Appellate Advocacy Blog

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

Monday, August 29, 2022

The University of Arizona James E. Rogers College of Law is Hiring!

Are interested in transitioning from practice to academia, or are you an academic looking for a new school?  The University of Arizona's James E. Rogers College of Law is hiring in our nationally-ranked legal writing program.

I joined the UArizona faculty five years ago, and I can attest that it is a fantastic place to work. Our legal writing team is supported and valued by both the law school administration and the university administration. In fact, two of us hold major positions at the university! We are a team of innovative and productive teachers and scholars.  Some of our fun projects in the last five years include acquiring the nation's premiere law journal on appellate matters, creating an "escape room" for students as a capstone fall semester project, participating in our international teaching programs in Mexico, and publishing multiple books.

In addition to the great experience teaching at UArizona, I have loved living in Tucson, which I did not expect. Although it can get hot at times, Tucson is delightful most of the year. Right now the mountains behind my house are green and full of life. There is hiking, biking, and even boating options not too far away. We recently bought a small camper and have been enjoying the numerous, beautiful state and federal parks near Tucson.

I have posted the complete job post below. Here is a link to apply: https://arizona.csod.com/ux/ats/careersite/4/home/requisition/10930?c=arizona 

Arizona Law’s nationally ranked, award-winning Legal Writing Program invites applications from entry-level and lateral candidates for a full-time position commencing in August 2023. We are excited to welcome a new member to our creative, collaborative, diverse team of lawyers, teachers, and scholars.

The position entails appointment as a Continuing-Eligible Professional or a Continuing Status Professional under Arizona Board of Regents Policy Manual section 6-302. The successful candidate will teach a section of our first-year Legal Research, Analysis, and Communication (LRAC) course each semester. Our Program includes the required five-unit LRAC course and many upper-division offerings. Our writing faculty also supervise our internal moot-court competition and coach moot-court teams.

Our writing faculty have full voting rights, commensurate with rank, and a voice in governance. We are eligible for summer research grants and sabbaticals. We serve on committees and in leadership positions. Although Continuing Status does not require scholarship, scholarship—broadly defined—weighs in evaluation and promotion decisions. Our Program also publishes the Journal of Appellate Practice and Process, and writing faculty are encouraged to serve a role on that publication.

The University of Arizona is a public land-grant university at the heart of beautiful Tucson, Arizona, home to the O'odham and Yaqui peoples. Committed to diversity and inclusion, the University is a federally recognized Hispanic Serving Institution. As part of a university ranked in the top 20 of public research universities in the nation, the College boasts myriad opportunities for interdisciplinary scholarship and is a truly global law school, with students around the world. The College embraces innovation, with groundbreaking degree programs like its first-in-the-nation BA in Law, novel curricular offerings, and diverse experiential opportunities.

August 29, 2022 | Permalink | Comments (0)

Sunday, August 28, 2022

Harnessing the Power of Characters in Your Legal Writing

Readers always care about the characters. Your client, the other players–we all need to imagine someone carrying out a case’s events so that we can follow along (and care).
 
But many legal writers don’t take much time to consider how they want to introduce, and build up, each of their story’s characters. The truth is, you have lots of options in how you describe your client and everyone else involved in the case. And those perceptions matter. Let’s look at some simple tools you can use on this front. 

First, introduce context for a character’s actions or decisions.

You know you need to share the key, relevant events with your readers. But we often forget that readers want to know the why: Why did your client cancel the shipment? Or show up late? Or otherwise do what they did? It helps if you offer context about what led the characters to act as they did. Check out this example from an elite litigator:
 
“When Mr. Samps showed up to sign the license, he did not know that Terry Corp. had already entered into three nearly-identical licenses with other artists. Mr. Samps had been negotiating in good faith with Terry Corp. for more than nine months at this point–and no one had ever mentioned other licensees.”
 
The author wanted to offer some context leading up to the critical signing–these details weren’t legally relevant. But they helped the reader understand something more about the client’s headspace at the time.

Second, set up characters' motivations when helpful.

Related to context, often you’ll want to shed light on the characters’ motivations. Why did they make the decisions they did? What was going on in their head? This is just as important for the bad actors in your story as it is the good ones.
Usually we will shed light on motivations by sharing select details that naturally lead readers to draw conclusions about what folks were thinking. 
 
For example, this pro legal writer wanted to suggest that her client had good intentions even though he ended up breaching a contract term. These facts didn’t really matter–there was no intent requirement here so it didn’t matter why the party breached. But humans care about characters–and those perceptions shape the decisions we make, legal or otherwise:
 
“Ms. Terry was in a pickle: If she went forward with the concert, she would be contributing to a health crisis that was all too personal for her. She had lost her mother weeks before to COVID, and with the rising rates in Dallas at the time, Ms. Terry genuinely worried what would happen at a large gathering. On the other hand, Ms. Terry had committed to put on the concert, and she knew that canceling would affect some vendors and promoters. So she did what she had to, coming down on the side of promoting the health and safety of everyone.”

Third, deliver facts that make a character look good or bad.

Sometimes you may want to insert some pure reputational details. You’ve likely seen good lawyers do this when drafting complaints. Inserting a line or two about the great things a company does for the world, or how critical a company’s product is for everyday folks.
 
But tread carefully here. Inserting some contextual facts or shedding light on real-life motivations for what is legally relevant–is one thing. Sharing general good or bad facts with no connection to the case at all is much more likely to distract or annoy busy legal readers.
 
So keep these sorts of pure reputation facts minimal, and whenever possible, subtly weave them into discussions of the relevant stuff. That way readers won’t mind and you still get the payoff.
 
For example, this lawyer managed to slyly insert some good details about their client, and some bad details about an opposing party–and although they were entirely irrelevant, they were done so quickly and subtly that most readers likely wouldn’t mind. Hint: That VOLT works with charities had no relationship to anything here, but it was a convenient way to slip that fact in. Same goes for the Defendant’s tantrum (this case was about a licensing agreement–and all that the attorney technically needed to convey was that the Defendant objected to VOLT’s presence at the trade show generally).
 
“VOLT advertised its new products at the trade show prominently: Hanging banners, displaying life-size cardboard cutouts, and handing out hundreds of flyers. VOLT representatives had just finished discussing their education products with a representative from a large charity organization that helps children access books for free at school–when the Defendant’s representative cut in and demanded a personal meeting to discuss VOLT’s signage. The Defendant’s representative raised his voice several times, loudly proclaiming that VOLT was ‘violating the show’s rules.’”

Fourth, illustrate how outside forces affect a character.

In most stories, we get to know characters not only by what they do and say, but also what happens to them. Often sharing things that happened to a client or party–whether good or bad–can help readers identify with them and understand them more personally. The same goes for the consequences of our actions, which is particularly powerful when bad actors don’t get punished.
 
This legal writer knew these lessons well, sharing some details about their client’s experiences to help shape our perception of why they are:
 
“Ms. Johnson had been rear-ended in a car accident the prior day. She had been accosted by insurance claim adjusters all day. She had meetings at work starting at 5am and continuing until she drove home after 7pm. Then she arrived home to find a letter in the mail demanding that she ‘pay her bill or lose her house to foreclosure.’”
 
Most of these details were not strictly relevant, but showing all that had happened and been done to this character can’t help but build some sympathy with readers.

Fifth, illustrate a character through their interactions with others.

Another common character-building technique is to show readers how a character interacts with others. Even showing that your client was courteous and respectful in dealing with an opponent can go a long way.
 
