Appellate Advocacy Blog

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

Thursday, August 29, 2019

Bias: What would you do?

I recently attended a fantastic gathering of advocacy coaches, directors, and advisers, American's Second Annual Coaches Clinic. What a joy it was to spend time with a group of individuals dedicated to training students to be excellent advocates.  And so, refreshed, I return to begin preparing my students to compete in moot court. And I bring insights about the psychology of judging.  And while the focus was on competition judges, the psychology applies in daily practice.  For instance, we discussed implicit and in some cases, explicit, biases that some competition judges may have regarding race or gender.  These same judges practice law in our communities and serve as judges in our courts. 

I want to ask how we can combat those biases, but I don't think that is the answer.  Confrontation will not necessarily change the way a person thinks or feels, and as advocates, we are merely a representation of our client, so we have to consider the ramifications of taking a stance.  But in certain circumstances standing up against indignities is absolutely required.

Unfortunately, we are raised in a civilized society.  We don't expect anyone to be blatantly biased, and we are shocked when it happens. If we haven't thought about it beforehand, and planned what our reaction would be, we become paralyzed by that shock.  As a coach, I have begun to consider the worst case scenario, and am trying to plan how and when I would step in.  I talk to my students about bias and we discuss the how and when.

Where do you draw the line?  Have you considered what you would do if a judge, competition or real, were to say something that exhibits explicit  bias towards you, your client, or your team?  Have you considered what you would do if a judge were to exhibit such bias to your opposing counsel or team, or to another person in the room? 

 

August 29, 2019 in Appellate Advocacy, Appellate Practice, Legal Ethics, Legal Profession, Moot Court | Permalink | Comments (0)

Judges Are Human, But Is It Wrong to Want Them to Be Better Than That?

Are judges becoming less ethical or are they being held more accountable? There's no way to tell with just anecdotal evidence, but the ethics of judges has been making more of a presence lately in legal headlines.

One family court judge in Pennsylvania has been accused of berating litigants, not giving proper notice to attorneys, handing out heavy-handed results, and failing to enter orders in a timely manner. She was transferred to the civil appeals division while the ethics complaints are pending.

An Ohio judge pleaded guilty to murdering his ex-wife! He had previously stepped down from the bench in 2015 after assaulting the same woman. He had also been a prosecutor, a congressional aide, and a state legislator. He served nine months in jail for the first assault, and was suspended indefinitely from the practice of law, however, the Ohio Supreme Court rejected disbarment at that time because the assault did not involve "dishonesty, abuse of his judicial office, premeditation or a pattern of bad behavior."

In a New Jersey courtroom, a judge let his bias get the best of him when he harangued a litigant about the part she was playing in a love triangle and called her paramour a "knucklehead." His ethics complaint centers around a lack of impartiality and impugning the integrity of the judiciary. 

The federal courts are not immune from knuckleheaded moves either, and hitting the "reply all" button clearly falls into this category. A U.S. Court of Appeals judge in Washington, D.C., did just that when he received some information about a climate change seminar from a lower court judge. His reply scolded the district court judge for getting outside of his official duties and even alleged an ethics complaint of his own. For now, the circuit court judge has been removed from any review of the lower court judge's opinions. 

Most of these examples of bad behavior are pretty extreme. Judges are human, and certainly some mistakes can and should be tolerated, but it seems like lately this type of behavior is becoming more common. At least it is not being accepted as the norm. This doesn't just highlight individual behavior; it reflects upon the whole justice system.

August 29, 2019 in Legal Ethics | Permalink | Comments (0)

Monday, August 26, 2019

The ICJ and the ICC: Gaining an Appreciation for American Courts through International Comparative Study

This summer, I had the pleasure of teaching in and directing the Stetson Law study-abroad program at The Hague, Netherlands. The program was attended by roughly 60 law students from several law schools, and teaching in the program were notable professors and judges focusing on international law topics. A big highlight of the program, and the main reason for its location is its access to the international courts. Both the International Court of Justice (ICJ) and the International Criminal Court (ICC) are located in The Hague. Students take field trips to both courts during their month long studies.

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(above, The International Criminal Court)

In my course we surveyed the structure and process of the ICC, a completely independent organization. The ICC was brought into being through the Rome Statute, effective in 2002, and now currently has the agreement of 122 member states. Learning about the ideas behind the formation of the court was instructive, and informed my own understanding of the American system of justice. There are many overlapping protections afford by the ICC that are also found in the US system, but there are differences that are balanced by structures foreign to American courts. One such difference is a much reduced adherence to strict rules of evidence. At the ICC, there are three levels of adjudication, similar to the US, but at all three levels, including at the trial level there is a panel of at least three judges. There are no juries at the ICC. Because of this, law educated judges will always be the ones assessing the weight of the evidence. Less rules are required to protect them from prejudicial material, in contrast to our concerns for a jury of laymen. 

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(above, the International Court of Justice)

At the ICJ, an organ of the United Nations, the court seats a single panel of at least fifteen judges that must represent every geographical region of the globe. In contrast to the ICC, the ICJ does not take up any criminal matters, but only adjudicates disputes between sovereign nations. Further, there is no appeals process at the ICJ. 

Discussing the formation and operation of these world courts helped me to appreciate the equally thoughtful construction of our own justice system, and reminded me of the lofty goals of due process. While not always implemented with perfection, the idealistic objectives of the American system has helped to influence legal systems across nations. 

August 26, 2019 in International Appeals, Travel | Permalink | Comments (0)

Friday, August 23, 2019

Appellate Advocacy Blog Weekly Roundup August 23, 2019

WeeklyRoundupGraphic

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

Supreme Court Opinions and News:

The Washington Post ran an article this week examining how differences between the presidential administrations of Barack Obama and Donald Trump are likely to be at the forefront of a number of high profile cases to appear on the Supreme Court's docket this fall.  Cases addressing issues like the current administration's efforts to end the Deferred Action for Childhood Arrivals (DACA) program and whether federal law prohibits discrimination against gay and transgender workers highlight the intersection of policy differences between the two administrations and the Court's view of the breadth of executive power.  More from the Washington Post HERE.

