Saturday, April 20, 2019
On July 1, 2019, the Supreme Court of the United States will impose a new, shorter word limit for principal briefs. The change affects Supreme Court Rule 33.1(g), decreasing the word limit for principal merits briefs from 15,000 to 13,000. The change brings the Court in line with the federal Courts of Appeal. Since December 1, 2016, the Federal Rules of Appellate Procedure have allotted only 13,000 words for opening and response briefs.
The Court rejected one of the more controversial proposed rules. That proposal would have limited reply briefs to 4,500 words. Even so, the Court did shorten the time for filing a reply brief. Previously, merits replies were due (1) 30 days after the respondent filed its merits response or (2) no later than 2 p.m. on the date seven days before the case was scheduled for argument, whichever was earlier. The amended rule keeps the 30-day window but pushes the seven-days-before-argument deadline to 10.
So why did the Court adopt these changes? I don't claim to know the answer, but I expect that it has something to do with the fact that most briefs are simply too long. Anecdotally, I once heard an appellate judge comment that every appeal really has one issue, maybe two. It's clear that some lawyers—yours truly included—forget that sometimes.
So how can you come in under these shorter word limits? That's simple—better writing. Here are some things to do, and to avoid, to bring your brief under the word limit.
- Do use fewer words, not more: Legal writers often are guilty of using phrases like "pursuant to," "prior to," or "on or about." Don't. Instead of these wordy phrases, try "under," "before," and "on." This seems like a no-brainer, but I've encountered many lawyers that refuse to give these anachronisms up. As an aside, I've also encountered several that use "pursuant to" incorrectly. Things don't happen "pursuant to" anyone's recollection. If you can't replace the phrase "pursuant to" with the word "under," you should re-write.
- Do run a search for the word "of." I never noticed it, but many phrases with the word "of" can be rewritten to eliminate one, often two words. Consider the common phrases "the issue of" or "the question of." You're likely able to pull those out without doing violence to your brief. Also, if you're using an "of" phrase, there's also a chance you could use a possessive.
- Do run a search for "ly." You're hopefully not going to find very many adverbs. But if you do, take them out unless they're necessary. Consider spending some time with a thesaurus; if you're using a lot of adverbs, perhaps you'd be better served by using stronger verbs.
- Do not use the words "plaintiff," "appellant," or other, similar procedural phrases to describe any party. Briefing an appeal is about telling a story. It's your job to tell the court the whole story of the case in the limited (13,000!) words that you have. Even though replacing your client's four-word name would save space, resist the urge. I promise, what you're gaining in space, you're giving up in clarity.
- Do not use precise dates, unless you absolutely need it. The Court doesn't need to know that something happened on April 21, 2019, unless multiple events happened in April 2019. If you've got to describe a temporal relationship, try words like "later" or "before." Otherwise, just save the words and use the month or month and year.
These aren't all the ways to save space. But writing shorter, more coherent briefs is a mindset. You have to start somewhere.
Monday, April 15, 2019
Despite growing up in a suburb outside of Houston and attending college in West Texas, I have been surprised by some Texas legal system aspects after living my entire professional career—from law school to practice then back to law school to teach— in California. Since returning to Houston to teach at the University of Houston Law Center in 2017, I have learned a lot about the Texas legal system, and some of the things have been interesting enough to share more widely.
The first fact that made me raise an eyebrow was that Houston, situated in Harris County and the fourth largest city in the US, is under the appellate jurisdiction of both the First District Court of Appeals and the Fourteenth District Court of Appeals. I learned this over lunch soon after arriving in Houston. My former student is a Harris County District Attorney, and he casually mentioned the challenge it was in certain circumstances not knowing what law would be applied upon appeal. Not understanding, I asked him to explain further. He shared about the First and Fourteenth Districts and how it was not until the appeal was filed that the case was randomly assigned to either the First or Fourteenth District. As a trial lawyer in one of the ten counties subject to this dual jurisdiction, you do not know which appellate court’s opinions will ultimately be applied if you end up appealing. Here’s the technical explanation from the Fourteenth District Internal Operating Procedures:
The 1st and 14th Courts have concurrent jurisdiction over cases from Harris and 9 other counties: Austin, Brazoria, Chambers, Colorado, Fort Bend, Galveston, Grimes, Waller, and Washington. The trial court clerk randomly assigns each appeal, with one exception: cases in which a related matter has previously been heard by a particular court are assigned to that court.
So how did Texas become the only state in the country with this jurisdictional quirk? It has to do with Texas history. As the state grew, more courts were added in an ad hoc manner. The First District was created in 1892 and located in Galveston. In 1957, after Hurricane Audrey and significant damage to the Old Galveston Court House, the First District was moved to Houston. In 1967, the state legislature added the Fourteenth District because of population growth and also located it in Houston. At that point, the courts were still limited to three justices each, so new districts were added when case loads became too large.
While Texans often take pride in their unique institutions, many have criticized the resulting court system from this add-on approach. According to Judge Willett of the Fifth Circuit while he was a Texas Supreme Court Judge:
Truth be told — and this particular truth has been told repeatedly — the State's entire Rube Goldberg-designed judicial "system" is beyond piecemeal repair; it should be scrapped and rebuilt top-to-bottom. The convoluted make-up of the Texas judiciary — "one of the most complex in the United States, if not the world" — does not lack for critics, from the litigants who endure it, the lawyers who navigate it, and the judges who lead it. . . Texas is the only state in the nation in which trial judges answer to more than one intermediate appellate court, that is, no other state has overlapping appellate jurisdictions. Fifteen counties are in overlapping districts. This Court has lamented the "manifest" problems inherent in overlapping districts: "uncertainty from conflicting legal authority," "the potential for unfair forum shopping," and "jurisdictional conflicts.”
In re Reece, 341 S.W.3d 360 (Tex. 2011) (Willett, J. dissenting).
One shocking example of what can happen when two appellate districts have the same jurisdiction occurred when four passengers were in the same car in a bad accident, and three had the right to sue according to one appellate district, one did not according to the other. Compare Reyes v. City of Houston, 4 S.W.3d 459, 462 (Tex.App.-Houston [1st Dist.] 1999, pet. denied) with Montes v. City of Houston, 2000 WL 1228618, at *4 n. 3 (Tex.App.-Houston [14th Dist.] 2000, pet. denied). While the Texas Supreme Court may grant a petition for review when there is a split of this type, it often does not. There are lots of less dramatic examples of conflicting rulings. Litigants and attorneys are left with a limited ability to predict the law that will be applied in their case, let alone an outcome based on that law.
It’s also worth pointing out that fourteen intermediate appellate districts is a lot, and likely adds to costs and strain on the high courts. Texas has more intermediate appellate courts than there are federal circuits. Though Texas is large in both size and population, it strains reasoning to understand why it needs that many. For reference, California only has six intermediate appellate courts.
Finally, the concurrent jurisdiction has been criticized for diluting voting rights of minority voters in Harris and Fort Bend counties with votes from the other largely Caucasian, suburban counties. With the election in 2018 and the vast changes in the judiciary in Texas, it will be interesting to see if political motives will result in more momentum towards some sort of change.
Overall, forty nine out of fifty state and the entire federal court system operate with unitary intermediate appellate court jurisdiction. Texas is an outlier with this strange system, and I did not find anyone extolling the virtues of it. Perhaps this is a quirk that should be retired.
Saturday, April 13, 2019
It is quiet and dark. The theater is hushed. James Bond skirts along the edge of a building as his enemy takes aim. Here in the audience, heart rates increase and palms sweat. I know this to be true because instead of enjoying the movie myself, I am measuring the brain activity of a dozen viewers. For me, excitement has a different source: I am watching a neural ballet in which a story line changes the activity of people’s brains.
That's from Paul Zak, founding Director of the Center for Neuroeconomics Studies. Recently, scientists strapped brain-scanning and other sensors to a group of test subjects and had them watch a Bond movie. The researchers wanted to see how people reacted physically and neurologically to a good story.
"When James Bond found himself in stressful situations--like hanging from a cliff or fighting a bad guy--the audience’s pulses raced. They sweated. Their attention focused." In other words, the subjects connected with the hero on a physiological level, experiencing what Bond was experiencing. And something else: the participant's brains synthesized a neurochemical called oxytocin.
Oxytocin's influential power on our minds is well-documented. And stories trigger it.
Take another study showing that when we read a story, the neural activity in our brain increases fivefold. Neuroscientists have a saying: “Neurons that fire together, wire together.” This increased activity, no doubt, makes it much more likely that readers will remember a story over some other random information.
Research shows that the mere act of reading a story changes how we think. In a 2011 study, participants read stories with strangers. The results? Storytelling, the researchers concluded, “fostered empathy, compassion, [and] tolerance.” Reading a cohesive story (of any kind) affects us. It makes information more palatable and more memorable. This is all piled on top of the long-standing cognitive science research showing that nearly all of our thinking is done by constructing story-like schemas and categories in our minds.
In short: research proves that storytelling engages readers, it burns information into their memories, and it forges the sort of close bonds that you need to persuade them. If anything, these powers are most important for lawyers. We legal writers are desperate to engage our readers--and to get them to care--amid the constant legal noise. Storytelling can cut through that noise and touch our readers on deep levels.
Legal storytelling is a field and art to itself, but I thought I would offer some core storytelling tools that you can easily incorporate into your legal writing.
1. Start with a movie-trailer paragraph.
Try taking a paragraph or two at the outset of your factual story to spool up a preview of the best scenes. If your fact section is the movie then this initial section is your movie-trailer. You will not only excite and engage your readers, but you'll lay out the basic storyline so they can better sort the details as they go (an important cognitive science tool).
The two tricks here are to (1) roadmap the basic storyline and theme ("this is a corporate bullying case") and to play a highlight reel of some of your best material to prime readers and get their emotions in the right place. I've seen good movie-trailers take up a few paragraphs or a few sentences. Take this one from a recent SCOTUS case--it doesn't get more simple or persuasive than this:
Justice Kagan is a fan of the movie trailer. Here she sets up the story in the Sherman case last term:
The thrust of the complaint is that plaintiff has worked at the defendant’s store for several years and repeatedly complained about sexual harassment. For example, he complained that his supervisor allegedly made comments about his ‘great stature.’ Eventually, the defendant acted, but by then, plaintiff alleged he had already been harassed so much that he quit.
Here's an example of a lawyer also adding some helpful roadmap to his trailer:
Three periods in plaintiff’s employment are relevant here. First, plaintiff offers allegations about when he was interviewed and how the defendant made promises to him then, like that he would be a foreman within six months. Second, plaintiff alleges that over the next six months, his job turned out to be a “glorified secretary…”
2. Uncover your familiar plot and highlight it.
We all know the good storylines: the underdog who defeats the bully, rags to riches, the do-gooder who is underestimated by everyone in town. We are hardwired to be moved by these storylines. The good news is that you can construct an emotional storyline out of just about any situation, if you look hard enough. Once you've distilled down your basic plot so that you can relate it in a sentence or two--highlight it at the outset of your story and throughout your brief.
Supreme Court high-flyer (and one of my favorite legal writers) Deepak Gupta gets the value of building a simple and emotional storyline at the outset. With these couple paragraphs, Gupta injects his factual theme, storyline, and the punchiest snippets of his factual story. In short, the big bad credit card companies are pulling the wool over innocent consumers' eyes--to the tune of billions:
Here's another example. This time, it's a story of vulture debt buyers looking to prey on the weak:
3. Deftly weave emotional facts into the story (even when they are not strictly relevant).
Legal readers hate reading facts that are obviously not relevant to the legal questions they are wrangling with. But if you insert those same facts into a cohesive story about the facts that do matter--your readers will never get wise. For example, Justice Kagan mentions in this snippet below how much the plaintiff spent on fees, even though this fact really had nothing to do with the legal questions presented to the court. But because this fact was weaved into the story about the background that was relevant--you'd never know:
We legal writers are often too specific about things that don’t matter. The problem is that when you give your readers a bunch of specific details without purpose, they get confused. They try to remember everything, not knowing what they'll need for the legal analysis later.
