Appellate Advocacy Blog

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

Wednesday, June 29, 2022

Miranda Warnings Are A Right Without A Remedy

Last week’s decision in Vega v. Tekoh did not, on its own, monumentally change the Miranda warnings made famous in pop culture for half a century. Government investigators should still provide the same basic recitation of rights to a suspect in custody before conducting any interrogation, just as they have in the past. But Vega continued a pattern of Supreme Court decisions that have slowly undermined the value of those warnings, largely by declining to provide any meaningful remedy when investigators fail to provide them.

In 2010, Barry Friedman argued that the Supreme Court was engaged in the “stealth overruling” of precedent, with Miranda v. Arizona at the forefront of the trend. He claimed that the Court had slowly chipped away at Miranda’s doctrinal core until almost nothing remained, leaving it so weak that it could even be formally overruled under stare decisis factors that examine the workability of a decision and its alignment with subsequent legal developments. That has largely been achieved by permitting more and more statements taken after a violation of Miranda to be introduced at trial. As Vega noted, the Court has already permitted the introduction of non-Mirandized statements to impeach a witness’s testimony, if the statements are merely the “fruits” of the improper statement, or if officers conducted un-Mirandized questioning to respond to ongoing public safety concerns.

Vega appeared different from those decisions, because on its surface it did not directly implicate the constitutionality of the Miranda warnings or the use of un-Mirandized statements in criminal courts. The case concerned a criminal defendant who was later acquitted, then filed a civil suit against an officer who failed to provide the Miranda warnings. The civil suit sought monetary damages under 41 U.S.C §1983, which allows a citizen to sure for the “deprivation of any rights, privileges, or immunities secured by the Constitution and laws.” Thus, the case concerned whether a violation of Miranda’s rules was a sufficient deprivation of rights to give rise to a section 1983 suit.

Justice Alito’s majority opinion held that it did not. Alito noted that Miranda is only a prophylactic rule to protect Fifth Amendment rights, even if the Supreme Court has subsequently confirmed Miranda as “constitutionally based” and a “constitutional rule” in Dickerson v. United States, 530 U.S. 428, 440, 444 (2000). Although the Miranda rule is of constitutional nature and could not be altered by ordinary legislation, not all Miranda violations also violate the Fifth Amendment—such as when a technical Miranda violation does not result in a compelled statement. Alito also highlighted the myriad ways in which Miranda has been weakened over time—or, as Friedman would argue, has been stealthily overruled. Given Miranda’s weak pedigree, Alito claimed that section 1983 suits based upon Miranda should only be permitted if their value outweighed their costs. He then discounted any value to such suits at all, claiming that they would have little deterrent effect upon officers that might otherwise violate Fifth Amendment rights. The decision thus rejected section 1983 suites based upon Miranda violations.

Alito’s claim that civil liability for Miranda violations would do little to deter officers only makes sense if Miranda is a robust constitutional protection for Fifth Amendment rights. But the Court has already weakened the value of Miranda by limiting its application in the criminal context. As Alito admitted, prosecutors can readily introduce un-Mirandized statements during a criminal trial for a myriad of reasons related to public safety or the limited constitutional nature of Miranda itself. The modern Miranda rule thus provides little deterrent against Fifth Amendment violations. In that context, a civil remedy that likely would add some deterrence while providing a real remedy for those subject to Miranda violations. Allowing section 1983 suits based on Miranda violations would meaningfully change that status quo, despite Alito’s claim that those suits lack any real deterrent value.

What Vega demonstrates is not that Miranda rights have disappeared from the criminal justice landscape, but instead that they have become rights without any practical remedy. Statements obtained in violation of Miranda are routinely introduced in criminal court without any sanction against the violators, and now Vega signals that violators are not likely to face civil penalties either. In light of Miranda’s lack of remedies, it may even be good police practice to avoid Mirandizing suspects in the name of ensuring that incriminating statements emerge. Evidentiary consequences can seemingly always be worked around, and civil penalties are no real threat.

Vega is another step in the same course the Court has been taking for decades. It limits the remedies for a Miranda violation even further—this time in the civil context—ensuring that officers will face few consequences for those violations. Miranda’s place as a “constitutional rule” may not be under threat from Vega, but that is little salve. “Constitutional rule” status seems to afford no real remedies for those who suffer a violation.

June 29, 2022 in Appellate Advocacy, Appellate Justice, Appellate Practice, Appellate Procedure, Current Affairs, Federal Appeals Courts, United States Supreme Court | Permalink | Comments (0)

Tuesday, June 28, 2022

Bluebooking

A recurring discussion on #AppellateTwitter and #LegalWriting Twitter is the importance (or lack thereof) of proper citation format. A recent post said that time spent learning to cite properly was not time well spent. I don’t take the author of that post to mean that citations are unimportant, but the view expresses a writer-centric view of citations rather than a reader-centric view. As writers, and particularly as appellate advocates, we must take a reader-centric view of writing. So, let me explain why I think that time spent learning to cite properly is time well spent.

First, and most obviously, your reader needs to be able to easily find what you’re citing. Judges and their law clerks are busy people. Why make it more difficult for the people who you are trying to persuade to find your source? You must do the work so that they don’t have to.

