Appellate Advocacy Blog

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

Tuesday, May 28, 2024

Neurodiversity and Legal Advocacy: Introduction


Brain bias


Neurodiversity is a relatively new term applied to the range of differences in the human brain regarding social interaction, learning, attention, mood, and other mental functions. Rather than seeing a learning difference (like dyslexia) as a disability, neurodiversity looks at that difference as a point on a continuum of human perception and function. That perspective allows us to see the diagnosis as a difference, not a deficit.

Educators are increasingly aware of certain diagnosed differences because of the accommodations offered to address them. But simply allowing for extra test time or reading software does not address the opportunities that these differences can bring to the table. See Jennifer Kindred Mitchell, Teaching to Neurodiverse Law Students, 29 NO. 2 Persp. Teaching Legal Res. & Writing 49 (2022).

I know. I was diagnosed with dyslexia at a young age. I continue to rely heavily on spelling correction and third-party editing to address my difficulties with spelling and grammar. But I have also come to realize, over the years, that I have attendant strengths that make me a better advocate. My long-term memory, attention to narrative, empathy, and spatial reasoning are different, and often stronger, than those without dyslexia.

Each student is, of course, different. Some present with clear diagnoses. Some have learned to live with, or mask, their neurodiversity without disclosure to their teachers. Awareness of the different presentations of neurodiversity helps educators identify difficulties and strengths and address them head on.

Over the next few weeks, I will address three categories of neurodiversity from a strengths-based approach so we can be better at identifying and helping students and young lawyers with those differences cultivate their strengths and cope with their difficulties. I will start with dyslexia, since that is my experience and an area of some personal study, then address ADHD and autism.

If you have experience with neurodiversity in advocacy, either as a teacher or learner, I would love to hear from you as I prepare those posts. This is a young area and I think we would be well-served by putting our heads together and learning how to better help those who see the world a bit differently.

(Photo attribute: Bill Sanderson, 1997. Credit: Wellcome Collection. CC BY 4.0)

May 28, 2024 in Appellate Advocacy, Appellate Practice, Law School, Legal Ethics, Legal Profession, Legal Writing, Moot Court | Permalink | Comments (1)

Sunday, May 26, 2024

Is the United States Supreme Court a Political Institution?

Public opinion of the United States Supreme Court has declined recently, with some commentators arguing that the Court is a political institution. Below is a brief analysis of why the Court is perceived as political, and how the Court can avoid this perception in the future.

A.    Is the Court a “political” institution?

When one labels the Court as a “political” institution, how is “political” being defined? For this article, “political” is defined as reaching decisions that coincide with a justice’s policy preferences. This does not mean, of course, that a decision coinciding with a justice’s policy views is inherently political, or that the justices are basing their decision on political considerations, as there may be legitimate textual or statutory bases to reach those decisions. Notwithstanding, public perception of whether the Court is acting in a political capacity is often influenced by whether the Court’s vote in particular cases split along ideological lines.

Given this definition, is the Court a political institution? Yes and no. 

To begin with, most of the Court’s cases do not involve divisive social issues. Rather, they involve issues such as choice of law provisions in maritime contracts, trademark issues, the bankruptcy code, the takings clause, and the Federal Arbitration Act. Such cases do not result in decisions that most people would consider politically motivated.  

Furthermore, the Court’s cases are often decided unanimously or by six, seven, or eight-member majorities. From 2008 to 2019, for example, the Court’s unanimous decisions ranged from thirty-six to sixty-six percent of its cases.[1] Conversely, the percentage of 5-4 decisions ranged from five to twenty-nine percent.[2] Rulings with six, seven, and eight-member majorities ranged from twenty to fifty-one percent.[3] Additionally, in 2021, the Court reached unanimous decisions in sixty-seven percent of its cases, and in 2022, the Court was unanimous in forty-eight percent of its cases.[4]

Therefore, in most cases, politics does not likely influence the Court’s decisions. As such, in most cases, are the justices basing their decisions on their political preferences? No.

***

However, this does not end the inquiry. In the relatively small number of cases that involve divisive social issues, whether the Court’s decisions were political depends on your perspective.  For example, many conservative legal scholars would consider Griswold v. Connecticut, Roe v. Wade, and Obergefell v. Hodges to be political decisions, because in their view they were based on an interpretation of the Fourteenth Amendment that had no basis in the Constitution’s text, and that resulted in outcomes consistent with the liberal majority’s policy views regarding contraception, abortion, and same-sex marriage. Likewise, many liberal legal scholars would consider Bush v. Gore, Dobbs v. Jackson Women’s Health, and Students For Fair Admissions v. Harvard to be political decisions because in each case, the Court’s majority was comprised of conservative justices.

The point is that, in a small number of cases, the justices’ opinions consistently reflect their political views, regardless of whether they are conservative or liberal. Thus, to the extent that the Court is perceived as a political institution, both conservative and liberal justices bear some blame. Consider the following:

  • Would Justice Elena Kagan, Justice Jackson, or Justice Sotomayor ever vote to restrict access to abortion?
  • Would Justice Thomas or Justice Alito ever vote to restrict when the death penalty can be imposed?
  • Would Justice Sotomayor and Justice Jackson ever vote to invalidate an affirmative action policy?
  • Would Justice Thomas or Justice Alito ever vote to restrict partisan gerrymandering?
  • Would Justice Kagan or Justice Sotomayor ever hold that the Constitution does not protect the right to same-sex marriage?

