Appellate Advocacy Blog

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

Monday, March 28, 2022

Managing Legal Editor Position at NITA

My good friends at NITA, who help edit and publish the Journal of Appellate Practice and Process are hiring a legal editor.  The details are below. Please contact Gary Pope at gpope@nita.org with question or to apply.

Managing Legal Editor – Virtual position – U.S.
Fulltime position: 40 hours per week – Exempt – Benefits eligible
Salary Grade 60: Minimum $72,000 – Midpoint $90,000 (Based on qualifications and experience)

Position Purpose
Under limited supervision, this role is responsible for the overall quality and production work of the Publications Department. The Managing Legal Editor manages the strategic development of published works. The position is a key player in creating strategies for content distribution, considering the full range of print, digital, database, and other distribution methods. The position collaborates to support and execute new and existing initiatives with Operations, Marketing, and Programming.

Essential Duties and Responsibilities

  • Customer Service/Consulting. Provides information to customers (including law schools, law firms, and internal) regarding products and ordering.
    o Assists customers in identifying the appropriate materials for their class or training.
    o Refers customers to publishing partner representatives as needed.
    o Works to resolve any issues in a timely manner.
    o Represents NITA at conferences and other events.
    o Manage reproduction requests including entering orders into SalesForce and providing electronic version of materials.
  • Acquisitions and Development. Coordinates the production of new titles and updates. Acquires authors, solicits manuscripts, reviews proposals, negotiates contracts, and
    schedules submittal of manuscripts.
    o Works with Publications team to identify potential new topics and titles and research appropriate authors to approach.
    o Reviews solicited and unsolicited manuscripts and accepts or rejects them as deemed necessary.
    o Prepares publication proposals including descriptions of books, assessment of review process and market, sales analyses, profit and loss analyses, royalty arrangements, and competition for submittal to publishing partner.
    o Acts as primary liaison between the author and NITA and publishing partner. Keep authors informed during proposal process, contracting, and scheduling.
    o Builds and maintains the yearly editorial schedule.
  • Product Management.
    o Enters author and product information into SalesForce.
    o Reviews product packages prior to submittal to publishing partner and prior to production approval.
    o Monitors NITA and publishing partner’s website to ensure products are active and displayed correctly.
    o File for copyright. 
  • Sales Reporting and Analysis.
    o Inputs monthly publication sales reports (including direct and third-party sales) from publishing partner into SalesForce.
    o Complies, proofs, and presents data for Accounting and Leadership teams.
    o Reviews sales to identify and forecast trends.
    o Assists with reviewing invoice and royalty reports to insure accurate reporting from publishing partner.
    o Measures, evaluates, and reports the performance of the business unit to the AED for Operations on a regular basis. Budgets and forecasts revenue and costs for
    department and manages to budget. Evaluates the substantive and financial benefit of the business in the context of NITA’s mission and strategic plan.
  • Marketing and Sales.
    o Manages marketing, sales, and data reporting on sales, including management of external relationship with any marketing and distribution provider.
    o Assists NITA marketing team and/or external relationship marketing team as appropriate, providing input and strategic guidance on suitable channels and audiences for publications,
    o Obtains, reviews and approves marketing plans, reviews and monitors marketing materials produced.
    o Engaging and growing sales in the law school market.
  • Editorial and Administrative: Proofreading, editing, and other tasks as needed.

 

Supervisory Responsibilities--Manages Publications Department

Minimum Qualifications:
Experience: 5 years’ experience in managing staff or projects involving high-process, deadline-intensive deliverables, preferably in legal services environments.
Work experience in legal publishing, including writing and editing, supervision of editorial staff, managing portfolio, developing content, working with outside authors, handling publication and other contracts, managing editorial workflow, pre-press, print production, digital publishing, and marketing. Non-profit experience a plus.

Knowledge and Skills:
Knowledge of process for acquiring manuscripts.
Knowledge of publishing and production operations.
Knowledge and ability to manage large-scale publishing projects.
Knowledge of legal market customers, product, competition, and trends,
Knowledge of the business operations of bookstores, law libraries, and reproduction centers.
Knowledge of word processing programs, desktop publishing programs, and CRM software.
Outstanding oral and written communication skills.
Research and analytical skills.
Strategic planning skills.
Interpersonal, negotiation, decision-making and problem-solving skills.
Good judgment, tact, and diplomatic skills.

Physical Demands to Perform Essential Duties
• Uses eyes to read and edit extensively online and on paper.
• Uses hands, fingers, and wrists to write and work with computers and office machines.
• Sits and works at a computer for extended periods of time.
• Must occasionally lift and/or move up to 25 pounds of books, paper, or office equipment.
• Minimal travel.

Displays the Following Company Values Through Behaviors and Actions:
Respect
Integrity
Flexibility
Innovation
Collaboration

March 28, 2022 | Permalink | Comments (0)

Sunday, March 27, 2022

A Few Thoughts on Ketanji Brown Jackson

The United States Senate should confirm Ketanji Brown Jackson to the United States Supreme Court. Judge Jackson unquestionably possesses the requisite qualifications, experience, and character.

Robert Bork should have been confirmed too.

And Brett Kavanaugh was rightly confirmed.

The same is true for, among others, Sonya Sotomayor, Elena Kagan, Amy Coney Barrett, Neil Gorsuch, Samuel Alito, and John Roberts.

Why?

Because disagreement with a nominee’s interpretive philosophy (e.g., originalism or living constitutionalism) or disagreement concerning how a nominee might rule on specific legal issues (e.g., abortion) should never be a legitimate basis upon which to reject a nominee. Rather, the focus should be on a nominee’s qualifications, experience, and character, with particular emphasis on a nominee’s judicial temperament.

Sadly, however, the confirmation process has devolved into a political and ideologically-driven soap opera that bears little resemblance to reason, objectivity, or fairness, and that has politicized the Supreme Court and undermined its (and Congress’s) institutional legitimacy. And some legal scholars – and politicians – have contributed to the problem by often basing their support or opposition on whether a nominee’s perceived political views comport with their policy predilections.

How sad, and shameful.

***

Ketanji Brown Jackson’s hearings underscored how politicized, divisive, and, quite frankly, ridiculous the confirmation process has become. To be clear, Judge Jackson is eminently qualified to serve on the Court – and a person of great character and integrity. She graduated from Harvard University and Harvard Law School. She clerked for Justice Stephen Breyer. She is a respected judge on the United States Court of Appeals for the District of Columbia and the American Bar Association determined, as it did with Justices Kavanaugh and Barrett, that she was “well qualified” to serve on the Court.

But these facts didn’t stop the confirmation hearing from devolving into a political circus.

For example, Senator Marsha Blackburn asked Judge Jackson to define ‘woman.’[1] Senator Ted Cruz questioned Judge Jackson regarding her views on critical race theory, and whether she agreed with the views espoused in Ibram X. Kendi’s book, “Antiracist Baby.”[2] Whatever one’s views on critical race theory, questioning Judge Jackson on this issue was inappropriate – and entirely irrelevant. Also, Senators Tom Cotton and Lindsey Graham attempted to characterize Judge Jackson as too lenient on sex offenders (a claim that was quite misleading and inaccurate).[3] And Senator Cory Booker, who, while objecting to Brett Kavanaugh’s confirmation, declared that “this is the closest I’ll get to an ‘I am Spartacus’ moment,” delivered an impassioned speech that seemed a bit too contrived and inauthentic – a criticism that has plagued Booker for years.[4]  

Despite this nonsense, Judge Jackson performed admirably at the confirmation hearing and her testimony raised no issues concerning her qualifications, experience, or character, particularly her judicial temperament. As such, the Senate should confirm Judge Jackson.

Unfortunately, however, the hearings were only one component of this political soap opera.

