Appellate Advocacy Blog

In Defense of Langdell and the Socratic Method

     Christopher Columbus Langdell got it right – for the most part. What Langdell got right is the Socratic Method – and the accompanying cold calling – that is essential to training law students to be outstanding lawyers. Below is a brief explanation of why Langdell’s method is a vital component of legal education, along with a few suggestions to maximize the competency and marketability of law school graduates.

I.    Why Langdell was right.

    A.    The Socratic Method works because it improves critical thinking skills.

     Critical thinking (and intelligence generally) is among the most important skills needed to be an excellent lawyer. For example, great lawyers know how to read and distinguish cases, synthesize complex precedents, reason by analogy, and make persuasive arguments. To do so, you must know how to think critically, identify the weaknesses (and strengths) in arguments, distinguish relevant from irrelevant facts (and law), use the law and facts to craft a compelling narrative, and make policy arguments that support a judgment in your favor.

      Put differently, intelligence matters. The Socratic method makes you a smarter and more analytical thinker.

    B.    Cold Calling is beneficial.

     Cold calling is essential to an effective legal education. Indeed, cold calling teaches students the value of preparation. It teaches students to think on their feet. It forces students to perform in front of a large audience. And it teaches students the importance of, among other things, being attentive to detail, responding to unexpected questions in a persuasive manner, and examining the flaws in their previously held beliefs.

    C.    Making students uncomfortable (and nervous) is a good thing.

     Law students must learn how to deal with adversity, and they must learn how to respond effectively to adversity. They need to understand that they will fail often in life, and that failure is an opportunity to gain experience and persevere through challenges in life and in the law. They must be taught that your choices and decisions, not your circumstances, determine your destiny.

     The Socratic Method – and cold calling – accomplishes these objectives. Sure, students may experience anxiety. They may dread being called upon in class. They may embarrass themselves. They may experience self-doubt. So what? Experiencing – overcoming – these challenges help a person to grow, develop thick skin, and understand the value of preparation, perseverance, assertiveness, and confidence. In other words, learning how to cope with negative emotions, and developing a strong mindset where you take responsibility for your choices, is essential to succeeding in the law and in life.

II.    Additional Suggestions

     As stated above, the Socratic method is a critical component of a rigorous and beneficial legal education. But other components matter too.

    A.    Legal Writing and Communication

     The ability to write and communicate persuasively is essential to being an excellent attorney and advocate. For this reason, law schools should devote more time to their legal writing curriculum and require students to take a writing course in every semester of law school. In so doing, law schools should require students to draft the most common litigation and transactional documents and train students in rewriting and editing. After all, if law graduates cannot write persuasively, they will not practice law effectively.

    B.    The Intangibles

      Law schools should emphasize that success in the legal profession and in life is due in significant part to intangible factors that transcend raw intelligence, an LSAT score, or law review membership. These factors include, but are not limited to, humility, a strong work ethic, maturity, excellent judgment, discipline, consistency in performance, and passion. It also includes respecting diverse viewpoints, being willing to admit that you are wrong, and accepting responsibility for your mistakes.

     Perhaps most importantly, students need to learn how to overcome adversity and respond well to and learn from failure. They need to understand that they will face injustice and unfairness in life. And they need to be told that they are not victims, that they should not embrace victimhood, and that they aren’t “oppressed.” Rather, law students need to understand and embrace the fact that their choices, not their circumstances, determine whether they will be successful.

    C.    High Standards

     Law schools must hold students to high standards. Law professors need to be honest about the demands of the legal profession and the skills that separate mediocre lawyers from outstanding lawyers. Professors do a tremendous disservice to students if they inflate grades, coddle their students, or fail to help students acquire the skills needed to prepare them for the real world.  And law professors whose teaching is influenced by political ideology or bias, and who show hostility to viewpoints that differ from their own, should not be professors.

     Of course, students’ feelings matter and should never be disregarded. But the real world does not care about your “feelings” or sensitivities. Law firms, lawyers, and clients care about what you can do for them. Can you write a persuasive motion to dismiss, a summary judgment motion, and a trial brief? Can you make a persuasive oral argument? Can you work well under pressure and deal effectively with stress? Are you likable and relatable, or are you a narcissistic jerk? Can you communicate with clients in a simple, honest, and straightforward manner, and maintain positive relationships with them?

     Teaching the tangible – and intangible – qualities necessary to succeed as a lawyer means holding students to high standards and being honest with them. After all, they will discover the truth when they enter law practice. Preparing them for those realities reflects the truest form of empathy.

The Golden Gate by Amy Chua

A few weeks ago, I received an email from David Lat's substack Original Jurisdiction. The email contained an interview with Yale Law professor Amy Chua, known to some the Tiger Mom for her book Battle Hymn of the Tiger Mom. David's interview, however, centered around Amy's newest book--a novel set in the 1930s and 1940s in San Francisco. The novel, entitled The Golden Gate, was published last week.  

Intrigued, I requested an advanced copy of the book on NetGalley, which I received. David said he consumed the book in two days, an impressive feat for a dad of two young kids. As the mom of two young kids who is also teaching first year legal writing, I was skeptical that I could finish the book in a timely manner.  Fortunately (for this review) and unfortunately (for the rest of my life), I had a few days of not feeling well. This allowed me to cuddle on the couch with my cats and my kindle and devour The Golden Gate in three days.

At its most basic level, The Golden Gate is a double murder mystery--jumping between the tragic death of a young girl in the 1930s and the murder of a notable politician in 1944. Both deaths occurred at the Claremont Hotel. But the novel is so much more than simply a murder mystery--it is a thoughtful, meticulously researched, look at many of the complicated issues of that time (and the present) like race and racial identity, prejudice, gender, social status, mental health, politics, and policing practices. The story is told primarily from the perspective of Al Sullivan (or Alejo Gutiérrez), the detective assigned to solve the second murder, and Mrs. Bainbridge, the matriarch of a wealthy San Francisco family.  Mrs. Bainbridge's granddaughters are implicated in the murder, and her narration comes through in a deposition and a later factual narrative that she wrote for the district attorney.

I don’t want to give away too much of the story #nospoilers, so let me tell you what I loved about the book. In short, nearly everything.

First, it was a gripping story. I definitely wanted to figure out whodunnit, and the author certainly kept me guessing.

