Appellate Advocacy Blog

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

Wednesday, December 28, 2022

Taking time to reflect

For the many people following my posts, this is a follow up to last week's suggestion to relax. Just as important as getting away from work is taking some time to reflect on it. This takes a bit of distance--hence the need to relax first. But once you're rested and before you head back to  the grind, think about what you do--the whys, the hows, the wheres--and how you might do it better.

For law students, this can mean going over both the micro and macro of your student life. On finals prep, did you start early enough? How efficiently did you use your study time? Did you focus on the right things? Did you help others to understand? For paper classes, did you start early enough to give yourself enough lead time to research and draft? Did you research enough, or too much? And so on. Beyond those things, think about the past semester and what you enjoyed--which professors challenged you? What subjects interested you most? For any legal work you did, what was the most meaningful? And when you leave school, what do you want to do? Where? You won't figure it all out in a sitting, and perhaps just one of these questions will be enough to chew on for a few days. That's okay. However you use the time, just be sure take some of it to think about where you've been and where you're going 

For lawyers, this can mean thinking about your processes--how you get cases, how you work with clients, how efficiently you're using your time--as well as your own purposes--do you enjoy what you do? Who can you most help? What do you want out of your career? 

Without time to reflect, you'll never be the kind of lawyer--or the kind of person--you could be. This is certainly a work in progress for me. In my recent move this year from government to private practice, I feel like I went from being a factory worker to being a farmer. I used to clock into work, produce the widgets assigned to me, and leave. And repeat, repeat, repeat. There was a lot of satisfaction in the work, but it was very predictable and very little within my control. Now that I have much more control, I have a lot less predictability, but the seasonality of workflow for a new firm gives me time to reflect while I'm waiting for the seeds to grow or live on the store while planning for the next case.

Reflection may lead you to short-term discomfort--you may realize, for example, that you don't like what you do. But that's valuable insight gained sooner rather than later. You'll be happier in the long run by thinking about what you want rather than what others want of you. Because if you don't think enough about it, you put others in control.

Everything in its season--hard work, relaxation, reflection--leads to satisfaction. If any of them are missing, that's a problem. All work and no play, as they say. And if any get out of their proper place, it can throw everything else off (think relaxing during finals or reflecting during a big project). 

December 28, 2022 | Permalink | Comments (0)

Sunday, December 25, 2022

Christmas and the Law

Thinking about a holiday-appropriate topic to write for Christmas, the false claims that there is a war on the holiday came to mind. Attempts to acknowledge the holiday but preserve the secular nature of a government that neither advances nor inhibits religion, gave us the two-reindeer rule. The “rule” comes from the 1984 case of Lynch v. Donnelly,[1] where the city of Pawtucket, Rhode Island, had long sponsored a display in a shopping district. That consisted of a Santa Claus house, a Christmas tree, a banner reading "Seasons Greetings," reindeer pulling a sleigh, and a creche.   

In rejecting a challenge to the display based on the Establishment Clause by a 5-4 vote, the Supreme Court held it to be a holiday display, rather than advocacy of a religious message. The Court treated the items featured as advancing the historical origins of the holiday and considered that to provide "legitimate secular purposes." The most religious item in the display, the creche, passively connected to the holiday “like a painting” in a government museum, the Court said. The nearby display of reindeer and a sleigh, it went on to say, were secular symbols that conveyed “a friendly community spirit of goodwill in keeping with the season.” Derisively, the ruling was dubbed the “two-reindeer” rule because, according to a predominant reading of the case, adding two reindeer to an otherwise religious display transformed it into something secular.

