Appellate Advocacy Blog

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

Tuesday, April 30, 2024

Lessons in Resilience from Moot Court

Dumier high tribunal of judges

Last year marked my 25th year of coaching moot court. This year was the first year for our program to win ABA NAAC. I think the two are related, and wanted to share some thoughts on what I've learned over the years.

First, moot court, like many skill exercises, prepares students for work in many ways. They learn principles of rhetoric that are too frequently untaught. They learn the importance of standards of review, limiting principles, and the potential impact of new law to judges. And, of course, they learn to organize and simplify their thoughts on both print and at the podium.

But moot court teaches much more than that. It teaches students time-management skills. They learn to collaborate with others. They learn accountability. And they learn to lose.

That last lesson is, I think, key. Even before COVID, psychologists were noting a serious decline in resilience among incoming college students. Many students had become afraid to take risks, because failure was seen as catastrophic. As a result, they had begun to avoid public speaking or competition, and to instead demand easier grading, do-overs, and other safety measures that ensured they would not make lasting mistakes. Or learn from them.

Then COVID hit. Whatever problems were brewing before that were magnified by the isolation and trauma many young people felt.

Studies in resilience show that it has several predictors. High self-esteem and strong social attachments help. And exposure to stressors, in moderation, can build up a sense of resilience. Some have taken to calling this latter form of resilience "grit."

Moot court teaches grit. It teaches students (the vast majority of them, at least) that they will not always win. That sometimes, this will seem subjective and unfair. And that they need to learn from those failures, grow, and try again. It teaches them that failure is fuel.

Our program's success this year was carried by a lot of that fuel. Nine years ago we made it to ABA NAAC nationals and lost. One of those competitors was so fueled by that loss that she became my co-coach, just to help us get back and try again. Three years ago we made it to ABA NAAC finals. We lost again. Those students have volunteered to guest judge every year since. And this year, my teams lost in finals at our state competition, and lost at NY Bar Nationals. Then a dry cleaner lost one student's suits, and an earthquake hit during the competition itself.

None of that mattered. By then, these students had resilience to spare. They had heard the stories, they had experienced the losses, and they wanted nothing more than to keep going, and daring for greater things. And with that resilience, built over a decade of pain in this competition, we won.

Teddy Roosevelt is often quoted for saying:

“It is not the critic who counts; not the man who points out how the strong man stumbles, or where the doer of deeds could have done them better. The credit belongs to the man who is actually in the arena, whose face is marred by dust and sweat and blood; who strives valiantly; who errs, who comes short again and again... who at the best knows in the end the triumph of high achievement, and who at the worst, if he fails, at least fails while daring greatly.”

We need to teach our students to dare greatly. Moot court helps them learn to do just that.

April 30, 2024 in Appellate Advocacy, Law School, Moot Court, Oral Argument, Rhetoric | Permalink | Comments (1)

Saturday, April 27, 2024

Lessons in Appellate Advocacy from the Supreme Court's Oral Argument in Trump v. United States

The recent oral argument before the United States Supreme Court in Trump v. United States, which concerns presidential immunity, provides several lessons about how to argue a case effectively and persuasively. Although the attorneys for the petitioner and respondent used their persuasive advocacy skills to varying degrees of effectiveness, both did so very competently and demonstrated why they are elite advocates. Below are a few lessons in advocacy that were on display at the oral argument.

1.    Have a strong introduction.

Make a great first impression with a strong introduction.  Begin with a powerful opening theme. Tell the court precisely what remedy you seek. And explain why, in a structured and organized way, the Court should rule in your favor. For example, use the Rule of Three, namely, provide the Court with three reasons that support your argument and the remedy sought.

In Trump, the lawyers for the petitioner and the respondent had effective and persuasive introductions. They opened with a strong theme. They got to the point quickly. They explained in detail and with specificity why the Court should rule in their favor. Doing so enabled both lawyers to, among other things, start strong, gain credibility with the Court, and frame the issues in a light most favorable to their side.

2.    Answer the Court’s questions directly and honestly.

Regardless of how persuasive your introduction is, the justices will express concerns about various legal, factual, or policy issues that impact the strength of your case. Thus, when the justices ask questions, particularly those that express skepticism of your argument, view it as an opportunity to address the justices’ concerns and present persuasively the merits of your position. In so doing, make sure to always answer the questions directly and honestly, as any attempt to evade the questions will harm your credibility. Additionally, if necessary, acknowledge weaknesses in your case (e.g., unfavorable facts or law), and explain why those weaknesses do not affect the outcome you seek. Also, be sure never to react defensively in response to a question; instead, act like you expected the question and use the question to enhance your argument’s persuasiveness.

