Appellate Advocacy Blog

The Writing Process – Drafting, Rewriting, and Revising

Drafting an appellate brief (or any brief) is often a challenging and time-consuming endeavor. Among the best ways to ensure that a brief is of the highest quality is to adhere to the three stages of the writing process.

Specifically, the writing process consists of: (1) the drafting stage; (2) the rewriting stage; and (3) the revision stage. The tips below will help law students and attorneys through each stage of the writing process and, ultimately, maximize the quality of briefs and other legal documents.

I.    The Drafting Stage

The purpose of the drafting stage is to put your story, ideas, and arguments on paper. As such, you should write freely and creatively. Do not attempt to produce a perfect or even well-written document. And never attempt to write and edit simultaneously because it will stifle your creativity, divert your attention from the substantive arguments that you want to include in your brief, and slow the writing process.

In so doing, understand that although the first draft may, among other things, lack flow and effective organization, contain grammar and style errors, be redundant, or contain poorly phrased sentences and paragraphs, these problems will be fixed during the rewriting and revision stages.

After you have completed the first draft, take a few hours or a day (if time permits) to reflect on what you have written, and ask another person to read your first draft. You will likely generate new ideas regarding, for example, how to present or refine particular arguments, what facts and arguments to include, and how to organize the brief. Indeed, these and other issues will be the focus of the rewriting stage. As author David Sedaris said, “[y]ou need to do the best that you can do, and then you need to take the best that you can do, and you need to rewrite it, and rewrite it, and rewrite it, and rewrite it.”

II.    The Rewriting Stage

The purpose of the rewriting stage is to refine your first draft. During this stage, attorneys should focus on improving the structural and substantive aspects of a brief. This should include, but not necessarily be limited to, the following:

• Ensuring that the brief is organized effectively, which will likely require reordering specific paragraphs or sections of a brief;
• Improving the flow of your brief, which includes making sure that you transition seamlessly when presenting various facts and arguments and use subheadings where necessary to improve the flow and clarity of your arguments;
• Eliminating unnecessary repetition;
• Eliminating irrelevant facts;
• Considering whether you have omitted important facts or legal arguments. For example, you may have failed to address a relevant counterargument, distinguish an unfavorable case, or include a favorable fact; and
• Making sure that your paragraphs begin with a clear topic sentence that focuses on a specific issue and end with sentences that transition effectively to the next paragraph and section.

Importantly, lawyers (and writers generally) often perform several rewrites. And during the rewriting stage, you should print out and read aloud your brief because it will ensure that you discover errors or areas for improvement that you may not have otherwise noticed.        

III.       The Revision Stage

During the revision stage, you should concentrate on the smaller but equally important details of your brief. Put simply, the revision stage is where you perform a line and copy edit of your brief. This should include, but not necessarily be limited to, the following:

• Making paragraphs and sentences shorter;
• Varying sentence length;
• Eliminating complex or esoteric words, adverbs, and unnecessary adjectives;
• Ensuring that your brief contains no grammatical, stylistic, or spelling errors;
• Including transition words to ensure flow and clarity;
• Eliminating words that convey ambiguous or unintended meanings;
• Reducing the number of quotes;
• Deleting repetitive sentences;
• Eliminating cliché phrases and colloquial language;
• Ensuring that your brief is written in the active voice (for the most part);
• Using the CTRL+F feature to search for overused and unnecessary words; and
• Submitting your document to an online editing service, such as Grammarly.

Additionally, you should perform multiple revisions to ensure that you identify all errors and maximize the persuasive value of your brief.

Finally, you should never combine any of these stages. For example, if you combine the rewriting and revising stages, you will almost certainly fail to identify both large and small-scale problems with your brief and compromise your brief’s persuasive value. Lawyers who adhere to the three stages of the writing process will – and do – produce briefs of the highest quality.

Integrating Automation Into Your Practice

It's hard to try something new, especially for lawyers. And that goes doubly for technology. But tech is here to stay. And when you're ready, one of the most exciting areas to explore is automation. 

Automation can be simple. It's more of a mindset than any one fancy tool. The idea is straightforward: Identify things that you do a lot, preferably small and monotonous tasks. Then figure out what tools you can use to automate them. 

At the easiest and simplest end, small steps like creating document templates are a form of automation. So is making information handy by creating, say, a database of reference documents that you use a lot. 

As you dive deeper, a world of possibilities opens up. Automations allow you to unlock the true power of technology and processes, carrying out endless potential tasks that you would normally have to do yourself, or delegate to others.

You can automate some tasks using a tool's own features. For example, Outlook’s quick steps feature does some automating. The task-management application Todoist lets you set some automated tasks like creating a new to-do anytime you send an email to a special address. 

But using a tool like Zapier, you can link different pieces of technology together, creating triggered automations that can tackle all sorts of things for you. Simply select two tools you use a lot and start exploring all the automations you can set up.

Want to send all documents from a certain email-sender to a folder in your Google Drive? Easy. Want to have all responses to your Tweets uploaded to a folder for you to peruse at once? Tools like Zapier can do that in a few minutes. 

For lawyers the possibilities are endless. We use so many applications now, and the ability to connect them all up and create automations is a gamechanger. 

Another side to the automation conversation is document automation. Tools like Documate have jumped onto the legal tech scene, allowing anyone to create apps (with no programming experience) that can automate much of your document-creation process. Create templates that will collect information from your team or clients and watch these tools assemble your document in moments. And all with a user interface so intuitive, you'll feel like it's an iPhone. 

With many of us working from home now, and all the pressure to get more efficient--it's the perfect time to explore automation. Know going in that it's a new skill set and will take some time to learn. But the payoff will be worth it. 

Appellate Advocacy Blog Weekly Roundup May 29, 2020

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 [email protected] or on Twitter (@Daniel_L_Real) or (2) Catharine Du Bois at [email protected] or on Twitter @CLDLegalWriting.

Supreme Court Opinions and News:

The Supreme Court this week refused to set aside a lower court order directing inmates of an Ohio prison ravaged by COVID-19 be removed through release, home confinement, parole, or transfer.  The Trump administration sought to block the lower court's order.  For more, see this New York Times article or this Bloomberg article.

One of the most impactful cases that the Supreme Court has yet to issue a ruling on is one involving DACA recipients ("Dreamers").  The Trump administration ended the program, which provided temporary protective status for immigrants who were brought to the country illegally as children.  Impacted parties have been waiting for a ruling since November, and it is expected to come sometime in June.  See more from the Boston Globe.

As the calendar turns to June, Empirical SCOTUS took a look at the cases that were argued before SCOTUS in its historic May 2020 and broke down a variety of important aspects of them.

Appellate Advocacy Tips:

A recurring -- but always incredibly useful and insightful -- topic on #AppellateTwitter is advice for practitioners preparing for their first appellate oral argument.  That advice was sought and given again this week.  See Erica Tatoian's thread for the nuggets of wisdom given this time around.

Coronavirus isn't the Only Infection to Worry About Right Now.

In May, while the world was still trying to adjust to life during quarantine, the Texas Office of Court Administration was hit by a ransomware attack. While the details are still a bit sketchy because of an ongoing investigation, we do know that the State refused to pay the demanded ransom, shut down the infected systems, and has struggled since then to continue its work via alternate channels.

For appellate attorneys, this has been particularly frustrating. The systems that were shut down include some of the case notification mechanisms, so attorneys are finding out via social media whether they won or lost an appeal. In some cases, the court's access to the record appears to have been lost, so advocates are being asked to help provide case information and records back to the court. Throughout it all, Texas courts have somehow managed to not only continue to work but to lead in holding remote oral arguments and hearings and in continuing to push their dockets despite the quarantine and a crippled IT infrastructure.

