Appellate Advocacy Blog

Strict Scrutiny: A Conversational, Approachable Supreme Court Podcast

Over the last couple of weeks, this blog has mentioned several new podcasts. Another to add to the list is Strict Scrutiny. It launched this summer, and includes commentary by professors Leah Litman, Melissa Murray, and Kate Shaw, and appellate lawyer Jaime Santos. It’s being described as “a podcast about the Supreme Court and the legal culture that surrounds it.”

Three episodes were released over the summer, and today they released the first episode of the fall term. Each episode is a little over an hour long. I’ve now listened to almost all of the released podcasts have already subscribed for the future episodes. I’m hooked! First, it’s a substantive discussion of the Supreme Court, with explanations that would be approachable for law students, lawyers, and others interested in the Court. I discussed stare decisis with my 1Ls last week, so I am planning to recommend that they listen to episode 1 to hear more about the concept in action at the Court last term.

Second, it’s conversational and light-hearted. I’m enjoying the pop-culture references and tone. Any podcast that makes Pitch Perfect jokes about ACCA is right up my alley. I found myself chuckling frequently. For the most part, I view podcasts as a form of entertainment, and I think the approach of these contributors is striking the right balance of informative and approachable. These experts are conscientious about discussing complex cases in an understandable way. Finally, as the contributors themselves note, Supreme Court practice and commentary is often male-dominated, so it’s a refreshing change to hear a conversation between four impressive women about the Court.

I’m already looking forward to more episodes as they are released every couple of weeks during the upcoming term.

SCOTUStalk Series on Oral Advocacy - Attorney William Jay

The second podcast in the SCOTUStalk series on oral advocacy featured William Jay, a former assistant US Solicitor and current partner at Goodwin. He has argued 17 cases before the Supreme Court and is a former clerk of Justice Scalia.

This podcast is full of practical tips for the appellate advocate. In response to questions from Amy Howe of Howe on Court, Jay described the differences between lower court practice and the nation's highest court. A seemingly obvious observation, but one not often discussed, was the dynamic that at the Supreme Court the advocate always faces the same nine judges. In the lower courts an advocate might not know who is on the panel until the morning of the argument. At the Supreme Court, this gives an obvious advantage to allow an advocate to be knowledgeable about each justices' prior written positions on the issue. Further, knowing the justices' questioning style is helpful. Jay characterized Justice Scalia as a questioner for whom he never had to guess his opinion, but also knew he was open to persuasive arguments.

In preparation for his appearances at the Court, Jay conducted at least 2-4 moot sessions. He points out that as a government attorney, he had access to agency expertise and heavily used those resources. As a new attorney arguing for the government he remarked that the cases given to the newbies were either 9-0 winners, or 9-0 losers. He is not sure whether his first tax case was supposed to be a winner or a loser, but he was up against a formidable lawyer who later became a federal judge herself. 

Jay said the hardest kinds of questions to answer are the "line drawing questions" - those questions where the justices keep presenting hypothetical like "it is 2 years, 3 years, 4 years?" He states that for those questions the best way to answer is have some limiting principle in mind, to anticipate these hypotheticals, and to have potential exit strategies. Jay says that one mistake new advocates make is that they think they can decisively direct the flow of the argument. Never tell the Court "I'll get to that," or, "That is not this case."

On rebuttal he discussed the competing philosophies of whether one should make a glancing blow at a primary issue, or take the knock out to a tertiary issue. He came down on the side of attacking the primary issue even if the strike is not as spectacular as another lesser point that might be made. 

A final bit of advice was to the substance of the oral argument. Jay said that the presentation of the argument should be the substance of the brief, but stated differently. Think of the thematic points, where to start the argument, and the absolute 2-5 things that must be said. 

 

 

Leaks and the Supreme Court

Earlier this month, CNN reported that Judge Roberts had supported the administration's ability to add a citizenship question to the census before he had decided to oppose it. According to "sources familiar with the private Supreme Court deliberations," Roberts had, to use a political term, flip-flopped. This seemed to be supported by the opinion, which began by noting the broad power of the relevant agency to include questions about citizenship, but eventually concluded that it still had to provide an honest rationale for any decision to do so, and that the record indicated that the explanation provided was pretextual.

This was not the first time Roberts had been allegedly outed for changing his mind during the deliberative process. In 2012, when Roberts joined the majority to support the Affordable Care Act, the press again used insider information to show his change of mind. In that case, CBS cited to "two sources with specific knowledge of the deliberations," who detailed Roberts' journey from one side to another.

There is a very short list of who these sources might be. It is also fairly apparent that the damage to the Court is mounting, as these leaks fit into the narrative that politics plays more of a role than precedent.

Of course, judges do, and should, change their minds during the deliberative process. Simple issues are rarely appealed, and even more rarely reach this level. The complex issues involved require time to determine, and we should hope that judges maintain an open mind during this time, permitting change. And the modern "rule" of judicial silence in response to these leaks means that judges are unable to defend those deliberations.

These leaks are nothing new. As Jonathan Peters wrote for Slate after the 2012 leaks, there is a long history of leaks from the high court. This history seems to indicate that the damage done by the leaks, which are usually politically motivated, is mounting.

In the 1800's, the New York Tribune seemingly sat in chambers with the Court. Days before the Court handed down its decision in Pennsylvania v. Wheeling and Belmont Bridge Company, the Tribune reported the outcome. It then provided detailed accounts of the deliberations in the Dred Scott case. Historians have speculated that the leak came from Justice McLean, who authored a dissent in those cases.

In the 1960's, a law clerk leaked information to the New York Times about Justice Fortas and his close connection to the administration. According to the U.S. Senate website, as a sitting justice, Fortas regularly attended White House staff meetings, briefed the president on secret Court deliberations, and, on behalf of the president, pressured senators who opposed the war in Vietnam. When these details were revealed during his confirmation hearings to be appointed Chief Justice, along with details of a private stipend he received to teach, rather than being confirmed as Chief, he eventually stepped down from the bench.

The leaks escalated after this point. In the 1970's Justice Douglas wrote a memo to his colleagues in the Roe v. Wade case, and it reached the hands of the Washington Post. Time then published a story about Roe v. Wade before the decision was announced by the Court, detailing the votes. Believing that a law clerk was again to blame, Justice Burger created the "20-second rule," meaning any clerk caught talking to a reporter had no more than 20 seconds left as a clerk before being fired.

Of course, the 20-second rule only applies to current clerks. Thus, in 2004, a group of former clerks leaked the details of the deliberations in Bush v. Gore to Vanity Fair.

Some of the leaks have been remarkably detailed. In 1986, ABC reported not only the outcome but the actual vote break-down before the decision was handed down regarding the Gramm-Rudman-Hollings balanced budget act. It also disclosed the date the decision would be handed down, a forecast that was off a few days reportedly only because Justice Burger delayed the release so that the reporter would be wrong about something.

This brief history gives some clue as to who the most likely sources might be. But whether it is a judge or a clerk (and it seems unlikely that it could be anyone else), they are damaging the Court at a time when it is already under serious attack.

