Appellate Advocacy Blog

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

Friday, February 28, 2020

Consider Doing Initial Oral Argument Preparation As You Finish Your Brief

 Every appellate practitioner knows oral argument rarely changes a case outcome.  See, e.g., Ruggero J. Aldisert, Winning on Appeal: Better Briefs and Oral Argument 305 (2d ed. 2003).   However, whether you are a first-year law student, certified appellate specialist, or advocate between those levels of experience, you probably still spend a great deal of time prepping for oral argument.  This time can be hard to justify to clients, but an advocate must be prepared for oral argument.  See generally Cal. Rules of Ct., R. 1.1, 1.3 (2018).

In my last post, I suggested ways to use off-brief oral argument techniques to improve your brief writing.  For this post, I propose using an early, short, oral argument prep before filing the brief as a way to streamline your oral argument preparation while also improving your brief.  Using this technique can make your oral argument preparation time more useful, shorter, and easier to justify to clients.

In my advocacy classes, I tell my students to distill their oral argument points to one piece of paper, or something very similar.  My “one piece of paper rule” forces students to take the main points from their briefs and organize their arguments in one place.  This process requires students, and counsel, to review the briefs and record, reread key cases, and be familiar enough with all aspects of the case to synthesize their points on one page.  Along with the paper, I recommend students have one binder with their case charts, all briefs, copies of any key pages from the record, and extra paper for notes during the opponent’s argument.  The binder should be tabbed and organized for very quick reference.   The process of making the binder is also very useful for both final brief editing and oral argument preparation.

On a practical level, my one piece of paper rule also keeps students from reading from their briefs or reading a longer, prepared statement to the court.  Since most courts either ban or strongly disfavor counsel reading from briefs or papers at argument, this is a good lesson to learn early.  See, e.g., 5 Am. Jur. 2d Appellate Review § 501 (2d Ed. Feb. 2020).  Additionally, an advocate who has organized his or her thoughts well enough to note them on only one piece of paper is unlikely to make the mistake of carting a box of scattered materials to counsel table.  One piece of paper is easy to follow under pressure, and can help counsel get back on track smoothly and confidently when the court’s questions move away from main points.  Advocates also have an organized binder if they do need to check something quickly.

In content, the one piece of paper should include bullet point arguments on each prong, element, or claim, noting the best points for the advocate’s side.  The paper should also have bullet points on counsel’s best responses to his or her opponent’s brief. 

I recommend students create their one sheet by first copying over their point headings from the brief Table of Contents.  Then, students should take the key points from their Introduction or Summary of Argument, and weave these ideas, all with a focus on their theory of the case and key case law, into bullets under each point heading.   I ask my first-year students to make this page before turning in their briefs.  I suggest they then use the paper as an editing checklist for the brief.  The process of distilling the whole case onto one page can reveal holes in the students’ briefing and help with final brief polishing.  Practitioners would reap the same benefit in brief writing from doing an initial oral argument preparation shortly before filing a brief.

In the law school setting, making the oral argument sheet before filing the brief is also efficient.  First-year oral arguments come shortly after the brief writing, and students can easily review the one piece of paper they prepared as a brief editing tool and be ready for oral argument. 

In practice, however, we often wait months after filing a brief for oral argument.  Nonetheless, creating an initial one sheet for argument before filing the brief can still be efficient and helpful in practice.  By creating the one page when most familiar with the record and the law, in the midst of brief polishing, counsel can ensure he or she does not miss any key points for later oral argument.  Also, while attorneys will still need a refresher on the facts and law before oral argument, following an outline created while drafting the brief will streamline the review process, leading to better preparation in a shorter time.  Finally, creating this type of one sheet for the whole appellate case before filing the brief can make final edits of the brief more useful, ensuring the brief is as perfect as possible.     

For all of these reasons, consider taking a quick break from your usual brief editing to create one piece of paper for oral argument, or anything similar that works for you, with an organized binder.  Doing so can show where you have missed something in briefing and can save time later. 

February 28, 2020 in Appellate Advocacy, Appellate Practice, Appellate Procedure, Law School, Legal Profession, Legal Writing, Moot Court, Oral Argument | Permalink | Comments (0)

Wednesday, February 26, 2020

Remarkable audio from the Third Circuit

I write this as I prepare to help administer the San Francisco regional tournament of the 2020 American Bar Association's National Appellate Advocacy Competition. Thirty-two teams from law schools around the country will participate, and on Saturday we'll emerge with four regional champions who will punch their tickets to the national finals in Chicago. 

This year's problem is about prosecutors: the advocates are arguing two issues about the scope of prosecutors' obligation under Brady v. Maryland to disclose exculpatory evidence. And, lately, when I think about prosecutors, I think about the remarkable piece of audio I reference in the title of this post.

It is oral argument audio. But there is no argument. As Matthew Stiegler describes in this post to his excellent CA3blog, the case is Fisher v. Commissioner, a habeas matter arising out of a forty year-old murder. Robert Fisher was convicted (after a retrial) of first-degree murder in 1991 and sentenced to death (after a resentencing) in 1996. His habeas action, which dates back to 2003, asserted constitutional infirmities at both the guilt and sentencing phases.

And he won. Last July, the district court granted Fisher's petition. The state appealed to the Third Circuit. The case was briefed, and the Third Circuit granted oral argument. And then, at oral argument in mid-January, this happened:

JUDGE RESTREPO: This is Fisher versus Commissioner. Sir, my understanding is that you wanted to tell us something?

COUNSEL FOR APPELLANT: May it please the court, my name is Bob Falin. I'm with the Montgomery County D.A.'s office.

I no longer believe that the lower court committed error. I spent the past few days working on the case, reading the briefs, doing research, and as the hours passed the less and less comfortable I became with our position. And it dawned on me that if I, as a career prosecutor, was not feeling good about these arguments, then perhaps it was not appropriate to come and stand before the Court and argue and advocate for them. So I am conceding that, I now believe there was no error below.

At this point—and please do listen—one can almost hear the panelists' jaws drop and eyes go wide.

COURT: You're asking us to affirm the district court?

COUNSEL: Yes, your Honor.

COURT: Across the board?

COUNSEL: Yes, your Honor. 

And then the apology:

COUNSEL: And I apologize to the court for the inconvenience. I know the court put many hours into it. But sometimes, in prepping for arguments, I get to have a deeper understanding of the case, and sometimes, at least this case, I came to a different conclusion than I had. And I felt compelled to ... take a different position.

COURT: Your position, just to be clear, Mr. Fisher is entitled to a new trial.

COUNSEL: Yes.

Pause. The panel recesses to confer. Returns. Promises to quickly affirm (and, two days later, the judges delivered). Plaudits issue to Robert Falin, including this from Judge Bibas:

I think it’s in Berger v. United States, the Supreme Court talked about the prosecutor’s obligation not to be winning cases but to see that justice is done. It’s not easy to come in and confess error. But we don’t reject wisdom when it comes late. And we thank you very much for your candor in bringing this to us. 

What strikes me about Mr. Falin's concession is this: if one reads the district court's thorough, nuanced opinion, one can see that the state has colorable arguments here, particularly because of the hellscape that is the Antiterrorism and Effective Death Penalty Act: deference under § 2254(d),  failure to develop the record under § 2254(e), harmless error, and so on. Colorable. But not ... just.

Here is a link to the Montgomery County D.A.'s Facebook page. It shows Robert Falin receiving the office's highest honor. It's five years old, but apparently it's an award that Mr. Falin keeps earning.