During the oral argument in Trump, the lawyers for the petitioner and respondent were well-prepared, answered the Court’s questions effectively, and conceded unfavorable facts where appropriate. As a result, they maintained their credibility and enhanced the persuasive value of their arguments.

3.    Speak conversationally and confidently.

During oral argument with an appellate court, particularly the U.S. Supreme Court, adopt a conversational tone and confident demeanor. Recognize that the Court is trying its best to reach a fair result that is consistent with the law and the facts. The law and facts, however, often do not dictate a particular outcome, and sometimes judges are left with little more than a desire to reach what they believe will be the best result. Indeed, judges are human, and when they return home after a long day, and their partner asks how their day was, the last thing judges want to say is “Well, I decided several cases that led to horrible outcomes. Other than that, it was a wonderful day.”

As such, your role, while advocating zealously for your client, should be to have a conversation with the Court in which you acknowledge the Court’s concerns and the policy implications of the outcome you seek, and convince a majority of the justices that the result you seek is fair and equitable. Put differently, while you must advocate zealously for your client, you should also display some degree of objectivity that shows an awareness of, among other things, opposing points of view and weaknesses in your case.

During oral argument, both advocates spoke conversationally and confidently and never appeared uncertain, surprised, or equivocal. Projecting confidence is critical to maximizing the persuasiveness of your argument, and speaking conversationally ensures that you can communicate your argument effectively.

4.    Be mindful of your pacing, tone, and non-verbal communication.

It is not just what you say. It is how you say it. Thus, when making an argument, be sure not to speak too quickly. Do not use over-the-top language or attack your adversary. Use strategic pauses to thoughtfully respond to the Court’s questions and transition effectively to different arguments. Never show frustration, surprise, or combativeness in response to a question. Instead, show that you are a composed and thoughtful advocate who listens well, and forms reasoned responses to difficult questions.

Also, be mindful of your non-verbal communication, including your appearance, body language, facial expressions, posture, eye contact, and hand gestures, as non-verbal communication can enhance or detract from the persuasiveness of your argument.

During the oral argument, both advocates avoided speaking too quickly and rushing through their points. They never displayed a combative and adversarial tone. They spoke clearly and articulately, and in a manner that made their arguments straightforward, organized, and easy to understand.

5.    Adjust your argument strategy based on the Court’s questions.

When you begin an oral argument, you know what points you want to emphasize. But the justices may want to discuss other things, and a good advocate recognizes this and adjusts accordingly.

Consider the following example:

Advocate: Your Honor, the warrantless search of the suspect’s house in this case did not violate the Fourth Amendment because the victim’s body was visible to the officer and therefore the search falls within the plain view exception to the warrant requirement.

Justice: But counsel, the officer was unlawfully on private property when she saw the victim’s body, rendering the plain view exception inapplicable. However, it seems that the exigency exception applies because the victim was still breathing, although gravely injured when the officer encountered the victim and entered the home.

Advocate: Your Honor, the plain view exception applies because the officer was on public, not private, property, and as a result, it applies squarely to this case.

Justice: Well let’s assume that I conclude that it was private property. Doesn’t the exigency exception apply?

Advocate: Your Honor, this was public property. The plain view exception is clearly applicable.

***

The advocate’s performance in this colloquy was simply awful.

The justice is unquestionably signaling to the advocate that he or she believed that the exigency, not the plain view, exception to the Fourth Amendment applied to justify the warrantless search. But the advocate, for some reason, did not perceive or simply ignored this and adhered rigidly to his or her argument. That can be a fatal mistake. As stated above, although you may want to emphasize specific points, the justices may not care about those points and instead want to discuss other issues that, in their view, may be dispositive. When that happens, adjust your strategy in the moment and respond to the justices’ concerns. Do not be afraid to abandon your oral argument strategy if, as the argument unfolds, it becomes clear that the case will be decided on facts, law, or policy considerations that you did not anticipate.

During the oral argument, nothing like this occurred because the lawyers for the petitioner and the respondent were far too skilled, intelligent, and experienced to make this mistake.

6.    Be aware of the dynamics in the room and realize that there is only so much you can do.

Judges often have opinions on how to decide a case after reading the parties’ briefs and before the oral argument. Although oral argument can, in some instances, persuade the justices to reconsider their views, oral argument sometimes consists of the justices trying to convince each other to adopt their respective positions, without much regard for what you have to say.

Put simply, sometimes the outcome is preordained. For example, in Trump v. Anderson, it was obvious early in the oral argument that the Court would overturn the Colorado Supreme Court’s decision holding that former President Trump was not eligible to be on Colorado’s primary ballot. If you are faced with this situation, realize that all you can do is make the best possible argument, knowing that losing the case is not a reflection of the quality of your advocacy but rather a reflection of the justices’ predetermined views. In Trump v. Anderson, for example, Jason Murray, the attorney representing the respondents, did an excellent job of making a credible argument despite the obvious fact that the Court would not rule in his favor.

