Appellate Advocacy Blog

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

Monday, August 31, 2020

Transitions--The Legal Writing Kind

My colleague Diana Simon has a short article up on SSRN about the importance of transitions in legal writing, which is set to be published in Legal Communication and Rhetoric: JALWD. The article has been on my "to read" list for a while, and I took some time to read it today. I am so glad I did, because I learned a lot (see, I just used a transition there--proof that I learned a lot).

Diana divides her article into three main points (more on the "power of three" later). First, she delves into the science behind transitions. She shares studies that show a correlation between reader comprehension and the use of transitions.  These studies were interesting to me, because I sometimes feel that students overuse some connecting words like "therefore."  I also feel like students might try to string sentences together with transitions when these sentences are easier to comprehend when separate into their distinct components.  I guess that means that the students are just not using the transition words correctly.

Diana then uses music and stand-up comedy as two examples where we see transitions in action. I found the stand-up comedy example to be extremely compelling, and I thought about the various stand-up comedians that I have seen on T.V. or in person. They do seamlessly transition between seemingly unconnected ideas, usually stringing them together with one weak, but funny, thread. While judges might not enjoy reading about how changing diapers relates to shopping at the hardware story and also relates to going out to dinner, the notion of a common thread or theme throughout an appellate brief is not a new one.  Using that theme to transition between ideas is incredibly effective.

Finally, Diana talks about the different types of transitions, giving examples of many of them. This nuts and bolts section was incredibly useful, and I plan on assigning it to my students to review as they write their appellate briefs. Understanding how transitions work and the types of transitions that exist will definitely help my students use transitions more effectively. She ends her discussion here with the importance of the number three, noting that there seems to be increased understanding and acceptance of things that come in threes.  She gives some examples (to which I would add the three point sermon).  This fixation on threes in popular culture, however, does translate to legal writing. In working on the third edition of Winning on Appeal, we found that judges, in general, wanted no more than three issues raised on appeal. The number of judges that settled on that number three was quite high.

Congratulations to Diana on the excellent piece.

August 31, 2020 | Permalink | Comments (0)

Tuesday, August 25, 2020

Grab an Oar and Pull Like Hell: Thoughts on a Return to Teaching Advocacy

I love to teach. Stepping in front of a room of eager students and wholeheartedly pretending to be an expert is frightening, thrilling, exhilarating, and a whole lot of fun. Frankly, it still scares me a bit, but that’s part of what makes the process so thrilling. This week, as classes began at my law school, those butterflies reliably returned, and I wondered again if I could make it through an entire semester without all of my students realizing that I’m just as fallible as they are.

But there are new stressors this semester that we all face, from both sides of the podium. I’ll be speaking through a mask, to other students in a mask, and to still other students watching from their computers at home. I’m trying to generate the same buzz in classroom discussions that I always (think I) have, but with significant limitations. And perhaps the biggest limitation is the weight that seems to hang on my every decision.

Exhaustion with the seeming life-or-death consequences of everyday chioces has weighed on me and my young family all summer long. Should we try to go to that playground for an hour, or is it a threat to our health? Can we get by without stopping by the grocery store for a gallon of milk, and possible exposure to a deadly disease? And now choices between live classes and online learning, between group work and individual writing tasks, can seem just as fraught. Yet somehow as an educator I have to overcome that exhaustion and bring my usual energy to the classroom, even if it is a socially-distanced and partially-online one.

I want this to be great. I think it can be great. But we—myself, my students, my administrators, my university, my community—can only achieve those great things in a the COVID-19 world by pulling together. We cannot delude ourselves into thinking that returning to the classroom will be smooth, or that our well-laid plans will cover every contingency bound to arise. But we can have faith in our honest efforts to do our best. We can adjust when needed. And we can accept that some circumstances will be out of our control.

I don’t know what that will mean in the long run. Perhaps our return to the classroom will be short-lived. But dammit if I’m not going to do everything in my power to make it worthwhile for as long as it lasts. I cannot completely control the path of COVID-19 in my community, or even my law school. But I can do what’s right by the students in my classes. I can promise them that they will get my very best every day, in return for their best efforts to master difficult material under extremely trying conditions.