The answers to these questions should be obvious.

To make matters worse, when the political affiliations of the Court’s members change, the Court’s view of the Constitution – and fundamental rights – often changes. For example, for nearly fifty years, Roe v. Wade, where the Court held that the right to privacy encompasses a woman’s choice to terminate a pregnancy (in most instances), was considered settled law, particularly after the Court in Planned Parenthood of Southeastern Pennsylvania v. Casey reaffirmed Roe’s central holding. But after Justice Kavanaugh replaced Justice Kennedy, and Justice Barrett replaced Justice Ginsburg, the Court in Dobbs overturned Roe and suddenly discovered that the Constitution did not protect a right to abortion.

Why was Roe overturned? Because the Court now had more conservative than liberal members. One must wonder how the majority could not possibly realize that their decision would be perceived as purely political. The same goes for the justices who voted in Roe to find that the Constitution protects the right to terminate a pregnancy – a right found nowhere in the Constitution.

Cases such as Roe, Obergefell, and Dobbs show why the Court is perceived as a political institution and why its institutional legitimacy is affected negatively. Indeed, when the Court accepts for review cases involving issues such as abortion or the death penalty, most people know exactly how the justices will vote. They know that the justices will reach outcomes that so conveniently comport with their policy preferences. That is the reality, and even if it is not accurate, it is the perception. And perception is reality.

Additionally, conservative and liberal media commentators worsen the situation because they report on only the most controversial cases and, depending on the result that the Court reaches, promote the distorted perception that the Court is primarily a political institution. This is a recipe for undermining the Court’s legitimacy.

Ultimately, in Griswold, Roe, Obergefell, and Dobbs, were most justices basing their decisions on their political preferences? Yes.

B.    Solutions to increase public perception of the Court’s legitimacy.

Regardless of the Court’s many unanimous and super-majority decisions, its decisions in cases such as Roe and Dobbs undermined the Court’s legitimacy. Is there a solution that could help to restore that legitimacy? Below are two suggestions.

    1.    Deny certiorari unless the challenged law likely violates the Constitution’s text.

The Court should not grant certiorari unless a challenged law likely violates the Constitution’s text – not its “penumbras” or whatever unenumerated “right” that the substantive due process might invent. For example, in Citizens United v. FEC, did the First Amendment’s text clearly support the invalidation of a statute that strived to reduce the influence of money on federal elections? In Clinton v. New York, did the Presentment Clause clearly support invalidating the Line-Item Veto Act, which sought to reduce wasteful government spending? In Kennedy v. Louisiana, did the Eighth Amendment clearly prohibit the imposition of the death penalty for individuals who raped children under the age of twelve? In Roe v. Wade, did the Fourteenth Amendment clearly prohibit states from prohibiting abortion?

The answer is no.

So why did the Court decide these issues for an entire nation, often by a 5-4 vote? Your answer is as good as mine. Unless you believe that the Court should be guided by “evolving standards of decency that mark the progress of a maturing society.”[5]

When the Constitution is ambiguous and subject to alternative interpretations, the Court should not intervene. It should allow the states to resolve these issues democratically or, in the case of federal legislation, defer to the coordinate branches. When nine unelected and life-tenured judges decide an issue for an entire nation, especially by a 5-4 margin where the majority’s decision so conveniently aligns with the justices’ political beliefs, you have a recipe for disaster.

If you believe that this suggestion is unwise, consider Chief Justice Roberts’ opinion in National Federation of Independent Investors v. Sebelius and what may have motivated his decision.

    2.    Require a six-vote super-majority to overturn a lower court decision.

When the Court decides cases by a 5-4 vote, and those votes reflect little more than partisan division, that decision is likely to undermine the Court’s legitimacy. Put differently, should the law for an entire country depend on a one-vote majority at the Court, where those votes align with each justice’s policy preferences? No.

Instead, to overturn a lower court decision, the Court should be required to reach a six-vote super majority. Doing so would encourage compromise, consensus, and moderation, and lead to incremental, not drastic changes in the law. And it would prohibit a bare liberal or conservative majority from changing the law for an entire nation, particularly on divisive social issues. Indeed, had a six-vote supermajority been in effect when Dobbs was decided, abortion would still be legal until fifteen weeks of pregnancy. If a six-vote supermajority had been in effect when Citizens United was decided, money would likely not have the corruptive influence in politics that it does today.

Some might argue that this approach would prevent the Court from resolving circuit splits on matters of public importance. So what? There are many circuit splits where the Court denies certiorari, thus leaving them unresolved. We should not pretend that the Court’s responsibility is to resolve every circuit split or injustice that affects the country because the reality is quite the opposite. Furthermore, if there is a circuit split, such that the law is interpreted and applied differently in different states, why is that necessarily undesirable? This is already the norm, not the exception, and the incredibly small number of cases that the Court decides each term has only a marginal impact on that reality. And if you believe that the Court should defer to democratic choice at the state and federal level when the Constitution is ambiguous, a six-vote supermajority requirement would facilitate achieving that objective – as would an originalist approach to constitutional interpretation.

