Sunday, February 28, 2021
Closing argument is among the most critical parts of a trial, as it provides attorneys with one final opportunity to persuade the jury to rule in their favor. Below are tips to maximize the persuasive value of a closing argument.
Begin with a strong introduction. As with opening statements, the best closing statements begin with a powerful – and memorable – introduction. And the best closing statements repeat, in the introduction, the theme that was used in the opening statement, remind the jury of the strongest facts supporting a verdict for your client, and reinforce the weakest aspects of your adversary’s case.
Repeat the Rule of Three from the opening. In the closing, you should repeat the Rule of Three (i.e., the three strongest reasons supporting a verdict in your favor) that was used in the opening statement and add to the explanation of each point the evidence elicited on direct and cross-examination that supports each of the three points. Simply put, your goal should be to ensure continuity and cohesion throughout the presentation of your case. By following the same structure in your opening and closing (e.g., repeating the theme and rule of three), you simplify the argument for the jury and remind the jury of the strongest points justifying a ruling for your client.
Show emotion and passion. Never deliver your closing argument in a monotone or disinterested manner. Show appropriate emotion. Argue with passion. After all, if you aren’t passionate and emotional about your client’s case, how are you going to persuade the jury to rule in your favor?
Never read the closing. Your goal during the closing should be to relate to the jury. You want the jury to like you and trust you. Thus, speak directly to the jury in an authentic and conversational tone. If you read your closing, you create an artificial – and detrimental – distance between yourself and the jury and, in so doing, you minimize the persuasive value of your arguments. Remember that an excellent closing argument is as much about performance as it is about substance.
Address the weaknesses in your case. Before delivering your closing, put yourself in the shoes of the jurors. What questions would you have about the merits of your case? What weaknesses would you identify? When you identify such questions and weaknesses, address them in the closing. In so doing, you give yourself the opportunity to explain why these weaknesses should not affect the outcome or remedy you seek, and you establish your credibility with the jury.
Discuss the evidence in detail but do so in a manner that tells a story. The best attorneys know how to tell a compelling story at trial. They know how to capture and hold the jury’s attention. They highlight favorable facts and explain away unfavorable facts. And in the closing, the best attorneys use the testimony elicited at trial to complete their story, reinforce the theme and the Rule of Three, and make a passionate case for a ruling in their client's favor. The best attorneys also know what not to do: never merely summarize the evidence. Don’t feel the need to discuss the testimony of every witness. Instead, emphasize and highlight the evidence most favorable to your client and structure your presentation in a manner that compliments your theme (and Rule of Three), and convinces the jury to rule for your client.
Use non-verbal techniques. When delivering your closing, remember that jurors want to see you as a relatable human being who has compassion, decency, and common sense. To establish relatability, you should use strategic movements. For example, move to a different space when discussing each rule of three, even if it is merely a couple of feet. Vary your tone and voice projection. Maintain an open stance, with your feet shoulder-width apart. Use facial expressions and hand gestures to emphasize important points. Your goal is to be authentic, not rehearsed, and convincing, not contrived. And most importantly, be confident, because confidence is everything.
End powerfully. Make your last words your best and most memorable. Your objective is to make sure that the most important points supporting your case stick in the jurors’ memories. Thus, your last sentence or paragraph should impact the jurors’ emotions and sense of justice. It should state with simplicity and uncompromising conviction the reason why you should win. For example, in the O.J. Simpson trial, attorney Johnny Cochran stated, “If it doesn’t fit, you must acquit.” People still remember that line today. And for good reason.
Ultimately, attorneys should remember that a closing argument, like any other aspect of a trial, is a performance. It is not merely a presentation of the evidence and an analysis of the facts. It is a uniquely human endeavor. Thus, your performance, including your likeability, relatability, and authenticity, will matter as much, if not more, than the evidence itself.
Tuesday, February 23, 2021
As the calendar turns to February, the stress of moot court teams preparing for their competitions is palpable in law schools around the country. Students spend countless hours in practices to ensure they are ready on the day of the competition. Often, they spend countless additional hours wallowing in self-doubt over their preparation. Did I do enough to get ready? Have I structured my argument in the most persuasive manor possible? Is practicing more better for me, or should I relax and try to get some rest before the big day?
To those nervous advocates, I offer a simple mantra. Overprepare. Don’t over-rehearse.
