Appellate Advocacy Blog

Appellate Advocacy Blog Weekly Roundup Friday, June 28

Each week, the Appellate Advocacy Blog Weekly Roundup presents a few tidbits of news and Twitter posts from the past week concerning appellate advocacy. As always, if you see something during the week that you think we should be sure to include, feel free to send Dan Real a quick email at[email protected] or a message on Twitter (@Daniel_L_Real).  You can also send emails to Danny Leavitt at [email protected] or a message on twitter @Danny_C_Leavitt. 

Supreme Court Opinions and News:

Much has happened in the push to the Court's finish line yesterday for the October 2018 term. The attention on the Court and its opinions this week steals from federal circuit courts and state appellate courts. Here are some links to this week's opinions and news:  

• Amy Howe discusses Monday's opinions on this week's SCOTUStalk podcast. 
• Edith Roberts at SCOTUSblog summarizes the Court's opinions from Thursday, June 27, including the gerrymandering and census cases. A graphic explaining the complexities of gerrymandering can be found here. 
• Jay Michaelson writes about judicial deference to administrative interpretation of regulations here. 
• Adam Liptak writes about Wednesday's opinion in Tennessee Wine & Spirits Retailer's Association v. Thomas, which strikes down Tennessee's law that barred newcomers from operating liquor stores. Justices Gorsuch in his dissent said that the Court is a "committee of nine" that has "stray[ed] from the text" of the Twenty-first Amendment, and "impose[d] its own free-trade rules" on the States. Alito responded in kind, calling Gorsuch's dissent "empty rhetoric."

Other news, sadly, is that Tony Mauro, the Supreme Court reporter for the National Law Journal, is retiring. 

Practice Pointers and Tips:

@RMFifthCircuit tweeted about an opinion from the Deleware Supreme Court discussing an attorney's client during a deposition and, perhaps worse, the appellate attorney's performance during oral argument. 

In memoriam: Professor Ralph L. Brill (1935-2019)

Legal education lost an important figure last week: Professor Ralph Brill passed away on Friday, June 21. He was 83.

Professor Brill taught at Chicago-Kent College of Law for more than 50 years. He is, quite justly, most renowned for his work in legal writing: in 1977, he revamped Chicago-Kent's legal writing curriculum, creating an oft-emulated three-year program. He went on to direct that program for fourteen years, and he remained a vibrant, vocal, and revered leader in the legal writing community for the rest of his life.

Professor Brill also was a wizard in appellate advocacy. Immediately after overhauling Chicago-Kent's writing program, he turned his attention to bringing order and rigor to the school's work in moot court. In 1978, he and two students—Tom Krebs and Ron Petri—convinced the faculty to approve the creation of Chicago-Kent's Moot Court Honor Society and to award credit to students who participated, with faculty supervision, in interscholastic moot court competitions. He served as the MCHS's faculty advisor until 1992.

Under Professor Brill's leadership, Chicago-Kent's Moot Court Honor Society enjoyed immediate and profound success. One highlight: in 1980, the Chicago-Kent team of Damon Dunn, Richard Kerr, and Pamela Woldow won the award for national best brief in the National Moot Court Competition. Professor Brill's teams racked up multiple championships in the Chicago Bar Association Competition and the All-Illinois Moot Court Competition, and the school won numerous regional titles in the National Moot Court Competition and the ABA National Appellate Advocacy Competition. 

When Professor Brill stepped down as faculty advisor of the Moot Court Honor Society, he helped to again reshape and improve the program. In 1992, the school launched the Ilana Diamond Rovner Program in Appellate Advocacy. It's a wonderfully-designed co-curricular program, and it remains the umbrella for Chicago-Kent's substantial participation in appellate advocacy. It owes its shape and its culture—and its consistent success—to Ralph Brill. Professor Brill also exerted substantial influence on real-world appellate advocacy: he served as a consultant on major tort cases in Illinois, and he was active in the Chicago Bar Association.

On a personal note: I owe my professional happiness to Ralph. He created Chicago-Kent's Visiting Assistant Professor program; that program gave me my start in academia. He created Chicago-Kent's legal writing program; teaching in that program made me realize I wanted to build a career around teaching smart students to be skilled lawyers. He created Chicago-Kent's appellate advocacy program; I have had the good fortune and profound honor of directing that program for the last 16 years. When he retired two years ago, I took his slot as a Torts professor. He was, as always, remarkably generous about sharing his advice and teaching materials.

We'll miss him. We're better for having known him.

Conducting Moot Court in Real Appeals - Part 2

In my last entry, I gave an overview of how to set up a moot court session for your real appeal, including panelist selection, timing, and preparation. Today, I want to talk in more details about how to set up and conduct the moot court session itself.

1.     Plan Ahead and Be Respectful of your Panel's Time.

Making the most of this time is critical. You are either costing your panelists their time (if they have volunteered) or paying them for it, either in the form of a flat or hourly fee. Be respectful of that time. First, give them copies of the briefing and key cases or statutes far enough in advance that they can time-shift the work needed to be prepared for the session. Second, let them know your expectations for their participation at the session and the anticipated time involved.

