Appellate Advocacy Blog

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

Sunday, May 31, 2020

The Writing Process – Drafting, Rewriting, and Revising

Drafting an appellate brief (or any brief) is often a challenging and time-consuming endeavor. Among the best ways to ensure that a brief is of the highest quality is to adhere to the three stages of the writing process.

Specifically, the writing process consists of: (1) the drafting stage; (2) the rewriting stage; and (3) the revision stage. The tips below will help law students and attorneys through each stage of the writing process and, ultimately, maximize the quality of briefs and other legal documents.

I.    The Drafting Stage

The purpose of the drafting stage is to put your story, ideas, and arguments on paper. As such, you should write freely and creatively. Do not attempt to produce a perfect or even well-written document. And never attempt to write and edit simultaneously because it will stifle your creativity, divert your attention from the substantive arguments that you want to include in your brief, and slow the writing process.

In so doing, understand that although the first draft may, among other things, lack flow and effective organization, contain grammar and style errors, be redundant, or contain poorly phrased sentences and paragraphs, these problems will be fixed during the rewriting and revision stages.

After you have completed the first draft, take a few hours or a day (if time permits) to reflect on what you have written, and ask another person to read your first draft. You will likely generate new ideas regarding, for example, how to present or refine particular arguments, what facts and arguments to include, and how to organize the brief. Indeed, these and other issues will be the focus of the rewriting stage. As author David Sedaris said, “[y]ou need to do the best that you can do, and then you need to take the best that you can do, and you need to rewrite it, and rewrite it, and rewrite it, and rewrite it.”

II.    The Rewriting Stage

The purpose of the rewriting stage is to refine your first draft. During this stage, attorneys should focus on improving the structural and substantive aspects of a brief. This should include, but not necessarily be limited to, the following:

  • Ensuring that the brief is organized effectively, which will likely require reordering specific paragraphs or sections of a brief;
  • Improving the flow of your brief, which includes making sure that you transition seamlessly when presenting various facts and arguments and use subheadings where necessary to improve the flow and clarity of your arguments;
  • Eliminating unnecessary repetition;
  • Eliminating irrelevant facts;
  • Considering whether you have omitted important facts or legal arguments. For example, you may have failed to address a relevant counterargument, distinguish an unfavorable case, or include a favorable fact; and
  • Making sure that your paragraphs begin with a clear topic sentence that focuses on a specific issue and end with sentences that transition effectively to the next paragraph and section.

Importantly, lawyers (and writers generally) often perform several rewrites. And during the rewriting stage, you should print out and read aloud your brief because it will ensure that you discover errors or areas for improvement that you may not have otherwise noticed.        

III.       The Revision Stage

During the revision stage, you should concentrate on the smaller but equally important details of your brief. Put simply, the revision stage is where you perform a line and copy edit of your brief. This should include, but not necessarily be limited to, the following:

  • Making paragraphs and sentences shorter;
  • Varying sentence length;
  • Eliminating complex or esoteric words, adverbs, and unnecessary adjectives;
  • Ensuring that your brief contains no grammatical, stylistic, or spelling errors;
  • Including transition words to ensure flow and clarity;
  • Eliminating words that convey ambiguous or unintended meanings;
  • Reducing the number of quotes;
  • Deleting repetitive sentences;
  • Eliminating cliché phrases and colloquial language;
  • Ensuring that your brief is written in the active voice (for the most part);
  • Using the CTRL+F feature to search for overused and unnecessary words; and
  • Submitting your document to an online editing service, such as Grammarly.

Additionally, you should perform multiple revisions to ensure that you identify all errors and maximize the persuasive value of your brief.

Finally, you should never combine any of these stages. For example, if you combine the rewriting and revising stages, you will almost certainly fail to identify both large and small-scale problems with your brief and compromise your brief’s persuasive value. Lawyers who adhere to the three stages of the writing process will – and do – produce briefs of the highest quality.

May 31, 2020 in Appellate Advocacy, Appellate Practice, Law School, Legal Profession, Legal Writing | Permalink | Comments (0)

Saturday, May 23, 2020

Reviewing the United States Supreme Court’s Decision in Kahler v. Kansas

In Kahler v. Kansas, the United States Supreme Court confronted the question of whether a state could effectively eliminate the insanity defense.

I.    The Court’s Decision

By way of background, in criminal prosecutions nearly all jurisdictions provide an insanity defense that enables defendants to prove that they are not legally responsible for a charged offense. Although the elements of the insanity defense differ somewhat among the states, most follow or closely track the M’Naghten rule, which requires defendants to demonstrate that: (1) they suffered from a diagnosed mental illness; and (2) due to such illness, they did not appreciate the wrongfulness or of their conduct (i.e., could not distinguish between right and wrong). The insanity defense is used in approximately one percent of criminal cases and only succeeds in about one-quarter of those cases.

In Kahler, the State of Kansas did not eliminate the insanity defense per se. Instead, Kansas adopted a different approach in which defendants could be absolved of criminal responsibility if they could demonstrate that their mental illness negated the intent element of a particular crime.[1] Writing for the majority, Justice Elena Kagan held that state laws regarding criminal responsibility are only unconstitutional if they violate "some principle of justice so rooted in the traditions and conscience our people as to be ranked as fundamental.”[2] Applying this rather vague and subjective standard, the majority held that the Fourteenth Amendment does not require states to adopt an insanity defense that focuses on moral wrongfulness.  Rather, the insanity defense is “substantially open to state choice” and “animated by complex and ever-changing ideas that are best left to the States to evaluate and reevaluate over time.”[3] Thus, the majority rejected the argument that the Fourteenth Amendment required states to adopt a particular test for insanity, including a test that focused on whether defendants knew that their actions were morally wrong. Indeed, as the majority stated, “no single version of the insanity defense has become so ingrained in American law as to rank as ‘fundamental.’”[4]

II.    Analysis

The Court got it wrong.

There should be a constitutional minimum – a baseline – that ensures the fair and just treatment of mentally ill defendants at both the adjudicatory and sentencing stage. Indeed, the Court – and state legislatures - should recognize that severe mental illness reduces culpability and in some cases, criminal responsibility, regardless of whether a defendant knew that the conduct in question was legally proscribed or morally wrong.  Doing so would demonstrate that Kansas's approach, and the standard used in most jurisdictions (the M’Naghten rule), is woefully inadequate. It leads to grave injustices. And it demonstrates an alarming indifference to the direct and indirect consequences that mental illnesses exact on individuals' ability to reason and make informed choices.

Indeed, although some mental illnesses do not necessarily negate the intent element, these illnesses often cause a person to act with an ‘intent’ that is not culpable or even worthy of criminal responsibility. In his dissent, Justice Stephen Breyer highlighted the flaw in Kansas’s approach. Justice Breyer explained that “Kansas has not simply redefined the insanity defense,” but instead “has eliminated the core of a defense that has existed for centuries: that the defendant, due to mental illness, lacked the mental capacity necessary for his conduct to be considered morally blameworthy.”[5]

Justice Breyer explained as follows:

A much-simplified example will help the reader understand the conceptual distinction that is central to this case. Consider two similar prosecutions for murder. In Prosecution One, the accused person has shot and killed another person. The evidence at trial proves that, as a result of severe mental illness, he thought the victim was a dog. Prosecution Two is similar but for one thing: The evidence at trial proves that, as a result of severe mental illness, the defendant thought that a dog ordered him to kill the victim. Under the insanity defense as traditionally understood, the government cannot convict either defendant. Under Kansas’ rule, it can convict the second but not the first.[6]

That, in a nutshell, is the point – and the problem. To hold that the second individual in Justice Breyer’s hypothetical acted with the requisite intent is to reduce intent to a standard that is divorced from context and deliberately indifferent to empirical evidence demonstrating that, in some circumstances, mentally ill individuals do not – and cannot – act rationally. They act impulsively. They act under a false set of beliefs that influence their decisions and motivate their actions.

III.       Broader Problems With the Insanity Defense

The problems with Kansas's approach represent only the tip of the constitutional iceberg. The standards governing insanity in many jurisdictions, which largely track the M’Naghten rule, are deeply troubling.[7] Specifically, requiring defendants to show that they could not appreciate the wrongfulness of their actions (i.e., distinguish right from wrong) ignores the deleterious effects of mental illness on human behavior. Severely mentally ill individuals may know that an action is legally proscribed or morally wrong, but that fact is irrelevant to such individuals because, in some instances, they form a distorted set of beliefs, experience an inability make rational decisions, and struggle with an emotional state that can allow impulse to trump reason. By ignoring or failing to sufficiently account for this, the extant approaches make it all but certain that severely mentally ill individuals will be found guilty of various criminal offenses, face substantial periods of incarceration where they will receive inadequate treatment (and inevitably decompensate), and struggle to reintegrate into society upon release.

As a policy matter, this is problematic, if not fundamentally unjust. Mentally ill individuals often deteriorate while incarcerated, as they lack the support and structure necessary to effectively treat their illnesses. Upon release, such individuals frequently find it difficult, if not impossible, to successfully transition into the community, obtain meaningful employment, and achieve the stability necessary to lead functional lives. These deleterious consequences result in part from instituting a narrow and underinclusive insanity defense at the adjudication stage, and defaulting to incarceration rather than treatment at the sentencing phase, notwithstanding that there is little, if any, evidence that incarcerating mentally ill individuals serves any purpose of criminal punishment (e.g., deterrence). Simply put, the manner in which mentally ill individuals are treated in the criminal justice system is a national disgrace.[8]

IV.    Reforms

Principled reforms should include broadening the insanity defense to eliminate the moral wrongfulness requirement (i.e., that defendants lack appreciation of the wrongfulness of their conduct), recognizing the mitigating effects of mental illness on culpability and, in some cases, criminal responsibility, providing convicted but mentally ill defendants with treatment rather than incarceration (or at least ensuring a competent treatment protocol), reducing sentences, and establishing effective reentry programs to facilitate mentally ill defendants’ transition into society upon release.

Put simply, states, like Kansas, should no longer be allowed to ‘experiment’ with the insanity defense. A uniform approach at the adjudication and sentencing phase is necessary to ensure that mentally ill defendants receive equal protection under the law.

 

[1] See Kahler v. Kansas, No. 18–6135, available at: https://www.supremecourt.gov/opinions/19pdf/18-6135_j4ek.pdf

[2] Id.

[3] Id.

[4] Id. (internal citation omitted).

[5] Id.

[6] Id.

[7] A minority of states have adopted broader versions of the insanity defense and thus provide defendants with fairer and more just opportunities to demonstrate that their mental illnesses substantially reduce, if not eliminate, responsibility for a particular crime.

