Appellate Advocacy Blog

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

Monday, March 25, 2024

Be accurate in your case citations

Last weekend I gave a talk on appellate advocacy to a group of law students interested in public interest work. It was a great crowd. As a former public interest lawyer, it was especially interesting to think about what I might say differently about appellate advocacy to students interested in public interest work.

One point that I didn't change in my standard advocacy talk was Tip #5--Be Professional. When I talk to attorneys and students about professionalism and appellate advocacy I tend to emphasize two points. First, I talk about the importance of being accurate in how you represent cases and the record.  When we surveyed judges for Winning on Appeal, we found that complaints about the misstating the law or the record was probably the second most common complaint that judges had about brief writing (the first being that briefs are too long). The second point I emphasize is the importance of not attacking the judge below or opposing counsel.

As I sat in my hotel room doing my final prep before my talk, I received an email from a legal writing professors listserv that provided me with a prime example on this point. Just a few days ago the Ninth Circuit issued an opinion dismissing an appeal and striking a brief because the appellant's brief "represent[] a material failure to comply with [the court's] rules." Ouch. The primary problem with the brief was that it fabricated caselaw and cited cases that did not stand for the propositions for which they were cited. From the opinion:

Here, Appellants filed an opening brief replete with misrepresentations and fabricated case law. For example, the brief states that Hydrick v. Hunter, 669 F.3d 937 (9th Cir. 2012), “examined a claim of false imprisonment brought by a parent whose child was unlawfully removed from the home by government officials.” Hydrick, however, discusses no such claim. The case instead concerns a conditions of confinement claim brought by a class of persons civilly committed under California’s Sexually Violent Predator Act. Id. The words “parent” and “child” appear nowhere in the opinion. Similarly, Appellants’ brief states that Wall v. County of Orange, 364 F.3d 1107 (9th Cir. 2004), “addressed intentional infliction of emotional distress claims against police officers who unlawfully removed a child from her parent.” Wall instead concerns allegations of excessive force, false arrest, and false imprisonment brought by a dentist who was arrested after an altercation at an auto shop. Id at 1110–12. The words “parent” and “child” are, once again, absent from the opinion. Beyond Hydrick and Wall, Appellants also misrepresent the facts and holdings of numerous other cases cited in the brief. See, e.g., Smith v. City of Salem, 378 F.3d 566 (6th Cir. 2004); Yvonne L. v. N.M. Dep’t of Hum. Servs., 959 F.2d 883 (10th Cir. 1992); Smith v. City of Fontana, 818 F.2d 1411 (9th Cir. 1987); Wilkins v. City of Oakland, 350 F.3d 949 (9th Cir. 2003); Harris v. Roderick, 126 F.3d 1189 (9th Cir. 1997); Mattos v. Agarano, 661 F.3d 433 (9th Cir. 2011); Henderson v. City of Simi Valley, 305 F.3d 1052 (9th Cir. 2002); Johnson v. City of Seattle, 474 F.3d 634 (9th Cir. 2007); Brooks v. City of Seattle, 599 F.3d 1018 (9th Cir. 2010); Devereaux v. Perez, 218 F.3d 1045 (9th Cir. 2000); Wallis v. Spencer, 202 F.3d 1126 (9th Cir. 2000). 

It gets worse. The Court issued a focus order before argument asking the parties to discuss two cases that were cited in the brief but did not appear to exist. At oral argument, "[c]ounsel . . . did not acknowledge the fabrications" and failed to provide other "meaningful support for Appellants' claims." The opinion even includes a colloquy with the court on these issues. It isn't great for the attorney. 

As I pointed out to the students, this is bad. Things like this ruin your reputation with the court and the judges for your entire career. In fact, the court was so upset by the attorney's actions that it PUBLISHED the opinion. Yes, it published it.

So, let this be a lesson to be accurate in your case citations. Your reputation depends on it.

(Thanks to Cory Webster for sharing the opinion and Prof. Sarah Ricks for disseminating it on the listserv).

March 25, 2024 | Permalink | Comments (0)

Sunday, March 24, 2024

And or Or

Statutory construction figures in many appeals. Despite well-known canons that guide courts in interpreting statutes, advocates and courts frequently dispute a written law’s meaning. The overarching principle used in both federal and state courts seeks to read a statute to reflect the intent of the legislature that enacted it. To determine legislative intent, precedent advises that the law’s text, read as a whole, is the best indicia of what the enacting body intended. In taking a textualist approach, courts attempt to read the words of a statute in their ordinary meaning, absent some indication that the words have a technical meaning or are used as terms of art.

When a plain-meaning approach does not resolve ambiguities in the text, courts often resort to legislative history, hoping to derive an answer from hearings, reports, and legislators’ remarks. One example of particular contention is the legislative use of “and” or “or.” The controversy over their usage has given rise to what is called the conjunctive/disjunctive canon. The canon holds, as one might assume, that the use of “and” is conjunctive, which means that the items in a list are joined. The use of “or” is disjunctive, which tells you that the items in a list are alternatives. Yet, nothing is as simple as that might seem to make it because lists can include negatives, plurals, and other phrases that create ambiguities.

In 2018, Congress enacted a criminal justice reform called the “First Step Act.” Among other things, it created criteria that would allow avoidance of mandatory minimum sentences. To apply this safety valve, a court must, in addition to other criteria, find:

        the defendant does not have--

                (A) more than 4 criminal history points, excluding any criminal history points resulting from a 1-point offense, as determined under the sentencing guidelines;

                (B) a prior 3-point offense, as determined under the sentencing guidelines; and

                (C) a prior 2-point violent offense, as determined under the sentencing guidelines.

In Pulsifer v. United States, decided on March 15, the Supreme Court grappled with what had baffled the circuit courts: must all three conditions be met as signified by the word “and,” or should the “does not have” that introduces the list indicate that A, B, and C are alternative qualifications.

The government argued to the Court that the requirements mean that a defendant with any one of the disqualifying criteria was ineligible for the leniency the law granted, as though it read A or B or C. The defendant arguing the use of and was conjunctive, argued that the law only disqualified a defendant if the record reflected all three at the same time.

