Appellate Advocacy Blog

As-Applied Challenges to the Felon-in-Possession Law: Range III

This is a guest post by Professor Dru Stevenson.

The en banc Third Circuit recently re-decided Range v. Attorney General of the United States (Range III), a closely-watched as-applied Second Amendment challenge to the federal ban on felons possessing firearms in 18 U.S.C. § 922(g)(1). The case came back to the Third Circuit on remand from the Supreme Court, to be reconsidered in light of the Court’s decision in United States v. Rahimi. While no circuits have held that the law is facially unconstitutional, there is now a circuit split about the availability of as-applied challenges to the statute. For example, just a week before, the Fourth Circuit rejected as-applied challenges to § 922(g)(1) in United States v. Hunt.

Mr. Range is a fairly sympathetic party in the area of Second Amendment litigation.  In 1995, he pleaded guilty to one count of making a false statement on an application for food stamp benefits (his wife actually completed the application and penned the false statement, but Mr. Range co-signed the application). Range was sentenced to three years’ probation (no jail time), restitution, and a fine. The statute, however, allowed up to five years imprisonment, so the federal statute applied. Years later, after a couple failed attempts to purchase a firearm (he couldn’t pass a background check), he learned that his misdemeanor conviction for welfare fraud prevented him from doing so.  He sued for a declaratory judgment that § 922(g)(1) was unconstitutional as applied to him, and he asked the court to enjoin enforcement of the law if he bought a hunting rifle and a shotgun for home defense.

The district court ruled against him in 2021, and while his appeal was pending the next year, the Supreme Court upended Second Amendment jurisprudence with New York State Rifle & Pistol Ass'n, Inc. v. Bruen. A panel of the Third Circuit applied Bruen and rejected his challenge, but a rehearing en banc resulted in a reversal. While the case was pending at the Supreme Court in 2024, the Court decided Rahimi, which recalibrated the Bruen methodology somewhat, and then granted certiorari in Range. The Court then vacated and remanded the case to the Third Circuit, which brings us to Range III, which mostly reiterates what the Third Circuit said the last time. Each time the Third Circuit has considered Range, it has provided a lengthy discussion of Founding-era firearms laws, with yet more judicial historiography in long concurring and dissenting opinions. The latest round has four concurrences and a dissent.

One feature of the case that sets it apart from most other challenges to § 922(g)(1) is that Mr. Range was not prosecuted for unlawful possession – this is not an appeal of a conviction, or a motion to have charges dismissed. He sought a declaratory judgment that the law was unconstitutional as applied to him.

In a 2022 law review article, I defended the felon-in-possession law. As the Supreme Court noted in Rahimi, our country has a long historical tradition of legislatures and courts disarming individuals and groups considered a threat to public safety or national security. While Mr. Range does not appear to pose a threat to his community (no history of violent crime), any attempt to distinguish “dangerous” from “non-dangerous” felons or felonies will inevitably plunge courts into the same quagmire they now have with the Armed Career Criminal Act (ACCA), in part because so many penal statutes include provisions for both violent and nonviolent variations on the underlying crime. Thus, I mostly agree with Judge Shwartz’s dissent in the Range case, which was joined by Judge Restrepo, and I disagree with the majority opinion. The basic gist of the dissent is that once we reject facial challenges to § 922(g)(1), which the Third Circuit has already done, it is up to Congress to balance the policy tradeoff and decide which felonies should disqualify a person from possessing firearms, even if the answer is “all felonies.”

That said, I also sympathize with the (lengthy) concurrence by Judge Krause, which takes a moderate approach, one that Congress arguably intended when it enacted the law in the first place. On the one hand, Judge Krause explains, the majority simply ignored many historical examples of the government disarming people for committing crimes or seeming to pose a serious threat to public safety. On the other hand, many, if not most, of these examples included a path for an individual to have their rights restored under certain circumstances. Thus, he concludes, courts should not determine whether the law was always (retrospectively) unconstitutional as applied to certain individuals or types of felons, but there should be a way for felons to petition a court for restoration of their firearm rights, and if they provide sufficient evidence that they pose no threat of violence to anyone, a court should be able to grant the petition.