[8] This is not to say, of course, that mentally ill individuals are more likely to commit crimes. It is to say, however, that when individuals with severe and diagnosed mental illnesses, such as schizophrenia and bipolar disorder, engage in criminal conduct, the law should provide a remedy, at the adjudication and sentencing stages, to ensure that such individuals receive treatment for such illnesses.

 

May 23, 2020 in Appellate Advocacy, Appellate Justice, Appellate Practice, Current Affairs, Legal Profession, United States Supreme Court | Permalink | Comments (0)

Friday, May 22, 2020

Appellate Advocacy Blog Weekly Roundup Friday, May 22, 2020

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Each week, the Appellate Advocacy Blog Weekly Roundup presents a few tidbits of news and Twitter posts from the past week concerning appellate advocacy. As always, if you see something during the week that you think we should be sure to include, feel free to send a quick note to either (1) Dan Real at DReal@Creighton.edu or on Twitter @Daniel_L_Real or (2) Catharine Du Bois at DuBoisLegalWriting@gmail.com or on Twitter @CLDLegalWriting.

US Supreme Court Opinions and News

  • The Supreme Court unanimously ruled that Sudan must pay the over-$10 billion judgement awarded to the victims of the 1998 al-Qaeda bombing of the U.S. embassies in Kenya and Tanzania. The ruling allows Sudan to be held liable for both punitive and compensatory damages. A 2014 appellate ruling had determined that a 2008 law that permitted retroactive application of compensatory damages to cases involving state-sponsored terrorism did not extend to punitive damages.  The Supreme Court reversed that ruling and reinstated the 2012 judgment.  See opinion and reports from Bloomberg, The Washington Post, and The Associated Press.  

  • The Court refused to grant Idaho officials' request to block a transgender inmate’s surgery pending appeal.  The ruling leaves in place a Ninth Circuit order ruling that, by failing to provide the inmate’s gender confirmation surgery, Idaho violated the Eight Amendment’s ban on cruel and unusual punishment. Idaho is appealing to the Supreme Court, which has not yet decided whether it will hear the case. See reports from The New York Times and NBC News.

  • The Court has refused to grant an “emergency” request by two Texas inmates to reinstate a district court order that had required a Texas prison to take measures to protect inmates against the threat of COVID-19. A federal appeals court stayed the order pending appeal and found that the measures required by the district court’s order went further than Centers for Disease Control and Prevention guidelines.  Although agreeing with the ultimate decision to deny the request, Justice Sotomayor issued a statement, to which Justice Ginsberg joined, to “highlight disturbing allegations” in the case. She writes: "It has long been said that a society's worth can be judged by taking stock of its prisons. That is all the truer in this pandemic, where inmates everywhere have been rendered vulnerable and often powerless to protect themselves from harm. May we hope that our country's facilities serve as models rather than cautionary tales." See Justice Sotomayor’s statement and reports in The New York Times, CNN, The Wall Street Journal, and Bloomberg Law.

Federal Appellate Court Opinions and News

  • The Fourth Circuit has allowed an emoluments suit against the president to proceed. The case, by Washington D.C. and Maryland, alleges that Donald Trump violated the Constitution by profiting from foreign and state patrons at his Washington, D.C., hotel. The court found a genuine dispute over the definition of an “emolument,” writing “we can hardly conclude that the President’s preferred definition of this obscure word is clearly and indisputably the correct one.” See opinion and a sampling of the many reports at The New York Times, The Courthouse New Service, The Hill, Politico, and The Washington Post.   

  • The Fifth Circuit has temporarily stayed a Texas district court’s May 19 ruling that would have allowed voters in Texas to vote by mail during the COVID-19 pandemic. The district court’s ruling found that the disability provision in the Texas vote-by-mail code applied to voters who “lack immunity from COVID-19 and fear infection at polling places.” See report at CNN, The Texas Tribune, and The Dallas Observer.

  • The Sixth Circuit granted rehearing en banc and vacated its decision finding that the “the Constitution provides a fundamental right to a basic minimum education” and defining that as an education that “plausibly provides access to literacy.”  This column reported on the Sixth Circuit’s right-to-education decision a few weeks ago.  See the order granting rehearing and reports from Bloomberg Law and Detroit Free Press.

State Court Opinions and News

  • In Michigan, the court have upheld the governor’s right to extend a stay-at-home order. Michigan residents claimed that the stay-at-home measures infringed on their constitutional rights.  The court recognized that the state has authority to enact policy when “faced with a public crisis” and determined that the policy was consistent with the law.  The court further iterated that a citizen’s constitutional rights are “subject to reasonable regulation by the state.”  See report by CBS News and The Hill.
  • In Wisconsin, the state supreme court struck down the governor’s stay-at-home order, ruling that the governor had overstepped his authority by extending the quarantine measures without consulting the legislature.  See the opinion and reports from The Associated Press, The Hill, and Wisconsin Public Radio.
  • In Oregon, the state supreme court stayed a county judge’s ruling that declared the governor’s COVID-19 measures concerning church gatherings “null and void.” See report in The Oregonian.

May 22, 2020 in Appellate Advocacy, Appellate Practice, Federal Appeals Courts, State Appeals Courts, United States Supreme Court | Permalink | Comments (0)

Wednesday, May 13, 2020

A Toast to Those in the Courts Who Were Ready for This Pandemic

 

This blog post might provide you with information you already know.  The information is new to me, which made me think sharing it might assist others as well.  As I was looking at the Louisiana Supreme Court’s website recently, a reference caught my eye.  That reference was to the publication, “Preparing for a Pandemic: An Emergency Response Benchbook and Operational Guidebook for State Court Judges and Administrators.”  The publication can be downloaded here: https://ncsc.contentdm.oclc.org/digital/collection/facilities/id/194

A team from the Conference of Chief Justices and the Conference of State Court Administrators worked on a Pandemic and Emergency Response Task Force to create this document, which was published by the National Center for State Courts in 2016!  That date caught my eye because, like so many of you, I have been stunned over the past few months (yes, months that sometimes feel like years) by what has been going on in the world: stunned by the magnitude of this pandemic.  And now, I am stunned by the fact that this group created this resource four years ago that is so relevant to what the world is experiencing in 2020.

The benchbook/guidebook urges state courts to create their own books tailored to their states in which they include both federal and state laws that will be relevant should a pandemic occur.  It raises issues to be considered in a pandemic, such as maintaining constitutional protections during a pandemic; operating courts during a pandemic; searches, seizures, and other government actions to maintain public health; and jurisdiction of public health issues.  It suggests that courts create certain model orders and court rules to use in the event of a pandemic.  It also provides a resources list that includes citations to state courts that already had such plans back then.  From back in 2016, it discusses and suggests many of the things that we are now discussing and suggesting.

I highly recommend you review this document, if you have not already seen it.  Perhaps it will be helpful to you in your law practice, in your law school, in your court, and even in your personal life as you grapple with and consider issues that do not often present themselves.  Thank you to the National Center for State Courts https://www.ncsc.org/, the Conference of Chief Justices https://ccj.ncsc.org/, and the Conference of State Court Administrators https://cosca.ncsc.org/ for thinking ahead.  I only wish we did not need your good book. 

May 13, 2020 in Appellate Advocacy, Appellate Court Reform, Appellate Justice, Appellate Practice, Appellate Procedure, Current Affairs, Legal Profession, Oral Argument, State Appeals Courts | Permalink | Comments (2)

Monday, May 11, 2020

Guest Post: Zoom Oral Arguments, Some Tips from the Trenches

This is a guest post from Stephen P. Hardwick, an Assistant Public Defender for the State of Ohio.

I had two Zoom oral arguments in the Ohio Supreme Court in the last week of April. I’ll break what I learned into four categories—the physical and electronic set up, practice and preparation, the argument itself, and finally some thoughts on how to use what might be your only chance to be in the office for weeks or months. And just like preparation for a courtroom argument, there’s a lot more to do preparing for the argument than at the argument itself.

