Appellate Advocacy Blog

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

Monday, August 28, 2023

The newest issue of the Journal of Appellate Practice and Process

The old adage "better late than never" certainly applies to the latest issue of the Journal of Appellate Practice and Process. Here is a press release from NITA, our editing partner, announcing its release:

Journal of Appellate Practice and Process Publishes Summer 2023 Issue

LOUISVILLE, Colo., August 22, 2023 — The National Institute for Trial Advocacy (NITA) and the University of Arizona James E. Rogers College of Law (University of Arizona Law) have released the Summer 2023 issue of the influential Journal of Appellate Practice and Process. The issue features a selection of articles on appellate practice.

The issue opens with a look into tribal courts and the issues surrounding self-represented litigants, before moving onto articles that make a case for terminating the United States Court of Appeals for the Armed Forces; examine the courts’ power to recall mandate and how recall can be used in habeas and post-conviction relief cases even after the passage of AEDPA; investigate whether better briefs and oral arguments impact how Supreme Court justices vote; expound on what judges want (and don’t want) to see in appellate opinions; and offer thoughts on writing a reply brief. Two book reviews on recent publications of interest to appellate practitioners round out the Summer issue.  

The issue’s contributors are Pamela C. Corley, Southern Methodist University; Adam Feldman, Optimized Legal Solutions Consulting; Eugene R. Fidell, Feldesman Tucker Leifer Fidell LLP; Elizabeth M. Fritz, University of Virginia School of Law (J.D.); Hon. Carrie E. Garrow, Saint Regis Mohawk Tribal Court and Penobscot Nation Tribal Court; Hon. Gerald Lebovits, New York State Supreme Court; Hon. Danielle J. Mayberry, Te-Moak Tribal Court and Saint Regis Mohawk Tribal Court; Hon. Douglas R. M. Nazarian, Appellate Court of Maryland; Susie Salmon, University of Arizona Law; and Brian Wolfman, Georgetown University Law Center.

Journal Editor-in-Chief and contributor Tessa L. Dysart said, “This issue continues the Journal’s practice of publishing interesting scholarship from a diverse set of authors. This issue truly represents how wide-ranging appellate-focused scholarship can be.” Dysart serves as the assistant director of legal writing and clinical professor of law at University of Arizona Law.

To access the Summer 2023 issue, click here.

 

August 28, 2023 | Permalink | Comments (0)

Sunday, August 27, 2023

Political Debates and Oral Advocacy: Differences and Similarities

Watching the past week’s Republican presidential candidate debate and its subsequent press coverage caused me to reflect on the differences between that type of political debate and appellate oral argument. Some of the differences are obvious.

In political debate, candidates are free to ignore the question posed to them and discuss something entirely different, make baseless claims without fear that it will adversely affect the decision they seek, and treat the time limits as advisory. They may also get an off-the-wall question, like when former New Jersey Governor Chris Christie fielded a question on alien life and UFOs.

Now, imagine the appellate advocate doing the same things or facing a similar set of questions. It is hard to do. Judges are usually well informed about an advocate’s position. They have read the briefs, reviewed underlying authorities, and expect answers to their questions. Because advocates are hoping to win over the judges themselves, rather than an unseen audience of the public, they must be both more respectful of their inquisitors and more concerned that their answer provides the grist that the judge seeks. They must also be highly accurate, both about the record and about the precedents they cite. Credibility is the coin of the realm for an advocate, and real-time correction of a false assertion can occur. In one of my arguments, my opponent made the same claim orally as he did in his opening brief about the record, which I had rebutted in my response. The judges were all over him as soon as the error was uttered. By the time he was able to return to his argument, the judges appeared unwilling to listen to his additional points.

Also, unlike in politics where differentiating yourself from your co-debaters may encourage it, oral advocates cannot engage in theatrical stunts. It will not play to the decision-makers that matter in a court of law.

On the other hand, there are similarities in some aspects of effective political debate and oral advocacy. Telling a succinct story can be tremendously effective in both forums. That is why politicians will often turn their biography into a compelling narrative. It memorably makes a connection with their audience that is essential. Advocates also find storytelling an important skill. Whether it is fashioning the record into a powerfully sympathetic description of what is at issue or presenting precedents so that they inexorably lead to the preferred result, advocates seek to tell a story that strikes a responsive chord in their panels.

Both debaters and advocates must be skilled in transitioning from questions to other important points. A minor issue on the debate stage should not take up important time, so a skilled politician must be capable of answering succinctly and use the remaining time to raise a more important point that might otherwise go undiscussed. Similarly, an advocate who can dispose of a simple question quickly can return to the one or two points that may be more critical to discuss.

Candidates and advocates both also seek to show why their opponent is wrong. It can be that the policy/result their opponent seeks makes little sense, conflicts with successful positions/prior precedent that experience supports, or fails to address the real underlying issue. And, it helps in both forums to have a winning personality and pleasant demeanor. Just as a politician who comes off as dour wins few votes, an advocate who treats every question with hostility rarely comes off well. Unpleasantness, though, may not lose a case, even if it could lose a political vote. When I worked at a court, I recall hearing one judge comment after an oral argument where the advocate “admonished” the judges that the lawyer had hurt herself. In the end, that advocate won a unanimous decision. I never understood how she hurt herself. Perhaps the decision was written more narrowly than the judges were otherwise inclined to do.

Yet, despite these similarities and skills that can prove effective in both forums, appellate advocacy is a less wide-open and emotional endeavor than political debate. And the best oral advocates understand that.

August 27, 2023 in Appellate Advocacy, Federal Appeals Courts, Oral Argument, Rhetoric, State Appeals Courts, United States Supreme Court | Permalink | Comments (0)

Monday, August 21, 2023

Dear Arizona Supreme Court--Please Keep the Table of Authorities.

Earlier this year I blogged about a rules change petition pending before the Arizona Supreme Court to do away with the Table of Authorities. As I explain in the post, the attorneys petitioning the Court for the change argue that,

The Table of Citations is no longer needed to help a reader navigate to a particular cited source because most briefs are filed in electronic format with searchable text. Cumulatively, appellate litigants spend an unjustifiable amount of time and resources creating Tables of Citations.

