Appellate Advocacy Blog

Butterick's Typography for Lawyers is Now Available for Free Online

In the appellate advocacy world, the holidays have arrived early.

As Ruth Anne Robbins put it in her classic 2004 article Painting with Print, "[p]ersuasion includes looking good on paper." So, at some point in our careers, a lot of appellate advocates start fretting about typography. And developing strong feelings about CAPS and fonts with the word "book" in them and the simple human courtesy of not hitting the space bar two freaking times after periods. 

As we should. We are still, in this stodgy profession, grinding our way through the Word Processing revolution. Much of what we learned about "typography" is stuff we picked up in seventh-grade typing class. And many of the conventions we learned about old-school brief formatting—caps for headings and underlining for citations & emphasis and a host of rules built around the fact that we mostly used monospaced fonts—make sense in a typewriter-driven world. And these relics persist in court rules and citation manuals because ... I mean, this is the legal profession. Relics persist.

So as we and enlightened courts embrace the benefits of painting with print, we need help. Typography is a complex bag of art and science. It's easy to fall back on typewriting-era conventional wisdom and default settings and fonts; it's easy to wander unguided into a maze of fonts and styles and emerge with a credibility-searing document in Comic Sans. If we're going to break free of old habits and defaults without generating over-engineered eyesores, we need a knowing guide.

That's where Matthew Butterick's Typography for Lawyers comes in. It's a fabulous book built on three core principles: (1) good typography is part of good lawyering; (2) legal documents are professionally published material and thus should be held to the same typographic standards; (3) any lawyer can master the essentials of good typography.

The book needs no hype from the likes of me. It's in its second edition, and it has been widely praised for years. In 2012, for example, the Legal Writing Institute honored Butterick with the Golden Pen Award. If you've been finding yourself dissatisfied with Times New Roman or passionate about using one space after punctuation, you've likely absorbed Butterickisms or relied on his reasoning to pwn Typewriter Holdouts on #AppellateTwitter. And Butterick's websites—both Typography for Lawyers and the more general Practical Typography—have always been remarkable, rich, free resources.

But here's what's new: the entirety of Typography for Lawyers is available for free online. There are, to be sure, ways to pay Mr. Butterick for his work. And we all should. But free is a powerful thing. And typography, for us, is a consequential thing. So dig in.

Who Really Drives the Appellate Litigation Bus?

No offense to this blog’s readers, but appellate advocates in general are a narcissistic bunch. We like to think of ourselves as the drivers of legal change in our system. We assume that the arguments we present before appellate courts are the impetus for new opinions that will have far-reaching practical effects in law and society. I feel confident in ascribing this self-important attitude to appellate advocates because I held it dearly when I practiced as an appellate public defender. Nothing could be more meaningful, I assured myself, than a worthy struggle in the arena of ideas that is an appellate courtroom, with the eventual victor illuminating the legal path forward for decades.

When I began wearing an academic hat, I was forced to reexamine my assumptions about the role appellate advocates plays in shaping the law. And that reexamination was sobering. Our judicial system carries a deeply embedded faith in the procedural justice of adversarial litigation—the idea that when parties compete in a fair process for adjudicating disagreements, they will produce the most just results possible. But when I examined both my own experiences as an appellate clerk and the available data on high court adjudication, I was disappointed to realize how often judges themselves, rather than litigants, drive the outcomes in our supposedly adversarial courts.[1] Take the United States Supreme Court, for example. Supreme Court litigants and their attorneys play a diminishing role in actually shaping the direction of the law, while the “umpire” Justices themselves take greater control over the direction of jurisprudence. The Justices have lowered the demands of their discretionary dockets by consistently granting certiorari in fewer than 100 cases per year, while simultaneously increasing the length and originality of their opinions; their written work is both longer and contains less borrowed language from the parties’ briefs than ever before.[2] In those opinions, Justices themselves often participate in a kind of top-down lawmaking. An opinion in a case decided today often ghost-writes the brief the Justice would like to see presented in future appeals, allowing that Justice to shape the law according to their preferences in future case they have transparently invited litigants to file.[3]

Oral arguments are little different. For several decades preceding this term, oral arguments have left less and less space for the advocates themselves to shape opinions. Attorneys in the Supreme Court instead play the role of straight man in conversations dominated by the Justices, who appear disinterested in the responses from the lectern. In a comparison of oral arguments in the 1958–1960 Terms and the 2010–2012 Terms, Barry Sullivan and Megan Canty noted the myriad ways in which Justices have come to dominate the direction of oral argument over the last half-century, including an increase in the ratio of Justice-spoken words to advocate-spoken words, a near doubling of the average number of words spoken by the Justices per oral argument, and far shorter opening monologues by counsel.[4]

It was thus tempting to celebrate the Supreme Court’s recently-announced rule permitting the advocates approximately two minutes of uninterrupted monologue at the start of oral arguments. Perhaps this would mark a sea-change for appellate advocacy, revitalizing the role of advocates in Supreme Court litigation. Yet there is reason for hearty skepticism. Justices have long taken a guiding role in the direction of the law through use of the discretionary docket; invitations for specific arguments in future appeals; and techniques to slowly undermine, or even stealthily overrule, the reasoning in precedent cases.[5] The two-minute rule will not cabin any of those techniques that permit the Justices, rather than the litigants, to drive the appellate litigation bus.

One well-worn trope holds that cases are seldom won at oral argument, but can readily be lost if one is insufficiently prepared to defend their brief’s arguments against a barrage of troubling hypotheticals and slippery slopes. If anything, the new rule only erodes that trope at the very extreme margins. Advocates may have slightly greater opportunity, in increments usually measured by a kitchen timer, to shape the direction of the law in their presentation to high courts. But this offers little salve when the hypotheticals come cascading down, with little interruption for actual answers, during the bulk of the argument. For appellate advocacy to meaningfully change, and for advocates to play a more determinative role in shaping the law, the justices themselves must approach their job with greater humility, aspiring to resolve the controversies actually presented rather than those they have hoped to see and invited to come before them. Without that change in attitude and approach, the two-minute rule may be little more than a procedural fig-leaf from a court that has drifted further and further away from the judicial system’s adversarial ideals.

This is all not to say that appellate advocacy has lost its value in today’s world. Preparing for an appeal remains one of the most demanding, rewarding, and fruitful exercises any attorney or law student can undertake. Nothing helps an attorney refine their legal arguments more than planning for the crucible of hypotheticals they might face from a high court. And the history of our nation’s highest courts still suggests that some advocates, through either sheer intellectual brilliance or perfectly-timed moments of inspiration, play a guiding role in shaping the direction of the law. But a clear-eyed evaluation of the appellate advocacy process suggests that Justices are the real drivers of case outcomes. Of course, appellate attorneys must still ensure that their clients receive vociferous representation and a prepared, skilled advocate at the podium. But that podium’s power is limited, and it is not often the driver’s seat for appellate litigation.

 

[1] Michael Gentithes, Check The Invitation: The Trouble with Appeals Invited by Supreme Court Justices, 82 Mo. L. Rev. 339 (2017).

[2] See, e.g., Ryan C. Black & James F. Spriggs II, An Empirical Analysis of the Length of U.S. Supreme Court Opinions, 45 Hous. L. Rev. 621, 630, 634–35 (2008); Adam Feldman, A Brief Assessment of Supreme Court Opinion Language, 1946–2013, 86 Miss. L.J. 105, 137 (2017).

[3] See Michael Gentithes, Check The Invitation: The Trouble with Appeals Invited by Supreme Court Justices, 82 Mo. L. Rev. 339, 341-43 (2017).

[4] Barry Sullivan & Megan Canty, Interruptions in Search of a Purpose: Oral Argument in the Supreme Court, October Terms 1958–60 and 2010–12, 2015 UTAH L. REV. 1005, 1042.

[5] See Barry Friedman, The Wages of Stealth Overruling (with Particular Attention to Miranda v. Arizona), 99 Geo. L.J. 1 (2010).

Tips for Excellent Appellate Advocacy

Arguing before an appellate court, particularly for recent graduates or those with limited oral argument experience, can be daunting. Below are ten tips that will enhance the persuasive force of your argument, strengthen your oral argument skills, and maximize your chances for success.

    1.     Have an outstanding introduction

When preparing for oral argument, be sure to prepare a concise and persuasive statement (no longer than two minutes in length) in which you set forth the most favorable precedent, facts, and arguments that support the remedy you are seeking. The reason is that the judges will likely begin to ask you questions shortly after you begin your argument. Thus, it is critical to ensure that you begin with a powerful introduction and emphasize the strongest aspects of your argument before the questions begin.

    2.     Anticipate questions that the court will ask – and prepare effective responses

When arguing before an appellate court, the majority of your time will likely be spent responding to the judges’ questions. And you can be sure that the judges will focus on the weakest aspects of your case. Thus, when practicing for oral argument, it is critical for you to identify and address unfavorable facts and precedent. In so doing, your goal should be to convince the judges that the presence of unfavorable law or facts should not affect the remedy you are seeking.

    3.     Prepare, Prepare, Prepare

In the weeks (or months) before an oral argument, you should prepare extensively. Specifically, you should be able to discuss the record below, the relevant facts, and the governing precedent, and address relevant counterarguments without referring to any notes. Indeed, your command of the facts and law will enhance your credibility and enable you to deliver a compelling argument.