Second, the writing and research was phenomenal.  While I expect a Yale Law professor to meticulously research her academic writing, I don’t think that I was prepared for the level of careful detail I saw in a novel. I highly recommend reading the author note at the end of the book for additional resources and further context about the story. But what made the writing and research extra impressive was how accessible it was to the average reader. I would recommend this book both to lawyer friends and to friends who just like a good mystery.  The most lawyerly part of the novel was a brief discussion about incorporation and the exclusionary rule, and even that section was accessible to nonlawyers.

Third, the author addressed controversial, complex topics in extremely thoughtful ways. Her characters were complex—there were few overt “good guys” and “bad guys.” In fact, my opinion of the characters morphed as I read the book. Her characters dealt with difficult questions. Perhaps the most poignant for me was Detective Sullivan’s complex approach to his identity. I appreciated how the topic was personal to the author—it is personal to me as well.

This wouldn’t be a good review if I didn’t point out something that could have been improved. Although I am a bit hard pressed to identify a defect, I will say that the last 25% of the novel dragged a bit (until I got to about 90% finished).

Thank you Netgalley and the publishers for the free e-ARC, and thank you Amy Chua for an excellent read!

Impeachment Fever and the Judiciary

Every appellate advocate wants an impartial and independent judiciary, not a bench populated by people who would trim their sails to whatever political winds put them in their seat or is blowing so hard that the easier course is to let it dictate a result. Instead, we ask for a fair application of the law.

It may seem obvious that our justice system should operate that way, but political partisans often seek to bend the courts to their favor, whether through the appointment process or through elections. Even so, we hope that on the bench our judges will seek to make decisions rooted in law rather than political preference. Not everyone agrees, however.

In 2006, one stripe of political partisans operating under the banner of the South Dakota Judicial Accountability Project sought approval of a constitutional amendment that became known as “Jail for Judges.” The proposed amendment, which was defeated at the ballot box, would have allowed thirteen special grand jurors to decide that a judge’s ruling was wrong and either fine or jail the judge, as well as strip away as much as one-half of earned retirement benefits. Judicial rulings made years ago would have been subject to this process, as long as the jurist was still alive.

As extreme as that measure was, we are seeing a spate of new challenges to our courts that seek to guarantee certain results and threaten judicial independence. One that has received a great deal of attention is the threat of impeachment aimed at a newly installed Wisconsin Supreme Court justice. It has a transparently political purpose: keeping the Court’s new majority from upsetting the legislature’s redistricting handiwork. The basis for impeachment is incredibly weak. During her campaign, now-Justice Jane Protasiewicz called the gerrymandered districts “unfair” and “rigged,” while still avoiding any promise that she would rule one way or another. Republican Assembly Speaker Robin Vos accused her of “prejudging” the challenge to those districts, now before the Court, and has suggested the impeachment was a proper response if she chooses not to recuse herself.

Of course, this is not the first time an elected judge spoke to issues coming before a court. In one instance, the Washington Supreme Court considered whether one of their newly elected members was subject to discipline for his participation in an anti-abortion rally on the day of his swearing-in ceremony. At the “March for Life” rally, Sanders thanked the crowd for supporting his election and expressed “his belief in the preservation and protection of innocent human life.”[1] A judicial conduct commission found probable cause that Sanders violated several different canons of judicial conduct, but the state supreme court found that he acted within his free speech rights and his comments and actions did “not lead to a clear conclusion that he was, as a result, not impartial on the issue as it might present itself to him in his role as a judge.”[2]

In another case that reached the U.S. Supreme Court, Republican Party v. White,[3] the Republican Party and several candidates for judicial office successfully challenged a canon of judicial conduct that prohibited candidates for judicial office in Minnesota from announcing their views on disputed legal and political issues on First Amendment grounds. Justice Scalia’s opinion for the Court distinguished between “pledges or promises,” a prohibition that was not before the Court, and merely announcing ones views, which the Court said does not bind a candidate once elected.[4]

The opinion found it incongruous to permit candidates to express support for a prior judicial decision, but not criticism of it. It further noted that the prohibition related to taking positions on issues, but not expressing oneself for or against particular lawsuit parties. Thus, rather than be aimed at impartiality, which was its putative purpose, the Court found the prohibition was against expressing a view of the law upon which voters might choose to vote. As Justice O’Connor expressed in a concurrence, as long as you have judicial elections, something she disfavored, candidates, including incumbents, are going to express views on issues before the public, and that doing so was necessary to maintain public confidence in the courts.[5]

These cases suggest that the principal basis for impeachment in Wisconsin is inconsistent with established First Amendment principles. Garnering less attention, but no less problematic, is the tactic being employed in North Carolina. Justice Anita Earls, a black jurist on the state supreme court, gave an interview in which she advocated for greater diversity in the state court system, labeled the frequent interruptions of female advocates before the court an example of implicit bias, and bemoaned the termination of racial equity and implicit bias training in the judiciary. She relied on a recent study for her comments and said that diverse decision-making results in better outcomes, assures that a range of perspectives are considered, and secures greater public support because people are confident that more voices are heard.

For those remarks, the North Carolina Judicial Standards Commission began an investigation in August based on reading those remarks as accusing her judicial colleagues of “racial, gender and/or political bias.” The Commission suggested that the remarks “potentially violate[] Canon 2A of the Code of Judicial Conduct which requires a judge to conduct herself ‘at all times in a manner which promotes public confidence in the integrity and impartiality of the judiciary.’” Earls, who believes she was supporting public confidence in the judiciary, filed a federal lawsuit to enjoin the Commission from proceeding, citing First Amendment grounds and intimating that the Commission’s investigation could be used by the legislature to remove her from the bench.[6]

Early in our history, these types of attacks on judges when the political powers that be disagreed with rulings had a brief lifespan. The party of Thomas Jefferson, in control of the presidency and the Congress, was frustrated by the Federalist judicial appointees and their rulings. They tested the impeachment powers first against a New Hampshire district court judge, John Pickering, who was removed from office in 1804 upon apparently deserved accusations of habitual intoxication and insanity. Then Congress went after Justice Samuel Chase in what was generally regarded as a dry run at Chief Justice Marshall. Chase had placed himself in the sights of the new Democratic-Republican majority through partisan rants contained in his jury charges, as well as his handling of cases under the Alien and Sedition Acts. Despite holding a sufficient majority to convict in the Senate, enough party members balked at the process so that conviction fell four votes short, effectively ending the effort aimed Marshall and understood as a commitment to judicial independence that seemed strong until more recently.