***

What’s equally disheartening is the predictable behavior of some scholars who often support or oppose a nominee based solely on ideology.[5] Their support or opposition is not based upon the nominee’s qualifications, experience, or character, but on whether they believe that a particular nominee will reach outcomes that they support. As Ilya Shapiro explained when discussing Robert Bork’s failed nomination:

When Justice Lewis Powell unexpectedly announced his retirement in June 1987, it set the stage for what people already recognized was a pivotal moment in the fight for the Supreme Court. The Robert Bork nomination represents the moment when the scales fell from conservative eyes over what they perceived were unfair tactics in defeating a nominee who would finally, finally, start reversing the activism of the Warren and Burger Courts. And not because the nominee was perceived as unqualified, unethical, too much of a crony or assorted parochial concerns that had sunk nominees in the past. This was purely about ideology.[6]

Such an approach is intellectually dishonest and contributes to politicizing the rule of law and the Court, and to undermining these scholars’ credibility. Indeed, some law professors at Notre Dame (and approximately 5,000 lawyers) signed a letter opposing Amy Coney Barrett’s confirmation to the Court, citing reasons so flimsy and ideologically-driven (i.e., they didn’t like the outcomes that they speculated Barrett would reach on certain issues) that it begged the question of whether they truly embraced ideological diversity and eschewed the politicization of the confirmation process.[7] Unfortunately, when law students witness their professors supporting or opposing nominees based on ideology, it sends the message that ideology trumps intellectual honesty (and the rule of law), and that implicit (or explicit) biases trump impartiality. Put simply, disagreeing with a nominee’s political views or the outcomes that a nominee may reach in particular cases is no reason to oppose that nominee’s confirmation.

As they say, elections have consequences.

To be clear, it’s certainly appropriate to reject a nominee based on their judicial temperament, but not based on their judicial philosophy. I vehemently disagree, for example, with living constitutionalism, which I believe is a fundamentally dishonest and outcome-driven approach to constitutional interpretation. But that disagreement would never cause me to oppose a nominee. The real question should be whether a nominee’s rulings – particularly those with which you disagree – are based on a reasonable interpretation of a constitutional provision or statutory text (even if you disagree with that interpretation). In other words, are such rulings legally defensible? Do they reflect a good-faith effort to interpret text, precedent, and history, or do they evince a desire to reach outcomes that comport with a nominee’s policy predilections? If the latter, that would be a reason to oppose a nominee. But opposing a nominee because you disagree with their interpretive philosophy, opinion of Roe v. Wade, or support for “substantive due process” is unwarranted and unfair.

***

Finally, the confirmation process should be about the nominee as an individual, not as a member of a group. While increasing the Court’s diversity is a vital and laudable objective, President Biden made a mistake when he indicated that he would only consider nominating a Black woman. President Biden should have simply nominated Judge Jackson because she is eminently qualified and incredibly accomplished. She has impeccable character. In short, her qualifications, experience, and character are second to none.

And as stated above, Robert Bork, who was also incredibly accomplished, should have been confirmed.

Likewise, Brett Kavanaugh was rightly confirmed, as Senator Susan Collins argued in her speech supporting Kavanaugh’s confirmation.[8]  

The same is true for Justices Sonya Sotomayor Amy Coney Barrett, Neil Gorsuch, Elena Kagan, Samuel Alito, and John Roberts. What reasons – besides those reflecting ideology, bias, and politics – justified voting against any of these nominees? None.

Remember the days when the United States Senate confirmed Antonin Scalia by a vote of 98-0 and Ruth Bader Ginsburg by a vote of 96-3? Both were among the most outstanding justices in the Court’s history and their confirmation enjoyed bipartisan support. They were also friends, which shows that you can disagree with someone and still maintain a healthy relationship.

Judge Jackson deserves bipartisan support too. The time has come to stop politicizing the confirmation process and the Court. She should be confirmed.

 

[1] See Myah Ward, Blackburn to Jackson: Can You Define ‘The Word Woman’? (March 22, 2022), available at: Blackburn to Jackson: Can you define ‘the word woman’? - POLITICO.

[2] See Dani Di Placido, Ted Cruz’s Bizarre ‘Antiracism Baby’ Tirade Backfires (March 24, 2022), available at: https://www.forbes.com/sites/danidiplacido/2022/03/24/ted-cruzs-bizarre-antiracism-baby-tirade-backfires/.

[3] See Linda Qiu, Critics of Jackson’s Child Sex Abuse Sentences Backed Judges With Similar Records (March 25, 2022), available at: Critics of Jackson's child sex abuse sentences backed judges with similar records - The San Diego Union-Tribune (sandiegouniontribune.com).

[4] See, e.g., Chris Smith, He Seems So Hammed Up: Cory Booker Battles Rivals Who Say He Has An Authenticity Problem (January 25, 2019), available at: “He Seems So Hammed Up”: Cory Booker Battles Rivals Who Say He Has an Authenticity Problem | Vanity Fair.

[5] For example, 850 female law professors signed a letter supporting Justice Jackson’s nomination. But only a fraction of that number supported Amy Coney Barrett. Why? Ideology.

[6] Ilya Shapiro, The Original Sin of Robert Bork (September 9, 2020), available at: The Original Sin of Robert Bork | Cato Institute. (emphasis added).

[7] See, e.g., Susan Adams, Hundreds of Notre Dame Faculty Sign Letters Opposing Amy Coney Barrett Nomination (October 14, 2020), available at: Hundreds Of Notre Dame Faculty Sign Letters Opposing Amy Coney Barrett Nomination (forbes.com); Alliance for Justice, 5,000+ Lawyers Sign Open Letter Opposing Amy Coney Barrett SCOTUS Nomination, (October 9, 2020), available at: 5,000+ Lawyers Sign Open Letter Opposing Amy Coney Barrett SCOTUS Nomination — AFJ.

[8] See Brit McCandless Farmer, Why Susan Collins Votes “Yes” on Brett Kavanaugh (October 7, 2018), available at: Why Susan Collins voted “yes” on Brett Kavanaugh - 60 Minutes - CBS News.

March 27, 2022 in Appellate Advocacy, Appellate Practice, Appellate Procedure, Current Affairs, Federal Appeals Courts, Legal Profession, United States Supreme Court | Permalink | Comments (5)

Friday, March 25, 2022

Appellate Advocacy Blog Weekly Roundup, Friday, March 25

WeeklyRoundupGraphic

This week, the biggest news in the world of appellate advocacy was likely the confirmation hearing of Supreme Court nominee Judge Ketanji Brown Jackson, which received broad coverage.  Here are a few notable tidbits:

  • Bloomberg Law article about important cases from Judge Jackson's tenure as a federal judge  
  • SCOTUSblog summary of DAY ONE of the nomination hearing.  
  • SCOTUSblog summary of DAY TWO of the nomination hearing.
  • SCOTUSblog summary of DAY THREE of the nomination hearing.

On Wednesday, the Court ruled via its "Emergency Docket" to throw out a Wisconsin Supreme Court opinion adopting a redistricting plan submitted by the state's governor that would have increased the number of majority-Black districts in the Wisconsin State Assembly.  Justice Sotomayor, in an opinion joined by Justice Kagan, dissented and called the ruling unprecedented and unnecessary.

On Thursday, the Court ruled that a Texas death row inmate must be allowed to have his pastor touch him and pray out loud during his execution.  In the Court's decision, it urged states, again, to adopt clear rules concerning the presence of spiritual advisors at executions and instructed courts to allow executions to go forward with religious accommodations when necessary.  Justice Thomas was the only dissenting Justice.  More from SCOTUSblog.  

 

In #AppellateJobs, there is an opening for a position of law clerk in the chambers of Judge Christopher P. Yates, on the Michigan Court of Appeals.  Applications are sought by April 8.  Job Posting HERE.

March 25, 2022 | Permalink | Comments (0)

Thursday, March 24, 2022

The Case for a Public Law School Grad on the Court

Some months ago, prior to the announcement that Justice Breyer would retire from the Supreme Court, I wrote a blog post about diversity on the Court. Recognizing that race and gender understandably and correctly have been the two primary concerns of those seeking more diversity, I proposed that other diversity considerations should also matter: legal experience diversity; geographical diversity; educational diversity; and religious diversity. A reader of that post also suggested that a diverse Court might include a disabled person. Now that a nominee is poised to be confirmed and take Justice Breyer's place on the Court, I want to focus on law school education and make this plea: next time, please nominate someone who is a public law school graduate.