Apparently, lots of attorneys in Arizona (and elsewhere) agree.  In reading the comments on to the petition, I was surprised to see that most persons and groups supported the change--including the state bar, the Pima County Bar Association, and the Attorney General's office.  There was even an appellate judge who wrote in favor of the change. 

However, two criminal defense attorneys wrote comments against the change. One comment, filed by attorney Kevin Heade, even includes a Table of Authorities. Heade cites to my February blog post and the arguments I made against the change.  Mr. Heade explains in his comment how he uses the Table of Authorities:

As opposing counsel, I am often more concerned about the authority that my opponent relies upon than their actual argument. This is because I am concerned with convincing the court that the authority—not necessarily my argument—requires that my client to prevail.

         When I get an opposing party’s brief, I review the table of contents, hoping that opposing counsel has provided me the courtesy of including subheadings of their arguments in their briefs. I review the argument headings and then flip to the table of citations to review the authority offered to support their arguments. Within seconds, I have a strong grasp on the merits of their brief.

          My subsequent review of the contents of the brief is aided by this efficient survey of the authorities provided by opposing counsel’s table of citations. In a way, the table of citations serves an important foreshadowing function that aids the reader in processing the argument. See Michael J. Higdon, Something Judicious This Way Comes . . . the Use of Foreshadowing As A Persuasive Device in Judicial Narrative, 44 U. Rich. L. Rev. 1213, 1219 (2010) (discussing how foreshadowing aids in information processing.).

          The ability to efficiently survey the authorities in a brief also has a persuasive effect on the reader. Briefs that are supported by ample authority conveyed in a cleanly presented table of citations are likely to create a better first impression on the reader. The reader can anticipate that the argument sections will be rooted in controlling authority. Competence is pre-established. This, too, is a psychological benefit of foreshadowing provided by the table of citations. Id. at 1226-1233. (discussing role of foreshadowing in priming and schema theories of information processing.).

Talk about working smart! And no one can argue that Mr. Heade, a criminal defense attorney who represents indigent clients, has a lot of time on his hand. My guess is that he is one of the busiest attorneys who comment. 

I understand that the Court will be considering this rules change tomorrow. I hope that it keeps the Tables!

August 21, 2023 | Permalink | Comments (0)

Saturday, August 19, 2023

What Makes a Great Attorney – The Intangibles

The best attorneys often, but not always, share common characteristics. They are incredibly intelligent. They often graduated from top law schools and were ranked at the top of their law school classes. They were on law review. They obtained federal clerkships. And they received an offer from a large law firm in, for example, New York, Los Angeles, or Chicago.

But what truly distinguishes the best from the very good (and mediocre) attorneys is the intangibles, namely, those characteristics that you cannot teach in a classroom or learn from a textbook. Below is a list of the intangibles that are essential for greatness in the law – or any aspect of life.

1.    Hard work.

This doesn’t need a detailed explanation. The best attorneys will always outwork their adversaries. They never use notes. They know every precedent that is relevant to their litigation. They can recite the page and line numbers of every deposition that was taken in their case. And they will spend however long it takes to ensure that their preparation is as perfect as possible. In short, they are tough, and they have heart.

As legendary coach Vince Lombardi stated, “[i]f you’re lucky enough to find a guy with a lot of head and a lot of heart, he’s never going to come off the field second.”[1]

2.    Doing things right all of the time, not some of the time.

Vince Lombardi stated that “[w]inning is not a sometime thing; it’s an all the time thing. You don’t win once in a while; you don’t do things right once in a while; you do them right all of the time.”[2] He was right.

The best attorneys demonstrate unwavering commitment, unparalleled motivation, and unquestionable discipline every day, and in every case. And they do so when their circumstances, whether professional or personal, are less than ideal. After all, it’s easy to do the right things when you’re doing something that you want to do, or when your life circumstances are perfect. But it’s harder to do the right things when you are required to do a task that you despise or when you are facing professional or personal adversity. The best attorneys do the right things regardless of external factors because they focus on what they can control and never get distracted by what they cannot.

Most importantly, the best attorneys focus on the process by which a successful outcome is achieved, and not on the outcome itself. They know that if they make the right choices, the results will take care of themselves. They also know that success must be sustained if one is to truly be called successful.

3.    They take responsibility for their choices and don’t make excuses or blame others.

The best attorneys -- indeed, the best people – recognize that their choices and decisions, not their circumstances, determine their destiny. They take responsibility for their life (and happiness) and make choices and decisions daily that maximize their chances for success. As Vince Lombardi stated, “truth is knowing that your character is shaped by your everyday choices.”[3]

And when things go wrong, such as by receiving an unfavorable ruling, they don’t make excuses. They don’t blame others. They learn. They take responsibility. And they grow.

4.    Responding positively to failure.

Everyone fails at some point in the law and in life. As stated above, the best attorneys do not respond to failure by making excuses or blaming other people and circumstances. Instead, they view failure as an opportunity to enhance their self-awareness and their ability to self-assess. To grow. To improve.

As Nick Saban, the head coach of the University of Alabama’s football team stated, you should “never waste a failure.”[4]

5.    Humility.

The best attorneys are humble. They listen to and learn from their colleagues. They accept criticism. They collaborate. And they value different perspectives because they know that they don’t know everything, that they aren’t always right, and that others may have something to teach them.

Lawyers (and people generally) who lack humility often harm their careers because, among other things, no one likes to work with them. In so doing, they prohibit meaningful professional (and personal) relationships. If you doubt that, have a conversation with your local narcissist(s).

6.    Adaptability.

The best lawyers know how to adapt to changing circumstances. They do not, for example, follow a script when making an oral argument or taking a deposition. Rather, they listen to a judge’s questions, or a deponent’s answers, and adapt their strategy based on a judge’s concerns or a deponent’s evasiveness. The ability to adapt, particularly when circumstances are unexpected and situations are fluid, is critical to success.

7.    Control of emotions.

The best lawyers are mature. They exercise outstanding judgment, particularly when confronted with incomplete facts. Most importantly, they know how to control their emotions. When they lose a motion, they don’t get angry (or cry) and let it affect their preparation. When a judge (or a client) is difficult, they maintain professionalism and focus on the facts. And they know how to put the past behind them and focus on living in the moment, in which past failures do not affect or influence future success. 