Next, as Professor Alexa Chew explains in Citation Literacy,[1] citations provide the law-trained reader with important information about the weight of the cited authority.[2] Is it binding or only persuasive? Is it a recent case or well-settled law?[3] Is what is being cited from a concurring or dissenting opinion? All of those things matter to the reader. If you omit part of a citation, or worse, incorrectly cite a source, you’re depriving your reader of important information.

Finally, and as Professor Tracy L. M. Norton pointed out in a post responding to the original Tweet, judges and law clerks use adherence to proper citation format as a proxy for your diligence and attention to detail. I know this to be true from my experience as a law clerk and from talking to other law clerks and to judges. A writer who doesn’t take the time to put citations into proper format is often assumed to have neglected other matters in their writing. Because let’s face it, it doesn’t take much effort to format most citations properly. The answers are right there in the citation manual. You just have to spend some time looking them up.

That said, I don’t mean that you are expected to properly format every part of every citation. It won’t matter if the comma is italicized when it shouldn’t be. What I’m suggesting is that it’s important to do your best to properly format citations so that your reader will know that you pay attention to detail. Doing so will reflect well on you and your work.

Oh, and one practical tip. Don’t blindly rely on the “copy with reference” feature of your favorite online legal research platform. The citations produced by those features are not always correct. For example, the Supreme Court of Ohio has its own citation manual. The Ohio “copy with reference” feature of one legal research platform produces this citation for an Ohio trial court case: State v. Vita, 2015 WL 7069789 (Ohio Com.Pl.) The correct citation format is State v. Vita, Clermont C.P. No. 2015 CR 0071, 2015 WL 7069789 (Oct. 29, 2015).

 

[1] Alexa Z. Chew, Citation Literacy, 70 Ark. L. Rev. 869 (2018).

[2] Id. at 872-73.

[3] We’ll leave what “well-settled” law is for another day.

June 28, 2022 in Appellate Advocacy, Appellate Practice, Law School, Legal Profession, Legal Writing, Rhetoric | Permalink | Comments (0)

Sunday, June 26, 2022

Arguing History

In writing today’s post, it is difficult to overlook the Supreme Court’s predictable rulings on abortion and guns, with a less certain but likely precedent-shattering decision on coach-led public-school prayer. Others will critique the decisions, extrapolate their consequences for issues beyond the cases decided, and speculate about new doctrinal implications. For today, I want to focus solely on the tools it suggests appellate advocates must use.

Dobbs and Bruen place a heightened emphasis on history. It is not the history that originalists who look to the Framers’ intent utilize, but whether an asserted constitutional liberty is “deeply rooted in this Nation’s history and tradition.” In Dobbs, the majority rejected a constitutional right of access to abortion because it held that no historical tradition, common law or otherwise, enabled women to have abortions regardless of the legislative policy choices, before the Constitution’s framing or in its aftermath or even following the ratification of the Fourteenth Amendment. In Bruen, similarly, the Court held text, history, and tradition informed the meaning of the Second Amendment, with the Court holding that history without consideration of possible countervailing government interests dictates the result.

While the decisions fail to take account of constitutionally significant differences in the principles that animate modern society, including, for example, the equal status of women and minorities or the contemporary principle of religious tolerance, an essential approach to argument emerges from the decisions. First, advocates must focus on the relevance of historical analogy. Are historical restrictions on the exercise of a right animated by the same considerations that underlie a modern restriction? Thus, for example, it is well-accepted that online publications receive the same type of free-press protections that publications that emerged from hand-operated printing presses issued in large measure since the time of John Peter Zenger.

Even though Justice Breyer’s Bruen dissent criticized the majority’s use of “law office history,” the majority’s reliance upon it constitutes the order of the day. Justice Thomas’s majority opinion rejects contrarian historical examples as “outliers,” unworthy of bearing constitutional significance. Similarly, Justice Alito’s history of abortion in Dobbs seems to be selective about what history counts.

The two decisions, then, place a burden on an advocate to make the history that favors a position compelling and part of an unbroken narrative (except for insignificant outliers). Messy renditions of history open too many doors to predilection. That historical advocacy, then, also reflect timeless principles consistent with constitutional understandings.

A pure historical approach is not a complete stranger to constitutional law. The Seventh Amendment’s right to trial by jury has long adopted that approach, defining the scope of the right by how it was practiced at common law when the Bill of Rights was ratified. Thus, then-appellate advocate John Roberts won a unanimous victory, written by Justice Thomas, where the Court recognized that jurors have always served as the “‘judges of the damages,’” even under the English common law that predated the Constitution in Feltner v. Columbia Pictures Television, Inc., 523 U.S. 340, 353 (19978) (quoting Lord Townshend v. Hughes, 86 Eng. Rep. 994, 994-995 (C.P. 1677)). The decision hinged, in large part, on close 18th-century analogues to the statutory copyright damages at issue in the case. Similarly, in invalidating administrative procedures utilized by the Securities and Exchange Commission the Fifth Circuit in Jarksey v. SEC, No. 20-61007, 34 F.4th 446, 451 (5th Cir. 2022), relied upon historical analysis to find that “[c]ivil juries in particular have long served as a critical check on government power,” so that the civil enforcement at issue could not be assigned to agency adjudication.