Judge Ketanji Brown Jackson is immensely qualified to be a Supreme Court Justice. Notwithstanding political posturing and grandstanding that has gone on during her confirmation hearing, she should be and will be confirmed. Upon her confirmation, she will be only the third African-American to sit on the Court. And, of course, she will be the first African-American woman to be a justice.

Much also has been said concerning the diversity of legal experience Judge Jackson will bring to the Court. She served as a federal public defender for some period of time, and her appointment brings the much-needed perspective of a criminal defense attorney.

In one area, however, the nomination of another Harvard Law School graduate continues a decades-long trend that has had few exceptions: nomination of an Ivy League law school graduate. More specifically, it is consistent with the recent history of nominating a graduate of either of just two law schools, Harvard and Yale (except for one Columbia Law School graduate--Justice Ruth Bader Ginsburg--it appears that even fellow Ivy League law schools like those at Penn and Cornell don't make the cut).

The time has come for a graduate of a public law school to serve as a justice on the Court. After all, it's been more than fifty years since a justice that went to a public law school has served on the Court (that justice was Hugo Black, a University of Alabama Law School graduate who left the Court in 1971!). 

Why does this matter? For starters, more diversity of any kind on the Court can bring greater perspective. And, on this particular issue, it also would help lessen the belief of many that the Court is full of elitists. Indeed, even the recent nominees who did not graduate from an Ivy League law school graduated from elite private law schools (Notre Dame and Stanford being the most recently non-Ivy schools represented on the Court).

Further, it may be true that a diploma from an Ivy League law school is needed (or at least usually expected) to teach at the top law schools. But being on the Supreme Court is not the same as teaching at a law school. While serving on the Court may be considered something of an academic pursuit, it makes sense that experience and perspective are equally as important as good grades at an elite law school.

There are outstanding lawyers and judges who are graduates of public law schools. Many of them would make excellent justices. That some of these fantastic jurists may have been unable for various reasons to attend an Ivy League law school despite the academic record to do so should not be an barrier to their nomination to the Supreme Court. And if a top-notch academic record is important (aren't the torts classes at Harvard and Yale teaching the same thing as at other law schools?), there are highly-ranked law schools at public institutions like the University of Virginia (ranked eighth overall by U.S. News & World Report), UC-Berkeley (ranked ninth), the University of Michigan (ranked tenth), and UCLA (ranked fourteenth).

The Court will soon have a new member, one who is an outstanding choice. President Biden's short list, prior to the nomination, included several other outstanding choices including a graduate of a public law school. That a public law school graduate was considered is a start, but here's to hoping that the next nominee comes from somewhere other than an Ivy League or elite private school background. That will be a step toward even more diversity and help the Court shed any image it has as an elitist institution.

 

 

March 24, 2022 | Permalink | Comments (0)

Tuesday, March 22, 2022

Why Standards of Review Matter

    When the Supreme Court hear oral arguments yesterday in Berger v. North Carolina State Conference of the NAACP, the discussion seemingly centered around dry procedural minutiae and one of the banes of legal writing courses—the appropriate standard of review to answer the question. But the case demonstrates both the importance of those standards of review, and the way that procedural nuance can mask surprisingly broad political and policy subtexts.

    The case concerns North Carolina’s new voter ID law, which the North Carolina NAACP has challenged as unconstitutional. The North Carolina attorney general, a Democrat, is defending the law, but Republican state legislators in North Carolina seek to join the lawsuit to defend the statute’s constitutionality. The legislators argue that the attorney general was not sufficiently representing their interests because he was primarily seeking clarification on which voting law to enforce—without forcefully defending the constitutionality of the new voter ID law.

    Despite the seemingly mundane procedural posture of the case, the political subtext and repercussions are broad. Republicans want to see the voter ID enforced immediately, while Democrats did not support it from the outset. North Carolina’s Democratic governor initially vetoed the voter ID law, and Republican legislators passed it over his veto. Some of those same Republican legislators, now dubious that a Democratic attorney general truly seeks to uphold the voter ID law, believe they must intervene to preserve their interest in asserting that the law is constitutional.

    In a twist that should draw the attention of appellate attorneys and law students, the case may turn on the deference owed to the lower court, and thus the standard of review that ought to apply. Because the lower court ruled against the Republican legislator’s effort to intervene, the Supreme Court must decide whether to follow that lower court decision. Republican legislators argue that the Court should apply de novo review, allowing the Supreme Court to consider the legal issue afresh without any deference to the lower court’s ruling. They claim that the Supreme Court should not simply review the lower court’s ruling for an abuse of discretion—meaning that the lower court’s decision was so arbitrary and capricious as to hardly be a legal ruling at all—because their decision refusing to allow intervention was purely legal, not the kind of fact-driven decision best left to lower courts. But opponents respond that the Republican legislatures seek a ruling of whether their interests are adequately represented by the state attorney general—an inherently fact-specific inquiry to be made by lower courts with a closer relationship to the parties and a better view of the facts involved.

    A debate over standards of review may appear immaterial. Judges, after all, might reach whatever ruling they prefer irrespective of that standard, either by manipulating the standard they apply or by simply applying the correct standard more or less rigorously. But this case illustrates the ways in which the standard of review, when contested, can have a meaningful impact on the outcome of litigation. In many ways, it drove the direction of oral arguments, where Justices wondered how strong an interest the Republican legislators really had and whether other groups of legislators might also want to join the suit. Those questions, though framed as a legal inquiry, also contain a clear factual subtext; they require close examination of the details of every case where such intervention is a possibility. How the Court frames those questions—as either legal inquiries subject to de novo review of factual ones subject to review for an abuse of discretion—seems likely to control the outcome. The case thus provides a ready example of standards of review playing a crucial role in a case with broad political and policy implications.

March 22, 2022 in Appellate Advocacy, Appellate Practice, Appellate Procedure, Federal Appeals Courts, Legal Profession, Legal Writing, Moot Court, Oral Argument, State Appeals Courts, United States Supreme Court | Permalink | Comments (0)

Monday, March 21, 2022

Reminder--Call for Submissions: Appellate Issues in Indian Country

Just a quick reminder that the Journal of Appellate Practice and Process is seeking submissions for our special issue--Appellate Issues in Indian Country. The details are below:

 

The Journal of Appellate Practice & Process is currently accepting submissions for Volume 23, Issue 1, to be published in late 2022/early 2023.

This issue will focus on appellate issues in and around Indian Country.  We welcome articles on appellate practice in Tribal Courts, articles exploring Tribal sovereignty and appellate justice, articles that explore jurisdictional questions raised by recent U.S. Supreme Court decisions, and other essays or articles addressing appellate practice issues in and around Indian Country. We welcome articles by academics, judges, and practitioners.

Essays and articles should not exceed 15,000 words in length. Please submit all papers to Prof. Tessa L. Dysart (tdysart@email.arizona.edu) by June 1, 2022.  Acceptances will be emailed by August 1, 2022.

The Journal of Appellate Practice and Process is a professionally edited Journal that focuses on appellate law topics. According to HeinOnline, it is the “the only scholarly law journal to focus exclusively on issues, practices, and procedures of appellate court systems, both federal and state, both American and international.” It “provides a forum for creative thought and dialogue about the operation of appellate courts and their influence on the development of the law.”

Since its founding in 1999, The Journal has published scores of important articles. Chief Justice William H. Rehnquist and Justices John Paul Stevens and Stephen G. Breyer have written for The Journal.  So influential is the Journal that courts often refer to it in their opinions, with over 100 citations in 2019 alone.

The Journal moved to the University of Arizona James E. Rogers College of Law in June 2020. It is edited in partnership with the National Institute for Trial Advocacy. You can find out more about the Journal at www.appellatejournal.com.

March 21, 2022 | Permalink | Comments (0)

Sunday, March 20, 2022

The Best Possible Nominee

            Tomorrow, the Senate Judiciary Committee begins confirmation hearings on the nomination of Judge Ketanji Brown Jackson to the Supreme Court. Every objective measure demonstrates that Judge Jackson is exceptionally well-qualified to take a seat on that Court. One argument that her opposition has latched onto asserts that her nomination reflects identity politics, rather than a search for some hypothetically best-qualified person. The idea that a best-qualified person exists wrongly presupposes that metrics exist that can rank otherwise qualified persons. It also disregards the lessons of history.

