Saturday, July 30, 2022
Writing an excellent appellate brief is an arduous task. The quality of your writing, coupled with how you organize and present your arguments, can make the difference between winning and losing. Below are a few tips that can enhance the persuasive value of your appellate brief.
1. Start strong and get to the point quickly.
Writing an appellate brief is, in many ways, like writing a fiction novel or directing a movie. Great books and movies begin powerfully, with a riveting opening chapter or scene. Likewise, in an appellate brief, you should begin with a persuasive introduction that captures the reader’s attention and that does the following:
- Tells the court in one sentence why you should win.
- States clearly what remedy you are seeking.
- Explains why the court should rule in your favor.
- Presents the strongest facts and legal authority that support your argument.
Drafting a powerful, persuasive, and concise introduction is your first – and often most important – opportunity to convince a court to rule in your favor.
2. Focus on the facts.
In most instances, the facts – not the law -- win cases.
An outstanding appellate brief, like a great fiction novel or academy award-winning movie, tells a compelling story. That story, among other things, is well-written, flows logically, keeps the reader’s attention, emphasizes the facts most favorable to your position, explains why unfavorable facts do not affect the outcome you seek, and demonstrates why a ruling in your favor is the fairest and most just result.
To be sure, laws, statutes, and constitutional provisions are often broadly worded and subject the different interpretations, and precedent is usually distinguishable. For example, determining whether a particular search is unreasonable under the Fourth Amendment, or whether a punishment is cruel and unusual under the Eighth Amendment, depends substantially on the court’s independent judgment and, to a lesser extent, subjective values.
As such, a court’s ruling is likely to turn on the facts of each case, which makes your statement of facts the most critical section of your brief. A powerful statement of facts, like a compelling introduction, can often determine your likelihood of winning.
3. Adopt a more objective tone.
Appellate judges understand that your job is to advocate zealously on your client’s behalf. The best advocacy, however, is often achieved by adopting a more objective tone that does the following:
- Confronts effectively and persuasively the weaknesses in your argument (e.g., by distinguishing unfavorable facts and precedent).
- Explains how a ruling in your favor will affect future cases and litigants.
- Considers the policy implications of a ruling in your favor.
- Addresses institutional considerations, such as how the public might react to a ruling in your favor.
- Acknowledges the merits of the adversary’s argument but explains why your argument produces the most desirable result.
Focusing on these issues will enhance your credibility with the court and demonstrate that you have fully considered the competing factual, legal, and policy aspects of your case.
4. Break the rules – sometimes.
When writing, rewriting, and revising your brief, do not focus exclusively or even predominantly on, for example, whether every sentence complies with the Texas Manual of Style, whether you have eliminated the passive voice, or whether you avoided using italics or bold.
Instead, focus on whether your story is compelling and consider whether your brief accomplishes the following goals, among others:
- Captures the reader’s attention from the beginning.
- Emphasizes the most favorable facts and law immediately and throughout the brief.
- Appeals to emotion where appropriate.
- Exposes the logical flaws in your adversary’s argument.
- Uses metaphors or other literary devices to enhance persuasion.
- Ends powerfully.
Sometimes, this requires you to break the rules. For example, assume that you are appealing a jury verdict against your client, a popular media personality, on the ground that one of the jurors lied on the jury questionnaire to conceal biases against your client. On appeal, you write the following:
During jury selection, potential jurors were asked whether they harbored any disdain for or bias toward my client, who is a controversial public figure due to his perceived conservative views. Juror No. 16, who was empaneled on the jury, stated that “I do not dislike or have any bias toward the defendant. I respect diverse points of view because they are important to ensuring the free exchange of ideas.” After the jury reached its verdict, however, an article on Juror No. 16’s blog surfaced that stated, “any conservative media commentator should burn in hell, and I would do anything to erase these people from the planet.” Additionally, one week after the verdict, when Juror No. 16 was questioned about this comment, he stated, “Look, I don’t give a s*** what people say about me. Sometimes, the ends justify the means, and I did what I did because people like that jerk need to be silenced.” Surely, Juror No 16’s first comment unquestionably supports overturning the jury’s verdict. But if there is any doubt, Juror No 16’s second comment was the straw that broke the camel’s back.
This is not perfect, of course, but you get the point. Sometimes, to maximize persuasion, you must break the rules.
5. Perception is reality – do not make mistakes that undermine your credibility.
Never make mistakes that suggest to the court that you lack credibility. This will occur if your brief contains the following mistakes, among others:
- Spelling errors
- Long sentences (i.e., over twenty-five words)
- Excessively long paragraphs (e.g., one paragraph occupying an entire page)
- Failure to comply with the local court rules
- Over-the-top language (e.g., unnecessary adjectives, insulting the lower court or adversary)
- Inappropriate language (e.g., “the respondent’s arguments are ridiculous and stupid”)
- Fancy or esoteric words (e.g., “the appellant’s meretricious argument ipso facto exacerbates what is an already sophomoric and soporific argument that, inter alia, manifests a duplicitous attempt to obfuscate the apposite issues.”) This sentence is so bad that writing something like this in a brief should be a criminal offense.
- Avoiding unfavorable facts or law
- Requesting relief that the court is not empowered to grant
- Including irrelevant facts or law in your brief (and including unnecessary string cites)
Avoid making these and other mistakes at all costs.
6. The law will only get you so far; convince the court that it is doing the right thing by ruling for you.
Ask yourself whether your argument produces the fairest and most just result. Judges are human beings. They want to do the right thing. They do not go to sleep at night saying, “I feel so good about my decision today because I made sure that we executed an innocent person.” Put simply, judging is both a legal and moral endeavor. As such, convince a judge that the result you seek is the right result as a matter of law and justice.
Thursday, July 28, 2022
One of the most overlooked sections of an appellate brief is the Statement of Facts. But it shouldn't be. A good Statement of Facts can get a judge on your side before he or she even reads the Argument. Part of the problem with writing good fact statements is that it's hard. It takes work, and it means being intentional about using persuasive devices and tactics while staying true to the evidence presented in the court below. With apologies to Detective Joe Friday of Dragnet, the Statement of Facts is more than "Just the Facts." Here are some tips for writing a better, more persuasive, fact statement.