If the Court had less power, and intervened less often, the people, not nine unelected justices, would have “the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.”[6]

***

Attacks on the Court’s legitimacy reflect little more than disagreement with decisions that conservatives or liberals do not like. As Justice Kennedy stated, “[a]n activist court is a court that makes a decision you don't like.”[7] The conservative and liberal media – and politicians – do a terrible disservice when they attack the Court with inflammatory comments that influence the public’s perception of the Court’s legitimacy. Having said that, if the Court wants to shed the perception that it is a political institution, it should stop deciding cases that are so politically divisive. Along with a super-majority requirement, this will help to insulate the Court from attacks on its legitimacy, however unfair such attacks may be.

 

[1] PolitiFact | Despite popular misconception, Supreme Court 9-0 rulings are not that rare

[2] See id.

[3] See id.

[4] Michael D. Berry, The Numbers Reveal a United Supreme Court – And a Few Surprises (Aug. 2, 2023), available at: The Numbers Reveal a United Supreme Court, and a Few Surprises | The Federalist Society (fedsoc.org)

[5] Trop v. Dulles, 356 U.S. 86 (1958).

[6] Lawrence v. Texas, 539 U.S. 558 (2003).

[7] CBS News, Justice Kennedy: Senators Focus on Short-Term (May 14, 2010), available at: Justice Kennedy: Senators Focus on Short-Term - CBS News

May 26, 2024 in Appellate Advocacy, Appellate Justice, Appellate Practice, Current Affairs, Law School, Legal Ethics, Legal Profession, United States Supreme Court | Permalink | Comments (1)

Sunday, May 19, 2024

A Font by Any Other Name Does Not Read the Same

Last week, I argued a case in the Tenth Circuit, my first time in that court. Upon arrival in the courtroom, but before that day’s arguments began, the bailiff provided a quick tutorial about how the 15 minutes of oral argument works. A computer display screen to the left of the podium counted down time from 15:00 against a green background at the beginning of each argument. At three minutes remaining, the background screen would become yellow, alerting counsel to the opportunity to reserve some of the remaining time for rebuttal. The bailiff warned that the court likely would continue asking questions even after the request for rebuttal time. In one of the cases before mine, the questions continued one minute past the 15 minutes, but the court afforded the advocate an extra minute for rebuttal.

In every circuit I have appeared other than the Tenth, and I have argued cases in seven other circuits, an advocate asks for a certain amount of time for rebuttal in advance of the argument, either from an inquiry from the clerk’s office well in advance of the argument, or upon checking in that morning. The most frequent amount of time requested in a 15-minute argument is five minutes.

The differences between circuits on that question and others seem odd and haphazard. I was reminded of those differences when I came across a post that laid out different fonts used by different courts in their opinions. The First and Fourth Circuits issue opinions in Courier. The Second and Seventh Circuits utilize Palatino. The Fifth Circuit favors Century Schoolbook, as does the Supreme Court (although its orders are rendered in the very odd Lucida Sans Typewriter) and the Federal Circuit. The rest, the Third, Sixth, Eighth, Ninth, Tenth, and Eleventh rely on Times New Roman.

The circuits do not necessarily require counsel to follow suit in their briefs. Federal Rule of Appellate Procedure 32(a)(5) requires courts of appeal to accept briefs in any proportional typeface so long as the text’s typeface has serifs and is at least 14-point in size, but sans-serif type may be used in headings and captions. If a monospaced face is used, it may not contain more than 10 1/2 characters per inch.

Even so, the D.C. Circuit issued a notice in 2021 that encourages the use of typefaces that are easier to read, such as Century or Times New Roman, while discouraging the use of Garamond, which the court deemed less legible because it is smaller. The preference exists in the practice handbook, but not in the local rules, strongly suggesting that it is always a good idea to check those official handbooks as well as the court’s own rules, even though the court will still accept other typefaces.

The Seventh Circuit’s practitioner handbook discusses the readability of serif-type fonts and appears to suggest that Century Schoolbook, Baskerville, Bookman, Caslon, Garamond, Georgia, and Times, as well as variations on those names, are preferred serif-type fonts. The Eighth Circuit, under a tab entitled “Rules and Procedures,” has a section called “Research Aids” that links to the Seventh Circuit’s handbook, so it apparently endorses its sister circuit’s discussion.

And don’t get me started on the requirements for cover pages, where the Second Circuit is a major outlier.

The bottom line is that every circuit has its quirks that a practitioner appearing in them needs to understand. These circuit conflicts will not likely arrive at the Supreme Court to resolve.

May 19, 2024 in Appellate Advocacy, Federal Appeals Courts, Legal Writing, Oral Argument, United States Supreme Court | Permalink | Comments (1)

Tuesday, May 14, 2024

Priming for Persuasion

One of the most powerful tools in an advocate’s toolbox is the psychological concept of priming.  Priming “occurs when an individual’s exposure to a certain stimulus influences their response to a subsequent prompt, without any awareness of the connection.”[i]  In other words, “[p]riming plants a seed in the brain [that] . . . causes us to form an impression that we then use to interpret new information.”[ii]

For example, in one famous research study, participants were exposed to a list of words associated with either adventurousness or recklessness.[iii]  The participants were then provided with a story involving a protagonist whose behavior was ambiguous with respect to those traits.[iv]  When later asked to characterize the protagonist’s behavior, participants were more likely to characterize the behavior consistent with the traits reflected in the words they were exposed to before reading the story.[v]