            John Marshall earned the sobriquet, the “Great Chief Justice,” for establishing the judiciary as a true co-equal branch of government. When John Jay turned down reappointment to his old post, lame-duck John Adams nominated Marshall, his secretary of state, as a loyal Federalist who would fight the policies of the incoming Jefferson administration. There was little reason to think Marshall would become the essential judicial figure that he did. Senator Jonathan Dayton voted to confirm Marshall only because rejection would result in the likely nomination of “some other character more improper, and more disgusting.”

            Other justices achieved hall-of-fame status despite controversy or obscurity when named. The nomination of Louis D. Brandeis was as controversial as any nomination. One observer said it was as much a call to arms as the resolution that declared the Spanish-American War. Brandeis faced opposition from seven former presidents of the American Bar Association, as well as the president of his alma mater, Harvard University. Yet, his place in the pantheon of great Supreme Court justices is unquestioned today.

            Dwight Eisenhower wanted to nominate a youthful Catholic Democrat to shore up a needed constituency for his upcoming reelection campaign. Few experienced judges fit that bill. Just months before the vacancy occurred, William Brennan, then sitting on the New Jersey Supreme Court, spoke at a Justice Department conference about his state’s judicial reforms, but only as a last-minute substitute for an ill New Jersey Chief Justice Arthur Vanderbilt. Despite the dry subject, Brennan so impressed officials that his name catapulted to the top of the list when a seat opened.

            When Brennan was nominated, three members of the Supreme Court told the Washington Star that they had never heard of him. After his confirmation, he admitted, “I’m the mule that was entered in the Kentucky Derby. I don’t expect to distinguish myself but I do expect to benefit from the association.” Justice Felix Frankfurter, who had been Brennan’s professor, could not find anyone, himself included, who remembered Brennan as a student. Today, scholars consider Brennan the most influential justice of the 20th century.

            In contrast, Frankfurter arrived at the Supreme Court as a much-celebrated lawyer and scholar – criteria that might qualify him as the best candidate of his time. Frankfurter’s judicial tenure did not match expectations. His insistent didacticism rubbed his fellow justices the wrong way. As a member of the Court, the one-time activist lawyer became an outsized advocate of judicial restraint, which further limited his long-term impact. He authored few landmark decisions.

            Many other examples exist and demonstrate that there is no single set of criteria to predict success. The idea that there is a single best candidate for nomination also ignores a critical confounding factor: real-world experience informs any conception of the idealized reasonable person that the law uses as a standard for measuring how law sensibly applies to a particular set of facts. Even in constitutional law, rationality plays an outsized role. Justice Antonin Scalia, for example, championed originalism as a school of constitutional interpretation, yet described himself as a “faint-hearted originalist” because he understood that too rigid an approach to construing the Constitution would produce absurd and indefensible results. What is reasonable can also differ based on experiences by race, religion, gender, national origin, or sexual orientation – as well as for a rural resident and for a city-dweller. For that reason, a diversity of experience assures that the Court does not operate in a bubble constricted by understandings constrained by experiential myopia.  

            Beyond her sterling credentials that match or exceed the current justices’ academic qualifications and legal experiences, Judge Jackson also brings a host of experiences that diverge from the current membership. She speaks the language of law that the justices speak, but she will also bring to the justices’ conference new perspectives that will enrich the discussion and enhance their collective decision-making. When critics question whether she is the best possible nominee, they seek to employ non-existent criteria that miss the mark and hide their biases. The Senate should confirm Judge Jackson.

March 20, 2022 in Appellate Justice, Current Affairs, United States Supreme Court | Permalink | Comments (0)

Saturday, March 19, 2022

Drafting Smarter Documents

The days of drafting dead documents is done. Legal audiences like judges and clients constantly report that they now read legal documents on digital devices. And reading on digital is not like reading paper. There are several things you can do to draft like a modern-day writer. 

First, draft documents for busy readers who want to be able to skip around to different sections quickly.

How? Headings and hyperlinks. 

Digital readers should be able to pop open the table of contents in any part of the document and quickly click around to different sections. There’s no need to pretend folks will be flipping through pages to get around. They won’t. So use more headings and subheadings so people can instantly find whatever topic they want to jump to. And make sure headings are self-explanatory.

Those headings will do a lot more than they used to. 

Once you add more headings and subheadings, make sure your document format makes it simple to navigate between them. A Microsoft Word document has a built-in navigation pane that will work so long as your reader uses it. But if you’re sending your document as a PDF, you’ll want to add two things: links to the table of contents (so that readers will be transported to the section in a click and not have to use the page numbers) and an easy way to return to the table of contents from each page. 

Next, link your document up! This means adding links to every related document or external source that your readers may want to check out while reading your document. 

There are three main links that matter: Internal cross-references, exhibits, and URLs. 

First, like headings, you can insert internal links to any relevant part of your document. Say that you are explaining a battery claim and that one relevant point is whether the plaintiff suffered harm—and you already addressed this same harm point in another section covering a different claim. You can insert an internal link (a cross-reference) in your battery section so that readers can jump back to the harm section if they want a refresher on that relevant point. 

Next, you can link to any related documents that you are attaching to your main document. Let’s say you are writing a memo about the same battery claim and plan to attach some pictures of the medical bills to support the harm element. You can insert links that will bring your reader directly to those other documents. This is easiest to do by preparing all of your documents or images as pdfs—because PDFs have a feature that allows you to easily link between separate documents. 

Finally, you should link your readers to any external web addresses that may be helpful. This is especially useful when linking to court decisions, websites, or anything else on the web. This way, readers can jump right to a court decision wherever you cite it in your document. Just make sure to include links to free open sources (or at least to the two major research databases: Lexis and Westlaw). 

Crafting 21st-century documents doesn’t stop with these fundamentals. There are tons of tools that can help you add more functionality to documents for readers. And you can come up with new ones, too. Just make sure that when you are adding functionality to documents you heavily test the features and ensure your readers will not get frustrated. 

March 19, 2022 | Permalink | Comments (0)

Oral Argument Prep While Managing Life Too: Make a One-Sheet and Keep Your Sense of Humor

My first-year students participated in a traditional 1L moot court competition this week, making their first oral arguments.  As I helped guide the students through this rite of passage, I answered many anxious questions about content, presentation style, appropriate “court suit” fashion, and more.  In answer, I stressed the need to be prepared and flexible, and most of all, to enjoy the process.  My overall advice:  make a one-sheet, place the sheet in an organized binder to support a professional and successful argument, and don’t buy a new suit just for an argument.   

I stress the one-sheet because it worked for me.  Also, as a former state and federal appellate law clerk, and then an appellate specialist for years, I saw many oral arguments fail over lack of preparation and complicated podium notes.  Instead of fancy folders or notes, I suggest  students distill the argument to one piece of paper.  The process of making this one-sheet, in law school and practice, requires advocates to know their record and case law very well, and to create argument summaries taking no more than a sentence or two.  Plus, even if you drop one piece of paper, you can quickly pick it up and continue, unlike scattered index cards or multi-page notes. 

As part of my preparation to teach the one-sheet approach to oral argument this year, I once again read many blogs and articles to see if I could add any new advice.  I found a very helpful ABA Journal piece which perfectly summarized my appellate practice life before full-time teaching.  In A Working Mother's 32-Step Guide to Preparing for Oral Arguments, author, law professor, and former Dean Sarah Gerwig-Moore provides a humorous and helpful discussion of oral argument, especially the concerns of being an advocate, mother, and woman in an appellate court setting.  See ABA Journal, Nov. 18, 2019,

https://www.abajournal.com/voice/article/a-working-mother-prepares-for-oral-argument

I suggested my students read Gerwig-Moore’s piece, and many told me the humor helped them keep their argument preparation in perspective.   

Given how much my students enjoyed Gerwig-Moore’s 32-steps, I am also sharing them here.   Gerwig-Moore explained her preparation for a Spring 2019 law clinic oral argument in the Supreme Court of Georgia “that would decide an important question regarding the scope of issues cognizable in habeas corpus proceedings.”  See id.  As so often happens, her “oral argument coincided with a truly insane week or two of sports and other obligations for [her] sons.”  She explained, “[s]ometimes you just have to laugh to keep from crying. And—just as in baseball—there’s no crying in court.”  Id.

