Thursday, September 29, 2022
A good reputation is one of the most valuable assets a lawyer can have. Establishing and maintaining credibility as an appellate advocate is especially important. In addition to generally wanting an appellate court to think well of you, credibility plays an important part in being persuasive.
Appellate advocates often appear in the same courts over and over. So, what are ways you can ensure that you have credibility with those courts?
1. Be a zealous advocate. Make a substantive effort for your client. Within the bounds of ethics and professionalism, use tools of persuasion. Use confident language and seek to minimize damage from difficult facts and cases without ignoring them.
2. Exhibit intelligence. There's no real substitute for a good, logical argument. An appellate court will think more of your future arguments when it is convinced that it can generally rely on what you say. You can establish credibility by making persuasive arguments that show strong legal researching and writing skills.
3. Follow all applicable ethics rules. This really is the minimum you can do, and you should do more. Many rules of professional responsibility seem geared toward trial practice. But some are very relevant to appellate work as well. The two most obvious rules that should be important to appellate advocates are found in Rule 3.3 of the Model Rules of Professional Conduct:
(a) A lawyer shall not knowingly :
(1) make a false statement of fact or law or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer;
(2) fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel[.]
Although fact statements in an appellate brief can and should be subtly persuasive, they can't stretch the facts. Even if you inadvertently state a fact incorrectly, you should correct the error with the court.
Interpretations of case law that pass the "straight face" (or "smell") test also are acceptable, but misstatements of law must be corrected. And if you find a case--especially after completing a brief or oral argument--that says "you lose," you must bring that to the attention of the court.
In the end, there may be some room for interpretation of these rules (for instance, whether an unpublished opinion can constitute legal authority that is "directly adverse" to your client's position). But it's usually best to err on the side of caution.
4. Go beyond the ethics rules; be professional. Go beyond the ethics rules. Some things simply aren't covered by the rules of professional responsibility, and crafty lawyers can sometimes abuse or circumvent the rules. Don't be one of those lawyers.
5. Know when to concede points. Similar to the ethical duty to disclose adverse authority, it is important to know when the concede points. If you can do so without conceding your overall case, that's great. Within the bounds of zealous advocacy, there may also be rare occasions when you must concede your entire case. In either instance, an appellate court is going to appreciate your candor and view you as credible in future cases.
6. Follow formatting rules. Appellate courts like their rules. They have them for a reason. Negligence in following the formatting rules for briefs and other appellate filings will not score any points. And deliberately cutting corners on the rules may get you into hot water.
7. Use proper citations. Whether the appellate court to which you are writing follows the Bluebook or has its own set of citation rules, use proper citations. How can an appellate advocate who doesn't properly use one of the prime tools of the trade be trusted when it comes to substance of an argument? Avoid any reason for the court to be predisposed, consciously or subconsciously, against you.
8. Use correct spelling, grammar, and punctuation. In other words, proofread. Like incorrect citations, shoddy spelling, grammar, and punctuation indicates at best that you are sloppy (and thereby disrespectful to the court) and at worst that you are incompetent (and nothing you say should be given any credit). A good legal writing book can be helpful.
Your good reputation takes some time to cultivate. That reputation can be ruined quickly. Once you have established your credibility with an appellate court, stay vigilant to maintain it.
Saturday, September 24, 2022
Most appellate practitioners understand the necessary evil of citations, and some of us even enjoy parts of The Bluebook. On the other hand, I have concerns about Bluebook cost, frequent Bluebook revisions seemingly for the sake of revising, and allegations of law review happy hours funded by Bluebook sales. See, e.g., Richard A. Posner, The Bluebook Blues, 120 Yale L. J. 850, 851 (2011); Bryan Garner, The Bluebook's 20th Edition Prompts Many Musings From Bryan Garner, ABA Journal (Aug. 1 2015); https://taxprof.typepad.com/taxprof_blog/2022/06/harvard-led-citation-cartel-rakes-in-millions-from-bluebook-manual-monopoly-masks-profits.html.