As Justice Frankfurter noted, the secrecy of the Court's work is "essential to the effective functioning of the Court." Mr. Justice Roberts, 104 U. Pa. L. Rev. 311, 313 (1955). Justice Burger considered the enforcement of this secrecy to be an essential "inherent power" of the Court. New York Times Co. v. United States, 403 U.S. 713, 723 n.3 (1971) (Burger, dissenting). Rehnquist stated in a lecture on the topic that without secrecy, the open, at times short-tempered discussions at conference would end, to the detriment of the Court and the public it serves.  

Judges need to feel free to change their minds and be open with each other as they deliberate and discuss difficult issues. If leaks and reports continue to cast any change of heart during the deliberative process as being political motivated, it seems likely that the result might be a chilling of both communication and flexibility in thought. Either one would be dangerous.

(image source: Library of Congress, World War II poster from the U.S. Navy)

 

 

We need more activist judges

Yes, the title of this blog is designed to raise eyebrows.  But no, I am not arguing for judicial activism as defined by the right or the left.  Rather, I am arguing for a court that takes an active role in legal education. We need judges--state and federal--who visit law school classes, speak at campus events, teach classes and seminars, take interns, and otherwise engage in legal education in their state.

Since moving to Arizona, I have been astounded at how involved that state and federal judges are at the state law schools.  For example, each academic year the state Supreme Court and the local appellate court hold arguments at the school where I teach.  The local appellate court also welcomes students in our brief-writing course to its courtroom each semester to give their final arguments, with all of the judges and many of the clerks and staff attorneys serving as judges for the arguments.

Current and retired appellate judges and justices teach courses at the law school. They also attend campus events, give lectures at orientation or to student groups, judge competitions, and attend social events.

While I see the state judges on campus the most, the federal bench is also active.  The federal judges are also good about judging competitions and speaking at or attending events.  They also take a lot of student interns, and I always hear from students about what a great opportunity it was to intern at federal court.

The advantages of an active, engaged bench are profound.

First, judges make great mentors and role models for the students.  Students are often more likely to listen to advice from judges, especially on topics like professionalism and civility, which are extremely important skills for students to learn.

Second, and related, judges reinforce what is said in the classroom.  I can count on one hand the number of times that I have heard a judge give advice on brief-writing, advocacy, or professionalism that I disagree with.  Generally, we are all on the same page, and, to the extent that we want to produce excellent future lawyers, we are all on the same team.

Third, our students are likely to give and do their best if a real judge is involved in an event or competition.  While some students still care about impressing professors, nearly all of them care about impressing judges.  They rightly see judges as a possible future employer and/or someone that they should try to impress.  

Finally, having judges involved gives faculty a break. I can judge arguments, competitions, speak at events, and socialize, but it is so nice to have local judges who are willing to step into that role.  Sometimes, after saying the same things over and over, we faculty members just need a break.  Thankfully, we have enough judges in Arizona who lend a helping hand that they can get a break too!

I want to thank all of the state and federal judges who devote so much time to making law school a better experience for students.  Your hard work does have an impact!

 

An Old Resource Is New Again—Searchable "Constitution Annotated" Now Online

Since 1913, the Library of Congress has provided a resource for Constitutional scholars, practitioners, and the public, The Constitution of the United States of America: Analysis and Interpretation, generally known as The Constitution Annotated.  According to the Library of Congress, the "Constitution Annotated has served as the authoritative source for the American public to learn about the nation’s founding document alongside Supreme Court decisions that have expounded upon and refined it."  The Constitution Annotated thus "provides a comprehensive overview of how the Constitution has been interpreted over time."  https://constitution.congress.gov/about/

The Constitution Annotated is a wonderful resource to be sure, as it includes over 2,700 pages of annotations based on SCOTUS opinions and many "plain English" explanations for non-lawyers.  The Constitution Annotated also includes helpful tables on the Justices, opinions overruled, and laws held unconstitutional. 

Unfortunately, when the only way for most of us to access this resource was in hard-bound versions published every 10 years for Congress, its use was limited.  Moreover, while the Library eventually made The Constitution Annotated available online, it did so only as large, non-searchable PDFs on its website and through a clunky app for Apple only.  On the other hand, for many years the Library provided Congressional staff an internal, fully-searchable digital version of The Constitution Annotated, including separate webpage sections for each chapter, notes on founding documents, and links to historical and contextual materials.

In a Constitution Day 2019 letter to the Library about The Constitution Annotated, Senators Angus King and Rob Portman explained:  “Unfortunately, the public facing version is not . . . lucid.”  The Senators noted the 2013 iPhone app, like the Library of Congress public website, displayed "a document longer than the average Bible" as "a slew of PDF pages" that are "impossible" to read "on a phone’s tiny screen."  The Senators quoted Thomas Jefferson’s belief every American has an obligation "to read and interpret the Constitution for himself," and urged the Library to make the Congressional portal version available to the public.  Specifically, they asked for "a continuously updated structured data file, such as the XML format in which it is prepared, [to] empower researchers and students."  https://www.king.senate.gov/newsroom/press-releases/to-honor-constitution-day-king-urges-library-of-congress-to-make-constitution-annotated-available-to-all-americans.

Shortly after the Senators sent their letter, the Library launched a new website for The Constitution Annotated.  While still a work in progress, the new constitution.congress.gov includes many of the searchable and user-friendly features the Senators requested.   On the updated site, the Library also explains it will be making more changes in the coming months, as part of a “multi-year project to modernize the Constitution Annotated . . . to better enhance its educational value to a broader audience and to reflect the most recent Supreme Court terms.”

Now, visitors to the site will see separate links for The Annotated Constitution chapters and searchable databases of annotations and opinions.  Moreover, the pages are integrated nicely with the Library’s other resources.  For example, the homepage has links to interesting material like PDFs of George Washington’s handwritten letters, documents from the Constitutional Convention, and Congressional Research Service bulletins on current areas of debate in Constitutional law.

For anyone practicing or writing about Constitutional law, as well as students of our Constitution--young or less young--this site is a nice resource.  Hopefully, the continued updates will be quick and helpful as well.  Enjoy this updated spot for SCOTUS opinions, annotations, and historical documents.

Appellate Advocacy Blog Weekly Roundup Friday, September 20

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). 

US Supreme Court Opinions and News:

The National Law Journal’s Law.com featured an article this week discussing Justice Neil Gorsuch’s new book, “A Republic, If You Can Keep It,” and his thoughts about judicial clerks for the Supreme Court.  In the book, Gorsuch recounts his time clerking for Justices Kennedy and White, as well as his advice for new clerks.  Gorsuch’s biggest piece of advice for new clerks:  “Rule No. 1:  Please, please don’t make stuff up.  And Rule No.2:  When all those people out there in the chattering classes beg you to make something up, . . . refer back to Rule No. 1 please.”  Gorsuch is currently on the road for a whistle stop book tour ahead of the Court’s new term next month.  More HERE.

New allegations concerning the prior conduct of Justice Kavanaugh have surfaced and been in the headlines this week.