There’s beauty in that joint effort. There could even be a special sense of accomplishment that comes from energizes a student community and learning new things no matter how difficult the circumstances.

If ever there was a teachable moment about grit and determination, this is it. And that is where I’ve been able to find the energy for my first few classes. We may be in a storm, but I’m going to grab my oar and pull like hell for as long as that storm lasts. Maybe it won’t be enough to overcome the odds stacked against a successful semester, but I can take satisfaction in knowing that I gave it my all. I hope that my students and colleagues can come away from this experience with that same self-assured confidence. We can all be better for the effort.

August 25, 2020 | Permalink | Comments (0)

Saturday, August 22, 2020

Jamison v. McClendon:  Lessons in Rhetoric and Persuasion

The recent district court slip opinion in Jamison v McClendon, __ F. Supp. 3d __, 2020 WL 4497723 (S.D. Miss. Aug. 4, 2020), granting a police officer qualified immunity in a section 1983 action generated a great deal of discussion and analysis in the legal writing community.  United States District Judge Carlton Reeves of the Southern District of Mississippi used plain language and established rhetorical tools to craft a beautifully-written and compelling order.  In substance, the order is a much-needed indictment of how far the qualified immunity doctrine has crept beyond its beginnings.  In form, the slip opinion has a great deal to teach us about writing. 

If you have not read the Jamison Qualified Immunity Order, I highly recommend you take the time to read the slip opinion.  The introduction alone provides lovely lessons in style while thoughtfully advocating for us to increase justice for all.

Judge Reeves began with a traditional “hook” or interest-catching device, listing activities plaintiff was not doing: 

Clarence Jamison wasn’t jaywalking.1

He wasn’t outside playing with a toy gun.2

He didn’t look like a “suspicious person.”3

. . . .

Jamison, 2020 WL 4497723 at *1-2.  Each footnote reminds us of the tragic case connected to the quoted facts, such as footnote 1 regarding jaywalking, which explains, “[t]hat was Michael Brown,” and footnote 2, noting, “[t]hat was 12-year-old Tamir Rice.”  Id. at *1 nn. 1-15.  The court included fifteen examples, using the technique of repetition to paint a vivid picture of the vastness of police misconduct in recent years.   Id. at *1-2.

Next, Judge Reeves succinctly and persuasively summarized the facts, mixing complex and simple sentence structure while using straightforward language:

Clarence Jamison was a Black man driving a Mercedes convertible. 

As he made his way home to South Carolina from a vacation in Arizona, Jamison was pulled over and subjected to one hundred and ten minutes of an armed police officer badgering him, pressuring him, lying to him, and then searching his car top-to-bottom for drugs.

Nothing was found.  Jamison isn’t a drug courier.  He’s a welder.  

Unsatisfied, the officer then brought out a canine to sniff the car. The dog found nothing.  So nearly two hours after it started, the officer left Jamison by the side of the road to put his car back together.

Id. at *2.

The court finished the introduction with a traditional roadmap.  Judge Reeves explained the overall role of precedent and stare decisis, stating:  “This Court is required to apply the law as stated by the Supreme Court.  Under that law, the officer who transformed a short traffic stop into an almost two-hour, life-altering ordeal is entitled to qualified immunity.  The officer’s motion seeking as much is therefore granted.”  Id. at *3.  But the court continued, “let us not be fooled by legal jargon,” because “[i]mmunity is not exoneration.”  Id.  Finally, the court previewed the rest of the opinion by explaining how the case demonstrated “the harm done to the nation by this manufactured [qualified immunity] doctrine.” Quoting the Fourth Circuit, the court ended the introduction:  “This has to stop.”  Id. (quoting Estate of Jones v. City of Martinsburg, 961 F.3d 661, 673 (4th Cir. 2020)).

In the body of the slip opinion, Judge Reeves used history, respected scholarship, and case law to explain why reviewing courts should consider limiting the application of qualified immunity. In other words, the court specifically illustrated precedent and aptly connected the law to this case and to the broader rules of qualified immunity.  Then, ending the slip opinion with a specific call to action, Judge Reeves charged us:  “Let us waste no time in righting this wrong.”  Id. at  *29.  At least one court has already cited the slip opinion.  See Peterson v. Martinez, 2020 WL 4673953 *5 n. 5 (C.D. Cal. Aug. 12, 2020) (“The reader is referred to the excellent opinion of the Hon. Carlton W. Reeves in Jamison v. McClendon . . . describing the unhappy development of qualified immunity jurisprudence.”). 