Here is Gerwig-Moore’s lighthearted summary of her oral argument preparation:

      1. Reread all briefs and entire case record, making notes and highlighting.
      2. Reread all laws cited. Realize you might need the full 150-year history of the statute—ask team to track that down. As they’re researching this, realize the milk in your refrigerator might be 150 years old.
      3. Reread every case cited in all briefs and make notes. Ask your team to create charts of cases and facts so you can see each one at a glance. Make sure to ask very nicely.
      4. Slice up your brief for the first draft of an outline.
      5. Slicing up the brief reminds you to slice up food. Your children need to eat. Cook dinner! Leave dishes in the sink.
      6. Question absolutely everything—even your own name. Stay up too late.
      7. Wake up too early. Wonder if dark circles under your eyes make you look too shrill. Consider buying undereye concealer.
      8. Decide on a few key record items you will need to memorize. Make breakfast for children while reciting these. Scowl when sons remark that this isn’t fun. Consider smiling more with record recitations. Scowl again.
      9. Let at least three people down. (These are likely to be close friends or family members.)
      10. Anticipate questions from the bench. Arrange mock arguments with colleagues who don’t mind insulting you. Consider inviting archrivals, too. Or your teenage offspring. They’ll definitely insult you.
      11. Feed pets. Feed children. Eat leftovers. Deposit dishes in the sink.
      12. Moot the argument. Send follow-up assignments to team. Thank team! Donuts are a good way to thank people! Consider bringing some donuts to work but then forget.
      13. Consider wardrobe. Pantsuit? Skirt suit? Dress? Clothes should be flattering—but not too flattering. It should be comfortable—but not too comfortable. Assess work shoes to decide which will help you see over the podium but not actually tip you over in court. Don’t even get started on all the ways you can mess up your hairstyle strategy.
      14. Simultaneously wish you were both much, much taller and much, much smaller (see musing above re: shoes).
      15. Reread everything.
      16. Hem your suit—and I am not making this up—while on a conference call, while sitting in your car watching your son play lacrosse.
      17. As you are sewing, notice your nails haven’t been done in months. Wonder how many people will actually notice your hands. Resolve not to be too demonstrative with hands while in court.
      18. Do all your other work and errands and at least one ridiculous extra thing (can you say “homemade” cookies for your kid’s class, anyone?) you committed to months ago.
      19. Try to see the case from opposing counsel’s perspective. Consider adopting this tactic with your children, but then (metaphorically) hit them with the ol’ “Because I said so.”
      20. Check in with client.
      21. Buy the best lipstick your credit card can handle. This is unquestionably Pirate by Chanel. Case closed. (See what you did there?)
      22. Be serious but not too serious. Be confident but not too confident. Be yourself but not too much of that either (e.g., suit sleeves should cover your justice tattoos).
      23. Eat one vegetable. Make children eat two vegetables. Pat self on back for being health guru.
      24. Reread everything. Condense argument down to a one-pager.
      25. Ponder a twist on the Dorothy Parker classic: Justice makes spectacles of women in spectacles (which cause issues with limited peripheral vision). Decide to wear contact lenses.
      26. Read notes from team. Wax philosophical on the notion that all team members are working with the same richness of the experience of your work.
      27. Whiten teeth. Sharpen fangs. Consider optics of fangs. Stow them in a tiny pocket right next to your heart.
      28. Reread everything.
      29. Decide you hate your suit. Wish that suits of armor were still a thing.
      30. No—not sigh—breathe.
      31. Reread everything. Boil down outline to one word and the dancing woman emoji.
      32. Set four alarm clocks. Or is it alarms clock?

Id.  Gerwig-Moore added a fun postscript, and if you want to know how the argument ended, please check out her article

I wish you all great oral arguments, with one-sheets and humor as your guides. 

March 19, 2022 in Appellate Advocacy, Appellate Practice, Appellate Procedure, Humor, Law School, Legal Profession, Moot Court, Oral Argument | Permalink | Comments (0)

Friday, March 18, 2022

Appellate Advocacy Blog Weekly Roundup Friday, March 18, 2022

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 denied two emergency petitions and allowed to stand court-drawn congressional voting maps in North Carolina and Pennsylvania. In both states, republican gerrymandered maps had been challenged by democrats. However, both the concurrence and the dissent in the North Carolina case indicate that at least four justices are interested in hearing the “exceptionally important and recurring question of constitutional law, namely, the extent of a state court’s authority to reject rules adopted by a state legislature for use in conducting federal elections.”  See the North Carolina order and a report from The New York Times.

  • The Supreme Court issued a news release concerning the March session. Although the Court will continue to hear arguments in the courtroom, “[o]ut of concern for the health and safety of the public and Supreme Court employees, the Courtroom session will not be open to the public.” Live audio feed will continue to be available on the Court website.

  • SCOTUSblog’s Amy Howe provided a list of the March 2022 session arguments with descriptions of the cases.  Find it here.

Appellate Court Opinions and News

The Fourth Circuit approved a permanent injunction that prevents South Carolina’s removing Planned Parenthood from the list of approved Medicaid providers. The panel found that allowing “the State to disqualify Planned Parenthood would nullify Congress’s manifest intent to provide our less fortunate citizens the opportunity to select a medical provider of their choice, an opportunity that the most fortunate routinely enjoy.” See the order and reports from Bloomberg Law, Reuters, and Courthouse News.

State Court Opinions and News

The Texas Supreme Court has ruled that state regulators cannot enforce the State’s near-total ban on abortions and thus cannot be sued to challenge the law.  See the ruling and reports from Reuters, The New York Times, and Bloomberg News.

March 18, 2022 in Federal Appeals Courts, State Appeals Courts, United States Supreme Court | Permalink | Comments (0)

Wednesday, March 16, 2022

Lead with your technicalities

Charles blogged recently about leading with your strength--that is, starting with why you're right rather than why the other side is wrong. I wholeheartedly agree with this approach. It's rhetorically more persuasive, it comes across as stronger, and it forces you to think through your case more. I would add one caveat to this approach: get the procedural stuff out of the way first.

When I was a law student, one of my mentors said that in appellate briefing, you need to go 1. procedural before substantive and 2. positive before negative. The latter is what Charles addressed. The former is a necessary place to start because it frames all the discussion that follows. For example, preservation. If a party raises a claim for the first time on appeal and does not argue an exception to the preservation rule, then as appellee/respondent, you need to explain to the court that they can't/shouldn't get to the merits of the arguments unless it's through something like plain error. That changes the lens through which the appellate court views the issues. Rather than asking what the right answer is, the question is on what the trial court should have done on its own, without objection. How clear was the law on this point at the time of trial? That's a different question than what the law should be now. And it affects how you frame your why-we're-right arguments later.

So always lead with your strength, but only after you've covered procedural arguments that affect the substance of the questions on appeal. Those technical arguments are often the hinge on which a result in a case turns. 

March 16, 2022 | Permalink | Comments (1)

Monday, March 14, 2022

Addition By Subtraction: Write Less, Say More

This is a guest post by Philip Seaver-Hall. Philip Seaver-Hall is a litigation attorney at Knox McLaughlin Gornall & Sennett, P.C. in Erie, Pennsylvania.  He practices trial and appellate advocacy in Pennsylvania’s state and federal courts.  

Want to make your legal writing punchier?  Eliminate “glue words.”  I define “glue words” as any words that bog down a sentence unnecessarily. 

Here's a sentence full of glue words: “As a result of the efforts of the financial consulting firm, the client was able to reach a point where the client could successfully meet its financial reporting obligations.” 

Here's one possible revision: “Because of the consulting firm’s efforts, the client met its financial reporting obligations.” 

Why does the revision feel clearer and punchier?  Two main reasons: (1) we’ve removed the compound constructions and (2) we’ve pushed the main verb closer to its subject.  In both cases, we’ve cut out the glue.

