Appellate Advocacy Blog

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

Wednesday, January 29, 2020

Preserving Evidence for the Record on Appeal

    The record on appeal includes “original papers and exhibits filed in the district court,” a “transcript of the proceedings” from the district court, and a “certified copy of the docket entries.”1 Appellate courts across the country have similar rules. The trial lawyer works hard to present evidence to support the client’s case. The lawyer also works hard to create and present effective demonstrative evidence. Charts printed on large boards may be used to display data and other information supporting witness testimony. Physical models may represent a forest or the seabed and be used by an expert to explain testimony about run off or contamination. And more and more often, in place of these physical charts and models, electronic presentations may be used to demonstrate this information. A witness may testify while reviewing a video of a surgery or other procedure. Models may be shown electronically, the advantage being that the models can be quickly modified or added to as a person is testifying to demonstrate the testimony. These are all effective ways of delivering information to the jury and the court.
    One of the challenges for the lawyer after trying a case with demonstrative evidence includes ensuring that these exhibits, essential to the case at trial, are accessible in forms such that they can be easily transferred to and reviewed by an appellate court, should there be an appeal. Appellate courts prefer to review information in electronic form or paper form; bulky exhibits will not ordinarily be part of the appellate court’s review.2 Thus, the trial lawyer should consider photographing bulky exhibits and entering such photographs into the record so that they can be considered by the appellate court. Information presented electronically should also be included in the record, either by printing and introducing the information in its paper form or by ensuring that the electronic version is preserved either on a flash drive or in an electronic record or transcript created by the court reporter. If the electronic exhibits are manipulated or otherwise changed as part of the testimony, the lawyer must be sure that all versions of what is presented are captured for the record.
    As technology evolves, lawyers need to adapt to ensure that their exhibits are in forms and on media that will be accessible to the appellate courts. Lawyers must also ensure that all exhibits are properly identified in the record and that the record is clear about which exhibits were entered and not entered into evidence. Lawyers must abide by procedural rules and local court rules regarding these issues, of course. Moreover, they must think and act strategically to guarantee that their exhibits will be considered by the trial and the appellate courts. Lawyers should not rely on court staff to manage this information.

1 Fed. R. App. P. 10(a).

2Id. 11(b)(2).

January 29, 2020 in Appellate Advocacy, Appellate Practice, Appellate Procedure, Federal Appeals Courts, Legal Profession, Oral Argument, State Appeals Courts, Web/Tech | Permalink | Comments (0)

Monday, January 27, 2020

The Journal of Appellate Practice and Process Needs a New Home

I recently learned about an exciting opportunity for a law school or law firm interested in appellate advocacy--the Journal of Appellate Practice and Process needs a new home. The Journal has been housed for the past twenty years at the University of Arkansas Little Rock William H. Bowen School of Law.  However, the longtime editor of the Journal is retiring. 

According to the Journal's website

The Journal of Appellate Practice and Process is a professionally edited publication that provides a forum for creative thought and dialogue about the operation of appellate courts and their influence on the development of the law. Every state and federal appellate judge in the United States receives a complimentary copy of each issue, as do the judges of the Supreme Court of Canada. The Journal also goes by subscription to practitioners, academics, and law libraries.

According to a "fast facts" sheet, the Journal has published articles from:

  • United States Supreme Court Justices;
  • United States Solicitors General;
  • State supreme court judges and justices;
  • Federal and state intermediate appellate judges;
  • Foreign supreme court judges and justices; and (of course)
  • Academics

Volume 19 of the Journal, which is online, contains an article from Judge Jon O. Newman and two articles from Dan  Schweitzer, the Director of the National Association for Attorneys General (NAAG) Center for Supreme Court Advocacy.

If you are interested in housing the Journal, you can fill out this form

January 27, 2020 in Appellate Advocacy | Permalink | Comments (0)

Sunday, January 26, 2020

The Big Bad E-Brief: What Is Everyone Afraid Of?

Last year, I had the pleasure of speaking (and more importantly: listening!) at the Corbin Appellate Symposium. It's an incredible event with thoughtful, engaging speakers and fantastic attendees. I'm delighted to be going back again this year to talk about legal tech and persuasion science. 

A topic that came up a few times during the last symposium was e-briefs. Some courts have taken the charge by encouraging lawyers to use simple technology to make their briefs easier to navigate-especially when it comes to supporting cases and evidence. 

For example, the California Court of Appeals tells lawyers they can use live-linking to evidence and cases. Think about how nice it is for a judge or clerk to just click a link embedded after a sentence and see the supporting evidence pop up? No more hours of pouring through record cites and cross-references. 

Ca court of appealsDeveloping e-brief skills and capabilities must be a core area of competency for litigation and appellate lawyers. Even if you're not bought in and ready to live link every cite, just being able to easily prepare an e-brief with internal cross-references is a headache without some basic word processing skills. And I'm constantly struck by how many lawyers don't even have that.