• • Washington Post:
    • Article.
    • The Fix Blog Post. 
  • Boston Globe:
    • Article. 
  • The Atlantic:
    • Article. 

There has been a good bit of recent discussion about the pros and cons of considering expanding (or “packing”) the Supreme Court to include more Justices.  This week, the New York Times weighed in with an opinion piece in favor of packing the Court.  More HERE.  

President Trump this week asked the Supreme Court to grant him more authority over the Consumer Financial Protection Bureau.  Under current structure, the director of the CFPB can be dismissed only for "inefficiency, neglect of duty, or malfeasance in office." The Trump administration has asked the Supreme Court to declare that an unconstitutional limitation on the president's power to remove the director as part of the executive branch. More HERE.

 

Federal Appellate Court Opinions and News:

In United States v. James, the Fifth Circuit Court of Appeals this week held that forced medication of mentally troubled criminal defendants to ensure competency to stand trial implicates protected liberty interests and that Due Process requires the State to satisfy the requisite legal test for compelling such medication by the standard of clear and convincing evidence, not just a preponderance. In so ruling, the Fifth Circuit joined nine other courts of appeals who have reached the same conclusion as to the appropriate standard of proof.  Opinion HERE.

Bloomberg Law had an article this week discussing a request made by Whole Foods Market Group Inc. to the U.S. Court of Appeals for the District of Columbia for “a strict jurisdictional rule to stop unnamed class members with no connection to the place where the lawsuit was filed from pursuing class claims for unpaid wages.”  The same issue is pending in cases before the Seventh and Fifth Circuits. If granted, this could cause a rollback of workers’ power to use class actions to accuse corporations of workplace law violations in cases currently pending before federal appeals courts.  More HERE.  

Appellate Practice Techniques and Tips:

#AppellateTwitter this week included a twitter thread discussing advice on generating more appellate practice business.  The thread is full of great thoughts and insights from members all across #AppellateTwitter.  The thread was started by twitter user Jimmy   Thread HERE.  

Blake Hawthorne, Clerk of the Supreme Court of Texas, has an online “Guide to Creating Electronic Appellate Briefs” that is full of tips and tools for using your word processor’s many features to create a more user-friendly and professional electronic brief.  Check out the guide HERE.  

 

“Good People, Speaking Well”: Virtue, Eloquence, and the Esteem of Lawyers

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 asks:  can a lawyer be rhetorically effective if the lawyer lacks good character? A Roman rhetorician, Quintilian, didn’t think so. His “ideal orator” needed both eloquence and virtue. Quintilian’s ideas can reframe lawyers’ perceptions of their own work.

In popular culture, “rhetoric” is often used as an insulting term, not a complimentary one. For example, a speaker’s words might be called “empty rhetoric” or “merely rhetoric,” meaning the message is manipulative, dishonest, or insincere. In at least some cases, the implication is that the speaker who is engaging in “empty” or “mere” rhetoric has a poor character rather than a good one. That is, one who engages in “empty rhetoric” is also not a good person.

But first century Roman lawyer and rhetorical scholar Quintilian thought just the opposite. Yes, you read that right: only the “good person, speaking well” (a paraphrase of Quintilian’s words) could engage in rhetoric.

Marcus Fabius Quintilian taught and wrote about rhetoric during the Roman Empire (in the first century A.D.), when the emphasis on rhetorical training and in handbooks was primarily on legal rhetoric. This makes the work of classical Roman rhetoricians like Quintilian particularly helpful to practicing lawyers. (If you want to explore further, take a look at the works of Cicero, writing in the first century B.C.E., and at the anonymously authored Rhetorica Ad Herennium, written around the same time.) In both practice and teaching, Quintilian focused his work on legal rhetoric, and his Institutio Oratoria was his opus on teaching rhetoric.

In Institutio Oratoria, Quintilian describes, among other things, the “ideal orator,” the person who perfectly engages in rhetoric. He argues that rhetoric is not amoral; rather, rhetoric is necessarily moral—the orator’s job is to say what is “just and true.” Accordingly, Quintilian makes virtue a necessarily component of practicing rhetoric; any influential speech that lacks virtue is merely persuasion, not rhetoric.

So, who is this ideal orator who can “do” rhetoric? Quintilian answers: no person can be an orator (i.e., “do” rhetoric) unless that person is a good person—one who chooses virtue over vice, discernment over deception. For Quintilian, virtue is connected to sincerity. Only a virtuous person can be sincere and thus persuade to truth; a “bad” person, on the other hand, while perhaps capable of eloquence (i.e., speaking well), is insincere and thus not capable of rhetoric. The ideal orator is the person who has “the knowledge and boldness to speak with sincerity” while a person of “bad” character is one utters words “at variance” with his thoughts. In sum, perfect eloquence is the combination of speaking well and having virtue or, in other words, speaking well with sincerity.

Well, then, so what about this? Why should lawyers pay any attention to splitting hairs about what rhetoric—and the practicing of it—can mean?

Here’s one idea: In a 2013 Pew Research Center Study, lawyers were rated lowest in the amount of esteem the public holds for them. But Quintilian’s unbreakable connection between virtue and eloquence in the practice of rhetoric empowers lawyers to make a claim for lawyering as a virtuous profession. The craft of legal advocacy—advocacy that is grounded in rhetorical theory more than two millennia old—is, by definition, ethical, moral, virtuous. Framing the practice in this way has the potential to improve lawyers’ sense of the profession’s value to society and, as a consequence, improve their career satisfaction. Great legal advocacy is not insincerity; it is, by Quintilian’s definition, both sincere and effective, worthy of esteem.

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 [email protected].

(Cleaned Up) Citations

Appellate advocates must write clean, crisp prose that will persuade judges. We constantly strive to improve the readability of our prose. But the conventions of legal writing often interfere with readability. One such convention is how we format and cite quotations from case law, particularly when we alter or omit inconsequential parts of the quotation to make the quotation more readable, or when the material we are quoting is a quotation from an earlier case.

Let’s say that we represent Mr. Smith in his claim that officers used excessive force. In our brief we write:

Officers used excessive force when they arrested Smith.

In evaluating these claims, a court must consider (1) whether “the handcuffs were unreasonably tight, [sic] (2) [whether] the defendants ignored the plaintiff’s pleas that the handcuffs were too tight; and (3) the degree of injury to the wrists.” Lynch ex rel. Lynch v. City of Mount Vernon, 567 F.Supp.2d 459. 468-469 (S.D.N.Y.2008) (emphasis and alteration omitted) (quoting Esmont v. City of N.Y., 371 F.Supp.2d 202, 215 (E.D.N.Y.2005)).

Higginbotham v. City of New York, 105 F. Supp. 3d 369, 377 (S.D.N.Y. 2015).

Does it matter to our argument that the reader know that the Higginbotham court quoted Lynch, a case from another district court, for this standard (or that Lynch quoted another district court case); that the court added the word “whether” to that quote; that it omitted emphasis and alteration; or that the court in Higginbotham mistakenly used a comma after “tight” when the Lynch court had used a semicolon? In most instances, that information does not affect our analysis, so why do we include it if our goal is to write clean, crisp prose? The short answer is that the Bluebook says we should. But one author, Jack Metzler, who tweets as @SCOTUSPlaces,   suggests that we omit this superfluous material. He has proposed a new citation parenthetical—(cleaned up) to help make our prose more readable when we quote case law.