  1. Computer and room set up:
    1. Regardless of what I say here, when it comes to the camera set up, the background, and the aesthetics of the podium area, you should do what you need do to feel comfortable and professional. I explain here what worked for me, but trust your judgment. For example, even though I can’t imagine that I’d do better sitting down, if you’re more comfortable sitting in front of a web cam, you’ll probably do better that way.
    2. Use your office. At least in Ohio, legal services are “essential,” and using your office means you don’t have to shush your kids for hours, share a residential broadband connection with their Zoom classes, or worry about a flushing toilet in the background. When I came home from the first argument, my wife told me a neighbor had been doing concrete work the whole time. Try to imagine that when pleading your client’s case.
    3. If possible, use a high definition web cam and then test whether it the camera angle is better at the top or the bottom of your monitor. Either way, having the web cam close to the screen means that when you look at the judges, the judges will feel like you’re looking at them. I didn’t use a web cam, but I wish I had because it would have provided a higher quality feed. My office is working to find one for the next attorney with an argument.
    4. Use a moderate-sized monitor. I used a huge wall-mounted monitor, but I found myself looking at the tiny laptop screen that was about six feet away because it was closer to the camera. A moderate-sized monitor will give enough space to see the judges without pushing the camera too far from the center of the screen.
    5. If at all possible, physically attach your computer to the office’s Internet service. WiFi is not good enough unless there’s no other choice. Cell connections sometimes are faster than WiFi connections, so if you can’t use a wired connection, test your cell connection and compare it to your WiFi. I had to abandon my first test run with Ohio Supreme Court staff because my WiFi connection was too slow. Most of my suggestions are just suggestions. This is not.
    6. The computer you use for Zoom might be inaccessible for a few hours before argument, so if possible, use one computer for the video hook up and another one for notes, files, and last-minute Westlaw searches. For Ohio Supreme Court arguments, we check in between 7:45 and 8:00 a.m., and then they put us in the Zoom waiting room until our argument time, which might not be until 11:00. During one of my waits, I checked a transcript, which inadvertently changed the angle of my computer screen. Because I was in the waiting room, I didn’t see that I was cut off at the chest until it was time to say, “May it please the Court.” If I had used a different laptop, I would not have had this problem.
    7. Have someone in the room with a remote keyboard and mouse who can take care of technical issues, like muting and unmuting or reconnecting the video if needed. If you can avoid it, you don’t want to pause the argument to take care of a technical problem. Your assistant can focus on fixing a problem while you continue to focus on arguing your case.
    8. Unless you have an exceptional microphone, use the dial-in number from a landline or VoIP. It will almost certainly be clearer, and it will be less problematic than using your laptop microphone. Connect using your “Participant ID” so the audio will be synced with your video. If you don’t know what that means, work with the court’s tech staff.
    9. Set the camera back far enough that it shows the upper half of the podium and a couple feet on either side. I strongly suggest standing at the podium when arguing and sitting when you’re not. Standing makes it easier to use gestures, and it made me feel more professional. If you sit, do so where the judges can see you so that you don’t entirely disappear from their view. Note: Ohio Supreme Court Justice Judith French has recommended either sitting or standing the whole time. She was concerned about awkward transitions. I hope I was sufficiently ready for the transitions that I didn’t bug her, but I was concerned about fidgeting while standing, which would have created its own nuisance.
    10. Professional virtual backgrounds are perfectly fine. So is an empty or nearly empty room. So is a bookshelf or uncluttered office. Whatever you do, you should be deliberate about what the camera will show. You should also have it ready before the test session with the court so that court staff can give feedback on the background. The IT professional helping us had spoken with our Chief Justice about how to run the argument, so if he asked me to change something, the Chief Justice probably would have, too.
    11. On the computer you use for the video feed, quit EVERYTHING. You don’t want anything popping up when you are arguing. You also don’t want your computer using its resources for anything but your argument.
  1. Practice and preparation:
    1. Attorneys get a test session the week before an Ohio Supreme Court argument. The test is both mandatory and extremely helpful. Michael Woods, the Ohio Supreme Court’s IT person, was great. Picture an Apollo-era mission control chief—white shirt with a tie, slightly horn-rimmed glasses, and a headset with a microphone extending around in front. He was also meticulous and calm. If you don’t have a practice session, ask for one.
    2. The Ohio Supreme Court required us to use a Zoom account with our real name and a professional-looking profile photo. The profile picture would appear if the video quit. The name appears over you during the argument. If your kids use the same account for school, make sure you don’t have your kid’s name over your feed and that you won’t present yourself to the court with a dragon avatar
    3. Make sure the court staff knows the number of the caller ID of the phone you will call in from. Often, our office phones give out a different caller ID than the number needed to call that phone. Because the staff had my correct number, they knew that, if needed, they could answer a call from me and immediately plug it back into the arguments.
    4. Do at least one Zoom moot court with the set up you will use for the argument. Have someone else host the Zoom moot because that’s how the argument will go. If possible, do the moot after the official test session so you will be using the set up that the court staff has approved. The practice sessions and moot courts will help you make sure that you have all the equipment you need set up in the best possible way. During my first practice session, I discovered that I needed a very specific adapter to physically connect to the Internet. You don’t want to wait until argument day to discover that you need some piece of equipment.
    5. Have a back-up plan in case you end up with a fever or something else that prevents you from using the office. We all could be the next person to get sick, and even a mild cough will keep us out of the office.
  1. Conduct of the argument itself:
    1. Be ready to act without the normal cues. In the courtroom, an attorney waits at counsel’s table until summoned to the podium by the presiding judge. In the Zoom world, you need to be ready when she calls you.
    2. Prioritize audio. At least in the Ohio Supreme Court, if you lose video during the argument, the Chief will keep the argument moving as long as she can hear you.
    3. I found it helpful to recreate a familiar environment—the podium, sitting while not speaking, and a real glass with cool water in it, just like the Ohio Supreme Court provides during a courtroom oral argument. A water glass might not be important to use, but I bet something small is. Figure out what that is and do it.
    4. Ohio Supreme Court staff required attorneys to leave a cell phone on to get messages before speaking or if there was a problem. That felt weird to me. I’m paranoid about my phone going off, so I didn’t like leaving it on. But I did.
  1. Office issues:
    1. This may be your only chance to personally check on your plants and retrieve stuff from your office. Take advantage of it, but don’t dawdle.
    2. Follow whatever rules your office sets. That will probably mean you’ll need to take your temperature, wear a mask when not presenting, and sanitize everything you touch. Your “essential” colleagues have to come to that place, so respect them enough to be careful.
  1. Final note: If something goes wrong, it’s OK. The judges will be patient as long as you’re making a good faith effort. So calmly do what you can to fix the problem. Remember that screen I accidentally put out of adjustment? During my initial argument, I just made sure my gestures were high enough to see. Before I sat down, I stepped forward, adjusted the camera angle, and sat down. No one said anything, and the argument continued. Your judges will show similar patience with you.

May 11, 2020 in Appellate Advocacy, Oral Argument, State Appeals Courts | Permalink | Comments (0)

Friday, May 8, 2020

Appellate Advocacy Blog Weekly Roundup Friday, May 8, 2020

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Each week, the Appellate Advocacy Blog Weekly Roundup presents a few tidbits of news and Twitter posts from the past week concerning appellate advocacy. As always, if you see something during the week that you think we should be sure to include, feel free to send a quick note to either (1) Dan Real at DReal@Creighton.edu or on Twitter @Daniel_L_Real or (2) Catharine Du Bois at DuBoisLegalWriting@gmail.com or on Twitter @CLDLegalWriting.

US Supreme Court Opinions and News

  • This week, the Supreme Court resumed oral argument but, for the first time, it heard argument via telephone and allowed the public real-time access. Some of the many reports include those from The Washington Post, NPR, NBC News, and The Associated Press.  Find the first telephonic oral argument here in U.S. Patent and Trademark Office v. Booking.com B.V.   Because argument was held via telephone, Justice Ginsberg, who was hospitalized this week, was able to participate in oral argument on Wednesday from her hospital bed.  See reports from CNN, BBC, and USA Today.
  • The Supreme Court overturned the fraud convictions of the public officials in New Jersey’s "Bridgegate" scandal. The Court confirmed that the public officials did in fact realign toll lanes in New Jersey to cause traffic problems to “punish the mayor of Fort Lee for refusing to support the New Jersey Governor’s reelection bid.” However, because the officials did not obtain money or property, the Court unanimously held that these actions were not criminal under federal law. See the opinion and reports from CNN, Politico, and The Atlantic

  • The Court dismissed a Second Amendment challenge to a New York City gun ordinance. Instead of ruling on the merits, the Court determined that the challenge was moot because New York has repealed the ordinance. See reports from The Wall Street Journal, The Associated Press, Reuters, and The New York Times.  

  • The Court ruled that insurances companies are entitled to collect under the Affordable Care Act. The Court held that the government was obligated to honor the promise to protect insurance companies against the risks they took in participating in the exchanges established by Act.  See the opinion and reports in The New York Times, The Washington Times, The Associated Press, and Bloomberg News.

Federal Appellate Court Opinions and News

  • The Tenth Circuit upheld the federal bump-stock ban against a challenge arguing that the executive branch had no authority to issue the ban. The court rejected this argument, accepting instead the ATF determination “that semiautomatic rifles equipped with bump stocks are ‘machineguns.’” The court found the statutory definition of “machinegun” to be ambiguous and the ATF’s interpretation to be reasonable, thus upholding the ban. See the opinion and reports from The Associate Press and Bloomberg Law

  • The Seventh Circuit sided with Chicago in a sanctuary city fight, holding that the Justice Department cannot withhold federal grants from cities that extend protections to undocumented immigrants. The ruling recognizes that “states do not forfeit all autonomy over their own police power merely by accepting federal grants” and that “the attorney general’s perception of the urgency of immigration enforcement does not corral for the executive branch the powers entrusted to the legislative branch.” See the opinion and reports from The Chicago Tribune and Reuters.

  • The Tenth Circuit upheld the lower court and struck Kansas’s voter ID law, finding its proof of citizenship requirement to be unconstitutional. Kansas argued that the law was necessary to protect against voter fraud. The court however noted the significant burden on the over 31,000 voters who had their registration applications cancelled or suspended and found that interests of the state do “not justify the burden imposed on the right to vote.” This decision binds not only Kansas but all states within the jurisdiction of the Tenth circuit, including Oklahoma, New Mexico, Colorado, Wyoming, and Utah. See opinion and reports from The New York Times,  The Courthouse News Service, and an ACLU press-release.

  • In Wisconsin, four strip clubs suing for relief related to the COVID-19 shut down have won preliminary injunction in a First Amendment case. The strip clubs claimed discrimination in violation of the First Amendment after their applications for emergency federal loans were denied due to the sexual nature of the businesses. The injunction preserves the clubs’ eligibility for small business loans. The ruling concluded that the plaintiffs would likely succeed in demonstrating that their businesses are not prurient and that the regulation violates the First Amendment. See opinion and a report in The Milwaukee Journal Sentinel.

May 8, 2020 in Appellate Advocacy, Appellate Practice, Appellate Procedure, Federal Appeals Courts, United States Supreme Court | Permalink | Comments (0)

Tuesday, May 5, 2020

Footnoted Citations - Ramos v. Louisiana

Justice Gorsuch’s opinion for the Court in Ramos v. Louisiana,[1] which held that Louisiana’s and Oregon’s laws allowing conviction by non-unanimous juries violated the Sixth Amendment right to a jury trial, drew much commentary. There were discussions of its holding and the lineup of the majority and minority. And on #appellatetwitter, there was much discussion of Justice Gorsuch’s decision to forego in-text citations in favor of footnoted citations in the majority opinion. Justice Gorsuch’s choice rekindled one of the many debates on style[2] that are always smoldering on #appellatetwitter.

Professor Orin Kerr (@orinkerr) seems to have reignited the #appellatetwitter debate with his tweet of April 21, 2020: “Reading Ramos, I am struck by the citation style: It’s the first Supreme Court majority opinion I recall in which all citations are in footnotes. I find that style annoying, I confess. If citations are important enough to include, put them in the text.”[3] Professor Kerr’s tweet prompted responses from judges, attorneys, other professors, and noted lexicographer Bryan Garner. The following day, Garner, a champion of footnoted citations, devoted an episode of this twitter video log Curious Mind to discussing his thoughts on why it’s better to place legal citations in footnotes.[4]

Garner co-authored Making Your Case: The Art of Persuading Judges,[5] with Justice Gorsuch’s predecessor, Justice Antonin Scalia. There, the authors debated in-text versus footnoted citations.[6] Of course, Garner argued for the use of footnoted citations;[7] Justice Scalia, “disapprove[d] this novel suggestion.”[8] So let’s review some of the pros and cons of both and then you decide which you favor.

But first, let’s take a moment to think about the work citations do in legal writing. Citations serve at least two primary purposes: they tell us how to locate the cited source and they tell the reader the importance of the cited authority, i.e., the weight of the authority.[9] The latter is important because it helps the reader evaluate the relative value of one authority as compared to another.[10] We evaluate the weight of authority by its source. Is it a primary source or secondary source? If it’s a court opinion, what court decided the case? Is it a constitutional provision, a statute, or a regulation? How recently was the case decided or the statute enacted?[11] So, whether one chooses to use in-text citations or footnoted citations, the reader must be able to evaluate the weight of the cited authority. And because appellate advocates respect and value their reader’s time, they want to make it easy for their reader to evaluate the weight of the authority.