When Congress enacted the gun ban for felons, it included a way for felons to petition for restoration of their gun rights (the statutory phrase is “relief from disabilities”), in 18 U.S.C. § 925(c).  Petitions were to go to the Attorney General, which in practice meant ATF, with judicial review for denials.  The statute provides:

…the Attorney General may grant such relief if it is established to his satisfaction that the circumstances regarding the disability, and the applicant’s record and reputation, are such that the applicant will not be likely to act in a manner dangerous to public safety and that the granting of the relief would not be contrary to the public interest.

Moreover, a reviewing court “may in its discretion admit additional evidence where failure to do so would result in a miscarriage of justice.” 

From the standpoint of traditional doctrines of Constitutional avoidance, this statutory provision seems like the easy answer.  Unfortunately, after some high-profile cases of felons committing crimes after having their firearms rights restored in the 1980’s, Congress stopped this process by defunding it, though the statute remains intact. As ATF explains on their website,

Although federal law provides a means for the relief of firearms disabilities, ATF’s annual appropriation since October 1992 has prohibited the expending of any funds to investigate or act upon applications for relief from federal firearms disabilities submitted by individuals. As long as this provision is included in current ATF appropriations, ATF cannot act upon applications for relief from federal firearms disabilities submitted by individuals.

Mr. Range would presumably be a good candidate for relief under § 925(c) – he is probably the very type of person Congress had in mind when they enacted this. Congress could fix the problem that was before the (deeply divided) Third Circuit, and that has caused a circuit split, by merely omitting this budget rider in the future. Even though gun rights have long been a partisan issue, even the party that champions gun rights has passed on every opportunity so far to revive this law that allows for restoration of gun rights for nondangerous felons.

My proposal for appellate courts like the Third Circuit (and the Fifth and Sixth Circuits) that choose to recognize as-applied Second Amendment challenges to the felon ban is that they try to approximate the system set forth in § 925(c) – to consider whether a petitioner’s “circumstances of [the original felony conviction], and the applicant’s the record and reputation, are such that the applicant will not be likely to act in a manner dangerous to public safety.”  In other words, courts should deem Congress’ backdoor blockage of the petitions for relief as a constructive denial of the petitions, and proceed with judicial review of the case, just as the courts would have done with denials prior to 1992. Of course, the review would necessarily be de novo, rather than whatever standard of review courts may have used when ATF actually processed the petitions and produced a record of decision in each case.

This approach would avoid the perilous and felony-by-felony road that the Third Circuit is heading down at the moment, and would allow the circuits to coalesce around a reasonable approach, the approach Congress originally intended. The evidentiary burden would be on the felon seeking relief – which the majority of the Third Circuit has not embraced, but Judge Krause insisted was necessary in his concurrence, and which the Sixth Circuit has adopted. Proceeding with a constructive § 925(c) approach would also avoid the disruptions to the background check system that Judge Krause warns about, because the individual’s name would be removed from the FBI’s NICS database. In contrast, approaching these cases by whether the underlying felony was “dangerous” or “violent” throws the entire background check system into uncertainty – if whole categories of individuals should never have been there (the majority’s reasoning), how is a local gun dealer supposed to know whether to consummate a sale? Or the FBI to know whether any given individual’s name should be removed (the records sent to the NICS database do not include all the details about the nature of the crime committed). In addition, the majority’s approach in Range is functionally a judicial amendment or rewriting of the statute – the statute stays, but the court is gradually creating a list of felonies that are unwritten exceptions. Finally, it is also worth noting that some individuals with felony convictions for nonviolent crimes may also have a (sometimes recent) history of violence, even though their violent acts may yet have resulted in felony convictions for a variety of reasons (charged as misdemeanors instead, prosecutors decided it was a low-priority case or had evidentiary problems, etc.).

