Wednesday, July 31, 2019
I often talk to my writing and appellate advocacy students about their audience, the members of the court from which they are seeking relief. I have spent most of my career working for appellate courts and, so, having been the audience, I like to educate my students about the reader’s perspective. It is hard sometimes to grasp who your audience is, or how much attention the reader pays to legal motions, memoranda, and briefs. I confess that when I was a student I used to romanticize about my reader sitting in an overstuffed, leather chair in a dimly lit room slowly perusing briefs while sipping cognac. It never occurred to me that the sheer volume of work makes that picture a ridiculous fantasy.
Let’s talk about numbers. The United States Supreme Court website tells us that over 7,000 cases are filed in the Court each term, and that, of that number, about 80 receive plenary review, with another 100 disposed of without plenary review. The Court writes thousands of pages a term, if you count all the opinions and orders. See https://www.supremecourt.gov/about/courtatwork.aspx (last visited 7/23/2019). Imagine that! Even shared amongst all of the Justices, law clerks, clerks, and staff attorneys, the volume of written work in a term far exceed what most people will produce in a lifetime.
These numbers are just staggering. Imagine having to read just a fraction of the briefs and other legal documents filed in these cases. There is nothing romantic about it. But it is awe-inspiring to consider the dedication and sacrifice involved in devoting so much of time into the cares of the litigants and the future course of this country. The same can be said about every appellate court, where incoming cases can range from a few hundred in smaller states to more than 10,000 in the largest states each year.
Keeping the sheer volume of cases in mind, over the next few weeks I will explore what we can do as appellate advocates to ease the burden.
Tuesday, July 30, 2019
This is a guest post by Mary Anodide, a second-year student at Widener University Commonwealth Law School. You can contact Mary at [email protected].
Since the start of my first year of law school, I have taken nine exams, written two in-depth, extensively researched papers, and read more cases than I can count. None of those things, which would end up determining my overall GPA and class rank, made me more nervous than the pass/fail oral argument that wrapped up my Legal Methods II class.
I do not remember much about what I said during those eight, grueling minutes of spotlight. What I do remember is walking in and seeing the “judges” sitting up on the bench looking very serious, robes and all. I remember my legs shaking behind the podium so vigorously that I thought I was going to fall right out of my heels. I remember talking so fast that I kept forgetting to take a breath. I remember being asked a question that I was not ready for and thinking that I was going to have to concede my whole argument. While the argument was not graded, it was based on the appellate brief I had written for that semester, which would determine my grade for the class. A lot of my nervousness about oral argument stemmed from worrying that I was going to be told that my entire argument was incorrect.
After my peers and I were done presenting our arguments, my professor and the other judges on the panel gave us constructive feedback. I was anticipating the worst, of course. Unexpectedly, all of the feedback I received was positive. No one mentioned any of the things that had made me feel insecure. To top it off, I received recognition from my professor for having one of the best oral arguments in my class. I am very proud of myself for earning that recognition, because looking back, I am still not quite sure what I did to deserve it. I think everyone in my argument group did just as well as I did.
Getting up in front of others, whether it be your professor, another attorney at your firm, or a judge, who will critique the merits of your argument, is an extremely nerve-wracking experience. Next time you encounter an inexperienced attorney who appears to be struggling with nerves or confidence, try to remember a time when you were in the same situation and felt the same way. Try to put yourself in her shoes. Remember what it felt like when you were not as knowledgeable about this profession as you are now. Try to offer them some simple words of encouragement because, if I have learned anything from my first argument, it is that something as small as “great job” can go a long way.
I use the award I received for my first oral argument as a reminder that even when I do not think I am doing well, so long as I adequately prepared and try my hardest, I am likely doing better than I think I am. If you are a law student or new lawyer, remember that you are probably being harder on yourself than anyone else will be.
Before my oral argument, with all the nerves and dread that the anticipation of it brought upon me, I was sure that I was going to hate it. Afterward, I immediately called my dad to tell him that I wanted to join the moot court team. Going forward, I will try to keep an open mind when given a new and intimidating task. I might like it. I might even be great at it. And maybe my legs won’t shake so much next time.
Monday, July 29, 2019
I recently received an email from the American Law Institute asking me if I would share information about their new podcast, Reasonably Speaking, on the blog. I happily agreed. According to their website, the ALI "is the leading independent organization in the United States producing scholarly work to clarify, modernize, and otherwise improve the law." Most law students and lawyers know ALI for their publication of the restatements of the law, which certainly fulfills this mission.
Reasonably Speaking is another way ALI encourages individuals to think more deeply about the law and how it can be improved. It features interviews with leading legal experts on "the most important legal topics of our time." The goal of the podcast is to see how law impacts society and leave the listeners "with a better understanding of how we got here and what we should consider as we forge ahead."
The podcast is just in its first season, but they have already produced several episodes that may be of interest to our readers:
"Douglas Laycock, an experienced Supreme Court advocate himself, moderates an insightful conversation between two prominent Supreme Court appellate lawyers. Former Solicitor General Seth Waxman of WilmerHale and former Assistant to the Solicitor General Nicole Saharsky of Mayer Brown share their personal experiences as well as their unique insight into the nation’s highest court."
"In this episode, we spend time with Kirkland & Ellis Partner Paul D. Clement, who served as the 43rd Solicitor General of the United States from June 2005 until June 2008. Before his confirmation as Solicitor General, he served as Acting Solicitor General for nearly a year and as Principal Deputy Solicitor General for over three years. He has argued nearly 100 cases before the United States Supreme Court."
"Justice Goodwin Liu of the California Supreme Court talks to Judge Jeffrey Sutton of the U.S. Court of Appeals for the Sixth Circuit about the distinct yet parallel importance of the state court systems and the federal court system, including how we came to value so highly the federal system; why we should pay more attention to our state courts and constitutions; and what we as citizens, educators, and advocates should do going forward."
I have not had a chance to listen to these podcasts yet, but I look forward to doing so soon.
Thursday, July 25, 2019
Welcome to Thursday’s Rhaw Bar: A Little Bite of All Things Rhetoric and Law. In this series, the Blog will explore ideas, theories, strategies, techniques, and critiques at the intersection of rhetoric and legal communication.
Today’s Rhaw Bar introduces the concept of rhetorical ontology to help explain the persuasive power of the list. In my last post, I suggested that the list has the visual rhetorical features of stacking-up and setting-off information. In this post, I explore other persuasive features of the list through the lens of rhetorical ontology.
This post is not an exhaustive introduction to rhetorical ontology: consistent with the Rhaw Bar theme, we’ll be savoring just a little ‘bite” of the theory. While some readers may be skeptical about a post that explains rhetorical theory, I think that legal communicators become expert legal communicators when they understand rhetorical theory and use it to inform their writing. Understanding rhetorical theory makes legal writers wiser practitioners of the craft; writers can make better choices because they understand—or at least have a plausible way of understanding—why some rhetorical choices might be better than others in a given situation. What I’ve learned in twenty years of teaching legal communication is this: legal communicators with a working knowledge of rhetorical theory have a multitool at their disposal; without it, they risk using the same pocket knife for everything. That is, theory provides better understanding that leads to better doing.
So, with that, let’s look at rhetorical ontology as a theory that can help develop ideas about the way lists work to persuade in legal writing.
Rhetorical ontology —also known, loosely, as the “rhetoric of things”—posits that rhetoric happens at the level of material objects, not just at the level of language. That is, rhetoric is not just about humans assigning meaning to the objects around them. Rather, “things” have their own rhetorical agency—they are agents that interact in and impact rhetorical relationships.