February 26, 2020 in Appellate Justice, Oral Argument | Permalink | Comments (0)

Tuesday, February 25, 2020

The Importance of Opinions on Denial of Certiorari

The Supreme Court of the United States is a court of discretionary review, meaning it has no obligation to take up a case for decision, but rather is vested with the discretion to decide when it will exercise its authority. It is commonly accepted wisdom that the denial of a request for such consideration (a petition for writ of certiorari) is thus a non-event. It does not mean that the Court approves of the decision, but rather simply that not enough justices on the Court (it takes four) considered the matter appropriate for review.

Indeed, Justice Frankfurter noted in his comments on the denial of certiorari in Maryland v. Baltimore Radio Show, Inc., that "[T]his Court has rigorously insisted that. . . a denial [of a petition for writ of certiorari] carries with no implication whatever regarding the Court's views on the merits of a case which it has declined to review." 338 U.S. 912, 919 (1950) (Frankfurter, J., respecting denial of certiorari).

However, if that is the case, why do the Justices on the Court so frequently issue opinions when a certiorari is denied? This question came to mind yesterday, when the Court issued, among its other orders, three opinions concurring or dissenting on denial of certiorari. A review of those opinions illustrates why the Justices are increasingly giving insight into "non-events."

First, Justice Sotomayor issued a "statement respecting the denial of certiorari" in Reed v. Texas, a case involving a murder conviction that has involved no less than nine state habeas petitions over more than twenty years. In commenting on the denial of certiorari, Justice Sotomayor notes that Texas law will require the state courts considering pending habeas relief to consider Reed's innocence on the merits for the first time, and that the denial of certiorari in no way implies anything about the high court's opinions on those pending actions. Sotomayor ends, however, by noting that, in her view, "there is no escaping the pall of uncertainty over Reed's conviction," and that she remains "hopeful that available state processes will take care to ensure full and fair consideration of Reed's innocence - and will not allow the most permanent of consequences to weigh on the Nation's conscience while Reed's conviction remains so mired in doubt." Reed v. Texas, 589 U.S. ___ (2020) (Sotomayor, J., respecting denial of certiorari).

Next, Justice Alito, joined by Justices Thomas and Gorsuch, issued a concurring opinion on the denial of certiorari in Patterson v. Walgreen Co. That case involved the meaning of Title VII's prohibition of employment discrimination "because of . . . religion." The Court requested briefing from the Solicitor General, and Justice Alito goes into detail as to which portions of the briefing he agrees with. Specifically, Justice Alito seems to lay out reasons why Trans World Airlines, Inc. v. Hardison, 432 U.S. 63 (1977) should be reversed, using some of the factors commonly identified as being necessary to reverse prior precedent in his analysis. While Alito agrees that Patterson was the wrong vehicle to raise these issues, he gives a roadmap for the next case that is more appropriate. Patterson v. Walgreen Co., 589 U.S. ___ (2020) (Alito, J., concurring on denial of certiorari).

Finally, Justice Thomas issued an opinion dissenting from the denial of certiorari in Baldwin v. United States. This case involves Chevron deference, the general rule that courts must adopt an agency's interpretation of an ambiguous statute so long as that interpretation is "reasonable." Usually, this interpretation occurs prior to a court's ruling. In National Cable & Telecommunications Assn. v. Brand X Internet Services, 545 U.S. 967, 982 (2005), Thomas authored an opinion holding that this deference even applies if a court has interpreted the statute before the agency, so long as the court has not also held that the statute is unambiguous.

Baldwin sought reconsideration of Brand X. Over his eleven-page analysis, Thomas sets out why he thinks Brand X should be revisited, noting that "it is never too late to surrender former views to a better considered position." His criticism of both Chevron and his opinion in Brand X includes an analysis of the proper separation of powers, the checking power of the Judiciary, the APA, and "accepted principles of statutory interpretation from the first century of the Republic." Baldwin v. United States, 589 U.S. ___ (2020) (Thomas, J., dissenting from denial of certiorari).

Each one of these opinions, while entirely non-binding, are remarkable. Justice Sotomayor issued a clear "I am watching you" signal to the lower courts on a conviction that she implies cannot, in good conscious, support a death penalty. Three justices laid out a roadmap for arguments to overturn a prior Supreme Court decision that is relied upon by numerous other decisions. And the author of a fairly recent decision invited petitions to overturn that case and its underpinnings in Chevron.

These denials of certiorari are not "non-events." Rather, they clarify the need to include these opinions in your research and analysis. In doing so, you may very well find a roadmap to your next successful petition, and any case that may eventually involve these issues.

 

February 25, 2020 in Appellate Advocacy, United States Supreme Court | Permalink | Comments (0)

Monday, February 24, 2020

What’s a "likely" legal outcome? Examining lawyer’s use of probability language

The following post is a guest post by Joe Fore based on his recent article in the Fall 2019 issue of Legal Rhetoric & Communication, the Journal of the Association of Legal Writing Directors.

Consider the following: a client asks a lawyer to assess the client’s chances of winning in a lawsuit. After doing some research, the lawyer concludes that the client has a strong case. If she had to wager, she’d say the client has about a 2/3 probability of prevailing. The next day, the client calls and asks, “So, what are our chances?” What should the lawyer say to convey that likelihood assessment?

If she follows typical practice and traditional legal writing guidance, she’ll say something along the lines of, “You’ll likely win” and then explain her reasoning. She may think that she’s accurately conveyed her professional judgment. But how will the client interpret their chances of success?

While commonly used in legal writing, qualitative “verbal probabilities”—words like “probably,” “likely,” or “almost certain”—have an inherent drawback: their meaning can vary widely based on who’s using them and on when, where, and how they’re used. This, of course, creates the possibility that a client might interpret a verbal probability very differently than the lawyer intended. As a result, the client could over- or underestimate their chances of success when deciding on a course of action—perhaps leading the client to settle when they should fight or vice versa.

The idea that differing interpretations of verbal probabilities could lead to bad outcomes isn’t theoretical: it’s believed that confusion over such phrases contributed to both the failed Bay of Pigs invasion and the Space Shuttle Challenger disaster. And miscommunication between lawyers and clients also raises potential ethical issues. After all, ABA Model Rule of Professional Conduct 1.4(b) states that lawyers have an ethical duty to explain matters “to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.” Can a client’s decision truly be “informed” if a lawyer communicates advice in ways that have a high likelihood of being interpreted differently than the lawyer intended?

Of course, if our lawyer wanted to reduce ambiguity around her prediction, she could just follow her initial hunch and say, “I’d say your chances of winning are around 2 out of 3.” But this could be a tough sell, as lawyers have historically avoided quantifying their opinions. And even if you could convince lawyers to do so, numerical probabilities present their own problems. Many people—even highly educated ones—struggle to intuit numerical probabilities. Plus, because “66 percent” sounds more precise than “probably,” slapping a number on a legal opinion could give the client a false impression that the prediction has a more solid basis than it really does or that the lawyer is more confident in the estimate than they really are.

Another way to reduce ambiguity would be to develop a standard “lexicon” of probability terms and define them with numbers or numerical ranges. Many other fields—from national intelligence to climate science to medicine—have used probability lexicons to reduce ambiguity in their communications, with varying degrees of success.

Even some legal specialties have done it. The best example is tax, which has a widely understood hierarchy of language used to counsel clients about the chances that a given tax position will meet IRS scrutiny. The probability phrases used by tax lawyers—which have grown out of regulatory mandates and customary practice—have consistent meanings throughout the field. (The figure below shows estimates from practitioners, scholars, and the American Institute of Certified Public Accountants about the meanings of probability phrases in the tax context. Note the high degree of consensus.)