 

Federal Appellate Court Opinions and News:

The Tenth Circuit Court of Appeals issued a ruling this week could have significant impact on a very close presidential election.  In the case, the court ruled that presidential electors casting the actual Electoral College ballots for president and vice-president are not constrained to follow the results of the popular vote in their states and can, instead, cast their votes as they wish.  In the event of an apparent Electoral College tie, that would give a single elector the power to decide the outcome of the presidential election, without any regard to the popular vote wishes of his/her state.  The court ruled that because the Electoral College process is that voters casting votes in presidential races are actually casting votes for a slate of electors, once those electors are chosen and report they are actually performing a federal function and the state no longer has authority to mandate that the electors follow the popular vote.  More from NBC News HERE.

State Appellate Court Opinions and News:

Although it is not in the state appellate court yet, California's recent legislation requiring candidates for president to disclose income tax returns in order to appear on the state's presidential primary ballot will surely end up there sooner, rather than later.  The bill was signed into law by California's governor on Tuesday, and there has already been a lawsuit filed challenging its Constitutionality.  Noted Constitutional and Supreme Court experts like Erwin Chemerinsky and Ted Olson have expressed divergent opinions on the potential Constitutionality of the measure.  More from the LA Times HERE.

Appellate Practice Tips and Pointers:

On SCOTUSblog, the SCOTUStalk feature this week featured Amy Howe's continued series of interviews of Supreme Court advocates.  In this week's episode, she interviewed advocate William M. Jay about his career arguing 17 cases before the Court and his thoughts on effective oral advocacy.  The episode is HERE.

#AppellateTwitter was the focus of a social media article in early July in the ABA Journal.  The article noted how "#AppellateTwitter lawyers chat, help one another and even develop business" and noted that "[t]here's almost nothing that can't be discussed on #AppellateTwitter, it's open 24/7, and lawyers can visit in their bathrobe or gym shorts."  The article is HERE.

 

August 23, 2019 | Permalink | Comments (0)

Thursday, August 22, 2019

An Ethos for Giving Feedback to New Legal Writers: Expert Coach, not Rival Writer

Thursday’s Rhaw Bar: A Little Bite of All Things Rhetoric and Law—exploring ideas, theories, strategies, techniques, and critiques at the intersection of rhetoric and legal communication.

Today’s Rhaw Bar is inspired by the start of a new law school year.  I’ve been teaching legal writing courses for nearly twenty years, and it’s always right about now that I start collecting myself and my thoughts for the feedback I’ll be giving new legal writers on their writing.  I also start thinking about the lawyers and judges who will be welcoming recent graduates into the practice and who might also be supervising those new lawyers and giving them feedback on their legal writing.

In this post, I describe a perspective an experienced lawyer can adopt for giving feedback to novice legal writers; an experienced lawyer can think about giving feedback as establishing a particular kind of ethos—the ethos of an “expert coach.”  By taking the perspective of an expert coach when giving feedback, the experienced lawyer can help the novice legal writer more fully engage with the feedback and ultimately be a more effective, competent, and independent legal writer in the future.  

The idea of developing a positive ethos for feedback is explored in depth in my article, “Building Credibility in the Margins: An Ethos-Based Perspective for Commenting on Student Papers,” so you can read more about the rhetorical theory that supports this perspective there.  In addition, if you are interested in reading even more about how to give feedback to legal writers, take a look at Volume 1 of the Legal Writing Institute’s Monograph Series, The Art of Critiquing Student Work.  While these articles are mainly about the feedback given by faculty to students in law school, the ideas in the monograph articles are transferable to the mentoring and supervising relationships between more experienced lawyers and novice legal writers who are just beginning their professional legal writing careers.

A Commenting Ethos Is A Perspective, Not A Technique

Mostly, when I talk with others about giving feedback to legal writers on their writing, we end up talking about the “techniques” for giving good feedback.  Examples of techniques for giving feedback include “be sure to include feedback that is positive,” “avoid critical comments that start with the word ‘you,’” and “use a describe-evaluate-suggest” structure for your comments.”  These techniques are all important in constructing effective feedback (both written or oral) for others’ legal writing.  (You can learn about some of these techniques in the monograph and at the end of this article.)  But, this post is not about technique.  Instead, it is about the perspective one can take when giving feedback.  That is, how should one think about the feedback task?  How should a lawyer giving feedback approach the work?  What attitudes should she adopt?  

One perspective you can take on giving feedback is to think of feedback as a place where you construct who you are as the person giving feedback, a place where you construct your ethos.  Ethos (one of the Aristotle’s three artistic modes of persuasion—ethos, pathos, and logos) is the idea that a person’s identity—as perceived by the audience—has persuasive force.  

Aristotle considered ethos as having three dimensions: competence, character, and goodwill.  In the context of giving feedback to newer lawyers, this means demonstrating that you, the commenter, are competent to give the feedback, are of the right character to give the feedback, and have goodwill toward the writer in giving feedback.  A positive commenting ethos can help you meet the goals of persuading the writer engage with your feedback, to improve the document (and the next document), to better understand the writer’s audience, and to be more confident and competent to draft and revise in the future.  Conversely, developing a negative feedback ethos can result in giving feedback that is ignored or not implemented fully—the perception of your competence, character, and goodwill doesn’t persuade the audience to listen to you.  

Ethos is not something that you craft exclusively on your own; instead, ethos exists at the intersection between you, others with whom you interact, and the groups or communities in which you are a member.  In other words, ethos is a social act that takes place in a particular cultural context.  Thus, when giving feedback on the legal writing of others, you and your audience are acting together to construct your ethos for the feedback situation.  The perspective you bring to that interaction can work to shape how your audience will interact with you to shape your credibility as a source of feedback.  I’ve found that taking a perspective that emphasizes the ethos of “expert coach” rather than “rival writer” will improve your feedback’s appeal.

A Positive Commenting Ethos:  Expert Coach, Not Rival Writer

Developing an “expert coach” commenting ethos can help you make choices in your feedback that will appeal to novice legal writers, engage them, and improve their writing. So, what is the ethos of an “expert coach”?