So cut dates, amounts, names, and any other details that won't help you win on the merits. Look how this federal district judge avoids inundating the reader with dates, page numbers, and needless details that other lawyers and judges love to squeeze in:
Late last year attorney Denton Jackson filed a chapter 13 bankruptcy case  for debtor Sarah O’Neill. Shortly after filing the case, Jackson filed a form fee application, Form No. 23. In the portion of the application entitled “Use of Model Retention Agreement,” Jackson checked the box indicating: “The attorney and the debtor(s) have entered into the Court’s Model Retention Agreement.” Some months later, chapter 13 trustee Thomas Lanner objected to Jackson’s application because the [Model Retention Agreement] between Jackson and the debtor . . . attached an “addendum” that prescribed fees in addition to the flat fee to which Jackson was entitled.
5. Try to tell a complete, cohesive story about any important factual events.
Make sure to tell a complete story--beginning, middle, and end--for any event that matters. Readers get skeptical when there are obvious plot holes. So answer natural narrative questions readers will likely have. Consider telling the story in a familiar arc:
setting > characters > complication/conflict > resolution (how they got to court)
This is a familiar and easy to understand format for readers (as a preview for later--you can use this same structure when telling stories about the rules, too).
Some other story elements to keep in mind:
- Consider whose perspective might be the best to follow as you deliver the facts. The defendant? The plaintiff? Some third party?
- Focus on people or entities when possible. Frame the story as actions they took out leading to the issues or dispute.
- Provide your reader with helpful context to set up those important factual events. How did the plaintiff and defendant come to meet? Why were they where they were that night? You don’t want to lose your reader in irrelevant details, but if some factual events are critical, it will be much easier for your reader if you set the scene first.
Here's some nice scene-setting about why there are so few debt-buying firms, which sets up the critical factual events in the case:
Here's a great example of a lawyer telling the whole story and paying attention to familiar story elements:
Here's another cohesive story. Notice how the lawyer keeps the facts in the perspective of the entities, not abstracts. Note also the editorials about what the entities were thinking at the time:
Defendant Oztark co. launched it’s company last year to help individuals who want to charter a private plane. It filled out its corporate paperwork with the state of Delaware, but it forgot to send in a check to cover the corporate registration fee. Delaware, in turn, sent its request for payments to the wrong address—so Oztark never realized it’s mistake. Oztark then started providing services, not realizing that it was effectively not a legal corporation . . .
Here's an example of some scene setting that lays out how different parties relate to each other. Is it all legally relevant? Probably not. But it sure helps keep the story straight:
6. Share specific details that make a point (rather than telling your reader why they matter).
This is a classic and always important: Use choice details to lead your readers to the emotions and images you want, don't just tell them what matters.
So instead of telling your reader that “plaintiff was severely and permanently injured” share the specific details: “Plaintiff’s hips were both broken.”
But choose specific details with care. Juicy details will build imagery in your reader’s mind, making the story come to life. And if you choose the wrong details you might lose control.
7. Use tools to emphasize the good facts.
Emphasize the best facts by describing them with the best style. Imagery-laden, vibrant, and pithy writing is memorable. And using this sort of writing when talking about the good facts will make them stick.
You can emphasize key facts by placing them in positions of emphasis like the beginning and endings of paragraphs, the beginning or end of sections, and the ending of sentences. You can also emphasize these facts by repeating them subtly, say, in your introduction, in your fact headings, in your movie-trailer section, and in your conclusions.
Another important way to emphasize key facts is to tell a more detailed story about them. The more details and time you spend setting up a factual event, the more it will be emphasized for your reader. Justice Kagan gets it here, as she spends two paragraphs revealing every detail leading up to the critical event of the banner being unfurled:
Respondent Joseph Frederick, a senior, was late to school that day. When he arrived, he joined his friends (all but one of whom were students) across the street from the school to watch the event. Not all the students waited patiently. Some became rambunctious, throwing plastic cola bottles and snowballs and scuffling with their classmates.
Then came the incident we are concerned with here. As the torchbearers and camera crews passed by, Frederick and his friends unfurled a 14–foot banner bearing the phrase: “BONG HiTS 4 JESUS.” The large banner was easily readable by the students on the other side of the street.” - Morse v. Frederick, 551 U.S. 393 (modified)
8. Use the first sentence of fact paragraphs to persuasively frame and prime.
Like I mentioned recently in "The Strength of the Start," first sentences are powerful. Use the first sentences of your fact paragraphs to set up the persuasive pitch for all the facts that come after. Gupta does just that here:
9. Use your own voice and narration whenever possible.
Any good storyteller will tell you that half of this art is in the voice: the power, the pauses, the pitch. For writers, this is tricky, because you must craft a "written voice." One of the big pitfalls here is to let fact quotes drown out your own narration. So consider using some of my prior pointers about quoting here, and keep other people's voices to a minimum. Check out how (yes again) Gupta keeps quotes to a minimum while maintaining his own narrative tone throughout:
Defang unhelpful facts by surrounding them with helpful facts (the "halo"), by placing them in the middle of paragraphs, by not repeating them, and by sharing less detail or spending less time exploring their nuances.
But top lawyers will all agree that you should not ignore the bad facts that the other side is sure to raise. That just makes them that more powerful in the other side's hands. But here is an example of an attorney deftly putting bad facts into context. Instead of saying: "Defendant admits he punched the plaintiff in the face," the lawyer says:
Defendant is a nurse. He has never done anything violent. He was being beaten from three sides and—to save his own life—flailed and made contact with one of the assailants in the face. There were no injuries.
11. Use headings to separate the story's different scenes.
This may be the most helpful fact tool: separate different factual events with headings so that your readers can keep track. Good headings also allow you to help your reader understand what matters from each section.
For example, this lawyer plucks out the key facts about how long it took to file a motion:
A. The plaintiff waited to file the motion until three months after receiving documents.
Here's another Gupta example of headings that preview key facts and help readers keep track of all the different parts of a single, cohesive story:
12. Telling the rules' story.
One of the most powerful stories is a type you might not think about: Rule stories.
Really, every rule is a story. Whether it be a statute, a common law principle, or the reasoning of a court case. Some situation or circumstance gave birth to the rule. The rule grew over time--changed, expanded. Perhaps it matured into a more flexible version of itself, benefiting from the wisdom of experience. Or maybe it became strict and unyielding after too many litigants took advantage of it.
There is a lot of magic to explore here. For one, when you have a critical rule interpretation that may make or break your brief--telling the rule's life story can be the most memorable, engaging, and persuasive tool in your belt. Rule stories just beg to be read.
Most legal writers would introduce a rule like this:
The Free Exercise Clause does not exempt religious persons from laws of general applicability. Employment Division v. Smith, 494 U.S. 872 (1990).
Once your reader absorbs your rule's story, it will be hard for them to shake. The other side's surface interpretation of the rule will ring hollow.
Another power of the rule story is that it gives you flexibility. Root around long enough in any rule's past, and you'll find some skeletons. Perhaps a shotty case that caused a twist in the law that never should have been there. Or some assumptions or factual circumstances that suggest an entirely different purpose animated the rule than what you might expect. You can take more liberty when interpreting rules as a storyteller rather than a scrivener.
Joe Regalia teaches at Loyola University School of Law and practices at King & Spalding LLP in Chicago. The views he expresses here are solely his own and not intended to be legal advice. Check out his other articles here.
Monday, April 8, 2019
While many people may be swearing on April 15 because they forgot to do their taxes, the Supreme Court will have swearing on its mind for another reason. Iancu v. Brunetti poses the very interesting question of whether, under the First Amendment, the government may refuse to register trademarks it deems "immoral" or "scandalous." Mr. Brunetti was denied a trademark for his clothing brand FUCT (Friends U Can't Trust). The Federal Circuit ruled in Brunetti's favor, and now the Supreme Court will hear the case.
Just two years ago, the Supreme Court ruled in Matal v. Tam, that the "disparagement clause" in the Latham Act is incompatible with the First Amendment. I think that is likely that Brunetti will succeed too in his trademark quest.
But, the merits of the case isn't want I wanted to blog about. What is quite interesting in the case are the numerous examples in Brunetti's brief of trademarked and rejected words that could be deemed "immoral" or "scandalous." National Law Journal, in its Supreme Court Brief email, noted that the briefs are "most assuredly not suitable for minors." According to NLJ, the brief lists "34 words that might sound scandalous, only three of which have been handled consistently. [The trademark office] has allowed FCUK, FWORD, and WTF IS UP WITH MY LOVE LIFE? Again, those are mild compared to other unmentionable words and phrases in the brief." If you would like to read all of the bad words in Brunetti's brief, you can find it here. The juicy part starts on p. 11.
Despite the bad words in the brief, Brunetti's attorney told the Court in a footnote that he didn't expect it would be "necessary to refer to vulgar terms during argument. If it should be necessary, the discussion will be purely clinical, analogous to when medical terms are discussed." That decision was probably for the best. The NLJ article mentions Carter Phillips, who was called twice by the Court and advised not to use bad words in oral argument when he argued the FCC v. Fox case.
I think that the subject of how litigants and the Court use profane language is fascinating. Should the word be spelled out? Should one use asterisks? And, if you dare spell it out, can you then say it out loud at argument? Dare the justices say the word when announcing the opinion? According to a 2012 New York Times article, when Justice Harlan announced the opinion of the Court in the Cohen case, he was instructed by Chief Justice Burger not to "'use that word' because 'it would be the end of the court' if he did." You may recall from constitutional law that Mr. Cohen was prosecuted for wearing a jacket that contained words that, according to his attorney attorney, were "'not actually advocating sexual intercourse with the Selective Service.'" Despite the Court's reticence to hear the word out loud, in many cases, especially in a case like Brunetti's, it is important to see the word in context.
I plan on listening to Brunetti's attorney's argument if I get a chance to see if he holds true to his word.
Saturday, April 6, 2019
Many practitioners, it seems, view the "issues on appeal" section of their brief as a waste of space. I don't know that for sure. But it seems likely given the slapdash way many of those sections are composed.
I'm going to assume everyone knows that this issue statement is no good: Did the trial court err in awarding summary judgment? It is my least favorite issue statement of all time. If you find yourself writing this issue statement; stop. It's not the answer.
What I'm talking about are those issue statements that do a sufficient job of alerting the court to the central issue in the case, but that don't go far enough. Here's a perfect example that I found after five minutes on the North Carolina Court of Appeals' website:
WHETHER THE FULL COMMISSION ERRED IN AWARDING ATTORNEY'S FEES PURSUANT TO N.C. GEN. STAT. § 97- 88?
There's not a lot of substance to unpack here. I know from reading question that the appellant claims the North Carolina Industrial Commission erred when it awarded attorney's fees. And I know the relevant statute. In that regard, this issue statement does its job just fine.
But it could do so much more. First, it needs more information. Second, it needs some emotional appeal. Shifting gears and heading into the world of contract law, let's build an issue statement that both does its job and does it well.
Here's some background. The plaintiff brought a breach of contract claim against the defendant, who contends that the claim is barred by a release. The plaintiff has admitted elsewhere that the release is valid. The trial court concluded the claim was barred and dismissed the case. The plaintiff has appealed.
The defendant's most basic issue statement would read something like this:
Did the trial court correctly dismiss plaintiff's breach of contract claim?
As before, this statement tells the court what's at issue and what the defendant's position is on it. It just doesn't do anything else. To give the court some extra information, the defendant might consider:
Did the trial court correctly dismiss plaintiff's breach of contract claim after concluding it is barred by the release?
In this iteration, the defendant has again conveyed to the court the issue and the defendant's position on that issue. By noting the release, the defendant also has conveyed the trial court's reasoning. Still, this issue statement is missing something. It tells the court what's going on, but it doesn't persuade. It lacks emotional appeal. For some real pizazz, the defendant might consider crafting an issue statement that goes one step farther:
Did the trial court correctly dismiss plaintiff's breach of contract claim when that claim pre-dates an admittedly valid release?