As advocates, we need to recommit to first principles and denounce these new efforts to turn the judicial branch into a political football that can be manipulated to achieve what proper legal arguments cannot. While the judiciary is not immune from the ebb and flow of political opinion, it should not be reshaped by political threats based on the expression of views.

 

[1] Matter of Disciplinary Proceeding Against Sanders, 135 Wash. 2d 175, 178, 955 P.2d 369, 370 (1998).

[2] Id. at 768, 955 P.2d at 370.

[3] Republican Party of Minnesota v. White, 536 U.S. 765, 768 (2002).

[4] Id. at 770.

[5] Id. at 788–89 (O’Connor, J., concurring).

[6] Earls v. N.C. Jud. Stds. Comm’n, et al., Complaint, Case No. 1:23-cv-00734 (N.C. M.D., filed Aug. 29, 2023).

Three things to win on appeal

I spent my 2L and 3L years as a law clerk in the criminal appeals division of the Utah Attorney General's Office. After graduation, I stayed on for a few months as I got ready to take the bar and start my career in a county prosecutor's office. Around that time, I went to a division barbecue. As I was heading to my car to leave, the division chief (Fred Voros, later a member of our state court of appeals) stopped to talk to me. He wanted to wish me luck and give some parting advice. He said, "John, if you remember nothing else from your time with us, remember that you need three things to win on appeal: 1. A rule; 2. Someone who broke it; and 3. That it made a difference." 

This has been the most enduring, helpful advice I've ever gotten for appellate advocacy, whether for brainstorming arguments or responding to someone else's. Once this high-level thinking is clear, filling in the details is a lot easier. 

1. What's the rule?

When I first started in criminal appeals as a law student, I was assigned a defense brief to draft the response to. I spent an afternoon reading and re-reading that brief, and could not make heads or tails of it. It had English words organized into sentences and paragraphs, but I could not for the life of me figure out the basis for his claim. He clearly disagreed with the jury verdict, but didn't say what rule was broken. I went to the assigning attorney and told him of my plight; he chuckled a bit and said, "John, there's a certain value in dealing with this level of incompetence; it forces you to understand the issues, and gives you the chance to be helpful to the court." I went back and tried again, and eventually figured out his problem: he thought the jury should have believed his evidence instead of the State's. I was then able to look through the rules for such things and realize that his claimed error--that is, what rule was allegedly violated--was no error at all. Case closed. 

There are many sources of rules in the law--court rules (evidence, procedure, etc.), statutes, case law, constitutions, etc. If you're wondering how to make or respond to a claim, first figure out what the rule is for what happened.

2. Who broke it?

Nicholas Quinn Rosencranz wrote two of the most insightful law review articles I've ever read (sad to say, not a very competitive category): The Subjects of the Constitution, 62 Stan. L. Rev. 1209 (2010), and The Objects of the Constitution, 63 Stan. L. Rev. 5 (2011). The biggest takeaway for me is the need to be precise about the "who" question. Judges and lawyers--in an effort to be nice--often use the passive voice or personify laws to obscure who violated the constitution. For example, they will say, "this statute violates the First Amendment" or "the First Amendment was violated." But saying who violated the rule clarifies the test and its basis. Was it Congress who violated the First Amendment by writing a bad law? That's a facial challenge. Was it the Executive who enforced an otherwise valid law in a bad way? That's an as-applied challenge. There are very different standards to prove depending on the answer to the "who" question. 

So when you get a case and you have a rule, ask yourself who it was that violated it. Was it the legislature? Some branch of the executive? The judge? The jury? Counsel? And what about sins of omission? An alleged judicial sin of omission is viewed through the lens of plain error. An alleged error of counsel in criminal cases is viewed through the lens of ineffective assistance. These latter questions concern preservation, and can also greatly affect the analysis of the underlying issue. 

3. Did it make a difference?

“Anyone familiar with the work of courts understands that errors are a constant in the trial process, that most do not much matter, and that a reflexive inclination by appellate courts to reverse because of unpreserved error would be fatal.” Puckett v. United States, 556 U.S. 129, 134 (2009) (cleaned up). To undo the whole process of a lower court proceeding and either forbid future proceedings or get a do-over is serious business, and appellate courts are often reluctant to do it. This manifests structurally in the prejudice requirement--that is, whether an error made a difference, and to what degree. There are different forms for different claims. Most will require the appellant/petitioner to prove a reasonable likelihood of a different result absent the error. But (preserved) constitutional errors switch both the bearer of the burden (from the defendant to the State) and the nature and degree of the burden (to harmlessness beyond a reasonable doubt). Some errors--like a biased trial judge--are structural, and the prejudice is from that judge sitting, not from what the outcome might have been otherwise. And as with the "who" question, preservation can affect this.

So when you're puzzling over a legal issue, step back and ask yourself: what's the rule? who broke it? and did it make a difference? It will help you winnow out bad claims, strengthen good ones, and respond to anything. 

Teaching A New Generation of Law Students (and Students Generally)

     Law students (and students generally) are different than students from twenty or thirty years ago. Below are a few observations about the current generation of students, and a recommendation concerning how to adapt to a changing student population. Of course, this does not apply to all or even the majority of students, but the issues listed below are certainly more prevalent now in universities and law schools.[1]

1.    Students can be entitled and narcissistic.

     Some students are simply entitled and, quite frankly, narcissistic.[2] They lack respect for authority and do not adhere to common norms of civility and respect (e.g., shouting down a speaker with whom they disagree). They believe that they are entitled to a certain grade, to contact a professor at any time of the day, or to challenge any decision that is inconsistent with their expectations (often to administrators so concerned about student retention that they yield to every demand, however unreasonable). They often don’t respect boundaries – or their professors. And they rarely take accountability for their actions, instead blaming others for their failures or behavior. Not to mention, these students’ parents, who are often living in a state of ignorance and believe that their child can do no wrong, react with hostility when their child is subject to criticism.