Commentators’ opinions differ on whether the Jamison court should have found the underlying facts here outside the scope of qualified immunity.  But the clear tone, repetition, common sense language, and strong use of authority make the order an especially nice example of persuasive writing.

August 22, 2020 in Appellate Advocacy, Appellate Practice, Current Affairs, Legal Profession, Legal Writing, Rhetoric | Permalink | Comments (0)

Monday, August 17, 2020

Using Non-Precedential Opinions: A Practical, Cautionary Guide

This is a guest post by Philip HallPhilip is a rising 3L and a member of the Moot Court Board at Penn State’s Dickinson School of Law.  After law school, he will be a civil litigator at the law firm of Knox McLaughlin Gornall & Sennett, P.C. in Erie, Pennsylvania.

Blog

Unpublished, or “non-precedential,” judicial opinions are especially misunderstood creatures of appellate litigation.  Yet they’re extremely common.  A 2019 report from the Judicial Conference of the United States revealed that in recent years, almost ninety percent of federal appellate opinions have been designated as non-precedential.  If you’ve ever cited a case from West’s Federal Appendix (cited as “F. App’x,” per the Bluebook), you’ve cited a non-precedential opinion. 

If unpublished decisions aren’t precedent, then what are they?  It’s simple: unpublished opinions are, at best, persuasive authority.  Indeed, because unpublished decisions are written primarily for the parties, with the assumption that important aspects of the case not mentioned in the opinion are understood, they may carry even less weight than a district court’s or sister circuit’s opinion

Prior to the enactment of Federal Rule of Appellate Procedure 32.1 in 2006, numerous federal circuit courts expressly forbade reliance on non-precedential opinions.  Indeed, attorneys could be subject to disciplinary action for the mere citation of a single non-precedential opinion in a brief.  But that all changed—on paper, at least—with the Supreme Court’s enactment of Rule 32.1, which forbids courts from “prohibit[ing] or restrict[ing] the citation” of non-precedential federal opinions issued on or after January 1, 2007. 

“So,” you may be asking, “Rule 32.1 gives attorneys unrestricted permission to build their arguments on the foundation of non-precedential opinions, right?”  Not so fast!  Attorneys have an ethical duty to refrain from any “conduct involving dishonesty, fraud, deceit, or misrepresentation.”  Because non-precedential opinions are (with limited procedural exceptions) not binding, attorneys should cite to such opinions sparingly and follow an unyielding ethical compass when doing so.  The Third Circuit Court of Appeals expressly mandates that attorneys specify parenthetically when a cited opinion is not precedential.  The Third Circuit also forbids attorneys from using phrases like “this Court held” when discussing non-precedential opinions.  Attorneys should consult their jurisdictions’ local rules of procedure to ascertain their ethical obligations when relying on unpublished opinions. 

Because non-precedential opinions comprise the vast majority of federal appellate decisions, it’s highly likely that appellate litigators will face the temptation to rely on an unpublished, on-point case.  So tread cautiously, cite judiciously, and argue ethically.   

August 17, 2020 | Permalink | Comments (0)

Friday, August 14, 2020

Appellate Advocacy Blog Weekly Roundup Friday, August 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

  • The Supreme Court rejected a request to stay a trial judge’s ruling that suspended a requirement that an absentee ballot be filled out in front of a witness or notary, thus making absentee voting in Rhode Island easier. The court noted the contrast to last month’s ruling (Merrill v. People First of Alabama) that upheld a similar Alabama witness requirement for absentee ballots, stating that unlike “cases where a State defends its own law, here the state election officials support the challenged decree, and no state official has expressed opposition.” Thus, the Court found that the groups challenging the ruling “lack[ed] cognizable interest in the State’s ability to ‘enforce its duly enacted’ laws.”  See the order here and reports from The New York Times, CNN, and Politico.