***

Ultimately, as Vince Lombardi said, “winning is not everything, but making the effort to win is.”[5] Lombardi summarized it perfectly when he stated that “the difference between a successful person and others is not a lack of strength, a lack of knowledge, but rather in a lack of will.”[6]

Making the effort to win – and making the right choices – isn’t determined by an LSAT score or a class ranking. It depends on whether you have the intangibles. And those with the right intangibles recognize that life “ain’t about how hard you hit. It’s about how hard you can get hit and keep moving forward. That’s how winning is done.”[7]

 

[1] Vince Lombardi, What It Takes to Be Number One, available at: What It Takes to Be Number One - YouTube

[2] Id.

[3] Id.

[4] Jason Kirk, Nick Saban Explains the Most Precious Fuel of All: Failures (July 13, 2017), available at: Nick Saban explains the most precious fuel of all: failures - SBNation.com

[5] Vince Lombardi, What It Takes to Be Number One, available at: What It Takes to Be Number One - YouTube

[6] Id.

[7] Rocky Balboa (2006), available at: HD - Rocky Balboa (2006) - inspirational speech - YouTube

August 19, 2023 in Appellate Practice, Current Affairs, Law School, Legal Ethics, Legal Profession | Permalink | Comments (0)

Judge Michael’s Brief-Writing Tips, Part 2

Last post, I shared part of a great list of ten brief-writing tips from the Hon. Terrence L. Michael, Chief U.S. Bankruptcy Judge for the U.S. Bankruptcy Court for the Northern District of Oklahoma and a member of the Bankruptcy Appellate Panel of the Tenth Circuit.  

Judge Michael has many helpful forms, orders, and links on his chamber’s webpage, which you can see here:   https://www.oknb.uscourts.gov/content/honorable-terrence-l-michael.  The judge’s website material includes his Ten Tips for Effective Brief Writing (at Least With Respect to Briefs Submitted to Judge Michael), at https://www.oknb.uscourts.gov/sites/oknb/files/briefwritingtips.pdf.

In response to my post, several other writers shared their excellent tips with me.  Of special note, Judge A. Benjamin Goldgar, Chief Judge of the U.S. Bankruptcy Court for the Northern District of Illinois, shared his short and helpful tips originally published in a Chicago Bar Association piece.  I highly recommend you check out Judge Goldgar’s article here:  https://1.next.westlaw.com/Link/Document/FullText?cite=20-MAY%20CBA%20Rec.%2051&findtype=Y&__lrTS=20230819185138613&transitionType=Default&contextData=%28sc.Default%29.

Moreover, I have a few more of Judge Michael’s tips for you.  As a reminder, Judge Michael started his tips with these notes:    

I was once asked (OK, I once wished that I had been asked) what judges look for in written submissions. After considerable thought, and with some trepidation, I have tried to set some general principles down in writing.  What follows is a list of ten ideas/suggestions for your consideration. I do not purport to speak for any of my colleagues; this list, for better or worse, is my own.

For this post, I’m summarizing Tips Six to Ten, with a focus on the parts of Judge Michael’s tips that are especially helpful for appellate writing.   

Tip 6.  Quality Is Job One (so Check Your Cites).  When students, or lawyers, complain to me about citations, I am honest.  I do not like The Bluebook and I am open to any consistent system of citation in general.  However, properly applying a style manual, like The Bluebook, helps increase your credibility with the court.  Judge Michael explains why in this tip on checking citations and ensuring your cases support your points: 

Check your cites. Make sure they are accurate and that each case you are relying on is still good law. We do. There is nothing more frustrating than being unable to find a case because the citation contained in the brief is wrong. There is nothing less persuasive than finding out that a case you have cited to us has been overruled or misquoted. These flaws weaken your entire presentation.

Tip 7.  Present the Facts of Your Case Accurately.  While Judge Michael phrased this tip for bankruptcy court, where the judge is the finder of fact in trial-level proceedings, this point is well taken at the appellate level as well.  The judge explained, “[i]f you are submitting a post-trial brief, make sure the facts are in the record.”  Moreover, as with case citations, make sure your appellate briefs properly cite the record and do not lose persuasion by misstating the facts.  As the judge notes, his point on making sure the facts actually appear in the record “sounds too basic to merit discussion,” but nonetheless “[t]his advice is based upon experience.”

Tip 8.  Tell the Court Exactly What You Want.  Inexperienced appellate counsel often ask reviewing courts for relief they cannot provide, like new rulings on trial motions, or fail to explain exactly what relief their client wants beyond a “reversal.”  Judge Michael makes this point in his seventh tip, saying:  “It seems simple, but it isn’t. Every brief (and motion, for that matter) should conclude with a statement telling the judge exactly what you want done in the particular case. We need to know.”

Tip 9.  Leave the Venom at Home.  Despite this point appearing on almost every list on legal writing I’ve ever seen, it bears repeating.   According to Judge Michael:  “I have yet to meet a judge who enjoys reading a brief filled with hostility toward and/or personal attacks upon the other side.”  He explains that, “[w]hether you like (or get along well with) your opposition has little to do with the merits of a particular case.”  Instead, the “most effective attack you can make is to persuade (there’s that word again)” the court “that the other side is wrong.”  

The judge cautions us:  “Remember, if you win, they lose. Isn’t that enough? Words like these:

ridiculous

scurrilous

ludicrous

preposterous

blatant

self-serving (come on, all evidence and argument is self-serving)

nonsensical

do not help you. Don’t use them.”

Tip 10.  Seek Reconsideration Sparingly (But Appeal).  In his final tip, Judge Michael reminds us not to ask for reconsideration automatically.  Appellate counsel can use this tip to be more thoughtful about asking for rehearing on appeal. 

In his tip ultimately stressing the right to appeal, the judge first explains that he has “been surprised by the number of motions to reconsider which counsel file.”  He asks:  “If we spend 50 or more hours researching and writing an opinion (which is not uncommon), why would one expect us to change our mind unless there is an obvious and egregious error.”  Thus, “[m]ost motions to reconsider are a waste of everyone’s time. If you don’t like the decision, appeal. It is your right. We don’t take offense if you exercise it.”