    4.    Concede weaknesses in your argument and acknowledge unfavorable facts

In almost any case, there will be weaknesses in your argument. For example, there may be facts or precedents that are not favorable to your position. When arguing before an appellate court, do not be afraid to acknowledge these weaknesses. Doing so will enhance your credibility with the court. For this reason, you should be prepared to explain why unfavorable facts or precedents should not affect the remedy you are seeking. For example, if you are confronted with unfavorable precedent, be prepared to explain why such precedent is distinguishable or would lead to an unjust result.

    5.     Be respectful to the court and your adversary

This should go without saying, but at all times you must be respectful to the appellate court, the lower court, and your adversary. Thus, be sure not to interrupt the judges when you are asked questions. Do not insult or attack the lower court or your adversary. Always speak in a measured and respectful tone, making sure not to use over-the-top language or express unnecessary emotion. Failing to maintain professionalism will detract from your credibility and reduce the likelihood that you will succeed.

    6.    Consider the impact of a ruling in your favor on future cases

Understand that, when an appellate court is deciding your case, the court is also considering how a ruling in your favor will affect future cases. For example, if the court adopts your proposed rule, will it lead to an unjustifiable expansion of the law or have unforeseen consequences that the court would not countenance? Thus, when preparing for oral argument, be sure to consider the policy implications of a ruling in your favor and be prepared to address how such a ruling will impact future cases in different contexts.

    7.     Respond to the judges’ questions directly

Excellent advocates never attempt to evade a judge’s question. If you do so, the court will likely get frustrated and view the strength of your argument less favorably. Accordingly, be sure to answer every question directly by relying on the relevant facts and law. And remember that the judges’ questions are a window into how the judges are considering the merits of your case, and thus an opportunity to convince the judges that their concerns are best addressed by ruling in your favor.

    8.     Speak slowly and be aware of your non-verbal actions

It is natural and entirely normal to experience anxiety before an oral argument. Knowing this, be particularly mindful of the manner in which you deliver your argument. For example, do not speak too quickly. Instead, gather your thoughts and speak in a conversational, respectful tone. And be sure not to fidget or move unnecessarily at the lectern. Keep your composure and your focus on the facts and law. After all, your non-verbal actions can often be as revealing as your verbal communications.

    9.    Be aware of the time – and practice under timed conditions

During most oral arguments, you will have up to thirty minutes (and sometimes less) to present your argument. You should practice under timed conditions to ensure that you can provide the court with the strongest and most relevant points supporting a ruling in your favor. In so doing, you should prepare a concise list of your most important arguments and make sure that, no matter how intense the questioning, you communicate these points either at the beginning or end of oral argument.

    10.   Prepare an excellent closing

Be sure that your closing statement is as powerful as your opening statement. Regardless of the questions that you are asked, make sure that you end your argument by providing the court with the strongest argument(s) that support the remedy you seek. Indeed, just as you want to create an excellent first impression at the beginning of an oral argument, you also want to provide the court with a powerful ending that offers compelling reasons to rule in your favor.

Extra tip: Have fun and do your best. You have a unique opportunity to obtain a favorable ruling on behalf of your client and effectuate a positive change in the law. Don’t put too much pressure on yourself. Do your best and relish the opportunity to make a meaningful difference in law.

The Productive Lawyer Redux

“Life is too complicated not to be orderly.” – Martha Stewart

I've written about productivity a few times, like here. It's an eternal struggle for many of us lawyers (I know it is for me). Perhaps the worst of it is that after you've had a very un-productive day, you blame yourself. You feel like you could have gotten more done if you just powered through those weak moments. Those times you let yourself click on that twitter feed. Or simply gave up after hours in front of a screen. 

The more I've worked on this problem with others--the more I'm convinced that forcing yourself to power through isn't the answer. The whole concept is wrong. All the science agrees that your will power isn't all that, well, powerful. Instead of beating yourself up over small distractions, you're much better off taking the time to work on your overall process for finishing tasks. In other words: work on your system; don't punish yourself for the one-off times you aren't perfect. 

The good news is that the interwebs is full of good advice for honing your work system. And with the growing number of apps and platforms built to help you on this very point, it's even easier.

So I thought I'd share a handful of tools that I've come across recently. But unlike my prior posts, I'm going to share some unusual ones. One of the best things about technology is its ability to help you change perspective or try something new. And I think these are examples of that principle. 

Not only might you try them, but share them with folks who seem to struggle in the productivity department. I use tools like these with my students all the time. 

Focus tools

The first could be the most fun productivity app out there. It's called Forest. It's similar to the Pomodoro Technique, which has you work for short bits of time without distraction, then take a break. What makes Forest amazing is that it creates a beautiful, cooperative game out of it. You start the timer in the app, work for a set period, and when you're done you get rewards--usually in the form of seeds to plant in your virtual garden. As you plant more trees and earn more rewards, you get to watch your garden grow. You unlock new fauna. And perhaps coolest of all: You can create gardens cooperatively. It's a lot of fun and, weirdly enough, works. It takes our human proclivity for distracting ourselves with silly games and turns it into a productivity weapon. 

Another great app in this group is Freedom. It's an oldie but goodie. Freedom will automatically cut off your digital distractions--even your internet altogether--to help you focus more on discrete tasks. 

Habit-building tools 

Habitify is an example of a class of tools that help you build better habits and keep track of them. You can monitor your progress over time and get a big-picture view of the habits you're trying to adopt. 

But if you really want to have fun with habits, try Habitica. Habitica, like Forest, turns habit-building into a game. But Habitica takes it up several notches, creating a deep and interactive experience out of your habits, including the ability to level up characters, purchase game items, and go on quests. And the social accountability works wonders. Pretty darn cool.

Ok, if you are really serious about building better productivity habits, check out Stickk. This app has you wager money on whether you will hit your goals or stick to good habits. If you don't follow through, you can set Stickk to donate your money to a charity--or an anticharity (a charity supporting a cause you disagree with). If money isn't a good motivator, what is? 

Juggling all your tasks in the air 

I love a couple of scheduling apps right now. 

Todoist remains the number one rated task app out there. And for good reason. I use it constantly. It organizes all your tasks, both short term and long term. It's easy to integrate with others in your life, both personal and professional. And it offers tons of tagging and other intuitive management tools to make task management and scheduling a  breeze. 

X.ai is an auto-scheduler that will, literally, give you a robot to handle all your scheduling. The program listens in to your emails and will automatically find the right time for a meeting (including across multiple users) and proceed to schedule it for all involved. Pretty amazing if you ask me. 

Organizing information 

Notion has blown my mind lately. It can do so much to organize, schedule, and simply manage your information--I may be leaving my next-favorite app (Airtable) behind. If you are an Evernote fan, I think Notion leaves it in the dust. There is so much I could cover here. Like how Notion lets you instantly drag and drop tons of pre-made note and organizational templates--from calendars, embedded PDFs, and note boxes to goal charts and interactive trackers. Or like how Notion gives you tagging and cooperative abilities to organize information with others. I think you just have to try it out (or watch this longer video introducing some of the features). 

Some fun bonus tools

To round this list out, a couple of fun but useful apps. 

MyNoise. A free app (also browser-based) that let's you play all sorts of background noise. Not only is the selection of background noise varied and high quality, but you can control the individual tracks. So if you're like me and that seagull annoys you in the ocean track--you can quiet him. 

1Password. In my experience, the best password management app out there. Keeping track of all my passwords is a nightmare. 1Password automatically generates, stores, and plugs in every password in your life. All you have to do is remember a single master key. If you haven't invested in a tool like this yet, it's time. 

Ok, that's probably more than enough apps for one day. But my list of favorites still has a lot left on it (and let's be honest, it grows all the time). So future posts on this topic are coming! 

Joe Regalia is a law professor at the University of Nevada, Las Vegas, William S. Boyd School of Law and regularly leads workshops on 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. 

Appellate Advocacy Blog Weekly Roundup October 25

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:

This week, President Trump nominated his fifth candidate for the federal bench who has been rated as "not qualified" by the American Bar Association. Slate addressed the number of such nominees, the political divide in approving such nominees, and what it all means for the future of the independent judiciary.  Article HERE.

This week, the Supreme Court issued an order allowing government officials to move forward with lawsuits accusing oil and gas companies of climate change.

• • Supreme Court order HERE.
  • New York Times article HERE.
  • Bloomberg article HERE.

Justice Elena Kagan spoke on a variety of topics at Colorado-Boulder law school.  Article about her talk HERE.

Federal Appellate Court Opinions and News:

This week, the 11th Circuit Court of Appeals heard oral arguments in a case in which a historian has attempted to examine records from a grand jury investigation in the 1940's in Georgia concerning the lynching of four African Americans.  The case poses questions of whether federal courts have authority to release grand jury materials.  More HERE.

AppellateTwitter Job Postings:

The Florida First District Court of Appeals is hiring for law clerk positions and a central staff attorney position.  More HERE.

Illinois Supreme Court Justice Garman is hiring for a junior law clerk position.  More HERE.

 

More Two-Minute Thoughts

A couple of weeks ago Kent Streseman posted a blog about the Supreme Court's new "two minute rule," generally allowing the first two minutes of oral argument to proceed without questioning, and how it had been applied in the first couple of oral arguments after its introduction. As he noted, the writers of this blog are watching with interest to see how it is applied and what, if any, difference it makes in oral argument.