Where constitutional rights are at issue, history has become destiny.

June 26, 2022 in Appellate Advocacy, Appellate Practice, Current Affairs, Federal Appeals Courts, Oral Argument, United States Supreme Court | Permalink | Comments (0)

Friday, June 24, 2022

Appellate Advocacy Blog Weekly Roundup Friday, June 24, 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

  • Today was the penultimate opinion issuance date on the Court calendar. As the term winds to a close, the Court has issued a number of highly anticipated opinions this week, perhaps the most anticipated came today.

    As foreshown by last month’s leaked opinion, for the first time, the Supreme Court has taken away a basic right, a right that has existed for nearly 50 years. Today’s decision in Dobbs v. Jackson Women’s Health Organization overturns Roe v Wade and Planned Parenthood of Southeastern Pa. v. Casey and claims that the right to abortion is not “implicitly protected by any constitutional provision, including . . . the Due Process Clause of the Fourteenth Amendment” because the right to abortion is not “deeply rooted in this Nation’s history and tradition” and “implicit in the concept of ordered liberty.” (quoting Washington v. Glucksberg.) The dissent of Justices Breyer, Sotomayor, and Kagan characterizes the right protected by Roe and Casey as “a woman’s right to decide for herself whether to bear a child.” The dissent defends the rationale of Roe and Casey and questions today’s decision, stating: “It eliminates a 50-year-old constitutional right that safeguards women’s freedom and equal station. It breaches a core rule-of-law principle, designed to promote constancy in the law. In doing all of that, it places in jeopardy other rights, from contraception to same-sex intimacy and marriage. And finally, it undermines the Court’s legitimacy.” The dissent closes: “With sorrow—for this Court, but more, for the many millions of American women who have today lost a fundamental constitutional protection—we dissent.” See the decision and dissent and a sampling of the many reports, which cover the decision and dissent and discuss the consequences of the decision: NPR, The Associated Press, Reuters, and The New York Times.

    Earlier this week, the Court struck a New York law that required a gun-owner to show proper-cause to obtain an unrestricted license to carry a concealed firearm. The Court held that the law violated the Second Amendment right to keep and bear arms. The decision protects an individual’s right to carry a handgun for self-defense outside the home and announced a standard for courts to judge restrictions on gun rights: “The government must demonstrate that the regulation is consistent with this nation’s historical tradition of firearm regulation.” See the decision and reports from New York Times, The Washington Times, The Los Angeles Times, and NPR.

    Also this week:

    • The Court rejected a Maine ban on tuition programs for religious schools, holding that the state cannot exclude religious schools from a state tuition program. See the decision and reports from The New York Times and USA Today.
    • The Court limited Miranda rights, holding that suspects who are not warned about the right to remain silent cannot sue police officers for damages. See the decision and reports from CNN and Bloomberg Law.

Appellate Court Opinions and News

  • The Fourth Circuit affirmed a district court ruling that stuck as unconstitutional a North Carolina charter school rule that required girls to wear skirts. The court ruled that the rule, based on the view that girls are "fragile vessels" deserving of "gentle" treatment, is unconstitutional and that it violated students' equal protection rights as a policy based on gender stereotypes about the "proper place" for girls in society. See the ruling and reports from Reuters and The New York Times.

June 24, 2022 in Federal Appeals Courts, United States Supreme Court | Permalink | Comments (0)

Wednesday, June 22, 2022

Writing like Justice Kagan, part III

Continuing the series on Justice Kagan's writing style--a third and final installment on her opinion in Gundy v. United States. The first and second installments are here and here

13. Teach your audience. "Recall again the provision at issue.  Congress gave the Attorney General authority to 'specify the applicability' of SORNA's requirements." "Note the tense 'was,' not 'is.' This Court has often looked for Congress' choice of verb tense to ascertain a statute's temporal reach, including when interpreting other SORNA provisions. . . . . Here, Congress' use of the past tense to define the term 'sex offender' shows that SORNA was not merely forward-looking." "Now that we have determined what [the statute] means, we can consider whether it violates the Constitution."

Reading Justice Kagan's opinions often feels like a guided tour of the law. She points out and reminds and makes plain the most important parts, as if she's still the law professor and we are all still students. But it's not condescending at all--it feels natural. This same tone might not work for an advocate, but we can all learn how to highlight what we want our audience (judges/justices) to focus on and lead them through our arguments smoothly.

14. A little self-deprecation never hurts. "(Once again, the Reynolds majority noted this history, but Justice Scalia's dissent thought that was gilding the lily. . . . He had a point, but we can't resist)."

What an artful way of acknowledging an opposition position while going against it. Some self-deprecation and acknowledgement of the reasonableness of your opponent's position is disarming and makes the reader more receptive to what you have to say.