I have to put in a plug for an excellent discussion of e-briefing issues put together by the Counsel for Appellate Lawyers. It tees up a lot of the things we should all be thinking about on this point. Like making sure your filing is easily searchable and navigable, live linking support, and thoughts about readability. 

But I'm curious: Why are so many folks against the move to embedding links to evidence and supporting sources? Not all judges and readers will use them, but for the ones that will, isn't it worth it?

January 26, 2020 | Permalink | Comments (0)

Friday, January 24, 2020

Appellate Advocacy Blog Weekly Roundup, January 24

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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:

Federal Appellate Court Opinions and News:

  • Last week, in the Third Circuit, a prosecutor began oral argument in a case the Commonwealth of Pennsylvania had appealed to challenge the trial court’s grant of habeas relief for ineffective assistance of trial counsel by telling the court that he no longer believed that the trial court had committed error and that he did not want to waste the court’s time making an argument that he no longer felt good about.

Appellate Practice Techniques and Tips:

AppellateTwitter Job Postings:

January 24, 2020 | Permalink | Comments (0)

Tuesday, January 21, 2020

Preparation vs. Practice

“How can I get better at oral argument?” It’s a question on the mind of many nervous moot court members as the spring competition season heats up. In the past, I’ve given a simple answer; work harder than you thought you could, until the issues are so pellucid in your mind that you can discuss them at any time with any audience, regardless of their expertise.  But when I recently attended a moot court strategy session with guest speeches from several talented, experienced appellate advocates, I was forced to reconsider that simple “hard work” mantra. The advocates offered some compelling advice for the nervous moot court member that focuses on the right kind of hard work as the big day approaches.

Admittedly, a big component of oral argument preparation involves brute force. One reason I love oral advocacy is that hard work really pays off. Successful oral advocacy—meaning a clear presentation that supports the written brief, emphasizes the primary strengths of your client’s position, and anticipates all avenues of questioning from the bench—is directly correlated the work the advocate dedicates to the task in the weeks prior to the argument.

But to truly achieve mastery, brute force is not enough. As the experienced advocates recently suggested, gearing up for oral argument really involves two related but distinct components: preparation and practice.

Preparation entails the careful study of the law that deepens the advocate’s understanding both of where the law has been and why jurists and scholars crafted it that way. Preparation takes a careful, humble look at the status of the law as it was prior to your case. It goes beyond merely quoting magic words from key decisions. The advocate must internalize the policy positions that support those words until they can explain them to any intelligent layman. Preparation also requires additional research beyond what the advocate conducted while composing their brief. The advocate must now consider both sides of the issue, reviewing their opponent’s approach to the problem and acknowledging where and how its has exposed genuine weaknesses in their own case. Advocates must recognize that preparation is vital to oral argument success. They cannot merely stop researching and thinking deeply about the issues because the brief is now finalized.

Practice, on the other hand, means standing uncomfortable before as many people as possible, even those with great depth of knowledge of the legal issues, and attempting to defend your position under intense scrutiny. Practice must be undertaken early and often; it does little good to wait to genuinely test your oral presentation until you feel “ready,” because you’ll never learn what strengths and weaknesses others see in your position by staying in your own silo. Practice requires the advocate to stay in character, and to sometimes take the tough questions for which they do not yet have answers on the chin. Feeling that discomfort will motivate the advocate to solve the pressing problems in their position so they can avoid such embarrassment on argument day.

Though preparation and practice mean different things, perhaps the most important thing for oral advocates to recognize is that they are discursively related. Advocates cannot practice successfully without internalizing the issues and the current doctrine well enough to have an intelligent conversation about the case with any dubious judge. At the same time, one cannot prepare successfully without testing their ideas in the crucible of practices that closely simulate the pressures of real argument, thus exposing the soft spots in their view that require more research and deeper thought.

The order matters less than the balance throughout the process. Preparation and practice go hand in hand. Both are vital to successful oral advocacy. Devoting some of one’s hard work to each is the most likely path to successful oral advocacy.

January 21, 2020 | Permalink | Comments (0)

Monday, January 20, 2020

Appellate Advocacy Blog Weekly Roundup Friday, January 17, 2020

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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.

Apologies for the late MLK day weekend post! 

US Supreme Court Opinions and News:

  • The Supreme Court has ordered quick briefing on the Obamacare challenge after nineteen states asked for a quick decision. Recently, the Fifth Circuit held that the individual mandate is unconstitutional but remanded the issue of severability, thus leaving the law in place for now. See report from The Hill and NBC.

  • The court has also agreed to hear (1) an administration appeal seeking to enforce federal law that would allow employers to get a religious exemption from the Obamacare requirement that health insurance cover a woman’s birth control (see report) and (2) a dispute involving whether Electoral College electors can break their pledges and support the popular vote winner (see report).