2.    Establish a Format for the Session.

The latter bit of information will depend on whether you are going to have a “typical” session or add on time. The “typical” session that I recommend is in two parts. First there is a true “moot court” session, accurately emulating the anticipated oral argument. Second, the panel takes off the robes (literally or figuratively) and talks through their critique of the argument and the answers given. Give yourself time for your moot court (with or without opposing argument presented) and then, as a rule of thumb, at least double that time for the follow-up discussion. Encourage the panelists to raise issues or questions that might not have been brought up during the round.

You can add to this time if you wish. Some practitioners want to give the argument first without questions as a straight run-through, then have the panel hear the argument again and ask questions. I usually counsel against this, because it means your moot panel will have heard the argument much more clearly than your actual panel will.

If your panel has time, you may want to have an initial roundtable after the argument, then watch the video and see what other questions or comments are brought to mind when doing so. As mentioned in the earlier article, you might even want to have a separate brainstorming session before your response or reply are due, in order to flesh out issues during briefing instead of oral argument.

In my moot court coaching, I alternate between informal roundtable discussions, question and answer sessions, and argument. Over the years I have come to believe that it takes all three types of preparation, much like a sports team might have team meetings to discuss plays, conduct skill drills, and then play in scrimmages in order to prepare for a real game.

Whatever the plan is, make it explicit to the panel and be sure to prepare for each step. Do not underestimate the time for your panel if you want them to work with you again.

3.    Accurately Emulate the Oral Argument.

Next, pay attention to the actual setup of the moot court session. I prefer using as realistic a setup as possible. If you have never argued before a particular court before, find out what kind of timing mechanism is used and find one that matches it as closely as possible. If you are not familiar with timing lights, they can be very distracting and a bit confusing. To prepare, you can find timing lights on Amazon or other retailers. Practicing with the light will help you get a better feel for how to time your argument without fearing your first encounter with “the light.”

If possible, try to hold your moot session in a setting that emulates your oral argument environment. Many law schools have practice courtrooms, with some set up for appellate simulation. In a pinch, a conference room will work, but use a podium and have the panel sit together so you can get used to scanning for reaction. Teleconferencing is also an option if time or distance simply do not allow for everyone to be in the same room, but I don’t find it to be as accurate a simulation as other setups.

4.    Prepare Yourself and Your Panel.

When the date of the session arrives be sure that you and your panel are prepared. If you have selected former justices, appellate practitioners, or even former clerks for the court you are approaching, and have provided them with materials in time to prepare, they will be ready to serve as a general panel. If you receive a notice of panel change or setting, be sure to share that with them and discuss potentially doing additional research to emulate a particular justice on the panel, if that is the approach you wish to take.

Prior to the session, practice and refine your argument on your own, and work with potential Q&A that you and your colleagues may have developed. If you are a newer or infrequent advocate, and you are nervous about how to handle questions, one practice technique is to write down anticipated questions on note cards, give them a good shuffle, then start your “speech,” grabbing a card at intervals and responding to the questions while working back into the arguments.

Finally, watch oral arguments from your court, your panel members, and your opponent. The proliferation of online videotaped oral argument is a wonderful preparation tool.

5.     Enjoy the Conversation

The ultimate goal of all of this work is to make yourself comfortable with the subject matter, the format, and the environment to such an extent that you are able to engage in a meaningful conversation with your real panel. Only by working with a practice panel can you reassure yourself that your weaknesses have been fully probed, and only be simulating the experience accurately can you feel comfortable when you stand to speak. But don’t forget to enjoy the moment – oral argument is increasingly rare on appeal, and each time it is granted you are being given an opportunity to meaningfully collaborate with the court in properly developing the law in a setting that is meant to speak your sometimes dry legal arguments to life.

(Image credit: My furtive photo of an excellent simulation experience for two of my SMU Law School moot court students, Adrian Galvan (speaking) and Sydney Sadler (sitting to his left) at the final round of the TYLA Moot Court Competition earlier this month, where they were able to argue in front of all but one of the judges (that is the proper term for this court) from the Texas Court of Criminal Appeals.)

 

Summary of the Argument: Moot Court Edition

Have you ever picked up a book, read the back cover and immediately set it back down, with nothing enticing you to read further? An ineffective summary of the argument can create this effect in your brief.

One of the final parts of the brief to write, the summary of the argument is often the first chance to persuade the judges. But more than that, the summary of argument serves to frame and present the thinking of the brief, and it should do so in a way that draws the judge further into the brief. Some judges read the summary of the argument first, and it’s a mistake to throw something together than is bland and doesn’t get to the heart of your argument.

Judith Fischer’s 2015 article, Summing it up with Panache: Framing a Brief’s Summary of the Argument
takes a deep dive into summaries of the argument and looks at recent Supreme Court briefs’ summaries to gather insights into how appellate practitioners write them. It’s a helpful article in understanding a practitioner approach to the summary of the argument, and it’s rich in examples.

