Appellate Advocacy Blog

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

Saturday, November 30, 2019

Advice for Drafting Amicus Briefs in Cases Pending Before the United States Supreme Court

The number of amicus briefs filed in cases pending before the United States Supreme Court has increased dramatically in recent years. However, the degree to which amicus briefs impact the Court’s decisions varies dramatically. Some amicus briefs are never read, while others are cited in the Court’s decisions. What is the difference between an amicus brief that garners the Court’s attention and one that is discarded and never read by any of the Court’s Justices?

1.    Good amicus briefs make original arguments.

Before drafting an amicus brief, consider that the Court receives and reviews thousands of briefs each year at the certiorari and merits stage. Given this fact, how can you convince Supreme Court law clerks, who screen amicus briefs and decide if they should be read by one or more of the Justices, that your amicus brief should be read and considered by the Court?

You must provide legal and policy arguments, or relevant data, that neither the petitioner nor respondent have presented, and that are relevant to and necessary for a fair disposition of the case. Indeed, interviews with former Supreme Court clerks revealed that, to merit consideration, an amicus brief must provide arguments or information not presented by the parties:

Nearly all clerks (83%) skimmed or looked over every amicus brief filed. However, those clerks reported spending additional time to carefully reading only those briefs that appeared to contribute new and useful information or arguments. One clerk described his personal system of screening amicus briefs as ‘separating the wheat from the chaff.’ Since clerks generally relied foremost on the merits briefs in order to prepare for cases, amicus filers needed to complement the information supplied by the parties in order to earn anything beyond cursory consideration.[1]

This makes sense. After all, why would the Court or its clerks take the time to read your brief if it presents unoriginal arguments and thus offers little, if any, value?

Accordingly, attorneys should not submit “me too” amicus briefs, which merely repeat or offer support for the arguments contained in the petitioner’s or the respondent’s briefs. The only exception to this rule is if the amicus brief’s author is a well-known and reputable attorney or organization, such as the Federalist Society, Cato Institute, or American Civil Liberties Union. In these instances, the reputation of the amicus brief’s author will lend credibility to the arguments of either the petitioner or respondent. But this is the exception, not the rule.

2.    Attract the Court’s attention at the beginning of the amicus brief.

Given that the Supreme Court’s clerks receive thousands of certiorari petitions, and that in each term the Court reads hundreds of merits briefs, be sure to capture the clerks’ attention at the beginning of your amicus brief. For example, your point headings in the table of contents should demonstrate that the arguments presented are original, relevant, and valuable to the Court. In fact, you should assume (although this may not always be the case), that the clerks will only glance at your brief to discern quickly whether it warrants consideration by the Court.

Indeed, interviews with former Supreme Court clerks confirm this fact:

To facilitate their screening, clerks relied upon a number of identifying features, such as the summary of arguments, table of contents and section headings - all required features of any amicus brief filed with the Supreme Court - to determine whether the brief could contribute anything novel.[2]

Consequently, by demonstrating your brief’s value at the earliest opportunity, you enhance the chances that it will garner the Court’s attention.

3.     Explain why you (individual or organization) are particularly well-suited to assist the Court in resolving the legal issue(s).

Be sure to explain why you possess the relevant experience and expertise necessary to assist the Court in deciding the legal issue(s) in a particular case. And if you lack such expertise, you should reconsider your decision to file an amicus brief. For example, if you are a patent or tax attorney, submitting an amicus brief in a death penalty or abortion case would likely reduce the chances that the Justices will read your amicus brief. After all, absent very compelling circumstances, why is a patent or tax attorney particular well-suited to decide, for example, if legal injection violates the Eighth Amendment to the United States Constitution? Conversely, if the American Civil Liberties Union or Cato Institute submits an amicus brief in a case involving the First Amendment, it is highly likely that both organizations’ expertise in First Amendment jurisprudence will lead the Court to review those briefs.

4.    Use social science data to support your arguments.

Often, although not always, the petitioner’s or respondent’s brief will contain legal and policy arguments that focus on the facts of the case, the record below, and the relevant precedent. Importantly, however, these briefs may not include social science data, which is valuable because it provides a factual basis (beyond the record below) for specific legal arguments and underscores the real-world impact of the Court’s decision. A majority of former Supreme Court clerks confirm the value of social science data:

Sixty-eight of the seventy clerks interviewed were asked whether they were inclined to give more or less consideration to an amicus brief containing social science data. Approximately 54% of the clerks claimed that they would be more inclined to give an amicus brief presenting social science data closer consideration.[3]

For example, in Riley v. California, which addressed the constitutionality of cellular telephone searches incident to arrest, one of the amicus briefs contained data showing that over 65% of the population used cellular telephones on a daily basis, including when operating a motor vehicle. By providing this information, the brief highlighted the fact that, if the Court permitted cell phone searches incident to arrest, its decision would impact the Fourth Amendment rights of millions of American citizens. This argument may have contributed to the Court’s decision, which by a vote of 9-0 (with one concurrence), held that such searches violated the Fourth Amendment. When citing social science data, however, be sure that the data is thoroughly documented and supported by relevant studies.

5.     Focus on specialized areas of the law.

Amicus briefs are particularly helpful in cases where the legal issues involve highly technical or complex areas of the law. Indeed, former Supreme Court clerks report that “amicus briefs were most helpful in cases involving highly technical and specialized areas of law, as well as complex statutory and regulatory cases.”[4]

Remember that the Justices, although brilliant legal scholars, are not necessarily experts in tax, patent, or copyright law. As such, where a case involves a highly technical area of the law, an amicus brief that assists the Court in understanding the underlying factual issues will be very valuable.

6.    Remember that your goal is to assist the Court in reaching a fair decision.

Amicus briefs should differ in tone and approach from merits briefs. Specifically, you should objectively and fairly assess the arguments of the parties, and provide the Court with a workable legal rule that effectively balances the competing legal arguments. In so doing, you will demonstrate to the Court that you have considered the factual, legal, and policy issues in an unbiased manner and arrived at a reasoned conclusion.

7.    Ensure that your writing is of the highest quality.

An amicus brief must be well-written and effectively organized. If your brief is poorly written, you can be sure that it will detract from the credibility of your arguments and rarely, if ever, receive the Court’s attention.

Thus, make sure that your writing is concise. Avoid including extraneous or irrelevant facts, unnecessary repetition, or over-the-top language. Address counterarguments and explain why they should not affect the outcome you support. Consider the implications of your argument (and proposed legal rule) on future cases. Explain why your argument is consistent with precedent and produces an equitable result. Adopt a professional tone and never attack the lower courts or the parties. And always follow the Court’s rules regarding the filing of amicus briefs.

Ultimately, excellent amicus briefs can provide valuable assistance to the Court and contribute to principled developments in the law. To do so, they must be well-written and thoroughly reasoned, provide an original perspective, and advocate for a workable legal rule that balances legal and practical considerations.

[1] Lynch, K. (2004). Best Friends? Supreme Court Clerks on Effective Amicus Curiae Briefs. 20 J. L. & Politics 33 (emphasis added).

[2] Id.

[3] Id.

[4] Id.

November 30, 2019 in Appellate Advocacy, Appellate Practice, Appellate Procedure, Federal Appeals Courts, Legal Profession, Legal Writing, United States Supreme Court | Permalink | Comments (0)

Friday, November 29, 2019

Appellate Advocacy Blog Weekly Roundup Friday, November 29, 2019

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Each week, the Appellate Advocacy Blog Weekly Roundup presents a few tidbits of news and Twitter posts from the past week concerning appellate advocacy. As always, if you see something during the week that you think we should be sure to include, feel free to send a quick note to either (1) Dan Real at DReal@Creighton.edu or on Twitter (@Daniel_L_Real) or (2) Catharine Du Bois at DuBoisLegalWriting@gmail.com or on Twitter @CLDLegalWriting

With the Thanksgiving holiday and even the Supreme Court taking a little break this week, the roundup is a little shorter this time around.

US Supreme Court Opinions and News:

This week, the Supreme Court ordered President Trump to file an expedited appeal in a case in which Trump is seeking to block a House subpoena of his financial records.  The case is one of two testing the Court's willingness to block subpoenas as part of investigations into his personal and business affairs.  More from Boomberg news HERE

A couple of posts at The Volokh Conspiracy this week addressed recent indications from the Supreme Court about its willingness to revisit the nondelegation doctrine, concerning whether administrative agencies can exercise authority delegated by Congress.  First, Jonathan Adler had THIS article pointing out that in the Court's denial of rehearing in the case of Gundy v. United States, and in the Court's denial of certiorari in Paul v. United States, Justices Gorsuch and Kavanaugh have signaled that the Court may be willing to revisit nondelegation in the context of major regulatory initiatives. In addition, Josh Blackman had THIS article noting that the DACA cases currently pending before the Court squarely present the opportunity to address the doctrine.

State Appellate Court Opinions and News:

Recently, the Iowa Supreme Court reversed an Iowa Court of Appeals order in a case concerning Iowa's new "stand-your-ground" law.  The Supreme Court ruled that the law, allowing people to use lethal force to defend themselves, is not applicable to protect the use of force by people engaged in criminal activity prior to the perceived threat.  More HERE.

The Kansas Supreme Court ruled this week that a man's criminal conviction should not be automatically set aside despite evidence that the presiding trial judge had fallen asleep on the bench during the first day of the trial.  The Supreme Court called the conduct "regrettable" but concluded it did not automatically warrant reversal.  More HERE.

November 29, 2019 | Permalink | Comments (0)

Wednesday, November 27, 2019

Valuing Precedent

Advocates must be keenly aware of which authorities bind the courts to which they are arguing and which authorities will be persuasive to the courts.[1]  When the authorities are prior decisions, advocates should also recognize that courts are often interested in hearing how other courts have interpreted and applied the law in similar circumstances.  As Professors MacCormick and Summers have explained, “Applying lessons of the past to solve problems of the present or the future is a basic part of human reason.”[2]  In many of our day-to-day decisions, we try to act consistently with our prior behavior—to be predictable.  Acting in this manner seems fair to everyone and keeps people we deal with content.  When we act differently, we call it a surprise, which can be a good thing or a bad thing.

 Courts use prior decisions or precedents in much the same way, as models for later decisions.  Courts are motivated to correctly and consistently interpret the law and provide some certainty and stability for those parties operating in a jurisdiction.[3]  Courts in the United States, including Louisiana (which is a civil law or mixed jurisdiction), as well as courts in jurisdictions around the world, frequently consider prior decisions when interpreting the law, whether they state that they are relying on these decisions or not.  Commentators have characterized this reliance on the work and reasoning of earlier judges as a way for courts to “share power across time,” thus democratizing the judiciary and allowing current judges to be assisted by their predecessors.[4]  Reliance on precedent helps to ensure stability in the law so that it will not change based on the whim of one or a handful of judges. 

Courts around the world consider precedent in varying degrees.  We can characterize their reliance on prior decisions or precedent using three basic points on a spectrum: on one end of the spectrum, strict stare decisis; on the other end of the spectrum, jurisprudence constante; and in the middle, a blended version of these two which seems to describe what goes on “in fact” in the United States federal system, in state courts in the United States, including Louisiana, and in many parts of the world.