  • The Court refused to hear an appeal from three “Free the Nipple” activists after a New Hampshire city fined them for exposing their breasts in public. The appeal argued that banning female but not male toplessness is unconstitutional discrimination based on gender; the Supreme Court’s refusal to hear the case leaves the ban in place. See reports in NYPost, The Hill, and NYTimes

Federal Appellate Court Opinions and News:

  • The Seventh Circuit affirmed (after nearly 3 years) the lower court decision that required Indiana to list on birth certificates both mothers in same-sex marriages. The court held that after Supreme Court cases Obergefell v. Hodges and Pavan v. Smith, “a state cannot presume that a husband is the father of a child born in wedlock, while denying an equivalent presumption to parents in same-sex marriages.” See decision at 7-8. The court ruled that the Indiana Code did just that and ruled that its operation was properly enjoined.  See reports from the Indiana Lawyer, BloombergLaw, and Slate.

  • The Eleventh Circuit upheld ex-US Representative Corrine Brown’s fraud conviction. The court rejected the argument that the trial court wrongfully removed a juror who claimed guidance from the “holy spirit” as to Brown’s innocence.  See the opinion and Florida Times-Union report.

  • The Fourth Circuit upheld an injunction barring the discharge of HIV-positive service members. The decision calls the rationale for not deploying HIV-positive service members “outmoded and at odds with current science.” See opinion and reports in The Washington Post and the AP.

  • Finally, the Fifth Circuit made headlines after a divided panel denied a trans-inmate’s request for the court to use female pronouns. See opinion and dissent (begins p. 12) and report from Washington Blade.

State Court news

The San Diego Superior Court tentatively awarded nearly $13 million to twenty-two women in a suit arguing that the women were exploited by porn producers.  The ruling holds that the women had been tricked into performing in pornographic videos and found the owners of the adult website liable for fraud and breach of contract.  See report in NYTimes, San Diego Union-Tribune, and RollingStone.

January 20, 2020 in Appellate Advocacy, Appellate Practice, Federal Appeals Courts, Legal Profession, United States Supreme Court | Permalink | Comments (0)

Sunday, January 19, 2020

Ramos v. Louisiana: Do the Sixth and Fourteenth Amendments Require Unanimous Jury Verdicts?

In Ramos v. Louisiana, the United States Supreme Court will decide whether the Sixth Amendment requires unanimous jury verdicts. Specifically, in Ramos, by a vote of 10-2, a jury in state court convicted the defendant of murder. Currently, in criminal cases, only Oregon and Louisiana permit criminal convictions where the jury is non-unanimous. In both jurisdictions, a vote of 10-2 is sufficient to convict a defendant.[1]

The answer to the question presented in Ramos depends in substantial part on the text and purpose of the Sixth Amendment, relevant legal doctrine, and the Court’s precedent.

By way of background, the Sixth Amendment provides in relevant part that “[i]n all criminal prosecutions, the accused shall enjoy the right to a … public trial, by an impartial jury of the state and district wherein the crime shall have been committed.”[2] Additionally, under the incorporation doctrine, the Court has held that the Sixth Amendment’s right to a trial by an impartial jury, like most provisions in the Bill of Rights, applies to the states.[3]

Over the last several decades, the Court has clarified the nature and scope of the Sixth Amendment’s jury requirement. In Williams v. Florida, for example, the Court held that the Sixth Amendment permits six-member juries in criminal cases.[4] Subsequently, in Ballew v. Georgia, the Court held that juries cannot consist of less than six jurors.[5] Perhaps most importantly, in Apodaca v. Oregon, the Court held that, while the Sixth Amendment requires unanimous jury verdicts in federal cases, it does not require unanimous jury verdicts in state cases.[6] The Court’s decision in Apodaca is arguably anomalous because, when a provision in the Bill of Rights is incorporated against the states, the general rule is that the standards established at the federal level (e.g., unanimous jury verdicts) also apply to the states. In Ramos, the Court will confront this issue – and the continuing validity of Apodaca – when deciding whether jury verdicts at the state level must be unanimous.

Several considerations will be relevant to the Court’s decisions. Advocates of a unanimous jury requirement will likely argue that the Founders expected – and the English common law demonstrated – that the Sixth Amendment’s right to impartial jury encompassed a unanimity requirement. Additionally, relying on the historical record, advocates may assert that racial animus motivated Louisiana’s and Oregon’s adoption of a non-unanimous jury requirement.[7]

Conversely, opponents of a unanimous jury requirement may argue that the Sixth Amendment’s text is silent regarding the issue of unanimous jury verdicts, thus leaving this determination to the states. Furthermore, principles of stare decisis support upholding Apodaca and thus giving states the authority to determine whether to adopt a unanimity requirement for jury verdicts.