Graph 1

But outside of a few specific legal niches, there’s no real consensus on the meanings of probability words most commonly used in legal writing and analysis. So most lawyers are stuck with using vague verbal probabilities without a clear conception of what they mean or how they’ll be interpreted by others. 

I think lawyers can do better; they can be more deliberate in thinking about how to communicate uncertainty to clients. And the legal academy can help. Other professional fields have devoted thought and study to the ways they communicate their predictions. Legal scholars and practitioners have similar opportunities to study the ways that lawyers and clients use and interpret verbal probabilities—and, more broadly, the ways in which lawyers communicate their analysis, as a whole. Further work might also explore why lawyers resist quantifying their results and examine whether they should rethink that.

These topics fit nicely with larger conversations about improving communication between lawyers and clients. For decades, the plain language movement has sought to make legal language easier to parse. And legal-design thinkers are also re-examining traditional, text-based ways that lawyers present legal analysis. For example, in September 2019 the Michigan Bar Journal highlighted an award-winning Australian client-advice template that attempts to present information more clearly than the traditional opinion letter.

Graph 2

These are helpful developments. Still, while this example’s visual format may aid comprehension, the use of ambiguous phrases like “Low to Medium” to present likelihoods still presents a chance for miscommunication. This is where it would be helpful to have empirical work that examines how lawyers and clients understand probability phrases in various legal contexts.

But until that work can be done, I’ve surveyed empirical and practical work from many different fields, and I suggest that the following scale reflects the best attempt at a standardized probability lexicon for conveying opinions in legal writing:

Graph 3

February 24, 2020 | Permalink | Comments (2)

Sunday, February 23, 2020

When Drafting a Brief or Preparing for an Oral Argument, How Do You Know When to Stop Researching?

One question that most, if not all, attorneys have asked themselves when drafting an appellate brief is: “When should I stop researching?”

This concern is certainly understandable. After all, the last thing that an attorney wants is for a judge to ask “Why didn’t you cite X case, which is directly relevant to the legal issue before the court?” or state “I would agree with your argument counselor, except for the fact that X case was decided by the Supreme Court four years ago and the Court ruled against your position.” If this happens, you will be embarrassed, you will lose credibility with the court, and your client will have little if any chance of succeeding on the merits.

To avoid this problem, attorneys must research a legal issue sufficiently to ensure that they know, among other things, the relevant legal standards, including the standard of review, the governing precedent (particularly cases that are factually similar), and favorable and unfavorable authority. But how do attorneys know when they have done enough research? They rely on several criteria (along with experience) to make this determination and ensure that they are fully prepared to draft an excellent brief or deliver a persuasive oral argument.

1.    Identify the appropriate scope of your research

Before you begin researching, you should identify the universe within which you should be researching. Doing so will enable you to identify the sources of binding legal authority and ensure that you confine your research to the most relevant precedent.  When making this determination, ask yourself the following questions:

  • Is your case in state or federal court?
  • Does your case involve a state or federal issue?
  • Does the legal issue involve a common law cause of action, statute, constitutional provision, or administrative regulation?
  • Are you arguing for a correction in a lower court's decision or an expansion of the law?
  • Have the courts in your jurisdiction previously addressed the legal issue or is it an issue of first impression?

For example, if your case is in state court and involves a state law issue, your legal research will focus primarily on prior decisions in your state by the state supreme court and the appellate courts. If your case is in federal court and involves a federal issue, your research will focus primarily on decisions from the circuit in which you are litigating. If your case is in federal court and the legal issue involves a state law claim, your legal research (on the substantive law) will focus on decisions by the state supreme court and appellate courts. 

You must also identify whether the legal issue relates to a common law cause of action, statute, or constitutional provision. If, for example, you are appealing a case where a state court found that your client acted negligently, you should only research cases in that state (from the state supreme court and the appellate courts). In such a case, your research should focus primarily on cases decided by courts within your jurisdiction that have applied and interpreted the relevant law, and that involve similar facts, if possible.

Importantly, the above advice applies to cases where you are arguing for a correction in the law.

If, however, you are arguing for an expansion of the law, you will likely expand your research to cases from courts outside of your jurisdiction that have considered this issue and that have expanded the law in the manner that you are advocating. For example, if, in 2015, you were arguing before the Sixth Circuit Court of Appeals that same-sex marriage bans violated the Fourteenth Amendment’s Equal Protection Clause, you should have cited in your brief and at oral argument the Seventh Circuit’s decision in Baskin v. Bogan, which previously held that same-sex marriage bans violate the Equal Protection Clause.

Consequently, in cases where, as in the above example, the law is unsettled in your jurisdiction (or is an issue of first impression) you can and should rely on cases from other jurisdictions that have addressed this issue. Although this precedent is not binding on the court, doing so will help to guide the court in reaching an informed and, hopefully, favorable decision.

Ultimately, determining the scope of your research is critical because it will enable you to identify the sources of binding, as opposed to merely persuasive, authority and it will ensure that you avoid conducting unnecessary or irrelevant research.

2.    Look for repetition

You will likely know that you have researched a legal issue sufficiently when you encounter repetition in the relevant case law. For example, if you are researching the negligence standard and you read fifteen cases in which the courts rely upon the same criteria to determine if a party was negligent (i.e., duty, breach of duty, causation, and damages), you can be confident that you’ve identified the relevant legal standard. Likewise, if you are researching how the courts define causation for purposes of determining negligence and you read several cases where the courts recite the same test or standard for causation, you can be confident that you’ve researched causation sufficiently.  Additionally, if you continue to find the same legal authority despite using different research methods, you’ve probably located the relevant authority.

You should also strive to identify cases that involve similar facts and you should rely only on cases that reach a favorable result. Never rely on a case that, although supporting your recitation of the relevant law, reaches a conclusion that undermines the argument you are making or the remedy you are seeking.

3.    Review the cases in your opponent’s brief

You should review the cases in your adversary’s brief. Doing so will enable you to identify relevant (and likely unfavorable) legal authority that you may have failed to discover in your research. In addition, you should review carefully how your adversary presents relevant case law to ensure that your adversary is not misrepresenting precedent.

4.    Read the briefs submitted by the parties in prior cases that involve the same or similar legal issue

To the extent possible, read the briefs submitted by the parties in prior and relevant cases. In so doing, you may discover additional cases that you did not find in your research or you may simply confirm that you have sufficiently researched a particular legal issue.

5.    Identify the cases cited by courts in prior decisions

You should identify the cases that courts in your jurisdiction have relied upon when deciding the same or similar legal issue. This will facilitate and expedite your research and it will provide you with the specific cases that courts found influential when deciding the issue.

6.    Research the subsequent history of the cases you cite in your brief

Be sure to research the subsequent history, if any, of the cases you rely upon in your brief or at an oral argument. In so doing, you will discover whether there is negative history that impacts the persuasive value of the cases upon which you are relying and whether a case has been overruled.

The above tips are not intended to be exhaustive. However, adhering to these tips will enable you to decide when to stop researching and provide you with the assurance that you’re prepared to draft an excellent brief or deliver a persuasive oral argument.