Strict stare decisis refers to a system of valuing prior decisions as “the law,” binding later courts that face similar issues.  Judicial systems that employ strict stare decisis require subordinate courts to follow the decisions of higher courts within a judicial system; sometimes the requirement is to follow the decisions of the higher courts to which the subordinate courts’ decisions are appealable.[5]  In some jurisdictions, courts are expected to follow their own decisions as well, with some latitude given.  One decision alone is said to make law that must be followed in subsequent cases.[6]

On the other end of the spectrum is a system in which courts may loosely consider prior decisions, but the decisions do not make law.  A doctrine such as jurisprudence constante directs courts to consider a long line of consistent interpretations of the law as persuasive and entitled to great weight.  These decisions do not bind the court to a particular interpretation of the law, nor do they make law.  In fact, in some jurisdictions employing a version of jurisprudence constante, courts are forbidden from citing to a prior decision as the basis for a current decision.[7]

The middle of the spectrum sees a combination of characteristics from those noted above, and it seems to exemplify the model used “in fact” in many jurisdictions worldwide, including the model used in United States jurisdictions.

Moving from the strict stare decisis side of the spectrum, we see examples of courts that render decisions that have the force and effect of law, but that also accept the obligation to review past decisions to ensure that prior interpretations of the law are correct.  For example, the United States Supreme Court and other federal and state courts in the United States have valued precedent but have often employed a flexible model of stare decisis.[8]  The doctrine of stare decisis, as well as the hierarchical structures of the court systems, typically require the subordinate courts in those jurisdictions to be bound by the decisions of the courts to which the lower courts’ decisions are appealable and require courts to be bound by their own prior decisions.[9]  Despite the apparent rigidity of this doctrine, the United States Supreme Court has the express power to overrule its own decisions, as do most of the state supreme courts.  Precedent is valued and respected, but American courts recognize that blind adherence to precedent that is not workable, antiquated, or poorly reasoned is a mistake.[10]  The United States Supreme Court described this flexibility and the value of precedent in the United States as follows:

Stare decisis is the preferred course, because it promotes the evenhanded, predictable and consistent development of legal principles, fosters reliance on judicial decision, and contributes to the actual and perceived integrity of the judicial process.  Adhering to precedent is usually the wise policy, because in most matters it is more important that the applicable rule of law be settled than it be settled right.  Nevertheless, when governing decisions are unworkable or are badly reasoned, this Court has never felt constrained to follow precedent.  Stare decisis is not an inexorable command; rather it is a principle of policy and not a mechanical formula of adherence to the latest decision.[11]

American courts have a record of following precedent, but they also have a record of revisiting decisions and the reasoning behind those decisions to ensure that the Constitution or other laws are being properly interpreted and applied.  United States Supreme Court Chief Justice Roberts noted that were it not the Court’s practice to revisit precedent when some special justification warrants further review, certain outdated practices and laws might still exist in the United States, such as segregation and government wiretapping without the need for a warrant.[12]  He explained, “[S]tare decisis is not an end in itself.  It is instead ‘the means by which we ensure that the law will not merely change erratically, but will develop in a principled and intelligible fashion.’”[13]

Moving from the other end of the spectrum, where courts do not make law and are not bound by prior decisions, we see courts consider prior decisions when interpreting and applying codified law.  In France, Italy, and Spain, as is the case in many other traditional civil law and mixed jurisdictions, prior decisions, especially by reviewing courts, often are very influential and persuasive to subordinate courts, even though they cannot alone provide the authority for a court’s decision.[14]  Similarly, Louisiana courts value prior decisions, even though the Louisiana legislature does not recognize judicial decisions as a source of law.[15]  The Louisiana Supreme Court has on occasion directed other Louisiana courts to follow its decisions, and the majority of those courts indicate that they consider themselves bound by Louisiana Supreme Court decisions.  These decisions are not a source of law, yet as has been recognized in many different jurisdictions, courts are interested to know how other courts have interpreted the law in the past.  Add to that the court’s awareness that its decisions will be reviewed by certain higher courts, and logic directs courts, and likewise litigants appearing before them, to consider what has been held in the past in similar circumstances.[16] 

 

[1] The author has published articles on the value of precedent and a book chapter that addresses the topic.  This post draws directly from those publications.  See Louisiana Legal Research (Carolina Academic Press 2009, 2d ed. 2013, 3d ed. 2017); Mary Garvey Algero, Considering Precedent in Louisiana: Balancing the Value of Predictable and Certain Interpretation with the Tradition of Flexibility and Adaptability, 57 Loy. L. Rev. 113 (2012), also available in The European Journal of Comparative Law & Governance (Feb. 2014); Mary Garvey Algero, The Sources of Law and the Value of Precedent: A Comparative and Empirical Study of a Civil Law State in a Common Law Nation, 65 La. L. Rev. 775 (2005).

     [2]. Interpreting Precedents: A Comparative Study 1 (D. Neil MacCormick & Robert S. Summers eds., 1997).

     [3]. Id. at 2; see also Interpreting Statutes: A Comparative Study 487 (D. Neil MacCormick & Robert S. Summers eds., 1991) (concluding that, together with any applicable statutes, “precedents are the most frequently used materials in judicial opinions,” regardless of whether precedents are considered to have the force of law or not); see also Citizens United v. Fed. Election Comm’n, 130 S. Ct. 876, 911-12 (2010) (explaining that precedents are to be respected); Borel v. Young, 2007-0419 (La. 11/27/07); 989 So. 2d 42, 65 (emphasizing the value of precedent to maintain certainty and stability in the law); Francesco G. Mazzotta, Precedents in Italian Law, 9 Mich. St. U.-DCL J. Int’l L. 121, 153 (noting that precedents are the most important “justificatory material used in judicial opinions”).

     [4]. Deborah G. Hankinson, Stable, Predictable, and Faithful to Precedent: The Value of Precedent in Uncertain Times

http://www.tex-app.org/articles/HankinsonPrecedent2007.pdf, at 1, 4 (2007) (citing Hon. D. Arthur Kelsey, The Architecture of Judicial Power: Appellate Review and Stare Decisis, Judges’ Journal, at 9-10 (Spring 2006)).

     [5]. See, e.g., Hohn v. United States, 524 U.S. 236, 251 (1998) (explaining that “[s]tare decisis is the ‘preferred course because it promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process.’”) (quoting Payne v. Tennessee, 501 U.S. 808, 827 (1991)); Mountain View Coach Lines, Inc. v. Storms, 476 N.Y.S.2d 918 (N.Y. App. Di v. 1984) (trial courts in New York are formally bound to follow decisions rendered by New York appellate courts).  See also James L. Dennis, Interpretation and Application of the Civil Code and the Evaluation of Judicial Precedent, 54 La. L. Rev. 1, 4-5 (1993); Alvin B. Rubin, Hazards of a Civilian Venturer in Federal Court: Travel and Travail on the Erie Railroad, 48 La. L. Rev. 1369, 1371 (1988).

     [6]. Rubin, supra note 5, at 1371.

     [7]. See Michel Troper & Christophe Grzegorczyk, Precedent in France, in Interpreting Precedents: A Comparative Study 115 (D. Neil MacCormick & Robert S. Summers, eds., 1997) (“There is no formal bindingness of previous judicial decisions in France. One might even argue that there is an opposite rule: that it is forbidden to follow a precedent only because it is a precedent.”); id. at 111-12 (quoting F. Zenati, La Jurisprudence, Paris: Dalloz 102 (1991)) (“[T]he very idea that a judge could search for the base of his decision in a prior judgment is literally unthinkable in a legal system based on statutory Law.’”); Catherine Valcke, Quebec Civil Law and Canadian Federalism, 21 Yale J. Int’l L. 67, 84 (1996) (“A lower court in France has no formal duty to follow a higher tribunal’s decisions, and the highest court, the Cour de cassation, enjoys full power to renounce its own decisions.”).  But see Alain Lacabarats, The State of Case Law in France, 51 Loy. L. Rev. 79, 83 (recognizing that even though the decisions of the courts are not binding on other courts, “in practice, courts have a natural tendency to conform spontaneously to the case law of the Cour de cassation, to guarantee citizens a uniform application of the law.”). See also Michele Taruffo & Massimo La Torre, Precedent in Italy, in Interpreting Precedents: A Comparative Study 141, 154 (D. Neil MacCormick & Robert S. Summers eds., 1997) (discussing Italy), and Alfonso Ruiz Miguel & Francisco J. Laporta, Precedent in Spain, in Interpreting Precedents: A Comparative Study 259, 260, 269 (D. Neil MacCormick & Robert S. Summers eds., 1997).

 

     [8]. Mortimer N.S. Sellers, The Doctrine of Precedent in the United States of America, 54 Am. J. Comp. L. 67, 71, 74, 86-88 (2006).

     [9]. See, e.g., Hohn v. United States, 524 U.S. 236, 251 (1998).  The Court in Hohn further explained that its decisions “remain binding precedent until we see fit to reconsider them, regardless of whether subsequent cases have raised doubts about their continuing vitality.” Id. at 252-53.  See also Gavin v. Chernoff, 546 F.2d 457, 458-59 (1st Cir. 1976) (invoking stare decisis to follow an earlier opinion when “appellants essential arguments remain much the same as those considered and previously rejected, and there were no compelling new reasons and no change in circumstances justifying reconsideration of the previous decision”). 

   [10]. Citizens United v. Fed. Election Comm’n, 130 S. Ct 876, 911-12 (2010).

   [11]. Payne v. Tennessee, 501 U.S. 808, 827-28 (1991).

   [12]. Citizens United, 130 S. Ct. at 920 (Roberts, C.J., concurring).

   [13]. Id. (quoting Vasquez v. Hillery, 474 U.S. 254, 265 (1986)).

   [14]. Lacabarats, supra note 7, at 83-86 (discussing the value in fact of French decisions); Mazzotta, supra note 3, at 137, 141, 153 (discussing the value in fact of Italian decisions); Miguel & Laporta, supra note 7, at 274-75, 288 (discussing the value in fact of Spanish decisions).

[15] La. Civ. Code Ann. art. 1 (providing that the sources of law are legislation and custom).

[16] I have referred to this behavior as “systemic respect for jurisprudence.”  Algero, The Sources of Law and the Value of Precedent, supra note 1, at 781.

November 27, 2019 in Appellate Advocacy, Appellate Practice, Federal Appeals Courts, Law School, Legal Profession, Legal Writing, Moot Court, United States Supreme Court | Permalink | Comments (1)

Tuesday, November 26, 2019

Sleepy Advocacy

Appellate Advocacy is hard work. Crafting an effective, persuasive argument requires preparation so thorough that the advocate can go beyond merely answering questions to actively anticipate the next question that an intelligent layman might pose. It takes research that plumbs the depths of prior precedent to ensure no court has taken a novel approach that could potentially apply to the facts. It calls for advocates to tease out the limits of their position so thoroughly that they know exactly how much ground they can give in defining the rule that ought to lead to a judgment in their favor, all without accidentally conceding defeat.

So it would seem that when a moot court team I coached recently asked me how to best prepare for a competition that was just three days away, I should have responded with a grueling preparation schedule of all-night practices and research sessions. But because I knew how hard this team had been working with the material for weeks, my answer was simpler: get some sleep.

Study after study has shown how poor sleep can affect our ability to learn, think, remember, and react quickly to new stimuli. According to Dr. Clete Kushida, an associate professor in the department of psychiatry and behavioral sciences at Stanford University Medical Center, “sleep loss leads to learning and memory impairment, as well as decreased attention and vigilance.”[1] The proverbial all-nighter is ineffective at improving our learning and memory. According to Dr. David Earnest, a professor with the Texas A&M College of Medicine, sleep allows your brain to convert short-term memories into long-term ones; skipping that process will decrease one’s mental processing efficiency.[2] The best method to improve memory, recall, and mental processing rates is to get consistent sleep over time.