  • The Court denied a request from the NCAA to stay a lower court ruling that allows colleges to provide education-related expenses to athletes. The challenged Ninth Circuit ruling upheld a district court’s injunction that found that the NCAA violated antitrust laws by barring schools from providing such expenditures to student athletes. The injunction will therefore stay in place pending the NCAA’s appeal. See reports from CNN and USA Today.

  • The Federalist Society’s D.C. Lawyers Chapter hosted its annual U.S. Supreme Court round up this week covering the 2019-2020 term. A recording of the event is available at this link.

Federal Appellate Court Opinions and News

  • The Eleventh Circuit upheld a lower court’s decision finding unconstitutional a Florida school’s transgender bathroom policy that prohibited a transgender student’s using the bathroom that matched his gender identity.  In upholding the decision, the court recognized that “[a] public school may not punish its students for gender nonconformity. Neither may a public school harm transgender students by establishing arbitrary, separate rules for their restroom use.” The Eleventh Circuit ruling will affect school policy in Florida, Georgia, and Alabama. See order and reports from Courthouse News, CBS News, and Law.com.

  • The D.C. Circuit blocked a lower court’s order that Hillary Clinton be deposed as part of a lawsuit seeking records related to her use of a private email while Secretary of State. The ruling found that the stated topics for Clinton’s deposition were “completely attenuated from any relevant issue in [the FOIA] case.” See the order and reports from The Hill, Law.com, and Politico.

  • The Second Circuit upheld a lower court ruling that challengers lacked standing for their claims that NY gun licensing laws violated their Second Amendment rights. The challenge was to NY’s general prohibition against the possession of a firearm without a license. See the order and report from Bloomberg Law.

  • The Eighth Circuit has vacated and remanded for reconsideration a district court’s 2017 order enjoining four Arkansas abortion law that ban certain procedures and impose criminal penalties on doctors. The challenge claimed that the requirements of the laws could block access to all abortion procedures. The Eighth Circuit relied on Justice Robert’s concurrence in the June 29, 2020, decision in June Medical Services L. L. C. v. Russo and remanded for reconsideration in light of Justice Robert’s emphasis that “wide discretion” should be given to legislatures “in areas of medical uncertainty.” See the order and reports from Courthouse News, CNN, The Hill, and The National Law Journal.

State News

Recognizing the racists origins of the phrase, a Massachusetts court has refused to use the term “grandfathering” in its orders.  See footnote 11 in the order and a report from The New York Times.

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

Monday, August 10, 2020

Building a Pipeline to a More Diverse Appellate Bar

In the Spring of 2018, Justice Sonia Sotomayor visited the University of Houston law center, where I teach, and inspired our entire community. She shared some of her life experiences, and included the struggles that she encountered in college as she received feedback on her writing. We came away understanding that much of her success in law school could be credited to the work that she put in to strengthening her writing skills during her undergraduate studies. She was a brilliant student, but needed support to achieve her goals at the next level.

That same summer, I taught legal writing in the University of Houston’s award-winning Pipeline program for the first time. The program selects forty to fifty historically underrepresented and first generation undergraduate students to spend the summer in Houston learning about law school and the legal profession. I was energized to have the chance to work with undergraduate students who could build their skills before having them tested in the competitive law school environment.

Amid the COVID-19 pandemic and the protests and conversations around race that have happened this summer after the deaths of Ahmaud Arbery, George Floyd, and Breonna Taylor, I have been thinking about diversity in the legal field and the place of pipeline programs in increasing that diversity. Pipeline programs come in various forms. They target students earlier in the educational pipeline to try to give them educational support, information, and encouragement that will help keep them in the pipeline towards law school. This summer our pipeline programs moved online, as much of the rest of the education realm did. While students didn’t get to be in actual law school classrooms, they still experienced law professors, law classes, and virtual networking and mentorship.

How does this fit in with appellate advocacy? The same lack of diversity that affects the legal profession as a whole is magnified in the appellate bar and the judiciary. As an extreme example, those arguing before the Supreme Court are predominately white and male. The percentage of women arguing before the Supreme Court has hovered around 20% a term. When an African-American woman argues before the Supreme Court, it is newsworthy.