In Cleaning Up Citations, 18 J.App. Prac. & Process 142 (2017), https://ssrn.com/abstract=2935374 Metzler discusses the need for, and importance, of accurate quotations and citations. He points out that the citation sentence following a quotation gives readers the information they need to assess the weight of the quoted authority. But, he notes, quotations and citations are in tension with the need for readability. So how can we convey the information the reader needs to assess the weight of authority without interfering with the readability of our brief? Metzler proposes that “legal writers adopt the parenthetical (cleaned up)” to show that in quoting a court’s opinion the writer:

• has removed extraneous, non-substantive material like brackets, quotation marks, ellipses, footnote reference numbers, and internal citations;
• may have changed capitalization without using brackets to indicate that change; and
• affirmatively represents that the alterations were made solely to enhance readability and that the quotation otherwise faithfully reproduces the quoted text.

Id. at 154.

Lawyers, beholden as we are to tradition, might be reluctant to use (cleaned up) but we are in good company if we do. Bryan Garner, an expert on legal writing, has endorsed (cleaned up) https://www.lawprose.org/lawprose-lesson-303-cleaned-up-quotations-and-citations/ and judges across the country have used (cleaned up) in opinions. According to Metzler, as of August 31, 2019, (cleaned up) had been used in 1775 judicial opinions. It has been used by every federal circuit court of appeals except the First, fifty-four United States District Courts, twelve state supreme courts, and ten state intermediate appellate courts.

(Cleaned up) has its critics. Adam Eakman, blogging at Attorney Words, has identified some problems with using (cleaned up). Several examples Eakman gives stem from misuse or misunderstanding of how and when to use this new parenthetical. http://attorneywords.com/cleaned-up/. And, as Eakman points out, it is often better to paraphrase material from a case than to quote it. Eakman believes that (cleaned up) gives writers an “easy out” that will cause lawyers to quote material rather than paraphrasing. While that may be true, given the penchant lawyers have for quoting it’s better to make those quotations more readable. (Cleaned up) does that. We can work on paraphrasing too (and sometimes it takes work to paraphrase well).

So, how does (cleaned up) up work in practice? Let’s clean up the example in our brief for Mr. Smith:

Officers used excessive force when they arrested Smith. “In evaluating these claims, a court must consider (1) whether the handcuffs were unreasonably tight, (2) whether the defendants ignored the plaintiff’s pleas that the handcuffs were too tight; and (3) the degree of injury to the wrists.” Higginbotham v. City of New York, 105 F. Supp. 3d 369, 377 (S.D.N.Y. 2015) (cleaned up).

Our quotation is now easier to read and what was a block quotation (fifty words or more) can now be an in-line quotation. Metzler’s article gives several other examples of how (cleaned up) can help improve the readability of legal writing, something we should always try to do.

Before They were on the Court

Recently, biography and memoir have been my favorite pleasure-reading categories, and I’ve found myself drawn to books detailing the lives of Supreme Court Justices, particularly what path took them to the high court. For me, two have stood out this summer, as they tell the inspiring stories of Sandra Day O’Connor, the first woman Supreme Court Justice, and Sonia Sotomayor, the first Latina Supreme Court Justice.

First, by Evan Thomas is a biography of Sandra Day O’Connor, and it’s well-worth a read, particularly for those of us who never knew a time when there was not a woman on the Supreme Court. That was not the world Sandra Day was born into in 1930, and her rugged western upbringing prepared her to blaze trails both in Arizona and in D.C. Thomas impressively weaves together the threads from childhood, to political activism in Arizona, to the bench. I grew up in the eighties, went to college in the ninety’s, and only knew Justice O’Connor as the “swing vote,” and a highly-visible member of the Rehnquist court. I thoroughly enjoyed learning about the other aspects of her life, and Thomas’s take on how they impacted her jurisprudence.

I chose Sonia Sotomayor’s My Beloved World because she came to speak at the University of Houston last year, and several things she said about her journey intrigued me. As an educator, I wanted to learn more about her time at Princeton where she realized that she had ground to make up, particularly in argument and writing skills when compared to her affluent classmates coming from excellent prep schools. On the whole, the book is warm and displays the same charm I experienced in an auditorium full of people at her visit. It ends with her appointment to the United States District Court for the Southern District of New York, though, so there is no discussion of her time on any bench. Instead, it’s an intimate telling of her childhood, schooling, family, and career, leading into her judicial life. While there is no explanation of her jurisprudence, again, there are threads from her early life and career that one can see woven into her later life as a judge.

Dahlia Lithwick’s picks from several years ago are listed here, if you are interested in other suggestions beyond mine.

As a final note, The Education of Brett Kavanaugh, an Investigation by Robin Pogrebin and Kate Kelly will be released tomorrow. It is sure to be a less inspiring read. Here’s the link to the New York Times book review. While this book also takes a look at the young life of a Supreme Court justice, we all know it will have a different feel. Some may be eager to dive into details uncovered by Pogrebin and Kelly as they looked at Kavanaugh’s “extracurriculars,” but I am not convinced this one will end up on my nightstand any time soon.

Do you have a favorite biography or memoir of a Supreme Court Justice?

Five Tips for Law Students to Become Effective – and Persuasive – Legal Writers

Five Tips for Law Students to Become Effective – and Persuasive – Legal Writers

              Learning how to write effectively and persuasively in a variety of legal contexts is among the most important skills needed to competently practice law. Indeed, a recent survey by LexisNexis that included 300 hiring partners and law faculty revealed that forty-one percent of attorneys and fifty-one percent of law faculty believe that writing is among the most important skills needed to successfully practice law. See BarBri State of the Legal Field Survey, available at: http:// www.thebarbrigroup.com/files/white-papers/220173_bar_researchsummary_1502_v09.pdf.

              Put simply, excellent lawyers are also excellent writers. A lawyer’s ability to draft persuasive pleadings, motions, and briefs at the trial and appellate stage often determines the likelihood of success in a particular case and the likelihood that an attorney will achieve success in the legal profession.

              Given the importance of developing effective legal writing skills, particularly regarding persuasive writing, aspiring and current law students should strive to perfect their writing skills before graduation. Below are five tips, regarding both style and substance, that will provide a solid foundation upon which develop competent persuasive writing skills.

1. Rewrite and Revise

             Great lawyers know that their first drafts of pleadings, motions, and briefs are not their best and final drafts. Instead, great lawyers focus on rewriting and revising their first draft to ensure that their work product is of the highest quality.