15. Parentheticals for emphasis. "Gundy makes his stand there (and there only), insisting that the lonesome phrase 'specify the applicability' ends the issue." Within a year of SORNA's enactment (217 days, to be precise), the Attorney General determined that SORNA would apply immediately to pre-Act offenders." Only twice in this country's history (and that in a single year)have we found a delegation excessive--in each case because 'Congress has failed to articulate any policy or standard' to confine discretion." 

A well-placed parenthetical within a sentence feels like someone explaining something in a lower voice or as a quick and sometimes humorous aside. It slows down the reader a bit, but with purpose, and does not drag.

16. Repetition for emphasis. "By contrast, we have over and over upheld even very broad delegations. Here is a sample: We have approved delegations to various agencies to regulate in the 'public interest.' . . . We have sustained authorization for agencies to set 'fair and equitable' prices and 'just and reasonable' rates. . . . We more recently affirmed a delegation to an agency to issue whatever air quality standards are 'requisite to protect the public health. . . . And so forth." 

Here, Justice Kagan uses the rhetorical device of anaphora--repetition at the beginning of a sentence ("we have, we have, we have). She also uses relief (we have, we have, we have, we more recently . . . and so forth) to pleasantly wrap things up. A less skilled writer would have written something stilted like "This Court has repeatedly approved of various delegations," and then buried the lede in case parentheticals, which the reader is likely to skip. Justice Kagan weaves the cases in to make a point. Point made! (Sorry, Ross Guberman :).

17. A well-placed turn of phrase. "It is wisdom and humility alike that this Court has always upheld such 'necessities of government.'"

There are so many less effective ways to say that it's a good idea to uphold statutory delegations of authority. She hit on a memorable and almost poetic one. 

That wraps up this series. It's amazing how much you can learn by paying attention to what good writers do. Always pay attention to Justice Kagan and you'll learn a lot about persuasion. 

June 22, 2022 | Permalink | Comments (0)

Monday, June 20, 2022

All in the Family

Happy Father's Day to all the appellate dads out there--my husband included. We had a rather quiet Father's Day, as one of our junior associates has been under the weather. The lack of sleep associated with the sick junior associate has left me a bit uninspired when it comes to writing. Thankfully, Tony Mauro had a fascinating post on The Marble Palace Blog that is worth sharing and discussing.

Mauro's post, inspired by the recent controversy over Ginni Thomas and her role in former President Trump's efforts to overturn the 2020 election, looks at how "justices' family members--especially when they are lawyers--can raise concerns and recusal issues."  Ginni Thomas is married to Justice Clarence Thomas.

According to Mauro, there are six sitting justices with attorneys in the family. Here is his list:

➤ Chief Justice John Roberts Jr.’s wife, Jane, is a lawyer who is managing partner at Macrae, a legal recruiter company.

➤ Virginia Thomas, as mentioned, is a lawyer.

➤ Stephen Breyer’s brother, Charles, is a lawyer and federal judge, and Justice Breyer recuses himself when a case handled by his brother lands at the Supreme Court.

➤ Samuel Alito Jr.’s son, Philip, is a lawyer and line assistant U.S. attorney in the narcotics unit at the Eastern District of Virginia.

➤ Brett Kavanaugh’s parents, Everett and Martha, are both retired lawyers.

➤ Amy Coney Barrett’s husband, Jesse Barrett, is a partner at the Indiana law firm SouthBank Legal. Her sister Amanda Coney Williams is a lawyer, but it is not certain where she practices. Her father, Michael Coney, was a lawyer for Shell Oil. Justice Barrett did not recuse herself when she participated in a 2021 case in which Shell Oil was a party.

Justices married to attorneys is nothing new. At the beginning of his post, Mauro notes the example of Abe Fortas whose wife Carolyn Agger was an attorney.  Justices Ruth Bader Ginsburg and Sandra Day O'Connor were both married to attorneys.

Moving beyond the highest court in the land, I can think of several other prominent attorney couples.  Current Arizona AG (and U.S. Senate candidate) Mark Brnovich's wife Susan Brnovich is a federal district court judge. Fourth Circuit Judge Diana Gribbon Motz is married to J. Frederick Motz, a Maryland District Court judge. Former Fourth Circuit Judge Allyson Duncan is married to Magistrate Judges William A. Webb. These are just a few examples, I know that there are countless more.

Mauro notes in his blog post that in 1993, seven members of the Supreme Court signed and publicized a recusal policy for when family members were part of a case. In relevant part, the policy stated "Absent some special factor, therefore, we will not recuse ourselves by reason of a relative’s participation as a lawyer in earlier stages of the case. … We shall recuse ourselves whenever, to our knowledge, a relative has been lead counsel below." Of the justices who signed the policy, only Justice Thomas remains on the Court. Perhaps it is time for the Court to revisit this issue. 