In the United States, 5% of attorneys are African American and 5% are Hispanic or Latino, while African Americans make up 13% of the overall population and Hispanic or Latino 18.5%. 2% of attorneys are Asian, while they make up 6% of the total population. On the other hand, 86% of attorneys are non-Hispanic Caucasian, while they make up only 60% of the overall population.
https://www.americanbar.org/content/dam/aba/administrative/market_research/national-lawyer-population-demographics-2010-2020.pdf

https://www.census.gov/quickfacts/fact/table/US/PST045219

Pipeline programs are attempting to shift these numbers over time to have higher levels of representation of the underrepresented groups.

How can you be involved? There are several ways. First, many pipeline programs are free or low cost to the students, so programs need sponsors. The ABA provides resources related to various pipeline programs here.

Second, programs also need mentors and placements for their students. The ABA Diversity Site has a Pipeline Directory where you can find local pipeline programs and diversity initiatives.
Finally, when you have an opportunity to mentor a prospective law student, be a good mentor. Many of these students are first generation college students and your experiences can be valuable to them.

Pipeline programs are valuable tools to increase the diversity of our profession, and it has been fulfilling to get to work closely with students and encourage them along their educational journey. Many of us can demystify some of the law school process and help students identify areas to grow in as they prepare for law school.

August 10, 2020 in Legal Profession, United States Supreme Court | Permalink | Comments (0)

Sunday, August 9, 2020

The Curious Case of Chief Justice John Roberts

Chief Justice John Roberts’s influence on the United Supreme Court’s jurisprudence has been substantial. Importantly, however, Chief Justice Roberts’s judicial philosophy and approach to constitutional interpretation have raised more questions than answers.

By way of background, when former President George W. Bush nominated John Roberts to the Supreme Court, most commentators speculated that Roberts would be a reliably conservative justice and embrace an originalist approach to constitutional interpretation. Indeed, during his confirmation hearings, Roberts emphasized the limited role of the judiciary, analogized judges to “umpires,” and rejected any suggestion that judges decide cases based on policy predilections.  As Roberts stated during his confirmation hearing:

A justice is not like a law professor, who might say, ‘This is my theory... and this is what I'm going to be faithful to and consistent with,’ and in twenty years will look back and say, ‘I had a consistent theory of the First Amendment as applied to a particular area.’ Judges are like umpires. Umpires don't make the rules. They apply them. The role of an umpire and a judge is critical. They make sure everybody plays by the rules. But it is a limited role. Nobody ever went to a ballgame to see the umpire.[1]

Based on these and other statements, legal scholars understandably expected that Chief Justice Roberts would decide cases based on the Constitution’s text and the original meaning underlying its provisions,  and thus reach decisions that would favor conservative policy positions.

They were wrong.

Chief Justice Roberts’s jurisprudence has produced more confusion than clarity regarding his judicial philosophy and his approach to constitutional interpretation.  To begin with, in National Federation of Independent Investors v. Sebelius, Chief Justice Roberts surprised many legal commentators when he relied upon Congress’s power to tax and spend to uphold the constitutionality of the Affordable Care Act.[2] In so doing, Chief Justice Roberts held that the Court should defer to the coordinate branches when a statute can reasonably be interpreted to pass constitutional muster.[3] Importantly, however, in Shelby County v. Holder, Roberts authored the majority opinion in which the Court invalidated Section 4(b) of the Voting Rights Act of 1965 even though the United States Senate had voted 98-0 to re-authorize the Act.[4] And in McCutcheon v. FEC, Chief Justice Roberts authored the majority opinion in which the Court invalidated limits on contributions that individuals can make to candidates for federal office.[5] The decisions beg the question of why deference to the coordinate branches is acceptable in some cases but not others.