I have a second, more modest proposal about “as applied” Second Amendment challenges in general. In Bruen and Rahimi, the Court has carved out some categories of exceptions to the Second Amendment, although it has left the parameters of these exceptions mostly undefined and uncertain. They have said that some types of dangerous individuals can be disqualified, some types of unusually dangerous and uncommon weapons can be banned, some regulations of firearms commerce can exist, and some sensitive places can be gun-free zones. Lower courts are now wrestling with undefined categories, and legal academic commentators are still debating where the lines should be. As-applied challenges are inherently individualized – a court decides whether it would be unconstitutional for the law to apply to this person.  Due to the highly particularized nature of these decisions, it would be appropriate for a court to rule on more than one of these categories for the as-applied constitutionality of the law. For example, the Third Circuit mentions that Mr. Range claims he only wants a rifle for hunting and a shotgun for home defense, which does not seem like a threat to the community. Would the court have felt different if Mr. Range announced he planned to amass a huge personal arsenal, enough to outfit an entire local militia, and that he planned to acquire several used fully automatic machine guns, albeit through all the proper NFA registration and licensing channels? What about large capacity magazines, which may or may not be banned? (SCOTUS has yet to decide this question.) The way the court drafted its opinion, there is nothing to prevent Mr. Range from doing this, or from stockpiling military-style weapons while secretly dreaming of starting a civil war. I doubt that Mr. Range will do that, but when this case is applied to the next felon claiming he is not dangerous enough to be banned from gun possession, I am not so sure.

Given the individualized adjudication involved in these “as applied” challenges, including future decisions that will apply Range III as binding precedent, it would have been appropriate for the court to issue a decision tailored to Mr. Range’s situation rather than a general rule that firearms ineligibility for felons is unconstitutional if they are not clearly “dangerous.” The court should have said, “§ 922(g)(1) does not apply to Mr. Range for purposes of owning a hunting rifle and a shotgun for home defense, and the necessary ammunition for these weapons,” and had left undecided questions like whether Mr. Range is eligible to operate a gun dealership, or have guns and accessories that are banned in some states, or can carry his firearms in a gun-free zone whose status is currently being litigated. If the challenge is “as applied to him,” then the decision should be narrowly tailored to him, and should steer clear of these unsettled areas of Second Amendment law.

How Will the Arguments on Birthright Citizenship Develop?

Upon taking office again as president, Donald Trump has promised to end birthright citizenship though executive action. Anyone adversely affected will challenge the constitutionality of that effort.

The argument that the president lacks the power to do so would seem pretty straightforward. The Fourteenth Amendment declares “all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.” The landmark decision interpreting that language, United States v. Wong Kim Ark, 169 U.S. 649 (1898), provides essential background. The plaintiff was the child of immigrants from China, still subjects of the Emperor of China, when Wong Kim Ark was born in California. He remained in the United States when his parents left for China. In 1890, he went on a temporary visit to China. He returned to the United States and was readmitted with the collector of customs recognizing his U.S. citizenship. Four years later, he again visited China, returning to the United States in 1895. This time, however, officials denied him reentry on the supposed grounds that he was not a U.S. citizen and excludable under the Chinese Exclusion Acts.

When the Supreme Court decided the case, the justices relied upon “the common law, the principles and history of which were familiarly known to the framers of the Constitution” to define the meaning of being born in the United States and subject to its jurisdiction. Drawing on the English common law, the Court found guidance in the “fundamental principle” that English nationality applied to persons “within the King’s allegiance and subject to his protection.” It included children of aliens who were born in England, but not children of foreign ambassadors or alien enemies because their allegiance would not be to and thus outside the jurisdiction of the King.

After an extensive survey of English and American law, very much fitting the history and tradition approach that the current Court espouses, the Court concluded that a “child born in the United States, of parent of Chinese descent, who, at the time of his birth, are subjects of the Emperor of China, but have a permanent domicile and residence in the United States, and are there carrying on business, and are not employed in any diplomatic or official capacity under the Emperor of China, becomes at the time of his birth a citizen of the United States.”

