly-veiled mandatory retirement plan that required retirement at 70 or appointment of an additional judge if retirement was refused) as many as six new justices to the court, turning the conservative voting bloc into a minority. In one stroke, the president proposed to regain "control" of the court.

There was immediate backlash. The public and press were split, but most (along with many in Congress) considered the move to be an improper, and undemocratic, power grab.

Most historians seem to think that the proposal never would have passed. But events on the high court soon made the effort moot. Shortly after its announcement, in a move that the press called "the switch in time that saved the nine," Roberts sided with the Three Musketeers in a minimum wage case, and what support there was for the court-packing bill subsided. Within a year, Van Devanter and Sutherland retired and were replaced by Justices Hugo Black and Stanley Reed, both FDR appointees who proved to be strongly in support of his New Deal.

Modern opinion writers would do well to remember our past. What we are seeing is not a new politicization, but the continuation of a trend that is inherent in our system of checks and balances, and a history of attempted political tinkering that repeats itself with some frequency. There may very well be better ways of constructing the Court, and revisiting the court's role and composition periodically is a healthy thing. But overstating the current state of events, underestimating public esteem for the high court and its fragile but important position, and refusing to acknowledge history, does not help that cause.

(image source: February 1937 cartoon in opposition of FDR's court-packing plan, publication unknown)

A Texas Appellate Oddity: How Can One City Be In Two State Appellate Districts?

Despite growing up in a suburb outside of Houston and attending college in West Texas, I have been surprised by some Texas legal system aspects after living my entire professional career—from law school to practice then back to law school to teach— in California. Since returning to Houston to teach at the University of Houston Law Center in 2017, I have learned a lot about the Texas legal system, and some of the things have been interesting enough to share more widely.

The first fact that made me raise an eyebrow was that Houston, situated in Harris County and the fourth largest city in the US, is under the appellate jurisdiction of both the First District Court of Appeals and the Fourteenth District Court of Appeals. I learned this over lunch soon after arriving in Houston. My former student is a Harris County District Attorney, and he casually mentioned the challenge it was in certain circumstances not knowing what law would be applied upon appeal. Not understanding, I asked him to explain further. He shared about the First and Fourteenth Districts and how it was not until the appeal was filed that the case was randomly assigned to either the First or Fourteenth District. As a trial lawyer in one of the ten counties subject to this dual jurisdiction, you do not know which appellate court’s opinions will ultimately be applied if you end up appealing. Here’s the technical explanation from the Fourteenth District Internal Operating Procedures:

The 1st and 14th Courts have concurrent jurisdiction over cases from Harris and 9 other counties: Austin, Brazoria, Chambers, Colorado, Fort Bend, Galveston, Grimes, Waller, and Washington. The trial court clerk randomly assigns each appeal, with one exception: cases in which a related matter has previously been heard by a particular court are assigned to that court.

So how did Texas become the only state in the country with this jurisdictional quirk? It has to do with Texas history. As the state grew, more courts were added in an ad hoc manner. The First District was created in 1892 and located in Galveston. In 1957, after Hurricane Audrey and significant damage to the Old Galveston Court House, the First District was moved to Houston. In 1967, the state legislature added the Fourteenth District because of population growth and also located it in Houston. At that point, the courts were still limited to three justices each, so new districts were added when case loads became too large.
While Texans often take pride in their unique institutions, many have criticized the resulting court system from this add-on approach. According to Judge Willett of the Fifth Circuit while he was a Texas Supreme Court Judge:

Truth be told — and this particular truth has been told repeatedly — the State's entire Rube Goldberg-designed judicial "system" is beyond piecemeal repair; it should be scrapped and rebuilt top-to-bottom. The convoluted make-up of the Texas judiciary — "one of the most complex in the United States, if not the world" — does not lack for critics, from the litigants who endure it, the lawyers who navigate it, and the judges who lead it. . . Texas is the only state in the nation in which trial judges answer to more than one intermediate appellate court, that is, no other state has overlapping appellate jurisdictions. Fifteen counties are in overlapping districts. This Court has lamented the "manifest" problems inherent in overlapping districts: "uncertainty from conflicting legal authority," "the potential for unfair forum shopping," and "jurisdictional conflicts.”

In re Reece, 341 S.W.3d 360 (Tex. 2011) (Willett, J. dissenting).

One shocking example of what can happen when two appellate districts have the same jurisdiction occurred when four passengers were in the same car in a bad accident, and three had the right to sue according to one appellate district, one did not according to the other. Compare Reyes v. City of Houston, 4 S.W.3d 459, 462 (Tex.App.-Houston [1st Dist.] 1999, pet. denied) with Montes v. City of Houston, 2000 WL 1228618, at *4 n. 3 (Tex.App.-Houston [14th Dist.] 2000, pet. denied). While the Texas Supreme Court may grant a petition for review when there is a split of this type, it often does not. There are lots of less dramatic examples of conflicting rulings. Litigants and attorneys are left with a limited ability to predict the law that will be applied in their case, let alone an outcome based on that law.