Because rhetorical ontology focuses on the rhetorical agency of objects, one might think that “things” are limited to non-textual objects like trees or couches or rain or the freeway. But, as Scott Barnett and Casey Boyle point out in the excellent introduction to their book, The Rhetoric of Everyday Things, the classical rhetoricians recognized the ontological features of rhetoric in texts and symbols (interestingly, in the kind of texts lawyers work with):
One of the ways Aristotle [in his writings on rhetoric] distinguishes artistic and nonartistic proofs . . . is on the basis of their thingness and material reality. Artistic proofs are those the rhetor herself invents, and they include, most prominently, syllogisms and enthememes. The forms of nonartistic proof, on the other hand, Aristotle defines as laws, witnesses, contracts, tortures, and oaths. Although each of these has a clear discursive dimension, what distinguishes them from artistic proofs is that they “are not provided by ‘us’ but are preexisting.”
So, rhetorical ontology in brief writing, for example, might be thought of as the idea that the typical features of a brief (e.g., a question presented or jurisdictional statement) have persuasive agency in and of themselves, before we as writers creatively engage them. Extending a bit further, Barnett and Boyle suggest that rhetorical things “gather” other rhetors to interact on matters of common concern. In the context of a legal document like an appellate brief, motion, complaint, answer, discovery request, or contract, the document gathers to it other rhetors (e.g., attorneys, judges, clients, property, or other documents) to interact with it in particular ways that the document itself helps to define.
So, how does a list in legal writing gather us as writers and readers to a matter of common concern in a legal document? As I alluded in my prior post, a list gathers writers and readers to it by setting off and stacking up information. The ability to use white space to draw attention to itself and to show the weight of an argument are two aspects of the list’s rhetorical “thingness.”
But, a list has other rhetorical features that reveal themselves through the lens of rhetorical ontology: lists can convey disjunction, disrupt flow, create units for analysis, flatten hierarchies, and resist narrative.
Academic and video game designer Ian Bogost in his book, Alien Phenomenology, Or What It’s Like to be a Thing, places lists in the category of “ontographs”—“record[s] of things juxtaposed to demonstrate their overlap and imply interaction through collocation” (i.e. placing things side by side). Accordingly, says Bogost, lists produce disjunction, rather than flow, in presenting the relationship between concepts. Lists, in other words, let us see a collection of things or the units of an argument, concept, or idea, without necessarily showing the flow or connections between them. Moreover, in her book chapter, Cookery as Flat Ontography, academic Katie Zabrowski Dickman adds that lists, “upon reading, are jarring. The literal flow of our reading is disrupted as we traverse the commas between words in a list both visually and with our breathing. The jarring is productive, attuning us to the distinction between objects.” Zabrowski says that lists also resist the typical narrative structure of the “story”—a structure that legal writers frequently privilege in briefs as a way of presenting the client’s case.
Two examples from legal writing show the power of Bogost’s and Zabrowski’s theorizing to explain the persuasiveness of a list.
Local Rules for Statements of Material Facts. Consider a version of the federal district court local rule that governs the features of summary judgment motions. That rule requires the statement of undisputed material facts in a motion be presented in a numbered list. For example, Local Rule 56.1(a) of the United States District Court for the Northern District of Illinois provides:
[A] moving party shall serve and file . . .a statement of material facts as to which the moving party contends there is no genuine issue and that entitle the moving party to a judgment as a matter of law. . . . The statement . . . shall consist of short numbered paragraphs . . . . Absent prior leave of Court, a movant shall not file more than 80 separately-numbered statements of undisputed material fact.
The local rule emphasizes the lists’ rhetorical features highlighted above. First, the short numbered paragraph format dictates that the facts are detached from each other, broken apart into smaller units for consideration. This means that the separateness and isolation of each fact unit is emphasized, and a view of the facts as a whole is de-emphasized. Notably, the responding party is expected to engage the facts in the same disconnected manner, responding to each of the numbered fact paragraphs separately. Rhetorically, then, by demanding a list of facts, the rule privileges disconnection over connection, separation over integration.
Second, by requiring the presentation of material facts in a list, the rule limits writers’ ability to present facts in a narrative arc—a form that emphasizes the relationship between facts. Instead, the side-by-side nature of the list’s items makes the presentation less hierarchical; no one fact appears more important than another. The facts are presented as separate units with equal weight. By looking at the list an an ontograph, we can better appreciate how the local rule rhetorically shapes how the information in the list is structured, controlled, and ultimately perceived.
Creating Categories in Judicial Opinions. Consider a footnote that appeared in the United States Supreme Court’s recent opinion in American Legion v. American Humanist Association, where the Court held that The Bladensburg Cross, a World War II memorial displayed on public property in Prince George’s County, Maryland, was not an unconstitutional establishment of religion under the First Amendment. In his opinion, Justice Alito set out a numbered list proposing six “rough” categories of Establishment Clause cases (internal citations omitted):
(1) religious references or imagery in public monuments, symbols, mottos, displays, and ceremonies; (2) religious accommodations and exemptions from generally applicable laws; (3) subsidies and tax exemptions; (4) religious expression in public schools; (5) regulation of private religious speech; and (6) state interference with internal church affairs.
Justice Alito then suggested the possibility of seventh category in a separate sentence, saying “[a] final, miscellaneous category, including cases involving such issues as Sunday closing laws. . . and church involvement in governmental decisionmaking, . . . might be added.”
In Justice Alito’s categorizing footnote, the rhetorical ontology of the list can be seen at work. First, using a list format highlights a point that appears important to Justice Alito in the body of his opinion—the Establishment Clause is not an abstract monolith; instead, the clause is made up of six separate categories, each of which must be considered separately. Justice Alito effectively uses the list structure to explode the abstract “whole” of the Establishment Clause and describe it as real spaces and events of the lived-in world—monuments, schools, churches, speech, and taxes, for example. By presenting the Establishment Clause as a collection of things, his opinion, then, can focus on just one of them.
Moreover, Justice Alito’s use of the list avoids the problem of creating a hierarchy of Establishment Clause categories; he does not need to explain to the reader how the categories relate to each other. While readers might infer a hierarchy or relationship between the categories, Justice Alito offers them a side-by-side equals, each apparently as important as any other, each distinct from any other.
What can we make of Justice Alito’s last and separate sentence that identifies a seventh “miscellaneous” category? This sentence, by its contrasting style, helps to show just how rhetorically effective Justice Alito’s six-part list is in avoiding hierarchy. By placing his seventh category in a separate sentence, he demotes it in relation to the other six thereby creating hierarchy. (We could also imagine a situation where separating an item from a list in this way would promote it in a hierarchy; for example, Justice Alito might have used his final sentence to say something like, “A final category, category X, is the most important one of all.”)
So, in sum, understanding rhetorical ontology lets legal writers think about the rhetoric of the “things” we encounter in documents and to imagine those things as having their own persuasive features that pre-exist and guide our interactions with them. With respect to lists in legal writing, rhetorical ontology helps us see that a list’s rhetorical “thingness” includes
• Flattened hierarchy,
• Non-narrative structure,
• Unit (v. holistic) view,
• Juxtaposition, and
Kirsten Davis teaches at Stetson University College of Law and in the Tampa Bay region of Florida. The views she expresses here are solely her own and not intended to be legal advice. You can reach her at [email protected].
