Appellate Advocacy Blog

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

Monday, March 29, 2021

“This is Not Proper Appellate Advocacy”: Third Circuit Slaps Sanctions on Attorney Who Copied and Pasted Trial Court Briefs

This is a guest post by Philip Hall. Philip is a current 3L at Pennsylvania State University’s Dickinson School of Law.  After law school, Philip will be a civil litigator at the law firm of Knox McLaughlin Gornall & Sennett, P.C. in Erie, Pennsylvania.

A week and a half ago, the Third Circuit issued an unmistakable warning: meritless “copy-and-paste appeal[s]” have consequences. 

The case was Conboy v. United States Small Business Administration, and appellants’ counsel was a repeat violator of federal procedural and ethical rules.  On appeal of the district court’s summary judgment, appellants’ counsel filed briefs containing numerous procedural misstatements.  Counsel wrote in the present tense—stating, for example, that “[t]he district court has subject-matter jurisdiction” and that “summary judgment should be denied”—as if he were still arguing to the district court.  And nowhere in counsel’s fifteen pages of argument did he mention how the district court erred. 

The Third Circuit was not fooled.  “Counsel for [appellants] simply took the summary judgment section of his District Court brief and copied and pasted it into his appellate brief. . . .  This is not proper appellate advocacy,” the court said. 

Appellees filed a motion for frivolous-appeal damages under Federal Rule of Appellate Procedure 38.  Unrepentant, appellants’ counsel copied and pasted again, this time from his previous opposition to sanctions in the district court under Civil Rules 11 and 37. 

The Third Circuit sanctioned appellants’ counsel, ordering him to pay appellees’ Rule 38 damages personally.  “[D]espite many cues” from the district court “that [appellants’] cause was wholly meritless,” appellants’ counsel “filed a copy-and-paste appeal without bothering to explain what the District Court did wrong.  It is hard to imagine a clearer case for Rule 38 damages,” the court said. 

This case offers several important reminders.  First, attorneys have an ethical and procedural obligation to research the law and to determine if a claim on appeal is frivolous.  Second, attorneys owe their clients an ethical duty of competent representation, which includes thorough preparation and the “use of methods and procedures meeting the standards of competent practitioners.”  And third, attorneys shouldn’t dream that they can slip one past an appellate court.

March 29, 2021 | Permalink | Comments (0)

Sunday, March 28, 2021

Revisiting Defamation Law in the Social Media and Online Blogging Era

Social media and online blogging have created extraordinary opportunities for individuals and groups to publicly disseminate information, participate in public policy debates, and contribute to the marketplace of ideas. Indeed, social media and online blogging certainly have benefits, such as providing individuals with platforms to connect with others, give commentary on political issues, and offer additional and alternative sources of information.

But social media and online blogging also have drawbacks.

For example, social media has been used – and continues to be used – as a vehicle by which to disseminate false or misleading information regarding, among other things, current political issues. As a source of misinformation in some instances, particularly during federal and state elections, social media has the potential to unduly influence voters and thereby indirectly affect election outcomes. Additionally, social media and online blogging have been used to disseminate false commentary about individuals and groups. To be sure, some social media users and online bloggers – using anonymity as a shield – have attacked individuals with deeply offensive insults and scurrilous attacks that contribute nothing to public discourse, and that cause severe and irreparable reputational harm.

Given the proliferation of such offensive and often harmful statements, the question arises whether defamation law provides a remedy to individuals who are the target of such commentary. The answer, in most instances, is no. And that is a problem.

Current defamation law suffers from a significant flaw. Statements that are deemed pure opinions, regardless of the harm they cause, cannot be considered defamatory.[1] This limitation makes it impossible to obtain a remedy for statements that cause substantial, and sometimes irreversible, reputational harm.

By way of background, defamation consists of libel and slander, and is divided into two categories: defamation per se and defamation per quod. Defamation per se is reserved for a relatively narrow category of statements that are considered so inherently defamatory that they are presumed to cause reputational harm. Typically, defamation per se is limited to statements negatively affecting a person’s reputation relating to his or her business or profession, falsely claiming that a person has been convicted of a crime of moral turpitude, has a sexually transmitted disease, or is unchaste. Defamation per quod applies to all other allegedly defamatory statements and requires a claimant to demonstrate that a statement was: (1) published to a third party; (2) provably false; (3) likely to subject the claimant to embarrassment, scorn, and ridicule in the community; (4) negligently made; and (5) caused damages to the claimant’s reputation.

Importantly, however, if a statement is considered a pure opinion rather than a provably false fact, it cannot be defamatory. In Milkovich v. Lorain Journal Co., the United States Supreme Court explained that “under the First Amendment there is no such thing as a false idea … [h]owever pernicious an opinion may seem, we depend for its correction not on the conscience of judges and juries but on the competition of other ideas.”[2] As stated above, this aspect of defamation law makes it impossible to succeed in a defamation action and leaves individuals who suffer severe and often irreparable harm without a legal remedy. That is wrong. Pure opinions should not be categorically exempted from defamation law.

The fact that a statement reflects a speaker’s opinion does not mean that it is not or cannot be defamatory. Opinions can – and do – cause severe reputational harm. In Milkovich and other cases, the Court has acknowledged this fact, holding that opinions that imply underlying facts can be defamatory. Apart from the inherent difficulty of distinguishing pure opinions from opinions that imply underlying false facts, the Court missed the point. Pure opinions can be defamatory, and claimants should be entitled to have a jury decide if they are defamatory.

After all, readers arguably do not distinguish between pure opinions and provably false facts or condition their judgment of a person on whether a statement constitutes an opinion or a provably false fact. As one commentator explains:

Although people are in a position to judge for themselves whether an opinion is justified so long as the alleged facts utilized as a basis for the opinion are proven to be true and are available to them, most, if not all, people are often influenced by others, especially by the press and the media, in formulating their opinions. The reader of a book or an article may have difficulty in assimilating all the facts set forth as the basis for an opinion; as a result, the reader is apt to be more influenced by the opinion than the facts set forth to justify it.[3]

Put simply, the "view that damage to reputation may be minimized by the recipients' ability to judge the soundness of the opinion is naïve … defamatory deductive opinions may be just as damaging to reputation as other defamatory facts."[4] For example:

[C]onsider a hypothetical assertion in an editorial about John Doe, a candidate for city attorney: ‘In my opinion, John Doe is an incompetent lawyer because he was accepted into law school under an affirmative action program and would not have been admitted under the school's standards for whites.’ Even if the premises of this statement are true, a false assertion that Doe is an incompetent lawyer can be very damaging, causing readers to make judgments based on false premises. In part this pure deductive opinion may be persuasive because readers are ill informed; some may assume that the writer is correct that only those who entered law school under the standards applied to ‘whites’ can be competent lawyers.[5]

Of course, some would argue that the First Amendment protects offensive and distasteful speech. Thus, holding individuals liable for such speech would compromise core First Amendment protections by, among other things, chilling speech and inhibiting a true marketplace of ideas. This argument fails to recognize that defamatory opinion "does not advance free speech values … because it is not the type of public discourse that contributes to intelligent decision making or promotes a multicultural society that is both dynamic and durable."[6] Furthermore, the requirement that a claimant demonstrate tangible reputational harm (not merely emotional distress) inherently limits the extent to which opinions will be considered defamatory. To be sure, the problem is not solved by holding that opinions that implying underlying facts can be defamatory. How can courts distinguish between such opinions and pure opinions? There are simply no standards to make this distinction reliably and consistently, and doing so ignores the fact that pure opinions can – and do – cause reputation harm.

For example, imagine a situation where someone states that another person is a “self-serving fraud,” “Nazi war criminal,” or “Charles Manson wannabe.”[7] The courts held that each of these statements constituted pure opinion and, as such, could not be deemed defamatory. Admittedly, depending on the context, such statements may not be defamatory. But to state that they can never be defamatory, regardless of the harm they cause, and simply because they are pure opinion, makes no sense. If a claimant can demonstrate that a pure opinion caused tangible reputational harm (e.g., economic harm), that claimant should have a legal remedy.

In an era where social media and online blogging are replete with slurs, insults, and degrading comments directed at individuals and groups, the law should not categorically shield such statements from legal liability because they are “pure opinions.” Instead, courts should recognize that pure opinions can – and often do – cause substantial and irreversible harm.

 

[1] Milkovich v. Lorain Journal Co., 497 U.S. 1 (1990); see also Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974).

[2] Milkovich, 497 U.S. at 18 (internal citation omitted).

[3] Kathryn Dix Sowle, A Matter of Opinion: Milkovich Four Years Later, 3 Wm. & Mary Bill of Rights J. 467, 495 (1994).

[4] Id. at 575-576.

[5] Id. at 579.

[6] Id.

[7] Nicosia v. De Rooy, 72 F. Supp. 2d 1093 (N.D. Cal. 1999); Koch v. Goldway, 817 F.2d 507 (9th Cir. 1987); Crowe v. Cnty. of San Diego, 593 F.3d 841 (9th Cir. 2010).

March 28, 2021 in Appellate Court Reform, Appellate Justice, Appellate Practice, Current Affairs, Legal Profession, United States Supreme Court | Permalink | Comments (0)

Appellate Advocacy Blog Weekly Roundup Sunday, March 28, 2021

WeeklyRoundupGraphic

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 ruled that victims of police shooting may pursue a claim for excessive force under the Fourth Amendment even if the victim is not actually detained at the time of the shooting. The Court held that a “seizure”  occurs the " instant that the bullets str[ike] [the victim]," explaining that “[t]he application of physical force to the body of a person with intent to restrain is a seizure, even if the force does not succeed in subduing the person.” See the order and reports from The New York Times, Reuters, and the Associated Press

  • The Justices met live for the first time since the pandemic shutdowns, which began over a year ago.  See reports from NBCNews and Bloomberg.

State Appellate Court Opinions and News

  • Interpreting Minnesota law, the Minnesota Supreme Court found a victim of rape in Minnesota cannot claim to have been mentally incapacitated and thus unable to consent if she voluntarily consumed alcohol. The court granted a new trial to a man previously convicted of assaulting an intoxicated woman. The Minnesota statute defines “mentally incapacitated” as when “a person under the influence of alcohol, a narcotic, anesthetic, or any other substance, administered to that person without the person’s agreement, lacks the judgment to give a reasoned consent to sexual contact or sexual penetration.” (emphasis supplied.) The court considered whether “administered to that person without the person’s agreement” applied to all items on the list, including alcohol, and found that it did. The court deferred to the legislature saying: “[i}f the Legislature intended for the definition of mentally incapacitated to include voluntarily intoxicated persons, ‘it is the Legislature’s prerogative to reexamine the . . . statute and amend it accordingly.’” See the order here and reports from The Minneapolis Star Tribune and CBSNews.

  • The California Supreme Court has reformed the CA cash bail system ruling that “[t]he common practice of conditioning freedom solely on whether an arrestee can afford bail is unconstitutional.” The ruling identifies other means of monitoring that can meet the goals of cash bail, including for example, electronic monitoring, mandatory check-ins, or stays at community housing facilities, and holds that “where a financial condition is nonetheless necessary, the court must consider the arrestee’s ability to pay the stated amount of bail—and may not effectively detain the arrestee ‘solely because’ the arrestee ‘lacked the resources’ to post bail.” See the order here and reports from The Associate Press, The Los Angeles Times, and The Courthouse News.

March 28, 2021 in Appellate Advocacy, Federal Appeals Courts, State Appeals Courts, United States Supreme Court | Permalink | Comments (0)

Tuesday, March 23, 2021

Certainty vs. Exigency: The Role of Modern Police Officers in Lange v. California

    When the Supreme Court recently heard arguments in Lange v. California, Justices were forced to consider how a police officer should react to emergencies in the field—perhaps their primary role in modern policing. The case concerns the arrest of Arthur Lange, who was convicted of driving under the influence of alcohol in Sonoma, California.[1] Lange was driving home while playing loud musing with his windows down and occasionally honking his horn; a California highway patrol officer followed him into his neighborhood.[2] Though the officer turned on his lights as Lange approached his driveway, Lange did not see him, pulled into the garage, and closed the door.[3] The officer used his foot to block the garage door from closing, and when it reopened the officer entered the garage, smelled alcohol, and arrested Lange.[4] Lange challenged the evidence collected in the garage as the fruits of a warrantless arrest; the California Court of Appeal held that this evidence was admissible under the “exigent circumstances” exception to the warrant requirement because the officer had probable cause to arrest Lange and was in “hot pursuit,” even if the offense Lange appeared to commit was merely a misdemeanor.[5]

        The Justice’s arguments often returned to the issue of when and how officers can determine that an emergency is genuine, and thus the exigent circumstances exception to the Fourth Amendment’s warrant requirement applies. For instance, Justice Gorsuch worried that creating too many categorical exceptions to the warrant requirement, including one that always allowed warrantless hot pursuit of a misdemeanant, generated limitless government authority contrary to the intent of the Fourth Amendment’s drafters.[6] But as Lange’s attorney noted, the Court has never required officers to be certain of an emergency before acting under the exigent circumstances doctrine.[7]

What’s the Emergency?

    In an era of widespread citizen distrust of officers, one primary police function that can still garner widespread support is emergency response. When a genuine emergency is present,[8] immediate police action is so beneficial to citizens that officers should be able to dispense with the warrant requirement. In contrast, where officers merely seek to avoid the warrant requirement to avoid inconvenience or some slight delay that would have no evidentiary or real-world consequences, the exigent circumstances exception does not apply.[9]

    But the Court has not offered a clear rule to distinguish these two situations.[10] If the exigent circumstance doctrine requires something less than an officer’s absolute certainty in an emergency,[11] just what mental state must officers possess before acting?

    Many cases in the last half-century seemed to suggest that officers must have probable cause to believe that the exigency exists before proceeding.[12] But more recently, the Court appears to have softened the required proof of exigency before the exception applies, even while insisting that judges evaluate the totality of the circumstances in each case rather than devising categorical rules.[13] Phrases like “reasonable suspicion” and “objectively reasonable basis to believe” in an emergency have dotted the jurisprudential landscape.[14]

Terry To the Rescue

    There is good reason, both in precedent and policy, to equate the quantum of suspicion of an exigency needed to invoke that exception to the Terry-style reasonable suspicion standard. First, regarding precedent, Terry used the phrase “reasonable grounds to believe”—the very phrase that both the Supreme Court and circuit courts have subsequently applied in exigent circumstances cases—when finding that the stop-and-frisk in Terry was constitutionally justified.[15] Terry’s requirement seems to be the closest analogue to any “reasonable belief” or “reason to believe” standard that might emerge as the touchstone for applying the exigent circumstances standard.

    Furthermore, applying a robust version of Terry’s reasonable suspicion standard makes good policy sense. A probable cause standard requires more certainty than is typically possible in responding to an emergency. Probable cause—the Constitutional standard for obtaining a warrant[16]—contemplates a traditional, fully-considered investigation under relatively calm circumstances. The exigent circumstances doctrine evolved to create a lower threshold for constitutional investigation when officers are forced to respond quickly to rapidly-evolving circumstances. To achieve that level of discretion in emergencies, officers’ suspicion of an emergency must be lower than the probable cause requirement that officers must meet in more deliberate, considered investigations.

    At the same time, any floor lower than a full-throated version of reasonable, articulable suspicion is misguided. Officers need at least that much suspicion that an emergency is afoot—even when acting in the spur of the moment—before the warrant requirement can be dispensed.[17] Officer must also not be permitted to create exigencies that can serve as pretexts for warrantless searches. The Court should expand the prohibition on officer-created exigencies to ensure evidence is excluded where there is objective evidence that officers plotted in advance to generate exigent circumstances or followed a department-wide policy or practice to excuse the need for warrants.[18]

    Terry-style reasonable suspicion is also appropriate because of its inherent flexibility to adapt to new circumstances or changing facts. Fourth Amendment reasonableness is not a static concept, but one that can evolve as new types of officer-citizen interactions arise. Officers will need that kind of flexibility—though always grounded in what they can articulate as a basis for suspicion—to respond to exigencies in real time.

    Reasonable suspicion can bear the weight of determining when exigencies are genuine, even though it is not a clear, bright-line rule. The exigent circumstances exception is based in common sense and reasonableness. [19] Apply Terry returns the exception to its roots and prescribes a sphere of constitutional action for officers that is easy both to understand and to justify. The Court should rely on this standard in cases like Lange to clarify the scope of the exigent circumstances exception.

 

[1] Amy Howe, Justices to Consider Whether “Hot Pursuit” Justified Entering the Home Without a Warrant, SCOTUSblog, Feb. 23, 2021, https://www.scotusblog.com/2021/02/justices-to-consider-whether-hot-pursuit-justifies-entering-the-home-without-a-warrant/.

[2] Amy Howe, Justices to Consider Whether “Hot Pursuit” Justified Entering the Home Without a Warrant, SCOTUSblog, Feb. 23, 2021, https://www.scotusblog.com/2021/02/justices-to-consider-whether-hot-pursuit-justifies-entering-the-home-without-a-warrant/.

[3] Amy Howe, Justices to Consider Whether “Hot Pursuit” Justified Entering the Home Without a Warrant, SCOTUSblog, Feb. 23, 2021, https://www.scotusblog.com/2021/02/justices-to-consider-whether-hot-pursuit-justifies-entering-the-home-without-a-warrant/.

[4] Amy Howe, Justices to Consider Whether “Hot Pursuit” Justified Entering the Home Without a Warrant, SCOTUSblog, Feb. 23, 2021, https://www.scotusblog.com/2021/02/justices-to-consider-whether-hot-pursuit-justifies-entering-the-home-without-a-warrant/.

[5] Amy Howe, Justices to Consider Whether “Hot Pursuit” Justified Entering the Home Without a Warrant, SCOTUSblog, Feb. 23, 2021, https://www.scotusblog.com/2021/02/justices-to-consider-whether-hot-pursuit-justifies-entering-the-home-without-a-warrant/.

[6] “[W]e live in a world in which everything is illegal, you put that together with the good faith exception and the—the fact that an officer is not being tested on his subjective intentions, which may be nefarious, but whether a reasonable officer could think as he did, and hot pursuit could be pretty tepid, it turns out, have we come pretty close to—doesn’t that sound a bit like the general war—world and –and the founding that the framers were so concerned about rejecting?” Transcript of Oral Argument at 105-06, Lange v. California, Feb. 24, 2021, No. 20-18

[7] “You already have built into the Exigent Circumstances Doctrine a less-than-certitude requirement.” Transcript of Oral Argument at 35, Lange v. California, Feb. 24, 2021, No. 20-18

[8] “Any warrantless entry based on exigent circumstances must of course be supported by a genuine exigency.” Kentucky v. King, 563 U.S. 452, 470 (2011).

[9] Although the “investigation of crime would always be simplified if warrants were unnecessary . . . the mere fact that law enforcement may be made more efficient can never by itself justify disregard of the Fourth Amendment.” Mincey v. Arizona, 437 U.S. 385, 393 (1978); see also Chapman v. United States, 365 U.S. 610, 615 (1961) (“Any assumption that evidence sufficient to support a magistrate's disinterested determination to issue a search warrant will justify the officers in making a search without a warrant would reduce the Amendment to a nullity and leave the people’s homes secure only in the discretion of police officers.”).

[10] “Rather than providing a readily applicable definition, the U.S. Supreme Court has held that exigent circumstances should be examined on a case-by-case basis.” Di Jia et al., An Analysis and Categorization of U.S. Supreme Court Cases Under the Exigent Circumstances Exception to the Warrant Requirement, 27 C.R. L.J.  37 (2016).

[11] Transcript of Oral Argument at 35, Lange v. California, Feb. 24, 2021, No. 20-18

[12] See, e.g., Welsh v. Wisconsin, 466 U.S. 740, 750 (1984); Tennessee v. Garner, 471 U.S. 1, 3 (1985); Minnesota v. Olson, 495 U.S. 91, 100 (1990).

[13] See Riley v. California, 573 U.S. 373, 402 (2014) (“The critical point is that, unlike the search incident to arrest exception, the exigent circumstances exception requires a court to examine whether an emergency justified a warrantless search in each particular case.”) (citation omitted).

[14] See, e.g., Kit Kinports, The Quantum of Suspicion Needed for an Exigent Circumstances Search, 52 Mich. J. L. Reform 615, 615 (2019) (“The Supreme Court opinions describing the amount of exigency needed to support a warrantless search under the exigent circumstances exception to the Fourth Amendment’s warrant requirement have long varied. Some decisions speak in terms of probable cause, others require reasonable suspicion, and many others use amorphous, undefined phrases such as ‘reasonable to believe.’”); see also Richards v. Wisconsin, 520 U.S. 385, 394 (1997); Brigham City v. Stuart, 547 U.S. 398, 400 (2006); Michigan v. Fisher, 558 U.S. 45, 47 (2009).

[15] Kit Kinports, The Quantum of Suspicion Needed for an Exigent Circumstances Search, 52 Mich. J. L. Reform 615, 625 (2019) (quoting Terry v Ohio, 392 U.S. 1, 30 (1968)).

[16] U.S. Const., amend. IV.

[17] “If law enforcement officials cannot even supply some ‘articulable’ suspicion, if they have only an ‘inchoate and unparticularized suspicion or hunch,’ they have no justification for conducting a warrantless exigent circumstances search or seizure.” Kit Kinports, The Quantum of Suspicion Needed for an Exigent Circumstances Search, 52 Mich. J. L. Reform 615, 627 (2019).

[18] This would require significant revision of the Court’s decision in Kentucky v. King, under which officer-created exigencies only exist when officers “gain entry to premises by means of an actual or threatened violation of the Fourth Amendment.” Kentucky v. King, 563 U.S. 452, 464 (2011).

[19] As Justice Kavanaugh noted in oral arguments in Lange v. California, “the exigent circumstances doctrine [is] a pretty clear rule for officers because the exigent circumstances doctrine really, as I see it, tracks common sense, these are the kinds of cases and the kinds of reasons an officer would do this in the first place, want to go into the house without a warrant, especially escape of the suspect, threats to others, destruction of evidence.” Transcript of Oral Argument at 107, Lange v. California, Feb. 24, 2021, No. 20-18

March 23, 2021 in Appellate Advocacy, Current Affairs, United States Supreme Court | Permalink | Comments (0)

Monday, March 22, 2021

A Changing Clerk Relationship

I am a huge fan of clerking. As any of my former students know, I strongly advocate that law students consider clerking after law school.  And as my judge friends know, I am not shy to recommend current students to them.  

While there are many benefits of clerking, I usually focus on two when talking to students.  The first is a chance to have a front row seat to the decision making process. Students can learn how judges reach their decisions and what arguments persuade them.  In some chambers, clerks get the opportunity to try to persuade their judge, which can be quite the learning process!  I remember a chambers lunch where I, in essence, played attorney and answered questions from the judge on the case.  It was eye-opening handling all the hypotheticals.

The other great benefit of clerking is the opportunity to develop close friendships and mentorship relationships. A chambers environment is typically very small, especially if your judge doesn't sit in the main circuit courthouse. When I clerked, our chambers spend a lot of time together--from nearly daily lunches to driving to court week together. It was fun, but that was because the people were fun. I learned a lot from them, especially when I could poke my head out my door to ask a question.  Years after my clerkship, I still traveled to Richmond to eat a dinner with my judge when our schedules aligned, and I took students to oral arguments too.

But, as Judge Michael Daly Hawkins writes about in The Journal of Appellate Practice & Process, COVID-19 has changed that relationship. With many clerks working remotely, that mentoring relationship has changed.  Gone too is the easy, in-person exchanges. As he notes, this is certainly a downside of remote work.  In his piece he mentions that he hired a clerk to work remotely who he may never meet in person during her clerkship. I have heard from other judge friends about clerks working remotely. I think that it certainly has its drawbacks, especially for clerks who are right out of law school and need that mentoring relationship.

But, as Judge Hawkins also notes, not all the changes are bad.  Video-conferencing software can make the hiring process easier (and less expensive) for applicants.  There is also the benefit of avoiding commutes and dressing for the office.  In a sentence that I found quite on point, he writes, "When off-camera, the hardest decision is often whether, or when, to move to shorts and flip-flops." I may, or may not, have worn flip-flops for about 6 months straight when the pandemic hit. (And I may be wearing slippers as I type this).

Much like the practice of law will change post-COVID, I do suspect that there will be lasting changes to the clerk relationship, the biggest probably being the interview process. But, inevitably, some ability to work from home will also be more common. Still, I suspect that the bulk of clerk work will still occur in chambers once more universal vaccination occurs.

March 22, 2021 | Permalink | Comments (0)

Saturday, March 20, 2021

Advice for First-Year Law Students

Law school can be a stressful experience, particularly in the first year. Indeed, during the first year, a significant amount of stress results from the uncertainty regarding law school (e.g., not knowing how to study effectively or how to prioritize tasks) and the pressure to perform well in your courses. The tips below will help to reduce the uncertainty, relieve the pressure, and ensure that your transition to and performance in law school will be successful.

1.    Learn the Rule of Law and Do Not Brief Cases

As a law student – and as a lawyer – your primary responsibility is to know the relevant rules of law governing a particular legal issue and apply those rules to the facts of your case. Thus, from day one in law school, when reading cases, you should focus primarily on extracting the relevant rule of law from each case. For example, in New York Times v. Sullivan, the relevant rule of law is that to succeed in a defamation action, a public figure must show that an alleged defamatory statement was made with actual malice, namely, with knowledge of the statement’s falsity or with reckless disregard for its truth. You need not – and should not – focus on memorizing the facts of the case or the reasoning underlying the court’s decision, or on the concurring or dissenting opinions. Simply identify the rule of law because on your exams and in law practice, your primary responsibility will be to apply that rule (and precedent) to the facts of your client’s case.

As a corollary, do not brief your assigned cases (i.e., do not summarize the facts, procedural history, legal question, reasoning, and holding, or summarize the reasoning underlying the concurring and dissenting opinions, if any). This will require you to spend countless hours on aspects of cases that will neither be tested on the final examination nor improve your ability to apply the rule of law to a hypothetical fact pattern. Thus, just extract the rule of law and move on to the next case.

2.    Use Commercial Outlines

Sometimes, particularly for first-year law students, it can be difficult to identify the rule of law in a specific case. Indeed, in your first-year courses, for each legal topic, such as personal jurisdiction, you will often read many cases that track the evolution and development of a specific legal rule. Your focus should be to identify the current and governing legal rule because that is the rule you will be required to apply to a hypothetical fact pattern on your exam. To assist you in doing so, commercial outlines, such as Emanuel Law Outlines, are an invaluable resource. These outlines provide you with the current rules of law for each subject that you are studying (e.g., criminal law, civil procedure, torts, contracts) and for every legal topic within that subject. By helping you to quickly identify the relevant rules of law, commercial outcomes allow you to begin – early in each semester – the critical task of preparing for the final exam, which you do by taking practice exams.

3.    Take Practice Exams Early and Often – Under Timed Conditions

One of the best ways to excel in law school is to take practice exams, which your professor may make available to you or which you can find on the internet. Taking practice exams enables you to gain experience in, among other things, applying the relevant rules of law to hypothetical fact patterns, addressing counterarguments, and ensuring that your writing is well organized and follows the “IRAC” or “CRAC” structure (i.e., state your conclusion first, followed by a summary of the relevant rules of law, an analysis in which you apply those rules to the facts, and a conclusion).  Taking several practice exams – under timed conditions – will prepare you effectively for the final (or midterm) examination and maximize your likelihood of obtaining an excellent grade.

4.    Purchase the LEEWS Essay Exam Writing System

Just as commercial outlines will assist you in identifying the relevant rules of law, the LEEWS Essay Exam Writing System, which can be found at https://leews.com, will help you to perform extremely well on your exams. The LEEWS system teaches you, among other things, how to organize and structure your exam answer, how to identify legal issues in hypothetical fact patterns, how to address counterarguments, and how to distinguish relevant from irrelevant facts. LEEWS has been used by thousands of law students and is among the best resources available to maximize your performance in law school.

5.    Your Research and Writing Skills Are Essential to Your Success as a Lawyer

Excellent research and writing skills – particularly persuasive writing skills – are essential to good lawyering. Thus, during your three years of law school, focus on mastering your research and writing skills, including when drafting real-world documents such as complaints, motions, and trial and appellate briefs. If you cannot write effectively and persuasively, you will struggle to succeed in the legal profession.

6.    Develop Your ‘Soft Skills’

You can be the smartest and most talented law student in your law school, but if you’re a jerk, you won’t succeed in the legal profession. Being an excellent lawyer is not simply about knowing how to write persuasively and argue effectively. Rather, excellent lawyers know, among other things, how to cooperate and collaborate well with others, listen actively, accept constructive criticism, demonstrate humility, honesty, and decency, and learn from failure. Simply put, your personality influences how others perceive you – and impacts your likelihood of succeeding in the profession. So, don’t be a jerk. Don’t have an ego. Don’t gossip. Be someone who others want to work with – and who are happy when you walk into the office every day.

7.    Take Care of Your Physical and Mental Health and Remember that Mindset is Everything

Law school is stressful, but the legal profession is infinitely more stressful. It’s particularly important during law school and in your life to take care of your physical and mental health. Regardless of your workload, take time each day or several days a week to exercise. Eat healthy food. Do things that make you happy. And make sure to address any mental health or other issues that may arise. If, for example, you are struggling with depression or anxiety, consult a psychiatrist or a psychologist. If you are struggling with a substance abuse problem, seek help. Don’t ignore it or feel shame. Taking care of your physical and mental health in law school will help you to develop the habits and coping skills necessary to succeed in the legal profession.

Most importantly, remember that mindset is everything. All of us encounter adversity and unexpected challenges in life. The key to overcoming them is you. If you have a strong mindset and an empowering thought process, you can – and will – cope effectively with adversity. And remember that your choices, not your circumstances, determine your destiny.

8.    At the End of the Day, Only Happiness Matters

Don’t let law school or the legal profession consume you. Don’t judge your worth on whether you received an A in Civil Procedure or passed the bar exam on the first try. Don’t be affected by what others say about you. Don’t associate with toxic people. Ultimately, what matters is your happiness. So, put yourself first and do what makes you happy. Pursue your passions, whether in law or elsewhere. And remember that there’s more to life than the law.

9.    Don’t Just Help Yourself – Help Others

Going to law school and becoming a lawyer provides you with a tremendous opportunity to improve the lives of other people and to fight for a fair and more just society. So, remember that your career isn’t just about your success – it’s about whether you used your talents to make a difference in the world.

March 20, 2021 in Law School, Legal Ethics, Legal Profession, Legal Writing | Permalink | Comments (0)

Monday, March 15, 2021

More Tips on Virtual Arguments

There are many takeaways from the "I am not a cat" video. A quick search of YouTube shows that some of the replays of the video have been watched in the millions of times (one from Guardian News has 8.6 million views). While is isn't quite Baby Shark material, it is certainly funny (even my toddler enjoyed it).

The good people at Bloomberg Law have put together a video of their own, sharing real tips from real judges (not cat judges) on how to succeed at virtual arguments. You can find it here: 

 

March 15, 2021 | Permalink | Comments (0)

Sunday, March 14, 2021

Revisiting – and Reconsidering – Implicit Bias

Many academic institutions, professional organizations, and private corporations have embraced implicit bias training as a method by which to combat discrimination. The concept of implicit bias states that all individuals harbor unconscious biases that lead to, among other things, discrimination and the unequal treatment of individuals based on race. Although certainly well-intentioned (eradicating discrimination is a moral imperative), empirical studies suggest that: (1) the Implicit Association Test (IAT), which is used to detect individuals’ implicit biases, is flawed; (2) there is a weak correlation between implicit biases and biased behavior; and (3) few, if any, attempts have been made to quantify the degree to which implicit bias, particularly in light of explicit biases, impacts behavior.

 1.    The Implicit Association Test is Flawed

Some scholars and commentators have relied on the Implicit Association Test (IAT) to diagnose an individual’s implicit biases. The problem is that the IAT is flawed in many respects.

To begin with, the IAT sets arbitrary cutoff scores to determine whether an individual’s responses reveal implicit biases, yet fails to provide any assessments of the differences, if any, between the many individuals who score above or below those cutoffs.[1] Additionally, IAT scores are arguably context-dependent, as the IAT produces different results for individuals when they complete the test multiple times.[2] Furthermore, the IAT fails to meaningfully distinguish between implicit and explicit bias. As one scholar explains, “the IAT provides little insight into who will discriminate against whom, and provides no more insight than explicit measures of bias.”[3] One commentator states as follows:

The IAT is impacted by explicit attitudes, not just implicit attitudes … It is impacted by people’s ability to process information quickly on a general level. It is impacted by desires to want to create a good impression. It is impacted by the mood people are in. If the measure is an amalgamation of many things (one of which is purportedly implicit bias), how can we know which of those things is responsible for a (weak) correlation with behavior?[4]

To be sure, one scholar acknowledged that “what we don’t know is whether the IAT and measures like the IAT can predict behavior over and above corresponding questionnaires of what we could call explicit measures or explicit attitudes.[5]

2.    Neither the Implicit Association Test Nor The Presence of Implicit Bias Reliably Predicts Biased Behavior

Empirical studies suggest that implicit biases do not predict biased behavior. Indeed, one researcher acknowledged that the IAT “cannot predict behavior at the level of an individual.”[6]  In fact, the evidence shows precisely the opposite:

Researchers from the University of Wisconsin at Madison, Harvard, and the University of Virginia examined 499 studies over 20 years involving 80,859 participants that used the IAT and other, similar measures. They discovered two things: One is that the correlation between implicit bias and discriminatory behavior appears weaker than previously thought. They also conclude that there is very little evidence that changes in implicit bias have anything to do with changes in a person’s behavior. These findings, they write, "produce a challenge for this area of research.[7]

Additionally, researchers recently “examined 63 studies that explicitly considered a link between changes in bias and changes in actions … [but] they found no evidence of a causal relationship."[8] Put simply, very few, if any, sociological or psychological studies have established with any degree of reliability that implicit bias directly or proximately caused biased, or discriminatory, behavior. As one social psychologist explains:

Almost everything about implicit bias is controversial in scientific circles. It is not clear, for instance, what most implicit bias methods actually measure; their ability to predict discrimination is modest at best; their reliability is low; early claims about their power and immutability have proven unjustified.[9]

This is not to say, of course, that implicit bias does not exist, or that it does not have a material impact on biased behavior. It is to say, however, that the IAT – and evidence supporting a connection between implicit bias and biased behavior – is, at best, premature and, at worst, untenable. As two prominent scholars explain:

[M]uch murkiness surrounds (a) the proper causal explanation for alleged IAT effects, (b) the psychological meaning of IAT scores, (c) the statistical generality and potency of alleged relations between IAT scores and actual behavior, and (d) boundary conditions on alleged IAT effects.[10]

What’s more, even where researchers have claimed to reduce implicit biases, they found no concomitant reduction in biased behavior. That fact alone should cause scholars who have championed implicit bias to think that, just maybe, they have jumped the proverbial gun.

3.    Few, If Any, Attempts Have Been Made to Quantify Implicit Bias’s Impact on Biased Behavior

Assuming arguendo that implicit bias impacts biased behavior, scholars have made little, if any, attempt to quantify implicit bias’s impact on biased behavior. For example, is implicit bias responsible for 5%, 10%, 20%, or 50% (or more) of biased behaviors? This is particularly problematic given that the presence of other factors, such as explicit biases and prejudices, directly impact biased decision-making. This flaw should not be surprising. After all, if implicit bias is the product of unconscious – and thus involuntary – actions, it would appear difficult for researchers to credibly claim that they possess the ability to reliably measure and quantify a phenomenon that resides outside of their conscious awareness. But without attempting to do so, reliance on implicit bias as a predictor of biased conduct raises more questions than answers.

The research cited above is merely a sample of the articles that have cast doubt on the nexus between implicit bias and biased behavior. To be sure, the point of this article is not to say that implicit bias bears no relationship to biased behavior. It is to say, however, that the evidence for such a relationship is inconclusive, contested, and, quite frankly unpersuasive. As such, the adoption of programs in universities and corporations that strive to educate students and employees on the allegedly negative effects of implicit bias is, at best, premature and, at worst, misguided. What’s more, relevant research has produced “little evidence that implicit bias can be changed long term, and even less evidence that such changes lead to changes in behavior.”[11]

Ultimately, eradicating discrimination, addressing inequality, and ensuring equal opportunity are moral imperatives. The question, however, is how best to do that.

 

[1] See Azar, B. (2008). IAT: Fad or Fabulous. American Psychological Association. Retrieved from: https://www.apa.org/monitor/2008/07-08/psychometric.

[2] See id.

[3] Bartlett, T. (2017). Can We Really Measure Implicit Bias? Maybe Not. Retrieved from: https://www.chronicle.com/article/Can-We-Really-Measure-Implicit/238807.

[4] Lopez, G. (2017). For Years This Popular Test Measured Anyone’s Racial Bias. But It Might Not Work After All. Retrieved from: https://www.vox.com/identities/2017/3/7/14637626/implicit-association-test- racism.

[5] Id.

[6] Lee Jussim, Mandatory Implicit Bias Training is a Bad Idea (2017), available at: https://www.psychologytoday.com/us/blog/rabble-rouser/201712/mandatory-implicit-bias-training-is-bad-idea.

[7] Bartlett, supra note 3, retrieved from: https://www.chronicle.com/article/Can-We-Really-Measure-Implicit/238807.

[8] Brandie Jefferson, Change the Bias, Change the Behavior? Maybe Bot (Aug. 2019), available at: https://source.wustl.edu/2019/08/change-the-bias-change-the-behavior-maybe-not/

[9] Jussim, supra note 6, available at:  https://www.psychologytoday.com/us/blog/rabble-rouser/201712/mandatory-implicit-bias-training-is-bad-idea.

[10] Gregory Mitchell & Philip Tetlock, Antidiscrimination Law and the Perils of Mindreading. 67 Ohio St. L. J. 1023- 1121 (2006).

[11] University of Arkansas, Research Questions Link Between Unconscious Bias and Behavior (July 2019), available at: https://www.sciencedaily.com/releases/2019/07/190701144324.htm.

March 14, 2021 in Current Affairs, Law School, Legal Ethics, Legal Profession, Science | Permalink | Comments (0)

Saturday, March 13, 2021

Illinois Follows Nebraska’s Lead in Pairing Law Student Research Fellows and Pro Bono Attorneys

As all appellate practitioners know, legal research takes a great deal of practice.  Unfortunately, we never have quite enough time to assign extra research projects in law school, and all students can benefit from more research experience.  Meanwhile, many practitioners would be much more willing to take on pro bono clients if the practitioners did not have to devote significant time to new research for pro bono matters.  Illinois has a new program to connect law student researchers and pro bono attorneys.  

The Public Interest Law Initiative in Illinois recently launched a program to allow upper division law students to provide research assistance to attorneys offering pro bono services.  https://pili.org/news/pili-launches-illinois-pro-bono-research-alliance/.  As PILI Executive Director Michael Bergmann explained, the Pro Bono Research Alliance works “in coordination with our law school partners to help further engage law students in providing pro bono services and to remove barriers for providing pro bono legal services to those in need.”  Id.  The Research Alliance provides wonderful support for attorneys who might have “hesitated in accepting a pro bono matter that . . . would require significant research” or involves an area of law outside the attorney’s regular area of practice.  Id.  The Research Alliance program “is totally free and is meant to be a useful resource to make pro bono work easier for attorneys, while simultaneously providing law students with valuable experience.”  Id.

PILI’s program “matches student volunteers from Illinois’ law schools with attorneys from across the state.”  https://pili.org/news/pili-launches-illinois-pro-bono-research-alliance/  Research assignments can range “from those taking only a few hours, to larger projects that may last the course of a semester,” and can help with “any non-fee generating civil legal matter where legal services are being provided on a pro bono basis as defined in Illinois Supreme Court Rule 756(f)(1).”  Id.  Accordingly, private pro bono attorneys, legal aid organizations, and nonprofits can use the research assistance. 

Right now, the PILI program has slots for five students per law school (Illinois has nine law schools), but “[i]f the project garners enough interest, PILI will open the program to more law students at a later date.”  Penelope Bremmer,  PILI Launches Pro Bono Research Alliance for Law Students and Attorneys, https://www.2civility.org/pili-launches-pro-bono-research-alliance (Mar. 4, 2021).

Illinois modeled its Alliance on the similar University of Nebraska College of Law program.  See https://law.unl.edu/ProBonoResearch/.  Nebraska College of Law’s Pro Bono Research Fellows Program “is a free service for attorneys in need of research assistance on pro bono legal matters,” and “provides law students and attorneys with an opportunity to work together to provide legal assistance for someone in the community who cannot afford it. “  Id.  Nebraska Research Fellows can also help with more than research in some circumstances, always with oversight from the College of Law.  Id. 

Both programs stress the goal of encouraging “more practicing attorneys to engage in pro bono work, while simultaneously providing students with valuable experience” and “an opportunity to build their professional network[s].”   See id.  Kudos to Illinois and Nebraska for helping more underserved clients access legal services, and for engaging law students in this valuable work.

March 13, 2021 in Appellate Advocacy, Appellate Court Reform, Appellate Justice, Appellate Practice, Law School, Legal Profession, Legal Writing | Permalink | Comments (0)

Friday, March 12, 2021

Appellate Advocacy Blog Weekly Roundup Friday, March 13, 2021

WeeklyRoundupGraphic

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 allowed a free speech suit seeking nominal damages to go forward despite the removal from the policy of the restriction on speech. The plaintiff sued his college over its public speaking policies, asking for nominal damages. The college revised its policy and removed the overly-restrictive limits on speech and the lower court rule the case moot. The Court reversed, finding “[t]his case asks whether an award of nominal damages by itself can redress a past injury. We hold that it can.” The decision was 8 to 1 with Justice Roberts dissenting. Justice Roberts's dissent warns that the decision will result in court’s having to issue the equivalent of advisory opinions.  He wrote: “Until now, we have said that federal courts can review the legality of policies and actions only as a necessary incident to resolving real disputes. Going forward, the judiciary will be required to perform this function whenever a plaintiff asks for a dollar.” See the order and reports from The New York Times, ABC News, and the Associated Press.

  • The Supreme Court ruled that immigrants bear the burden to prove that they have not been convicted of a disqualifying crime when trying to cancel a deportation. Although the attorney general has the discretion to stop a deportation, that discretion does not apply under certain circumstances, like in this case, where the immigrant has been convicted of a “crime of moral turpitude.” The issue here was whether the crime qualified as one of moral turpitude and who bore the burden to prove it. The Court ruled that the immigrant bore the burden and that he had not met the burden of demonstrating that the crime was not a disqualifying crime. See the order and reports from NPR and Bloomberg.

Federal Appellate Court Opinions and News

  • The Second Circuit ruled unconstitutional Connecticut’s “special circumstances” rule, which imposes unique confinement rules for former death row inmates. The rule was created when the legislature abolished the use of the death penalty for future crimes (the inmate, who had been sentenced to death before the abolishment, was re-sentenced when the Connecticut Supreme Court determined that the death penalty was unconstitutional). The rule applied to inmates formerly on death row and imposed confinement conditions more onerous than those of the general population. The Second Circuit agreed that the special terms of confinement were unconstitutional.  See the order and reports from US News and the CT Mirror.  

  • The Second Circuit reversed a lower court ruling denying an injunction against abortion protesters in New York City. The ruling determined that the tactics used by the protestors may violate federal, state, and city laws, like those that prohibit obstructing entrance to a clinic. The ruling recognizes the conflict between the right to protest and the right to be free from harassment: “The right to protest is a fundamental right central to the First Amendment. The right to be free from harassment and threats from protestors is an equally fundamental right. Properly protecting both sets of rights presents some of the most challenging work courts are called upon to do.” See the order and reports from Courthouse News and Law.com.