February 23, 2020 in Appellate Advocacy, Appellate Practice, Appellate Procedure, Federal Appeals Courts, Law School, Legal Profession, Moot Court, Oral Argument | Permalink | Comments (0)

Wednesday, February 19, 2020

Continue Teaching the New Dogs, Old Tricks: The Value of Teaching Appellate Advocacy to Law Students

A majority of U.S. law schools teach persuasive writing and oral advocacy to 1L and 2L students as part of required courses.1 These courses often focus on appellate advocacy. This model has existed for many years, gaining steam especially in the late 1980s after the ABA criticized law schools for failing to properly train law students in appellate advocacy.2 Some law professors and law students question the value of teaching appellate advocacy when we know that many lawyers will not actually engage in writing formal appellate briefs or participate in formal appellate oral arguments during their careers. Through this post I support the continued teaching of the skills required to write an appellate brief and make an appellate argument because the skills taught and tested when doing this kind of work are essential lawyering skills across a wide range of jobs held by lawyers. Lawyers are professional communicators—writing and speaking are essential skills of the profession.

First, writing an appellate brief requires careful, precise, and accurate work. Students must work with and follow procedural and local rules that dictate how to format a particular document, what information must be included, and when and how the document produced must be filed. Students must learn to carefully read a record and research the law to craft legal arguments within parameters set by the rules, including page limits and section requirements that force writers to write and rewrite their work until it is sharp and concise. All of this must be done while the writer is persuasively and accurately explaining to the court why a particular argument has merit when considering the governing law and the facts. The writer must also properly cite the law and the record.  These skills are all skills that are valued in the jobs that lawyers hold, from actually working in a litigation setting as an advocate, to advising and counseling clients in a more transactional practice, to working as a judge or a law clerk, just to name a few settings.

Second, oral communication skills are critical for lawyers. While not all lawyers will choose to engage in a litigation-type practice in which arguing to courts is a part of the work, most lawyers will need to “argue” or explain persuasively in their jobs. Appellate advocacy involves presenting arguments as well as responding to questions; it requires advocates to think on their feet. Lawyers who train in the skills of appellate advocacy will develop skills that will transfer to trial advocacy, negotiation, and other tasks requiring effective oral communication. Transactional lawyers will need to discuss positions with clients, orally communicate terms of a deal or a position, and negotiate terms of contracts. Many of the more formal skills required for oral argument will transfer to this transactional work. Even for those lawyers whose jobs do not include a focus on oral presentations, training to skillfully and thoughtfully respond to questions and clearly present legal and factual analysis is training that is an asset to most everyone in any type of legal job.

Third, developing appellate advocacy skills in law schools introduces students to professional and ethical norms that serve to give these burgeoning lawyers a taste of the legal profession and its traditions. Following rules, extending deference in a professional manner to the court, and showing respect for opposing counsel are all norms that should be learned in law schools and carried into the profession. Participating in the ceremony and discourse required in courses that teach appellate advocacy initiate these soon-to-be lawyers and welcome them into the legal community.

In conclusion, let’s continue to teach the new dogs the old tricks. Let’s strive to improve how we do it. Let’s even consider adding to appellate advocacy instruction, instruction and experiences in a variety of written and oral communication settings, like contract negotiation and drafting, trial advocacy, international advocacy, treaty negotiation and drafting, and other areas where lawyers are called upon to use their communication skills. We can value the foundational skills taught and learned through courses in appellate advocacy and supplement legal education with even more experiences that call on students to learn how to communicate effectively.

 

1 ALWD/LWI Survey 2018, Q. 6.4, https://www.lwionline.org/resources/surveys; Section on Legal Education & Admission to the Bar, Sourcebook on Legal Writing Programs 28, 46 (2006).

2 Michael Vitiello, Teaching Effective Oral Argument Skills: Forget About the Drama Coach, 75 Miss. L.J. 869, 869 (2006).

February 19, 2020 in Appellate Advocacy, Appellate Practice, Appellate Procedure, Law School, Legal Profession, Legal Writing, Moot Court, Oral Argument, State Appeals Courts | Permalink | Comments (0)

Tuesday, February 18, 2020

Reasonable Sources on Appeal

Many of the legal standards courts apply to appellate issues resolve around the inevitably fuzzy concept of reasonableness. The reasonable person, reasonable expectations of privacy, reasonable observers, reasonably prudent consumers, reasonable suspicion—all of these tests require advocates to conjure some ideal of what reasonable people might do or think in a given factual scenario. And for most advocates, that standard can seem hopelessly inchoate.

One problem is determining the sources of a “reasonable” standard. Consider the determination of when a person has been “seized” for Fourth Amendment purposes,  and thus the point at which officers must have a requisite level of suspicion to support that seizure. The touchstone test, established in United States v. Mendenhall, 446 U.S. 544, 554 (1980), suggests that officers have seized an individual when, “in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.” The test leaves unanswered whose opinions count in determining what a reasonable person might believe. Does the test measure what a police officer thinks it reasonable for an average citizen to believe—as it seemingly must if the test is to have any utility guiding day-to-day police activity? Or does the test focus upon what the average citizen believes? If the latter, must the test look to the reasonable beliefs of “average citizens” at the highest level of abstraction, or can it take into account the specific characteristics of the defendant, such as race?

The latter question arose recently in the South Carolina Supreme Court’s decision in State v. Spears, No. 27945 (S.C.), where the Court asked at oral argument whether the black defendant’s race should affect the Court’s evaluation of when a reasonable person no longer felt free to leave and was thus seized by police. The South Carolina Supreme Court noted the Mendenhall court’s view, echoed later by the Seventh Circuit, that although the defendant’s race is “not irrelevant,” it is also not dispositive.[1] The Court also carefully noted the Tenth Circuit’s recent suggestion that race is not a relevant factor in the reasonable person test; that court argued that a racial factor would render the test impossibly complex for officers in the field given the “divergent attitudes towards law enforcement” within racial groups.[2] The South Carolina Supreme Court was able to sidestep the issue by finding it unpreserved due to the defendant’s failure to raise it below. But the issue continues to percolate in other State Supreme Courts.[3]

This argument has echoes in broader theories behind the interpretation of legal texts. Originalist accounts of constitutional interpretation, for instance, set their sights on constraining judicial discretion by assuring that would-be activist judges rule according to the law rather than their policy preferences. But the proper sources for originalist interpretation remain unclear. Are the pre-enactment writings of the text’s authors relevant as part of a narrower effort to find the original intent behind the document? What about dictionaries or legal treatises available before (or after) enactment that might shed light upon the popularly understood meanings of a text? And should the interpretive methods taken today echo the interpretive methods that the lawyers or judges of the time of the enactment might have relied upon?

Neither the narrower question of interpreting a specific issue of reasonable beliefs, nor the broader question of interpreting the relevant sources of original intent or meaning, has a clear answer that makes appellate advocates’ jobs easy. But advocates should not resign themselves to guesswork. Definite answers may be impossible in either project. Yet the effort to use all available methods to guide decision-makers can still lend clarity to an apparently insoluble legal inquiry.  Though it is hard to say who has the better of the arguments about the sources and scope of inquiry, it may nonetheless be an argument worth having. Appellate advocates should strive to understand the problems of source in the fuzzy standards they may need to deploy in advocacy, then do their best to resolve the problems by choosing sources in a logical, up-front manner. Those with the most candid and convincing accounts are likely to find success on appeal.

 

[1] United States v. Mendenhall, 446 U.S. 544, 558 (1980); United States v. Smith, 794 F.3d 681, 688 (7th Cir. 2015).

[2] United States v. Easley, 911 F.3d 1074, 1082 (10th Cir. 2018), cert. denied, 2019 WL 1886117 (U.S. Apr. 29, 2019).

[3] See, e.g., Commonwealth v. Evelyn, No. SJC-12808 (Mass.).