June 20, 2022 | Permalink | Comments (0)

Saturday, June 18, 2022

Rejecting Canons of Construction and Following Legislative Intent to Define a Bee As a “Fish”

By now, you've probably heard that a California appellate court deemed bees "fish."   In fact, a truth-checking site, Verify.com, even posted a verification of the claim a court ruled a bee a fish as “true.”   See https://www.verifythis.com/article/news/verify/courts/bees-are-fish-says-california-court-for-conservation-law/536-ae3e9921-2b54-432e-8c51-66fc3e23eca4.  However unusual the idea of a bee as a fish might seem, the opinion from the Third District California Court of Appeal contains some very careful analysis and discussion of long established canons of statutory construction that will be helpful to appellate practitioners.  While the court in Almond Alliance of California v. Fish and Game Commission, __ Cal. App. 4th __ (C093542 May 21, 2022), definitely finessed some points and seemed to reject those canons not helpful to its conclusion, it also gave us an excellent modern discussion of what some canons of construction mean and how they rank against evidence of legislative intent.  

The Almond Alliance dispute involved a new California Fish and Game Commission designation of four types of bumble bees as protected "fish" under California's Endangered Species Act, Fish & G. Code § 2050 et seq.  The Act "directs the Fish and Game Commission (Commission) to 'establish a list of endangered species and a list of threatened species.'"  Almond Alliance, slip op. at 2. 

As the court explained, "The issue presented here is whether the bumble bee, a terrestrial invertebrate, falls within the definition of fish, as that term is used in the definitions of endangered species in section 2062, threatened species in section 2067, and candidate species . . . in section 2068 of the Act."  Id.  Slate.com noted:  because section 45 of the California Endangered Species Act “defines a fish as a ‘wild fish, mollusk, crustacean, invertebrate, amphibian, or part, spawn, or ovum of any of those animals,’” the State and environmental intervenors “argued that the inclusion of the word invertebrate technically allows the act to cover all invertebrates, not just aquatic ones.”  Emma Wallenbrock, The Completely Logical Reason Why a Bee Can Be Considered a Fish Now (June 04, 2022) https://slate.com/technology/2022/06/california-endangered-species-bees-fish.html.

The Almond Alliance court first concluded “the Commission has the authority to list an invertebrate as an endangered or threatened species.”  Next, the court “consider[ed] whether the Commission’s authority is limited to listing only aquatic invertebrates [and] conclude[d] the answer is, “no.”  Slip op. at 2. 

At the heart of the court’s decision is the use of legislative history to define “fish” and “invertebrate.”  The court begins this analysis by explaining:

Although the term fish is colloquially and commonly understood to refer to aquatic species, the term of art employed by the Legislature in the definition of fish in section 45 is not so limited.  We acknowledge the scope of the definition is ambiguous but also recognize we are not interpreting the definition on a blank slate. The legislative history supports the liberal interpretation of the Act (the lens through which we are required to construe the Act) that the Commission may list any invertebrate as an endangered or threatened.  

Id. at 2-3. 

Over the next 32 pages, the Almond Alliance court supports this conclusion by using a small number of past appellate cases, rejecting some canons of construction, and analyzing a significant amount of legislative language and history.  I strongly recommend reading the whole opinion, but I will summarize a few of the canons of construction the court rejected here.

First, the court reminded the parties of the general, underlying rule that courts must apply statutes as written, and “[i]f there is no ambiguity, we presume the lawmakers meant what they said, and we apply the term or phrase in accordance with that meaning.“   Almond Alliance, slip op. at 19.  According to the court, “[i]f, however, the statutory terms are ambiguous, then we may resort to extrinsic sources, including the ostensible objects to be achieved and the legislative history.”  Id.  Thus, “’[o]ur fundamental task . . . is to ascertain the intent of the lawmakers so as to effectuate the purpose of the statute.’” Id., quoting California Forestry Assn. v. California Fish & Game Commission, 156 Cal. App. 4th 1535, 1544-1545 (2007).   “Where . . . the Legislature has provided a technical definition of a word, we construe the term of art in accordance with the technical meaning,” and “we are tasked with liberally construing the Act to effectuate its remedial purpose.” Id. at 19-20.

Second, the court rejected petitioners’ rule against surplusage canon argument that applying the section 45 definition of “fish” as including invertebrates here would write the listing of “amphibians” out of other sections.   The court explained the “rle against surplusage . . . provides courts should “avoid, if possible, interpretations that render a part of a statute surplusage.”  Id. at 20.  Interestingly, the court recognized a “textual tension with the Legislature’s inclusion of amphibian in [some] sections,” but noted:  “the rule against surplusage is not, however, an infallible canon. The canon is merely a “guide for ascertaining legislative intent, it is not a command.”  Id. 

Next, the Almond Alliance court rejected “petitioners’ argument that the noscitur a sociis canon should be applied to read ‘a native species or subspecies of a bird, mammal, fish, amphibian, reptile, or plant’ in sections 2062, 2067, and 2068, as encompassing only vertebrate animals.”  Id. at 21.  The court dismissed this idea because, “[p]lainly, section 45 expressly includes invertebrates within the definition of fish.”  Id.