For moot court, I believe scorers are looking for the same thing that a judge would be. Does the summary of the argument give a persuasive overview of the case? Here’s an example of summary of the argument scoring criteria from a competition I have scored before:

________________________________________________________________________

SCORING CRITERIA

SUMMARY OF ARGUMENT:
Is it a succinct, clear, accurate statement of the argument?
Is it persuasively written?
Is it more than a restatement of the point headings?
(10 points possible)
________________________________________________________________________

TOP TIPS FOR THE SUMMARY OF ARGUMENT

1. Include your theme in the first sentence or two of the summary. If I get to the end of the first paragraph and I don’t know your position, that’s a problem.

Here is a great example from Judith Fischer’s article mentioned above comparing the first sentences of petitioner and respondent summaries of argument:

_________________________________________________________________

Eminent domain was the legal subject in Kelo v. City of New London, where the petitioners opposed a local government’s taking of private property for use by a commercial entity. Their summary of the argument opened with an appeal to Americans’ emotional attachment to their homes: “To Petitioners, like most Americans, their homes are their castles.” The brevity of this sentence intensifies its impact.

The respondents’ summary evoked logic rather than emotion: “At the heart of this case are a series of decisions made by the Connecticut legislature and the elected officials of the City of New London as to what will best serve the economic, social, structural and environmental interests of New London's citizens.”

These sentences primed the Court for two contrasting approaches to the case. The petitioners tapped into deep-seated feelings about homes. By contrast, the respondents relied on legal principles, telling a “‘justice’ story” to argue that the city’s decision was correct despite an outcome displeasing to some.
In Kelo, the justice story prevailed when the Court approved the city’s exercise of eminent domain.

_______________________________________________________________

2. Keep it under about 10% of the length of the actual argument. It should be a true summary, not a full recap. Too long, and you risk losing the opportunity to give a good overview to your reader; too short, and it may not be enough to be helpful.

3. Limit citations. It will bog down the summary.

4. Don’t just restate the point headings. It’s lazy and just taking up space.

5. Make sure to leave yourself enough time to give thought to your summary of the argument once you are done with the argument.

Just like authors and editors spend significant time on the back of the book to grab readers’ attention, you should be persuading from the beginning of your brief by having a strong, concise summary of argument.

Playing to the Crowd: Simple Tips for Crafting Custom Legal Writing

A little narcissism is good. At least that's what I am telling myself. - Andy Dunn

Usually, I share ideas for writing well--tips backed by science and experience. But today I ask that you suspend a few of those best practices in favor of something more important. Your reader's narcissism. 

Ok, narcissism is a touch strong. But the research is rife with studies showing that readers (like everyone else) love themselves. They love their own ideas; they love their own writing; they love their own voices. In short: If you could convince your reader that they actually wrote your brief, you would probably win every time. 

The truth is that we think that how we do things is the right way. Catch us in a self-reflective moment and, sure, we'll admit we aren't perfect. But in the heat of the moment--say, when reading a brief--we are the boss. Like at Burger King, we want the brief our way. Setting aside that you probably have some sense of this truth already, the science says so, too. This is probably why so many writing experts urge lawyers to "write for their audience."

But what does that mean? There's always some generic advice for using different tools for different types of audiences--for example, writing for judges versus writing for attorneys. 

Yet this cognitive science suggests we should be customizing more than that. Consider emulating how your particular reader approaches and interprets the law, and, perhaps more important, some of their writing style quirks as well. The science suggests that by writing like your reader, your reader is more likely to view you favorably, more likely to agree with you, and in the end, more likely to make you win. 

To do this right, you'll first need some writing samples from your reader. For judges, that is usually easy: Just do some online searches and pull five or so recent opinions. For most lawyers this step is easy, too--just ask them or anyone who works with them. 

With the samples in hand, run through the below list (or make your own) and jot down some of your reader's writing quirks. If you can't bring yourself to adopt some of these--fine. And I'm not suggesting you wholesale copy your reader's every whim. But you will be amazed at how persuasive your reader will find their own voice. 

1. Meaty headings or short ones?

2. Font and other typeface choices?

3. Heading numeral format (all caps? Etc.)?

4. Conclusions: Legalese or substantive?

5. Introductions in formal legalese or straight to substance?

6. One space or two after periods?

7. Paragraph length (shorter or longer)?

8. Sentence lengths?

9. Visuals like bullets and numbered points?

10. Traditional transitions (moreovers and furthermores)?

11. Deep introductions?

12. Extra-short sentences or paragraphs? (If not, they may be in the old-school camp that these are no-nos).

13. Authority or legal background in the fact section?

14. How do they like the structural layout of the document and white space?

15. Footnote use? Substantive footnotes?

16. Fresh and vivid words? Other writing style quirks?

17. Adherence to outdated grammar rules like never splitting an infinitive or starting sentences with conjunctions?

18. Policy-forward discussion at the start?

19. Types of policy—slippery slope, ideological, etc.?

20. Lengthy discussions of rules and authority or more focus on facts?

21. Approaches to interpreting case law? (full fact to fact exposition for every important case?)

22. Textual interpretation—textualism?

23. Legislative history?

24. Formal tone? Neutral? Pay particular attention to old-school legalese like “such as.”

25. Other legalese: Latin phrases, long formalisms at the start of the motion, etc.

26. Naming and definition conventions (e.g., acronym style).

27. Titles of documents (both in caption and digitally)?

28. Literally, anything else you notice in their writing!

The gold standard would be if your reader took a look and said to themselves, "wow, looks like I wrote it." 