           The rewriting phase consists of a macro or substantive edit. A macro edit involves reviewing and editing a legal document for large-scale errors or omissions, with a particular focus on the flow, clarity, and substance of legal arguments. During this stage, you should:

• Ensure that your document flows effectively, is concisely written, and is easy to understand (e.g., eliminate unnecessary repetition and extraneous or irrelevant facts);
• Ensure that you have stated the law accurately;
• Eliminate unnecessary exposition of legal doctrine (i.e., state what the governing law is, but avoid a lengthy recitation of how the law developed);
• Ensure that you have addressed relevant counterarguments and acknowledged weaknesses in your case where appropriate; and
• Ensure that you have a powerful introduction in which you clearly state the basis upon which your client should prevail and obtain the remedy you seek.

         The revising phase consists of a micro or stylistic edit. During this stage, you should:

• Ensure that there are no grammatical and spelling errors (if your legal document has spelling or grammatical errors, it will detract from the credibility of your legal argument);
• Separate long paragraphs into smaller paragraphs (as a general matter, a paragraph should be three to five sentences);
• Identify and revise lengthy sentences (as a general rule, sentences should be no longer than twenty-five words);
• Eliminate unnecessary words (particularly adjectives), commonly confused words, over-the-top language, and artificial emphasis;
• Ensure that you use transition words effectively;
• Maintain consistency in verb tense; and
• Ensure that you are using the active voice,

2. Be Concise and Keep It Simple

             Judges are very busy and, with the assistance of their clerks, judges read countless motions and briefs. Given this fact, neither a judge nor a clerk desires to read pleadings, motions, or briefs that are unnecessarily verbose and lengthy. For this reason, be sure to eliminate complex, esoteric, or unnecessary words, Latin, legalese, lengthy words and phrases, and repetition from your documents. Indeed, the quality of an attorney’s writing directly affects an attorney’s credibility and, ultimately, the likelihood of succeeding on the merits. Consider the following example (as stated in a complaint):

 "The defendant’s shocking and insulting statements, which, as discussed infra and as outlined supra, were false, malicious, and injurious, particularly given that the statements caused plaintiff immeasurable embarrassment and humiliation ipso facto demonstrate that plaintiff has stated a prima facie case that the defendant defamed plaintiff in an egregious manner."

                                                                                                                     Versus

"The defendant made intentionally false and defamatory statements that caused the plaintiff to suffer substantial damages."

           The first sentence is fifty words and the second is sixteen words. Yet, both sentences convey the same meaning and make the identical claim. Put simply, when drafting a complaint, focus not merely upon what you are saying, but how you are saying it.

3. Draft a Compelling Factual Narrative

            Although the governing legal principles in a case are certainly important, the facts of a case largely determine whether a litigant is likely to succeed on the merits. Indeed, because legal rules or standards are often stated in broad terms, the application and interpretation of those principles depend on the facts of a particular case. For example, the Eighth Amendment to the United States Constitution prohibits the imposition of “cruel unusual punishment.” Whether a punishment is cruel and unusual, of course, depends on the facts, namely, the specific punishment at issue that a claimant alleges violates the Eighth Amendment. Likewise, basic contract law principles provide that a contract is not valid without the parties’ assent. Whether the requisite assent is present obviously depends on the facts of a particular case. As these examples demonstrate, the facts, not the law, most likely determine whether a client is likely to prevail. For this reason, when drafting a pleading, motion or brief, be sure to focus on drafting a compelling, detailed, and concise factual narrative in which you persuade the court that a ruling in your favor is the correct and just outcome.

4. Address Unfavorable Law and Counterarguments, and Explain Why They Do Not Affect The Remedy You are Seeking

             In most cases, the law will not completely and unequivocally support an attorney’s legal position. Rather, the relevant case law will often contain favorable and unfavorable decisions that create some degree of uncertainty regarding the likelihood of succeeding on the merits.

             Importantly, when drafting a brief at the trial, appellate, or supreme court level, an attorney should never ignore unfavorable case law. Doing so is dishonest and strategically risky because, in most instances, the judge will find the law that a lawyer has ignored, which will damage the attorney’s credibility and the persuasive value of the attorney’s legal arguments. To avoid this problem, a competent attorney will acknowledge unfavorable case law and explain to the court why these cases do not undermine the attorney’s argument and the remedy that the attorney is seeking. In so doing, an attorney will retain credibility with the court and maximize a client’s chances of succeeding.

5. If You Want to Become an Excellent Writer, Read Excellent Writing

             If you want to become an effective legal writer, be sure to read excellent legal writing, which will enable you to observe, among other things, how experienced attorneys apply various persuasive writing techniques to maximizes their factual and legal narratives.

            Law students who are interested in reading excellent legal writing can begin by reading John Roberts’ brief in Alaska v. Environmental Protection Agency, which can be accessed here: https://www.findlawimages.com/efile/supreme/briefs/02-658/02-658.mer.pet.pdf.

            Of course, these tips are not exhaustive, but they will provide a foundation upon which law students can begin to develop effective writing skills. Additional resources include the following:

Ross Guberman, Point Made: How to Write Like the Nation’s Top Advocates, available at: https://www.amazon.com/Point-Made-Write-Nations-Advocates/dp/0199943850

Bryan A. Garner and Antonin Scalia, Making Your Case: The Art of Persuading Judges, available at: https://www.amazon.com/Making-Your-Case-Persuading-Judges/dp/0314184716

Steven Stark, Writing to Win: The Legal Writer, available at: https://www.amazon.com/Writing-Win-Steven-D-Stark/dp/0307888711

Richard C. Wydick, Plain English for Lawyers, available at: https://www.amazon.com/Plain-English-Lawyers-Richard-Wydick/dp/1594601518

Simple Tools to Avoid Confounding Legal Writing

"'Do you believe in clubs for young people?' someone asked W.C. Fields. 'Only when kindness fails,' he replied.”

- The Linguistic Analysis of Jokes

Ambiguous sentences suck. You spend hours coming up with brilliant legal arguments. What could be worse than a reader misinterpreting them? To us writers, our sentences often seem straight forward, even simple. But unless you're careful, folks reading the same words can be left scratching their heads.

Take this famous sentence:

I saw a man on a hill with a telescope.

Simple. Short words. Active. But confusing. This sentence could mean, depending on the context:

• A man is on a hill, and I’m watching him with my telescope. 
• A man is on a hill, who I’m seeing, and he has a telescope.
• A man is on a hill that also happens to have a telescope on it.
• I’m on a hill, and I saw a man using a telescope.

Spotting sentences that make sense to you—but could be confusing for a fresh reader—is a skill all the great legal writers employ. You must have it. Otherwise the best points in the world risk falling on deaf ears.

Often the solution comes down to figuring out precisely what idea you are trying to convey—then using your common sense to build a sentence that delivers that specific idea and nothing else. Sometimes it will require a few more words, but that’s ok. Your readers would much rather understand then read a shorter but confusing sentence.

So in our telescope example, we could say:

I looked out my bedroom window and saw a man peering through his telescope up at the stars.

Yes, it’s longer. But your reader absorbs the specific idea you care about. And that is the gold.

A lot of things can lead to ambiguity, but below are three common culprits and some ideas for avoiding them.

1. Word ambiguity

Folks usually talk about two sorts of sentence ambiguity: ambiguous words (lexical ambiguity) and ambiguous sentence structure (syntactical ambiguity). 