There are many, many other details you can share about character, these are just some of the most common categories. The main takeaway here is: You can do quite a lot to build up, or tear down, the characters in your legal story. The characters are just as important here as they are in any other story you’ve heard before.
 
And a bonus tip: You should think of characters when discussing the law, too. But here the judges or legislators are the stars of the show. You can build up the credibility of a court or judge so that readers pay more attention to a piece of authority. You can downplay one of these characters to suggest that authority isn’t all that important. And the players in past decisions can also be characters: You may want to build up a party that’s sympathetic to your own. Or you may want to downplay a bad actor that has parallels with the opposing party in your case.

August 28, 2022 | Permalink | Comments (1)

Saturday, August 27, 2022

Characteristics of the Best Appellate Advocates

The best appellate advocates possess certain skills and abilities that often place them among the most distinguished attorneys in the legal profession. Below is a list of characteristics that distinguish the best appellate lawyers from the rest.

1.    They are highly intelligent and analytical.

The best appellate advocates are highly intelligent and possess exceptional analytical and critical thinking skills. These lawyers know, among other things, how to tell a compelling story, research efficiently, synthesize voluminous case law, present complex facts and legal concepts in a straightforward manner, distinguish unfavorable precedent, spot the nuances that each case presents, and make persuasive legal arguments. And they exercise great judgment, particularly when confronted with incomplete information or unsettled law. Simply put, intelligence matters, and the best appellate advocates are often among the brightest in the legal profession.

2.    They have the intangibles.

The best appellate advocates know that intelligence is necessary, but not sufficient, to succeed in the legal profession. These advocates work extremely hard and prepare better than almost anyone. They are incredibly resilient and disciplined. They persevere and know how to cope with adversity. They excel under pressure. They are empathetic and they are passionate about their work. They have common sense, good judgment, and emotional intelligence, and they know how to relate to people. In short, the best appellate advocates possess intangible – and often unteachable – qualities that cannot be measured by an LSAT score or a grade on a final examination.

3.    They are objective in assessing the merits of an appeal.

The best appellate lawyers are objective and honest in assessing the validity of a legal argument, particularly given the standard of review, unfavorable facts, and unfavorable law. They place themselves in the shoes of the opposing party and, in so doing, identify the flaws in their arguments. They do not have tunnel vision. They are not guided by emotion. They do not convince themselves that meritless legal arguments have a chance of succeeding on appeal, and they do not throw every possible legal argument against the wall in an appellate brief, hoping that one will stick.

4.    They know how to select issues for an appeal.

The best appellate lawyers know how to identify issues in the record that have the best chance of succeeding on appeal. As stated above, they do not appeal every conceivable mistake made by the lower court and throw every possible argument against the wall, hoping that one will stick. Instead, they exercise judgment based on their experience, knowledge, and the standard of review. For example, they will, in most instances, appeal errors of law, not fact, because errors of law are subject to de novo review. And they will present only the strongest legal arguments on appeal and support them with compelling facts and precedent.

5.    They are exceptional writers.

The best appellate advocates know how to write and communicate persuasively. They draft outstanding appellate briefs (see, e.g., John Roberts’ brief in Alaska v. EPA) that, among other things, have a strong theme, begin with a compelling introduction, tell a powerful story, use precedent effectively, and distinguish unfavorable facts and law convincingly. They draft briefs that address counterarguments thoroughly and persuasively. They know how to use various literary techniques to capture the audience’s attention and enhance the readability of their brief. They draft and re-draft their brief (often countless times), making line and copy edits to ensure that the brief is as close to perfect – in style and substance – as possible. In so doing, they produce a first-rate product, which enhances their credibility with the court and the legitimacy of their argument.

6.    They are outstanding oral advocates.

The best appellate lawyers are exceptional oral advocates. They know how to persuade an audience using verbal and non-verbal techniques. They are prepared. They present well-organized and convincing legal arguments. They are skilled at answering the judges’ questions concisely and effectively. They are never flustered. They have outstanding memories and can recall precedents and facts in the record without notes. In short, they own the courtroom.

7.    They are extremely thorough and methodical.

The best appellate lawyers thoroughly and methodically review the underlying record and relevant law. They know how to research efficiently and never fail to identify a relevant case, statutory provision, or regulation. They are skilled at identifying, among other things, subtle errors or inconsistencies in the record and flaws in evidentiary rulings. And they do so carefully and intentionally; they take the time to review and reflect upon the record, the possible appealable issues, and the likelihood of success on the merits.

8.    They are confident.

The best appellate advocates know that perception – and appearance – matter just as much as reality. They have confidence and, quite frankly, swagger. They never appear nervous. They conduct themselves as if every development in the courtroom, however unexpected, is precisely what they anticipated. They are never surprised or taken off guard by the judges’ questions. They do not get emotional. They do not exude arrogance or hubris. Instead, they are prepared, self-assured, and unflappable. As stated above, they own the courtroom.

9.    They win.

As Vince Lombardi said, “winning isn’t everything; it’s the only thing.” The best appellate advocates win consistently. They sustain their success over years. They are the best of the best.

August 27, 2022 in Appellate Advocacy, Appellate Practice, Law School, Legal Profession, Legal Writing, Oral Argument | Permalink | Comments (0)

Storytelling for Appellate Writing: A Few Tips on Using the Theory of the Case

In the most recent ABA Journal, Chris Arledge discusses how well storytelling can assist in many aspects of trial practice.  See Making Your Case:  Storytelling Problems and Solutions, 104 ABA Journal 16-17 (Aug./Sept. 2022).  Arledge’s interesting article on applying the craft of “other professional storytellers—like novelists, journalists, advertisers and filmmakers” to trial practice reminded me just how much our job as appellate advocates is storytelling.  See id.

 

In the appellate and academic worlds, we have many great books and even conferences on using storytelling to represent our clients.  See, e.g., LWI’s co-sponsored Applied Legal Storytelling Conference, https://www.lwionline.org/conferences/eighth-applied-legal-storytelling-conference.  If you are just starting to incorporate storytelling into your writing, I recommend consulting these resources.  In addition, I can share some tips that are popular with my writing students to hone your organization by using key tenants of storytelling to connect all parts of your briefs.

First, make sure you take the time to write out a specific theory of the case.  Using storytelling well, either in objective inter-office memos or persuasive external writing, requires a writer to truly understand the theory of the case.  Often, my students with large scale organization issues struggle to state their theories of the case.  Integrating one theory from an introductory “hook” through a compelling Statement of the Case and to a cogent Discussion requires consistent use of the same girding theory.

Second, distill your points into an “elevator story,” not just to persuade, but to explain the problem and give your suggested solution using storytelling.  Lately, I have asked students to create an elevator story of a one-minute oral summary of their Discussion or Argument sections.  I explain I am not just asking for a persuasive “pitch,” but want a true summary of their points.  If they cannot do the story in one minute or less, I suggest they go back to their outlines, look for an overarching idea they can use as the theory of the case, and then apply that theory to all parts of their papers.  Once writers have a strong theory of the case, they can much more easily use ideas of character and climax from storytelling.

As appellate writers, our job is to tell the story of what went well, or poorly, at trial, and to show how our suggested result will give our story the desired result.  Stressing your theory of the case as the connection between all parts of your writing will help you employ storytelling more deftly to reach that happy ending.  

August 27, 2022 in Appellate Advocacy, Appellate Practice, Legal Writing | Permalink | Comments (1)

Friday, August 26, 2022

Appellate Advocacy Blog Weekly Roundup Friday August 26

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

Supreme Court News and Opinions:

  • The Court issued a mid-summer orders list this week.  There wasn't much of particularly note in the list, but you can access the full list HERE.