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

Appellate Advocacy Blog Weekly Roundup Friday, June 21

Each week, the Appellate Advocacy Blog Weekly Roundup presents a few tidbits of news and Twitter posts from the past week concerning appellate advocacy. As always, if you see something during the week that you think we should be sure to include, feel free to send Dan Real a quick email at[email protected] or a message on Twitter (@Daniel_L_Real).  You can also send emails to Danny Leavitt at [email protected] or a message on twitter @Danny_C_Leavitt. 

Supreme Court Opinions and News:

The Supreme Court notably avoided the new case over the clash between  same-sex couples and wedding cake bakers. This time, the case  came out of Oregon. Recall that last year the Court ducked the ultimate issue in a case out of Colorado. In the Oregon case, the Court issued a brief order sending the case back down to the trial court for “further consideration” in light of the Colorado case that the Court issued last year. Read about it here, here, and here. 

Tony Mauro and Marcia Coyle in the Supreme Court Brief remind us that on July 1, new court rules will limit briefs to 13,000 words, down from the current 15,000-word limit. They include in their reporting  comments by legal-writing experts Bryan Garner, Hank Wallace, and Ross Guberman. Find their piece here. They include this account by Chief Justice Roberts about cutting from briefs:

But the all-time best technique for trimming may have come from the late Chief Justice William Rehnquist. His successor and prior law clerk John Roberts Jr. recounted the time when he submitted a draft opinion to Rehnquist. Rehnquist circled sections of the draft and told Roberts to “put it all in footnotes.” Roberts did so and gave it back to Rehnquist, who told him, "Now cut out all the footnotes."

And last—about the last week of the Court’s term—Adam Feldman @AdamSFeldman tweets about what we can learn from the Court in its last week. 

The Court has been issuing opinions this week, some of which include the Establishment Clause, the non-delegation doctrine, statute of limitations, and jurisdictional-channeling issues. SCOTUSblog briefs the issues  here. 

Circuit Court and State Appellate Court Opinions and News:

The Court of Appeals for the First Circuit ruled on behalf of Maine’s former Governor in a lawsuit brought by the state’s former House Speaker. The lawsuit challenged the former Governor’s actions to fund a charter after the former House Speaker was fired from his job with the charter school. The court ruled the former Governor was protected by immunity, with three judges on the panel finding that the former House Speaker’s constitutional rights were violated. The case is reported here.  

Practice Pointers:

Howard Bashman wrote this piece on being aware of appellate waiver traps in state court. 

Job Posting--West Virginia Solicitor General's Office

The West Virginia Attorney General’s Office is accepting applications for positions in the Solicitor General group, including a junior/mid-level attorney and a mid- to senior-level attorney.  Excellent writing skills required; clerkship and appellate/administrative law litigation experience preferred.  Must be eligible to waive into the West Virginia Bar or be willing to sit for the West Virginia bar exam.  Positions are based out of Charleston, WV with some geographic flexibility within the State. 

All attorney in the SG group gain significant appellate, administrative, and general litigation experience.  The group practices at all levels in state and federal courts, including before the Supreme Court of the United States.  Attorneys in the group can expect oral argument experience in the Supreme Court of Appeals of West Virginia, as well as opportunities to present argument or second chair in federal appellate courts. 

The group is a small team, with all attorneys taking primary responsibility for their maters and contributing at highly substantive levels.  Responsibilities include primary drafting for major appellate briefs and administrative comments; coordinating multi-state efforts for amicus briefs and multi-state litigation; researching and drafting Attorney General Opinions; and researching and providing strategic advice on high-profile matters to the Attorney General and other constitutional officers. 

Applicants should submit their resume, a writing sample, and a cover letter to [email protected].  Any questions about the position may be directed to Solicitor General Lindsay See at [email protected]

Tips for Securing an Appellate Clerkship

While we often post on this blog about appellate practice, I thought that I would take a small detour of sorts and post about how to secure an appellate clerkship.  A state or federal appellate clerkship is an excellent stepping stone to an appellate career.  But how do you secure an appellate clerkship?  Although the easiest route to a federal appellate clerkship is to attend a top 5 law school and receive top grades (or lots of high-passes), there are plenty of opportunities for students at non-top 5 law schools to secure clerkships. 