By overprepare, I mean that advocates should always strive to be ready for the competition as early as possible. Moot court practice is often psychologically painful. Early practices are invariably embarrassing, as a guest judge is almost certain to ask a question the advocates never considered, catching them flat-footed as they grasp for an answer. But this experience need not feel embarrassing. In fact, it’s the whole point. Practice should expose advocates to as many views of the case as possible, allowing them to feel comfortable that, on the day of the argument, there’s nothing truly unexpected that any questioner can throw at them. The early stumbles are necessary signs of growth. And the earlier they occur, the more likely advocates will be able to adjust their presentation and prepare themselves to answer the difficult questions. Those stressful moments expose the gaps in logic that must be resolved before making an effective argument. Advocates should overprepare by starting early, soliciting challenging views whenever possible, and testing out a litany of analytical approaches while staying in character to see what feels most natural, candid, and convincing.
But advocates should not over-rehearse. There is a fine line between learning how to explain the nuances of the problem and the logical gaps of one’s position and memorizing a stilted script to present to a new group of judges. Advocates must avoid the temptation to generate precisely-phrased responses to each possible question. Often, this leads advocates to fall back on a script during argument. That script builds a wall between the advocate and their audience. It forces the advocate to offer stock, generalized answers to judges’ questions, rather than internalizing the questions, processing their nuances, and offering genuine, original responses that fully addresses the judges’ concerns.
One method to overprepare without over-rehearsing is to catalogue some of the most difficult questions faced in practices, jot them down in a deck of note cards, then mix the deck and practice responding to the questions in random order—no matter where they fall in a planned outline of the issues. This will force advocates to provide original responses to the questions in order to weave their presentation back into the original argument structure. Rather than generating canned responses, the advocate will deepen their neural network around the problem, recognizing the relationships between issues and concepts and learning to tack between them smoothly. That mental pliability is a learned skill, not an innate talent. It takes a great deal of preparation, but it can be mastered by anyone willing to put in the necessary effort. And it cannot be reduced to a scripted series of rehearsed answers.
Advocates often work harder in moot court preparation than they have in almost any other aspect of law school. But concerns about perfection can lead them to work in counter-productive ways. A perfectly-scripted answer is not the goal. Instead, advocates must aim to deepen their understanding of each issue so they can comfortably respond in unique ways to each uniquely nuanced question they face. Overpreparation with that goal in mind, while avoiding over-rehearsing, will lead to an argument performance that will make any nagging moot court coach proud.
Friday, February 19, 2021
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.
U.S. Supreme Court News:
The Supreme Court's "Shadow Docket." This week, a bipartisan panel in the House agreed that the Court should be more transparent about significant rulings in cases on the Court's "shadow docket," and discussed potential legislation to require transparency in the voting of the Justices in such cases. SCOTUSblog covered this with more analysis and history.
Federal Appellate Court News:
The Juris Lab had a post this week detailing the oral argument grant rate for each federal circuit court of appeals for last year.
Appellate Practice Tips:
On #AppellateTwitter this week, David Benger had a great thread about state appellate clerkships. It and the RTs and QTs ended up discussing advice, reading recommendations, and some discussion of the value of state appellate clerkships.
Tuesday, February 16, 2021
A very important -- but often forgotten -- part of many appeals is the appeal bond. Often referred to as a supersedeas bond, an appeal bond is not required to perfect an appeal, but rather serves to suspend enforcement of the judgment during appeal.
Let's say your client obtains a one-million dollar judgment against Badcompany, Incorporated. If they appeal without superseding the judgment, you can execute on that judgment during the pendency of the appeal. Sounds great!
But let's say Frivilous Plaintiff gets a judgment against another on of your clients, Goodcompany, Incorporated, for one-million dollars. Your client barely has $1,000,000 in assets. You scramble to try to suspend enforcement of the judgment and get a bond into place. However, when you try to do so, you find out that the bonding company wants a 2% premium per year for the bond, and wants the bond to be fully collateralized. Although you know the judgment is bad and likely to be overturned, this client can't afford the bond. And if Frivilous Plaintiff's attorney, Shady, executes on your client's assets, you are also pretty sure all that money will disappear before an appeal can be determined, and your client will never get it back. Doesn't sound so great now, does it?
But wait, there's more! Let's go back to your judgment against Badcompany, Incorporated. If they do supersede the judgment, and after five years of appeals (it happens) they get the judgment reversed, imagine having to pay their premium as costs. Yes, that 2% premium per year can be considered a court cost, and at least one circuit says there is no discretion but to award that premium as costs. And now, your client, Widow Righteous, has not only lost her case, but is presented with a cost bill of $100,000 plus deposition fees, copying costs, and filing fees.