In a past life, I worked as a systems administrator and technician, and even wore a "white hat" while hacking to test security. So I am familiar with the challenges in preventing ransomware attacks. This post, however, isn't written for the IT crowd. I hope to give some advice to the attorneys and professors who generally ignore such posts, but are often the source of the problem.

First, you need to know that ransomware attacks generally follow a set pattern. The attackers implant software that helps them gain control of a system, usually be encrypting data so it is no longer usable. They then notify the victim of the attack and demand a ransom, usually in bitcoin or another cryptocurrency. If the ransom is paid, they promise to decrypt the data. Sometimes they do, sometimes they do not.

Where do you, the user, fit into this scheme? Usually, you are the point of infection. By taking a few precautions you might prevent the next attack, or help with the restoration that follows.

1.     Don't be the Source of the Infection.

Most ransomware is spread by Phishing, or emails that entice you to click a link that then loads the software onto your computer. Your IT department is serious when it asks you not to click on links from outside sources. The same goes for email attachments, and for links sent via text.

Some attacks start with "social engineering," or gaining access to sensitive information from users that can be used to guess passwords. Avoid the social-media posts that ask you cute personal questions and share with your friends. Even if your password isn't related to your date of birth, favorite pet, child's name, or other seemingly harmless bit of data, one of your friends' passwords might well be. Or, the attacker might use that information to personalize an email phishing attack that is just too hard to resist.

Finally, avoid using public wifi, or if you do, use the VPN that your employer has most likely set up for you. This is probably less common now that we are trying to stay in place, but is still a common source of attack.

2.     Help Preserve your Data.

If there is an attack, the target is the sensitive data that you hold. Most likely, that data will be locked away and inaccessible for awhile, if not forever. If your firm or court is going to recover, it needs your help.

Make sure that you keep up with backups. And, if you are working from a court's electronic record available online, do yourself (and the court) a favor and download that information rather than just relying on the online version. After suffering data corruption and other issues, I even email myself drafts of briefs as I progress in writing so that nothing is lost. The idea is to keep multiple copies on multiple storage devices, so that if one fails, there is still a way to recover. Some sensitive data will have to be more restricted, but in general, on appeal at least, we are working with public records that can be stored in multiple places.

3.     Remember that Confidentiality is a Ethical Responsibility.

Ransomware attacks are up across the board. There are even some healthcare providers that have been targeted, although some of them have been offered "discounts" on the ransom because they are essential service providers. Don't think that you are not a target. More importantly, don't think that your client's confidential information is not a target.

Indeed, law firms are increasingly the target of security intrusions. To protect clients, Comment 8 to Rule 1.1 of the ABA Model Rules imposes a duty of competence that includes keeping abreast of the "benefits and risks associated with relevant technology." Recently, Formal Opinion 483 clarified that the lawyer's duties include both taking all reasonable efforts to protect clients from data breaches and informing them when one occurs.

In the end, protecting client data is the professional responsibility of the attorney. You can't just blindly rely on your IT department or contractor and avoid that responsibility. Instead, you must be aware of the vulnerable world we live in, and take steps to be safe with not just your personal health, but the health of your data as well.

(Image attribution: "Virus" by kai Stachowiak, CC0 public domain license)

An Interview with Sean Marotta and Raffi Melkonian

My colleague, Prof. Susie Salmon, recently started a podcast called Practice in Place:  Law and Justice Go Viral.  You can find the first episode here.  The premise of the podcast is as follows:

[H]ow does a profession governed by precedent respond to the unprecedented? Practice in Place investigates how the practice of law and the administration of justice have adapted under the abrupt constraints of the COVID-19 era, how that has affected how and whether we achieve justice, and how those changes and that experience might or should change the practice, the profession, and its procedures forever. Produced by University of Arizona, James E. Rogers College of Law and hosted by Professor Susie Salmon and the Legal Writing Program.

I am pretty excited about the project.  For a forthcoming episode, I interviewed Sean Marotta, a partner at Hogan Lovells, and Raffi Melkonian, a partner at Wright Close & Barger, for their thoughts on the pandemic and the future of appellate practice.  For those who would like to hear our full discussion, I have posted the video below.  Sean and Raffi had insightful tips on surviving the pandemic, keeping your kids occupied, what they saw legal practice looking like in the next few months, and keeping sane.  I also provide my  insights on the going rate for finding typos in briefs.  Enjoy!

 

 

Reviewing the United States Supreme Court’s Decision in Kahler v. Kansas

In Kahler v. Kansas, the United States Supreme Court confronted the question of whether a state could effectively eliminate the insanity defense.

I.    The Court’s Decision

By way of background, in criminal prosecutions nearly all jurisdictions provide an insanity defense that enables defendants to prove that they are not legally responsible for a charged offense. Although the elements of the insanity defense differ somewhat among the states, most follow or closely track the M’Naghten rule, which requires defendants to demonstrate that: (1) they suffered from a diagnosed mental illness; and (2) due to such illness, they did not appreciate the wrongfulness or of their conduct (i.e., could not distinguish between right and wrong). The insanity defense is used in approximately one percent of criminal cases and only succeeds in about one-quarter of those cases.

In Kahler, the State of Kansas did not eliminate the insanity defense per se. Instead, Kansas adopted a different approach in which defendants could be absolved of criminal responsibility if they could demonstrate that their mental illness negated the intent element of a particular crime.[1] Writing for the majority, Justice Elena Kagan held that state laws regarding criminal responsibility are only unconstitutional if they violate "some principle of justice so rooted in the traditions and conscience our people as to be ranked as fundamental.”[2] Applying this rather vague and subjective standard, the majority held that the Fourteenth Amendment does not require states to adopt an insanity defense that focuses on moral wrongfulness.  Rather, the insanity defense is “substantially open to state choice” and “animated by complex and ever-changing ideas that are best left to the States to evaluate and reevaluate over time.”[3] Thus, the majority rejected the argument that the Fourteenth Amendment required states to adopt a particular test for insanity, including a test that focused on whether defendants knew that their actions were morally wrong. Indeed, as the majority stated, “no single version of the insanity defense has become so ingrained in American law as to rank as ‘fundamental.’”[4]

II.    Analysis

The Court got it wrong.

There should be a constitutional minimum – a baseline – that ensures the fair and just treatment of mentally ill defendants at both the adjudicatory and sentencing stage. Indeed, the Court – and state legislatures - should recognize that severe mental illness reduces culpability and in some cases, criminal responsibility, regardless of whether a defendant knew that the conduct in question was legally proscribed or morally wrong.  Doing so would demonstrate that Kansas's approach, and the standard used in most jurisdictions (the M’Naghten rule), is woefully inadequate. It leads to grave injustices. And it demonstrates an alarming indifference to the direct and indirect consequences that mental illnesses exact on individuals' ability to reason and make informed choices.

Indeed, although some mental illnesses do not necessarily negate the intent element, these illnesses often cause a person to act with an ‘intent’ that is not culpable or even worthy of criminal responsibility. In his dissent, Justice Stephen Breyer highlighted the flaw in Kansas’s approach. Justice Breyer explained that “Kansas has not simply redefined the insanity defense,” but instead “has eliminated the core of a defense that has existed for centuries: that the defendant, due to mental illness, lacked the mental capacity necessary for his conduct to be considered morally blameworthy.”[5]

Justice Breyer explained as follows:

A much-simplified example will help the reader understand the conceptual distinction that is central to this case. Consider two similar prosecutions for murder. In Prosecution One, the accused person has shot and killed another person. The evidence at trial proves that, as a result of severe mental illness, he thought the victim was a dog. Prosecution Two is similar but for one thing: The evidence at trial proves that, as a result of severe mental illness, the defendant thought that a dog ordered him to kill the victim. Under the insanity defense as traditionally understood, the government cannot convict either defendant. Under Kansas’ rule, it can convict the second but not the first.[6]

That, in a nutshell, is the point – and the problem. To hold that the second individual in Justice Breyer’s hypothetical acted with the requisite intent is to reduce intent to a standard that is divorced from context and deliberately indifferent to empirical evidence demonstrating that, in some circumstances, mentally ill individuals do not – and cannot – act rationally. They act impulsively. They act under a false set of beliefs that influence their decisions and motivate their actions.