- Just do it. Appellants, generally speaking, are required to include a Statement of Facts. But even if you represent an appellee and your jurisdiction's rules say that you can dispense with including a Statement of Facts, do it anyway! Why let the appellant control the narrative? Undoubtedly, the appellant will be represented by a persuasive advocate who presents the facts in the light most favorable to the appellant. And sometimes the appellant's brief will omit, accidentally or purposely, some of the best facts for the appellee's argument.
- Put It Off. Procrastination can be a good thing when it comes to writing the Statement of Facts. Consider drafting the fact statement after completing the Argument (or at least after completing a draft of the Argument). While you need to know the evidence thoroughly in order to put together an argument, leaving the fact statement for later allows you to better understand what needs to be included and what can be omitted. Remember that every fact mentioned in the Argument should be set out in the Statement of the Facts; there should be no facts in the Argument that come as a surprise to the reader.
- Be an Omniscient Observer. If possible, write the facts as though seen from the viewpoint of an omniscient observer. Avoid writing facts by reporting what a witness testified (although you may want to do this when setting out the other side's evidence to downplay that evidence). Just repeating the testimony does nothing to help the Court, and it doesn't make your brief more persuasive. Synthesizing a lot of eyewitness testimony into a coherent story often isn't easy, but it is worth it.
- Be a Storyteller. Speaking of stories, you want your reader to be able to identify the protagonist, the antagonist, and other archetypal characters of your story from the fact statement. You want the reader to fully understand the plot of your story, the arc of the plot, and the climax. While chronological order often works best, fact statements occasionally work well by starting with the climax.
- Bury Bad Facts. You can't just ignore bad facts. If they potentially impact the outcome of the appeal, bad facts must be included. But there are ways to minimize the impact of bad facts. The concepts of primacy and recency--that the first and last parts of an argument, a paragraph, or even a sentence command the most attention from and impact the reader the most--should be considered. By placing facts bad for your argument in the middle of a paragraph between facts good for your argument, you can draw the reader's attention to the facts that most help your position and away from those that do not.
- Be Selectively Passive. We all have heard that passive voice should be avoided. Generally, that's true. However, there are exceptions. Using passive voice to state bad facts makes those facts drier, more mundane, less memorable, and generally less harmful to your argument. Use passive voice sparingly. But don't hesitate to use it when it will help your cause.
- Have a Theme. The theory of your argument is why you should win based on the law. The theme, on the other hand, is why you should win based on the reader's values. It is the emotional center of your case. Use facts to highlight your theme and to tell the reader why you should win on an emotional level.
- Use Background Facts. In creating a story with a theme, you invariably will find you need to include facts that aren't necessary for the portion of your argument that is based strictly on logic and legal precedent. These background facts nevertheless can be valuable in creating the emotional tug you want to have in the fact narrative. Just be sure not to overdo it because you risk overwhelming your reader with irrelevant facts.
- Make It Memorable. One way to make your Statement of Facts memorable is to give it a little flair. Using figures of speech can help. You probably want to save the metaphors and similes for the Argument, but other figures of speech like alliteration can go a long way toward making your writing more eloquent. Of course, this too is something you won't want to overdo.
- Emulate Excellent Examples. The way jurists write is somewhat different from the way practitioners write, but we still can learn a lot from them. Below are examples of facts taken from the majority and dissenting opinions of the United States Supreme Court decision in Atkins v. Virginia, 536 U.S. 304 (2002), a case in which the Court decided that criminal defendants with an intellectual disability cannot be subjected to capital punishment. Because the resolution of the case was not dependent on the specific facts, each opinion used only one paragraph to set them out. Both fact statements are honest, but each is written undoubtedly in an attempt to sway the reader.
At approximately midnight on August 16, 1996, Atkins and William Jones, armed with a semiautomatic handgun, abducted Eric Nesbitt, robbed him of the money on his person, drove him to an automated teller machine in his pickup truck where cameras recorded their withdrawal of additional cash, then took him to an isolated location where he was shot eight times and killed.
Atkins, 536 U.S. at 307.
Justice John Paul Stevens, writing for the majority, included this one lengthy sentence as the only facts. These facts name the co-perpetrator of the crime, contain very little detail about the crime, and utilize the passive voice when the actual shooter goes unidentified. The theme arguably is that the culpability of Atkins was questionable.
The dissenting opinion, written by Justice Antonin Scalia, also contained only one paragraph of facts.
After spending the day drinking alcohol and smoking marijuana, petitioner Daryl Renard Atkins and a partner in crime drove to a convenience store, intending to rob a customer. Their victim was Eric Nesbitt, an airman from Langley Air Force Base, whom they abducted, drove to a nearby automated teller machine, and forced to withdraw $200. They then drove him to a deserted area, ignoring his pleas to leave him unharmed. According to the co-conspirator, whose testimony the jury evidently credited, Atkins ordered Nesbitt out of the vehicle and, after he had taken only a few steps, shot him one, two, three, four, five, six, seven, eight times in the thorax, chest, abdomen, arms, and legs.
Atkins, 536 U.S. at 338 (Scalia, J., dissenting).
In this narrative, unlike the majority's narrative, the co-perpetrator is not named. Many more details are included, among them information that humanizes the victim. Finally, the last sentence uses the active voice to state that Atkins was the one who pulled the trigger and uses a figure of speech (known as iconicity or bulk) to emphasize the number of times the victim was shot, thereby making an emphatic impression upon the reader. The obvious theme of the facts is that Atkins was quite capable of and culpable in carrying out the crime.
Both fact statements are honest, but each subtly (or perhaps not so subtly in the dissent) seeks to seize control of the narrative in an attempt to influence those who may be reading the opinions. The point here is not that we have as much leeway to write like a Justice, because we may not. But the point is that we can use various devices and tactics to make a fact statement more powerful and persuasive.
The Statement of Facts shouldn't be overlooked or be an afterthought when writing an appellate brief. It should be a tool to grab the reader's attention and get the reader on your side from the very beginning. The value of a persuasive fact statement makes it well worth the work required to put it all together.
Wednesday, July 27, 2022
Chief Justice Roberts--along with Justice Kagan--has long been reputed to be one of the best writers on the current court. This week I'm going to take a look at Chief Justice Roberts's style using his majority opinion in Trump v. Vance, which struck me as a particularly Robertsy opinion.