Of course, we all have our opinions as to the value of this time and how it should be used. As I ponder the best use, a couple of theories are bouncing around in my head that suggest possible strategies.

First, there is the narrative paradigm. Walter Fisher, a communications theorist, suggested this paradigm in the 70s, and it has continued to have influence since then. Basically, Fisher suggested that the objective notions of rhetoric may be less important than the subjective importance of the story being told to the listener. So long as the story is internally coherent and truthful to the listener's own notions, then the listener will have "good reasons" to believe the story, whether those reasons are objectively true or not. 

As legal practitioners, we tend to shy away from the narrative paradigm. Instead, we tend to couch our "storytelling" in terms of Aristotle's pathos - one of his triad of support for a good argument that involves the appeal to our audience's emotion. But the narrative paradigm goes deeper than this. It suggests that there are "truthy" arguments that appeal to us as storytellers that are more influential than just an appeal to either logic or emotion.

The second theory in some ways justifies Fisher's paradigm with neuroscience. As we have written before on this blog, neuroscience supports the ideal that there is "fast" and "slow" thinking processes at work in all of us. The "fast" processes rely on surface thinking that is informed by often unconscious preconceptions, stereotypes, and biases. It takes little thought to avoid the snarling dog, drive a well-known route, or even read the average blog. Unfortunately, it also takes little thought to dismiss the arguments made by someone against whom the judge has an implicit bias, or rule in a way that is consistent with prior rulings, even though circumstances may have changed. It is important, then, to engage the "slow," deliberate thinking of a panel by exposing implicit bias where necessary.

These two concepts - the importance of storytelling and the dangers of implicit bias - suggest different approaches in different cases. It may be important in your case to unveil potential implicit bias and deal with it explicitly at the start in order to quickly engage deliberative thinking. It may also be important in your case to reframe the story that underlies the facts so that the panel does not lose track of the human story that underlies the legal issue. The two minute rule gives you time to address these issues when they arise.

There are many other strategic uses of the two minute rule. Whatever your thought process, just remember that this time is valuable, and should be used more deliberately than just a time set-aside for a statement of theme and introduction of a roadmap.

(Image credit: Honore Daumier, "He defends the widows and orphans, unless he is attacking widows and orphans," 1846 lithograph from the series "Le Gens de Justice.")

Could a Checklist Improve Your Legal Writing?

This is a guest post by D’Andra Millsap Shu (Adjunct Professor, Thurgood Marshall School of Law at Texas Southern University) and Katherine T. Vukadin (Professor of Law, South Texas College of Law Houston)

What if we never made the same legal writing mistake twice? As legal writing students and even as attorneys, we tend to repeat our writing errors. A personalized legal writing checklist may help stamp out this problem.

Checklists are common in professions that call for mastery of extensive knowledge and exacting detail, such as medicine and aviation.[1] Legal writing, in some ways, is no different. Legal writing values precision, and mistakes can have serious consequences for clients and the writer. A checklist cannot of course compensate for mistakes of ignorance—those coming from a lack of knowledge necessary to carry out a task. But it can help us reduce mistakes of ineptitude, or the simple failure to apply our knowledge.[2]

For law students, the checklist can first come from the legal writing professor’s individualized critique of an assignment. When a legal writing professor closely reviews a student’s work, the student will want to adopt each aspect of the critique so the student’s subsequent work can progress in depth and accuracy. A student who creates a checklist from the professor’s critique will gain both understanding of its lessons as well as a tool for applying the critique to the next assignment. Students thus avoid mechanical completion of the professor’s revisions, and instead interact thoughtfully with each point.

The checklist’s creation can be a separate project, completed alongside the professor’s revisions. By sorting and naming the comments, students can keep their particular issues organized and will start to see the areas in which they most need to work. Once the checklist is created, the student can apply it to the next assignment. This way, mistakes from past assignments remain in the past.

Practicing attorneys and law professors too can benefit from a personalized writing checklist. The checklist’s contents can come from a colleague’s friendly revisions, from a legal writing book, from social media (both #appellatetwitter or #legalwriting on Twitter offer inspiration), or from one’s own list of individual quirks, such as frequently repeated or misspelled words. Even the most informal checklist, consisting perhaps of sticky notes attached to the computer screen, can help legal writers think twice before finishing a project.

A useful checklist is carefully designed and selective. No legal writer will have the time or inclination to wade through a list of obvious matters, such as format guidelines that have not proven problematic.  

Once the list is complete and pared down, consider organizing by the section of a legal writing project, for example, with some entries corresponding to the statement of facts, argument, and so forth. Some errors—use of the possessive, for example—may occur throughout a paper and can be placed first on the checklist, with a reminder to check for that item globally. Consider including checklist items specific to a particular assignment, such as a frequently-misspelled name or the transposition of letters in an abbreviation.

All legal writing mistakes are not equal. A misspelled client’s name, for example, can cast an otherwise impeccable brief in a negative light. A checklist can reflect this hierarchy, with the most crucial items starred, bolded, or written in another color. A legal writer is unlikely to ignore a checklist item with a large red dot next to it.

A checklist does not replace careful writing and proofreading, but it can serve as useful tool to help eliminate common, repetitive mistakes.

 

[1] See Atul Gawande, The Checklist Manifesto 34 (Picador 2010).

[2] See id. at 8-10 (discussing the distinction between mistakes of ignorance and ineptitude).

June Medical Services v. Gee and the Future of Abortion Rights

On October 4, 2019, the United States Supreme Court granted certiorari in June Medical Services v. Gee, where the Court will consider whether a state law requiring that abortion providers obtain hospital admitting privileges constitutes an “undue burden” on a woman’s right to access abortion services.[1] The Court’s decision in June Medical Services will directly impact the extent to which women can obtain abortions and, concomitantly, address the extent to which states may restrict abortion access.

By way of background, in Roe v. Wade, the Court held that the right to privacy under the Fourteenth Amendment includes a woman’s right to obtain an abortion.[2] In so holding, the Court established a trimester framework in which women have a largely unrestricted right to obtain abortions during the first trimester; in the second trimester, the states could only regulate abortions to preserve a woman’s health, and in the third trimester the states could prohibit abortions except where necessary to protect a mother’s health.[3] Nearly twenty years later, in Planned Parenthood v. Casey, the Court upheld Roe, but rejected the trimester approach and held that abortion restrictions would be invalidated if such restrictions constituted an “undue burden” on a woman’s right to obtain an abortion.[4]

In the wake of the Court’s decisions in Roe and Planned Parenthood, some states developed a strategy to eviscerate abortion rights by enacting legislation that, while not directly challenging Roe, placed significant restrictions on women’s access to abortion. Most recently, in Whole Women’s Health v. Hellerstedt, the Court considered whether a Texas law requiring abortion providers to obtain hospital admitting privileges unduly burdened a woman’s right to access abortion services.[5] Supporters of the law argued that the admitting-privileges requirement sought to facilitate access to a hospital in the event that complications arose during or after an abortion.[6] In a 5-4 decision, the Court rejected this argument, holding that abortion procedures in Texas “were extremely safe with particularly low rates of serious complications,” such that women only experienced complications in one-quarter of one percent of cases.[7] And when complications did occur, they rarely required hospital admission.[8] Additionally, the Court held that the law would likely lead to the closure of many abortion clinics in Texas and require thousands of women to travel more than 150 miles to obtain an abortion. Thus, given that the law offered no tangible benefits – yet imposed substantial burdens on many women in Texas – the Court deemed it unconstitutional. The Court’s decision, however, did not resolve this matter.

In June Medical Services, the Court will again decide the constitutionality of a strikingly-similar law in Louisiana that, like the Texas law, requires abortion providers to obtain hospital admitting privileges. The reason for granting certiorari may be due to the Court’s composition, which has changed significantly and now includes Justices Neil Gorsuch and Brett Kavanaugh, or may involve facts specific to Louisiana that render the consequences of its law far less significant. Notwithstanding, the fact that the Louisiana law is, for all practical purposes, identical to the Texas law suggests that the Court will re-examine Whole Women’s Health and adopt one of three approaches. First, the Court may affirm Whole Women’s Health and hold that the law constitutes an undue burden on a woman’s right to obtain an abortion. Second, the Court may distinguish the facts in Whole Women’s Health from June Medical Services and therefore issue a narrow ruling. Third, the Court may overturn Whole Women’s Health and, in so doing, create uncertainty regarding what precisely constitutes an “undue burden” on the right to abortion, and create doubt regarding whether Planned Parenthood and Roe will be overturned in the future.

Regardless of one’s opinion concerning abortion, these cases underscore a larger problem with the Court’s abortion jurisprudence: the failure to adopt a categorical rule that firmly establishes and resolves the contours of abortion rights. Indeed, the Court’s adoption of the “undue burden” standard in Planned Parenthood was so vague and imprecise that it empowered states to enact statutes that arguably sought, under the guise of protecting women’s health, to do indirectly what they could not do directly: overturn Roe. The recent passage of “heartbeat” laws that prohibit abortions at any point after a fetal heartbeat is detected, which occurs at approximately six weeks into a pregnancy, is another example of the states’ efforts to weaken Roe and its progeny.[9]

This is not to say, of course, that those who support such laws and oppose abortion are unprincipled in their convictions or misguided in their beliefs. Certainly, reasonable people can disagree concerning whether abortion should be legally and morally acceptable. It is to say, however, that the Court would better serve legislators, lower courts, litigators, and the public by adopting a categorical rule regarding the right to abortion rather than a vague, overly general, or unworkable standard. In so doing, the Court can prevent uncertainty in the law and provide a firm – and lasting – resolution. Put simply, regardless of how the Court rules in June Medical Services, it should do so in a manner that finally lays to rest any questions regarding the constitutional right to abortion.