Some readers might be thinking that this advice sounds good for the lowly student, but practiced advocates who speak in courtrooms for a living can cope with the stresses of low sleep better than the average 1L. Frankly, I doubt it. Research on the effects of sleep deprivation, even for experts in a field, suggests otherwise. Take one study of professional basketball players, who often struggle to rest while maintaining a grueling travel schedule between games. The study tracked the performance of NBA players who sent a tweet between 11:00 p.m. and 7:00 a.m., then played a game the following day. According to the study, those players’ shooting percentages dropped 1.7% when compared to games that did not follow late-night tweeting; their averages for rebounds, steals, and blocks also dropped.[3] In another study, college basketball players who extended their sleep routines to include at least ten hours of rest per night saw a greater than 9% increase in their shooting percentages.[4] It seems that coordinated performance that requires quick reactions is closely linked to sleep routines, even for experts.

Preparation is everything in appellate advocacy. The attorney who has done her research thoroughly and considered the issues carefully will find success. But that preparation is most useful when it is part of a long-term process, not a series of focused efforts crammed into a short time frame at the expense of proper sleep. The ability to focus, react, and process information is tightly correlated with scheduling adequate time for shut-eye. When the clock strikes midnight, practitioners and students alike should resist the temptation to press on, instead resolving to have a fresh look at the case after a good night’s sleep.

 

[1] American Academy of Sleep Medicine, College Students: Getting Enough Sleep Is Vital to Academic Success, Nov. 6, 2017, https://aasm.org/college-students-getting-enough-sleep-is-vital-to-academic-success/.

[2] Science Daily, Studying: Is It Bad for Your Health to Pull an All-Nighter?, Sept. 19, 2016, https://www.sciencedaily.com/releases/2016/09/160919162837.htm.

[3] American Academy of Sleep Medicine, Study Links Late-Night Tweeting by NBA Players to Worse Game Performance, June 5, 2017, https://aasm.org/study-links-late-night-tweeting-by-nba-players-to-worse-game-performance/.

[4] Cheri Mah et al., The Effects of Sleep Extension on the Athletic Performance of Collegiate Basketball Players, 34 SLEEP 943 (2011).

November 26, 2019 | Permalink | Comments (0)

Friday, November 22, 2019

The Weekly Roundup

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Each week, the Appellate Advocacy Blog Weekly Roundup presents a few tidbits of news and Twitter posts from the past week concerning appellate advocacy. As always, if you see something during the week that you think we should be sure to include, feel free to send a quick note to either (1) Dan Real at DReal@Creighton.edu or on Twitter @Daniel_L_Real or (2) Catharine Du Bois at DuBoisLegalWriting@gmail.com or on Twitter @CLDLegalWriting

 

US Supreme Court Opinions and News:

  • After years in court, including one previously denied Supreme Court petition in 2015, Google v. Oracle will be heard by the Supreme Court. The dispute centers on the use of application programming interfaces (also called software interfaces or APIs), specifically whether the Copyright Act protects Oracle’s API that Google admits to using. For a much more astute summary and explanation, see the New York Times and National Law Journal.
  • This week’s New Yorker included an article on Justice Elena Kagan. See it here.

Federal Appellate Court Opinions and News:

  • The Fourth Circuit held that suspicionless searches of travelers’ digital devices violates the US Constitution. The ruling holds that US border agents need reasonable suspicion, though not a warrant, to search smartphones and laptops at US ports of entry.  See coverage in Reuters; CNN; or USNews.
  • A Federal Court has stayed four federal executions set to occur next month, effectively blocking the recent Justice Department decision to resume federal executions. The order issued a preliminary injunction based on concerns about the government’s lethal injection method. See NBC News, NPR; and CNN.
  • The ACLU on behalf of five journalists is suing the government claiming the government violated the journalists' First Amendment rights.  The suit challenges the government’s questioning of the journalists at the US-Mexico Border. See the complaint in Guan v. Wolf here. The ACLU announcement is here.

Appellate Practice Tips and Techniques:

  • Here’s a useful Twitter thread on best advice for legal writers.  It includes a post from Michelle Olsen about Justice Kennedy: “Justice Kennedy would tell his law clerks: ‘You can't write anything good because you've never read anything good.’”  The post includes a link to a Harvard Law Review tribute to Justice Kennedy.

 

November 22, 2019 in Appellate Advocacy, Appellate Practice, Legal Profession, Legal Writing, United States Supreme Court | Permalink | Comments (0)

Thursday, November 21, 2019

Transparency in the Federal Appellate Courts

Via SCOTUSBlog, I just discovered Fix the Court, an advocacy group that is a self-proclaimed watchdog for the highest court in our land. The group recently released a report in which it assesses the transparency of the federal courts, and it found that the Supreme Court comes in dead last.

The categories of assessment were broadcast access, availability of oral arguments calendars and new opinions, communications with the public, and work place conduct (including conflicts of interest) and judicial wellness. After rating all the federal circuit courts and the Court, Fix the Court scored the Ninth Circuit the highest, then the D.C. Circuit, with a tie between Third and Fifth Circuit, and then screaming in at fourteenth place was the Supreme Court. 

For the Supreme Court, broadcast availability has been a matter of interest over the years. To date, the Court has not seemed too serious about considering the addition of these capabilities because of a concern that there will be interference with the judicial process.  Widespread public viewing could improperly cause all involved (lawyers and justices) to play for a different audience than simply those present in the courtroom at the time, and further politicize a body that must remain far away from politics.

It's legitimate concern, but time moves on, as does technology. Broadcasting could be minimally intrusive, and a process that is well ensconced in tradition but removed from significant from public viewing might be made more open and thereby trustworthy to the population. Due to the lightening speed spread of news, it could be (a slight) step ahead of the inevitable if cameras were finally let into the Court. 

November 21, 2019 in Federal Appeals Courts, Television, United States Supreme Court | Permalink | Comments (0)

Tuesday, November 19, 2019

Narrative Arguments Built on the Sand

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I have mentioned in past blogs the importance of the "narrative paradigm" in communications theory. In a nutshell, this theory argues that there is more to persuasion than the logic of your argument. Instead, the "truthiness" of an argument can be compelling, regardless of its objective merits, when it matches the life-experiences and biases of the reader or listener.

In legal writing, we often use allusions, or even meme-like story indexes, in order to quickly hijack the meaning behind a certain story or narrative to fit our needs. This often takes the form of biblical parables in an attempt to quickly convey the "truthiness" of a statement. The parable of the two builders, one who builds on sand and another who builds on rock, for instance, is cited in several cases. The gist of the parable being that if you do not have a good foundation, you cannot build a lasting structure or legal argument.

Citing to the parable, courts often make this comparison. Thus, "a motion built on speculation and conjecture will rarely withstand the winds of scrutiny." Barnette v. Grizzly Processing, LLC, 2012 WL 1067076, *1 (E.D. Ky. Mar. 28, 2012) (unpublished). Or "using the common law as the basis for reasoning, is like building a house upon the sands instead of upon the rock." Ex parte Estep, 129 F.Supp. 557, 558 (N.D. Tex. 1955). Or, even more simply, "[t]he argument is as insubstantial as a house built upon the sand." Russel v. Gonyer, 264 F.2d 761, 762 (1st Cir. 1959).

We all think we get the gist of this parable - that you must have a firm foundation in your home, life, or argument, or it will all fall apart when tested. But most of us don't really understand what it originally meant.

Ray Vander Laan, a theologian with extensive time and training in the middle east, has pointed out that this understanding of the parable is most likely incomplete. In the part of the world that this story was first circulated, the people lived in a rocky desert, where the rocks occasionally give way to even, sand-covered wadis. The floor of a wadi would be the easiest place to build. It would also be the most foolish, because wadis flood in a very predictable and eye-catching fashion:

This cultural knowledge changes the meaning of the well-known parable. It isn't just foolish to build on sand because sand shifts - it is insane to build on sand, because the house will inevitably flood and be destroyed.

This illustration is important for more than just the biblically minded. It shows that the power of a story depends on its understanding, and that this understanding can shift and change over time and cultures. That means that when we reference allusions, or reference stories, we need to make sure that our readers will have the same understanding as ourselves.

Now, as long as our intended meaning meets the understanding of our audience, it does not really matter that the original meaning was something different. Thus, the quotations above still work, because the general understanding of the parable is that a shifting foundation is bad. It is only if we were communicating with the original audience that meaning would be lost.

But this story serves as a reminder that our storytelling is only effective when we know that our audience is going to understand it. I have commented before about how obscure literary references might be admirable, but ineffective if the reader has no reference to the work. Understanding the audience, and their reception of a particularly story index or allusion is necessary to properly telling the story. To paraphrase a well-known marketing book, "To be successful... today, you must touch base with reality. And the only reality that counts is what's already in the [audience's] mind." Al Ries & Jack Trout, Positioning: The Battle for Your Mind 5 (rev'd ed. 1986).

This is not relevant just to the use of existing narratives, but to the stories you put together in your briefing. Remember that you may know the entire case and every detail, but that the court only knows what your present to them in the record. In order to make sure they hear the story you know, you must be sure to preserve all of the pieces of that story (by ensuring that all of your evidence makes it into the record at the trial level) and that you then present, on appeal, a complete narrative that contains each event or fact that makes your client's story persuasive. This includes facts that may not seem even legally relevant, but that are relevant to your audience.

In short, be sure you know what is in your audience's mind before you rely on narrative references to persuade them. Otherwise, you will be building an argument on shifting sand. And everyone knows that's a bad idea.

(Image source: Pieter Bruegel the Elder, The (Greater) Tower of Babel (Vienna), 1563)

 

 on speculation and conjecture will rarely withstand the winds of scrutiny.

Barnette v. Grizzly Processing, LLC, No. CIV. 10-77-ART, 2012 WL 1067076, at *1 (E.D. Ky. Mar. 28, 2012)
a motion built on speculation and conjecture will rarely withstand the winds of scrutiny.

Barnette v. Grizzly Processing, LLC, No. CIV. 10-77-ART, 2012 WL 1067076, at *1 (E.D. Ky. Mar. 28, 2012)
a motion built on speculation and conjecture will rarely withstand the winds of scrutiny.

Barnette v. Grizzly Processing, LLC, No. CIV. 10-77-ART, 2012 WL 1067076, at *1 (E.D. Ky. Mar. 28, 2012)
a motion built on speculation and conjecture will rarely withstand the winds of scrutiny.

Barnette v. Grizzly Processing, LLC, No. CIV. 10-77-ART, 2012 WL 1067076, at *1 (E.D. Ky. Mar. 28, 2012)

November 19, 2019 in Appellate Advocacy, Appellate Practice, Legal Writing, Religion, Rhetoric | Permalink | Comments (0)

Monday, November 18, 2019

Does it Add Up? Evaluating Numerical Data

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

You want to present the best argument, but how do your claims stack up? You may have numerical data to support your argument, but what do the numbers really say? Does your data prove what you say it does? Here are some things to consider the next time you are compiling statistics or evaluating your opponent’s data.

Are the Numbers Accurate?

Statistics can be very persuasive because they’re measurable. They create a sense of objectivity because they’re based on math. Two plus two equals four. Who can argue with that? So people cite numbers for everything you can imagine. The number of illegal immigrants, the number of people without health insurance, the number of people unemployed, and so on. But sometimes people cite numbers that are not accurate. Or it’s unclear exactly what the numbers measure. So sometimes numbers don’t live up to the hype. I once heard a political consultant state, authoritatively, that political action committees affiliated with the opposing party spent “hundreds of millions of dollars” on behalf of candidates without disclosing the donations to the Federal Election Committee. Sounds pretty bad, doesn’t it? But wait a minute. How does the consultant know the figure is “hundreds of millions” of dollars? Where’s the evidence for that? Especially if the donations were not disclosed! If donations were not disclosed, how can anyone know the amounts?