A six-member majority sided with the government, but the line-up was a bit unusual. Justice Kagan wrote for a majority that included Chief Justice Roberts and Justices Thomas, Alito, Kavanaugh, and Barrett. Justice Gorsuch authored a dissent, joined by Justices Sotomayor and Jackson.

The majority said that there were “two grammatically permissible ways to read” the provision, so that either the government’s or the defendant’s might be plausible. However, grammatical rules alone could not answer the Question Presented, because the language had to be read in context. In other words, reliance simply on the conjunctive/disjunctive canon would be misplaced.

Invoking an example from the children’s book, The Very Hungry Caterpillar, Justice Kagan explained that sometimes in a series is joined by a single verb so when the caterpillar “ate through” a number of food items we understand that each listed food had a hole through which the caterpillar traveled. She then states that when a person says, “I’m not free on Saturday and Sunday,” . . . he most likely means “I’m not free on Saturday and I’m not free on Sunday.” What the person does not mean is that he is only available “one of those days,” but the entire weekend.

However, the inclusion of “does not have” at the top of the list “refers independently to crimes satisfying (1), crimes satisfying (2), and crimes satisfying (3)—not to whatever crimes manage to satisfy (1), (2), and (3) all at once.” Thus, even if Congress could have framed the criteria more clearly, the majority resolved the issue by determining that Congress could not have created an exception that swallowed the rule, but that recognized ineligibility for a more lenient sentence based on the seriousness of the offense. That sensible view, the majority surmised, is reflected in the government’s favored interpretation.

Justice Gorsuch’s lengthy dissent largely applies the conjunctive/disjunctive canon, refusing to rewrite the statute from its plain text where “or” must mean “or.”

Although the decision resolves the meaning of the First Step Act, both sides have provided advocates with ample argument points the next time legislation is less than translucent.

March 24, 2024 in Appellate Advocacy, Appellate Practice, Current Affairs, Federal Appeals Courts, Legal Writing, Oral Argument, State Appeals Courts, United States Supreme Court | Permalink | Comments (0)

Monday, March 18, 2024

Journal of Appellate Practice and Process V.24 Issue 1 Now Online

I am thrilled (relieved) to announce that volume 24, issue 1 of the Journal of Appellate Practice and Process is now online.  We have had several hiccups in finalizing this issue, not the least of which was a new publishing company, but we made it!

Our Journal team is working diligently on the next issue, and I am accepting articles for volume 25.  I have pasted the full list of pieces in the current issue below.

The Journal of Appellate Practice and Process – Winter 2024 Issue Now Available

The Winter 2024 issue of The Journal of Appellate Practice and Process (Volume 24, Issue 1) is now available. It features the following pieces:

March 18, 2024 | Permalink | Comments (0)

Sunday, March 17, 2024

A Few Thoughts on Judge McAfee's Decision

On March 15, 2024, Judge Scott McAfee denied the defendants’ motion to disqualify Fulton County District Attorney Fani Willis from the case involving the prosecution of former President Donald Trump and other defendants.

Below are a few observations from Judge McAfee’s decision and the hearing.

1.    Judge McAfee should have disqualified Willis.

Given the facts and evidence, Willis should have been disqualified. Her conduct demonstrated an actual conflict of interest and the appearance of a conflict of interest.

First, on January 14, 2024, Willis gave a speech at an Atlanta church that all but accused Trump’s and the other defendants’ lawyers of racism – stating they would play the “race card” – and, in so doing, showed an alarming lack of judgment.[1] Although not mentioning the defense attorneys by name, it was clear who Willis was targeting, and her comments, which could taint the jury pool, were inappropriate and unethical.  It should come as no surprise that Judge McAfee suggested that a gag order may ultimately be necessary to ensure that such conduct does not occur again.[2]

Second, Willis and Wade likely provided untruthful testimony on the witness stand when they stated that their romantic relationship began in 2022. To begin with, Willis’s former friend Robyn Yeartie testified under oath that the relationship began in 2019, which was before Willis hired Wade as a special prosecutor. Additionally, Wade’s former attorney and law partner, Terrence Bradley, exchanged text messages in January 2024 with Ashleigh Merchant, one of the defendants’ attorneys, in which he responded “absolutely,” when Merchant asked him whether the relationship began before 2022 (and offered specific details regarding when it began).[3] It is incomprehensible why Bradley, who previously represented Wade in a divorce proceeding, would communicate with an attorney seeking Willis’s dismissal from the case. And it was equally troubling that, when testifying, Bradley evaded nearly every question, suddenly claiming that he did not recall when the relationship began. Bradley’s text messages, not his dishonest testimony, tell the story.[4]

Also, Wade’s testimony was inconsistent with the answers he provided to interrogatories in his prior divorce proceeding. As Judge McAfee stated, Wade’s “patently unpersuasive explanation for the inaccurate interrogatories he submitted in his pending divorce indicates a willingness on his part to wrongly conceal his relationship with the District Attorney.”[5] Well, if Wade’s explanation that the relationship began in 2022 was “patently unpersuasive,” then Willis’s testimony was too. As they say, what is good for the goose is also good for the gander.

Lest there be any doubt, the defendants provided evidence that, before 2022, Willis and Wade had exchanged thousands of text messages and that Wade was located near Willis’s residence approximately thirty-five times.[6] What’s more, after the hearing, two additional witnesses came forward with information that the relationship began before 2022, but Judge McAfee declined to hear their testimony.[7]

Third, Willis’s claim that she reimbursed Wade in cash for money that he expended on their numerous vacations – while Willis employed and supervised Wade – strains credulity. Indeed, Willis’s explanation for the reimbursements is quite convenient because it ensures that they cannot be traced. And it is odd that a district attorney, who, as a public servant, arguably has an obligation to disclose such reimbursements, would select a method for which no documentation would exist. One would think that, in the interest of disclosure and transparency, Willis would do the opposite.

Judge McAfee summarized Willis and Wade’s questionable conduct as follows:

Even if the romantic relationship began after … Wade’s initial contract in November 2021, the District Attorney chose to continue supervising and paying Wade while maintaining such a relationship. She further allowed the regular and loose exchange of money between them without any exact or verifiable measure of reconciliation. This lack of a confirmed financial split creates the possibility and appearance that the District Attorney benefited - albeit non-materially - from a contract whose award lay solely within her purview and policing.[8]

Judge McAfee almost certainly did not believe Willis and Wade, stating in his opinion that “the General Assembly, the Georgia State Ethics Commission, the State Bar of Georgia, the Fulton County Board of Commissioners, or the voters of Fulton County may offer feedback on any unanswered questions that linger.”[9] That should tell you all you need to know.