Federal Appellate Court News and Opinions:

  • This week the Tenth Circuit Court of Appeals reversed a ruling in a case in which a former employee of a convicted Ponzi schemer had been convicted of receiving inappropriate benefits from wages paid by an investor.  More HERE.
  • On Wednesday, the Fifth Circuit Court of Appeals, in a Per Curiam En Banc opinion, issued a ruling that upheld a Jim Crow-era provision that bars Mississippians convicted of felonies — roughly 10% of the population — from taking part in elections.  More HERE.

Appellate Jobs:

  • The First Court of Appeals, Houston, Texas, is accepting applications for the position of staff attorney to work in the chambers of one of the court's justices.  More information HERE.
  • The Office of the Appellate Defender, a New York provider of legal representation to people who cannot afford to pay an attorney for the appeal of a felony conviction, is taking applications for the position of managing attorney.  More information HERE. 

August 26, 2022 | Permalink | Comments (1)

Sunday, August 21, 2022

Providing Fresh Perspective at Oral Argument

Common wisdom holds that an advocate can lose a case at oral argument, but rarely prevails at the argument. By providing a wrong or weaker answer than expected, an otherwise allied judge might rethink support of a position. However, it is rare that an advocate can provide an unexpected basis to win over a judge committed to the other side. Even as he claimed that oral argument makes a difference, Chief Justice William H. Rehnquist admitted that only in a “significant minority of cases” had he changed his mind after hearing argument.[1] A recent personal experience in oral argument has made me think about the difficulty of breaking through to judges whose minds were made up before argument.

In this instance, in a trial court hearing a motion to dismiss, one question from the judge indicated that he had misunderstood the pleadings and our brief. He explained that the scenario contemplated by this declaratory judgment action would never come up in real life. Even though I responded with an entirely different fact pattern consistent with the pleadings and past experience, it had no impact. The argument ended with the judge picking up a sheet of paper and reading his pre-typed ruling from the bench. Whatever doubt I may have planted with my unanticipated response evaporated as the preconceived result, memorialized on paper without regard to the oral presentations, prevailed.

I’m convinced that nothing I might have said at oral argument would have made a difference. The “crutch” of a written decision prepared in advance was too much to overcome. Still, it demonstrated the importance of briefing to make oral argument worthwhile. Anticipating the judge’s confusion about the practicalities of our position with a more pointed explanation would have provided at least a fighting chance to change the judge’s mind when it was still open to how the challenged statute and the plaintiffs’ dilemma operated in real life. However much I thought our brief made that plain, it was only as I prepared for oral argument that I realized a better way of framing the factual predicate to my legal argument – and that’s what I explained before the judge.

On the other hand, another recent case provided greater confidence that oral argument can have influence. Lengthy majority and dissenting opinions struggled with crediting or rebutting a point made during the argument. What was said had an obvious impact and forced judges of vastly different views to contend with it.

Judges may have strong reactions in some cases or even in all cases to their understanding of what the case is about, making the job of dissuading them from a view that works against your position difficult, if not impossible. Nonetheless, an advocate should always assume that judges have sufficient impartiality so that oral argument can help shape the opinion, if not persuade, even while crafting a brief that lays out the argument clearly. That is one reason I like a hot bench. Rather than give an oration, I am more interested in arguing about what the judge indicates is important – and perhaps providing a new insight that wins the day.

 

[1] William H. Rehnquist, The Supreme Court 243 (2001).

August 21, 2022 in Appellate Advocacy, Appellate Practice, Federal Appeals Courts, Oral Argument, State Appeals Courts, United States Supreme Court | Permalink | Comments (0)

Saturday, August 20, 2022

Appellate Advocacy Blog Weekly Roundup Saturday, August 20, 2022

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

US Supreme Court Opinions and News

  • The Supreme Court issued an emergency order siding with voters challenging a Georgia voting system for electing public service commissioners. The decision reinstates a district court ruling that the system diluted the power of black voters and violated the federal Voting Rights Act. The Eleventh Circuit had stayed that order based on Purcell v. Gonzalez, a case that disfavors election challenges that occur too close to those elections. However, the Court agreed with a dissenting Eleventh Circuit judge who recognized that during the lower court case, Georgia had repeatedly and clearly waived an appeal based on Purcell; the Court found that the appeals court had “applied a version of [Purcell] that respondent could not fairly have advanced himself in light of his previous representations to the district court that the schedule on which the district court proceeded was sufficient to enable effectual relief as to the November elections should applicants win at trial.” See reports from The New York Times and CNN.

  • Colorado has filed a Brief for the Respondents in a case challenging Colorado’s anti-discrimination law. The Court agreed to hear the case in the next term. The petitioner is a web-designer who wishes to design wedding websites but not for same-sex couples. The petitioner wants to be able to deny services to same-sex couples and wants to include a message explaining the reason. Colorado law prohibits such discriminatory practices by public businesses and prohibits a business from declaring the intent to discriminate. The petitioner claims that the law is a violation of free speech. Colorado’s attorney general urges the Court to uphold the anti-discrimination law, arguing that “discrimination is not expression, it's illegal conduct.” See reports from the Colorado Sun and Colorado Public Radio.

Appellate Court Opinions and News

  • The DC Circuit decided that rules that limit the political speech of employees of the Administrative Offices of the US Courts are unnecessary and violate the First Amendment. The ruling applies only to the two employees who brought the challenge and not generally to other employees. The court recognized the legitimate goal of maintaining the reputation of the judiciary for independence from politics while workers are at work but held that the offices “cannot prohibit political speech by [employees] when they are away from work and in no way affiliating themselves with the Judiciary.” See the ruling and reports from The National Law Journal and Reuters.

  • In a first-of-its-kind ruling, the Fourth Circuit ruled that gender dysphoria is covered by the Americans with Disabilities Act, reversing a Virginia court’s dismissal of claim brought by a transgender woman. The woman had been denied care for her gender dysphoria while she was incarcerated and was harassed by both inmates and prison staff. The court held that “[g]iven Congress’ express instruction that courts construe the ADA in favor of maximum protection for those with disabilities, we could not adopt an unnecessarily restrictive reading of the ADA.” See the ruling and reports from The Washington Post, The National Law Review, and The National Law Journal.

  • The First Circuit ruled that taxpayers can sue the IRS over its tactics for obtaining information even if those tactics would enable to government to assess and collect taxes. A crypto trader challenged the IRS’s use of a tactic to obtain trading records from cryptocurrency exchanges arguing that the tactics violated his Fourth and Fifth Amendment rights. The IRS had argued successfully below that the suit violated the Anti-Injunction Act of the Internal Revenue Code because the aim of the suit was to avoid the collection of taxes. The First Circuit overturned the dismissal below and will allow the suit to heard on the merits of the constitutional claims.  See ruling and report from Reuters. 

August 20, 2022 in Federal Appeals Courts, United States Supreme Court | Permalink | Comments (0)

Wednesday, August 17, 2022

Writing like Justice Kavanaugh

This week, I'll note some elements of Justice Kavanaugh's style from a 2019 case, Flowers v. Mississippi

1., 2. Syllogistic opening and bottom line up front. As discussed in prior posts, this is (almost) a universal in good legal writing--a little law, a few choice facts, and a conclusion either express or implied that flows from the two.  Justice Kavanaugh is also inclined to give spoilers at the start (which we practitioners love). 

A little law: “In Batson v. Kentucky . . . this Court ruled that a State may not discriminate on the basis of race when exercising peremptory challenges against prospective jurors in a criminal trial.”