Also, realize that you are not a magician or a miracle worker. Judges can have strongly held views and the results that they reach sometimes have little, if anything, to do with what you said or did not say during an oral argument. If you are arguing that Roe v. Wade was correctly decided and should be reaffirmed, nothing you say is going to convince Justices Thomas or Alito to adopt your position. Likewise, you are not going to convince Justice Sotomayor that affirmative action programs are unconstitutional. You are also not going to convince Justice Alito that the substantive due process doctrine should remain vibrant in the Court’s jurisprudence. Knowing this, focus on the justices that are receptive to your argument, particularly the swing justices, and tailor your argument to their specific concerns. And, if they ask ‘softball’ questions, be sure to seize that opportunity to make your case persuasively because they are using you to convince the swing justices.

Surely, during oral argument, the lawyers for the petitioner and the respondent knew which justices were receptive to their arguments, which were hostile, and which were undecided. And they addressed swing justices’ questions effectively and persuasively.

7.    Be reasonable.

If you want to retain your credibility, make sure that your argument – and the remedy you seek – is reasonable. Advocating for an extreme or unprecedented result that departs significantly from the Court’s jurisprudence, or that leads to a terrible policy outcome, will get you nowhere. For example, during the oral argument in Trump, Justice Sotomayor asked counsel for Trump whether his argument for absolute presidential immunity would allow a president to assassinate a political rival. Trump’s counsel responded by stating that it would depend on the hypothetical and could constitute an “official act,” thus triggering absolute immunity. Most, if not all, judges would reject this argument because it is simply ridiculous to contend that a president could assassinate political rivals with impunity.

Thus, be reasonable when presenting your arguments and requesting specific remedies. Every argument has weaknesses that those with different perspectives will expose. As such, in most cases, avoid absolute or categorical positions that eschew nuance and that prevent the Court from reaching a compromise. Doing so will enhance your credibility and show that you recognize the complexities of the legal issue before the Court.

During the oral argument, the attorney for Trump, although very skilled, arguably advocated for an unreasonable outcome, namely, that the president is always immune from prosecution for official acts done while the president is in office. The problem with this argument, as Justices Sotomayor, Jackson, and Kagan emphasized was that it would allow a president to engage in a wide array of criminal conduct, including the assassination of a political rival, with impunity. That result is simply not reasonable and consistent with the principle that no person is above the law. A better strategy may have been to adopt a more nuanced argument that recognized when, and under what circumstances, presidential immunity should apply, and to give the Court a workable test to distinguish between official and private acts. Adopting an unreasonable position detracted from the persuasiveness of Trump’s argument, and the Court signaled that it would reject this extreme, all-or-nothing approach.

8.    Realize that nothing you do is as important as you think.

Whether you win or lose, the world will keep turning and the sun will rise tomorrow. Sure, there are incredibly impactful cases, such as Brown v. Board of Education, Bush v. Gore, and Dobbs v. Jackson Women’s Health, which significantly affect the rights and liberties of citizens. Your role in influencing that outcome, however, is often far more insubstantial than what you believe, and inversely correlated to the absurd amount of hours you spent litigating the case. Think about it: do you believe that the oral arguments (or briefing, for that matter) in Brown, Bush, or Dobbs caused any of the justices to change their minds? Why do you think that, in some cases, anyone familiar with the Court can predict how the justices will rule before oral argument even occurs? You should know the answer.

Of course, you should still work extremely hard and hold yourself to the highest standards when arguing before a court. Persuasive advocacy skills do matter, particularly in close cases. However, your ability to affect the outcome of a case or the evolution of a court’s jurisprudence is, in some instances, quite minimal, and your inability to reach the outcome you seek is often unrelated to your performance or preparation. So do not put so much pressure on yourself. Have humility and focus on what you can control – and ignore what you cannot. Doing so will help you to cope with the unpredictable and unexpected outcomes that you will experience in the litigation and appellate process. And remember that no matter what happens, life will go on. You should too. And I suspect that the lawyers for the petitioner and the respondent will do precisely that.

***

Ultimately, what matters is not how many cases you win or how much money you make. What matters is the relationships that you form with other people, which are more important than anything that you will do in the law. So don’t sweat the small stuff, because, at the end of the day, it’s all small stuff.