This statement goes all in. It tells the appellate court what the trial court did, but more importantly, it tells the appellate court why the trial court was right. That is, why the defendant should win.
The question has an important feature that its predecessors lack: its answer is "yes." Writing an issue statement so that it must be answered "yes" goes a long way to bolster your case. It gets the court thinking about the facts and the law in the light most favorable to your client. And it does so early. By writing an issue statement with a clear answer, you're ensuring that the court will see the case through your eyes early on. That's a huge advantage, especially if you're the appellant.
So, next time you sit down to write an issue statement, resist the urge to recycle your old standby and spend some time crafting a quality question that the court can't help but answer in your favor.
Monday, April 1, 2019
If you weren't a fan before "On the Basis of Sex" was released in December 2018, or before the RBG documentary came out in May 2018, or before My Own Words was published in October 2016, by now we all know how Ruth Bader Ginsburg did it. As explained here, she started from zero, when the Supreme Court had never invalidated any type of sex-based law, and had rejected every challenge to laws treating men and women differently. "By carving out incremental spaces for women (and men), over time Ginsburg established a bedrock of precedent that legal minds still reference in the fight for equality." One case at a time, she managed to change the court's perspective on sex discrimination: "Ginsburg’s precedents were compounding, as she helped American law move toward a world in which gender was no excuse for treating people differently."
A dear friend and colleague who works exclusively in the juvenile court system here in Missouri recently asked me to join her on her quest to follow the RBG Method in termination of parental rights cases. I thought well, Justice Ginsburg was once upon a time an attorney with a strategy. Here's the plan; apply it as you see fit.
I. Identify a current law, the prevailing interpretation of which you want to change.
Termination of Parental Rights in Missouri is purely statutory. The statute itself is long, complicated, and detailed. One of the following grounds for termination without consent of the parent must be proved by "clear, cogent and convincing evidence": (1) abandonment; (2) abuse or neglect; (3) the child has been under the jurisdiction of the juvenile court for at least one year, and the conditions which led to the assumption of jurisdiction still persist; (4) the parent is guilty of a felony violation in which the child or any other child in the family was a victim; (5) the child was conceived as a result of rape; or (6) the parent is unfit to be a party to the "parent-child relationship." Each of these grounds requires a showing of specific facts and circumstances that constitute "clear, cogent and convincing evidence." Second, the statute requires proof by a preponderance of the evidence that termination is "in the best interests of the child." Given this level of detail and box-checking involved, your average bear might think that TPR cases leave little room for judicial discretion, and require strict and literal compliance with the statute.
But in 2016, the Jackson County, Missouri Family Court developed a problem. In the years 2010 through 2015, an average of 138 new termination of parental rights cases were filed. In 2016, that number jumped to 449, because "in the Fall of 2015, the Juvenile Officer identified a number of cases with a goal of TPR lacking a petition for termination. A special work plan was constructed and these cases were filed in 2016, resulting in an unusually high number of TPR petitions filed." In 2017, 369 new TPR cases were filed, down by 80 from the prior year, but still over 2.5 times the average of the six years prior to 2016. In August 2016, the Family Court Division of Jackson County issued an administrative order implementing a case management system for TPR cases, "to create a more efficient, predictable system in order to achieve more timely case dispositions, reduced waiting times and more meaningful appearances for litigants, attorneys, and the Court, thereby promoting the timely administration of justice." The new system requires that a Permanency Hearing take place within 12 months of the child coming under the court's jurisdiction, where the court may determine whether the Children's Division provided a compelling reason that a TPR petition is not in the best interests of the child. A post-permanency plan review hearing must be held no later than six months after the Permanency Hearing, and if the court determines that the permanency plan is termination of parental rights, the court "shall order the Juvenile Officer or Children's Division to file a Petition for Termination of Parental Rights" within 90 days. Then, the case must be docketed no later than 30 days after the TPR Petition is filed; and the court may appoint an attorney to a party who is financially unable to hire an attorney. If TPR is contested, the case will be scheduled "for final trial/disposition within nine months after the case is transferred. . . ." No continuances shall be granted "except for compelling cause."
The end result of this new efficient case management system, according to my colleague, is a TPR Factory. Cases are rushed through the court system, and Judgments more often than not terminate parents' rights, but without proof of grounds by "clear and convincing evidence," and without proof by a preponderance of the evidence that termination of a parent's rights is in the best interests of the child. So, how to fix it?
II. Find a case with really good facts that emphasize the inherent merit in your argument, and bring them to the appellate court's attention.
If a parent has abandoned a child, that parent may repent his or her abandonment, which is determined by a parent's intent, which in turn is decided by the court's review of "actual or attempted exercise of parental rights and performance of parental duties following the abandonment." However, I have yet to find any recent TPR cases, where the court examined the parent's behavior both prior to and after the filing of the TPR Petition, and determined that the parent's rights should not be terminated because the parent has "repented his or her abandonment." Rather, the trial courts appear to consider behavior that occurred after the Petition was filed as "token" efforts, and view "after the fact" correspondences between the parent and child "with great hesitancy." My colleague seeks to change this interpretation of the statute, which she believes permits courts to terminate parents' rights without clear, cogent, and convincing evidence.
V. W. spent many years in active drug addiction, and did not deny that she had previously abandoned her child, who was taken into custody at birth when he tested positive for illegal substances. After the child was taken into custody, V.W. never provided any financial support for the child, and the court entered a no-contact order. After the TPR petition was filed, V.W. found out she was pregnant again, and decided that to turn her life around. Over the next two years, V.W. participated in every service offered to her, stopped using drugs, moved into a halfway house, finished her education, got a job working in the addiction field, and gave birth to and parented the second child. No witnesses at trial recommended termination regarding the first child; but her rights were terminated regardless. On appeal, the Court of Appeals found among other things, V.W. had not repented her abandonment, because the evidence showed only "short-term improvements" which occurred after the filing of the termination petition.
We lost that one.
III. Find a case with even better facts and try again.
J.C. had not participated in the case when his child first came under the juvenile court's jurisdiction. He became involved in the case five months before the TPR Petition was filed. Per the social services plan, J.C. attended and completed a batterer's intervention course, paid child support, and visited the child regularly. He found employment and an appropriate place to live, and again no witnesses testified that his rights should have been terminated. Nevertheless, the court found that because "almost all of the father's actions that might lend some support to a finding that he has repented his earlier abandonment of the child have come after" the petition was filed; these actions deserved “little weight." The trial court terminated J.C.'s rights.
We filed the brief in that appeal last month. Hopefully, maybe this time with slightly different facts--the main difference in this case being the father's payment of child support and visits with the child--the court of appeals will see the worthiness of our argument that a parent's efforts to repent abandonment after the Petition is filed, should not be automatically viewed as token efforts deserving of little weight in a court's decision to terminate a parent's rights. Interestingly, my colleague was chatting with an appellate judge recently, who told her that he just didn't see very many TPR appeals.
What that tells me, is that a court's traditional understanding of a legal issue will change only if someone challenges the validity of that traditional understanding. We know that the Supreme Court just hadn't considered that gender-based discrimination was wrong, so one case at a time, Ruth Bader Ginsburg methodically changed that thinking. We may not be arguing in front of the Supreme Court, but here in this pond, my fellow fish and I are working towards the appellate court's coming around to the idea that perhaps there is something wrong with the way this state determines whether and when parents should lose their parental rights.
The viewpoint is perhaps idealistic, but the goal feels possibly reachable. Tally-ho.
Wednesday, March 27, 2019
The United States Supreme Court has long held that criminal defendant has the right to the effective assistance of counsel through his first appeal where an appeal is provided to those who can pay for it. See Griffin v. Illinois, 351 U.S. 12 (1956), Douglas v. California, 372 U.S. 252 (1963). This assistance is not without limits. In Anders v. California, 386 U.S. 738 (1967), the Court held that counsel may not abandon a nonfrivolous appeal, but also allowed an attorney to withdraw from an appeal once the appellate court has verified that there are no nonfrivolous grounds to pursue. In Jones v. Barnes, 463 U.S. 745 (1983), the Court recognized that it is the defendant’s authority to determine whether to pursue an appeal, while it is counsel’s responsibility to make strategic choices concerning which issues to raise on appeal.
Late last month, the United States Supreme Court emphasized that a criminal defendant retains the right to an appeal, and that appointed counsel is obligated to note an appeal upon his client’s request, even if his client has waived his right to an appeal in a guilty plea. The Court has previously held that counsel’s performance is deficient when counsel “disregards specific instruction from the defendant to file a notice of appeal.” Roe v. Flores-Ortega, 528 U.S. 470 (2000) (citing Rodriquez v. United States, 395 U.S. 327 (1969); cf. Puguero v. United States, 526 U.S. 23 (1999)). The Court in Roe held that no showing of prejudice would be required when a criminal defendant can provide that he would have taken an appeal, but for counsel’s deficient performance in failing to consult with defendant regarding an appeal where “a rational defendant would want to appeal …, or … demonstrate to counsel that he was interested in appealing.”
In the almost 20 years since that decision, however, many criminal defendants, who have pleaded guilty and, as part of their bargain, have waived their right to an appeal, have not enjoyed their right to have counsel note an appeal on their behalf. In part, I believe it is because many believed that the appeal waiver resulted in there being no nonfrivolous grounds for an appeal, and because counsel believed that no rational defendant would want to appeal and potentially lose the benefit of the plea bargain. Regardless of the rationale, last month the Court once again reminded the bar that the filing of a notice of appeal is a purely ministerial task, and that failing to do so upon defendant’s request is presumptively prejudicial. Garza v. Idaho, 586 U.S. ___ (2019) (slip op., at 14).
I understand the position taken by the government, which may not have agreed to a plea deal absent the defendant’s waiver, but I fundamentally agree with the heart of the Court’s rationale. After all, the criminal defendant is wholly dependent upon counsel when it comes to noting an appeal, although it is the defendant’s decision whether to seek that appeal. Whether counsel agrees with the defendant’s decision is of no import, at least regarding this simple task without which all hope is lost.
As the Court noted in Garza, we cannot expect a defendant to prove he would have had successful claims on appeal where the Court has recognized that the task of determining what claims to press on appeal is typically left to counsel. Id. (slip op., at 12); see also Jones, 463 U.S. 745.
If you represent criminal defendants, make sure you take the time to talk with your clients about their right to an appeal. And, whether or not they have pleaded guilty, if they ask, file a notice of appeal.
Tuesday, March 26, 2019
Social media is an interesting experiment. Because of my diverse legal background, I am friends with people who identify with viewpoints from every shade of the political and social spectrum, and I usually enjoy hearing these different perspectives on issues and try to learn from them. But as time passes, I see fewer shades and more rigid, black-and-white positions. There is less thoughtful sharing and more knee-jerk accusation.
This way of thinking in terms of "us" versus "them" is by no means new, but it does seem to be increasingly fortified in our public and private discussions from everything to politics to how we view history. Just try to take a thoughtful, nuanced position on anything from immigration to Civil War monuments (or anything relating to Donald Trump), and you'll quickly see my point.
Perhaps no other profession is as deeply grounded in this adversarial perspective as the law. The idea is reinforced in every filing and letter through the use of a simple "v." Indeed, our modern system has roots in an older system that permitted litigants to hire champions who would bludgeon each other to death or submission to prove their case. Russel, M.J., Trial by Battle Procedure in Writs of Right and Criminal Appeals, 51 Law and History Review 123–134 (1983).
When I serve as counsel, I do so aggressively and make every proper effort to prevail over the party who is "versus" my client. But we have become more civilized over the years in how that process works. Today, lawyers who demonize the other party, or who buy into the "hired gun" mentality and choose to vilify their counsel, are serving neither their clients, themselves, the legal system, or their society.