As I’ve mentioned in the past, California, Florida, and some other states have their own style manuals and do not follow The Bluebook. Additional states have their own gloss on key Bluebook rules or allow use of other manuals. Rule 28 of the Alabama Rules of Appellate Procedure, for example, tells counsel to use The Association of Legal Writing Directors Citation Manual: A Professional System of Citation (the ALWD Guide), The Bluebook, or otherwise follow the citation style of the Alabama Supreme Court.
Happily, those of us in Bluebook jurisdictions have a wonderful alternative, now in its second edition. The completely free, open source The Indigo Book, which one commentator described as “compatible with The Bluebook [but including] easier-to-use guides,” now has a second edition. See generally Wendy S. Loquasto, Legal Citation: Which Guide Should You Use and What Is the Difference?, 91 Fla. Bar J. 39, 42 (2017).
Here is the final second edition of The Indigo Book, which parallels the twenty-first edition of The Bluebook: https://indigobook.github.io/versions/indigobook-2.0.html. Many thanks to Prof. Jennifer Romig of Emory University School of Law, and others, for this resource. In sharing the second edition, Prof. Romig explained: “The Indigo Book is a free, open-access citation manual. It is consistent with well-accepted citation practices.” The new version also “includes enhanced and expanded state-by-state "Local Notes" in Table T3 at the back,” along with “commentary and critique” in “Indigo Inkling” boxes. Prof. Romig thanked many in our legal writing community who helped her create this wonderful resource, especially David Ziff, and noted “Alexa Chew's work is cited twice.”
The original Indigo Book was a light-hearted, yet serious resource, which raised important questions about monopoly, ethics, and bias. Prof. Romig promised, “in general the [second edition] attempts to engage with ongoing conversations about citation ethics and practice, while staying true to its main function as a rule-based manual with examples.” In my opinion, the second edition of The Indigo Book succeeds in these missions, and I urge you to share this resource with students and practitioners.
Wednesday, September 21, 2022
The fact statement is an advocate's chance to tell a story (within the bounds of the appropriate standard of review) that engages the reader and makes her more likely to see events in a way that elicits sympathy for your client's position. Though not a place for overt advocacy--connecting the dots--it is a place for subtle persuasion--laying out the dots so that the reader clearly sees the picture by connecting the dots for themselves before you do so explicitly in the argument section.
When telling a story, it matters from whose vantage point you recount it. As I read through records, I'm constantly asking myself, "from whose perspective am I going to tell this?" Third-person omniscient? From the victim's point of view? The perpetrator's? A witness? An investigator? Most briefs will include several of those, but choosing whose perspective to use and when takes judgment and skill.
A few thoughts on how to figure this out:
1. Look for good quotes. Some witnesses are natural storytellers and just have a way of evoking mental images that engage the reader and help her visualize what happened. If you are gifted with such witness testimony, quote it liberally.
2. Develop an eye for irony. Every law school exam is chock-full of dramatic irony. Oh, B--little do you know that A already sold Blackacre to C years ago! And here you are buying it without a records search. Sad! If a witness tells a story well, you'll be able to pick out these kinds of moments and use them to engaging effect.
An example of the first two principles from Fred Voros, a longtime appellate advocate and former judge on the Utah Court of Appeals. This was a from a case stemming from the kidnapping and abuse of a young girl. The testimony is from the victim's mother: "On May 1, 1993, defendant purchased a red or maroon 1984 Oldsmobile. One week later, on May 8, he dropped in at a friend’s shop in Brigham City. . . . On 8 May 1993, Ashley H. was six years old and her sister Trisha was five. At about 6:30 p.m. that Saturday evening the girls got on their bikes to go to a school near their Corinne home. Ashley “loved to be on her bike, riding the little course she set up at the school.”
The girls’ mother, Deborah H., tried to walk down to the school to be with them, but the phone kept ringing. Deborah finally told the last caller that she had to leave and “hung up on whoever it was.” Just then, the mother testified, “I thought I heard my daughters’ little prancing feet on the porch, but instead when I popped the door open to welcome them home, it was just [Trisha] dragging her sister’s bike up on the porch.” Trisha was angry. She said that Ashley had fallen off her bike and then gone with a stranger. Trisha was “very mad” because she knew “that’s not what we are supposed to do.” Trisha said the stranger took Ashley away in a red car. . . ."