An expert coach is comfortable with (but not arrogant about) his or her competence and seeks to demonstrate that competence through detailed and kind feedback.  The expert coach does not want to make the novice writer feel poorly about being a novice or about missing the mark on a first or even second attempt at a final product.  Instead, the first goal of the expert is to show the novice that the expert is speaking on behalf of the community of readers and writers—that the expert is a “fellow legal reader.”  This ethos of expertise coupled with fellowship builds the novice’s trust in the feedback and in the person giving it.  

The expert coach’s second goal is to bring the new legal writer into the community by revealing the range of the accepted practices in the community to which the new writer wants to belong.  This is the coaching perspective—the experienced lawyer sees himself as the source of detailed information that gives the novice writer insight into the audience’s needs and expectations.  The goal of the expert is to build the novice’s confidence in herself so that she will make further efforts to join the community of legal writers and readers.

The expert coach does not project himself as authoritarian, someone who “tells” the new writer what to do or rewrites the document so that it is “right.”  Instead he sees himself as an authority who knows much about the subject of legal writing and can guide, model, and make suggestions for someone who doesn’t have the same level of knowledge.  The expert coach knows that she wants to convey feedback in an objective rather than a judgmental tone, using a tone that builds trust rather than exacts judgment or conveys irritation, impatience, or annoyance.  An expert coach knows that supportive patience is essential to building the trust that results in the novice benefitting from the feedback.

An expert coach sees herself as sitting “alongside” the novice writer; the coach is not a rival trying to take control of the novice writer’s work or to demonstrate why the expert “wins” and the novice “loses.”  Instead, the expert coach understands that the goal of the feedback is to give the writer power, not to take power away.  Thus, the feedback tone is collaborative, not competitive, and the feedback content is reflective and engaging, not simply a rewrite of the novice’s work.  The expert coach adopts an ethos that makes feedback empowering and gives the novice both ideas and options for how to improve.  

Adopting a coaching ethos is particularly useful in relationships of supervision. If mentors and supervisors want mentees and subordinates to grow as writers by thinking, making choices, and exercising judgment for themselves rather than doing only what they “are told to do,” feedback should empower novices to get comfortable thinking, choosing, and judging.  So, a good commenting ethos abandons a “rival” perspective and takes a seat “alongside” the novice as a fellow legal reader who encourages independence and responsibility-taking.  

Because giving feedback on legal writing is such a practical, hands-on activity, it may seem a bit impractical and high-minded to focus attention on developing a perspective from which to begin the task.  But, I’ve found that being intentional about the ethos I am constructing in the feedback process has helped me meet my feedback goals.  If the goals of your feedback are to help new legal writers learn; join the discourse community; and be more independent, confident, and successful writers, developing an expert coach ethos will help you achieve those results.

Kirsten Davis teaches at Stetson University College of Law and in the Tampa Bay region of Florida. She is the Director of the Institute for the Advancement of Legal Communication. The Institute’s mission is to study legal communication issues and provide programming and training that improves legal communication skills. The views she expresses here are solely her own and not intended to be legal advice. You can reach Dr. Davis at kkdavis@law.stetson.edu.  

 

 

 

August 22, 2019 in Law School, Legal Profession, Legal Writing, Rhetoric | Permalink | Comments (0)

Tuesday, August 20, 2019

Moot Court Benefits Coaches and Advisors, Too.

Dumier high tribunal of judges

There have been numerous articles and speeches about the benefits of moot court for law students. Success in advocacy competitions in general is an overall indicator of success on the bar. It teaches the student to examine both sides of an issue, be thorough in their research and writing, develop professionalism in the courtroom, and to refine arguments through multiple iterations. Some students say that the exercise is one of their most educational experiences in law school.

But what about the coaches and advisors who work with the students? This year marks my 21st year coaching moot court teams. Over those 21 years I have been repeatedly questioned as to why I put so much effort into a work that has never generated a single appellate case referral. My answer is that while coaching moot court may never build your business, it can build you up in many other ways.

First, lawyers never stop learning the law. I coach three competitions a year, and they are difficult ones. While only one permits me to work with the students on the writing, they all permit working together in collaboration on the oral argument. Because they also all do a good job of developing problems that deal with perplexing and important issue of the day in the law, I am able to keep abreast of the law in ways that simply would not be possible if I were to focus exclusively on my practice. This is particularly true in the area of Constitutional law, in which I have developed a broad and deep knowledge that I find invaluable at odd moments in my practice.

Second, lawyers never stop honing their skills. As I work with students in each competition, I am reminded of the importance of certain skills and the impact of bad habits. That helps me keep my own skills sharpened. And I refine those skills through lessons I learn from those interactions.

Third, lawyers always benefit from a larger network. Whether you teach full time or practice law and have recently been asked to volunteer, you will likely benefit from expanding your network. You might get referrals later in your career, you might develop a peer group of other coaches and advisors that you can bounce ideas off over time, or you might develop a stronger reputation in your given area. Networking works differently for everyone, but there are always benefits.

And finally, lawyers need community. Practicing lawyers who work as mentors experience greater job satisfaction than those who do not. Our work, whether teaching or practicing law, can become painfully isolating. Coaching or advising a moot court team draws us out of our shells and into the lives of the students we work with.

Over the weekend I had the great honor of officiating at the wedding of two of my former moot court students. I was deeply honored and humbled by their request. While I may never receive an appeal to work on as the direct result of my work with students, no amount of legal fees could ever match the satisfaction and affirmation of that experience, or any of the personal interactions I have on an almost weekly basis with my former students.

Moot court is good for law students. It is good for their coaches and advisors, too. So if you are asked, say yes. And if you haven’t been asked, consider this an invitation to volunteer.

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

August 20, 2019 in Appellate Advocacy, Appellate Practice, Law School, Legal Profession, Moot Court, Oral Argument | Permalink | Comments (0)

Monday, August 19, 2019

Starting a New Term Strongly

Today is the first day of school at many law schools around the country, including the one where I teach. Those schools that haven’t started are likely to begin in the next few weeks. This time of year has me thinking about new beginnings and the rhythm of the academic year. While culturally there is a lot of talk of New Year’s resolutions, those of us on an academic calendar start our new year in August or September, with all the plans and hopes that accompany a fresh start--new students, new courses, new approaches to material.