Compound Constructions

Compound constructions—which are common sources of glue words—use several words when fewer would do.  Here’s how that plays out in our example sentence:

  • As a result of → Because of
  • The efforts of the financial consulting firm → The consulting firm’s efforts

Here are some common compound constructions and their suggested alternatives:

  • Am able to → can
  • At that point in time → then
  • By means of → by
  • By reason of → because of
  • By virtue of → by, under
  • For the purpose of → to
  • For the reason that → because
  • In accordance with → under
  • Inasmuch as → since
  • In connection with → with, about, concerning, regarding
  • In favor of → for
  • In opposition to → against
  • In order to → to
  • In relation to → about, concerning, regarding
  • In the event that → if
  • In the nature of → like
  • Prior to → before
  • Pursuant to → under
  • Subsequent to → after
  • Was able to → could
  • With a view to → to
  • With reference to → about, concerning, regarding

Subject-Verb Reunion

In the second clause of our example sentence, we’ve removed a string of unnecessary verbs (“was,” “reach,” and “could”), adjectives (“able”), and adverbs (“successfully”).  When words like these are removed, principal verbs naturally move closer to their subjects.  Instead of saying “the client was able to reach a point where it could successfully meet,” we simply say “the client met.”

By avoiding compound constructions, and by reuniting principal subjects and verbs, you will activate your sentences while exercising linguistic economy.  Readers—especially busy judges—appreciate that very much.

March 14, 2022 | Permalink | Comments (1)

Saturday, March 12, 2022

Appellate Oral Argument Tips

Nearly all lawyers and law students are familiar with the conventional advice regarding how to perform and maximize the persuasiveness of an appellate oral argument. For example, law students are taught to develop a persuasive theme, begin with the strongest argument, know the record, the law, and the standard of review, concede (or reconcile) unfavorable facts and precedent, never attack the adversary or lower court, never misrepresent the facts or law, and craft a compelling narrative.

This is good advice that can certainly enhance the persuasive value of an argument, increase the likelihood of success, and ensure that an advocate maintains credibility with the court. But do these techniques always work? No.

Below are several tips that attorneys should consider when preparing for an appellate oral argument.

1.    Begin by addressing the weaknesses in your argument.

Conventional wisdom suggests that you should begin with your strongest and most persuasive arguments. But that doesn’t always work.

Appellate judges aren’t stupid.

They know the law.

They know the record.

And they know what your strongest arguments are – and they probably don’t care.

Rather, they are concerned with the weaknesses in your argument and, during questioning, will probe those weaknesses with precision and consistency. So why adopt the predicable and formulaic approach of beginning with your strongest arguments? Indeed, some appellate judges probably aren’t even paying attention to you when you do so.

For example, in Maryland v. King, where the Court considered  whether a cheek swab of an arrestee's DNA violated the Fourth Amendment, the oral argument began as follows:

[Petitioner’s attorney]: Mr. Chief Justice, and may it please the Court: 11 Since 2009, when Maryland began to collect 12 DNA samples from arrestees charged with violent crimes 13 and burglary, there have been 225 matches, 75 prosecutions, and 42 convictions, including that of Respondent King.

Justice Scalia: Well, that's really good. I'll bet you, if you conducted a lot of unreasonable searches and seizures, you'd get more convictions, too. (Laughter.)

Justice Scalia: That proves absolutely nothing.

[Petitioner’s attorney]: Well, I think, Justice Scalia, it does, in fact, point out the fact that -- that the statute is working, and, in the State's view, the Act is constitutional.

Justice Scalia: So that's its purpose, to enable you to identify future criminals -- the perpetrators of future crimes? That's the purpose of it? I thought that that wasn't the purpose set forth in the -- in the statute.[1]

The Petitioner’s attorney probably and understandably believed that beginning with an argument about the statute’s efficacy would be persuasive.

The justices on the U.S. Supreme Court, however, are very smart and perceptive. After reading the briefs, they are aware of your strongest arguments. They know the record and the law. They know, in many cases, how they are going to decide a case before an oral argument begins. And they have identified the weaknesses in your argument.

Accordingly, in some instances, begin by immediately addressing the weaknesses in your case. In other words, cut out the bullshit and get straight to the heart of the matter. After all, as an appellate advocate who has prepared extensively for oral argument, you probably know the questions – and concerns – that the judges will raise. Thus, why not begin by addressing those concerns and, in essence, preempting their questions? Doing so will enhance your credibility and your argument’s persuasive value. 

2.    Appellate courts care about their institutional legitimacy and your argument should reflect that reality.

The justices on the U.S. Supreme Court, along with judges on lower federal and state appellate courts, live in the real world. They understand that their decisions can – and often will – engender substantial criticism from the public, which can undermine the Court’s institutional legitimacy.

That’s why judging is a political, not merely a legal, endeavor. It’s also why the Supreme Court (and lower federal and state appellate courts) will render decisions based in part on perceptions about how the public will react to a particular decision.

Thus, when presenting your argument, be sure to provide the court with a workable, fair, and equitable solution that will produce an opinion that maintains an appellate court’s institutional legitimacy. Think about the opinion that the court will ultimately write. Would your argument result in an opinion that the court would embrace and that the public would find credible? If not, your chances of winning decrease substantially.

3.    The law isn’t everything – convince an appellate court that it is doing the right thing by ruling in your favor.

When judging moot court competitions recently, many, if not most, law students based their arguments primarily, if not exclusively, on precedent, emphasizing favorable case law and striving mightily to distinguish or reconcile unfavorable precedent. And to a substantial degree, these arguments were well-presented and persuasive.

But judges aren’t robots. They are human beings. They have emotions and biases. Perhaps most importantly, they want to reach decisions that enable them to sleep at night with a clear conscience.

That’s in part why courts have an on-again, off-again relationship with stare decisis. When judges believe that a prior case was wrongly decided, or will lead to a result that they find unjustifiable, they can – and often will – overturn precedent. And even though they will cloak their analysis in legal jargon, you can be sure that their decision is based on the fact that they believe they are doing the right thing.

To be clear, precedent is important. But it’s the beginning, not the end, of the inquiry.

For that reason, advocates should always consider the equities in a given case and appeal to principles of fairness and justice (and sometimes, emotion).

4.    Know who your friends are and target the swing justices.

Before oral argument, many appellate judges, after reviewing the record and reading the briefs, know how they are going to rule. And no matter what you say at oral argument, they aren’t going to change their minds.

Before oral argument at the U.S. Supreme Court, for example, you need to identify the justices that will likely support or oppose your position. Most importantly, you have to identify the swing justices and tailor your argument – and responses to questions – to those justices. For example, in Obergefell v. Hodges, legal scholars almost certainly knew that Justices Scalia, Thomas, and Alito would not vote to invalidate same-sex marriage bans. They also knew that Justice Kennedy was the swing justice and that the Petitioner’s arguments should focus on getting his vote.

To be sure, in many oral arguments before federal appellate courts, you will not know before the argument which judges will support or oppose your argument. But as the oral argument progresses, you will usually be able to identify the judges that support you, the ones that don’t, and those that are undecided. When you do, tailor your argument to the undecided, or swing, judges.

5.    Be conversational and relatable, not confrontational and rigid.

Again, when recently judging moot court competitions recently, it became quickly apparent that many of the competitors’ demeanors were excessively formal and impersonal. The rigidity with which the arguments were delivered – along with the defensive reactions to the judges’ questions – made it difficult, if not impossible, to have a genuine conversation with the advocates.

That approach is a mistake. An oral argument should be a conversation, not a confrontation.

Accordingly, when arguing before an appellate court, relax. Show the judges that you are a human being. Show the judges that you have a personality – and even emotion. Be conversational. Be confident. Be relatable. Be likable. Watch actor Edward Norton’s oral argument before the U.S. Supreme Court in The People v. Larry Flynt and you’ll get the point.

Judges – like all people – may be more likely to agree with a litigant that they like.

Of course, you should always be professional and respectful. But if you come across as a robot, you will appear inauthentic and preclude the type of connection with the judges that excellent appellate advocates achieve.

6.    Think of the one thing that you want to say – and say it in a way that the judges will not forget.

This needs no explanation.

Watch Matthew McConaughey’s closing argument in A Time to Kill.