Some facts: “In 1996, Curtis Flowers allegedly murdered four people in Winona, Mississippi. Flowers is black. He has been tried six separate times before a jury for murder. The same lead prosecutor represented the State in all six trials. In the initial three trials, Flowers was convicted, but the Mississippi Supreme Court reversed each conviction. In the first trial, Flowers was convicted, but the Mississippi Supreme Court reversed the conviction due to "numerous instances of prosecutorial misconduct." . . . In the second trial, the trial court found that the prosecutor discriminated on the basis of race in the peremptory challenge of a black juror. The trial court seated the black juror. Flowers was then convicted, but the Mississippi Supreme Court again reversed the conviction because of prosecutorial misconduct at trial. In the third trial, Flowers was convicted, but the Mississippi Supreme Court yet again reversed the conviction, this time because the court concluded that the prosecutor had again discriminated against black prospective jurors in the jury selection process. . . . The fourth and fifth trials of Flowers ended in mistrials due to hung juries. In his sixth trial, which is the one at issue here, Flowers was convicted. The State struck five of the six black prospective jurors. 

Conclusion: "[A]ll of the relevant facts and circumstances taken together establish that the trial court committed clear error in concluding that the State’s peremptory strike of black prospective juror Carolyn Wright was not "'motivated in substantial part by discriminatory intent.'" 

3. Lists galore. Justice Kavanaugh loves to use lists to organize his writing and distill his reasoning. I found five in this opinion alone: 

"Four critical facts, taken together, require reversal. First , in the six trials combined, the State employed its peremptory challenges to strike 41 of the 42 black prospective jurors that it could have struck—a statistic that the State acknowledged at oral argument in this Court. . . . Second , in the most recent trial, the sixth trial, the State exercised peremptory strikes against five of the six black prospective jurors. Third , at the sixth trial, in an apparent effort to find pretextual reasons to strike black prospective jurors, the State engaged in dramatically disparate questioning of black and white prospective jurors. Fourth , the State then struck at least one black prospective juror, Carolyn Wright, who was similarly situated to white prospective jurors who were not struck by the State."

"Jury selection in criminal cases varies significantly based on state and local rules and practices, but ordinarily consists of three phases, which we describe here in general terms. First, a group of citizens in the community is randomly summoned to the courthouse on a particular day for potential jury service. Second, a subgroup of those prospective jurors is called into a particular courtroom for a specific case. The prospective jurors are often questioned by the judge, as well as by the prosecutor and defense attorney. During that second phase, the judge may excuse certain prospective jurors based on their answers. Third, the prosecutor and defense attorney may challenge certain prospective jurors."

"Four parts of Batson warrant particular emphasis here. First, the Batson Court rejected Swain’s insistence that a defendant demonstrate a history of racially discriminatory strikes in order to make out a claim of race discrimination. . . . Second, the Batson Court rejected Swain’s statement that a prosecutor could strike a black juror based on an assumption or belief that the black juror would favor a black defendant. . . . Third, the Batson Court did not accept the argument that race-based peremptories should be permissible because black, white, Asian, and Hispanic defendants and jurors were all “equally” subject to race-based discrimination. . . . Fourth, the Batson Court did not accept the argument that race-based peremptories are permissible because both the prosecution and defense could employ them in any individual case and in essence balance things out."

"Of particular relevance here, Batson’s holding raised several important evidentiary and procedural issues, three of which we underscore. First, what factors does the trial judge consider in evaluating whether racial discrimination occurred? . . . Second, who enforces Batson?  . . . Third, what is the role of appellate review?"

"Four categories of evidence loom large in assessing the 1) the history from Flowers’ six trials, (2) the prosecutor’s striking of five of six black prospective jurors at the sixth trial, (3) the prosecutor’s dramatically disparate questioning of black and white prospective jurors at the sixth trial, and (4) the prosecutor’s proffered reasons for striking one black juror (Carolyn Wright) while allowing other similarly situated white jurors to serve on the jury at the sixth trial. We address each in turn."

4. Break up those long sentences. Varying sentence length can help speed the reader along or slow her down, depending on what you're trying to emphasize. But as a general rule, prefer short--words, sentences, paragraphs, briefs, opinions--to long. Justice Kavanaugh seems to enjoy breaking up sentences that most lawyers would put together. For example,

"We cannot just look away. Nor can we focus on the Wright strike in isolation." Many judges would probably write something like "We cannot ignore an overall pattern by focusing on a single juror strike in isolation." Breaking it up makes it the statements have greater urgency, which helps persuade the reader of the need for the result here.

"In this case, Carolyn Wright was a black prospective juror who said she was strongly in favor of the death penalty as a general matter. And she had a family member who was a prison security guard." Again, most would likely put these details about a single juror in a single sentence. But again, breaking it up emphasizes each fact put forward. Very effective.

5. Put the dots close enough so that the reader will connect them before you do. I won't cut an paste the fact section here, but Justice Kavanaugh does a very effective job of showing the reader the facts in a way that helps the reader come to reach the conclusion he wants--small town, deep South, closely divided along racial lines, mostly white victims, black defendant, white prosecutor, etc. In memoranda and briefs, the fact section shouldn't contain argument. Like opening statement, it should just lay out the facts. To use a homely metaphor, it should lay out the dots that you later connect in argument. But if you lay out the dots skillfully enough, the reader will connect the dots for herself before you do it explicitly. Having the reader reach the conclusion on her own is so much more effective than just telling her what to think. 

6. Nice turns of phrase. Justice Kavanaugh likes a bit of style with his substance, as shown by a few good turns of phrase:

"And to understand how equal protection law applies to peremptory challenges, it helps to begin at the beginning."

"In the eyes of the Constitution, one racially discriminatory peremptory strike is one too many."

"One can slice and dice the statistics and come up with all sorts of ways to compare the State’s questioning of excluded black jurors with the State’s questioning of the accepted white jurors."

"In the decades since Batson, this Court’s cases have vigorously enforced and reinforced the decision, and guarded against any backsliding." "We simply enforce and reinforce Batson by applying it to the extraordinary facts of this case."

7. Change up syntax. As the Chief Justice is wont to do, Justice Kavanaugh also likes to change up syntax from time to time, putting the subject later in the sentence for emphasis: "Ratified in 1868 in the wake of the Civil War, the Equal Protection Clause of the Fourteenth Amendment provides that no State shall 'deny to any person within its jurisdiction the equal protection of the laws.'" Subtext: the Civil War itself was fought to put an end to discrimination like this. 

8. Don't bury good stuff in parentheticals. "A primary objective of the Equal Protection Clause, this Court stated just five years after ratification, was “the freedom of the slave race, the security and firm establishment of that freedom, and the protection of the newly-made freeman and citizen from the oppressions of those who had formerly exercised unlimited dominion over him.” Many attorneys or judges would have put that part in a parenthetical after the case cite. If it's persuasive, you want it in the body. 

9. If you're going to have a long string cite, make it simple. "In the decades after after Strauder, the Court reiterated that States may not discriminate on the basis of race in jury selection. See, e.g., Neal v. Delaware, 103 U.S. 370, 397, 26 L.Ed. 567 (1881); Carter v. Texas, 177 U.S. 442, 447, 20 S.Ct. 687, 44 L.Ed. 839 (1900); Norris v. Alabama, 294 U.S. 587, 597–599, 55 S.Ct. 579, 79 L.Ed. 1074 (1935); Hale v. Kentucky, 303 U.S. 613, 616, 58 S.Ct. 753, 82 L.Ed. 1050 (1938) (per curiam); Pierre v. Louisiana, 306 U.S. 354, 362, 59 S.Ct. 536, 83 L.Ed. 757 (1939); Smith v. Texas, 311 U.S. 128, 130–131, 61 S.Ct. 164, 85 L.Ed. 84 (1940); Avery v. Georgia, 345 U.S. 559, 562, 73 S.Ct. 891, 97 L.Ed. 1244 (1953); Hernandez v. Texas, 347 U.S. 475, 477–478, 482, 74 S.Ct. 667, 98 L.Ed. 866 (1954); Coleman v. Alabama, 377 U.S. 129, 133, 84 S.Ct. 1152, 12 L.Ed.2d 190 (1964)."