III.       Broader Problems With the Insanity Defense

The problems with Kansas's approach represent only the tip of the constitutional iceberg. The standards governing insanity in many jurisdictions, which largely track the M’Naghten rule, are deeply troubling.[7] Specifically, requiring defendants to show that they could not appreciate the wrongfulness of their actions (i.e., distinguish right from wrong) ignores the deleterious effects of mental illness on human behavior. Severely mentally ill individuals may know that an action is legally proscribed or morally wrong, but that fact is irrelevant to such individuals because, in some instances, they form a distorted set of beliefs, experience an inability make rational decisions, and struggle with an emotional state that can allow impulse to trump reason. By ignoring or failing to sufficiently account for this, the extant approaches make it all but certain that severely mentally ill individuals will be found guilty of various criminal offenses, face substantial periods of incarceration where they will receive inadequate treatment (and inevitably decompensate), and struggle to reintegrate into society upon release.

As a policy matter, this is problematic, if not fundamentally unjust. Mentally ill individuals often deteriorate while incarcerated, as they lack the support and structure necessary to effectively treat their illnesses. Upon release, such individuals frequently find it difficult, if not impossible, to successfully transition into the community, obtain meaningful employment, and achieve the stability necessary to lead functional lives. These deleterious consequences result in part from instituting a narrow and underinclusive insanity defense at the adjudication stage, and defaulting to incarceration rather than treatment at the sentencing phase, notwithstanding that there is little, if any, evidence that incarcerating mentally ill individuals serves any purpose of criminal punishment (e.g., deterrence). Simply put, the manner in which mentally ill individuals are treated in the criminal justice system is a national disgrace.[8]

IV.    Reforms

Principled reforms should include broadening the insanity defense to eliminate the moral wrongfulness requirement (i.e., that defendants lack appreciation of the wrongfulness of their conduct), recognizing the mitigating effects of mental illness on culpability and, in some cases, criminal responsibility, providing convicted but mentally ill defendants with treatment rather than incarceration (or at least ensuring a competent treatment protocol), reducing sentences, and establishing effective reentry programs to facilitate mentally ill defendants’ transition into society upon release.

Put simply, states, like Kansas, should no longer be allowed to ‘experiment’ with the insanity defense. A uniform approach at the adjudication and sentencing phase is necessary to ensure that mentally ill defendants receive equal protection under the law.

 

[1] See Kahler v. Kansas, No. 18–6135, available at: https://www.supremecourt.gov/opinions/19pdf/18-6135_j4ek.pdf

[2] Id.

[3] Id.

[4] Id. (internal citation omitted).

[5] Id.

[6] Id.

[7] A minority of states have adopted broader versions of the insanity defense and thus provide defendants with fairer and more just opportunities to demonstrate that their mental illnesses substantially reduce, if not eliminate, responsibility for a particular crime.

[8] This is not to say, of course, that mentally ill individuals are more likely to commit crimes. It is to say, however, that when individuals with severe and diagnosed mental illnesses, such as schizophrenia and bipolar disorder, engage in criminal conduct, the law should provide a remedy, at the adjudication and sentencing stages, to ensure that such individuals receive treatment for such illnesses.

 

Appellate Advocacy Blog Weekly Roundup Friday, May 22, 2020

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 [email protected] or on Twitter @Daniel_L_Real or (2) Catharine Du Bois at [email protected] or on Twitter @CLDLegalWriting.

US Supreme Court Opinions and News

• The Supreme Court unanimously ruled that Sudan must pay the over-$10 billion judgement awarded to the victims of the 1998 al-Qaeda bombing of the U.S. embassies in Kenya and Tanzania. The ruling allows Sudan to be held liable for both punitive and compensatory damages. A 2014 appellate ruling had determined that a 2008 law that permitted retroactive application of compensatory damages to cases involving state-sponsored terrorism did not extend to punitive damages.  The Supreme Court reversed that ruling and reinstated the 2012 judgment.  See opinion and reports from Bloomberg, The Washington Post, and The Associated Press.  

• The Court refused to grant Idaho officials' request to block a transgender inmate’s surgery pending appeal.  The ruling leaves in place a Ninth Circuit order ruling that, by failing to provide the inmate’s gender confirmation surgery, Idaho violated the Eight Amendment’s ban on cruel and unusual punishment. Idaho is appealing to the Supreme Court, which has not yet decided whether it will hear the case. See reports from The New York Times and NBC News.

• The Court has refused to grant an “emergency” request by two Texas inmates to reinstate a district court order that had required a Texas prison to take measures to protect inmates against the threat of COVID-19. A federal appeals court stayed the order pending appeal and found that the measures required by the district court’s order went further than Centers for Disease Control and Prevention guidelines.  Although agreeing with the ultimate decision to deny the request, Justice Sotomayor issued a statement, to which Justice Ginsberg joined, to “highlight disturbing allegations” in the case. She writes: "It has long been said that a society's worth can be judged by taking stock of its prisons. That is all the truer in this pandemic, where inmates everywhere have been rendered vulnerable and often powerless to protect themselves from harm. May we hope that our country's facilities serve as models rather than cautionary tales." See Justice Sotomayor’s statement and reports in The New York Times, CNN, The Wall Street Journal, and Bloomberg Law.

Federal Appellate Court Opinions and News

• The Fourth Circuit has allowed an emoluments suit against the president to proceed. The case, by Washington D.C. and Maryland, alleges that Donald Trump violated the Constitution by profiting from foreign and state patrons at his Washington, D.C., hotel. The court found a genuine dispute over the definition of an “emolument,” writing “we can hardly conclude that the President’s preferred definition of this obscure word is clearly and indisputably the correct one.” See opinion and a sampling of the many reports at The New York Times, The Courthouse New Service, The Hill, Politico, and The Washington Post.   

• The Fifth Circuit has temporarily stayed a Texas district court’s May 19 ruling that would have allowed voters in Texas to vote by mail during the COVID-19 pandemic. The district court’s ruling found that the disability provision in the Texas vote-by-mail code applied to voters who “lack immunity from COVID-19 and fear infection at polling places.” See report at CNN, The Texas Tribune, and The Dallas Observer.

• The Sixth Circuit granted rehearing en banc and vacated its decision finding that the “the Constitution provides a fundamental right to a basic minimum education” and defining that as an education that “plausibly provides access to literacy.”  This column reported on the Sixth Circuit’s right-to-education decision a few weeks ago.  See the order granting rehearing and reports from Bloomberg Law and Detroit Free Press.

State Court Opinions and News

• In Michigan, the court have upheld the governor’s right to extend a stay-at-home order. Michigan residents claimed that the stay-at-home measures infringed on their constitutional rights.  The court recognized that the state has authority to enact policy when “faced with a public crisis” and determined that the policy was consistent with the law.  The court further iterated that a citizen’s constitutional rights are “subject to reasonable regulation by the state.”  See report by CBS News and The Hill.
• In Wisconsin, the state supreme court struck down the governor’s stay-at-home order, ruling that the governor had overstepped his authority by extending the quarantine measures without consulting the legislature.  See the opinion and reports from The Associated Press, The Hill, and Wisconsin Public Radio.
• In Oregon, the state supreme court stayed a county judge’s ruling that declared the governor’s COVID-19 measures concerning church gatherings “null and void.” See report in The Oregonian.

Chief Justice Roberts, Timecop: data-driven analysis of telephonic oral argument in the Supreme Court

In the time it takes for most of us to formulate a coherent thought, @LeahLitman has written an entire paper.