April 27, 2024 in Appellate Advocacy, Appellate Justice, Appellate Practice, Appellate Procedure, Current Affairs, Law School, Legal Profession, Oral Argument, United States Supreme Court | Permalink | Comments (0)

Sunday, April 21, 2024

Absolute Presidential Immunity as an Appellate Strategy

On April 25, the Supreme Court will hear oral argument in Trump v. United States, the case in which former President Trump’s lawyers will argue, among other things, that a president has absolute immunity from the criminal charges that covers every action of a president. In this instance, they claiming that Trump was advancing electoral integrity when he urged supporters to go to the Capitol on January 6, 2021, which resulted in violence that temporarily halted the tallying electoral votes so that Joseph Biden could take office as the incoming president.

The assertion of absolute immunity may seem incredulous as a strategic choice. Rare is the instance that an appellate advocate should elect to argue the most extreme position possible, particularly when the argument has no textual anchor, no precedential support, and obvious counterarguments. To place a president entirely above the law suggests that the American Revolution, the Constitution, and tradition renders the chief executive a king who wield every possible prerogative and can do no wrong, when we have been taught that the opposite is true.

During argument before the D.C. Circuit, one judge asked whether the president could order Seal Team 6, the elite unit of Navy Seals, to assassinate a political rival. Counsel responded that only impeachment and not criminal prosecution was available under that hypothetical. Judges and the public, expectedly, reacted harshly to that extreme and indefensible position.

The question then, from an advocacy perspective, is why adopt it? Certainly, there are times when a court splits the difference between the positions taken by the two parties, so that the party advocating the most extreme position, as in a negotiation, pulls the center closer to its view. Other times, a position is presented, not to prevail, but to plant a seed that may sprout at a later time. A powerful separate judicial opinion that seeks to justify the position in some instances provides an opportunity to fight another day and to generate more debate and scholarship in favor of the position.

In the Trump case, I doubt that either of these potential outcomes are what his counsel has in mind. Neither is likely to accomplish their client’s current need: the end of the prosecution. Instead, the argument fuels their delay stratagem, which hopes that the trials take place at a time when President Trump can make a triumphant return to the White House and order the Justice Department to drop the prosecutions, or that a defeated candidate who is no longer a threat receives a pardon or other beneficence from the victor to avoid the spectacle of a former president in prison. Still, the argument might produce language, helpful to a defense, about what constitutes the outer boundaries of official action, where the doctrine of qualified immunity provides some guidance.

I expect that this last point is why Trump’s counsel has argued that every act as president is an official act. This argument seeks to goad the Supreme Court into laying down criteria for evaluating when a president is engaged in an official act. Any guidelines are likely to be vague, creating room for exploitation when and if a case goes to trial. While election integrity sounds like official action, the presidency has no specific responsibilities on that issue and exhorting private citizens to march on the Capitol to keep an eye on Congress hardly sounds like official action in support of fair elections.

Still, it is worth noting that the absolute-immunity argument is not counsel’s untethered invention. It borrows from and seeks application of language adopted by the Supreme Court in Nixon v. Fitzgerald,[1] which held that former President Nixon was absolutely immune from private civil actions for “official conduct” even at the outer perimeter of presidential authority. In the case, a former air force employee sued the former president on a claim that Nixon had fired him over his whistleblowing testimony before Congress. The Court reasoned that a failure to immunize presidential actions would encourage lawsuits aimed at presidential actions to a degree that would distract a president from the duties of office and chill presidential choices to an extent that would “render an official unduly cautious in the discharge of his official duties.”[2] Although the Court took pains to distinguish criminal cases because of their greater public interest and importance, that type of marker can erode over time.

Notably, the Court found no distraction issue in 1997 when it held that then-President Clinton had no immunity from a lawsuit involving sexual allegations that predated his presidency in Clinton v. Jones.[3] Key to the decision was that the allegations concerned private actions unrelated to the exercise of presidential power, thus not creating a concern that it would induce hesitancy about official duties.

While I doubt that the absolute-immunity gambit will work in its purest form, Supreme Court decisions often create new issues that become fodder for future cases or arguments in the same case. In United States v. Nixon,[4] the Court unanimously held that the president could not claim executive privilege to avoid the Watergate special prosecutor’s subpoena for presidential audio tapes. Still, in the course of rejecting the executive-privilege argument, the Court gave executive privilege a firmer foundation than it had ever commanded before. Expect the same for presidential immunity in the opinions that come out of Trump v. United States.

 

[1] 457 U.S. 731 (1982).

[2] Id. at 752 n.32.

[3] 520 U.S. 681 (1997).

[4] 418 U.S. 683 (1974).

April 21, 2024 in Appellate Advocacy, Appellate Justice, Appellate Practice, Current Affairs, Federal Appeals Courts, Oral Argument, United States Supreme Court | Permalink | Comments (1)

Saturday, April 20, 2024

An Argument Against Block Quotes

Recently, I saw a long listserv conversation about teaching first-year and LLM students to properly format block quotes. You might remember from your law review days that block quotes are long quotes of “fifty or more words.”  See The Bluebook, Rule 5.1.  Under The Bluebook and other citation manuals, we must set block quotes apart from other text, usually in a single-spaced block of text double-indented from the left and right, with no quotation marks.