Given his findings, how could Judge McAfee conclude that the defense had failed to establish by a preponderance of the evidence that the relationship began before 2022, that Willis was not truthful on the stand, and that Willis should not be disqualified? No one can know the answer to this question, but a few explanations appear likely. Judge McAfee may have been afraid to disqualify Willis because of the far-reaching implications of such a decision. Doing so would have made it highly likely that Trump would not be prosecuted, and that McAfee would face a significant backlash from Fulton County’s legal community and voters. Additionally, considering that Judge McAfee is a new judge in an overwhelmingly liberal county, and married with two children, he may have feared that disqualifying Willis would have threatened his career and safety.

Alternatively, Judge McAfee may have honestly believed that he was reaching the right result because, despite Willis’s and Wade’s unethical conduct, no actual conflict of interest existed. But if the relationship began in 2019 or 2020, which the evidence overwhelmingly suggests, Willis had an actual conflict of interest when she hired Wade, when she chose Wade the lead the prosecution against Trump and the other defendants, when she continued to employ and supervise him, and when she paid him hundreds of thousands of dollars for his services. And Willis’s lack of candor on the stand is itself a conflict of interest because her and Wade’s personal interest in concealing the relationship conflicted with their duty to testify truthfully and disclose that relationship. Under these circumstances, disqualification should be the remedy for precisely the type of egregious and unethical conduct that Judge McAfee cited in his decision.

Whatever the reason, Judge McAfee showed himself to be a careful, thoughtful, and conscientious judge, and his findings regarding Willis’s and Wade’s unethical conduct will surely impact Willis’s ability to remain as the prosecutor going forward.

2.    The prosecution against former President Donald Trump is irreparably tainted.

In his opinion, Judge McAfee criticized Willis for her “tremendous lapse of judgment” and the “unprofessional manner of [Willis’s] testimony,” and concluded that the hearing had an “odor of mendacity” that created the appearance of impropriety.[10] Indeed, Willis’s speech at the church, her previously undisclosed relationship (and vacations) with Wade, her questionable theory of cash-only (and thus untraceable) reimbursements, and her combative testimony under oath, compromised irreparably her credibility and stained the prosecution with an unremovable taint.

For these and other reasons, Willis’s continued involvement in the prosecution will likely undermine the public’s faith in the legal system and the rule of law. As Judge McAfee stated:

As the case moves forward, reasonable members of the public could easily be left to wonder whether the financial exchanges have continued resulting in some form of benefit to the District Attorney, or even whether the romantic relationship has resumed. Put differently, an outsider could reasonably think that the District Attorney is not exercising her independent professional judgment totally free of any compromising influences … The testimony introduced, including that of the District Attorney and Wade, did not put these concerns to rest.[11]

It is deeply troubling that a district attorney, particularly one involved in the very public prosecution of a former president, would behave in this manner, rather than ensure that her conduct was beyond reproach.

In essence, Trump won this hearing even though he did not technically “win.”

3.    The weaponization of the law against Trump threatens to undermine the public’s faith in the rule of law.

If one honestly analyzes the cases and court decisions against Trump, one theme emerges: they are, at least to a degree, politically motivated and reflect personal animus against Trump.

For example, New York Attorney General Letitia James campaigned on the promise that she would target and prosecute Trump. And James brought a lawsuit against Trump under a rarely used statute – and before a decidedly liberal judge – that resulted in an arguably excessive $350 million dollar judgment against Trump.[12] We now live in a country where a prosecutor can openly campaign on and get elected to a position on a pledge to prosecute a specific individual.[13]

Additionally, Willis has been anything but shy about her hatred for Trump. Furthermore, the indictment against Trump – filed in Fulton County, which is overwhelmingly liberal – all but ensures a jury pool consisting of jurors who dislike Trump, much like the jury in Manhattan that awarded E. Jean Carroll eighty-three million dollars in damages for defamation, despite her attorneys seeking only a fraction of that amount.[14]

Likewise, the prosecution against Trump in the District of Columbia, which relates to his conduct on January 6, 2021, will, like in Manhattan and Fulton County, place Trump in an overwhelmingly liberal jurisdiction before an overwhelmingly liberal jury. Moreover, the prosecutors in the pending cases are desperately seeking to begin the trials in advance of the November election. That, again, should tell you all you need to know. The motive for these prosecutions is political, namely, to ensure that Trump loses the election in November.[15]

Regarding recent court decisions, the Colorado Supreme Court’s decision, where four justices (all democrats) held, despite the unambiguous language in Section Five of the Fourteenth Amendment, and the ambiguous language in Section Three, that Trump was an “insurrectionist” and therefore barred from Colorado’s presidential primary ballot, was utterly ridiculous.[16] Not surprisingly, the United States Supreme Court unanimously reversed the Colorado Supreme Court’s decision.

Also, some scholars and media personalities continue to make histrionic and laughable statements that defeating Trump is necessary to save democracy. Former Fourth Circuit Court of Appeals Judge Michael Luttig, for example, consistently foments division and fear by making melodramatic statements, such as that the November election is a struggle for democracy and that democracy’s survival depends on defeating Trump.[17] Well, democracy is not threatened because voters elect someone that you do not like.

4.    Steve Sadow is among the best attorneys in the country. 

Steve Sadow, the lead attorney for Donald Trump, is incredibly talented and among the nation's top attorneys. If law students and young lawyers want to see an example of powerful advocacy, they should look no further than Sadow. Indeed, Sadow eviscerated Terrence Bradley with concise, impossible-to-evade questions that left no doubt that Bradley was being untruthful. And Sadow knows how to craft a question in which he subtly incorporates argument into the lead up to the question, and his forceful and confident tone makes it seem like any answer that a witness gives other than the one Sadow's question implicitly suggests is not credible. 

Additionally, Sadow's preparation is impeccable. His arguments are well-organized, to the point, and delivered with a confidence and authenticity that maximizes their persuasive impact. In short, it's not just what Sadow says, but how he says it, that is so impressive. 