As summer has wound down, I’ve been reading First, Evan Thomas’s fascinating biography of Sandra Day O’Connor. In the same way that schools operate on their calendar, the Supreme Court operates on the rhythm of its Terms, which begin every year on the first Monday in October. The Court recesses at the end of June, then works on the petitions and other business to prepare for the next October Term.
Justice O’Connor was sworn in just a couple of weeks before the Term began in 1981, and it seems as that first Monday in October approached, she was anticipating what the new Term would hold. For example, Thomas reports that in 1986 upon the appointment of Justice Scalia that “O’Connor had welcomed his high intelligence and verve. . . Scalia, she believed, would be a tonic. ‘Nino Scalia will have a dramatic impact here,’ she wrote in her journal.”
As I start a new school year this August, Justice O’Connor’s example is on my mind. Her strength, will, and energy enabled her to be a trail-blazer, as highlighted in First. And she continued to start each October Term strongly for 25 years, even when dealing with challenges including breast cancer, diagnosed shortly before the 1988 October Term.

For those of you not on an academic or appellate term, do you have a way of creating fresh starts for yourself? Do you still look to the calendar to demarcate your own “terms”?

Any advice you’d like to share for starting strong, whether in academics or practice?

I like to make sure my office and inbox is organized at the start of a new semester, as piles tend to grow during the hectic pace of classes.

I hope everyone who is starting a new term soon has a great start!

August 19, 2019 in Appellate Advocacy, Law School, United States Supreme Court | Permalink | Comments (0)

Sunday, August 18, 2019

Elegant variation: Spicing up some lawyerisms

Rarely does the 'Little Summer' linger until November, but at times its stay has been prolonged until quite late in the year's penultimate month.

-H.W. Fowler, sharing some elegant variation

Lawyers repeat themselves. A lot. We just can't help it. Our briefs star only a handful of characters and events--and we need to write about them down to the nitty details. So, yes, we keep repeating "the plaintiff alleges" for six pages straight. 

That doesn't mean we like it. Hammering on those same words, over and over, doesn't sound good. But as you've probably discovered: Swapping out repeated words for new ones is tricky business. You might just make things confusing because now your reader starts wondering: "Is this the same thing she was talking about before? Or something new?"

And let me also say: if you need to decide between repeating yourself or confusing your reader--repeat away. I can't imagine any good ever coming from confusing your reader. The distraction turns into minutes of flipping through pages, double-checking what means what.

That's precisely my suggested yardstick to you: If you find a repeated word too close to its doppelganger, ask whether freshening it up with some variation will bring any risk of confusion or distraction. If so, you have your answer. Don't swap in a new word just for the sake of variation if the costs aren't worth it.

So none of this:  

The lawyer filed his motion in the District of New York. The court ruled on the papers the next day. The filing was granted. 

The problem here is that shot-gunning different nouns for the same item--this close together--makes your effort at variation obvious. You also make your reader second-guess whether each is a different thing. 

For repeats this close, alternating in some unambiguous pronouns are usually the best bet:

The lawyer filed his motion in the District of New York. The court ruled on it the next day. The motion was granted. 

The answer to obvious repeats is often the same answer to any other clunky sentence--try rewriting the sentence from the ground up. You will nearly always find a better way to shift things around so that the repeated word doesn't even need to be said any more: 

The defendant moved to dismiss in the District of New York--and won.

But if you need to repeat a word and can vary without confusion, do consider diversifying.

Take dialogue tags. These are words that signal someone said something. We lawyers not only use these--but also what you might think of as argument tags: words that signal what someone argued.

Our legal writing is full of he “argues” this and she “claims” that. You don’t need to stick to these same tags to avoid confusing your readers. There are endless fresh words to use instead. And many of them can target imagery and emotions.

For argue, depending on the context, you could try "assert," "maintain," "insist," "profess," "declare," "urge," "deflect," "interject," "campaign for," "contend," "volunteer," "advocate," "postulate," and the list goes on. And this works for any repeated bland word. So if you repeat "admit" a lot, try spicing up with a "confess," "agreed" or "concede."

Look at this paragraph, which is from a real brief (I changed the names and what was taken). Notice the repetitive words and forms used to introduce what the party claims: 

Emily Park argues that she never saw who stole the cookie.  She further argues that the cookie just ‘disappeared.’ Park additionally argues that this vanishing cookie entitles her to damages. Park argues that her milk may have been stolen. She claims that the milk thief and the cookie thief are one and the same.  Park argues that this thief be brought to justice.

Now look what happens when we make these same words diverse in form and substance: 

Emily Park says that she never saw who stole the cookie.  The cookie, according to her, just ‘disappeared.’ Park claims that this vanishing cookie entitles her to damages, and potentially punitive ones.  Park also believes that her milk may have been stolen. She maintains that the milk thief and the cookie thief are one and the same. Park insists that this thief be brought to justice.

Another option for this problem of constantly writing about who said what is to simply let your reader know that a few sentences or paragraphs are all an argument or claim by a particular party or actor: 

Emily Park’s argument is as follows. She never saw who stole the cookie.  The cookie just ‘disappeared.’ This vanishing cookie entitles her to damages, and potentially punitive ones.  Her milk may have been stolen, and the milk thief and the cookie thief are one and the same. This thief be brought to justice.

Numbers require a final mention. Numbering reasons can be a powerful tool. But watch the problem if we stick to the “no elegant variation” rule here:

First, the plaintiff loses on jurisdiction. First, she has claimed no...

Second, the plaintiff fails to state a claim. First, she failed...   

You don’t need to keep using the word “first” to avoid confusing the reader about what “first” means. So diversify. For example:

To begin, the plaintiff loses on jurisdiction . . .

The plaintiff’s first misstep is … 

Go spice up your words. 