Author Sam Harris created some controversy in 2014 when he appeared on Bill Maher’s HBO show, “Real Time,” and said that about 20% of Muslims are either jihadists or Islamists who want to force their interpretation of Islam on the rest of society. Harris later appeared on CNN’s Fareed Zakaria GPS, where Zakaria questioned the figure of 20%. Harris explained there’s a difference between a jihadist and an Islamist, but that he had grouped them together. In that case, Harris could have avoided confusion by not grouping jihadists and Islamists together in the figure of 20%.

Dig to find out what the number really measures, and if it’s reasonably accurate.

What Do the Numbers Prove?

On January 24, 2012, President Barack Obama said the following in his State of the Union Address:

Right now—right now—American oil production is the highest that it’s been in eight years. That’s right—eight years. Not only that—last year, we relied less on foreign oil than in any of the past 16 years.”

The President was arguing that the U.S. imported less foreign oil because the U.S. produced more oil. Let’s assume for a moment that the numbers were accurate; American oil production increased, and reliance on foreign oil decreased. What do these numbers mean? Do they really prove that reliance on foreign oil decreased because American oil production increased? Or, is it possible that reliance on foreign oil decreased because a weak U.S. economy decreased demand for oil?

Six days after the President’s speech, Marketwatch.com reported that the cost of oil had been dropping, “after weaker-than-expected fourth-quarter U.S. economic growth also raised doubts about demand outlook.” And that same day, Foxbusiness.com reported that U.S. oil demand dropped 1.3% according to “revised government data released Monday.” So even the governments own data indicated lower U.S. demand for oil!

Even if the numbers are accurate, question what they really indicate.

Watch Out for “Average” Arguments

If your real estate agent recommends you sell your house for $200,000 because that’s the “average” sale price for homes in the neighborhood, you’ll want to know what “average” means. The same goes for when a politician declares what the “average” voter wants, when a scientist states what the “average” temperature is; and pretty much anytime someone uses the word “average” in an argument. What does “average” mean? There are three main possibilities.

Mean average is an average of a set of numbers. Median average is the middle number in a set of numbers. No Clue average—sometimes the person using the word “average” has no clue what the average is. They’re just throwing out a number and hoping you like it. It’s an easy thing to say when you’re desperate to make a point: “The average [blah, blah, blah]!”

So, what does your real estate agent mean by “average”? Ask for neighborhood sale prices so you can do the math and calculate the mean and median averages. For example, neighborhood home sales of $198,000, $200,00, and $250,000 provide a mean average of $216,000 and a median $200,000. The difference is $16,000, a significant amount. If you’re selling, you’ll argue the mean average is fairer and more accurate, because you want a higher number. If you’re buying, you’ll argue the median.

Define what “average” means.

Is the Sample Big Enough?

Statistics often seek to learn something about a large group of things by examining a small sample of the group. For example, a public opinion poll may want to estimate the percentage of voters likely to vote for one presidential candidate over another. Rather than ask 200 million voters (the entire group or “population” of voters”), the polling company might ask 1,000 (a small sample of voters). Asking 1,000 is not as accurate as asking all 200 million, of course, but that’s how statistics work. “Sampling” is a relatively quick, cheap, and practical way to make predictions or estimates. So how many people should be polled? How large should the sample be? There are free calculators on the Internet that you can use to find out how large a sample should be.

After the Deepwater Horizon oil spill in the Gulf of Mexico, the federal government banned all deepwater drilling for oil in the Gulf of Mexico. The next month, a federal court invalidated the ban on deepwater drilling. The Judge explained that in deciding to ban all deepwater drilling, the government focused on only one incident: “Deepwater Horizon and BP [British Petroleum] only. None others.” The government assumed that “because one rig failed and although no one yet fully knows why, all companies and rigs drilling new wells over 500 feet also universally present an imminent danger.” The Judge summed up the error of hasty generalizations rather nicely: “If some drilling equipment parts are flawed, is it rational to say all are? Are all airplanes a danger because one was? All oil tankers like Exxon Valdez? All trains? All mines? That sort of thinking seems heavy handed, and rather overbearing.”

Check sample size.

Is the Sample Relevant?

I heard a story on the radio about a gentleman who hitchhiked across the country. He explained that he never had a bad experience. As a result, his faith in humanity increased. He was encouraged about the kindness of people. Can you see the problem here? The gentleman based his opinion only on those people who were kind enough to give him a ride! What about all the drivers who passed him by? How kind were they? The “sample” of people included only persons nice enough to give him a ride, and was not a fair representation of all of humanity.

Don’t be fooled by the numbers. When evaluating numerical data, ask yourself these questions. Are the numbers accurate? What do they mean? What is meant by “average”? Is the sample big enough? Is the sample relevant.

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

Find The Joy of Argument on Amazon.

Follow The Joy of Argument on Facebook.

November 18, 2019 | Permalink | Comments (0)

Sunday, November 17, 2019

Do Federal Courts Make Decisions Based on Ideological Considerations?

It is no secret that, over the past thirty years, the nomination of judges to the federal courts, particularly to the United States Supreme Court, has become increasingly contentious and partisan. The nominations of Clarence Thomas and Brett Kavanaugh underscored how divisive and polarizing this process has become, with confirmation decisions often split along party lines. The likely reason is that members of the United States Senate form opinions regarding how a potential justice is likely to interpret the Constitution and rule in critical cases, such as those involving abortion, executive power, immigration, and the death penalty. These opinions arguably reflect beliefs regarding a nominee’s ideology, and how that ideology will influence a justice’s decisions in specific cases.

But does ideology really motivate judicial decision-making, such that judges make decisions based primarily on their policy predilections?

Based on numerous studies and a large volume of data, the answer depends on: (1) the judge’s placed in the judiciary hierarchy (e.g., federal district court versus the United States Supreme Court; (2) the specific legal issue under consideration; (3) institutional considerations, including a desire to maintain a court’s institutional legitimacy; (4) a judge’s approach to constitutional interpretation and beliefs concerning the value of precedent; and (5) the composition of a court. In short, ideology does not play nearly as significant a role as many politicians believe because judges decide cases under internal and external constraints that render ideology-based decision-making infeasible. Put simply, courts are not as political as many believe.

First, empirical evidence reveals that a judge’s place in the judiciary hierarchy directly correlates with the likelihood that ideology will motivate decision-making. For example, studies have shown that federal district court judges do not decide cases on the basis of ideology. However, in the appellate courts, including the United States Supreme Court, some evidence exists that ideological considerations are relevant, although not dispositive, considerations. This is not surprising. After all, district court judges would be ill-advised to made decisions based on ideology because the likelihood of reversal by a circuit court of appeal would be high. At the appellate level, though, judges are less constrained because the Supreme Court only grants certiorari in a small number of cases. Thus, because appellate courts are, as a practical matter, often the courts of last resort, and because their decisions typically involve important policy matters, ideology is more influential, although certainly not the sole motivation underlying case outcomes.

Second, the extent to which ideology matters depends on the legal issue before the courts. Some issues, such as those involving patent law, admiralty law, and the bankruptcy code, do not implicate ideological considerations and thus render ideology irrelevant. In addition, in many cases, it is difficult to ascertain precisely how a specific legal issue or outcome fits neatly into a particular ideology. For example, cases involving the Commerce Clause or the level of deference that should be afforded to administrative agencies do not depend or even involve ideological considerations. Furthermore, it is challenging to operationalize and accurately characterize a particular judge’s ideology; thus, attempting to label judges as liberal or conservative fails to account for the nuances in that judge’s ideology and judicial philosophy. And in many instances, judges’ decisions are inconsistent with their perceived ideology. Indeed, in Texas v. Johnson, Justice Antonin Scalia wrote for the majority and held that prohibitions on desecrating the American flag violated the First Amendment, even though Scalia openly admitted that he despised such acts. Moreover, the fact that many cases are decided by votes of 9-0, 8-1, or 7-2 suggests that ideology alone is not the driving force underlying most decisions at the Supreme Court.

Third, institutional considerations, particularly at the Supreme Court, influence the justices’ decision-making process. When making decisions, the Court must consider the effect of a particular ruling on its institutional legitimacy and on principles of federalism, separation of powers, and the degree of deference afforded to the coordinate branches. As such, in many cases, ideology cannot – and is not – the sole or even primary factor underlying the Court’s decisions.

Fourth, many decisions, including those that involve divisive social issues, result from differences among judges regarding interpretive philosophies and the value they place on precedent. On the Supreme Court, for example, some justices embrace originalism, which broadly speaking (and without going into depth about originalism’s variations) means that the Constitution’s words should be interpreted based on the Founders’ understanding of those words when the Constitution was ratified. Other justices embrace an approach known as living constitutionalism, which generally states that the meaning given to the Constitution’s provisions may change based on contemporary norms, circumstances, or problems that did not exist when the Constitution was ratified. Likewise, judges assign different values to precedent based in part on the recency of a particular precedent, the degree to which they adhere to stare decisis, and their view of whether a prior case was rightly decided.

Fifth, the composition of a court is likely to have a substantial impact on the outcomes judges reach. Not surprisingly, a court composed of mostly liberal judges is likely to issue more progressive decisions, while a mostly conservative court is likely to issue more conservative decisions. Often, however, the dynamics are more complicated. Judges may, for example, issue narrow decisions in particular cases to ensure a majority or to placate judges who might otherwise issue highly critical dissenting opinions. The point is that judicial decision-making results not from strictly legal considerations, but from the political dynamics among a court’s members.

Ultimately, therefore, the claim that judges base decisions on ideological considerations is overly simplistic and largely inaccurate. The truth is that judges make decisions based on many factors and, in the vast majority of cases, particular outcomes cannot be attributed solely or even significantly to ideology. Simply put, courts are not as political as some might believe.

November 17, 2019 in Appellate Advocacy, Appellate Justice, Appellate Practice, Federal Appeals Courts, Legal Profession, United States Supreme Court | Permalink | Comments (0)

Friday, November 15, 2019

Appellate Advocacy Blog Weekly Roundup November 15, 2019

WeeklyRoundupGraphic

Each week, the Appellate Advocacy Blog Weekly Roundup presents a few tidbits of news and Twitter posts from the past week concerning appellate advocacy. As always, if you see something during the week that you think we should be sure to include, feel free to send a quick note to either (1) Dan Real at DReal@Creighton.edu or on Twitter (@Daniel_L_Real) or (2) Catharine Du Bois at DuBoisLegalWriting@gmail.com or on Twitter @CLDLegalWriting

US Supreme Court Opinions and News:

This week, the Supreme Court heard arguments in a case involving a lawsuit filed by the parents of a Mexican teenager shot over the border by an American agent.  In 2010, Border Patrol Agent Jesus Mesa Jr. shot into Mexico, struck 15-year-old Sergio Adrian Hernandez Guereca, and killed him.  U.S. officials chose not to prosecute Mesa, and Guereca's parents attempted to file suit against him.  Federal judges dismissed the claim, which has prompted appeals to the Supreme Court.  This is the second time the case has appeared before the Court.  At issue in this appeal is the continuing viability a Bivens action, allowing plaintiffs to sue federal officials for breaking constitutional law.