Surely this simple procedural rule can't cause so much trouble!? Well, it can.
The Ins and Outs of Supersedeas Bonds
Federal Rule of Civil Procedure 62 provides that execution of a judgment is automatically stayed for 30 days, and can only be stayed thereafter by order of the court upon approval of a bond or other security. Local rules usually set the amount of bond, which typically ranges between 110-120% of the judgment, and is meant to cover the judgment, costs, and interest during the pendency of the appeal.
Large, publicly traded corporations and insurers will either self-bond of obtain a surety bond with a favorable premium rate of 1% or so, and without having to provide collateral, since they are not a risk to the surety. Smaller clients, however, face a different battle. Surety's know that appeal bonds are not great risks, because most appeals do not result in reversal. So for clients with any risk of nonpayment down the road, the surety will require a higher premium and that the judgment be fully collateralized, by cash, letter of credit, real estate, or some other reliable asset. Even clients with higher assets will often use a surety instead of posting a cash bond into the registry of the court, because the surety may offer a higher rate of interest on the money.
Once the bond is approved, it can be adjusted over time as necessary to preserve the status quo. After the appeal is final, the bond is either released or used to pay the judgment, costs, and accrued interest.
Unforeseen Consequences of Appeal Bonds
Sometimes, the appeal bond becomes a bigger issue than the appeal. In Texaco v. Pennzoil, there were a number of fascinating legal issues arising from a verdict of $10.5 billion against Texaco. But none of them mattered when Texaco was unable to pay the full supersedeas bond of $10.5 billion judgment plus costs and interests, and instead filed for bankruptcy. Something similar happened in the more recently lawsuit of Bollea v. Gawker. After Bollea was awarded $140 million against Gawker Media, and Gawker was unable to obtain a stay without a bond, Gawker filed for bankruptcy.
Some states have supersedeas caps, both hard-capped on dollar amounts and on net worth. Other reforms are constantly in the works. And most trial courts have discretion in either adjusting the bond or staying execution without bond in several circumstances. But regardless, counsel is wise to consider these bond issues in conjunction with the legal issues of any appeal. If you have a plan in place for a bond or a good argument for a stay without bond, you can make the most of the 30-day stay in federal court to get something in place that will enable you to pursue the legal issues of your appeal without fear of execution.
The appeal bond can also catch the non-appealing party by surprise. Rule 39 of the Federal Rules of Appellate Procedure provides that if a judgment is reversed on appeal, costs are to be taxed against the appellee. Fed. R. App. P. 39(a)(3). Taxable costs include: (1) costs for the preparation and transmission of the record; (2) costs of the reporter’s transcript, if needed to determine the appeal; (3) premiums paid for a supersedeas bond or other bond to preserve rights pending appeal; and (4) the fee for filing the notice of appeal. Fed. R. App. P. 39(e).
This rule is the subject of a matter recently granted certioari by the Supreme Court of the United States in City of San Antonio v. Hotels.com, et al. In that case, the City of San Antonio brought a class action lawsuit on behalf of 173 municipalities against a group of online-travel companies for failing to pay hotel-occupancy taxes. After a month-long jury trial and unanimous verdict, the district court awarded the class $55,146,489 in unpaid taxes, interest, and penalties.
The appellees posted a supersedeas bond to stay execution, and the matter took years to reach resolution just in the district court, which, after several post-judgment motions, entered an amended judgment of $84,123,089. Eventually, the Fifth Circuit reversed the judgment, and the district court awarded costs under Rule 39 in an amount of $2,226,724.37, over $2 million of which was comprised of bond premiums.
While the City of San Antonio argued that the district court should have exercised its discretion to reduce the amount of those premiums, the Fifth Circuit disagreed, and ruled that it had no discretion to reduce the amount of costs. Likely because this ruling is in conflict with other circuits, the Supreme Court recently granted certiorari in that case.
Should the Bonding System be Changed?
As you can see, the current bond system can result in some very unfortunate circumstances, for both sides. Making the system more fair, however, is difficult, because it arose to make things fair in the first place.