The Court’s decision is difficult to predict. On one hand, the Court may be sensitive to the argument that non-unanimous jury verdicts silence the voices of dissenting jurors and result in fundamentally unfair convictions, particularly against traditionally marginalized groups. Also, the Court may determine that a unanimity requirement is essential to ensuring the right to a fair trial. Indeed, empirical evidence has demonstrated that such a requirement “strengthens deliberations, ensures more accurate outcomes, fosters greater consideration of minority viewpoints, and boosts confidence in verdicts and the justice system.”[8]

On the other hand, the Court may be reluctant, under the doctrine of stare decisis, to overturn Apodaca, particularly because at least two states have relied on Apodaca to adopt laws permitting non-unanimous jury verdicts. Moreover, the Court may be concerned regarding the implications of adopting a categorical rule requiring unanimous jury verdicts in criminal cases (at least for felonies). For example, what if a state decides to increase the number of jurors from twelve to eighteen? Would a vote of 17-1 in favor of a conviction violate the Sixth Amendment? What if a state law provided that a non-unanimous jury verdict of 11-1 was sufficient to convict a defendant? The Court will likely have to address these and other questions when deciding this case.

Ultimately, Ramos will likely be decided by a 5-4 or 6-3 margin and based on oral argument, it appears that the Court is leaning toward interpreting the Sixth Amendment to require unanimous jury verdicts.

 

[1] Robert Black, Ramos v. Louisiana: Does the 14th Amendment Require Unanimous Jury Verdicts? (Oct. 9, 2019) available at: https://constitutioncenter.org/blog/ramos-v-louisiana-does-the-14th-amendment-require-unanimous-jury-verdicts.

[2] U.S. Const., Amend. VI.

[3] See Duncan v. Louisiana, 391 U.S. 145 (1968).

[4] 399 U.S. 78 (1970).

[5] 435 U.S. 223 (1978).

[6] 406 U.S. 404 (1972).

[7] Black, supra note 1, available at: https://constitutioncenter.org/blog/ramos-v-louisiana-does-the-14th-amendment-require-unanimous-jury-verdicts

[8] Constitutional Accountability Center, Ramos v. Louisiana, available at: https://www.theusconstitution.org/litigation/ramos-v-louisiana/.

January 19, 2020 in Appellate Advocacy, Appellate Practice, Current Affairs, Legal Profession, United States Supreme Court | Permalink | Comments (0)

Tuesday, January 14, 2020

Settled Precedent or Doctrinal Dinosaur? Handling Stare Decisis.

Extinct bird

Last year was a rough year for the doctrine of stare decisis, the rule that prior precedent should be followed in subsequent similar cases. In 2018, in Janus v. American Federation of State, County and Municipal Employees, Justice Alito quoted from Payne v. Tennessee, a 1991 Rehnquist opinion, reasoning that stare decisis as important 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. Thus, although stare decisis is not an "inexorable command," past precedent should not be overturned without "strong grounds" for doing so. These grounds included an analysis of the quality of the reasoning, the workability of the rule established, its consistency with related decisions, developments since the rule was handed down, and subsequent reliance on the decision.

In his May 2019 majority opinion in Franchise Tax Board v. Hyatt, Justice Thomas concluded, after analyzing four of these factors, that the first three justified overruling prior precedent. In reaction, Justice Breyer noted in his dissent that believing that a case was wrongly decided cannot justify "scrapping settled precedent."  Instead, according to Breyer, since the dissent in the prior precedent had considered the majority decision to be wrongly decided, but still "plausible," overruling a decision that is not "obviously wrong" simply because the majority now agrees with the prior dissent is "obviously wrong."

The next month, Justice Kagan, writing for the majority in Kisor v. Wilkie, again quoted from Payne regarding the importance of stare decisis, and argued that any departure from the doctrine must be supported by some "special justification" beyond the argument that the prior case was wrongly decided. Finding that the precedent at issue was not "unworkable" or a "doctrinal dinosaur," the majority refused to overturn it. Justice Gorsuch, writing a concurring opinion, seemed to reject Kagan's strict approach, instead returning to the Janus factors created by Alito and suggesting that such factors should permit the overturning of precedent when it "no longer withstands careful analysis."

This back-and-forth battle involves more than just a disagreement over the legal standard for overturning precedent. There are political and social subcontexts that are being flagged in these cases. But that is a subject for a different blog. What I am concerned with is what a practitioner, after all of this sparring, is supposed to do with adverse authority now.

First, it should go without saying that you can't ignore adverse authority. ABA Model Rule3.3(a)(2) states that “a lawyer shall not knowingly … fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel.” Even if you think you can distinguish the authority, or that it is a dead doctrine, you must deal with it.

Second, be sure that you are actually dealing with precedent that is directly applicable to your case. If the authority is distinguishable, you don't need to directly attack it. Just show why the decision does not dictate a result in your case. As Justice Frankfurter wrote, "If a precedent involving a black horse is applied to a case involving a white horse, we are not excited. If it were an elephant or an animal ferae naturae or a chose in action, then we would venture into thought. The difference might make a difference." Reid v. Covert, 354 U.S. 1, 50 (1957) (Frankfurter, concurring). Explain why your differences dictate a different outcome.