1. Open strong. "In our judicial system, 'the public has a right to every man's evidence.' Since the earliest days of the Republic, 'every man' has included the President of the United States. Beginning with Jefferson and carrying on through Clinton, Presidents have uniformly testified or produced documents in criminal proceedings when called upon by federal courts. This case involves--so far as we and the parties can tell--the first state criminal subpoena directed to a President. The President contends that the subpoena is unenforceable. We granted certiorari to decide whether Article II and the Supremacy Clause categorically preclude, or require a heightened standard for, the issuance of a state criminal subpoena to a sitting President."
This intro has a little history, a little drama, and is overall a great setup for the opinion. Personally, I would have added the conclusion up front: "We hold that they do not." As it is, the opening has the two premises of a syllogism, while letting the reader draw their own preliminary conclusion.
2. Be efficient with the facts and procedure sections. In slightly less than two pages, Roberts lays out all the important facts and procedure that he will draw on later. Particularly in a multi-issue case, that level of efficiency is going to be hard to reach. But skillfully paring down the record to its bare essentials is a skill that too few attorneys hone. Too many briefs are littered with facts and procedural history that don't affect the issue(s) on appeal. This is especially true of things like dates. If your reader sees information, she's going to assume that it's important and try to hold on to it for later. But if you give too many details, she loses patience and starts to skim, which will not help you to persuade her. Give your reader what she needs to decide the issue--no more, no less.
3. Change up your syntax. "Fallen from political grace after his fatal duel with Alexander Hamilton, and with a murder charge pending in New Jersey, Burr followed the path of many down-and-out Americans of his day—he headed West in search of new opportunity." "Wary of being exposed as the principal coconspirator, Wilkinson took steps to ensure that any blame would fall on Burr."
The basic and usual sentence structure in English is subject (with adjectives), verb (and any adverbs), object (again, with adjectives). Because this is the expected order, changing things up a bit can grab--and keep--your reader's attention. The Chief often flirts with dangling modifiers and the passive voice by putting the subject later in the sentence and verbs up front. This focuses the reader on the action rather than the actor, and makes for compelling reading.
4. Weave good source language into your prose rather than using block quotes. "At common law the “single reservation” to the duty to testify in response to a subpoena was “the case of the king,” whose “dignity” was seen as “incompatible” with appearing “under the process of the court.” Id., at 34. But, as Marshall explained, a king is born to power and can “do no wrong.” Ibid. The President, by contrast, is “of the people” and subject to the law. Ibid. According to Marshall, the sole argument for exempting the President from testimonial obligations was that his “duties as chief magistrate demand his whole time for national objects.” Ibid. But, in Marshall’s assessment, those demands were “not unremitting.” Ibid.
A lazy legal writer who comes across helpful language will just block quote it, thinking, "Well, he said it better than I can." While that may be true, remember that most readers don't have the patience to read block quotes. If you're okay with your reader skipping that, then go ahead. But presumably you're block quoting because the material is helpful and persuasive. Roberts deftly weaves his predecessor's language into his narrative without just giving it to the reader in a big chunk. If you must use a block quote (and sometimes you must), at least introduce it with an intro (and perhaps an outro) that tells the reader the gist of what you want her to get out of it.
5. The versatile dash. Roberts uses dashes to good effect for various purposes. For helpful reminders: "As to the dismissal, the Court of Appeals held that Younger abstention was inappropriate because that doctrine’s core justification—“preventing friction” between States and the Federal Government—is diminished when state and federal actors are already in conflict, as the district attorney and the President were." The bookend to Marshall’s ruling came in 1974 when the question he never had to decide—whether to compel the disclosure of official communications over the objection of the President—came to a head. For important qualifiers: "While the arguments unfolded, Jefferson, who had received word of the motion, wrote to the prosecutor indicating that he would—subject to the prerogative to decide which executive communications should be withheld—“furnish on all occasions, whatever the purposes of justice may require.” For interesting asides: "His Attorney General, William Wirt—who had served as a prosecutor during Burr’s trial—advised Monroe that, per Marshall’s ruling, a subpoena to testify may “be properly awarded to the President.” "Ford obliged—from a safe distance—in the first videotaped deposition of a President." For dramatic pause: "Burr followed the path of many down-and-out Americans of his day—he headed West in search of new opportunity." For emphasis: "In addition, the Executive can—as the district attorney concedes—argue that compliance with a particular subpoena would impede his constitutional duties."
There are five punctuation marks in English that indicate pause. From shortest to longest pause, they are: the comma, the semicolon, the colon, the dash, and the period. Each one helps your reader catch his breath--to varying degrees--before taking in the next point. Dashes are often underused, and can effectively break up the flow for emphasis and relief.
6. Italics for emphasis. The meaning of a sentence can often depend on which word(s) one emphasizes. For a reader, italics provide the best way to emphasize a word in your head and get at what the writer is saying. Roberts uses italics well and always on purpose to read the sentence in his intended way and to draw attention to important distinctions: "This case involves—so far as we and the parties can tell—the first state criminal subpoena directed to a President."; "The history surveyed above all involved federal criminal proceedings. Here we are confronted for the first time with a subpoena issued to the President by a local grand jury operating under the supervision of a state court." "But the President, joined in part by the Solicitor General, argues that state criminal subpoenas pose a unique threat of impairment and thus demand greater protection. To be clear, the President does not contend here that this subpoena, in particular, is impermissibly burdensome. Instead he makes a categorical argument about the burdens generally associated with state criminal subpoenas, focusing on three: diversion, stigma, and harassment." "But the President is not seeking immunity from the diversion occasioned by the prospect of future criminal liability." "The President’s objection therefore must be limited to the additional distraction caused by the subpoena itself."
7. Focus on topic sentences. If a reader skipped everything but the first sentence of each paragraph, could she follow your argument? If so, you've got yourself some good topic sentences. They should make the primary assertion on that point, and the rest should just be filling in the details. Go through the opinion and just read the topic sentences--they flow beautifully and get all the major points across.