I serve as, and alongside, trial counsel in small and in multi-million dollar cases as both defense and plaintiff's trial counsel and as appellate counsel. In doing so, I often see the harm that arises from the refusal to see the other side's perspective. We must be zealous advocates as attorneys, but to be effective means we must have a willingness to see the "us" in the other side.
Last week I wrote about the costs of contentious litigation in terms of economic loss and gain, and its impact on credibility. But demonizing our opponents also puts on blinders. What if the claimants aren't just money hungry but are actually injured or their business has been genuinely impacted? What if the defendants really did not intend any of the harm they caused, but did their best to avoid it? What if someone or something else was to blame? What if the failure to disclose or produce important documents by opposing counsel really was a mistake?
Turning opposing counsel or parties into villains means we might not ask these questions, because we assume the answer. If we don't assume the worst, if we are willing to put ourselves in the other side's shoes, if we can see "them" as "us," then we can see more adequately the dangers in our own case and the merits in the other side's position. As a result, we can more appropriately plead and argue our cases, we can more accurately evaluate and forecast outcomes, and we can more readily reach long-term solutions for our clients rather than simply trying to "win" each individual point of contention.
I would also note that, as attorneys, it is particularly important for us to remember that our personal opinions about opposing counsel or their client must be kept to ourselves. We often forget about it, but Rule 3.4(e) of the Model Rules of Professional Conduct states that a lawyer shall not:
in trial, allude to any matter that the lawyer does not reasonably believe is relevant or that will not be supported by admissible evidence, assert personal knowledge of facts in issue except when testifying as a witness, or state a personal opinion as to the justness of a cause, the credibility of a witness, the culpability of a civil litigant or the guilt or innocence of an accused[.]
Aside from raising disciplinary issues, violating this rule can harm our clients. In one Florida car wreck case, trial counsel argued that that the defense did not want the jury to be fair and reasonable, but had instead brought a "bogus counterclaim to make it look like they have something to argue about," and that, in contrast to the defense witnesses, his client was not going to lie. Airport Rent-A-Center Car, Inc. v. Lewis, 701 So. 2nd 893, 896 (Fla. Dist. Ct. App. 1987). On appeal, the court concluded that the defendant was denied a fair trial and reversed the award.
Of course, that means that this tactic worked at trial. Sometimes, you can bludgeon your opponent into submission by demonizing them. At least temporarily. But the costs continue to accumulate personally, professionally, and systemically. And that system is increasingly aware of the problem and fighting back. If you have this tendency, you should fight it back as well.
(Image source: "Single Combat to be decided by the judgement of God." From a miniature in the "Conqêtes de Charlemagne," a Manuscript of the Fifteenth Century, in the National Library of Paris. Internet Archive Book Images/Wikimedia Commons/No Restrictions)
Monday, March 25, 2019
The following is a guest post by Prof. Teri McMurtry-Chubb, Professor of Law at Mercer University School of Law.
On Friday, February 17, 1978 the Chelsea Chapter of the N.Y. Committee to Overturn the Bakke Decision (NYCOBD) met to strategize how best to influence the Supreme Court decision in Regents of the University of California v. Bakke. The purpose of the meeting was to strategize under the banner of the National Committee to Overturn the Bakke Decision (NCOBD) as it planned a unified “March on Washington” in protest. In keeping with the call to arms espoused by its sister chapters throughout the United States, Chelsea NYCOBD boldly stated in its meeting flier:
Fight Racist Attacks on Affirmative Action Programs!
In the spring, the U.S. Supreme Court will render a decision on the Bakke case – one of the most important cases in the last 25 years on the question of racial equality. The Bakke decision, which is based on the absurd and racist idea of “reverse discrimination,” is a serious attack on the rights of minorities to jobs and education. If the Bakke decision is not overturned by the court, affirmative action programs for minorities and women will be threatened with elimination. Join the growing anti-Bakke movement in our demands to: implement, maintain, and expand special admissions and other essential affirmative action programs for minorities and women at all levels of higher education and employment. Fight Racism. Overturn the Bakke Decision!
Although the NCOBD was not successful in overturning the decision, its act of grassroots organizing and educating the public is a primer on the importance of education to informed direct action. 41 years later, our contested, national conversation about affirmative action has continued with the Harvard Affirmative Action Case and the College Cheating Scandal. The scandal has caused us to (again) pause and ponder what is an elite education, who “earns” admission to America’s most prestigious educational institutions, and who deserves access to the America Dream. However, what about the lawyers who litigate these cases? Have you ever considered the views they hold about affirmative action in admissions and how their beliefs shape their discussions about the litigants and the arguments in their briefs that will ultimately become part of the jurisprudential landscape of affirmative action law?
This question, the question of how bias shapes lawyer analytical and reasoning processes, is the subject of a 6-year empirical research study I conducted involving student motion and appellate briefs generated from case files involving social justice issues. The study examines 576 brief submissions from 192 students on topics ranging from hostile work environment claims based on colorism, religion, and national origin to LGBTQIA students’ right to freedom of expressive association in creating the policies for their student organizations. I wanted to know if law student biases concerning race, gender, class, and sexuality colored their analytical and reasoning processes as they drafted the argument sections of their briefs, and if so to what extent. The focus of one of the case files (the universe in which students litigate) was an African American man ranked in the 75th percentile of all law school applicants who was denied admission to law school, even when White legacy students were admitted despite being consistently ranked in the lower 25th percentile of all applicants. The claimant sued the University on grounds that the law school’s legacy admissions policy was an unconstitutional affirmative action program - he argued that a White student “took his seat” in the 1L class. The Bakke case and its progeny were the controlling authority.
Student attitudes about colorblindness led approximately 85% of them to make legal arguments flawed by bias in the first drafts of their briefs. For example, students representing the claimant analyzed his racial classification, “African American,” when the race of the legacy admits, “White,” was the racial classification at issue in the lawsuit. Student arguments advanced the notion of color-blindness or the phenomenon of “not seeing color.” Moreover, students representing the University argued for diversity as a compelling state interest even though the legacy admissions policy favored White applicants over applicants of color - a losing proposition for the University. Simply, they could only see race or ethnicity as anything other than White. These arguments based on biased assumptions led students to make arguments that were incorrect and inconsistent with the major tenets of the Bakke decision, and ultimately contrary to their client’s interests.
The good news is that with critical pedagogical interventions, teaching methods aimed at problematizing students’ biased assumptions, students course corrected their attitudes from color-blind to color-conscious. Approximately 82% of all student final appellate brief submissions, the final assignment submitted by students in the study, evidenced a critical engagement with issues of race and class in higher education admissions policies. Students made arguments that recognized “White” as a racial category of analysis in affirmative action jurisprudence, “legacy” as a function of class hierarchy, and the connection between the two. Most importantly, students continued to engage with each other and their peers around these issues after their time in the study ended.
Law firms, public interest and government agencies should note that unless their attorneys have been taught to recognize and disrupt their biases with respect to race, class, gender, and sexuality, it is probable that they will replicate these biases as they interpret the law and develop the analytical frameworks in their briefs. A heart for justice does not necessarily mean that lawyers will do justice. Rather, it is imperative that legal educators and the bar actively implement interventions to make attorneys aware of how their arguments replicate structural and societal inequities. We can do no less if our expectation is that attorneys serve their clients with excellence and an eye toward equity. You can read a detailed analysis of the study in my article The Practical Implications of Unexamined Assumptions: Disrupting Flawed Legal Arguments to Advance the Cause of Justice, 58 Washburn Law Journal ____ (forthcoming 2019).
Saturday, March 23, 2019
You never get a second chance to make a first impression.
They say that the journey matters more than the destination--but I say it's neither. It's the beginning that matters most.
The beginning is everything. The beginning of your briefs will color everything else that comes after. Same goes for the beginning of your sections, your paragraphs--and even your sentences.
Readers can't help but be swayed by the beginnings. It's science--indeed, one of the most studied phenomena. The moment that your reader picks up your document they start making judgments about you. Some are explicit and some are implicit. And these initial ideas--these judgments about things like your credibility and competency--are nearly impossible to shake. The psychology literature is full of studies showing that even when faced with proof that we were wrong, we humans have a real problem changing our first impressions.
Some of the reason is that once we make initial judgments, we are constantly looking for evidence that we're right about them--also known as confirmation bias. So if your reader spots a poorly written sentence at the outset, their mind can't help but look for more bad writing as they go. Also important is that those first sentences will spark emotions in your readers (either favorable or not). And fascinating studies suggest that sundry other biases (like our hatred of uncertainty, our reliance on imperfect information, and the effects of priming) all conspire to make first impressions count more than they should. Indeed, in multiple studies, readers have distorted facts so that they would conform to their prior impressions.
Mountains of research leave no doubt: We can exponentially increase the persuasiveness of our writing by making the right first impressions on our readers. So how do we do it?
Books could be written about crafting the right lead-ins for your briefs, sections, paragraphs, and sentences. I'm in the middle of some research on this topic right now, and I've read at least 100 studies on everything from affective theory to the uncertainty theorem to choice theory--all of which have something to say about why beginnings are so important.
For now, I thought I'd share some examples of lawyers and judges who are masters of getting off on the right foot. As you read through, I think you'll agree that several best practices stand out:
1. Write with incredible pith at the outset. Top legal writers put their best material in the start.
2. On the flipside: bad writing is nowhere to be seen in the beginnings. That goes for typos, odd constructions, or simply poor word choice or dense sentences. So no long acronyms, strings of cites or party names, or anything else that will bog things down. Leave that stuff for after you've made your impression.
3. Counteract any biases or assumptions your reader has going into things. This helps put them in a better frame of mind when you get to the meat of your arguments.
4. Figure out how you can incorporate key themes, facts, rule statements--or whatever else is most helpful to getting your reader to agree with your ultimate pitch. Often the best way to do this is to pluck memorable phrases or words from the body.
5. Consider how you can put your reader in the right emotional state. If you want them outraged when they get to the details, prod them. If you want them thoughtful, subtly lead them there.
6. Direct dialogue can be a helpful tool to connect with your reader on a deeper level, too. As can all the other rhetorical and style tools that get your readers to listen carefully to the important stuff.
Let's start with a Judge on the 11th Circuit. Below is the first paragraph of her opinion. Note how she takes your assumptions about what a "felony battery" is and blasts them out of the gate. Note also the fantastic style: a well-placed colon, followed by two short conjunctions--and a well-balanced trio of sentences with a medium, short, and longer one to finish. Finally, the judge incorporates her theme: this is a term of art that should be defined by legal analysis and precedent, not gut reactions to what seems "violent."
No question about it: a crime called “felony battery” sure sounds like a violent crime. But sometimes intuition can be wrong. So we evaluate whether a crime qualifies as a crime of violence under the federal definition of that term of art by conducting legal analysis and applying Supreme Court precedent.
Here's an opening sentence from Judge Wood on the Seventh Circuit in the Brendan Dassey case. This is easily the best sentence of her dissent. The theme is blaring: this confession was a script provided by police. And the style is excellent. It's also a great example of a long sentence done right. The phrases in between the punctuation are all well balanced and clear, with little room to get lost:
Psychological coercion, questions to which the police furnished the answers, and ghoulish games of "20 Questions," in which Brendan Dassey guessed over and over again before he landed on the "correct" story (i.e., the one the police wanted), led to the "confession" that furnished the only serious evidence supporting his murder conviction in the Wisconsin courts.
Moving to the paragraph level in that same case, Judge Wood continues paying close attention to her first sentences. She persuasively frames what comes after by juxtaposing what the court of appeals should have done with what they did do:
If the Wisconsin Court of Appeals had done what it should have, it could not reasonably have concluded that Dassey's confession was either voluntary or reliable (both of which are required for the use of a confession to be consistent with due process).
And another great first sentence, this time a not-so-subtle effort to color how readers will review a set of facts:
Just as importantly, a closer examination of the supposedly reliable facts on which the majority relies shows that they are no such thing.
And finally, Judge Wood leads into a final section with a sentence that leverages the persuasive power of the judges that agreed with her position, as well as a reference to the particular rule of law that supports her view:
As the district court and the panel majority recognized, we have before us just such an extreme malfunction.