It’s also worth pointing out that fourteen intermediate appellate districts is a lot, and likely adds to costs and strain on the high courts. Texas has more intermediate appellate courts than there are federal circuits. Though Texas is large in both size and population, it strains reasoning to understand why it needs that many. For reference, California only has six intermediate appellate courts.

Finally, the concurrent jurisdiction has been criticized for diluting voting rights of minority voters in Harris and Fort Bend counties with votes from the other largely Caucasian, suburban counties. With the election in 2018 and the vast changes in the judiciary in Texas, it will be interesting to see if political motives will result in more momentum towards some sort of change.

Overall, forty nine out of fifty state and the entire federal court system operate with unitary intermediate appellate court jurisdiction. Texas is an outlier with this strange system, and I did not find anyone extolling the virtues of it. Perhaps this is a quirk that should be retired.

A Plaintiff and a Defendant Walk into a Bar: Simple Tools For Telling Stories in Your Legal Writing

"Those who tell the stories rule the world."

- unknown

It is quiet and dark. The theater is hushed. James Bond skirts along the edge of a building as his enemy takes aim. Here in the audience, heart rates increase and palms sweat.  I know this to be true because instead of enjoying the movie myself, I am measuring the brain activity of a dozen viewers. For me, excitement has a different source: I am watching a[] neural ballet in which a story line changes the activity of people’s brains.

That's from Paul Zak, founding Director of the Center for Neuroeconomics Studies. Recently, scientists strapped brain-scanning and other sensors to a group of test subjects and had them watch a Bond movie. The researchers wanted to see how people reacted physically and neurologically to a good story.

"When James Bond found himself in stressful situations--like hanging from a cliff or fighting a bad guy--the audience’s pulses raced. They sweated. Their attention focused." In other words, the subjects connected with the hero on a physiological level, experiencing what Bond was experiencing. And something else: the participant's brains synthesized a neurochemical called oxytocin.

Oxytocin's influential power on our minds is well-documented. And stories trigger it.

Take another study showing that when we read a story, the neural activity in our brain increases fivefold. Neuroscientists have a saying: “Neurons that fire together, wire together.” This increased activity, no doubt, makes it much more likely that readers will remember a story over some other random information. 

Research shows that the mere act of reading a story changes how we think. In a 2011 study, participants read stories with strangers. The results? Storytelling, the researchers concluded, “fostered empathy, compassion, [and] tolerance.” Reading a cohesive story (of any kind) affects us. It makes information more palatable and more memorable. This is all piled on top of the long-standing cognitive science research showing that nearly all of our thinking is done by constructing story-like schemas and categories in our minds.

In short: research proves that storytelling engages readers, it burns information into their memories, and it forges the sort of close bonds that you need to persuade them. If anything, these powers are most important for lawyers. We legal writers are desperate to engage our readers--and to get them to care--amid the constant legal noise. Storytelling can cut through that noise and touch our readers on deep levels.

Legal storytelling is a field and art to itself, but I thought I would offer some core storytelling tools that you can easily incorporate into your legal writing. 

1.      Start with a movie-trailer paragraph.

Try taking a paragraph or two at the outset of your factual story to spool up a preview of the best scenes. If your fact section is the movie then this initial section is your movie-trailer. You will not only excite and engage your readers, but you'll lay out the basic storyline so they can better sort the details as they go (an important cognitive science tool).  

The two tricks here are to (1) roadmap the basic storyline and theme ("this is a corporate bullying case") and to play a highlight reel of some of your best material to prime readers and get their emotions in the right place. I've seen good movie-trailers take up a few paragraphs or a few sentences. Take this one from a recent SCOTUS case--it doesn't get  more simple or persuasive than this: 

Justice Kagan is a fan of the movie trailer. Here she sets up the story in the Sherman case last term: 

And here's another one from a federal motion for summary judgment:

The thrust of the complaint is that plaintiff has worked at the defendant’s store for several years and repeatedly complained about sexual harassment. For example, he complained that his supervisor allegedly made comments about his ‘great stature.’ Eventually, the defendant acted, but by then, plaintiff alleged he had already been harassed so much that he quit.

Here's an example of a lawyer also adding some helpful roadmap to his trailer:

Three periods in plaintiff’s employment are relevant here. First, plaintiff offers allegations about when he was interviewed and how the defendant made promises to him then, like that he would be a foreman within six months. Second, plaintiff alleges that over the next six months, his job turned out to be a “glorified secretary…”

2.     Uncover your familiar plot and highlight it.

We all know the good storylines: the underdog who defeats the bully, rags to riches, the do-gooder who is underestimated by everyone in town. We are hardwired to be moved by these storylines. The good news is that you can construct an emotional storyline out of just about any situation, if you look hard enough. Once you've distilled down your basic plot so that you can relate it in a sentence or two--highlight it at the outset of your story and throughout your brief. 