In the Supreme Court’s recent terms, some of Chief Justice Roberts’s decisions have engendered confusion regarding his judicial philosophy and approach to constitutional interpretation. For example, in June Medical Services, LLC v. Russo, Chief Justice Roberts concurred in a 5-4 decision that invalidated a Louisiana law requiring abortion providers to obtain hospital admitting privileges. In so doing, Chief Justice Roberts relied on principles of stare decisis to hold that the Court’s prior decision in Whole Women’s Health v. Hellerstadt, which invalidated a nearly identical statute in Texas, controlled the outcome.[6] Chief Justice Roberts’s decision was surprising in many respects. Specifically,  Chief Justice Roberts dissented from the Court’s decision in Whole Women’s Health and had previously stated in a brief drafted on behalf of the Department of Justice that Roe v. Wade – the foundation of the Court’s abortion jurisprudence – was “wrongly decided” because it had no “support in the text, structure, or history of the Constitution.”[7] Moreover, Chief Justice Roberts’s reliance on stare decisis in June Medical Services was troubling because in other cases, most recently in Janus v. American Federation of State, County, and Municipal Employees, Council, Roberts rejected stare decisis as a basis upon which to uphold precedent that he believed was wrongly decided.[8]  Perhaps more surprisingly in Bostock v. Clayton County, Chief Justice Roberts joined a six-member majority that construed Title VII of the Civil Rights Act, which when enacted prohibited discrimination based on race, color, religion, sex, and national origin, to encompass a prohibition against discrimination based on sexual orientation and gender identity.[9] Although many would agree that the Court reached a favorable outcome, the legal basis for that outcome was questionable. And in joining the majority, Chief Justice Roberts appeared less like an umpire and more like a cleanup hitter.

Of course, there are ways in which to construe Roberts’s decisions as entirely consistent with his judicial philosophy of being an “umpire,” as these cases involved entirely different facts and legal issues. Moreover, most, if not all, judges would eschew labels such as ‘conservative’ or ‘liberal,’ and assert that their decisions are predicated upon a faithful interpretation of the relevant constitutional or statutory text and a respect for precedent. Additionally, most, if not all, judges would state that it is improper to focus exclusively or even substantially on the outcomes that judges reach because doing so politicizes the judiciary and ignores the process by which judges decide cases.

All of this may be true. Notwithstanding, Chief Justice Roberts’s jurisprudence – at least in some cases – arguably deviates from his judicial philosophy, particularly his statement that the Court’s role is tantamount to an “umpire,” and his approach to constitutional interpretation, which prioritizes the text and history over contemporary societal attitudes. As Chief Justice Roberts stated in Obergefell v. Hodges:

[A] much different view of the Court’s role is possible.  That view is more modest and restrained. It is more skeptical that the legal abilities of judges also reflect insight into moral and philosophical issues. It is more sensitive to the fact that judges are unelected and unaccountable, and that the legitimacy of their power depends on confining it to the exercise of legal judgment. It is more attuned to the lessons of history, and what it has meant for the country and Court when Justices have exceeded their proper bounds. And it is less pretentious than to suppose that while people around the world have viewed an institution in a particular way for thousands of years, the present generation and the present Court are the ones chosen to burst the bonds of that history and tradition.[10]

Moreover, Chief Justice Roberts’s approach to deference and stare decisis has been inconsistent and unpredictable, thus casting doubt upon whether Chief Justice Roberts’s reliance on either doctrine was merely a vehicle by which to reach an outcome that had less to do with legal interpretation and more to do with political calculations.

So what is going on here?

The most likely explanation is that Chief Justice Roberts is striving to maintain the Court’s institutional legitimacy and credibility with the public. In so doing, Roberts may be particularly focused on avoiding decisions that are perceived as politically motivated or far removed from the mainstream of contemporary political attitudes. Although this approach is certainly understandable, it can have unintended consequences that cause the very problem that Chief Justice Roberts seeks to avoid. For example, if institutional legitimacy and the desire to be perceived as apolitical influences the Court’s decisions, those decisions will, by their very nature, be political because they will be guided by inherently political rather than legal considerations (e.g., the text of a statute or constitutional provision, and precedent). The unintended consequence is that the Court will become inextricably intertwined with, rather than removed from, politics, and further divorced from, rather than reliant upon, legal doctrine as the basis for judicial decision-making. Perhaps most importantly, the determination of precisely what decisions will maintain the Court’s legitimacy is invariably subjective, which risks rendering decisions that, in the name of legitimacy are, as a matter of constitutional law, illegitimate.