— Prof. Kate Shaw

The team here at the Appellate Advocacy Blog has discussed impressions, both our own and those of others, of telephonic oral arguments in the United States Supreme Court. We're fresh off the Court's reluctant pivot in the first two weeks of May to socially-distanced oral argument. And because the Court adopted telephony rather than video, it had to adjust the process of oral argument: the rapid-fire, justice-dominated, interruption-heavy free-for-all dynamic of modern SCOTUS oral argument would devolve into crackling chaos if freighted without modification into a world of sound and fury, void of visual cues. So adjust it did: the justices asked questions in turn, in order of seniority. And they did so under relatively strict time management by the Chief Justice.

As we've seen from the fascinating work of scholars like Tonja Jacobi and others (which I've discussed here and here), there's much one can draw from careful analysis of data from oral arguments. So, as the dynamic of oral exchanges at SCOTUS has shifted in These Challenging Times, it's cool to see scholarship already emerging that extracts and analyzes data from the arguments. Nearly two weeks ago, in a post at his Empirical SCOTUS blog, Adam Feldman broke down the first four telephonic arguments and compared them to the four most recent traditional arguments. Yesterday, Feldman further developed this analysis in a post on SCOTUSblog; it is the first in a three-part series. One of Feldman's conclusions is that the new format "offers an interesting lens into potential improvements for oral arguments moving forward": according to his analysis, the more structured, centrally governed format led to broader participation by the justices, afforded the justices greater chances to interact with counsel, and gave advocates better opportunities to respond to questions. In earlier work, Feldman and Rebecca Gill of the University of Nevada Las Vegas suggested that the Court do what suddenly sounds familiar: (1) have the Chief Justice exercise more control over who asks what and when, and (2) have justices ask questions seriatim, by seniority. Among the possible benefits of a more structured, moderated conversation: fewer interruptions of women justices, a phenomenon that Feldman & Gill carefully analyze and that's the subject of fantastic work by Jacobi and Dylan Schweers. 

And that brings us to the work of Leah Litman. Yesterday, Professor Litman posted her analysis of the telephonic arguments. Among the many interesting strands she identifies: at least in this tiny dataset, gendered (and ideological) interruptions appear to persist when the Chief, like Jean-Claude Van Damme, plays time cop. Although Chief Justice Roberts generally enforced time limits on justices' questioning period by interrupting advocates, Litman tallies 11 instances in which he interrupted a justice. Nine were of women. The Chief cut off Justice Sotomayor six times and Justice Ginsburg three. (He also cut off Justice Breyer twice. My normal reaction to this would be, like, who wouldn't, given that Justice Breyer's questions tend to go on a bit. But, as Litman and Feldman both note,  Breyer spoke relatively little in the telephonic arguments.) It looked like this:

* * *

* * *

* * *
There's much more in the piece and much of interest in Professor Litman's data. 

A Toast to Those in the Courts Who Were Ready for This Pandemic

 

This blog post might provide you with information you already know.  The information is new to me, which made me think sharing it might assist others as well.  As I was looking at the Louisiana Supreme Court’s website recently, a reference caught my eye.  That reference was to the publication, “Preparing for a Pandemic: An Emergency Response Benchbook and Operational Guidebook for State Court Judges and Administrators.”  The publication can be downloaded here: https://ncsc.contentdm.oclc.org/digital/collection/facilities/id/194. 

A team from the Conference of Chief Justices and the Conference of State Court Administrators worked on a Pandemic and Emergency Response Task Force to create this document, which was published by the National Center for State Courts in 2016!  That date caught my eye because, like so many of you, I have been stunned over the past few months (yes, months that sometimes feel like years) by what has been going on in the world: stunned by the magnitude of this pandemic.  And now, I am stunned by the fact that this group created this resource four years ago that is so relevant to what the world is experiencing in 2020.

The benchbook/guidebook urges state courts to create their own books tailored to their states in which they include both federal and state laws that will be relevant should a pandemic occur.  It raises issues to be considered in a pandemic, such as maintaining constitutional protections during a pandemic; operating courts during a pandemic; searches, seizures, and other government actions to maintain public health; and jurisdiction of public health issues.  It suggests that courts create certain model orders and court rules to use in the event of a pandemic.  It also provides a resources list that includes citations to state courts that already had such plans back then.  From back in 2016, it discusses and suggests many of the things that we are now discussing and suggesting.

I highly recommend you review this document, if you have not already seen it.  Perhaps it will be helpful to you in your law practice, in your law school, in your court, and even in your personal life as you grapple with and consider issues that do not often present themselves.  Thank you to the National Center for State Courts https://www.ncsc.org/, the Conference of Chief Justices https://ccj.ncsc.org/, and the Conference of State Court Administrators https://cosca.ncsc.org/ for thinking ahead.  I only wish we did not need your good book. 

Notes from the ZOOM Frontier.

The panel seems comfortable, but the lighting needs work and the background is cluttered.

My family has been using Zoom from home quite a bit during the quarantine. My wife, a history professor, Zooms her lectures. class discussions, and student conferences. My children use Zoom for school and to keep up with friends. And I use the software for work meetings, moot court tryouts and practices, and church events.

I thought I was pretty Zoom competent. Then I was assigned my first Zoom oral argument. To complicate matters, in compliance with local regulations and recommendations, we are running our office on a skeleton staff and most of our attorneys are working from home. I am no exception. I had to take things to another level if I was going to use my home office as a substitute appellate venue.

In the end, I put together a fairly professional setup. But I still made some mistakes. I hope you can learn something, both from the good and the bad, if you also need to use your home office for oral arguments.

First, setting up a more professional Zoom appearance will likely require establishing a more controlled environment, including lighting, sounds, and backdrop concerns. Learn from others. Watch some of the Zoom sessions from your court and others, and see what you find works and what does not.

As I watched those videos I saw distracting backgrounds, poor lighting, mic feedback, noisy interruptions, and awkward paper shuffling. I tried to tackle those problems.

In my home office I have both a desktop with a larger screen set high, and a laptop that I move to-and-from work. I setup the laptop as my "Zoom computer," with the camera slightly above my eye level. That allowed me to still use my desktop screen and keyboard, with the screen just above the laptop camera, which allowed me to keep my eyes close to a "normal" position while looking at my outline and, if necessary, pulling up the record or briefing.

This was handy, cut down on the visual and auditory distraction of trying to shuffle paper, and kept my eyes fairly centered on the screen. But all of that screen glare turned me blue. So next I tackled the lighting.

Most professionals recommend lighting be in front and above the face. So I found a lamp that I could place on my desk and slightly above my screen. I then adjusted the blinds on my windows to cut out a distracting side-glare. The image was still bluer than I would have liked, but the image was crisper and the glare was gone.

Next was sound. My home office is comfortable, but it is not quiet. I have a large window to my left with a lovely view and french doors opening into the entryway of the house. A guest bath is directly behind me.

This means that, at any given time, my dog might decide to visit me at my window. Or a squirrel or happy bird might visit and decide to chat. Likewise, children come and go looking in with curiosity any time the doors are shut, and the guest bath is often used. All of this had to be controlled to the greatest extent possible. Signs go up, conversations are held, dogs are crated, and so on. There is no controlling the squirrels. (Nor the flushing, as we recently learned).

Finally, my office has deep burgundy walls and wood paneling, which, while very masculine, made for displeasing video background. So I searched the web far and wide for the perfect office bookshelf background that could be used without charge, and eventually settled on one that made me look scholarly.

All of this needed to be tested, so I went through some "dry run" recordings and practices and made several fine tunings. My laptop is fairly new, so I did not need to put up a sheet behind me for the virtual backgrounds to work, as some recommend. I did use an ethernet cable instead of a wifi connection to ensure a strong connection.

After numerous tests it was game time. And despite all of the preparation, some of the same problems that have plagued others hit our oral argument. Zoom would highlight the justice's screens in yellow at times, seemingly indicating that they were going to ask a question. I would stop, not wanting to speak over anyone. And for a few seconds (that seemed like eternity), we just stared awkwardly at each other.