Supreme Court high-flyer (and one of my favorite legal writers) Deepak Gupta gets the value of building a simple and emotional storyline at the outset.  With these couple paragraphs, Gupta injects his factual theme, storyline, and the punchiest snippets of his factual story. In short, the big bad credit card companies are pulling the wool over innocent consumers' eyes--to the tune of billions:  

Here's another example. This time, it's a story of vulture debt buyers looking to prey on the weak: 

3.     Deftly weave emotional facts into the story (even when they are not strictly relevant).

Legal readers hate reading facts that are obviously not relevant to the legal questions they are wrangling with. But if you insert those same facts into a cohesive story about the facts that do matter--your readers will never get wise. For example, Justice Kagan mentions in this snippet below how much the plaintiff spent on fees, even though this fact really had nothing to do with the legal questions presented to the court. But because this fact was weaved into the story about the  background that was relevant--you'd never know: 

4.    Cut details that don’t matter.

We legal writers are often too specific about things that don’t matter. The problem is that when you give your readers a bunch of specific details without purpose, they get confused. They try to remember everything, not knowing what they'll need for the legal analysis later.

So cut dates, amounts, names, and any other details that won't help you win on the merits. Look how this federal district judge avoids inundating the reader with dates, page numbers, and needless details that other lawyers and judges love to squeeze in: 

Late last year attorney Denton Jackson filed a chapter 13 bankruptcy case [] for debtor Sarah O’Neill. Shortly after filing the case, Jackson filed a form fee application, Form No. 23. In the portion of the application entitled “Use of Model Retention Agreement,” Jackson checked the box indicating: “The attorney and the debtor(s) have entered into the Court’s Model Retention Agreement.” Some months later, chapter 13 trustee Thomas Lanner objected to Jackson’s application because the [Model Retention Agreement] between Jackson and the debtor . . . attached an “addendum” that prescribed fees in addition to the flat fee to which Jackson was entitled.

5.     Try to tell a complete, cohesive story about any important factual events. 

Make sure to tell a complete story--beginning, middle, and end--for any event that matters. Readers get skeptical when there are obvious plot holes. So answer natural narrative questions readers will likely have. Consider telling the story in a familiar arc:

setting > characters > complication/conflict > resolution (how they got to court)

This is a familiar and easy to understand format for readers (as a preview for later--you can use this same structure when telling stories about the rules, too). 

Some other story elements to keep in mind: 

• Consider whose perspective might be the best to follow as you deliver the facts. The defendant? The plaintiff? Some third party?
• Focus on people or entities when possible. Frame the story as actions they took out leading to the issues or dispute.
• Provide your reader with helpful context to set up those important factual events. How did the plaintiff and defendant come to meet? Why were they where they were that night? You don’t want to lose your reader in irrelevant details, but if some factual events are critical, it will be much easier for your reader if you set the scene first.

Here's some nice scene-setting about why there are so few debt-buying firms, which sets up the critical factual events in the case: 

Here's a great example of a lawyer telling the whole story and paying attention to familiar story elements: 

Here's another cohesive story. Notice how the lawyer keeps the facts in the perspective of the entities, not abstracts. Note also the editorials about what the entities were thinking at the time: 

Defendant Oztark co. launched it’s company last year to help individuals who want to charter a private plane. It filled out its corporate paperwork with the state of Delaware, but it forgot to send in a check to cover the corporate registration fee. Delaware, in turn, sent its request for payments to the wrong address—so Oztark never realized it’s mistake. Oztark then started providing services, not realizing that it was effectively not a legal corporation . . .

Here's an example of some scene setting that lays out how different parties relate to each other. Is it all legally relevant? Probably not. But it sure helps keep the story straight: 

6.    Share specific details that make a point (rather than telling your reader why they matter).

This is a classic and always important: Use choice details to lead your readers to the emotions and images you want, don't just tell them what matters. 

So instead of telling your reader that “plaintiff was severely and permanently injured” share the specific details: “Plaintiff’s hips were both broken.”

But choose specific details with care. Juicy details will build imagery in your reader’s mind, making the story come to life. And if you choose the wrong details you might lose control.

7.     Use tools to emphasize the good facts.

Emphasize the best facts by describing them with the best style. Imagery-laden, vibrant, and pithy writing is memorable. And using this sort of writing when talking about the good facts will make them stick. 

You can emphasize key facts by placing them in positions of emphasis like the beginning and endings of paragraphs, the beginning or end of sections, and the ending of sentences. You can also emphasize these facts by repeating them subtly, say, in your introduction, in your fact headings, in your movie-trailer section, and in your conclusions. 

Another important way to emphasize key facts is to tell a more detailed story about them. The more details and time you spend setting up a factual event, the more it will be emphasized for your reader. Justice Kagan gets it here, as she spends two paragraphs revealing every detail leading up to the critical event of the banner being unfurled: 

Respondent Joseph Frederick, a senior, was late to school that day. When he arrived, he joined his friends (all but one of whom were students) across the street from the school to watch the event. Not all the students waited patiently. Some became rambunctious, throwing plastic cola bottles and snowballs and scuffling with their classmates.