The concept of priming involves the inner workings of long-term memory.[vi]  Our long-term memory creates units known as “schemas,” which allow us more efficient access to memories by activating them through associated sights, smells, and sounds.[vii] “Priming suggests that certain schemas are activated in unison, which leads to related or connected units of information being activated at the same time.”[viii]

There are many kinds of priming[ix] that are relevant in legal writing, and among them are the following:

  • Semantic priming—the association of words in a logical or linguistic way[x]
  • Repetition priming—the repeated pairing of stimulus and response[xi]
  • Perceptual priming—the perception of similarity between two things that may not, in fact, be similar[xii]

For semantic priming, think about rhetorical devices, such as parallelism, alliteration, anaphora, epistrophe, or metaphor to name a few.[xiii]  A famous example is Martin Luther King Jr.’s statement, “Injustice anywhere is a threat to justice everywhere.”

For repetition priming, there’s no better public example than Donald Trump’s approach to Robert Mueller’s investigation into potential ties between Trump’s 2016 campaign and Russia.  Over the course of more than two years, when tweeting about the investigation, Trump used the phrase “witch hunt” more than 160 times.[xiv]  A survey conducted around the same time revealed that, while roughly 60% of adults wanted the investigation, half had “‘just some’ or no confidence that a final report . . . would be ‘fair and even-handed.’”[xv]  Additionally, despite the majority support for investigation, 46% of respondents nevertheless believed it would go “too far,” and support for impeachment fell throughout the same time period.[xvi]

For perceptual priming, consider the recent cases of NetChoice v. Paxton and Moody v. NetChoice, wherein the Supreme Court considered the constitutionality of laws in both Texas and Florida designed to regulate how social media companies control content posted on their sites.[xvii]  The states argued that social media platforms are common carriers who may not arbitrarily discriminate against users’ speech,[xviii] while the social media companies argued that social media platforms are “traditional media” requiring “editorial discretion over the expression they disseminate.”[xix]  Though social media is truly neither of those things, the parties sought to have the Court perceive social media to be like the one more favorable to their respective positions.[xx]

Priming is persuasive because the connection is made subconsciously by the reader, and readers tend to trust their own conclusions above others.[xxi]  This is sometimes referred to as “‘the ownness bias’ or the tendency of ‘audience members to consider their own thoughts to be stronger than message arguments.’”[xxii]

Here’s where you can use it in your writing:

  • Issue framing. Consider the abortion context; the issue could be framed as either protecting individual reproductive autonomy or protecting the rights of unborn persons.  By framing the issue favorably to your position at the outset, you are priming your audience to view the case through your chosen lens.
  • Factual opening. Imagine a case involving student speech that led to some kind of disruption at school.  The competing values are a student’s First Amendment right to free speech and the school’s compelling interest in a safe and orderly learning environment.  If you represent the student, you want to open your facts section with a focus on the student and value of the speech the student made, thereby priming your audience to also value both the individual and the speech.  On the other hand, if you represent the school, you want to open with the facts underlying the disruption, priming your reader to see chaos and a justifiable need for school intervention.
  • Argument headings. State your argument headings assertively as the conclusions you want your audience to draw. For example, “Trial counsel’s decision to reject the alibi defense was a matter of reasonable trial strategy”; or “The state presented sufficient evidence of the defendant’s deliberation.” The headings prime your reader to view the analysis and legal authority as consistent with those conclusions.
  • Rule statements. When stating the applicable rules, begin with your position as the default outcome.  For example, when advocating in favor of summary judgment, establish granting the motion as the default position: “Summary judgment shall be granted when there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law.”  Or, when advocating against the entry of summary judgment, establish denial as the default position:  “Summary judgment should be denied unless the moving party establishes that there are no genuine issues of material fact and that the moving party is entitled to judgment as a matter of law.”  Stating the rule with your preferred outcome as the default primes your audience to see your opponent’s position as the exception and yours as the rule.
  • Quotation introductions. Before offering the reader quoted language from either a legal authority, a written document, or witness testimony, prime the reader by summarizing what you want them to understand from the language.  For example,

At the evidentiary hearing, trial counsel testified that she strategically chose not to call the alibi witness because his testimony was inconsistent with the chosen justification defense:  “From the beginning, [the defendant] told me he acted in self-defense, and I think the jury would have been confused if we put his brother on the stand to say he was at a party across town the whole time.”

This kind of priming helps focus the reader’s understanding of potentially ambiguous quoted language favorably to your position and align it with your legal authority.

This list is by no means exhaustive, and priming can be used in each of these areas on both large and small structural scales, from general organization down to sentence structure and word choice.  Priming is an exceptionally powerful persuasive tool.  Both using it and recognizing it can make you a more effective advocate.

 

[i] The Decision Lab, Why do some ideas prompt other ideas later on without our conscious awareness?, available at: https://thedecisionlab.com/biases/priming (last visited May 13, 2024).

[ii] Kathryn M. Stanchi, The Power of Priming in Legal Advocacy: Using the Science of First Impressions to Persuade the Reader, 89 Or. L. Rev. 305, 307 (2010).

[iii] Barbara O'Brien & Daphna Oyserman, It's Not Just What You Think, but Also How You Think About It: The Effect of Situationally Primed Mindsets on Legal Judgments and Decision Making, 92 Marq. L. Rev. 149, 152 (2008).