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

August 18, 2019 | Permalink | Comments (0)

Friday, August 16, 2019

Appellate Advocacy Blog Weekly Roundup August 16, 2019

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

Supreme Court News:

As a follow-up to @Daniel_L_Real's Weekly Roundup post last week about cases concerning firearms, a petition was filed with the Court seeking to reverse the Wisconsin high court that held an advertising website (or interactive computer service provider) wasn't liable for the shooting death of a woman by her husband who obtained firearms through the website. The Wisconsin high court reversed a lower appellate court opinion, which reversal stated that the website cannot be held liable for "information posted by a third party on its website." Read the petition here

Regarding the cases before the Supreme Court concerning work-place discrimination of LGBT employees, "the Solicitor General’s office wants the EEOC on board to show the high court that the Trump administration is now unified in the belief that Congress didn’t have lesbian, gay, bisexual, and transgender workers in mind when it passed a federal workplace discrimination law more than five decades ago, sources said." The report is from Bloomberg Law.

Circuit Court Opinions and News:

The U.S. Court of Appeals for the Ninth Circuit rejected the DOJ's interpretation of "safe and sanitary" for migrant children, thereby upholding a district court's finding that federal authorities violated a long-standing settlement directing how to treat migrant children. Law.com has this article about the circuit court's opinion and the comments during oral argument by the DOJ's attorney discussing a colloquy whether "safe and sanitary" include having a toothbrush and soap.

Perhaps more of a practice pointer we would all do well to heed to one degree or another, the U.S. Court of Appeals for the Seventh Circuit recently included a footnote in an opinion with this instructive guidance: 

We have explained “one of the most important parts of appellate advocacy is the selection of the proper claims to urge on appeal.” Howard v. Gramley, 225 F.3d 784, 791 (7th Cir. 2000). The kitchen‐sink approach [the appellant] embraces can be criticized as “consum[ing] space that should be devoted to developing the arguments with some promise.” Id.

 

August 16, 2019 | Permalink | Comments (2)

Tuesday, August 13, 2019

Reimagining Advocacy Conference

Reimagining Advocacy

Reimagining Advocacy Conference

November 8 - 9, 2019

Stetson University College of Law in Gulfport, Florida

 

I’m happy to pass along this exciting opportunity from Stetson Law.  If you are interested in legal advocacy in any of its forms (written, oral, or visual) and in any of its locations (classrooms, courtrooms, clinics, competitions, or communities) this conference may be of interest to you.   Faculty and practitioners will come together to reimagine the future in advocacy.

The two-day conference includes:

Keynote Speakers

Seemiller

 

Dr. Corey Seemiller is a nationally recognized expert on Generation Z and author of four books on Generation Z, including Generation Z:  A Century in the Making.  She will speak on her work studying Generation Z, the generation’s commitment to social justice, and the impact that Gen Z may have on the future of advocacy.  Dr. Seemiller’s research sheds light on how we might approach advocacy education for a new generation.

 

 

Britt

 

Dr. Elizabeth Britt, Professor of English at Northeastern University, will speak on her book, Reimagining Advocacy, a rhetorical case study of a law school clinic, which explores how non-traditional forms of advocacy provide support for victims of domestic violence.  Dr. Britt’s research can help lawyers and law school faculty reimagine the kinds of advocacy skills lawyers need and how those new skills can transform lawyering.

 

 

Panels on The Future of Advocacy

Faculty and judges from across the nation will talk about their views about the future of legal advocacy:   

  • Reimagining Advocacy Education
  • Reimagining Co-Curricular Advocacy Experiences
  • Reimagining Advocacy in Field Experiences
  • Reimagining Advocacy:  The Judge’s Perspective

 

A Two-Hour Introduction to Open-Ended Interviewing

This workshop, led by Dr. Elizabeth Britt, will teach open-ended interviewing as a form of advocacy.

 

Participant-Proposed Panels and Discussion Groups

We will be seeking proposals from participants for presentations that address the future of advocacy, such as 

  • Technology and advocacy
  • Diversity, inclusion, and equity in advocacy
  • Advocacy training and teaching methods
  • Social justice advocacy
  • Advocacy in clinics, internships, externships
  • Pro bono and advocacy
  • Rhetoric and advocacy
  • Legal writing and advocacy
  • Advocacy in the courtroom and in other dispute resolution spaces

 For information about submitting a proposal, please click here

 

For more information about the conference, or to register, please click here.

August 13, 2019 | Permalink | Comments (0)

Monday, August 12, 2019

When Having A Heart for Justice is Not Enough--Part 2

In March, Professor Teri McMurtry-Chubb blogged about her forthcoming article The Practical Implications of Unexamined Assumptions: Disrupting Flawed Legal Arguments to Advance the Cause of Justice, which will be published in the Washburn Law Journal.  The article can now be accessed here on SSRN.

As Prof. McMurtry-Chubb explained in her post, her article explores "how bias shapes lawyer analytical and reasoning processes," and it is the product of "a 6-year empirical research study [that she] conducted involving student motion and appellate briefs generated from case files involving social justice issues."  In her article, Prof. McMurtry-Chubb goes into more detail on the different problems that she used in the study--ranging from legacy admits to law school to Indian Child Welfare Act cases.  Her article, her study, and the results are simply fascinating and raise important questions for law schools.  As she explains in the article,

This research project has the potential to change how we view the preparation of law students for law practice. As such, it has significant implications for how we approach diversity, equity, and inclusion in legal education and the law. Legal education touts diversity—equity and inclusion less so—as aspirational goals, but has largely focused efforts to achieve the same in admissions and faculty hiring.

. . . .

. . . The study in this Article suggests that the presence of non-White racial and ethnic bodies in law school classrooms do not, and cannot, in and of themselves, promote
better learning outcomes, prepare all students for a globally diverse workforce and society, and help them to shape professional identities beyond the touch of white supremacy, patriarchy, and capitalism.