(1) Get good grades:  Regardless of where you attend law school, getting good grades and being ranked in the top 5% or 10% of your class is pretty important.  If you are seeking a federal appellate clerkship from a lower-ranked school, you probably need to be in the top 5% of your graduating class.  Students who aren't ranked in the top 5% but who want to do a federal appellate clerkship should consider starting with a federal district or magistrate clerkship or clerking first at the state supreme court or intermediate appellate court level.

(2) Be on a journal: For many judges it is important for applicants to have journal experience.  Much of the work that appellate law clerks do mirrors journal work.  For some judges, high level moot court experience could replace journal experience.  

(3) Get to know your professors: I have heard from people in the know (judges or their career clerks) that strong letters of recommendation are helpful for securing clerkships.  So, you need to get to know your professors well enough for them to write good letters. One way to do this is to visit office hours or to serve as a research assistant for a professor.  And, in asking professors to write letters, pick the professor who knows you the best, not the professor who is most well-known in academia. If you are particularly well-connected to a professor, that professor might have personal connections with judges and be willing to send a direct email or make a phone call on your behalf. I have done this for students, and I have also connected prospective applicants with friends who have clerked for judges.

(4) Get to know judges: Interning or externing for a judge can be a great segue into a clerkship. You get to know that particular and often the others in the courthouse.  You can see what the judges do, and hopefully end the experience with a great recommendation.  Another way to meet the local judges is to participate in local lawyer activities, like the local bar association, the Federal Bar Association, or legal-organizations like the Federalist Society or the American Constitution Society.  Most of these organizations offer very cheap student memberships, and many local state and federal judges actively participate in these organizations.

(5) Find a connection: Apply to judges with whom you share some sort of connections. Perhaps you went to the same undergraduate institution or law school. Maybe you were both in the girl scouts or some other organization. Maybe you both grew up in the same town.  Find those judges, apply to them, and mention the connection in your cover letter.

(6) Work your way up: When I graduated from law school almost 15 years ago (yikes, I feel old), it was the norm to go straight to a federal appellate clerkship.  That is no longer the case.  Even students from top 5 law schools often stack clerkships--starting with a federal district or magistrate clerkship and moving their way up to a federal appellate or state supreme court clerkship.  If you are interested in clerking at the state level, you could certainly stack a state intermediate appellate clerkship and a state supreme court clerkship.  I also know of a student who went from the state supreme court to the federal district court.  The point is to be creative! If you view each clerkship as a learning opportunity, stacking clerkships just gives you more time to learn.

(7) Don't forget the state courts: If you want to have a predominantly state practice, you should consider a state court clerkship. I believe that the value of a clerkships lies in the experience and mentoring that you receive.  I have met many a state court judge who is better equipped to do this than some federal judges.  So, even though some people might not consider state clerkships to be as prestigious, I would encourage you to consider applying for one, especially if you think that the judge would be an excellent mentor.

(8) Start thinking about a clerkship early: Finally, I would recommend that you start thinking about a clerkship early in your legal education. This allows you to form relationships with professors, request letters of recommendation, apply for internships, and get on a journal. If you aren't sure if you want to clerk, stop by a professor's office to ask about her clerkship experience.  Or, try working for a judge your first summer out of law school.  That experience should help you know a little bit what a clerkship would be like.

Good luck to all of the students applying for clerkships right now!

 

Appellate Advocacy Blog Weekly Roundup Friday, June 14

Each week, the Appellate Advocacy Blog Weekly Roundup presents a few tidbits of news and Twitter posts from the past week concerning appellate advocacy. As always, if you see something during the week that you think we should be sure to include, feel free to send Dan Real a quick email at[email protected] or a message on Twitter (@Daniel_L_Real).  You can also send emails to Danny Leavitt at [email protected] or a message on twitter @Danny_C_Leavitt. 

Supreme Court Opinions and News:

The Supreme Court’s Next Three Weeks Could Shake Up the 2020 Election:   “The U.S. Supreme Court enters the homestretch of its term with looming decisions that could affect the 2020 election and thrust the Court even deeper into the nation’s political wars.  Between now and the end of the June, the nine justices will rule on two intensely political issues – whether President Donald Trump’s administration can put a citizenship question on the 2020 census and whether federal courts can strike down voting maps as excessively partisan.  The Court will also be making pivotal decisions about what cases to add for the term that starts in October and ends the following June, during the heat of the presidential campaign.”  More from Bloomberg.

On Monday, the Court issued an opinion in Quarles v. United States, a case about intent requirements for a frequently-litigated sentencing law that imposes mandatory minimums on gun offenders.  The Armed Career Criminal Act imposes 15-year mandatory minimum prison terms for gun offenders with three prior “violent felony” convictions.  In the Quarles case, Quarles pleaded guilty to gun possession in 2015, and he had three prior convictions – two assaults which qualify as violent felonies and a conviction for third-degree home invasion, which does not require that the intent to commit the crime be formed when the defendant enters the location. The issue was whether the lack of an intent-at-entry requirement allowed the conviction to be considered a “violent felony” consistent with the definition of burglary in prior high court cases.  The Court, in a unanimous opinion authored by Justice Kavanaugh, sided with the government in concluding that it was a third “violent felony” conviction. More from Bloomberg.  Opinion.