In an ideal world, the supersedeas bond protects the appellant from severe loss so a matter can be appealed on the law, and protects the appellee from loss during this time by ensuring full payment of the judgment. The problems highlighted above are being addressed in some states by laws capping or restricting bonds to certain amounts of net worth or even to an amount that will not economically harm the appellant. And permitting discretion in awarding premiums as costs would prevent situations where a well-funded appellant obtains a low-premium bond, posts cash collateral, and actually makes money on that collateral, then gets the full premium back as a cost of appeal when they win.
Both of those solutions, however, have downsides. If a struggling appellant is able to bond for a minimal amount because they are on financially shaky ground, the appellee may be missing out on the only opportunity to secure what assets that appellant has to pay the judgment. And discretion is potentially a slippery slope when it comes to costs of appeal.
But those are issues for the folks who write the rules. Those of us who follow them just need to be aware of how they work, how they can go wrong, and how we can try to protect our clients as best we can.
(No image this week! I am typing this during a short period of time as rolling blackouts cover my state. Rather than search for an image, I'm going to conserve some energy and take care of my family. If you are also affected, please take care and do the same.)
Monday, February 15, 2021
Happy Presidents' Day. The other night, while reading Doris Kearns Goodwin's excellent book Team of Rivals, I started thinking about the connection between Presidents and Supreme Court justices. Not in the typical nomination/confirmation situation, but more about persons who aspired to one, or both, positions. So many past presidents have been lawyers. And, as our readers almost certainly know, one past president--William Howard Taft--also served on the Supreme Court. But, did you know that John Quincy Adams, before he became president, turned down a nomination to the Supreme Court?
Our history also contains at least two would-be presidents who ultimately ended up on the Court. Salmon P. Chase, who very much aspired to the presidency, was later appointed by President Lincoln to be Chief Justice upon the death of Roger Taney. Chief Justice Chase then presided over the first impeachment trial of a sitting president--the impeachment of Andrew Johnson. Ironically, a justice by a very similar name, Justice Samuel Chase, was the first Supreme Court justice to be impeached. Chief Justice Earl Warren is another example of someone with presidential aspirations who ended up on the high court.
Prof. William Ross at Cumberland Law has actually written a law review article on the presidential aspirations of Supreme Court justices (I am pretty sad now that I can't write this article). In addition to Chase and Warren, he mentions Justices McLean, Field, Miller, Davis, Nelson, Hughes, Jackson, Black, and Douglas. Prof. Ross lists other justices who were mentioned as possible candidates, but who didn't seem to encourage the attention.
Perhaps President Biden will follow this trend and appoint to the Court a lawyer/politician with presidential aspirations. There are several in his party who would be great choices.
Saturday, February 13, 2021
Opening statements are among the most critical aspects of a trial. Indeed, the opening statement provides attorneys with the opportunity to, among other things, make an excellent first impression with the jury, highlight the most favorable facts supporting an attorney's argument, and establish trust and credibility with the jury. Below are tips to maximize the persuasive value of an opening statement.
Begin with a theme. First impressions are critically important, whether it is at a trial, in an interview, or during an audition. For that reason, it is vital to start strong when delivering your opening statement. A powerful beginning, among other things, gets the jury’s attention and establishes your credibility immediately. To ensure that you deliver a persuasive and powerful opening, begin with a theme. A theme is a concise, one-sentence statement that explains what the case is about and, more importantly, why the jury should rule in your favor.
Tell a story. It is critical to tell a compelling and enjoyable story that has a beginning, a middle, and an end. The story should include vivid details and powerful language concerning, among other things, the characters in your story (e.g., the plaintiff and defendant), and the atmosphere within which the events in question occurred. A compelling story helps to personalize your client, enables the jury to visualize (and thus relate to) the relevant events, and enhances your statement’s emotional impact.
Use the Rule of Three. The best opening statements are well-organized and cohesive. One of the best ways to ensure that your opening statement is structured effectively is to use the Rule of Three. Simply put, the Rule of Three provides the jury with three distinct reasons that support a verdict in your favor – and maximizes the persuasive value of your statement. As one commentator explains:
We humans tend to think in triplets. Three is a good number to wrap our mind around, and we see it in all kinds of instances. We tend to remember points best when given in groups of three, we scan visual elements best when they come in threes, and we like to have three options to consider. Think how often three comes up in our society: three little pigs, three strikes, three doors on ‘Let’s Make a Deal,’ three competitive quotes. It’s a triordered world out there.
In essence, the Rule of Three “creates simplicity, aids recall and makes your job easier.”