More information:

This week, the Supreme Court heard arguments in an appeal that will determine whether President Donald Trump can cancel President Barack Obama's Deferred Action for Childhood Arrivals (DACA) program.  The arguments suggested that the Court will likely be ideologically divided in the case, with the five more conservative members seeming likely to support the Trump administration's desire to terminate the program.

More information:

Federal Appellate Court Opinions and News:

This week, the Fifth Circuit Court of Appeals issued an order in an appeal involving Texas death row inmate Patrick Henry Murphy. The Southern District of Texas granted a motion to stay the execution, and the Texas Department of Criminal Justice appealed, seeking to vacate the stay order.  The Fifth Circuit denied the requested relief, leaving the stay in place.

Appellate Practice Tips and Techniques:

Jason Steed, an appellate lawyer in Texas, shared legal writing tips from Dallas Court of Appeals Justice Whitehill this week, in a twitter thread HERE.

Appellate Job Postings:

The United States Court of Appeals for the D.C. Circuit is hiring a staff attorney.  Posting HERE.

The Texas Fourteenth Court of Appeals is hiring a staff attorney.  Posting HERE.

 

November 15, 2019 | Permalink | Comments (0)

Thursday, November 14, 2019

"Digital Public Commentary": A New Rhetoric for Lawyers?

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

After a hiatus, the Rhaw Bar is back to explore lawyer digital public commentary and raise some initial questions about lawyers engaging in digital rhetoric.

In Formal Ethics Opinion No. 480, issued in the Spring of 2018, the American Bar Association Standing Committee on Ethics and Professional Responsibility considered for the first time how a blogging lawyer must treat the confidentiality of client information. In deciding that the confidentiality rules applied to internet blogging, the Committee identified a category of lawyer speech it called “communicat[ion] about legal topics in public commentary.” The Committee recognized that while lawyers have historically “comment[ed] on legal topics in various formats” through “educational programs” and “articles and chapters in traditional print media such as magazines, treatises, law firm white papers, and law reviews,” the “newest format [for comments] is online publications such as blogs, listserves [sic], online articles, website posting, and brief online statements such as microblogs (such as Twitter®).” The Committee said that “[o]nline public commentary provides a way to share knowledge, opinions, experiences, and news.” 

Although the point of this opinion was not necessarily to identify a new cateogry of legal writing but instead to warn lawyers that their obligations of confidentiality extend to their non-client-centered public speech, the opinion has the secondary effect of raising two questions.  First, is a lawyer's digital public commentary a unique genre of legal writing?  And, if it is, what are the rhetorical possibilities for and problems of this form?

I'm going to make the case that writing public commentary--whether digital or not--is a unique genre of legal writing.  First, writing public commentary to influence thought and discourse on legal topics is decidedly less client-centered than other, more traditional forms of legal writing.  Writing public commentary is more connected to the lawyer's role as a "public citizen with a special responsibility for justice" than it is to the lawyer's role as a representative of clients.  Both of these roles are identified (along with others) in the Preamble to the Model Rules of Professional Conduct (most if not all states have adopted the Preamble's language). 

Second, the idea of the lawyer speaking publicly is implicit in what the Preamble says about the lawyer-as-citizen role.  The Preamble directs that “a lawyer should cultivate knowledge of the law beyond its use for clients, employ that knowledge in reform of the law[,] and work to strengthen legal education.” The Preamble further offers that a lawyer should “further the public’s understanding of and confidence in the rule of law and the justice system because legal institutions in a constitutional democracy depend on popular participation and support to maintain their authority.”  Both of these activities--cultivating knowledge and furthering public understanding--require communication with the public, not exclusively with courts, clients, or opposing parties in private and semi-private transactions. And if the public is now digital, it makes sense for the lawyer to communicate with that audience digitally.

So, I think the Committee was right to expressly identify "public commentary" as something different from the other forms of writing lawyers do.  And although lawyers making public commentary is an old phenomenon, the Committee rightly recognized that the "digital" is new.  

The digital information and arguments lawyers present to the public about legal matters of collective concern are a form of  "digital rhetoric," rhetoric that is electronic or computerized.  While digital rhetoric has characteristics in common with other forms of rhetoric, it also has some unique features.  Two of those features are circulation and fragmentation. 

Circulation refers to the way a message moves from audience to audience across space and time.  The rapid velocity at which messages circulate is perhaps the defining characteristic of the digital environment. In the past, messages had to be shared face-to-face or through print documents physically sent from one person to another. (Think of the idea of the "circulation" of a newspaper, referring to the measurement of how many readers a newspaper had.)  Message circulation increased and accelerated with television and radio.  But, even then, gatekeepers controlled the amount, speed, and movement of information via those media.  With the internet, however, both the speed and range of message circulation has increased again.  That is, a message can find itself instantly anywhere in the world, be subject to minimal gatekeeping (at least in free societies), be seen by limitless audiences, and be responded to by those audiences instantaneously.

Fragmentation means that a digital message can be broken into smaller pieces and those fragments can be reused, repurposed, or reformed in other digital messages.  That is, when composing messages in and for internet spaces, the resources of invention come not only from one's own internal thoughts but also from mixing and remixing what can be found in other messages already in circulation.  In the digital world, fragmentation is more common and more frequent than with messages that appear in print, for example.  This means that online speakers and audiences have more resources for thought and argument than in other contexts but at the same time may face more difficulty in making sense of messages that have been mashed and mixed in ways not originally anticipated.

So, if lawyers’ online public commentary is both a unique genre of legal writing and a digital rhetoric, what questions might we ask about the challenges and opportunities digital legal commentary presents?  

First, we might ask questions about the resources available to lawyers in the digital space.  What methods and sources, unique to digital rhetoric, are available to lawyers who want to be commentators in digital spaces?   Are/should any of those methods be ethically off limits to lawyers?  Conversely,  how might we adapt traditional rhetorical resources and approaches to apply to digital public commentary about the law?  For example, how do our traditional ideas about effective organization, style, and delivery apply in the digital space?  

Second, we might ask questions about the quality of lawyers’ messages and the risks posed by message fragmentation and rapid circulation.  What concerns for accuracy and influence of the lawyer's message do rapid circulation and fragmentation present for the lawyer?  Is misuse and misinterpretation of message fragments inevitable?   If a lawyer's commentary on a legal issue is broken apart and is re-used in ways the lawyer did not foresee, what are the ethical and rhetorical implications for the lawyer?  How do lawyers influence the limitless audiences that may encounter all or fragments of the lawyer's message?

Finally, we might ask questions about the a lawyers' duties in the context of digital rhetoric.  If lawyers are supposed to be public-citizens educating the public on legal issues, do lawyers have an obligation, not just an opportunity, to use digital rhetoric for this purpose? Must lawyers be rhetorically "competent" in digital public commentary, and, if so, what does fulfilling that duty look like?  

These questions demonstrate that the digital space presents new challenges and opportunities for lawyers as well as new ways of thinking about what what forms of persuasion are effective and appropriate for legal commentary in a digital world. These questions are worth thinking (and writing) about as digital communication spaces become even more prevalent and lawyers participate in them more.  Your thoughts are welcome in the comments below.

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

 

November 14, 2019 in Legal Ethics, Legal Profession, Legal Writing, Rhetoric, Web/Tech | Permalink | Comments (0)

Monday, November 11, 2019

Advocating For Veterans

Today is Veterans Day, and a couple of times this weekend I was reminded of the sacrificial service by veterans to our country. First, I spent the weekend in beautiful Gulfport, Florida learning from and connecting with practitioners, judges, and professors at the Reimagining Advocacy Conference hosted by Stetson University. The Keynote Speaker Friday night was Stacey-Rae Simcox, Professor of Law and Director of Stetson University College of Law’s Veterans Law Institute and Veterans Advocacy Clinic. Professor Simcox, a veteran herself, spoke movingly about her work with veterans in Stetson’s Veterans Advocacy Clinic and the need for attorneys to represent veterans in their benefit appeals. Second, I stayed in the Madeira Beach Courtyard Marriott, and Saturday morning as the sun rose, the VFW next door piped patriotic music into the parking lot. As I sat on the balcony listening to the Marines’ Hymn, I decided to dedicate today’s posts to veterans, the legal advocacy challenges they face, and the ways that attorneys can help.

Professor Simcox’s remarks focused on the intersection of Veterans Law and Advocacy. In keeping with the conference theme of Reimagining Advocacy, Professor Simcox stated that the future of advocacy for veterans was collaboration. Professor Simcox helped establish a medical-legal partnership between Stetson University College of Law and the University of South Florida’s Morsani College of Medicine. Partnerships like these help to treat the whole person.

Additionally, Professor Simcox is president and one of the founding members of the National Law School Veterans Clinic Consortium. This consortium allows clinics to share resources and referrals to support each other and offer broader service to veterans around the nation. According to a press release: “NLSVCC members work together on advocacy efforts, including joint amicus briefs to encourage systemic change benefitting veterans; host national conferences to train others how to provide pro bono legal services to veterans; and share best practices among members and community partners such as the VA [and] the ABA.”

As to the specifics of representing veterans in appeals, Professor Simcox pointed out that veterans are only allowed to hire an attorney once their benefit application is denied. Denial of benefit appeals beyond the VA have only been allowed for about 30 years, so it’s still a relatively new practice area. There is a steep learning curve for practitioners looking to represent veterans before the VA. See this ABA Article on Attorneys Representing Veterans. But there is absolutely a need. According to Professor Simcox, 22% of veterans are still pro se in their appeals to the VA.


If you would like to get more involved in helping veterans with their legal needs, the ABA Veterans Legal Service Initiative has compiled resources and volunteer opportunities here. The ABA also has resources for veterans and their families and caregivers on that same page. You can also donate to support the National Law School Veterans Clinic Consortium here. A list of all of the law schools with Veterans Clinics can be found here. If your alma mater has a Veterans Law Clinic, why not designate a gift to that clinic the next time you are contacted for a donation? For those who teach in law schools with veterans clinics, encourage your students to take those clinics.

Finally on this Veterans Day, I want to thank the many veterans I know and respect for their service, including my many veteran students and former students. Also, Professor Ann Ching, one of my former colleagues at Pepperdine and who now teaches at Arizona State University, expanded my awareness of this area of law with her work as pro bono counsel for veterans before the Department of Veterans Affairs and the Court of Appeals for Veterans Claims. As a former JAG officer, Professor Ching serves as an incredible mentor to veteran students in addition to her advocacy for veterans.

While only some of us can take on a veteran appeal, we all can honor veterans’ service and find ways to make sure that our country fulfills the promises we have made to them.

November 11, 2019 in Appellate Advocacy, Federal Appeals Courts, Law School | Permalink | Comments (0)

Sunday, November 10, 2019

Using Innovative Tools Instead of Letting Them Use You

Angry-Robot-by-schwegel-FWhVbz98rhci-1160x772“Computers are useless. They can only give you answers.”
― Pablo Picasso

If you follow my posts or talks lately, you know that I love technology and innovation. The clients we serve, the people who need legal help and can't get it, and the tightening legal market can all benefit from new technologies and new ways of approaching problems. I won't belabor the point. Survey after study have already done so. 

But like every love, this one comes with challenges. Sometimes I spend more time learning a new tech tool or system than I ever save using it. Sometimes I never save any time at all because, after hours exploring a new app--I realize it's hogwash. Not everything needs fixing and often the simplest and oldest methods are the best ones.

Yet for every failure or frustration, I find an incredible tool that works wonders. And with the mountain of challenges and opportunities we lawyers and law students are staring down, we can't afford to ignore those tools. That goes doubly for us law professors looking to empower the next generation of attorneys. 