Apparently, word processors have made it more difficult to do the left and right indenting needed for block quotes, and the original listserv poster asked for advice on helping students manage block quotes efficiently.  Having noticed the way our Typepad blogging system makes simple indenting more difficult now, and having banned my students from using most block or other long quotes for years, I was intrigued by this thread. 

Some professors on the thread suggested using quotation marks, even in a block quote, to deal with indenting difficulties.  Other professors offered great tips on various word processing program shortcuts and macros to help students properly indent their long quotes.  However, some contributors asked if teaching the format was worth the investment of class time.  The original poster later gave us all a summary of the info gained from the post, and explained that the majority of commenters suggested taking some class time to teach students a tech shortcut. 

To my surprise, I did not see any comments suggesting students simply break apart the quoted material into shorter, more digestible portions for the reader.  Thus, I acknowledge that I might be an outlier here.  Plus, a block quote is much easier to insert into a document–with mere cutting and pasting–than carefully crafted sentences with smaller pieces of the quoted material.  Nonetheless, I ask you to consider clarity and word limits (hopefully in that order), and ban most block quotes from your writing.  

First, think about how often you have actually read the material in a block quote.  Be honest.  If you are like many readers, you tend to skim tightly blocked text, like long brief point headings and block quotes.  See https://proofed.com/writing-tips/5-top-tips-on-how-to-write-for-skim-readers/. Even style manuals allowing the use of block quotes give many tips on how to make sure your reader still gets your point, despite the block quote.  For example, Bryan Garner’s The Redbook Rule 8.10 suggests that we always introduce a block quote with our own assertions, and let the block material simply support our claims.  Just removing the block entirely will increase your chance of the reader truly seeing your ideas.   

Next, think about the lack of clarity from fifty or more words from one source at one time.  Is the material you need from the quote really just on one point?  If so, you likely do not need fifty words or more from the source, added to your own introduction and analysis.  Consider placing the key parts of the quote, likely five to ten words, in your own sentence.  Additionally, if your rationale for using the long block is to cover several points at once, you might be asking too much of your reader.  Your reader will better understand two or three shorter sentences, each with one main point and a relevant short part of the former block quote. 

Finally, look for extra words in the block quote that you don’t need for your point.  Long block quotes are just that; these blocks are long pieces of text that often devour your word count without adding meaningful content.  My students spend a huge amount of time railing against word limits.  Nonetheless, we know word limits are part of any appellate practice.  Thus, I suggest removing long quotes and keeping only what you need.  Sure, you could keep the quote and add ellipses, but too many ellipses are distracting.  See also Jayne T. Woods, The Unnecessary Parenthetical (“Parenthetical”) (April 9, 2024) (explaining research on the way unneeded parentheticals mid-sentence distract readers).  Rather than obscuring your point in a closely-typed long quote with jarring ellipses, use your own words to present the ideas, working in key short quoted phrases.  

Of course, you might have an instance where the clearest and shortest way to convey your point truly is a block quote.  For this reason, I ban most, not all, block quotes.  I urge you to do the same. 

April 20, 2024 in Appellate Advocacy, Appellate Justice, Appellate Practice, Law School, Legal Profession, Legal Writing, Rhetoric | Permalink | Comments (0)

Monday, April 15, 2024

Book Review--A Promise Kept

As readers of this blog know, I love a good book.  If the book covers a Supreme Court case it is all the better.  And if it also concerns my maternal ancestors, well I am guaranteed to love it. A Promise Kept: The Muscogee (Creek) Nation and McGirt v. Oklahoma checked all three of those categories (and it had been sitting in my TBR pile for some time). Written by Robert J. Miller, a professor at the Sandra Day O’Connor College of Law at Arizona State University, and Robbie Ethridge, a professor of anthropology at the University of Mississippi, the book is divided into two key parts.

The first part of the book concisely, yet thoroughly, covers the history of the Muscogee Nation, from the Mississippi “chiefdoms” to the towns and provinces that coalesced into the Creek confederacy. Professor Ethridge covers the divisions within the Nation, especially between the Upper and Lower Creeks, and how those divisions impacted the Nation’s removal (both voluntary and involuntary) from our ancestral lands in the South. Finally, the Nation’s history in Oklahoma is addressed, with detailed discussion of the relevant treaties, the allotment period, and ultimately Oklahoma statehood.

I read this part of the book with rapt attention. I was on the plane to Oklahoma City. In a few weeks I would be visiting the Muscogee Nation and the sites where my grandma and her ancestors lived. As I read, I jotted down notes to check when I had Internet service—I wanted to put my own relatives into this story and look at where they predominantly lived in Indian Territory.