Third, after a lengthy discussion legislative history, the Almond Alliance court considered “petitioners’ suggested application of the noscitur a sociis canon,” which “means ‘a word takes meaning from the company it keeps.’”  Id. at 33.  Under this rule, a “word of uncertain meaning may be known from its associates and its meaning ‘enlarged or restrained by reference to the object of the whole clause in which it is used.’” Id.  “In accordance with this principle of construction, a court will adopt a restrictive meaning of a listed item if acceptance of a more expansive meaning would make other items in the list unnecessary or redundant, or would otherwise make the item markedly dissimilar to the other items in the list.” Id

The Almond Alliance court “decline[d] to apply the statutory interpretation canon here because:   

If we were to apply the noscitur a sociis canon to the term invertebrate in section 45 to limit and restrict the term to aquatic species, as petitioners suggest, we would have to apply that limitation to all items in the list.  In other words, we would have to conclude the Commission may list only aquatic mollusks, crustaceans, and amphibians as well. Such a conclusion is directly at odds with the Legislature’s approval of the Commission’s listing of a terrestrial mollusk [the bristle snail, a land invertebrate  previously protected] and invertebrate as a threatened species. Furthermore, limiting the term to aquatic would require a restrictive rather than liberal interpretation of the Act, which is also directly at odds with our duty to liberally construe the remedial statutes contained therein.

Id. at 33-34.

Based on its review of legislative history and rejection of petitioners’ arguments, the court concluded “the Commission may list any invertebrate,” including a terrestrial invertebrate, as an endangered or threatened species under 2062 and 2067.”  Therefore, the Almond Alliance court ruled the Commission could designate a bee as a “fish” for purposes of the Endangered Species Act.  Id. at 35.  As Emma Wallenbrock noted for Slate:  “It’s unclear whether this is a permanent victory, as the agricultural groups may decide to take the case to the California Supreme Court,” but the ruling could be “good news for the bees—and good news for our stomachs, too” because the “Center for Food Safety, states that “one out of every three bites of food we eat [comes] from a crop pollinated by bees.”  Wallenbrock, Why a Bee Can Be Considered a Fish Now, https://slate.com/technology/2022/06/california-endangered-species-bees-fish.html.  Even if this possible “good news” falls on review, the case certainly provides an interesting discussion of canons of construction.

June 18, 2022 in Appellate Advocacy, Appellate Justice, Appellate Practice, Appellate Procedure, Current Affairs, Legal Profession, Legal Writing, State Appeals Courts | Permalink | Comments (1)

Thursday, June 16, 2022

Seizing Control of Your Argument

When writing an appellate brief, an advocate has the one true opportunity to seize control of the argument (unlike during oral argument, which often is hijacked by a judge). Don't waste this opportunity to tell the appellate court exactly what it should do and why it should do it. There are ways to make the argument yours, steering it in the direction you want the court to go.

I often find that law students writing appellate briefs for the first time are hesitant to seize control of their argument. They frequently lack confidence because they are inexperienced and feel they lack sufficient knowledge to tell the court what the law is and how it should rule.

Of course, nothing makes up for experience and knowledge. Even attorneys with experience and knowledge, though, have problems with persuasive writing. Being persuasive is about making your argument with confidence, and as someone once said: you don't have confidence; you do confidence.

It goes without saying that a good appellate advocate must know the facts of the case and the law that applies to the case inside and out. That obviously is a good start. But what can a appellate advocate do to ensure that the document is a persuasive appellate brief and not an objective essay or law review article? Well, there are a few tools and strategies that all good appellate advocates should think about using but often don't.

  • Use favorable facts in the Questions Presented to make them persuasive. This preliminary portion of an appellate brief often is overlooked. And advocates frequently include no facts in them even though that is what often makes or breaks an argument. Even appellees usually can use facts to frame the questions in a way that favors their position.
  • Make sure to write a persuasive--but honest and accurate--Statement of the Facts. The fact statement should tell a story, not recite testimony. A good appellate advocate can tell a story in such a way that the reader wants to rule for that advocate's client before even reading the actual legal argument. Emphasize the good facts by placing them in places of importance in the story. And don't forget to include favorable background facts, even if they aren't outcome determinative, if they can contribute to the overall pathos of your brief. While you can't leave out relevant facts that are bad for your position, there are ways to downplay them (for instance, burying them in the middle of a paragraph or using passive voice in stating them).
  • Start each main argument section with an introductory paragraph that includes your thesis for that section--what is your contention? Put this in definitive and assertive terms.
  • Write general rules--if possible--in a way that favors your client. Some advocates consider general rules as neutral statements that set up the persuasive argument but aren't really part of it. However, this portion of the argument should not be ignored. If there is a way to state a general rule that is positive for your side--but, of course, still accurate--don't be afraid to state it that way.
  • Use topic sentences. This particularly is important when using a case to illustrate a rule. Why let the reader decide what he or she thinks about the case you are discussing? Tell the reader upfront what the case means before describing its facts and holding. In many ways, this topic sentence will be like a sub-rule inferred from the case. Make sure to not use a general rule you already have stated as your topic sentence; make it is something new and more specific than the general rules.
  • Include strong concluding paragraphs in each section of your argument. This is the opportunity to again state your ultimate thesis, and it never hurts to tell the reader again.
  • Don't be afraid to tell the appellate court what it should do. For whatever reason, the word should usually is assertive enough without going over the line. Many, if not most advocates, would not go so far as to tell a court what it must do.

Seizing control of the argument in a brief means making it easier for the reader to understand your position and to believe it is the only right position. Your argument will be easier to understand and more convincing if you use various persuasive tools and strategies like the ones set out above.