August 19, 2023 | Permalink | Comments (0)

Monday, August 14, 2023

Can AI prepare me for a clerkship interview?

It seems like everywhere I look I am hearing something about generative AI. Lawyers are freaking out that we will be replaced, judges are freaking out that attorneys are over relying on it, and academics are freaking out about how to manage it in the classroom. Schools, including law schools, are adopting AI policies. For example, the Sandra Day O'Connor College of Law at Arizona State University has announced that students may use generative AI to prepare their applications.

Between prepping a new class for the fall and sending my kids to new schools (including the start of kindergarten for my youngest!), I haven't been able to keep up with the AI drama. But, after a meeting with some colleagues I decided to play around with Google Bard a bit. In the spirit of Jayne Woods's excellent post on using ChatGPT to prepare for oral argument, I decided to see if Google Bard could prepare me for a clerkship interview. Spoiler alert--it did a pretty good job with the general questions.

As an initial matter, I picked Google Bard because it is free and we are a Team Android family (there are no fruit branded devices in our house). Plus, Bard is a cool name.

I first asked Bard to tell me what questions a judge might ask in a clerkship interview. Here is what it said:

Sure, here are some questions a judge might ask in a clerkship interview:

    • Why do you want to clerk? This is a common question that judges ask to get a sense of your motivation for wanting to clerk. Be sure to have a thoughtful answer that highlights your interest in the law and your desire to learn from a judge.
    • Why do you want to clerk for me? This question is a chance for you to sell yourself to the judge. Be sure to mention specific things that you admire about the judge's work, and how you think you would be a good fit for their clerkship.
    • Why do you want to clerk for a trial/appellate court? This question is important because judges have different expectations for their clerks depending on the type of court they sit on. Be sure to have a clear understanding of the differences between trial and appellate courts, and why you think you would be a good fit for one type of court over the other.
    • What are you looking for in a clerkship? This question gives you a chance to talk about your specific interests and goals for your clerkship. Be sure to mention things like the type of cases you want to work on, the level of responsibility you want, and the kind of learning experience you're looking for.
    • To which other judges/courts have you applied? Why did you choose them? This question is a way for the judge to gauge your interest in other clerkships. Be sure to have a thoughtful answer that explains why you applied to the other judges/courts and why you think they would be a good fit for you.
    • Why did you go to law school? This question is a way for the judge to get to know you better. Be sure to have a thoughtful answer that explains why you decided to go to law school and what you hope to achieve in your legal career.
    • What are your career plans after law school? This question is important because judges want to know that you're serious about a career in law. Be sure to have a clear plan for your future, and how your clerkship will help you achieve your goals.
    • How does a clerkship fit into your long-term career plans? This question is similar to the previous one, but it's more specific to clerkships. Be sure to explain how a clerkship will help you develop the skills and experience you need for your future career.
    • Where would you like to work ultimately? This question is a way for the judge to get a sense of your long-term goals. Be sure to have a realistic answer that takes into account your qualifications and the current job market.
    • How would you describe yourself? This question is a chance for you to sell yourself to the judge. Be sure to highlight your strengths and accomplishments, and how you would be a valuable asset to the judge's clerkship.
    • How would you describe your work style? This question is important because judges want to know that you're a hard worker who can manage your time effectively. Be sure to mention things like your attention to detail, your ability to meet deadlines, and your willingness to go the extra mile.
    • How would you describe your writing style? This question is important because judges want to know that you can write clearly and concisely. Be sure to mention things like your attention to grammar and punctuation, your ability to organize your thoughts logically, and your ability to explain complex legal concepts in a way that is easy to understand.
    • What is your favorite course in law school and why? This question is a way for the judge to get to know your interests in law. Be sure to choose a course that you're passionate about and that you can speak intelligently about.
    • What is your least favorite course in law school and why? This question is a way for the judge to get to know your weaknesses. Be sure to choose a course that you struggled with, but that you learned from.
    • What are your greatest strengths? Your greatest weaknesses? This question is a chance for you to be honest about your strengths and weaknesses. Be sure to focus on your strengths and how they would make you a good clerk, and be prepared to discuss how you're working on your weaknesses.
    • Tell me about your work with (journal/clinical). This question is a way for the judge to get to know your experience outside of the classroom. Be sure to highlight your accomplishments and how your work has prepared you for a clerkship.
    • Who is your favorite Supreme Court justice and why? This question is a way for the judge to get to know your views on the law. Be sure to choose a justice who you admire and who you can articulate their views on the law.
    • **What do you think about the Supreme Court's recent ruling in ______?

Overall I thought that both the questions and Bard's little explanation about each question were quite good.  My only quibble is with the question "What are you looking for in a clerkship?"  While that is certainly a question you might get, you need to be careful about being too selective about a certain type of case you want and describing "the level of responsibility you want." If you aren't careful, you might just explain yourself out of a clerkship. I do think that judges try to give clerks at least one case a term that falls into a subject matter interest, but most judges don't get to decide what cases they hear, so you (and the judge) are stuck with the docket. 

Next, I decided to be a little more specific. I asked Bard, "What questions might a trial judge ask me in a clerkship interview?"  Again, Bard did a nice job:

Trial judges might ask you the following questions in a clerkship interview:

    • Tell me about a time when you had to make a difficult decision. This question is a way for the judge to assess your judgment and decision-making skills. Be sure to choose a situation where you had to weigh the pros and cons of different options and make a decision that was in the best interests of everyone involved.
    • How would you handle a case where the evidence is unclear? This question is a way for the judge to assess your ability to think critically and analyze evidence. Be sure to explain how you would gather all of the relevant evidence, evaluate it carefully, and make a decision based on the facts.
    • What do you think is the most important quality in a trial judge? This question is a way for the judge to get a sense of your values and priorities. Be sure to choose a quality that is important to you and that you believe would make you a good trial judge.
    • What is your experience with trial practice? This question is important because trial judges need clerks who have experience with the trial process. Be sure to mention any internships or externships you have done that involved trial practice, and be prepared to discuss your experiences in detail.
    • What are your views on the role of a trial judge? This question is a way for the judge to get a sense of your understanding of the role of a trial judge. Be sure to explain what you believe the role of a trial judge is, and how you would fulfill that role.
    • What do you think is the most challenging part of being a trial judge? This question is a way for the judge to assess your understanding of the challenges of being a trial judge. Be sure to mention some of the challenges that you think trial judges face, and how you would deal with those challenges.
    • What do you think is the most rewarding part of being a trial judge? This question is a way for the judge to get a sense of your passion for the law. Be sure to mention some of the things that you think are rewarding about being a trial judge, and why you are interested in clerking for a trial judge.