February 18, 2020 in Appellate Advocacy, Appellate Practice, Appellate Procedure, Federal Appeals Courts, Moot Court, Oral Argument, State Appeals Courts, United States Supreme Court | Permalink | Comments (0)

Monday, February 17, 2020

2020 Moot Court National Championship Results

Many of us tuned in two weeks ago to see who would be named champion of the National Football League. For those in the Moot Court world, though, there was another championship of interest happening in Houston, not Miami. Congratulations to Ohio State University Moritz College of Law—winner of the 2020 Hunton Andrews Kurth Moot Court National Championship. Second place went to the University of Georgia School of Law. The teams argued an interesting Supremacy Clause Immunity case featuring a federal law enforcement officer who was prosecuted after roughly arresting an individual for marijuana possession in a state that had decriminalized possession of small amounts of marijuana.

The Hunton Andrews Kurth Moot Court National Championship brings together the top 16 schools from around the country every year to compete and name a Moot Court National Champion. It is put on by the Blakely Advocacy Institute at the University of Houston Law Center. The top 16 schools are invited based on the moot court competition record in the previous academic year. Points are assigned for placing in different categories and based on the size of the competitions.

Here are this year’s rankings.

While winning the National Championship is an incredible achievement, all of the schools who participated should be very proud. Teams that finished in the top 16 had to perform well at multiple competitions throughout the year, not just send out one strong team. I had the honor to act as a judge in the competition, and I was impressed by the advocacy, as well as the professionalism of the Blakely Institute hosts. Congratulations to all involved!

February 17, 2020 | Permalink | Comments (0)

Sunday, February 16, 2020

Resolving the Tension Between Religious Liberty and Equality

In Masterpiece Cakeshop Ltd. v. Colorado Civil Rights Commission, the Court confronted the issue of whether the Free Exercise Clause of the First Amendment permits a business owner to refuse service to individuals – in violation of a state anti-discrimination statute – if providing such service would violate the business owner’s religious beliefs.[1] By way of background, the Petitioner, a small business owner in Colorado, refused to bake a wedding cake for a same-sex couple because doing so would have violated the business owner’s religious beliefs.[2] The Respondent, Colorado Civil Rights Commission, later held that the business owner’s refusal to serve the same-sex couple violated Colorado’s anti-discrimination law. In so holding, the Commission rejected the Petitioner’s religious liberty claim.

Unquestionably, Masterpiece Cakeshop Ltd. implicated the tension between liberty (i.e., permitting individuals to freely exercise their religious beliefs) and equality (i.e., the statutory and, in some situations, constitutional right to freedom from discrimination), and underscored the difficulty in balancing these competing interests. Indeed, how should this tension be resolved and what standard or criteria should be adopted to guide lower courts in future cases?

In its decision, the Court did not answer these questions. Instead, the Court issued a narrow decision in which it held that the Colorado Civil Rights Commission’s decision was procedurally unfair because the Commission displayed impermissible hostility toward religion during the hearing.[3] Thus, the underlying legal issue remains unresolved, although it will likely only be a matter of time before the Court again confronts this question.

The purpose of the Free Exercise Clause, and the Court’s jurisprudence, has established several principles that may help to address the question presented in Masterpiece Cakeshop Ltd. and guide lower courts in future cases.[4] To begin with, a core purpose of the Free Exercise Clause is to ensure that individuals can freely exercise their religious beliefs without undue interference, and absent coercion or fear of reprisal. Indeed, the right to religious freedom is essential to safeguarding individual liberty. As Justice Sandra Day O’Connor stated in City of Boerne v. Flores, “[g]iven centrality of freedom of speech and religion to the American concept of personal liberty, it is altogether reasonable to conclude that both should be treated with the highest degree of respect.”[5]

Importantly, however, the right to religious freedom is not absolute. In limited circumstances, laws infringing on religious liberty will be upheld if they further compelling government interests, are narrowly tailored, and constitute the least restrictive means of achieving the stated interests.[6] The Court’s jurisprudence has established several principles that clarify the extent to which the government may restrict religious liberty.

First, the Court distinguishes between religious beliefs and practices, the latter of which is subject to restriction. As the Court held in Reynolds v. United States, “[l]aws are made for the government of actions, and while they cannot interfere with mere religious belief and opinions, they may with practices.”[7]

Second, any law that coerces individuals into acting contrary to their beliefs violates the Free Exercise Clause. In Lyng v. Northwest Indian Cemetery Protective Ass’n, the Court emphasized that states “may make it more difficult to practice certain religions,” provide that state laws “have no tendency to coerce individuals into acting contrary to their religious beliefs do.”[8]

Third, states may not enact laws that target specific religions or religious practices. For example, in Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, the Court invalidated a law banning the ritual sacrifice of animals because the record indicated that the law was aimed at suppressing core aspects of a worship service conducted by the Santeria religion.[9] As Justice Anthony Kennedy explained, states “may not devise mechanisms, overt or disguised, designed to persecute or oppress a religion or its practices.”[10]

Fourth, and perhaps most significantly, in Employment Division v. Smith, the Court held that generally applicable laws do not violate the Free Exercise Clause if they only incidentally burden religious practices.[11] Writing for the majority, Justice Antonin Scalia stated that “[i]t is a permissible reading of the text … to say that if prohibiting the exercise of religion … is not the object … but merely the incidental effect of a generally applicable and otherwise valid provision, the First Amendment has not been offended.”[12] The Court’s holding in Smith overruled its prior decision in Sherbert v. Verner, where the Court held that individuals may seek exemptions from laws that infringe on their religious freedom.[13]

In response to Smith, Congress enacted the Religious Freedom Restoration Act, which states that any law resulting in a “substantial burden” on religious practices violates the Free Exercise Clause unless it furthers a compelling governmental interest and is the least restrictive means to achieve that interest.[14] However, in City of Boerne, the Court held that the Act does not apply to the states.[15] Thus, in Masterpiece Cakeshop, the Act was not relevant to the Court’s decision.

Ultimately, it is difficult to predict how the Court will rule when, in all likelihood, it is confronted with this or a very similar issue in the future. In Masterpiece Cakeshop Ltd., Justice Kennedy suggested that “while … religious and philosophical objections are protected … such objections do not allow business owners and other actors in the economy and in society to deny protected persons equal access to goods and services under a neutral and generally applicable public accommodations law.”[16] However, Justice Kennedy retired from the Court in 2018 and it is by no means certain that his replacement, Justice Brett Kavanaugh, or the majority of justices, would agree with this proposition.

If the Court does decide this issue in the future, Smith will be highly relevant. Specifically, the justices will likely address whether Smith should be overruled or modified. If the justices decline to overrule Smith, they will probably consider whether the law at issue only incidentally burdens religious liberty or is sufficiently burdensome that it violates the Free Exercise Clause. Additionally, the Court will likely examine whether the law coerces individuals into violating their religious beliefs or impermissibly targets specific religious practices.

As stated above, it is difficult to predict how the Court will rule. Whatever the result, the Court will hopefully adopt a workable standard that clarifies the appropriate balance between liberty and equality, and that effectively guides lower courts, thus avoiding confusion regarding how these interests are balanced in future cases. However, given the fact-specific nature of cases in this area, the Court’s desire to maintain institutional legitimacy, and its understandable reticence to issue broad and sweeping decisions, the Court will most likely issue a narrow ruling that leaves to the lower courts the task of clarifying and developing the law in future cases.

[1] 138 S. Ct. 1719 (2017).

[2] See id.

[3] See id. (Specifically, the Court highlighted the following language as evidence of the Commission’s hostility toward religion: “Freedom of religion and religion has been used to justify all kinds of discrimination throughout history, whether it be slavery, whether it be the Holocaust, whether it be—I mean, we—we can list hundreds of situations where freedom of religion has been used to justify discrimination. And to me it is one of the most despicable pieces of rhetoric that people can use to—to use their religion to hurt others”). 