Then came the incident we are concerned with here. As the torchbearers and camera crews passed by, Frederick and his friends unfurled a 14–foot banner bearing the phrase: “BONG HiTS 4 JESUS.” The large banner was easily readable by the students on the other side of the street.” - Morse v. Frederick, 551 U.S. 393 (modified)

8.    Use the first sentence of fact paragraphs to persuasively frame and prime. 

Like I mentioned recently in "The Strength of the Start," first sentences are powerful. Use the first sentences of your fact paragraphs to set up the persuasive pitch for all the facts that come after. Gupta does just that here: 

And again here: 

9.    Use your own voice and narration whenever possible. 

Any good storyteller will tell you that half of this art is in the voice: the power, the pauses, the pitch. For writers, this is tricky, because you must craft a "written voice." One of the big pitfalls here is to let fact quotes drown out your own narration. So consider using some of my prior pointers about quoting here, and keep other people's voices to a minimum. Check out how (yes again) Gupta keeps quotes to a minimum while maintaining his own narrative tone throughout: 

10.    Defang unhelpful facts (but don’t ignore them).

Defang unhelpful facts by surrounding them with helpful facts (the "halo"), by placing them in the middle of paragraphs, by not repeating them, and by sharing less detail or spending less time exploring their nuances.

But top lawyers will all agree that you should not ignore the bad facts that the other side is sure to raise. That just makes them that more powerful in the other side's hands. But here is an example of an attorney deftly putting bad facts into context. Instead of saying: "Defendant admits he punched the plaintiff in the face," the lawyer says:

Defendant is a nurse. He has never done anything violent. He was being beaten from three sides and—to save his own life—flailed and made contact with one of the assailants in the face. There were no injuries.

11.    Use headings to separate the story's different scenes.

This may be the most helpful fact tool: separate different factual events with headings so that your readers can keep track. Good headings also allow you to help your reader understand what matters from each section. 

For example, this lawyer plucks out the key facts about how long it took to file a motion:

A. The plaintiff waited to file the motion until three months after receiving documents.

Here's another Gupta example of headings that preview key facts and help readers keep track of all the different parts of a single, cohesive story:

12.    Telling the rules' story. 

One of the most powerful stories is a type you might not think about: Rule stories.

Really, every rule is a story. Whether it be a statute, a common law principle, or the reasoning of a court case. Some situation or circumstance gave birth to the rule. The rule grew over time--changed, expanded. Perhaps it matured into a more flexible version of itself, benefiting from the wisdom of experience. Or maybe it became strict and unyielding after too many litigants took advantage of it. 

There is a lot of magic to explore here. For one, when you have a critical rule interpretation that may make or break your brief--telling the rule's life story can be the most memorable, engaging, and persuasive tool in your belt. Rule stories just beg to be read.

Most legal writers would introduce a rule like this:

The Free Exercise Clause does not exempt religious persons from laws of general applicability. Employment Division v. Smith, 494 U.S. 872 (1990).

Look how different it is when the rule is explained in story-form,hereby Justice Gorsuch:

Once your reader absorbs your rule's story, it will be hard for them to shake. The other side's surface interpretation of the rule will ring hollow.  

Another power of the rule story is that it gives you flexibility. Root around long enough in any rule's past, and you'll find some skeletons. Perhaps a shotty case that caused a twist in the law that never should have been there. Or some assumptions or factual circumstances that suggest an entirely different purpose animated the rule than what you might expect. You can take more liberty when interpreting rules as a storyteller rather than a scrivener.

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

A "Writer's Toolbox" Part II: Idea Journal, Writing Bank, & Tech Tools

In a previous post, I introduced the legal-writing toolbox. I described seven resources that make up the “practical” library in my toolbox. In the comments section, several readers shared the top books in their toolboxes too. 

Today, I examine some additional tools I use as a writer. Again, I welcome your contributions in the comments section. I look forward to learning more from you. 

Idea Journal 

The inspiration for an argument or article often strikes in the cereal aisle of the grocery store. For years, I thought, “That’s a pretty good idea. I’ll add that to my document tomorrow.” Then, when I sat down to write, I could not remember the epiphany that had befallen me in front of the Cheerios. This happened quite frequently. Now, I carry a small journal and pen with me wherever I go. I capture ideas in my journal as they come.

Electronic Writing Bank

I use Microsoft Word and a PC to write. Throughout the years, I have amassed an electronic collection of my own writing. In practice, I had templates for the various courts in which I practiced. I saved correspondence, pleadings, and “standard” legal language for certain sections of my briefs, like standards of review. As a professor, I have gone back to my storehouse and given my students some of my writing to edit. They enjoy finding mistakes in their teacher’s work. 

As a professor, I am still collecting my writing in an electronic bank, keeping it safe and secure. I have developed an organizational system, using electronic folders and file names that allow me to find what I needed quickly. Periodically, I clean out my collection and delete material I no longer need.

Tech Tools

I know enough technology to survive in the digital age. I’m sure I do some things the hard way, technologically, but it’s likely the only way I know how. Here are a few of the “tech tools” in my writer’s toolbox, which may or may not be new to you.

