Appellate Advocacy Blog

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

Wednesday, May 29, 2019

Larsen & Fisher on Virtual Briefing at the Supreme Court

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So let's say you've just presented an oral argument to the United States Supreme Court. You had 30 minutes, and the questioning was heavy and dominated by justices who seemed determined to advocate against your client's position. Naturally, then, you didn't get to press every point you wanted to at the podium. What do you do? The answer, generally, is not to file a supplemental brief laying out what you woulda coulda shoulda said; Supreme Court Rule 25.7 prohibits post-argument briefing without leave of the Court, and having a way-homer moment typically won't cut it. How about this, though: go on a podcast devoted to the workings of the Court. Talk about the "cool stuff" you had "in the can" that you didn't get to at oral argument. Figure that, perhaps, Court insiders are listening. 

This is one piece of the phenomenon of "virtual briefing," the topic of a thoughtful forthcoming article in the Cornell Law Review by Jeffrey L. Fisher of Stanford Law School and Allison Orr Larsen of William & Mary Law School. Professors Larsen and Fisher trace the rise of virtual briefing—which they define as "online advocacy ... targeted at cases pending at the Supreme Court and outside of the normal briefing process"—as blogs and podcasts devoted to the work of the Court have proliferated. And they offer tantalizing evidence that virtual briefing might be reaching key players at the Court and influencing outcomes. #LawTwitter is mildly atwitter today about the piece's analysis in section II.A of SCOTUS clerks' Twitter habits: some 37 percent of clerks in the 2017-18 and 2018-19 terms had identifiable accounts, and 84 percent of these followed the accounts of podcasts, blogs, and other sources of virtual briefing. And section II.C of the piece presents anecdata about cases where virtual briefing appeared to make a difference. The piece's assessments of the issues raised by the phenomenon and possible paths forward are thorough and thought-provoking. 

May 29, 2019 in United States Supreme Court, Web/Tech | Permalink | Comments (0)

Tuesday, May 28, 2019

Getting to Know Your Audience

Lets harmonize

In my last post I talked about the importance of tailoring your arguments to your panel. This week, I want to provide some practical advice on how to get to know your justices.

The first step is to know what they have written on in relation to your case. Most likely, you are already doing this as part of your legal research. Taking the time to take notes and reference authoring or dissenting justices will let you know if one of your justices has written on your issue in the past, and the approach they have taken to similar types of analysis.

This step should be a starting place for your analysis, not an end-point. As discussed earlier, judges are people, too, and their prior opinions may give you the “what” of their past reasoning, but not necessarily the “why.” To figure that out, you have to go a bit deeper.

There are a dizzying array of resources available for that task. Be aware that some are put together with particular social agendas in mind, or based on a particular experience with a judge, and are thus likely slanted one way or another. Recourse to several tools or sources is thus necessary to get a complete picture. These resources include:

In addition to these online nationwide resources, you can also find background information in court biographies, state and local bar association websites, campaign websites (for those judges who are elected or retained by vote), social media websites, news outlets, and by simply “Googling” the judge. Offline, don’t forget your own network of peers who will have insights based on their personal experiences.

When you have looked over these resources, you will have a better idea of what makes your particular judge or panel of justices “tick.” You can then tailor your argument to their life experiences in a way that will help them better understand your case. Be sure to stay mindful about the proper ways to do so, as discussed earlier.

If you know of a good resource that I did not list, please let me know.

(Image credit: Gene Elderman, Washington Post, January 7, 1937)

May 28, 2019 in Appellate Advocacy, Appellate Practice, Legal Writing, Oral Argument, Rhetoric, State Appeals Courts, Web/Tech | Permalink | Comments (0)

Saturday, May 25, 2019

An Eye For Legal Writing: Five Ways Visuals Can Transform Your Briefs and Motions

Graph-FailureCredit: David Carder

“As bad as we are at remembering names . . . we have really exceptional visual and spatial memories.”― Joshua Foer

I've been hanging around with two (quite) different but excellent crowds lately: Judges and legal-tech folks. Of course, I talk about legal writing with both (because what else can I talk about?). And a fascinating question keeps popping up:

Why don't lawyers use more visuals in their legal writing? 

We all know that people love consuming information graphically. Studies show that the average person today spends about half their waking hours looking at some sort of media. So why haven't lawyers caught up?   

Many judges want more visuals. The judges I talked to say they would love to see lawyers submit graphs, tables, and other handy visuals that break down the facts or arguments in the brief. One judge said: “For Pete's sake, give me tables if there's data!” 

When lawyers smartly use visuals, judges say it helps them understand the points in a way writing can't. Judge Posner is outspoken on this, repeatedly calling out judges and lawyers alike for ignoring the communicative power of visuals.

Creating visuals is easier than ever with new tools. Back in the day, perhaps lawyers could justify avoiding this topic because making graphics was expensive and cumbersome. Who is going to spend six hours creating a chart for a motion that took four hours to write? 

But there is no excuse anymore. Because making spiffy flow charts, infographics, timelines, tables, and even simulated pictures is now as easy as a few clicks. Tons of tools have flooded the market--with many aimed straight at lawyers. For example, check out TrialLine, a timeline maker: 

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There are tools to make every sort of graphic you can imagine. Another of my favorites is Piktochart. You can bust out a graphic or modified photo in seconds. I made the below in about a minute. It went along with a summary judgment motion in a car accident case. One important fact was how many inches there were between two points on the plaintiff's car. Another was that a stoplight had been knocked down during the accident. I have no doubt the judge would notice both:

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Heck, Microsoft Word and PowerPoint have enough under the hood to do plenty. Here's a simple Word flowchart to help a judge understand how different actors fit together in a brief: 

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Here's a chart showing a judge how the key authority fits together to support a rule: 

CaptureWhen Should You Use Visuals?

Consider that a simple chart, graph, or table can drive home your key points in a way writing can't. We spend hours crafting prose that highlights our key facts and arguments so that our readers notice them. Imagine what a visual or two can do?

Many folks suggest that visuals can be used for three goals in legal writing: to organize, to interpret, and to highlight. 

  • Organize information. Use a table or chart to explain how different pieces of information (say, companies or cases) fit together. 
  • Interpret information. Use a graphic to explain how the reader should view some information through a lens. 
  • Highlight information in a new way. Use a graphic to represent the same information you relate in your brief, but do it in a way that's more memorable or digestible.  

Here are some specific triggers when you might consider using a graphic: 

  • You have data—graphs nearly always make data easier to swallow than writing about the results.
  • You want to make comparisons, connections, or contrasts between pieces of evidence or information. This is probably the most powerful, and least used tool. A simple table can drive home points like a party failing to submit any rebuttal evidence (one side of the table is your evidence, the other is their lack of it). 
  • You have a complex process to discuss—like an agency process, or a factual process that a party carried out. 
  • To show how a statute, regulation, or any other rule operates in steps.
  • Any time you can use a chart to plot out a decision tree for your reader with the options laid out.
  • Whenever you can come up with a visual that highlights key evidence or authority. 

Once you are open to visuals, the ideas will come flowing in. You can use them in all sorts of ways. 

To make it even easier to jump on this train, I have some examples of visuals you might consider including in your next brief or motion. I then offer a few final tips for doing visuals right. 