My desktop screen, meanwhile, despite being carefully loaded and setup prior to the argument, kept popping up distracting notifications, and I had trouble loading one file I tried to pull up for quick reference. Shadowy figures moved past my doors, distracting me as they tried to be as nondistracting as possible. And something tried to dig into my office from behind my closed shades.

In the end, we all struggled through it. But going forward, there are a few things I would do differently. I am going to talk to the clerk about potential solutions to the problem of either talking over the panel or constantly stopping when it appears they are trying to ask a question. The lag in both the transmittal and the muting and unmuting of speakers is a problem. In some trial court proceedings attorneys are starting to hold up signs that say "Objection" during live testimony to alert the judge that they want to lodge an objection. Maybe we can have "Question" signs or something similar for oral arguments.

The slightly-off lighting is fixed. A relatively inexpensive LED bulb replaced the old incandescent lamp bulb. With an app I can now adjust the color and intensity of that light, balancing out the lighting problems with a high degree of control.

In subsequent tests I still look a bit washed out, even with well-balanced lighting. Some professionals recommend heavier makeup than usual for women, and that men also consider some makeup to appear more natural on screen. I'm not sure I'm ready for that frontier yet, but time will tell.

I am also either going to go back to paper, or learn how to shut down everything but my PDF viewer and practice more with finding and sharing screens. The live screen was just too distracting, and in the end I missed my binder and written outline. That process is going to evolve.

So will yours. As teachers are being reminded, the changes we are making to our routines during quarantine do not allow for perfection. We have to settle for "good enough" while we struggle to find new best practices. I hope my experience helps you in your own Zoom frontier.

As a final note, the Clerk sent out a "Zoom checklist" that was helpful in setting things up. I will share that with you:

1. Create a Zoom account;
2. Download the Zoom client or app;
3. Watch Zoom tutorials on Zoom’s website or YouTube if you need to;
4. Start a test meeting on Zoom to test your microphone and speakers;
5. For optimal connection, do not use WiFi;
6. Start a Zoom meeting as the host and invite friends to join your meeting;
7. Discuss your lighting, background, audio, and video in your test meeting;
8. Use a non-distracting background;
9. When speaking, remember to look directly at the webcam, not at the screen;
10. When not speaking, mute yourself in order to avoid any potential background noise or court personnel will mute you when not talking;
    1. Alt+A (to mute/unmute audio)
    2. Alt+V (to mute/unmute video)
11. Position the camera at your eye level or slightly above eye level;
12. Look professional - the same as if appearing in the courtroom;
13. Speak one at a time;
14. Give your current contact information (email, cell phone number) to court personnel;
15. Join a test meeting with court personnel;
16. Suggest that a group email and text group be created for your oral argument in case of technical difficulties;
17. Discuss what to do if there are technical difficulties during the oral argument with court personnel;
18. Practice disconnecting from and rejoining the Zoom meeting with court personnel;
19. Make sure you know who the host of the Zoom oral argument will be and when to expect the invitation for the Zoom session to be emailed to you;
20. Write down or print out the contact information for court personnel;
21. DO NOT FORWARD ZOOM MEETING INFORMATION. The panel justices, and counsel arguing the case for the parties, will be the only participants admitted;
22. Join the Zoom oral argument session at the 10 minutes before argument starts.

Good luck on your next Zoom argument. If you have any tips to share, please feel free to join in below in the comments.

(Image attribution: Inside a bar at the Table Bluff Hotel and Saloon. Humboldt County, California. 1889.Wikimedia Commons.)

 

Guest Post: Zoom Oral Arguments, Some Tips from the Trenches

This is a guest post from Stephen P. Hardwick, an Assistant Public Defender for the State of Ohio.

I had two Zoom oral arguments in the Ohio Supreme Court in the last week of April. I’ll break what I learned into four categories—the physical and electronic set up, practice and preparation, the argument itself, and finally some thoughts on how to use what might be your only chance to be in the office for weeks or months. And just like preparation for a courtroom argument, there’s a lot more to do preparing for the argument than at the argument itself.

1. Computer and room set up:
   1. Regardless of what I say here, when it comes to the camera set up, the background, and the aesthetics of the podium area, you should do what you need do to feel comfortable and professional. I explain here what worked for me, but trust your judgment. For example, even though I can’t imagine that I’d do better sitting down, if you’re more comfortable sitting in front of a web cam, you’ll probably do better that way.
   2. Use your office. At least in Ohio, legal services are “essential,” and using your office means you don’t have to shush your kids for hours, share a residential broadband connection with their Zoom classes, or worry about a flushing toilet in the background. When I came home from the first argument, my wife told me a neighbor had been doing concrete work the whole time. Try to imagine that when pleading your client’s case.
   3. If possible, use a high definition web cam and then test whether it the camera angle is better at the top or the bottom of your monitor. Either way, having the web cam close to the screen means that when you look at the judges, the judges will feel like you’re looking at them. I didn’t use a web cam, but I wish I had because it would have provided a higher quality feed. My office is working to find one for the next attorney with an argument.
   4. Use a moderate-sized monitor. I used a huge wall-mounted monitor, but I found myself looking at the tiny laptop screen that was about six feet away because it was closer to the camera. A moderate-sized monitor will give enough space to see the judges without pushing the camera too far from the center of the screen.
   5. If at all possible, physically attach your computer to the office’s Internet service. WiFi is not good enough unless there’s no other choice. Cell connections sometimes are faster than WiFi connections, so if you can’t use a wired connection, test your cell connection and compare it to your WiFi. I had to abandon my first test run with Ohio Supreme Court staff because my WiFi connection was too slow. Most of my suggestions are just suggestions. This is not.
   6. The computer you use for Zoom might be inaccessible for a few hours before argument, so if possible, use one computer for the video hook up and another one for notes, files, and last-minute Westlaw searches. For Ohio Supreme Court arguments, we check in between 7:45 and 8:00 a.m., and then they put us in the Zoom waiting room until our argument time, which might not be until 11:00. During one of my waits, I checked a transcript, which inadvertently changed the angle of my computer screen. Because I was in the waiting room, I didn’t see that I was cut off at the chest until it was time to say, “May it please the Court.” If I had used a different laptop, I would not have had this problem.
   7. Have someone in the room with a remote keyboard and mouse who can take care of technical issues, like muting and unmuting or reconnecting the video if needed. If you can avoid it, you don’t want to pause the argument to take care of a technical problem. Your assistant can focus on fixing a problem while you continue to focus on arguing your case.
   8. Unless you have an exceptional microphone, use the dial-in number from a landline or VoIP. It will almost certainly be clearer, and it will be less problematic than using your laptop microphone. Connect using your “Participant ID” so the audio will be synced with your video. If you don’t know what that means, work with the court’s tech staff.
   9. Set the camera back far enough that it shows the upper half of the podium and a couple feet on either side. I strongly suggest standing at the podium when arguing and sitting when you’re not. Standing makes it easier to use gestures, and it made me feel more professional. If you sit, do so where the judges can see you so that you don’t entirely disappear from their view. Note: Ohio Supreme Court Justice Judith French has recommended either sitting or standing the whole time. She was concerned about awkward transitions. I hope I was sufficiently ready for the transitions that I didn’t bug her, but I was concerned about fidgeting while standing, which would have created its own nuisance.
   10. Professional virtual backgrounds are perfectly fine. So is an empty or nearly empty room. So is a bookshelf or uncluttered office. Whatever you do, you should be deliberate about what the camera will show. You should also have it ready before the test session with the court so that court staff can give feedback on the background. The IT professional helping us had spoken with our Chief Justice about how to run the argument, so if he asked me to change something, the Chief Justice probably would have, too.
   11. On the computer you use for the video feed, quit EVERYTHING. You don’t want anything popping up when you are arguing. You also don’t want your computer using its resources for anything but your argument.