The history was extremely easy to read and accessible to non-anthropologists (myself included). I plan on recommending the book to all my relatives.

The second part of the book covers the legal stuff.  It recounts the history of the McGirt case and the relevant precedents that address disestablishment of reservations. It also hypothesizes about issues that Oklahoma will face post-McGirt.  As a lawyer, I enjoyed this part. I especially appreciated the history surrounding the disestablishment cases, and I found the discussion of taxes on the newly re-recognized reservations interesting, especially given my pending trip to Tulsa. I also appreciated how Professor Miller stressed the importance of cooperation between the Nation and Oklahoma.  Shortly after McGirt was decided, I heard Muscogee Principal Chief David Hill speak about the case. From what I can tell, the Tribes in Oklahoma are ready to cooperate, but do want Oklahoma to honor and respect the Supreme Court’s decision and the promises made to the Tribes in Oklahoma. Unfortunately, they haven’t seen the same response from some elected officials in Oklahoma.

I highly recommend this book to all citizens of the Nation and those fascinated with Indian law, history, and sovereignty.

April 15, 2024 in Books, Current Affairs, Tribal Law and Appeals, United States Supreme Court | Permalink | Comments (0)

Sunday, April 14, 2024

Tips for Dealing with a Difficult Adversary

During your legal career, whether in litigation, at trial, or on appeal, you will invariably encounter a “difficult” adversary. For this article, “difficult” does not refer to exceptionally talented adversaries. Rather, it refers to attorneys who, for lack of a better word, are jerks. They are the lawyers who, among other things, file numerous and borderline frivolous motions, call you on a Monday morning or Friday evening screaming at you, and file lengthy and incoherent briefs that leave you wondering how to respond. Dealing with these jerks is taxing and time-consuming. Below are a few suggestions to make your experience as painless as possible.

1.    Remain calm, professional, and patient.

When dealing with difficult adversaries, never let them affect you in a manner that causes you to react emotionally and get into a confrontation with them. Doing so will only exhaust you and will not in any way achieve your objectives in a particular litigation.

Instead, realize the type of person with whom you are dealing. In some (or many) instances, difficult adversaries are covert or malignant narcissists. Importantly, narcissists lack empathy, have a grandiose sense of self, display a sense of entitlement and a need for admiration, and consistently manipulate reality to make themselves the “victim” in every situation. When you react emotionally to these jerks and get involved in their drama, you are providing them with narcissistic supply, or the attention that they crave. Once you do this, the cycle of narcissistic abuse never ends because at the root of their problem is insecurity, which fuels their constant need for validation.

As such, never make the mistake of arguing with these people. In all interactions, remain calm, professional, and patient, and never let your emotions show. Once a narcissistic adversary realizes that they cannot provoke you and thus use you to feed their need for attention and validation, they will mediate their behavior. Furthermore, treating your adversaries with respect, even when they are difficult, reflects maturity and good judgment.

2.    Be kind and try to find common ground.

Good people exhibit kindness, cooperativeness, and humility even when it is difficult. Being combative with your adversary will get you nowhere and make it harder to accomplish your objectives. Thus, regardless of how repulsive your adversary is, you should always remain focused on achieving your objectives in a particular case, not on the adversary.

Remaining kind and respectful in the face of a difficult adversary is likely to disarm the adversary and make cooperation and compromise more likely. As they say, you catch more flies with honey than with vinegar.

3.    When necessary, draw boundaries and command respect.

In some situations, particularly when dealing with insufferable narcissists, kindness and patience may not work because an adversary will continue incessantly with their abusive behavior, such as by filing frivolous motions or constantly calling you to scream and yell about some “injustice” that has made them a victim once again.

If, despite your best efforts, this behavior continues, you should draw a boundary and make it clear to your adversary that you will not tolerate such nonsense. That does not mean getting into a confrontation with your adversary because that will likely exacerbate the problem and their behavior. Rather, firmly make clear that their behavior is unacceptable and take measures to draw necessary boundaries, such as by refusing to take their calls and notifying the court of the adversary’s recalcitrant behavior. Put simply, sometimes you must look the bully in the eye and say enough is enough. Knowing when to accommodate and when to be assertive is critical to ensure that your adversary will respect your boundaries. And be sure to document every interaction with your adversary because they can – and will – distort reality (and even lie) to achieve their goals and paint you in a bad light.