Timelines

Timelines may be the most helpful visual device for your readers. Nearly every case has a litany of important events, and the chronology is often muddled. Timelines give your reader a unique view of how developments unfolded—a view that, in some detailed cases, may be impossible to do well in prose. 

Take a look at this example from a legal tech company: 

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Tables

Consider using a table whenever you have information to compare or contrast, side by side. Examples include juxtaposing evidence, juxtaposing allegations, juxtaposing cases, juxtaposing arguments—or any other information that you can compare for effect. Tables are also great for presenting large amounts of data and sorting it into categories.

Here’s an example of tables done well. The lawyer used a table right in his brief to show the contradictions between what the plaintiff alleged in his complaint and what he said in a declaration:

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Here’s an example that uses a table to show, this time, an imbalance between policy interests (credit to professors Steve Johansen and Ruth Anne Robbins and their fabulous article): 

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Textual call-outs

Textual call-outs are powerful emphasis tools that will force your reader to remember something. Simply create a snippet of the most powerful phrases or sentences in your document, and set it off on the page. You can also use them instead of bullets.

Take this example, from Professors Johansen and Robbins again: 

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Charts and Graphs

Charts and graphs are useful whenver you have data or information to compare, contrast, or plot out over time or space.

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Maps

Maps are great for making any sort of spatial or location points. You can annotate a map to show where a company’s offices are or where important events unfolded:

CaptureImages and Recreations

There are many reasons why you might want to include an image in your brief. Good IP attorneys, for example, often use pictures to make points about how products or logos compare:

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Or take this image used to press a point about the extent of damage a client suffered:

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You can also create images to reconstruct important events. Like this one from SmartDraw:

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Cast of characters

When your case has a cast of characters, and it will be tricky for your reader to keep track of who is who, consider creating a legend at the outset of your brief (or as an appendix).

Include their name, their role, and any other helpful information.

Susie Park: CEO of GloboTech

Jim Hoffman: CFO of Harrington, a subsidiary of GloboTech

etc.

Visual Lists

If you have a list of points, reasons, or related facts, consider using bullets to summarize them. Bullets are a powerful emphasizing tool, making it easy for your reader to take stock of the size of the list. 

Judge Wood uses this device in one of her opinions, using bullets to make her readers notice the many reasons supporting her argument:

“The video recording of the police interrogation of Dassey, however, tells another story — one that is diametrically opposed to the state's tidy and selective summary. Among the many red flags are the following:

  • Dassey's answers to questions frequently changed at the detectives' prodding.
  • The officers laid a trail of crumbs (indeed, large sign-posts) to the confession they sought.
  • Whenever Dassey went off-course, the investigators would shepherd him back in the desired direction — at times with the use of fatherly assurances and gestures, and frequently by questioning his honesty.
  • On both February 27 and the detectives misleadingly conveyed to Dassey, whose ability to think abstractly was minimal, that his honesty was the only thing that will set [him] free.
  • Through subsequent questioning it became clear that honesty meant what the investigators wanted to hear.”

Flowcharts and Infographics

Flowcharts are amazing at showing how processes work. Use these to show steps or any other procedure being carried out:

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5 Final Tips to Make Visuals Work

1.   Always explain the visual beforehand (like a block quote). And do so thoughtfully. Let your reader skip the visual if they like. You should never force your reader to use a visual, lest they resent you for it.

2.  Consider whether it will be less risky, and easier, to include a visual as an attachment or appendix rather than inserting it into your brief. Usually, if it’s important, it can be inserted into your brief and formatted smoothly. But if you have any sense that your reader will balk at the visual, put it in the back.

3.  Use colors when you can—especially to show contrasts, similarities, and groupings.

4.  Label everything thoughtfully and concisely. Use legends that are as simple and stylistic as your prose.

5.  Keep it simple: Complex visuals can become harder to decipher than writing. If you are getting to that point, cut it. Otherwise your visual will become a distraction. 

6. Above all, as federal judges Jennifer Dorsey and Andrew Gordon pointed out in reviewing this article: Visuals are no replacement for good writing. Visuals can be a helpful supplement, but you can easily overdo it and shirk your writing. So lead with good writing and use thoughtful visuals if helpful.  

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

May 25, 2019 | Permalink | Comments (2)

Friday, May 24, 2019

Appellate Advocacy Blog Weekly Roundup Friday May 24

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Supreme Court Opinions & News

As reported in Newsweek, the Washington Examiner, and Task & Purpose, the Supreme Court declined to hear argument of a 2015 case involving challenges to the 1950s case Feres v. United States. In Feres, a case involving the Federal Tort Claims Act that allows citizens to sue the government, the Court determined the government could not be held liable for injuries caused to a military service member arising from incidents involving military service. The 2015 case the Court declined to hear involved former United States Coast Gaurd officer Walter Daniel suing the government after his wife suffered postpartum hemorrhaging and died hours after giving birth to their daughter at Naval Hospital Bremerton. Justice Thomas dissented, writing "Such unfortunate repercussions--denial of relief to military personnel and distortions of other areas of law to compensate--will continue to ripple through our jurisprudence as long as the court refuses to consider Feres."

The Supreme Court remanded Merck Sharp & Dohme Corp. v. Albrecht, a case involving plaintiffs injured by Merck's "bone-strengthening drug Fosamax," as reported here. The Court held 9-0 that the issue in question--who decides whether the case should move forward--is to be decided by the lower-court judge. 

PBS's Frontline documentary series aired Supreme Revenge this week, examining the confirmation hearings of the Supreme Court nominees since Robert Bork to Justice Kavanaugh. 

Federal Appellate Court Opinions and News:

The U.S. Court of Appeals for the Eighth Circuit reversed and remanded a lower court's denial of the plaintiff's motion for a preliminary injunction regarding an ordinance that restricted the number of yard signs a private property owner may have. The opinion is here

Practice Pointers & Tips:

@Sheldongilbert tweeted a list of judges on Twitter to help "demystify judging" and "teach the law."

@palmore_joe tweeted Dori Bernstein's article about how to conduct an effective moot court. 

May 24, 2019 | Permalink | Comments (0)

Wednesday, May 22, 2019

Practice Kindness

Practice kindness

I was sitting on the bench waiting for the bailiff to call the courtroom to order. They stood behind counsel’s table. They were nervous. She took a yellow pad out of her bag, placed her bag on the floor, and sat down. He sat down next to her. He twisted in his seat. Reaching into the backpack sitting behind him, he pulled out two bottles of water. He set one bottle in front of himself and handed the other one to her. She seemed surprised. 

She smiled and whispered, “Thank you.” 

He nodded. 

“All rise,” shouted the bailiff. 

He didn’t know that I had observed the small act of kindness.

He didn’t know this small act conveyed much about his character.

After the argument, I commended him for giving his co-counsel a bottle of water. I did so in front of the others. I wanted them to know how important kindness is in practice.

Waterbottle

Much has been written about the need for civility and professionalism in the law. Wild stories circulate about attorneys’ bad behavior. The theme seems to be that we lawyers are jerks and have been for a very long time. Now, judges are cracking down. Disciplinary boards are intervening. 

“Don’t be like that lawyer.”

Instead of “don’t,” maybe we could focus on “do.” 

Please be like my student. He was moments away from delivering his first oral argument before a panel of three judges. He was going to be graded on his delivery. He was anxious. Yet in the moment, he thought about someone else. There was nothing to be gained by sharing water with his classmate. He was kind for no good reason.