2.    Students don’t buy into the process of what it takes to be successful.

    Achieving success and performing at a high level requires grit. It requires hard work and sacrifice. It demands that you learn from failure and respond effectively to adversity. It requires discipline, consistency, and commitment. It requires you to take responsibility for the choices and decisions that you make daily. And it requires a recognition that your choices, not your circumstances, determine the likelihood of achieving your goals. Many students, however, do not embrace these principles or the process that it takes to be successful. In fact, over sixty percent of university students have admitted to cheating.[3]

3.    Students lack mental toughness – and other intangibles.

     Some students are too sensitive.[4] They often lack the mental toughness and other intangibles necessary to achieve success in a competitive legal profession. For example, some students react negatively to constructive criticism. They respond poorly to adversity. They make excuses for an unacceptable work product and eschew accountability for their choices. They allow external factors to affect their self-perception and motivation and blame others whenever they experience failure. And they do not interact and work effectively with others, especially those whose viewpoints differ from their own. As one scholar explains:

Gen Z has less resilience than other generations, … It’s less that faculty are making their courses harder and more that students feel greater anxiety and overwhelmed when they perform worse than they expected. This puts them in a ‘fight or flight’ state, and often they’re fighting to get grades changed or to discipline faculty members.[5]

     This is a sad state of affairs.

4.    Students struggle with mental health issues.

     Increasingly, students struggle with mental health and substance abuse issues, which affects their ability to study effectively and perform at a high level. To be sure, approximately sixty percent of college students meet the criteria for at least one mental health problem.[6] One survey concluded as follows:

Specifically, 44 percent of students reported symptoms of depression; 37 percent said they experienced anxiety; and 15 percent said they were considering suicide—the highest rate in the 15-year history of the survey. More than 90,000 students across 133 U.S. campuses participated in the survey.[7]

     Undoubtedly, this affects students’ ability to succeed academically and professionally.

5.    Students are consumed with and affected negatively by social media.

     Many students are consumed with social media, often interested in how many 'likes' they receive for a post on Instagram or Facebook, or engaged in a debate on X, formerly known as Twitter.[8] And for some students, social media is their primary source of information. Unfortunately, this can affect students’ mental health and affect their ability to succeed academically. As one commentator states, “[e]xcessive social media use can … take a toll on young people's mental health.”[9] Indeed, “[a]s college-age students are spending up to an hour or two a day at a minimum on social media, it is cutting into time that they could be studying or engaging in actual social activities.”[10]

6.    Students enter law school lacking analytical thinking and writing skills.

     Students often enter law school without adequate analytical thinking and writing skills, often because their undergraduate institutions did not sufficiently emphasize the development of these skills.[11] This places a substantial burden on professors, especially legal writing professors, to prepare students for law practice. It should come as no surprise that many judges and lawyers criticize law graduates’ writing skills, which can be traced to inadequate emphasis on developing writing skills at the undergraduate level (and to some extent, in legal education).

7.    Students are too political.

     Some students have such strongly held political views that they develop their relationships with, and judgment of, others based on whether they agree with their views.[12] This has led to a failure to respect different viewpoints, which is one of the primary benefits of a diverse student body. It has led to a lack of civility and respect among those with whom students disagree. It has made compromise impossible, and a failure to appreciate nuance prevalent. Indeed, one needs only to look to students’ behaviors in response to university-sponsored speakers that they don’t like to see how pathetic some students have become.[13] If you doubt this, consider how many students claim to feel “unsafe” or cry, scream, or collapse whenever a professor or student says something that “offends” them.  To know that college and even law students behave like this shows how deeply troubled students have become.[14]

     Students and future advocates need to understand that, if you are pro-choice, you can respect and be friends with someone who is pro-life. If you voted for President Biden, you can respect and be friends with someone who voted for Donald Trump. The fact that this even needs to be stated shows how significantly our educational system and culture has declined.

***

      How should law professors (and professors generally) respond to this reality?

     It begins with university administrators. If administrators coddle entitled students and accommodate their every demand, this leaves professors powerless to do anything to ensure student accountability and success. After all, if professors know that their dean will not support them if a conflict with a student arises and where the student is at fault, there is no incentive for professors to do anything other than coddle students and give inflated grades.

     More fundamentally, however, educators, including law professors, should hold students to high standards and focus on preparing them for the real world. This means teaching students how to think analytically and write persuasively and holding them accountable for subpar work. It also means teaching soft skills such as mental toughness, resilience, perseverance, grit, and respect for diverse viewpoints, and emphasizing the coping skills needed to control their emotions and deal with the challenges that law and life invariably present. 

    After all, students need to know how to handle adversity. They need to learn how to respect and work with people who think differently from them – and who they do not like. They need to deal with failure constructively and cope with setbacks effectively.[15] They need to learn that crying and screaming whenever things don’t go their way (or when someone disagrees with them) will not serve them well as a lawyer (or in any aspect of life). As one commentator explains:

College is not summer camp, college is not group therapy, college is not a sanatorium, college is not (despite the current fad for "adventure" bonding experiences prior to the beginning of classes) survival training. They are students (the word comes from the Latin for "to apply oneself seriously"), and the best thing I can do for them, as their professor, is to treat them not as children but as serious people who are there to be serious about the subjects they study.[16]

      Most importantly, students need to know that they are not entitled to anything – except what they earn, and teachers should know that coddling students only sets them up for failure.[17]

 

[1]  See Niraj Chokshi, Attention Young People: This Narcissism is All About You (May 15, 2019), available at: Attention Young People: This Narcissism Study Is All About You - The New York Times (nytimes.com)

[2] See id.; see also Cynthia M. Frisby, “It’s All About ME”: Narcissism and Entitlement Among College Students (2008), available at: Narcissism.pdf (aejmc.com)

[3]  See International Center for Academic Integrity, available at: Facts and Statistics (academicintegrity.org)

[4] See Brett A. Sokolow,  College Students Are Sooo Sensitive (Jan. 6, 2016), available at: College Students Are Sooo Sensitive... | HuffPost College

[5] Chris Burt, Are Gen Z’s Complaints About College Workload Warranted, Or Are They Just Entitled? (October 16, 2022), available at: Are Gen Z’s complaints about college workload warranted, or are they just ‘entitled’? - University Business

[6] See Mary Ellen Flannery, The Mental Health Crisis on College Campuses (March 29, 2023), available at: The Mental Health Crisis on College Campuses | NEA

[7] Id.