The mother's testimony is almost poetic--you can almost see the movie as she describes the scenes. If you have a little girl, you know what those "little prancing feet" sound like. If you rode bikes as a kid, you know what those "little courses" by the school look like (incidentally, my friends and I had a bike course on a dirt lot set up right across the street from our elementary school). So vivid and (in hindsight) poignant.
That poignancy comes largely from dramatic irony. The reader knows--but the mother doesn't--that something is terribly wrong. And when the it begins to dawn on the mother, it has not even occurred to her younger daughter, who is mad at the wrong person (her sister) and for the wrong reason (not following a family rule). Gripping stuff.
3. Consider formulas that work. There's a reason that Law and Order has been on the air (in various incarnations) for decades and that other such shows (NCIS, CSI, true-crime documentaries) are so successful. The crime procedural formula works. The unsuspecting citizen or cop stumbles across a dead body. Cut to the investigation. Cut to the prosecution. Cut to the denouement and learn how and why the body really got there. You can echo this sort of formula in a brief to good effect. For example, using a flash-forward: start with the biggest/most important event in the case, then go back and show the reader how things got to that point. Or breaking up bits of the story (as Judge Bacharach's book talks about) into digestible chunks to aid reader attention and retention using headings and white space.
Consider this fact statement from a murder case (with record cites omitted): complete with crime-procedural formula, a couple of cliches (break in the case, raining after a murder), and headings.
“[W]e had no known suspects, we had nothing, we just had a dead girl in the car.”
Officers Jim Spangenberg and Joshua Scharman were patrolling Salt Lake City’s west side one February afternoon. There had recently been a “rash of Honda thefts” in Salt Lake, and in the parking lot of Poplar Grove Park was a blue Honda Accord “just parked there by itself.” A light rain was falling, but the driver’s side window was down and the car appeared empty. It seemed like just another stolen car. The officers stopped to take a look.
While Officer Scharman stayed in the patrol car to run the license plate, Officer Spangenberg looked for signs of tampering with the steering column. At first, Officer Spangenberg did not see anything unusual in the back seat—“a black coat, a towel, some other miscellaneous items, didn’t think too much of it.” But after giving the steering column a once over, he looked back and saw a knee poking out from under the towel.
Under the towel and coat lay the body of Tara Brennan. She had a belt around her neck, stab wounds to her face, defensive wounds to her hands, and a “significant slash” to her neck. The car’s interior bore signs of a desperate struggle: shoe scuff marks on the ceiling and a window; a broken rear view mirror and directional signal; and “blood throughout” the back of the car.
Tara, a bright girl with a promising future, had a troubled past. Though a college graduate and law student, she struggled with a crack cocaine addiction. After failing drug treatment programs in California, she returned to Utah to get away from bad influences and get sober. She spent the day before her murder with her mother, running errands and getting her old Honda Accord running again. After the errands, Tara drove the car around, ostensibly to see if it still ran well after sitting in her mother’s driveway for a year. She had about $200 with her. But when police found her body the next day, the wallet and money she had with her the day before were gone.
Police ran down leads, collected and analyzed physical evidence, interviewed Tara’s friends and family, and re-traced Tara’s steps, all to no avail. After all that, they had “no known suspects, [they] had nothing, [they] just had a dead girl in the car.”
A short-lived lead
A few weeks later, crime lab analysts found Defendant’s DNA on a cigarette butt found in a cup holder in the Accord’s front seat. Police interviewed Defendant and showed him a picture of Tara. He “recognized her right off,” saying he had seen her near the homeless shelter. He claimed that she approached him to buy crack cocaine, he obliged, and they smoked it together using his pipe, after which he smoked the cigarette that led police to him. He claimed that after about 45 minutes together, they parted ways and he went to the overflow shelter for the night. The shelter log did not show Defendant checking in that night, but police “exhausted every lead [they] had,” and the case went cold for more than two years.