Interestingly, modern attitudes toward Christmas have changed substantially. In 1659, Massachusetts had a law called the “Penalty for Keeping Christmas,” that stated:

For preventing disorders arising in several places within this jurisdiction, by reason of some still observing such festivals as were superstitiously kept in other countries, to the great dishonor of God and offence of others, it is therefore ordered by this Court and the authority thereof, that whosoever shall be found observing any such day as Christmas or the like, either by forbearing of labor, feasting, or any other way, upon such accounts as aforesaid, every such person so offending shall pay for every such offence five shillings, as a fine to the country.[2]

The law reflected the thought that making this deeply religious day into a festival brought “great dishonor” to God and reflected Puritan attitudes about Christmas. Puritans believed that celebrating Christmas entailed wasteful activities and social excess that were both immoral and antithetical to Christian beliefs. Fourteen years before the Massachusetts law came into being, the English Parliament promulgated a “Directory for Public Worship” that treated so-called festival days, including Christmas, as periods of private contemplation and not celebration.[3] By 1677, English law flipped, and it became illegal for any ”person whatsoever to do or exercise any worldly labour, business or work of their ordinary callings” on Christmas Day.[4]

Recalling these transformations of attitudes in an appellate advocacy blog serves only to show that even deeply religiously held convictions can change, much as the law itself demonstrates a capacity to develop in sometimes unpredictable ways – and advocacy assumes a significant role in the law’s development.

Still, however you celebrate, enjoy the holiday, and I wish you a happy new year.

 

[1] Lynch v. Donnelly, 465 U.S. 668 (1984).

[2] https://tinyurl.com/58ebmd8x.

[3] https://tinyurl.com/t8e56e23.

[4] https://www.hcrlaw.com/blog/12-laws-of-christmas/.

December 25, 2022 in Appellate Advocacy, Current Affairs, United States Supreme Court | Permalink | Comments (0)

Wednesday, December 21, 2022

Unstring your bow

I was scrolling on LinkedIn the other day and saw a suggestion for law students: do work over Christmas break! Your employer will admire your pluck and you will get good experience! No doubt that can be a good option for some under some circumstances. Many students have families and could use the extra money. Many are home, far from friends and with few things to do. I get it. I am terrible at taking breaks. I get bored after about one day of having nothing to do. As a default, I would usually fill up time with work. But I've learned that's not good long-term.

Lawyers are particularly prone--by predominant personality and by legal culture--to workaholism. Being busy feels virtuous and important. It feels like you're going somewhere. But busyness is a counterfeit for true accomplishment. They can go together, of course, but getting somewhere requires planning, reflection, and time away. 

The title of this post comes from traditional archery. A classic recurve bow, when strung, is under constant pressure--the string pulling against the bow. It's that pressure that gives the bow its power. But if you never give the bow a break by releasing the tension, the bow starts to give in to the string and loses its curve and effectiveness. If you're forever working without reflecting--without thinking about why you work and what you want--you'll lose your motivation and your edge and be a mere tool of someone else's ends. 

So how to do it? Find meaning and challenge outside work. Be with your family--actually be with them, not in their presence with your mind elsewhere. Call up an old friend just to say hi. Read something without any holdings or objections. Listen to and play some music. Then think about what you really want out of life and out of your career. You might be surprised by what you learn. Maybe you'll discover that you actually hate your job. Maybe you'll rediscover a love for it. Maybe you'll even plan to work more for a particular goal. But you can't figure out where to go without stopping to think for a bit.

None of this is new--there are plenty of country songs and movies and cliche social media posts about it. But it's a recurring theme because its true. A world-class musician has to play the rests. A world-class weightlifter has to rest for muscles go grow.  Take a break, and everything you do will be better and more enjoyable. 

December 21, 2022 | Permalink | Comments (1)

Saturday, December 17, 2022

2022 Top Legal Terms Include “Complicit Bias,” “False Narrative,” and “Nuclear Option,” According to Burton’s Legal Thesaurus

Happy December!  Whether you are scrambling to finish grading, like me, or wishing for a holiday with no emergency writs or motions, I hope you are enjoying the many lists of odd and interesting things lawyers did in 2022.  Recently, I saw the newest edition of Burton’s Legal Thesaurus, the Fortieth Anniversary/Sixth Edition, and the editors have added some intriguing new terms as top legal phrases in 2022.