[8] See Peter Suciu, Social Media Continues to Affect the Health of College Students (December 12, 2022), available at: Social Media Continues To Affect The Health Of College Students (forbes.com)

[9] Id.

[10] Id.

[11] See John Schlueter, Higher Ed’s Biggest Gamble, Can colleges truly teach critical-thinking skills? (essay) (insidehighered.com)

[12] Georgetown University, One in Four College Students Say They Ruled Out a School Due to Its State’s Political Climate (A One in four college-bound students say they ruled out a school due to its state’s political climate - THE FEED (georgetown.edu)

[13] See Karen Sloan and Nate Raymond, Stanford Apologies After Law Students Disrupt Judge’s Speech (March 13, 2023), available at:  Stanford apologizes after law students disrupt judge's speech | Reuters

[14] See Josh Blackman, Students at CUNY Law Protested and Heckled My Lecture About Free Speech on Campus (April 12, 2018), available at: Josh Blackman » Students at CUNY Law Protested and Heckled My Lecture about Free Speech on Campus

[15] Thankfully, at Georgia College and State University, I have outstanding administrators and students who inspire me to continue teaching.

[16] Daniel Mendelsohn,  How To Raise a Proper College Student (June 28, 2017), available at: Professor Daniel Mendelsohn On Entitled College Students - How to Raise a Proper College Student (townandcountrymag.com)

[17] See Greg Lukianoff and Jonathan Haidt, The Coddling of the American Mind: How Good Intentions and Bad Ideas Are Setting Up a Generation for Failure (Penguin, 2018).

 

Mandatory Civility Rules for Counsel

As I sat down to write this post, I realized it would appear at the beginning of the Jewish new year celebration of Rosh Hashanah and on my twenty-eighth wedding anniversary.  The rabbi who married us all those years ago had to leave our reception early to catch a flight to Israel for the new year, and Rosh Hashanah and our anniversary will always be connected in my mind.  In the spirit of this connection, I send wishes for a sweet and healthy new year to everyone celebrating, and I also share some thoughts on civility and my long marriage.

This week, retired Prof. Scott Fruehwald shared on a list-serv the abstract of Prof. David Grenardo’s upcoming  article on mandating civility, Debunking the Major Myths Surrounding Mandatory Civility for Lawyers Plus Five Mandatory Civility Rules That Will Work, 37 Geo. J. Legal Ethics __ (forthcoming).  While the author notes the article is still in draft form, it has already won the American Inns of Court 2023 Warren E. Burger Prize.  I highly recommend reading it. 

Prof. Grenardo details the way four states—Arizona, Florida, Michigan, and South Carolina—have adopted mandatory civility rules.  See id. at (draft manuscript pages) 10, 12-16.  He also makes powerful arguments that we should follow these states and move from voluntary, aspirational statements of a lawyer’s duty to be civil to mandatory civility rules.  See, e.g., id. at 16-23.  He concludes:  “Talking is not enough—leaders of the legal system need to act. State bars, state supreme courts, and, if necessary, state legislatures must take the step that four brave states already have—mandate civility.”  Id. at 37.

As I read Prof. Grenardo’s draft article, I was thankful (as always) for an appellate career, where I avoided much of the terrible incivility too often present in discovery and trial scheduling issues.  Nonetheless, I also remembered one opposing counsel’s refusal to stipulate to my seven-day extension request for a reply brief when I was in the hospital during a difficult pregnancy and the extension would not have changed the oral argument date in the matter.  You can probably also share a memory of  incivility in your practice.  

How does this connect to my marriage?  When my students ask how my husband and I have been married for more years than most of them have been alive, I tell them, “marriage is respect and compromise.”  Clearly, I am oversimplifying, but maybe only a bit.  And the more I see incivility in the legal profession, the more I see the need for respect and compromise.  Of course, clients deserve vigorous advocacy, and that does not always square with the idea of compromise.  Prof. Grenardo has several answers to this quandary.  For example, he notes that many lawyers “point to civility as a necessary component of effective advocacy,” id. at 34, and being more civil and willing to compromise on meritorious requests saves clients money, id. at 6.  

Whether you agree that we need to mandate civility rules, believe we just need to enforce our aspirational canons better, or find reports of incivility exaggerated, I hope this blog makes you think about compromise and our role as advocates.  I also hope you will read Prof. Grenardo’s article, either now or when Georgetown publishes it.  Happy new year!

Appellate Advocacy Blog Weekly Roundup Friday, September 15, 2023

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

Alabama will again appeal to the Supreme Court asking it to affirm their congressional redistricting map after its recently redrafted map was recently rejected a time because the map failed to comply with previous rulings. This June, the Supreme Court upheld a lower court's decision that rejected Alabama’s congressional redistricting map because it violated the Voting Rights Act by diluting the power of Black voters. (See coverage by Associated Press and NPR.) The map denied Black voters the reasonable chance to elect a second representative of their choice by packing a majority of Black voters into a single district and placing remaining Black voters in the six other districts. The lower court held that the legislature should redraw the map to include at least two districts where Black voters have a realistic opportunity to elect their preferred candidate. The legislature redrew the map, which also included only one district that is majority-Black voters, and the map was again rejected. (See Associated Press coverage). This time the court appointed a special master to redraw the Alabama map, taking the power away from the legislature. See complete coverage from NPR, The New York Times, and The Wall Street Journal.

Appellate Court Opinions and News

The Fifth Circuit upheld a lower court’s decision finding that the CDC violated the First Amendment when it threatened social media platforms to coerce the platforms to remove content. However, the court reversed the holding that blocked the administration’s contacting the platforms to urge them to remove content. The court held that encouragement, as opposed coercion, does not always cross the constitutional line.  See the ruling and coverage by The Associated Press and The Washington Post.

State Court Opinions and News

A California state appeals court upheld a restriction on carrying guns in public that was similar to the New York restriction struck by the Supreme Court last term. The court held that the California law differs from the New York law in a way that makes it meet constitutional muster. Both laws require the gun owner to show good cause, which was the provision that the Supreme Court declared unconstitutional. The California law, however, also includes a provision that requires the owner to be of “good moral character.”  The court determined that “prohibitions on concealed firearms have historically been permitted by the Second Amendment” and that are still allowed if they comply with limits imposed by the Supreme Court.  See the ruling.