A break in the case
Y-STR DNA testing showed promise for a break in the case. STR (short tandem repeat) testing had been used reliably for some time, but was usually applied to the entire strand of DNA. Y-STR testing is “the exact same science,” but focuses only on the Y chromosome. This focus enables analysts to identify a very small amount of male DNA that might otherwise go undetected in the presence of a large amount of female DNA. But because the Y chromosome is usually identical up and down paternal lines, Y-STR can only exclude suspects rather than affirmatively identify them. Even so, some Y chromosome profiles, or “haplotypes,” are rarer than others.
Police took the murder weapon and Tara’s fingernail clippings for Y-chromosome DNA testing. On both the murder weapon and the fingernails, analysts found a male haplotype so rare that it was not even in their DNA comparison database. It excluded 99.6% of males, but not Defendant.
In May 2006, police interviewed Defendant again. He again admitted to being with Tara the night she was murdered, but gave more details of his activities before and after the murder, some of which differed from his first account..."
There are many more techniques that I will lay out in future posts. Stay tuned!
Monday, September 19, 2022
Several months ago, a lawyer shared with me a recent federal district court order in a discovery dispute. In it, the judge admonished the attorneys on both sides for uncivil and unprofessional behavior, using words like “misleading,” “histrionic,” and “uncalled-for” to describe comments by the attorneys in their filings. At the end of the order, the judge announced that she was cancelling the discovery conference and directing all the attorneys to “READ and REFLECT” on a speech that Justice Sandra Day O’Connor gave on professionalism in 1997. For their convenience, the judge appended the speech at the end of the order.
Justice O’Connor’s speech on professionalism is a true masterpiece—one that should be read by every law student and lawyer. In it she reminds us that “[p]ersonal relationships lie at the heart of the work that lawyers do.” Unfortunately, as she observed, lawyers often seem to focus on “themselves generat[ing] conflict, rather than focusing on the dispute between the parties they represent,” which results in “distort[ing] the adversarial system.” Not only does it distort the system, it can cause you problems later in your career, as I always tell my students. You never know when an opposing attorney in one case by be aligned with you on another. Or, perhaps, you will end up working together at a government agency or firm later in your career. The practice of law is funny that way.
The mindset of viewing litigation and dealings with other attorneys as “war,” is not the only way to approach the legal profession. As Justice O’Connor explained, with an eye toward appellate advocacy,
Argument, for example, can be thought of as discourse. I know that when I ask a question at oral argument, it is not meant as an attack; it is an invitation for counsel to address an area of particular concern to me. The most effective advocates respond accordingly, answering honestly and directly. Indeed, one good approach to oral advocacy is to pretend that each judge or justice really wants to vote your way—and will—but only if you can set the judge's concerns to rest by answering that question which the judge finds troubling.
Justice O’Connor opined that “it is by deed rather than decree that attorneys teach each other that it is possible to ‘disagree without being disagreeable.’” I agree. And, as we continue into a political season full of debate and disagreement, I think that this is true more broadly. This past week I served on an ACS Constitution Day panel at ASU Law. While I disagreed with the views of my co-panelist, we were able to engage in a polite, substantive, respectful dialogue about recent Supreme Court cases.
I commend Justice O’Connor’s remarks to all attorneys (even those who aren’t in a heated discovery dispute). We owe it to our clients, and to our profession. As Justice O’Connor noted, “incivility disserves the client because it wastes time and energy-time that is billed to the client at hundreds of dollars an hour, and energy that is better spent working on the case than working over the opponent.”
Sunday, September 18, 2022
Quite appropriately, Moore v. Harper, the upcoming Supreme Court case that tests the validity of the “independent state legislature” theory, has set off alarm bells about the future of democracy in the United States. The theory holds that state legislatures hold exclusive authority to make decisions about congressional elections, unless overridden by Congress, based on the Constitution’s Elections Clause, Article I, Section 4, Clause 1. The Clause designates Congress and the states as holding responsibility to set the “Times, Places and Manner of holding Elections for Senators and Representatives.” Restrictions on state legislative authority imposed by a state constitution, including judicial enforcement of equal voting and non-discrimination mandates, the theory holds, must give way, rendering the state legislative determinations immune from judicial review, under the theory. When combined with Article II, Section 1, which assigns the manner for appointing presidential electors to state legislatures as well, the election denialism that has become a standard feature of the Trump political era could gain a permanent constitutionally blessed footing, potentially allowing state legislatures to overturn voters’ choices and name its majority party’s candidates the winners.