[1] No. 18-1323 (2019).

[2] 410 U.S. 113 (1973).

[3] Id.

[4] 505 U.S. 833 (1993).

[5] 579 U.S              , 136 S. Ct, 2292 (2016). The law stated that a “physician performing or inducing an abortion . . . must, on the date the abortion is performed or induced, have active admitting privileges at a hospital that . . . is located not further than 30 miles from the location at which the abortion is performed or induced.” (quoting Tex. Health & Safety Code Ann. §171.0031(a)).

[6] Id. at 2311.

[7] Id. (internal citation omitted).

[8] Id.

[9] See, e.g., Renae Reints, The Are The States That Passed ‘Heartbeat Bills,’” (May 31, 2019), available at: https://fortune.com/2019/05/31/states-that-passed-heartbeat-bill/.

Blackbeard, Allen v. Cooper, and Research via Public Depositories

    This term, SCOTUS will hear a sovereign immunity case involving Blackbeard’s sunken pirate ship.  In Allen v. Cooper, 18-877, the Court will address whether Congress validly abrogated state sovereign immunity in the 1990 Copyright Remedy Clarification Act (CRCA) by providing remedies for copyright holders when states infringe their federal copyrights. 

    Why does this matter to appellate advocacy, aside from the obvious fun of saying “Aaarrr!” when discussing an Eleventh Amendment case?  The case could impact the scope of free access researchers and appellate practitioners have to online materials.  In fact, while the case raises deep concerns for intellectual property creators, it also shows the increasing push by States to make images and documents available to the public at libraries and universities, and to preserve historic materials digitally.

    In 1718, Blackbeard’s Queen Anne’s Revenge ran aground a mile off the coast of what is now called Beaufort, North Carolina.  Legend says her captain and crew immediately transferred all treasure to smaller ships, and the Revenge remained underwater for over 200 years.  According to the Fourth Circuit’s opinion in Allen v. Cooper, 895 F.3d 337, 343 (4th Cir. 2018), in 1996, a private research and salvage firm operating under a permit issued by North Carolina discovered the wreck of the Revenge.  The researcher hired Petitioner, Frederick Allen, to document the shipwreck.  Id.  Allen obtained the rights to create video footage and photographs of the Revenge with another permit issued by North Carolina, and Allen registered his work over the next 13 years with the U.S. Copyright Office.  Id. at 342, 344.

    At some point, North Carolina posted pieces of Allen’s copyrighted works on State websites and in a State publication.  The State and Allen settled copyright claims from these postings, and the State agreed not to use Allen’s commercial copyrighted material in the future.  Id. at 344-45.  Nonetheless, the State soon published more of Allen’s Revenge video and images online, and then the North Carolina Legislature passed “Blackbeard’s Law,” which converts many of Allen’s images to the public record.  See id. at 342; N.C. Gen. Stat. § 121–25(b) (2015) (providing that photographs and video recordings of shipwrecks in the custody of North Carolina are public records); Amy Howe, Justices grant three new cases, SCOTUSblog (Jun. 3, 2019, 12:16 PM), https://www.scotusblog.com/2019/06/justices-grant-three-new-cases/.

    Allen sued North Carolina for copyright infringement and for a declaration that Blackbeard’s Law is unconstitutional.  The state moved to dismiss on the grounds of sovereign immunity, and Allen argued the CRCA abrogated North Carolina’s immunity.  The district court ruled for Allen, but the Fourth Circuit reversed, holding Congress acted improperly in enacting the CRCA.  Allen, 895 F.3d at 342-43, 350-53.  The Supreme Court granted cert, and will hear the case on November 5.  https://www.scotusblog.com/case-files/cases/allen-v-cooper/.

    Over twenty amici have filed briefs.  Amici in support of Allen make excellent arguments in favor of strengthening IP protection and maintaining the remedies provided in the CRCA.  For example, Oracle, the Software & Information Industry Association, and a group of prominent law scholars have each filed briefs contending Congress properly protected IP rights and innovation in the CRCA.  Oracle ACB, 2019 WL 3828598; SIIA ACB, 2019 WL 3814393, and Scholars ACB, 2019 WL 3828597.  These briefs stress the need to protect inventors and innovators from state action and potential wholesale public adoption of their copyrighted property.

    On the other hand, amici in favor of North Carolina argue copyright holders have remedies aside from the CRCA.  The also claim abrogating immunity will limit the public’s access to documents at public university and government research libraries.  The American Library Association and others stress that public archivists need protection for their large-scale, costly digitization projects to create open access and to save documents of historical significance.  ALA ACB, 2019 WL 4858292.  Similarly, a group of public universities note they are acting in the public interest to promote “education, research and community engagement” when digitizing documents and already carefully respect copyrights.  Public Universities ACB, 2019 WL 4748384.

    Whatever the outcome of these arguments, our appellate community should keep an eye on this case.  Not only does it offer pirate fun, but it presents serious issues of property rights and public access to research materials.

The Kind of Anxiety Every Client’s Lawyer Should Experience

Advice about appellate advocacy is abundant. How to begin; how to structure an argument; how to respond to questions; how much deference to show to the judge(s); whether to reserve time for rebuttal—these are all things the advocate should consider when preparing for oral argument. The best advocate should also experience a bit of anxiety. Not crippling anxiety; just enough anxiety to get adrenaline flowing; just enough anxiety to evidence that the advocate appreciates the gravity of the task and the client’s cause. “Situational anxiety, if it’s proportionate to the circumstances in which it arises, can have quite a positive impact.”¹ 

Situational anxiety associated with public speaking is common. In fact, public speaking is ranked highly among things and situations people fear the most, along with snakes and spiders.² Most law schools require law students to perform some public speaking, from responding in class as part of a Socratic dialogue to delivering a trial level or an appellate level oral argument as part of a moot court exercise. Some law students walk away from these experiences believing that public speaking is not for them because they are anxious about making oral presentations. Others learn to thrive from the rush they feel when under the pressure of public speaking. Law professors and lawyers who mentor students and new lawyers should help students and new lawyers recognize that not only is this situational anxiety good for them, it is also good for their clients. And, it is not unusual. If law students and lawyers could recognize that some level of anxiety is healthy because it shows that the speaker cares about and recognizes the gravity of the task, perhaps some of these students and lawyers would reconsider their perceived aversion to public speaking.

As I prepared for one of my first oral arguments, a mentor advised me that some level of anxiety before an oral argument is healthy. Anxiety borne from a desire to represent your client and your client’s position to the best of your ability, combined with preparation, is good. I would even argue that it is necessary. I have told students that the client who has a lawyer who is not nervous about delivering an argument needs a new lawyer. I think I may have read that somewhere many years ago. Arguably, if the lawyer has no anxiety about delivering the oral argument, then perhaps the lawyer does not care enough and will not be energized enough to deliver a passionate argument. People do not get nervous or worry much about things for which they do not care.

Science supports this theory. Dr. Loren Soeiro explains:  “Anxiety helps us detect and attend to potential threats so that we can avoid danger. In the short term, anxiety can keep you at a heightened state of alert, allowing you to react more quickly when urgent dangers arise—like when you’re driving anxiously in the rain, and you find yourself responding immediately to erratic changes in traffic patterns.”³ He explains that if you face no anxiety when facing life-changing events and choices, you may end up missing something important because you will not fully think through what is going on.⁴ Situational anxiety serves to enhance your motivation to work hard and perform well, and it boosts your performance levels.⁵ It can also improve memory and lead to “responsible leadership.”⁶ “At significant moments when performance becomes an issue, the right amount of anxiety will help us do that much better.”⁷ 

Thus, for the law student or lawyer called upon to represent a moot or a real client, situational anxiety can provide just what is needed to ensure that the advocate is giving the task and the client his or her all, both in preparation and in execution.

Educators and mentors of law students and lawyers should be sure to share this message. Doing so will help to normalize what these students and lawyers may be feeling and allow them to recognize and accept the positive aspects of what is ordinarily considered negative. Moreover, as first generation law students and lawyers enter law schools and the profession, it is especially important to educate these newcomers on the value and, indeed, the routine occurrence of the situational anxiety lawyers experience. These newcomers to the field may lack the opportunities to hear from seasoned lawyers about the anxiety that is common and can be helpful. Recognizing and embracing the kind of anxiety every client’s lawyer should experience before and during an oral argument or presentation should lead to better lawyering and perhaps more well-adjusted lawyers.

 

¹Loren Soeiro, 3 Reasons Why Anxiety is Good for You, Psychology Today, May 20, 2019, https://www.psychologytoday.com/us/blog/i-hear-you/201905/3-reasons-why-anxiety-is-good-you.