Those, like Garner, who favor footnoted citations contend that putting citations in footnotes aids readability while still allowing the reader to evaluate the weight of authority.[12] Those who follow Garner’s approach and footnote citations would write something like, “More than forty years ago, the Court decided Abood v. Detroit Board of Education.”[13] This communicates the relative age of the case and the court that decided the case. The footnote then contains only the part of the citation that tells the reader where to locate the case. If done well, footnoted citations let the reader evaluate the weight of the cited authority without forcing the reader to read—or more likely skip over—the information that tells her where to locate the authority.

Those who favor in-text citations, like the late Justice Scalia, argue that footnoted citations bloat the text with information that could be more easily conveyed in a traditional in-text citation.[14] So the in-text citation would be something like, “In Abood v. Detroit Board of Education, 431 U.S.  209 (1977) . . . .” This conveys the same information as the example above, but now the information is all within the textual sentence.

The in-text citation crowd has one other argument that perhaps carries the day, at least for now. Legal writers and readers are traditionalists and “Judges are uncomfortable with change.”[15] Appellate advocates are unlikely to put off our judicial reader by following the tradition of in-text citation. We risk doing so if we footnote citations. This is particularly true if the writer using footnoted citations isn’t careful to include within the text the information the reader needs to evaluate the weight of authority.

Returning to Justice Gorsuch’s opinion for the Court in Ramos, it was the first majority opinion in which he footnoted the citations. And just three days after Ramos was decided, the Court released its opinion in Romag Fastners, Inc. v. Fossil, Inc.,[16] with Justice Gorsuch again writing for the majority. There he used in-text citations. So, while Justice Gorsuch rekindled the #appellatetwitter debate, perhaps he too is unsure which style to prefer.

 

[1] No. 18-5924, slip op. (U.S., April 20, 2020).

[2] Other common debates on style include whether writers should use one space or two after a terminal punctuation mark and the best font.

[3] Tweet by @orinkerr, April 21, 2020, https://twitter.com/OrinKerr/status/1252526810019004418

[4] https://twitter.com/BryanAGarner/status/1253005857035608064.

[5] Antonin Scalia & Bryan A. Garner, Making Your Case: The Art of Persuading Judges (2008).

[6] Id. at 132-35.

[7] Id. at 132-33.

[8] Id. at 133.

[9] Alex Z. Chew, Citation Literacy, 70 U. Ark. L. Rev. 869, 879-80 (2018).

[10] See id. at 881.

[11] Id.

[12] Scalia & Garner, supra note 5, at 132.

[13] 431 U.S. 209 (1977).

[14] Scalia & Garner, supra note 5, at  134.

[15] Id.

[16] No. 18-1233, slip op. (U.S., April 23, 2020).

May 5, 2020 in Appellate Advocacy, Appellate Practice, Current Affairs, Legal Writing, Rhetoric, United States Supreme Court | Permalink | Comments (0)

Monday, April 27, 2020

My Final Thoughts on Moot Court in the Age of Coronavirus

Nearly a lifetime ago (ok, it was just a month ago), I posted tips on how to conduct a virtual moot court competition. Since that post we have had some other great posts on remote oral argument and presentation, including these tips from Texas Supreme Court Justice Eva Guzman. 

We held the final round of our moot court competition on April 16.  Based on that experience, and a few other things I learned along the way, I thought I would offer my final thoughts and tips on virtual moot court competitions, in case we are all doing this again in the fall.

(1) Stagger start times.  For our competition, we typically had two separate panels of three judges.  Each panel heard two arguments--one starting at 5:30 pm and one starting at 6:30 pm.  In my earlier suggestions, I recommended having separate Zoom links for each argument even if the panel was the same.  That definitely worked well.  But, if I could do it over, I would have had one panel start either 15 minutes earlier or 15 minutes later than the other panel.  Why?  Well, I "zoomed" into the first argument for each panel, just to make sure that the judges were present and that there weren't any questions.  I ended up having one Zoom open on my laptop and one open on my tablet.  This was a lot to manage, especially if there were issues that needed to be resolved.  A 15 minute staggered start time would have alleviated some of my stress.

(2) Have back-ups.  I wish that I had designated a back-up bailiff and judge for each round.  We only had one judge who wasn't able to make it, but we did have bailiff sound/video issues.  I was able to get those issues resolved with minimal delay, but having a designated back-up would have been even easier.

(3) Develop an online scoring survey. We ask our judges to fill out a fairly detailed score sheet.  I take the scores and enter them into a complicated spreadsheet that incorporates the judges' scores and the student's brief score.  When we have an in-person competition, I can look at the score sheets right away and identify anything that isn't filled out correctly.  For an online competition, I had to wait to receive the score sheets. Then, if there were any problems, I had to get in touch with the judges.  This wasn't an issue with the early rounds, but by the eliminate rounds, I needed to notify the students advancing quite promptly.  If we do this again, I will work with our IT department to develop some sort of online tool that the judges fill out instead.  This would hopefully help me get the scores sooner, and also ensure that the score sheets are completely filled out.

In addition to these general points, here are a few points from the final round:

(1) Use and circulate a background.  The version of Zoom on my home laptop allows me to use a background without a green screen.  I wish that I had circulated a background to the students and judges to use to make it a little more uniform.

(2) Figure out an online timer.  I didn't use an online timer. Rather, my plan was to hold up time cards.  I regret that choice.  The time cards didn't show up with the background, so I ended up holding up fingers instead.  I wish that I had tested the time cards to know that they wouldn't work. Then I would have definitely figured out how to put a small clock on the screen.

(3) Expect the unexpected (or be sure to lock your office door).  Our final round started at 5:30 pm on April 16. I had told my spouse in the weeks leading up to the final argument that he would be on toddler duty all night long.  I ordered dinner to be delivered, and reiterated to him right before the round began that I was unavailable. Well, as luck would have it, at about 5:50 pm my very tall, just turned 2 year old discovered how to open doors.  And, as I am sure that you have guessed, the first door that he opened was the one right into my office as the Respondent was arguing. My microphone was muted, and the background kept him mostly hidden, but he was still a bit visible (as was my husband who, with a look of horror on his face, tried to quickly remove him from the scene).  In hindsight, it was pretty humorous.  I wasn't able to keep a poker face on while it happened, which I felt bad about.  Now I know to lock my office door if I don't want to be disturbed.

April 27, 2020 in Appellate Advocacy, Law School, Moot Court, Oral Argument, Web/Tech | Permalink | Comments (0)

Friday, April 24, 2020

Appellate Advocacy Blog Weekly Roundup Friday, April 24, 2020

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Each week, the Appellate Advocacy Blog Weekly Roundup presents a few tidbits of news and Twitter posts from the past week concerning appellate advocacy. As always, if you see something during the week that you think we should be sure to include, feel free to send a quick note to either (1) Dan Real at DReal@Creighton.edu or on Twitter @Daniel_L_Real or (2) Catharine Du Bois at DuBoisLegalWriting@gmail.com or on Twitter @CLDLegalWriting.

US Supreme Court Opinions and News

The Supreme Court issued (from home) a number of opinions this week, including:

  • Barton v. Barr: The Court affirmed the lower court’s decision holding that a US permanent resident of over 30 years was ineligible to have his deportation cancelled. The case concerned the interpretation of an immigration law that allows immigrants who were deemed “deportable” based on the commission of certain crimes to petition to have their deportation cancelled. The decision interpreted a statutory provision known as the “stop-time” provision, which requires that an immigrant can only be eligible for deportation cancellation if the immigrant has been a continuous resident for at least seven years without committing a serious crime (the crime that renders an immigrant “deportable” can apparently have been committed at any time). The issue came down to whether the “serious crime” in the stop-time provision has to be one of the “certain crimes” that renders an immigrant “deportable.”  The Court affirmed the lower court’s interpretation of the statute and ruled that the crime did not need to be one of the crimes that is listed as a deportable crime. See reports at The Jurist and Bloomberg Law.
  • County of Maui v. Hawaii Wildlife Fund: The Supreme Court broadly interpreted the “functionally equivalent” test in the Clean Water Act. The law requires a permit for a direct discharge of pollutants into federally regulated rivers and oceans or its functional equivalent. The issue was whether Maui County violated the Act by injecting wastewater underground without a permit. The Court concluded that a permit is required “if the addition of the pollutants through groundwater is the functional equivalent of a direct discharge from the point source into navigable waters” and retuned the case to the circuit court.  See reports at The Hill, The Jurist, USA Today, The Associated Press, and The National Law Review.

  • Ramos v. Louisiana: This decision affirms that non-unanimous jury verdicts for serious crimes is unconstitutional and that the requirement applies to states cases as well as federal, which overturns precedent from the 1970s. The decision affects only two states: Louisiana, where the case originated and whose recent law barring non-unanimous jury decisions only applies to verdicts from after 2018, and Oregon, the only state that still allows non-unanimous verdicts. The decision recognized that allowing convictions with non-unanimous juries was rooted in racism, noting that Louisiana had adopted the rule as a way to maintain the “supremacy of the white race” and that the Oregon law could be traced to efforts to dilute “the influence of racial, ethnic, and religious minorities” on juries. Many see this 6-3 decision (and its concurrences and dissents) on what may seem to be a straightforward issue as illuminating on the issue of the role of precedent in future cases. See some of the many reports at The Los Angeles Times, The Wall Street Journal, The Associated Press, Reuters, and the New York Times from Adam Liptak and Linda Greenhouse.
  • Ramos is also noteworthy (especially for legal writers) as being possibly the first Supreme Court decision to have footnoted all citations (there have been dissents that have previously footnoted citations). See Twitter discussion on both sides of that debate here and here.

Other opinions issued this week can be found here: Thryv, Inc. v. Click-To-Call Technologies, LP; Atlantic Richfield Co. v. Christian; and Romag Fasteners, Inc. v. Fossil, Inc.

Federal Appellate Court Opinions and News

  • The Sixth Circuit ruled that “the Constitution provides a fundamental right to a basic minimum education,” which it defined as an education that “plausibly provides access to literacy.” This decision allows students in Detroit’s public schools to go forward with their claims that they have been denied access to literacy. Though the Supreme Court has discussed this issue, it has never decided it. See opinion and reports at The ABA Journal, The Detroit Free Press, and The National Review,  and see a 2018 New Yorker article on the issue.