2. Practice and preparation:
   1. Attorneys get a test session the week before an Ohio Supreme Court argument. The test is both mandatory and extremely helpful. Michael Woods, the Ohio Supreme Court’s IT person, was great. Picture an Apollo-era mission control chief—white shirt with a tie, slightly horn-rimmed glasses, and a headset with a microphone extending around in front. He was also meticulous and calm. If you don’t have a practice session, ask for one.
   2. The Ohio Supreme Court required us to use a Zoom account with our real name and a professional-looking profile photo. The profile picture would appear if the video quit. The name appears over you during the argument. If your kids use the same account for school, make sure you don’t have your kid’s name over your feed and that you won’t present yourself to the court with a dragon avatar
   3. Make sure the court staff knows the number of the caller ID of the phone you will call in from. Often, our office phones give out a different caller ID than the number needed to call that phone. Because the staff had my correct number, they knew that, if needed, they could answer a call from me and immediately plug it back into the arguments.
   4. Do at least one Zoom moot court with the set up you will use for the argument. Have someone else host the Zoom moot because that’s how the argument will go. If possible, do the moot after the official test session so you will be using the set up that the court staff has approved. The practice sessions and moot courts will help you make sure that you have all the equipment you need set up in the best possible way. During my first practice session, I discovered that I needed a very specific adapter to physically connect to the Internet. You don’t want to wait until argument day to discover that you need some piece of equipment.
   5. Have a back-up plan in case you end up with a fever or something else that prevents you from using the office. We all could be the next person to get sick, and even a mild cough will keep us out of the office.

3. Conduct of the argument itself:
   1. Be ready to act without the normal cues. In the courtroom, an attorney waits at counsel’s table until summoned to the podium by the presiding judge. In the Zoom world, you need to be ready when she calls you.
   2. Prioritize audio. At least in the Ohio Supreme Court, if you lose video during the argument, the Chief will keep the argument moving as long as she can hear you.
   3. I found it helpful to recreate a familiar environment—the podium, sitting while not speaking, and a real glass with cool water in it, just like the Ohio Supreme Court provides during a courtroom oral argument. A water glass might not be important to use, but I bet something small is. Figure out what that is and do it.
   4. Ohio Supreme Court staff required attorneys to leave a cell phone on to get messages before speaking or if there was a problem. That felt weird to me. I’m paranoid about my phone going off, so I didn’t like leaving it on. But I did.

4. Office issues:
   1. This may be your only chance to personally check on your plants and retrieve stuff from your office. Take advantage of it, but don’t dawdle.
   2. Follow whatever rules your office sets. That will probably mean you’ll need to take your temperature, wear a mask when not presenting, and sanitize everything you touch. Your “essential” colleagues have to come to that place, so respect them enough to be careful.

5. Final note: If something goes wrong, it’s OK. The judges will be patient as long as you’re making a good faith effort. So calmly do what you can to fix the problem. Remember that screen I accidentally put out of adjustment? During my initial argument, I just made sure my gestures were high enough to see. Before I sat down, I stepped forward, adjusted the camera angle, and sat down. No one said anything, and the argument continued. Your judges will show similar patience with you.

Mental Illness and the Criminal Justice System

The criminal justice system’s treatment of mentally ill offenders is woefully inadequate and alarmingly ineffective. Indeed, the treatment of such offenders – from arrest to conviction – often exacerbates their psychiatric disorders and enhances the likelihood that they will re-offend – or die while trying to reintegrate into society.

Below is a summary of various aspects of the criminal justice system that highlight the inadequate treatment provided to mentally-ill defendants.[1]

I.    Before trial

First, criminal defendants with mental illnesses, such as schizophrenia, bipolar disorder, and major depression, often languish for many months in state prisons while awaiting trial.[2] During this time, many mentally ill defendants, some of whom have been declared incompetent to stand trial, fail to receive adequate psychiatric care and often receive little to no counseling or other support services. As a result, their mental health frequently deteriorates substantially while awaiting trial in overcrowded and underfunded prisons, or in psychiatric hospitals where the primary, if not exclusive, objective is to restore the defendant to a minimum level of competence. The deleterious effects of these substandard and, in some cases, inhumane conditions are debilitating and long-lasting.

II.    During trial

At a criminal trial, mentally-ill defendants often find it difficult, if not impossible, to demonstrate that their respective mental illnesses were a substantial or proximate cause of a crime's commission and that, accordingly, they are less culpable (or not responsible at all).[3] Although defendants may plead the insanity defense, this defense is only used in approximately one-percent of cases and is unsuccessful in approximately seventy-five percent of those cases. The reason is that most jurisdictions follow the M'Naghten rule, which requires a showing that a defendant was mentally ill or impaired at the time of the crime’s commission and that the defendant did not appreciate the wrongfulness of his or her conduct (i.e., could not distinguish between right and wrong).

The latter prong of the M’Naghten test makes it extremely difficult for defendants to prove insanity. Simply put, a mentally ill defendant may technically or abstractly understand that particular conduct is unlawful but, due to the deleterious effects of mental illness (e.g., impulse control, irrationality, delusions), the defendant may lack the intentionality necessary to comport with the law.

III.      Incarceration after conviction

Many mentally-ill defendants are found guilty and sentenced to lengthy periods of incarceration in an environment that is highly likely to exacerbate, rather than ameliorate, their respective mental illnesses. Specifically, being confined for prolonged periods of time without meaningful social interaction, receiving insufficient psychiatric care and evaluation, and having little to no support services (e.g., counseling, cognitive behavioral therapy) all but guarantee that mentally-ill inmates will deteriorate, if not decompensate, while incarcerated.[4] The result is that, upon release, mentally-ill defendants struggle to reintegrate into society and achieve emotional and financial stability.

IV.    Inadequate post-release support

Upon release, mentally ill defendants often receive insufficient mental health treatment. Although mental health courts in some states have improved the type and quality of care provided to some defendants, particularly those convicted of minor crimes, many defendants with mental health issues who have deteriorated substantially while incarcerated receive substandard care upon release.[5]

Indeed, courts are often reticent to approve a post-release in-patient treatment program for mentally-ill defendants. Thus, these defendants, some of whom are suffering from severe mental health issues, typically receive only out-patient care, and the compliance rates for these defendants vary substantially. Furthermore, the outpatient care that mentally ill defendants receive is often woefully inadequate, consisting of only periodic psychiatric assessments, including regarding the efficacy of medication, and only a modest degree of individualized counseling at state-run hospitals of dubious quality. Moreover, in some cases, the implementation of an outpatient program is delayed upon release, which leaves mentally ill defendants without any care whatsoever for days, if not weeks.[6]

V.    The results – recidivism and suicide

Not surprisingly, upon release, and lacking adequate mental health support, a substantial portion of mentally ill defendants fail to successfully reintegrate into society:

Once in jail, many individuals don't receive the treatment they need and end up getting worse, not better. They stay longer than their counterparts without mental illness. They are at risk of victimization and often their mental health conditions get worse. After leaving jail, many no longer have access to needed healthcare and benefits … Many individuals, especially without access to mental health services and supports, wind up homeless, in emergency rooms and often re-arrested. At least 83% of jail inmates with a mental illness did not have access to needed treatment.[7]

And in some instances, these defendants commit suicide. This was precisely the result that occurred when my brother, Marc Lamparello, committed suicide three weeks ago by jumping off the Verrazano Bridge in New York.[8]

On April 17, 2019, Marc, who had previously been diagnosed as schizophrenic, was arrested and charged with attempted arson after entering St. Patrick's Cathedral in New York City with four gallons of gasoline. For the next year, Marc spent most of his time at Riker's Island prison in New York, with an intermittent stay at a psychiatric hospital in New York before he was transferred back to Riker’s Island while he awaited trial.