[4] U.S. Const., Amend. I (providing in relevant part that “Congress shall make no law … prohibiting the free exercise [of] religion”).

[5] 521 U.S. 507, 564-65 (1997).

[6] See id. at 555 (O’Connor, J., dissenting) (“[T]he right to free exercise was viewed as generally superior to ordinary legislation, to be overridden only when necessary to secure important government purposes”).

[7] 98 U.S. 145, 166 (1878).

[8] 485 U.S. 439 (1988).

[9] 508 U.S. 520 (1993).

[10] Id. at 547.

[11] 494 U.S. 872 (1990).

[12] Id. at 878.

[13] 374 U.S. 398 (1963).

[14] 42 U.S.C. § 2000bb-1(a)(2012).

[15] 521 U.S. 507.

[16] 138 S. Ct. 1719 (2017).

February 16, 2020 in Appellate Advocacy, Appellate Justice, Appellate Practice, Current Affairs, Federal Appeals Courts, Legal Profession, Religion, United States Supreme Court | Permalink | Comments (0)

Saturday, February 15, 2020

Simple Tools to Power Up Your Policy

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Policy to us lawyers means reasons a decisionmaker should decide a certain way that is not based strictly on legal authority like cases and statutes. This includes urging someone to act because of things like fairness or to make the court system more efficient.

Many legal writers fall on two sides of a sweet spot. On one side are lawyers who ignore policy and value arguments, believing them irrelevant or improper. Sometimes, maybe that’s so. But the science leaves no doubt that policy and our readers’ values influence their decisions. So ignoring this stuff is dangerous.

On the other side are legal writers who get that policy matters, but bang their legal readers over the head with it. These attorneys tell their readers all about how their client must win because of this or that policy, and why it would be “wholly” unfair and unjust for the other side to prevail.

Don’t fall into either of these traps. Yes, policy is important. Science tells us that. But obvious policy plays will annoy many lawyers, and especially judges. So choose your policy arguments with care. And deliver them subtly.

Consider three big ideas when it comes to policy.

Start with the law

Usually (unless you know your audience is particularly ok with policy-front arguments), start with the law and make it obvious you are doing so—because that is what all us lawyers and judges want to hear about.

Then support those legal points with more moving policies. And support any policy arguments with citations from cases or other reputable sources, if possible. It will blunt some of the bad reactions.

For example: 

“The Ninth Circuit has already told us the right approach here: dismiss this case and allow the plaintiff to file a new one. And the rule makes sense. Defendants in these sorts of cases are usually small mom and pop companies without any sort of insurer paying for their defense. Requiring them to pay for litigation that will likely be mooted--which will likely put them and their employees out on the street--is not the sensible course.”

Notice how much easier the policy hits when it comes woven into the legal points?

Select wisely, and understand the spectrum of policies and value arguments.

Policy arguments come in various flavors, but one useful way to divide them is into four types. Thinking through these types can help you come up with some good policies (and themes) for your next writing project:

  1. Normative: arguments about shared values and goals that the law should promote;
  2. Economics: consider the money and objective consequences of a rule;
  3. Institutional competence: arguments about the proper relationship of courts to other courts and courts to other branches of government; and
  4. Judicial administration, arguments about the practical effects on how courts will do business in the future.

You may also want to consider that a series of studies shows people value future events more than equivalent events in the past. People in these studies, for example, required more compensation for events that would take place in the future than for identical events that had taken place in the past.

There is also reason to believe that policy and value arguments are on a spectrum—some are more likely to raise a legal reader’s hackles than others.

Objective policy may be the safest—and sometimes even welcome—form of policy or value argument.  These include things like:

  • Misunderstanding a rule (or case, or statute, or regulation)
  • Court efficiency
  • Creating a harsh rule for future litigants that has unintended consequences
  • Clarity in the law
  • Stare decisis/consistency
  • Reducing costs
  • Procedural fairness

Next on the spectrum, welcome to some legal readers but less so to others, are theoretical legal frameworks. These include things like:

  • Natural law;
  • Formalism;
  • Legal realism;
  • Legal process;
  • Fundamental rights Law and economics/ maximizing benefits; and
  • Critical legal theory: political based legal approach

Subjective policy is where policy and values get the diciest. These are arguments like:

  • Fairness in the result
  • Protecting the innocent party
  • Political and ideological values
  • Scarcity issues
  • Care/Harm,
  • Fairness/Cheating,
  • Authority/Subversion,
  • Sanctity/Degradation,
  • Loyalty/Betrayal, and
  • Liberty/Oppression.

Finally, consider some other cognitive processes that might be relevant to subtly weaving in some policy (as well as to your theme). Many of these may be working against you, depending on the case. So considering them, and how you may want to counter them, can be powerful stuff.

  • Anchoring: "The tendency to rely too heavily, or ‘anchor', on one trait or piece of information when making decisions (usually the first piece of information that we acquire on that subject)."
  • Availability heuristic: "The tendency to overestimate the likelihood of events with greater ‘availability' in memory, which can be influenced by how recent the memories are or how unusual or emotionally charged they may be."
  • Bandwagon effect: "The tendency to do (or believe) things because many other people do (or believe) the same."
  • A preference for confirmation: "The tendency to search for, interpret, focus on and remember information in a way that confirms one's preconceptions."
  • The preference for the status quo: "The tendency to like things to stay relatively the same."

Here is an example of an attorney deftly setting up an objective policy—misconstruing the law and creating unforeseen consequences:

“This is a right no court has ever recognized. It has little to recommend it. If accepted, it would dramatically extend the reach of copyright protection, and eliminate an entire genre of literary supplements…”

Pick policies your particular reader will be receptive to.

There are some legal readers, including judges, who are more influenced by policy than the law. And they aren’t afraid to admit it. If that’s so, you would be silly to ignore it. Above all, you are writing to persuade others. That means speaking in their language, whatever that is.

So it’s worth taking some time to research your audience. If it’s a judge, read some of their decisions. Pay close attention to long decisions or often-cited ones. Dissents are also a big giveaway. These samples are more likely to reflect the judge’s deeply-held feelings. Use this all to get a sense of whether your reader will be receptive to policy—and how far you can go with 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

February 15, 2020 | Permalink | Comments (0)

Friday, February 14, 2020

Appellate Advocacy Blog Weekly Roundup Friday, February 14, 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.

US Supreme Court Opinions and News:

  • Texas has petitioned the Supreme Court to declare a California interstate travel-ban unconstitutional. The travel ban prohibits state-funded travel to states that fail to provide sufficient protections for LGBTQ people. Texas was added to the list of banned states in 2017 because of a Texas law allowing foster care agencies to use sincerely held religious beliefs as a basis to deny placements to gay couples. Texas argues that the ban violates the Dormant Commerce Clause, the Privileges and Immunities Clause, and the Equal Protection Clause. See the State of Texas filing. Reports are available from The Texas Tribune and Fox News and by Josh Blackman at The Volokh Conspiracy.

  • The Supreme Court issued a memorandum formalizing some previously unwritten procedural  rules.  This memorandum discusses rules on scheduling private conferences and deadlines for petitions for certiorari.  Bloomberg Law has this report on the memorandum.  

  • Adam Feldman has posted “About this Term: OT 2019” at his Empirical SCOTUS blog.

  • In Supreme Court historical news, Christopher Brooks wrote an online essay about the first black man allowed to argue before the Supreme Court. And the Harvard Law School Library has released some of the papers of Justice Antonin Scalia. Harvard Law Today reported here.