Most readers are not going to examine these cites in detail, so no need to get bogged down in a bunch of parentheticals. 

10. Focus on topic sentences. There are two many to reproduce here, but do yourself a favor and go through the opinion by reading only the first sentence of each paragraph. You will get the entire reasoning of the opinion, and they will read smoothly, as if they were not separated by a bunch of other text. This is a mark of a great writer, because it takes a lot of time and skill to make things that simple and connected. 

11. Short sentence starters. Like many of his colleagues--and perhaps to an even greater degree--Justice Kavanaugh likes short words to start his sentences. The first forty sentences, for example: In; In; He; In; In; The; Flowers; In; The; The; The; In; The; In; We; Four; First; Second; Third; Fourth; We; All; In; We; The; Winona; The; The; In; Three; In; Since; In; In; The; At; The; The; The; etc. Of the first 40, only three had more than one syllable. Wow. The pattern continues throughout the opinion.  

12. Tell 'em what you told 'em. "In sum, the State’s pattern of striking black prospective jurors persisted from Flowers’ first trial through Flowers’ sixth trial. In the six trials combined, the State struck 41 of the 42 black prospective jurors it could have struck. At the sixth trial, the State struck five of six. At the sixth trial, moreover, the State engaged in dramatically disparate questioning of black and white prospective jurors. And it engaged in disparate treatment of black and white prospective jurors, in particular by striking black prospective juror Carolyn Wright. To reiterate, we need not and do not decide that any one of those four facts alone would require reversal. All that we need to decide, and all that we do decide, is that all of the relevant facts and circumstances taken together establish that the trial court at Flowers’ sixth trial committed clear error in concluding that the State’s peremptory strike of black prospective juror Carolyn Wright was not motivated in substantial part by discriminatory intent. In reaching that conclusion, we break no new legal ground. We simply enforce and reinforce Batson by applying it to the extraordinary facts of this case."

After going through a detailed argument, a good conclusion will encapsulate your argument and help reinforce it without being needlessly or gratingly repetitive. Justice Kavanaugh does that effectively here. 

 

 

 

 

 

August 17, 2022 | Permalink | Comments (0)

Monday, August 15, 2022

Advice to 1Ls--Part II

Last week I posted some advice to 1L law students. Adam has posted some advice too. When I wrote my initial post, I wanted to include more items, but the demands of life (sick kids and a book deadline) cut down on my blogging time.  Today I would like to finish up my post.

#6—Don't make enemies on campus (or make only friends on campus). Look, I get it, you will not be BFFs with every other student in your class. That is fine. But, what you don't want to do is make enemies. Your classmates will be your professional colleagues after law school. Many of them will remember you as you were in law school. So, if you are a jerk, they will remember you as a jerk. This will impact how they treat you in cases that you have together or opposite each other. Further, you will find that a decade or two out of law school, some of your classmates assume pretty important positions. (I have classmates who are federal and state judges, one governor, several folks who have served in important state roles, and partners at major law firms.) You never know where your classmates will end up. Keeping your relationships with classmates and faculty civil will help you a lot in the long run.

#7—Keep at least one hobby in law school. It is easy to forget who you are as a person while you are a law student. You could do you class reading 5 times and still not fully understand it. You should devote a large part of your day to law school, but don't forget who you are as a person. For example, I love to walk. As a law student I would do these epic walks around Cambridge and Boston some weekends. It was a great chance for me to clear my head. I also used this time (and time in the gym) to listen to audio books. I have always loved reading, but as a law student I had a hard time picking up a paper copy of a fiction book (since I already did so much reading). That is what worked for me, for others it might be music, dancing, running, knitting, or gaming. Whatever it is, keep one hobby (even if you might have to scale it back just a bit). In addition to whatever hobby you keep, get regular exercise. Getting regular exercise will help both your physical and mental health. Other than my random long walks, I didn’t get much exercise until my 2L and 3L year. I regret not starting sooner.

#8—Live like a student. Try to avoid taking out a lot of debt as a law student. This means when you are a student, you might need to forgo the newest laptop and cellphone and cut back on your streaming subscriptions. Less debt offers more employment opportunities. I tried hard to minimize my debt, which allowed me to work in some interesting government jobs out of law school. And while I think that minimizing debt is good, I would be careful about working your 1L year. I know that some students must work, but if you can just focus on law school your first year, I recommend doing that.  

#9—Try out different areas of the law. Even if you think you know what you want to do with your legal career, you might be surprised to find out that you either (1) don’t like that line of work, or (2) find another line of work more interesting. I like to tell students that you get two summer experiences to try out areas of the law. Most law schools also offer internships and externships during the school year (although usually not as a 1L). These experiences will help you decide what to do with your legal education.

#10—Last, but not least, be sure to spell judgment correctly. This one is a bit of a freebie, but if you need convincing, see this article.

August 15, 2022 | Permalink | Comments (0)

Saturday, August 13, 2022

Honest Advice for Incoming Law Students

Incoming law students undoubtedly receive a substantial amount of advice regarding how to succeed in law school and the legal profession. Below is some honest advice based on experience and the realities of law practice.

1.    Focus on developing your analytical thinking and writing skills.

Great lawyers are extremely intelligent. They have exceptional analytical thinking and persuasive writing skills. Thus, in law school, you should focus predominantly on developing these skills.

Regarding your analytical thinking skills, learn, for example, how to quickly extract the rule of law from a case, synthesize rules from different cases, distinguish unfavorable facts and legal authority, reason by analogy, address counterarguments effectively, present a logical argument, and explain why the policy implications of a ruling in your favor lead to the fairest and most just result.

Concerning your writing skills, focus on, among other things, writing concisely and in plain language, presenting a well-structured and logical argument, crafting a compelling narrative, and avoiding common mistakes, such as unnecessary repetition, overly long paragraphs, over-the-top language, and spelling and grammatical errors.

2.    Your grades and class rank are incredibly important.

Your grades and class rank largely determine your prospects of obtaining membership on your school’s law review, being selected for a clerkship, and receiving job offers from prestigious law firms. Accordingly, from day one, focus on achieving the highest grade possible on your law school exams. In so doing, manage your time effectively, purchase the LEEWS legal essay exam writing system (www.leews.com), buy commercial outlines, such as Emanuel Law School outlines, take practice exams, use the IRAC/CRAC method in answering your exam questions, draft concise outlines, and learn the rules of law for each subject (not the facts of the cases you studied).[1] Finally, read Getting to Maybe: How to Excel in Law School Exams.[2]

Also, do not worry about performing well in class when the professor calls on you or about impressing your classmates with incisive questions or comments. This has no (or a very minimal) impact on your grade. Additionally, do not brief cases. Instead, learn the black-letter law and practice applying the law to hypothetical fact patterns. And learn how to draft an answer that flows logically, considers all relevant perspectives, and arrives at a reasonable conclusion.

Having said this, law schools provide wonderful opportunities to network, get involved in student organizations, and participate in other extracurricular activities. You should take advantage of these opportunities. But at the end of the day, grades and class ranking are what matter.