Of General Interest

The Federal Judicial Center shared the third edition of “A Primer on the Jurisdiction of the U.S. Courts of Appeals” by Thomas E. Baker. The primer’s purpose is described, in part, as “a brief introduction to the complexity and nuance in the subject-matter jurisdiction of the U.S. courts of appeals.”

Lawyer Barbie and the Role of Emotion in the Law

Yes, the Barbie movie is everywhere but with good reason.  It touches on numerous aspects of gender roles in society, including our legal system. 

Warning:  spoiler alert if you haven’t yet seen the movie.

At the beginning of the movie, the audience is taken on a tour of Barbieland, including a scene where Lawyer Barbie appears to be arguing Citizens United[i] before an all-female Barbie Supreme Court.  After expressing that “money is not speech and corporations have no free speech rights,” Lawyer Barbie states:

“This makes me emotional, and I’m expressing it.  I have no difficulty holding both logic and feeling at the same time.  And it does not diminish my powers. It expands them.”[ii]

Many female lawyers reacted positively to this quote, stating things like, “Being a female lawyer and hearing this line hits different after being told ‘facts not feelings’ in the courtroom over and over again.”[iii]  This reaction is not surprising because, “[g]enerally, we tend to think that people are either rational or emotional, but they can’t be both.”[iv] And “[w]hen a woman’s arguments are attributed to her emotions, it suggests she’s not thinking clearly or rationally. As a result, the legitimacy of her arguments weakens.”[v] But Lawyer Barbie was applauded for her dual display of logic and emotion because, in Barbieland, “all problems of feminism and equal rights have been solved.”[vi]

While there are obvious feminist implications related to the interplay of emotion and logic in law, I want to focus more on the general question of what role—if any—emotion should play in good lawyering, given the “long intellectual tradition that dichotomize[s] reason and emotion.”[vii] 

Though Aristotle famously said that “[t]he law is reason unaffected by desire,” he also recognized that pathos (appeal to emotion) is one of the three pillars of effective persuasion.  And a recognition of emotion’s effect on legal doctrine is weaved throughout our justice system.  In criminal law, for example, victims are allowed to give victim impact statements at sentencing, and a defendant may be convicted of a lesser degree of homicide if the evidence shows provocation by sudden passion.  But it also reaches family law, education policy, corporate and securities law,[viii] and even constitutional theory.[ix]

Trial lawyers have long recognized the power of emotional appeal to a jury.  But many attorneys “discount its value in persuading a trial judge or an appellate court.”[x]  And why wouldn’t they when well-respected appellate judges declare that “jurors, like children, are more likely to make emotional judgments than judges” and refer to emotion as “a more primitive mode of reaching a conclusion”?[xi]

But “[t]he most persuasive arguments are not necessarily those that contain the most empirical data. They are not necessarily the ones that employ the tightest syllogisms or that use the most complicated forms of analysis.”[xii] Instead, “[t]he most compelling arguments are those that connect best with the imagination of those who are listening to [or reading] the arguments.”[xiii] 

While opening statement and closing argument are the best tools in a trial lawyer’s toolbox for emotional appeal, what’s an appellate advocate to use? 

The structure of an appellate brief largely follows the five-part argument structure advanced by classical rhetoricians:  introduction (exordium), statement of the case (narratio), argument summary (partitio), proof of the case (confirmatio), and conclusion (peroratio).[xiv]  An introduction in an appellate brief is the closest analog to an opening statement at trial, but not all briefs include them.[xv]  But all briefs include a Statement of the Case (or Statement of Facts) and Argument (or proof of the case).

Though “the statement of facts is not a vehicle for argument,”[xvi] it is the ideal place for storytelling.  The facts section is where the advocate can reveal “moral purpose”[xvii] by “describing or alluding to the human emotions that motivated the [client’s] behavior.”[xviii]  A well-told story can evoke empathy from the reader, laying the groundwork for a favorable view of the legal arguments that follow.

To tell the story well, the advocate must “show, not tell” by describing the details of the scene or transaction leading to the conflict, while being mindful about the use of adjectives.  Compare “a horrific car accident” with “blood-soaked grass, the car’s body crushed like a tin can, with sunlight glinting off glass shards scattered across the asphalt and the smell of burning rubber still hanging in the air.”  The adjective “horrific” represents the advocate’s conclusion of the scene without showing it to the reader.  But giving the reader the details of the scene leads the reader to draw the same conclusion on their own.  While the party who caused the accident might prefer to use an adjective to describe the scene; the victim of the accident should use the details.[xix] 

For the argument section, an advocate can weave in emotional appeal through the use of “images, analogies, metaphors, stories, symbols, and emotive language.”[xx] Advocates should consider how they refer to the parties and other players in the case.  Use descriptive terms that show relationships between individuals (e.g., victim and perpetrator).  People tend to feel empathy for those who have been hurt or wronged and are more likely to believe justice is served when the outcome favors the person viewed as harmed.

And, because “[a]ppellate judges view themselves as guardians of the law,” a good advocate “appeal[s] to the policies and values that underlie the rule of law” to “emotionally attract the appellate judges to the merits in the client’s position.”[xxi]

In short, emotion has a place in law and should be recognized as coexisting with logic and not as inconsistent with it.  Even the stoic Dr. Spock noted that “[l]ogic is the beginning of wisdom… not the end.”[xxii]

 

[i] Citizens United v. Fed. Election Comm’n, 558 U.S. 310 (2010).

[ii] Barbie, Directed by Greta Gerwig, Warner Bros. Ent., 2023.

[iii] https://www.tiktok.com/@chamcollier/video/7260132015444430123

[iv] Kim Elsesser, Labeling Women As ‘Emotional’ Undermines Their Credibility, New Study Shows, available at: https://www.forbes.com/sites/kimelsesser/2022/11/01/labeling-women-as-emotional-impacts-the-legitimacy-of-their-arguments-according-to-new-study/?sh=643664415b90

[v] Id.

[vi] Barbie, supra note ii.

[vii] Kathryn Abrams and Hila Keren, Who’s Afraid of Law and the Emotions?, 94 Minn. L. Rev. 1997, 2003 (June 2010).