Lexical ambiguity is when you use a word that can have more than one meaning or refer to more than one thing or person.

I went to the bank. (The bank could be a place where money is kept, or it could be the edge of a river).

I sent the bill to John. (The bill could be the amount of money John owed or it could be the bill for a cap so John, who repairs caps, can repair one.)

Ambiguous pronouns are a particularly pernicious culprit of word ambiguity. Lawyers use “it” or “he” in confusing ways all the time:

The two companies filed a brief and a motion, and it was indecipherable.

Who or what does the “it” refer to? We don’t know. And now your reader must backtrack to find clues to figure it out. Not good for busy legal readers.

To avoid this problem, carefully edit each sentence for word ambiguity--looking out for ambiguous pronouns especially, but also for any other words that can have double meanings. You will usually want to rewrite the sentence to make the word meanings clear:

The two companies filed a brief and a motion, and the motion was indecipherable.

These ambiguities also give you chances to just write a better sentence overall, making better use of emphasis or clarity:

The two companies filed a brief—and a motion that was indecipherable.

Then there are words that, by definition, are just always ambiguous. Take “appears.” This is a lawyer favorite. “Plaintiff appears to” do this and “Plaintiff appears to” do that. Or “seem.” The cases “seem to hold that no allegation is needed.” 

What do these words mean? Did the plaintiff do it or not? Did the case hold that or didn’t it? The point: Your reader doesn’t know exactly what idea to take away when you use imprecise words like these. For “appear” and “seem,” at best, you are telling your reader that you don’t know something. That’s about it. 

Imprecise words also signal that you’re trying to force your reader what to think—but you can’t quite bring yourself to say it. Not only are you making your reader skeptical by forcing the point, you don’t even have the confidence to do it persuasively. 

So watch out for words like these (and really, any other word that won’t tell your reader precisely what idea to take away): 

• Indicate
• Regarding
• Concerning
• Seemingly
• Apparently
• Suggestive

And then write it better.

2. Sentence structure ambiguity

Syntactic (AKA grammatical) ambiguity is nearly as common as ambiguous words. This is where the structure of the sentence or the glue words (like prepositions and other syntactical fillers) create some confusion.

A simple example is:

Visiting relatives can be exhausting. (What is exhausting: when relatives visit you, or when you visit relatives?)

Let’s stop controlling people. (Does this mean ‘Let’s stop people who control others’, or ‘Let’s stop controlling other people?)

The solution here is the same: Edit carefully with an eye towards potential confusion. Short sentences can hide these ambiguities—because there is not enough grammatical guidance to make the point clear—as can long, complicated sentences with lots of punctuation. It’s about empathizing with a fresh reader and developing sensitivity to which of your writing quirks can be confusing. Then editing, editing, and more editing!

3. Modifiers

Misplaced modifiers are the final common misstep. Modifiers generally act on the words that immediately follow them. And this is what readers expect. When your reader isn’t sure what is modifying what, you have a problem.

Watch what happens when we move around a modifier in that last paragraph:

Misplaced modifiers are commonly the final misstep.

The meaning is ambiguous—and perhaps downright wrong. Is it really that that “misplaced modifiers” are commonly the “final” misstep? As opposed to commonly being the first or second misstep?

Modifiers at the end of sentences tend to be the worst:

Misplaced modifiers are the final misstep commonly.

What is common? The misstep? The finality of the misstep?

Only is a fun modifier—and one you should pay attention to. Lawyers probably misplace the word only more than any other. The more words separating only from what it’s modifying, the more awkward and ambiguous. 

In this next sentence, if we move around the only, we can see how the meaning (and confusion) change:

The court only ignored a single problem.

Vs.

The court ignored only a single problem.

Vs.

Only the court ignored a single problem

And the worst—putting the only at the end:

The court ignored a single problem only.

Each has different meanings, and the last example is downright confusing (although not uncommon to see from even great legal writers).

Here are a few more examples of misplaced modifiers from real legal writing:

Children who are abused frequently are not protected.

Or:

All vehicles without a permit, saloons, hatchbacks and MPVs, may not enter.

Just edit for clarity by moving the modifiers next to what they are modifying:

Abused children are frequentlynot protected.

All vehicles including saloons, hatchbacks and MPVs without a permit may not enter.

Dangling modifiers are a species worth a final mention: A modifier that is describing something not even in the sentence. Like:

Ignoring the rules, the case wrapped up.

The answer here is to move the referent back into the sentence:

The court dismissed the case because the plaintiff ignored the rules.

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. 

 

SCOTUStalk series on Oral Advocacy

Amy Howe, a former contributor at SCOTUSblog, is conducting a podcast series with notable Supreme Court oral advocates. The first in the series to be interviewed was Paul Smith who has argued twenty-one cases before the Court. Smith discusses his first appearance in the Court in 1986, pre-Scalia days, and how things have changed. He says that it used to be common for the petitioner to take three or four minutes to frame the facts, before having to field any questions. Today, a concise opening statement of less than two minutes is imperative if one wishes to have any hope of framing the argument at all. 

His preparation for arguments is not mysterious. He rereads all the briefs, tries to anticipates the hard questions, drafts a short outline of his intended argument, and most importantly conducts numerous moot courts. He emphasizes that a memorized but not rehearsed-sounding opening is important. He recalls Justice Rehnquist interrupting opposing counsel during one argument with the interjection, "Are you reading?!" flustering the other attorney so much that he barely recovered.

Smith argued the landmark case of Lawrence v. Texas, and recalls getting questions from Justice Scalia that he had not anticipated nor had anyone in his moot preparations hit upon during practice. Smith says all one can do in that situation is hope that you can come up with something sensible, and perhaps get lucky with a friendly justice who may intervene. However, he states that if a thorough moot court preparation has been undertaken, it is usually the case that an answer can be formed that is consistent and coherent with your position. 

As for strategies when taking the respondents' position, Smith says there is not much time to take notes. An advocate must just listen and make one decision - where to start. When contemplating rebuttal, an additional decision should be made - whether to make one at all. Many times those who make rebuttal often wish they had not stood up. 

The series can be found at SCOTUStalk and the episodes are less than twenty minutes long. 

Frenemies of the Court - Weaponized Amicus Briefs

 

Amicus briefs are wonderful tools, and fun to draft. Freed from many of the rule restrictions imposed on a regular party brief, an amicus writer can soar rhetorically over the fray and make "big picture" observations of considerable help to the court. They can be full of satire. They can tell true stories. They can even be cartoons.

That freedom, however, can be abused. And when it is, the friend of the court can become an enemy. To be a friend to the court, keep these three rules in mind.

1. Amicus briefs should add something new and valuable to the case.

First, amicus briefs are not an opportunity to ghost-write around briefing limitations. As counsel for a party to an appeal, I have been asked to not only solicit amicus briefs, but to ghost write them for friends of the court who will then put their name on them. Resist that urge.