[iv] Id.

[v] Id.

[vi] The Decision Lab, supra, note i.

[vii] Id.

[viii] Id.

[ix] Id.

[x] Id.

[xi] Id.

[xii] Dave Cornell, 15 Priming Examples (in Psychology) (Jan. 3, 2024), available at: https://helpfulprofessor.com/priming-examples-psychology/ (last visited May 13, 2024).  This site also contains information about additional forms of priming, such as associative priming, cultural priming, affective priming, and more.

[xiii] For definitions of these terms and other common rhetorical devices, see https://www.merriam-webster.com/grammar/rhetorical-devices-list-examples (last visited May 13, 2024).

[xiv] Madison Pauly, Are Trump’s Attacks on Mueller Working? (Jan. 27, 2019), available at https://www.motherjones.com/politics/2019/01/are-trumps-attacks-on-mueller-working/ (last visited on May 13, 2024).

[xv] Id.

[xvi] Id.

[xvii] Amy Howe, Social Media Content Moderation Laws Come Before the Supreme Court (Feb. 23, 2024), available at:  https://www.scotusblog.com/2024/02/social-media-content-moderation-laws-come-before-supreme-court/ (last visited May 13, 2024).

[xviii] Brief of Petitioners, Moody v. NetChoice, available at: https://www.supremecourt.gov/DocketPDF/22/22-277/291860/20231130111448519_2023-11-30%20Final%20NetChoice%20merits%20brief.pdf (last visited May 13, 2024).

[xix] Brief of Respondents, Moody v. NetChoice, available at: https://www.supremecourt.gov/DocketPDF/22/22-277/291860/20231130111448519_2023-11-30%20Final%20NetChoice%20merits%20brief.pdf (last visited May 13, 2024).

[xx] Howe, supra, note xvii.

[xxi] See Michael J. Higdon, Something Judicious This Way Comes . . . the Use of Foreshadowing As A Persuasive Device in Judicial Narrative, 44 U. Rich. L. Rev. 1213, 1225 (2010) (“studies show that when processing messages readers are more persuaded by conclusions that are implicit rather than explicit, especially when the reader is more involved in the communication”).

[xxii] Id.

May 14, 2024 in Appellate Advocacy, Appellate Practice, Legal Writing, Rhetoric | Permalink | Comments (0)

Saturday, May 11, 2024

How To Change Someone's Mind

It is not easy to convince a judge (or any audience) to adopt your point of view, especially when the audience has a firmly entrenched and opposing opinion. Below are a few tips that can maximize the persuasive value of your arguments and enhance your likelihood of success.

1.    Craft a powerful story by showing, not telling.

People are captivated by powerful narratives.

When making an argument, focus on the facts of your case and tell a compelling – and concise – story in which you demonstrate that a result in your favor would be the most fair, just, and equitable outcome. Think of your argument like a fiction book or a movie, in which you do the following:

  • Begin with a powerful opening theme that hooks the audience.
  • Provide the audience with the necessary background facts while omitting irrelevant or extraneous facts.
  • Use the Rule of Three to structure your argument by providing the audience with three reasons justifying your position.
  • Emphasize the most favorable facts that support your argument.
  • Never ignore unfavorable facts; instead, explain why they do not affect the outcome you seek.
  • Use active verbs and vivid descriptions to enable the jury to visualize the story in their minds.
  • Whether in writing or during an oral argument, adopt a composed, mature, and confident demeanor and avoid unnecessary emotion, drama, or over-the-top language.
  • Put yourself in the shoes of your audience and craft your story based on, among other things, the questions and concerns that you expect will arise.

Consider the following examples involving a defamation claim.

Example 1: “In this case, the defendant made defamatory statements about the plaintiff and those statements caused the plaintiff to suffer damages. As we will show, the statements meet the definition of defamation under the relevant legal standards, and no defenses are available that can excuse or otherwise justify the defendant’s statements. We will demonstrate by a preponderance of the evidence that the statements were defamatory and that the plaintiff is entitled to recover damages.”

This statement is about as bland as it gets. Furthermore, it does not show the court anything. For example, it does not identify the precise statements that were defamatory, detail to specific reputational harm suffered, or explain why any potential defenses lack merit. It merely tells the court what happened and tells the court what to do. That is not persuasive at all.

Example 2: “The First Amendment is not a license to destroy a person’s reputation. On January 21, 2024, the plaintiff, Sharon Connor, who is the owner of Health Foods Market in the small town of Seashore, New Jersey, awoke at 6:30 a.m. and turned on her computer to respond to emails from several of her employees. One of those emails informed Sharon that, on the website, www.trashmyemployer.com, an employee whom Sharon recently terminated after three consecutive negative performance reviews had posted degrading and demeaning comments about Sharon. They included the following: “Sharon is a Nazi sympathizer;” “Sharon discriminates in the hiring process based on a person’s ethnicity and religious beliefs;” “Sharon artificially inflates prices and mocks the customers for being too stupid to notice;” and “Sharon treats her employees so badly that they are routinely traumatized after leaving work.” In Seashore, New Jersey, a small town where ‘everybody knows your name,’ Sharon was ridiculed, insulted, and ostracized from the community that she had called home for thirty years. She lost friends. Her business has suffered a thirty-five percent decline in profit. And twenty-five percent of her employees have quit. In short, this case implicates precisely what defamation law is designed to protect: a person’s reputation.”