  • In Tennessee, a US District Court has blocked the state’s order prohibiting procedural abortions during COVID-19.  The opinion recognizes that “[d]elaying a woman's access to abortion even by a matter of days can result in her having to undergo a lengthier and more complex procedure that involves progressively greater health risks, or can result in her losing the right to obtain an abortion altogether.”  See report in The Tennessean, The Associate Press, and CNN.  But in Arkansas and Texas this week, state bans have been upheld or reinstated. In Arkansas, the Eight Circuit dissolved a judge’s restraining order that had allowed surgical abortions to continue after the AR department of health told clinics to stop performing procedures unless needed to protect the life or health of the mother.  See opinion and reports at The Associate Press, The Jurist, and Law360. And, in Texas, the Fifth Circuit has reinstated most of Texas’s abortion ban, ruling that medication abortions (those induced with pills) may also be restricted, but only as applied to those who would reach Texas’s 22-week gestational limit for a legal abortion while the ban was in place. This ruling comes less than a week after it had allowed them to continue.  See opinion and reports from Fort Worth Star-Telegram, Reuters, The Hill, and Bloomberg.

  • In the face of a Second Amendment challenge, the Fifth Circuit confirmed the validity of a statute that prohibits the possession of a firearm by a person who is subject to a restarting order due to a conviction for domestic violence.  See opinion.

Appellate Practice Tips

A recent Texas Appellate Law Podcast this week covered tips for using an iPad as appellate lawyer with guest Jeff Richardson, whose blog is iPhone J.D. Thanks, Jeff for the email!

April 24, 2020 in Appellate Advocacy, Appellate Practice, Appellate Procedure, Federal Appeals Courts, United States Supreme Court | Permalink | Comments (0)

Wednesday, April 22, 2020

Phantom Precedents in Ramos v. Louisiana

If stare decisis really is for suckers, the Supreme Court’s decision in Ramos v. Louisiana[1] was an unremarkable end to the anachronistic Apodaca v. Oregon[2] decision permitting states to convict criminal defendants without unanimous jury verdicts. But for those that have argued for a strong stare decisis tradition and defended the doctrine’s importance, the Ramos opinion’s sustained discussion of when to overrule a precedent is a fascinating read.

First, Ramos reiterated that a relatively weak tradition of stare decisis is in vogue on the Supreme Court. In a process that culminated in 2018’s Janus v. AFSCME opinion,[3] the Court has recently moved towards a version of stare decisis that focuses on the poor quality of a precedent’s reasoning, even permitting the Justices to overrule on that basis alone. In contrast, a strong stare decisis tradition sets “poor reasoning” as a condition precedent to stare decisis analysis, not a ground for reversal; such reversals occur only if there is a special justification, such as unworkability, strong reliance interests, new legal developments, or vastly changed facts. Writing for the Court, Justice Gorsuch quoted the weak version of stare decisis in Franchise Tax Board of California v. Hyatt—which in turn relied upon the formulation in Janus—to emphasize that the quality of a decision’s reasoning is the primary consideration within stare decisis analysis.[4] His argument against Apodaca then focused on its “gravely mistaken” reasoning, which made it an outlier in the Court’s Sixth Amendment and incorporation jurisprudence and engendered the reliance of only two states.[5] In addition to the three Justices that joined Gorsuch’s opinion in full, two concurring Justices, Cavanaugh and Thomas, would likewise make the quality of a precedent’s reasoning the primary consideration, if not the singular consideration, in the stare decisis tradition.[6] And even the three-Justice dissent made its argument in defense of Apodaca on the weak stare decisis tradition’s terms. The dissent—an unexpected alignment of Justices Alito, Roberts, and Kagan—argued that Apodaca was not nearly as poorly reasoned as the majority would have it, but was silent on whether such poor reasoning should be a reason to overrule.[7] The dissent’s silence on that point was even more thunderous given Kagan’s prior insistence that “it is not enough [to overrule because] five Justices believe a precedent wrong.”[8]

Second, Ramos introduced a new facet to the stare decisis debate. Can some precedents be so fractured and incomprehensible as to be no precedent at all, becoming a “phantom precedent?”[9] Three Justices that joined the primary opinion in full argued that Apodaca was just such a jurisprudential apparition. For that trio, Apodaca failed to supply a “governing precedent” because its controlling opinion came from a single Justice, Powell, supporting a theory of “dual-track” Sixth Amendment incorporation that a majority of the Apodaca Court itself rejected.[10] And while Sotomayor wrote separately without adopting that portion of the primary opinion, her own view was remarkably similar. She claimed Apodaca was a “universe of one” that was so “irreconcilable with . . . two strands of constitutional precedent” that its precedential value was minimal, if not evanescent.[11]  

Those opinions offered little insight into how to identify the phantom precedents within the many fractured opinions the Court issues each term. Perhaps Apodaca was uniquely unable to generate precedential value; without any guiding principles to identify why that decision was a phantom, it is hard to tell. Perhaps the view that Apodaca is a phantom precedent merely expresses discomfort with the rule in Marks v. United States that the Court’s holding in a fractured opinion is “that position taken by those Members who concurred in the judgments on the narrowest grounds.”[12] Powell’s Apodaca opinion seems to fit that bill, but perhaps the Ramos Court marks the start of a new method to measure the holding of fractured opinions. Or perhaps Ramos intimates the Supreme Court’s desire to allow some of its opinions to have little or no precedential effect, much like the now commonplace unpublished decisions that I have discussed elsewhere on this blog.

Ramos is a complex decision with many layers to unpack beyond the few I’ve mentioned here. But its take on stare decisis is utterly fascinating. In future years, it may mark an important turning point for a doctrine whose death has been reported with great exaggeration.

 

[1] 590 U.S. ___ (2020).

[2] 406 U.S. 404 (1972).

[3] 585 U.S. __ (2018).

[4] Ramos, 590 U.S. ___ (2020) (slip op., at 20).

[5] Id. (slip op., at 20-22).

[6] Id. (slip op., at 7-8, 10-11) (Kavanaugh, J., concurring) (suggesting that the first factor in stare decisis analysis is whether the precedent is “grievously wrong,” which Apodaca was); Id. (slip op., at 2-3) (Thomas, J., concurring) (claiming that “demonstrably erroneous” decisions must be overturned irrespective of any practical stare decisis considerations).

[7] Id. (slip op., at 13-15) (Alito, J., dissenting).

[8] Knick v. Township of Scott, 588 U.S. __ (2019) (slip op., at 16) (Kagan, J., dissenting) (citing Kimble v. Marvel Entertainment, LLC, 576 U.S. __ (2015) (slip. op., at 8)).

[9] Ramos, 590 U.S. ___ (2020) (slip op., at 7) (Alito, J., dissenting).

[10] Id. (slip op., at 16).

[11] Id. (slip op., at 2) (Sotomayor, J., concurring).

[12] 430 U.S. 188, 193 (1977).

April 22, 2020 in Appellate Advocacy, Appellate Court Reform, Appellate Justice, Appellate Practice, Appellate Procedure, Federal Appeals Courts, Rhetoric, United States Supreme Court | Permalink | Comments (0)

Monday, April 20, 2020

Historic Arguments During Historic Times

I’m a Houstonian, so today’s below zero oil prices , a first from reports I’ve seen, have been top of mind as I work from my dining room table during the COVID-19 pandemic. That entire last sentence makes my head spin. Buyers paying sellers not to deliver oil. It’s historic. Just four months ago we were looking at the start of a new decade, full of hope. Now, even as I look out my window at the blooming flowers and see all the signs of spring (or early summer here in Houston), I wonder will my family be okay? My students, friends, and colleagues? My city? Our country? How much will institutions have to change? What will the world look like when it’s over?

As much as I love studying history, living through it is painful. Some of the historic events we are seeing, COVID-19 death rates topping the cause of death, record unemployment, speak of incredible individual suffering. Other historic changes are being forced upon institutions slow to change.

Over my last several posts, I’ve followed the Supreme Court’s postponement of Oral Arguments, then the holding pattern that arguments this month and next were in. Finally, on April 13, 2020 the Court issued a release stating that 13 cases would be heard by telephone. Here is an excellent discussion of the Court’s pivot.

As we saw in last week’s post by Texas Supreme Court Justice Eva Guzman, other appellate courts have moved oral arguments online with success. Interestingly, the Supreme Court has decided to do its arguments telephonically, despite the video conferencing technology that is readily available and being used in other courts around the country. As Amy Howe points out “They may have decided to go with remote arguments by teleconference in the short term, despite the potential effect on the dynamics of the arguments, because they would rather live with the longer-term implications – live audio versus live video – of that choice.” I’m interested to see how well the justices avoid talking over each other and what impact the format has on the advocates. As we’ve all probably seen in our own Zoom meetings, people talk on top of each other over video conference, too, so video conferencing may not solve much on that account.

On the whole, the Court’s shift to having some form of remote oral argument is a big one. It was likely a difficult decision, but it was a necessary one. In a time of great uncertainty, knowing that our highest court is operational and willing to decide the complex and important cases that come before can give some reassurance. It’s a signal that even though it isn’t business as usual, business is getting done.

April 20, 2020 in Appellate Advocacy, Appellate Court Reform, Federal Appeals Courts, United States Supreme Court, Web/Tech | Permalink | Comments (1)

Sunday, April 19, 2020

Writing a Statement of Facts

In law school, students study legal doctrine in many areas of the law and spend a substantial amount of time reading case law, writing memorandums and briefs, and engaging in real-world simulations.

Of course, while the law is relevant to the disposition of any case, it does not often determine the outcome of a particular case. For example, statutes or constitutional provisions may be ambiguous and precedent may not adequately address the relevant legal question. Rather, the most important aspect of a case is the facts. The facts often determine how the law is applied and present equitable considerations that counsel in favor of a particular outcome. 

Thus, when drafting a trial brief, appellate brief, or pretrial motion, the statement of facts is critical and, arguably, the most important part of your brief. Below are several tips that will help to maximize the persuasive value of your statement of facts.

1.    Tell a story

In your statement of facts, do not simply list the facts or describe the facts in a bland or boring manner. Instead, tell a story – and make it interesting. Doing so will capture the reader’s attention and engage the reader in your story. Consider the following examples:

When the plaintiff was terminated, the defendant (the plaintiff’s employer) completely disregarded the relevant terms of the plaintiff’s employment. Furthermore, the defendant made disparaging and insulting remarks to the plaintiff that caused the plaintiff to suffer substantial distress, and that demonstrated the wrongfulness of the termination,

***

When terminating the plaintiff, the defendant unapologetically stated, “I don’t care what the contract says because I can do what I want and you could never afford a lawyer.” Additionally, the defendant repeatedly berated the plaintiff, calling her “pathetic, a loser, and an embarrassment to the company.” The plaintiff left the defendant’s office in tears, and as she existed, the defendant yelled, “get the f*** out.”

The second example is far more effective. Through the use of specific facts, it shows, rather than tells, the court why you should win.

Of course, when drafting the statement of facts, you should avoid unnecessary adjectives and over-the-top language. 