Here's an opening salvo in another federal appellate dissent. Again, so much of the persuasive theme is packed into two sentences. Even the key language that forms the crux of the disagreement. The reader could stop there and get the point. Another great move, not necessarily about first sentences--the author gives the majority's argument a name, the "capacity test." Naming things is a powerful tool--either to frame an opposing argument persuasively or to give your a reader a memorable slogan for your own pitch:
The Majority derives its capacity test from a single sentence in Curtis Johnson: “[T]he phrase ‘physical force’ means violent force—that is, force capable of causing physical pain or injury to another person.” To the Majority, the word “capable” in that sentence is dispositive, establishing a capacity-based definition of “physical force.”
Here's another great opening sentence, this time for a section, which offers specific, tactile examples of a concept:
Touching, tapping, pinching, and other actions involving limited, non-violent contact do not constitute “physical force.” But kicking, striking, punching, and other actions that are associated with violence do constitute “physical force.”
Take this opening line from Judge Davis in a concurrence. Lots of pith and poignant examples to drive his persuasive pitch home:
Our country has a long and ignominious history of discriminating against our most vulnerable and powerless. We have an equally long history, however, of brave individuals-Dred Scott, Fred Korematsu, Linda Brown, Mildred and Richard Loving, Edie Windsor, and Jim Obergefell, to name just a few-who refused to accept quietly the injustices that were perpetuated against them.
This is another great opener from a dissent. Leading with the key persuasive fact--the absurdity of the numbers--puts readers in the right emotional state--skeptical.
In this case the defendant Van Buren County took property worth $206,000 to satisfy a $16,750 debt, and then refused to refund any of the difference. In some legal precincts that sort of behavior is called theft.
Judge Ed Carnes us a great purveyor of first sentences. Here's a stylistic intro that uses a rhetorical flourish: "verbal sleight of hand":
First, we think it unlikely that the Supreme Court would engage in the verbal sleight of hand that Vail-Bailon attributes to it.
Later in that same opinion, Judge Carnes sums up with a pair of emdashes the critical distinguishing facts in the critical authority:
The Court’s concern in Leocal—that the DUI crime at issue did not require the intentional use of any force at all, and that a defendant might be convicted of it after engaging in accidental or at most negligent conduct—is not a concern here.
Perhaps no one is a better first-sentencer than Justive Kagan. Look how simply the Justice sets up--what she thinks--is the key question. This move, anchoring the analysis at the start by controlling the governing question, heavily controls how readers will see the analysis after. Justice Kagan also explains the concept twice in different words, ensuring that her key point is driven home:
In this case, we consider a federal court’s inherent authority to sanction a litigant for bad-faith conduct by ordering it to pay the other side’s legal fees. We hold that such an order is limited to the fees the innocent party incurred solely because of the misconduct—or put another way, to the fees that party would not have incurred but for the bad faith. A district court has broad discretion to calculate fee awards under that standard. But because the court here granted legal fees beyond those resulting from the litigation misconduct, its award cannot stand.
Justice Kagan keeps hitting at the beginnings. Here's an initial paragraph that sets the stage for a section by clearing away the chaff. You'll also see especially excellent style (hallmark-Kagan dialogue with the reader, parallelism in her questions, and great sentence-length balance):
It is an oddity of this case that both sides agree with just about everything said in the last six paragraphs about the pertinent law. Do legal fees awarded under a court’s inherent sanctioning authority have to be compensatory rather than punitive when civil litigation procedures are used? The Haegers and Goodyear alike say yes. Does that mean the fees awarded must be causally related to the sanctioned party’s misconduct? A joint yes on that too. More specifically, does the appropriate causal test limit the fees, a la Fox, to those that would not have been incurred but for the bad faith? No argument there either. And in an exceptional case, such as Chambers, could that test produce an award extending as far as all of the wronged party’s legal fees? Once again, agreement (if with differing degrees of enthusiasm). All the parties really argue about here is what that law means for this case.
Justice Kagan also knows how important it is to not bog down her first sentences with a lot of needless details. Like here, where she foregoes listing out all the defendants (but still includes the plaintiffs--all sympathetic family members who she keeps in for good reason):
Respondents Leroy, Donna, Barry, and Suzanne Haeger sued the Goodyear Tire & Rubber Company (among other defendants) after the family’s motorhome swerved off the road and flipped over.
First Circuit Judge Barron shows off his first-impression chops in the famous comma-case. Style and all the key details to put the reader in the right frame of mind:
For want of a comma, we have this case. It arises from a dispute between a Maine dairy company and its delivery drivers, and it concerns the scope of an exemption from Maine's overtime law. Specifically, if that exemption used a serial comma to mark off the last of the activities that it lists, then the exemption would clearly encompass an activity that the drivers perform. And, in that event, the drivers would plainly fall within the exemption and thus outside the overtime law's protection. But, as it happens, there is no serial comma to be found in the exemption's list of activities, thus leading to this dispute over whether the drivers fall within the exemption from the overtime law or not.
In one of my favorite judicial opinions of late, Judge Thompson crafts an excellent first impression here by using some rhetorical moves and fresh transitions to deliver his key theme:
This is the third and final installment in a trilogy of published decisions in the direct appeal from a judgment of conviction entered against the defendant, Mark J. Zimny. In the opener, we remanded for the district court to conduct an investigation into a colorable allegation of juror misconduct. In the sequel, we addressed Zimny's request for bail pending appeal. Now, in the finale, we tackle Zimny's new claim that the district court erred in conducting its juror-misconduct investigation, as well as the two remaining issues upon which we reserved judgment in Zimny I.
Later, Judge Thompson uses a quote from the losing party to trounce their position:
But, contrary to Zimny's insistence, the purpose of the remand was not “to investigate the potential that the jurors' memories may have faded in the interim since trial.” Rather, the purpose of the remand was to determine whether the juror misconduct alleged in the additional-juror comment actually occurred.
And who could forget Judge Willett? This is one of my favorite first impressions of all time. After reading these opening paragraphs, it's hard not to be persuaded by whatever comes after. The style is impeccable (check out his choice verbs, for one thing). The framing is fantastic ("the text is king"). Multiple rhetorical flourishes convince his readers that he's worth listening (among other things, two sets of echo phrases). And he never takes it too far:
The lion’s share of modern appellate judging is reading legislative language and decoding what it means. On that score, our interpretive precedent favors bright lines and sharp corners. If a case can be decided according to the statute itself, it must be decided according to the statute itself. This is a bedrock principle.
Today’s case asks whether a notice provision in the Texas Premium Finance Act should be read as written, or instead whether the Court should adopt a “substantial compliance” approach that excuses slip-ups. We opt for the former. The Legislature has codified “substantial compliance” throughout Texas law—including in other Insurance Code notice provisions—forgiving less-than strict conformity with various statutory commands. But it did not do so here. We decline to engraft what lawmakers declined to enact.
And to round things out, Circuit Judge Wilson. He makes his first impression here by leading off with some direct dialogue and a hypothetical that gets his readers thinking:
If, while walking down the street, you tap a jogger on the shoulder and the tap startles him, causing him to trip, hit his head, and suffer a concussion, have you committed a violent act? Most would say no. But if you punch the jogger and the punch causes him to fall, hit his head, and suffer a concussion, you have undoubtedly committed a violent act. The difference between a non-violent and violent act, then, is the degree of force used. Both a tap and a punch are capable of causing great bodily harm, but a tap involves a limited degree of force while a npunch involves a substantial degree of force. Or, in the words of the Sentencing Guidelines, a punch involves “physical force.”
Joe Regalia teaches at Loyola University School of Law and practices at King & Spalding LLP in Chicago. The views he expresses here are solely his own and not intended to be legal advice. Check out his other articles here.
Tuesday, March 19, 2019
As an appellate attorney, I often find myself serving as both attorney and counselor to trial lawyers. As an appellate attorney at trial, I am trying to make sure error is preserved and that we are right on the law and its presentation to the court. As a counselor, I often find myself trying to calm down the rhetoric and rancor.
While the days of "Rambo litigation" have died down a bit, there is still a strong current of thinking in the law that if you aren't being angry and contentious, you just aren't passionate enough about your case. I have always disagreed. I believe that passion is important, but that you can be passionate without being contentious, and that courtesy, instead, is actually more persuasive. Over time, that belief has proven out, as I hear from judges and justices and juries about how they perceive the bluster in a negative light.
A few months ago, Professor Peter Huang published an article explaining a bit more about (among other things) the economic costs of lawyer hostility and unhappiness. It is an interesting read. Here is the link to the article: https://content.sciendo.com/view/journals/bjals/7/2/article-p425.xml
While the first part of the article largely recounts Huang's (extraordinary) journey through higher education, what caught my attention was his discussion of lawyers, mindfulness, and happiness. Huang was a professor of mathematics and economics before he went to law school and became a law professor, and his insights into the profession are unique.
For instance, Huang notes studies showing that students tend to enter law school focused on intrinsic values, like the desire to do good, help the vulnerable, and improve society in general. By graduation, they have been altered, and tend to focus on extrinsic values relating to class rank, grades, honors, and salary offers. This journey leaves them scarred: one survey of law students showed that one-quarter to one-third of respondents reported frequent binge drinking or misuse of drugs, and/or mental health challenges, while another Yale survey showed that 70% of the law students surveyed suffered from some type of mental health issue.
Worse yet, when they graduate, they often see that their hostility is financially rewarded, and this behavior is reinforced. Some clients seek out "Rambo" lawyers who will be argumentative and antagonistic, thinking such attorneys are the most effective. And the rules of civil and criminal procedure often appear to incentivize and reward that mindset. Thus, Huang reasons, "An economically-minded observer might simply characterize the unhealthiness of law practice and law school as just additional costs of being a lawyer and law student, albeit emotional health, mental health and physical health costs that are hard to perhaps measure, observe, quantify, and verify."
Those costs, while difficult to measure, are simply too high. Lawyers are the most frequently depressed occupational group in the United States. To cope with that depression and anxiety, many lawyers self-medicate with alcohol or drugs. Attorney overdose and suicide rates are very high. This has not only a personal cost, but a professional one as well.
Huang leaves out another category of costs: the perception of our judges and juries. One need practice only a short time to discover that judges negatively view hostility in those who appear before them. Credibility before the court is hard to quantify, but communication theory since at least Aristotle suggests that its loss has a high (and lasting) cost in lawyer effectiveness before our increasingly frustrated courts.
But even without those costs in his calculations, Huang notes that a recent meta-synthesis of several empirical studies revealed that both clients and attorneys tend to value "soft skills" that relate to empathy and integrity more than they do "hard" expertise. Attorneys value the ability to assess deals and propose solutions, the ability to assess and mitigate risks, honoring commitments, delegation to and management of support staff, integrity and trustworthiness, keeping information confidential, punctuality, and treating others with courtesy and respect. Clients, similarly, value lawyers who accurately estimate and clearly explain attorney fees, communicate with clients, are empathetic, listen well, are responsive to clients, are respectful, have strategic problem solving skills, are trustworthy, and who understand client needs. In other words, other lawyers and clients do not value naked aggression as much as they value other skills that are incompatible with that approach.
What, then, can we draw from this? Huang and the resources he cites (as well as personal experience) indicate that the costs of hostile "Rambo" litigation are simply too high to justify any value that might be perceived to lie in such conduct. This attitude and practice does not lead to personal happiness, but rather leads to high personal costs as well as a loss of credibility with the legal community and courts. And all in the name of trying to enhance one "skill" of questionable worth, while eliminating many other soft skills that clients find truly valuable.
You can be a zealous advocate without being a jerk about it. I have always believed it's the right way to practice, and my anecdotal experience is that it is more effective. It's good to know it makes sense empirically, too.