This example is certainly not perfect, but you get the point. It begins with a theme. It tells a story by offering specific and vivid details. Additionally, it shows (not tells) the court why it should rule in the plaintiff’s favor. As such, it is far more persuasive than the first example.

Judges (and most people) do not like to be told what to do or how to think. Rather, they want you to give them the facts in a way that enables them to reach the most fair and just outcome.

2.    Obtain agreement over common values.

When addressing an audience, you are more likely to persuade the audience to rule in your favor if the audience agrees with the common values that undergird your argument. Indeed, when you and your audience, such as a judge or jury, begin a discussion from a point of agreement rather than contention, your likelihood of reaching a positive outcome or, at the very least, a reasonable compromise, increases.

Consider the following hypothetical example of an advocate trying to convince a hostile judge to adopt his or her position that the Constitution does not protect a right to abortion:

Example 1: “Your Honor, the Constitution says absolutely nothing about abortion, and the Supreme Court’s jurisprudence establishing a right to abortion is deeply flawed. The fact is that abortion involves the killing of human life, and it has nothing to do with a woman’s bodily autonomy. Sanctioning the murder of human life is antithetical to every value upon which this country is founded, and women should know that when they get pregnant, they are responsible for a life other than their own.”

This argument is so awful that it will alienate the judge and ensure that you lose. No one likes to be talked down to in such a condescending manner and told that they are wrong. Advocates who adopt such categorical positions are likely to be viewed as ignorant of the complexities that legal issues invariably present. Moreover, the argument is so politically charged that even the advocate’s most ardent supporters might question the advocate’s competency.

Example 2: “Your Honor, the decision whether to have an abortion is deeply personal and private. And we certainly respect a woman’s right to make that difficult decision in consultation with a woman’s health care provider. Our argument is not about the morality of having an abortion. Rather, it is simply about giving the people of each state the authority to decide whether abortion should be legal in their state. Some states may allow it; some may not. But at the end of the day, this is a decision to be made by the people of each state, not nine unelected judges.”

In this example, which is again not perfect, the advocate recognizes that abortion is a complex issue that is deeply personal and private to the individual. Also, the advocate is not denying the fundamental proposition that a woman should have the right to make this decision. Instead, the advocate is arguing that citizens, not the Court, should have the authority to determine the legality of abortion, which will almost certainly guarantee that abortion will be legal in many, if not most, of the states. Of course, this will still upset many abortion supporters, but at the very least it will demonstrate that you are not fundamentally opposed to abortion itself.

This is not to say, of course, that you will win by taking the latter approach. But you will have a more persuasive impact, maintain your credibility, and possibly get the swing justice(s) to rule in your favor or agree to a compromise.

3.    Show that you have empathy and maturity.

Excellent advocates show empathy for an opposing view, recognize the reasonableness of the opponent’s position, and acknowledge the nuances that most legal issues present. Indeed, people have different views based on their experiences and backgrounds. Displaying empathy for opposing views enhances your credibility, makes you likable, and shows that you possess humility and maturity.

Consider the following examples regarding an argument over whether the death penalty should be authorized for the rape of a child.

Example 1: “Your Honor, killing a defendant for the crime of child rape makes no sense whatsoever. The victim in this case is not dead. The victim will fully recover, and because the victim is only ten, will go on to lead a long and productive life. For these reasons, imposing the death penalty on the defendant, who has never killed anyone, is grossly disproportionate to the crime, and permitting the state to murder a child rapist is worse than the act of child rape itself. Anyone who advocates otherwise shows little regard for the sanctity of human life.”

That argument is so bad that even those who may agree with your position may be turned off by the sheer lack of empathy and insensitivity to the gravity of such a horrific crime. It will also likely offend anyone who supports the argument that you just attacked, particularly the victim’s family. And if you make this argument to a jury, you will alienate the jury and come off as an insensitive jerk.

Example 2: “Your Honor, raping a child is a horrific crime. Few words could capture the trauma and devastation that such a heinous act causes and anyone who commits such a crime should be subject to severe punishment. Our position is not that the defendant should not be punished, but rather that the death penalty, given the Court’s jurisprudence, is not the appropriate punishment. Instead, we respectfully submit that sentencing the defendant to life imprisonment without parole will reflect both the proportionality of the offense committed and impose the punishment deserved.”

This argument is better because it empathizes with the victim, acknowledges the irreparable harm caused, and recognizes that severe punishment is warranted. Furthermore, the alternative punishment proposed is reasonable given the gravity of the offense. Ultimately, having empathy shows that you have maturity, compassion, and humility. So make sure that you are respectful and measured and that you never demean an adversary, the court, or the victim of a crime. Instead, conduct yourself with class, dignity, and civility, and realize that most rational people despise jerks. No one likes narcissists. No one likes people who are condescending or insufferable loudmouths.

4.    Focus on the consequences of adopting a particular position.

Judges and juries are human beings. They are not robots. They want to reach outcomes that they believe are just and fair.

As such, they do not mindlessly apply the law without any regard for the present and future consequences that will result from a decision or a verdict. This is especially true given that, in most cases, precedent does not provide a clear answer to a current legal question, and considering that, in many instances, a law or constitutional provision is ambiguous and capable of different interpretations.  Thus, when trying to persuade a court, do not simply engage in a hyper-technical legal analysis that shows no appreciation for the real-world consequences of a ruling in your favor.