Ultimately, this is not to suggest that Chief Justice Roberts is deserving of criticism or has acted with anything but the utmost integrity when deciding cases. Indeed, before joining the Court, Chief Justice Roberts was one of the most influential, respected, and brilliant advocates in the United States, and by all accounts, is an extraordinary colleague and person.  

It is to suggest, however, that Chief Justice Roberts’s view of judges as “umpires” was probably correct and should remain as the judiciary’s guiding principle. After all, “[n]obody ever went to a ballgame to see the umpire.”[11]

 

[1] Chief Justice Roberts Opening Statement, Nomination Process, available at: https://www.uscourts.gov/educational-resources/educational-activities/chief-justice-roberts-statement-nomination-process.

[2]  567 U.S. 519 (2012).

[3]  See id.

[4]  570 U.S. 529 (2013).

[5] 572 U.S. 185 (2014).

[6] 136 S. Ct. 2292 (2016).

[7]  Dylan Scott, John Roberts is the Supreme Court’s new swing vote. Is he going to overturn Roe v. Wade? (July 9, 2018), available at: https://www.vox.com/policy-and-politics/2018/7/9/17541954/roe-v-wade-supreme-court-john-roberts

[8] 138 S. Ct. 2448 (2017).

[9] 140 S. Ct. 1731 (2020).

[10] 576 U.S. 644 (2015) (Roberts, C.J., dissenting).

[11] Chief Justice Roberts's Opening Statement, Nomination Process, available at: https://www.uscourts.gov/educational-resources/educational-activities/chief-justice-roberts-statement-nomination-process.

August 9, 2020 in Appellate Advocacy, Appellate Justice, Appellate Practice, Current Affairs, Law School, Legal Profession, United States Supreme Court | Permalink | Comments (0)

Thursday, August 6, 2020

Appellate Review of Video Evidence

This is a post by the Hon. Pierre H. Bergeron, a judge on the Ohio First District Court of Appeals.  Judge Bergeron will be joining us as a regular blogger.

We live in an era of instant replay.  Every sports fan, when witnessing a close play in a game, reflexively thinks, “I wonder what the replay will show?”  In our instant replay culture, with video coverage of almost every move we make, this begs the question of what standard of review should appellate courts use when assessing video evidence.  In days gone by, several witnesses might have testified at trial as to what they saw when the crime occurred, and appellate courts rightly deferred to the jury or trial judge in their assessment of credibility of these witnesses.  But now, in many cases, we have video evidence of the crime (or other critical events) that we can watch.  As video evidence becomes an almost indispensable element of the modern trial, what does that mean for the modern appeal?   

Some appellate courts apply a deferential standard of review to the trial court’s findings, rooted in how appellate courts historically have reviewed evidentiary matters, whereas other courts gravitate towards de novo review, as a pragmatic response to the power of video evidence.  I would submit, though, that, more often than not, many courts do not squarely acknowledge the standard of review on this point and probably (maybe reflexively) default to a Potter Stewart-esque “know it when you see it” perspective.  The debate on this point is real and legitimate but it is important to have it in the open.  Our appellate courts should be asking the question of how should we review video evidence. 

Courts applying deferential review generally do so on grounds that largely mimic accepted justifications for deferential review of a trial court’s credibility and factual determinations generally.  Because video-recorded evidence may be susceptible to varying interpretations, reviewing courts typically highlight the trial court’s unique vantage point for resolving these conflicts. Courts also justify deferential review because it preserves a trial court’s role within the judicial system as the factfinder. Finally, appellate courts remain leery about the danger of making litigants essentially retry issues on appeal, needlessly squandering judicial time and resources.  State v. S.S., 162 A.3d 1058, 1060 (N.J. 2017); Robinson v. State, 5 N.E.3d 362, 366 (Ind. 2014).