Federal Appellate Court Opinions and News:

  • The Court of Appeals for the DC Circuit threw out the emoluments claim against the president brought by 215 members of Congress. The DC Circuit applied Supreme Court precedent from House of Delegates v. Bethune-Hill (2019) and Raines v. Byrd (1997), holding that “’individual members’ of the Congress ‘lack standing to assert the institutional interests of a legislature.’” The order reversed a lower court holding that the members had standing. The order is here. The many reports on this ruling include those from The New York Times , The Washington Post, The Wall Street Journal, The Hill, and Politico.  

  • The Third Circuit ruled in favor of Philadelphia, finding that the city can prohibit an employer's asking an applicant about salary history. The ruling was welcomed by wage-equity proponents, who claim the law could reduce gender- and race-based wage discrimination.  See reports from the National Law Review and the Philadelphia Inquirer and an essay about the equal pay implications by Professor Joanna L. Grossman. The ruling is here.

  • After ruling that Arizona’s “ballot harvesting” law discriminates against minority voters (see The Weekly Round Up, January 31), the Ninth Circuit granted Arizona’s request to stay the ruling so that Arizona may seek Supreme Court review. The stay means that the law will remain in effect at least through the presidential primary in March. See report in the Arizona Daily Star and AP News.  

  • The Ninth Circuit upheld the dismissal of a lawsuit that argued that an Oregon school district policy violated the Constitution and civil rights law by allowing a transgender student to use bathrooms and locker rooms that match their gender identity. The court found that the policy did not violate the rights to cisgender students or their parents and dismissed the case. See reports from KATU News, Bloomberg (subscription required), and the ACLU.  The ruling is here.

  • Brooklyn Federal Judge Jack Weinstein, the longest-serving federal judge in the country, has retired after a 53-year career.  See The New York Daily News report.

 

February 14, 2020 in Appellate Advocacy, Appellate Practice, Appellate Procedure, Federal Appeals Courts, United States Supreme Court | Permalink | Comments (0)

Tuesday, February 11, 2020

SCOTUS Clarifies Cert-Stage Procedures

The Supreme Court of the United States recently issued new guidelines to help practitioners understand its procedures (internal and otherwise) during the certiorari stage. While the guidelines do not appear to change established practice, they do help practitioners understand how the Court operates during this stage.

The guidelines clarify when a response is required and when it should be filed, along with how and when a motion to extend time to file a response may be filed. They also address how a waiver of the right to respond may be filed, and when a reply should be filed.

The last point has confused some practitioners. There is no deadline to file a reply on petition for certiorari. However, if the reply is filed before distribution to chambers, then it is included in the preliminary packet. There is an advantage to getting that "last word" in front of the Court from the beginning of their review.

To help understand the timing, the guidelines go on to describe when petitions are scheduled for conference. This timing depends on both certain case events and the type of case ("paid" versus in forma pauperis), so if you do have a case on petition, take the time to read the guideline so you can understand exactly when it will be set for conference, and then key your deadlines off that analysis.

These guidelines appear to be part of an ongoing process by the Supreme Court to help new or infrequent practitioners understand a system that can be a bit of black box, starting with guidelines on amicus briefing issued last October. Hopefully that process will continue.

 

February 11, 2020 in Appellate Practice, Appellate Procedure, United States Supreme Court | Permalink | Comments (0)

Monday, February 10, 2020

Congratulations to David Cleveland

Last week I got an email from Prof. Kristen K. Tiscione, the president of the Legal Writing Institute, announcing that Dean David Cleveland, founding editor of this blog, has been awarded the LWI  2020 Courage Award.  Since I can't say it any better, here is what Prof. Tiscione wrote:

The Board of Directors of the Legal Writing Institute is delighted to announce that David R. Cleveland is the recipient of the 2020 Courage Award.  David is the Dean and a Professor of Law at Valparaiso University Law School in Valparaiso, Indiana. 

 

The Courage Award was created by Dr. Terri LeClercq to honor courageous legal writing professors.  With this award, LWI seeks to honor members who have demonstrated courage by doing, despite fear, something that most people would not do. 

 

By any measure, Dean Cleveland has exhibited the courage this award is meant to honor.  He has shown great courage as the dean at Valparaiso Law School as it faced severe and ultimately insurmountable financial difficulties.  As dean, he consistently advocated for legal writing at Valparaiso and always put students’ interests first.  We agree wholeheartedly with the nominators that his valiant and selfless work on behalf of Valparaiso and its students represents “courage in action.” 

 

Not only has he served as a role model for his courage in action, but Dean Cleveland has also published impassioned scholarship on court reform and appellate justice.  This work qualifies as “civil courage” as described in the Call for Nominations.  He is thus an authoritative, respected, and dedicated voice for our community.  We could not be more proud.

 

Please join us in celebrating David’s achievements as we present this award at the biennial conference at Georgetown Law during the opening reception, scheduled for Wednesday evening, July 15, 2020.  Further details to be announced.

 

The LWI Board is grateful for the work of the LWI Awards Committee in identifying nominees and making recommendations to the Board. The Committee includes Co-chairs Greg Johnson and Brenda Gibson, and members Andrew Carter, Lindsey Gustafson, Margaret Hannon, Dana Hill, Mary Nagel, and Suzanne Rowe.  

 

Congratulations David!  I can't think of a better recipient of this award. You have remained upbeat and positive in difficult circumstances and been a encourager and encouragement to me.

February 10, 2020 | Permalink | Comments (0)

Tuesday, February 4, 2020

The Appellate Advocate's Library

             A recent post to the Legal Writing Professors’ Listserv asked what “how-to” practice books new lawyers should have on their bookshelves. That question prompted me to wonder what books appellate advocates should have in their library. Here, in no particular order, is my list.

  • Tessa L. Dysart, Leslie H. Southwick, & Ruggero J. Aldisert, Winning on Appeal: Better Briefs and Oral Argument (3d ed. 2017)
  • Bryan A. Garner, Garner’s Modern English Usage (4th ed. 2016)
  • Bryan A. Garner, Legal Writing in Plain English (2d ed. 2013)
  • Black’s Law Dictionary (10th ed.)
  • Richard C. Wydick, Plain English for Lawyers (5th ed. 2019)
  • Bryan A. Garner, The Redbook: A Manual on Legal Style (4th ed. 2019)
  • Ross Guberman, Point Made (2d ed. 2014)
  • Alan L. Dworsky, The Little Book on Oral Argument (2d ed. 2018)
  • Patricia T. O’Connor, Woe is I: The Grammarphobe’s Guide to Better English in Plain English (3d ed. 2009)
  • Benjamin Dreyer, Dreyer’s English: An Utterly Correct Guide to Clarity and Style (2019)
  • Antonin Scalia & Bryan A. Garner, Making Your Case: The Art of Persuading Judges (2008)
  • Mary Beth Beazley, A Practical Guide to Appellate Advocacy (5th ed. 2020)
  • David C. Frederick, Supreme Court and Appellate Advocacy (3d 3d. 2019)
  • Bryan A. Garner, The Winning Brief: 100 Tips for Persuasive Briefing in Trial and Appellate Courts (3d ed. 2014)
  • Matthew Butterick, Typography for Lawyers (2d ed. 2018) (also available for free online at https://typographyforlawyers.com/)
  • Verlyn Klinkenborg, Several Short Sentences About Writing (2012)
  • Colleen M. Berger, ALWD Guide to Legal Citation (6th ed. 2017)
  • Susan Bell, The Artful Edit: On the Practice of Editing Yourself (2008)

What would you add?