8. Lists, lists, lists. When I was getting ready for my first oral argument, an experienced colleague told me to distill my main points into lists. "Judges love lists," he said. That advice has served me well over the years. Lists can also be very helpful in writing to help guide your reader through a point, as Roberts shows: "And, while we cannot ignore the possibility that state prosecutors may have political motivations, . . . here again the law already seeks to protect against the predicted abuse. First, grand juries are prohibited from engaging in “arbitrary fishing expeditions” and initiating investigations “out of malice or an intent to harass.” . . . These protections, as the district attorney himself puts it, “apply with special force to a President, in light of the office’s unique position as the head of the Executive Branch.” . . . And, in the event of such harassment, a President would be entitled to the protection of federal courts. . . . Second, contrary to JUSTICE ALITO’s characterization, our holding does not allow States to “run roughshod over the functioning of [the Executive B]ranch.” . . . Any effort to manipulate a President’s policy decisions or to “retaliat[e]” against a President for official acts through issuance of a subpoena, . . . would thus be an unconstitutional attempt to “influence” a superior sovereign “exempt” from such obstacles, see McCulloch, 4 Wheat., at 427." "We disagree, for three reasons. First, such a heightened standard would extend protection designed for official documents to the President’s private papers. . . Second, neither the Solicitor General nor JUSTICE ALITO has established that heightened protection against state subpoenas is necessary for the Executive to fulfill his Article II functions. . . . Finally, in the absence of a need to protect the Executive, the public interest in fair and effective law enforcement cuts in favor of comprehensive access to evidence."
9. History lessons and stories. As anyone who has heard him speak knows, Roberts loves history. This comes through in his opinions, particularly in this opinion. With obvious relish, he regales the reader with tales from the founding. But this is more than just an aside--it is a critical point for constitutional interpretation. Under the most dominant "original public meaning" strain of originalism, the court looks to what the ratifying public at the time of adoption would have understood the constitution to mean. So Roberts loves telling a story, but it's always a story in service of a point. He famously did this as an advocate in his Alaska v. EPA brief, in which he gave a detailed account of a mine in Alaska to illustrate the importance of local control. Roberts always understands the assignment, and uses history and stories to get his point across memorably and forcefully. None have done it better, and few can do it as well.
Sunday, July 24, 2022
Subject-matter specialists might seem to have an advantage over a generalist on appeal. They would seem to have unmatched familiarity with the underlying statutes and caselaw. In specialty courts, such as the Federal Circuit, focused advocates may stand on a firmer footing than a newcomer in the field.
In most courts, however, the judges are generalists. They hear appeals on a wide range of subjects and cannot keep up with developments in every area of law. For them, the complexities and nuances that a specialist brings to the table may be less important than an experienced lawyer’s ability to boil the complicated down to familiar principles. Seventh Circuit Judge Diane Wood has noted that the “need to explain even the most complex area to a generalist judge . . . forces the bar to demystify legal doctrine and to make the law comprehensible.”[i] Make the unfamiliar familiar by utilizing language a judge will understand.
Moreover, the specialist may rely on memory of a frequently cited case that, over time, becomes little more than code words that only the cognoscenti appreciate. The generalist, however, is certain to find the case, read it freshly, and expose the imprecision while finding legal analogies that point in a different direction than the specialist argued.
A specialist’s command of policy arguments often relies upon the gloss of repetitive usage, twists to conform to his clients’ preferred results, and the dullness of repeated use, a generalist can look at legislative history and intent with fresh eyes that can be revelatory to a judge. Moreover, a generalist will draw from other areas of law enabling the judge to appreciate analogies that the specialist would never consider.
In some ways, the difference is comparable to the difference between an appellate lawyer and a trial lawyer. Trial counsel knows the record from having lived though the case and having pursued key objectives that yielded the desired result. The appellate lawyer looks at the case more dispassionately and often finds that the formula for victory is either an issue quite different from the one that may have dominated trial or a route that may even have been unavailable at an earlier stage.
The bottom line is that tackling a new area of law should not generate fear that the specialist opponent holds all the cards. The well-prepared appellate lawyer should appreciate the advantages that a generalist can bring to the table.
[i] Diane Wood, Generalist Judges in a Specialist World, 50 SMU L. Rev 1755, 1767 (1997).
Saturday, July 23, 2022
Many of my students believe I “prohibit” any use of passive voice. I certainly discourage passive voice, especially in objective writing. As I explained in past blogs, I even use E-Prime sometimes, avoiding “to be” verbs to assist with clarity. As Bryan Garner explained in his 2019 Michigan Bar Journal piece: “Stylists agree” passive voice is “generally weaker than active voice. It requires two extra words, and the subject of the sentence isn’t performing the action of the verb--you’re backing into the sentence with the recipient of the action. And the actor either is identified in a prepositional phrase or is missing altogether.” Bryan Garner, Eliminate Zombie Nouns and Minimize Passive Voice, 98 Mich. B.J. 34 (Dec. 2019).
However, I also remind students passive can help occasionally, such as when brief writers deliberatively de-emphasize their clients’ acts with language like “the bank was robbed.” Garner has nice notes on this as well, explaining passive voice “does have its place” where the “recipient of the action may be more important than the actor (e.g., the defendant was convicted)” or “the actor may be unknown (e.g., the building was vandalized),” or where “passive voice simply sounds better,” for example, like moving “a punch word to the end of a sentence for impact (e.g., our client’s bail has been revoked).” Id. at 34.
As I pulled together fall reading materials for my incoming 1Ls, I was struck—again—by how much we can learn from Garner’s examples on spotting and removing passive voice. Garner asks us to count the passive voice examples in this passage:
In Reich v Chez Robert, Inc, the court found that § 203(m) required three conditions to be met before an employer can lawfully reduce the amount paid to an employee by a tip credit: (1) the employer must inform each employee that a minimum wage is required by law; (2) the employer must inform each employee of the dollar amount of the minimum wage; and (3) the employee must actually keep the tips received. It is clear under the law that vague assertions of the restaurant’s compliance with the notice provision of §203(m) do not constitute compliance. Instead, testimony regarding specific conversations where the provisions of the Act were explained to an employee must be provided.
Then Garner says, “Guess what? Few law-review editors could accurately spot every passive-voice construction in that passage.” Id. at 35. Students who struggle to remove passives will rejoice reading this, but the true help in Garner’s article is the way he shows us how to edit even more precisely than those law-review editors.
I especially like Garner’s explanation: “From a mechanical point of view, passive voice has two parts: a be-verb (e.g., is, are, was, were) and a past participle (e.g., broken, sued, considered, delivered).” Id. Thus, we should “[w]atch for two things when trying to spot passive voice. First, some constructions that appear passive really just involve a past participial adjective: He was embarrassed. Now, if you make that He was embarrassed by Jane, then it is passive (because embarrassed then functions as a verb); but with embarrassed alone at the end, it’s just a participial adjective.” Id.