Tuesday, July 23, 2019
Today begins the Fourteenth Annual NAACA (National Association of Appellate Court Attorneys) Conference, where staff attorneys from state and federal appellate courts will gather together to celebrate their unique positions in the appellate system, to relax, to fellowship, and to educate themselves. When I was working as a staff attorney, I looked forward to the conference and served on the education committee, planning sessions and finding speakers. The conference is one of the best conferences I have attended in terms of legal education, resulting in several hours of available CLE credit each year.
What I enjoyed most was being able to talk to colleagues from around the country, and learn from their experiences. After Katrina, I had the opportunity to go to New Orleans and learn how the floods had impacted the administration of justice, and how the courts were learning from that experience and were adjusting their methods of storing documents. From my colleagues around this country, I learned about management, and efficiency, and devotion to one’s calling.
This week, I tip my hat to you. I hope your conference is filled with excellent sessions, good food, and heartwarming fellowship.
This is a guest post by John Browning. John is a partner in a Dallas law firm, where he handles civil litigation and appeals in state and federal courts. He is the author of multiple books and many articles on social media and the law.
In our increasingly wired world in which over 82% of adult Americans maintain at least one social networking profile—and in which Facebook boasts over 2.2 billion users and Twitter processes a billion tweets every 48 hours—the potential for using social media in ways that violate attorneys’ ethical restrictions looms large. Lawyers across all practice areas have tweeted, Instagrammed, posted, and Snapchatted their way into disciplinary proceedings, judicially-imposed sanctions, and other forms of ethical hot water. But in the comparatively staid, even monastic confines of the appellate world, can appellate lawyers fall prey to the siren song of social media?
The answer is a resounding, if somewhat surprising, “yes.” Appellate lawyers, clerks and other court staffers, and even judges have seen their online activities result in public embarrassment, job loss, and disciplinary action. And while reviewing the record in an underlying case and engaging in legal research may not be typical paths to social media misuse, breaching confidentiality by discussing certain aspects of a case on social media platforms is a very real danger.
Let’s begin with a cautionary tale. Sarah Peterson Herr was a newly-minted graduate of Washburn University School of Law in Kansas in 2010 when she started her first job at the Kansas Court of Appeals as a judicial assistant to Judge Christel Marquardt. About a year later, she was promoted to research attorney, the position she held on November 15, 2012. When she reported for work that day, Herr noticed that there was an unusual amount of security. She soon learned the reason why: that day, the Kansas Supreme Court would host an attorney disciplinary proceeding against former Kansas Attorney General Phill Kline. While serving as attorney general, Kline attracted controversy over the use of his office to investigate and prosecute abortion providers such as Planned Parenthood.
Herr decided to view the oral arguments using the computer in her office, where she also proceeded to “live Tweet” the proceedings, sending out a series of tweets that included the following:
- “You can watch that naughty naughty boy, Mr. Kilein [sic], live! live.kscourts.org/live.php”
- “Why is Phil Klein [sic] smiling? There is nothing to smile about douchebag.”
- “ARE YOU FREAKING KIDDING ME. WHERE ARE THE VICTIMS? ALL THE PEOPLE WITH THE RECORDS WHO WERE STOLEN.”
- “You don’t think a sealed document is meant to be confidential. BURN.”
- “I predict that he will be disbarred for a period not less than 7 years.”
- “I might be a little feisty today.”
With that last note, about whether or not she might be too “feisty,” Herr may have made her most salient observation. While she did not associate her tweets with her job, at least some of Herr’s Twitter followers were aware of her position with the Court of Appeals, and now everyone also knew her opinion of Phill Kline—including her accusation that Kline’s “witch hunt” helped lead to a doctor’s murder. A journalist with the Associated Press learned of Herr’s tweets and contacted the Kansas Judicial Center’s public information officer the next day for comment, and shortly thereafter Herr was placed on leave and, falling on her sword and issuing an apology:
I didn’t stop to think that in addition to communicating with a few of my friends on Twitter I was also communicating with the public at large, which was not appropriate for someone who works for the court system . . . I apologize that because the comments were made on Twitter—and thus public—that they were perceived as a reflection on the Kansas courts.
The following Monday, Herr was terminated. Within days, she was referred to the Kansas bar’s disciplinary body by the clerk of the appellate courts, and in January 2014, Herr was found to have violated Kansas Rules of Professional Conduct 8.4(c) (about engaging in deceit or misrepresentation) and 8.4(e) (about implying on ability to influence a government agency). She received an informal admonition and became a cautionary tale for the Digital Age.
Even appellate judges can misstep or overshare on social media platforms. In November 2017, Ohio Supreme Court Justice Bill O’Neill was also a Democratic candidate for governor of Ohio. On the national landscape, U.S. Senator Al Franken of Minnesota was embroiled in a highly publicized scandal involving his alleged sexual misconduct with radio host Leeann Tweeden during a 2006 USO tour. Inexplicably, Justice O’Neill felt compelled to weigh in on what he described as the “national feeding frenzy about sexual indiscretions” with a “too much information” Facebook post about his own sexual history. Saying it was “time to speak up on behalf of all heterosexual males” and expressing that he would “save my opponents some research time,” Justice O’Neill posted the following:
In the last fifty years I was sexually intimate with approximately 50 very attractive females. It ranged from a gorgeous personal secretary to Senator Bob Taft (senior) who was my first true love and we made passionate love in the hayloft at her parents barn in Gallipolis and ended with a drop dead gorgeous red head who was a senior advisor to Peter Lewis at Progressive Insurance in Cleveland.
O’Neill’s Facebook post led to an immediate backlash, including from his own party. O’Neill had already been widely criticized for his refusal to resign from the Supreme Court while openly proclaiming his candidacy for governor. Ohio Chief Justice Maureen O’Connor stated “No words can convey my shock. This gross disrespect for women shakes the public’s confidence in the integrity of the judiciary.” Justice O’Neill deleted his post but posted new comments on Facebook, at first lambasting his critics. O’Neill eventually posted an apology, but the damage was already done.
Appellate lawyers and judges should not only be aware of the ethical risks presented by their own misuse of social media, they also have to be mindful of what their lawyer and non-lawyer staff might be posting. Appellate courts, including the Supreme Court of Texas, have begun implementing social media policies for that reason. Courts’ internal handling of matters before them are confidential, and courts must balance the First Amendment freedoms of current and prospective court employees with the courts’ legitimate interest in protecting the integrity and efficiency of their work. The online activities of court employees can implicate or even threaten multiple ethical obligations, including the duty to maintain confidentiality, the duty to avoid conduct that would jeopardize the integrity and independence of the judiciary, and the duty to avoid any conduct that would cause a reasonable person to question the impartiality of the court.
One current lawsuit illustrates the dangers of court staffers’ social media activity when they communicate in such as way as to make their affiliation with an appellate court known. In May 2018, Olga Zuniga—a former secretary to Court of Criminal Appeals Judge Kevin Yeary—filed a federal lawsuit complaining that she had been fired from her job because of Facebook posts in which she criticized President Trump and other Republican politicians while praising Democratic politicians. According to the lawsuit, Zuniga had worked as a career legal secretary in state government, including at the Texas Attorney General’s Office, and had been an executive assistant at the Court of Criminal Appeals since 2003. In November 2016, Zuniga alleges Judge Yeary “counseled” her about her Facebook posts critical of Republican figures. Zuniga maintains that Judge Yeary’s periodic reviews of her Facebook activity continued throughout 2017, with Judge Yeary expressing “disapproval” of her politically-charged posts. Ultimately, according to Zuniga’s lawsuit, after again disapproving of posts Zuniga made in September 2017 critical of stances taken by both Governor Greg Abbott and Lt. Governor Dan Patrick on immigration-related issues, Judge Yeary terminated her on October 11, 2017.