Supporters of an end to birthright citizenship often focus on the Citizenship Clause’s language “and subject to the jurisdiction thereof.” They find wiggle room in Wong Kim Ark’s recognition that the Chinese parents had a “permanent domicile and residence in the United States.” In their view, people here illegally and subject to deportation are not subject to U.S. jurisdiction, lack the necessary allegiance to this country, and therefore cannot convey citizenship upon their children by the location of their birth.

Yet, a contrary interpretation, finding that being subject to the jurisdiction only excludes those who, after birth, will return on a permanent basis to the country of their parents by the parents’ choice. Objections to the Citizenship Clause during debates on the Fourteenth Amendment, such as those of Senator Edgar Cowan, complained that the language would grant citizenship to children of foreigners who owe no allegiance to the United States and regularly commit trespass upon its soil. Supporters did not deny that consequence but instead celebrated it.

As every appellate advocate knows, the details of an executive order or other action on birthright citizenship will dictate the arguments for and against. If limited to those in the United States quite recently and illegally and written to apply prospectively, different arguments will be in play than if it reaches back and seeks to deny citizenship to those who have already received the fruits of that status and whose parents have demonstrated a permanence to their residency. Furthermore, it will be a test to the Supreme Court’s allegiance to history and tradition.

Democracy and Deference

In U.S. v. Skrmetti, the United States Supreme Court will determine whether Tennessee Senate Bill 1, which prohibits all medical treatments intended to allow “a minor to identify with, or live as, a purported identity inconsistent with the minor’s sex” or to treat “purported discomfort or distress from a discordance between the minor’s sex and asserted identity,” violates the Equal Protection Clause.

On December 4, 2024, the Court held oral argument, and the attorneys for Petitioner and Respondent presented strong arguments. Among the issues under consideration is whether the prohibition on gender-affirming care discriminates based on age or sex, the latter of which would require heightened scrutiny under the Court’s jurisprudence. Petitioner and Respondent’s attorneys also presented competing arguments regarding, among other things, the benefits and harms that upholding Tennessee Bill 1 would engender. In so doing, the justices acknowledged that both sides presented compelling arguments and that reasonable people could disagree on whether Tennessee Bill 1 furthered legitimate and salutary purposes.

Given this fact, a few justices questioned why the Court, rather than the legislature, should resolve this issue through the democratic process. For example, during oral argument, Justice Kavanaugh stated:

I want to ask about our role here and pick up on the Chief Justice's questions at the beginning, who decides. You've put forth forceful policy arguments to allow these medical treatments, and Justice Sotomayor's questions elaborated on that. But the 20-plus states on the other side put forth very forceful arguments against allowing these medical treatments for minors. So it seems to me that we look to the Constitution, and the Constitution doesn't take sides on how to resolve that medical and policy debate. The Constitution's neutral on the question. At least that's one way to look at it. I want to get your reaction to that. You know, if the Constitution doesn't take sides, if there's strong, forceful scientific policy arguments on both sides in a situation like this, why isn't it best to leave it to the democratic process?[1]

As Justice Kavanaugh stated, “[y]ou say there are benefits from allowing these treatments,” but given that “there are also harms … how do we as a Court choose which set of risks is more serious in deciding whether to constitutionalize this whole area?”[2]

The concern that the democratic process, rather than the Court, should resolve this issue—particularly when reasonable people differ on whether the law is beneficial or harmful and where the Constitution’s text is ambiguous—will likely carry the day. If it does, the Court will rightfully embrace a principle that promotes democracy and bottom-up governance: where reasonable people can disagree about a law’s constitutionality, the democratic, not judicial, process is the proper forum to resolve policy disputes. In other words, when the Constitution’s text is broadly worded and reasonable people can interpret such text differently, the Court should defer to the democratic process. Deference is essential to democracy, the Court’s legitimacy, and the right of citizens to determine whether specific unenumerated rights should be recognized.