First, I remove metadata from my documents before I share them with someone. When you create a file, potentially identifiable information (metadata) is automatically stored in the properties of the file. Metadata includes information about who created the file, who made changes to the document and when, and the changes made. The easiest way I “remove” metadata is by converting my Word document to a PDF. It is my understanding that a viewer cannot mine a PDF document for the same metadata found in a Word document.

When I am collaborating on a Word document, and cannot share it as a PDF, I often strip the document of its metadata before I send it. If you would like instructions on how to remove metadata from a Microsoft Word document, click here.

Second, one feature I appreciate in Word is the ability to link numbers within a document through the cross-reference function. Cross-references link numerical references within a document so that if you change the numbering system, Microsoft Word will update all the linked numbers. I find cross-references to be helpful in linking footnotes in law review articles, provisions in contracts, and paragraphs in pleadings.

For example, if I am drafting a settlement agreement with various numbered paragraphs, some of the numbered provisions will likely reference earlier numbered provisions. If I want to add a numbered provision in the middle of the agreement, all of my numbers after the newly-added provision will have to change.  If I change the numbers by hand, I will have to devote several minutes to making the changes and I risk missing a provision and having a mistake in my agreement. To avoid this problem, I use cross-references to link my numbers. Then, when I make a change, the cross-reference function updates the numbered references in a few seconds and the software does not miss any of the numbers, reducing errors.  For instructions on how to create cross-references in a document, click here.

Finally, when I don’t know how to do something in Word, I Google it. Individuals far smarter than I have created step-by-step instructions or videos on how to complete tasks that make writing easier in Word. When I search, I describe the task I want to complete along with the version of Microsoft Word that I am using because the instructions may change depending upon the age of my software.

The photographs used in this blog post are used with permission from Unsplashed.  The "Write Ideas" photograph is by Aaron Burden.  The "Laptop & Notepad" photograph is by Nick Morrison.

Obscenities & The Supreme Court

While many people may be swearing on April 15 because they forgot to do their taxes, the Supreme Court will have swearing on its mind for another reason.  Iancu v. Brunetti poses the very interesting question of whether, under the First Amendment, the government may refuse to register trademarks it deems "immoral" or "scandalous."  Mr. Brunetti was denied a trademark for his clothing brand FUCT (Friends U Can't Trust). The Federal Circuit ruled in Brunetti's favor, and now the Supreme Court will hear the case.

Just two years ago, the Supreme Court ruled in Matal v. Tam, that the "disparagement clause" in the Latham Act is incompatible with the First Amendment.  I think that is likely that Brunetti will succeed too in his trademark quest.

But, the merits of the case isn't want I wanted to blog about.  What is quite interesting in the case are the numerous examples in Brunetti's brief of trademarked and rejected words that could be deemed "immoral" or "scandalous."  National Law Journal, in its Supreme Court Brief email, noted that the briefs are "most assuredly not suitable for minors."  According to NLJ, the brief lists "34 words that might sound scandalous, only three of which have been handled consistently. [The trademark office] has allowed FCUK, FWORD, and WTF IS UP WITH MY LOVE LIFE? Again, those are mild compared to other unmentionable words and phrases in the brief."  If you would like to read all of the bad words in Brunetti's brief, you can find it here.  The juicy part starts on p. 11.

Despite the bad words in the brief, Brunetti's attorney told the Court in a footnote that he didn't expect it would be "necessary to refer to vulgar terms during argument. If it should be necessary, the discussion will be purely clinical, analogous to when medical terms are discussed."  That decision was probably for the best.  The NLJ article mentions Carter Phillips, who was called twice by the Court and advised not to use bad words in oral argument when he argued the FCC v. Fox case. 

I think that the subject of how litigants and the Court use profane language is fascinating.  Should the word be spelled out?  Should one use asterisks? And, if you dare spell it out, can you then say it out loud at argument?  Dare the justices say the word when announcing the opinion?  According to a 2012 New York Times article, when Justice Harlan announced the opinion of the Court in the Cohen case, he was instructed by Chief Justice Burger not to "'use that word' because 'it would be the end of the court' if he did."  You may recall from constitutional law that Mr. Cohen was prosecuted for wearing a jacket that contained words that, according to his attorney attorney, were "'not actually advocating sexual intercourse with the Selective Service.'"  Despite the Court's reticence to hear the word out loud, in many cases, especially in a case like Brunetti's, it is important to see the word in context.  

I plan on listening to Brunetti's attorney's argument if I get a chance to see if he holds true to his word.

Getting to "Yes": Framing Issues on Appeal

Many practitioners, it seems, view the "issues on appeal" section of their brief as a waste of space.  I don't know that for sure.  But it seems likely given the slapdash way many of those sections are composed. 

I'm going to assume everyone knows that this issue statement is no good:  Did the trial court err in awarding summary judgment?  It is my least favorite issue statement of all time.  If you find yourself writing this issue statement; stop.  It's not the answer. 

What I'm talking about are those issue statements that do a sufficient job of alerting the court to the central issue in the case, but that don't go far enough.  Here's a perfect example that I found after five minutes on the North Carolina Court of Appeals' website:

WHETHER THE FULL COMMISSION ERRED IN AWARDING ATTORNEY'S FEES PURSUANT TO N.C. GEN. STAT. § 97- 88?