This “subtle point” can be lost on struggling students, but they can gain understanding with Garner’s second point: “the be-verb may not actually appear in the sentence. It may be what grammarians call an “understood” word, as in the amount charged will vary (the full sense of the phrase is that is charged) or the fee set by the trustees (the complete relative clause is that is set).” Garner tells us, “[t]hese constructions with implied be-verbs are indeed passive.” Id.
Returning to the challenge passage, Garner says there are six passives: “(1) to be met, (2) paid, (3) is required, (4) received, (5) were explained, and (6) be provided.” Id. Looking for these passives can be a nice group or in-class exercise, and students can gain understanding from reviewing this example together. Garner notes we can all “take some extra credit” if we spot “paid” and “received,” as “they have understood be-verbs, to be paid and that are received.” Id.
Finally, I would ask students to re-write this passage, with the most direct language possible. Students, and lawyers, can then compare their revisions to Garner’s:
In Reich v Chez Robert, Inc, the court found that § 203(m) requires an employer to meet three conditions before reducing the employee’s tip credit. First, the employer must inform each employee that the law imposes a minimum wage. Second, the employer must say what that wage is. It isn’t enough for the restaurant to assert vaguely that it has complied with either requirement; the court will require clear testimony about specific conversations in which the employer explained the Act. Third, the employee must actually keep the tips.
Id. Garner removed what he calls “zombie nouns” along with passive voice, and made the “reader’s job” much easier. Id. Hopefully, this exercise will help you add clarity to your own writing, and give you an interesting tool to teach others.
Tuesday, July 19, 2022
After a three-part series on Justice Kagan, I decided to pick apart the newest justice's writing style. As this post will show, Justice Barrett shares some techniques with Justice Kagan, but executes them in a very different way and delivers a very different style. The sample is her recent majority opinion in George v. McDonough.
1. Syllogism, syllogism, syllogism. When I read a Justice Barrett opinion, I'm always struck with how relentlessly logical it is. Her opening paragraph in George is typical: "Veterans may claim benefits for disabilities connected to their military service subject to statutory and regulatory requirements. When the Department of Veterans Affairs (VA) denies a benefits claim, that decision generally becomes final after the veteran exhausts the opportunity for direct appeal. But a statutory exception permits the veteran to seek collateral review at any time on grounds of “clear and unmistakable error.” We must decide whether that exception allows relief from a VA decision applying an agency regulation that, although unchallenged at the time, is later deemed contrary to law. We hold that it does not."
As I've discussed in prior posts, the pattern of major premise, minor premise, conclusion is the basic structure underlying almost all legal arguments. In appellate law, the major premise is a statement of the law, the minor premise is the given facts, and the conclusion is applying the law to those facts. Justice Barrett does this constantly, as this introduction shows: here's a bit of the law on veterans' disability benefits; here are a few choice facts; here's the conclusion. It makes her reasoning very easy to discern--and if you agree with the premises, you have to agree with her conclusions. It's critical for an attorney to think this way, even if not all succeed in writing this way.
2. Bottom line up front. Using the example of the introduction again, Justice Barrett doesn't leave her reader guessing at what the result will be. As a practitioner, I appreciate this. It can be stressful poking through an opinion trying to figure out whether you prevailed.
3. Short starters. Like Justice Kagan and Chief Justice Roberts, Justice Barrett loves to start sentences with short words, which helps the reader to glide along: "Most important for present purposes, the history reveals that this category of error does not encompass a subsequent “change in law . . . or a change in interpretation of law.” 38 CFR §3.105 (Cum. Supp. 1963). And for good reason: During the many years when clear and unmistakable error was purely a creature of regulation, the governing statutes generally did not allow “[n]ew or recently developed facts or changes in the law” to “provide a basis for revising a finally decided case.” . . . . To stay within that statutory constraint, authorities dating back to 1928 confirm that “[a] determination that there was ‘clear and unmistakable error’ must be based on the record and the law that existed at the time of the prior [VA] decision.” . . . . So, for example, the VA’s failure to apply an existing regulation to undisputed record evidence could constitute clear and unmistakable error. . . . But a subsequent legal change could not, because “only the ‘law that existed at the time’ of the prior adjudication . . . can be considered” in this posture. . . . . Or as the Veterans Court summed up, shortly before the enactment of the 1997 statute: A “new interpretation of law . . . from a case decided in 1993 could not possibly be the basis of [clear and unmistakable] error in 1969,” as “a simple recitation of the time sequence” should “make . . . clear.” . . . . The invalidation of a prior regulation constitutes a “change in interpretation of law” under historical agency practice."
4. Writing about people, not statutes. Using what Ross Guberman calls the "back to life" technique, Justice Barrett takes a maze of statutes and instead of writing about them in the abstract, talks about a people navigating them in real life: "“The law entitles veterans who have served on active duty in the United States military to receive benefits for disabilities caused or aggravated by their military service.” . . . . A veteran seeking such benefits must first file a claim with the VA. §5101(a)(1)(A). A regional office of the VA then determines whether the veteran satisfies all legal prerequisites, including the requirement that military service caused or aggravated the disability. . . . To that end, the statute governing wartime service imposes a “[p]resumption of sound condition”: If a veteran’s disability was not noted at the time of entry into service, then the veteran is presumptively entitled to benefits unless the VA shows by a heightened burden of proof that the disability “existed before . . . and was not aggravated by such service.” 38 U. S. C. §1111. After applying this and other statutory and regulatory requirements, the regional office issues an initial decision granting or denying benefits. §§511(a), 5104(a). A veteran dissatisfied with this decision may challenge it through several layers of direct review. As a general rule, the veteran may appeal within one year to the VA’s Board of Veterans’ Appeals (Board). §§7105(b)(1), 7104(a). If the Board also denies relief, the veteran may seek further review outside the agency. Such review was once limited to constitutional and certain statutory claims, but since 1988 Congress has generally allowed veterans 120 days to appeal any Board decision to the Court of Appeals for Veterans Claims (Veterans Court). . . . A veteran dissatisfied with that court’s decision may seek review of any legal issue in the Federal Circuit and ultimately in this Court. §7292; 28 U. S. C. §1254(1). After this direct appeal process, the benefits decision generally becomes “final and conclusive and may not be reviewed by any other official or by any court.” 38 U. S. C. §511(a); see §7104(a). Still, the veteran enjoys a few limited options for seeking collateral review in exceptional circumstances."