Judge Yeary and the Court of Criminal Appeals responded with two motions to dismiss, filed on July 30, 2018 and March 28, 2019 respectively. In both motions, among other arguments, the defense pointed out numerous examples of Zuniga’s Facebook posts associating herself with the Court, its activities, and its personnel, as well as posts containing lewd content, to demonstrate her use of Facebook while at work on her official state computer. The motions also argued that dismissal was warranted based on the fact that, as someone employed in a judge’s chambers, Ms. Zuniga was an employee with access to confidential information, and one whose job functions required trust and loyalty. Moreover, Ms. Zuniga’s online comments suggesting that partisan elected judges could not be trusted if they belonged to a certain political party undermined the Court’s interest in maintaining authority and credibility. In addition, the motions to dismiss also argued that, as Zuniga herself had admitted, there were other factors leading to her termination, such as attendance problems, inaccurate leave reporting, the failure to complete assignments, and other job performance issues unrelated to any dispute over plaintiff’s political views. The court has not yet ruled on either of these dismissal motions.
In today’s digital environment, social media allows commentators incredible reach with the blinding speed of a search engine. Consequently, appellate attorneys—like their counterparts in other practice areas—need to be mindful of that when they express opinions online or on social media platforms, even when they think they are acting in a purely personal capacity. Lawyers face heightened public and ethical scrutiny when they make statements on social media, so if you wouldn’t put it in a letter or pleading, you probably shouldn’t post it on Facebook or tweet about it.
Monday, July 22, 2019
Today, Justice John Paul Stevens lays in repose at the Supreme Court. Later, he will be buried at Arlington National Cemetery. Justice Stevens died last Tuesday at ninety-nine years old, after retiring from the Supreme Court in 2010 at ninety. When he retired, he was the third longest serving Justice in Supreme Court history.
President Ford, a Republican, nominated Justice Stevens, who became a leader of the liberal voices on the Supreme Court. According to Jan Crawford Greenburg in her 2007 book, Supreme Conflict: The Inside Story of the Struggle for Control of the United States, Justice Stevens “was a Maverick who didn’t ascribe to a particular theory. He was fiercely independent in his writings and actions. When the justices donned their robes before taking the bench, Stevens was the only one who refused assistance from the aides in the robing room. He always insisted on putting on his own robe. He took his own path in his opinions, too.”
Live coverage at the Supreme Court today on C-SPAN:
A biography of Justice Stevens at Oyez.org:
Paul Clement’s Tribute on SCOTUSblog:
Sunday, July 21, 2019
Bee to the blossom, moth to the flame; each to his passion; what's in a name?
-- Helen Hunt Jackson
Good writing is intrinsically connected to memory. The more memorable our writing, the easier it is to read. And the more enjoyable. Just think about when you read. If you get a few pages in and the author is talking about "the aforementioned case," and you can't remember what the heck that case is--you get frustrated. You have to flip back and figure out what the author is talking about. The experience is anything but smooth.
A profound truth thus reveals itself: The important things in your brief should be easy-to-remember. That way, when you return to those things later, your reader won't have to struggle to follow along.
But making all the important points memorable is tricky for us lawyers. We talk about a lot of convoluted, esoteric stuff. Not to mention the acronyms. Don't get me started on the acronyms!
What's the answer? Consider the power of names.
Naming things can be profound—it instantly makes them easy to remember. This is how ancient orators remembered impossibly-long speeches. They used words, and their associations, to name concepts and burn them into memory. So spend time coming up with memorable and pithy names for the important concepts, points, arguments, statutes, and yes, acronyms. Your readers will love you for it.
For example, take this lawyer who described his rule interpretation at length and then distilled it down into a nice little package for easy carrying throughout the brief:
The courts have thus created an ‘any touch is enough’ requirement for plaintiffs seeking emotional harm. Literally. A brush in a subway. [cite]. A tap. [cite]. A nudge with a foot in a crowded elevator. [cite.]
Now, later in the brief, when the lawyer uses the “any touch is enough” moniker, the reader will instantly remember all the great work the lawyer did in building that rule interpretation.
Another benefit of naming is that it’s an easy way to link ideas, paragraphs, or sections to connect different aspects of one cohesive idea. For example, in the first section of your brief, let’s say you talked about how if there is “no search, there’s no violation” a few times. In later sections of your brief, you should use that same nomenclature—that way your reader can connect the two sections and points.
You can name any important thing that you can think of. Just the act of naming it will help your readers trigger that thing's meanings. To get you started on your naming adventure, here are some common examples (followed by some thoughts about acronyms, because they warrant special attention).
First: Name the important stuff
A statutory provision. Repeating a statute’s numbers is horrible; who can remember that? Consider giving statutes a short name, especially if you use a specific provision a lot in your document, or you deal with multiple provisions frequently.
A factual concept. If you make the effort to explain a key fact, and it's complicated, give it a name:
A document or exhibit you cite to or rely on that’s important. We lawyers often repeatedly refer to a document or two in our briefs--why not pick a persuasive name for them?
Lots more. Any other concept, fact, principle, or idea that is complicated and would be easier to recall with an easy-to-remember name.
Second, use acronyms with care
Acronyms, let me just say, suck. They are a bunch of letters thrown together that your reader must somehow recall ten pages into your document. I’m not a fan, and the science isn’t either. This goes triple for a long or unfamiliar acronym. Yes, your reader can process CIA just fine. But not MSFGFDH (a real acronym from a federal brief!).
So instead, prefer parties’ names or familiar descriptors, not acronyms. Even just the simple act of referring to parties by words instead of a series of letters helps.
So, perhaps, instead of:
“The SLM Data Trust and Logistics Company, Inc (“hereafter referred to as “SLMDTLC”)
“The SLM Data Trust and Logistics Company, Inc (“Data Trust”).
Get on the naming train!
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.
Tuesday, July 16, 2019
Many arguments consist of two main parts—an articulation of the law and an application of that law to the client’s facts. I thought the second part, arguing how the law applies to the facts, is where I persuaded the court to rule in my favor. However, I’ve learned that how I describe the law, before I ever apply it to the case, is equally important for effective advocacy.
When explaining the law in a brief, attorneys draw from authority. Sources of law are often written objectively. In a brief, simply paraphrasing or quoting court opinions or statues in their objective form neglects an opportunity to tell the client’s story using the law.
In their book Just Briefs, Laurel Oates, Anne Enquist, and Connie Krontz describe several techniques for telling the client’s story with the law. These techniques focus on presenting the law from the client’s perspective.
It can be challenging to draft the law from the client’s point of view while pulling from objectively written sources. I recommend writing a clear description of the law and then editing it for persuasion.
Let’s look at an example of how to edit a statement of the law to punch up its persuasiveness.
Objective Statement of the Law (First Draft)
[I’ve omitted citations for ease of reading, though citations can also be used to persuade the court.]
Covenants not to compete within employment contracts are matters of law for a court to decide. Typically, covenants not to compete are disfavored under the law. The party seeking to enforce the covenant bears the burden of proving its reasonableness. Courts will find a covenant not to compete is reasonable, and therefore enforceable, when the covenant is “narrowly tailored” to protect the employer’s legitimate interest, the covenant does not impose an “undue hardship on the employee,” and the covenant is not “injurious to the public interest.”
Persuasive Statement of the Law (Revised Version of First Draft)
[Assume we represent an employee challenging the enforceability of her covenant not to compete with her employer. By editing the objective statement above, we present the law from the client’s perspective, which is that the covenant not to compete is unreasonable and unenforceable.]