In sum, rarely have law schools mapped and studied their curricula to assess how it perpetuates inequities and reinforces hierarchies. This and more are required to address the law and lawyers’ inability to fully serve racially and ethnically diverse client groups. As this study teaches us, legal educators and employers cannot take for granted that students leave law school with the skills to advocate effectively for historically marginalized, underrepresented groups, even as they matriculate successfully through law school. A heart for justice is not sufficient to do justice. Rather, law schools must actively develop interventions in their core curricula that directly and explicitly engage students around issues of power and privilege. Until then, students will not act with agency to transform law practice and its societal impact in ways that challenge their unexamined assumptions and allow them to make arguments in the service of justice. 

Thank you Prof. McMurtry-Chubb for your important contribution to how we approach legal education.  I am certainly going to be mindful of these issues as I teach this semester.

August 12, 2019 in Current Affairs, Law School, Legal Writing | Permalink | Comments (0)

Friday, August 9, 2019

Appellate Advocacy Blog Weekly Roundup August 9, 2019

WeeklyRoundupGraphic

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

Supreme Court Opinions and News:

In the wake of more mass shootings, the Daily Caller this week profiled a number of Second Amendment cases that the Court will confront in the coming months.  More HERE.

Empirical SCOTUS took a look at the Supreme Court's adjudication of class action lawsuits between 2010 and 2018.  During that time, the Court decided between five and ten cases that started as class actions per term.  The Court overturns almost 70% of class action decisions made by appeals court, either by reversing or by vacating the appeals court decision.  Much more data and analysis HERE.

Federal Appellate Court Opinions and News:

In Texas v. EEOC, the Fifth Circuit Court of Appeals this week issued a ruling that dealt a blow to the EEOC, largely affirming a lower court ruling that the EEOC had violated the federal Administrative Procedure Act in setting forth its 2012 Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964.  In a nutshell, the Guidance set forth the EEOC's position that Title VII prohibits restrictive criminal record screening policies and mandates individualized review of applicants' criminal records.  Texas sued, alleging that this interfered with the State's authority and discretion to limit the hiring of felons in public sector jobs.  The district court granted Texas summary judgment on the narrow conclusion that the Guidance violated the APA for lack of notice and opportunity for the public to comment, which resulted in enjoining the EEOC from enforcing the Guidance.  On appeal, the Fifth Circuit held that the Guidance amounted to a substantive rule and that federal law does not authorize the EEOC to promulgate substantive rules.  More explanation HERE.

The Second Circuit Court of Appeals this week revived a lawsuit filed by Sarah Palin against the New York Times alleging defamation.  The appellate court found that the trial court improperly relied on facts outside the pleadings and found that the complaint plausibly stated a claim for relief, so the trial court's dismissal of the suit was improper.

Practice Tips and Pointers:

Bryan Gividen had a Twitter thread this week discussing practical tips for those about to embark on a judicial clerkship.  Lots of great pointers.

Appellate Jobs:

Gupta / Wessler is seeking to hire two or three highly qualified law students (or recent pre-clerkship graduates) to work on Supreme Court, appellate, and constitutional litigation at its Washington, D.C. office.  The firm is also hiring for 2020-21 spots in its fellowship program. More information HERE.

The Third Court of Appeals in Texas is hiring for a staff attorney position.  More information HERE.

 

 

 

August 9, 2019 | Permalink | Comments (0)

Thursday, August 8, 2019

Setting Off Text for Attention and Meaning—The Visually Rhetorical Em-Dash

Thursday’s Rhaw Bar: A Little Bite of All Things Rhetoric and Law—exploring ideas, theories, strategies, techniques, and critiques at the intersection of rhetoric and legal communication.

Today’s Rhaw Bar returns to the rhetorical strategy of setting-off text as a way focus a reader’s attention and create meaning. In my post from a month ago, I described how using lists in legal writing employs visual rhetoric strategies to both stack-up and set-off important information. In this post, I return to the concept of setting off information, this time through a punctuation mark: the em-dash.

In his 2006 book, The Economics of Attention: Style and Substance in the Age of Information, Richard Lanham argues that “attention is the commodity in short supply” in an information economy. Legal writers know this all too well; they have an ethical duty to keep a reader’s attention focused on the content of complex legal documents. But busy legal readers are inundated with more information than they can possibly digest, have access to that information at speeds faster than ever, and are likely subjected to more distractions from reading on screens that are animated with competing demands on the reader’s attention. In a digital world, the legal writer’s need to point the reader toward important information is more critical than ever.

A punctuation mark can be an efficient and effective way to visually call a reader’s attention to an important point and to shape the meaning of the text it punctuates. An underused punctuation mark with visual rhetorical impact for attention-getting is the em-dash. When used appropriately—and sparingly—the em-dash is an easily implemented, powerful visual rhetoric technique for legal writing.

Em-dashes typically are made by typing two hyphens between two words with no spaces between any of the characters. Remember that a hyphen (-), which connects compound words and modifiers (among others) like em-dash, absent-minded, or mother-in-law, is not an em-dash. An em-dash—appearing on either side of this text—is at least twice as long.

An em-dash visually separates (1) a phrase or clause within a sentence or (2) information at the end of a sentence from the rest of the sentence. When a pair of em-dashes are used within a sentence, they typically take the place of commas or parentheses; when a single em-dash is used toward the end of a sentence, it typically takes the place of a colon or semi-colon.

Em-dashes take advantage of both novelty and white space to draw the reader’s eye to text that either follows a single em-dash or lies between em-dashes. Used sparingly, em-dashes have novelty; readers will notice them and ask, “I wonder what this is about?” In addition, an em-dash creates more white space around text than that created by a comma, semi-colon, or colon, visually highlighting the selected information and causing the reader to notice it. While commas, parentheses, semi-colons, and colons also set-off information, they do so in a less forceful and attention-grabbing way. The em-dash, on the other hand, is more assertive and commanding—hey! this text is important!

An em-dash, however, does more than just call attention to text; the em-dash also provides a clue for the reader about how to give meaning to the sentence as a whole. The em-dash is a visually persuasive framing device; the em-dash helps the writer select a dominant meaning for the sentence while deflecting other meanings that are available.