Use demonstrative exhibits. During opening statements, demonstrative exhibits can often be a powerful tool to convey important facts and evidence to the jury in a well-structured, clear, and concise manner. Indeed, such exhibits focus the jury’s attention on the strongest facts and evidence supporting your argument, and can make your opening statement more persuasive and engaging, particularly for jurors that prefer visual images to enhance their understanding of the case.
Keep it simple and understandable. Opening statements should always be delivered using simple and easy-to-understand language. Thus, avoid fancy or esoteric words. Eliminate unnecessary legalese. And be sure to explain complex concepts in a clear and straightforward manner. Otherwise, you will likely lose the jury’s attention and fail to communicate your argument persuasively.
Be likeable, relatable, and credible. Likeability is an integral part of persuasive advocacy. Jurors (and judges) will be more inclined to rule in your favor or give you the benefit of the doubt if they like you. To enhance likeability, do not read your opening statement to the jury. Do not use notes. Instead, speak to the jurors in a conversational tone. Make eye contact and engage the jurors. Smile. Be friendly. Do not talk down to the jurors, attack your adversary, or speak in an overtly hostile manner. If the jurors like you, you will gain trust and credibility, both of which are essential to maximizing the persuasive value of your arguments.
Use non-verbal techniques. Non-verbal techniques are an essential part of effective advocacy. Such tecnhniques include, but are not limited to, avoiding speaking in a monotone and overly formalistic way. Instead, vary your tone and pace to emphasize important facts. Show authentic emotion. Use hand gestures and different facial expressions. Do not stand in one place for the entirety of your opening statement. And do not act in any manner that can be perceived as contrived and disingenuous. Effective non-verbal techniques contribute immeasurably to showing the jury that you are a genuine and relatable person -- and increase your openig statement's persuasive impact.
Confront unfavorable facts. Do not avoid facts that are unfavorable to your case. Instead, confront those facts in your opening statement and explain why such facts do not and should not affect the outcome or remedy you seek. If you fail to confront unfavorable facts, you can be certain that your adversary will, and when that happens, your credibility will be undermined substantially.
Avoid including unnecessary or irrelevant facts and explanations. Your opening statement should capture the jury’s attention from the first sentence and keep the jury’s attention until you conclude. To accomplish this, and to maximize persuasive impact, the opening statement must be interesting, engaging, and, at times, captivating. As such, avoid including unnecessary or irrelevant facts and explanations. Make sure that your statement is not too lengthy, unduly repetitive, ineffectively organized, or plain boring. Otherwise, you risk losing the jury’s attention – and your case.
End strong. The end of your opening statement is equally as important as the beginning. Your goal should be to reinforce the theme, maximize emotional impact, and highlight in a memorable way the strongest facts and evidence supporting your argument. Ask yourself, “what is the last and most important thing that I want the jurors to hear before they deliberate?” After all, a poor and unpersuasive ending can affect negatively the manner in which the jurors assess your arguments and, ultimately, diminish significantly your likelihood of success.
 Paul Luvera, “The Importance of a Trial Theme and the Rule of Three” (Jan. 16, 2011), available at: The immportance [sic] of a trial theme&the rule of three – Plaintiff Trial Lawyer Tips (internal citation omitted).
While some courts and law schools have returned to a form of in-person proceedings, many of us are still doing our best to represent clients or help students on Zoom. If you are struggling with Zoom, check out Briar Goldberg’s Ted Ideas on how to raise your video skills. Briar Goldberg, Ted Ideas: 7 Zoom mistakes you might still be making, https://ideas.ted.com/7-zoom-mistakes-you-might-still-be-making-and-how-to-raise-your-video-skills/ (Feb 9, 2021).
Additionally, if your spring involves teaching students to write trial or appellate briefs in pairs, Zoom now allows your students to select breakout rooms with their partners. See https://support.zoom.us/hc/en-us/articles/115005769646. I was hesitant to use this feature because I know students cannot always select their own room, especially students using iPads and some Chromebooks. See Clay Gibney, Tips for Zoom Breakout Rooms - Lessons Learned, https://www.sais.org/page/zoom_breakout_rooms (Nov. 2020). Like many Zoom hosts, I avoided the feature, and either spent the significant time needed to pre-assign participants to breakout rooms or let Zoom randomly assign participants to rooms.