Finally, remember that you do not have to state the facts in chronological order. Although this may be appropriate in some cases, you can – and should – be creative in your organization. For example, if your case involves the breach of a contract, you may want to begin by describing the events constituting the breach and detailing the damages that your client suffered. Simply put, just as some movies begin with the ending, some briefs can too if doing so enhances the persuasive value of your argument.

2.    Don’t be argumentative

One of the worst things that you can do in a statement of facts is to argue. First, your facts should be drafted in a manner that makes you appear objective. Doing so will engender credibility with the court. Second, arguing in the facts may lead a court to believe that you are presenting an incomplete or biased version of the facts. Third, and perhaps most importantly, when you argue, you are telling, rather than showing, the court why you should win. No one likes to be told what to do.

3.    You can – and should – still advocate

Although you should not argue, you should still advocate. For example, you should emphasize favorable facts over non-favorable facts. You should organize the statement of facts in a manner that highlights the most favorable facts and de-emphasizes unfavorable facts. In so doing, you will be advocating without arguing, and persuading without misleading.

4.    Acknowledge unfavorable facts

Be sure to acknowledge unfavorable facts. In so doing, you should rely on other facts to show why the unfavorable facts should not affect the outcome you seek. If you conceal or misrepresent unfavorable facts, your adversary will highlight this error and your credibility with the court will diminish substantially.

5.    Eliminate irrelevant facts

You should never include irrelevant facts in your brief. Doing so will undermine the persuasive value of your statement of facts and distract the reader. Consider the following example:

The plaintiff is a private figure and employed as a cashier at Whole Foods Supermarket. On January 11, 2012, while the plaintiff was in the midst of her shift and serving customers, the defendant (the store manager) loudly stated that the plaintiff was a “liar, a whore, a criminal, and a disgusting human being.” As a result of these statements, several customers ridiculed the plaintiff and the plaintiff suffered severe emotional distress.    

                                                                                                  ***                                                                                                                                               

The plaintiff is a private figure who was born in Austin, Texas. A talented musician and artist, the plaintiff attended the University of Texas for two years before deciding to pursue a career as an actor. The plaintiff enrolled at the Texas Academy of the Arts and completed a twelve-week intensive dramatic acting program. Soon thereafter, the plaintiff auditioned for many roles, including on the well-known soap opera General Hospital and the primetime television show Breaking Bad. During this time, the plaintiff obtained a job at Whole Foods Supermarket to make ends met while auditioning. The plaintiff enjoyed good relationships with her colleagues. Unfortunately, two months after being employed, and during her afternoon shift, the defendant (the store manager) loudly stated that the plaintiff was a “liar, a whore, a criminal, and a disgusting human being.” As a result of these statements, several customers ridiculed the plaintiff and the plaintiff suffered severe emotional distress.

The first example is far more effective than the second. The second example contains facts that are entirely irrelevant to the legal issues (who cares about the plaintiff’s acting career?), and these facts distract the court from the facts that support the relief plaintiff seeks.

6.    Describe the record accurately

Always describe the record accurately. If you misrepresent facts in the record, you will immediately – and perhaps irreparably – damage your credibility with the court.

7.    You can include law in the facts if it's appropriate

When writing the statement of facts, you can, in appropriate circumstances, include relevant case law or statutory language if doing so would assist the court in resolving the legal issue. For example, assume that your client was arrested on suspicion of driving while intoxicated, and upon arrest, law enforcement, in violation of the U.S. Supreme Court’s holding in Riley v. California, searched your client’s cell phone without a warrant. In your statement of facts, you could – and should – say the following:

On February 20, law enforcement officers stopped the defendant while he was driving home. During the stop, the officers detected the smell of alcohol and subsequently administered a breathalyzer test. The defendant’s blood-alcohol level was .09, in violation of the legal limit of .08, and the defendant was placed under arrest. While under arrest, and over the defendant’s objection, law enforcement conducted a warrantless search of the defendant’s cellular telephone. This search was unlawful because, in Riley v. California, the United States Supreme Court unanimously held that warrantless searches of cellular telephones incident to arrest violate the Fourth Amendment. Accordingly, all evidence seized from the defendant’s cellular telephone should be suppressed.

As you can see from the above example, the U.S. Supreme Court’s decision in Riley is relevant to the legal question and demonstrates that the search was unlawful. Thus, in a situation like this, including the relevant case law will enhance the persuasive value of your argument and demonstrate beyond doubt that the court should grant the relief you seek.

8.    It's not just what you say, but how you say it 

Be sure to draft a well-written, well-organized, and concise statement of facts. For example:

  • Avoid long sentences (over twenty-five words)
  • Avoid complex or esoteric words (and Latin)
  • Use transition words to ensure flow and clarity
  • Avoid unnecessary repetition
  • Avoid long paragraphs (paragraphs should be approximately three to five sentences)
  • Eliminate unnecessary adjectives and minimize the use of adverbs
  • Avoid nominalizations
  • Never insult the lower court or your adversary
  • Ensure that your brief is free of spelling errors and grammatically correct
  • Know when to break the rules to maximize persuasion      

Ultimately, the statement of facts is your best opportunity to explain why you should win. Following the above tips will ensure that you avoid the common errors that courts frown upon and that undermine the persuasive value of your brief.

April 19, 2020 in Appellate Advocacy, Appellate Practice, Law School, Legal Profession, Legal Writing, Moot Court | Permalink | Comments (0)

Monday, April 13, 2020

Guest Post: Zoom Arguments--A View from the Texas Supreme Court

We are thrilled to welcome Justice Eva Guzman of the Texas Supreme Court as our guest author.  Justice Guzman has served on the Texas Supreme Court since 2009.  Her Court recently held Zoom oral arguments.  Here are her thoughts on the Zoom argument experience.

The Covid‑19 crisis impacts our everyday existence to an unprecedented degree. But the work courts do must continue. The dedicated judges of the Texas judiciary have united to address novel challenges in novel ways. And at a time of great uncertainty and turmoil, the Texas bar has also stepped up to meet client needs. Social media has played a vital role in disseminating information to the public and the bar in an evolving legal landscape. In different ways, #We’reInThisTogether.

#AppellateTwitter has been a positive space for lawyers and judges to share information, ideas, and practice tips. So, with the Texas Supreme Court’s first‑ever web-based oral arguments looming, I leveraged the #AppellateTwitter community for ideas on best practices. With those arguments successfully in the history books, I will repay the favor with a few tips of my own for the bench and bar.

Preparation is key. On our end, Clerk of the Court Blake Hawthorne, OCA Director David Slayton, and an OCA team led by Casey Kennedy worked tirelessly to make sure every detail was just right—from security to backgrounds, timers, court announcements, monitoring of the argument itself and more. The arguments were relatively seamless. Before the big day, Blake met with the lawyers in each case via Zoom to ensure their familiarity with the technology, lighting, backgrounds, and audio and to answer any questions. I also strongly encourage advocates to practice their argument via Zoom to work through any kinks. If possible, the justices should also test the program by gathering on the platform a day or so before the argument to ensure familiarity with the process.  Practice makes perfect!

Zoom arguments require different pacing. If possible, advocates should pause in between their points to allow for questions. Judges could signal they are about to ask a question by unmuting their mics, moving closer to the computer camera, and addressing counsel by name before asking a question. Speaking over each other happens in live arguments, but the nature of video conferencing makes it more awkward.

Don’t forget the details.

  • Choose an appropriate background or location. Our judges used a uniform background to help set the tone.
  • Fully charge your battery and use a power cord. Batteries discharge quickly while using video applications. 
  • Maximize internet connectivity to avoid dropping off mid‑argument. Disengaging other household devices from wifi is helpful but may prove difficult with so many children distance learning these days.

Finally, don’t forget about time management. Blake Hawthorne’s inclusion of a screen for the “timer” was ingenious, and having a set time for judges and participants to log into their waiting rooms was critical to staying on schedule. 

April 13, 2020 in Appellate Advocacy, Appellate Practice, Current Affairs, Oral Argument, State Appeals Courts, Web/Tech | Permalink | Comments (0)

Sunday, April 12, 2020

Tips for Giving An Effective and Persuasive Online Oral Argument

Given the unprecedented and challenging times that have arisen due to the coronavirus, many courts (and law schools) are now conducting oral arguments online (e.g., via Zoom). For many lawyers and most law students, this is likely the first time in which they have been required to deliver oral arguments online.

Below are several tips (some rather obvious) to help lawyers and law students deliver effective and persuasive online oral arguments.

1.    Make sure that you are positioned correctly

When giving an oral argument – or any presentation – online, be sure to observe the following guidelines.

First, whether you are seated or standing, make sure that the camera on your computer is at eye level. Second, you should position yourself so that you are approximately at arm’s length from the camera. Third, to ensure that you are making eye contact with the judge (or professor) always look straight into the camera and avoid looking at the screen. Fourth, make sure that your volume is at the appropriate level so that you can be heard clearly.

2.    Choose a professional background

Be sure to position your desk and computer in an area that includes a professional background and that omits any distracting images. Additionally, eliminate all excess noise.

Also, make sure that the lighting is properly set. For example, if there is too much light in the background, it can cast a glare on the screen and distract the person to whom you are speaking. Finally, be sure to dress professionally.

3.    Avoid Unnecessary Physical Gestures

When presenting your argument, avoid unnecessary movements (e.g., hand gestures), particularly those that will take you out of the camera’s range. Unnecessary movements will distract your audience and detract attention from the substance of your argument.

4.    Get to the point quickly – the judge (or professor, or anyone) may get more easily distracted in an online format

In an online oral argument, there is an increased possibility that a judge (or professor, or anyone) may get distracted more easily, particularly if the environment within which a judge or professor is hearing the argument is less than ideal (e.g., in a home where other family members are present in the immediate vicinity). As such, you should prepare a short, one-page outline that contains the strongest legal and factual arguments supporting the remedy you seek and state them at the beginning of your argument. Indeed, the most persuasive oral arguments include a powerful beginning where an attorney: (1) states clearly the outcome and remedy that the attorney seeks; and (2) explains why the law and facts support that outcome. In doing so, be sure to omit extraneous or irrelevant facts and legal authority. 

5.    Follow all of the rules regarding oral argument as if you were giving the argument in person

You should approach online and in-person oral arguments in the same way. For example:

  • Have a powerful introduction and roadmap
  • State clearly the outcome you seek and begin with the most favorable law and facts that support this outcome
  • Address weaknesses in your case (e.g., unfavorable law and facts) and explain why they do not affect the outcome you seek
  • Answer the judge’s questions directly
  • Be prepared to adjust your argument strategy depending on the questions and concerns expressed by the judge (or judges)
  • Always be honest – never mislead the court or attempt to hide unfavorable law or facts
  • Don’t be a jerk – never attack your adversary and never use over-the-top words or unnecessary adjectives

6.    Be prepared for technical issues

Technical issues sometimes arise when using online platforms such as Zoom or Skype. For example, when I was interviewed via Skype for a faculty position several years ago, my screen suddenly went black and I could not see the faculty members who were interviewing me (although they could still see me). If any technical issues arise, be sure to maintain your composure and go with it. Indeed, in the interview where my screen went black, I still got the job.