There's not a lot of substance to unpack here.  I know from reading question that the appellant claims the North Carolina Industrial Commission erred when it awarded attorney's fees.  And I know the relevant statute.  In that regard, this issue statement does its job just fine. 

But it could do so much more.  First, it needs more information.  Second, it needs some emotional appeal.  Shifting gears and heading into the world of contract law, let's build an issue statement that both does its job and does it well.

Here's some background.  The plaintiff brought a breach of contract claim against the defendant, who contends that the claim is barred by a release.  The plaintiff has admitted elsewhere that the release is valid.  The trial court concluded the claim was barred and dismissed the case.  The plaintiff has appealed. 

The defendant's most basic issue statement would read something like this: 

Did the trial court correctly dismiss plaintiff's breach of contract claim?

As before, this statement tells the court what's at issue and what the defendant's position is on it.  It just doesn't do anything else.  To give the court some extra information, the defendant might consider:

Did the trial court correctly dismiss plaintiff's breach of contract claim after concluding it is barred by the release?

In this iteration, the defendant has again conveyed to the court the issue and the defendant's position on that issue.  By noting the release, the defendant also has conveyed the trial court's reasoning.  Still, this issue statement is missing something.  It tells the court what's going on, but it doesn't persuade.  It lacks emotional appeal.  For some real pizazz, the defendant might consider crafting an issue statement that goes one step farther:

Did the trial court correctly dismiss plaintiff's breach of contract claim when that claim pre-dates an admittedly valid release?

This statement goes all in.  It tells the appellate court what the trial court did, but more importantly, it tells the appellate court why the trial court was right.  That is, why the defendant should win.

The question has an important feature that its predecessors lack:  its answer is "yes."  Writing an issue statement so that it must be answered "yes" goes a long way to bolster your case.  It gets the court thinking about the facts and the law in the light most favorable to your client. And it does so early.  By writing an issue statement with a clear answer, you're ensuring that the court will see the case through your eyes early on.  That's a huge advantage, especially if you're the appellant. 

So, next time you sit down to write an issue statement, resist the urge to recycle your old standby and spend some time crafting a quality question that the court can't help but answer in your favor.

Would the Supreme Court Be Better with More Justices?

Tinkering around with the American governmental structure has become a standard plank for campaigners during run-ups to elections. The latest structural idea some are revisiting is the number of judges on the Supreme Court. George Washington University law professor Johnathan Turley has a laid out a plan to increase the Court to nineteen. 

Turley describes this increase not as court-packing but as a cure to the partisan lock that has become fairly predictable. With more justices, this lock would be eased and the "swing-vote" would not hold so much power in close cases. Turley says the Court may still split but the swing vote would probably not be the same justice every time. In some instances, we have become accustomed to cynically saying that arguments before the Court only have to persuade one person - most recently that person was Justice Anthony Kennedy - since the other justices were so predictable. When viewed from this perspective, it does seem a circumvention of justice when one person can hold so much sway over the decisions of the Court.

Turley makes the point that the number of justices on the Supreme Court is not mandated by the Constitution. The reason we have nine today is because there were nine circuits in 1869, and that's where it has stayed for no real reason except tradition. Turley would increase the Court to nineteen, and two justices would sit on the lower courts each year in order to keep in touch with reality (Turley says "so they don’t lose touch with judging in the litigation brawl that precedes a case that rises to the Supreme Court"). In the build up to fully staff the Court, each president would not be allowed to appoint more than two justices during his entire term. Turley arrives at the number nineteen because he says that is the size of most of our appellate courts and they work well when sitting en banc. 

Glenn Reynolds, University of Tennessee law professor, agrees with increasing the Court, but actually advocates for a mega-court of fifty-nine judges! He says keep the nine already presiding, appointed by the president, and add one for every state, appointed by the state governor. Reynolds says this will allow for a more diverse bench and one not as subject to the political winds as is the smaller insular group of nine. Reynolds has also advocated for elections for the justices. He says that the Court has already become politicized, so elections to ten year terms would make the presidential election turn less on Supreme Court appointments. Several states already elect their supreme court judges (most recently Wisconsin).

Personally I remain sentimental and tend to be attached to tradition, so am not immediately interested in these proposals. But admittedly, as Turley notes, our Supreme Court is the smallest of any major nation, and the ideological lock is a real concern. Since there are no Constitutional rules about the size of the Court, and it would be only engrained practice that would need changing, revisiting the size of the Court may be an idea whose time has come.

 

A Tale of Two Litigants - Sealed Appeals and the Public's Right of Access

Last week, the Tampa Bay Buccaneers were "outed" in an appeal that they wanted to keep sealed. The team had oral argument set for April 1 as one of the claimants against BP Exploration for the Deepwater Horizon incident. Until March 29, it was simply "Claimant ID 100246928." It wanted to keep it that way, and have the courtroom where oral argument was set sealed off so no one could find out that it was making a claim. The Fifth Circuit denied that request.