During his time at Riker's Island, including in the last five months, Marc received psychiatric medication but was provided with no therapy or other support services whatsoever. Incarcerated in an overcrowded and underfunded prison, Marc’s condition continuously deteriorated while it took the state criminal court months to approve a plea bargain and effectuate his release. As part of his release, Marc was required to immediately undergo intensive outpatient therapy – five times per week for six hours per day. And by the time of his release in mid-March, Marc's condition had deteriorated so substantially that immediate and sustained treatment was necessary to save his life.

But that never happened. For thirty days, Marc did not receive any treatment whatsoever. At first, Marc’s caseworker and psychiatric hospital explained that, due to coronavirus concerns, Marc had to quarantine for fourteen days. Subsequently – and without explanation – Marc was dropped from the treatment program.

Only days later, on April 10, 2020, Marc attempted to jump off of the George Washington Bridge in New York City. His life was saved when law enforcement officers rescued him before he could jump. In the next few days, Marc’s family implored doctors at the psychiatric hospital to which he was admitted to enroll Marc in the hospital’s in-patient program. They declined.

Instead, the hospital released Marc only five days later.

Two days after his release, Marc jumped off of the Verrazano Bridge in New York and died. Marc's death highlights the woefully inadequate treatment that he received during and after incarceration. In short, the manner in which Marc was treated during and after incarceration was disgraceful.

This is not to say, of course, that incarceration is neither necessary nor desirable for many defendants, including those with mental illnesses, particularly those convicted of violent crimes. It is to say, however, that the criminal justice system's approach to treating mentally ill defendants is glaringly inadequate. Given this fact, scholars, practitioners, and public policy experts should continue to emphasize before courts and legislatures the need to reform the criminal justice system’s substandard treatment of mentally ill defendants.

The current paradigm is fundamentally unjust.

*This post is dedicated to my younger brother Marc Lamparello, who died on April 17, 2020, at the age of 38. Rest in peace, Marc.

 

[1] See The Sentencing Project, Mentally Ill Offenders in the Criminal Justice System: An Analysis and Prescription, available at: https://www.sentencingproject.org/wp-content/uploads/2016/01/Mentally-Ill-Offenders-in-the-Criminal-Justice-System.pdf

[2] See Paul Tullis, When Mental Illness Becomes a Jail Sentence (Dec. 2019), available at: https://www.theatlantic.com/politics/archive/2019/12/when-mental-illness-becomes-jail-sentence/603154/

[3] See Natalie Jacewicz, 'Guilty But Mentally Ill' Doesn't Protect Against Harsh Sentences (Aug. 2016), available at: https://www.npr.org/sections/health-shots/2016/08/02/486632201/guilty-but-mentally-ill-doesnt-protect-against-harsh-sentences

[4] See Human Rights Watch, Ill-Equipped: U.S. Prisons and Offenders with Mental Illness (Oct. 2003), available at: https://www.hrw.org/report/2003/10/21/ill-equipped/us-prisons-and-offenders-mental-illness

[5] See Jo Sahlin, The Prison Problem: Recidivism Rates and Mental Health (May 2018), available at: https://www.goodtherapy.org/blog/prison-problem-recidivism-rates-mental-health-0520187

[6] See generally, Released inmates need programs to meet basic mental health needs, study shows (Jan. 2014), available at: https://www.sciencedaily.com/releases/2014/01/140106103737.htm

[7] National Institute of Mental Health, Jailing People with Mental Illness, available at: https://nami.org/Advocacy/Policy-Priorities/Divert-from-Justice-Involvement/Jailing-People-with-Mental-Illness

[8] See Jan Ransom, An Arrest at St. Patrick's, a Struggle for Help, Then a Suicide (April 30, 2020), available at: https://www.nytimes.com/2020/04/30/nyregion/marc-lamparello-suicide-st-patricks-arson.html

 

Appellate Advocacy Blog Weekly Roundup Friday, May 8, 2020

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 [email protected] or on Twitter @Daniel_L_Real or (2) Catharine Du Bois at [email protected] or on Twitter @CLDLegalWriting.

US Supreme Court Opinions and News

• This week, the Supreme Court resumed oral argument but, for the first time, it heard argument via telephone and allowed the public real-time access. Some of the many reports include those from The Washington Post, NPR, NBC News, and The Associated Press.  Find the first telephonic oral argument here in U.S. Patent and Trademark Office v. Booking.com B.V.   Because argument was held via telephone, Justice Ginsberg, who was hospitalized this week, was able to participate in oral argument on Wednesday from her hospital bed.  See reports from CNN, BBC, and USA Today.
• The Supreme Court overturned the fraud convictions of the public officials in New Jersey’s "Bridgegate" scandal. The Court confirmed that the public officials did in fact realign toll lanes in New Jersey to cause traffic problems to “punish the mayor of Fort Lee for refusing to support the New Jersey Governor’s reelection bid.” However, because the officials did not obtain money or property, the Court unanimously held that these actions were not criminal under federal law. See the opinion and reports from CNN, Politico, and The Atlantic. 
  
  
• The Court dismissed a Second Amendment challenge to a New York City gun ordinance. Instead of ruling on the merits, the Court determined that the challenge was moot because New York has repealed the ordinance. See reports from The Wall Street Journal, The Associated Press, Reuters, and The New York Times.  
  
  
• The Court ruled that insurances companies are entitled to collect under the Affordable Care Act. The Court held that the government was obligated to honor the promise to protect insurance companies against the risks they took in participating in the exchanges established by Act.  See the opinion and reports in The New York Times, The Washington Times, The Associated Press, and Bloomberg News.

Federal Appellate Court Opinions and News

• The Tenth Circuit upheld the federal bump-stock ban against a challenge arguing that the executive branch had no authority to issue the ban. The court rejected this argument, accepting instead the ATF determination “that semiautomatic rifles equipped with bump stocks are ‘machineguns.’” The court found the statutory definition of “machinegun” to be ambiguous and the ATF’s interpretation to be reasonable, thus upholding the ban. See the opinion and reports from The Associate Press and Bloomberg Law

• The Seventh Circuit sided with Chicago in a sanctuary city fight, holding that the Justice Department cannot withhold federal grants from cities that extend protections to undocumented immigrants. The ruling recognizes that “states do not forfeit all autonomy over their own police power merely by accepting federal grants” and that “the attorney general’s perception of the urgency of immigration enforcement does not corral for the executive branch the powers entrusted to the legislative branch.” See the opinion and reports from The Chicago Tribune and Reuters.

• The Tenth Circuit upheld the lower court and struck Kansas’s voter ID law, finding its proof of citizenship requirement to be unconstitutional. Kansas argued that the law was necessary to protect against voter fraud. The court however noted the significant burden on the over 31,000 voters who had their registration applications cancelled or suspended and found that interests of the state do “not justify the burden imposed on the right to vote.” This decision binds not only Kansas but all states within the jurisdiction of the Tenth circuit, including Oklahoma, New Mexico, Colorado, Wyoming, and Utah. See opinion and reports from The New York Times,  The Courthouse News Service, and an ACLU press-release.

• In Wisconsin, four strip clubs suing for relief related to the COVID-19 shut down have won preliminary injunction in a First Amendment case. The strip clubs claimed discrimination in violation of the First Amendment after their applications for emergency federal loans were denied due to the sexual nature of the businesses. The injunction preserves the clubs’ eligibility for small business loans. The ruling concluded that the plaintiffs would likely succeed in demonstrating that their businesses are not prurient and that the regulation violates the First Amendment. See opinion and a report in The Milwaukee Journal Sentinel.