(Image credit: Scene from a December 1883 incident in a Prescott, Arizona courtroom during the trial of Kelsey v. McAteer, source unknown (likely the local Prescott newspaper), wherein the attorneys' fight over the admissibility of an affidavit escalated into a battle with a knife and gun in the courtroom. For more information: https://www.historynet.com/disorder-in-the-court-the-lamentable-occurence.htm).
Wednesday, March 13, 2019
Writing a good statement of the case is a lot like walking a tightrope in the wind. There is such a fine balance involved in providing the court with an understanding of how a case arrived before it, explaining what happened, ethically disclosing all relevant information, and zealously advocating for your position. A statement of the case includes both the procedural history of the case itself, and the factual history forming the basis of the legal issues before the court. And, herein, lies the beginning of the balancing act. I certainly adhere to ideas that we lead with our most affirmative statements, that readers remember the first and last things they read, and that we can minimize the impact of unfavorable facts simply by tucking them in the middle of a sentence or a paragraph. I advocate strongly for the purposeful use of passive voice to further distance yourself from negative facts. I have read briefs where every sentence, and every paragraph, has been drafted with maximum persuasive impact in mind. I certainly applaud the diligence of the authors of these briefs, and understand the desire to take advantage of every opportunity to persuade. I also note that reading such statements of the case can be exhausting.
To me, reading such briefs is like riding a bicycle uphill… all the time. I need to coast from time to time. A well-balanced statement of facts allows for both the emotional appeal, and the opportunity to coast through basic information. For instance, that a complaint was filed or even when it was filed may be presented fairly neutrally without undermining the general persuasiveness of the statement. In addition, I often suggest to my students that they separate descriptions of places, things, and sometimes people, from the story itself. These descriptive paragraphs help to orient the reader and can give the reader a moment to coast before embarking on what will hopefully become a very compelling journey. I believe that such information can be shared in a fairly neutral fashion without undermining persuasive impact.
I also, however, offer words of caution. Do not begin a story, and then abruptly stop the telling in order to describe a person, place, or thing. Just as you have your reader picturing the car stuck on the train track, and hearing the train whistle approaching, do not interrupt the reader in order to describe the town in which the impending collision is likely to occur, or the restaurant in which the lone witness sat. Describe the town first, so the reader better pictures the events happening. Bolster testimony, after you’ve completed the story, by showing the reader what a great vantage point the witness had. By being mindful of where you place the descriptions, you protect the reader from jarring interruptions.
By separating descriptions from the story itself, and by relegating mundane information to its rightful neutral place, you will vary the cadence of story itself. This variety will make your statement of the case more persuasive as you give your reader an opportunity to relax and absorb the impact of the story itself.
Tuesday, March 12, 2019
As lawyers, we work in words. In “The Simple Secrets for Writing a Killer Brief,” Daniel Karon encourages us to have a “writer’s toolbox.” In his article, Mr. Karon lists the books in his toolbox, which he describes as "a modest but functioning writing library."
While I also have a "modest but functioning writing library," I use more than books to help me write. Over the next several posts, I will explore different facets of my writer’s toolbox. I will describe my electronic writing bank, writing journal, and tech tools.
Today, I focus on my writer's library.
I have shelves full of books on writing. Some of these books, if I’m honest, I never open. Others are well-worn with use. Below are some of my favorite writing resources:
Aspen Handbook for Legal Writers - A Practical Reference by Deborah E. Bouchoux [ISBN: 9781454889335]
This book does more than list grammar rules. It provides writing and proofreading tips specifically for legal writing. I like that it incorporates legal-citation rules for capitalization and abbreviations along with the grammar mechanics. The index is thorough and helps me quickly locate what I need in the text.
Plain English for Lawyers by Richard C. Wydick & Amy E. Sloan [ISBN: 978-1-5310-0699-0]
This is my "Strunk and White" for legal writing. It is a simple, short, and straightforward guide to writing well. Read this book. Implement its suggestions. You will become a better writer.
The Bluebook - A Uniform System of Citation (20th Edition) compiled by the editors of the Columbia Law Review, the Harvard Law Review, the University of Pennsylvania Law Review, and the Yale Law Review [ISBN 978-0-692-40019-7]
My clerkship with the Pennsylvania Supreme Court taught me that judges care about citation. Judges are meticulous about citation in their writing and respect attorneys who are as well.
I cut through the massive amount of rules in The Bluebook by using the "Quick Reference" section on the back cover, the Bluepages, and index. I tab pages for rules on cases, statutes, quotations, and abbreviations.
The Bluebook Uncovered: A Practical Guide to Mastering Legal Citation by Dionne E. Anthon [ISBN: 9781634595377}
This book translates The Bluebook into understandable English. It helped me comprehend some of the more complicated, convoluted citation rules. When I have a citation question, I consult this book first.
A Practical Guide to Legal Writing and Legal Method by John C. Dernbach, Richard V. Singleton II, Catherine S. Wharton, Catherine J. Wasson, and Joan M. Ruhtenberg [ISBN: 9781454889359]
This book provides step-by-step instructions for every part of the brief-writing process. It is direct and easy to understand. Each chapter contains numerous examples.
Just Briefs by Laurel Currie Oates, Anne Enquist, and Connie Krontz [ISBN: 9781454805540]
This is a great resource on persuasion. It explains how to engage the court through effective advocacy. The critiquing checklists for each section of a brief are invaluable.
My final go-to reference is an app. I use both the dictionary and thesaurus features.
What's in your writer's library?
Please share your favorite resources in the comments section. I would enjoy hearing and learning from you.
Wednesday, March 6, 2019
Like a lot of advocacy professors, I'm an avid consumer of social-science literature on persuasion, decision-making, and pedagogy. And I'm a fan of efforts by law professors to apply this literature to what advocates do. Sure, we've got to be humble and cautious: I and many of the law professors with interest in this area aren't trained scientists or statisticians, and stuff like the Social Sciences Replication Project and the hubbub over power posing offer healthy reminders that it's possible (even easy, sometimes) for folks trained in the right disciplines to get out over their skies. As Ted Becker points out, we in the persuasion business don't really know much about what really persuades judges. But much of the good, humble, cautious work helps us at least start down the path of sorting out techniques that work from techniques that we adopt just because they're the way we do things. There is a wealth of interesting work being done in this area related to persuasive writing and legal reasoning: Kathy Stanchi's body of work on psychology and persuasion is remarkable; Lucy Jewel's piece on old-school rhetoric and new-school cognitive science is a revelation; Steven Winter's work broke fascinating ground in knitting together cognitive science and legal reasoning. I could mention dozens of other scholars here: exciting things are happening.
We don't have a similar volume, as yet, of scholarship linking social science to oral advocacy. Still: I'd like to devote a few posts to highlighting a couple of pieces that I find particularly useful in refining the advice I give to advocates and in polishing my own performances.
I think it's fair to call the first a classic in the field: Michael Higdon's Oral Argument and Impression Management: Harnessing the Power of Nonverbal Persuasion for a Judicial Audience, published in the Kansas Law Review in 2009. Professor Higdon offers a rich, comprehensive overview of research into the seven basic codes of nonverbal communication: (1) kinesics (i.e., what speakers do with their bodies); (2) physical appearance (i.e., what speakers look like); (3) vocalics (i.e., what speakers sound like); (4) haptics (i.e., how speakers physically touch an audience member); (5) proxemics (i.e., how speakers use physical space); (6) environment and artifacts (i.e., how speakers use instruments and their environment); and (7) chronemics (i.e., how speakers manages time). And he thoughtfully applies that research to what lawyers do in appellate oral argument.
I find Higdon's piece particularly useful in sorting out advice on things like the use of gestures. Quite often, beginning appellate advocates will do stuff with their hands that distracts judges. So they'll get categorical advice: don't talk with your hands. And they take that advice ... and promptly get told by the next set of judges not to be so stiff and nervous. Higdon's piece details research spanning several decades that makes it clear that any "don't use your hands" advice is flatly wrong: gestures are essential to effective in-person communication generally, and they're especially vital to persuasion. But there's a catch: only those gestures that are "synchronized with and supportive of the vocal/verbal stream" enhance comprehension and persuasion. The lesson that emerges: advocates should use purposeful gestures that match and support the points they make verbally, but avoid gestures that simply accompany the verbal stream. So use the hands to help you make a point, but don't let your hands flap around randomly to accompany your talk.
Higdon's points on speed of delivery (somewhat fast is actually good, so long as it doesn't flatten out a speaker's pitch and tone) and on managing the judges' dominance are similarly illuminating. If it is read as widely as it should be, the generations of appellate advocates will tilt their heads eight degrees to the right (see p. 643). And win.
Tuesday, March 5, 2019
There are times when we, as advocates, must argue for a change in the law. Going into the case, we know that the law, as it exists, is against our clients. Our job in those cases is to be candid and admit this, and then argue that this law must be changed. To do so, we need to examine the history and reasoning behind the law, look for allies who might have questioned it in the past, and not feel tied to earlier justifications that may have lost their appeal over time. Our job is made easier when that work reveals that the law has become unmoored from the reasons that justified its genesis.
Civil forfeiture – the idea that the state can take any item arguably involved in the commission of a crime, regardless of the fault of the owner – is one such area of the law. The Supreme Court recently ruled that state civil forfeiture awards are subject to constitutional challenge under the excessive fines clause of the Eighth Amendment. Timbs v. Indiana, No. 17-1091, 2019 WL 691578 (Feb. 20, 2019). But there is a bigger problem with civil forfeiture: it has lost its connection to historical justifications.
Justice Thomas raised this concern when he issued a statement on denial of certiorari in Leonard v. State of Texas, 137 S.Ct. 847 (2017) (mem.). After briefly analyzing the origins of the law, he concluded that “[w]hether this Court’s treatment of the broad modern forfeiture practice can be justified by the narrow historical one is certainly worthy of consideration in greater detail.”
A brief look at the historical foundations of modern civil forfeiture statutes reveals how badly they totter when asked to support the modern practice. For instance, the Bible is often cited as a source for the law, where, in Exodus 21:28, it is said that “if an ox gores a man or a woman to death, the ox shall be stoned, and its flesh shall not be eaten, but the owner of the ox shall not be liable.” However, even a cursory look at this passage reveals no mandate that the state gets to eat the ox. Rather, this verse stands for the principle that if an animal causes unexpected injury, only it should bear the cost and no one should profit from the resulting death. This is also in accord with the Talmudic interpretation.
Sometimes, ancient Greek law is quoted, where inanimate things that cause death were cast out beyond the borders. Other times, ancient practices with impressive sounding names like “deodand,” “wergild,” and “bane” are cited. But in each case where early examples are found, the ancient practice is distinguishable. It was only in the English common law that something similar to our current American systems was found, and then only because the state replaced the church as the beneficiary of the proceeds of sale of an item (or ship) that caused injury, largely because it could. When we adopted that common law, this practice found its way into our legal system. The fact that Great Britain later discarded the practice when it adopted wrongful death actions providing for recovery directly to the victim’s family (at the urging of railroad companies alarmed at the potential for loss) apparently went unnoticed.
Oliver Wendell Holmes, Jr, noted that, in 1881, this was already a very common and recognizable phenomena in the development of the law:
The customs, beliefs, or needs of a primitive time establish a rule or a formula. In the course of centuries the custom, belief, or necessity disappears, but the rule remains. The reason which gave rise to the rule has been forgotten, and ingenious minds set themselves to inquire how it is to be accounted for. Some ground of policy is thought of, which seems to explain it and to reconcile it with the present state of things; and then the rule adapts itself to the new reasons which have been found for it, and enters on a new career. The old form receives a new content, and in time even the form modifies itself to fit the meaning which it has received.
After analyzing this growth and the history of civil forfeiture, in particular, he had this to say:
The foregoing history, apart from the purposes for which it has been given, well illustrates the paradox of form and substance in the development of law. In form its growth is logical. The official theory is that each new decision follows syllogistically from existing precedents. But just as the clavicle in the cat only tells of the existence of some earlier creature to which a collar-bone was useful, precedents survive in the law long after the use they once served is at an end and the reason for them has been forgotten. The result of following them must often be failure and confusion from the merely logical point of view.