 

[1] Maryland v. King, 569 U.S. 435 (2013), Transcript of Oral Argument, available at: https://www.supremecourt.gov/oral_arguments/argument_transcripts/2012/12-207-lp23.pdf. (emphasis added).

March 12, 2022 in Appellate Advocacy, Appellate Justice, Appellate Practice, Appellate Procedure, Federal Appeals Courts, Law School, Legal Profession, Moot Court, Oral Argument, United States Supreme Court | Permalink | Comments (1)

Tuesday, March 8, 2022

Lead with Your Strength

We all know that, with some exceptions,[1] we should lead with our strongest argument. But, it’s not enough to lead with our strongest argument—we should lead with our strongest positive argument. By that, I mean the strongest argument for why we should win, not our strongest argument for why the other side should lose. This can be particularly difficult to do when we represent the appellee because the appellant has set out their arguments and our first instinct might be to show why their arguments are wrong. But that’s not leading with our strength, it’s an attempt to show our opponent’s weakness.

Take this example from the appellees' brief in Welling v. Weinfield.[2] In Welling, the Supreme Court of Ohio was asked to recognize the tort of false-light invasion of privacy.[3] After first arguing a procedural issue, that the case had been improvidently granted,[4] the appellees began the substantive argument like this:

As noted by the Wellings in their opening brief to this Court, a majority of the jurisdictions in the United States have adopted the false-light invasion of privacy cause of action. Brief of Appellants at 8. In The Denver Publishing Co. v. Bueno (Colo. 2002), 54 P.3d 893, the Colorado Supreme Court noted that 30 states had adopted the false-light invasion of privacy theory as part of their tort law. Despite that, the Colorado Supreme Court rejected the tort because it overlaps defamation to such a large degree and because its adoption might have a chilling effect on First Amendment freedoms. This Court should do the same.[5]

See how the appellees referred to and agreed with the appellant’s brief (giving appellant’s argument credibility) and then highlighted the strengths of the appellant’s argument:

  • a majority of jurisdictions have adopted the claim;
  • the Colorado Supreme Court noted that thirty states had adopted it.

It’s not until the next to last sentence of that opening paragraphing that we learn of the appellees' positive arguments: the tort overlaps with defamation and recognizing the claim could chill free speech.[6]

Here is how I might re-write the opening paragraph to lead with why the appellees should win:

This Court should reject the invitation to expand Ohio law. Defamation and false-light invasion of privacy claims largely overlap. And recognizing a false-light invasion of privacy claim might chill speech protected by the First Amendment. Instead, the Court should follow the reasoning of the Colorado Supreme Court. That court acknowledged the states that had recognized the claim but refused to do so because of the overlap with defamation and the possible chilling effect on free speech. The Denver Publishing Co. v. Bueno, 54 P.3d 893 (2002).

How would you re-write the opening paragraph to lead with the appellees' positive argument?

[1] An example of when this rule wouldn’t apply is when there is a procedural argument that logic dictates be addressed first.

[2] 866 N.E.2d 1035 (Ohio 2007).

[3] Id. at 1053.

[4] Robert E. WELLING, et al., Appellants, v. Lauri WEINFELD, Appellee., 2006 WL 1860670 (Ohio), 16.

[5] Id. at 17.

[6] Id.

March 8, 2022 in Appellate Advocacy, Appellate Practice, Legal Profession, Legal Writing, Moot Court, Rhetoric, State Appeals Courts | Permalink | Comments (1)

Monday, March 7, 2022

Nurture the Future of Appellate Advocacy: Be a (Good!) Moot Court Judge

This is a guest post from my colleague Prof. Susie Salmon at the University of Arizona James E. Rogers College of Law

Moot court season is in full swing, and countless law students across the country are suiting up, positioning themselves in front of their carefully placed webcams, and taking a few final deep breaths to settle those jittery stomachs before launching into oral arguments that they have spent weeks and often months crafting, testing, and rehearsing. A fortunate few are even striding into real courtrooms and facing judges in person (like most, I cannot wait until that is the norm again!).

Sadly, some of those students will walk away from the moot-court experience with lessons we did not intend to teach. Judges get to be uncivil and unkind to advocates because they are judges. A sharp appearance, resonant voice, and slick delivery matter more than does a deep and nuanced understanding of the law, facts, and policy. Lawyers stink at giving constructive feedback.

Look: some of these lessons may contain a kernel of truth. But they do not represent the profession into which we want to welcome these budding attorneys, and they certainly do not represent the way we want new lawyers to approach the practice of law.

Let me preface all of this by saying that I am no moot-court naysayer. I love moot court. For almost a decade, I ran an internal moot-court competition at University of Arizona Law, I’ve coached teams for over a dozen years, and I routinely serve as a practice judge. I even co-authored a book for moot-court advisors. Is moot court precisely like “real” appellate argument? Of course not. But the moot-court experience helps students develop and polish skills and habits that will benefit them in any type of law practice—things like thorough preparation, nimble thinking, judgment, resilience, and professionalism, not to mention legal-writing and oral advocacy skills.

But to create that effective educational experience, we need help from appellate lawyers and judges.

Volunteer

Moot court programs and competitions rely on volunteer judges and attorneys. They perennially struggle to fill their benches, and the need has become particularly acute of late, with Zoom fatigue and general burnout taking a toll. Consider dedicating a few volunteer hours to serving as a judge for your local law school’s moot-court program. If the school does not reach out to you, feel free to contact them: usually the Director of Advocacy or Director of Legal Writing can put you in touch with the right person. Any coach or administrator would be thrilled to have an appellate judge or attorney on their practice or competition roster! Whether you judge a competition round or two or help moot a team at a practice, a relatively modest investment of time represents a significant investment in the education of a group of law students. And most judges and attorneys who volunteer find it fun and rewarding.

Prepare

If you do volunteer to moot a team—and most especially if you volunteer to serve as a competition judge—please read the bench brief, case summaries, and other materials provided thoroughly, and come prepared with questions. If you have time, read some of the key cases. If the problem presents an area of law with which you are completely unfamiliar, consider browsing a treatise. Many competitions provide robust training sessions in person or online. And some states even permit CLE credit for a moot-court judge’s preparation and participation, so you can be rewarded twice for your efforts.

Yes, your presence alone has value, but you do not want to be That Judge who inadvertently rewards a student for blatantly misstating the law or facts or making slick but superficial arguments. The best moot-court judges prepare almost as if they’ve been called upon at the last minute to step in for one of the competitors.

Model Civility

In over a dozen years of watching moot court competitions, well…let’s just say I have some stories. Judges berating advocates. Judges continually talking over an advocate to the extent that the advocate barely completes a single sentence in a fifteen-minute argument. Judges making insensitive or inappropriate comments.

Some attorneys may think that a brusque demeanor and harsh words prepare students for the “real world” of law practice. I disagree. First, in my experience, most lawyers and judges behave in a civil, professional—even friendly and collegial—manner most of the time. Second, how do we create a culture of civility and respect in our profession if members of the profession model incivility and disrespect (and often seem to be having so much fun doing it) while serving as judges at moot-court competitions? Moot court judges should hold advocates to account, force them to support their arguments with concrete statements of law and fact, take them to task for misrepresentations or false statements, and prevent them from evading difficult questions. But using the poor behavior of some real-world judges and lawyers to justify modeling that type of behavior for law students is misguided at best.

Provide Constructive Feedback

Winning is great, but even at competition each moot court argument is new learning opportunity. Of course, time constraints require judges to keep their feedback concise, but try to provide at least a couple of specific pieces of constructive feedback to each advocate. Ideally, focus that feedback on the substance of the advocate’s argument. Avoid comments—even positive ones—about an advocate’s voice, accent, attire, or appearance.

Generic positive feedback does not encourage the advocates; quite the contrary, it makes them feel as if the judges did not truly hear their arguments. Come prepared to make notes so that you can call out specific strengths and opportunities to improve, whether those relate to knowledge of the law, knowledge of the record, responses to questions from the bench, framing the issues, or word choice. If you can point to just two or three specific things from a student’s argument, your feedback will have more impact.

All of this said, the most effective moot court judges know one thing: it’s about the students. Especially if you are an appellate attorney or judge, when you sit on that moot-court bench, you are heroes. You are what these students aspire to be. The best gift you can give our profession in that moment is to model the values we want the next generation of appellate lawyers to share.