His gesture caught my eye because his kindness was unexpected in this arena. It made me think about how we are always “on” when we are in court. We can do things that impact our credibility as lawyers without even knowing we are doing so. Our behavior communicates who we are as people and as lawyers.

Be kind especially when you think no one is watching.

Be kind where and when it is unexpected. 

Be kind and change what people think of lawyers.

Be kind.      

Smitha_6876 (1)Amanda Sholtis teaches legal analysis and writing at Widener University Commonwealth Law School in Harrisburg, Pennsylvania.  You may contact her at alsholtis@widener.edu.

May 22, 2019 | Permalink | Comments (0)

Monday, May 20, 2019

Conquering A Fear of Public Speaking

I hate public speaking.  It is, perhaps, one of my greatest fears (that and snakes....).  So, when I took a job teaching, I wondered what on earth I was doing in a profession where I had to talk all the time.  Over seven years later, I still get occasional nerves the first day of class or when I am doing a big speech to an outside group, but that crippling fear that made me want to pass out or throw up (or both), is largely gone.  What has helped me the most has been practice, preparation, and more practice.  By practice, I mean continually accepting speaking engagements or volunteering, for example, to help the dean read names at the awards ceremony.

I know that I am not alone in my fear of public speaking, even among lawyers.  Professor Heidi K. Brown, the Director of Legal Writing at Brooklyn Law School and author of The Introverted Lawyer, recently published an article in ABA Journal that recounts her own struggle with her fear of public speaking.  For Prof. Brown, the advice to just prepare more or to "fake it till you make it" didn't work.  However, she found success in "adopting new mental and physical strategies for stepping into performance events authentically."

First, she rejected the "soundbite messages to simply overprepare, overpractice, fake it and view our nervousness as the world's greatest motivator."  Instead, she identified and wrote down the nasty self-talk that she heard when she did performance events, like "they're going to think that you are incompetent," and identified the sources of those messages.  Once the messages were identified and sourced, they could be recognized and deleted as "outdated and no longer relevant."

She then identified areas in her life where she felt she had "swagger."  Now, when she feels that old, outdated, abusive self-talk come in, she replaces it with the swagger that she feels at those positive times.

Third, she adopts a "power pose" that helps calm her down.  While she still might get nervous at times, she no longer "obssess[es] about outcomes," but rather "assess[es] whether [she] satisfied [her] 'performance process' checklist."

I appreciated Prof. Brown's perspective, and have already shared it with a student who seemed extra nervous during oral argument practice.  I plan on reading Prof. Brown's book soon, to get other tips.  While I will still tell my students to prepare, since I think that a lack of preparation is often their source of nerves, it is helpful to know that for some people that mantra doesn't work.

Do you struggle with oral argument nerves?  Feel free to share in comments your best tips for overcoming those nerves!

 

 

May 20, 2019 | Permalink | Comments (1)

Saturday, May 18, 2019

There, but for the grace of God, go I

A few weeks back, Deputy Assistant Attorney General Thomas Ward argued before the Fourth Circuit.  What followed "May it please the Court," has become a lesson for appellate practitioners everywhere:  Always remember your audience. 

The case is Sanders v. United States, No. 18-1931.  It's a pretty important case in its own right.  Sanders is a Federal Tort Claims Act case.  The plaintiffs alleged that the Government had failed in its duty to conduct a background check on Dylann Roof, the man who murdered nine African-Americans in Charleston, South Carolina. The plaintiffs contended that the Government's failure had allowed Roof to buy the guns used in the shooting.  

The Government contended that the FTCA's discretionary function exemption applied and, thus, that there was no liability.  That argument carried the day at the district court, and the Government relied on the same argument on appeal.  The panel was relatively conservative, so the Government should have felt pretty good about its odds.  

The Fourth Circuit's Chief Judge, Roger L. Gregory, wasn't having it.  He asked a particularly charged question, which ended with Judge Gregory calling the Government's argument "absurd."  That exhortation drew an eyebrow-raising comment from Mr. Ward, who responded, "Your Honor, I know you're not trying to humiliate me by that tone."  What followed was a well-deserved tongue lashing from Judge Gregory, ending with the command to "just answer [the] question." 

Mr. Ward's Sanders argument is a great example for us all.  It's tough to see another attorney go through something like that.  There, but for the grace of God, go I, right?  Even so, the exchange offers an important lesson.  Always keep your audience in mind.  Remember that most judges are warm, friendly people, but that every so often one will find your considered position offensive.  You've got to do your best to put these personal differences behind you.  Otherwise, your argument will end up as a footnote to the much more juicy exchange you had with the bench.  I know I remember very little about the Sanders argument, other than the attention-grabbing bit. 

May 18, 2019 in Appellate Advocacy, Appellate Practice, Moot Court, Oral Argument, Rhetoric | Permalink | Comments (0)

Friday, May 17, 2019

Appellate Advocacy Blog Weekly Roundup Friday May 17

WeeklyRoundupGraphic

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 Opinions and News:

This week included the 65th anniversary of the Court's landmark decision in Brown v. Bd. of Education.

 

Franchise Tax Bd. Of California v. Hyatt:

On Monday, the Court overruled a 40-year-old precedent and ruled that states may not be sued in the courts of other states.  The case concerned a long-running dispute between Gilbert Hyatt and California’s tax authorities over the tax authorities’ power to collect taxes from him after he asserted that he had moved to Nevada and the authorities doubted his claim and began an aggressive investigation.  The ruling has little direct impact on the actual issue presented, as many states already grant immunity to other states and shield them from lawsuits, and very few cases even arise where somebody tries to sue a state in another state’s courts.  However, the decision could have far-reaching impact based on its discussion of when precedents may be overruled. The Court’s conservative majority voted to overrule an earlier decision, even while acknowledging that litigants had relied on it and incurred a decade’s worth of expenses as a result.  Justice Breyer authored a dissent that both argued against overruling the precedent and expressed concern about what opinions the Court might decide to overrule next, “only because five members of a later court come to agree with earlier dissenters on a difficult legal question.”  Some commentators believe the Court’s ruling may foreshadow future rulings on reproductive rights and Roe v. Wade.

Links to more:

·         NY Times

·         Bloomberg

 

Apple case:

On Monday, the Court ruled to allow an enormous antitrust class action against Apple to move forward, allowing customers to attempt to prove that Apple used monopoly power to raise the prices of apps purchased for the iPhone.  The lawsuit itself is still in its very early stages, so this ruling does not mean much in terms of the actual outcome or its impact – but the Court’s vote is significant because it allows the case to proceed and allows the biggest legal challenge to Apple in the United States to move on, focusing on the fees that Apple takes on sales made in its App Store..  The opinion was also significant because the 5-4 majority included Justices Kavanaugh in the majority and Gorsuch in the minority.

Links to more:

·         USA Today 

·         AP 

·         Wall Street Journal 

·         Washington Post 

·         Bloomberg

·         NY Times

 

Federal Appellate Court Opinions and News:

The Fourth Circuit Court of Appeals issued a decision finding DACA recission invalid as arbitrary and capricious; President Trump nominee Judge Richardson dissented: 

 

 Practice Tips:

Howard Bashman (@HowAppealing) posted an article this week discussing nonprecedential appellate court opinions.