The New Hampshire Supreme Court has repeatedly held that covenants not to compete are disfavored under the law. The unreasonableness of a covenant not to compete is a matter of law for the court to decide using a three-prong test. First, a covenant is unreasonable if it is not “narrowly tailored” to protect the employer’s legitimate interest. Second, the covenant is unreasonable if it imposes an “undue hardship on the employee.” Third, the covenant is unreasonable if it is “injurious to the public interest.” A covenant not to compete is unreasonable, and therefore unenforceable, unless the employer, as the party bearing the burden of proof, can prove all three prongs.
Checklist of Edits Transforming Objective Into Persuasive
- We reworked a sentence describing law that is favorable to our client to emphasize that this point has been routinely espoused by the highest court in the jurisdiction. While the citation would show this statement came from the New Hampshire Supreme Court, our text stresses that this portion of the law is firmly established by precedent.
- We changed the order of sentences to take advantage of the beginning of the paragraph as a position of emphasis. We start the rule strong.
- We reworded portions of the rule to reflect the outcome our client wants. We changed “enforceable” to “unenforceable” and “reasonable” to “unreasonable.”
- We made the three-prong enforceability test, which the opposing side (employer) must prove, appear more difficult to meet by breaking it into three separate sentences.
- In order to emphasize the conjunctive nature of the rule, we repeat the statement that all three prongs of the test must be met.
- We end strongly with a portion of the rule that is favorable to our client, which is that the employer bears the burden of proof. The end is also a position of emphasis.
Amanda Sholtis teaches legal analysis and writing at Widener University Commonwealth Law School in Harrisburg, Pennsylvania. You may contact her at [email protected].
Monday, July 15, 2019
This is a guest post by Raffi Melkonian, a partner at Wright Close & Barger in Houston, Texas.
The day after I gave my first (and only!) United States Supreme Court argument, I put up a thread on Twitter (where I post as @RMFifthCircuit) about my oral argument preparation. It was well-received, and many people encouraged me to tease it out a little into a blog post or article. This is my first attempt to do exactly that. A caveat: these thoughts are for people like me. That is, lawyers who don’t normally practice in the rarified air of the Supreme Court. It’s advice for the first-time tourist, not the experienced traveler. Maybe it’s even good advice for the new lawyer preparing for their first appellate argument. So if your name is Paul Clement or Neal Katyal, stop reading!
One more thing. This post is not about briefing. Yes, it’s conventional wisdom that the merits brief is the most important part of the Supreme Court presentation. I think that’s true. And yet, it’s a complicated topic that goes far beyond the scope of this post.
Anyway, oral argument is the moment many first-time advocates focus on, and with good reason. It’s the one time you’re alone with the nine justices of the Supreme Court. No one can help you. And, the stakes for your client are high. Not many cases are won at argument, to be sure, but some are lost. In Justice Ginsburg’s words, “I have seen potential winners become losers in whole or in part because of … oral argument.” But the advocate too has some skin in the game. As I know from scrutinizing arguments on #AppellateTwitter, a lawyer’s missteps at oral argument are judged harshly by the commentariat. You don’t ever want to be that guy.
So what then? The answer is intense and unrelenting preparation. Listed below are some of the strategies I used to get ready. But remember, excellent lawyers prepare differently. What may work for me won’t work for you, and the reverse. So, as they say on the Internet, Your Mileage May Vary.
- My grandmother, like many Catholics, would read a small prayer book every morning, a daily devotional. It seemed to me that I needed to know all of the briefs as intimately as she knew her prayers, so I had all the pleadings set out in a binder – our briefs, their briefs, and the various amici – and I read them every morning. I took notes, of course, but mainly the point was to read them again, and again, and again.
- David Frederick, the famous Supreme Court lawyer, recommends in his book on oral argument that you spend much of your time thinking of questions the Court could ask you. That’s part of my normal oral argument preparation, and I took his advice doubly to heart for SCOTUS. I spent hours thinking of as many questions as possible. I scrawled some of these questions on note cards, some I typed. No question was too benign, and none too difficult. The hardest work was writing out extensive answers to each question.
- I wrote a very short outline of what I wanted to say, and practiced in front of a camera at a podium (well, a cardboard box) many times. A picture I posted on twitter of that effort was even turned into a meme by the incredibly creative @AliceLfc4, a court clerk in Florida (here’s proof!). Every 20 seconds or so, I’d pick a question from my pile and ask it to myself, and then answer, and then practice pivoting back to what I was trying to say. This effort required many edits to my note card answers. Some of my answers were bad, others too long. Over time, they became tighter, more focused, pithy. Well, as pithy as I get, anyway.
- Ultimately, I became convinced that there were only six thematic sentences I needed to say, no matter what. I wrote these on a notecard and practiced saying them during my note card answers. The goal was to say each of the six at least once in any practice session. I got five of them out during the actual oral argument.
- I did three moot courts in total, beginning about two weeks before the argument. I spent two days before the moot preparing for the argument, and then the entire day after the moot incorporating the feedback. Needless to say, I am ever grateful to the teams at Stanford, Public Citizen, and the Georgetown University Law Center Supreme Court Institute that mooted me.
- Finally, consider the physical space. I hadn’t been to the Supreme Court since college, and so I picked an oral argument day earlier in the week to observe. This turned out to be a good idea. The space is both overwhelming and tight, and knowing what it feels like helped put me at ease when I went for real. Plus, I had many guests with me, none of whom had been to the Court either. Being able to give them real world advice about the process of getting in and to the courtroom (though really, you can just read Jaime Santos’s go-to thread) was invaluable.
An article I read before the argument helpfully advised that most advocates do not faint at the Supreme Court’s podium. At the time, I felt that was rather macabre. But with the right preparation, a Supreme Court argument can be enjoyed rather than endured. I know I enjoyed mine.
Thursday, July 11, 2019
Thursday’s Rhaw Bar: A Little Bite of All Things Rhetoric and Law
Welcome to a new theme for posts on the Appellate Advocacy Blog: Thursday’s Rhaw Bar: A Little Bite of All Things Rhetoric and Law. In this series, the Blog will explore ideas, theories, strategies, techniques, and critiques at the intersect of rhetoric and legal communication. Today we take a behind-the-scenes look at the rhetorical power of the “visual list” in brief writing.
In his excellent post a few weeks ago, professor and blogger Joe Regalia identified the myriad ways to use visuals in briefing, and he pointed out the “visual list” as a persuasive way to present information. He noted that the technique is particularly effective for summarizing information.
The list is perhaps the original visual in brief writing—a writer can construct a list on manual typewriter or even with pen and paper; all one needs is the ability to indent, input text, and separate list items, such as with a number or icon (like a bullet point). But why does a list work as a visual as well as a textual persuasion device? In other words, if a reader never actually reads the text of a list, would the list still persuade? Does the list have rhetorical features as a “thing” unto itself, beyond the words that compose it?
As Professor Regalia’s post suggests, a list has a visual rhetorical effect all its own. A list is effective as visual rhetoric because a list sets off and stacks up information.
1. Lists visually set off information that the writer wants to mark as important.
Lists effectively use white space to set-off information, which shows its importance. Readers, even if they don’t consciously recognize it, use white space as a cue about how to respond to text. For example, think about paragraph breaks; the white space between two paragraphs and an indentation at the beginning of the first line of the second paragraph (which itself is a unit of white space) are cues to the reader that something important is happening—the new paragraph leaves behind the original topic and introduces a different topic. And the reader gets this information simply by skimming a page; the set-off is persuasive even before the reader actually reads the text content. (Try this yourself—take a look at the whole of a page of text—what does the white space say to you?)