5. Positive before negative. It's almost universal in judicial opinions, but not universal enough in brief writing, so I'll point it out. Justice Barrett makes her affirmative points about what the real meaning of the law is (slip opinion 1-8) before dealing with losing arguments and dissenting opinions (slip opinion 8-12). A mentor of mine once called this "positive before negative"--say why you're right before you say why the other side is wrong. It's rhetorically more pleasing and makes greater logical sense. Even so, I'm surprised at how often attorneys will start pleadings or briefs just attacking what the other side or lower court did and why they are wrong (of course, judges in dissent often do the same thing). You may feel strongly about that, but save it for after you show why yours is the better approach. If you attack first, the court/reader is likely to adopt a defensive posture in favor of what you're attacking (It couldn't have been that bad...), which is never what you want a judge reading your work product to think when they're starting out.
6. Trim all the fat. I've been struck when I read Justice Barrett's opinions at how lean they are--they get right to the point, have little ornamentation, and say no more than they need to about the subject at hand. Her opinions are all business. If Justice Kagan's style is akin to having a relaxed dinner conversation with one of your most interesting friends, full of clever asides, Justice Barrett's is more like getting a military briefing in wartime, serious and to the point. It's Sergeant Joe Friday--just the facts, ma'am. It's very different than many justices, but has an austere, desert-like beauty about it.
Monday, July 18, 2022
- Foreword: Words Matter, by Tessa L. Dysart
- All Mixed Up About Statutes: Distinguishing Interpretation From Application, by Hon. Randall H. Warner
- Dictionary Diving in the Courts: A Shaky Grab for Ordinary Meaning, by Joseph Kimble
- Bracton’s Warning and Hamilton’s Reassurance, by Hon. D. Arthur Kelsey
- Supplementing Supplemental Briefing, by Ziv Schwartz
- An Empirical Study of Class-Action Appeals, by Bryan Lammon
- Book Review: Principles of Appellate Litigation: A Guide to Modern Practice, by Raffi Melkonian
- Book Review: Something Reinforced, Something New: A Review of The Appellate Prosecutor, by Tessa L. Dysart
For questions about The Journal or to submit an article, please feel free to email me.
Sunday, July 10, 2022
In the play and movie, Amadeus, Mozart proudly debuts one of his new compositions for the emperor. The emperor's verdict took Mozart by surprise. The composition was fine, the emperor intoned, but it suffered from "too many notes.” In providing some "helpful" criticism, the emperor advises, “cut a few and it will be perfect.”
While briefs do not approach the timelessness or artistry of a Mozart opera, courts and judges sometimes offer the same critique: “too many (foot)notes.” The judicial critique can have more validity than the emperor's issue in Amadeus. The federal court in the District of Columbia, as well as several other courts, warn brief-writers against too many footnotes, instructing that these drop-down asides “shall not be excessive.” Recently, lawyers defending Meta Platforms (formerly, Facebook) in an antitrust action ran afoul of the DC court's rule this month according to an order from Judge James E. Boasberg. The offending brief contained 19 footnotes, including several lengthy ones, including a footnote that topped 150 words. In striking the brief for violating the rule and attempting “to circumvent page limits” by taking advantage of the single-spacing that footnotes use, the judge ordered counsel to file a new brief immediately “with no more than five footnotes containing no more than 20 aggregate lines of text.”
Scholars commonly use lengthy and extensive footnotes in law review articles, but that practice provides no guidance to counsel filing briefs. Justice Scalia often remarked that he did not read footnotes. In Making Your Case: The Art of Persuading Judges, Scalia's co-author, Bryan Garner, proselytizes for putting citations in footnotes but warns against using footnotes for substantive text. The justice dissented from that view in the book because he wanted to know the authority behind a statement while reading along, rather than having to dart his eyes to the bottom of the page. Still, Scalia's hostility to footnotes did not extend to his own writing, where he apparently wanted his footnotes read. In Obergefell v. Hodges, 576 U.S. 644, 720 n.22 (2015) (Scalia, J., dissenting), he reserved his most unjudicial and quotable criticism of the majority's decision to a footnote, where he said, if forced to make certain statements in an opinion to obtain a fifth vote, he "would hide my head in a bag" and not allow the Court to descend “from the disciplined legal reasoning of John Marshall and Joseph Story to the mystical aphorisms of the fortune cookie.”
Scalia's inconsistency suggests that footnotes have their place. In my own briefs, I tend to use footnotes to advise the court of factual or legal points that it should know but placing them in the body would detract from the flow of the narrative I constructed. I also consult any expressed views on footnotes by the judges on the court because, after all, you never want to offend your intended audience.
Perhaps counsel's new knowledge of Judge Boasberg's abhorrence of footnotes explains why, in the Meta Platform case, their refiled brief contained no footnotes.
Saturday, July 2, 2022
On June 24, 2022, in Dobbs v. Jackson Women’s Health, the United States Supreme Court overturned Roe v. Wade and, in so doing, sparked impassioned reaction in the United States.
Below are a few thoughts on the decision.
1. The majority was correct.
In today’s climate, particularly in some academic institutions, it’s not advisable to publicly criticize Roe – or praise Dobbs – if you want to advance in your academic career.
But the truth is the truth.
Roe was a terrible decision. The majority got it right.
The right to abortion was not based on any reasonable interpretation of the Constitution’s text. And it was not inferable from the text, particularly the Fourteenth Amendment’s Due Process Clause, unlike, for example, the right to effective assistance of counsel, which can be inferred from the Sixth Amendment right to counsel. It was not rooted in the nation’s history or traditions, which is a critical factor that constrains the Court’s power and prevents justices from creating whatever “rights” they subjectively deem desirable. Instead, the Roe Court created a constitutional right out of thin air, divining such right from the invisible “penumbras” that the Court in Griswold v. Connecticut likewise created out of thin air. And the nonsensical doctrine of substantive due process, which the Court invoked in Planned Parenthood v. Casey to uphold Roe’s central holding, is a legal fiction. Not surprisingly, constitutional scholars of both conservative and liberal persuasions, along with the late Justice Ruth Bader Ginsberg, have recognized that Roe was incredibly, if not irredeemably, flawed.