[viii] Id. at 2012.

[ix] See, e.g., J. Joel Alicea, The Role of Emotion in Constitutional Theory, 97 Notre Dame L. Rev. 1145 (2022).

[x] John C. Shepherd and Jordan B. Cherrick, Advocacy and Emotion, 3 J. Ass’n Legal Writing Directors 154, 155 (Fall 2006).

[xi] Richard A. Posner, Emotion versus Emotionalism in Law, in Susan A. Bandes, ed., The Passions of Law 311 (New York U. Press, 1999).

[xii] D. Don Welch, Ruling with the Heart: Emotion-Based Public Policy, 6 S. Cal. Interdisc. L.J. 55, 55 (1997).

[xiii] Id.

[xiv] Michael Frost, Ethos, Pathos & Legal Audience, 99 Dick. L. Rev. 85, 94 (Fall 1994).

[xv] See my previous post, Should I Include a Stand-alone ‘Introduction’ Section in My Brief? (May 9, 2023), for considerations about including introductions, and Adam Lamparello’s post, Drafting a Strong Preliminary Statement (May 28, 2023) for drafting tips.

[xvi] Markowitz & Co. v. Toledo Metro. Hous. Auth., 608 F.2d 699, 704 (6th Cir. 1979).

[xvii] Frost, supra note xiv, at 95.

[xviii] Shepherd and Cherrick, supra note x, at 156.

[xix] Advocates must be careful not to go too far with adjectives.  E.g., Markowitz, 608 F.2d at 704 (stating that describing “the trial court’s findings [as] ‘astonishing,’ and ‘extraordinary,’ or describing an opponent’s position as ‘ludicrous’ is not acceptable”).

[xx] Shepherd and Cherrick, supra note x, at 161.

[xxi] Id. at 163.

[xxii] Star Trek VI: The Undiscovered Country, Directed by Nicholas Meyer, Paramount Pictures, 1991.

Hoisted on Their Own Petard: The Appellate Motion to Strike

The general rule in appellate courts throughout the country is that a reply brief is limited to raising matters preserved in the trial court, issues argued in the opening brief, or arguments made in the response brief. The rationale for this very sensible rule is that making a new argument in a reply brief unfairly deprives the appellee of an opportunity to respond. At least in some jurisdictions, the proper response to a reply brief raising new arguments is a motion to strike.

But should you make the motion? That depends on whether you really believe it will help you. Recently, I responded to a motion to strike portions of my reply brief. I suspect that my opponent regrets making the motion. The court has told us it will address it at the same time as the merits, and presumably during the upcoming oral argument.

In this case, I was hired only at the reply brief stage to take over an appeal, so I did not write the opening brief. The issue is whether trial counsel had breached the state equivalent of Model Rule of Professional Conduct 4.2, sometimes referred to as the no-contact rule. The rule prevents undue influence or strategic advantage by preventing one party’s lawyer from contacting a represented party’s lawyer without that lawyer’s consent. In other words, communications with another party must be through that party’s counsel.

In the trial court, defense counsel for a product manufacturer accused plaintiff’s counsel of violating the rule by speaking to an independent authorized service center (ASC) for the product, as well as for the products of other manufacturers. In the complaint, the plaintiff had referred to the ASC as an agent for the manufacturer. However, when he sought discovery in prior litigation for a different plaintiff, the manufacturer (and the same defense counsel) denied that an ASC was an agent, asserted that the ASC was an independent company, and said that any information counsel wanted should be obtained directly from the ASC. However, because plaintiff’s counsel went directly to the ASC in this subsequent case after describing it as an agent, the manufacturer asked for sanctions under Rule 4.2. Counsel did not claim he represented the ASC. Instead, counsel argued that because the plaintiff’s lawyer had “thought” the non-party ASC was an agent, he should have sought permission to contact the ASC – even though defense counsel was in no position to grant or deny permission.

The trial judge bought the argument and disqualified plaintiff’s counsel. The opening brief on the appeal of that disqualification explained the facts, the rule, and what it would take to treat an “agent” as fitting within the rule. The response brief reiterated the trial court opinion, focusing on how the definition of “person” in the rule included “agents.” My reply brief opened with the fact that the briefing to date established that the ASC was not a represented person so that Rule 4.2 did not apply and that by itself was dispositive. It explained the underlying purpose of the rule and how that was completely tied to being a “represented person.”

The motion to strike soon followed, asking the court to strike every portion of my brief that made the represented-person argument, explaining that it was a new argument made by new counsel. In a footnote, added under an abundance of caution, the response brief provided a substantive response to the argument. My reply to the motion pointed out that the issue was not at all new. The trial court transcript included an argument about the rule only applying to a represented person. The opening brief quoted the rule and made arguments about the meaning of agent that assumed the rule applied only to represented persons. And the defendant’s brief also opened the door to the argument by focusing on the meaning of “person” without including the very necessary word “represented” that came before “person” and limited the latter word’s scope. Each of these facts independently supported the propriety of making the argument in the reply brief. I also pointed out how incongruous it would be to suddenly apply a rule that is explicit in its scope to situations that are plainly outside it and that the consequences of such a ruling would change the dynamics of litigation in ways that could not be justified by forcing counsel to forego contact with independent non-parties to prepare a case absent permission of opposing counsel who did not represent that party.

The battle over the motion to strike, though still undecided, had the effect of further highlighting my argument about the necessity of representation, while its substantive response, albeit in a footnote, telegraphed to me the other side’s likely position on why representation is unnecessary when the issue is joined at oral argument. Strategically, it makes little sense to highlight an opponent’s strongest point, which is what this motion did. It seems unlikely that the motion could succeed when it asks a court to read out of the applicable statute (or rule) a textual qualification to the part of the law that a party relies upon.

If I am correct in believing that the word “represented” is dispositive of the appeal, the motion to strike provided me with an opportunity to fine-tune the argument by resort to the record and what the trial court ignored, as well as to tie it even more closely to my opponent’s argument. I doubt that the motion provided a benefit to the other side. Instead, I suggest that this was one of those instances where counsel would have been better off foregoing the motion to strike.