Challengers of the proposed census question about citizenship filed a motion this week asking the Supreme Court to delay in ruling whether the Trump administration should be allowed to place the question on the 2020 census form.  Since the lower court decisions ruling that the question could not be added, new allegations have surfaced to suggest that the question was added at the urging of a Republican who sought to benefit the Republican party and white voters.  In its motion, the ACLU urged the Court to either uphold the lower court rulings or send the matter back down to the lower courts to consider the new allegations, arguing that the case has sufficient consequences to merit being decided on the basis of a true and complete record.  More from the Washington Post.

Federal Appellate Court Opinions and News:

Led Zeppelin has been involved in ongoing litigation for several years now over claims of copyright infringement concerning portions of the band’s iconic 1971 hit, “Stairway to Heaven.” The trustee for the estate of guitarist Randy California, formerly of the band Spirit, brought suit against Led Zeppelin and asserted the band failed to credit a 1968 Spirit instrumental track for portions of Stairway.  In 2016, the case went to trial and the trial court ruled in Led Zeppelin’s favor.  But a three-judge panel of the Ninth Circuit Court of Appeals overturned the decision last year and ordered a new trial, based on erroneous jury instructions.  Now, the circuit court has agreed to rehear the case before an eleven-judge panel in an en banc hearing. More from TrialInsider.com.

AppellateJobs:

United States Department of Justice, Civil Division is hiring four new Appellate Staff Attorneys (Washington D.C.): More Information HERE.

Illinois Office of the State Appellate Defender his hiring for attorneys in three of its offices (Chicago, Springfield, and Elgin):  More Information HERE.

Conducting Moot Court in Real Appeals - Part 1

As both a moot-court coach and a real-life appellate specialist, I find myself moving back-and-forth between real appeals and simulations on a regular basis. Each one advises the other, and I think the experience makes me both a better coach and practitioner.

One area of overlap is in "mooting" appeals. In law school, it is an exercise in practical skill building with formative assessment in the form of constant feedback. In real appeals, it is the best preparation there is for oral argument, no matter how skilled the presenter might be.

Don't just take my word for it:

No preparation for oral argument is as valuable as a moot court in which you're interrogated by lawyers as familiar with your case as the court is likely to be. Nothing, absolutely nothing, is so effective in bringing your attention to issues that have not occurred to you and in revealing the flaws in your responses to issues you have been aware of.

Antonin Scalia & Bryan Garner, Making your Case: The Art of Persuading Judges 158 (2008)

Your opponents are probably doing it. The United State's Solicitor General's office, as well as Appellate Staff throughout the government, conduct at least one moot session before oral argument. In larger cases, it is increasingly considered best practices to do so. Larger firms often conduct multiple moot sessions in-house. Even in smaller matters, informal mooting sessions are becoming more common.

Fortunately, if you are familiar with moot court from law school, you can probably put together a moot round for your argument. You just need a panel, a video camera, a plan, and time. Lots of time.

1.    Pick your Panel Carefully

In general, you want to pick at least three panelists who will represent the type of judges you anticipate will be on your panel. Legal expertise is less important than appellate experience. For this reason, former appellate judges and appellate specialists are often utilized. Appellate specialists can put together a panel for you if you need the assistance.

Why not pick someone who really knows the substantive law? Because they aren't a good emulation of your court. You want people who will read what the court will read (the briefing, key cases, orders/judgments at issue and record excerpts) and then ask you the type of question that this preparation brings to mind. Someone who knows the law very well outside of this exercise might carry the same blinders you have developed during your time with the case.

If you are appearing before a court en banc or a court with more than three justices, you can use more panelists. Most practitioners do not suggest matching the full number, however, as there is diminished value in adding more seats at the moot.

2.     Prepare For Your Session Wisely

You want to have at least one moot round within two weeks of the oral argument so you have time to prepare and adjust based on your session. If possible, discussing the issue even earlier can be of great benefit. Indeed, if you can schedule a time with your panelists to have a roundtable discussion before you finish briefing, that is ideal. Uncovering arguments and answering questions you had not thought of asking in your briefing, rather than in the oral argument alone, is ideal.

Some research into your potential panelists is a good idea. If you are in a jurisdiction that videotapes oral argument, watch recent arguments on related issues to get a feel for how the justices you might get on your panel are approaching your issues. I recently mooted a panel for a public interest group, and noted that one justice in particular on the circuit tended to focus on a particular statutory issue. I flagged that for them during the moot court, and when that issue arose at oral argument, they were able to answer it when others had not and ultimately prevailed.

You may also wish to find someone willing to argue the other side. The moot session can work with just your side if you are experienced. But if you need work on your rebuttal skills or in shaping your appellee or respondent argument to an unexpected approach or to address questions asked to co-counsel, this step can provide you some additional help.