By contrast, when selecting de novo review over a more deferential approach, appellate courts begin their analysis with a cautionary tale about providing deference to a trial court’s factual determinations. Trailing closely behind this point is usually a caveat: when the appellate court sits in a similar position to review the content or significance of video evidence as the trial court below, the appellate court may independently evaluate that evidence under de novo review. Now what appellate courts deem a “similar” position is up for debate, but ordinarily courts consider whether the trial court primarily relied upon the video evidence, whether controlling facts contained within the video are in dispute, and the thoroughness of the trial court’s factual findings (some cases without factual findings pave the way for de novo review).  See State v. Binette, 33 S.W.3d 215, 217 (Tenn. 2000); People v. Madrid, 179 P.3d 1010, 1014 (Colo. 2008).

I know there are at least a couple of cases during my tenure as an appellate judge when the video evidence swayed me from affirm to reverse (or vice versa).  In these instances, the power of the video evidence was simply impossible to ignore, regardless of what standard of review governed. Even the staunchest supporters of deferential review would probably have allowed for such meddling with the trial results when the video paints a decisive picture.  Powerful policy justifications certainly animate both sides of this debate.  And, overall, there is some need for flexibility here.  The important take-away is that, whatever side of this debate you prefer, courts need to be candid about this standard of review point.  After all, the standard of review in a lot of these cases can prove dispositive. The parties need to understand what they have to work with, and the trial courts likewise need to internalize what is being asked of them (for example, if the appellate court faults the trial court for a lack of findings).  I look forward to seeing this debate unfold, and to potential new and innovative ways to approach this evidence that is becoming prevalent in the modern appeal.

August 6, 2020 in Appellate Advocacy, Appellate Practice, Appellate Procedure, Legal Profession, State Appeals Courts | Permalink | Comments (0)

Saturday, August 1, 2020

Appellate Advocacy Blog Weekly Roundup Saturday, August 1, 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

  • The Supreme Court refused to lift a July 2019 order that stayed a permanent injunction against the use of Pentagon funds to build the border wall. The Ninth Circuit had affirmed the injunction, finding that the administration’s “transfer of funds here was unlawful.” The Ninth Circuit reasoned that “the Constitution delegates exclusively to Congress the power of the purse” and that “[t]he executive branch lacked independent constitutional authority to authorize the transfer of funds.” In July 2019, the Supreme Court stayed that injunction pending the resolution of the administration’s appeal. This order denies a request to lift that stay, allowing construction to continue. See the order here and reports from The New York Times, CNN, The Washington Post, and Reuters.

  • The Court rejected another church challenge to Covid-19 restrictions, this one to Nevada’s 50-person limit to religious services. The challenge argued that churches faced tougher restrictions than casinos. The decision was without explanation and Justices Alito, Gorsuch, and Kavanaugh dissented. See the order here and reports from The New York Times, The Associated Press, and Reuters.

  • UCI held its 10th Annual Supreme Court Term in Review discussing the key cases from the Court’s October 2019 term. The event is available at this link.

  • Justice Breyer spoke with ABA President Judy Perry Martinez on July 29 during the organization’s annual meeting.  Find the discussion at this link.

Federal Appellate Court Opinions and News

  • The First Circuit vacated the Boston Marathon bomber’s death sentence, finding that the lower court did not adequately consider the effect of publicity on the jury that recommended the sentence. The order affirmed most of the conviction but ordered a new trial over only the sentence of death. The  order concludes: “But make no mistake: Dzhokhar will spend his remaining days locked up in prison, with the only matter remaining being whether he will die by execution.” See the order and reports from The Washington Post, Reuters, and The Wall Street Journal.  

  • The D.C. Circuit ordered a rehearing en banc on the dismissal of the case against Michael Flynn and vacated a decision that dismissed the case. The order directs the parties to “be prepared to address whether there are ‘no other adequate means to attain the relief’ desired,” which presumably relates to the principle argument that the writ of mandamus that directed the trial judge to dismiss the case was unwarranted because an alternative was available. The court will hear argument on August 11. See the order and reports from APNews, The New York Times, Reuters, and Bloomberg News.

State News

The Times-Picayune of New Orleans reports that Louisiana is among the states that have granted diploma privileges in light of concerns about sitting the Bar exam during the pandemic. Diploma privileges allow recent law school graduates to practice without taking the Bar exam. States have handled the concerns in a variety of ways, including administering the exam as usual, postponing the exam, offering the exam online, and granting diploma privileges. For a full list of the status of the 2020 bar by state, see this link

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