However, if you want students to be able to meet and confer with their brief-writing partners during class, even in a larger class, you should give the choose-your-own-breakout-room option a try. I teach writing classes without a “Zoom TA” or IT person in the class, and yet I have sent my students to self-selected breakout rooms for partner meetings. For the best results, assign your student pairs breakout room numbers before class and ask in advance for names of students whose devices do not show the room choices.
Assigning Pair Numbers
When I assigned my students into partner pairs, I listed each pair on an Excel sheet with numbered lines, and saved the sheet to our class Google Drive. Before our first class using the partner meeting breakout rooms, I asked each student to double check the Excel sheet and make sure they knew their pair’s number.
Then, to make creating the rooms quick and simple during class, I did not take the time to name the breakout rooms. I simply asked Zoom to create the same number of self-selecting breakout rooms as my number of student pairs. In other words, for a class of 30 students, I created 15 choose-your-own-breakout rooms numbered 1 to 15.
Dealing with iPads, Chromebooks, and Web Zoom
Early in the semester, I had the students practice choosing their own breakout rooms during a persuasive writing exercise. We learned that about twenty percent of my students could not select their own rooms, either because of their Chromebook or iPad devices, the way they access Zoom, or both. See generally Gibney, Tips for Zoom Breakout Rooms, https://www.sais.org/page/zoom_breakout_rooms, at 2 (explaining students using the Web version of Zoom cannot select their own rooms).
When I let the students know they would need their pair numbers for our next class, I also asked them to notify me before class if their device did not allow them to choose their own breakout rooms. Therefore, I had a handy list and was able to quickly send these students to the proper rooms by manually assigning them.
Several students told me after class that they really enjoyed the time in partner breakout rooms. As much as we wish we could teach partner pairs to write briefs together in person, Zoom’s self-selecting breakout rooms at least allow us the chance to let the students meet together during class.
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 let stand a Tenth Circuit order ruling that Alabama must allow an inmate’s request to have his pastor with him during his execution. The order denies without explanation the motion to vacate the injunction. Justice Kagan, joined by Justices Breyer, Sotomayor, and Barrett, concurred explaining that the “Religious Land Use and Institutionalized Persons Act (RLUIPA) provides ‘expansive protection’ for prisoners’ religious liberty” and that Alabama had not met ‘its burden of showing that the exclusion of all clergy members from the execution chamber is necessary to ensure prison security.” See the order and reports from The New York Times, The Hill, and the Associated Press.
- The Supreme Court granted in part a request to enjoin the California ban on indoor public gatherings as applied to religious services, allowing California churches to open despite the pandemic. The order allows the 25% capacity limitation and allows the ban on signing and chanting during services. Justice Kagan’s dissent argues not only that religious meetings were treated exactly like other similar meetings but also that the court is not equipped to step into the shoes of the scientists and legislators who are attempting to fight a deadly pandemic. See ruling and a few of the many reports from USA Today, CNN, The New York Times, and Politico.
- The Supreme Court granted the Biden Administration’s request to cancel two upcoming arguments in pending cases concerning the previous administration’s immigration policies. The Biden administration told the court that the polices were under review and asked the court to table argument for now. The two arguments concerned funding for the border wall and the “Remain in Mexico” policy. See reports in Reuters, The Hill, and Bloomberg News.
Federal Appellate Court Opinions and News
The Second Circuit upheld a new New York state ballot law that changes the definition of a qualified political party, making it more difficult to meet the test. The rules make access to the NY ballot more difficult by raising the number of required signatures to be a qualified political party from 50,000 to 130,000 (or at least 2% of the vote in presidential or gubernatorial elections). The ruling recognizes that the Constitution gives states broad authority over their own elections. See the order and reports from The Courthouse New Service, NBC New York, and The Associated Press.
The Seventh Circuit ruled that a nativity scene may be placed outside an Indiana public building because it has secular significance. The court overturned the lower court ruling and found that the scene complies with the Establishment Clause “because it fits within a long national tradition of using the nativity scene in broader holiday displays to celebrate the origins of Christmas—a public holiday.” See order and reports in The Indianapolis Star and The Courthouse News.
State Appellate Court Opinions and News
- The California Supreme Court allowed a high-ranking California judge to be removed from office for sexual misconduct. A disciplinary commission found the judge sexually harassed attorneys, staff, and court colleagues. The court, with no dissents, refused to review the commission’s decision to remove him from the Second District Court of Appeal in Los Angeles. The commission found that the justice’s “misconduct has severely tarnished the esteem of the judiciary in the eyes of the public” and that, “[g]iven his lack of candor during this proceeding, [the commission does] not have confidence that he has the fundamental qualities of honesty and integrity required of a judge.” See reports from The Los Angeles Times and The San Francisco Chronicle.