February 4, 2020 | Permalink | Comments (5)

Sunday, February 2, 2020

Don’t Make These Mistakes When Writing An Appellate Brief

When drafting an appellate brief, your goal should be to produce a well-written document that maximizes the persuasive value of your arguments. In so doing, be sure to avoid the following mistakes.

1.    You fail to follow the local court rules

The local court rules typically contain requirements regarding, among other things, the cover of your brief, the word count, spacing, font size, and font type. Failing to follow the local court rules demonstrates a lack of diligence and respect for the court, and undermines the credibility of your arguments.

2.    You seek a remedy that is outside of the court’s authority

When drafting your arguments, do not seek a remedy that the court is not authorized to provide (or include information that is not included in the record below).

Consider this example. You represent a state that recently enacted a statute outlawing all abortions and the American Civil Liberties Union challenges the statute’s constitutionality. A district court holds that the statute violates the United States Supreme Court’s decision in Roe v. Wade, which held that the Due Process Clause of the Fourteenth Amendment encompasses a right, in some instances, to terminate a pregnancy.

You decide to appeal the court’s ruling and, in your brief, you argue that Roe v. Wade was wrongly decided, that the appellate court should overrule Roe, and that the statute should be upheld. However, the appellate court lacks the authority to overturn precedent from the U.S. Supreme Court and, as such, your argument will be rejected.

Additionally, you should not make arguments based on facts that are not included in the record below or that were not preserved in the lower court.

3.    You overstate the relevance of precedent

Although it is vital to address favorable and unfavorable precedent in your brief, you should never overstate the relevance of favorable precedent. Specifically, do not represent that the facts of a prior case are “strikingly similar” if they are not and do not mischaracterize a prior holding to provide support for your position. The court (and your adversary) will almost certainly notice this error and your credibility, along with your client’s chances of success, will diminish substantially.

Instead, you should explain why precedent, although distinguishable, nonetheless supports the remedy you seek.

4.    You are not direct with the court

Appellate judges are extremely busy and read thousands of briefs. Thus, make sure that you present the legal issues and relevant arguments in a direct, understandable, and honest manner. Specifically, at the beginning of your brief, be sure to do the following:

  • Identify the errors in the lower court’s decision
  • State the remedy that you would like the court to provide
  • Explain why you are entitled to this remedy
  • Briefly provide the facts and relevant law that support your position

If an appellate court struggles to identify the relevant facts and arguments in your brief, the judges will not view you – or your arguments – favorably.

5.    You do not consider the relevant standard of review

Appellate courts decide cases using specific standards of review. For example, appellate courts apply the “abuse of discretion” standard when reviewing factual issues, in which the courts defer substantially to the lower court’s findings. When reviewing legal questions, however, appellate courts apply the “de novo” standard of review, in which the courts give no deference to the lower court’s findings.

Thus, your arguments should be drafted in light of the applicable standard of review, and you should explain in detail and with specificity why your arguments, under the relevant standard, support the relief you seek.

6.    You do not organize your brief effectively

Your goal should be to draft a brief that is readable, understandable, and easy to follow. A well-organized brief typically includes the following:

  • Headings and subheadings that are rarely, if ever, longer than one sentence
  • A roadmap at the beginning of the brief, in which you outline your arguments and state the order in which they will be presented
  • Paragraphs that only discuss a single point or issue and that always begin with a topic sentence

If your brief is not organized effectively, you will diminish the persuasive value of your arguments (and you will probably annoy the judges).

7.    You file an unnecessarily lengthy brief

Given that appellate judges are very busy and read thousands of briefs, you should make sure that your brief is as concise as possible. Unnecessarily lengthy briefs will likely annoy the judges, distract the judges from the substance of your arguments, and reduce the persuasive value of your brief. Thus, when drafting your brief, be sure to omit excess words, unnecessary facts, and irrelevant legal arguments.

Simply put, less is often more.

8.    You make basic writing or stylistic errors

Your brief should not contain errors that cast doubt on the quality of your writing or your competence as an attorney. For example, do not:

  • Use over-the-top language (e.g., don’t say “The court’s decision in the prior case made no sense and was utterly devoid of even the semblance of reasoned legal analysis,” or “The defendant’s arguments are ridiculous and not even worthy of a response”)
  • Use block quotes unless absolutely necessary
  • Include overly long paragraphs
  • Repeat arguments
  • Use complex or esoteric words

Ultimately, to ensure that your brief is of the highest quality – and avoids these mistakes – be sure to rewrite and edit your brief, and proofread it on paper.

February 2, 2020 in Appellate Advocacy, Appellate Practice, Appellate Procedure, Federal Appeals Courts, Law School, Legal Profession, Legal Writing | Permalink | Comments (0)

Saturday, February 1, 2020

Appellate Advocacy Blog Weekly Roundup Friday, January 31, 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.

US Supreme Court Opinions and News:

  • This week, the Supreme Court granted, without much explanation, the petition to stay an injunction that had prevented the implementation of the Justice Department’s income-based restrictions on immigration. The ruling allows the administration, in the consideration of green card applications, to base decisions on whether the applicant is likely to need public assistance, including public benefits like Medicaid, food stamps, and housing vouchers. The bulk of the opinion is Justice Gorsuch’s concurrence, which focuses on “[t]he real problem here” described as “the increasingly common practice of trial courts ordering relief that transcends the cases before them.” See reports in New York Times, Washington Post, and Associated Press.

  • A documentary on Clarence Thomas is being screened across the country this month. “Created Equal: Clarence Thomas in His Own Words” is reviewed and discussed in The Washington Post and The National Review. A trailer is available on YouTube.

Federal Appellate Court Opinions and News:

  • The Ninth Circuit ruled this week that Arizona’s “ballet harvesting” law discriminates against minority voters. The court reversed a lower court’s findings in favor of Arizona on all counts and stated that Arizona’s laws “have a discriminatory impact on American Indian, Hispanic, and African American voters in Arizona” and that the laws were “enacted with discriminatory intent.” See decision here. See reports by The Arizona Republic, The Associate Press, The Hill, and Bloomberg Law

  • Also from the Ninth Circuit, the court will permit the malicious prosecution suit against Fairbanks, Alaska, by the four men who spent eighteen years in prison for a murder they didn’t commit. The convictions of the “Fairbanks 4” were thrown out when another man confessed to the murder.  See the Courthouse News Service report and the opinion

  • The Eighth Circuit upheld an injunction blocking an Arkansas campaign contribution law. The court ruled that the law, which prohibits contributions to a campaign until two years before election day, is likely unconstitutional.  The decision is here. See reports from Bloomberg Law (requires subscription) and the Arkansas Democrat-Gazette.

  • The DC Circuit reversed the dismissal of a First Amendment challenge to “FOSTA,” an anti-sex trafficking bill. The dismissal was based on subject-matter jurisdiction, finding that the petitioners lacked standing.  The DC Circuit decision reversed and remanded, finding that at least two petitioners had established standing. See article here.  

  • A Sixth Circuit ruling will permit an expelled med-school student to sue for defamation. The student alleges that her professor fabricated a test-cheating story after she rebuffed his advances. See decision and report from Bloomberg Law.

Appellate Practice Advice

A recent Twitter question prompted a thread providing advice for appellate advocacy “newbies.” The thread included a link to a useful 2016 post by Steven Klepper on building an appellate practice.

February 1, 2020 in Appellate Advocacy, Appellate Practice, Federal Appeals Courts, United States Supreme Court | Permalink | Comments (0)