Today, however, one day after the Constitution’s 235th anniversary, my topic is not how the “independent state legislature” theory realizes Justice Robert Jackson’s fear that the courts would read the Constitution in such a rigid insensible way that it becomes a “suicide pact.” Instead, I want to focus on the North Carolina legislature’s use of history to support its argument as petitioner in the case. Given the originalist outlook that dominates the Supreme Court, it is unsurprising that parties appeal to history to support their desire outcome. What separates this brief from the usual attempt to invoke history, is its reliance on a widely debunked document to advance its cause.
The Petitioner’s opening brief tells the Court not to look at James Madison’s Virginia Plan for how to conduct federal elections because it is silent on the issue. Instead, it invokes the “alternative ‘Pinckney Plan,’” which contains remarkably similar language to what the Constitution says and is denominated in the brief as the “progenitor” of the Elections Clause. Because no other document that the Committee of Detail may have reviewed contained any plan similar in kind, the brief calls the Pinkney Plan confirmation of a deliberate choice to cede authority to the legislature.
The brief overlooks the fact that the original Pinckney Plan did not survive the Constitutional Convention and is lost to history. In a new article in Politico, Ethan Herenstein and Brian Palmer of the Brennan Center for Justice, explain that the “Pinkney Plan” is actually an 1818 draft by Charles Pinckney that was a revisionist attempt to claim more credit for the Constitution than Pinckney deserved. As Herenstein and Palmer put it, during the Constitutional Convention, the records show that “the framers hardly discussed Pinckney’s plan and, at key moments, rejected his views during the debates.” They go on to cite James Madison’s reaction as “perplexed” by the document Pinckney released in 1818 “because he was ‘perfectly confident’” the new document “was ‘not the draft originally presented to the convention by Mr. Pinckney.’”
Madison noted that the similarity of language to the Constitution’s final text could not have been part of a plan at the Convention because framers hammered out its wording through long running internal debates that would not have occurred if a plan had already spelled them out. Moreover, Pinckney’s well-known positions at the Convention were at odds with what he now claimed to have proposed. For example, at the Convention, Pinckney argued that state legislatures should elect members of the House, but his 1818 document purports to show he favored popular election.
Herenstein and Palmer assert that “nearly every serious historian agrees that the 1818 document is a fake.” They quote historian John Franklin Jameson’s statement in 1903 that the so-called draft was “so utterly discredited that no instructed person will use it as it stands as a basis for constitutional or historical reasoning.” Another researcher they quote called it “the most intractable constitutional con in history.”
Substantial additional support exists to doubt the veracity of the Pinckney Plan. Madison suggested that Pinckney rewrote his own plan weaving in passages from the Constitution, and that the intervention of 30 years made Pinckney’s memory of what was his and what was not flawed. Others put it less kindly. Historians, more than a century ago, described the document as a “pseudo draft” that “should be relegated to the depository of historical lies.” Clinton Rossiter’s respected history of the Constitutional Convention written in 1966 simply dubbed it a “fraudulent document.”
The reason the 1818 document exists is because Congress overrode the Framers’ own decision to keep their deliberations secret. President Monroe dispatched Secretary of State John Quincy Adams to assemble the records. While he found mention of a plan by Pinckney, no such document existed. He asked Pinckney for a copy, In Pinckney’s response, he claimed to have four or five drafts of the Plan but did not know which most accurately reflected his original plan and how much his re-writes changed the plan as his own views had changed over time. The Petitioner’s brief recounts none of this history, but instead treats the document as authoritative.
Every state has adopted the Model Rules of Professional Conduct, which requires candor to the tribunal. It prohibits a lawyer from making “a false statement of fact or law to a tribunal or fail[ing] to correct a false statement of material fact or law previously made to the tribunal by the lawyer.” The lack of candor in this brief may violate the Rule.