“A true amicus curiae is without interest in the litigation matter. An amicus curiae is a ‘bystander’ whose mission is to aid the court, to act only for the personal benefit of the court.” See Burger v. Burger, 156 Tex. 584, 298 S.W.2d 119, 120 (1957). In some courts, the amicus must certify that they are not being paid or supported by a party, or disclose all sources of funding for the brief. Thus, Federal Rule of Appellate Procedure 29 requires disclosure of all sources of funding and any input on the writing process by a party's counsel. Supreme Court Rule 37 is similar. Some states have much looser rules, while others mirror the federal system. But everyone should be mindful of Judge Posner's position that most parties use amicus to simply add to their page length, and as such, most amicus briefs should be ignored because they do not offer anything of value to the court that is not already in the party's briefs. See Voices for Choices v. Ill. Bell Tel. Co., 339 F.3d 542, 544 (7th Cir. 2003).

A true amicus recognizes this rule and presents something new and valuable to the court. The parties recognize this and solicit briefs that will add value to the argument without ghost writing them. Ignoring the rule likely means your amicus will likewise be ignored, or even rejected.

2. Amicus briefs should not be used for personal attacks.

Second, amicus briefs should not be used for personal attacks on either the litigants or the court. Recently, members of the U.S. Senate filed an amicus brief in a Supreme Court case involving the Second Amendment. Authored by a member of the Senate as "Counsel of Record," the brief repeatedly and selectively quotes Justice Roberts, cites to public polls and numerous websites more than cases, hints at a dark money conspiracy between the NRA, the Federalist Society, and the Court, and concludes with a thinly-veiled threat:

Today, fifty-five percent of Americans believe the Supreme Court is “mainly motivated by politics”(up five percent from last year); fifty-nine percent believe the Court is “too influenced by politics”; and a majority now believes the “Supreme Court should be restructured in order to reduce the influence of politics.” Quinnipiac Poll, supra note 2.To have the public believe that the Court’s pattern of outcomes is the stuff of chance (or “the requirements of the law,” Obergefell, 135 S. Ct. at 2612 (Roberts, C.J., dissenting)) is to treat the “intelligent man on the street,” Gill v. Whitford, No. 16-1161, Oral Arg. Tr. at 37:18-38:11 (Oct. 3, 2017), as a fool.

The Supreme Court is not well. And the people know it. Perhaps the Court can heal itself before the public demands it be “restructured in order to reduce the influence of politics.”Particularly on the urgent issue of gun control, a nation desperately needs it to heal.

While the brief garnered plenty of attention and, thus, likely accomplished exactly what it set out to do, it was harmful in a way few people noted. Judges certainly are not above criticism. But the judiciary is put in a difficult position when it is criticized in its own forum. If it censors the criticism, it loses status. It also has limitations on its ability to respond. Therefore, as Learned Hand opined, "Let [judges] be severely brought to book, when they go wrong, but by those who will take the trouble to understand."

Attorneys (and the authoring Senator was an attorney) in particular should be cautious in their critiques of the courts and counsel, because they have an obligation to uphold the legal system. This may, at times, require "speaking truth to power," and many commentators think this is exactly what the amicus did. But it should not be done in a way that diminishes that power of the courts overall, or that recklessly impugns the integrity of our highest court. See Model Rule of Professional Conduct 8.2. And the brief here, weaponized as it was to pointedly attack the court at the top of our legal system, arguably did just that.

Most of us, of course, are not U.S. Senators with a political point to make. If we want to write briefs that will be read and be persuasive, we need to attack the arguments, not the advocates or the members of the court.

3. Amicus briefs should not inject extrajudicial facts or junk science.

Finally, amicus briefs should not try to bring in facts not in the record, and in particular, should not introduce research that is not carefully vetted to ensure its accuracy. Amicus briefs that rely on social research data are popular, and are particularly susceptible to being weaponized when they distort that data. See Michael Rustad & Thomas Koenig,The Supreme Court and Junk Social Science: Selective Distortion in Amicus Briefs, 72 N.C. L. Rev. 91(1993). As the authors of this paper note, amicus briefs purporting to present statistical fact to the court create fiction, instead, when they fail to follow the proper methodologies or permit analytical gaps that would have been contested and weeded-out if presented at trial. Without a formal process for determining the merit of such statistical analysis when it is presented on appeal, an amicus who files such a brief must be extremely cautious that they do so appropriately.

Amicus briefs that avoid these three traps can truly be helpful to the Court. They can be extremely inventive. But they should stay friendly to the court, if not the court's rulings.

(I thought my title was creative until I came across Helen Anderson's, "Frenemies of the Court: The Many Faces of Amicus Curiae," 49 U. Rich. L. Rev. 361-416 (2015); University of Washington School of Law Research Paper No. 2014-25. Available at SSRN: https://ssrn.com/abstract=2474729 or http://dx.doi.org/10.2139/ssrn.2474729 . Not only did Anderson come up with part of my clever title before I did, but she also does a great job in the paper of categorizing the types of amicus briefs filed.)

 

(image credit - untitled political cartoon by Clifford Berryman from the 1930s)

"O[h] Canada": One way to get rid of a case

While many lawyers might think that being a judge would be an ideal job, we sometimes forget that judges generally* don't get to pick their cases.   So, once a judge is assigned a case, he is stuck with it (unless, of course, he can get rid of it under some justiciability doctrine).

It turns out, however, that there is another way to get rid of a case, at least according to the Court of Appeal for Ontario, Canada.  A three justice panel of the court heard an appeal in a real estate matter.  According to a news story, the case concerned failed real estate investments. The plaintiff "was to provide second mortgage financing for real estate units, but they were never 'renovated, rented or sold, as anticipated,' and the mortgages went into default."  The plaintiff "was trying to recover amounts that were due under second mortgages and stand-alone guarantee agreements signed by individual defendants."  At issue were a choice of law and statute of limitations questions.

The appellate court issued its opinion on May 27, 2019.  However, one of the justices who signed on to the opinion had not heard the case.  Apparently, according to a later opinion, "One of the members of the panel that heard the appeal . . . was not provided with either the draft judgment for review or the final judgment for signature. The judgment was signed, in error, by another justice who was not a member of the panel that heard the appeal." 

After being made aware of the problem and submitting briefs on the matter, one of the parties suggested that the omitted justice just review the opinion and either "assent to or dissent from" it.  The court, however, disagreed.  It said "The panel of judges that rendered judgment was not the same panel that heard the appeal. . . . The decision-making process has been compromised and this panel cannot render a judgment."  The panel concluded that "the appeal must be re-heard by a differently constituted panel of the court." 

Having clerked for an appellate court, albeit an American one, I have no idea how this could happen.  The news story that I saw on the case didn't shed any light on the cause of the error either. It quotes a senior legal officer for the court who said that there were "several procedures in place to prevent such mistakes" and who called the error "rare." I would hope it would be rare! I would be curious to know how much the court's mistake has cost the parties in additional legal fees--not only did they have to submit additional briefs, the case now has to be reargued.

Fortunately for the parties, a new panel will hear the case on the expedited schedule.  Hopefully they will get their issues resolved soon.

*Courts with discretionary review, like the U.S. Supreme Court, certainly do have control over their dockets.