3.    Your soft skills matter too.

To be a great lawyer, it is not enough to be extremely intelligent and a gifted writer. Although these skills are critical to your success, they are not sufficient to ensure a successful legal career.

Great lawyers have humility. They have strong interpersonal skills. They have emotional intelligence. They listen. They know how to work collaboratively and accept constructive criticism. They have common sense and exercise good judgment. They know how to manage their time and work efficiently. They know how to communicate effectively, think creatively, and adapt to new circumstances. And ideally, they are nice people; they are respectful and decent, not arrogant and narcissistic.

When you begin law school, you will undoubtedly confront students who are jerks and it will not take long to spot them. Typically, they think they are better than everyone else. They have the emotional maturity of a five-year-old. They gossip. They ask you what your LSAT score was and what grade you received on your exams. These losers should be avoided at all costs. And when they become lawyers (or, worse, married), their prospects for success will diminish (and the likelihood of divorce increase) because of their personality. Do not be like these people – or associate with them.

4.    Lose your idealism and be realistic about what law practice entails.

When you begin your law school career, you will almost certainly be overwhelmed with platitudes about the law and a legal career. For example, you may hear statements to the effect of “the law is a noble calling and the vehicle by which you can achieve a more just and equal society,” or “lawyers are the agents of social change whose mission is to change the world and make a transformative difference in people’s lives.”

This sounds wonderful. But it is not the reality of what you will be doing as a lawyer. So, if your reason for going to law school is to “make a difference” and to “change the world,” you are going to be disappointed.

Most competent graduates will obtain jobs in private law firms that do litigation and transactional work. They will represent, for example, banks, corporations, developers, universities, and hospitals. They will work long hours under stressful conditions. They will spend most of their time drafting pleadings, motions, briefs, and discovery, taking depositions, dealing with difficult clients, and negotiating settlement offers. Of course, there is nothing wrong with this; lawyers provide a vital service to these clients and ensure that their legal rights are protected.

But disabuse yourself of the notion that you are going to change the world. And be honest with yourself about the realities of the world. If you think that most criminal defendants are innocent, you are delusional. If you think that the vast majority of law enforcement officers are racist and that most prosecutors spend their time convicting innocent people, you are mistaken. Not to mention, the majority of cases result in a plea bargain (or in civil cases, a settlement).

This is not to say that the practice of law is not a noble undertaking; indeed, lawyers have been responsible for protecting civil rights and liberties and achieving greater social and constitutional protections for citizens. It is to say, however, that this is not the common or everyday experience of most lawyers.

5.    Be mindful of incurring too much debt.

As has been well-documented, many law students incur crushing, six-figure, non-dischargeable debt and, upon graduation, struggle to find a job to justify that debt. Do not be one of those people.

Now, this does not mean that incurring debt is always a bad thing. If, for example, you are accepted to Yale, Harvard, Stanford, or Chicago, and intent on being a litigator at a large law firm, the debt you incur will likely represent a small fraction of your career earnings. But if you are accepted at a fourth-tier law school where only some graduates obtain full-time jobs in law firms and make modest salaries – and you are not offered a substantial scholarship – you should probably not attend.

Ultimately, make sure to review a law school’s American Bar Association 509 report to assess, among other things, the employment outcomes of its graduates, the types of jobs that graduates obtain, and their average starting salary.

6.    Take care of your physical and mental health.

It is no secret that many lawyers are unhappy and that the practice of law is stressful. This should not be surprising; how would you feel if you had to spend hours, days, and years reviewing documents, answering interrogatories, responding to nonsensical motions, and dealing with difficult clients (and unpleasant colleagues who somehow managed to find their way into the legal profession).

To be sure, one survey found that 45% of lawyers suffer from depression, and 36% struggle with substance abuse issues.[3] And approximately 28% of lawyers get divorced, a number that is likely higher for those who work in large law firms.[4]

Given these facts, when entering law school and the legal profession, be sure to prioritize your physical and mental health. Develop healthy coping skills to deal with stress and adversity. Ask for help when you need it. If you are depressed or struggling with anxiety, for example, seek professional help and try cognitive behavioral therapy. Experiment with meditation. Exercise. Focus on getting optimal nutrition, take supplements if needed (e.g., multivitamins, fish oil), and get sufficient sleep. Have a personal life and pursue interests and activities that are unrelated to the law. If you allow law practice to control your life, you will find yourself burned out, unhappy, and unfulfilled.

Perhaps most importantly, avoid the common pitfalls. Do not abuse alcohol or drugs to manage stress. And do not be a victim. Do not blame others – or circumstances – for your problems. Take ownership of your life – and your choices.

7.    Be honest with yourself about what you want – and whether a legal career will make you happy.

As you proceed in your law school career, be honest with yourself. Are you passionate about becoming a lawyer? Do you understand fully the demands of law practice? Can you manage the stress, the long hours, and the difficult clients? Are you comfortable with drafting countless motions and briefs, and engaging in prolonged discovery? Are you willing to accept less time with family, friends, and partners? Can you accept the fact that, as a lawyer, you are probably not going to change the world and be the lead counsel in a landmark case before the United States Supreme Court?

If the answer is no, do not be afraid to make a change. At the end of the day, your happiness matters more than anything, and if you are not passionate about, and willing to make personal sacrifices for, a legal career, it may not be worth pursuing. Having the courage to make a change now will benefit you for a lifetime. Simply put, do what is right for you, not what others expect of you, or what you think you should do.

Life is short, and there is much more to life than law. Your family, your relationships, and your friends are far more important than winning a summary judgment motion or an appeal. So put yourself – and your happiness – first.

 

[1] See, e.g., www.leews.com Order Audio (CD) Program (incl. Primer [10th edition]) or Primer Alone (leews.com); Emanuel Law Outlines: Constitutional Law, Thirty-First Edition (Emanual Law Outlines): Steven L. Emanuel: 9781454824817: Amazon.com: Books

[2] Richard Fischl & Jeremy Paul, Getting to Maybe: How to Excel in Law School Exams (Brown Co., 1st ed. 1999), available at: Buy Getting to Maybe: How to Excel in Law School Exams Book Online at Low Prices in India | Getting to Maybe: How to Excel in Law School Exams Reviews & Ratings - Amazon.in.

[3] See Priscilla Henson, Addiction and Substance Abuse in Lawyers: Statistics to Know (July 5, 2022), available at: Addiction & Substance Abuse in Lawyers: Statistics to Know (americanaddictioncenters.org)

[4] See Leslie Satterlee, A Fool For a Client: Why Lawyers Should Not Represent Themselves in Divorce, available at: A Fool for a Client: Why Lawyers Should Not Represent Themselves in Divorce – woodnicklaw.com; Harrison Barnes, Why Big Law Firms Attorneys Are So Likely to Get Divorced: Stressed, Tired, Mad and With Nothing More to Give, available at: Why Big Law Firms Attorneys Are So Likely to Get Divorced: Stressed, Tired, Mad and With Nothing More to Give | BCGSearch.com

August 13, 2022 in Law School, Legal Profession | Permalink | Comments (2)

Monday, August 8, 2022

Advice to 1Ls--Part I

In the next few weeks, a new class of law students will flock to law school campuses for orientation and the start of classes. If you are one of those new students--welcome! Over the next few weeks, you will be inundated with advice on how to survive law school. Allow me to chime in with advice gathered from a decade plus of teaching and attending law school twice--one as a student and once as the spouse of a law student. Because this blog is focused on appellate advocacy, I will give a few tips too for students interested in an appellate career. I am going to post 5 tips this week and 5 more next week.