The Court’s decision reflected a principle that is vital to a functioning democracy and the valuers of federalism, de-centralized governance, and bottom-up lawmaking: nine unelected and life-tenured judges should not have to right to decide for an entire country what unenumerated rights should or should not be recognized when such “rights” are neither contained in nor inferable from the text, or not deeply rooted in history and tradition. The reason for these constraints is obvious: without them, the justices would have the unfettered authority to create – or take away – whatever rights they wanted, whenever they wanted, and for whatever reason they wanted, which would reflect nothing more than their subjective policy predilections. That is antithetical to a democracy that vests power in the people, not philosopher kings. And for those who claim that the Ninth Amendment is a source of unenumerated rights, they are correct. But where in the Ninth Amendment does it state that the Court has the authority to create those rights, particularly where there is no basis in the Constitution to do so?
Ultimately, Roe was the perfect example of a raw exercise of judicial power. This does not necessarily mean, however, that the right to abortion lacked a textual basis in the Constitution. As stated below, to the extent that there is a constitutional basis to support a right to abortion, it is through the Equal Protection Clause (or possibly the Privileges and Immunities Clause).
2. Justice Roberts’ approach was sensible but not principled.
Chief Justice Roberts’ concurrence strikes a sensible but not necessarily principled balance between recognizing the fatal flaws in Roe yet respecting the fact that Roe has been the law for nearly half a century. For this reason, Roberts would have upheld the Mississippi law, which banned abortions after fifteen weeks, but not entirely overturned Roe and Casey.
This approach, although understandable given the practical impact of overturning Roe (and, as Roberts put it, the “jolt” to the legal system), is akin to taking a band-aid off slowly rather than ripping it off. Moreover, given the Court’s on-again, off-again relationship with stare decisis, with both liberal and conservative justices selectively applying the doctrine, Roberts’ concurrence appears more as a misguided attempt to preserve the Court’s legitimacy. Indeed, in this and other decisions, Roberts appears to lend more weight to perceptions about the public reaction’s reaction to a particular decision than the text of the Constitution itself. But basing decisions primarily on how the Court’s legitimacy will be affected invariably leads to political decisions and the precise result – a decline in the Court’s legitimacy – that Roberts is so intent on protecting. It should come as no surprise that the public opinion of the Court is now at twenty-five percent.
Put simply, interpreting the Constitution’s text reasonably is the key to the Court’s institutional legitimacy.
3. Justice Kavanaugh’s concurrence was surprisingly misguided.
In his concurrence, Justice Brett Kavanaugh argued that the decision in Dobbs returned the Court to a position of neutrality on abortion. It is difficult to believe that Kavanaugh believes this to be true.
The Court did not return to a position of neutrality. Roe was decided 7-2, and in Planned Parenthood v. Casey, the Court by a 5-4 margin affirmed Roe’s central holding. Thus, the Court had previously – and in numerous other cases – affirmed Roe and protected the fundamental right of women to access abortion services. In other words, it had already taken a position – repeatedly – on whether the Constitution protected abortion.
So, what changed since Planned Parenthood? Nothing – except the composition of the Court, namely, the confirmation of three conservative justices.
This is not to say that appointing conservative justices – and originalists – is a bad thing. Given the Court’s abortion precedent, however, and the known political affiliations of Justices Kavanaugh, Gorsuch, and Barrett, the notion that the Court returned to a position of “neutrality,” without acknowledging that, since Casey reaffirmed Roe, nothing changed but the Court’s composition, is ridiculous. That’s why Chief Justice Roberts’ approach was arguably the most sensible, although not the most principled, way to decide Dobbs.
Of course, this does not change the fact that, as a matter of constitutional law, Roe was one of the worst decisions in the twentieth century (not as bad, though, as Plessy and Korematsu), that Casey too was profoundly wrong, and that the Court was correct as a matter of constitutional law. The original sin was Roe itself, and the flaws in Roe were compounded by Court’s decision in Casey, which reaffirmed Roe based on untenable constitutional grounds, and on nonsensical justifications such as, “[a]t the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.” That’s what you get when you subscribe to “living constitutionalism," which makes about as much sense as substantive due process or the belief that Elvis is still alive.
Having said that, the optic is not good – Dobbs suggests that constitutional rights change based on the political ideologies of the current justices. Kavanaugh’s concurrence displayed a startling disregard of this reality.
4. Justice Thomas went too far.
With all due respect, Justice Clarence Thomas went too far in his concurrence. Yes, Thomas is correct that substantive due process is a nonsensical legal doctrine, and that Roe and Griswold were constitutionally indefensible decisions.
This doesn’t mean, however, that you revisit and overrule every flawed legal precedent that substantive due process produced. The truth is that, in many instances, the justices must consider the practical consequences of their decisions, and if the Constitution’s text can be reasonably interpreted to support a particular outcome, the Court should reach outcomes that will expand rights and promote, among other things, equality and the equal dignity of all persons. And in some instances, even if a precedent is irreparably flawed, the resulting “jolt” to the legal system and the material harm to citizens that may result can support letting the precedent stand on stare decisis grounds (or, as in the case of abortion, justifying it based on the Equal Protection Clause).
This analysis applies directly to Griswold, which was equally, if not more, flawed than Roe, because the majority, despite recognizing that the text didn’t support invalidating Connecticut’s ridiculous contraception ban, nonetheless decided to invent invisible “penumbras” from which it could single-handedly invent unenumerated constitutional rights.
But that doesn’t mean that Griswold should be overruled. If it was, you can be sure that misguided legislators would try to outlaw contraception. After all, imagine a world where women cannot access contraception and cannot access abortion services. That’s not a world that most reasonable people want to imagine.
Additionally, Thomas is wrong about Obergefell, which was defensible – and rightly decided – because, like the Seventh Circuit held in Baskin v. Bogan, same-sex marriage bans (and interracial marriage bans) violate the Equal Protection Clause.
Thankfully, there is no support for Thomas’s position on the Court, as the majority explicitly and repeatedly stated that precedents such as Griswold and Obergefell were not implicated by the decision because they did not involve the state’s interest in protecting fetal life. And there is reason to believe the justices in the majority because their reputations would be forever tarnished if they betrayed what they had explicitly written in a prior opinion.