In addition to these questions, trial judges may also ask you questions about your specific interests and qualifications. Be sure to do your research on the judge and the court before the interview so that you can answer these questions intelligently.

A few of the question explanations seemed to tie too closely to the clerk wanting to be a trial judge, but I think that most of the actual questions are ones that clerk applicants should be prepared to answer.

Finally, I asked Bard about questions an administrative judge or a state judge might ask in a clerkship interview (I asked the question once using administrative judge and once using state judge). The answers it gave were almost identical (just swapping administrative law or judge with state law or judge. Here is the answer:

Here are some questions that an administrative judge might ask you in a clerkship interview:

    • Tell me about yourself. This is a common question that interviewers ask to get to know you better. Be sure to highlight your strengths and accomplishments, and explain why you are interested in a judicial clerkship.
    • Why do you want to clerk for an administrative judge? This question is an opportunity for you to explain why you are interested in clerking for an administrative judge specifically. Be sure to mention what you admire about administrative judges and what you think you can learn from them.
    • What are your strengths and weaknesses? This is a classic interview question that allows you to showcase your positive qualities and areas for improvement. Be honest and specific, and be prepared to explain how you are working to improve your weaknesses.
    • What is your experience with administrative law? If you have any experience with administrative law, be sure to highlight it in your answer. If you do not have any experience, be prepared to explain how you are familiar with administrative law and how you are interested in learning more.
    • What are your thoughts on the role of an administrative judge? This question is an opportunity for you to share your views on the role of an administrative judge. Be sure to mention the importance of judicial independence and the need for judges to be impartial and fair.
    • What is your favorite case? This question is a way for the judge to get to know your interests and values. Be sure to choose a case that is relevant to your clerkship goals and that you can discuss in detail.
    • What are your salary expectations? This is a question that you will likely be asked at the end of the interview. Be prepared to answer it honestly and confidently.

It is also important to be prepared for behavioral questions, which are questions that ask you to describe a specific situation and how you handled it. These questions can be challenging, but they are also an opportunity for you to showcase your skills and experience.

Here are some examples of behavioral questions that an administrative judge might ask you:

    • Tell me about a time when you had to deal with a difficult client.
    • How do you handle stress?
    • Describe a time when you had to work on a tight deadline.
    • What is your greatest strength?
    • What is your biggest weakness?

The best way to prepare for behavioral questions is to think about specific examples from your past that illustrate your skills and experience. Be sure to be specific and to use examples that are relevant to the job you are interviewing for.

I hope this helps!

Thanks Bard, it helped.  While these questions were not as tailored, they were still a helpful starting place.

I can imagine other variations of this exercise, but the point is that AI can be a useful way to think about questions you might get in an interview. I would, however, be cautious about asking it for overly specific information about a judge--there are other resources for that.

August 14, 2023 | Permalink | Comments (0)

Tuesday, August 8, 2023

All Words are Made Up: Thoughts on Using Dictionaries for Statutory Interpretation

I am a huge fan of the Marvel Cinematic Universe, and one of my favorite lines comes from Thor in Avengers:  Infinity War.  Thor and the Guardians of the Galaxy are trying to stop the mad Titan Thanos from destroying half of all life, and Thor suggests they go to a place where he can get a special “Thanos-killing” weapon made:

Thor : Where we have to go is Nidavellir.

Drax : That's a made-up word.

Thor : All words are made up.

Though this statement is obviously true, the law clerk in me was—as my teenage daughter would say—shook, thinking of how many times I had turned to a dictionary as an authority when analyzing an issue involving statutory interpretation.  Not once had I questioned the wisdom of this practice until Thor so succinctly noted that “all words are made up.”

My state’s governing law very clearly allows appellate courts to consult the dictionary to determine a word’s “plain meaning.”  See, e.g., State ex rel. Burns v. Whittington, 219 S.W.3d 224, 225 (Mo. 2007) (en banc) (“In the absence of statutory definitions, the plain and ordinary meaning of a term may be derived from a dictionary[.]”).  And I assume most jurisdictions are the same.  The United States Supreme Court, itself, has increasingly relied on dictionary definitions to resolve issues of statutory interpretation.[i]  And there are multiple law review articles analyzing which dictionaries are relied on the most and by whom.[ii]

Yet the same appellate courts would likely find error (prejudicial effect to be determined) if a juror consulted a dictionary during deliberations.[iii]  This begs the question:  why do appellate courts so easily rely on dictionaries but find it erroneous for jurors to do the same? 

Before getting into that question, it’s worth exploring the nature of dictionaries and how they function. 

I. How dictionaries work

Dictionaries are the epitome of a “work in progress”; they are constantly evolving because language is constantly evolving.[iv]  And they are continuously edited by a team of lexicographers, who track numerous terms, read copious amounts of writing and transcribed speeches, and use corpora (“big, searchable collections of texts”) to discern actual word usage.[v]  Using this research, they generate “concise, informative definitions (along with supplementary information, such as pronunciations or notes about whether a word is offensive, for example).”[vi] 

The vast majority of modern dictionaries use a descriptive approach, which reflects common usage of words,[vii] but earlier dictionaries—including some of Noah Webster’s early work[viii]—took a prescriptive approach, providing rules as to what proper usage should be.[ix]  Under the descriptive approach, generally, before a word is added to the dictionary, it must meet four criteria:  (1) “relatively widespread use”; (2) “a widely agreed-upon meaning”; (3) “staying power—meaning it’s likely to be used for a long time”; and (4) "useful for a general audience.”[x]