 

***

When Wade resigned as the lead prosecutor, he wrote that he was doing so “in the interest of democracy.”[18] Wade did not resign “in the interest of democracy.” He resigned because he got caught. And when the defendants initially filed their motion to disqualify Willis, she called the allegations in the motion – while under oath -- a lie.[19]  Judge McAfee’s decision demonstrates that the allegations were anything but a lie.

The rule of law, not democracy, is at stake. If prosecutors continue to try to “get Trump,” it will erode public confidence in the rule of law and its leaders.[20] That, and an “odor of mendacity,” is the true threat to democracy.

 

[1] Timothy H.J. Nerozzi, Judge in Georgia Slams Fani Willis’ ‘Improper’ Church Speech, ‘Playing the Race Card,’ (March 15, 2024), available at: Judge in Georgia slams Fani Willis' 'improper' church speech, 'playing the race card' (fox5atlanta.com)

[2] See State of Georgia v. Donald John Trump, et al. (March 15, 2024), available at: 151-ORDER-03-15-2024 (fultonclerk.org)

[3] Srah Fortinsky, Ex-divorce lawyer Key Texts on Willis-Wade Relationship Were Speculation (Feb. 27, 2024), available at: Ex-divorce lawyer: Key texts on Willis-Wade relationship were speculation | The Hill

[4] See id.

[5] State of Georgia v. Donald John Trump, et al. (March 15, 2024), available at: 151-ORDER-03-15-2024 (fultonclerk.org)

[6] See Nick Wooten, Trump Attorney: Cell Phone Data Could Show that Fani Willis Nathan Wade Lied About Relationship Timeline Feb. 23, 2024), available at: Phone data calls into question Wade-Willis relationship timeline | 11alive.com

[7] See Jason Morris, et al., Georgia Judge Asked to Allow New Testimony from Witnesses Who Allegedly Have Information on Willis-Wade Relationship (March 5, 2024), available at: Georgia judge asked to allow new testimony from witnesses who allegedly have information on Willis-Wade relationship | CNN Politics

[8] See State of Georgia v. Donald John Trump, et al. (March 15, 2024), available at: 151-ORDER-03-15-2024 (fultonclerk.org)

[9] Id.

[10] Id. (brackets added).

[11] Id.

[12] See Adam Reiss and Dareh Gregorian, Judge Fines Donald Trump More Than 350 Million, Bars Him from Running Businesses in N.Y. for Three Years (Feb. 16, 2024), available at: Judge Engoron fines Trump more than $350M, bars him from running businesses in N.Y. for 3 years (nbcnews.com)

[13] See Associated Press, NY Attorney General Letitia James Has a Long History of Fighting Trump and Other Powerful Targets (Sept. 28, 2023), available at: NY Attorney General Letitia James Has a Long History of Fighting Trump and Other Powerful Targets (usnews.com)

[14] See Lauren Del Valle, Jury Finds Trump Must Pay 83.3 Million to E. Jean Carroll (Jan. 26, 2024), available at: Trump must pay $83.3 million to E. Jean Carroll, jury says (cnn.com)

[15] The case against Trump in Florida, involving Trump’s alleged refusal to turn over classified documents, is arguably the most meritorious of those brought against Trump.

[16] See Trump v. Anderson, 2023 CO 63, available at: 23SA300.pdf (state.co.us)

[17]  See Shauneen Miranda, Former Pence Legal Aide: Trump’s Hold on the GOP Puts Democracy ‘In Grave Peril’  (Aug. 9, 2023), available at: Former Pence legal aide: Trump’s hold on GOP puts democracy “in grave peril” (axios.com)

[18] The Hill, Nathan Wade’s Resignation Letter (March 15, 2024), available at: READ: Nathan Wade’s resignation letter | The Hill

[19] See Kaitlyn Lewis, Fani Willis Says Lawyer ‘Lying’ During Disqualification Hearing (Feb. 15, 2024), available at:  Fani Willis Says Lawyer 'Lying' During Disqualification Hearing (newsweek.com)

[20]  See Alan Dershowitz, Get Trump: The Threat to Civil Liberties, Due Process, and Our Constitutional Rule of Law (Hot Books, 2023).

March 17, 2024 in Current Affairs, Legal Ethics, Legal Profession, United States Supreme Court | Permalink | Comments (3)

Tuesday, March 12, 2024

Can AI Help with Jury Selection?

A couple of months ago, I had my first experience sitting on a panel for voir dire.  It was a criminal case for the class E felony of fourth-degree domestic assault, which carries a maximum of four years’ imprisonment in Missouri.[i]  Having worked on behalf of the state in criminal cases for six years (and seeing a former colleague sitting at the bench when we walked into the courtroom), I knew I would not make the final cut.  But I did my best to respond truthfully and keep my outside legal knowledge to myself.

As an appellate attorney, I’ve read hundreds of voir dires but participated as counsel in only one, and even then, I was a distant second-chair.  Yet I can probably rattle off dozens of questions likely to be asked by both the prosecution and the defense, so I was thinking about how I would respond to those questions I knew were going to be asked—questions about my knowledge, interactions, and feelings about the criminal justice system, the nature of the crime, the burden of proof, and the presumption of innocence. 

But many of the questions I expected did not come.  We were asked many questions about the burden of proof and presumption of innocence, a few vague and awkwardly worded questions I suspect were directed at specific facts underlying the offense, and some about interactions with law enforcement.  But neither side asked if anyone on the panel had ever been the victim of, accused of, or knew anyone who had been the victim or accused in a domestic violence situation.  Before voir dire concluded, however, a panelist raised her hand and asked counsel if they wanted to know that kind of information, which of course they did.  And roughly five panelists then explained their connections with domestic violence, most of which appeared to be disqualifying connections that never would have come to light but for that one panelist’s question.