7.    Remember that this is new for everyone

Don’t be intimidated or overly concerned about performing an effective online oral argument. This is a new experience for many judges and law professors. At the end of the day, just be yourself – speak conversationally and remember that the skills needed to deliver excellent in-person oral arguments are largely the same as those needed to deliver excellent online oral arguments. And appreciate that, in delivering an online oral argument, you are learning a new skill that may prove valuable in the future.

April 12, 2020 in Appellate Advocacy, Appellate Practice, Appellate Procedure, Law School, Legal Profession, Moot Court, Oral Argument | Permalink | Comments (0)

Friday, April 10, 2020

Appellate Advocacy Blog Weekly Roundup Friday, April 10, 2020

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Each week, the Appellate Advocacy Blog Weekly Roundup presents a few tidbits of news and Twitter posts from the past week concerning appellate advocacy. As always, if you see something during the week that you think we should be sure to include, feel free to send a quick note to either (1) Dan Real at DReal@Creighton.edu or on Twitter @Daniel_L_Real or (2) Catharine Du Bois at DuBoisLegalWriting@gmail.com or on Twitter @CLDLegalWriting.

US Supreme Court Opinions and News

  • The Supreme Court blocked an extended deadline for absentee voting in the Wisconsin primary this week. In the wake of COVID-19 shutdowns across the country, Governor Tony Evers had  attempted to stop in-person voting. The District Court overturned the ban but allowed absentee ballots mailed and postmarked after election day, April 7, to be counted if received by April 13. The Supreme Court overturned the District Court’s deadline extension, saying that “[e]xtending the date by which ballots may be cast by voters . . . for an additional six days after the scheduled election day fundamentally alters the nature of the election.” See the opinion and reports in The New York Times and NBC News.
  • The Supreme Court will not hear a challenge to the DC Metro policy that bans religious ads. The Archdiocese of Washington argued that the Washington Transit Authority policy violates the First Amendment.  See reports from USA Today, The Washington Times, CNN, and The Hill.
  • The Supreme Court has cancelled April oral arguments due to COVID-19. A News Release stated that the Court will “consider rescheduling some cases from the March and April sessions before the end of the Term, if circumstances permit.”  See comment from The Washington Post, The Hill, CNN, and Reuters.    

Federal Appellate Court Opinions and News

  • The Fifth Circuit has allowed Texas to enforce its abortion ban during the COVID-19 pandemic. The court overturned a Texas district court, which had blocked the ban because it prevented a “Texas women from exercising what the Supreme Court has declared is [a] fundamental constitutional right to terminate a pregnancy before a fetus is viable.” See the decision and reports from The Hill, Reuters, and The Associated Press
  • The D.C. Circuit has overturned the lower court’s block of four death penalty sentences, allowing the Justice Department’s plan to resume executions of federal death row inmates after a 16-year hiatus. The Federal Court had stayed the executions and had issued a preliminary injunction based on concerns about the government’s lethal injection method. See decision and reports from Courthouse News, The Associated Press, and The Wall Street Journal.
  • The First Circuit rules that “so help me god” in the naturalization oath for U.S. citizenship is constitutional. The ruling rejected an atheist claim that it violated her First Amendment rights. See report from Bloomberg Law (subscription required).

Covid-19 and the Courts

The Judicial Conference has temporarily approved the use of video and teleconferencing for some criminal proceedings in light of the COVID-19 pandemic.  See the News Release.

April 10, 2020 in Appellate Advocacy, Federal Appeals Courts, United States Supreme Court | Permalink | Comments (0)

Friday, March 27, 2020

Appellate Advocacy Blog Weekly Roundup Friday, March 27, 2020

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Each week, the Appellate Advocacy Blog Weekly Roundup presents a few tidbits of news and Twitter posts from the past week concerning appellate advocacy. As always, if you see something during the week that you think we should be sure to include, feel free to send a quick note to either (1) Dan Real at DReal@Creighton.edu or on Twitter @Daniel_L_Real or (2) Catharine Du Bois at DuBoisLegalWriting@gmail.com or on Twitter @CLDLegalWriting.

US Supreme Court Opinions and News:

  • The Supreme Court ruled that states can eliminate the insanity defense for accused criminals who suffer from mental illness. The ruling upholds a Kansas law that prevents defendants from arguing that diminished mental capacity impaired their ability to understand right from wrong. The court rejected the claim that the law was unconstitutional.  See the opinion and report from the Wall Street Journal, Reuters, Hill, NPR, and APNews.

  • The Supreme Court ruled that states may not be sued for copyright infringement. Specifically, the Court held that the Copyright Remedy Clarification Act was an unconstitutional abrogation of state sovereign immunity. The ruling prohibited an underwater videographer’s suing North Carolina for using his copyrighted videos of a submerged ship used by Blackbeard. See the opinion and reports from NPR, Reuters, Bloomberg, ArsTechnica, and National Law Review.

  • The Supreme Court unanimously ruled that a lower court used the wrong legal standard in a racial discrimination lawsuit. The Court ruled that, for his discrimination case to survive, media mogul Byron Allen must show that race was the determining reason that Comcast refused to carry his channels and sent the case back to the Ninth Circuit for reconsideration. Legal experts and civil rights groups warned that the Comcast victory could make it more difficult to bring racial discrimination cases by setting a high bar. See the opinion and reports from Reuters, Bloomberg, CNBC, and The Hill.    

    The three decisions were issued remotely this week. See reports on the three decisions from The New York Times, the Washington Post, and the Wall Street Journal.

Federal Appellate Court Opinions and News:

  • The Second Circuit affirmed the ruling that the president’s practice of blocking critics from his Twitter account violates the First Amendment. The court will not rehear the case despite a request from the Justice Department. See the ruling and reports from The Washington Post, Politico, The Washington Times, The Associate Press, and CNN.

  • The First Circuit upheld a ruling that the Justice Department cannot compel cities to comply with federal immigration authorities as a condition of receiving federal grants. The cities of Providence and Central Falls had sued the Department of Justice for requiring that recipients of a federal criminal-justice grant cooperate with authorities in the enforcement of federal immigration law. The ruling states that the statutory formula outlining how the grant can be allocated “simply does not allow the DOJ to impose by brute force conditions on [such] grants to further its own unrelated law enforcement priorities.“ See the ruling and reports from Bloomberg and Providence Journal.

COVID-19 and the Courts

  • More courts are holding virtual oral arguments and some are making those arguments available online.  For example, see the Eleventh Circuit’s announcement, the Ninth Circuit’s announcement, the DC Circuit’s announcement, and the Second Circuit’s announcement.
  • New York has issued a wide-ranging order suspending statutes of limitation.  The  executive order temporarily suspended statutes of limitations, service, and other legal time periods through April 19, 2020.

  • Montana Supreme Court Chief Justice has asked state judges to release nonviolent inmates to protect against the spread of Covid-19. See report.

Advocacy tips

Tips from practitioners on telephonic oral argument:

March 27, 2020 in Appellate Advocacy, Appellate Practice, Appellate Procedure, Federal Appeals Courts, Oral Argument, United States Supreme Court | Permalink | Comments (0)

Monday, March 23, 2020

Moot Court in the Age of Coronavirus

In the wake of the COVID-19 outbreak, Arizona Law decided to move our 2L/3L intramural moot court competition online.  Because our university's announcement about moving to online classes came during spring break, we determined that students who had traveled home for spring break would probably want to stay there to complete classes.  Therefore, we needed an option to allow students to conduct arguments remotely.

While our competition is rather small, it is important!  The winners go on to represent our school at the ABA's national appellate advocacy competition.

While our competition rounds start later this week, for the past several days our moot court board has been hosting practice rounds via Zoom.  I thought it might be helpful to other schools if I shared some tips for creating the competition and for running the rounds.

Competition structure:  Each round consists of three judges, a bailiff, and two advocates.  The bailiff is responsible for creating the Zoom meeting link, disseminating it to participants, and keeping time for the round. I have asked the bailiffs to list me as a co-host for the round in case of an emergency.  As soon as all participants are in the meeting, the bailiff will create break-out rooms for the advocates and the judges.  You can find more information about Zoom breakout rooms here.  The breakout rooms allow the judges to ask the bailiff any questions before the round begins. They also allow the judges to deliberate after the round.

Although the judges preside over two consecutive rounds, we are creating a Zoom link for each separate round. This prevents the second group of advocates from disrupting the end of the first argument.

Tips for judges: On Friday, I asked our moot court board what challenges they had seen in running the practice rooms.  They had some GREAT tips for judges to help make rounds run smoothly.

  • Technology Tips
    • Be sure to keep your microphone muted when you are not talking. 
    • Don't forget to unmute when you want to talk.
      •  I think that the above two points are the cardinal rules for any and all Zoom meetings.
    • Consider wearing a headset or earbuds to cut out background noise and to allow yourself to hear and be heard better.
    • Try to minimize Internet usage in your house during the argument.  Your connection will be better if your kids aren't streaming Disney+ while you are trying to judge (or argue!) a round.
      • When I am teaching an online class I try to close everything on my computer but Zoom and my notes. I don't want loud email notifications during my class.
    • Use gallery view on Zoom to better see everyone.
  • Setting Tips
    • Be mindful of the lighting. Back lighting will make you hard to see.  Front lighting will help you appear clearer.
    • Be sure that there is nothing distracting behind you (or in the room with you!).  My cats get locked out of my office during most meetings.
  • Argument Mechanics
    • Don't mark off for a poor sound connection.  Students have various levels of Internet service.
    • Also, don't mark off for lack of professional attire.  Many of our students went home for spring break not knowing that they would be staying home indefinitely while the whole world shut down. Now, as stores shut down, they might not have the ability to get professional clothes in a timely manner.
    • Don't be afraid to interrupt!  And don't be offended if students slightly talk over you.  Given the lag with online communications, some amount of interruption is inevitable.
      • Try to lean forward, raise your finger, or something to signify to the advocates that you are trying to ask a question.
      • But please ask questions!  This makes the students' experience so much better!
    • Don't be offended if students ask for clarification.