He, She, or They: Thinking Rhetorically About Gender and Personal Pronouns

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 post encourages you to think rhetorically, not just grammatically, about personal pronoun use.

When I enter church on Sunday mornings, a greeter asks me my name and neatly prints it on a tag. Then they ask, “What personal pronouns do you prefer?” When I answer, they write those on the name tag, too.

The gender identity on my name tag is more than grammatical; it is rhetorical. The words identify (at least in part) the “me” wearing the tag and help shape how others view me as a human being. And addressing a person by the pronoun the person prefers is a sign of respect (or, as Aristotle might call it, a sign of goodwill, a component of ethos).

Modern rhetorical scholar Kenneth Burke might tell us (if we could ask him) that the personal pronouns on the name tag work through “identification”—they persuade through making connections, not by making explicit arguments. In the realm of human relations, Burke would say, identification is a more powerful way to persuade than by overt argument. Identification is the way we overcome division; we persuade each other by identifying our own ways with the ways of another. (For more on Kenneth Burke’s theories and how they have influenced the study of rhetoric, visit the Kenneth Burke Society Journal.) By wearing my name tag, others are persuaded to connect me with a particular gender identity. They are also persuaded to identify me with a particular church community. My tag identifies me to and with others.

When legal writers choose personal pronouns for the humans that appear in their legal writing, those pronouns persuade through identification; the legal writer assigns identities and carves out communities of membership. That’s quite a bit of power that the legal writer holds over the “characters” in legal stories, and that’s why legal writers should be mindful about pronoun use, particularly when it comes to pronouns and gender identity.

In a recent and excellent bar journal article by University of Washington law professor Tom Cobb, “Embracing the Singular ‘They,’” Professor Cobb provides information that can help legal writers be mindful about pronoun use. Professor Cobb’s article focuses on the issue of whether to use “they” as a singular personal pronoun. Professor Cobb makes a compelling argument for using singular “they” in many circumstances, including when the gender of a person is unknown or undetermined. He points out that “they” has been recognized as a singular pronoun historically (in the Oxford English Dictionary, for example) as well as currently (by the Washington Post, for example). He also points out that using singular “they” can avoid sexist writing and gender binaries.

In fact, I’ve followed Professor Cobb’s advice on using the singular “they” in the second paragraph of this post. In that paragraph, I use “they” to refer to my “greeter,” a single person, but one whose gender is undetermined because the greeter is not the same person every Sunday. Although as Professor Cobb points out, using “they” in this circumstance may create “grammatical friction,” “they” also does important rhetorical work.

Singular “They” is Rhetorically (and Ethically) Inclusive.

First, using singular “they” avoids preferring one gender over another or assuming a gender binary. I don’t need to choose “he” over “she” (or vice versa) to make my point in the sentences. Likewise, I don’t need to assume that there are only two genders (“he” or “she”) to get my message across. Instead, singular “they” represents a more gender-inclusive writing style, one that Professor Cobb suggests is becoming more widely preferred. And if this were a legal document in which I used an inclusive writing style, I would be sending a message about my attitude toward my professional role as an officer of the court who is responsible for the fair administration of the judicial system, a system that must treat all participants without bias or discrimination. (See Model Rule of Professional Conduct 8.4, comment 3: Lawyers must avoid discrimination by avoiding “harmful . . . verbal conduct that manifests bias or prejudice towards others.”) On balance, choosing to use singular “they” here is not only rhetorically preferable but ethically so.

Singular “They” Creates Opportunities for Identification.

Second, by using singular “they,” the opening narrative (the story of getting a name tag at church) invites the reader to interact and identify with the text. Singular “they” creates more possibilities for identification between reader and greeter in the opening vignette—“they” gives the reader options for visualizing the greeter. Thus, the greeter can have different gender identities based on how the reader fills in that information. In fact, readers could imagine themselves as the greeter—a form of identification with the story that would make it particularly persuasive.

Arguably, providing specific fact details in legal writing is preferred because details are more memorable and thus more persuasive. But sometimes, giving readers the option to “fill in the details” can be equally persuasive. When readers fill in the details that are important to them, then they may identify more strongly with what is written.

This “filling in” is similar to the way argument works in an enthymeme—an argument in which one or more of the premises is not expressly stated. An enthymeme allows audiences to construct an argument’s premises themselves; the writer does not state them. Think of an argument where a picture of a flag is displayed with the words, “This flag stands for freedom!” A writer could further explain this statement, giving the definition of freedom and then describing the ways the flag connects to the definition. Or, the writer could stay silent on those points, letting the audience fill in the connections between the flag, freedom, and the audience’s own personal ideas about what freedom means. In this way, the audience fills in its own premises that make the argument about the flag more persuasive. 

One might argue that using “they” in the paragraph was a poor choice because it might be distracting; typically, “they” is used with plural nouns, and when it’s not, readers notice. Arguably, the reader will notice the grammatical tension more than the underlying meaning. But, on balance, leaving open as many points of identification as possible increases the chances the reader will connect to my story’s character in ways that make sense to the reader. That is, where there is no reason to be specific about gender in a sentence (or any other characteristic, for that matter), allowing readers to “find themselves” in the text can enhance persuasion.

Expressing gender with personal pronouns is a grammatical, rhetorical, and ethical choice. Being more mindful in your pronoun usage can help you improve all three.

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 [email protected].

Federal Court Practitioner Guides on Oral Argument

I'm often asked by practitioners who are preparing for their first oral argument in the United States Court of Appeals for the Seventh Circuit about good resources regarding what to expect. And my answer's always the same: read the Handbook. The court maintains an excellent Practitioner's Handbook for Appeals. And thank goodness it does. For one thing, the Seventh Circuit is notoriously persnickety about compliance with briefing rules. As the Handbook notes, its clerks flag about 10–15% of briefs tendered for filing as deficient. The Handbook gives detailed advice about how to avoid getting your brief bounced, including four pages on generating an unrejectable jurisdictional statement. The court's advice on brief content requirements nicely fleshes out the requirements of FRAP Rule 28(a) with concrete tips about drafting segments of the brief. And its eight pages on typography in briefs: indispensable. 

The Handbook also isn't half bad as a primer on oral argument. The Seventh Circuit is an oral argument-heavy joint. Unlike in most circuits, oral argument is the norm; with rare exceptions, the court schedules oral argument in all counseled cases. So it's not surprising that a big chunk of the Handbook (nine tersely-written pages) describes the process of oral argument in the circuit. The advice about sound presentation is all excellent.

The Seventh Circuit is not alone in providing a practitioner guide that offers solid tips about oral argument. A few examples, with links that'll jump you to the oral argument stuff:

• The U.S. Supreme Court's recently updated Guide for Counsel is thorough and concrete. I draw from it often when I teach and moot advocates.
• The Fifth Circuit's Practitioner's Guide is designed to make it easier for pro se litigants (and lawyers) to practice before the court. Its seven pages of information on oral argument goes beyond scheduling and mechanics to offer useful tips on preparation and presentation. 
• The Tenth Circuit Practitioner Guide's ten pages on oral argument feature some nice formulations of standard advice: 

And this tattoo-worthy tip: