Appellate Advocacy Blog

Legal Syllogisms, Part II

Last time I focused on understanding and explaining the law generally using syllogisms. Today, I'm going to focus solely on questions presented.

The structure of appellate briefs themselves have been compared to syllogisms,[1] but the most helpful place I have found to use them most often is in questions presented. The goal is to have three sentences: one on the law, one with relevant facts, and then a question suggesting the result in light of those law and facts.

Not every question needs the first sentence on the law--it may be implied (making your syllogism an enthymeme) if you know that your audience is familiar with the law. Here’s an example from a drug dealing case:[2]

As “the person who supplies marijuana for the town,” was defendant entrapped when she approached confidential informants and asked them to front $100 for her drug run?”

I would have made the law explicit here: A person is entrapped if law enforcement improperly appeal to a person’s emotions to convince them to do something illegal that they are not otherwise inclined to do. But yeah, the court didn’t think that she was entrapped either.

Another enthymeme example from my office.[3] This was a much tougher case for the State because the defense position had a lot of surface appeal. The defense framed the question as whether the defendant should get a new trial “because the majority of the involved trial (i.e., court reporter notes of the second day of trial and trial exhibits) had been lost or destroyed?” But by adding some key record facts, the attorney (later a member of our court of appeals) was able to turn the tide in the State’s favor:

Did defendant’s absconding for seven years between verdict and sentencing, during which time defense counsel died, the trial reporter’s notes were lost, and the child victim grew up, so prejudice the judicial process that his appeal must be dismissed? 

The defendant did not get a new trial.

A couple more, these more explicit. The first is from a cattle rustlin’ case.[4] The defendant had swept up some of his neighbor’s cattle into his own herd and kept them. A state brand inspector used some binoculars to look at the cows’ tags and verify ownership. The defendant argued that this violated his Fourth Amendment rights. The question:

The Fourth Amendment does not apply to “open fields.” A State investigator spotted stolen cattle among Lamb’s herd as the herd grazed in an open pasture. Is a pasture an “open field” for purposes of the Fourth Amendment?

The court did not even hold argument on this.

And finally, a child pornography case.[5] The defendant claimed that the statute of limitations on his crime ran while he was living out of state because, while he was living out of state, he had an attorney in state and thus was constructively present. The question:

The criminal statute of limitations is tolled “during any period of time in which a defendant is out of the state following the commission of an offense.” There are no exceptions to this rule. Did the trial court correctly conclude that Defendant was “out of the state” of Utah while he was in either New Mexico or Florida?

You get the idea: a brief statement of the law, a few choice facts, and a question that suggests the answer you want the court to reach without hitting the judges over the head with it. It takes a lot of time to get to that “simplicity on the other side of complexity,” as Justice Holmes put it. But it’s well worth it, both for your understanding and your persuasiveness.   

 

[1] Wilson Huhn, The Use and Limits of Syllogistic Reasoning in Briefing Cases, 42 Santa Clara L. Rev. 813, 813 (2002) (“The question is the issue; the minor premise is the facts section; the major premise is the applicable law; and the holding of the court is the conclusion.”).

[2] State v. Beddoes, 890 P.2d 1 (Utah Ct. App. 1995).

[3] State v. Verikokides, 925 P.2d 1255 (Utah Ct. App. 1996).

[4] State v. Lamb, 294 P.3d 639 (Utah Ct. App. 2013).

[5] State v. Canton, 308 P.3d 517 (Utah 2013).

Waiting for Warrants? Chief Justice Roberts’s conflicting opinions on the speed of warrant applications in Lange and McNeely.

    In his recent concurring opinion in Lange v. California, Chief Justice Roberts argued in favor of a robust version of a “hot pursuit” exception to the warrant requirement. His argument was motivated, in part, by a concern that officers would waste too much time if forced to obtain a warrant in those exigent circumstances. Interestingly, though, Roberts’s claims about the time-consuming nature of the warrant application process were contradicted by another opinion Roberts himself authored just eight years earlier in Missouri v. McNeely. The conflicting opinions are not just confusing. They generate conflicting incentives for police departments to invest in flexible and efficient procedures to approve warrants, threatening to undermine advancements that help preserve Fourth Amendment rights.

    In his Lange opinion, Roberts claimed that while a suspect flees into their home, “even the quickest warrant will be far too late.”[1] Roberts cited to an amicus brief submitted by the Los Angeles County Police Chiefs’ Association, which argued that “[a] ‘fast’ warrant application may be processed in an hour and a half if factors are favorable (e.g., it occurs during normal court hours, has strong supporting facts, receives quick responses from the magistrate or judge, etc.).”[2] The Association suggested that even more support is needed for an arrest warrant, such as evidence of a completed investigation, and that such warrants are rarely issued quickly absent compelling reasons.[3] In his opinion, Roberts went on to claim that “[e]ven electronic warrants may involve time-consuming formalities,” such as a written application or an in-person appearance.[4] Thus, Roberts argued that limitations on the hot pursuit branch of exigent circumstances would allow reckless suspects to freely elude warrantless capture.

    But Roberts’s views on the laboriousness of the warrant application process directly contradicted his own concurring opinion in 2013’s Missouri v. McNeely just eight years earlier. In McNeely, Roberts claimed that “police can often request warrants rather quickly these days,” including electronic warrant applications that were available in at least 30 states at the time.[5] Roberts specifically cited Utah’s e-warrant procedures, whereby “a police officer enters information into a system, the system notifies a prosecutor, and upon approval the officer forwards the information to a magistrate, who can electronically return a warrant to the officer. Judges have been known to issue warrants in as little as five minutes.”[6] Similarly, officers in Kansas can email warrant requests to judges and receive responses in less than 15 minutes.[7]

    Which Chief Justice Roberts was right? In truth, both. Neither opinion presented incorrect or inaccurate information. Roberts correctly described the common plight of officers in Los Angeles, while also accurately presenting the capabilities of e-warrant systems in Utah and Kansas. But his selective approach to the data in each presented conflicting images of uniform procedures and time frames for obtaining warrant across the country. As these opinions demonstrate, such uniformity does not exist across jurisdictions.

    Sweeping such disuniformity under the rug is particularly troubling. It disincentives jurisdictions from creating more efficient warrant application procedures. In McNeely, Roberts seemed to speak with approval about the evolution of e-warrants, suggesting that they may resolve many of the problems presented in emergency cases while still maintaining the neutral magisterial review of warrant applications that our Constitution typically requires. But in Lange, Roberts seemed to reward jurisdictions that have been slower to develop those kinds of warrant regimes. Roberts suggested that in such jurisdictions, perhaps obtaining a warrant to respond to a rapidly-evolving emergency is entirely unnecessary.

    Why, then, would jurisdictions continue to develop those efficient methods for warrant applications? Roberts’s suggestion removes one of the primary incentives to duplicate procedures like those in Utah and Kansas. Only if court decisions look upon those programs with favor and reward those jurisdictions for their efforts will policymakers continue to build such programs. Roberts’s flip-flop is thus a dangerous one for the future of e-warrant procedures. His earlier views provide a much greater incentive for the continued development of rapid warrant procedures that can resolve many Fourth Amendment issues in modern policing.

 

[1] Lange v. California, 594 U.S. __ (2021) (slip op. at 9) (Roberts, C.J., concurring).

[2] Brief of Los Angeles County Police Chiefs’ Association As Amicus Curiae in Support of the Judgment Below 24-25, Lange v. California, 594 U.S. __ (2021), https://www.supremecourt.gov/DocketPDF/20/ 20-18/166350/20210114161910913_40463%20pdf%20Ito%20br.pdf.

[3] Id. at 25.  

[4] Lange, slip op. at 9 (Roberts, C.J., concurring) (citing Colo Rev. State. § 16-3-303 (2020) and Mass. Gen. Laws, ch. 276, §2B (2019)).

[5] Missouri v. McNeely, 569 U.S. 141, 172 (2013) (Roberts, C.J., concurring).

[6] Id. at 172–73 (citations and quotations omitted).

[7] Id. at 173 (citations and quotations omitted).

Professionalism in Legal Writing – Dos & Don’ts, Part IV

Professionalism in Legal Writing – Dos & Don’ts, Part IV

The Supreme Court of Ohio, Commission on Professionalism, has published Professionalism Dos & Don’ts: Legal Writing.[1] 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 fourth post in the series.

Do adopt a clear and persuasive style:

• Do put material facts in context.

The facts we select to include in a brief and how we present those facts are important. But which facts should we include, and which should we omit? We must include all legally relevant facts and background facts that are necessary to understand the legally relevant facts. But we also have to present the facts (both good and bad as I discussed in an earlier post) in a way that tells our client’s story effectively and persuasively. And sometimes that means including context or material that makes the story more interesting.

Take this example from a brief filed by now Chief Justice Roberts in State of Alaska v. EPA, No. 02-658:

The Red Dog Mine. For generations, Inupiat Eskimos hunting and fishing in the DeLong Mountains in Northwest Alaska had been aware of orange- and red-stained creek beds in which fish could not survive. In the 1960s, a bush pilot and part-time prospector by the name of Bob Baker noticed striking discolorations in the hills and creek beds of a wide valley in the western DeLongs. Unable to land his plane on the rocky tundra to investigate, Baker alerted the U.S. Geological Survey. Exploration of the area eventually led to the discovery of a wealth of zinc and lead deposits. Although Baker died before the significance of his observations became known, his faithful traveling companion—an Irish Setter who often flew shotgun—was immortalized by a geologist who dubbed the creek Baker had spotted “Red Dog” Creek. Mark Skok, Alaska’s Red Dog Mine: Beating the Odds, Minerals Today, at 8 (June 1991).[2]

The case was about the Clean Air Act, “best available control technology,” and permitting authorities. Adding details about a bush pilot and his dog was a way to make what most would view as a boring case a bit more interesting. And of course, the author tied these details into his argument, at least indirectly, later in the brief.

• Do write in a professional and dignified manner.

Legal writing is professional writing and thus, we should write in a manner that recognizes the importance of our work as writers; and in a way that recognizes the importance of our primary audience—appellate judges. We shouldn’t write in a way that insults our opponents or the court. We must not include ad hominem attacks or sarcasm in our briefs. Attempts at humor should be avoided too—none of us are as funny as we think we are.

I know some (perhaps many) will disagree, but I think it’s ok to use contractions. They make our writing more conversational and less stilted, but not less professional. And start a sentence with and, but, or, or so now and then. Doing so has the same effect.

• Do put citations at the end of a sentence.

We must cite the authorities we rely upon, and we must do so each time that we rely upon them. That’s simple enough. There is some debate, however, about whether citations should be placed in footnotes or the text. I think they should be placed in the text for two reasons. First, judges are used to seeing citations in the text not in footnotes and our job is to make the judge’s job easier. By doing something the judge doesn’t expect or isn’t accustomed to, we make their[3] job more difficult. Second, citations convey more information than just where to find an authority. Citations tell us the value of the authority, i.e., is it binding or persuasive, the age of the authority, etc. Of course, there are ways to convey that information and still use footnotes, but it is easier to just include the citation in the text.

• Do use pinpoint citations when they would be helpful.

They’re always helpful.

 

[1] https://www.supremecourt.ohio.gov/Publications/AttySvcs/legalWriting.pdf

[2] https://www.findlawimages.com/efile/supreme/briefs/02-658/02-658.mer.pet.pdf

[3] Yes. I used “their” as a singular pronoun. That’s ok too. https://public.oed.com/blog/a-brief-history-of-singular-they/

What is the Future of the Legal Practice?

In the legal practice and in legal academia we seem to all be waiting to see what the "new normal" will be post-COVID. I think that most people agree that there will be more remote work and more remote legal education. Although I was initially critical of online law teaching, I have come around to support it--partially because I think that we need to prepare our students to practice in this increasingly digital/remote world.  To that end, I have spent the last year working on a book on online law teaching, which will be in print soon.

Last week, my co-editor, Tracy Norton, and I hosted an online conference on the book. The first panel looked at the future of law practice, and it was a star-studded cast:

• David Lat, Founder, Original Jurisdiction, Moderator 
• Katie Biber, Chief Legal Officer, Brex
• Hon. Stephen Louis A. Dillard, Presiding Judge, Court of Appeals of Georgia
• Patricia J. Martin, Office Managing Shareholder, Littler, St. Louis, MO
• Raffi Melkonian, Partner, Wright Close & Barger LLP
• Hon. Emily Miskel, Judge, 470th District Court, Texas

The video from that panel is now up on the conference website. I anyone interested in this topic to check it out.

How to Effectively Line and Copy Edit Your Brief

The writing process consists of three phases: (1) the first draft; (2) the rewriting stage; and (3) the line and copy edit. This article focuses on line and copy editing, which involves reviewing your writing for, among other things, conciseness, clarity, word choice, repetition, and persuasive value. Below are tips to ensure that you can line and copy edit effectively for briefs and other legal documents.

1.    Make your sentences concise

Long and wordy sentences are the enemies of effective and persuasive writing. Focus on getting to the point in as few words as possible. Use simple words. Be clear and straightforward. Consider this example:

The issue in this case is whether the Second Amendment protects an individual right to bear arms. We contend that it does.

This sentence is far too wordy. Instead of the above statement, simply say:

The Second Amendment protects an individual right to bear arms.

Likewise, consider this example:

The issue to be decided by the court is whether the Fourteenth Amendment to the United States Constitution, which unquestionably and unmistakably protects substantive liberty interests pursuant to the substantive due process doctrine, encompasses within its reach the fundamental and thus basic right to terminate a pregnancy. The answer is certainly yes.

Wow. What an awful, fifty-two word sentence. Instead of this nonsense, simply say:

The Fourteenth Amendment’s liberty guarantee supports a woman’s right to terminate a pregnancy.

That sentence is thirteen words, and it says the same thing.

Remember that judges can easily recognize bad writing, and the failure to communicate concisely is a classic sign of bad writing.  

2.    Focus on coherence and flow

Make sure that your paragraphs are coherent and flow effectively. In so doing, remember that paragraphs should never occupy an entire page. They should begin with a concise sentence and focus on a single point, such as an element of a cause of action. Consider, for example, a negligence lawsuit, which requires a plaintiff to show that a defendant: (1) owed a duty; (2) breached that duty; (3) directly and proximately caused injury; and (4) caused legally compensable damages.  With this in mind, consider the following statement:

The defendant was negligent in treating the plaintiff’s back injury. The defendant, as a doctor and certified surgeon specializing in back injuries, owed a duty to the plaintiff to exercise a degree of care that was consistent with doctors of similar quality and experience. But the defendant breached this duty when he failed to operate on the correct area of the plaintiff’s spine. And this breach was contrary to and inconsistent with the conduct of similarly situated professionals in the medical industry. Moreover, the defendant’s conduct was the direct and proximate cause of the plaintiff’s injury. First, but for the defendant’s conduct, the plaintiff would never have suffered any injuries whatsoever. Second, the defendant’s conduct proximately caused the plaintiff’s injuries. Most importantly, the plaintiff suffered legally compensable injuries that should result in a verdict in plaintiff’s favor.

This paragraph is utter nonsense.  It includes all four elements of negligence in a single paragraph without even attempting to explain in sufficient depth why the plaintiff’s case satisfies these elements. The better approach is to discuss each element in four separate and concise paragraphs.  

3.    Keep the reader’s attention

When does writing fail to keep the reader’s attention? When you write long sentences. When you write long paragraphs. When you use fancy or esoteric words. When you repeat yourself. When you tell, but don’t show. When your writing is simply boring. Consider the following example:

The defendant assaulted and severely injured the plaintiff in a most invidious and insidious manner. To be clear, the defendant assaulted the plaintiff in a most egregious manner because the plaintiff trusted the defendant and because the defendant represented to the plaintiff that he was a trusted friend and because the defendant told the plaintiff that he would always be a loyal and trusted friend, which is a representation upon which the plaintiff relief and did so to his detriment, as the complaint alleges. Also, the duplicitous behavior of the defendant showed that his purported loyalty was evanescent in nature and execrable in design.

This paragraph is worse than the Friday the 13th movies.  Instead of this ridiculous statement, begin with a powerful opening sentence. Use short sentences. Include specific and vivid details that tell a compelling story and that engage the reader logically and emotionally.

4.    Eliminate filler words

Sentences should include only necessary and purposeful words.  As such, eliminate words like “just,” “very,” and “really.” Consider the following example:

My settlement offer should really be considered by your client.

versus

Your client should consider my settlement offer.

The second example eliminates the filler words. It gets to the point quickly and directly.

5.    Don’t repeat words

If you repeat words, it suggests that you didn’t take the time to edit your brief and it makes your writing seem contrived. Consider the following example:

The defendant’s conduct exacerbated the plaintiff’s injuries. These injuries were severe and, due to being exacerbated by the defendant’s conduct, continue to affect the plaintiff’s health. Indeed, the defendant’s conduct, which as stated above, exacerbated the plaintiff’s injuries, is negligent as a matter of law.

Unfortunately, instead of focusing on the substance of your argument, the reader is likely to wonder why you used the word “exacerbate” three times. To avoid this problem, get a thesaurus.

6.    Don’t suggest unintended meanings or biases

Your word choice is the vehicle by which you convey meaning. Thus, be careful not to use words that may imply that you harbor prejudices or biases.  Consider the following example:

The defendant was mentally retarded and should be held incompetent to stand trial.

Yeah, that’s not good. Instead, say:

The defendant was intellectually disabled and should be held incompetent to stand trial.

Remember to always write with sensitivity and objectivity. If your writing reveals underlying prejudices or biases, you – and your argument – will lack credibility.

7.    Avoid words that convey uncertainty or equivocation

Your writing should be powerful and unequivocal because it shows that you believe in your argument. For example, don’t say this:

The court’s decision seems to be based on reasoning that is inconsistent with precedent.

Whatever. Imagine if a man proposed marriage to a woman, and the woman said in response, “I think so,” or “This seems like what I want.” They probably wouldn’t be tying the knot anytime soon – or ever. Instead, say:

The court’s decision is based on reasoning that is inconsistent with precedent.

The latter sentence is direct and declarative, and thus more persuasive.

8.    Eliminate cliches

When you include cliches in your writing, it suggests that you are unoriginal and that you didn’t spend much time revising and perfecting your work product. For example, don’t say this:

My client, a professional boxer, wasn’t going to quit the fight until, as they say, “the fat lady sings.”

That sentence is terrible. Instead, say:

My client is a professional boxer who refused to quit and fought with his heart for every round of the fight.

This statement might make the reader envision the Rocky movies. It might also demonstrate that you are thinking for yourself and not relying on stale and tired phrases to support your argument. When you do that, your sentences will be original, relatable, and memorable.

9.    Know what your words mean

Don’t use words that you misunderstand or don’t understand. Consider this example:

The law’s affects will suppress citizens’ First Amendment rights.

Don’t make such a foolish mistake. Instead, say:

The law’s effects will suppress citizens’ First Amendment rights.

And be sure not to reveal that you simply don’t understand the meaning of a word. Consider this example:

The invidious weather caused the plane crash.

versus

The inclement weather caused the plane crash.

The first sentence would make the reader question the writer’s credibility – for good reason.

10.    Lose the adverbs

Great attorneys know how to use the facts and the law to craft a compelling story that shows, not tells, a court why it should rule in their favor. To that end, they minimize, if not eliminate, adverbs. Indeed, adverbs describe what happened, but they don’t capture the moment. Consider the following examples:

The party was extremely loud.

versus

The party was deafening.

***

The defendant was extraordinarily tired.

versus

The defendant was exhausted.

The difference should be obvious: “deafening” is more powerful than “extremely loud,” and “exhausted” is more powerful than “extraordinarily tired.”

11.    Lose the adjectives

Like adverbs, adjectives describe what happened, but they don’t capture the moment. Consider the following example:

The plaintiff’s journey to seek justice for her deceased daughter in this court has been really long and arduous.

Who cares? Law school exams are long and arduous. The bar exam is long and arduous. Relationships are long and arduous. And one’s belief in what is “long and arduous” is subjective. Put simply, nothing in the above statement connects with the reader in a relatable and compelling manner. Consider this example:

The plaintiff has waited patiently for three years, seven months, and twenty-eight days to obtain justice for her deceased daughter.

The second example is more powerful because it includes specific details. In so doing, it more effectively places the reader in the plaintiff’s shoes and enables the reader to relate to the plaintiff’s struggle.

12.    Think differently about active versus passive voice

The conventional wisdom is that writers should use the active voice and avoid the passive voice. That’s not always true. You should use the passive voice, for example, when de-emphasizing unfavorable facts.

Consider a case in which your client made allegedly defamatory statements about a public official, but contended that he or she believed those statements were true. Which of the following statements would you prefer?

The defendant admittedly made potentially defamatory statements about the plaintiff, but he contends that they are true.

versus

The alleged defamatory statements, which were made by the defendant, are true.

The second example is better because it de-emphasizes the unfavorable fact, namely, that the defendant made the statements, and it maintains the focus on the argument that the statements were true.

12.    Good judgment leads to good writing

Legal writing is not a mechanical task in which you robotically apply a set of techniques to create a persuasive argument. Rather, you have to exercise good judgment – and common sense – when drafting briefs or other legal documents. This includes, but is not limited to, choosing specific words that enhance your brief’s persuasive value, varying the length of your sentences, choosing a compelling theme, deciding which facts to emphasize, and determining how to address effectively unfavorable facts and law. Thus, never approach legal writing as a mechanical or formulaic endeavor; understand that the quality of your judgment and common sense will impact substantially your brief’s quality and persuasiveness.

***

Ultimately, how you say something is equally, if not more, important than what you say. For law students, the message should be clear: the quality of your writing and communication skills largely determines whether you will be successful in the legal profession.

Mastering Parentheticals

Parentheticals are all over legal writing. But rarely do folks talk about why (or whether that’s a good thing).

Adding a tidbit of insight or explanation in a parenthetical can do wonders for readers. You can amplify a critical point, provide illuminating examples, and more.

But too many thoughtless parentheticals make this tool worthless. And many legal writers fall into the trap of replacing their own explanation and reasoning about the law with a list of parentheticals.

Let’s start with when legal writers use parentheticals the wrong way.

First, parentheticals are not the right place to include critical points for the first time. Parentheticals are, by definition, an aside. With care, they can bolster and support and clarify. But they are not the place to make your main points for the first time.

Take this example: 

“Battery requires intent. Jeremey v. Terry, 324 F.3d 24 (2004) (explaining that transferred intent is appropriate only in cases involving purposeful contact)."

If you’ve never made that transferred intent point before, then don’t expect your reader to see it crammed into a parenthetical. The takeaway here is: Important points should go in regular sentences, not in a parenthetical.

Second, don’t use parentheticals for tangential points that won’t help your reader understand the law, the facts, or your reasoning. In other words: don’t use parentheticals just to pad your legal writing so that it looks more supported. Because folks much prefer a concise, easy-to-read document that focuses on what matters. These tangents or weak points will just distract readers. Have a good reason to add a parenthetical; otherwise, cut it.

Third, avoid lengthy parentheticals. If you have a lot to say, and it matters so much that you want to use up a bunch of document real estate, again, it should be explained by you with ordinary sentences, not parentheticals.

Fourth, avoid repetitive parentheticals. If one parenthetical gets your point across, don’t add them to every other cite just for fun.

So when should you use parentheticals? There are a few common reasons.

First, you want to offer examples from different authorities, and listing them all out in sentences would be excessive. Here you’ve made the point in your sentence and the citations just offer examples that bring your point home. You’ll often start the citation with an “e.g.,” signal to set things up:

“Courts have held a prima facie case is stated in only the rarest of cases, like when a medical doctor has left a device inside of a patient. See, e.g., James v. Taylor, 86 F.2d 310 (9^th Cir. 2020) (pliers left in patient’s chest cavity); Sampo v. Medical Executives, 192 Cal. 21 (2017) (medical tape left under the skin during stomach surgery).

Notice that the main point—that the cases are rare and involve things being left inside patients—is made in normal prose. The parentheticals just drive the point home with some vivid examples.

Second, you have an extremely critical point to make about the law, and you want to amplify the force of your points with some more quotes or holdings, and it would be excessive to include them all in your prose. Make sure to only use this tool sparingly, otherwise its power will be lost:

“No court has required a plaintiff to show actual harm before bringing this claim. Belfi v. Hariton Homes LLC, 134 U.S. 45 (2006) (holding that no actual harm has “ever been required in this state”)."

Third, you want to subtly inject in the force of a speaker but don’t want to make it obvious. Or, similarly, you want to let an authority subtly suggest something that you don’t want to outright say yourself. For example, you might want to include some key judges, parties, courts, or language that help add emotion or persuasive force, but coming right out with it would not strike the right tone:

“No court has required a plaintiff to show actual harm before bringing this claim. Belfi v. Hariton Homes LLC, 134 U.S. 45 (2006) (noting that the U.S. Supreme Court has sanctioned counsel for ignoring this rule).

“Under Rule 9(B) of the Local Rules of Appellate Procedure, an appellant’s brief may not exceed 30 pages. Jerry v. Tarkanian, 29 U.S. 329 (2000) (refusing to address nine claims because they were “contained in the portion of appellant’s brief that exceeds the page limit under Loc.R. 9(B)”).

Fourth, if you are citing authorities that readers won’t instantly understand. There can be plenty of good reasons to include a citation even when you don’t want to take up precious real estate with extensive explanations. For example, perhaps you are nearly sure a point will be conceded, so you prefer just to cite a couple of authorities to put the issue to rest.

If you cite a case or other authority and it won’t be obvious how it supports your prose, a parenthetical is a safe bet. Because the last thing you want is to force readers to go look authority up for themselves.

Great, you’ve decided you have a good reason to drop in a parenthetical. Let’s finish with some final tips for crafting the perfect parenthetical.

First, if you’d like to use the participle-format (beginning the parenthetical with an “-ing” word), then vary your participles and choose them with care. There are dozens to choose from, and each offers a different flavor. For example, (holding that the plaintiffs were in the wrong) is not as strong as (rebuking plaintiffs for…).

Second, drop the “-ing” words when a quote or short phrase will do better. Take examples, which often don’t require a participle:

 “Courts have held a prima facie case is stated in only the rarest of cases, like when a medical doctor has left a device inside of a patient. See, e.g., James v. Taylor, 86 F.2d 310 (9^th Cir. 2020) (pliers left in patient’s chest cavity); Sampo v. Medical Executives, 192 Cal. 21 (2017) (medical tape left under skin during stomach surgery).

Third, the same rules for quoting apply here: Use them only if they are better than your own voice—and even then, just use snippets of the quote unless the full sentence is helpful for some special reason:

“James v. Morel Medical LLC, 255 F. Supp. 2d 55 (Nev. 1999) (holding that a golf cart is not a “vehicle” because it is not a “combustible-fuel” machine).”

Appellate Advocacy Blog Weekly Roundup Friday, July 23, 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.

US Supreme Court Opinions and News

• Mississippi’s attorney general has asked the Supreme Court to overturn Roe v. Wade, calling it “egregiously wrong.” The Court will ear argument this fall on whether to allow Mississippi’s law that bans most abortions after 15 weeks. See the Brief for Petitioners and reports from The New York Times, The Wall Street Journal, Reuters, and Bloomberg News.
  
  
• Adam Feldman wrote an analysis of the 2020-21 Supreme Court shadow docket; it was posted on The Juris Lab. Coined by Professor William Baude, the term “shadow docket” refers to the Court’s decisions made outside the regular docket and without oral argument. 

 Appellate Court Opinions and News

• The DC Court of Appeals tossed a Constitutional challenge against Speaker Nancy Pelosi and a House resolution to create a proxy voting system to allow remote legislating during the pandemic. The court determined that it did not have jurisdiction to review rules and procedures of the House. The court agreed with the lower court decision that “the resolution and its implementation lie within the immunity for legislative acts conferred by the Constitution’s Speech and Debate Clause.” See the decision and reports from The Hill and The New York Times.

• The Tenth Circuit upheld as constitutional a law that permits the revocation of the passport of a person who owes taxes. Thus, the court determined that international travel is not a fundamental right. This ruling is the first of its kind. See the decision and reports from Bloomberg Law and The Gazette (CO).

• The US District Court for the Northern District of Indiana denied a petition to preliminarily enjoin an Indiana University Covid policy that requires all students and staff to be vaccinated, with exceptions for religious, ethical, or medical reasons. The policy requires those who are unvaccinated to take special precautions including wearing masks, taking additional Covid tests, and quarantining during an outbreak. The court weighed individual freedoms against public health concerns and found that the petitioners did not show they would suffer irreparable harm. The court held that “[t]he university is presenting the students with a difficult choice — get the vaccine or else apply for an exemption or deferral, transfer to a different school, or forego schools for the semester altogether. … But, this hard choice doesn't amount to coercion.” See the decision and reports from NPR, USA Today, and The Wall Street Journal.  

• The Fourth Circuit has ruled that gun laws barring sales to those under 21 are unconstitutional because they restrict the rights of citizens. The court wrote: “Despite the weighty interest in reducing crime and violence, we refuse to relegate either the Second Amendment or 18-to-20-year-olds to a second-class status.” See the decision and reports from CNN, USA Today, and The Hill.

Legal Syllogisms, Part I

Justice Cardozo once said that as many as 9 out of 10 legal issues can be resolved by deduction alone.[1] The most useful form of legal deduction is the syllogism, which generally has two premises and a conclusion.[2]

Crack open any book on syllogisms and the author will lead with something like this: All men are mortal; Socrates is a man; thus, Socrates is mortal. This is a categorical syllogism, which is by far the most common in the law.[3] A categorical syllogism sets up a broad proposition (all/some/no X are Y), gives an example (all/some/no of group A are X), then concludes that what is universally true must be true in a particular instance of that universal (all/some/none of group A is X).[4] Convincingly using categorical syllogisms in legal analysis is a matter of hitting on the relevant aspects that characterize a class, then showing that your case does or does not fit in that class.  

Most appellate arguments and cases can be reduced to syllogisms. As an exercise, take any United States Supreme Court case and try to reduce it to three sentences—a general proposition, a few specific facts showing that this case fits within (or without) that class, then a conclusion that what is true of the class in general is true (or not) of this case.[5] Marbury v. Madison: the Constitution is supreme over laws passed under it; the Judiciary Act of 1789 conflicts with Article III of the Constitution by adding to the Supreme Court’s original jurisdiction; therefore, that part of the Judiciary Act conflicting with Article III is void. McCullough v. Maryland: The federal government is supreme over the state governments; if the states could tax the federal government, they would be supreme over it; therefore, the states cannot tax the federal government. Wickard v. Filburn: Congress has the power to regulate both interstate commerce and things affecting interstate commerce; growing one’s own wheat on a farm for personal consumption affects the interstate market for wheat; therefore, Congress can regulate growing one’s own food for personal consumption.    

Courts often reduce counsels’ arguments to syllogisms to zero in on points of disagreement. In Blasland, Bouck & Lee v. City of North Miami,[6] North Miami had sued a contractor (Blasland) that it had hired to clean up a Superfund site, believing that the cleanup did not meet federal standards. In a previous lawsuit involving the same site, it had gotten a favorable judgment against other defendants who had met federal standards in their cleanup efforts. The court later offset a judgment against Blasland with the prior judgment, reasoning that North Miami’s recovery would otherwise be duplicative. North Miami appealed, saying that the setoff was improper. The Eleventh Circuit broke down the City’s argument into a series of syllogisms—simplified here—to explain precisely where it believed that the City’s reasoning went awry: 1. Duplicative awards justifying an offset exist only if the recovery in the second suit was available in the first suit; 2. The claim against Blasland was not available in the first suit; 3. Therefore, the award against Blasland was not duplicative and it is not entitled to an offset.[7] The Court held that this argument was a “fine []syllogism, with flawlessly connected episyllogisms, but its initial premise is flawed. The flawed premise is that . . . duplication of awards only exists if what has been awarded in the present case rightfully could have been recovered in the prior litigation. That is not [the] law.”[8]

The best attorneys often use syllogisms to the same effect. To illustrate, I looked at briefs from prominent practitioners in the U.S. Supreme Court in 2019 and 2020. For example, Kannon Shanmugam of Paul, Weiss, used it in a petition for certiorari review in C.H. Robinson Worldwide, Inc. v. Miller, 20-1425 (with citations removed to aid readability):

What is more, the court of appeals badly misconstrued this Court's decision in American Trucking Associations, Inc. v. City of Los Angeles. The court's attenuated chain of reasoning went like this: In American Trucking Associations, the Court stated that the FAAAA's preemption provision “draws a rough line between a government's exercise of regulatory authority and its own contract-based participation in a market.” The FAAAA's preemption provision includes common-law claims. Thus, because Congress also used the term “regulatory authority” in the safety exception, it must also include common-law claims.

He then used that syllogistic framework to attack that reasoning:

That syllogism is multiply flawed. As a preliminary matter, the Court in American Trucking Associations was not interpreting the safety exception-indeed, its only mention of the safety exception was to deem it “not relevant here.” If anything, any hints from American Trucking Associations cut the other way. The governmental action at issue there was a core exercise of the “regulatory authority of a State”: the “Board of Harbor Commissioners” (an administrative agency) enforced a “municipal ordinance” (a positive-law enactment), the violation of which was “a violation of criminal law” (enforced by state or local officials). It is little wonder that the Court described the governmental action there as “regulatory authority.”

Two former members of my office—Tyler Green and Tera Peterson—used it to good effect in an amicus brief supporting Arizona in McKinney v. Arizona, 589 U.S. ____ (2020): 

McKinney's argument can be succinctly stated as this syllogism:

• New rules (like Ring) apply to cases on direct review.
• His case is again on direct review because the Arizona Supreme Court's actions after the Ninth Circuit's conditional grant of habeas relief reopened his twenty-year-final judgment.
• Therefore, Ring's new rule applies to his case.

The minor premise in McKinney’s syllogism is invalid. So his conclusion is invalid too. The Arizona Supreme Court did not reopen his case—or transform his final sentence into a non-final one—by correcting a non-Ring error. Concluding otherwise would gut Teague’s finality framework, which protects the States’ criminal judgments from unwarranted federal intrusion. It would make those judgments perpetually subject to reopening: Every conditional habeas grant would force States to relitigate convictions under every new procedural rule decided since the original conviction became final.

Finally, Jeff Fisher of Stanford University included this in his winning brief in Ramos v. Louisiana, 590 U.S. ___ (2020) (again, with citations removed):

For decades, this Court has addressed questions like the one here by asking whether the Fourteenth Amendment's Due Process Clause “incorporates” the relevant protection of the Bill of Rights. Applying that test, a simple syllogism establishes that the Due Process Clause incorporates the Sixth Amendment's unanimity requirement against the states. First, the Court held long ago that the Jury Trial Clause applies to the states. The Clause is “fundamental to the American scheme of justice.” Second, “if a Bill of Rights protection is incorporated, there is no daylight between the federal and state conduct it prohibits or requires.” This Court first crystallized this concept in Malloy v. Hogan. . . .  The Court reiterated this concept in McDonald. . . . Just last Term, this Court reaffirmed this rule without a dissenting vote. . . . .This reasoning controls here.

I could go on. That’s just a sampling of prominent practitioners in the span of a single year. But it makes the point. The syllogism is a powerful tool that each attorney should use not just to think through cases, but to explain their and others’ reasoning.

 

[1] Judge Aldisert agrees. Aldisert, Logic for Law Students, 69 U. Pitt. L. Rev. at 2, 12.

[2] Syllogisms can be complex, with one conclusion becoming a premise in the next, as a stacked set leads (eventually) to the desired conclusion. These are called polysyllogisms and episyllogisms. More often, they are simplified by implying rather than spelling out one of the premises. These are called enthymemes. See, e.g., Fulton v. City of Philadelphia, (2021) (Gorsuch, J., concurring).

[3] Syllogisms can also be hypothetical or disjunctive. A hypothetical syllogism consists of at least one conditional (if-then) premise that necessarily leads to the conclusion (if X then Y; X; therefore, Y; or if X then Y, if Y then Z, therefore if X then Z). Id. at 34. And a disjunctive syllogism sets up two options (either X or Y), says which one attains (X), then concludes that the other is not (therefore, not Y). Patrick J. Hurley, A Concise Introduction to Logic 34 (10th ed. 2007).

[4] Id.; Aldisert, Logic for Law Students, 69 U. Pitt. L. Rev. at 4 (describing syllogistic logic as “[w]hat is true of the universal is true of the particular.”).

[5] Judge Aldisert advocates for this exercise and gives several examples. Logic for Law Students, 69 U. Pitt. L. Rev. at 4.

[6] 283 F.3d 1286 (11th Cir. 2002).

[7] Id. at 1295-96.

[8] Id. at 1296.

Does Oral Advocacy Advice from an Earlier Era Stand Up Today?

This month marks 80 years since Robert H. Jackson took the bench as a U.S. Supreme Court justice. Students of the Court remember him as one of the most elegant writers to grace the pages of U.S. Reports. Jackson also notably took a leave of absence from the Court to serve as chief prosecutor at the Nuremberg war crimes trial, an extracurricular activity that generated some controversy.

His service on the Court and at Nuremberg overshadows contemporary memory of his earlier service both as Attorney General and as Solicitor General. It was in the latter role, as an advocate before the Court on which he would eventually sit, that caused no less a luminary than Justice Louis Brandeis to suggest that Jackson should serve as Solicitor General for life.

Yet, despite such high praise, Jackson, at the time newly a justice, famously wrote a 1951 article on oral advocacy that expressed doubt about his effectiveness as an advocate.[1]  In it, he revealed that he composed three arguments each time he went before the bench. The first argument anticipated a well-planned presentation designed to hit all the critical points needed to prevail and was, of course, presented in an inexorably logical order. The second one did not match the care taken to construct the first one, because it was the argument actually made in court. Jackson described that argument as “interrupted, incoherent, disjointed, disappointing.” The third argument was the “utterly devastating argument that I thought of after going to bed that night.” In other words, the one he felt he should have made.

Even with his experience, Jackson was at a loss on how to avoid the disruption caused by justices “much given to interrogation.” Although the hot bench familiar to him was markedly cooler than that of today’s Supreme Court, a flurry of inquiries on topics outside the flow of his intended argument induced Jackson to adopt a categorical opposition to splitting an argument with a co-counsel.

He explained his position was a product of experience in a case where he was supposed to cover the statute in question while his co-counsel focused upon the regulatory scheme of the agency that employed him. When he rose to speak, the justices peppered him with questions about the regulations. He had not prepared that part of the case and had not anticipated that the case could turn on it. By the time his co-counsel took over, the Court had exhausted their interest in the regulations and now proceeded to ask about the statute. The planned presentation was rendered asunder.

Much of Jackson’s advice seems like an artifact of an earlier era. He repeatedly advises that the facts bear careful and scrupulous description and yet warns that a factual description that attempts to reargue findings of fact or a verdict will be met with “embarrassing judicial impatience.” He also suggests that an advocate should not assume that the panel is familiar with the statute at issue. Modern practice, in contrast, safely presumes that the judges have read the briefs, understand the facts, and the applicable statute, even if argument must focus on some aspect that determines the question presented. Jackson also warns that defeat can be snapped from the jaws of victory in rebuttal, suggesting that the “most experienced advocates make least use of the privilege.” That advice seems too uncompromising. While there are times that waiver of rebuttal makes good sense, experienced advocates often make productive use of that opportunity.

While some of Jackson’s advice appears dated and tied to a different era of oral advocacy, other points confirm that some things never change. Tying your argument to a judge’s extrajudicial writings or speeches, Jackson says, “is a matter of taste,” but usually “bad taste.” He denounces memorized orations, brief-reading, and rambling discourses as inappropriate.

Consistent with the most common advice an oral advocate receives, Jackson emphasizes comprehensive preparation. Knowing the facts, the cases, the context, and the flow of relevant doctrine is a given. Opening with a clear presentation of why the facts or law or a combination of the two inexorably lead to a favorable decision sets the stage for the questions that will likely follow. You want those questions to play to your strengths and to set the stage so that the bench poses difficult questions that exposes weaknesses in the contrary argument being made by an opponent.

Jackson also recognizes that questions from the bench may appear hostile to an advocate’s position. He warns against adopting that assumption, though, because the questions may seek to do nothing more than sharpen the advocate’s position.

A court of last resort will have a consistent group of judges over a significant period of time. Much like the U.S. Supreme Court of today, there may be some fissures that sharply divide the justices. Jackson acknowledges that this will often present a dilemma to an advocate. It apparently did to him. For that reason, he states plainly that he has no advice and suggests reliance on wit.

Jackson’s article amounts to something from a time capsule, undoubtedly presenting a thoughtful and practical introduction to oral advocacy as it was practiced at the highest levels of his day. And, while some aspects of oral advocacy remain the same, others have changed significantly. One thing has not. Jackson ends his article with a parable about three stone masons asked about what they were doing. The first responds that he is doing a job. A second explains that he is carving a pattern. The third indicates he is making a cathedral. He closes by saying that “it lifts up the judge’s heart when an advocate stands at the bar who knows he is building a Cathedral.” Successful advocacy forms the facts and law into a work of architecture. It did so then and does so now.

 

[1] Robert H. Jackson, Advocacy before the Supreme Court: Suggestions for Effective Case Presentations, 37 A.B.A J. 801 (1951).

Power Poses and Oral Argument: Or, Do What Your Mother Said and Stand up Straight

In a recent meeting about teaching Legal Writing, an experienced appellate advocate mentioned practicing “power poses” as part of her prep for an oral argument at the Ninth Circuit.  While her comment was a nice way to add humor and humanity to the conversation, the idea of using power poses to add confidence before oral argument stuck with me long after the meeting concluded. 

I decided to check out the TED Talk on power poses the advocate mentioned in our meeting:  Social Psychologist and Harvard Business Law Professor Amy Cuddy’s TEDGlobal 2012 Your Body Language May Shape Who You Are. https://www.ted.com/talks/amy_cuddy_your_body_language_may_shape_who_you_are. The TED Talk website has a disclaimer at the beginning of Prof. Cuddy’s talk, explaining, “Some of the findings presented in this talk have been referenced in an ongoing debate among social scientists about robustness and reproducibility.”  Id.  Keeping in mind the debate about the science behind some of Prof. Cuddy’s premises, I decided to focus more on her overall points about body language. 

Prof. Cuddy’s general theme is that "power posing" by standing or sitting in a posture of confidence--even when we do not feel confident--can boost subjective feelings of confidence and thereby possibly impact success.  Id.  She initially focused on non-verbal communications, especially posture, among her MBA students.  Cuddy noticed her students who made themselves smaller, with hunched shoulders and crossed arms and legs, tended to earn lower grades than the students whose posture took more space.  Looking at controlled human subject students and primates with her collaborator, Prof. Dana Carney of Berkeley, Cuddy also saw a connection between testosterone and cortisone levels and use of power poses like the “Wonder Woman” and “Victory” stances with arms outstretched.  Thus, Prof. Cuddy hypothesized people who sit hunched over before a job interview, or in our case an oral argument, will have less confidence than those who stand for a few minutes privately in a power pose before an important talk.  See id.  Prof. Cuddy stressed she does not believe the power poses are for use “with other people” or to have any impact on substance, but instead can help us feel more comfortable with ourselves and thus preform better.  Id.

Commentator Kate Torgovnick May summarized Prof. Cuddy’s point as:  “[B]efore heading into a job interview, giving a big speech or attempting an athletic feat . . .  everyone should spend two minutes power posing [by] adopting the stances associated with confidence, power and achievement — chest lifted, head held high, arms either up or propped on the hips.”  Kate Torgovnick May, Some Examples of How Power Posing Can Actually Boost your Confidence (Oct. 1, 2012) https://blog.ted.com/10-examples-of-how-power-posing-can-work-to-boost-your-confidence/.  Torgovnick May provides several testimonials from people who successfully used “Wonder Woman” or other power poses before important classes, interviews, and  presentations.  See, e.g., id. (“It’s nice to see that there’s scientific support for Oscar Hammerstein’s King and I lyrics: ‘Whenever I feel afraid, I hold my head erect and whistle a happy tune, so no one will suspect I’m afraid …The result of this deception is very strange to tell, for when I fool the people I fear, I fool myself as well.’”)   

In bringing these ideas back to my own life, and to our Appellate Advocacy blog, the mom in me could not help but remember my own lawyer mother teaching my sister and me to walk with books on our heads.  My mom--like so many other parents—wanted her girls to stand up straight and have confidence.  I regularly chide my very tall sons for hunching over, admonishing them to “put back” their shoulders and “stand up straight.”  While the scientific community debates the precise reliability of Prof. Cuddy’s work, I know standing with confidence can indeed help me feel and look more confident in court and in the classroom. 

Therefore, I recommend you check out Prof. Cuddy’s TED Talk, as well as the debate on her research.  And the next time you are especially nervous about an oral argument or presentation, spend two minutes in a power pose.  Hopefully, you can smile thinking about the parent, auntie, teacher, or other adult who told you to “stand up straight” years ago.   And perhaps this technique will give you increased confidence too.

On Reasonableness

I apologize for being a bit MIA these past weeks. We went on a family "vacation" (aka--I watched my kids in a different city where there was no daycare), and I came home with a head cold. But, I can now breathe out of my nose, so it is time to start blogging again.

Over the past few months I have blogged about the articles in the most recent issue of The Journal of Appellate Practice and Process. I saved the longest article for last--Judge Jon O. Newman's extensive look at the concept of Reasonableness. Judge Newman is a prolific scholar, and I was thrilled that we had a chance to publish something that he had written. I was even more thrilled when I read his piece. The article tackles a tricky question--what does "reasonableness" mean in the law.  Consider this anecdote that Judge Newman uses to start his article:

    The idea of exploring the concept of reasonableness first occurred to me during my years as a District Judge. I noticed that in a wide variety of cases, when I reached the critical portion of a jury charge, I frequently told the jurors that the applicable standard was “reasonableness” or its antonym “unreasonableness.” In criminal cases, I told them that conviction required proof beyond a reasonable doubt. In antitrust cases, I told them that agreements in restraint of trade were unlawful if they were unreasonable. In civil rights cases seeking damages for police searches, I told them to apply the standard twice: the homeowner had to prove that the police officer’s search was unreasonable, but, even if it was, the officer had a qualified immunity defense if the officer had a reasonable belief that the action taken was lawful.
   The more I spoke the word “reasonable,” the more I wondered why the jurors never came back and asked, “Judge, could you explain exactly what you mean by ‘reasonable’?” Fortunately, they never asked.

Judge Newman identifies four different approaches to how appellate courts try to give meaning to the term reasonableness. Within each approach, he looks at three separate contexts, with "the hope that the resulting twelve sections will promote some understanding of what courts are not just saying, but actually doing in cases where 'reasonableness' is the applicable standard."

Of particular interest given current events is his discussion of use of unreasonable force in making arrests (pp. 39-44), in which courts have been instructed to use the "weighing metaphor," even though it is an imperfect instrument. I also enjoyed his discussion of reasonable doubt on pp. 4-11, which looks at reasonableness as a continuum. Judge Newman also looks at the difficult topic of agency constructions of statutes and whether those are "reasonable" (pp. 80-83).  

In truth, the whole article is fascinating! He brings his 40+ years of experience as a judge, and his extensive law practice prior to assuming the bench, to provide much-needed insights into this difficult legal.

When Writing a Brief, Think Like a Judge

Excellent writers know how to write for their audience, not for themselves.

Imagine that you are a justice on the United States Supreme Court and responsible for deciding whether the word liberty under the Fourteenth Amendment’s Due Process Clause encompasses a right to assisted suicide. In addition to the parties’ briefs, you intend to read over twenty amicus briefs.

What criteria would you use to identify the most persuasive appellate briefs?

The best lawyers know the answer. It’s all about the quality of your writing. And the best writers place themselves in the shoes of the reader.

Below are five writing tips to maximize the persuasive value of your brief.

1.    Use plain language

[Too many lawyers believe that] it is essential to legal English that one write as pompously as possible, using words and phrases that have long disappeared from normal English discourse.”

Justice Antonin Scalia

When writing a brief, forget about the words you encountered on the SAT and resist the temptation to sound intelligent by using ‘fancy’ and esoteric words, or legalese. Doing so undermines your credibility and persuasiveness. Write like you are a human being. After all, if you had to read over twenty briefs, would you want to read briefs that required you to consult a dictionary to understand what the advocate was saying? Of course not.

Consider the following example:

As discussed infra, it is axiomatic that the defendant’s words had a deleterious impact upon the plaintiff’s sterling reputation, which as demonstrated herein, was compromised by the invidious invectives hurled at the plaintiff, the effects of which were exacerbated when the defendant repeated these deleterious statements in the local newspaper. Such statements are ipso facto defamatory and, as shown infra, render the plaintiff’s claim meritorious as a matter of fact and law, thus justifying the damages sought herein.

Huh? What?

If you were a justice, how would you react to reading this nonsense?

Consider the next example:

The defendant’s statements were defamatory as a matter of law. They were published to a third party. They subjected the plaintiff to scorn and ridicule in the community. They harmed irreparably plaintiff’s reputation. They were made with an intentional disregard for the truth or falsity of the statements. Put simply, the statements represent a textbook case of defamation.

It should be obvious that the second example, although far from perfect, is better than the first.

Be sure to write in a simple and direct style that eliminates ‘fancy,’ esoteric, and unnecessary words, and legalese.

2.    Be concise

Most people don't like others who talk too much. Judges are no different. 

If you had to read over twenty briefs in a specific case, wouldn’t you favor briefs that were concise, clear, and to the point? Of course.

Thus, in your brief, get to the point immediately. Identify the controlling legal issue. Tell the court what you want (the remedy you seek). Tell the court why you should win (using the relevant facts and legal authority). Omit unnecessary facts and law. Address only relevant counterarguments. Avoid unnecessary repetition and excess words.

Think about it: if you had just read five briefs and then turned to the sixth and final brief that you intended to read that day, wouldn't you want that brief to be concise and wouldn't you want the writer to get to the point quickly? Of course.

3.    Capture the court’s attention

Most people dislike boring movies. They dislike boring books. They dislike boring people. And they dislike boring briefs.

Your writing should capture the court’s attention. It should tell a story. It should be entertaining. Consider the following example:

This case is about whether the defendant’s statements defamed the plaintiff. For the reasons that follow, the answer is yes. The defendant’s words were harmful to the plaintiff and published in a widely circulated newspaper. The defendant said these harmful things with little regard for the plaintiff’s reputation. These statements harmed the plaintiff’s reputation in the community and continue to harm the plaintiff’s reputation. As a result, the plaintiff has been damaged. The court should rule for the plaintiff.

Yeah, whatever.

That paragraph would probably put most judges to sleep. It almost put me to sleep writing it. Now consider the following example:

On December 8, 2018, the plaintiff’s life changed forever. After purchasing the New Jersey Times, the plaintiff reacted in horror when seeing that the defendant had written an article calling the plaintiff a “horrible human being” who had “sexually assaulted his co-workers and stolen money from his clients.” In the next few days, the plaintiff lost twenty-five percent of his clients. He received threatening emails, including one that said, “I hope you die.” Simply put, the defendant’s statements traumatized the plaintiff, caused irreparable reputational and economic harm, and nearly ruined the plaintiff’s life. The statements are defamatory as a matter of law -- and common sense.

Again, it should be obvious why the second example is better.

An example of a persuasive – and entertaining – brief is Chief Justice John Roberts’s brief in Alaska v. Environmental Protection Agency.[1] All law students should read this brief.

4.    Confront the weaknesses in your case and explain why they do not affect the outcome you seek

No one likes a person who is dishonest or evasive.

Likewise, judges do not like advocates who avoid confronting the weaknesses in their arguments. The best advocates acknowledge and confront those weaknesses. They address unfavorable facts and legal authority.  And they explain why those weaknesses do not affect the outcome that they seek.

Advocates who omit unfavorable facts or authority lose their credibility with the court and compromise the persuasiveness of their argument. Don’t be one of those advocates.

5.    Don’t make ‘red flag’ mistakes

When you're writing a brief, don’t make rookie mistakes. If you do, your credibility – and the persuasiveness of your brief – will be irreparably damaged. Some of these mistakes include:

• Spelling and grammatical errors
• Long sentences (i.e., over twenty-five words)
• Inappropriate language (e.g., “The defendant is, simply put, a jerk and the lower court was clueless and ignorant in failing to realize that.”)
• Extremely long paragraphs (a paragraph should never occupy an entire page)
• Unnecessary emphasis (e.g., avoid bold and italics, and never use an exclamation point at the end of a sentence)
• Demeaning the lower court or your adversary
• Failing to follow the local court rules
• Including too many block quotes
• Citing overruled authority
• Failing to cite unfavorable authority
• Misrepresenting the record
• Citing legal authority incorrectly
• Requesting a remedy that the court has no power to grant
• Telling the court what it must do, rather than respectfully requesting what it should do

Don’t make these mistakes. If you do, you will likely lose your case – and harm your reputation.

***

Ultimately, when writing a brief, use your common sense. Judges want to know what you want and why you should win, and they want you to explain it simply, concisely, and persuasively.

Simply put, great writers make great advocates.

 

[1] See Brief for Petitioner, Alaska v. Environmental Protection Agency, available at: 02-658.mer.pet.pdf (findlawimages.com)

Appellate Advocacy Blog Weekly Roundup Friday, July 9, 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.

US Supreme Court Opinions and News

The Supreme Court ended the 2020-21 term last week. And with that came the many end-of-term wrap-ups and commentaries. Here are a few for your perusal:

• UCI’s 11th Annual Supreme court Term in Review.
• ADL’s 22nd Annual Supreme Court Review.
• SCOTUSBlog
• The New York Times
• The Washington Post
• NPR:
  • 5 Takeaways From the Supreme Court Term
  • The Supreme Court’s Term Appeared To Be Cautious. The Numbers Tell A Different Story.

Appellate Court Opinions and News

• The Fifth Circuit ruled that Texas’s rule that requires attorneys to join the bar association violates the First Amendment. The court reasoned that, because “the Bar is engaged in non-germane activities,” compelling Texas attorneys to join and pay dues violates their First Amendment Rights. See the order and reports from the ABA Journal and the Times-Picayune. 

Jobs

The Office of the Federal Public Defender for the Eastern District of North Carolina is hiring an Appellate Assistant Federal Public Defender.  See the posting here.

Interesting Discussions

• Tim Koval posted a discussion that he and Jeff Lewis had with Judge Robert Bacharach of the Tenth Circuit about using acronyms in brief writing. Spoiler: avoid them if you can.
  
  
• Avi Wolfman-Arent  started a thread (and sub-thread) about the circumstances that led to the Supreme Court case where we find the oft-quoted First Amendment line about yelling fire in a crowded theater. 

Review: Point Well Made: Persuasive Oral Advocacy (2d Ed.)

A few months ago I found myself drafting a motion for rehearing in an appeal that I had thought would be a fairly easy win for my client. It involved the interpretation of an easement, and there were three strong reasons why the trial court's rulings should have been reversed. The court had denied the requests for oral argument and a new justice issued an opinion that went in a direction neither party really argued.

As I was drafting the motion for rehearing, I asked myself (as I always do when drafting such a motion) where things had gone wrong. The court's opinion was based on what I considered to be dangerously flawed presumptions about provisions that were fairly standard, and that would cause significant problems in the industry if they were interpreted in this new way. If only the court had granted oral argument, and they had telegraphed their understanding, I could have addressed the issue then.

Unfortunately, while oral argument on appeal is considered to be very important to advocates, it is increasingly disfavored by courts. The courts have grown weary of poor presentations that waste a considerable amount of time, and ultimately provide little value. As such, oral arguments are being denied in many courts and cases submitted entirely on the briefs.

The problem with this is that, when done well, oral argument can explore and test arguments in ways that are difficult to test by the briefing alone. We need to convince the courts that it is worth their time again.

This second edition of Point Well Made: Persuasive Oral Advocacy, a practice guide for new and old advocates alike, could go far in helping courts see the value of oral argument again. New lawyers can pick up the book and find simple checklists and guidelines that will help them learn how to properly craft and present their arguments. Seasoned attorneys will find reminders and new tips on remote argument that will keep them updated and current on both thinking and style. And if the practitioners follow this advice, the courts may find oral argument helpful again.

Point Well Made begins with a short primer on rhetoric and them moves straight into audience analysis. New practitioners in particular will find value in acquainting themselves with the mindset and concerns of their judges and justices. Old practitioners may need the reminder that our justices have needs that should be met as the focus of the argument, not just a side-effect.

The book then provides a step-by-step checklist, with examples, of how to prepare the argument (with attention paid to theme development, story telling, and how to handle the law), how to handle questions, and how to draft the argument outline and "script." Both the guidance on how to craft the argument and how to handle questions from different "types" of justices are very valuable to new practitioners.

The authors also provide guidance on verbal and non-verbal communication skills to employ and refine in presenting the argument. They start with the six most common body language errors, then proceed to provide practical advice on how to overcome those errors and avoid others. Thankfully, they recognize that "one size does not fit all" when it comes to body language, and recommend instead variations of stances and techniques that each speaker can try out themselves to develop their own style.

The authors end this second edition with a detailed discussion of the "new normal" of remote argument. I wish I had been given this guidance at the beginning of my time in quarantine. During quarantine (and since) I argued motions via Zoom, participated in a Zoom trial, and have had oral arguments via Zoom. As a result, I learned many of the lessons presented in the book regarding camera placement, lighting, and so on by trial and error. But even with that experience, I found many of the remote argument tips to be helpful and plan on employing them in my next remote argument, particularly with regard to vocal inflection and ramping up intensity, since we tend to appear more "flat" on remote viewing.

Finally, the authors have included appendices with useful checklists for each topical chapter, as well as short exercises to implement the concepts. Practitioners and students alike will find these short exercises to be helpful in driving home the points taught.

As an appellate specialist who also coaches moot court, I wince a bit each time a justice sitting as a volunteer on a moot court panel comments on how much better prepared and practiced the students are than the majority of the "real" lawyers who appear before them in court. If more practitioners read and applied the lessons in Point Well Made, perhaps I would hear that criticism less often, and perhaps the courts would be willing to hear more oral arguments again.

(Image credit: A lithograph from Honore Daumier, Les Gens de Justice, 1845.)

How to Be Persuasive

Persuading other people to adopt your point of view, whether in a courtroom, a faculty meeting, a debate, or any other context, depends on how you deliver your argument. Below are tips to maximize the persuasive value of an argument.

1.    Persuasion is about perception

In many instances, people do not decide whether to accept a particular argument based on facts or science. Rather, their decision is based on their perception of you. And that perception will be influenced substantially by how you deliver your argument. The most important aspect of that delivery is confidence. If you appear confident, the audience will be more likely to agree with you, regardless of contrary facts or evidence.

Simply put, confidence is everything.

Confident advocates take a stand and are bold.

They are unequivocal.

They never get flustered.

They never act surprised.

They never say “um,” or, “I think,” or, “I’m not entirely sure.”

When they receive hostile questions, they react by stating, “I’m really glad that you asked that question.”

In short, if you win the battle of perception, you also likely win the war of persuasion.

2.    Make your audience initially agree with you by connecting your argument to commonly accepted values

To win an argument at the end, you have to win at the beginning. And winning at the beginning means connecting your argument to broader values upon which nearly all people can agree. If people agree with the broader values underlying your argument, they will be more likely to accept the specific aspects of that argument. Consider the following examples of two hypothetical lawyers arguing that the First Amendment protects “hate speech”:

Example 1

The First Amendment protects hate speech because the Founders believed that the right to free speech was essential to liberty and democracy. As a result, offensive, distasteful, and unpopular ideas must be tolerated to ensure that a true marketplace of ideas exists and that people are not threatened by government censorship. Therefore, hate speech, however one might define such speech, must be tolerated.