June 16, 2022 | Permalink | Comments (0)

Sunday, June 12, 2022

Knowing When to Sit Down

Years ago, I witnessed a portion of an argument before the Supreme Court of India that was then in its third day with additional anticipated days of argument remaining. When I spoke to members of the Supreme Court bar afterwards, one experienced lawyer expressed astonishment that U.S. Supreme Court arguments were 30 minutes per side. How, he asked, is a lawyer going to “warm up” in that amount of time?

Last week, I argued a case in the Seventh Circuit. It rekindled memories of that trip to India, not because more than the usual amount of time was allotted, but because of how little time was needed. I represented the Appellee with 15 minutes of argument time. I was also in the unusual position of having three recent sister circuits ruling in favor of my position, along with more than 100 district court decisions. Even though I had suggested in my brief that argument would not further inform the court, oral argument was ordered.

My opponent was largely relegated to policy arguments. I planned three different approaches to my argument depending on how my opponent had faired. As expected, the Court was well prepared and pummeled my opponent with questions that could have come from my brief. He ended up using his entire 15 minutes responding to questions and reserved no time for rebuttal.

 As I stood at the podium, the presiding judge immediately asked questions about whether any circuit had issued new decisions on our issues since I had filed a 28(j) letter in March and whether any other similar cases from within the circuit were pending on appeal. When I answered no to both questions, I was finally able to introduce myself. While I used a small amount of time to add favorable precision to some statements made during my opponent’s time at the podium, the questions from the bench tended to focus on whether a narrow decision would be sufficient to affirm our motion for remand, where the defendant had removed claiming federal-officer removal, complete preemption, and an embedded federal question. I understood the panel’s questions to favor affirmance. As the questions wound down, I realized the court was satisfied and that no further argument was necessary. I simply said that, unless there were any further questions for me, I ask that the district court be affirmed.

When I did so, about seven of my 15 minutes remained. Using more time was both unnecessary and likely counterproductive. The judges also likely appreciated my decision to end the argument early. From my perspective, even though the decision is under advisement, the argument seemed to go very well – even if I had not had the amount of time to warm up!

June 12, 2022 in Appellate Advocacy, Appellate Practice, Federal Appeals Courts, Oral Argument | Permalink | Comments (0)

Saturday, June 4, 2022

A Few Commonsense Tips on How to Persuade Judges (and People)

It’s not that difficult to be persuasive. Below are a few tips to increase the persuasive value of your arguments.

1.    Keep it simple, talk like a normal human being, and get out of the weeds.

If you want to persuade a court (or anyone), simplify your narrative. Think of it this way: if you had only one sentence to explain why a court should rule in your favor, what would you say? If you had only thirty seconds to explain why the Second Amendment protects an individual right to bear arms, what would you say? Simplifying your narrative, making complex concepts easily understandable, and staying “out of the weeds” is critical to effective advocacy.

After all, judges (and people generally) have short attention spans. They’re busy and often under considerable stress. So, get to the point immediately and do so in a manner that makes your argument clear and persuasive. Use simple words. Don’t state the obvious. Make sure your argument is structured logically and presented concisely. And get to the bottom line – quickly. Tell the court what you want and why it should rule in your favor. Consider the following example of an attorney arguing that there is no hate speech exception to the First Amendment:

Attorney: May it please the Court, the First Amendment is a bedrock, indeed the backbone, of our freedom in this country. As the historical record shows, the First Amendment was designed to create a marketplace of ideas in which the perspectives and political views of individuals from all segments of society must be respected and unregulated. As the federalist papers demonstrate, as John Marshall argued in 1788, and as countless law review articles that nobody reads confirm, the First Amendment is the essential safeguard of, and the impregnable sanctuary protecting, citizens’ right to disseminate commentary on matters apposite to political and social discourse. To be sure, the First Amendment is the catalyst for a democracy that can withstand the threats that tyranny poses and that authoritarianism endorses.

This is utterly ridiculous. If anything, this nonsense supports restricting First Amendment rights, if for no other reason than to spare the court from having to listen to this gibberish. A better approach would be as follows:

Attorney: The First Amendment protects unpopular, offensive, and distasteful speech to ensure that individuals can share diverse perspectives on matters of public concern. A hate speech exception would, by intent and in effect, allow the government to prohibit speech based on disagreement with its viewpoint and content. And the subjectivity inherent in this determination would present a threat to citizens of every political persuasion.

Again, this isn’t perfect, but you get the point. Keep it simple and direct.

2.    Address the court’s questions and concerns.

Judges don’t care about what you want to argue. They care about whether you can address their concerns and respond in a way that makes them want to rule in your favor. For that reason, your answers to the court’s questions are critical to your chances of succeeding on the merits. If you evade a court’s questions, both your credibility and the persuasiveness of your argument will diminish substantially.

Imagine, for example, a relationship where a husband is upset because his wife is working long hours and not dedicating sufficient time to the relationship. Consider the following dialogue:

Husband: I feel like you don’t care about our relationship. You work at the law firm seven days a week and talk more about the Fourteenth Amendment than you do about our future. It’s like I don’t matter to you at all.