Third, when you do have to discuss applicable adverse authority,and you cannot distinguish it, use the structure applied by both sides of the debate whenever possible. Both sides of the debate in the Court give lip service to the idea that stare decisis is not a rigid doctrine. One side seems to focus on whether the prior decision is unworkable or out-of-touch with current law, while the other prefers the multifactoral approach under Janus. Using both approaches therefore seems to be the best bet - quote and use the Janus factors, but focus on why the prior case has become unworkable or is out-of-touch with current law.

Fourth, enlist aid when showing why the prior case is unworkable. Surveys of former Supreme Court Clerks indicate that they find amicus briefs particularly helpful when dealing with complex issues beyond their experience. See Lynch, Best Friends?: Supreme Court Law Clerks on Effective Amicus Curiae Briefs, 20 J.L. & Pol. 33 (Winter 2004). If a doctrine has had an unworkable impact in a particular field, then briefing from amicus in that field may be necessary to get across the point. Consider soliciting that briefing at an early stage, as well as setting out the issue even in intermediate appellate courts.

Fifth, and finally, know your enemy. Understand the underpinnings and history of your adverse authority, so you can help the Court understand how some of those underpinnings may have changed over time. This will require extensive research, but if the Court is going to require "special justification" to change the adverse authority, it will require special effort on your part to explain and justify that departure. This may require some legal digging, but if you can show, at the end, that the adverse case is really a dinosaur, all that digging is worth it.

Thanks goes to appellate lawyer Scott Rothenberg's paper, "Prevailing in the Face of Adverse 'White Horse" Authority" for inspiring this post.

(image credit: Dinornis Elephantopus, Roger Fenton c1854 (Digital image courtesy of the Getty's Open Content Program)).

 

January 14, 2020 in Appellate Advocacy, Appellate Practice, Legal Ethics, State Appeals Courts, United States Supreme Court | Permalink | Comments (0)

Monday, January 13, 2020

Returning to the Court as an Attorney

Last week an email from National Law Journal caught my attention.  The subject read "A Rare Amicus Brief in Church-State Case." Curious about the brief, I opened the email--a weekly Supreme Court Brief from NLJ written by Marcia Coyle and Tony Mauro.  As I read the email, I was fascinated to discover that the "rare amicus brief" was one filed by McGuireWoods partner Joshua Davey in the upcoming U.S. Supreme Court case Espinoza v. Montana Department of Revenue.

The Espinoza case concerns a Montana scholarship program that provided, in the words of the petitioners' brief "a modest tax credit—up to $150 annually—to individuals and
businesses who donate to private, nonprofit scholarship organizations. Scholarship organizations then use the donations to award scholarships to families who wish to send their children to private school."  Religious schools were included in the definition of private schools, as was nearly every other private school in the state.  The Montana Department of Revenue, however, issued a rule that prohibited the scholarships from being used at religious schools.  The Department's decision was based on a provision of Montana's Constitution that mandates separation of church and state.  This provision, known as a Blaine Amendment, is present in the laws of nearly 40 states.

The petitioners', all low-income mothers who used the scholarships to send their kids to private religious school, sued claiming in part that the Blaine Amendment violated the Religion and Equal Protection clauses of the Constitution. The petitioners ultimately lost at the Montana Supreme Court.  The U.S. Supreme Court will hear arguments in the case on January 22.

What made Joshua Davey's amicus brief so interesting is that over fifteen years ago a very different U.S. Supreme Court upheld a Washington Scholarship program that, because of the state's Blaine Amendment, prevented him from using the scholarship that he received to obtain a degree in devotional theology. Josh instead went on to attend Harvard Law School, where, in full disclosure, we were friends.  According to my search of Supreme Court briefs on Westlaw, this is the first brief that Josh has filed in the Supreme Court as an attorney.  It seems fitting that it addresses the same issues that led him to his current career.

Josh's brief is filed on behalf of Forge Youth Mentoring, "a Washington State charitable organization whose mission is to help youth discover their God-given potential by connecting them with older mentors to form intergenerational mentoring relationships."  The brief directly addresses the Court's decision in his case and how it should be read in light of the much more recent Trinity Lutheran (2017) decision.  

The Espinoza case is just one of several big religion cases this term, but it could have huge implications if the Court strikes down Blaine Amendments, something it wasn't willing to do in Trinity Lutheran.

January 13, 2020 | Permalink | Comments (0)

Sunday, January 12, 2020

Great Writers Know When to Break the Rules

Excellent legal writers (and writers generally) ensure that their documents adhere to basic rules of grammar and style. Indeed, if an attorney submits a document that contains grammatical or stylistic errors, it will undermine the attorney’s credibility and detract from the persuasive value of the attorney’s arguments.