Take for example this sentence from a legal argument in a case where Jones is arguing that Jones’s marriage to Smith should be annulled because the marriage took place while Jones was under duress:

Smith sent Jones an email the day before the wedding threatening to expose Jones’s drug problem to his parents.

This sentence has essentially three pieces of information:

  • Smith sent Jones an email.
  • The email threatened to expose Jones’s drug problem to his parents.
  • This email was sent the day before the wedding.

In the sentence above, all three pieces are expressed in a way that makes the ideas contained in them roughly equal in importance. That is, the frame of the sentence is balanced evenly, all of the ideas in the sentence share the same importance, and the reader is free to decide which parts of the sentence to give more or less attention.

But notice what happens to the sentence’s meaning when one of the pieces of information is set off with em-dashes:

Smith sent Jones an email—the day before the wedding—threatening to expose Jones’s drug problem to his parents.

Now, by using em-dashes, the writer causes imbalance in the sentence’s frame, visually setting off what the writer wants the reader to notice: the timing of the threatening email. The em-dashes guide the reader about how the sentence is meant to be read; the timing of the email is the most important information. The em-dashes help prime the reader to expect that Jones’s duress argument will be stronger because of the e’mail’s timing. By using em-dashes, the writer deploys dramatic interruption to call attention to important information and to shape the meaning of the sentence. And this is accomplished with only punctuation.

Notice what happens to the sentence if the writer wants to emphasize the content, not the timing, of the email:

The day before the wedding, Smith sent Jones an email—a threat to expose Jones’s drug problem to his parents.

Here, the em-dash sets off the text at the end of the sentence. Visually, the single em-dash acts almost like an arrow, pointing the reader toward what the writer wants to be the most important information. Structuring the sentence this way places the reader’s attention on the threatening email’s content.  Instead of being primed to focus on a timing argument, the reader is primed to focus more on the threatening language. By moving the em-dash to call attention to a different part of the sentence, the writer changes the meaning of the sentence for the reader.

While legal writers should use em-dashes to draw attention and to help create meaning, writers should be careful not to overuse them. Overuse causes em-dashes to lose their dramatic visual impact. Think of em-dashes like the salt on the top of a salted caramel. A little bit of salt enhances the sweet flavor, making the candy more satisfying; too much salt ruins the whole thing.

Kirsten Davis teaches at Stetson University College of Law and in the Tampa Bay region of Florida. She is the Director of the Institute for the Advancement of Legal Communication. The Institute’s mission is to study legal communication issues and provide programming and training that improves legal communication skills. The views she expresses here are solely her own and not intended to be legal advice. You can reach Dr. Davis at kkdavis@law.stetson.edu.  

August 8, 2019 in Appellate Advocacy, Legal Writing, Rhetoric | Permalink | Comments (0)

Tuesday, August 6, 2019

Statements Made in Oral Argument Live Longer than You Might Think.

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I am a big proponent of oral argument. It can, and should, make a difference in complicated cases. No matter how tight our writing is, there is something about the give-and-take of oral argument with a well-prepared panel that refines arguments in a way that is difficult to match. But we also have to be very careful, or the words we say can live on in ways we did not expect.

While I was catching up on my reading following summer vacation with my family (a big thank you to my friend, John Browning, for covering with his excellent guest post while I was gone), I dove into the recent analysis of the Plain Error Doctrine in Justice Oldham's concurring opinion in U.S. v. Del Carpio Frescas, No. 17-50245 (5th Cir. July 29, 2019). While I found his analysis of the origins and misadventures of the doctrine since the 1800s to be fascinating and recommended reading for anyone who deals with the doctrine or the topic of waiver versus forfeiture of error, what caught my attention most was his reference to a comment by the Federal Public Defender's Office made during oral argument in a different matter. Without going into detail, Justice Oldham used that comment to raise what he considers to be an anomaly in the law.

We already know that some Supreme Court Justices are prone to quoting oral argument in the opinions that they write in the same matter. According to a 2008 analysis, Justice Ginsberg cites the transcript in almost every opinion she writes, with Chief Justice Roberts following a bit behind at one citation to the transcript every other authored opinion. See Frederick Liu, Citing the Transcript of Oral Argument: Which Justices Do It and Why, 118 Yale L.J. Pocket Part 32 (2008). The Justices use the transcript for three primary reasons: (1) to describe an advocate's affirmative position; (2) to record an advocate's concession; and (3) to note an advocate's representation of the record or facts. Being quoted is not necessarily a good thing --  Justices were almost twice as likely to cite statements made by an advocate whose side they opposed than one they supported.

We already know, then, that what we say at oral argument in a given case may be used in the opinion that follows. The oral argument does seem to make a difference, at least to justices on the margins, and the right argument can still sometimes win the day. Of course, the converse is true. Loose lips can sink ships. The impact of the statements made at oral argument is the primary reason I urge advocates to "moot" their appeals.

But what struck me about Justice Oldham's use of the transcript was that he was drawing from other cases. As more courts record oral argument and transcripts become more widely available and searchable, the idea of having my words used in an opinion months or years later is a bit sobering. And it drives home the idea that these transcripts are another important research tool that is easy to overlook.

Don't forget that even our spoken words live longer now than ever. We need to tap into that as a source of research, and be careful with what we say for both the cases we are currently handling and the ones we may handle in the future.

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

 

 

August 6, 2019 in Appellate Advocacy, Appellate Practice, Moot Court, Oral Argument, United States Supreme Court | Permalink | Comments (0)

Monday, August 5, 2019

Editing and Polishing: Moot Court Edition

Over the summer, I have been going through moot court brief section by section, giving moot court drafting and scoring advice. In this final installment I will discuss the overall editing of the brief. There is nothing that sours a reader faster than finding multiple editing errors. As I’ve mentioned before, typos in the Questions Presented do not give me much hope of finding an excellent brief as I turn past the first section. Over the years, students have been most frustrated when they realize that their brief did not score well because they violated the word count or lost points for some other avoidable editing issue.

Often, moot court briefs are scored separately for content and form, with a set of scorers specifically tasked with going through and looking for editing and citation issues. I always suggest doing separate editing passes to make sure that your brief is as close to perfect as possible before you turn it in.