II. Why juries may not use them

It is not unusual for jurors to want “to investigate the dictionary meaning of commonly used words.”[xi]  But, generally speaking, “[t]he use of a dictionary or other similar nonlegal materials by the jury during their deliberations constitutes jury misconduct [because i]t introduces outside information into the process and falls outside the tolerable bounds of jury deliberations.”[xii] Allowing a jury to use a dictionary “to obtain further understanding of the court's instructions poses a risk that the jury will misunderstand the meaning of terms [that] have a technical or unique usage in the law.”[xiii]

Yet, at the same time, “[t]he definition of words in our standard dictionaries is taken as a matter of common knowledge, which the jury is supposed to possess.”[xiv] And, “[w]hen words are not specially defined by the Legislature, they are to be understood as ordinary usage allows, and jurors may freely read the statutory language to have any meaning [that] is acceptable in common speech.”[xv] “If this were not so, every word in every instruction would have to be defined for the jury.”[xvi] 

Though it certainly makes sense to not allow a jury to use a dictionary if the court has already provided the legal definition of a term or if the term has a specialized or unique meaning within the context of the case, it seems considerably less concerning to allow the jury to consult a dictionary for ordinary terms, especially when the appellate courts do so routinely.[xvii]

And that brings me to my next point—why do appellate courts feel so free to rely on the dictionary?[xviii]

III. Authority for appellate court usage of dictionary definitions

The short answer is that appellate courts feel free to do so because the United States Supreme Court has sanctioned reliance on dictionaries since at least 1919 under the theory of judicial notice.[xix] Both the Federal Rules of Evidence and many state rules allow judicial notice of “facts” from “sources whose accuracy cannot reasonably be questioned.”[xx]  And courts applying these rules have expressly concluded that dictionary definitions are such facts.[xxi]

What I find interesting about this approach is that it is rare for any two dictionaries to define a word in precisely the same way.[xxii] And, even when viewing the same dictionary, judges sometimes reach opposite conclusions as to meaning.[xxiii]  Additionally, it is a long-standing mantra of appellate practice that the court is bound by the facts in the record and will not consider outside facts (much like a jury is bound by the evidence and law presented to it during trial).  So, if dictionary definitions are facts, absent some general law in the jurisdiction that all words not defined are to be given their meaning as identified in a specific dictionary, it would seem that any definitions an appellate court wishes to rely upon should be in the record before they may be considered.[xxiv]  Otherwise, using these kinds of outside-the-record facts runs the risk that the court may interpret a word differently than the fact-finder did.  In light of the various challenges using dictionaries present, some authors have advocated that appellate courts use dictionaries with caution and only ever as a starting point rather than an ending point for statutory construction.[xxv]

But should courts use them at all?

IV. The democratic and constitutional implications of using dictionaries

When appellate courts use dictionary definitions, they typically do so to discern legislative intent behind statutory language.  Jurors wishing to use dictionary definitions have a similar, albeit slightly distinct, goal—to understand the law and how to apply it to the facts before them.  But all of it may be an exercise in futility.

“Legislators do not consult dictionaries or incorporate by reference dictionary definitions in drafting statutes.”[xxvi] “Dictionary definitions are not themselves statutes in which the precise words chosen and those omitted have binding legal effect.”[xxvii] And, given the evolving nature of language, does it comport with due process to apply a definition to conduct a person engaged in without some guidance as to how that definition will be discerned?

When a legislature or Congress enacts a statutory definition, it becomes a matter of law, rather than fact. And if their respective constituencies do not approve, the voters can express that disapproval at the ballot box. But no such power exists over lexicographers. Nor should it, because “[t]he lexicographer is a[n] historian, not a lawgiver.”[xxviii] And “[m]odern lexicographers . . . do not expect their definition to give the absolute meaning of the word.”[xxix] 

Yet our appellate courts give those definitions the force of law and often sneer at an arguably more democratic approach to defining terms through crowdsourcing on websites such as Wikipedia or Urban Dictionary.[xxx]

So, what role—if any—should dictionary definitions play in the justice system?

Given that most dictionaries, including crowd-sourced ones, are descriptive in nature, the definitions they contain are simply evidence of language usage, snapshots in time, and they should be treated as such.  Thus, dictionary definitions should come into play only where there’s a factual question about how a word or phrase was used at a given time.[xxxi] Jurors should be encouraged to discuss the meaning of words and phrases that are not defined by court instructions and reach a common understanding.  And appellate courts should limit themselves to the discussion of definitions appearing in the record.  By using dictionary definitions to determine the legal import of words, appellate courts are transforming descriptive dictionaries into prescriptive ones—indicating what words should mean, rather than reflecting how they are actually used.

 

[i] James J. Brudney & Lawrence Baum, Oasis or Mirage: The Supreme Court's Thirst for Dictionaries in the Rehnquist and Roberts Eras, 55 Wm. & Mary L. Rev. 483, 495 (2013) (“dictionary usage in the twenty-five years of the Rehnquist and early Roberts eras (October 1986 to June 2011) more than doubled the Court's total usage in the previous 186 years”).

[ii] See, e.g., Samuel A. Thumma; and Jeffrey L. Kirchmeier, The Lexicon Has Become A Fortress: The United States Supreme Court's Use of Dictionaries, 47 Buff. L. Rev. 227, 262–63 (1999); Nora Coon, 162 Years of Dictionary Use in the Oregon Appellate Courts, 55 Willamette L. Rev. 213 (2019); Brudney & Baum, supra note i.

[iii] See Prejudicial effect of jury's procurement or use of book during deliberations in criminal cases, 35 A.L.R.4th 626, §§5(a), (b) (1985) (noting cases where a jury’s procurement or use of a dictionary—though generally error—was either prejudicial or not, depending upon circumstances).

[iv] How New Words Get Added To Dictionary.com—And How The Dictionary Works (May 12, 2023), available at:  https://www.dictionary.com/e/getting-words-into-dictionaries/ (last accessed Aug. 6, 2023).

[v] Id.

[vi] Id

[vii] A Word on ‘Descriptive’ and ‘Prescriptive’ Defining, available at: https://www.merriam-webster.com/grammar/descriptive-vs-prescriptive-defining-lexicography (last accessed Aug. 6, 2023). Whether “offensive” words should be included in dictionaries is its own subject of debate. See How New Words Get Added to Dictionary.com, supra note iv.