But in training lawyers how to better use technology in their practice, I often run up against some version of the same problem: Technophobia. Rather than engage with new innovations and figure out how they can be useful, some folks reject them on principle. Maybe they had one of those failures or frustrations I mentioned earlier. Maybe they think the tool or system looks too complicated, so they fall into a cognitive bias like overkill backfire (a bias I'm researching for an article, which causes people to reject more complicated-sounding solutions even when they would work better). 

I get it: Innovating is tough. There is no easy switch to flip. It's about changing your perspective. Becoming more resourceful. Opening your mind up to new roles, new platforms, and new ways of lawyering. From how you get business to how you write briefs. It's not that you have to go find some fancy app for every single thing you do. But if you want to thrive these days, you do need to seek ways to enhance and expand your skills. And to do that, you have to dig deep and engage.  

Writing bots provide a nice case study on this point. A slew of law professors emailed me in recent weeks asking how they can use writing applications like BriefCatch and Grammarly to help law students fill their writing style gaps. I and many others have encouraged profs to try incorporating new technologies like these in their classrooms. Not only do they offer new perspectives for students and great meta-learning opportunities--but they help students pick up basic tech skills. Given that legal employers now rate tech competence as more important than knowledge of the law, that seems a good approach. 

Some professors are conflicted, though. Like the rest of us, they know their law students need help with writing mechanics. But handing off training to a robot is scary. What if it teaches them the wrong things? What if the student spends money on the tool and it ends up useless? A guest recently offered similar thoughts in a post on this blog. All great questions and worries to raise. 

But concerns like these can easily lead to the overkill backfire bias I mentioned earlier. It can feel easier to discount or outright dismiss new tools rather than engage deeply with them and see what useful things they offer. I think a lot of it comes down to the difference between using tools and letting them use you. If you expect a new app or method to revolutionize your practice without any input from you--bad news bears. It isn't happening. Tools are tools. Most of them can do something useful (or at least teach you something). But you have to work at it. 

This was my approach to incorporating writing bots in my own classes. I taught using Microsoft Word's built-in grammar and style features for years (I still teach Microsoft Word basics in my writing classes--check out this article for some ideas of what I cover).  I also used other applications to help students with their writing mechanics--like Hemingway App and Writer's Diet. But as writing apps became more sophisticated, I tried them out. And I found tons of new tools that opened up exciting teaching opportunities for my law students and the lawyers I work with. 

For example, with tools like Pro Writing Aid, my students could see the length of their sentences color-coded--giving them a visual insight into their writing that other tools can't. Tools like PWA can also do cool things like highlight the parts of speech for students, helping them home in on the mechanics visually. 

Then you have legal-specific writing tools, like BriefCatch. For the first time, we had writing apps made for legal writing. Tools that could help law students and lawyers get better at spotting many of the same style improvements that we law professors encouraged--like cutting legalese and jargon. 

At first blush, you might wonder whether a tool like BriefCatch is worth it. After all, even Word has several helpful style checks to improve your writing. And some other free tools can help, too. But BriefCatch is a great example of why digging deep into new innovations is worth it. It turned out there was a lot there for my law students (and me for that matter). 

To give you a concrete example, I wrote an amicus brief a few weeks ago. After I gave it a good polish on my own, I ran Word's grammar and style checker. As always, I had all the advanced style and proofing recommendations checked, like these: 

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Word gave me thirteen style recommendations. Not one of them ended up being all that helpful. A few could have been good teaching opportunities--they suggested a comma after a sentence starting with a conjunction. I would have pointed out to students that most good legal writers wouldn't put a comma there, but some folks disagree.

What's frustrating (and always frustrated me when I used Word's style function as a teaching tool in the past), is that tons more of the recommendations are plain wrong for legal writers. With all of Word's features checked, you end up with pages of highlights that are wrong for legal writing. Often in citations, like these: 

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BriefCatch, meanwhile, gave me 24 suggestions with highlights. Not one of those mistakes Word made was replicated by BriefCatch.

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Many of these would have made for great teaching moments. For example, the below suggestion gave me several options for rewriting some wordy prose. Word didn't flag any suggestion for the same phrase. Giving students options helps make the writing process less overwhelming while still allowing them to self-direct their learning. I do this all the time with my own lessons, and here BriefCatch is doing it for me: 

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Other BriefCatch suggestions included: 

  • Several recommendations for using a better verb (something that Word says it can help with, but rarely does and did not do in this document). Each of these came with options--a great self-directed learning opportunity for students. I used most of these recommendations to come up with better verbs--sometimes on my own, sometimes using the suggestions. 
  • Bluebooking issues, including some commas I forgot to italicize. I love this feature, especially for 1Ls trying to build good citation habits. Obviously Word didn't catch any of these. 
  • Multiple passive voice constructions that Word did not catch (despite having that feature enabled). Each would have been a fantastic teaching opportunity. A few were passive on purpose to deemphasize the actor; a few worked better in the active voice. 
  • Many suggestions for cutting legalese and jargon. Not a one was caught by Word.  
  • The report feature gave me a simple snapshot of my sentence lengths as well as some words I overused (I know I need to stop saying "indeed" so much!). 
  • A handful of other suggestions for tightening up my prose, most of which I used after thinking about them for a while. 

Oh, also, not a bad score. I felt a bit empowered (sorry Word--learn how to praise me better): 

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I use BriefCatch for this demonstration because I've found it to offer the most writing-style teaching moments for my law students (no, I haven't gotten paid for talking about BriefCatch or the dozens of other tools and apps I've written articles about). And my point is not to cast shame on Word. Nor would I ever discourage folks from questioning whether a new tool or gadget is worth its weight. Not only in money, but also in time. 

But exploring new tools and innovations and looking hard for what they might offer you is worth it. 

Joe Regalia is a law professor at the University of Nevada, Las Vegas, William S. Boyd School of Law and regularly leads workshops training legal writing and technology. The views he expresses here are solely his own and not intended to be legal advice. Check out his other articles and writing tips here

November 10, 2019 | Permalink | Comments (0)

Friday, November 8, 2019

The Weekly Roundup

 

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Each week, the Appellate Advocacy Blog Weekly Roundup presents a few tidbits of news and Twitter posts from the past week concerning appellate advocacy. As always, if you see something during the week that you think we should be sure to include, feel free to send a quick note to either (1) Dan Real at DReal@Creighton.edu or on Twitter @Daniel_L_Real or (2) Catharine Du Bois at DuBoisLegalWriting@gmail.com or on Twitter @CLDLegalWriting

 

US Supreme Court Opinions and News:

  • Next Tuesday, November 12, the court will hear arguments on the validity of President Trump’s decision to terminate the DACA program. More on the case here and a summary of the arguments by Amy Howe (SCOTUS Blog) here.
  • The court has released the January calendar, which begins on January 13, 2020.
  • A new book about a Supreme Court Justice has been released; this one about Justice Clarence Thomas. Author Corey Robin answers questions here about “The Enigma of Clarence Thomas” (Metropolitan Books, 2019).

Federal Appellate Court Opinions and News:

  • The Second Circuit ruled that Donald Trump's accounting firm must turn over the returns to Manhattan District Attorney. The three-judge panel rejected Trump’s argument that he is immune as president from criminal investigation while in the White House. Coverage by NPR and Washington Post.
  • An Alabama US District Court has blocked Alabama’s abortion law. The law was a near-total abortion ban that would have taken affect next month. The order calls the law clearly unconstitutional. AP News report.

Final Tidbit

The Massachusetts Appeals Court rules that, although improper, appealing to a jury’s “reptile” brain is not enough for a mistrial.  Law360 article here.

November 8, 2019 in Appellate Advocacy, Appellate Practice, Current Affairs, Federal Appeals Courts, Legal Profession, Legal Writing, United States Supreme Court | Permalink | Comments (0)

Thursday, November 7, 2019

Humor in The Court

A recent study found over 9,000 instances of laughter in 6,864 United States Supreme Court arguments, from the years 1955 to 2017. There were 1.32 laughs per argument, but recent arguments showed that laughter has been increasing over time, with more than two thirds of the laughs coming from the Rehnquist and Roberts Courts.

It is a well known rule of thumb that oral advocates are generally taught to avoid humor in their arguments. The potential for offense is high and may not serve the interests of the client. So where is all this laughter coming from? From the justices of course. 

Leading in laugh-getting was Justice Scalia with his snark and sarcasm, followed by the "whimsical" Justice Breyer. Justices Roberts, Gorsuch, and Kagan fell in behind.

While the study calculated the instances of laughter, the more interesting part of the study ferreted out possible purposes and motives for the jokes. Some justices are self-deprecating, like Breyer and Kagan, but others used humor in a more calculated way. In transcripts from 2010-2017, researchers found that justices most often direct their comments to lawyers who are inexperienced or that seem to be losing. It may also be no surprise that humor is frequently directed toward advocates with whom the justices disagree.

As noted, oral advocates would rarely craft a humorous argument. Arguing in the Supreme Court is serious business and most clients would have little patience for a comedy routine that falls flat. But judging by these findings, it would serve advocates well to be ready for the one-liner or not-so-hidden barb. Being able to roll with some light-hearted punches could open a door to persuasion. 

 

 

November 7, 2019 in Appellate Advocacy | Permalink | Comments (0)

Wednesday, November 6, 2019

From Novices to Master Legal Writers

Much has been written about how people learn, including studies showing that people move from being novices to masters, passing through various stages along the way.[1]  When learning new skills, novices act with a “rigid adherence to taught rules or plans” and use “little discretionary judgment.”[2]  As they move toward expert and mastery status, they no longer need to strictly rely on “rules, guidelines or maxims.”[3] They have a “vision of what is possible,” they have an “intuitive grasp of situations based on deep, tacit understanding,” and they can improvise.[4] 

Moving from novice to master in any field at any skill typically requires a person to learn fundamentals before learning to manipulate or vary the fundamentals to become more effective at the skill.  For example, when students are taught to form letters at an early age, they are taught to draw the lines of the letters in a particular direction and to match model letters exactly.  Only after mastering the fundamentals of drawing letters do students begin to vary the precise models by adding personal touches that they think look better or flow better, yet still communicate the letters clearly.  Similarly, athletes first learn the fundamental skills of their sports and practice those fundamental skills extensively.  As these athletes practice and learn more about their sports and move toward mastery, they begin to improvise to perform the skills in unique ways that elevate the athletes’ performances to expert or master levels.  Varying the technique of performing a skill by someone who has mastered the skill is accepted and even admired when the person is performing at a top level.  If athletes are not performing effectively, though, coaches often insist that the athletes return to fundamentals to improve their games. 

Like students first learning to draw letters and athletes first learning the skills of their sports, law students and new lawyers must begin with fundamentals and work through the stages, from novice to master, when engaged in legal argument and writing.  Professors and lawyers working with these novices must exercise patience as they wait for these law students and lawyers to develop.  A common refrain from lawyers working with novice legal writers is that these novice writers do not write persuasively enough.  Perhaps this is because they are novices who have not mastered legal argument and writing sufficiently to improvise—to vary from the “taught plans or rules” and use their discretion.  They do not yet have a deep, tacit understanding of how far they can push their arguments beyond the existing law and how strongly they can tell the court how it should find or hold.  They are new to legal discourse; they do not know how bold or creative they can be.  They are like the children learning to draw letters who try to precisely follow the models of letters and do not dare to add an unnecessary flourish or variation.  They have not yet reached mastery. 