3.     Videotape the Proceedings

Time acquires a very subjective and malleable quality when one is being grilled by a panel of intelligent skeptics about a topic that has great importance. Before you know it, your time is up and you are sitting down trying to remember what was just said. Videotaping the round ensures that you will remember the questions asked and answered, and you can see how you look and act during your moments of panic and introspection. If you need to work on your "uhs" and tendency to sway while speaking, now is the time to do so.

4.     Take Your Time at Every Stage

Finally, make sure everyone takes the time necessary for the process to work. You need to take your time in preparing your argument and answers for the moot session just like a real argument. Your panel needs to take the time to read the briefing and record. After your session, take the time to round everyone up and discuss what worked and what did not, how answers can be refined, and otherwise discuss the round. Then, if you have time, do it again.

Indeed, you can schedule multiple moots with multiple panelists. There are law schools that have appellate clinics who may be willing to do so for free. If you are arguing in the Supreme Court of the United States, book your time with the Georgetown University Supreme Court Institute as early as possible, as they are "first come first serve" when it comes to sides.

If you pick panelists who will ask you difficult and unexpected questions, if you take the time to prepare your presentation, if you review the videotaped proceeding carefully and refine your arguments, and if you are willing to do it all again if need be, you will go far in refining your argument. There is a reason one of the most commonly-heard comments from real judges who sit on panels for moot court competitions is "I wish the real advocates who appear before me were as prepared and skilled as you are."

In the next installment I will talk in a bit more detail about how to actually conduct the moot session to maximize its usefulness.

(Image credit: Honore Daumier, The High Tribunal of Judges, 1843)

 

How to Use Feedback to Become a Better Writer

        After I was newly admitted to the bar, I was told attorneys “practice” law because we are always improving upon our craft. One way we improve our writing as lawyers is through feedback. Here are some suggestions for how to derive the most benefit from critiques of your writing.

1.  Know the type of feedback you will be given.  

        The type of feedback you receive depends upon who is reviewing your work. Some are required to submit writing to supervisors for review. Others solicit input from staff, colleagues, or clients. Each of these readers will have different goals for evaluating your writing, which impacts the type of feedback they will give. For example, a supervising attorney may critique the junior attorney’s analysis, arguments, or adherence to office conventions. An administrative assistant may review a brief for grammatical and typographical errors. A colleague may suggest an alternative argument or way to improve the flow of the brief. A client may comment on the Statement of Facts or question legal points. If you are asking for feedback, make sure you tell the reviewer what type(s) you want. It is easier to use feedback to improve if you know what is coming.

2.  Prepare yourself to receive feedback.

        Expect the reviewer will say some (or a lot of) negative things about your writing. According to “How to Give and Receive Feedback at Work: The Psychology of Criticism,” by Courtney Seiter, our brains are wired to perceive criticism as a threat. While you may instinctively want to react to the critique in anger, defensiveness, or fear, remember the point of the feedback is to help you improve the present project and your future work. Be open-minded and willing to develop. Be grateful for the reviewer’s time and investment in you.   

3.  Process the feedback.

        Read all the reviewer’s comments before you do anything. If you do not understand something, ask the reviewer for clarification. As a new attorney, I initially did not understand all the editing marks my supervising attorney used. Eventually, I became familiar with the commonly used proofreading marks and my boss’s unique annotations.

4.  Use the feedback.

        If the reviewer suggested changes to larger-scale matters, like organization or flow, make those changes first. Then, go line-by-line and attend to the smaller details. If the reviewer marked a mistake, look for it throughout the entire document. Do not assume the reviewer marked every instance of a particular error. 

        If you are on a tight time deadline, triage the feedback. Determine what are suggested improvements as opposed to corrections of errors. Fix the mistakes and improve as much as you can in the time you have available.

        After you finish revising the document, process the feedback for the future.  Notice where your biggest problems were. Make a note of them for when you are editing your own work in the future. Look up rules for the grammatical mistakes you made. Determine how to fix these mistakes in the future.

5.  Follow up with your reviewer.

Thank your reviewer for the help. When processing the feedback for the future, if you felt overwhelmed by the amount of feedback, ask your reviewer to suggest one or two of the biggest areas for improvement. If your reviewer is your boss, ask her what you can do to make her job easier.

 

Amanda Sholtis teaches legal analysis and writing at Widener University Commonwealth Law School in Harrisburg, Pennsylvania. You may contact her at [email protected].

 

Argument Preparation: Five Tips for Preparing a Successful Argument

This is a guest post by Albert Navarra.  Albert Navarra has been practicing law in California since 1999 and has a background in philosophy, education, and writing. He also has a passion for making complicated subjects simple.

Great arguments are not accidents. They are the result of great preparation. So get ready.

First, clarify the main point of your argument. Distill the root of your argument down to its essence. What exactly are you arguing about? What is the issue? What is the disagreement? What do you want to accomplish? What is your point? Or, what is the other person’s point?