Consider the following examples concerning two advocates who are arguing that law enforcement officers should not, under the Fourth Amendment, be allowed to search a suspect’s cell phone incident to arrest.

Example 1: “Mr. Chief Justice, and Members of the Court, the Court’s search incident to arrest jurisprudence makes clear that the primary purpose of warrantless searches incident to arrest is to preserve evidence and protect officer safety. Although the Court has expanded the search incident to arrest doctrine to include searches of closed containers and passenger compartments, it has never applied the doctrine to cellular telephones. And for good reason. Warrantless searches of cell phones do not implicate evidence preservation or officer safety. Thus, expanding the doctrine to include cell phones would completely unmoor the search incident to arrest doctrine from its original purposes and finds no support in the Court’s precedent.”

This argument is not terrible, but it misses the point. The Supreme Court has the authority to limit or expand precedent whenever a majority votes to do so. The Court also has the authority to overrule, disregard, or distinguish its precedent. Thus, the Court will be less concerned with strictly adhering to its precedent and more with the real-world consequences of its decision on future cases involving warrantless searches incident to arrest.

Example 2: “Mr. Chief Justice, and Members of the Court, the original purpose of the Fourth Amendment was to protect citizens’ private papers and effects, which at that time were stored in the home, from unreasonable and warrantless searches. Indeed, the privacy protections that lie at the heart of the Fourth Amendment – and this Court’s jurisprudence – are sacrosanct, and this Court has exercised circumspection when permitting warrantless searches into citizens’ private space. That principle is at issue – and under attack – today because, in the Twentieth Century, cell phones house the private papers and effects that, at the time of the Fourth Amendment’s adoption, were traditionally stored in the home. Cell phones store, among other things, personally identifying information, private photographs, financial information, email and text messages, internet browsing and purchasing history, and personal contacts and telephone numbers. To permit law enforcement to search a cell phone without a warrant in the Twentieth Century is equivalent to permitting law enforcement to search homes without a warrant in the Eighteenth Century. It would permit vast and suspicionless intrusions into private spaces and property and allow the types of warrantless fishing expeditions that the Fourth Amendment and this Court’s jurisprudence prohibit. In essence, privacy rights would become a thing of the past, and warrantless searches into the most private aspects of a citizen’s life would be a thing of the future. It would, simply stated, render the Fourth Amendment meaningless.”

This argument, while again not perfect, is more effective because it brings to the Court’s attention the real-world consequences of a decision allowing warrantless searches of cell phones incident to arrest. And those consequences would be substantial. Privacy rights would be significantly weakened, and law enforcement would be permitted to do exactly what the Fourth Amendment prohibits: warrantless and suspicionless searches of a citizen’s most private information. Faced with such consequences, it should come as no surprise that in Riley v. California, the Court held unanimously that warrantless searches of cell phones incident to arrest violated the Fourth Amendment.

5.    Listen and do not interrupt.

This requires little explanation.

They often say that those who get their way are the ones who talk the loudest. In other words, intolerable jerks usually get what they want because people will do anything to shut them up. This approach may work in a faculty meeting, but it will not work in a courtroom.

Good advocates know how to talk less and listen more. Being a good listener shows that you have humility. It also enables you to identify the specific concerns that judges have when evaluating the merits of your case and to adjust your argument accordingly. Additionally, it shows that you recognize weaknesses in your argument and are willing to address them thoroughly and explain why they do not affect the outcome you seek.

Consider the following example:

Example: “Your Honor, I respectfully submit that the liberty protected by the Fourteenth Amendment to the United States Constitution encompasses a right to assisted suicide.”

Judge: “Well counsel, when we speak of the liberty protected by the –”

Counsel: “Your Honor the Supreme Court has been clear that the word liberty encompasses substantive rights, and no right is more central to liberty than having the right to determine the manner and method by which one dies.”

Judge: “I understand that, but what I’m trying to determine is if the liberty protected must be –”

Counsel: “Your Honor, the Supreme Court has already held that the word liberty protects personal privacy, and nothing could be more private than the decision on when to terminate one’s life.”

Judge: “Let me finish. I am concerned about whether the liberty interests protected under the Fourteenth Amendment must be deeply rooted in history and tradition.”

Counsel: “I apologize Your Honor. I misinterpreted your question.”

This attorney is a moron. The attorney looked foolish and unprofessional and was so oblivious that the attorney stated that the question, which the attorney never allowed the judge to ask, was misinterpreted. Doing something like this will destroy your credibility, infuriate the judge, and make it all but certain that you will lose your case.  It will also ensure that, if married, your partner will divorce you.

***

Presenting a persuasive argument requires you to use techniques that connect with your audience on a personal level and that convince the audience that your argument leads to the fairest and most just outcome. Using the techniques above will help you maximize your argument’s persuasive value and your likelihood of success.

May 11, 2024 in Appellate Advocacy, Appellate Practice, Law School, Legal Profession, Legal Writing, Moot Court, Oral Argument, United States Supreme Court | Permalink | Comments (0)

Monday, May 6, 2024

Belly Buttons and Punctuation

My colleague Diana Simon is my hero--my punctuation and grammar hero. Whenever I have a grammar or punctuation related question, she is the FIRST person that I go to (after Google of course).* In fact just last week I asked her if case law was one word or two. She replied that writing guru Bryan Garner prefers one word, but she and I agreed that we preferred two.