In January, another appellate court was also asked to seal proceedings. In "In re Grand Jury Subpoena," the Supreme Court of the United States sealed a petition for writ of certiorari, along with the response and reply. There was great interest in this case, because it arose from a DC Circuit opinion that kept the parties' identities secret, while affirming an order of contempt against an unnamed foreign-owned corporation that had refused to comply with a grand jury subpoena. Since several news outlets had claimed that the grand jury was connected to the Mueller investigation, a motion to intervene and unseal by the Committee for Freedom of the Press was quickly filed. And denied. Last week, the petition was denied (after a brief stay was at first granted) without ever disclosing who was involved.

As the Committee's motion noted, Justice Roberts has rightly remarked that the judiciary is "the most transparent branch of government." Indeed, "[w]hat transpires in the court room is public property." Craig v. Harney, 331 U.S. 367, 374 (1947). This is particularly true with oral argument, which has historically been open to the public. Even the Pentagon Papers cases, with their sealed and "top secret" records, had public oral argument.

As the Fifth Circuit noted in denying the request to seal the Tampa Bay Buccaneer's oral argument, "Public confidence in the courts is the issue: How can the public know that courts are deciding cases fairly and impartially if it doesn't know what is being decided?" BP Exploration & Production, Inc. v. Claimant ID 100246928, No. 18-30375 (5th Cir. March 29, 2019) (order on motion to seal courtroom).

The Buccaneers offered three arguments that they claimed overcame this public interest. All were rejected. First, the argument that their financial data was confidential was rejected, because the exhibits were to remain sealed and the actual numbers need not be mentioned in oral argument, since the judges had that information at hand. Second, the team's claim that it would be subject to scandal and be competitively harmed was rejected, because "[c]ases are heard in courtrooms every day addressing matters so much more sensitive than this dispute - workplace harassment, sex crimes, or child abuse to name just a few." And finally, the claim that the team expected privacy because of the confidential claim process that had been approved by the district court was rejected, because such agreements are not binding on courts of appeals, and it is the public's right to access records, which should not be contracted away by private litigants, that must be protected.

So why was the foreign corporation allowed to maintain its secrecy when the Buccaneers were not? The Commission argued that it had both a First Amendment and common-law right of access to the records in the Grand Jury Subpoena case. The protection of either right would require require a compelling government interest that is narrowly tailored to justify a denial of court access. For reasons we will likely never know, the foreign corporation was able to show a compelling interest in both courts.

What can we take from this as appellate practitioners? Even if your documents are sealed, and the trial court has agreed to keep all proceedings sealed, the court of appeals is not sure to follow. You must move to seal and show a compelling interest to do so. It will be an uphill climb. You may also be able to bifurcate the proceedings - in several cases, courts of appeals have agreed to hold part of the oral argument open, and close the doors only for part of the argument that may require discussion of properly-sealed evidence.

Just don't seek to benefit from a public settlement pool and expect to remain anonymous. The most likely result, as the Fifth Circuit ruled, is that "the public will be able to access the courtroom it pays for."

(Image information: WWII era poster from the U.S. National Archives and Records Administration).

Using the Ruth Bader Ginsburg strategy in Termination of Parental Rights Appeals

If you weren't a fan before  "On the Basis of Sex" was released in December 2018, or before the RBG documentary came out in May 2018, or before  My Own Words was published in October 2016, by now we all know how Ruth Bader Ginsburg did it.   As explained here, she started from zero, when the Supreme Court had never invalidated any type of sex-based law, and had rejected every challenge to laws treating men and women differently.  "By carving out incremental spaces for women (and men), over time Ginsburg established a bedrock of precedent that legal minds still reference in the fight for equality." One case at a time, she managed to change the court's perspective on sex discrimination: "Ginsburg’s precedents were compounding, as she helped American law move toward a world in which gender was no excuse for treating people differently."

A dear friend and colleague who works exclusively in the juvenile court system here in Missouri recently asked me to join her on her quest to follow the RBG Method in termination of parental rights cases.  I thought well, Justice Ginsburg was once upon a time an attorney with a strategy.  Here's the plan; apply it as you see fit. 

I.     Identify a current law, the prevailing interpretation of which you want to change.  

Termination of Parental Rights in Missouri is purely statutory.  The statute itself is long, complicated, and detailed.   One of the following grounds for termination without consent of the parent must be proved by "clear, cogent and convincing evidence": (1) abandonment; (2) abuse or neglect; (3) the child has been under the jurisdiction of the juvenile court for at least one year, and the conditions which led to the assumption of jurisdiction still persist; (4) the parent is guilty of a felony violation in which the child or any other child in the family was a victim; (5) the child was conceived as a result of rape;  or (6) the parent is unfit to be a party to the "parent-child relationship."  Each of these grounds requires a showing of specific facts and circumstances that constitute "clear, cogent and convincing evidence."  Second, the statute requires proof by a preponderance of the evidence that termination is "in the best interests of the child."  Given this level of detail and box-checking involved, your average bear might think that TPR cases leave little room for judicial discretion, and require strict and literal compliance with the statute. 