- Adam Steinman posts a summary of his article titled Rethinking Standards of Appellate Review, 96 Ind. L.J. 1 (2020). The summary explains that the article “digs into” the question “[f]or any given issue that a trial court might decide, should the appellate court review the lower court’s ruling de novo? Or should it review the ruling deferentially, say, for clear error or abuse of discretion?”
February 13, 2021 in Appellate Advocacy, Appellate Court Reform, Appellate Practice, Appellate Procedure, Federal Appeals Courts, State Appeals Courts, United States Supreme Court | Permalink | Comments (1)
Thursday, February 11, 2021
Appellate lawyers often face a challenge in securing sufficient oral argument experience because many appellate courts have curtailed oral argument. When a client asks "how many arguments have you done," if your answer is two or three, the client may look elsewhere for counsel.
Appellate courts, on the other hand, face a challenge of an enormous volume of pro se filings. Some of these briefs are very good and thorough, but others can be incomprehensible. Interesting or difficult legal issues can sometimes be obscured by virtue of a lack of adequate briefing.
Is there a way to marry these two problems in order to find a solution? I think the answer is yes. Finding ways to partner junior lawyers who need appellate experience and are interested in pro bono options with clients who need legal help can offer a win-win-win opportunity. The lawyer gets the experience they want, the client receives capable counsel, and the court receives good briefing and argument.
The challenge in designing a program like this is determining who can provide the screening function. Not every pro se case warrants a lawyer because some are frivolous. But who evaluates the cases and steers the ones with potential merit to counsel? Some courts are apprehensive about playing that role out of a fear of perception that the court is prejudging the merits.
Many courts are starting to explore creative solutions along these lines. California's Second District Court of Appeals, which already has a Self Help Center for pro se litigants, launched a pilot program to offer representation to indigent litigants in civil cases who are without counsel. The parties in selected cases will be contacted by Public Counsel for further screening. All eligible parties will be able to attend a clinic on the appellate process and will be screened to determine if their case is eligible for assistance from volunteer counsel.
The New York State Bar has a pro bono appellate program, which is limited to civil cases and is not administered by a court. But it focuses on cases in the Appellate Division, Third and Fourth Departments.
Arizona's Court of Appeals has a pro bono program that allows pro se litigants to submit an application for counsel. The program focuses on providing representation in cases that would help the court's consideration, such as matters of first impression or other complex issues.
My court is currently working on implementing a pro bono appellate program as well, and I'll report back later in the year on how that is going. In the meantime, I welcome input from folks with experience in getting programs like these up and running, and if the appellate court in your jurisdiction doesn't have something like this, please suggest it!
Tuesday, February 9, 2021
The Supreme Court of Ohio, Commission on Professionalism, has published Professionalism Dos & Don’ts: Legal Writing. Each Do and Don’t has several subpoints. Over the next few months, I plan to take a more in-depth look at some of these Dos and Don’ts and offer examples and suggestions for how appellate advocates can implement the Dos and avoid the Don’ts. This is the second post in the series.
Do provide a consistent, coherent argument:
- Do research the applicable law thoroughly.
We have an obligation to the court and to our client to conduct thorough and exhaustive research. Rule 1.1 of the ABA Model Rules of Professional Conduct says, “A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.” This includes an obligation to update our research. Failure to research adequately can cause harm to clients and embarrassment to counsel as demonstrated in Baldayaque v. United States, 338 F.3d 145 (2d Cir. 2003).
- Do investigate the facts diligently.
A corollary to the duty to research the law thoroughly is a duty to thoroughly investigate the facts of the case. The Federal Rules of Civil Procedure state that when an attorney signs a pleading he or she is representing that “the factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery[.]”
- Do plan and organize your writing.
Outlining saves time. The more time we spend planning and outlining our writing, the less time we spend writing and rewriting. Outlining helps us organize our arguments, see gaps in our reasoning, and see things that can be eliminated. And consider as the first step, using a non-linear outline. This is a technique espoused by Bryan Garner and discussed in his book, Legal Writing in Plain English. To use this technique, the writer starts with a circle in the middle of the page that contains the issue or purpose of the writing. Off of that circle branch sub-issues, facts, authorities, and parts of what might become the final document. Here is an example from Legal Writing in Plain English:
The writer then uses this nonlinear outline to create a linear outline. Nonlinear outlining allows the writer to see how various facts and arguments might better fit before committing to a final, linear outline.