Matthew Stiegler (@MatthewStiegler) posted an article this week discussing en banc arguments. (HT @HowAppealing)

 

#AppellateJobs:

U.S. Dept. of Justice U.S. Attorney’s Office in Birmingham, AL (USAO Northern District Alabama), seeks one or more Assistant United States Attorneys in the Appellate Division, to practice in the Eleventh Circuit:  https://www.justice.gov/usao-ndal/job/assistant-united-states-attorney-appellate

U.S. Department of Justice U.S. Attorney's Office in Ohio (USAO Southern District Ohio), seeks one or more Assistant United States Attorneys in the Appellate Division, to practice in the Sixth Circuit: https://www.justice.gov/legal-careers/job/assistant-united-states-attorney-appellate-5

New Mexico Supreme Court and Court of Appeals seek Chief Appellate Attorneys:  https://www.nmcourts.gov/jobs.aspx

May 17, 2019 | Permalink | Comments (0)

Tuesday, May 14, 2019

Tailoring the Argument to the Panel

Justice Blind

As the persistent reader may have noticed, I spend a fair amount of time thinking about who my judges are and how they are selected. The topic interests me from a larger political and social perspective, but also from a professional one. I want to know who I am speaking to because I want to know how best to help them to understand my client’s case. I want to know what they will find most interesting and persuasive. I also want to win.

One of my underlying degrees is in communication, and that field of study is heavily involved in audience analysis. Aristotle considered audience analysis so important that one of the three books that make up his seminal work, Rhetoric, is devoted to the topic. Aristotle was convinced that the only way to persuade an audience was to understand it, and tailor the argument to its beliefs as impacted by its background.

Modern communication theory continues to teach the same lessons. Kenneth Burke argued that to be truly persuasive, a speaker has to identify so closely with the audience that they become “consubstantial” – a word drawn from the religious world. Communications theorists stress the importance of knowing and identifying with the audience, because only by fully doing so can a speaker really be sure that the audience will understand the same ideas that are being spoken in the same way the speaker understands them.

With that background, I have always believed that it is important to know and understand my panel before oral argument so I can tailor the argument to be more effective. That means knowing and understanding the judicial mindset in general, and the individuals that make up the panel in particular.

At the most general level, we know that are panels are composed of justices who are trying to get through a full docket of cases and write the most correct opinions possible. From this we know certain things about our audience and their needs.

First, the justices need to receive succinct, accurate information that will assist them in doing their job efficiently. It needs to be apparent to them that you are going to give them practical help with that task and not waste their time.

Your panel will also generally be interested in the same issues that all judges are interested in by nature of their role. Thus, they will be concerned with understanding the factual data (is there a problem here? Why?), the legal data (does the legal precedent give me the authority to solve the problem?), the warrant (is this legal solution just and correct?), the consequences (will the solution make things better or worse?), and the limitations (what is the strength of the other side’s position?) of each argument.

But judges are more than just rational decision-making cogs in the judicial machinery of our nation. They are people. And people are complicated things.

In 1881 Oliver Wendell Jones, Jr. noted in his famous work "The Common Law," that:

The life of the law has not been logic; it has been experience. The felt necessities of the time, the prevalent moral and political theories, intuitions of public policy, avowed or unconscious, and even the prejudices which judges share with their fellow-men, have had a good deal more to do than syllogism in determining the rules by which men should be governed.

This proposition is surprisingly controversial. According to a National Law Journal article, the Seventh Circuit at the time refused to disclose the names of the judges on its panels in part because it encouraged “ad hominem arguments” that it considered improper in the context of delivering arguments that are being presented to the circuit as a whole. The Fourth and the Federal Circuit also withheld that information until the day of argument.

Most circuit courts, and most state courts of appeal, do disclose the panels. Some disclose them as early as the notice of setting, while others stagger the notice until closer to the actual argument.

This difference in practice seems rooted in a different perception of the role of individual judges. If judges are truly and perfectly impartial, fair, independent, and professional, then there is no need to know anything about them as individuals. But if they are humans attempting to fulfill these idealized roles, then they will be influenced by their position and past, and those attempting to communicate them will ignore those influences at their (client’s) peril.

Chad Oldfather, a professor at Marquette University Law School, has written about this tension. See Chad Oldfather, “Judges as Humans: Interdisciplinary Research and the Problems of Institutional Design.”  36 Hofstra Law Rev. 125 (2007). Building on the work of a political scientist named Lawrence Baum, Oldfather considers judges to be human, and not fallible, and thus subjected to influence in the human, fallible ways other humans are influenced.

Baum’s work concludes that judges are influenced by their own audiences of friends, family, the bar, their peers on the bench, the social groups they consider important (including political parties), and so on. In other words, judges have their own audiences that they must consider in their decision making. Noting the work of other disciplines, like the implicit bias research done in the world of psychology and neurology, Oldfather concludes that a “one-size-fits-all” approach to judicial decision making (and thus persuasion) is dangerously insufficient.

How, then, does the advocate analyze a panel and deliver the argument “to the court” while focused on the individual judges and maintaining a properly respectful approach?  In a word – carefully. Many of the changes that you will make based on your panel’s composition are implicitly directed towards the judges, rather than explicitly naming the judges. You can tailor your argument to the points they have raised in authored opinions and publications, or that they have asked in other oral arguments, or that may be of particularly interest or familiarity to them because of their backgrounds, all without mentioning the judges by name. This should be the default approach.

Certainly assuming that a judge must rule a certain way because they have authored an opinion in the past that says something helpful is the wrong approach, particularly if you express that opinion by calling them out at oral argument. Knowing that the judge has struggled with a particular position in the past and mentioning that discussion in the prior case is riskier, but still likely safe, so long as you suggest that you have an answer for the court and do not single out the judge as being in some way bound by that prior position. Knowing a judge’s background as a scientist or golfer or wine enthusiast and then referencing a scientific or golfing or oenophilic analogy is good practice. Suggesting that the judge is bound by a law review note they wrote as a student is not.

In other words, try to tailor your argument for the individual judges based on what you know of their concerns and interests, but don’t take up the type of ad hominem attack or personally-directed argument that the Seventh Circuit seems to be concerned about. And be aware of the audience that the judges are writing for, as well, as they have their own expectations that need to be met.

No human judge can meet the Olympian ideals set for them, but they try. And most are remarkably successful. They are still human, however, and relating to our judges as humans, while maintaining respect for the ideals they are striving to achieve, is an important part of persuasion.

(image credit: An engraving of "Justice" from "Cardinal Virtues," a work by Nicolaes de Bruyn around 1648-1656).

 

May 14, 2019 | Permalink | Comments (0)

Monday, May 13, 2019

Three Tips for Starting the Brief: Moot Court Edition

Getting started on any task can be tough. For a first-time appellate brief writer, getting from a blank screen to a completed brief may seem nearly impossible. My current series of blog posts (beginning with Questions Presented here), aims to compile good appellate advocacy and legal writing advice for briefs and then frame it with moot court particularly in mind.

Today’s post deals mostly with process: starting at the beginning, but with the end in mind. What is the goal for the final moot court brief? A polished, professional, persuasive product that fully addresses the issues presented in the problem. As I mentioned in the Question Presented post, find the relevant competition’s score sheet if available, and use it as a guide. Reviewing past winning briefs is also very helpful. It pays off to spend some time gathering resources.