The message of white space to set-off text is even more pronounced with lists, particularly when a list is indented from the left margin. When the reader encounters an indented list, the reader gets an immediate cue that something is special about the ideas captured in the list; the white space around it conveys that message. This white space says to the reader “Stop! Look here! This text is different from the rest of the information on this page. It is special, so pay extra attention.” And this cue works to persuade even before the reader engages the list’s content.
2. Lists stack up points of information to visually demonstrate weight or volume.
As a visual rhetorical tool, a list can have the effect of stacking up information to convey the weight or volume of the information presented. Think of a tower of kid’s building blocks. The taller the stack, the more impressive and memorable the tower for its sheer size alone. In the context of brief writing, then, a list can visually convey the strength of a point even before the reader reviews the list’s content. For example, take this list of triggers for using a graphic from Professor Regalia’s article:
• 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.
Now compare Professor Regalia’s same list, presented in paragraph form:
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.
Although the traditional paragraph contains the same information as the list, the paragraph makes less of a visual impact in conveying the number of situations where it would be appropriate for a writer to use a graphic in a brief. In the paragraph, the writer loses the visual impact of the “stacked” list, which, by virtue of the height of the stack, effectively conveys the many opportunities for brief writers to use graphics.
In the context of a brief, a list’s visual effectiveness in stacking up its content can prime the reader to understand the list’s content in the way the writer wants. For example, in Professor Regalia’s list above, the reader who encounters this long list is primed to believe that the circumstances for graphic use are many. In the paragraph format, however, this “stacking” strategy is less effective; it is not as easy for the reader to see, before reading the paragraph in detail, that there are many opportunities for graphic use. (This comparison also suggests that if the writer wants to de-emphasize the weight or volume of information, the reader would not choose a list format and instead keep all of the information in a paragraph.)
If we go one more step and number the list items (i.e., 1., 2., 3., 4.), the list becomes even more visually persuasive because the reader is immediately cued to the size of the stack—six uses of graphics in briefs.
So, what do these two effects—set-off and stack-up—suggest for using lists? Consider formatting information into a list to accomplish these goals:
- To give the reader the visual impression that textual information is uniquely important and should be given special attention; or
- To show the reader—through formatting—that the items in your list are weighty, numerous, or otherwise substantial; or
- To accomplish both.
Kirsten Davis teaches at Stetson University College of Law in the Tampa Bay region of Florida. The views she expresses here are solely her own and not intended to be legal advice. You may contact her at [email protected].
Tuesday, July 9, 2019
Last month, there was a short article in the Chronicle of Higher Education entitled "Why Writing Better Will Make You a Better Person." In the article, two professors of philosophy who teach ethics (Bob Fischer and Nathan Nobis) put forth the idea that good writing leads to more ethical behavior, because it involves several ethical ways of thinking. The article is linked here.
In their article, Fischer and Nobis suggest that writing is an ethical activity, and that becoming a better writer can make you a better person. In so arguing, they suggest several high-level ethical norms that should motivate good writing:
- Try to do good things and avoid causing bad ones. Writing causes feelings in the reader. We should try to cause good feelings and good consequences, and avoid causing bad ones.
- Respect everyone, including your readers, as inherently valuable and rational beings. Don't waste your reader's time. Respect them enough to be clear and concise.
- Follow the Golden Rule. Treat your reader as you would like to be treated yourself. If you like straightforward, well-referenced, well-organized text, provide it to your readers.
In the end, the authors conclude that good character traits should produce good writing. Empathy requires always considering others and their needs and points of view. Compassion means you don't make your writing any more difficult to read than need be. Honesty requires the full truth, including bad facts and opposing arguments. Humility requires acknowledging that those competing arguments might have merit.
Conversely, the authors suggest that practicing these traits to be a good writer will make the writer a better person. Studiously respecting the reader, considering the merit of opposing arguments, and so on will help strengthen the corresponding ethical traits in the life of the writer.
As lawyers, we often divorce ourselves from general rules of ethics and focus on our professional rules of responsibility. But even there, we have the same obligations to fulfill. Our obligations include a duty of competency that requires thoroughness and preparation, See Model Rules of Prof'l Conduct R. 1.1, and a duty of candor, to the court and third parties, that requires us to admit factual and legal weaknesses in our arguments. See Model Rules of Prof'l Conduct R. 3.3, 4.1. And as the preamble notes, while many of the Rules govern our conduct directly, "a lawyer is also guided by personal conscience and the approbation of professional peers."
Numerous studies demonstrate further that ethical writing is more persuasive and effective. Simpler writing is more easily understand and followed by the courts. Admitting weaknesses enhances credibility, which is the coin of persuasion, while sloppiness in research or citations to facts or the law expends that credibility without reason. Our duties of competence and candor, therefore, are best served by being ethical in our writing, which also leads to the best results for clients.
It makes sense that, over time, adherence to these obligations in our writing and other client representations leads to their refinement in our characters. Ethical writing strengthens behavioral muscle that can, and should, work out in our daily lives. Conversely, unethical writing may serve as a warning sign for issues in the personal lives of counsel.
Seen in this light, teaching good legal writing to our students and young lawyers is an exercise in both effectiveness and ethics. The earlier we can convince our young lawyers of this, the healthier the bar will become.
(Image Credit: AndreasPraefcke, Wikipedia U. "Diogenes in Search of an Honest Man." Ancient History Encyclopedia. Last modified August 06, 2014. https://www.ancient.eu/image/2908/.)
Monday, July 8, 2019
The task of writing a statement of facts in a real-world appellate brief generally requires distilling significant amounts of information from the record. In Moot Court, you have typically have the fact section from the court opinion, a shorter and more focused treatment (though there are a few competitions out there that use entire appellate records). When looking at the fact section of an opinion and trying to make a statement of facts out of it, it can be difficult to write a story that has already been written. Some students are tempted to rely heavily on the phrasing and organization that was given in the problem, but that would be a mistake.
The statement of facts is an important part of your Moot Court brief, and there are some key things you can do to maximize your score in this section. As I’ve done in my other posts on sections of the brief for Moot Court, let’s start with scoring criteria from a sample competition:
STATEMENT OF THE CASE/FACTS
Does it engage the reader’s interest?
Are all legally relevant facts included?
Is it accurately, persuasively, and concisely written?
Is the procedural history clear? (15/100 points possible) ______________
To maximize your score on this section and stand out in all of the right ways, here are some tips:
1. Tell a story. The first criteria in this score sheet looks at whether the reader’s interest is engaged. Focusing on telling a story is the best way to grab your reader. People remember stories. Here’s an excellent blog post by Joe Regalia on Storytelling.
One key aspect on storytelling is to start in the right place. Spend time thinking about who your client is and where the story should start to ensure it presents the picture of your client you want.
2. Double check after you have written your argument that you included all of the facts that you used in your statement of facts. While you may write a draft of the statement of facts earlier in the process, until you have finished the heart of your brief, there may be little details that you missed at first.
And when you check your use of facts, make sure that you are giving specifics, not just generalizations. Also, have the record next to you as you draft; don’t just write from your memory. This is how inaccuracies are introduced. If something was said that was important, quote it!
3. Use headings and paragraph breaks to make it more readable. As a scorer, I am instantly annoyed when I confront a wall of text with no breaks. Headings and paragraphs help me see how you arranged and organized the various facts, and I can see how it all fits together before diving in.