And this experience made me wonder if AI could help attorneys ensure that their voir dire questions adequately ferret out any potential bias in the panelists (or at least make a good record to preserve any issues later for appeal).[ii] 

To adequately ferret out bias, we must first understand what leads to bias, so I asked ChatGPT to create a list of potential biases any juror might have in a criminal case, and it identified the following:

  1. Confirmation Bias:
    • Tendency to interpret new evidence as confirmation of one's existing beliefs or theories.
  2. Pretrial Publicity Bias:
    • Opinions formed based on media coverage or public opinion about the case prior to the trial.
  3. Experience-Based Bias:
    • Personal or vicarious experiences with crime, law enforcement, or the legal system that may color perceptions of the case.
  4. Occupational Bias:
    • Work experience in law enforcement, legal, or other related fields that might influence views on evidence or testimony.
  5. Community Bias:
    • Pressure to decide in a certain way because of perceived community opinions or values.
  6. Sympathy Bias:
    • Decisions influenced by feelings of sympathy for the victim, defendant, or their families rather than the evidence.
  7. Prejudice:
    • Biases based on race, ethnicity, religion, gender, sexuality, or socioeconomic status of the defendant, victim, or witnesses.
  8. Authoritarian Bias:
    • A tendency to believe and defer to authorities or officials without sufficient scrutiny.
  9. Moral or Religious Beliefs:
    • Strong moral or religious convictions that might interfere with the juror's ability to consider certain types of evidence or testimony objectively.
  10. Punishment Bias:
    • Fixed beliefs about the criminal justice system, punishment, or specific crimes that might influence the juror's decision-making.
  11. Victim Blaming:
    • A tendency to blame victims for their own victimization, which might affect the juror's interpretation of the evidence or testimony.
  12. Overconfidence Bias:
    • Overestimation of one's own reasoning abilities or underestimation of the complexity of the case.
  13. Halo Effect:
    • The tendency to have an overall impression of a person, witness, or defendant and allow that impression to influence judgments about their specific traits or behaviors.
  14. Groupthink:
    • A tendency to conform to the majority opinion in the deliberation room, rather than independently evaluating the evidence.
  15. Anchoring Bias:
    • The reliance on the first piece of information encountered (initial impressions or evidence) when making decisions.
  16. Selective Memory:
    • Remembering things in a way that confirms one's preconceptions, often while forgetting evidence that contradicts those preconceptions.

I then asked it to identify general topics that should be addressed in voir dire for any criminal matter, and it responded:

  1. Juror Background Information:
    • Basic personal information (e.g., occupation, education).
    • Any connections to the legal or law enforcement communities.
  2. Knowledge of the Case:
    • Exposure to pre-trial publicity and media coverage.
    • Pre-existing knowledge or opinions about the case or parties involved.
  3. Experience with the Legal System:
    • Prior jury service and the nature of the case(s).
    • Personal or family experience with the legal system, whether civil or criminal.
    • Experience with being a victim, witness, or defendant in a legal proceeding.
  4. Views on Law and Order:
    • Beliefs about the criminal justice system's fairness and effectiveness.
    • Opinions on law enforcement and the legal process.
  5. Potential Biases and Prejudices:
    • Any biases or prejudices that could affect impartiality.
    • Attitudes towards race, ethnicity, religion, gender, or socioeconomic status that may be relevant to the case.
  6. Moral, Ethical, and Philosophical Beliefs:
    • Beliefs that might affect perceptions of guilt, innocence, or the nature of justice.
    • Opinions on controversial issues that might relate to the case (e.g., drug use, corporal punishment).
  7. Ability and Willingness to Serve:
    • Availability for the entire duration of the trial.
    • Any personal or professional conflicts that may affect the ability to serve.
  8. Understanding and Acceptance of Legal Principles:
    • Acceptance of the presumption of innocence.
    • Willingness to make decisions based solely on evidence presented in court.
    • Understanding of the standard of proof required in a criminal case (beyond a reasonable doubt).
  9. Decision-making and Deliberation:
    • Ability to deliberate fairly and openly with fellow jurors.
    • Willingness to change one's opinion if evidence warrants.
    • Comfort with discussing potentially distressing or sensitive topics.
  10. Case-specific Issues:
    • Attitudes towards specific aspects of the case (e.g., views on mental health issues if relevant to the case).
    • Opinions or knowledge about specific types of evidence (e.g., DNA evidence, eyewitness testimony).

While many of these questions were covered in the original juror questionnaire, it’s still a great list to consult to ensure full coverage.

Finally, I asked it to “draft a list of questions for voir dire in a state criminal case where the defendant is charged with two counts of fourth degree domestic assault and the victims are his wife and child.”  And the AI gave me this:

Background Questions

  1. General Information:
    • Can you please state your name, age, and occupation?
    • Have you or anyone close to you ever served in law enforcement or the legal profession?
  2. Case Awareness:
    • Have you heard about this case prior to today? If yes, what have you heard?
    • Have you formed any opinions about this case based on what you might have heard or read?
  3. Legal System Beliefs:
    • What are your general impressions of the criminal justice system?
    • Do you believe that the system is fair to defendants? Why or why not?
  4. Media Consumption:
    • Do you regularly follow news stories about criminal cases, either in the news, on television, or via social media?
    • Have you watched or read any true crime shows, podcasts, or books? Do you think these have influenced your views on criminal cases?

Experience with Domestic Violence

  1. Personal Experience:
    • Without providing specifics, have you or someone close to you ever been involved in an incident of domestic violence?
    • If yes, was the incident reported to law enforcement, and were you satisfied with the outcome?
  2. Perceptions and Beliefs:
    • What comes to mind when you hear the term 'domestic violence' or 'domestic assault'?
    • Do you believe that domestic violence is a private matter or a public concern? Please explain.
  3. Legal Perspective:
    • Do you believe that people accused of domestic violence should be considered innocent until proven guilty beyond a reasonable doubt?
    • In your opinion, are there ever situations where domestic violence is justified or excusable?

Attitudes Towards Defendants and Victims

  1. General Sentiments:
    • How do you generally view individuals who have been accused of a crime?
    • Do you feel that you can listen to testimony about alleged domestic violence and assault without forming a judgment until all evidence is presented?
  2. Child Involvement:
    • The alleged victims in this case include a child. Does this information affect your ability to remain impartial?
    • In cases where a child is involved as a victim, do you believe your emotions could interfere with your ability to weigh the evidence objectively?
  3. Defendant-Victim Relationship:
    • Do you believe that a spouse or a child is more or less likely to be truthful about accusations of domestic violence against a family member?
    • How do you feel about cases where family members are involved in legal disputes with each other?

Ability to Serve

  1. Time and Attention:
    • This trial may last several weeks. Do you have any personal or professional commitments that would prevent you from serving for the entire trial?
    • Are you willing and able to give your full attention to the evidence presented during this time?
  2. Decision Making:
    • Are you comfortable with the concept of deliberating in a group and coming to a unanimous decision?
    • Can you think of any reason why you would not be able to deliver a verdict based solely on the evidence presented and the judge's instructions on the law?

I understand that there’s a lot of “horse sense”[iii] involved in the actual strikes, but new or inexperienced attorneys may not yet have fully developed or honed this sense, and their clients also deserve a fair and impartial jury.  AI tools can be very helpful to not only discern what leads to bias but also provide potential questions to help draw it out.

 

[i] Mo. Rev. Stat. § 558.011.1(5) (Cum. Supp. 2023).

[ii]Voir dire examination serves the dual purposes of enabling the court to select an impartial jury and assisting counsel in exercising peremptory challenges.” Mu'Min v. Virginia, 500 U.S. 415, 431 (1991). And the importance of ferreting out bias pretrial lies not only in the right to a jury trial itself but also in the “no-impeachment rule,” which generally precludes jurors from later impeaching their own verdict through either affidavit or live testimony. Pena-Rodriguez v. Colorado, 580 U.S. 206, 209 (2017); see also Fed. R. Evid. 606 (Juror’s Competency as a Witness).

[iii] “Horse sense” is a term apparently coined by Karl Llewellyn in The Common Law Tradition: Deciding Appeals (1960), and it means “the balanced shrewdness of the expert in the art.”  Charles L. Barzun, Justice Souter's Common Law, 104 Va. L. Rev. 655, 726 n.238 (2018).

March 12, 2024 in Web/Tech | Permalink | Comments (0)

Sunday, March 10, 2024

Oral Argument and Proper Preparation

Briefing, rather than oral argument, makes the difference, the common wisdom holds. While an excellent oral argument may not win a case, the assumption is that an exceedingly poor one might lose a case, unsettling what the judges had thought established by the briefs and caselaw. When the briefs establish a powerful case for one side or the other, a prepared court will use oral argument to explore the limits to that argument or the consequences of accepting the principle put forth. Yet, in a rare case, the briefing from both sides may be too good and the relevant precedents may pull equally in opposite directions. In those cases, the decision may rest on the presentation of the argument and the advocates’ responses to questions.

I emphasize “may” in that last sentence because a court may balk at picking between competing lines of precedent, choosing instead a theory that neither party has raised. A classic example of that is Mapp v. Ohio,[1] the  1961 ruling that applied the exclusionary rule for illegally seized evidence to the States.  The case entered the Supreme Court as a First Amendment issue. Police had mistakenly entered Dollree Mapp‘s apartment without a warrant, while searching for a person wanted in connection with a bombing. They apparently had the wrong apartment, mistakenly entering Mapp’s second-floor apartment, when the apartment they sought was on the first floor. When police came up empty on evidence related to the bombing, they continued the search while hoping to find something that would support a criminal charge. Finally, they found a trunk that contained a French sex book and nude sketches. Mapp was charged with possession of obscene materials. Although the case was briefed and argued as a First Amendment case, it left the Court as a landmark Fourth Amendment decision.

Advocates cannot and should not hope that a court will do the work for them. They must provide the judges with the tools that will bring about a favorable ruling. It means being prepared regardless of the direction the case takes. In the short handbook for counsel arguing cases in the Supreme Court that is provided to counsel, there is a telling example of how an advocate should even know his client’s business beyond what the case may involve. The case involved an issue of commercial speech. While arguing that his client had a First Amendment right to indicate the alcohol content of its beer on the label despite a prohibition in government regulations, the late Bruce Ennis was asked by a justice about the difference between beer and ale. Without missing a beat, despite the irrelevant nature of the question, Ennis provided a simple and satisfying answer.[2] Although the answer had nothing to do with the merits or the result, Ennis prevailed[3] – and made a very good impression on the Court for that answer to be included in its guide to advocates.

The need for preparation hit home for me again this past week, when I argued a case involving the constitutionality of a state statute in a state trial court. I had a principal argument in which I had great confidence but was prepared with several different back-up arguments that would achieve the same result if the court did not agree with the approach I opened with. My opponent had moved to dismiss the case, arguing that the plaintiffs were relying on a new, but unconstitutional change to the statute of limitations. The judge was well-prepared and had clearly read the briefs and cases thoroughly. She asked good questions of both of us. While opposing counsel presented his rebuttal, she asked him whether he had an alternative argument if she did not find his primary argument convincing. He seemed surprised that he needed one. It became clear that he had put all his eggs in one basket. After a two-hour morning argument, the judge returned that afternoon to the bench (having warned us she would) and ruled in my favor on my primary argument. Perhaps no backup argument would have derailed that train, but it seems as though at least one should have been advanced. Obviously, the briefs had made the difference, but oral argument could have provided more food for thought and perhaps some doubt about the proper result.

N.B.: a trial judge has an advantage in providing a quick, dispositive ruling that can be announced from the bench, as I experienced in the case described above. Even when there is an appellate panel, the court’s view may be obvious and reflected in a rapidly issued decision. Last year, the Seventh Circuit treated me to one very quick and favorable decision within weeks of the argument, where the court had made its unanimous view very clear. On the other hand, appellate courts can inexplicably drag their feet in deciding cases. This past Friday marked the two-year anniversary of an oral argument in a state intermediate appellate court, where I am still awaiting a decision.

 

[1] 367 U.S. 643 (1961).

[2] Supreme Court of the United States, Guide for Counsel in Cases to be Argued before the Supreme Court of the United States 6-7 (Oct. Term 2023), available at https://www.supremecourt.gov/casehand/Guide%20for%20Counsel%202023.pdf.

[3] Rubin v. Coors Brewing Co., 514 U.S. 476 (1995).

March 10, 2024 in Appellate Advocacy, Appellate Practice, Federal Appeals Courts, Oral Argument, State Appeals Courts, United States Supreme Court | Permalink | Comments (0)

Saturday, March 9, 2024

Using Verbs to Help Avoid Bias under ABA Model Rule 8.4(g)

As many know, I push students to avoid passive voice as a way to increase clarity.  We can also use careful verb choice to help remove bias.  Under ABA Model Rule 8.4(g) (2016), “It is professional misconduct for a lawyer to” engage in biased conduct, including “discrimination on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status in conduct related to the practice of law.”  Comment 3 explains “[s]uch discrimination includes harmful verbal or physical conduct that manifests bias or prejudice towards others.”  See https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_8_4_misconduct/?login

In my classes, we discuss recognizing express and implicit bias, and then I suggest some concrete ways to help avoid bias in our legal writing.  One concrete way to eliminate bias is to choose verbs carefully. 

We know from social science that our verbs matter.  For example, in 1974 Loftus and Palmer published their famous study on eyewitness suggestion via verbs.  See https://www.simplypsychology.org/loftus-palmer.html.  Loftus and Palmer divided 45 students into 5 groups, asked them all to watch a video of a car crash, and then asked each group a slightly different question about the speed of the cars.  Loftus and Palmer manipulated the verb used in the question.  They asked the groups:  “How fast were they cars going when they smashed/collided/bumped/hi /contacted?”  Id.  Participants who heard “smashed” reported an average speed of 40.5 mph, while participants who heard “contacted” reported an average speed of 31.8 mph.  Id.  In other words, the eyewitnesses to the video crash responded to the verbs used by others to describe the crash.

When we hide the actor connected to our verbs, through passive voice, we can manipulate meaning even more.  See Robert C. Farrell, Why Grammar Matters: Conjugating Verbs in Modern Legal Opinions, 40 Loy. U. Chi. L.J. 1, 13-14 (2008).  For example, saying an “enslaver often withheld foods from the enslaved people on his plantation” has a very different meaning than “sometimes, enslaved people were not given food.”  When we use the passive voice about enslavers in my example, we are presenting a biased view of reality by not naming the actor who withheld food.  Thus, by removing the passive verb construction, we also decrease bias. 

Case law also shows how passive voice can create issues.  For example, in United States v. Zavalza-Rodriguez, 379 F.3d 1182, 1183 (10th Cir. 2004), the outcome turned on two competing provisions of the Federal Sentencing Guidelines.  The first provision used passive voice and allowed for a sentence enhancement “if a dangerous weapon” “was possessed.”  Id. at 1183-84.  The second clause allowed for a sentence reduction, under the active voice, if “the defendant” did not “possess a firearm or other dangerous weapon” in “connection with the offense.”  Id. The government argued because the defendant stipulated in plea agreement that a weapon “was possessed” under the first of these provisions, he could not assert he had not “possessed” a weapon under the second.  Id. at 1185. 

The Court of Appeals disagreed, noting, “[u]nder the first enhancing provision, the verb was ‘written in the passive voice, requiring a sentence enhancement “if a dangerous weapon (including a firearm) was possessed.”’  Id.  According to the court, “[t]his verb form did not identify who was doing the possessing and thus was broad enough to cover situations of ‘mere proximity’ to a weapon by a defendant, without a showing of ‘active possession.’”  However, “the verb form in the second, mitigating section, ‘did not possess . . . a firearm,’ is in ‘the active voice[,] requiring the defendant to do the possessing,’ or more accurately, requiring the defendant not to do the possessing.”  Id. at 1186-87.

Hopefully, these ideas will resonate with us as we do our best to avoid any express or implicit bias in our writing.  The more we choose verbs and verb construction carefully, the better chance we have of clearly conveying points for our clients in an unbiased way.

March 9, 2024 in Appellate Advocacy, Appellate Court Reform, Appellate Justice, Appellate Practice, Federal Appeals Courts, Legal Ethics, Legal Profession, Legal Writing, State Appeals Courts | Permalink | Comments (0)

Saturday, March 2, 2024

Lessons from the Fani Willis Disqualification Hearing in Fulton County, Georgia

Over the past few weeks, Judge Scott McAfee has presided over a hearing in which former President Donald Trump’s lawyers are seeking to disqualify Fulton County District Attorney Fani Willis and attorney Nathan Wade from prosecuting Trump and his co-defendants for alleged violations of the Racketeer Influenced Corrupt Organizations Act. The hearing provided several lessons for litigators concerning persuasive advocacy.

1.    During direct examination, get to the point quickly and do not focus on irrelevant details.

At times, the direct examinations by some of former President Trump’s lawyers focused on irrelevant details, making the examinations unnecessarily long and reducing their persuasive impact.

In fact, Judge McAfee expressed frustration—and understandably so —with such questioning, particularly on direct examination. For example, during her direct examination of Willis, Ashleigh Merchant, who is an excellent lawyer, often focused on tangential details that detracted attention from the dispositive issues, such as the monthly rent amount that Willis paid to her friend Robin Bryant-Yeartie, whether Willis’s father remained at the house where Willis, for safety reasons, had moved from, and whether Willis’s children had returned to (and presumably resided) at the house after she had left. 

None of these questions had anything to do with the dispositive issues in the case, namely: (1) when the relationship between Willis and Wade began; and (2) whether Willis benefitted financially from hiring Wade as a special prosecutor. This is why Judge McAfee, obviously frustrated, stated, “Ms. Merchant, can we get to the relationship and financial benefit?”

The lesson is simple. Get to the point quickly. Focus on the issues and realize that less is more. Otherwise, you risk losing the judge’s (or jury’s) attention and diminishing the persuasive value of your direct examination. 

2.    Ask concise, direct, and closed-ended questions and organize them to maximize persuasive impact.

On direct and cross-examination, attorneys should ask concise, direct, and, in appropriate instances, closed-ended questions that are straightforward and that produce the testimony you seek to elicit. During the hearing, some of Ashleigh Merchant’s and the other attorneys’ questions were compound, open-ended, and confusing. This allowed Willis both to evade answering certain questions and, alternatively, to offer extensive explanations that had little, if anything, to do with the information that the attorneys sought.