4.    Change your strategy.

In some circumstances, an effective way to deal with an adversary is to change your strategy and take a more calculated approach. Indeed, difficult adversaries are often controlling people who will seek to control their interactions and conversations with you. Do not allow them to do that. For example, reframe a legal or factual issue that the adversary raises with you. Identify areas of common ground with your adversary, which may lead to increased collaboration. Ask the adversary to explain the basis for specific discovery requests, and to identify the factual and legal basis for their arguments. And if the adversary continues to be difficult, such as by filing motions and misrepresenting the facts, do not be afraid to hit back with motions or discovery requests in which you expose their duplicity. As stated above, sometimes you must look a bully in the eye and say enough is enough.

5.    Talk to your adversary on the phone (or in person) rather than via email.

Some individuals, particularly difficult ones, use email to send lengthy messages that contain baseless accusations and invective. Certainly, it is easier to hurl insults at people when you are typing on a keyboard in the privacy of your office. But it is not so easy to do so over the phone or in person. So if the adversary sends you an offensive email, do not respond, especially not immediately, when your emotions may affect your rationality. Instead, think carefully about how you want to respond, and then call your adversary. That will enable you to engage in a dialogue, ask questions, and respond in a mature and conciliatory manner, which can increase the likelihood of collaboration and a favorable outcome.

6.    Remember that it is not about you.

Difficult adversaries can affect you emotionally and psychologically, and cause immeasurable stress, because their strategy is to make you believe that you have perpetuated some wrong or injustice, and in some instances to personally attack you. Remember that difficult people frequently, if not always, need to see themselves as the victim.

Never let these ridiculous tactics affect you. A difficult adversary’s behavior has absolutely nothing to do with you. Rather, it reflects their need for control. It results from their insecurity and emotional immaturity. Do not fall for this ridiculous behavior because if you do, you will play right into their hands.

***

Sadly, most if not all lawyers will encounter jerks during their legal career. Knowing how to deal with these people will reduce the stress that they would otherwise cause you and keep you focused on achieving the best result for your client.

April 14, 2024 in Appellate Advocacy, Appellate Practice, Current Affairs, Law School, Legal Ethics, Legal Profession | Permalink | Comments (0)

Tuesday, April 9, 2024

The Unnecessary Parenthetical (“Parenthetical”)

Lawyers love precedent.  And we love it so much that we often fail to stop and consider why we do what we do.  Instead, we blindly follow what we’ve seen before, even when that precedent is nonsensical.  And that is the case with the unnecessary parenthetical.

The unnecessary parenthetical rears its ugly head in all kinds of legal writing, from legal memoranda to appellate briefs and even court opinions.  It looks something like this:

Plaintiff Octavius Doolittle (“Doolittle”) sued his employer Sparks Industries (“Sparks”) for breach of contract.  The trial court (“trial court”) dismissed the action for failure to state a claim.

Sometimes it takes a more egregious form including the word “hereinafter”:

Plaintiff Octavius Doolittle (hereinafter “Doolittle”) sued his employer Sparks Industries (hereinafter “Sparks”).  The trial court (hereinafter “trial court”) dismissed the action for failure to state a claim.

While parentheticals like these are traditionally found in contracts and estate-related documents like wills and trusts, where the drafter must leave absolutely nothing open to interpretation, advocates should pause before inserting them into other forms of legal writing.[i]  Generally, the purpose of these kinds of parentheticals is to clarify or define for the reader how certain individuals or entities will be referred to throughout the rest of the document.  And that’s great if an advocate wishes to shorten a lengthy name to an acronym, such as shortening the Sunny Valley Public School District Number 407 to SVPSD, or to refer to a named individual by that person’s relationship with another, such as referring to Octavius Doolittle’s boss Patrice Longfellow as Boss.  But the parenthetical serves no purpose in the examples above if there is only one person involved in the case with the last name Doolittle or one party with the word Sparks in its name, and, presumably, there is only one trial court.  No reasonable reader is likely to be confused by a reference to the trial court or to Doolittle or Sparks after the initial identification of those parties, and adding the parenthetical simply takes up space and interrupts the flow of the writing.

When these kinds of parentheticals are useful, they should be kept as short as possible.  There’s no need to include either the word “hereinafter” or quotation marks.  Instead, an advocate should simply place the alternate reference within parentheses following the initial introduction of the party or item described:

While working for Sparks, Doolittle was the assistant to Patrice Longfellow (Boss).  Boss worked for Sparks from May 1998 through December 2009.

 

[i] Advocates may want to pause before using these kinds of parentheticals in any legal writing, including contracts and estate documents.  A recent study from MIT found that parentheticals inserted into the middle of sentences, which the researchers called “center-embedded structures,” are wildly prevalent in legal writing and make “text much more difficult to understand.”  Anne Trafton, Even Lawyers Don’t Like Legalese, MIT News (May 29, 2023), available at: https://news.mit.edu/2023/new-study-lawyers-legalese-0529. The study also revealed that these center-embedded structures are not as necessary as many believe, and contracts that were redrafted without them were perceived as equally enforceable to those that included them.  Id.