4. Avoid arguing, but be persuasive. In the statement of facts, it’s important to be subtle and use focus, organization, and word choice to persuade. Don’t argue or come to legal conclusions, but do frame the facts to your client’s advantage.
Don’t underestimate the power of a strong statement of facts to tell your client’s story, and to help you maximize your brief score.
Sunday, July 7, 2019
Everyone writes a little different. But one place where we really change it up is in the beginning of the sections to our arguments. Some lawyers include multiple paragraphs (or even pages) of introductory exposition.
Other lawyers start with nothing at all, like this:
A. Section 1...
I think the latter approach may be a mistake (at least in most cases). Readers crave guidance and a roadmap at the outset of each section is helpful. And I don't mean just listing out the issues--but a meaningful roadmap. Explain why you are analyzing these issues, explain how the issues fit together with eachother, and explain how this section fits in with any others in your brief. That context will make it a lot easier for your reader to see the forest before the trees.
And these introductions can do even more. Like the overarching introductions to your briefs, these seques can include some persuasive framing to set up the coming arguments. Think of this like your section's brochure. And remember that, like any beginning, writing inviting prose here will instill a good first impression.
- Identifying each key point you will analyze in the section that follows.
- Disposing of any relevant side issues that you will not analyze, and explain why.
- Giving your reader any helpful context.
- Highlighting a persuasive fact or argument.
- Making the section look inviting--don’t bog it down with tons of cases of heavy writing.
Here’s an example of a roadmap done right from a brief filed in the Fifth Circuit. Note that the lawyer previews the persuasive pitch of the section (that the other side’s use of this doctrine is unprecedented and improper). Then he sets up the following three sections: one looking at the doctrine’s source, one discussing the underlying purpose of the doctrine, and a final section walking through the precedent:
Although González never identifies it by name, his argument is premised entirely on the application of the entry-fiction doctrine to this case. By invoking the entry fiction, he proposes to treat Martinez-Agüero as if she had been completely outside U.S. territory when he attacked her. What González does not disclose, however, is that the entry fiction has never been applied to determine legal rights and obligations vis-à-vis mistreatment of aliens as opposed to admission or exclusion determinations. Nor does he acknowledge this Court’s explicit rejection of the entry-fiction doctrine in such circumstances. An examination of the doctrine’s source, its rationale and the cases applying it demonstrates its inapplicability here.
Here’s another great one that roadmaps and inserts some zest from the persuasive argument coming. This writer also makes it even easier with a numbered list:
First, Ms. Gratz’s motion to intervene is untimely. Second, Ms. Gatz lacks a substantial legal interest sufficient to support her intervention. At most she has a mere desire to see Proposal 2 upheld for political and ideological reasons. Third …
Remember that, like headings, this introductory section sets the tone for the rest of the section. So make it look inviting. Good style will help with that. Avoid weighing this roadmap down with lots of citations, heavy sentences, complex details and concepts--or anything else that will make your reader dread reading on. Save the tough stuff for the body.
The start of your sections should be an elevator pitch that sells your section and promises an engaging and organized read to come. Here are some famous legal writers taking their time to roadmap their sections with fresh style. Note that the persuasive pitch for each section is bottled up in a quick intro sentence or two.
First, Justice Kagan:
That conclusion raises a second dispute between the parties: What is the proper scope of judicial review of the EEOC’s conciliation activities? The Government (once having accepted the necessity for some review) proposes that courts rely solely on facial examination of certain EEOC documents...
So with that guidance in mind, what's the prison's compelling interest at play in this case? We see three possibilities. [Followed by three summaries of the sections analyzing the possibilities]...
Judge Bybee (note how this Judge makes this intro even more useful by signaling to the reader that it's skippable):
In this section, I provide background on the source of Congress’s and the President’s authority to exclude aliens, the Executive Order at issue here, and the proceedings in this case. The informed reader may proceed directly to Part II.
Earley’s plan properly treats Traid’s claim as unsecured, but not because Hunt controls the issue. It does not. Triad’s claim is unsecured because of the nature of Triad’s lien and the interplay between [one Act] and the automatic stay under the Bankruptcy Code...
Some legal writers dive deeper into the persuasive pitch, especially if it's a big section with moving parts:
The two primary goals of this class action are to: (1) set aside Rapid Cash’s default judgments procured through its fraud upon the courts of Clark County and (2) judicially compel Rapid Cash to disgorge the substantial sums that it has collected from the class members under the purported force and effect of its illegally obtained judgments. The crux of this class action is thus equitable, not legal or procedural, in nature. In challenging district court jurisdiction, Rapid Cash relies heavily on the portion of JCRCP 60(b) authorizing motions to set aside justice court judgments. That rule and the specific portion relied on by RapidCash, however, has no relevance because this is an original, independent action in equity under the savings clause of NRCP 60(b), which falls within the exclusive jurisdiction of the district courts...
Take advantage of that empty space after your headings. Your readers will thank you.
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.
Friday, July 5, 2019
Each week, the Appellate Advocacy Blog Weekly Roundup presents a few tidbits of news and Twitter posts from the past week concerning appellate advocacy. As always, if you see something during the week that you think we should be sure to include, feel free to send Dan Real a quick email at[email protected] or a message on Twitter (@Daniel_L_Real). You can also send emails to Danny Leavitt at [email protected] or a message on twitter @Danny_C_Leavitt.
Supreme Court Opinions and News:
The New Yorker had an article this week addressing how the Court’s recent decision in Gundy v. United States likely foreshadows a shift in the Court’s position with regard to allowing Congress to broadly delegate authority to agencies. Gundy involved a challenge to Congress’ delegation to the Attorney General the decision of whether mandatory registration requirements under the Sex Offender Registration Act apply to individuals who were convicted prior to the Act’s passage. Gundy is such a defendant, did not register, and was charged and convicted as a result. He challenged Congress’ delegation as impermissible. As the article notes, the Court has long allowed Congress broad authority to make such delegations. In Gundy’s case, the Court was divided with the four more liberal Justices voting to continue allowing delegation, three more conservative Justices voting to deviate from prior law, and Justice Alito siding with the more liberal Justices but explicitly indicating that if a majority of the Court was inclined to change the law, he’d be on board. The decision in Gundy strongly suggests that the next case to raise the issue to the Court will likely be decided differently because Justice Kavanaugh had not yet been confirmed when it was argued and did not participate. The article notes that changing this practice of delegation may result in wide sweeping changes to federal government, as a substantial amount of federal law currently depends heavily on such delegations to agencies.
FiveThirtyEight.com had an article this week reviewing the voting habits of the members of the Court (especially the conservative members) since the retirement of “swing vote” Justice Kennedy. The article suggested that the Court could be viewed now as having three swing Justices, depending on the issues presented – Justice Gorsuch joined the more liberal members of the Court in more closely divided cases than any of the other more conservative Justices, while Justice Roberts provided the decisive vote on the recent census case. Additionally, the early voting trends suggest that Justice Kavanaugh is likely the current “middle” of the Court, pushing it more conservative even while he seems to be more ideologically moderate than Justice Gorsuch.
The ABA Journal took a look this week at Justice Thomas' 30 year career on the Court, emphasizing his enigmatic persona -- "supporters and detractors are still debating who he really is." He's now the longest-serving member of the Court and the senior associate Justice. On the bench, he's known for rarely speaking; off the bench, he's known for being quite jovial and chatty.
Federal Appellate Court Opinions and News:
In the Third Circuit Court of Appeals, Amazon was held strictly liable for injuries caused by defective products sold by other vendors on its website. The case was Oberdorf v. Amazon.com. More from the CA3blog.