However, in some circumstances, outstanding legal writers break the rules of grammar and style because doing so increases the persuasive value of a particular document. Below are some of the ways in which breaking the rules of grammar and style will likely enhance the quality of your document.

1.    You can end sentences with prepositions

As a general rule, sentences should not end with prepositions. However, in some contexts, adhering to this rule will result in awkward sentences. Consider the following example:

Who are you referring to?

Versus

About whom are you referring?

The first sentence ends with a preposition but certainly sounds more natural, which can be particularly effective where, for example, you seek to personalize your client.

Thus, don’t necessarily avoid ending a sentence with a preposition. Instead, determine when, and under what circumstances, violating this rule will enhance the flow and readability of your document.

2.    You can write a one-sentence paragraph

Generally, a paragraph should be approximately three to five sentences. It should also include a topic sentence and never occupy an entire page.

In some situations, however, you should break this rule, particularly where you are emphasizing a strong fact or argument that is critical to your case. After all, it should come as no surprise that your audience may not read every word in your document. Thus, using a one-sentence paragraph to emphasize a relevant fact or argument can enhance your prose and the persuasiveness of your document.

3.    You can use the passive voice

The conventional rule is that you should write in the active voice. Sometimes, however, using the passive voice is effective, including where you want to de-emphasize facts that are unfavorable to your client. Consider the following example:

The rule was violated.

Versus

The Defendant violated the rule.

If you are representing the defendant, wouldn’t you rather use the first sentence to acknowledge that your client violated a rule?

Ultimately, in some circumstances, passive voice can be effective, although it should be used sparingly and mostly when you want to de-emphasize an unfavorable fact.

4.    You can use sentence fragments

A complete sentence must include a subject and a verb. Importantly, though, in limited circumstances, using sentence fragments can maximize the persuasiveness of your argument because it is an effective way to emphasize important facts. Consider the following example:

Upon arriving at the crime scene, it was immediately clear that the victim was murdered in a cruel and heinous manner. Bloodied. Dismembered. Fear still in her eyes.

The above example demonstrates how sentence fragments can paint a vivid picture of the underlying events and effectively emphasize important facts.

5.    You can start a sentence with “and” or “but” (or other conjunctions)

Generally, you should not begin a sentence with “and” or “but.”

But doing so can be quite effective in some circumstances. For example, beginning a sentence with “and” or “but” can increase the persuasive force of a sentence and enhance the flow of your narrative. Consider the following example.

The defendant claims that the plaintiff’s not entitled to damages. But the defendant signed the contract. And the defendant admits to doing so.

Versus

The defendant claims that the plaintiff’s not entitled to damages. However, the defendant signed the contract. Additionally, the defendant admits to doing so.

Which do you prefer? The first example both reads and flows better.

6.    You can split infinitives

Some writers – or English teachers – may cringe at the notion that you can split infinitives in your writing. But doing so often makes your writing sound and read better. Consider the following famous phrase:

To boldly go where no man has gone before.

Versus

To go boldly where no one has gone before.

The first example sounds and reads better.

7.    You can use “you” instead of “one”

Sometimes, it is effective to use “you” instead of “one.” Consider the following example:

If one prefers, one may appeal the committee’s decision within ten days.

Versus

You can appeal the committee’s decision within ten days.

The second example sounds better and thus results in more readable prose.

8.    You should frequently use profanity and vulgar language in your legal writing

I’m just kidding. Don’t ever do this!

Ultimately, grammar and style rules are vitally important and should be followed in many circumstances. However, rather than rigidly adhering to these rules, pay close attention to how your writing flows and sounds. Consider the context. Consider your audience. Consider what language maximizes the persuasiveness of your argument. And realize that, sometimes, breaking the rules is the key to excellent writing.

January 12, 2020 in Appellate Advocacy, Appellate Practice, Legal Profession, Legal Writing | Permalink | Comments (0)

Ideas for Including “Off-Brief” Moot Court Argument Techniques in Our Writing & Teaching

Every appellate practitioner and legal skills professor wishes for the time to do one more draft or add one more really creative and engaging exercise.  As I like to tell my students, since I am not in charge of the world, I cannot offer more time.  However, we can all enhance our written advocacy and teaching by incorporating some aspects of arguing off-brief, a traditional and time-consuming exercise for oral advocacy, into our brief writing and teaching.  

In a traditional moot court competition, oral advocates must argue both “sides” of the mock litigation.  As Dean Dickerson explains, “[t]his is known as arguing ‘on brief’ and ‘off brief.’  In the first round, the student will represent one side on the issues; in the next, the student will represent the other side on the same issues.”  Darby Dickerson, In re Moot Court, 29 Stetson L. Rev. 1217, 1220-21 (2000). 