#1—Read the syllabus, the course website, and emails from your professor. Before your class starts, you should carefully review the course documents. These documents should give you valuable information about the course, and your professor will expect you to be informed on what they contain—like due dates and formatting rules.  These course documents are similar to court rules, something that you as an attorney will be expected to know and follow when handling a matter.

#2—Go to office hours. Chances are really good that your professors are a cool group of people with vast legal experience and connections. You should get to know your professors by visiting them in office hours. Ask them questions about the course, ask them questions about the practice of law, ask them questions about their careers. These visits will provide you will valuable information about the course and about possible legal careers. It will also help your professors write you letters of recommendation since they will know who you are apart from the in-class experience.

#3—Go to cool events on campus.  Is there a judge coming to talk to a student group? Perhaps an alum is giving a talk on their niche practice area? Maybe a court is hearing oral argument on a case. Whatever it is, try to go to these events. Not only will you likely get free food, but you will also learn something new. When I was in law school I got to meet the Watergate prosecutor Archibald Cox and his wife of 70 years. He was being honored with a portrait unveiling and the whole Harvard Law community was invited. I was surprised that few students attended, but I am glad that I went!

#4—Recognize that you will probably suffer from imposter syndrome. Unfortunately, at some point during your 1L year you will probably suffer from imposter syndrome, meaning you will think that you only got into law school by some sort of lucky (or maybe unlucky) mistake and you are not worthy to be a law student. Imposter syndrome stinks but is also very prevalent. I had (sometimes still have) it. I suspect that most law students do too. Law school is hard and overwhelming, especially for first generation students. I would encourage you to talk to a trusted mentor about your feelings, and maybe even some close law school friends or faculty if you feel comfortable. You will be surprised what you hear!

#5—Understand that the amount that you talk in class rarely correlates with good grades. I am not telling you to not participate in class—you should participate. But please understand that those students who talk all the time (we called them gunners) do not have their #&*$ together any more than you do. Nearly everyone in your class is struggling to adapt to law school.

August 8, 2022 in Law School | Permalink | Comments (0)

Sunday, August 7, 2022

Agency Deference and Statutory Interpretation

Courts often defer to administrative agencies on matters that require the agency’s specialized expertise. Yet even the embattled Chevron deference doctrine[1] puts the brakes on judicial deference sensibly when Congress has spoken on the matter. After all, the statute’s meaning must reflect legislative intent.[2]

Still, in defending the constitutionality of a statute, States will ask courts to read the statute more narrowly than its language supports, to avoid invalidation as applied to common situations. The Supreme Court has supplied advocates with precedent that should overcome these attempts to recast legislative language, particularly where free speech concerns predominate.

For example, in consolidated lawsuits in Susan B. Anthony List v. Driehaus,[3] two organizations brought facial and as-applied challenges to an Ohio statute that prohibited certain false statements made during a political campaign. The plaintiffs alleged that they intended to make statements that could be deemed false and then “face[] the prospect of its speech and associational rights again being chilled and burdened,” as it had when a complaint about their speech was previously filed.[4]

In holding that pre-enforcement standing existed, the Court found Babbitt v. Farm Workers[5] instructive. There, the plaintiffs challenged a law that proscribed “dishonest, untruthful, and deceptive publicity.”[6] The plaintiffs alleged that they feared prosecution because erroneous statements are “inevitable in free debate,” that they had engaged in past consumer publicity campaigns and any future campaign would be scrutinized for truthfulness, and that they had “an intention to continue” campaigns like the ones they had mounted in the past.[7] Notably, they did not claim that past campaigns were dishonest or deceptive or that future campaigns would be, or that any official action against them was likely or imminent. Still, Babbitt concluded that the “plaintiffs’ fear of prosecution was not ‘imaginary or wholly speculative’” given the statute’s language and allowed the case to proceed.[8]

Two other cases also informed the Susan B. Anthony Court’s analysis. Virginia v. Am. Booksellers Ass’n Inc.,[9] found a credible threat of enforcement to a law that criminalized the commercial display of printed material deemed harmful to juveniles. At trial, the plaintiff booksellers named “16 books they believed were covered by the statute” and how compliance to avoid prosecution would be costly.[10] In defense, Virginia contended that the statute was “much narrower than plaintiffs allege” and even conceded that the law would be unconstitutional “if the statute is read as plaintiffs contend.”[11] Nonetheless, the Court found no reason to believe the “newly enacted law will not be enforced” and that one plain harm is “self-censorship; a harm that can be realized even without an actual prosecution.”[12]

In the end, a reasonable reading of a statute based on its language and the lack of discretion an agency (or a court) has to re-write a statute, a purely legislative act, requires the appellate advocate to push back on agency attempts to recast plain language into a more defensible posture.

 

[1]  Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 468 U.S. 837 (1984).

[2]  Consumer Prod. Safety Comm’n v. GTE Sylvania, Inc., 447 U.S. 102, 108 (1980).

[3]  573 U.S. 149 (2014).

[4]  Id. at 155.

[5]  442 U.S. 289 (1979).

[6]  Id. at 302.

[7]  Id. at 301.

[8]  Susan B. Anthony, 573 U.S. at 160 (quoting Babbitt, 442 U.S. at 302).

[9]  484 U.S. 383 (1988).

[10] Susan B. Anthony, 573 U.S. at 160 (describing American Booksellers)

[11] Am. Booksellers, 484 U.S. at 393-94.

[12] Id. at 393.

August 7, 2022 in Appellate Advocacy, Federal Appeals Courts, State Appeals Courts, United States Supreme Court | Permalink | Comments (2)

Thursday, August 4, 2022

Putting the Audience First: The Writing Tactic of Restatement

Thursday’s Rhaw Bar: A Little Bite of All Things Rhetoric and Law—exploring ideas, theories, strategies, techniques, and critiques at the intersection of rhetoric and legal communication.

Putting the Audience First:  The Writing Tactic of Restatement

In May, I wrote the post, Putting the Audience First:  A Perspective on Legal Writing.   In that post, I encouraged readers to adopt a perspective on legal writing that always—always—has at its core the goal of meeting the needs of the actual, imagined, and implied audiences of the document.  (If you haven’t yet read that post, I think it’s worth your time to read it before reading this one.)   In that post, I promised that June’s post would be about the tactics of an audience-first perspective.  Well, June turned out to be terribly unkind to my family; we had a family member with a serious, hospital-stay-causing (but temporary) illness.  So, with apologies, here’s the post I promised for June.

Audience-First Perspective, Effective Writing Choices

In May I wrote that a good legal writer imagines the audience and writes for that audience, anticipating needs and meeting them.  An even better legal writer recognizes that documents also imply an audience; that is, how the document is written suggests an audience for that document.  As such, the work of the writer is not just to anticipate the needs of an audience but to also create needs the writer wants the audience to have and then use the document to satisfy those needs.  Ultimately, writers that meet audience needs are more likely to influence those audiences.  Accordingly, I suggested that the legal writer’s prime directive is this: 

 In a deliberate way and in every writing choice, put the audience first.

This directive to put the audience first should lead the writer to identify and deploy writing tactics—the tools in the writer’s toolbox—that best satisfy audience needs.  One tactic that cuts across different types of documents and purposes for writing is the rhetorical tool of restatement.

Restatement as a Tactic of Audience-First Writing

Restatement as a writing tactic is a way of calling attention to a concept, point, or idea by stating that information in a different form, one that is often more convincing, clear, or both.  Restatement is a powerful rhetorical tactic for satisfying the needs of audiences because restatement can

  • Emphasize important ideas;
  • Enable the audience to more easily remember important ideas;
  • Clarify concepts that might be confusing to the audience; and
  • Add a gloss on concepts or ideas that convey emotion or theme to the audience.