Once you know the answers to these questions, you have the foundation upon which your argument will be based. Here are five key points to consider when you are preparing an argument, whether that argument is tailored to a judge or your client.

    Practice. If your argument is scheduled to happen sometime in the future, then you’ll have time to practice. So you should practice. If you lack confidence, you’ll probably be eager to practice so that you don’t mess up. Fred Astaire was a virtuoso dancer, but not particularly confident. So he practiced, a lot, and it paid off. If you are especially confident, you might decide you don’t need practice. But you should practice too. You’ve nothing to lose by practicing. And you’ll probably end up being even more confident!

    So what should you practice? Everything. If your presentation is limited to a certain number of minutes, practice to make sure you can finish in time. Record yourself to make sure you speak clearly and at a comfortable rate of speed, not too fast or slow. If you have a camera, record yourself to see how you look. You should look alive and keenly interested in your audience; that will make your audience interested in you. Keep your head up, look at the imaginary people you are speaking to, and use hand gestures to emphasize important points. Things happen during arguments, but the more you prepare and practice, the fewer surprises you will face, and the better you will perform.

    The Other Side of the Coin. If you can’t see the “other side of the coin,” you will probably lose the coin. You must be able to see the issue the way your opponent sees it so you can make your argument stronger. Otherwise, you are blind to weaknesses in your argument and strengths in your opponent’s argument.

    There are two ways to anticipate what your opponent will say, and thereby “know your enemy.” First, the “easy” way: turn your point upside down and argue the exact opposite. If you are arguing that lowering taxes increases job creation, consider the argument that lowering taxes does not increase job creation. How would that argument go? What reasons might someone give in support of that claim? Are they good reasons? Are they weak reasons?

    Then there’s the “hard” way to anticipate counterarguments. Try to think of new points you have not even thought of yet. Your opponent might say that even if lowering taxes increases jobs, there are other points to consider. Lower tax rates produce less tax revenue. So if government spending is not reduced, lower tax rates may increase annual spending deficits and the total national debt. These counter-arguments are new points that you may not have thought of originally. Anticipate counterpunches, or get knocked out.

    Say things that matter. To realize the joy of argument and all the wonderful things it can bring, you need to think about and say things that matter. Don’t just say things because it feels good to say them. Say things because they are relevant and help prove your point.

    Start by arguing relevant facts. And spend most of your time on the most relevant facts. A fact is relevant if it tends to prove your point; these are the fact you emphasize when you are proving a point. For example, let’s say you argue that there is an economic recession. Relevant facts would be decreased income levels, decreased gross domestic product (GDP), decreased consumer spending, and increased unemployment. These facts, if true, would tend to prove your point.

    So, it’s important to identify the relevant facts in an argument. But it’s not enough to simply argue relevant facts. To persuade, you need to argue the most relevant facts. Focus on the facts that matter the most.

    The difference between “sufficient” and “necessary.” Causation is the idea that one thing causes another. A common issue is whether something is “sufficient,” all by itself, to cause another thing; or whether it’s just one of several things that are “necessary” to cause another thing.

    “Practice makes perfect.” What’s the flaw in that statement? The saying assumes that practice, alone, will cause you to become perfect at something—that practice is “sufficient” to cause perfection. But all the practice in the world won’t make you perfect if you are practicing the wrong way and following bad habits. And if you are not well-suited for the activity, even the best practice won’t make you perfect. You can take singing lessons from the best instructors in the world, but if you are tone deaf, you still won’t sing well. So practice is “necessary” to become “perfect,” because one cannot improve without it. But it’s not “sufficient” to be perfect. Distinguish what is “sufficient” from what is “necessary.”

    Make strong analogies. Arguing by analogy is a fantastic way to make a point, and it’s basically making a connection between what you’re trying to prove and something else. But the analogy must be strong. So what’s a strong analogy?

    First, a strong analogy has several important similarities. But the similarities must also be relevant. If they’re not, then the analogy is weak. For example, one might argue that relationships are like investments. You get out of them what you put into them, right? And with investments, it’s important not to “put all your eggs in one basket.” You should diversify your investments and spread them around. That way if any one investment loses money, your entire portfolio won’t lose money. Your spouse or committed partner says that your relationship is “just like an investment.” So the two of you should be free to date other people, to “diversify” your relationships. How does that sound? Not so committed, it seems.

    When someone uses an analogy to persuade you about something, you need to recognize that an analogy is being used. Listen for words such as “like” or “the same as”. Then see if there are enough important similarities for the analogy to be strong and persuasive. Strong, persuasive analogies have several important similarities; weak ones don’t.

    If you want to produce a winning argument, then you must hone your skills. Practice your argument ahead of time, be willing to see the “other side of the coin”, say things that matter, know the difference between “sufficient” and “necessary”, and make strong analogies. These strategies will get you ready to deliver a successful argument and enjoy it.

This article contains excerpts from The Joy of Argument by Albert Navarra. You can learn more about the Joy of Argument by clicking here.

Find the Joy of Argument on Amazon.