Oliver Wendell Holmes, Jr., The Common Law, chapter 1 (1881).
And yet, almost 100 years later, the Supreme Court cited the passage in Exodus, the law of deodand, and Holmes’ discussion of other historical antecedents in concluding that a civil forfeiture statute that permitted the forfeiture of a yacht without first proving the guilt of the owner was constitutional, largely because it was ancient. Calero-Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663, 680–686 (1974). No mention was made of Holmes’ conclusion that this historical analysis gave no real support for modern civil forfeiture.
Not surprisingly, a long catalogue of abuses followed.
In Tenaha, Texas, while Jennifer Boatright and her children rode through town on their way to buy a used car, she has stopped by the police for driving too long in the passing lane. When the police found the cash she was carrying to buy the new car, they took it. At the station, Boatright was given the option of forfeiting the cash and being released without charge, or going to jail for suspected money laundering and child endangerment, while her children were taken by CPS. She chose to keep her children.
In Emporia, Virginia, when Victor Ramos Guzman was stopped for speeding, the officers searched his vehicle and found $28,000 in cash. The driver was a Pentecostal Church secretary from El Salvador, who explained (and later proved) that he was taking the money - donated by parishioners - to buy a parcel of land. Although no contraband was discovered, the money was seized.
In Philadelphia, a couple's home was seized after their son was arrested for making a $40 drug deal inside.
More recently, Tyson Timbs was arrested in Indiana for selling less than $400 worth of heroin. Although the maximum fine for his offense was $10,000, the police opted to seize his $42,000 Land Rover, bought with insurance proceeds from his father's death. This was the case that eventually rose to the Supreme Court.
These and other cases are often referred to as examples of “policing for profit.” The catalog of abuses is impressive, and the effect is disproportionately felt by the poor, who often cannot afford to challenge the seizures. These statutes are far removed from the original idea that no one should profit when an animal or inanimate object causes a death. And yet there are still efforts to justify these actions by referencing their ancient antecedents.
Civil forfeiture statutes are an important tool for law enforcement departments faced with sophisticated drug operations transporting drugs and laundered cash across the country. Reform efforts requiring guilt on the part of the owner and limitations on police department spending have helped rein them in. But they must also be tempered by constitutional concerns, no matter what ancient civilizations may have to say (or not say) on the subject.
Holmes’ reasoned that “[t]he history of what the law has been is necessary to the knowledge of what the law is.” This history is also important to understanding what the law should be. The historical supports given for civil forfeiture statutes do not bear the weight of many modern civil forfeiture schemes. It should not have taken us this long to figure that out, given an honest review of their history.
(Image credits: "Trial of a sow and pigs at Lavegny" from Chambers Book of Days (1864). According to the book, “Among trials of individual animals for special acts of turpitude, one of the most amusing was that of a sow and her six young ones, at Lavegny, in 1457, on a charge of their having murdered and partly eaten a child. … The sow was found guilty and condemned to death; but the pigs were acquitted on account of their youth, the bad example of their mother, and the absence of direct proof as to their having been concerned in the eating of the child.”)
Tuesday, February 26, 2019
Occasionally, there is no binding precedent for an issue. The appellate courts in a jurisdiction have not addressed the issue, and courts outside the jurisdiction have adopted differing rules. After reviewing the different rules, you may prefer one rule over another because it leads to a more favorable outcome. Before you can argue how this rule applies to your case in your brief, you must convince the court to adopt the rule you prefer. At Commonwealth Law, the legal writing professors refer to this as “the battle of the rules.”
I encountered my first “battle of the rules” when writing a brief for a moot court competition in law school. Initially, the issue intimidated me because it felt different from the analysis I had been taught. As I encountered more “battle of the rules” issues in practice and teaching, I developed some pointers for how to wage, and hopefully win, the battle.
Battle Strategy #1: Help the Court Understand Its Options.
You may be tempted to begin your argument by describing all the reasons why the court should adopt the rule you prefer. These arguments could be confusing if the court does not appreciate that this is a “battle of the rules” issue. It is better to start by explaining that there is no binding precedent on the issue. Then, provide a brief description of the different rules available based on persuasive precedent. Educate the court on rule A and rule B, even if you want the court to adopt rule B.
Battle Strategy #2: Explain Why the Rule You Prefer Is the Best.
To sway a court toward your preferred rule, rule B, explain why it is the best rule for society in general and your jurisdiction in particular. Focus on the impact of the rule. Rule B may be more easily applied by law enforcement officers in the field. Rule B may align with policies foundational to the area of the law, such as torts or contracts. Also, argue why the other rule, rule A, is not a good choice. Rule A may open the floodgates to litigation and clog court dockets. Rule A may place an onerous burden on a segment of the population. The reasons you provide in favor of your rule and against the other rule should be supported by authority, as explained in my next point.
Battle Strategy #3: Anchor Your Argument in Authority.
When asking a court to wade into uncharted waters, provide the security of authority. Cite to courts that have adopted the preferred rule. Courts may be persuaded to adopt a rule if most jurisdictions have done so or if it appears to be the current trend. If some states have enacted statutes or regulations similar to the preferred rule, cite to them. It is particularly persuasive if you cite cases or legislation from sister jurisdictions. Alternatively, you may be able to analogize your “battle of the rules” issue to an issue with settled law. For example, argue that a court should recognize a constitutional right by drawing a parallel to other well-established constitutional rights. Finally, secondary sources may lend support for your arguments. Law review articles, model codes, or restatements can be helpful additions to the legal authority you provide.
Battle Strategy #4: Use CRAC to Organize.
Use the traditional organizational scheme of conclusion, rule, application, and conclusion (CRAC) to set forth your “battle of the rules” argument.
First, state the conclusion. Tell the court what rule you want it to adopt. “This Court should adopt Rule B because it is consistent with the remedial purposes of tort law.”
Second, discuss the rule options. Begin by explaining that there is no binding precedent for the issue. Then, help the court understand the rules it could adopt. Cite to authority for all rule options.
Third, describe the impact of applying the preferred rule. Argue that the preferred rule will be better for society. Respond to your opponent’s arguments as to why another rule is better. Cite to authority to support these arguments.
Finally, restate your conclusion and reiterate the rule you want the court to adopt.
Battle Strategy #5: Study the Great Fights.
When you encounter a “battle of the rules” issue in practice, observe how the attorneys argued it and the court decided it. Collect effective arguments in your quiver so you are ready for your own battle. I give my students an excellent example of a “battle of the rules” argument from a brief written by one of my former colleagues at the Pennsylvania Office of Attorney General. You may access the brief, and the “battle of the rules” argument on pages 14–24, by clicking here.
Monday, February 25, 2019
Moot Court season is upon us. Law students from around the country are headed off to compete in a mock appellate arguments on a wide range of topics. This past weekend students competed at the Jeffrey G. Miller National Environmental Law Moot Court Competition (more commonly known as Pace). Students also competed at the San Francisco and Portland regionals for the National Appellate Advocacy Competition put on by the ABA. (Congrats to the teams from my school that both made it to the round of 5 at the San Francisco regional).
This coming weekend Boston and Philadelphia host their NAAC regional competitions. And, my school hosts the National Native American Law Student Association Moot Court Competition. We are looking forward to hosting 40+ teams from across the country to argue a difficult, but fascinating, Indian Law problem.
The University of Houston has already started tabulating the top moot court programs for its rankings. This year the current top 5 is Texas heavy:
- Loyola University
- South Texas
- University of Georgia
- University of Houston
I really love moot court. I love coaching, I love judging, and I love seeing students develop over the course of the weeks that they work on the problem. Moot court has many benefits for students. While it certainly teaches them teamwork, it also teaches them to be problem solvers and work independently. For most moot court competitions, students cannot receive any outside help on their briefs. For some competitions, they can't even receive substantive help during their oral advocacy practices. Moot court also teaches time management. Some of the major competitions, like the NAAC and the NNALSA, require students to brief over the winter holidays. Finally, moot court helps students learn to become excellent public speakers. I have heard that the number one fear that people have is public speaking. As a person who formerly hated public speaking, I know that the only thing that has helped me improve is practice, practice, practice. Moot court does that for law students.
Moot court has benefits for the local legal community too. Volunteering to judge provides you with more than a few free CLE credits, it allows you to think about and discuss an interesting area of law. Moot court problems are often centered around an interesting and unsettled area of the law--the kind of question your least favorite professor might put on a law school exam. It can be fun to get back into law school mode and ponder these questions (especially when you are asking the questions, rather than the other way around). I also think that moot court gives us hope for the next generation of lawyers. They can, and will, do great things. That is exciting.
But, despite the excitement, moot court isn't perfect. It isn't perfect because we all know that the briefs are way more important than the arguments in real life. It also isn't perfect because, just like in real life, gender stereotypes can rear their ugly heads. I was reminded of that this week when I saw an article on Law.com announcing that the first female appellate law clerk had passed away at the age of 94. Carmel Ebb, who graduated first in her class at Columbia Law in 1945, is believed by most to be the first woman to clerk for a federal appellate court judge. She clerked for Judge Jerome Frank on the Second Circuit. She interviewed for a Supreme Court Clerkship but, according to her obituary, “Her hopes were dashed when the justice concluded their conversation by saying he had no doubt she would be a fine clerk, but that his wife would never allow him to work in such close proximity to a woman.” Ms. Ebb went on to have a successful career, including making partner at a New York firm.
So how do gender stereotypes play a role in moot court? Next post I will look at an article on this topic.
Tuesday, February 19, 2019
As appellate writers, we are painfully aware of the fact that our readers aren’t terribly fond of our work product. Judges tell us that our briefs are simply tools, and that they are tired of trudging to chambers with boxes (or ipads) full of briefs that are too wordy, too obscure, and just too painful to read to be of much use. Judges, meanwhile, are accused of writing opinions that are too wordy, too obscure, and inaccessible to anyone but other attorneys.
It is understandable, then, that legal writers both on and off the bench try to liven things up. Like Ralphie in A Christmas Story, lawyers dream of turning in a piece of writing that, through shear skill, will temporarily lift our readers from their depression and convince them to joyfully deliver us our (client’s) wishes.
The use of literary allusion can help us make our writing more lively and informative. Allusions can build our credibility, illustrate the rightness of our position, and make our writing more accessible. But it is a two-edge sword: If used poorly, it can cause the reader to lose what little interest they had in our argument and even obscure our meaning.
Literary allusions can be very effective tools in legal writing.
The use of literary allusions is not universally praised. Indeed, Judge Posner, in his articles and book on the subject, Law and Literature, considers literature of little use to jurists, other than to serve as examples of good writing style. Nevertheless, most persuasive writing experts would argue that there are good rhetorical reasons to use literary allusions.
Aristotle identified three prongs of persuasion: ethos (credibility), pathos (emotional appeal), and logos (logical reasoning). Reference to literary allusion can assist with all three.
First, reference to “great” works can enhance the moral authority of the writer. Merely referencing Homer, Shakespeare, or a religious work such as the Bible, can confer some of the moral authority and weight of those works to the author. It can also demonstrate that the author is well read, and thus all the more to be trusted.
Second, quotations from literature can tie the emotion of the quoted work to the legal argument, invoking pathos. We are all taught to write narratively, because we are all storytellers and listeners by nature. Tying our characters to those of a great work ties the emotions inherent in those works to our characters.
Finally, allusion can help tie together a legal argument by way of illustration. There some general propositions that are difficult to state under stare decisis, but which seem immediately right when viewed through the eyes of literature. Thus, Aristotle invoked Sophocles’ Antigone to support his argument that respect for the dead is a universal law, as did Justice Kennedy, over 2000 years later. See Nat’l Archives & Records Admin. v. Favish, 541 U.S. 157, 168 (2004).
Make sure the allusion agrees with the law.