5. Justice Ginsburg was right – if abortion can be justified by any provision in the text, it is in the Equal Protection Clause.
Despite Roe’s indefensible reasoning, there is arguably a basis, as Justice Ginsburg argued, to justify a right to abortion under the Equal Protection Clause. Abortion bans relegate women to second-class citizens. If a woman gets pregnant, she – and she alone – must often bear the financial, emotional, and psychological burdens of pregnancy, not to mention the medical issues (perhaps life-threatening) that some women may face if they are forced to carry a pregnancy to term. The burden on men, however, is not comparable and, in many cases, non-existent. Think about it: a woman who gets pregnant while in college, while pursuing a graduate degree, while starting a job, or while impoverished, must now bear the financial, emotional, and psychological burden of an unwanted pregnancy, which may cause that woman to drop out of school, lose her job, or sink further into poverty. The result is that some women will be prohibited from participating equally in the economic and social life of this country. That is wrong – and that is why the Equal Protection Clause arguably provides a basis to justify a constitutional right to abortion.
The problem is that neither Roe nor Casey was based primarily on the Equal Protection Clause. They were based on a right to privacy found nowhere in the Fourteenth Amendment and, later, on a substantive liberty interest that no reasonable interpretation of the Fourteenth Amendment can support. That is in part why Roe created such a backlash and, ultimately, was overruled.
6. Imagine where we’d be if the Court had embraced judicial restraint and deference.
If liberals had embraced the concept of judicial restraint, and of deferring more frequently to the decisions of federal and state legislatures, the world might look very different now.
New York’s law regulating who could carry a gun in public would still be on the books. The high school coach who prayed on the fifty-yard line after his high school’s football games would still be fired (although he shouldn’t have been fired). And abortion would still be accessible in every state, albeit with a fifteen-week limitation. For liberals, that sounds like a much better situation than they are in now.
That highlights the problem with judicial activism, which both conservative and liberal justices have embraced at various periods in the Court’s history. As stated above, when you rely on the Court to effectuate social change and disregard the constraints on judicial power, you give nine unelected judges the power to identify and define unenumerated rights for an entire nation based on their subjective policy preferences. And what the Court gives, it can certainly take away. In other words, advocates for an activist Court – conservative or liberal – will see their luck run out when the Court’s composition changes. That is precisely what happened in Dobbs.
7. Stop criticizing the Court
Predictably, after Dobbs was released, some in the media, and even some scholars, brought out all the usual buzzwords, such as characterizing the decision as misogynistic, white supremacist, racist, and the like. Even President Biden made disparaging comments about the Court that undermined his and the Court’s legitimacy. Biden had the audacity to state during a conference in Madrid, Spain, that “[t]he one thing that has been destabilizing is the outrageous behavior of the Supreme Court of the United States, in overruling not only Roe v. Wade, but essentially challenging the right to privacy.” He should be ashamed.
Few, if any, however, including Biden, defended Roe on its merits. How could they? As Laurance Tribe stated, “one of the most curious things about Roe is that, beyond its own verbal smokescreen, the substantive judgment on which it rests is nowhere to be found.” Ultimately, the Court’s job is to interpret the Constitution, not reach the outcomes that you like. And even when you disagree with a decision, it’s wrong to hurl insults at the justices. At this juncture, time would be better spent lobbying state legislatures across the country to protect women’s bodily autonomy and provide access to abortion services.
 381 U.S. 479 (1965).
 505 U.S. 833 (1992).
 See 381 U.S. 479 (1965).
 576 U.S. 644 (2015); 766 F. 3d 648 (2014).
 See Opinion, How Liberals Should Rethink Their View of the Supreme Court (June 21, 2022), available at: Opinion: Liberals should rethink view of Supreme Court - CNN
 See, e.g., Ramesh Ponnuru, The Times Distorts Alito’s Draft Opinion, (May 5, 2022), available at: New York Times Distorts Alito's ‘Dobbs’ Opinion | National Review
 Alex Gangitano, Biden Calls Supreme Court Overturning Roe v. Wade ‘Destabilizing’ (June 30, 2022), available at: Biden calls Supreme Court overturning Roe v. Wade ‘destabilizing’ | The Hill
 See, Opinion, Roe Was Wrong the Day It Was Decided. The Supreme Court Did the Right Thing (June 24, 2022), available at: Roe Was Wrong the Day it Was Decided. The Supreme Court Did The Right Thing | Opinion (newsweek.com)
Friday, July 1, 2022
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 the last active / opinion week of this term for the Supreme Court. And a lot happened.
On Monday, the Court issued its opinion in Kennedy v. Bremerton School Dist., ruling by a vote of 6-3 that a public school could not discipline a football coach for post-game prayers at the 50-yard line. The Court ruled that the conduct did not violate the First Amendment's Establishment Clause, dismissing concerns that players might have felt compelled to participate in the prayers. More from SCOTUSblog.
On Wednesday, the Court issued its opinion in Oklahoma v. Castro-Huerta, ruling by a vote of 5-4 that the State of Oklahoma has authority to separately prosecute non-Indians accused of committing crimes on tribal grounds. The Court ruled that the State enjoys concurrent jurisdiction and that the tribe does not have sovereignty to exercise sole jurisdiction over such criminal matters. More from Bloomberg.
On Thursday, the court issued its opinion in West Virginia v. Environmental Protection Agency , ruling by a 6-3 vote that Congress had not sufficiently granted the Environmental Protection Agency authority to enact industry-wide emissions standards. The Court ruled that it did not believe Congress had intended to give the EPA authority to enact standards that would try to shift power generation away from fossil-fuels to cleaner sources and that Congress would need to speak more clearly to do so, relying on the "Major Questions" doctrine. More from Bloomberg.
As the active term came to an end, the Chief Justice issued a press release announcing that the Court had acted on all cases submitted for decision during the term, thanking all Court employees and members of the Court's bar for their work during the term, and recognizing employees for lengthy service and/or retirement. Justice Breyer's retirement became official, as he stepped down and Justice Ketanji Brown-Jackson was sworn in to take his place.
The Texas Supreme Court is hiring a Judicial Staff Attorney. More information HERE.
The Massachusetts Supreme Judicial Court has two openings in the Office of Chief Staff Counsel. More information HERE.