[viii] See Peter Martin, The Dictionary Wars, pg. 43 (Princeton University Press 2019).  One judge described Webster’s Dictionary as “stupendous work, filled with inconceivable words and maxims and aphorisms,” before declaring, “No book should be consulted by a jury in arriving at a verdict, and especially one that defines and treats on everything expressed by the English language. No maker of dictionaries should ever be allowed to define legal terms to a jury, unless such definitions go through the medium of the trial judge, the only one authorized by law to give definitions and explanations to a jury.”  Corpus Christi St. & Interurban Ry. Co. v. Kjellberg, 185 S.W. 430, 432 (Tex. Civ. App.--San Antonio 1916), overruled by Travelers Ins. Co. v. Arnold, 378 S.W.2d 78 (Tex. Civ. App.--Dallas 1964).

[ix] A Word on ‘Descriptive’ and ‘Prescriptive’ Defining, supra note vii.

[x] How New Words Get Added to Dictionary.com, supra note iv.

[xi] In re Cory's Est., 169 N.W.2d 837, 845 (Iowa 1969).  In a somewhat humorous event, one jury googled the phrase “common sense” because it was so heavily emphasized by counsel for both sides and the court.  Gunera-Pastrana v. State, 137 Nev. 295, 299–300 (2021).

[xii] State v. Tinius, 527 N.W.2d 414, 417 (Iowa App. 1994) (internal citation omitted).

[xiii] People v. Karis, 46 Cal. 3d 612, 642 (1988).  In a Washington case, the court noted a specific concern that arose with respect to the jury relying on Black’s Legal Dictionary—that the definitions provided therein frequently “contain[] legal premises not applicable to the facts of th[e] case, . . . which could . . . confuse[] or misle[a]d the jury.”  Adkins v. Aluminum Co. of Am., 110 Wash. 2d 128, 138 (1988), clarified on denial of reconsideration, 756 P.2d 142 (Wash. 1988).

[xiv] In re Cory's Est., 169 N.W.2d at 846.  See also Dawson v. Hummer, 649 N.E.2d 653, 665 n.3 (Ind. App. 4th Dist. 1995) (“terms within regular dictionaries are generally believed to be within the common knowledge of a jury”).

[xv] Teer v. State, 923 S.W.2d 11, 19 (Tex. Crim. App. 1996).

[xvi] Alvarez v. People, 653 P.2d 1127, 1134 (Colo. 1982) (en banc) (Rovira, J., concurring in part, dissenting in part).

[xvii] See id. (noting the seeming hypocrisy of appellate courts relying on dictionaries for ordinary terms but finding error when a jury does the same).

[xviii] The Indiana Court of Appeals noted a distinction “between referring to a dictionary in a factfinding setting for the purpose of judicially noticing the meaning of a word, on one hand, and consulting such a source upon appellate review to discern the meaning of a term for purposes of, for example, statutory construction.”  Campbell v. Shelton, 727 N.E.2d 495, 501 (Ind. App. 2000).  But the court failed to elaborate on what that distinction might be.  It seems to be one without a difference, given that the purpose in both scenarios is the same:  to apply the law to the set of facts before the jury to determine whether the conduct at issue falls within the statute’s coverage.

[xix] Werk v. Parker, 249 U.S. 130, 132–33 (1919) (holding that it was “clear, beyond question—that the [appellate] court was justified in taking judicial notice of facts that appeared so abundantly from standard works accessible in every considerable library”).

[xx] E.g., Fed. R. Evid. 201(b)(2); Ky. R. Evid. 201(b)(2); Ind. R. Evid. 201(a)(1)(B); Or. Rev. Stat. § 40.065(2).

[xxi] See, e.g., Stokes v. Com., 275 S.W.3d 185, 188 (Ky. 2008); Campbell, 727 N.E.2d at 501; In re Compen. of Calder, 157 Or. App. 224, 227 (Or. App. 1998).  Though dictionaries are largely considered accurate, they are not above the occasional mistake.  A well-known error is the word “dord.”  Dord “was recorded in Webster’s Second in 1934 on page 1711, where it remained undetected for five years.” Herbert C. Morton, The Story of Webster’s Third, pg. 119 (Cambridge University Press 1994). But dord was a ghost-word. It was identified as meaning “density,” but, in fact, it was meant to be an abbreviation—“D or d”—for the term density.  Id. But the entry was misdirected to the “word” department, rather than the “abbreviation” department, and thus became a word entry for a brief period of time.  Id.

[xxii] This may be partially a copyright issue.  See, e.g., Richards v. Merriam-Webster, No. 1:13-cv-13092-IT, memo. & order granting S.J. (Sept. 26, 2014), available at:  https://casetext.com/case/richards-v-merriam-webster-inc-1 (last accessed Aug. 6, 2023).

[xxiii] See Thumma & Kirchmeier, supra note ii at 274–75 (identifying cases).

[xxiv] The Ninth Circuit suggested that, when “[q]uestions or disputes as to the meaning of terms . . . arise during jury deliberations[, they] should be settled by the court after consultation with counsel, in supplemental instructions. Such guidance will avoid the danger that jurors will use the dictionary to construct their own definitions of legal terms which do not accurately or fairly reflect applicable law.”  U.S. v. Birges, 723 F.2d 666, 670–71 (9th Cir. 1984).  This would also ensure that the appellate court applies the same interpretation of terms as the fact-finder.

[xxv] Thumma & Kirchmeier, supra note ii at 293-301.

[xxvi] Ellen P. Aprill, The Law of the Word: Dictionary Shopping in the Supreme Court, 30 Ariz. St. L.J. 275, 299 (1998).  Congress has, however, legislated interpretation of certain words used in the statutes in the Dictionary Act.  1 U.S.C. §§ 1-8.

[xxvii] Aprill, supra note xxvi at 300.

[xxviii] Id. (quoting Jonathon Green, Chasing the Sun: Dictionary Makers and the Dictionaries They Made 16 (1996)).

[xxix] Aprill, supra note xxvi at 285.