Journal of Appellate Practice & Process Looking for State-focused Articles

The Journal of Appellate Practice & Process is looking for one or two more articles or essays for our Summer 2024 issue.  In particular, we are looking for articles that focus on either the work of state appellate courts or appellate practice issues in state courts.

The Journal is a professionally edited Journal that focuses on appellate law topics. According to HeinOnline, it is the “the only scholarly law journal to focus exclusively on issues, practices, and procedures of appellate court systems, both federal and state, both American and international.” It “provides a forum for creative thought and dialogue about the operation of appellate courts and their influence on the development of the law.”

We tend to prefer shorter, more practical oriented articles, but we have published longer pieces in the past. If you are interested in submitting an article, please email me at [email protected].

Thanks!

The Optics of Ending Affirmative Action

In Students for Fair Admissions v. Harvard, the United States Supreme Court ended affirmative action in college admissions.[1] Specifically, the Court held that race-based considerations in the admissions process violated the Fourteenth Amendment’s Equal Protection Clause.[2] Writing for the majority, Chief Justice John Roberts stated that such affirmative action policies “lack sufficiently focused and measurable objectives warranting the use of race, unavoidably employ race in a negative manner, involve racial stereotyping, and lack meaningful end points.”[3] Chief Justice Roberts also interpreted the Equal Protection Clause to require that universities act "without regard to any difference of race, of color, or of nationality," and emphasized that “[e]liminating racial discrimination means eliminating all of it.”[4] This language is reminiscent of Roberts’ opinion in Parents Involved in Community Schools v. Seattle School District No. 1, where he stated that “the way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”[5]

Importantly, however, the Court did not prohibit universities from considering race in the admissions process "so long as that discussion is concretely tied to a quality of character or unique ability that the particular applicant can contribute to the university."[6] In other words, although an applicant’s race cannot, by itself, be a factor in the admissions process, it can be considered if an applicant explains, such as in a personal statement, how the applicant's race created unique obstacles or adversity that the applicant overcame.

Regardless of one’s opinion about the constitutionality – or efficacy – of affirmative action programs, the Court’s decision undermined its legitimacy and reinforced the notion that the Court is a political institution. To begin with, Chief Justice Roberts’ opinion effectively overruled three precedents – Regents of the University of California v. Bakke, Grutter v. Bollinger, and Fisher v. University of Texas – thus making stare decisis appear like a doctrine of convenience rather than conviction.

What’s worse, the Court’s decision reflects the deeply troubling reality that the Constitution’s meaning changes when the political affiliation of the Court’s members changes. Let’s be honest: the only reason that the Court ended affirmative action in college admissions is because Justice Brett Kavanaugh replaced former Justice Anthony Kennedy and because Justice Amy Coney Barrett replaced the late Justice Ruth Bader Ginsburg. To be sure, ten years ago, the Court would have decided Students for Fair Admissions differently, and only because the political affiliations of the Court’s members at that time were different. Indeed, the Court’s decision suggests that constitutional rights can be tossed in the proverbial garbage simply because there are more conservatives on the Court in 2023 than there were in 1978 (when Bakke was decided) or 2003 (when Grutter was decided). That is the point – and the problem. The Court’s decision cheapened constitutional meaning and contributed to transforming the Court into a political, not legal, institution. The justices surely understand this, but probably do not care.[7]

Lest there be any doubt, consider Dobbs v. Jackson Women’s Health, where the Court overturned Roe v. Wade and Planned Parenthood v. Casey and held that the Fourteenth Amendment did not protect a right to abortion.[8] Although the Court’s decision was correct as a matter of constitutional law, it was also incorrect from a pragmatic standpoint. After all, just as one wonders what made the justices discover an unenumerated constitutional right in those invisible penumbras that the Court created in Griswold v. Connecticut, one must also wonder what made the justices suddenly discover that the Constitution did not protect a right to abortion. The answer is obvious: the justices’ political preferences. Unfortunately, the public’s opinion of the Court is damaged when it perceives that politics, not law, and party affiliation, not principle, motivate the Court’s decisions. And although the justices continually emphasize that policy preferences do not motivate their decisions, the fact remains that perception matters more than reality. In fact, it is reality.

This raises a broader point: why is the Court getting involved in these cases? Where reasonable people can disagree regarding the Constitution’s meaning, such as where the text is broadly phrased or ambiguous, why is the Court deciding for an entire nation what should be decided democratically? For example, in Kennedy v. Louisiana, the Eighth Amendment’s text could not possibly answer the question of whether authorizing the death penalty for child rape constituted cruel and unusual punishment.[9] Likewise, in Clinton v. New York, the Presentment Clause provided no guidance on the Line-Item Veto Act’s constitutionality.[10] Additionally, in Citizens United v. FEC and McCutcheon v. FEC, the First Amendment’s text could have been interpreted differently when deciding the constitutionality of limits on independent expenditures.[11] As a result, the Court should have allowed the people to decide these issues democratically.  But the Court refused to do and, in so doing, nine unelected justices –who graduated from elite law schools and come from a privileged pedigree – substituted their judgment for that of citizens and Congress. Not to mention, it is quite problematic to preach deference to the coordinate branches in cases such as National Federation v. Independent Investors v. Sebelius, and then in Shelby County v. Holder to simultaneously invalidate portions of the Voting Rights Act that the Senate reauthorized by a vote of 99-0.

If the Court wants to maintain its legitimacy, it should show greater respect for its precedents and stop getting involved in cases where the Constitution’s text nowhere demands its involvement.

 

 

[1] See Slip Op. at 20-1199 Students for Fair Admissions, Inc. v. President and Fellows of Harvard College (06/29/2023) (supremecourt.gov)

[2] Id.

[3] Id.

[4] Id.

[5] 557 U.S. 701 (2007).

[6]  See Slip Op. at 20-1199 Students for Fair Admissions, Inc. v. President and Fellows of Harvard College (06/29/2023) (supremecourt.gov)(emphasis added).

[7] This is not to say that the majority was wrong as a matter of constitutional law, or in any way to question the justices’ motivations. It is to say, however, that their decision suggests that politics, not law, drove the decision.

[8] 142 S. Ct. 2228.

[9] 554 U.S. 407 (2008).

[10] 524 U.S. 417 (1998).

[11] 558 U.S. 310, (2010); 572 U.S. 185 (2014).