These two blog posts by Joe Regalia go into more depth on editing word choice and using technology to uncover your writing blind spots and are worthwhile reads:
https://lawprofessors.typepad.com/appellate_advocacy/2019/03/10-ways-to-harness-the-power-of-words-in-your-legal-writing.html
https://lawprofessors.typepad.com/appellate_advocacy/2019/08/learning-from-briefcatch-using-technology-to-unearth-your-writing-blind-spots.html

Scoring-wise, style often plays a significant role in total points. In the sample score sheet I reviewed, the Overall Presentation was worth 15 of 100 points.
————————————————————————————————————————————————————————————————————————
OVERALL PRESENTATION:
Is the writing style clear, concise, and persuasive?
Does the brief effectively present the case for the client?
Does the brief look polished and professional?
(15 points possible) _________________
————————————————————————————————————————————————————————————————————————

In another competition with separate technical scoring, every error, whether grammatical or citation, resulted in a point subtracted. That adds up quickly when every point matters. Often brief scores tend to cluster, and even a couple of stray errors can take a brief out of the running for a high score.

Here are my top tips for editing a moot court brief:

* Set an internal deadline for the team that is 48 hours before the actual deadline to leave time for additional read-throughs. Have accountability with a coach or director that the internal deadline is met.

* Every team member should read the brief in hard copy at least once. The more eyes on the brief, the better the chances of catching everything.

* Use editing technology, but don’t mindlessly rely on it. Grammarly is what I typically recommend.

* Try to edit after a good night’s rest and when it’s been a few days since you looked at the brief to give yourself better perspective and clarity on your writing.

* Double check all of the little things. Have you complied with all of the competition rules? Are the cites perfect? Are the tables organized and cited properly? Does the cover look polished and professional?

Ensuring that your brief is well-edited will not guarantee that you have the winning brief for a competition, but a poorly-edited brief will not even be in the running.

August 5, 2019 in Appellate Advocacy, Law School, Legal Writing, Moot Court | Permalink | Comments (1)

Sunday, August 4, 2019

Learning from BriefCatch: Using Technology to Unearth Your Writing Blind Spots

“So the writer who breeds more words than he needs, is making a chore for the reader who reads.” 
― Dr. Seuss

The science is in: Our brains are not wired to be good editors. It’s not just that we get bored and stop paying attention (although we do). It’s not just that writing and editing are hard (although they are). It’s that on the most basic level, our mind doesn’t want to find problems with our writing. We wrote the stuff—why would we want to change it?

Researchers have looked at editing a lot. And there are probably several reasons we are bad at it.

  • First, several biases make us think our writing is good just because we enjoy the sound of our own words. No matter how hard we try, we have trouble critiquing ourselves.
  • Second, we are easily distracted, especially when editing. And we tend to focus on certain problem to the exclusion of others. For example, if you are reading through your document and spot some passive voice, you are now much more likely to obsess over the passive voice as you continue editing.
  • Third, we are cursed with knowledge. We know what we are trying to say with our writing. So it’s much harder for us to notice road bumps that a fresh reader would spot more easily.

“We’re not like computers,” explains psychologist Tom Stafford, who studies typos at the University of Sheffield. Our brains are not wired to pick up every detail, at least not without enormous work.

Which dovetails nicely with another editing truth: Doing it right takes forever. Some say that it should take as long to edit as it does to draft. And no busy lawyer has time for that.

So we have two problems: (1) We can’t catch everything when editing our own stuff, and (2) even if we could, we don’t have the time.

These are problems for all lawyers. And so as a law professor, I spend a lot of time trying to help my students work through the same problems. One solution that I (and other law professors) have turned to is writing technology tools. I’ve written before about how programs like Grammarly can be a boon for writers looking to get better. The magic of these tools is that they don’t just help catch typos and poor grammar. Some of them are sophisticated enough to help train you to use new writing techniques.

Which brings us to Ross Guberman’s BriefCatch. BriefCatch is a revolutionary Word plugin that offers detailed editing feedback on your legal writing. BriefCatch is something entirely different from programs like Grammarly. BriefCatch is made not just for any writing but for legal writing. It has the power to help you spot more than grammar; it provides live editing suggestions on your legal prose, ranging from citation advice to sophisticated wordsmithing recommendations and persuasive writing tips that can transform your brief or motion. 

For legal writing teachers, BriefCatch is a gamechanger. We all lament how much law students and young lawyers struggle with basic writing style. Professors do what they can, but we simply don’t have time to teach students to be good writers.

But now, for the first time, we have a tool that can help students train legal writing techniques using their own writing. When we professors edit student’s writing, the value is not from the professor offering a suggestion—it’s that the professor is helping students learn to spot weak points in their writing and strategies for fixing them on their own. And that is precisely what BriefCatch can do—automatically, reliably, and around the clock. BriefCatch gives students the same sort of formative feedback and models for their writing style that we professors have struggled to offer ourselves.

That all sounds good, but I wanted to put it to the test. So several law professors and I created a working group to incorporate BriefCatch into first-year legal writing curriculum. Our goal was to use the tool to help students train many of the basic writing-style techniques that we don’t have time to drill in class.

Each week, along with their substantive writing work, students were asked to run BriefCatch on their assignment and to pay attention to a single type of editing recommendation. They recorded on a chart how many times the tool recommended that type of edit and how often the student agreed with it. The next week, students did the same thing but with a new type of edit.

Feedback from both the professors and students has been overwhelmingly positive. Students love that they can use the tool at their own pace. They love when they find new suggestions for word choice. And best of all, because they are the ones using the tool and calling the shots, they are learning to use these techniques themselves.

Of course, BriefCatch can’t replace a good writing teacher. Tools like this are a powerful supplement to help train and spot style techniques; they are not meant to teach aspiring lawyers how to put together the meat of a brief.

But that’s the beauty of a tool like BriefCatch: it lets professors devote time and energy to what we do best while shoring up our students’ skills in ways they don’t even realize.

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

August 4, 2019 | Permalink | Comments (0)