State Appellate Court Opinions and News:
The Iowa Court of Appeals this week reversed a jury's decision that had awarded an Iowa couple $3.25 million after they claimed their adoption attorney failed to file paperwork on time and lead to them losing the child they planned to adopt. The couple cared for the boy for a few months, but were then required to return him to his biological parents after the couple's attorney did not have the biological parents sign termination of parental rights documents. The child died from severe head injuries a month later, and the biological father was convicted of second-degree murder. In reversing the malpractice damage award, the appellate court concluded that the couple had failed to show that the attorney engaged in illegitimate conduct especially likely to produce serious emotional harm and had not show that he had a duty to exercise care to avoid causing emotional harm. More here.
Practice Tips and Pointers:
Tuesday, July 2, 2019
The record has been compiled. Your research is complete. You stare at notes you scribbled while brainstorming. Now it’s time to write the brief. Where do you start?
Honestly, I never thought much about how to start writing briefs while I was in practice. I tackled each brief from the beginning with the Caption Page. I’d skip over the Table of Contents and Table of Authorities. Then, I wrote each section of the brief in the order it appeared, saving the Summary of Argument until after I finished the Argument section. Finally, I would compile the Table of Contents, the Table of Authorities, and the Certificate of Service. It never occurred to me that there may be a different way.
When I teach brief writing, I encourage students to start writing the most difficult section, the Argument, first. If a student is struggling with writer’s block, I will recommend she begin by writing a few of the “easier” sections, like the Caption Page, Conclusion, and Statement of Jurisdiction, before writing the Argument. These “easier” sections are independent of the arguments in the brief and can be written any time. Ideally, I think writing the Argument first is beneficial for several reasons.
First, the Argument section is arguably the most important part of the brief. I encourage students to spend the bulk of their time developing their arguments and writing them when they are the freshest. When I grade the brief, I spend most of my time in the Argument and I weigh this section the most heavily. My grading practice corresponds to my focus when I worked as an appellate-court law clerk. When I read the parties’ briefs, I always started with the Argument section. I spent most of my brief-reading time engaged with the parties’ arguments.
Second, writing the Argument can take a long time. Even if you begin with a detailed outline of points, the act of writing encourages deeper thinking on the issues. You may uncover an argument you hadn’t considered when you compiled your outline. As you write, you may see gaps in your research and may need to stop writing to find additional authority. Your theory or approach to the case may change as you write. You need time for the arguments to take shape. If you start with the Argument, you give yourself that time.
Third, developing your arguments first may lead to a better overall brief and save you time. The Argument section will likely influence how you write some of the other sections of the brief. You can unify your brief around a common theme, if you understand what your theme is after you have developed your arguments. For example, you may not realize what facts are truly important to your case until you have explored all your arguments. Writing the Argument section before writing the Statement of Facts helps you distinguish between the legally-relevant facts, which should be the foundation of your Statement of Facts, and the irrelevant facts, which should be left out. If you write the Statement of the Issues after you write the Argument section, you can incorporate your theory of the case or some persuasive facts from your arguments. Also, it is easy to highlight your key points in the Summary of Argument if you have fully formed them in your Argument first.
If you write the Statement of Facts, the Statement of the Issues, and the Summary of Argument before writing the Argument, you may have to spend time revising these sections to match the Argument section. Writing the Argument section first, and using it to guide how you write the other sections of your brief, can result in a better overall document written in less time.
Monday, July 1, 2019
This is a guest post by Prof. Catherine Christopher, a professor of law and associate dean for bar success at Texas Tech University School of Law.
My recent article, Normalizing Struggle, forthcoming in the Arkansas Law Review, critiques the many ways in which legal education inadvertently teaches students that struggling with course material is the same thing as being a failure. In the article, I reframe student struggle as a productive process that helps students build not only skills and knowledge, but also the resiliency required to be effective, healthy lawyers. I assert that individual professors and law schools as a whole should make changes to help students understand that academic struggles are normal: Lawyers constantly struggle with uncertainty, and it’s not something that can—or should!—be avoided.
Traditional legal pedagogy, with its continued reverence for the Professor Kingsfield caricature, primes students for public humiliation if they deliver less-than-perfect analysis. I’m not arguing that we should abandon cold-calling, but we should make a few things explicit. Namely, that we expect students to struggle with the material, to not have elegant or thorough answers to our questions and hypotheticals. We need to be clear that although it’s unacceptable to be unprepared for class, it’s perfectly fine to have read the assignment and been confused by it.
Many law schools have specialized academic support, academic success, and bar preparation programs, a laudable effort to assist students who find themselves at sea. The risk, however, is that by having specialized offices and personnel who deal with struggling students, law schools send the message that other faculty do not deal with struggle—“normal” students see the “regular” faculty, and struggling students see the specialists. (This risk is compounded when academic support and bar prep faculty are more likely to be female, people of color, lower-status, and less well paid than “casebook” faculty.)
My article recommends that all faculty become experts in academic support. Faculty should educate themselves on learning science, growth mindset, and belonging. We should all be attending academic support conferences. We should all be building formative assessment deliberately into our syllabi, and not just doing it so we can check a box on an ABA report. Formative assessment really helps—feedback is crucial to improvement, and if a student’s grade in a course is entirely depending on a cumulative final, struggle really can become literal failure.
Law schools need to be mindful of what institutional norms are being set. Schools should expect students to have time to sleep, to make and eat good food, to practice their religions, to relax. This down-time is incredibly beneficial to their academics, since the brain is busily processing information while the conscious mind is at rest.
At the risk of engaging in kids-these-days grousing, students are matriculating to law school without having experienced significant academic struggle—their K-12 educations were geared toward passing multiple-choice assessments, and college was largely a social experience for them. This is not their fault. They are, however, unprepared for the intellectual and emotional challenge of law school, and too many of them cope in unhealthy ways. Legal education must send clear messages to students that struggle is the sign of emotional strength, not intellectual weakness. It is beneficial, even desirable.
 Numerous articles, including mine, make suggestions on how law faculty can incorporate formative assessment in the classroom. E.g., Olympia Duhart, The ‘F’ Word: The Top Five Complaints (and Solutions) About Formative Assessment, 67 J. Legal Educ. 531 (2017); Heather M. Field, A Tax Professor’s Guide to Formative Assessment, 22 Fla. Tax Rev. ___ (forthcoming 2019); Steven I. Friedland, Rescuing Pluto from the Cold: Creating an Assessment-Centered Legal Education, 67 J. Legal Educ. 592 (2018); Karen McDonald Henning & Julia Belian, If You Give a Mouse a Cookie: Increasing Assessments and Individualized Feedback in Law School Classes, 95 U. Detroit Mercy L. Rev. 35 (2018); Gerald F. Hess, Michael Hunter Schwartz, and Nancy Levit, Fifty Ways to Promote Teaching and Learning, 67 J. Legal Educ. 1 (2018); James McGrath, Planning Your Class to Take Advantage of Highly Effective Learning Techniques, 95 U. Det. Mercy L. Rev. 153 (2017); James McGrath & Andrew Morriss, Assessments All the Way Down, 21 Green Bag 2d 139 (2018); Deborah Jones Merritt, et al., Formative Assessments: A Law School Case Study, Public Law and Legal Theory Working Paper Series No. 392 (April 19, 2017); Carrie Sperling & Susan Shapcott, Fixing Students’ Fixed Mindsets: Paving the Way for Meaningful Assessment, 18 J. Legal Writing Inst. 39 (2012).