For example:  “Attorneys were busy discussing ‘complicit bias,’ arguing about ‘lawfare’ and discussing the ‘great reshuffle’ this past year, according to Burton's Legal Thesaurus, which released its list of 2022's top new legal terms.”  Karp, “Meme Stock,” “Quiet Quitting” Among Top New Legal Terms, Law360 (Dec. 13, 2022).   “Complicit bias” means “community complicity in sustaining institutional bias and harassment in the workplace.”  See Michele Goodwin, Complicit Bias: Sexual Harassment and the Communities that Sustain It, Huffington Post (Dec. 11, 2017) (credited with creating this new term). 

Other neat new terms include “False Narrative” and “Nuclear Option.”  “False narrative” is a noun, according to Burton’s, and unsurprisingly means:  “a contrived story, artifice,” and “distortion of truth.”  Burton’s confirms the political root of “nuclear option,” defining it as a noun meaning “abolish the filibuster, change in voting, change to majority vote for passage in the US Senate,” or “drastic action, extreme action.”  In a recent Sixth Circuit case showing one way lawyers are using the term, the court found no abuse of discretion where the district court “allowed [a party] to introduce its [opponents'] threats to stop shipping parts into evidence and to compare those threats to a ‘nuclear option.’”  Stackpole Int'l Engineered Prods. v. Angstrom Auto. Grp., LLC, 52 F.4th 274, 284-85 (6th Cir. 2022).

Burton’s contains over 3,000 pages of definitions, but Debra Cassens Weiss summarized some other new items from Burton’s 2022 Top Ten list, including:  “‘Lawfare,’ meaning the use of legal proceedings to damage an adversary; [t]he ‘Great Reshuffle’ a variation of ‘Great Resignation,’ referring to people leaving jobs; [and] ‘Movement law,’ an approach to legal scholarships that works with social movements, rather than simply studying them.”  Cassens Weiss, 'Complicit bias' and 'lawfare' among top new legal terms in 2022, ABA Journal (Dec. 14, 2022).  Cassens Weiss also explained:  “Margaret Wu, a legal writing professor at the University of California at Berkely School of Law, is chair of the Select Committee on Terminology of Burton’s Legal Thesaurus,” and “Wu told Law360 . . . ongoing effects of the COVID-19 pandemic, “sea changes” at the Supreme Court, diversity and equity initiatives and technology” influenced this year’s terms. 

In its pitch for Burton’s Sixth Edition, LexisNexis explains:  “As Justice William O. Douglas penned in his 1979 foreword to Burton’s Legal Thesaurus, ‘[t]he root of all language is individual word. Often, it is the use of a specific word or term upon which a case or controversy may hinge. It is through the use of such a tool as the Legal Thesaurus that one may find the precise term to fit the nuances of a particular situation.’”   Whatever resources you use to find perfect words this month, I wish you happy writing and happy holidays.

December 17, 2022 in Appellate Advocacy, Appellate Practice, Books, Current Affairs, Legal Writing, Rhetoric | Permalink | Comments (0)

Friday, December 16, 2022

How to Prepare Law Students for the Real World

The goal of law school should be to prepare students to practice law competently and advocate persuasively upon graduation. Below are suggestions that will help to maximize students’ success in the legal profession.

1.    Use the Socratic Method.

Some legal scholars have, for a variety of reasons, criticized the Socratic method. Such criticism, however, lacks merit.

The Socratic method teaches preparation. It requires students to learn how to read cases. Additionally, it requires them to discuss these cases in class, often before a large audience. In so doing, students are often confronted with difficult legal and policy questions, which tests their preparation, communication skills, and ability to think on their feet – all of which are essential to being a competent lawyer. That’s why doctrinal courses, particularly in the first year, are so important.