Often after moot court briefs have been submitted, I have reviewed them with students. Many miss the mark. There are any number of things that can go wrong, but common themes of lacking briefs revolve around procrastination and bad process. Things veered off track early, and the final product suffered as a result. Here are three categories of advice for starting a moot court brief well, compiled from prior Appellate Advocacy posts and my own experience.

1. Organize and Focus the Research

Unlike real-world appellate practice, moot court students start off with the record compiled, issues identified, and a head start on some of the relevant authorities, which are given in the decisions below. After reading the problem carefully, create a folder with all of the cases in the problem and read them all. Typically, only a small number of the important cases are given, so expand the research using secondary sources and citators. DO NOT JUST USE THE GIVEN AUTHORITIES UNLESS IT IS A CLOSED UNIVERSE PROBLEM. A well-written brief will have a breadth of authority and be well-supported.
Also, read and re-read the issues certified for appeal. Stay focused on those issues (see tip #3). If the problem is well-written, there will be authorities and facts on both sides of the issue. Find a system that works to organize the material and dig in. Once ready to write, find and fill holes using good outlining techniques. I will address the argument organization more in another post.

2. Conquer Procrastination

Many of the issues I see with student briefs can be traced to procrastination. When tables are generated in the middle of the night before the brief is due, it can get ugly fast. Sloppy writing, thin research, and mechanical errors all get blamed on running out of time. These are also some of the easiest points to lose from a brief grader. This post on productivity hacks gives great tools and advice for writing, including a step-by-step drafting plan. I agree that breaking the brief into smaller bite-sized can help make it more manageable.

Adding interim deadlines beyond the competition deadline can also help. Teams should meet and agree on dates to finish particular tasks for the brief. These internal deadlines help spread the workload over time. For some students, external deadlines are most motivating. When I directed a moot court program, I required teams to submit the final brief to me in a sealed manila envelope 48 hours before the competition deadline. I did not give them feedback, as that would violate most competition rules. The purpose of the requirement was solely to force them to have the brief completed in time to do real editing.

3. Play the Game

I encourage my students to try to look behind the problem. What was the problem writer trying to focus attention on? What is the focus of the opinions below? What facts are present and what legal tests utilize those facts? My advice is to focus on those things. I call this “playing the game.” Besides arguing both sides, this is one of the biggest differences I see between moot court and real-world appellate advocacy.

As much as problem writers try to foresee every issue that teams will see, occasionally they do not. In rare instances, students might find issues (or think they have found issues) that could strip the appellate court of jurisdiction or moot the entire case. This is a problem writer’s worst nightmare. If those issues are not certified for appeal, it’s likely the problem writer did not foresee them. I applaud students who spot those issues, and of course, they are critically important in appellate advocacy. The problem writer, however, is usually the bench brief writer, or at least in close communication with the bench brief writer. Staying focused on the issues certified is likely to garner the highest score, because the problem writer did not write a 40-page problem to have it disposed with a single case or on a technicality.

For a serious, uncertified issue, a short preliminary section addressing it is likely the best approach, before moving on to the other sections where the anticipated arguments are addressed. At oral arguments, there are times when a surprise standing or mootness issue can be utilized effectively. But at the brief stage, try to play the game.

Any other tips to the mooters out there once they have their competition problems?

May 13, 2019 | Permalink | Comments (2)

Friday, May 10, 2019

Appellate Advocacy Blog Weekly Roundup May 10, 2019

Appellate Advocacy Blog Image

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 Opinions and News:

  • Tonja Jacobi and Matthew Sag share some interesting statistics about oral arguments in October Term 2018, comparing the ratio of oral advocates and how many words they use. The article is at SCOTUS OA
  • Tom Goldstein, Kevin Russell, and Amy Howe discussed on SCOTUStalk (podcast) about the Court's case next term centering on the relationship between federal employment discrimination laws and LGBT employees. 
  • Nina Totenberg has this piece on retired Justice Stevens. (Note, the article includes an embedded YouTube video of the 99-year old playing ping pong.)

Appellate Court Opinions and News:

  • Michael Park was confirmed this week to the 2nd U.S. Circuit Court of Appeals. He is President Trump's 39th circuit court judge to be confirmed. Read about it here

Other Appellate Highlights:

  • If you're near Miami this week, the ABA is holding its 2019 Appellate Practice Regional CLE Program at Greenberg Taurig, LLP.  Find more information here

May 10, 2019 | Permalink | Comments (0)

Tuesday, May 7, 2019

Artificial Intelligence for the Brief Writer

 

Robot Until recently, whenever someone referenced artificial intelligence (AI), I imagined super robots taking over earth. I did not have a clear idea of what AI is or how it affects law practice. According to a report written by Daniel West for the Brookings Institute, AI is a machine that thinks and responds “to stimulation consistent with traditional responses from humans, given the human capacity for contemplation, judgment, and intention[.]” AI “software systems ‘make decisions which normally require [a] human level of expertise’ and help people anticipate problems or deal with issues as they come up.” Automated machines complete tasks as they are programmed to do, but they do not get any “smarter.” AI machines complete tasks, but they also “learn” how to perform better for next time.

 

Duquesne University School of Law recently hosted various scholars from across the country to discuss artificial intelligence’s impact on law practice.  At Duquesne’s conference, I learned how AI helps attorneys practice more efficiently and effectively.  Below are some AI tools for appellate practice.  If you have experience using these systems, let me know what you think.  Leave a comment or email me at alsholtis@widener.edu.

ANALYTICS

Before AI analytics, an attorney would ask another attorney about a particular judge or a strategy for a certain type of case.  Now, this information is available with the click of a button. Several legal research search engines offer tools to assist attorneys identify persuasive authorities and arguments. 

Litigation Analytics by Westlaw Edge

With Litigation Analytics within Westlaw Edge, you can search for how cases similar to your case were resolved and the investment involved in managing the case.  You gain access to the documents filed in similar matters to help you identify successful arguments and counter-arguments.  You can obtain information about a particular judge, her background, how she has ruled on cases similar to yours, and the authority she has cited in her opinions.  I have access to Westlaw Edge and Litigation Analytics through my law school’s subscription, so I do not have information on pricing.

Clerk by Judicata

Clerk by Judicata offers data similar to Litigation Analytics.  Rather than search a case type or judge like you do with Westlaw, you upload your brief. The software analyzes the authority you cited, reviews your quotations and citations for accuracy, and compares your case to similar types of cases.  It sends you an analytic report and suggests action items to help improve your brief.   Judicata covers California right now but intends to expand to other states.  You can request a free trial.  Pricing information is not available on its website.

EDITING

WordRake

WordRake is like a spell/grammar check, except it is designed for lawyers by lawyer Gary Kinder.   According to its website, WordRake “tightens, tones, and clarifies your writing.”  This would be a great tool for quickly cutting down your briefs in response to the shrinking word-limits imposed by the federal courts.

After installing the software, it operates as a function on the toolbar within Microsoft Word.  You “rake” your document for clutter and it provides line-by-line editing suggestions.  The red-line edits look similar to editing suggestions done with the track-changes function.  You then accept or reject the suggested edits.  Click here for a short video demonstration.  You can try WordRake for a free, seven-day trial.  Yearly subscriptions are available for about $130.  You can pay more to add WordRake to Outlook.