²Kendra Cherry, 10 of the Most Common Phobias, Verywell Mind Blog, https://www.verywellmind.com/most-common-phobias-4136563 (last updated October 3, 2019) (explaining that fear of public speaking is the most common form of social phobia).

³Soeiro, supra note 1.

⁴Id.

⁵Id. (noting that “[r]esearch indicates that student-athletes who feel anxiety are able to perform better in their events — and on college exams! — than those who denied feeling worried.”).

⁶Id.

⁷Id.

 

Ethical Issues on Appeal

Have you thought about the ethical rules that apply to your role as appellate counsel? Ethical rules are probably not at the forefront of your mind when you handle an appeal, but the failure to consider and follow the ethical rules can have serious consequences for appellate clients and counsel. Here we’ll focus on three Model Rules of Professional Conduct that relate to one’s role as appellate counsel and survey instances when appellate counsel might have given more thought to these rules.

Model Rule 1.1: Competence:

A lawyer shall provide competent representation to a client. Competent representation requires the knowledge, skill, thoroughness[,] and preparation reasonably necessary for the representation.

Carlyle Shepperson was a Vermont attorney who was charged with violating DR 6-101(A)(1) and 6-101(A)(2), which were forerunners to Rule 1.1. In re Shepperson, 674 A.2d 1273, 1273 (Vt. 1996). A justice of the Vermont Supreme Court had referred Shepperson to the state disciplinary board over the quality of his work product. Id. Shepperson entered into a remedial stipulation and agreed that he would not practice law until he completed a legal writing tutorial to “develop skills in legal analysis, persuasive writing techniques, writing organization, [ ] use of legal authority, proper citation form, and proper formatting for memoranda and briefs.” Id. at 1273-74. Shepperson later told bar counsel that he would not complete the tutorial and that he had left the United States for an indefinite time. Id.

Bar counsel filed a petition of misconduct and Shepperson filed a response but didn’t appear at the disciplinary hearing. Id. The Board of Professional Conduct recommended that Shepperson be disbarred. Id. The board found that Shepperson’s briefs:

were generally incomprehensible, made arguments without explaining the claimed legal errors, presented no substantiated legal structure to the arguments, and devoted large portions of the narrative to irrelevant philosophical rhetoric. The briefs contained numerous citation errors that made identification of the cases difficult, cited cases for irrelevant or incomprehensible reasons, made legal arguments without citation to authority, and inaccurately represented the law contained in the cited cases.

Id.

The board found Shepperson’s briefs were not competently prepared and didn’t meet minimal standards of competence; that Shepperson didn’t adequately prepare his work or give his work appropriate attention; and that he didn’t properly protect his clients’ interests. Id.

The Supreme Court of Vermont agreed with the board’s findings but issued an indefinite suspension. Id. In doing so, the court noted that Shepperson’s brief in the disciplinary matter showed his deficiencies. Shepperson failed to raise a legitimate legal issue and he didn’t cite a single authority to support his arguments. Id. at 636. Instead, his brief was a “harangue against the legal system” claiming “that the Board and this Court have violated his freedoms of speech and religion and limited his ability to think in diverse ways by dictating what is and what is not a proper legal argument.” Id. The court found that while Shepperson was free to represent himself as he pleased, he could not be allowed to continue to represent clients in a way that failed to safeguard the clients’ interests. The court declined to disbar Shepperson but did suspend him indefinitely.

Appellate counsel also has a duty of candor toward the tribunal. Model Rule 3.3 says:

(a)     A lawyer shall not knowingly:

          ***

          (2) fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel[.]

Gonzalez-Servin v. Ford Motor Co., 662 F.3d 931 (7th Cir. 2011) shows the importance of compliance with this rule.

Gonzalez-Servin involved consolidated appeals from orders transferring cases to courts in Mexico and Israel under the doctrine of forum non conveniens. One case arose from accidents allegedly caused by defects in Bridgestone/Firestone tires installed on Ford vehicles in Latin America. Id. at 933. The other claims concerned contaminated blood products. Id. The Seventh Circuit began its opinion by noting that it had consolidated the cases because each raised “concerns about appellate advocacy.” Id.

In the tire-defect case, the Seventh Circuit found that appellants’ counsel failed to cite adverse Seventh Circuit precedent in either their opening brief or their reply brief, even though the appellees cited the controlling decision in their response brief. Id. The court took the appellants’ failure to cite, “let alone try to distinguish” the adverse case as “an implicit concession that the circumstances of that case [were] ‘nearly identical’ to those of the [tire-defect] case.” Id.

In the blood-products case, the appellants filed their opening brief and then the Seventh Circuit issued two decisions that were adverse to the appellants’ position. Id. at 934. Although the appellees’ brief relied heavily on the newly issued adverse authorities, the appellants’ reply brief discussed one of the adverse cases “a little” and the other “not at all.” Id.

The court admonished:

When there is apparently dispositive precedent, an appellant may urge its overruling or distinguishing or reserve a challenge to it for a petition for certiorari but may not simply ignore it. We don't know the thinking that led the appellants' counsel in these two cases to do that. But we do know that the two sets of cases out of which the appeals arise, involving the blood-products and Bridgestone/Firestone tire litigations, generated many transfers under the doctrine of forum non conveniens, three of which we affirmed in the two ignored precedents. There are likely to be additional such appeals; maybe appellants think that if they ignore our precedents their appeals will not be assigned to the same panel as decided the cases that established the precedents. Whatever the reason, such advocacy is unacceptable.

Id. The court then said that “the ‘ostrich-like tactic of pretending that potentially dispositive adverse authority against a litigant does not exist is as unprofessional as it is pointless’” id. (quoting Mannheim Video, Inc. v. County of Cook, 884 F.2d 1043, 1047 (7th Cir.1989)) and illustrated its point by including these photos in its opinion:

 

Id.

While appellants in those cases didn’t violate Model Rule 3.3(a)(2) (because opposing counsel had disclosed the adverse authority), the court’s opinion makes clear that the better approach is to cite the adverse authority and try to distinguish it.

Finally, appellate counsel must be mindful of Model Rule 8.2(a):

A lawyer shall not make a statement that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge, adjudicatory officer or public legal officer . . . .

Swinka Realty Investments LLC v. Lackawanna County Tax Claim Bureau, 688 Fed. Appx. 146 (3d Cir. 2017) (unpublished) and its aftermath show the importance of following Model Rule 8.2(a).

Swinka arose out of a claim that state officials had violated the Fifth and Fourteenth Amendments in a tax sale. Id. at 147. On appeal, Swinka’s brief included statements accusing the trial court of contradicting itself; intentionally overlooking genuine issues of fact; creating false analysis; lacking understanding of Pennsylvania tax law; misstating the status of the law; padding its opinion with citations to irrelevant cases; trying to deprive the appellant of its rights; and other types of inappropriate conduct. Id. at fn.2.

The Third Circuit emphasized that appellants’ counsel had an ethical duty to avoid making false or reckless statements about the qualifications or integrity of a judge. Id. at fn.3. The court affirmed the trial court’s decision and said:

Swinka’s brief repeatedly casts aspersions on the District Court’s analytical ability. The aspersions lack substance and utterly fail to advance Swinka’s legal arguments. As such, these unprofessional comments reflect poorly on Swinka’s counsel. When counsel wastes ink attacking the ability of able District Courts instead of advancing his or her client’s legal arguments, we smell more than a hint of desperation and confusion about how an appeal works. It is an unbecoming way to brief an appeal.

Id. at 148-49.

Swinka’s counsel was referred to his state’s disciplinary board and he received a public reprimand for violating Rule 8.2(a). http://www.pacourts.us/assets/opinions/DisciplinaryBoard/out/186DB2018-Vinsko.pdf?cb=1.

We must be aware of the Rules of Professional Conduct when we represent clients on appeal. We must be sure that we provide competent, zealous, representation in a way that respects the integrity of the courts and our profession.

The Office of the Solicitor General is Hiring!

If you’ve dreamed of arguing in the Supreme Court, are willing to wear a morning coat, and have the right credentials, there’s a job opening for an Assistant to the Solicitor General of the United States. The posting closes on November 1, so there are still two weeks to apply.

The Solicitor General, currently Neal Francisco, represents the United States before the Supreme Court. The United States is involved in approximately two-thirds of all the cases the U.S. Supreme Court decides on the merits each year. According to the job posting, Assistants to the Solicitor General:

work on briefs on the merits, petitions for writs of certiorari, jurisdictional statements, briefs in opposition, motions to affirm, papers relating to stays, and other forms of motion practice before the U.S. Supreme Court. They also review recommendations as to whether the government should seek U.S. Supreme Court review in cases it has lost, whether the United States should appeal to intermediate appellate courts cases it has lost in the trial courts, whether the United States should pursue rehearing en banc when cases are lost at the appellate level. They prepare memoranda to the Solicitor General containing such recommendations and also memoranda discussing other legal problems as assigned; draft correspondence; and advise the Solicitor General on different aspects of the work of the Office. The incumbent argues cases before the U.S. Supreme Court–ordinarily two to three times each Supreme Court term.

Of course, it is a prestigious position, and the qualifications reflect that.