Will there be consequences to the use of this document or a failure to suggest its questionable providence? I doubt it. Will a member of the Court or even a majority cite it as authoritative as the petitioner has? Unfortunately, that seems likely. In responding to the historical basis for the end-of-the-term abortion decision in Dobbs v. Jackson Women’s Health Org., the American Historical Association and the Organization of American Historians expressed dismay that their amicus brief’s description of the relevant history was not taken “seriously” and that the Court instead “adopted a flawed interpretation of abortion criminalization that has been pressed by anti-abortion advocates for more than 30 years.” Similarly, in SCOTUSblog, Saul Cornell, a Fordham University historian, called the history relied upon by the majority in the Second Amendment case of New York State Rifle & Pistol Association v. Bruen, “a version of the past that is little more than an ideological fantasy, much of it invented by gun-rights advocates and their libertarian allies in the legal academy with the express purpose of bolstering litigation.”
Regardless of whether these assessments are over-the-top or shaded by a predisposition on the underlying issue, the concern that history is manipulated to achieve an end applies with greater force to the courts. Even as strong an advocate of originalism as Justice Scalia was worried that selective use of past events could predominate because “history, as much as any other interpretive method, leaves ample discretion to “loo[k] over the heads of the [crowd] for one’s friends.” The danger is not just that an important issue is settled by a skewed view of history. It is also that the re-written history appears in an authoritative text that now controls future precedent and even the nature of future issues as though settled.
If, for example, a majority of the Court were to rely on Charles Pinckney’s 1818 document as reflecting what the framers of the Constitution might have thought, not only could they reach the wrong result, it would create an even greater schism in this country on the essential form of our republic, reading the Constitution as mandating what would surely be a suicide pact. And when a future, indisputably valid election is overturned, the courts may have nothing to say about the legislative coup that took place.
More trivially, another consequence would be to achieve the project that Charles Pinckney set for himself: a revision of history that would make him the true father of the Constitution – and a title he did not desire as the Constitution’s grim reaper.
 Terminiello v. Chicago, 337 U.S. 1, 37 (1949) (Jackson, J., dissenting).
 Ethan Herenstein and Brian Palmer, “Fraudulent Document Cited in Supreme Court Bid to Torch Election Law,” Politico Mag. (Sept. 15, 2022, available at https://www.politico.com/news/magazine/2022/09/15/fraudulent-document-supreme-court-bid-election-law-00056810.
 9 The Writings of James Madison 553-54 (Gaillard Hunt ed., 1910).
 Dotan Oliar, The (Constitutional) Convention on IP: A New Reading, 57 UCLA L. Rev. 421, 479 n.39 (2009).
 Id. (quoting Clinton Rossiter, 1787: The Grand Convention 331 n.* (1966)).
 Id. (citing Letter from Charles Pinckney to John Quincy Adams (Dec. 30, 1818), in 3 The Records of the Federal Convention of 1787, at 427-28 (Max Farrand ed., 1911).
 Model R. of Prof. Conduct 3.3.
 Dobbs v. Jackson Women's Health Org., 142 S. Ct. 2228 (2022).
 History, the Supreme Court, and Dobbs v. Jackson: Joint Statement from the American Historical Association and the Organization of American Historians (July 2022), available at https://www.historians.org/news-and-advocacy/aha-advocacy/history-the-supreme-court-and-dobbs-v-jackson-joint-statement-from-the-aha-and-the-oah-(july-2022).
 New York State Rifle & Pistol Ass'n, Inc. v. Bruen, 142 S. Ct. 2111 (2022).
 Saul Cornell, Cherry-picked history and ideology-driven outcomes: Bruen’s originalist distortions, SCOTUSblog (Jun. 27, 2022, 5:05 PM), https://www.scotusblog.com/2022/06/cherry-picked-history-and-ideology-driven-outcomes-bruens-originalist-distortions/.
 Antonin Scalia & Bryan Garner, Reading Law: The Interpretation of Legal Texts 377 (2012).
Friday, September 16, 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.
US Supreme Court Opinions and News
After granting a temporary stay last week, the Supreme Court denied an emergency petition by Yeshiva University and refused to block a state court ruling that requires the university to recognize a L.G.B.T. student group. The university made the emergency motion to the Supreme Court before fully pursuing the appeal in the state court. The Court’s decision is based on the procedural posture, not the merits, and requires the university to pursue the challenge in state court. In the underlying case, the university argues that it should not be required to recognize the L.G.B.T. student group because doing so would violate the university’s Constitutionally protected free exercise of religion. The state court ruling rejected the university’s argument and entered an injunction that requires the university to grant the student group the “full and equal accommodations, advantages, facilities[,] and privileges afforded to all other student groups.” See the ruling and reports from The NY Times and The Washington Post.