- Do make sure that any legal theory you present is consistent with applicable law.
ABA Model Rule of Professional Conduct 3.1 provides, “A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in law and fact for doing so that is not frivolous, which includes a good faith argument for an extension, modification or reversal of existing law.” So, as part of our writing process, and along with our duty to thoroughly research the law and investigate the facts, we must ensure our legal theories are consistent with applicable law.
- Do use persuasive authority.
I have to assume that in this instance the authors of the Dos and Don’ts meant, “Do use binding authority.” We all want to find that magic case that is on “all fours” with our case. In those rare instances when we do, we should cite it. Of course, we all know how infrequently that happens. When we can’t find a case that is binding, then we have to turn to persuasive authority. But not all persuasive authority is created equally. Think about what authority is likely to be more persuasive in your jurisdiction. Ask yourself questions such as, is the jurisdiction that produced the authority in the same geographic region or federal circuit as mine? Has the court relied on authority from this jurisdiction in other cases? How often have courts in other jurisdictions relief on this particular authority?
- Do state clearly what you are requesting in motions and briefs.
Ask for what you want and consider asking for alternative relief.
 Fed. R. Civ. P. 11(b)(3).
Monday, February 1, 2021
Two weeks ago I blogged that we were close to releasing Volume 21, Issue 1, of The Journal of Appellate Practice and Process. I am pleased to announce that the issue is now online. There are so many wonderful articles in the issue, which I plan to blog on over the next few weeks.
Since I have already written much on online oral arguments, I thought that I would start with the two pieces that discuss that topic. The first, "Remote Oral Arguments in the Age of Coronavirus: A Blip on the Screen or a Permanent Fixture," written by veteran appellate advocate Margaret McGaughey, is a follow-up from her earlier article entitled, "May it Please the Court--Or Not: Appellate Judges' Preferences and Pet Peeves About Oral Argument." In both articles, Ms. McGaughey conducts numerous interviews of state and federal appellate judges and provides their perspectives on the topics. Her interviewees include Justice Stephen Breyer, Judge David Barron (my property professor), Judge Sandra Lunch, Judge Bruce Selya, Judge William Kayatta, Judge Lipez, former Chief Justice Daniel Wathen, Chief Justice Andrew Mean, Justice Catherine Connors, and the late Chief Justice Ralph Gants. She also interviewed several attorneys who have given remote arguments.
The article is full of great tips, including some tips at the end of setting up your space for remote argument. But, there are two things that really stuck with me in reading the article. The first is how well we all adapted. The judges and the advocates have done what has needed to be done to adapt to the situation. They have learned how to use the technology and they have changed how questions are asked and arguments delivered. Some have even changed what they wear to "court." We are all truly in this together, and we have persevered. This leads to the second thing that struck me--while many judges are eager to return to the physical courtroom, things will never be the same. This new style of remote arguments will remain in some form. How frequently it will be used in the future remains to be seen.
The second article on remote arguments is by one of our bloggers--Judge Pierre Bergeron. Judge Bergeron's article, "COVID-19, Zoom, and Appellate Oral Argument: Is the Future Virtual," also contains judges' thoughts about remote argument. What really stands out to me in Judge Bergeron's article, however, is his passionate defense of oral argument in general. He presents a fascinating discussion of the decline of oral argument and how remote arguments can serve to both revitalize oral argument and meet key access to justice concerns. Virtual arguments, he says, could allow courts to create a "pro bono appointment program that would . . . help provide argument at-bats for aspiring appellate lawyers" by matching them with "underprivileged clients who need quality legal representation." He cites to such a program in Arizona. This idea is genius. I could see law school clients jumping on board too.
Hopefully this new year and the vaccine rollout will see some normalcy return to our appellate courts. But, I hope too that we capitalize on all the technological advancements with remote oral argument to increase access to justice and lower costs for clients.
February 1, 2021 in Appellate Advocacy, Appellate Court Reform, Appellate Justice, Appellate Practice, Current Affairs, Federal Appeals Courts, Oral Argument, State Appeals Courts, United States Supreme Court, Web/Tech | Permalink | Comments (0)