[xxx] Jason C. Miller & Hannah B. Murray, Wikipedia in Court: When and How Citing Wikipedia and Other Consensus Websites Is Appropriate, 84 St. John's L. Rev. 633, 639 (2010). On these crowdsourced websites, anyone may contribute and/or vote on the accuracy of information provided.  Id. at 638, 654-55.  And there is transparency with respect to the number of votes in favor and in opposition to definitions and various source material for information contributed.  In State v. Rasabout, 356 P.3d 1258, 1281 (Utah 2015), Associate Chief Justice Lee suggested that, rather than rely on dictionary definitions, courts should consult the Corpus of Contemporary American Usage, “the largest freely available corpus of English, and the only large and balanced corpus of American English.”  But this suggestion puts appellate judges in the shoes of lexicographers, a profession they are unlikely to be trained in, which seems even worse than relying on dictionary definitions that are created by trained, professional lexicographers.

[xxxi] For example, there is frequently a factual question as to the meaning of words or phrases in criminal matters, where slang or code is often used. Issues as to word usage and meaning also frequently arise in contract disputes.

August 8, 2023 in Appellate Practice | Permalink | Comments (0)

Friday, August 4, 2023

Appellate Advocacy Blog Weekly Roundup Friday, August 4, 2023

WeeklyRoundupGraphic

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

US Supreme Court Opinions and News

  • The conversation about the Supreme Court’s shadow docket continues this summer. See a piece in The National Law Journal that discusses the shadow docket and some of the recent Court decisions, including those summarized here.  

  • The Court granted the Biden administration request to block a Texas judge’s nationwide ruling that invalidated a federal restriction on ghost guns. The restriction bans “buy build shoot” kits, which can be bought on line without a background check and do not have traceable serial numbers. The Texas court ruled that the administration exceeded its authority in adopting the rule and blocked the rule. The Supreme Court blocked that ruling while it considers whether to reinstate the rule pending appeal to the Fifth Circuit. See reports from Reuters and NBC.

  • The Supreme Court lifted the stay on the construction of the Mountain Valley pipeline project as the appeal continues. The Fourth Circuit had temporarily blocked construction earlier this summer. See reports from The New York Times and The Washington Post.

State Court Opinions and News

  • The Ninth Circuit stayed a District Court for Northern California decision blocking the Biden administrations new rules for asylum seekers. The new rules make it more difficult for migrants to get asylum if they cross the U.S.-Mexico border illegally without first seeking protection from a country they’ve passed through to reach the border. The challenge argued that the rules endangered asylum-seekers by requiring them to wait in border towns, and the District Court agreed, blocking the rules. The Ninth Circuit placed the appeal on an expedited schedule but allowed the rules to continue while it considers the case.  See the order and reports from The New York Times, NPR, The Associated Press, and Reuters.

  • The Eleventh Circuit held that receiving an “unwanted, illegal text message” constitutes a concrete injury. This decision disagrees with a previous decision finding that a single unwanted text message is a "brief, inconsequential annoyance [that is] categorically distinct from those kinds of real but intangible harms" and therefore insufficient to meet the injury-in-fact requirement. See the TCPA blog.

August 4, 2023 in Federal Appeals Courts, United States Supreme Court | Permalink | Comments (0)

Wednesday, August 2, 2023

"You Write Like a Law Clerk." Ouch.

I clerked for three years before entering private practice.  It was easy to be a sponge and soak up the good tactics of the attorneys I observed, the procedures of the courts where I worked, and familiarity with new areas of law I never studied.  I read hundreds of briefs, crafted technically and legally precise bench memos and draft opinions, and examined the issues from all sides to help my judges see the lay of the land and make the best decisions.

One skill I did not learn was how to write for a client.  I learned some of that in law school, through drafting persuasive memos and briefs and some exam essays.  It crept in a bit when my bench memos took a slight step toward intemperate near the end of my clerkships, and I realized I was itching to finally get out there and practice The Law myself.  But writing with a grasp on a client's real-world concerns and goals came much later.

As a new associate, I wrote a lot.  Most of the early comments on my briefs went like this: "This is good, but you write like a law clerk."  Just as my feathers started to puff, I realized that was not a compliment. 

"Writing like a law clerk" means you forgot you have a client.  You are not maximizing the chances of your client winning if you are presenting both sides evenly.  When someone says you write like a law clerk, they are telling you to reconsider these areas of your brief:

  • The introduction: Introductions are tough.  They are the most important section of your brief because they may be the only thing a busy judge or colleague will read.  Introductions are also a summary of the brief, but no other rules apply.  In the introduction, you must be both creative and direct.  What's the real reason your client should win on the issue at hand?  What's the real reason the parties are fighting about this issue?  Highlight those.  
  • The facts:  The legal standards section should be written persuasively, but it is not where you will convince a judge to rule for you.  That's the fact section.  The law provides the outlines, but the facts fill in the story that underpins your case.  They distinguish this case from others or provide parallels to cases with good outcomes you can highlight.  The facts may tell the liability story or they may detail your efforts to avoid a discovery tiff and incorporate communications  between counsel the judge has not seen yet.  Plus, the facts help to orient the judge and law clerks who (unlike you) have not thought about your case for a few months.  Tell your client's story accurately and persuasively in the facts section, and you are putting your best foot toward victory. 
  • The money: If you ignore the damages, fees, or expenses of a case, you are thinking like a law clerk.  Clerks (at least temporarily) accept a sub-private practice salary to bask in ivory towers for a year or two.  Practicing attorneys run a business.  The business needs money to function, and clients care about how much money they are paying.  Money also drives both corporate and individual clients on both sides of the v.  Follow the money.  Is the other party's motion to compel discovery a tactic following stalled settlement talks?  Can you get the other side to stipulate to some facts so no one has to subpoena and depose a third party?  These realities should be reflected in your writing.  And when appropriate, and without disclosing any confidential settlement discussions, explain the reality of the case to the judge.

If you or a colleague think your work product sounds like a law clerk wrote it, take heart.  Focusing on these areas of your writing can turn a balanced brief into a winning brief.

August 2, 2023 in Law School, Legal Profession, Legal Writing | Permalink | Comments (2)