Unfortunately, in many instances, the Court has taken the opposite approach and issued rulings in cases that have undermined the democratic process and invalidated legislation promoting participatory democracy and addressing important economic and social issues. For example, in Citizens United v. Federal Election Commission, the Court by a 5-4 margin invalidated a provision of the Bipartisan Campaign Reform Act that limited corporate funding of independent political broadcasts in elections.[3] In so doing, the Court overturned Austin v. Michigan Chamber of Commerce and held that corporations enjoy First Amendment protections.[4] But what language in the First Amendment supported this holding? At the very least, reasonable people could differ on whether, for example, the First Amendment applies to corporations. As such, why didn’t the Court defer to the coordinate branches and uphold a law that sought to reduce the corrupt influence of money in politics? There is no answer—at least not a good one.

Similarly, in Kennedy v. Louisiana, the Court considered whether a law authorizing the death penalty for child rape violated the Eighth Amendment’s prohibition on cruel and unusual punishment.[5] Neither the Eighth Amendment’s text nor its original purpose answered this question; at the very least, reasonable people could differ on whether such a punishment was cruel and unusual. Notwithstanding, the Court ruled 5-4 that the law violated the Eighth Amendment and thus prohibited the states from resolving this issue democratically. In Roper v. Simmons, the Court made the same error, holding that the Eighth Amendment categorically prohibited the execution of minors even though the Eighth Amendment could not possibly be interpreted to support this result, or the “evolving standards of decency” upon which the Court relied to reach its decision.[6]

Improvident intervention in the democratic process is the norm, not the exception, in the Court’s jurisprudence. In Griswold v. Connecticut, the Court invalidated a Connecticut law prohibiting contraception, holding that although the Constitution’s text did not resolve this question, there existed invisible “penumbras” in the Constitution’s text that enabled the Court—and only the Court—to recognize unenumerated rights, such as the right to privacy, and thus impose its policy views on an entire nation.[7] In Roe v. Wade, the Court compounded this error by holding that the right to privacy encompassed a right to terminate a pregnancy, even though nothing in the Constitution’s text could be interpreted to support its holding.[8] To be sure, a deferential approach is not about promoting a particular political viewpoint. Whether one supports a right to abortion is irrelevant; what matters is that nine unelected judges decided that their views should remove this issue from democratic choice.

In contrast, some decisions have demonstrated appropriate deference to democratic processes. For example, in Washington v. Glucksberg, the Court declined to create a right to assisted suicide, holding that because the Constitution’s text was silent on this issue, it should be resolved democratically.[9] Additionally, in National Federation of Independent Investors v. Sebelius, Chief Justice Roberts cast the deciding vote upholding the Affordable Care Act, concluding that the Act’s individual mandate constituted a tax, not a penalty.[10] The primary reason underlying Roberts’ decision was arguably to preserve the Court’s institutional legitimacy by deferring to the coordinate branches and avoiding a decision that appeared politically motivated. In Dobbs v. Jackson Women’s Health, the Court remedied the harm that Roe caused to the Court’s legitimacy by returning the issue to the states.[11]

Of course, the Court has the power to say what the law is, but how can the Court say what the law objectively is when a constitutional provision is ambiguous and subject to differing interpretations? It cannot. In such circumstances, saying what the law is requires the justices to determine subjectively what the law should be. That is the problem. In a democracy, the people have the right to say what the law should be, not nine unelected and life-tenured justices. Thus, where the Constitution is silent or capable of reasonably different interpretations, the Court should defer to democratic choice. A court with limited power is essential for preserving democracy, and the process by which the Court makes decisions is equally, if not more, important than the outcomes it reaches.

 

[1] U.S. v. Skrmetti, Transcript of Oral Argument,  (Dec. 4, 2024), p. 40-41, available at: 23-477_c07d.pdf

[2] Id. at 44-45.

[3] 558 U.S. 310 (2010).

[4] 494 U.S. 652 (1990).

[5] 554 U.S. 407 (2008).

[6] 543 U.S. 551 (2005).

[7] 381 U.S. 479 (1965).

[8]  410 U.S. 113 (1973).

[9] 521 U.S. 702 (1997).