Footnoted Citations - Ramos v. Louisiana

Justice Gorsuch’s opinion for the Court in Ramos v. Louisiana,[1] which held that Louisiana’s and Oregon’s laws allowing conviction by non-unanimous juries violated the Sixth Amendment right to a jury trial, drew much commentary. There were discussions of its holding and the lineup of the majority and minority. And on #appellatetwitter, there was much discussion of Justice Gorsuch’s decision to forego in-text citations in favor of footnoted citations in the majority opinion. Justice Gorsuch’s choice rekindled one of the many debates on style[2] that are always smoldering on #appellatetwitter.

Professor Orin Kerr (@orinkerr) seems to have reignited the #appellatetwitter debate with his tweet of April 21, 2020: “Reading Ramos, I am struck by the citation style: It’s the first Supreme Court majority opinion I recall in which all citations are in footnotes. I find that style annoying, I confess. If citations are important enough to include, put them in the text.”[3] Professor Kerr’s tweet prompted responses from judges, attorneys, other professors, and noted lexicographer Bryan Garner. The following day, Garner, a champion of footnoted citations, devoted an episode of this twitter video log Curious Mind to discussing his thoughts on why it’s better to place legal citations in footnotes.[4]

Garner co-authored Making Your Case: The Art of Persuading Judges,[5] with Justice Gorsuch’s predecessor, Justice Antonin Scalia. There, the authors debated in-text versus footnoted citations.[6] Of course, Garner argued for the use of footnoted citations;[7] Justice Scalia, “disapprove[d] this novel suggestion.”[8] So let’s review some of the pros and cons of both and then you decide which you favor.

But first, let’s take a moment to think about the work citations do in legal writing. Citations serve at least two primary purposes: they tell us how to locate the cited source and they tell the reader the importance of the cited authority, i.e., the weight of the authority.[9] The latter is important because it helps the reader evaluate the relative value of one authority as compared to another.[10] We evaluate the weight of authority by its source. Is it a primary source or secondary source? If it’s a court opinion, what court decided the case? Is it a constitutional provision, a statute, or a regulation? How recently was the case decided or the statute enacted?[11] So, whether one chooses to use in-text citations or footnoted citations, the reader must be able to evaluate the weight of the cited authority. And because appellate advocates respect and value their reader’s time, they want to make it easy for their reader to evaluate the weight of the authority.

Those, like Garner, who favor footnoted citations contend that putting citations in footnotes aids readability while still allowing the reader to evaluate the weight of authority.[12] Those who follow Garner’s approach and footnote citations would write something like, “More than forty years ago, the Court decided Abood v. Detroit Board of Education.”[13] This communicates the relative age of the case and the court that decided the case. The footnote then contains only the part of the citation that tells the reader where to locate the case. If done well, footnoted citations let the reader evaluate the weight of the cited authority without forcing the reader to read—or more likely skip over—the information that tells her where to locate the authority.

Those who favor in-text citations, like the late Justice Scalia, argue that footnoted citations bloat the text with information that could be more easily conveyed in a traditional in-text citation.[14] So the in-text citation would be something like, “In Abood v. Detroit Board of Education, 431 U.S.  209 (1977) . . . .” This conveys the same information as the example above, but now the information is all within the textual sentence.

The in-text citation crowd has one other argument that perhaps carries the day, at least for now. Legal writers and readers are traditionalists and “Judges are uncomfortable with change.”[15] Appellate advocates are unlikely to put off our judicial reader by following the tradition of in-text citation. We risk doing so if we footnote citations. This is particularly true if the writer using footnoted citations isn’t careful to include within the text the information the reader needs to evaluate the weight of authority.

Returning to Justice Gorsuch’s opinion for the Court in Ramos, it was the first majority opinion in which he footnoted the citations. And just three days after Ramos was decided, the Court released its opinion in Romag Fastners, Inc. v. Fossil, Inc.,[16] with Justice Gorsuch again writing for the majority. There he used in-text citations. So, while Justice Gorsuch rekindled the #appellatetwitter debate, perhaps he too is unsure which style to prefer.

 

[1] No. 18-5924, slip op. (U.S., April 20, 2020).

[2] Other common debates on style include whether writers should use one space or two after a terminal punctuation mark and the best font.

[3] Tweet by @orinkerr, April 21, 2020, https://twitter.com/OrinKerr/status/1252526810019004418

[4] https://twitter.com/BryanAGarner/status/1253005857035608064.

[5] Antonin Scalia & Bryan A. Garner, Making Your Case: The Art of Persuading Judges (2008).

[6] Id. at 132-35.

[7] Id. at 132-33.

[8] Id. at 133.

[9] Alex Z. Chew, Citation Literacy, 70 U. Ark. L. Rev. 869, 879-80 (2018).

[10] See id. at 881.

[11] Id.

[12] Scalia & Garner, supra note 5, at 132.

[13] 431 U.S. 209 (1977).

[14] Scalia & Garner, supra note 5, at  134.

[15] Id.

[16] No. 18-1233, slip op. (U.S., April 23, 2020).

A Historic Day for the Supreme Court

Today the Supreme Court heard oral argument via telephone conference for the first time, and historically, live-streamed them for the public. The case, U.S. Patent and Trademark Office v. Booking.com B.V., is the first of ten that have been scheduled for oral argument during the COVID-19 pandemic. The Court had been slow to move to a remote format, even as it had to cancel live oral arguments beginning in March. Finally, in mid-April, the Court announced that some cases would be heard by telephone conference and others postponed.

I listened to the argument today, and on the whole, I think it went smoothly. This was due, in large part, to the Chief Justice actively managing the conversation. The advocates also deserve praise for ably handling the format and questioning from the bench. The conversation flowed without much over-talking, which had been one concern in envisioning telephonic arguments with nine justices. There even were some light moments where the odd state of our world served as a reference point (for example, using the hypothetical of searching for toilet paper on “a grocery dot com”).

The live-stream sound was passable. Before the argument started, I could hear a dog barking and birds chirping. Thankfully, that ended and was not a feature of the entire stream. At the beginning, the sound quality reminded me of radio broadcasts from the 1930s or 40s. The sound had ups and downs through the argument, but with the exception of a few particularly bad moments, once the argument had started in earnest, my annoyance at the poor sound quality receded.

As for specifics of how the Court approached the argument, prior instructions stated the Court would ask question in order of seniority. The stream began with the formal cry to order and announcement of the case, just like live oral arguments. The Chief Justice actively managed the advocates and passed the baton to each justice. Depending on the length of the advocate’s answer, he would either wait until the end of a question or cut off the attorney, saying “Thank you, counsel. Justice ____.” Each justice had a turn asking questions of the advocate. It was certainly more orderly than a typical oral argument; one wonders if the justices found the process as helpful for deliberations as their usual format.

The questioning seemed to go most smoothly when the justices asked a question in a longer narrative form, and then let the advocate answer in a longer form. At one point, Justice Kagan tried to have more of a back and forth conversation with attorney Erica Ross, and that was harder to hear and follow in this format. In a few instances, the Chief Justice called on people who did not begin speaking immediately. Perhaps it took a few moments for them to unmute. Mere seconds later he called on them a second time. It was clear that the Chief was running a tight ship and everyone was expected to be ready when their time came. Despite his management of the argument, the arguments went from 10:00 a.m. to 11:17 a.m., significantly longer than the normally allotted hour.

As for the attorneys, the first advocate was Erica Ross, Assistant to the Solicitor General. The second advocate was Lisa Blatt, representing Bookings.com. Both advocates argued well. They stopped as soon as they heard a justice’s voice. They used pauses and intonation well, which seemed particularly important with only a vocal presentation. Any advocate preparing for an upcoming telephonic oral argument would do well to follow their examples. The Chief Justice cut off answers to some questions pretty quickly, so it’s particularly important to lead with a direct answer to a question.

I think today’s oral argument was successful and a reasonable option when live oral arguments are not feasible. Additionally, for the public, having the opportunity to hear the argument in real-time was exciting and made the Court a little more accessible.