Justice Oliver Wendell Holmes wrote in his famous essay, The Path of the Law, “[t]he law is full of phraseology drawn from morals, and by the mere force of language continually invites us to pass from one domain to the other without perceiving it, as we are sure to do unless we have the boundary constantly before our minds.” 10 Harvard L. Rev. 457, 469 (1897). These boundaries have often been made apparent when allusions to moral works conflict with statutory sentencing schemes.
For instance, the Fifth Circuit had to step in and correct a criminal defendant’s sentencing when it was based on reference to Dante’s circles of hell rather than the sentencing guidelines. See U.S. v. Andrews, 390 F.3d 840, 850 n.23 (5th Cir. 2004) (“The district court seems more comfortable with sentencing Andrews based on Dante’s levels of hell, but such a sentencing scheme has not been accepted as the law in this or any other federal circuit.”). Dante’s opinions notwithstanding, it was the duty of the court to apply the law, not literature.
Nevertheless, there are times when literature can inform the sense of justice upon which the law is built. Thus, the Seventh Circuit permitted a judge to rely (in part) on Dante’s Inferno in refusing a federal prosecutor’s recommendation to depart downward from sentencing guidelines because, even though the refusal to depart was stated to be based, in part, on literature rather than law, this was merely a reflection of the discretion vested in the trial judge by the guidelines. See U.S. v. Winters, 117 F.3d 346, 348, 350 (7th Cir. 1997).
The lesson? Literary allusions can lend force to a legal argument, but they should not supplant it.
Let the reader discover the allusion.
It is often best to let the reader discover the answer themselves. This is particular true with allusions. A quotation often will have less force than the sudden recognition that you are inviting the reader into the argument based on their own experiences.
Bryan Garner, in his A Dictionary of Modern Legal Usage, gives an excellent of example of subtle allusions in legal writing. He cites to the dissent of Justice Robert W. Hansen of the Wisconsin Supreme Court, in Jones v. Fisher, 166 N.W.2d 175 (Wis. 1969) where he wrote: “The road that has brought us to the present state of affairs in regard to punitive damages in Wisconsin courts is a long one, paved with good intentions.” Id. at 182. As Garner notes, this formulations subtly suggests that the line of authority is a road to hell, allowing the reader to reach that conclusion themselves. Had Justice Hansen stated the aphorism directly, it would have been less effective.
Be sure the reader will recognize the allusion, or can understand the point if not.
When we communicate with someone, there is much more being communicated than the words we choose. We are also communicating through filters, and those filters include our shared experiences. Literary allusions, at their best, add to our communications through reference to the experiences writer and reader share in having read the same works.
In using allusions, then, we need to be careful not to obscure the text for the reader who is not familiar with the work. That was the conclusion of the late, great, Charles Alan Wright, when he concluded that it was safe to use allusions in briefs and other legal writings only so long as the text is intelligible even if the reference is not understood. See Literary Allusion in Legal Writing: The Haynsworth-Wright Letters, 1 Scribes J. Legal Writing 1 (1990).
Wright’s example leading to this conclusion is instructive. Wright was taken by the use of Justice Friendly of a reference to a “legal Lohengrin,” because it captured the essence of his legal argument so well by comparing an obscure statute to the character from a Wagnerian opera who depended on the obscurity of his own identity. Judge Haynsworth responded, however, by noting that the reference was itself obscure, and asked: “Should a judge write for the Charlie Wrights or for young law clerks preparing legal memoranda for the use of junior partners in advising clients?” Id.
We should keep the same question in mind. Particularly in a multi-cultural world with changing educational standards. Feel free to use allusions, but err on the side of caution when it comes to obscure ones, and be sure to sufficiently explain yourself to those who do not share the same reading experience.
Take a note from Justice Ginsberg, who made a Biblical allusion without any expectation of biblical scholarship, and then explained exactly what she meant:
No man can serve two masters. If you are negotiating a contract, a lawyer does not represent both clients. That is all that is involved here.
NLRB v. Health Care & Ret. Corp. of Am., 511 U.S. 571, 595 n.14 (1994).
Sometimes allusions can draw the sting out of a rebuke
Finally, I leave you with an allusion born from kindness. There are times when an appellate court has to note a clear mistake made by the lower court, or, worse, an appellate attorney must point out an error made in the law that seems apparent in retrospect. Let me introduce you to a literary allusion that can help you make such a point while actually complimenting the party that made the mistake.
Homer, the author of the Iliad and the Odyssey, two foundational works that should still be at least recognizable to our readers, was known to make mistakes. Indeed, Homer killed a character earlier in one of his texts and then used the same character later, fully alive, in apparent error. This led the Roman poet Horace to write that “even the noble Homer sometimes nods.”
Now, telling someone they made an obvious error is a delicate task. Comparing them to one of the most famous authors of all time while doing so, however, draws the sting a bit.
When Justice Cardamone was tasked with telling the district court judge that the Second Circuit had already set out the law of the case in a prior appeal, and that law had not been followed, he used this literary reference in his opening:
When one of the cases of this consolidated appeal was before us seven years ago, we set out some guidance on the law, which the district court [sic] either misinterpreted or missed. If the latter, such forgetfulness is understandable because we know that even Homer nodded.
Brooklyn Legal Servs. Corp. v. Legal Servs. Corp., 462 F.3d 219, 219 (2nd Cir. 2006).
While some judges might disagree about the effectiveness of literary allusion, I doubt anyone would complain about being corrected in this gentle manner.
(The author wishes to credit John M. DeStafano III, On Literature as Legal Authority, 49 Ariz. L. Rev. 521 (Sept. 2007) for inspiring this article. Image credit: Matt Buck / CC-BY-SA-4.0).
Saturday, February 16, 2019
Recently, Tessa wrote about useful tools for scoping out the court. In her post, Tessa discussed resources for learning more about your audience, so you can effectively tailor your brief and argument.
In this post, I'll address some strategies for those times when learning more about your audience just isn't possible. For instance, if you're arguing to a panel of the Fourth Circuit, you'll have no idea who's been pouring over your brilliant brief until it's show time. Similarly, if your audience is a state supreme court, it's unlikely that any specific tidbit is going to save you. Consider the odds. In North Carolina, where I practice, you'd be left trying to anticipate the desires of seven justices, each with a different background.
So what's the advocate to do? Use your brief not only to argue but also to educate.
Here's some background. Recently, I heard North Carolina's Senior Associate Justice, Paul Newby, speak at a CLE. Justice Newby was tasked with explaining the Supreme Court of North Carolina's mandatory appellate jurisdiction in complex business cases.
The Justice made the point that too often the nuance of a complex business case may be lost on his colleagues. Each of them has a different background, and only one -- himself -- had a history of litigating business disputes, like shareholder derivative actions.
The problem isn't that the justices don't approach each case carefully. Quite the opposite. It's that they're spending too much time trying to grasp the foundational principles, which the attorneys didn't explain sufficiently, and thus don't have enough time to digest the arguments.
That got me thinking. Lawyers get tunnel vision. We know our case -- the ins, the outs, the twists, the turns. Sometimes, we've lived with it for months or maybe even years. We've done the legal research and read all the pertinent authorities.
Being so caught up may not be such a bad thing. If you were involved before the appeal, you have an intimate knowledge of the case that an appellate lawyer will try her best to recreate. But being so caught up also has its downsides. It's easy to become too comfortable with a set of facts, or with a legal principle.
But skimping on the basics can keep your reader from buying what you're selling. If a judge has to read your argument multiple times to get a basic grasp on the issues, you're losing ground. The time that a judge spends re-reading your brief, pouring over the record, or, worst of all, doing background legal research is time that he or she is not spending thinking critically about your case. Chief Justice John Roberts said as much in a 2007 interview with Brian Garner. (Read the whole thing, but especially check page 28 of the PDF).
So what can we do about it? Like all good legal problems, the answer depends. The answer depends on whether the wrinkle in your case is factual or legal.
If the complicated issue is factual, consider a tactic that a partner of mine calls "putting on the white hat." Take the opportunity to explain, as honestly as you can, not only the facts behind your case but also the context. Why are the parties fighting? What are their motivations?
I know, I know. That sounds more like a mediation statement than an appellate brief. But the reader will appreciate it. By putting the case in context, you'll have gained two advantages. First, you will have explained the case in a way that helps the judge or her law clerk understand it. It's likely your opponent won't, which also means you'll get a chance to present your case's human factors. And that leads to the second point. By explaining the human factors motivating your case from your client's perspective, you'll gain a subjective advantage. You'll humanize your client.
Sometimes, putting your facts in context is as simple as an extra sentence, or an extra phrase. For instance, if you're in an employer-union ERISA dispute, consider telling your reader what the employer does. Likewise, consider telling your reader who the union represents. Sure, these facts have nothing to do with the nuance of the ERISA plan in dispute, and you probably won't reference them anywhere in the brief. But this type of stuff is important if you want your brief to do more than recite facts; it helps your brief tell a story.
In any case, if the complicated issue is legal, then the best approach is to keep it simple. Remember, judges are generalists. While you might live and breathe environmental or bankruptcy or intellectual property law, that doesn't mean that your judge does. So think twice before you start using terms of art without first describing them in plain English. Slow the pace of your brief, educate your reader, and then explain why you should win.
I recognize that it might be frustrating to go back to basics. But there's yet another benefit. You have the chance to teach the judge the applicable law as you see it. It's another chance for advocacy, no matter how subtle.
To conclude, I'll leave you with this thought, which, to some extent, ties these points together. Be creative about how you structure your brief. For instance, if you're arguing about a novel issue of statutory interpretation or a complex statutory scheme, the court will likely be less interested in the facts of your case than with an overview of the statute. Lead with it. Embrace it. You can take a lot of approaches when writing your brief and, fortunately, very few are wrong. But more on that in my next post.
Wednesday, February 13, 2019
As a follow up to my last post, I ask: Have you perfected your oral argument skills to the point where you have lost the very essence of the practice itself? Have you adopted a style that is not truly your own, but that you have seen successfully wielded by others? There are guidelines that should be followed, but they seem to be contradictory. For example, consider the following rules: Don’t just rehash your brief, but don’t raise anything new. Don’t be too comfortable, but remember to be conversational. Stand up straight, but don’t be stiff. Bring your notes to the podium, but don’t read them. I can imagine why, if you have seen someone do it well, you would be tempted to adopt that person’s style.
Here is the downfall to mimicry: it isn’t genuine, and your listener can tell. You get hung up on the act of giving the argument, and the performance of it all, as opposed to getting hung up on “having” the argument. We all “give” arguments from time to time. At its essence giving an argument is what we do when we “say our piece.” It is more of a soliloquy than anything else. It doesn’t invite give and take, nor does it want to be questioned. At work, we give arguments when we give presentations, or lectures. We are happy to take questions … but, please, hold them until the end.
When you are truly having an argument with someone, there is give and take … in the moment. If one must wait to ask questions, the question itself loses its meaning. The answers are even farther removed, and they lose their power. Answers draw strength from context. Why would you ever want to disembody your answer by removing it from its contextual location?
If your argument is too perfect, or too unnatural for you, it will become a presentation. An argument that is too tight does not invite questions. In creating the perfect argument, you give off the aura that to disagree with you is to be wrong. Or it appears that you are so right in your position, your authority is not to be questioned. Your panel will follow along, but there will be no opportune moment to interrupt such a presentation. It will feel like interrupting, which is not conducive to conversation.
The best advocates are comfortable in their own skin. If they are nervous, it may show at first, but as the argument progresses and the conversation begins, even the most nervous of advocates settle into the conversation. Settle into the confidence of the argument itself. Your argument doesn’t have to be perfect, although it should be legally sound and logically organized; it merely needs to be inviting. With all the formality of the brief, you have already detailed a step-by-step approach to solving the problem before the court. Your argument is the time to explore the problem, and explain why your position is preferable to any alternative. Feel free to look down one rabbit trail or another, but confident enough to explain to the court why it does not want to, or should wait to, follow that trail. The more welcoming you are to questioning, the more confident your position will seem, and that is the key to a winning argument.