Furthermore, the Socratic method helps students cope with anxiety and uncertainty. Indeed, most students do not know if their professor will call on them in class and, of course, have no idea what questions the professor will ask. Although this may engender anxiety and fear among students, that is not necessarily a bad thing. In law practice, attorneys face anxiety and uncertainty when litigating a case or preparing an oral argument before an appellate court. Helping students to cope with these feelings in a healthy manner is essential to preparing them to succeed in law and in life.

Certainly, if used improperly, such as to embarrass students, the Socratic method can be counterproductive. And the Socratic method alone is not sufficient to prepare students for law practice. But when used responsibly, the Socratic method is an essential component of legal education.

2.    Expand the legal writing curriculum.

Many law schools do not devote sufficient time to training students to be competent legal writers in the real world. For example, some schools only require two semesters of legal writing, in which students draft only a legal memorandum and an appellate brief.

But in law practice, students will not only draft memorandums and appellate briefs. They will be required to draft, among other things, complaints, contracts, motions to dismiss, motions for summary judgment, interrogatories, document requests, and requests for admissions, trial briefs, mediation statements, and settlement agreements. Given this fact, law schools should train students to draft and re-draft the most common litigation and transactional documents; in so doing, students will be more prepared to practice law when they graduate.

In fact, imagine if, over three years, students were required to represent a hypothetical client in a litigation that contains issues from all of their first-year required courses, and that required them to, among other things, conduct a client interview, draft a complaint and answer, file a motion to dismiss, draft discovery documents, conduct depositions, draft a motion for summary judgment and a trial brief, participate in a trial, and draft an appellate brief. And imagine if they had to do so in the order that it would occur in practice. That would truly prepare students to practice law, and it would teach students to learn by doing.

More broadly, law schools should focus on developing their students’ writing skills, such as in classes devoted to editing, rewriting, and revising, and requiring students to draft legal documents in a variety of contexts. Doing so takes time, and certainly more than two or three semesters.

3.    Require students to enroll in at least two clinics.

Law students do not learn how to practice law by memorizing legal principles and regurgitating them on an exam. They learn by, among other things, applying the law to hypothetical and real-world fact patterns, addressing counterarguments effectively, reconciling unfavorable law and facts, and crafting compelling factual and legal narratives. Perhaps most importantly, they learn by practicing like lawyers, namely, representing clients, drafting briefs, performing oral arguments, negotiating with adversaries, and exercising judgment about trial strategy and settlement.

Clinics provide law students with the opportunity to acquire these and other real-world skills, and often in a context that makes a meaningful difference in the lives of individuals who might otherwise lack access to legal representation.

For these and other reasons, law schools (and some already do) should require students to enroll in at least two clinics prior to graduation. After all, the only way to prepare for practice is to actually practice law (under supervised conditions, of course).

4.    Require students to take multiple upper-level practical skills courses.

Most law schools give students the freedom to select most of their upper-level courses. This is certainly understandable, as students are interested in different areas of the legal profession and intend to pursue different paths in law practice. Having an elective-heavy curriculum, however, need not dispense with a focus on practical skills instruction, and theory and practice need not be considered mutually exclusive.

The problem with some upper-level electives is that they have no relationship to practice. For example, courses focusing on comparative jurisprudence, the original meaning of the Privileges and Immunities Clause, or the death penalty, are certainly instructive and probably quite enjoyable. But how do they prepare students for law practice? At the very least, such courses should include practical components, such as the drafting of a complaint, motion, or brief, to merge theory with practice.

After all, in medical school, students are not taking courses on the origins of contraception. They are learning how to practice medicine. Law students, too, should learn how to practice law.

5.    Use “high-pressure” assignments.

The legal profession is demanding and stressful. Partners and clients have high expectations. And in many instances, lawyers are under intense pressure to produce high-quality work under severe time constraints. Indeed, many lawyers can relate to the unfortunate and all-too-common situations (often on a Friday afternoon or holiday weekend) where a partner says, “I need you to draft a motion for injunctive relief immediately and, at the latest, by Monday morning.”