Qualifications:
1. J.D. degree, active bar membership;
2. Exceptional and strong academic background;
3. Federal appellate clerkship or Supreme Court clerkship strongly encouraged;
4. Significant federal appellate litigation experience;
5. Broad experience in areas of law germane to federal governmental practice;
6. Exceptional writing skills;
7. Strong oral advocacy skills; and
8. Demonstrated ability to work cooperatively with less experienced attorneys, providing guidance and assistance.

Historically, many who served in the SG office have gone on to the bench or to serve in other government office. Good luck to all of the applicants!

United States Supreme Court Considers Whether Title VII of the Civil Rights Act of 1964 Prohibits Discrimination Against Gay and Transgender Persons

I.    Introduction

On October 8, 2019, the United States Supreme Court heard oral argument in three cases that will decide whether Title VII of the Civil Rights Act of 1964 prohibits discrimination against gay and transgender persons.

Specifically, in Altitude Express v. Zarda (No. 17-1623) and Bostock v. Clayton County, Georgia (No. 17-1618), the question presented is whether discrimination against an employee on the basis of sexual orientation constitutes employment discrimination “because of . . . sex” within the meaning of Title VII. In R.G. & G.R. Harris Funeral Homes Inc. v. Equal Employment Opportunity Commission (No. 18-107), the question presented is whether Title VII prohibits discrimination against transgender people based on: (1) their status as transgender; or (2) impermissible sex stereotyping under Price Waterhouse v. Hopkins, 490 U.S. 228 (1989).

By way of background, Title VII provides in relevant part as follows:

It shall be an unlawful employment practice for an employer:

(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.[1]

The text of Title VII unquestionably prohibits discrimination against individuals based on their biological sex. What remains unresolved, however, is whether “discrimination against any individual … because of such individual’s … sex” includes a prohibition against discrimination on the basis of sexual orientation and transgender status.

II.    Discrimination on the Basis of Sexual Orientation

On one hand, it can be argued that, if Congress had intended to prohibit discrimination on the basis of sexual orientation, it would have included language to this effect in Title VII. Thus, it is Congress’s, not the Court’s, responsibility to amend the statute to include sexual orientation within Title VII’s protections.

On the other hand, discriminating against individuals on the basis of sexual orientation is arguably predicated on impermissible gender stereotyping and, as such, constitutes discrimination on the basis of sex. Indeed, in Price Waterhouse v. Hopkins, the Court held that “we are beyond the day when an employer could evaluate employees by assuming or insisting that they matched the stereotype associated with their group.”[2] Accordingly, discriminating against gay persons constitutes discrimination “because of [an] individual’s … sex” because it is based on an impermissible stereotype regarding how males and females should behave (i.e., they should be heterosexual).

 III.      Discrimination Against Transgendered Persons

In R.G. & G.R. Harris Funeral Homes Inc. v. Equal Employment Opportunity Commission, counsel representing the transgender individual argued that a reasonable interpretation of Title VII supports prohibiting discrimination against transgendered persons:

Harris Homes fired her [the transgender individual] for identifying as a woman only because she was assigned a male sex at birth. In doing so, it fired her for contravening a sex-specific expectation that applies only to people assigned male sex at birth; namely, that they live and identify as a man for their entire lives. That is disparate treatment on the basis of sex.[3]

Counsel for the funeral home disagreed, arguing that “[t]reating women and men equally does not mean employers have to treat men as women. That is because sex and transgender status are independent concepts.”[4]

This case certainly presents the Court with difficult questions, including how, for purposes of Title VII protections, to address the concept of gender identity, and if gender non-conforming individuals, namely, those who believe that their gender does not reflect their assigned sex, should be distinguished from those who have permanently transitioned to another sex (i.e., transsexuals). Indeed, as many feminist scholars posit, gender is arguably a social construct, in which society defines the roles that are deemed appropriate for individuals of a particular biological sex (e.g., male or female). As such, some might argue that one’s gender identity reflects a subjective belief that they do not comport with the gender construct associated with their assigned biological sex. For this reason, advocates of this position would likely argue that gender identity is distinguishable from sex (and possibly sexual orientation) and that it would be difficult, if not impossible, for employers to identify gender non-conforming individuals. As such, creating a remedy for discrimination on this basis would be entirely unworkable and, as Justice Neil Gorsuch stated, cause “massive social upheaval.”[5]

Conversely, a strong argument can be made that if an employer knowingly discriminates against a gender non-conforming individual, such discrimination would reflect discrimination on the basis of gender stereotyping, which the Court in Price Waterhouse deemed impermissible. Supporters of this position would likely argue that discrimination against gender non-conforming individuals is indistinguishable from discrimination against gay persons because both are predicated upon gender stereotyping. As Justice Ruth Bader Ginsburg noted during oral argument, “the cases have said that the object of Title was to get at the entire spectrum of sex stereotypes.”[6]

The Justices appeared to struggle with these issues, particularly regarding whether the legislature, not the judiciary, should amend the law to include protections for transgendered persons, whether the definition of sex should include gender identity, and whether a ruling for transgendered persons would negatively impact individuals who, based on religious beliefs, would choose not to hire transgendered persons.[7]

The Court will likely issue a decision in June 2020.

 [1] 42 U.S.C § 2000e-2.

[2] 490 U.S. at 251 (emphasis added); see also Oncole v. Sundowner Offshore Services, 523 U.S. 75 (1998).

[3] See Transcript of Oral Argument, R.G. & G.R. Harris Funeral Homes Inc. v. Equal Employment Opportunity Commission (No. 18-107), p. 4:3-10, available at: https://www.supremecourt.gov/oral_arguments/argument_transcripts/2019/18-107_c18e.pdf.

[4] Id. at p. 27:22-25.

[5] Id. at p. 25:17-18.

[6] Id. at p. 50:24-51:1 (emphasis added).

[7] Mark Sherman and Matthew Barakat, Divided Supreme Court Weighs LGBT People’s Rights, (Oct. 8, 2019), available at: https://www.apnews.com/b67d54e0812e43db832e086806a3a2fd.

Is the Judge in the Botham Jean Case Out of Line?

Last week the public witnessed a remarkable scene when the 18 year old brother of murder victim, Botham Jean, forgave his killer from the stand and asked to give her, Amber Guyger, a hug. Even more remarkable was the interaction of the defendant and the judge in the case, Tammy Kemp, when she gave Guyger a bible and also a hug.

Now, the judge is the subject of an ethics complaint, but the reason may not be what most people would think of first. The complaint was filed by the Freedom from Religion Foundation and argues that the judge was proselytizing in violation of the First Amendment. Was that your first thought when you saw the scene?

The initial concern, it seemed to me, was the intimate action of the judge and the defendant. The judge did not maintain a physical distance or a seemingly emotional distance from Guyger, which will inevitably lead to conflict of interest claims if Guyger will appear before the judge in the future. The judge defended her actions:

“If she wanted to start with the Bible, I didn’t want her to go back to the jail and to sink into doubt and self-pity and become bitter,” she said. “Because she still has a lot of life ahead of her following her sentence and I would hope that she could live it purposefully.”

Over the last several years we have heard judges making various statements from the bench indicating certain political or ideological positions. I maintain those types of proclamations are best kept to themselves, in the interest of presenting the perception of an impartial judiciary. The judge's sentiment is laudatory, but this seems quite egregious.

The complaint regarding a violation of religious freedom seems creative, but is it the strongest point of error? Physically, the judge was not on the bench, and the proceedings seemed to be concluded, or at least there was no more business to attend to. It doesn't appear that the judge was acting in an official capacity at that exact moment (though I've done no targeted research to support this impression). Perhaps our readers know of similar situations where incidences like these have not been viewed as ethics violations?

(*image credits: Tom Fox, Dallas Morning News via AP, Pool)

Tales Told in Two

It has been a week since Supreme Court of the United States rocked the always-ready-to-rock appellate-advocacy world by rolling out the Two Minute Rule: lead counsel for parties generally will have two minutes to argue uninterrupted before a white light shines and the questioning begins. We at the Appellate Advocacy Blog have feelings—many feelings, complicated feelings, nascent feelings—about this rule. But mostly we’re curious to see how it plays out.

If the justices mostly adhere to the rule—and, as the term began this week, early reviews indicate that they mostly did—composing a set piece for that two-minute window likely will become part of the advocate’s craft. For now, though, in the early days of this new world, I’m just curious: what does an uninterrupted two-minute opening look like on the page, seeing as we’re used to seeing JUSTICE HOTMCBENCHFACE appear on the transcript a few syllables after “May it please the Court...”?

Here’s the answer, from a pair of First Monday/First Tuesday arguments by particularly outstanding advocates.

Sarah Schrup of Northwestern Law School, counsel for Petitioner in Kahler v. Kansas, whose first question from Justice Ginsburg came right after the dying of the white light:

Pamela Karlan of Stanford Law School for Petitioner in Bostock v. Clayton County:

That is the canvas.

Ethical Rules for the Supreme Court

The United States Supreme Court is under attack on a variety of fronts. Public confidence is declining and coverage in the press is largely negative. Information regarding deliberations, once considered confidential, is freely leaked. And senators write amicus briefs openly threatening court packing legislation if the Court does not rule a certain way.

One of the critiques concerning the Court is that the justices seem to be above the same rules that guide other judges. This is, in fact, true. There is no code of ethics for the United States Supreme Court. And for good reasons.