Brief Catch

Imagine you could have your brief edited by Ross Guberman, author of Point Made: How to Write Like the Nation's Top Advocates. You can if you subscribe to Brief Catch. One user described Brief Catch as “Word’s editing tool on steroids: It imbues the word processor with the wisdom of Point Made[.]”  It operates similarly to WordRake as a plug-in within Microsoft Word.  You run the review of your brief and the software provides grammar and writing suggestions that you can ignore or accept.  It also provides you with several scores and indices to help you get a sense of your overall writing proficiency and inspire you to improve with each use.  Brief Catch tells you your “Reading Happiness Score,” “Sentence Length Index,” Flow Index,” “Punchiness Score,” and “Plain English Index.”  Watch a short video demonstration by clicking here.  Brief Catch is only available only for Microsoft Word on PCs.  You can try it for free for two weeks.  An annual subscription is $240.

May 7, 2019 | Permalink | Comments (2)

Monday, May 6, 2019

Ethos & Attire in Court

Don't worry, this post isn't about what color suit and shirt you should wear during an appellate argument (I mean, we all know the answer is charcoal or blue with a white shirt).  This post is about whether you should wear any sort of affiliation pin on that (charcoal or blue) suit.  Should you indicate your support for the Marine Corps, your alma mater, breast cancer research, the Federalist Society, Black Lives Matter, or any other number of groups by wearing some sort of lapel pin?

As I recently learned, the answer is no.  A few weeks ago, I was listening to judges talk to students about appellate advocacy.  One of the students was wearing a lapel pin for one of the branches of the military. A judge commented that the student shouldn't wear the pin at oral argument, and the judge's colleague agreed.  I was surprised by this advice, as I had never heard it before from a judge.  I asked around on a moot court listserv and got surprised responses as well. But, as I reflected on the advice, it made sense.  It especially made sense for attorneys who are appearing before a judge for the first time or who are unknown in the jurisdiction. 

Imagine a scenario where an appellate attorney argues a case before a panel of judges, two of whom have been active in an organization like the Federalist Society or the American Constitution Society.  The attorney dons a lapel pin from that organization.  As he stands up to argue, he is sending a signal to the judges that he is one of them--that he is part of their society and ascribes to the same ideals as the organization that he is representing on his suit collar. It boosts his ethos with the court.

Some trial court judges have specific rules preventing attorneys from wearing "political pins" in court.  One listserv member shared a story about an attorney in Ohio  who was held in contempt of court for wearing a Black Lives Matter pin into such a courtroom in 2016.  Although the attorney appealed the decision, the case was settled and she stated that she "now understands 'that a courtroom is a nonpublic forum over which [the judge] had the authority to dictate decorum.'"

Without digging into the constitutional issues, the no pins policy seems to be a prudent one.  The logos, ethos, and pathos of an attorney's argument should carry the day, rather than the "I'm part of your secret society" message that some lapel pins might attempt to convey.  I do think, however, that some pins, especially school affiliation or military ones, become less of an issue with attorneys who practice regularly before the same judges.  My husband was a prosecutor for many years in Virginia.  He practiced primarily in juvenile court before the same three judges.  After a few years of practice, I am sure that the judges didn't care if my husband had a lapel pin reflecting his military service--they knew that he was reliable, dependable, and prepared based on the years of seeing him in court.

For my students who are still building their ethos, I will now be telling them to (1) button their jacket when they stand to address the court, and (2) be cognizant of wearing a lapel pin that might be seen as an attempt to improperly influence a judge.

May 6, 2019 in Appellate Advocacy, Appellate Practice, Law School, Moot Court, Oral Argument | Permalink | Comments (0)

Sunday, May 5, 2019

Want People To Actually Read Your Legal Writing? Use Two Types of Sentence Variety

So-Much-Fruit-To-Grow-And-Eat-So-Its-Time-To-Start-Planting-A-Variety-Of-Fruit-Trees-Now

The secret of happiness is variety, but the secret of variety, like the secret of all spices, is knowing when to use it. - Daniel Gilbert

Monotony is tiresome. It's as true for speaking as it is for writing. Good writers get that. Take a look at a snippet from Malcolm Gladwell's excellent article in the New Yorker last year. Consider the ebb and flow of each sentence's length. Notice the sprinkling of punctuation marks and the differing structures. And pay attention to how this elegant variation makes you feel: 

Capture

Could Gladwell have conveyed the same details using predictable, monotonous sentence lengths and structure? Sure:

The woman resides in Waseca, Minnesota. On April 29, 2017, she was washing dishes and observed a man walking through her backyard. The man had a backpack and carried a fast food bag. He was walking in the direction of the MiniMax Storage facility next to the woman's home. The woman was concerned about the man walking through her backyard. [and so on]

That's how most lawyers would have written it. But through variety--and decisions about what words Gladwell thought made good bedfellows in each sentence--those same details leap off the page and into your mind. This variety mimics good oral storytelling: It builds anticipation, pauses, and excitement. Those two longer sentences at the start pack a lot of details in, but the language and structure are so simple you can keep up. The images play out on a reel without any pauses--like it happened for the woman that night. And see how the short, punchy sentence "Something about him didn't seem right" stops you short after the long visual narrative? Then some questions and a mix of longer and shorter sentences rounds out the paragraph. 

Legal writers often fall into a rut of boring patterns. They write with the same sentence structure or length, over and over, all through their brief. Some of this comes from our infatuation with short sentences. Strunk and White say to "omit needless words"--but many lawyers take that to mean "omit every possible word." Good legal writers know it's more tricky than just writing short sentences. That is just choppy. Real choppy. Like this. It starts. To get. Annoying.

The point is to have a purpose for every word, and every word that you put it in a sentence with, and every punctuation mark you include with the words. There are good reasons to combine two ideas in the same sentences: to compare, contrast, build on an idea, or emphasize similar points. Longer sentences make a more detailed point--a point that you want to explain or give some nuance and character. Other times, there are good reasons to write simple sentences that deliver a single idea. Short sentences punch. They pop. 

Good writers inject smart variety to build engaging prose. Prose that sounds and feels more like good oral storytelling than it does the instructions for your vacuum. In other words, shorter to medium sentences with some occasional variety spattered in for engagement or purpose. And it's not just variety in length, but also in form. So you'll see some coordinating conjunctions, some em-dashes, and a sprinkling of semi-colons and colons.   

Here is an example of a legal writer ignoring these principles. The entire paragraph is two jammed-together sentences with so many ideas spurting out that the reader is sure to get lost: 

Plaintiff Randy Springer defaulted on his home loan and defendant U.S. Bank National Association, the current holder of Springer’s mortgage note, began foreclosure proceedings on Springer’s home.  Springer brought this action, pro se, to stop the foreclosure, and he claims that there is a problem with U.S. Bank’s chain of title and that U.S. Bank thus has no basis to foreclose, finally arguing that U.S. Bank and the other defendants committed fraud, that they are violating Nevada foreclosure laws, and that Springer is entitled to a declaration of the parties’ rights.