Frustrated by the work of novices, professors, lawyers, and judges sometimes criticize these writers for following formulas and not taking more license with their writing.  Novices even worry that their “formulaic” writing may be a problem.[5]  Legal writers are taught to use formulas, such as IRAC and CREAC,[6] to ensure that they provide the information necessary for a solid legal argument and analysis.  These formulas are used because they track a logical way to present information needed for legal arguments.[7]  Judges are looking for arguments that are supported by rules, explanations of those rules, and application to the facts involved in a case.   As these writers practice and learn more about writing legal arguments persuasively, they will become more adept at varying structures of their arguments.  They will learn when to depart from rigid adherence to taught rules when doing so will make their writing more persuasive.    

A suggestion for these novices and their professors and mentors is that the novices write a draft using IRAC or CREAC to ensure that they have included the necessary information.  Once a draft exists, the writer should then revise and edit the work to turn it from an accurate statement of the law and reasoning to a persuasive piece of advocacy.  This may involve deliberately altering the formulas employed.  For example, precedent case discussions might follow a rule as part of a rule explanation when the precedent case discussion is necessary to explain and interpret the rule.  On another point of law or argument, the precedent case discussion might follow the application of the rule to the case at issue.  Deciding to make this move says to the court that this is the rule, this is how the court should apply it to the facts, and the precedent case corroborates the argument being espoused.  This way guarantees that the court will not become distracted by a precedent case discussion when it comes before the argument involving the case at issue.  It also risks that the court might have wanted a fuller exposition of the law before the argument.  As the writer gains expertise and begins to master persuasive legal writing skills, he or she will become better at determining the best way to proceed in writing an argument, confidently moving away from rigidly following taught rules or plans when appropriate.   

Instructing the novice on the necessary parts of an argument and how to order the parts of an argument is valuable, as is emphasizing to the novice the importance of revising and editing.  Even though the novice will adhere to a formula initially, the novice will only improve as a writer if he or she is willing to experiment with revising to make arguments more compelling.   Novice writers tend to underestimate the value and necessity of revising and editing.  The best writers know that rarely if ever is the first draft the best draft.  Once a writer writes the parts necessary to make an argument, that writer should move the parts around, manipulate the language, and present the arguments in the best format to make the case to the court. 

So, to professors and supervising lawyers, expect to instruct students and new lawyers on how to make their writing more persuasive.  Expect to revise and edit their writing to show them exactly how to do this effectively.  Model the behavior you want to see in these novices.  And, with time, the arguments and the writing will be more persuasive as the writers move toward mastery.      

 

[1] See, e.g., Stuart E. Dreyfus, The Five Stage Model of Adult Skill Acquisition (June 1, 2004), https://www.bumc.bu.edu/facdev-medicine/files/2012/03/Dreyfus-skill-level.pdf.

[2] Raman K. Attri, 7 Models from Research Demystify Stages in Novice to Expert Transition (Nov. 18, 2017), https://www.speedtoproficiency.com/blog/stages-in-novice-to-expert-transition/.

[3] Id.

[4] Id.

[5] Mary Beth Beazley, A Practical Guide to Appellate Advocacy 97 (5th ed. 2019).

[6] IRAC: Issue, Rule, Analysis, Application, or Argument, and Conclusion.  CREAC: Conclusion, Rule, Explanation, Analysis, Application, or Argument, and Conclusion.

[7] See Beazley, supra note 5.

November 6, 2019 in Appellate Advocacy, Appellate Practice, Law School, Legal Profession, Legal Writing, Moot Court, Rhetoric | Permalink | Comments (1)

Tuesday, November 5, 2019

Conflicts that Catch the Court's Eye.

Daunier Les Gens de Justice

The last few years I have been unable to attend one of our state-wide appellate conferences because I have been working on appeals. It is a nice problem to have, but it means I am often a little late to the trough of knowledge and have to catch up with my peers through online resources.

One of the presentations I recently watched was by two Supreme Court practitioners on "The Art and Science of Seeking Certiorari." In that presentation, Daniel Geyser and Carl Cecere discuss what the high court is looking for when it reviews petitions.

We all know that one of the best indicators of a successful petition for writ of certiorari is the presence of a split in the circuits. Geyser and Cecere help by pointing out that not all conflicts are created equal, and that some characteristics are more important to the Court than others.

Specifically, they argue that the best conflicts are:

  1.     Fresh and timely, not stale;
  2.     Deep in nature, not shallow;
  3.     Squarely in conflict, not attenuated;
  4.     Balanced in the courts involved on each side of the split, not lopsided;
  5.     Real in the conflict, and not illusory; and,
  6.     Expressly in conflict, and not just implied.

This does not mean that your conflict will not catch the Court's eye if it does not meet all of these characteristics. But it does mean that when you present a conflict, you should address the issues above when they are present so you can more clearly define the importance of the conflict for your court of discretionary review.

Geyser and Cecere give several examples of how advocates make the strength of their conflicts apparent. Some put this information in the issue presented, some in their headers so that the table of contents "speaks" to the issue, and some in their summary of the argument.

The main lesson learned is that you should highlight the importance of your conflict early and often, and not just drop a footnote to a string of cases that disagree with each other. Wake up the Court with the importance of your conflict early on, and they are more likely to pay attention to the substance of your argument later.

(Image credit: A lithograph from Honore Daumier, Les Gens de Justice, 1845.)

 

November 5, 2019 in Appellate Advocacy, Appellate Practice, United States Supreme Court | Permalink | Comments (1)

Monday, November 4, 2019

Grammar: Gidgets and Gadgets Galore

This is a guest post by Joshua Aaron Jones, Visiting Assistant Clinical Professor, Indiana University Robert H. McKinney School of Law.

Attorneys have evolved their tools from paper and quill to digital buttons and data. What once was in our heads and desktop books (remember dictionaries, thesauri, Strunk and White?) now exist in 0's, 1's, and promises. The perfect brief is only a click away! Just buy "this" program - no wait, "that" app. It's in the cloud! The cloud! Fear not. The sky/cloud is not falling under the weight of new grammar check programs.

With all technology, the legal industry has a history of early alignment with the digital developers, without enough pause and consideration before adopting the snake oil offered. Of course, it's a no-brainer to adopt some innovations, such as solutions to logistical and clerical matters. However, the avalanche of apps that erode professional skill and judgment should be held at bay, lest we drive our credentials to extinction.

For sure, we needed some of the great developments of the last half-century. This author cannot imagine practice without a word processor. Manual typing - as in, actual typing on an analog typewriter - was a physical, laborious aggravation. If there has never been a study on the enormous time-savings offered by the electric typewriter and then word processor, please alert your nearest empirical jurist. These inventions vastly increased clerical efficiency. However, the act of typing is a logistical, lower-level skill, not a matter of professional judgment, such as analysis and writing, and to be clear, this piece is not an argument against efficiency. Most technologies have revolutionized our services for the better. Yet, the current wave of artificial intelligence lubes a slippery slope, and grammar check software is the black diamond among them. They promise to let you blather on with wild abandon, ignoring comma-splices, run-on sentences, and noun-verb disagreement. Passive voice in an attorney's writing may be ignored. Grammar check will fix it for you.

Wait, what? Our profession is rooted in educational rhetoric through writing and speech. We should be language ninjas. Students in the United States learn the litany of grammar rules before high school. Attorneys hone those skills over another seven years in college and law school. But we need grammar check software? Even if we allow that an attorney may be less than confident with independent and superior skill in the craft, why on Earth would we pay an extra premium for digital safeguards? Except for those who need added accommodations for disabilities, no attorney should pay for expensive grammar-check apps and subscriptions. It's all built into Microsoft Word.

An appellate lawyer, especially a solo attorney, should realize that they already have equivalent help in the apps they use every day - Microsoft grammar and spell check. I'm a Mac man, but I have to hand it to Microsoft's 2016 Office Suite. The updates to Word's grammar and spell check options rival all the other apps. Given that some of the new language apps cost hundreds of dollars a year, in addition to the very product that you use most of the day, while the exact same functions are sitting in the Options menu, it's no wonder new associates must bill 2000+ hours a year.

To access the proofing functions in Word, simply click on: File menu > Options > Proofing. From there, the sub-menu options are self-explanatory. For a walkthrough with screenshots, please visit my website. A writer can change their auto-correct options and select dozens of grammar check issues, including passive voice, colloquialisms, and personalization. You can even customize for "legal" styles. Table of contents? Table of authorities? Cross-refencing? It's already on your machine! One can add whatever may (but is not) missing; simply find a plugin or add-on. You - and your students, if you are a teacher - do not need to pay extra for anything. Rather, you need to learn Microsoft Office's full functionalities. Learn one Office app, and you are all set with the others.

Adobe, on the other hand, is not as robust for grammar and spell-check. Without the third-party add-on, MindGrammar, which only works with InCopy and InDesign, Adobe fans have only spell check. Yet, law practice needs the Adobe apps, especially Acrobat Pro, to fill the gaps that Microsoft opens - ease of Bate stamping, metadata removal, security, e-signing, and e-portal filing requirements. However, those necessary functions are more about logistics, graphics rendering, and universal accessibility, not the profession's core skill - writing. Few of the newcomer grammar apps offer these functions. None have managed to synthesize the best necessities from Microsoft and Adobe. Thus, the Adobe app suite is still is a wise investment, as a companion to Microsoft Office.

If you are the appellate lawyer who stares in awe-and-wonder at the style headings menu, becomes enraged at the baffling "add space" or "remove" space before/after paragraph, has no idea that there are increase/decrease indent buttons, and didn't know there is an options menu, dig deep, fellow jurist. Click, click, click. Exploration is the fastest route to proficiency. You cannot damage the apps. If Microsoft or Adobe thought you could destroy their programs (which implies a violation of the terms of service), they would hide the function. At the very least, see the Microsoft website or YouTube, both of which have hundreds, if not thousands, of tutorials on the various "hidden" features that illuminate your hard-bound copy of Shepard's Citator this very moment.

I do not suggest that we should ignore the benefits of apps, such as WordRake (Suffolk's new darling), BriefCatch (cozy at Oregon), Grammarly (anyone?), or the dozen other grammar/spell-check options available - some free, some hundreds of dollars a year, and all in a crowd of broad quality. It is unfortunate that k-12 and undergraduate shortcomings force law schools to remediate students' basic language and grammar skills. However, if the academy continues to accommodate the current, failing, data-intensive model of American education, we will always see 1L's who are ill-equipped to maneuver law school writing. Thus, these apps add value to the classroom, but post- juris doctor, surely attorneys have been well-remediated. Attorneys see the shiny new objects flash ads on our social media, and we click, buy, and send grammar skills to the trash folder.

As Occam theorized, "Entities should not be multiplied." We assume that the legal industry needs greater technological innovation. The "new" grammar apps offer nothing towards greater efficiency; they merely muddy the waters and obscure what's already there. Get back to basics, and throttle into the future.

Now, where are my Westlaw CD-ROMs? I need to finish this research so I can dictate a letter for my secretary to type-up in Word Perfect and email to opposing counsel via our office AOL email address on the personal computer? If that gobblasted Gen-Z intern is on my dial-up modem SpaceBooking again, she'll just have to fax it.

Harsh over-exaggeration? A little bit. Truth? A little bit. The one thing that has remained the same, as all those technologies have fallen aside - Microsoft Office. Don't waste your money. You already have the solutions.

Neither Microsoft, Adobe, Suffolk, University of Oregon, or any attorneys who lack a sense of humor have endorsed this article.

November 4, 2019 | Permalink | Comments (0)

Saturday, November 2, 2019

Kahler v. Kansas – Should States Be Permitted to Abolish the Insanity Defense?