While former Judge Kozinski took issue with off-brief arguments in his oft-cited attack on moot court, In Praise of Moot Court-Not!, 97 Colum. L. Rev. 178, 185 (1997), many scholars praise off-brief arguing for law students in moot court competitions.  For example, Professor Vitiello explains:  “Students must be able to argue [both] positions because lawyers must be able to anticipate and rebut their opponents’ arguments.  A lawyer who lacks that skill cannot adequately represent her clients.”  Michael Vitiello, Teaching Effective Oral Argument Skills: Forget About the Drama Coach, 75 Miss. L.J. 869, 898-99 (2006).  Similarly, Professor Hernandez reasoned:  the “legal profession should encourage any instruction that prepares law students to avoid the temptation to become a mere hired gun in practice. By requiring competitors to argue off-brief and thereby thoroughly analyze all sides of an issue, moot court competitions provide such valuable training.”  Michael Hernandez, In Defense Of Moot Court: A Response to “In Praise of Moot Court--Not!”, 17 Rev. Litig. 69, 76-77 (1998). 

Moreover, top appellate law firms and appellate departments often hold internal moot courts before particularly important oral arguments, and require attorneys to argue both sides of the case to colleagues serving as mock judges.  While “attorneys generally cannot afford to formulate complete arguments for the other side, primarily because of constraints on time and client resources,” this is a wonderful technique when feasible.  See id. at 74.

The advantages of off-brief oral argument translate well to written work.  Although the scholarly writing in this area focuses on appellate oral advocacy, we all know written briefs carry much more weight than oral argument on appeal.  See, e.g., Ruggero J. Aldisert, Winning on Appeal: Better Briefs and Oral Argument 305 (2d ed. 2003).  A winning brief, like a good oral argument, must “anticipate points of weakness and . . . take preemptive steps to diffuse the force of opposing arguments” just as an off-brief oral argument teaches.  See generally Hernandez, 17 Rev. Litig. at 77.  

Thus, as practitioners and teachers, we can do more than simply edit for and generally teach how to incorporate counterarguments into briefs.  Instead, we should ask our students, and our brief drafters, to create as much of the argument for the other side, in writing, as budget allows. 

For example, in my upper-division legal drafting classes, I often use contract disputes for my final brief projects and ask students, as part of an ungraded assignment, to draft the contract provisions in dispute first to favor their opponent, and then as perfect clauses for their client.  Once I added this relatively quick component to the class, I saw the students’ briefs on the contract issues improve dramatically.

In my first-year classes, I similarly ask students to draft arguments for their opponents.  I frequently use brief and memo problems from prior years for teaching simulations, to avoid any honor code issues from using a current, graded assignment.  Merely asking students to outline or draft bullet points articulating the best arguments for the other side of these past papers can help students see better ways to craft their own graded assignments.  Students have shared with me how much they enjoyed being “forced to see the other side” this way.  And if you are very short on time, consider holding a quick in-class or law firm lunch-time moot court, with advocates presenting the best arguments for an opposing side, even without much prep time.  This exercise can reap large benefits by forcing advocates to acknowledge an opponent’s best points and to draft briefs better refuting those arguments.

Have you used an off-brief technique to enhance your writing or teaching?  Feel free to share your ideas in the comments. 

January 12, 2020 in Appellate Advocacy, Appellate Practice, Law School, Legal Profession, Legal Writing, Moot Court, Oral Argument | Permalink | Comments (0)

Monday, January 6, 2020

Award-winning Supreme Court Briefs

In the fall, my University of Houston colleagues Lauren Simpson and Kate Brem and I led an appellate brief writing session at the Fifth Circuit Bar Association. As a part of our presentation, we looked at Supreme Court briefs currently before the court. For example, as we discussed organization and point headings we looked at two briefs filed in the DACA case on the same side and compared the choices made by the attorneys. The practitioners seemed to appreciate the timeliness and relevance of these examples.

Reviewing example briefs is an important way that we grow as writers. Whether you are a practitioner looking to improve your own writing by reviewing others’ work or a professor looking for samples to show your students, it can take a great investment of time to review large numbers of briefs in order to find a worthwhile sample. It can also be difficult to determine which briefs are worthy of emulation.

As mentioned in last week’s Appellate Advocacy Blog round up, the National Association of Attorneys General has selected 3 briefs from 37 entered to receive the 2019 Best Brief Award.