Look at what a difference you can make just by paying attention to the average sentence length, including some variety, and isolating ideas. It’s not that every sentence is super short. Or that some sentences can’t have a couple ideas or a list. But the sentences tend to be shorter and simpler, and only one sentence packs in more than a couple ideas: 

Plaintiff Randy Springer defaulted on his home loan. So defendant U.S. Bank National Association, the current holder of Springer’s mortgage note, began foreclosing on Springer’s home.  Springer brought this action, pro se, to stop the foreclosure. He claims that there is a problem with U.S. Bank’s chain of title and that U.S. Bank thus has no basis to foreclose.  He finally argues that U.S. Bank and the other defendants committed fraud, that they are violating Nevada foreclosure laws, and that Springer is entitled to a declaration of the parties’ rights.

To help you on your path to variety, I have two sets of moves for you this week. Some ideas to inject some more elegant variety into sentences, and a few ideas for punctuation, too. 

Sentences

Step 1: Keep your sentences mostly on the shorter side (less than 20 words).

Most writing authority suggests averaging about 20 words or less per sentence. I see that in the best legal writers’ briefs and the research agrees. You are better off keeping most of your sentences shorter and simple so that each idea is spoon-fed to your reader. This is not an exact science, it’s just a way to give yourself a sense about when sentences start becoming so long that the ideas may tend to trail off and readers can get lost.

If 20 sounds like a small number, it’s really not. You can pack a lot into 20 words. 20 words can be too many.

Here’s a 20-worder:

The court issued three declaratory rulings that each implicated a different legal doctrine or theory, each in a different way.

That’s still a lot of content, and good sentences will often come in at less.

Step 2: Avoid long sentences close to each other that will create too much drag.

The occasional elegant-long sentence can be useful. Longer sentences help you contrast or compare ideas or concepts, they allow you to weave together ideas that are more persuasive taken together, and they are a vehicle to offer examples for your reader. Like the sentence you just read.

So don't shy away from the occasional longer sentence, just make sure you punctuate and organize it so well that your reader won't get lost.  Em-dashes, semi-colons, a coordinating-conjunction comma, or a colon are all good tools for creating clear divisions and organization in your sentences. These punctuation marks can be almost as clear as a period. 

And if you do use an occasional long sentence, avoid piling them on top of each other.  So avoid this:

In their written response to defendant’s motion, plaintiffs relied, in part, on Laffoon v. Bell & Zoller Coal Co., 65 Ill .2d 437, 447, 3 Ill. Dec. 715, 359 N.E.2d 125 (1976), where our supreme court held that section 5(a) ‘‘confer[s] immunity upon employers only from common law or statutory actions for damages by their immediate employees.’’ (Emphasis added.) Confronted with that legal authority, defendant stated in its reply to plaintiff's’ response that its prior reference to its ‘‘ ‘obligations’ ’’ under section 1(a)(3) was ‘‘merely to the fact [that] the Act requires there to be coverage for workers/employees generally and [was] in no means intended to imply that [ENS] was uninsured.’’

Two heavy sentences together create too much drag. Instead, break up the ideas as much as you can with periods or hard punctuation breaks (like semicolons, colons, or a comma and conjunction):

In their written response to defendant’s motion, plaintiffs relied, in part, on Laffoon v. Bell & Zoller Coal Co., 65 Ill .2d 437, 447, 3 Ill.Dec. 715, 359 N.E.2d 125 (1976). There, our supreme court held that section 5(a) ‘‘confer[s] immunity upon employers only from common law or statutory actions for damages by their immediate employees.’’ (Emphasis added). Confronted with that legal authority, defendant attempts to sidestep by pointing to language in the statute: ‘‘ ‘obligations’ ’’ under section 1(a)(3) refers ‘‘merely to the fact [that] the Act requires there to be coverage for workers/employees generally and [was] in no means intended to imply that [ENS] was uninsured.’’

Step 3: Include some variety in sentence-length every paragraph or so.

The final basic mistake that many legal writers make is to ignore the power of variety. Fluency studies suggest that some variety in sentence length (and, as we will see next, punctuation) makes reading more engaging and easier to get through.

So when you’re editing, make sure each sentence is not nearly-identical in length. You are looking for a blend of mostly shorter, the occasional very-short, and the occasional elegant long (that is still organized with hard-break punctuation to keep ideas straight). 

Punctuating Perfectly

Punctuation is part of the machinery of your sentences. And refining this machinery has a payoff. Using punctuation right can make your writing far more fluent, more engaging, and it can also help you highlight ideas so that they stick. 

Step 1: Vary your punctuation.

Just like our sentence length, the best legal writers and science both suggest spicing up your prose with different punctuation. You shouldn’t randomly sprinkle semicolons and em-dashes throughout your paragraphs. But do replace the occasional period or comma with a different device—where it will be helpful to organize, compare, or contrast ideas.

Step 2: Use semicolons to contrast two ideas or concepts.

Semicolons separate two independent clauses and the occasional semicolon helps make your writing engaging; it also helps form a connection between two ideas.

So use this mark when you want your reader to see two ideas compared, contrasted, linked, or elaborated on. This last use is often ignored; semicolons can be a great way to continue building on an idea while keeping each of the constituent parts neatly separated.

Here is an example of a contrast semicolon from Justice Kagan:

The word “applicable” is not necessary to accomplish that result; it is necessary only for the different purpose of dividing debtors eligible to make use of the tables from those who are not.

And here is an example of the semicolon-as-expander, using the mark to build on an idea:

Deceit such as tall tales that defendants told about Q-Ray Ionized bracelets will lead some consumers to avoid treatments that cost less and do more; the lies will lead others to pay too much for pain relief or otherwise interfere with the matching of remedies to medical conditions. - Judge Easterbrook

And this classic: 

To exclude others from the enjoyment of a chattel is one thing; to prevent any imitation of it, to setup a monopoly in the plan of its structure, gives the author a power over his fellows vastly greater… - Judge Learned Hand

Step 3: Use em dashes to emphasize a critical point or idea.

The em-dash is the neon sign of punctuation. Use em-dashes for emphasis at the end of a sentence for a dependent clause, or to set off an interjecting thought with emphasis.

Em dashes also create white space in your sentence (another reason it's so good at emphasizing). This is why the em-dash is the most powerfully-emphasizing mark of them all (even more than the !, which, in any event, you can't use in your brief anyways).

Look at how these authors smartly put within em-dashes the most critical themes of their documents. Like semicolons, don’t waste this power by em-dashing both the important and mundane. People pay attention to what’s inside the em-dash: 

When those words lose their ordinary meaning—when they become so elastic that they may mean the opposite of what they appear to mean—we cede our right to be taken seriously. 

Or this one:

A review of the history of alienage jurisprudence, with a particular review of Graham—both what it said and how it has been applied (and not applied) in the past forty years—suggests that it is time to rethink the doctrine. Judge Bybee

Step 4: Use colons to explain a general concept with more specificity.

The colon is as academic as it sounds: It’s used to teach. Use colons to introduce a concept or term and its explanation or definition. The colon is brilliant because it functions consistently for your reader: They always know what to expect.

But like the other marks, don’t use this one arbitrarily. Too many writers insert colons where commas or semicolons should go. This is not getting the most out of this mark:

If they see a colon: they know they will be reading an explanation …

Because the colon isn’t really set up a nice concept/explanation relationship. So why not just keep it simple and use a comma? 

The judge filed two orders: One dismissing the claim and the other awarding fees.

Step 5: Parentheses do the opposite of the em-dash: they deemphasize.