April 9, 2024 in Appellate Advocacy, Legal Writing | Permalink | Comments (0)

Tuesday, April 2, 2024

Attack the Reasoning, not the Judge

In her post Be Accurate in Your Case Citations, Professor Dysart mentioned two things that she emphasizes when she talks to attorneys and students about professionalism in appellate advocacy. First, the importance of accurately representing case law and the record. (Her post focused on this point.) Second, the importance of not attacking the lower court judge or opposing counsel. The latter point called to mind Sanches v. Carrollton Farmers Branch Independent School District.[1]

There, the appellant’s opening brief contained this paragraph:

The Magistrate's egregious errors in its failure to utilize or apply the law constitute extraordinary circumstances, justifying vacateur of the assignment to Magistrate. Specifically, the Magistrate applied improper legal standards in deciding the Title IX elements of loss of educational opportunities and deliberate indifference, ignoring precedent. Further, the Court failed to consider Sanches' Section 1983 claims and summarily dismissed them without analysis or review. Because a magistrate is not an Article III judge, his incompetence in applying general principals of law are extraordinary.

This paragraph was of much interest to at least one judge on the panel. Appellant’s counsel spent the first five minutes of his fifteen minutes of oral argument time responding to questions about the attack on the magistrate judge’s competence. You can listen to the argument here: Sanches Oral Argument.wma. That time would have been better spent discussing the substance of the appeal.

The court’s PUBLISHED[2] decision called out the attack on the magistrate judge:

Not content to raise this issue of law in a professional manner, Sanches and her attorneys launched an unjustified attack on Magistrate Judge Stickney. The main portion of the argument on this point, contained in Sanches's opening brief, reads verbatim as follows:

The Magistrate's egregious errors in its [sic] failure to utilize or apply the law constitute extraordinary circumstances, justifying vacateur [sic] of the assignment to [sic] Magistrate. Specifically, the Magistrate applied improper legal standards in deciding the Title IX elements of loss of educational opportunities and deliberate indifference, ignoring precedent. Further, the Court failed to consider Sanches' Section 1983 claims and summarily dismissed them without analysis or review. Because a magistrate is not an Article III judge, his incompetence in applying general principals [sic] of law are [sic] extraordinary.

(Footnote omitted.)

These sentences are so poorly written that it is difficult to decipher what the attorneys mean, but any plausible reading is troubling, and the quoted passage is an unjustified and most unprofessional and disrespectful attack on the judicial process in general and the magistrate judge assignment here in particular. This may be a suggestion that Magistrate Judge Stickney is incompetent. It might be an assertion that all federal magistrate judges are incompetent. It could be an allegation that only Article III judges are competent. Or it may only mean that Magistrate Judge Stickney's decisions in this case are incompetent, a proposition that is absurd in light of the correctness of his impressive rulings. Under any of these possible readings, the attorneys' attack on Magistrate Judge Stickney's decisionmaking is reprehensible.[3]

But the court didn’t stop there, it also called out the errors in the appellant’s brief:

Usually we do not comment on technical and grammatical errors, because anyone can make such an occasional mistake, but here the miscues are so egregious and obvious that an average fourth grader would have avoided most of them. For example, the word “principals” should have been “principles.” The word “vacatur” is misspelled. The subject and verb are not in agreement in one of the sentences, which has a singular subject (“incompetence”) and a plural verb (“are”). Magistrate Judge Stickney is referred to as “it” instead of “he” and is called a “magistrate” instead of a “magistrate judge.” And finally, the sentence containing the word “incompetence” makes no sense as a matter of standard English prose, so it is not reasonably possible to understand the thought, if any, that is being conveyed. It is ironic that the term “incompetence” is used here, because the only thing that is incompetent is the passage itself.[4]

Yikes!

Attacking the lower court judge is not just poor advocacy that damages your reputation and your client’s case, it also may subject you to disciplinary action. The Model Rules of Professional Conduct say that “A lawyer shall not make a statement that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge, adjudicatory officer or public legal officer . . . .”[5] So, attack the reasoning, not the judge.

 

[1] 647 F.3d 156 (5th Cir. 2011).

[2] Professor Dysart’s post also noted that the decision she discussed was published. Be Accurate in Your Case Citations.

[3] Sanches, 647 F.3d at 172.

[4] Id. at n.13.

[5] ABA Model Rule of Professional Conduct 8.2(a).

April 2, 2024 in Appellate Advocacy, Appellate Practice, Federal Appeals Courts, Law School, Legal Ethics, Legal Profession, Legal Writing, Moot Court, Oral Argument, State Appeals Courts | Permalink | Comments (2)