And have fun!

March 7, 2022 | Permalink | Comments (1)

Sunday, March 6, 2022

The Value in "Low-Value" Speech

Last week, another contributor to this blog, Adam Lamparello, wrote a purposefully provocative piece, arguing that low-value speech that causes emotional distress should be without First Amendment protection. By prearrangement, this post responds to it.

As I thought about my response, I recalled a television appearance I made the day before the argument in Forsyth Cnty. v. Nationalist Movement.[1] I was asked to discuss the issues in the case, as was the attorney who would argue the case for the Nationalist Movement, the white supremacist group he had founded. He predictably used the platform to spout his “philosophy,” but did little to explain his planned argument.[2]

I vividly recall that when I asked to respond to his offensive statements, I explained that even a person as despicable as he was fell within the First Amendment's protection, though not based on any belief that the views he expressed had inherent value. In supporting free speech, I was not supporting his detestable views; I was supporting the Bill of Rights. Our obligation was to use our own free-speech rights to denounce him and his views, rather than silence them. In this way, the First Amendment serves as a safety valve. Doing so prevents those opinions from existing only underground, lulling us into complacency only to emerge more virulently and unexpectedly. It also allows us to employ counter-speech to organize against it. The facts that gave rise to Forsyth Cnty. supply a useful example.

The county sits 30 miles northeast of Atlanta. In 1912, more than 1,000 Black residents of the county were driven from it after one was lynched on accusations of rape and murder of a white woman. By 1987, the county remained 99 percent white. It was in that year that civil rights activist Hosea Williams led a “March Against Fear and Intimidation” by 90 demonstrators. They were met by 400 counterdemonstrators from the KKK and the local affiliate of the Nationalist Movement and greeted with thrown rocks, bottles, and racial slurs that quickly brought the march to an end. Undeterred, Williams returned the following weekend. This time, he brought 20,000 fellow marchers, along with civil rights leaders, Senators, presidential candidates, and an Assistant United States Attorney General. It was the “largest civil rights demonstration in the South since the 1960s.”[3] The march was protected by “3,000 state and local police and National Guardsmen,” rather than the small local police force that had been overwhelmed at the first march. The larger law enforcement contingent largely checked the 1,000 counterdemonstrators.[4]

The nub, however, was that police protection produced a bill of $670,000, though the county only paid a small part of it. The county then enacted an ordinance that imposed a variable fee on future marchers that would be set in the county’s discretion each time. A later ordinance capped the fee at $1,000 per day.[5]

In January 1989, the Nationalist Movement planned their own demonstration to voice opposition to the Martin Luther King, Jr. holiday, and Forsyth County imposed a $100 permit fee to cover the county administrator’s time in issuing the permit, but not for potential police protection. In the challenge to that fee, the Supreme Court, 5-4, held that the fee was an unconstitutional content-based burden on free speech with the fee set by the officials’ estimate of “the public’s reaction to the speech.”[6]

Proponents of treating certain speech as low-value or subject to regulation because of its emotional impact often assume that such regulations will protect the people and causes they like and only hurt speech that they condemn. History teaches otherwise. All who would change the status quo create discomfort and perhaps even cause emotional distress to those aligned with entrenched powers. Last week, in a New York Times op-ed in support of Judge Ketanji Brown Jackson’s nomination to the Supreme Court, Sherrilyn Ifill, president and director-counsel of the NAACP Legal Defense and Educational Fund, wrote: “This is how change begins — by destabilizing comfortable narratives, with the inclusion of those who have not been seen.”[7] In fact, free speech has its most urgent application when the ideas expressed do not have majority approval.

One need only look at the accusations made in many parts of the country that anything that smacks of racial justice or history constitutes critical race theory and must be suppressed to prevent white schoolchildren from feeling inferior. To that end, Tennessee enacted a law in June that prohibits lesson plans that cause a student to “feel discomfort, guilt, anguish, or another form of psychological distress solely because of the individual’s race or sex.”[8] The blatantly unconstitutional law was not enacted to protect minority students from emotional distress, but to protect the white majority from confronting racism. It, like any carve-out of an exception for low-value, emotionally distressing speech, simply gives those in power the authority to suppress dissent -- and, too often, progress.

[1] 505 U.S. 123 (1992).

[2] It turned out that his philosophy was his argument. Before the Supreme Court, he spoke about “the shiny sword of reason that ousts tyranny” and announced that he hoped his tombstone would read: “The road not taken, but not the speech not given.” Chief Justice Rehnquist responded, “How about the argument not made?” Tony Mauro, “Avowed Racist Flies Solo in Speech Case,” Legal Times, Apr. 13, 1992.

[3] Forsyth Cnty., 505 U.S. at 125-26.

[4] Id. at 126.

[5] Id. at 126-27.

[6] Id. at 134.

[7] Sherrilyn A. Ifill, “Who’s Afraid of Ketanji Brown Jackson?,” N.Y. Times (Mar. 2, 2022), available at  https://nyti.ms/3tAOkaC.

[8] Tenn. Code § 49-6-1019(a)(6).

March 6, 2022 in Appellate Advocacy, Appellate Justice, Current Affairs, Legal Profession, Rhetoric, United States Supreme Court | Permalink | Comments (0)

Saturday, March 5, 2022

Appellate Advocacy Blog Weekly Roundup Saturday, March 5, 2022

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Each week, the Appellate Advocacy Blog Weekly Roundup presents a few tidbits of news and Twitter posts from the past week concerning appellate advocacy. As always, if you see something during the week that you think we should be sure to include, feel free to send a quick note to either (1) Dan Real at DReal@Creighton.edu or on Twitter @Daniel_L_Real or (2) Catharine Du Bois at DuBoisLegalWriting@gmail.com or on Twitter @CLDLegalWriting.

US Supreme Court Opinions and News

  • The Supreme Court reversed a lower court decision and upheld the death sentence for Dzhokhar Tsarnaev, one of the two the Boston Marathon bombers. The lower court’s decision had set aside the death sentence finding that the trial judge may have erred in excluding mitigating evidence. In reinstating the sentence, the Supreme Court ruled that Tsarnaev had received the fair trial guaranteed by the Sixth Amendment. See the order and reports from CNN, The Boston Globe, and the Wall Street Journal.

  • This week, the Supreme Court heard argument in what is being touted as the most important environmental case in more than a decade. The case concerns the scope of the Environmental Protection Agency’s regulatory power, specifically, whether the Agency has authority to regulated power plants’ carbon emissions. But the decision may affect federal regulatory power more broadly. The arguments in the case concern the more central question of the scope of federal agencies authority overall. See links to the transcript and audio of the argument and reports from USA Today, Bloomberg, The Wall Street Journal, and The New York Times.

  • The Supreme Court ruled that state-secrets doctrine protects against the disclosure of black-site locations. A Guantánamo detainee sought information concerning his allegations of torture by CIA contractors. The ruling determined that the information could confirm the location of a CIA black site and that the government could therefore assert national security concerns to protect the information. See the order and reports from The New York Times, USA Today, and The Washington Times.

  • In a second state-secrets case, the Supreme Court overturned the Ninth Circuit and ruled that the government could invoke the state-secret doctrine to block claims alleging that the FBI violated the right to the free exercise of religion when it spied on Mosques after 9/11. The decision, which the Court described as “narrow,” does not block or end the lawsuit but sends it back to the Ninth Circuit to determine whether the secret evidence is core to the government’s defense.  See the ruling and reports from The New York Times and The Los Angeles Times.  

Appellate Court Opinions and News

  • The First Circuit has ruled that a Massachusetts judge can be prosecuted for helping an immigrant avoid arrest. The court rejected the argument that the judge enjoyed immunity for actions taken in her official capacity. See the order and reports from the ABA Journal and Reuters.

In other news

  • Vermont Governor Phil Scott appointed Judge Nancy Waples to be the first woman of color to serve on the Vermont Supreme Court. See the news release and a report from The Burlington Free Press

March 5, 2022 in Federal Appeals Courts, State Appeals Courts, United States Supreme Court | Permalink | Comments (0)