Signposts should accompany restatements.  Good signposts for restated information include

  • In other words
  • That is
  • Stated another way.

Each of these phrases put the audience on notice that what follows is the restatement of the same idea in a new way. (In general, it’s almost always true that you should put your reader on notice of your next writing move. That’s why transitions are so important to understandable writing.)

Examples of Restatement from Appellate Briefs

Here's an example of restatement in an amicus brief in Axon Enterprise, Inc. v Federal Trade Commission.  The question in this case is whether the federal district courts have jurisdiction to hear constitutional challenges to the FTC’s “structure, procedures, and existence.”  Pay particular attention to what happens in the second sentence below:

Thus, “if one part” of government “should, at any time, usurp more power than the constitution gives, or make an improper use of its constitutional power, one or both of the other parts may correct the abuse, or may check the usurpation.” Id. at 707–08. Each branch, in other words, must ensure that the others stay in their constitutional lanes.

This excerpt is a good example for seeing how restatement can be an audience-centered rhetorical tool.  The brief apparently uses restatement because the quoted language in the first sentence is somewhat complicated. This complication is in part because the quote is from 1791 and because the quote is addressing how the branches of government operate under the U.S. Constitution.  In some situations, writers would want to avoid a quote like this and paraphrase the ideas within the quote. The paraphrase is a “shortcut” for getting to the essential meaning the writer wants to convey when the original language is complex. 

So, why would a brief include a complicated quote?  One explanation is that a writer might think a quote is persuasive because quote’s author is meaningful to the brief’s readers.  That might explain the quote in this brief.  Here, the quote is from James Wilson’s 1791 lectures on law at the College of Philadelphia.  Wilson had participated in drafting the Constitution and had served as a United States Supreme Court Justice. His lectures addressed the U.S. Constitution and the way in which the federal government described within it operated. So, by including Wilson’s quote, the brief appeals to Wilson’s exact words as well as his ethos.

The brief keeps the original ideas in Wilson’s mouth, so to speak.  But by retaining the more complicated quote, the brief also creates a need in the audience to have clarity on what the quote means.  In this brief, clarity is accomplished with a short, punchy sentence that conveys the key point in a more emphatic and more memorable way and puts a gloss on the quoted language’s meaning:

Each branch, in other words, must ensure that the others stay in their constitutional lanes.

By using the phrase “in other words,” the brief signals to the reader that the sentence is a restatement.  Then the sentence restates Wilson’s quote in a more accessible way, by modifying a commonly used phrase, “stay in your lane,” to sum up what the quoted language directs the branches to do.  This restatement reduces complexity and it gives a reader a way to more easily remember the overarching concept about the roles of the separate branches.

 There’s also an emotional valence to the restatement—this is the gloss.  The metaphor of staying in one’s lane gives a modern vibe to an old idea.  Merriam-Webster says that “to stay in your own lane” “comes from football . . . where [it] is viewed as advice to worry about your own assignment and not take on the job of defending a different opponent, which can lead to blown coverages and chaos.” In addition, the phrase can mean to stick to your own area of expertise or to maintain your car in a particular lane of the highway.

Even if a reader doesn’t know these exact meanings, a reader is likely to feel the sense of orderliness and security that comes from staying in one’s own lane and getting the job done.  This feeling, perhaps, is the feeling the brief is hoping for in its audience—that it is good for each branch to ensure that the others stay within the confines of their own expertise.  As such, the restatement provides less complex and more memorable language that has an emotional “feel.”

Beyond satisfying the need of court audiences to easily grasp the content of briefs, restatement can be effective for speaking to other brief audiences.  Imagine the news headline that emphasizes the restatement:  Case asks whether branches must help others “stay in constitutional lanes.”  In other words, a simplified restatement could meet the needs of audiences to express a complicated legal idea in everyday language.

Here’s another example that presents a similar pattern of restatement.  This one is from the of the Brief for Petitioner in The Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith. Again, pay attention to the end of the paragraph.

Copyright ultimately rests on a “pragmatic,” utilitarian bargain: “[S]ociety confers monopoly exploitation benefits for a limited duration on authors and artists” to incentivize and promote “the intellectual and practical enrichment that results from such creative endeavors.” Leval 1109; see also Google, 141 S. Ct. at 1195 (noting that copyrights are granted “not as a special reward” to creators, but rather “to encourage the production of works that others might reproduce more cheaply”); Harper & Row Publishers, Inc. v. Nation Enters. 471 U.S. 539, 545 (1985) (copyright protection is “intended to increase and not to impede the harvest of knowledge”); supra at 4. In other words, copyright protection for creators serves the ultimate end of securing for the public a rich marketplace of ideas.

The Warhol case presents a question under copyright law’s fair use doctrine: whether Andy Warhol sufficiently “transformed” another person’s photographs when he used those photographs in his own artworks.  In the paragraph above, The Warhol Foundation’s brief makes an argument that copyright is not so much about the protection of artists and authors but about giving society the benefits of its citizens’ creative work.  The brief faces a bit of a challenge with this point; true, the precedents say that society is meant to benefit from copyright, but the precedents also say that creators are meant to benefit, too.  In other words, the first two sentences of the paragraph point in two directions at once, which makes it less clear what point the reader is to take away from that information.  But the brief does not allow that confusion to persist.  By invoking the “marketplace of ideas” metaphor, the brief emphatically guides the audience to focus in one direction, on society’s benefit: 

In other words, copyright protection for creators serves the ultimate end of securing for the public a rich marketplace of ideas.

Is there anything special about the “marketplace of ideas” as an element of restatement here?  Generally speaking, the marketplace of ideas is a powerful metaphor in American culture. As Schultz and Hudson note, the phrase is “perhaps the most pervasive metaphor to justify broad protections for free speech” and was invoked most recognizably in Justice Holmes’ dissent in the First Amendment case of Abrams v. United States in 1911.  A quick Google search shows that the metaphor also has broad, popular appeal as a shorthand for describing prevailing values about how ideas should circulate in public discourse.  For better or worse, the marketplace of ideas evokes a set of commitments and emotions that influence how readers might think about Warhol’s use of another photographer’s work.

Because of the strong pull of the “marketplace of ideas” metaphor, this brief provides a useful example of how a restatement has potential to create a need for a brief’s audience.  Here, I think, the use of the marketplace of ideas metaphor implies an audience that needs to see how arguments about fair use and copyright relate to the marketplace of ideas concept.  In other words, the marketplace of ideas may not have been on the audience’s mind until the brief suggested to the audience that the marketplace of ideas is relevant here.  The use of the metaphor in restatement cements that connection and sets up the opportunity for the brief to meet that implied audience’s needs.

The Recap

Restatement as a rhetorical tactic can help writers craft documents that are clearer and more understandable for audiences.  Writers can direct readers to what ideas are most important and distill for audiences the essence and emotional valence of complicated concepts. 

What do you think about restatement?

Kirsten Davis teaches at Stetson University College of Law and in the Tampa Bay region of Florida. She is the Director of the Institute for the Advancement of Legal Communication. The Institute’s mission is to study legal communication issues and provide programming and training that improves legal communication skills. Among other things she did this summer, she presented a CLE on Modern Legal Writing at the South Dakota Bar Annual Conference. The views she expresses here are solely her own and not intended to be legal advice. You can reach Dr. Davis at kkdavis@law.stetson.edu.

August 4, 2022 in Appellate Advocacy, Legal Writing, Rhetoric | Permalink | Comments (0)