Chief Justice Roberts presides over an office known as the Judicial Conference of the United States, which worked with the ABA to create and promulgate the Code of Conduct for Federal Judges in 1973 and continues to revise and update those rules. The code applies to all U.S. circuit judges, district judges, Court of International Trade judges, Court of Federal Claims judges, and magistrate judges. Conspicuously missing from that list are "United States Supreme Court Justices."

This lack of an ethical code means that some of the conduct recently criticized - leaks concerning confidential deliberations, criticism of political candidates, speeches at partisan legal organizations, and charitable fundraising efforts, to name a few - is not governed by the same rules that would apply to other federal judges. As a result, there have been several legislative efforts to impose a code of ethics on the Court.

Justice Roberts addressed this issue in his 2011 Year-End Report on the Federal Judiciary. Justice Reports revealed that the members of the Court do, in fact, consult the Code in assessing their ethical obligations. Just as the Code "provides guidance" to lower judges, it informs their actions. And, while there are separation of power issues that might be raised in objection, the Court also voluntarily complies with other legislative enactments, such as financial reporting requirements and limitations on gifting and outside income.

This reference to separation of powers is an important one. According to Article 3, Section 1 of the Constitution, Supreme Court Justices serve as long as they exhibit "good behavior," and under Article 2, Section 4, they face impeachment and removal only for "treason, bribery, or other high crimes and misdemeanors."

This separation from political control creates a problem with binding ethical rules for the Justices. Would legislation imposing such rules violate the separation of power doctrine? Who would determine the constitutionality of such an imposition if not the Supreme Court itself? Would authorizing the Judicial Conference, instead, to make ethical rules that are binding on the Supreme Court violate the Constitutional provision mandating that the Supreme Court is to remain "supreme" over all other courts, since the Conference is primarily composed of judges from lower federal courts? And what power would Congress have to enforce any legislation it tried to pass if the Supreme Court did not comply?

These are all extremely difficult questions that, so far, have been dodged by voluntary compliance with the legislation that has been passed. It seems unlikely that any legislation imposing a set of ethical rules on the Court (and there have been bills introduced since the 1970s to do so) will pass, given these obstacles.

That does not mean that the Supreme Court operates above the law. It just means that the justices operate under their oaths of office to fairly and impartially administer the law as the supreme and final arbiter of that law. As Justice Roberts noted in his year-end report, "at the end of the day, no compilation of ethical rules can guarantee integrity. Judges must exercise both constant vigilance and good judgment to fulfill the obligations they have all taken since the beginning of the Republic."

Without venturing too deeply into legal history*, this usage of the Code as a form of moral guidance is not new. The original canons were promulgated in 1908 by the ABA in reaction to the charge by President Roosevelt in a 1905 Harvard commencement speech that there be a public requirement that "all men of means, and especially the men of vast fortunes, ... set up an example to their less fortunate brethren, by paying scrupulous heed not only to the letter but to the spirit of the laws, and by acknowledging in their heartiest fashion the moral obligations which cannot be expressed in law, but which stand back of and above all laws." Specifically, Roosevelt's critique of lawyers as "hired cunning" more interested in commercialism than justice struck a strong progressive chord a the time, and resulted in the eventual adoption of the broader canons that governed the profession for so many years in much broader moral strokes than the Code that eventually replaced them.

The Court's usage of the Code, then, as a starting moral guidepost is in keeping with history. The Court has also indicated that it may be considering adopting its own Code in response to recent criticism. This, too, would be in keeping in history and our new populism. But if there is to be some more binding form of ethical guidance, it likely will have to come from the Court itself.

* For more reading on the history of the 1908 Canons see James M. Altman, Considering the A.B.A.'s 1908 Canons of Ethics, 71 Fordham L. Rev. 2395 (2003).

(Image Credit: Andreas Praefcke, Wikipedia U. "Diogenes in Search of an Honest Man." Ancient History Encyclopedia. Last modified August 06, 2014. https://www.ancient.eu/image/2908/.)

Grammar, Memes, and the Law

I love a good meme.  Make it a good grammar, writing, or editing meme and I am in law professor meme heaven.

Not long ago one of my Facebook friends started sharing the funniest grammar memes (or maybe she had been sharing them all along, but Mark Zuckerberg finally thought I should start seeing them).  Regardless, I was hooked and followed the clicks through to the main Facebook page of Analytical Grammar.  The company also has a website.

What I have loved about the Analytical Grammar memes is that they explain often misused words.  For example, check out this meme (which I share with permission!):

I shared this meme on my Facebook page and several of my friends found in informative.  I also like that if you click to Analytical Grammar's Facebook page, there is a short text description of the meme and the proper word usage.  

I could share a lot more of the Analytical Grammar memes--they are delightful--but I want to get to the rest of the story.  When I clicked over to the Analytical Grammar Facebook page, I was struck by the cover photo.  It contains a few images and the following text: "This page is run by an Air Force reservist and small business owner, and the business is being SUED for sharing a viral meme. For the full story, documentation, and other info, go to this link: www.gofundme.com/analyticalgrammar." Naturally, I went to the GoFundMe page for more information.

Apparently, Analytical Grammar shared a viral picture of a visual pun. The pun went viral from its site too.  That was in December 2017.  Almost two full years later Analytical Grammar was sued in federal court by the man who said he created the meme.

According to the complaint (in a nutshell), the plaintiff took the photograph and copyrighted it.  He claims that Analytical Grammar ran the photo without permission or a license.  He also seems to claim that Analytical Grammar removed "copyright management information."  He asks the court for actual damages, profits Analytical Grammar received from the infringement, attorneys fees, and punitive damages.  Wow!

Analytical Grammar's answer and counterclaims is pretty awesome.  In a delightful play on words (since the original photo was of several levels), it states;

Bradley’s lawsuit is wrong on so many levels. He levels claims against Analytical for sharing his joke. He does his level best to take Analytical down a level. But his claims are not on the level. Analytical raises these counterclaims to level the field.

It recounts the history of the photo, which wasn't even copyrighted until 2018, (even I was able to look that up on Copyright.gov) after the photo had risen to Internet fame, much to the plaintiff's delight.

Analytical Grammar raises several counterclaims too: (1) invalidity of copyright, (2) declaratory judgment of non-infringement of copyright, and (3) declaratory judgment of non-removal of copyright management information.

I was struck by this case. I often share memes on Facebook.  I see others share memes on Facebook.  I "like" shared memes on Facebook.  Not once did I ever think about copyright when doing any of those things.  I imagine that I am not alone in that regard.  I will certainly be watching this case as it moves through the federal district court in North Carolina.  Good luck Analytical Grammar!

Antonin Scalia – One of the Greatest Writers in the Supreme Court’s History

Regardless of one’s opinion of former Supreme Court Justice Antonin Scalia’s jurisprudence, few would dispute that Justice Scalia was an extraordinarily talented – and persuasive – writer. Indeed, Charles Fried, a professor at Harvard Law School, lauded Justice Scalia as possessing “a natural talent” of “the kind which distinguishes a Mozart from a Salieri.”[1] Additionally, in an article published by the Journal of the Legal Writing Institute, attorney Yury Kapgan stated that Justice Scalia’s opinions are “as close to literature as court opinions come.”[2] In fact, Justice Elena Kagan stated that, when writing her opinions, she imagined “Justice Scalia on her shoulder.”[3]

What made Justice Scalia such an outstanding writer, and how can Justice Scalia’s writing style help law students and lawyers improve their writing skills?

1.    Justice Scalia Wrote Clearly and Concisely

Even a cursory review of Justice Scalia’s opinions reveals that Scalia wrote in a clear, concise, and compelling manner. As such, Justice Scalia eschewed language that was esoteric or convoluted, avoided including extraneous or unnecessary facts, and asserted legal arguments with clarity and precision. In so doing, Justice Scalia’s opinions were easy – and often entertaining – to read, and written with a persuasive force that was difficult to dismiss. Most importantly, Justice Scalia’s writing underscores the importance of using straightforward, accessible language, making clear and direct arguments, and including only facts and law that are necessary to support such arguments.

2.    Justice Scalia Wrote for the Audience

Justice Scalia understood that to maximize the persuasive value of a judicial opinion or legal brief, a writer must understand and accommodate the audience to which such opinion or brief is directed. As Justice Scalia stated:

            I think there is writing genius as well--which consists primarily, I think, of the ability to place oneself in the shoes of one's audience; to assume only          what they assume; to anticipate what they anticipate; to explain what they need explained; to think what they must be thinking; to feel what they must be feeling."[4]

For example, if an attorney is drafting an appellate brief, the attorney must be aware that appellate judges (and their clerks) read countless briefs on a weekly basis and therefore value briefs in which the attorney: (1) clearly states the remedy that is sought; (2) clearly and concisely sets forth the legal arguments supporting the desired remedy; (3) includes only relevant facts and law; (4) effectively organizes the facts and legal argument; (5) avoids unnecessary repetition; and (6) addresses pertinent counterarguments. Similarly, if an attorney is drafting a letter to a non-lawyer client, the lawyer must use easy-to-understand language and straightforwardly explain complex legal principles.