As reported by the press release the winners are:

Missouri: Missouri’s Brief of Respondents in Bucklew v. Precythe, No. 17-815. The authors were State Solicitor D. John Sauer, Deputy Solicitors Joshua M. Divine, Julie Marie Blake, and Peter T. Reed, and Assistant Attorney General Michael Joseph Spillane. It is available here: https://www.supremecourt.gov/DocketPDF/17/17-8151/59531/20180815123218044_2018-08-15%20-%20Bucklew%20v.%20Precythe%20-%20Brief%20of%20Respondents%20-%20FINAL.pdf

New York: New York’s Brief for Government Respondents in Department of Commerce v. New York, No. 18-966. The authors were Solicitor General Barbara D. Underwood, Deputy Solicitor General Steven C. Wu, Senior Assistant Solicitor General Judith N. Vale, Assistant Solicitor General Scott A. Eisman, Chief Counsel for Federal Initiatives Matthew Colangelo, and Acting Chief for Civil Rights Bureau Elena Goldstein. It is available here:
https://www.supremecourt.gov/DocketPDF/18/18-966/94985/20190401162454070_18-966%20Govt%20Resps%20Brief.pdf

Virginia: Virginia’s Brief of State Appellees in Virginia House of Delegates v. Bethune-Hill, No. 18-281. The authors were Solicitor General Toby J. Heytens, Principal Deputy Solicitor General Matthew R. McGuire, Deputy Solicitor General Michelle S. Kallen, and Brittany M. Jones.
It is available here: https://www.supremecourt.gov/DocketPDF/18/18-281/81988/20190128154131232_Va.%20House%20of%20Delegates%20Bethune-Hill%20State%20Appellees%20Brief.pdf


These briefs were selected by a panel of ten Supreme Court experts. I have reviewed these three briefs, and all can be useful learning tools if you are looking for some strong models. The Missouri brief deals with an 8th Amendment challenge to an execution method, the New York brief deals with adding a citizenship question to the census, and the Virginia brief deals with standing in the gerrymandering case. All three demonstrate the hallmarks of effective brief writing. They are well organized, use point headings effectively, are persuasive and clear on what they are asking for, and make complex topics understandable. I'm looking forward to pulling examples from these briefs for my students. Congratulations to these winners!

January 6, 2020 | Permalink | Comments (0)

Friday, January 3, 2020

Appellate Advocacy Blog Weekly Roundup Friday, January 3, 2020

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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.

Happy New Year!  Wishing the readers of the Appellate Advocacy Blog (and everyone else!) a happy and healthy 2020!

 

Looking for what to watch in your practice area in 2020?  On January 1, Law360’s Appellate News posted a series of what to watch in 2020 in various practice areas. Check it out on the Jan 1 postings here.

US Supreme Court Opinions and News:

  • Chief Justice Robert’s 2019 Year-End report on the Federal Judiciary was published Tuesday. Find it here.  In it, he calls on his judicial colleagues to “each resolve to do our best to maintain the public’s trust that we are faithfully discharging our solemn obligation to equal justice under law.”

  • The Hill’s John Kruzel and Harper Neidig posted a report on the 2020 Supreme Court cases to watch. Find it here.

  • The Supreme Court will hear arguments this year in a First Amendment free exercise of religion case concerning the use of public funds in religious schools. The appeal from Montana will ask the court to consider “whether states are free to erect a wall between church and state high enough to exclude religious groups from some state benefits.” See Adam Liptak’s report in the New York Times.
  • Court will also hear a decades-long legal battle over water between Florida and Georgia.  Listen to (or read the transcript of) the NPR report here

Federal Appellate Court Opinions and News:

  • The Second Circuit has raised privacy questions over the government’s warrantless searches of NSA surveillance data.  Although recognizing that the gathering of data is lawful, the court questions the searching of that data, characterizing it as more like under a “general warrant.”  The court wonders, “[i]f such a vast body of information is simply stored in a database, available for review … solely on the speculative possibility that evidence of interest to agents investigating a particular individual might be found there, the program begins to look more like a dragnet, and less like an individual officer going to the evidence locker to check out a previously-acquired piece of evidence against some newfound insight.”  See order and reports from Reuters and Washington Post.

  • The Appeals Court for the DC District upheld the designation of Northeast Canyons and Seamounts National Monument, a national monument off the coast of New England.  Fishing groups had objected to the monument because it restricted their fishing area. See ruling here and reports by Maine Public Radio and Cape Cod Times.

  • The Second Circuit ordered resentencing for a “shockingly low” 17-year sentence for an ISIS supporter who attempted to kill an FBI agent.  See reports from NYT, Washington Post, the AP, and Reuters.

  • Finally, the Ninth Circuit has ruled that the label “diet” on a soft drink is not a promise to help you lose weight or keep it under control. The Court refused to allow fraud claims (by the same plaintiff) against both Diet Coke and Diet Dr. Pepper. According to the Dr. Pepper decision,  “[t]he prevalent understanding of the term in (the marketplace) is that the ‘diet’ version of a soft drink has fewer calories than its ‘regular’ counterpart.” However, “[j]ust because some consumers may unreasonably interpret the term differently does not render the use of ‘diet’ in a soda’s brand name false or deceptive,” the court ruled.

Other Appellate News

The NAAG announced the winners of Winners of 2019 Supreme Court Best Brief Awards. Check out the list here

 

January 3, 2020 in Appellate Advocacy, Appellate Justice, Appellate Practice, Federal Appeals Courts, Legal Profession, United States Supreme Court | Permalink | Comments (0)