Diana publishes a column on writing and grammar in the Arizona Attorney magazine. Her latest column--Unlike Belly Buttons, Commas and Periods with Quotation Marks Cannot Be Innies or Outies--is a must read. It is a must read not just for its superb humor (a few examples of which I will provide below), but also because it addresses a pervasive problem in writing.  As Diana explains,

the increased placement of period and comma “outies” when quotation marks are used is out of control. Based purely on anecdotal evidence (well, I guess no evidence at all, then), I estimate that the placement of periods and commas outside quotation marks has increased by 165.56 percent.

And while Diana might claim that she has no evidence, she did acknowledge that she has seen an increased improper use of commas, periods, and quotation marks in her student papers. I agree.

So why is this a problem. Well, again Diana explains it well:

When you are a legal writing professor, seeing this trend [improper use of punctuation and quotation marks] can result in, among other things, loss of sleep, loss of hair (from pulling it out), and loss of nails (from biting them).

You might think I am being a tad overdramatic, but I can assure you the improper use of “outies” is a serious offense among legal writing professors. We lead very dull lives, so an issue such as the misplacement of punctuation with quotation marks can cause quite a stir. 

#truth.  I tell my students each semester that they are in America, and as such they MUST put periods and commas inside of quotation marks. If they don't like that rule, they can go become a barrister rather than a lawyer. Diana's article, in fact, tries to recount the history of why our punctuation conventions are historically different in America and why so many people seem to be forgetting those differences in everyday writing. Diana ends the article with the "rules for semicolons, colons, and question marks with quotation marks because there is a whole wide punctuation world that we live in beyond periods and commas, and we don’t want any other punctuation marks to feel left out."    

In short, read this article. Assign it to your students. Hopefully the belly button analogy will stick with them and improve punctuation usage.

*Diana is not, however, my citation hero. But that is a story for a different blog post.

May 6, 2024 | Permalink | Comments (0)

Sunday, May 5, 2024

Justices, Not Judges

This past week, I had the privilege of opening the Mid-Year Conference of the California Judges Association with a speech about the rule of law and how we can preserve it. The topic was one the group requested, and it provided me with a welcome opportunity to consider the indefinite meaning of the rule of law without specific laws it seeks to establish as the normative structures of society, its malleability throughout our nation’s history, and the many revolutionary ways it has changed and will likely change in the future.

In this post, however, I do not plan to get into that heavy subject, but instead relate an anecdote about one oral argument at the Supreme Court that exemplifies how the rule of law is really a rule of acceptable norms, not necessarily law itself. I opened my remarks with this story.

When one argues a case at the Supreme Court, upon checking in, you are handed two cards, slightly larger than a business card. One provides a kind of aerial view of the bench, showing the curved bench with boxes depicting the array of the justices, the positions of the marshal and clerk, and the place of counsel at the podium. Each person is depicted as a number, and a legend indicates who each number represents. It provides you with a reminder of where each justice sits.

A second card serves two purposes. One purpose is as an admission ticket that lets court personnel in the courtroom know that you belong at counsel’s table as counsel in a specific case. It also has three instructions. First, it reminds you that you should not speak until acknowledged by the chief justice. Second, it tells you that you should not introduce yourself but begin with the familiar, “May it please the Court, …” And, finally, it says that if you address a member of the Court, it should be as “Chief Justice” or “Justice …,” not judge, with that word italicized on the card.

More than 20 years ago, a novice violated the last of these admonitions, not once, but three times, possibly due to nerves. In response to questions from Justice Kennedy and then Justice Souter, she addressed them as judges. Each time, then-Chief Justice Rehnquist corrected her by saying that’s “Justice ______.” No doubt, the cognoscenti in the courtroom silently clucked at such a faux pas by an advocate. Not long afterwards, however, she compounded these episodes by calling the chief justice “judge.” Rehnquist then said, “Counsel is admonished that this Court is composed of justices, not judges.

Stunned and chastened, the advocate hesitated to say another word, but Justice Stevens interrupted, as he was often prone to do to make counsel more comfortable. He said, “It’s OK, Counsel. The Constitution makes the same mistake.”

Indeed, the Constitution, in Article III, refers to “judges” of the supreme and inferior courts as holding office during good behavior – the only other mention of a member of the Supreme Court is in the impeachment article, where it states that the “Chief Justice” shall preside when the president is subject to an impeachment trial.

Even if the Constitution designates members of the Supreme Court as “judges,” no advocate will ignore the norm that members of that court are called justices, and the card advocates receive continue to tell them not to use the word “judge.” Even though the Constitution is the “supreme law of the land,” it does not supply the rule of law when addressing the Court. Instead, another norm does. That means that while we venerate the rule of law and some of the Court’s end-of-the-term rulings may have many questioning what happened to the rule of law, the admiration and allegiance we hold to the concept reflects only our personal perceptions about the substance of law and how we legitimately determine that substance. Keep that in mind as you review the momentous decisions we expect from the Court this term, and when you ask any appellate court to reach a decision.

May 5, 2024 in Appellate Advocacy, Appellate Practice, Current Affairs, Oral Argument, Rhetoric, United States Supreme Court | Permalink | Comments (0)