For that reason, law schools should train students to excel under and cope with pressure and high expectations. For example, in upper-level courses, a professor can present students with a distinct legal question and require them to draft a memorandum or prepare for an oral argument within twenty-four hours or require them to draft a response to a motion to dismiss within forty-eight hours. Sure, this will be stressful for the students, but that’s not necessarily a bad thing. Training students about the realities of law practice will help them to become better lawyers, and to develop the mindset and mental toughness necessary to excel under pressure.

6.    Focus on developing the intangibles, or soft skills.

A high IQ, an excellent LSAT score, a perfect law school GPA, or the best score on the MBE does not mean that a law graduate will be successful in law or in life. Rather, to be a good lawyer, you need the intangibles, or soft skills, that complement raw intelligence.

For example, great lawyers have emotional intelligence. They work harder than almost anyone. They have excellent judgment. They are efficient and organized. They can handle adversity and criticism, and persevere through difficult times. They know how to cooperate and collaborate with other people, including those that they do not like or who have different viewpoints. They know how to communicate with a colleague, a client, and a court. They are humble and honest. They have empathy. And they want to win.

Without the intangibles or soft skills, law graduates will likely not find success in the legal profession – or in life. As such, law schools should focus on developing the intangibles, and this can be accomplished in, for example, clinical courses, where students are required to be part of a team and represent clients in actual cases.

7.    Focus on mindset development – and mental toughness.

In the legal profession and in life, students will encounter substantial and unexpected adversity. They will face unfairness and injustice. They may have to deal with the death of a family member or friend, an abusive colleague, the break-up of a relationship, or an unexpected medical emergency. These and other events, although we all hope to avoid them, will happen.

But law students are not victims. They are not oppressed. They are not powerless. Rather, they have the power – and the choice – to overcome whatever adversity they face because their choices, not their circumstances, determine their destiny.

Of course, as with developing intangible or soft skills, teaching mindset and mental toughness does not necessarily require a separate course. Rather, these lessons can be incorporated into any law school course by a professor who devotes a little time in each class to the mental, not merely the intellectual, aspect of law.

8.    Have high standards.

It’s important to have empathy and compassion for students, and to support them in every way possible as they navigate the difficulties of law school. But that does not mean coddling students, which is one of the worst things an educator can do, or dispensing with high – even very high – standards. Challenging students to be their very best, offering constructive criticism, and demanding excellent work is the hallmark of a great teacher. And invariably, students will fail to meet these expectations. But failure is good thing. It presents students with an opportunity to learn and grow. Most importantly, high standards prepare students for what they will face in the real world.

9.    Teach students to respect diverse viewpoints.

Diversity is a critical component of any educational institution. And among the most important aspects of diversity is teaching students to respect different viewpoints and engage in civil discourse with those with whom they disagree.

For that reason, professors should create a safe and constructive classroom environment in which all viewpoints are welcomed and respected, and where a diversity of perspectives is encouraged. One of the worst things that educators can do is to reveal their political and personal biases in a classroom (and worse, try to ‘indoctrinate’ students) because doing so stifles debate and diversity.

After all, in the real world, students will encounter – and have to work with – people that they disagree with, that they don’t like, and that have backgrounds and experiences entirely different from their own. If they cannot work with and respect such individuals, and realize that their views aren’t necessarily ‘right,’ their path to success – and humility – will be much harder.

***

Ultimately, traditional legal education is not broken. The Socratic Method has served students very well over the years. But a few adjustments can be made to ensure that theory and practice merge in a cohesive manner that prepares students to think and practice like lawyers, and to be good people.

December 16, 2022 in Appellate Advocacy, Current Affairs, Law School, Legal Ethics, Legal Profession, Legal Writing, Moot Court | Permalink | Comments (0)