Tips for Participants

  • Read the judge tips--many of those apply to you!
  • Use gallery view to see all judges and the bailiffs. Watch carefully for social cues that indicate the judge has a question, like leaning forward. If you see such a cue, pause.
  • Dress as professionally as you can in the situation. If you don't have a suit (or at least a jacket) try to wear something neutral. Now isn't the time to pull out your "taco cat shirt." (sorry, I love my taco cat shirt).
  • Be mindful of your background.  You don't want the judges asking you about the poster for your favorite political candidate that is hanging the background.
  • Have fun and be patient! COVID-19 is fundamentally changing how courts operate.  Some of this is good. It is time for courts to get up to speed on technology and offer more video/telephonic hearings.  But, these types of proceedings require adjustment by everyone involved. Your video moot court experience will be a valuable one.

Good luck to all participants, and we here at the Appellate Advocacy Blog hope that you stay safe and healthy!

March 23, 2020 in Appellate Advocacy, Law School, Moot Court, Web/Tech | Permalink | Comments (1)

Saturday, March 21, 2020

One Successful Process for Zoom Moot Court Competitions

I hope everyone is staying safe as we navigate our new COVID-19 reality.  In response to the virus, some law schools are canceling oral arguments and moot courts, while others are considering moving arguments online. 

At Pepperdine Caruso School of Law, we just successfully held the preliminary rounds of our annual first-year moot court competition via Zoom.  We are one the first schools to take such a large tournament--with multiple levels of rounds and cash prizes--online.  As I helped move us to an online format in one crazy week, so many people inside and outside of Pepperdine gave me incredible support.  In an effort to pay that support forward, I am sharing our process here.  I hope our lessons can help other schools and moot court competitions make this transition.  Our experience was very positive.  The students are grateful we gave them a formal oral argument opportunity, and many sent thank you emails and even fun Zoom screen shots to us. 

In practice, many of us have appeared via video or phone for short hearings, and even for appellate oral arguments.  See https://www.ca9.uscourts.gov/content/view.php?pk_id=0000000995 (video and audio recordings of the Ninth Circuit argument in Sierra Club v. Trump, 929 F.3d 670 (9th Cir. 2019), where Judge Wardlaw appeared via Zoom).  Currently, courts all over the country are holding their oral arguments online.  See, e.g., https://www.courts.ca.gov/2dca.htm (California Court of Appeal website noting: “Counsel will appear remotely via video conference, by telephone conference, or by other electronic means as available and arranged by the Clerk's Office”).

We knew we wanted to give our students the traditional moot court experience in these new circumstances, and we chose to conduct arguments using Zoom.  We made one major change from the past, as we decided to let students opt out of the arguments to help students who had to leave our dorms quickly or who were otherwise struggling.  Happily, about half of our first-year students still chose to participate. 

We usually have two teams of two advocates each, or four students, argue in each room of our preliminary argument rounds.  With about 90 students arguing this year, we placed 4 students and 2 judges in each of our 23 Zoom "courtrooms." 

To run courtrooms at more or less the same time, we needed 23 Zoom host judges who could create Zoom meetings open to anyone with the links.  These judges also kept time, though we had the students run timers on their phones too.  We suggested on-screen timers shared to the whole courtroom, but the students were concerned the timers would take too much screen space, even with Zoom’s side-by-side view.

Once we identified trusted members of our community to be the Zoom host judges, we created and shared a step-by-step guide for making an open Zoom link.  We asked hosts to name their meetings "Courtroom One 4:15," and so on.  We then collected the hosts' Zoom links and added them to our Google Sheet listing all the students, courtrooms, and argument times.  We shared the sheet with the courtroom assignments and links to all of our first-year competitors.   

We had great support from our faculty, who joined some Moot Court Team members and Law Review students, as well as a few alums, to be our roughly 40 judges.  Some judges helped with multiple rounds, and many judges told us this was almost as fun as in-person arguments.

We ran three preliminary rounds, to spread out the ability for our Moot Court Board and me to “Zoom in” to meetings and help as needed.  We used ten courtrooms each during two evening rounds, and we needed to pop in to only two courtrooms to help.  The next morning, our three courtrooms ran without a hitch.  Having trusted judges as hosts really helped, and we recommend this approach.

We made our score sheet into a Google Form for the judges.  It was fun to watch the scores roll in after the rounds.  Moreover, our competition co-chairs had a spreadsheet right away with the score sheet data.  These chairs could quickly identify our top four teams for the semi-final round, unlike when they type in scores from paper forms.

We will have four teams in our semi-final round Monday night, and then the top two will go to our final round Wednesday night.  We will share the Zoom link for our final round courtroom with our whole school, and we will have sitting judges serving on our final round bench.  We made the judges a separate deliberation room Zoom meeting, to be doubly sure their voting discussion will be confidential. 

In our law school virtual classrooms today, we can still give our students a traditional first-year highlight by moving oral arguments online.  Many of our courts are doing the same thing, and after holding these successful digital arguments at Pepperdine, I can promise you will be glad you saved moot court by moving online too. 

March 21, 2020 in Appellate Advocacy, Appellate Practice, Appellate Procedure, Current Affairs, Law School, Legal Profession, Moot Court, Oral Argument, Web/Tech | Permalink | Comments (0)

Tuesday, March 17, 2020

Supreme Court Argument Postponement amid Pandemic


Yesterday, the Supreme Court postponed two weeks of Oral Arguments, releasing this statement:

In keeping with public health precautions recommended in response to COVID-19, the Supreme Court is postponing the oral arguments currently scheduled for the March session (March 23-25 and March 30-April 1). The Court will examine the options for rescheduling those cases in due course in light of the developing circumstances.

The Court will hold its regularly scheduled Conference on Friday, March 20. Some Justices may participate remotely by telephone. The Court will issue its regularly scheduled Order List on Monday, March 23 at 9:30 a.m. The list will be posted on the Court’s Website at that time: https://www.supremecourt.gov/orders/ordersofthecourt/19.

The Building will continue to be open for official business, and filing deadlines are not extended under Rule 30.1. The Court is expanding remote working capabilities to reduce the number of employees in the Building, consistent with public health guidance. The Building will remain closed to the public until further notice.

The Court’s postponement of argument sessions in light of public health concerns is not unprecedented. The Court postponed scheduled arguments for October 1918 in response to the Spanish flu epidemic. The Court also shortened its argument calendars in August 1793 and August 1798 in response to yellow fever outbreaks.

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As has been well-documented, those older than 60 are at greater risk of serious complications and death from COVID-19. Currently, 7 of 9 justices are over 60. Two justices, Ruth Bader Ginsberg and Stephen Breyer, are over 80. Some are already calling for an increase in technological solutions, rather than just postponing to later live hearings.

There are significant numbers of other court closures and scheduling changes happening around the country. As every day brings new announcements, it’s a rapidly changing situation.

March 17, 2020 in Appellate Advocacy, Appellate Justice, United States Supreme Court | Permalink | Comments (0)

Monday, March 16, 2020

Excellent Legal Research and Writing Textbooks for Law Students (and Lawyers)

Developing excellent legal research and writing skills is essential to becoming a competent attorney. Below are some of the most outstanding resources for law students (and lawyers); these books provide excellent real-world tips on how to become a persuasive legal writer and excellent legal researcher.

Bryan Garner, The Winning Brief: 100 Tips for Persuasive Briefing in Trial and Appellate Courts, Third Edition (Oxford University Press, 2014)

In The Winning Brief, Bryan Garner offers law students (and lawyers) with practical and real-world tips to maximize the quality and persuasive value of their wring. Garner includes tips on how to organize a brief, capture the reader’s attention, and edit effectively.

Bryan Garner, Legal Writing in Plain English, Second Edition (University of Chicago Press, 2013)

In Legal Writing in Plain English, Bryan Garner uses real-world examples to show students how to write concise, clear, and persuasive prose. Garner also includes valuable exercises and his advice is applicable to a wide variety of legal documents.

Ross Guberman, Point Made: How To Write Like The Nation's Top Advocates, Second Edition (Oxford University Press, 2014)

Ross Guberman’s book is replete with examples of outstanding writing by the country’s top advocates. Using these examples, Guberman provides students with the techniques necessary to draft excellent and persuasive legal documents.

Noah A. Messing, The Art of Advocacy: Briefs, Motions, and Writing Strategies of America's Best Lawyers (Aspen, 2013)

Professor Messing’s book includes numerous examples of excellent writing that are taken from outstanding motions and briefs. The Art of Advocacy focuses on organization, style, and storytelling, and contains annotations that explain to the reader why particular documents are so effective and persuasive.

Mark Osbeck, Impeccable Research, A Concise Guide to Mastering Legal Research Skills (West, 2010)

Professor Osbeck’s book guides students and new attorneys through each step of the research process. Impeccable Research also includes tips on how to avoid common mistakes when researching and discusses how to address specific difficulties that may be encountered in the research process.

Antonin Scalia and Bryan Garner, Making Your Case: The Art of Persuading Judges (Thompson West, 2008)

In Making Your Case, former Justice Antonin Scalia and Bryan Garner provide invaluable advice to law students and lawyers regarding how to advocate persuasively before a court. The authors discuss, among other things, principles of legal reasoning, briefing, and how to draft an effective argument.

Steven Stark, Writing to Win: The Legal Writer (Three Rivers Press, 2012)

Professor Stark focuses on how to draft persuasive factual narratives and legal arguments, and includes excellent advice on how to draft a variety of real-world documents, such as complaints, answers, trial briefs, and appellate briefs. Additionally, Professor Stark’s book is replete with real-world examples that demonstrate the essence of outstanding writing.

William Strunck, Jr., and E.B. White, The Elements of Style, Fourth Edition (Pearson, 1999)

The Elements of Style shows students and lawyers how to draft clear, concise, and grammatically correct sentences, and is an invaluable resource.

Eric Voight, Legal Research Demystified: A Step-by-Step Approach (Carolina Academic Press, 2019)

Professor Voight provides invaluable instruction that will help students to become outstanding legal researchers. Additionally, Professor Voight includes interactive research exercises that are available on Core Knowledge for Lawyers. Each exercise guides students through the steps identified in the textbook and teaches them to research on Westlaw and Lexis Advance through screen captures and tips. 

Richard Wydick and Amy Sloan, Plain English for Lawyers, Sixth Edition (Carolina Academic Press, 2019)

In Plain English for Lawyers, Professors Wydick and Sloan offer valuable tips to help students draft clear, straightforward, and persuasive legal arguments. This includes, but is not limited to, using simple rather than complex words, drafting short sentences, writing in the active voice, and ensuring that a legal document is easy to read.

Of course, this list is not meant to be exhaustive. There are many excellent books that will assist students and lawyers in developing their research and writing skills. The books listed above, however, are among the best and will certainly accomplish this objective.

March 16, 2020 in Appellate Advocacy, Appellate Practice, Books, Law School, Legal Profession, Legal Writing | Permalink | Comments (0)