On October 7, 2019, the Supreme Court heard oral arguments in Kahler v. Kansas, where the Court will consider whether the Eighth and Fourteenth Amendments permit states to abolish the insanity defense. Currently, Kansas does not allow defendants to plead insanity; instead, a defendant may argue that a mental illness negated the mens rea element of a crime.[1]

By way of background, forty-six states permit defendants to plead insanity as a defense. Only four states – Kansas, Montana, Idaho, and Utah – have abolished the defense.[2] The legal standard for proving insanity, however, varies depending on the state within which the crime was committed. Some states apply the M’Naghten rule, which requires a defendant to demonstrate that, due to mental illness or defect, the defendant did not appreciate the wrongfulness of the conduct at issue or understand that the conduct constituted a crime.[3] Other states have adopted the Model Penal Code’s standard, which states that a defendant with a diagnosed mental illness is absolved of criminal responsibility if the defendant either failed to understand the criminality of his or her actions or, due to such illness, was unable to act within the confines of the law.[4] A few states have adopted the irresistible impulse test, which states that a defendant is absolved of criminal responsibility if the defendant was unable to control his or her actions, even if the defendant knew that such actions constituted a crime.[5] Finally, at least one state has adopted the Durham test, which absolves a defendant of culpability if the crime was considered to be the product of mental illness.[6]

Importantly, however, regardless of the legal standard that is adopted in a particular jurisdiction, the insanity defense is rarely used and, in most instances, is not successful. Indeed, some studies report that defendants plead insanity in one-percent of felony cases and are only successful in approximately twenty-five percent of those cases.[7] The reason for such a low success rate is arguably due, at least in part, to the fact that it is extremely difficult for defendants to demonstrate that they did not know the difference between right and wrong (i.e., that their actions were criminal), that they could not control their actions, or that their actions were exclusively the product of mental illness. Put differently, a defendant may suffer from a serious mental, psychological, or cognitive impairment, but if the defendant nonetheless knew that a particular action was a crime, those impairments, regardless of their severity, will not preclude a finding of guilt. Not surprisingly, therefore, prisons throughout the United States are occupied by many prisoners who suffer from diagnosed mental illnesses.[8] Additionally, even where a defendant is found not guilty by reason of insanity, the result is often worse than the punishment that a defendant would have faced upon conviction. In New York, for example, an individual found not guilty by reason of insanity may spend years in a psychiatric institution and, in some instances, for a period of time that exceeds the maximum sentence of imprisonment to which the defendant may have been subject if convicted.[9]

This is not to say, of course, that the standards used to prove insanity are without justification. Arguably, the law should not allow defendants to claim that having a mental illness entirely absolves them of culpability and punishment for criminal conduct. Doing so would allow scores of defendants to escape responsibility for culpable criminal behavior. And such an approach would likely stigmatize the mentally ill and perpetuate the empirically disproven belief that individuals with mental illnesses are more likely to commit crimes.[10] It is to say, however, that the issue before the Supreme Court in Kahler – whether the Eighth and Fourteenth Amendments prohibit states from abolishing the insanity defense – will not consider the broader problem with the insanity defense, namely, that the M’Naghten, irresistible impulse, and Model Penal Code standards make it difficult, if not impossible, to prove insanity and, in so doing, leave defendants with mental, psychological, and cognitive impairments without meaningful legal protections at the guilt and sentencing phases.

Put differently, defendants with severe mental illnesses who fail to satisfy the insanity defense’s exacting standard are often subject to lengthy periods of incarceration that are similar to defendants who have no history of mental illness. Also, since the insanity defense is rarely used and, when used, is not likely to succeed, the issue in Kahler – whether a state may abolish the insanity defense – is, as a practical matter, inconsequential. Moreover, the Court’s decision will almost certainly not address the broader problems with the criminal justice system, namely, how it considers mental illness in culpability determinations, how it treats mentally ill prisoners once incarcerated, and how it assists mentally ill prisoners to reintegrate into the community upon release. The manner in which states confronts these issues will directly impact the criminal justice system’s efficacy, particularly regarding recidivism rates.

Ultimately, therefore, the answers to these difficult issues will likely require resolution through legislation at the state and federal level. And allowing states to adopt alternative approaches to adjudicating insanity – as Kansas has done – may reflect a productive starting point. Other proposals may involve embracing a middle ground in which courts recognize that defendants with diagnosed mental illnesses, although culpable in some, if not many, circumstances nonetheless warrant reduced sentences that incorporate a rehabilitative component and an increased focus on facilitating a successful re-entry into the community upon release. Another approach would be to recognize, as some states already do, that the concept of mens rea includes a moral, not merely a volitional component.  This would require proof that the defendant intended to commit a criminal act, that the defendant understood that the act was morally wrong, and that the defendant consciously, and without mental, psychological, or cognitive impairment, chose to commit the act.  This will lead to an understanding of mens rea that includes moral culpability within the definition of legal culpability. In any event, do not expect Kahler to resolve much, if anything, regarding the insanity defense, even though the defense is long overdue for principled reforms.

[1] See Amy Howe, Argument Analysis: Justices Open New Term With Questions and Concerns About Insanity Defense (Oct. 7, 2019), available at: https://www.scotusblog.com/2019/10/argument-analysis-justices-open-new-term-with-questions-and-concerns-about-insanity-defense/.

[2] See id.

[3] See The Insanity Defense Among the States, available at: https://criminallaw.uslegal.com/defense-of-insanity/the-insanity-defense-among-the-states/.

[4] See id.

[5] See id.

[6] See id.

[7] See Christopher Liberati-Constant and Sheila E. Shea, You’d Have to Be Crazy to Plead Insanity: How an Acquittal Can Lead to Lifetime Confinement, available at: https://www.nysba.org/Journal/2019/May/‘You_Have_to_Be_Crazy_to_Plead_Insanity’/ (“While research varies widely, some studies conclude that the defense succeeds in only one out of four cases, while others have found a success rate as low as one in 1,000”).

[8] See Inside the Massive Jail that Doubles As Chicago’s Largest Mental Health Facility (June 2016), available at: https://www.vera.org/the-human-toll-of-jail/inside-the-massive-jail-that-doubles-as-chicagos-largest-mental-health-facility/the-burden-of-mental-illness-behind-bars.

[9] See Mac McClelland When ‘Not Guilty’ Is a Life Sentence, available at: https://www.nytimes.com/2017/09/27/magazine/when-not-guilty-is-a-life-sentence.html.

[10] Ghiasi, N. & Singh, J. (2019). Psychiatric Illness and Criminality. Retrieved from: https://www.ncbi.nlm.nih.gov/books/NBK537064/.

November 2, 2019 in Appellate Advocacy, Appellate Justice, Appellate Practice, Federal Appeals Courts, United States Supreme Court | Permalink | Comments (0)

AI and Free Legal Research, Annotated

   Fall is in the air (well, maybe not here in Los Angeles), and that means we are in the part of the 1L year when many law students across the country are doing their first in-depth legal research.  Thus, we are also at the time when many writing professors, like me, are looking for a great list of new, preferably free, AI research tools.  Our students see plenty of services affiliated with the legacy databases, but too many do not learn much about the world beyond Lexis and Westlaw, except possibly GoogleScholar.  As new lawyers, especially if they start in small or solo practices, they will need access to free tools. 

   Similarly, appellate practitioners with firm or agency affiliations might have access to Casetext, which will scan briefs and suggest missing case authority, Ravel (now part of Lexis), which uses AI to create “case law maps,” Fastcase, and more.   Some solo practitioners, however, cannot afford even the lower-priced Casetext, and need free AI assistance.  See generally Tom Goldstein, SCOTUSblog is partnering with Casetext, SCOTUSblog (Feb. 28, 2019, 12:00 PM), partnering-with-casetext (noting benefits and low cost of Casetext).

   There are many excellent lists and comparisons of fee-based (and even some free) AI programs for law firms, far beyond the early comparisons of document scanners for discovery.  See, e.g., Jan Bissett and Margi Heinen, EVOLVING RESEARCH:  Habits, Skills, and Technology, 98 Mich. Bar. J. 41 (May 2019); https://www.lawsitesblog.com.  For free AI services, however, some excellent explanations are in the amicus briefs in Georgia v. Public.Resource.org, Inc., 906 F.3d 1229 (11th Cir. 2018), cert. granted, __ U.S. __, 139 S. Ct. 2746 (June 24, 2019). 

   In Georgia v. Public.Resource.org, the Eleventh Circuit ruled the state-created annotations to Georgia’s statutes are not protected by copyright law, and reversed summary judgment for the State on its copyright claims against a public interest provider of free legal content, Public.Resource.org.  According to the Eleventh Circuit, the annotations to the Code were “created by Georgia’s legislators in the exercise of their legislative authority,” and therefore “the people are the ultimate authors of the annotations.”  Id. at 1233; see Jan Wolfe, U.S. High Court to Rule on Scope of Copyright for Legal Codes, June 24, 2019, Wolfe.  The United States Supreme Court will hear argument in Georgia v. Public.Resource.org in December, and could rule that no state can copyright annotated statutes, opening the door for more AI content creators to provide annotated statutes online. 

   Many of the amicus briefs in support of Respondent Public.Resource.org explain the need for free access to statutes and other legal documents among law students, scholars, solo attorneys, and visually impaired counsel.  See https://www.scotusblog.com/case-files/cases/georgia-v-public-resource-org-inc/.  A great many of the amici are, themselves, providers of free AI research, and their briefs give the excellent lists of resources I mentioned. 

   For example, in their brief supporting a grant of certiorari, Next-Generation Legal Research Platforms and Databases describe themselves as:  “[N]onprofit and for-profit creators and developers of next-generation legal research platforms that provide innovative tools and services for the legal community and the public. These tools serve the public interest by dramatically transforming the ways in which the public, courts, law firms, and lawyers access, understand, and utilize the law.”  Next-Gen. Lgl. Res. Platforms, ACB.  In addition to the for-profit AI services like Ravel and Casetext, the brief’s amici include these three providers:

(1)  “Amicus Judicata ‘maps the legal genome’ and provides research and analytic tools to turn unstructured case law into structured and easily digestible data. Judicata’s color-mapping research tool fundamentally transforms how people interact with the law: it increases reading comprehension and speed, illuminates the connections among cases, and makes the law more accessible to both lawyers and nonlawyers.”  Judicata has free and subscription-based services.

(2) “Amicus Free Law Project is a nonprofit organization seeking to create a more just legal system. To accomplish that goal, Free Law Project provides free, public, and permanent access to primary legal materials on the Internet for educational, charitable, and scientific purposes. Its work empowers citizens to understand the laws that govern them by creating an open ecosystem for legal materials and research. Free Law Project also supports academic research by developing, implementing, and providing public access to technologies useful for research.”

(3) “Amicus OpenGov Foundation produces cutting-edge civic software used by elected officials and citizens in governments across the United States. The Foundation seeks to ensure that laws are current, accessible, and adaptable. Everything the Foundation creates is free and open source, allowing the public to use, contribute to, and benefit from its work. Its software, coalition-building activities, and events are designed to change the culture of government and boost collaboration between governments and communities.”

   I plan to share these three resources with my students, and to encourage them to watch Georgia v. Public.Resource.org and stay abreast of other developing AI platforms.  I hope these sources are helpful to you as well.  Happy research, everyone!

November 2, 2019 in Appellate Justice, Appellate Practice, Law School, Legal Profession, Legal Writing, United States Supreme Court, Web/Tech, Weblogs | Permalink | Comments (0)