The parenthesis is like whispering to your reader. Parenthesis, aside from being used as parentheticals, deemphasize whatever you put in them. Use these when you think some sort of aside is valuable to subtly prod your reader, without drawing their attention too closely or distracting them.

Plaintiff alleges no facts (nor could he) to support this claim.

This aside probably isn’t important—there are no critical details or facts that you need your reader to remember—so a parenthesis is less distracting and a good choice.

Finally, because so many legal writers struggle with some of the basics, I’ve put together a simple chart that reminds you how and when to use each of them—lest you distract your reader with a mistake. 

Commas (,)

Separates two independent clauses (full sentences) with a coordinating conjunction. “Joe went to Saipan, and he loves reading.”

Sets off an introductory phrase. “Knowing it was warm, Joe brought shorts.”

Sets off a nonrestrictive clause (one that can be removed from the middle of the sentence). “Joe began, knowing he should, by talking about commas.”

Coordinate adjectives (both adjectives modify the same thing, not each other). “The yellow, angry bee.” But not: “The bright, yellow bee.”

Separates days from years. “December 12, 2018”

To set off a quotation. “The court held as much repeatedly, ‘….’”

NOT: to join full sentences without a conjunction (comma splice). “Joe went to Saipan, he likes to read.”

NOT: Anywhere else generally.

Semicolons (;)

Separate two independent clauses (full sentences). “Joe loves Saipan; he loves the air.”

Separate list items where the items have commas in them. “Joe loves: reading, but only in bed; writing; and science.”

Colons (:)

To join two separate but related clauses or phrases—often to explain or add more detail to the first. “Joe loves Saipan: He comes here every year.”

If what follows the colon is a complete sentence, capitalize the first word.

To introduce a list. “Joe loves the following punctuation marks: commas and em-dashes.

To introduce a quote. “The court held as much: “….”

Periods (.)

Use these more: separate long sentences with lots of ideas by breaking them up into shorter sentences. Your readers will thank you.

Em-dashes (—)

Can be used to set off interjecting phrases or clauses in the middle of a sentence—or at the end.

Use these to emphasize important points in your document—like themes, critical issues, etc. “The plaintiffs filed the motion—three days too late—and then moved to dismiss.”

Parenthesis ()

Use in the same way you use em-dashes, but when you want to deemphasize a point. “The court noticed the error (for reasons not relevant here) and corrected it.”

En-dashes (-)

Used for page ranges mostly. P.30-32.

Hyphens (-)

Used anytime you connect two words together, like phrasal adjectives. “The blue-black haze hung around the room.”

Quotations (“”)

Periods and commas always go inside these. “I wonder what he did there,” he said.

Quote material up to 50 words. Then it becomes a block quote without quotes.

Remember, quotes within quotes use a single mark: ‘.

Check apostrophes (‘)

Collective nouns are treated singularly. Team, family, board. You use a single apostrophe when two subjects both share the same trait: Susie and Joe’s religion (if they are both Christian); Susie’s and Joe’s religions (if they have different ones)

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

May 5, 2019 | Permalink | Comments (4)

Friday, May 3, 2019

Appellate Advocacy Blog Weekly Roundup May 3, 2019

WeeklyRoundupGraphic

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 Opinions and News:

Recently, the Court heard oral argument in a trademark case, Iancu v. Brunetti, in which Erik Brunetti applied to register for federal trademark protection his trademark FUCT for use as a brand of clothing. For decades, the Lanham Act has prohibited registration of marks that are deemed offensive as being “scandalous” or “immoral.”  The US Patent and Trademark Office examining attorney rejected the application on the basis that the mark is a phonetic equivalent of a vulgar work, and the Trademark Trial and Appeal Board affirmed that refusal.  On appeal, the U.S. Court of Appeals for the Federal Circuit ultimately reversed the board’s holding, finding that the bar on registration of scandalous and immoral trademarks violates the First Amendment.

The Court also recently heard arguments in a criminal case involving the constitutionality of language in a federal law used to prosecute gun crimes.  In the case, United States v. Davis, Maurice Davis and Andre Glover were convicted and sentenced under 18 U.S.C. 924(c)(3)(B) for committing “crime[s] of violence”   related to a string of armed robberies They challenged, alleging the language is unconstitutionally vague and arguing that it violates due process protections. 

Bloomberg had an article recently featuring two women advocates appearing before the US Supreme Court and discussing the disparity between men and women appearing before the Court. 

State Appellate Court Opinions and News:

In Washington, the Supreme Court issued an opinion in which it purported to "overturn" a conviction on a 4-4 ruling.  Based on some sleuthing done by Gene Johnson, a Seattle-based AP writer, it appears that the conviction was intended to stand -- the Washington Court of Appeals denied review, and then the defendant sought review by the Supreme Court.  According to the Washington Courts, the result of the decision was that the conviction stood, despite the language in the opinion.

Practice Pointers:

Kimberly Robinson of #AppellateTwitter posted recently about the Supreme Court adopting rule changes that, among other things, reduced the word count for merit briefs and shortened the time for reply briefs.

Appellate Job Openings:

May 3, 2019 | Permalink | Comments (0)

Thursday, May 2, 2019

Admin Law, Stare Decisis Still Left on Court Docket, TBD

As the latest Supreme Court term winds down, the remaining decisions will be cast into one of two main themes, according to Erwin Chemerinsky. Chemerinsky, who argued the Franchise Tax Board v. Hyatt case in January, says the Court will be contemplating standards of review for administrative law, and whether to overrule precedents in several cases. 

Chemerinsky's case, Hyatt, deals with whether Nevada v. Hall should be overruled. Nevada v. Hall set the precedent that a state may be sued in the court of another state. Chemerinsky was surprised to find that when he argued the case, the justices were most concerned with the overarching question of stare decisis and overruling precedent, and not so much with his client who had been harassed by the state of California when he moved to Nevada. Several other cases deal with this larger issue as well. Knick v. Township of Scott, Pennsylvania asks the question whether a person must exhaust all state law remedies before bringing claims in federal court for a taking. A ruling in this case may overrule Williamson County Regional Planning Commission v. Hamilton Bank (1985) that allowed some exceptions to the rule that says a case may be brought in federal court without exhausting all state court claims. Gamble v. United States asks the Court to overrule the "separate sovereign doctrines" that allows prosecution in both federal and state court for the same crime, without implicating double jeopardy. 

Additional cases touch on stare decisis as well, but more specifically implicate administrative law delegation and deference. Kisor v. Wilkie prompts the Court to review whether courts ought to defer to reasonable agency interpretations of ambiguous regulations. Chemerinsky highlights this issue because of the scrutiny the Chevron doctrine has received in recent years. Gundy v. United States will decide the extent of Congress' legislative delegations of power, and whether they are constitutional. The Court has not decided an issue like since 1935, Chemerinsky says.

The most high profile case awaiting ruling is Department of Commerce v. New York that deals with what questions may be asked on the 2020 census. The controversial "citizenship" question is at issue. Detractors say including the question will inhibit responses resulting in a miscount. The question has been included on census forms before from 1820-1950. After that, some households continued to receive the question from 1960-2000. 

The Court's final arguments were on April 24, and it will be issuing opinions until the end of June.

May 2, 2019 in United States Supreme Court | Permalink | Comments (0)