But in 2016, the Jackson County, Missouri Family Court developed a problem.  In the years 2010 through 2015, an average of 138 new termination of parental rights cases were filed.  In 2016, that number jumped to 449, because "in the Fall of 2015, the Juvenile Officer identified a number of cases with a goal of TPR lacking a petition for termination.  A special work plan was constructed and these cases were filed in 2016, resulting in an unusually high number of TPR petitions filed."  In 2017, 369 new TPR cases were filed, down by 80 from the prior year, but still over 2.5 times the average of the six years prior to 2016.  In  August 2016, the Family Court Division of Jackson County issued an administrative order implementing a case management system for TPR cases, "to create a more efficient, predictable system in order to achieve more timely case dispositions, reduced waiting times and more meaningful appearances for litigants, attorneys, and the Court, thereby promoting the timely administration of justice."   The new system requires that a Permanency Hearing take place within 12 months of the child coming under the court's jurisdiction, where the court may determine whether the Children's Division provided a compelling reason that a TPR petition is not in the best interests of the child.  A post-permanency plan review hearing must be held no later than six months after the Permanency Hearing, and if the court determines that the permanency plan is termination of parental rights, the court "shall order the Juvenile Officer or Children's Division to file a Petition for Termination of Parental Rights" within 90 days.  Then, the case must be docketed no later than 30 days after the TPR Petition is filed; and the court may appoint an attorney to a party who is financially unable to hire an attorney.  If TPR is contested, the case will be scheduled "for final trial/disposition within nine months after the case is transferred. . . ."  No continuances shall be granted "except for compelling cause." 

The end result of this new efficient case management system, according to my colleague, is a TPR Factory.  Cases are rushed through the court system, and  Judgments more often than not terminate parents' rights, but without proof of grounds by "clear and convincing evidence," and without proof by a preponderance of the evidence that termination of a parent's rights is in the best interests of the child.  So, how to fix it?

II.   Find a case with really good facts that emphasize the inherent merit in your argument, and bring them to the appellate court's attention.

If a parent has abandoned a child, that parent may repent his or her abandonment, which is determined by a parent's intent, which in turn is decided by the court's review of "actual or attempted exercise of parental rights and performance of parental duties following the abandonment."  However, I have yet to find any recent TPR cases, where the court examined the parent's behavior both prior to and after the filing of the TPR Petition, and determined that the parent's rights should not be terminated because the parent has "repented his or her abandonment."  Rather, the trial courts appear to consider behavior that occurred after the Petition was filed as "token" efforts, and view "after the fact" correspondences between the parent and child "with great hesitancy." My colleague seeks to change this interpretation of the statute, which she believes permits courts to terminate parents' rights without clear, cogent, and convincing evidence.   

V. W.  spent many years in active drug addiction, and did not deny that she had previously abandoned her child, who was taken into custody at birth when he tested positive for illegal substances.  After the child was taken into custody, V.W. never provided  any financial support for the child, and the court  entered a no-contact order.  After the TPR petition was filed, V.W. found out she was pregnant again, and decided that to turn her life around.  Over the next two years, V.W. participated in every service offered to her, stopped using drugs, moved into a halfway house, finished her education, got a job working in the addiction field, and gave birth to and parented the second child.  No witnesses at trial recommended termination regarding the first child; but her rights were terminated regardless.  On appeal, the Court of Appeals found among other things, V.W. had not repented her abandonment, because the evidence showed only "short-term improvements" which occurred after the filing of the termination petition.

We lost that one. 

III. Find a case with even better facts and try again. 

 J.C. had not participated in the case when his child first came under the juvenile court's jurisdiction.  He became involved in the case five months before the TPR Petition was filed.  Per the social services plan, J.C. attended and completed a batterer's intervention course, paid child support, and visited the child regularly.  He found employment and an appropriate place to live, and again no witnesses testified that his rights should have been terminated.  Nevertheless, the court found that because "almost all of the father's actions that might lend some support to a finding that he has repented his earlier abandonment of the child have come after" the petition was filed; these actions deserved “little weight."  The trial court terminated J.C.'s rights.  

We filed the brief in that appeal last month.  Hopefully, maybe this time with slightly different facts--the main difference in this case being the father's payment of child support and visits with the child--the court of appeals will see the worthiness of our argument that a parent's efforts to repent abandonment after the Petition is filed, should not be automatically viewed as token efforts deserving of little weight in a court's decision to terminate a parent's rights.  Interestingly, my colleague was chatting with an appellate judge recently, who told her that he just didn't see very many TPR appeals.   

What that tells me, is that a court's traditional understanding of a legal issue will change only if someone challenges the validity of that traditional understanding.  We know that the Supreme Court just hadn't considered that gender-based discrimination was wrong, so one case at a time, Ruth Bader Ginsburg methodically changed that thinking.   We may not be arguing in front of the Supreme Court, but here in this pond, my fellow fish and I are working towards the appellate court's coming around to the idea that perhaps there is something wrong with the way this state determines whether and when parents should lose their parental rights. 

The viewpoint is perhaps idealistic, but the goal feels possibly reachable.  Tally-ho.