Ok, whatever. Now consider this example:

Example 2

Speech that degrades, denigrates, and demeans other people can be terribly hurtful. I’m sure that we can all recall a moment in our lives when another person said something demeaning to us and remember the pain that it caused.  And I’m sure we wish that all people realized the harm that words can cause and respected the dignity of every human being. At the same time, most people don’t want the government to become the speech police. They don’t want the government to arbitrarily decide what speech is considered “hate speech,” and what speech is not, thus giving it the power to censor whatever ideas it deems unpopular. If the government had that power, liberty, autonomy, and democracy would be threatened. For these reasons, as much as we may despise those who degrade, denigrate, and demean others, the answer is to fight back by using our free speech rights, not to give the government carte blanche to dictate what we can and cannot say.

The second example appeals to values that most reasonable people accept and view as essential to a free society. And when they agree with these broader values, they are likely to accept the argument that hate speech must receive First Amendment protection.

Simply put, if they agree with you at the beginning, they are more likely to agree with you at the end.

3.    It’s ok to be a little unprofessional in the right circumstances

Advocates who are authentic, likable, relatable, and passionate are more likely to sway an audience.  And in some instances, authenticity means ‘being real’ and dispensing with formalities when making an argument. In short, sometimes it’s ok to be a little unprofessional. Why? Because it conveys your passion. It shows that you believe in your argument.

Consider the following examples involving two hypothetical appellate advocates who are arguing to the New Jersey Supreme Court the issue of whether defense counsel's performance at trial violated the Sixth Amendment:

Example 1

In Strickland v. Washington, the United States Supreme Court held that a Sixth Amendment violation occurs where counsel’s performance is negligent and where such negligence results in prejudice, meaning that, but for counsel’s negligence, the outcome of the trial would have been different. This case is a perfect example of ineffective assistance of counsel. Counsel slept during parts of the trial. Counsel admitted to having a cocaine addiction and to being an alcoholic. Yet, the appellate court held that this conduct was harmless error because my client confessed to the crime. Now my client will be incarcerated for twenty-five years for voluntary manslaughter. This decision was erroneous and should be reversed.

Yeah, right. Based on that argument, the appellate court’s decision isn’t going to be reversed. Now consider this example:

Example 2

My client was represented by counsel who, during the trial, was addicted to and snorting cocaine. He was represented by counsel who smelled of alcohol. And due to the hangovers caused by his frequent cocaine and alcohol binges, counsel fell asleep during the trial, including during the prosecution’s examination of critical witnesses. It should come as no surprise that anyone represented by a drug-addicted, alcoholic, and sleeping lawyer would be convicted. But it should come as a shock that such a conviction would be upheld on appeal. The appellate court didn’t give a shit about this blatant denial of due process. The appellate court didn’t give a shit about the drugs, the booze, and the frequent naps during the trial. To the court, this was harmless error. If that is harmless, it’s difficult to know what would be harmful.

The second example is real. It is raw. It is authentic.

Of course, being a little unprofessional doesn’t give you a license to be a jerk. Never be disrespectful or attack personally your adversary or the lower court. And keep the four-letter words to a minimum. But there are instances in which your passion and authenticity can be best expressed by dispensing with the formalities and being real. 

4.    Reframe your opponent’s argument

Don’t allow your opponents to frame issues on their terms. Reframe the issues to support your argument and reinforce the commonly accepted values on which they are based. For example, consider the above example regarding ineffective assistance of counsel and how the hypothetical attorney in Example 2 reframes the argument to appeal to basic and commonly accepted values.

Example 1

The state acknowledges that defense counsel had a drug and alcohol problem and that defense counsel slept during portions of the trial. But that is not the relevant inquiry. The question is whether defense counsel’s performance prejudiced the defendant, such that the outcome of the trial would have been different had counsel performed differently. The answer to that question is no. The conviction should be affirmed.

Example 2

The state is asking this court to hold that the Sixth Amendment is not violated when defense counsel snorted cocaine during the trial. The state is asking this court to hold that the Sixth Amendment is not violated when defense counsel is an alcoholic. The state is asking this court to hold that the Sixth Amendment is not violated when defense counsel falls asleep during a trial and renders the defendant helpless in the legal process. The state is asking this court to hold that attorneys who are addicted to cocaine and alcohol, and who decide to sleep rather than aggressively advocate for their clients, satisfies the Sixth Amendment’s promise of effective assistance of counsel. To accept the state’s argument is to say that the Sixth Amendment has no meaning whatsoever.

Yikes. I wouldn’t want to be a justice on the New Jersey Supreme Court in such a case. 

5.    Explain with specificity why your position is good policy and will lead to fair and just results

It’s not sufficient that your proposed rule or policy is workable based on the facts of a specific case. The most persuasive arguments demonstrate that such a rule or policy would be workable, fair, and just in future cases and in a variety of contexts.

To achieve this objective, you should do three things. First, make sure that your position is supported by facts and empirical data. Second, acknowledge weaknesses in your position and explain how your rule or proposal addresses such weaknesses and leads to just results. Third, to demonstrate its efficacy and fairness, give hypothetical examples explaining how your rule or proposal would be applied in other contexts.

***

After all, facts don’t always win arguments.

The law doesn’t always win arguments.

You do.

Be confident. Be authentic.

Own it.

Appellate Advocacy Blog Weekly Roundup Friday, July 2

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 Su​preme Court News and Opinions:

It was a very busy final week of the term for the Supreme Court, with a number of orders and opinions released throughout the week.

On Monday, the Court rejected requests to review two cases concerning the ability of courts to intervene in disputes arising in religious settings, declining to resolve separation of church and state disputes.  More from Bloomberg.

Also on Monday, the Court declined to review a lower federal court decision that found a school violated the Constitutional rights of a transgender student when it imposed a policy banning him from using the boys' restroom. More from BuzzFeed.

Also on Monday, the Court struck down barriers to challenging governmental takings of property in federal court, ruling that the "exhaustion requirement" imposed before bringing suit in federal court only requires giving a state agency a chance to weigh in, rather than requiring following all of the agency's administrative procedures.  More from Bloomberg.

Also on Monday, the Court vacated an Eighth Circuit opinion and remanded a case involving assertions of excessive force by St. Louis police who restrained an inmate in an incident in which he died. The Court ruled that the appellate court deemed as "insignificant" facts that should have been given consideration in deciding whether to grant summary judgment on the excessive force claim, reviving the claim.  More from Courthouse News.

On Tuesday, the Court ruled against a group of noncitizens who had applied for "withholding" relief -- a remedy that involves an exception to the typical action of expeditiously again removing noncitizens who have been removed but are found back in the United States when there is risk of returning them to a country where they might face torture or persecution. More from Scotusblog.

Also on Tuesday, the Court ruled that states cannot stop developers from using the federal government's power of eminent domain to seize property for construction of a natural-gas pipeline through the state.  More from Scotusblog.

Also on Tuesday, the Court refused to lift the federal moratorium on evictions during the COVID-19 outbreak, leaving the ban in place until the end of July, as extended by the U.S. Centers for Disease Control and Prevention.  More from Bloomberg.

On Thursday, the Court upheld voting restrictions imposed by Arizona, limiting cases under the Voting Rights Act.  The ruling will make it more difficult to contest state-imposed election regulations.  More from Scotusblog.

Also on Thursday, the Court struck down a California requirement that charities and nonprofit organizations operating in the state disclose to the state attorney general's office the names and addresses of the organization's largest donors.  More from Scotusblog.

On Friday, the Court issued a summary reversal in the case of an Alabama death row inmate who had won habeas corpus relief in the lower court, upending the death row inmate's win.  More from Bloomberg.

In the ongoing discussion of whether Justice Breyer will or should consider retiring and allowing President Biden to name and seek confirmation of his replacement, Breyer's friend Kenneth Feinberg writes that Breyer is "at the top of his game" right now.  See the piece at Law.com.

Federal Appellate Court News and Opinions:

This week, the Tenth Circuit issued a ruling that mostly upheld Oklahoma's mandatory bar dues as Constitutional.  More from Law360.

Appellate Practice Tips and Pointers:

Appellate Twitter provided a couple of great threads this week, with appellate practitioners providing some great thoughts on effective advocacy.

Carl Cecere started a thread on Monday discussing the value of Introductions and Summaries in appellate briefs, an all-too-often overlooked opportunity for good advocacy.

Tobias Loss-Eaton started a thread on Thursday discussing the virtues of doing trial level work and trial level briefs, even if you aspire to some kind of "idealized" practice of high court appellate brief writing, because of the insight and development it can provide.

Appellate Jobs:

The Seventh Circuit is accepting applications for positions in the court's Office of Staff Law Clerks to begin in the fall of 2022.  Application information HERE.