Justice Kagan spoke this week at Northwestern Law School and commented on the risk to the Court’s legitimacy if it is seen as an “extension of the political process.” The event will be available on demand here. See reports on Justice Kagan’s comments from The Associated Press, Reuters, and Bloomberg Law.
Justice Roberts announced that the court will reopen to the public when the new term begins this fall. In his comments, he also defended the Court’s legitimacy, saying “simply because people disagree with opinions, is not a basis for questioning the legitimacy of the court.” See reports from USA Today CNN, and Bloomberg News.
Appellate Court Opinions and News
The Ninth Circuit upheld a Washington state ban on conversion therapy. The court rejected a Constitutional challenge by a therapist that argued that the ban undermined the therapist’s free speech and targeted his Christianity. The Ninth Circuit rejected the challenge, finding that the state legislature acted rationally and, thus, did not violate the First Amendment when it imposed the ban to protect the “physical and psychological well-being of children.” See the ruling and reports from Reuters and Bloomberg Law.
Saturday, September 10, 2022
Reply briefs give litigants an opportunity to refute an adversary’s arguments and enhance the persuasiveness of their position. Below are several tips on how to maximize the effectiveness of a reply brief.
1. Begin with a concise and powerful introduction.
Your reply brief should begin with a short but powerful introduction that: (a) provides a brief overview of the case; (b) includes a roadmap of your arguments; and (c) refutes the arguments made in your adversary’s brief. One way to do this is by using the Rule of Three, namely, identifying three specific flaws in your adversary’s arguments and explaining why they lack merit.
After all, you can be fairly confident that, after reading your adversary’s brief, the court will have questions or concerns about some of the points that you made in your initial brief. Anticipating those concerns and responding briefly but effectively to them in the introduction will enhance the quality and persuasiveness of your brief.
2. Focus on what your adversary did not say.
Often, what your adversary did not say is equally, if not more, important than what your adversary did say. For example, your adversary may fail to address unfavorable precedent or fail to acknowledge unfavorable facts. Be sure to expose these omissions in your reply brief, as doing so will undermine your adversary’s credibility and strengthen the persuasiveness of your argument.
3. Respond to some of your adversary’s arguments.
The purpose of a reply brief is to respond to your adversary’s arguments, not to repeat your arguments. In so doing, however, you do not need to respond to all of your adversary’s arguments. If your adversary includes weak or irrelevant arguments, you need not – and should not – respond because it will give undue credibility to those arguments. Instead, respond only to arguments that have at least some merit and that the court is likely to consider when deciding your case. Likewise, do not point out minor or inconsequential errors that will have no bearing on the outcome of your case.
Of course, in responding to your adversary’s arguments, make sure that you maintain your credibility. For example, never misstate your adversary’s arguments. Acknowledge unfavorable facts and law. Never overstate the value of precedent. If you make one of these mistakes, you will undermine your credibility and your likelihood of success.
4. Do not repeat the arguments that you made in your initial brief – but briefly remind the court of those arguments.
The worst thing that you can do in a reply brief is to repeat the arguments you made in your initial brief. Doing so will add no value to your position and will fail to respond to your adversary’s arguments, which is the purpose of a reply brief. Indeed, merely repeating your arguments will affect your credibility with the court, which will affect your likelihood of success.
Importantly, however, you should briefly remind the court of the arguments that you made in your initial brief and of the relief that you are seeking, which can be done at the end of your introduction or legal argument. The reason for doing so is that the reply brief may be the first document that the judge reads in your case.
5. Write your reply brief with the expectation that it may be the first document that the judge reads in your case.
Some judges and law clerks will begin reviewing your case by reading the reply brief first. Accordingly, your reply brief should include the facts and precedent necessary to understand the relevant legal issues. This does not mean, of course, that you should regurgitate every fact and case from your initial brief; rather, you should dedicate a portion in the introduction to framing the legal issues, telling the court what you want (i.e., the remedy you are seeking) and explaining briefly why you should win. The remainder should be devoted to refuting your adversary's arguments.