Additionally, a fair amount of the questions that Trump’s lawyers asked were objectionable, causing needless delay and distracting from the relevant issues. And Trump’s lawyers’ responses to several objections, particularly concerning privilege, were unpersuasive. Indeed, the failure to draft a direct examination that is concise, to the point, and non-objectionable undermines the persuasive value of that examination and can, in some instances, negatively impact a lawyer’s credibility. When that happens, the likelihood of success diminishes substantially.

3.    Be prepared, and understand the effort needed to be truly prepared.

Preparation is everything, and in the legal profession, it often takes countless hours to be fully prepared for a hearing or trial. This includes, but is not limited to, researching effectively, knowing the facts and holdings of all relevant case law, having a thorough grasp of the facts, anticipating the adversary’s objections and counterarguments, preparing witnesses, and developing a cohesive and compelling theory of the case. When an attorney is inadequately prepared, it shows and affects the attorney’s credibility and the persuasive value of the attorney’s arguments.

At points during the hearing, some of the attorneys on both sides seemed unprepared. For example, they struggled to locate information in their files, often shuffling through papers or otherwise taking time to find the information needed to substantiate their points, and inquired into privileged information on direct examination. At other times, one or more attorneys appeared to not fully understand the holding of a particular case or, alternatively, slightly mischaracterize a prior court’s holding, which was evident to a degree during the state’s closing argument. 

As stated above, these mistakes can have a substantial, if not decisive, impact on a lawyer’s credibility and a client’s likelihood of succeeding on the merits.

4.    Slow down and articulate clearly.

During the hearing, particularly on direct and cross-examination, a few of the attorneys spoke too fast during direct and cross-examination and struggled to respond effectively to objections (and Judge McAfee’s questions), which affected the quality of their presentation. When attorneys speak too fast, they lose the opportunity to emphasize favorable points and risk confusing a judge or jury. As such, attorneys should strive to speak in a conversational tone, utilize strategic pauses, transition effectively between different topics (i.e., signposting), and where appropriate, use a witness’s answer to frame the next question (i.e., looping). When attorneys speak too quickly, they dilute the impact that favorable testimony will have on a judge or jury. 

This goes to the broader point that much of persuasive advocacy is reflected in the intangible and non-verbal qualities that an attorney brings into the courtroom. It is not sufficient, for example, to draft an outstanding oral argument if that argument is not delivered persuasively. In short, it is not just what you say; it is how you say it.

A textbook example of how to conduct a powerful cross-examination (or direct examination of a hostile witness) was attorney Steve Sadow’s examination of Terrance Bradley, Wade’s former law partner who had represented Wade in a divorce proceeding. Sadow got to the point quickly, asked clear and impossible-to-evade questions, and spoke with confidence and conviction. In so doing, Sadow severely, if not irreparably, damaged Bradley’s credibility.

5.    Maintain your credibility.

At all times, attorneys and witnesses must maintain their credibility. If a judge or jury doubts your credibility, they will disregard your substantive arguments and likely rule in the opponent’s favor.

During her examination by Merchant, Willis sometimes reacted with anger, emotion, and condescension in response to specific questions and sometimes offered superfluous explanations that had no relationship whatsoever to the question being asked. Such a demeanor risks alienating the judge (or jury) and losing whatever sympathy that you could have engendered through your testimony.

Most importantly, attorneys and witnesses must always be honest with the court. During the hearing, Trump’s attorneys called Bradley to the stand. Several weeks before the hearing, Bradley, for reasons that only he can know, had been texting Merchant about when the relationship between Willis and Wade began (Willis and Wade claimed that it began in 2022, after Willis hired Wade as a special prosecutor). In these text messages, Bradley responded “Absolutely” when Merchant asked him if the relationship began before 2022 and even volunteered specific details indicating that the relationship began in 2019 after Willis and Wade met at a continuing legal education seminar. When Bradley was called to the stand, however, he conveniently forgot—or did not recall—much of the information that he had conveyed to Merchant. When pressed, Bradley claimed that he was merely “speculating” about the beginning of the relationship (despite previously providing specific details to Merchant) and that he had no basis whatsoever to support this “speculation.” It should go without saying that Bradley had absolutely no credibility and, as such, severely undermined Willis’s and Wade’s claims regarding when their relationship began.

Maintaining credibility requires, among other things, that you keep your composure in the courtroom, control your emotions, refrain from making meritless objections, and tell the truth. 

6.    Do not make too many objections and avoid meritless objections.

Objections are a vital part of any hearing or trial, as attorneys must ensure that questions on direct and cross-examination comport with the rules of evidence. But sometimes, attorneys can make too many objections and, in so doing, damage their credibility.

This was evident during Trump’s lawyers' examinations of Terrance Bradley. After what seemed like every question, the attorneys for the state objected on various grounds, such as that the question was asked and answered, not relevant, and privileged. It was clear, however, that the questions Merchant and the other attorneys, such as Sadow, posed to Bradley were within the purview of Judge McAfee’s order allowing Trump’s attorneys to question Bradley about when Willis’s and Wade’s relationship began, despite prior claims of attorney-client privilege. Notwithstanding, the state’s attorneys continued to make questionable objections despite being repeatedly overruled, and Judge McAfee appeared quite frustrated.

The problem with this should be obvious: too many objections, particularly when they lack serious merit, undermine your credibility. It also suggests that you have something to hide, namely, that the damaging information the adversary seeks is, in fact, true. This is not to say, of course, that attorneys should not object frequently when the adversary consistently asks objectionable questions. It is to say that attorneys should not object when the basis for that objection is meritless and the likelihood of a judge sustaining it is minimal.

***

The above discussion is not meant to unduly criticize the attorneys or the parties in this case. They are exceptionally talented lawyers and, at many points during the hearing, they advocated admirably and persuasively on behalf of their clients. Furthermore, Judge McAfee showed that he is an outstanding judge who has impeccable knowledge of the law and rules of evidence and who is balanced, reasonable, and fair. Judge McAfee is certainly a jurist who represents the best of the legal profession.

Regardless of whether Judge McAfee disqualifies Willis, these hearings demonstrate the importance of exercising good judgment, being honest with the court and the public and, when prosecuting a former president, adhering to the highest ethical standards.

March 2, 2024 in Appellate Advocacy, Appellate Practice, Current Affairs, Law School, Legal Ethics, Legal Profession, Oral Argument | Permalink | Comments (0)