Ultimately, if law students or lawyers fail to consider their audience (e.g., a judge or client) when drafting a legal document, the reader may be distracted by the lawyer’s unclear, unorganized, or substandard writing, which will detract from the document’s persuasive value and undermine the lawyer’s credibility. Put simply, it’s not merely what you say, but how you say it, and who you are saying it to, that matters

3.    Justice Scalia Understood the Importance of Rewriting and Revising

Justice Scalia – and all excellent writers – embrace writing as a process and recognize that great writing is a product is rewriting and revision. As such, a writer’s first draft is never the final draft because it is only through the rewriting and revision process that a legal document or judicial opinion becomes truly persuasive and impactful. Justice Scalia summarized his approach to writing as follows:

I believe I was set on the road to good writing during my first year at Georgetown College. I had a young professor for English Composition whose name I still remember, so much angst did he bring to my freshman year. P.A. Orr was a Canadian, and a damned hard grader; and he gave a writing assignment every weekend. I was not accustomed to getting the B minuses that I received on my first few assignments, and as a consequence every weekend of my first semester I devoted many nervous hours to writing and rewriting. I am grateful to this day."[5]

Moreover, when teaching legal writing at the University of Virginia School of Law, Justice Scalia echoed these sentiments and stated as follows:

What I hope to have taught (in one semester) were the prerequisites for self-improvement in writing, which are two things: (1) the realization (it came upon some of my students as an astounding revelation) that there is an immense difference between writing and good writing; and (2) the recognition that it takes time and sweat to convert the former into the latter."[6]

Simply put, to become excellent advocates, lawyers must embrace writing as a process and accept that rewriting is the essence of great writing.

4.    Justice Scalia Understood that Great Writing Reflects Great Thinking

Great writing, as Justice Scalia emphasized, reflects great thinking. As Justice Scalia stated, "I do believe … that there is at least this connection between good writing and intellect: it is my experience that a careless, sloppy writer has a careless, sloppy mind."[7]  An excellent brief, for example, persuades the reader through the sheer force of logic and reason, not fancy words and flowery prose. In essence, great writers also have great minds.

5.    Justice Scalia Eschewed Rigid Prose In Favor of a Conversational Style that Engaged the Audience

Justice Scalia’s judicial opinions, particularly his dissents, were written in an engaging and conversational style that focused readers on the substance of Justice Scalia’s arguments and maximized their persuasive value. Consider this passage from one of Justice Scalia’s concurring opinions:

Like some ghoul in a late-night horror movie that repeatedly sits up in its grave and shuffles abroad, after being repeatedly killed and buried, Lemon [Supreme Court precedent] stalks our Establishment Clause jurisprudence once again, frightening the little children and school attorneys of Center Moriches Union Free School District. Its most recent burial, only last term, was, to be sure, not fully six feet under.[8]

As the above passage demonstrates, Justice Scalia used vivid prose to communicate with his audience in a relatable manner, capture the audience’s attention, and underscore the logical force of his arguments.

Ultimately, Justice Scalia’s approach to writing can be described as “[p]utting yourself in your reader's shoes. Practice. And putting in the time. These are the three essential lessons that Justice Scalia learned over a lifetime of writing.”[9] Not surprisingly, “at his death … even his detractors were happy to concede the largeness of his writerly gifts [and] [a]nyone who has spent pleasant hours with his judicial opinions will find it possible to imagine Scalia, in another milieu, becoming a distinguished writer of almost any kind.”[10]

[1] David Lat, How Justice Scalia’s Writing Style Affected American Jurisprudence, (Nov. 21, 2016), available at: https://abovethelaw.com/2016/11/how-justice-scalias-writing-style-affected-american-jurisprudence/.

[2] Jeet Heer, Antonin Scalia is the Court’s Greatest Writer, (June 26, 2015), available at: https://newrepublic.com/article/122167/antonin-scalia-supreme-courts-greatest-writer

[3] Lat, supra note 1, available at: https://abovethelaw.com/2016/11/how-justice-scalias-writing-style-affected-american-jurisprudence/.

[4] Glenn Leibowitz, To Write Well, You Don’t Have to Be a Genius (But You Have to Do This), (Nov. 10, 2017), available at: https://www.inc.com/glenn-leibowitz/to-write-well-you-dont-have-to-be-a-genius-but-you-do-have-to-do-this.html (emphasis added).

[5] Id. (emphasis in original).

[6] Id. (emphasis in original).

[7] Id. (emphasis added).

[8] Lamb's Chapel v. Ctr. Moriches Union Free Sch. Dist., 508 U.S. 384, 398 (Scalia, J., concurring) (brackets added).

[9] Leibowitz, supra note 4, available at: https://www.inc.com/glenn-leibowitz/to-write-well-you-dont-have-to-be-a-genius-but-you-do-have-to-do-this.html/.

[10]Andrew Ferguson, The Justice as Writer, (Feb. 19, 2016), available at: https://www.washingtonexaminer.com/weekly-standard/the-justice-as-writer (brackets added).

 

Join the Bars of our Federal Circuit Courts of Appeals, & Then Brag About It

    Recently, in a first-year writing class covering hierarchy of authority and our U.S. Court system, my students and I discussed membership in the bars of the United States Supreme Court and Circuit Courts of Appeals.  The 1Ls did not know these courts have separate bars and admissions, and asked how and why practitioners might join.  I shared the process for the Supreme Court and the Ninth Circuit (we’re in California) with them, and let them know they might even participate in a December group swearing-in at a Circuit Court one day.  Many students said they would see these memberships as prestigious and impressive. 

    The class discussion led me to survey my local appellate pals informally.  While a few were jaded about the value of listing these bar admissions in their firm bios or on resumes, many of our appellate community practitioners use memberships in these bars as indicia of appellate experience, especially if they do not have a state appellate specialization to list.  A search of Twitter reveals attorneys bragging about their federal licenses, and one friend told me she added all of her federal bar admissions to her LinkedIn profile when she let her state appellate specialization expire.  Another colleague told me partners asked about these admissions when he wanted to move from litigation to an appellate department at a large law firm.  While this is anecdotal evidence, it supports the value in highlighting any federal bar memberships, especially appellate court bar memberships.

    Therefore, the next time you update a professional profile, you should consider adding any federal bar admissions you have.  In fact, one law school career development office expressly suggests doing so.  https://pennstatelaw.psu.edu/career-planning-and-development/alumni-career-services/adding-bar-admission-your-resume. 

    Curious about applying to a federal bar?  Check out the court’s website.  If you do not have an account for online filing, you will need one to practice at the Circuit Court (and sometimes you need to be a member first to create these accounts), so learn about PACER and CM/ECF, and start your registration process.  Most of the Circuits still require anyone not newly admitted to a state bar to have either a sponsor or a clerk certification, and to also obtain a certificate of good standing from their state bar.  E.g., https://www.ca9.uscourts.gov/content/atty_instructions.php; http://www.ca2.uscourts.gov/clerk/attorneys/admission_instructions.html.  Moreover, while the forms are now available online through PACER, the $220-230 fee required by the courts is not de minimis.  These are even more reasons to brag about your membership once you join.  And, if you want the details for each federal court, author and general counsel John Okray has written an entire book on admission to the various federal district and circuit courts, U.S. Federal Courts: Attorney Admission Requirements: 2011 Edition (2nd Revised Ed. Lawyerup Press 2010). 

    Please feel free to comment about the memberships you list on your profiles and bios.  I’ll be sure to share comments with my students.  Thanks!

The Weekly Roundup

 

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:

• Big news for lawyers appearing before the Supreme Court: Beginning Monday, lawyers will now have two minutes to talk without interruption by the Justices. New oral argument guidelines provide that "[t]he Court generally will not question lead counsel for petitioners (or appellants) and respondents (or appellees) during the first two minutes of argument.” More here.
• The Supreme Court agreed to hear an abortion case considering the legality of a Louisiana law imposing restrictions on abortion doctors. Almost identical to the Texas law stuck by the Supreme Court in 2016, the Fifth Circuit upheld the Louisiana law in 2016, but it; the law was stayed pending appeal. Many sources have written about the possible implications, including the NYTimes, Reuters, NPR, Washington Post.
• The Brennan Center for Justice, at New York University, is calling on the Supreme Court to formally adopt an ethics code to increase transparency about recusal decisions and to strengthen rules governing gifts to justices. More here.
  
  
• Last week, Ruth Bader Ginsberg made her first public appearance following cancer treatment. She was honored at the University of Buffalo. More here.

Federal Appellate Court Opinions and News:

• Last week, the federal appeals court in Washington ordered the Postal Service to roll back a 10 percent increase in the price of a first-class stamp. Opinion here. The increase took the stamp from 50¢ to 55—which¢; according to the NY Times Op-Ed writer Linda Greenhouse, it was the “biggest single increase in price by total cents since 1863.”  The court found that the increase violated the Administrative Procedure Act’s “requirement for reasoned decision making” and that the governed were entitled to a reason for official decisions beyond “because we say so.” Greenhouse’s Op-Ed here.
  
  
• Ninth Circuit has upheld the Santa Monica’s ordinance banning short-term vacation rental, commonly called “Anti-Airbnb” laws. The ordinance prohibits most short-term vacation home rental and is one of the strictest in the country. More here. 
  
  
• Tenth Circuit last week ruled that federal wage laws protect workers at state-licensed cannabis locations even though cannabis remains illegal in federal law. The court reasoned, “[c]ase law has repeatedly confirmed that employers are not excused from complying with federal laws just because their business practices are federally prohibited.” More here.