Wife: Look, I work eighty hours a week and without my salary, we wouldn’t be able to live in this house or send our kids to the best schools. I’m not expecting a medal, but a thank you now and then would be nice.

Yeah, these two are likely headed for a divorce – and for good reason. Why? Because the wife didn’t acknowledge and address the husband’s concern and therefore made no attempt to resolve the conflict. If you do this as an advocate, your argument will likely fail. Consider, for example, the following dialogue between an attorney and a justice on the United States Supreme Court:

Justice on Supreme Court: Counselor, Roe v. Wade is not based on any reasonable interpretation of the Constitution’s text and is based on a theory – substantive due process – that makes no sense. Where in the Constitution can this Court find a right to abort a pregnancy?

Attorney: Your Honor, Roe v. Wade has been the law of the land for fifty years, and overturning Roe now would seem like a brazenly political decision.

That nonsensical response is the equivalent of saying, I don’t care about your question or your concerns. Such an approach will diminish your credibility, reduce the persuasiveness of your argument, and alienate the justices. A better response would be as follows:

The right to abortion is firmly rooted in the liberty protected under the Fourteenth Amendment, which this Court has affirmed numerous times, such as in Planned Parenthood v. Casey, and this right reflects the underlying purpose of the text, which is to ensure the liberty, equality, and bodily autonomy of all persons.

This response, although not perfect, responds directly to the justice’s concerns.

3.    Acknowledge weaknesses in your argument.

Nobody is perfect, as the Johnny Depp-Amber Heard trial so clearly showed. And no argument is perfect. You will almost always have to address unfavorable facts or law. That’s not necessarily a bad thing, though, because it gives you an opportunity to explain why unfavorable facts or law do not affect the outcome you seek.

The worst thing that you can do, however, is to evade, minimize, or offer unpersuasive explanations for unfavorable facts or law. For example, in the Johnny Depp trial, Depp’s attorney, Camille Vasquez, highlighted that while Amber heard had pledged to donate the money from her divorce settlement with Depp to charity, she hadn’t actually donated the money. Heard should have simply acknowledged this point. Instead, she claimed that, in her view, the words pledged and donated are synonymous.

Whatever.

That was bad.

Very bad.

And very damaging to her credibility.

4.    Be passionate and emotional (when appropriate).

It’s important, as an advocate, to show that you care. That you are emotionally invested in your client and your case. When you show genuine passion and emotion, it conveys that you believe strongly in your argument and in the remedy that you seek. For example, Camille Vasquez’s cross-examination of Amber Heard demonstrated that Vasquez believed strongly that Heard was lying and that Depp had been defamed. In essence, believing in your argument increases the persuasive value of what you say. After all, imagine if you proposed marriage to your partner in a monotone voice and with no emotion whatsoever? The answer would likely be no.

5.    Be likable and relatable.

This doesn’t require much explanation. People hate jerks (and there are many jerks lurking in the legal profession). So, don’t be a jerk. Don’t be arrogant. Don’t gossip. Don’t judge. Be a nice person. Respect people with whom you disagree. Be honest. Be compassionate. Courts and people are more likely to empathize with others that they like.

June 4, 2022 in Appellate Advocacy, Appellate Practice, Law School, Legal Profession, Legal Writing, Moot Court, Oral Argument | Permalink | Comments (1)

Friday, June 3, 2022

Appellate Advocacy Blog Weekly Roundup Friday, June 3

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.

Supreme Court News and Opinions:

This was a relatively quiet work at the Supreme Court, as the Court did not issue any opinions this week.  Nonetheless, the Court faces a substantial task in completing its work as the end of the term approaches.   As of now, the Court has more than 30 decisions still outstanding in argued cases.  The Roberts Court has traditionally gotten all of its cases out by the end of June.

On Tuesday, the Court issued a brief order in which it blocked a controversial Texas law that sought to bar large social media platforms from removing posts based on the viewpoints expressed.  Chief Justice Roberts and Justices Kavanaugh, Barrett, Breyer, and Sotomayor joined together to vote in favor of putting the law on hold, while Justices Thomas, Alito, Gorsuch, and Kagan dissented.

Also on Tuesday, the Court issued a brief order in which it rejected a request from three Texas lawmakers to delay giving depositions in lawsuits challenging redistricting plans in the state.  No dissents were noted.

State Appellate Court Opinions and News:

On Wednesday, the presiding justice of the California appeals court in Sacramento retired as part of punishment announced for his delays in resolving 200 cases over a decade.  The Commission on Judicial Reform in the state said that the Justice "engaged in a pattern of delay in deciding a significant number of appellate cases over a lengthy period."

Appellate Jobs:

The Washington State Attorney General's Office is hiring an Assistant Attorney General for its Torts Appellate Program.  The division defends state agencies, officials, and employees when sued in tort and in some civil rights matters.

June 3, 2022 in Appellate Advocacy, Appellate Justice, Appellate Practice, Federal Appeals Courts, Legal Ethics, Legal Writing, State Appeals Courts, United States Supreme Court | Permalink | Comments (1)