6. Maintain consistency with your initial brief.
Make sure that you represent the facts and law precisely as you did in your initial brief. In many instances, for example, you may paraphrase or summarize some of the facts or arguments that you made in the initial brief. In so doing, be careful not to say anything that could be construed as inconsistent with (or overstating) what you wrote in the initial brief. Simply put, be honest and candid with the court because your credibility matters as much, if not more, than the validity of your arguments.
7. Keep it short and re-enforce your theme.
Your reply brief should be both concise and comprehensive, in which you refute your adversary’s arguments, highlight the most favorable facts and law, and re-enforce the theme of your case. An overly lengthy reply brief may lend unnecessary credibility to your adversary’s arguments or suggest that you lack confidence in your arguments. As such, keep it short, tight, and to the point.
8. End strong.
A reply brief gives you the last word. Make it count. For example, if you could state in one sentence why you should win, what would you say? If you knew that the court would only remember what you said at the end of your reply brief, what would you say? Think about that and make sure to draft a powerful ending to your brief.
Sunday, September 4, 2022
Last week, I responded to a noticeably short opening brief in an interlocutory appeal that sought to make the issue a simple one. That brief mustered little authority and asserted a purely legal question reflected in the relevant law’s text. In framing the issue, the brief stated it neutrally as though the brief would provide a learned disquisition that would enable the court to answer the question, rather than advocacy of a particular result. Of course, the body of the brief pushed a singular point of view. The question presented, then, did not contribute to the advocacy.
Usually, advocates lose an opportunity when the issue presented does not itself suggest an obvious answer. Judges normally read the issue presented as the first clue about what the case concerns. My brief began with a “restatement” of the issue presented, which emphasized whether the issue merited an answer because of an underlying dispute about the facts. A court does not answer a pure legal question when the answer is merely advisory. The case concerned an immunity for one of two bases for liability. If the other party lacked eligibility for the immunity, as we contended, then the court, under its precedents, lacked jurisdiction to answer the question and should, as it had done in the past, dismiss the appeal as improvidently granted.
In restating the question to pose the problem that a central factual dispute still existed, I led the court into the first section of my brief, where I quoted the court’s own observation that “too often” courts grant review of a pure legal question only to discover upon briefing and argument that facts must first be established before the question becomes ripe. More substantive sections of the brief also worked in the unanswered question of eligibility as confounding to deeper questions about the statute as a whole and limits on the constitutional authority to promulgate the immunity.
In restating the question as I did, I followed the age-old advice voiced again by Justice Scalia and Bryan Garner in Making Your Case: The Art of Persuading Judges: “A well-framed issue statement suggests the outcome you desire.” They follow that statement with an example of the Court’s framing of the issue in Eisenstadt v. Baird, the once-again controversial case of whether Connecticut could prohibit the sale of contraceptives to unmarried people.
The authors note that Judge Posner thought the Court might have struggled more with an answer if the question presented were stated as:
We must decide whether the state is constitutionally obligated to allow the sale of goods that facilitate fornication and adultery by making those practices less costly.
Instead, the Court presented the issue as:
If the right to privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.
Both versions of the question presented suggests an answer. Still, there is a cognizable difference between them that advocates should recognize. The first version, drafted by Judge Posner, makes an appeal to an ideological predisposition by its language that may alienate some judges. A more effective formulation would present the same question in more neutral and less inflammatory terms, as the Court’s decision did. As Scalia and Garner remind us, “you are here to reason with the court and cannot do so successfully if you show yourself to be unreasonable.”
 Antonin Scalia and Bryan A. Garner, Making Your Case: The Art of Persuading Judges 83 (2008).
 Richard A. Posner, Law and Literature: A Misunderstood Relation 305 (1988) (quoted in Scalia and Garner, supra note one, at 84).
 Eisenstadt v. Baird, 405 U.S. 438, 453 (1972).
 Scalia and Garner, supra note 1, at 84-85.