State Appellate Court Opinions and News

  • The Washington Supreme Court overturned automatic life sentences for younger adult defendants. The case involved the sentencing of two young adults, aged 19 and 20, and determined that the court could not be required to impose the mandatory sentence and must consider their youth in sentencing.  See the ruling and a report from the Associated Press

Other

  • On March 10, the Senate Judiciary Committee’s subcommittee on Federal Courts, Oversight, Agency Action, and Federal Rights hosted a hearing titled “What’s Wrong with the Supreme Court: The Big-Money Assault on our Federal Judiciary.” Find the recorded hearing at this link.

March 12, 2021 in Appellate Practice, Federal Appeals Courts, State Appeals Courts, United States Supreme Court | Permalink | Comments (0)

Wednesday, March 3, 2021

LWI Symposium on Artificial Intelligence and the Legal Profession

The Legal Writing Institute and The Journal of the Legal Writing Institute invite proposals for their virtual symposium on Artificial Intelligence and the Legal Profession, scheduled for Friday, September 24, and Saturday, September 25, 2021, and hosted by Northwestern University Pritzker School of Law

Symposium Topic

The symposium will bring together legal scholars, practicing lawyers, technology experts, and others to discuss how rapidly developing technologies are affecting legal research and writing processes, the practice of law generally, the ethics of practice, legal education, and access to justice.  We anticipate a combination of single speaker presentations and panel presentations.

Proposals

We invite proposals for a variety of presentations, including but not limited to

  • the nature of artificial intelligence programs (i.e., pleadings analysis, composing software, research tools, and case law analytics)
  • the impact of these programs on the development of critical thinking skills
  • the extent to which artificial intelligence may replace human lawyering tasks
  • the extent to which legal education should be teaching the use of artificial intelligence tools, and 
  • how artificial intelligence and related technologies can improve access to justice or perpetuate     implicit bias

Proposal Deadline

Please submit your proposal via this Google form no later than 5:00 p.m. on April 5, 2021, and include the specific proposed topic, a brief description of your proposed presentation, and a CV. Any questions should be directed to Lindsey Gustafson, lpgustafson@ualr.edu; Elizabeth Inglehart, e-inglehart@law.northwestern.edu, or Tiffany Jeffers, tj259@georgetown.edu.

Symposium Committee

Michelle Falkoff, Clinical Professor of Law, Director, Communication and Legal Reasoning Program, Northwestern

Lindsey Gustafson, Former Editor-in-Chief, The Journal of the Legal Writing Institute; Arkansas Bar Foundation Professor of Law, Arkansas, Little Rock

Elizabeth Inglehart, Editor-in-Chief, The Journal of the Legal Writing Institute; Clinical Associate Professor of Law, Northwestern

Tiffany Jeffers, Associate Professor of Law, Legal Practice, Georgetown

Sarah Morath, Managing Editor, The Journal of the Legal Writing Institute, Associate Professor of Legal Writing, Wake Forest

Kristen Murray, Board Member, Legal Writing Institute; Professor of Law, Temple

Dyane O’Leary, Associate Professor of Legal Writing; Director, Legal Innovation & Technology Concentration, Suffolk

Kristen Tiscione, Immediate Past President, Legal Writing Institute; Professor of Law, Legal Practice, Georgetown

Desmund Wu, Legal Writing Lecturer, Wisconsin

Non-Discrimination Policy

The Legal Writing Institute is committed to a policy against discrimination and in favor of equal opportunity for all of its members regardless of race, religion, national origin, sex, age, disability, sexual orientation, gender identity, or any other characteristic protected by law.

March 3, 2021 | Permalink | Comments (0)

Monday, March 1, 2021

Advice on Structuring Appellate Briefs

I am in the middle of grading draft arguments for my students' appellate briefs, so the task of structuring an appellate brief is certainly on my mind.  The most recent issue of The Journal of Appellate Practice and Process contains an excellent article by attorney Thomas L. Hudson on that very topic.  Thom is a partner at Phoenix firm Osborne Maledon.  He is a noted appellate law expert in the state and a graduate of the University of Arizona James E. Rogers College of Law. We were certainly thrilled to publish an article from an alum in our first issue.

Thom starts from the premise that, "perhaps due to their length, structure becomes particularly important. A well-structured brief will stand out, and a poorly organized brief may cause the reader to gloss through it or put it down." He then proceeds to look at five key sections of the brief and how they can be persuasively structured:  the introduction, the statement of the facts and procedural history, the argument section, the reply brief, and the conclusion.

While I commend the whole article to you, I want to focus on his advice for the argument section, since that is what is on my mind as I grade papers. Thom does a great job explaining how the appellant's opening brief should consider arguments that opposing party may make and deal with the contrary opinion below. He rightly notes that  an opening brief should lead from strength.  The advocate should "start by convincing the court that your position is legally correct, and after doing so then discuss why the trial court got it wrong."  As he explains on p. 91-92:

This means that for each issue or sub-issue, you should start the opening brief argument section with the legal principles relevant to the issue. Here, help the reader understand the law necessary to decide the case. After establishing the relevant legal principles, the brief should then explain how these legal principles apply to the facts of the case. If you are the appellant and you have decided to pursue an appeal, the conclusion must be that your client prevails under the relevant law and facts. In other words, make the positive case for why you should win first.

After you have made your positive case, then demonstrate how and why the lower court erred. Here, think about your battleground points, and ideally keep them on the de novo side of the standard of review ledger. Note too that by the time you get to this point, much of the work may already be done. If, for example, the error lies in misapplying the correct state’s law, you can draw on your prior positive case to tee up the rebuttal: “Instead of applying the Kansas rule as required by the governing choice of law rules, the district court looked to Missouri law. It did so because it mistakenly believed . . . .”

He notes that this second step, the analysis of the ruling below, is where the advocate should also deal with the points opposing counsel made below. Thom helpfully includes a sample structure of the point headings to demonstrate this point.

Thom argues that the appellee's brief should follow the same format--first setting out the affirmative case before "debunking your opponent's arguments." He likewise includes a sample structure for the readers to follow along.

Thom's advice is so on point that I am sharing it with my students as they work on their briefs. It can be hard to conceptualize argument structure, and Thom's clear guidance will make any brief-writer's job just a little easier.

March 1, 2021 | Permalink | Comments (0)