[10] 567 U.S. 519 (2012).

[11] 597 U.S. 215 (2002).

A New Rule on Amicus Briefs?

The Advisory Committee on Appellate Rules has published for public comment amendments to Federal Rule of Appellate Procedure 29, which covers amicus briefs. One amendment seeks to impose disclosure requirements so that entities filing as amici can clearly be identified. It would require all amicus briefs to include “a concise description of the identity, history, experience, and interests of the amicus curiae, together with an explanation of how the brief and the perspective of the amicus will help the court.” To reveal whether an amicus was created for purposes of this particular case, the proposed rule also requires an amicus that has existed for less than 12 months to state the date the amicus was created.

These requirements are, in part, designed to prevent parties from extending their briefs through proxies filing as amici. The proponents also claim it will inform the court about how independent the amicus really is. Instead, leave of the court would always be required. The proposed rule would require that the amicus brief bring to the court’s attention “relevant matter not already mentioned by the parties. Briefs that do not accomplish that or are “redundant with another amicus brief” are disfavored. Nothing in the proposal indicates how amici might know what another amicus will file.

The Supreme Court has gone in a very different direction, welcoming all amicus briefs and no longer requiring either leave or consent. The advisory committee chose not to follow suit because the Court’s booklet printing requirement acts as a deterrent to overwhelming the Court, it claims, even though the growth in filing Supreme Court amicus briefs continues.

The proposals were published August 15 and have a comment period that runs through February 17. Comments may be submitted electronically. In addition, the advisory committee will hold two hearings on the proposals next year before the comment period ends. Those interested in appellate advocacy may want to view the proposals and their explanations, which are available at https://www.uscourts.gov/sites/default/files/preliminary_draft_of_proposed_amendments_2024.pdf.

Can You DIG It?

On Friday, the Supreme Court issued its first decision of the term in an argued case – and it was a DIG, dismissed as improvidently granted, in a one-sentence order. The effort and attention given the case until that resolution can seem frustrating and a waste of judicial resources, although respondents generally should be pleased given that their victory below is thereby preserved.

The case was Facebook, Inc. v. Amalgamated Bank, No. 23-980. The issue involved whether Facebook was sufficiently forthcoming in its securities filings when it failed to mention that a risk has materialized in the past, even if that past event presents no known risk of ongoing or future business harm?

The event in the past that animated this case was Facebook’s sharing of user data of some 30 million users without their permission with a researcher who founded the infamous Cambridge Analytica. The data was originally used by Senator Ted Cruz’s presidential primary campaign to target voters. The data was used to place political advertising on Facebook while covering up its cooperation in the effort. Eventually, Facebook’s role in sharing the data became public, and the Securities and Exchange Commission filed suit against Facebook for misleading investors about the risk it incurred from the episode. Facebook paid a $5.1 billion civil penalty in settlement.

When a class of investors sued to recover damages in a securities action, the district court dismissed, but the Ninth Circuit held that Facebook’s risk statements “represented the risk of improper access to or disclosure of Facebook user data as purely hypothetical when that exact risk had already transpired.” The gist of the opinion scored Facebook for portraying the risk of a breach of private users data as if it did not and could not occur, when it had and when it resulted in a significant drop in stock prices.

The Supreme Court granted certiorari after the petition suggested that a three-way split existed in the circuits. It claimed that the Sixth Circuit took the position that no disclosure of past instances was necessary. It then claimed that six other circuits require disclosure of past risks but only if the company knows it will harm the business. It then asserted that the Ninth Circuit, along required disclosure even if there is no known threat of business harm.

The Brief in Opposition, known as the BIO, asserted that the question presented assumed a factual premise that the Ninth Circuit rejected as unsupported by the record. According to Facebook, when it filed its disclosures with the SEC, the breach was public without adverse consequences. The claimed sequence of events and the lack of adverse public reaction, the BIO asserted, was inconsistent with the Ninth Circuit’s filings. It then claimed that the case did not qualify for certiorari, because the Supreme Court had recently advised that granting certiorari is “imprudent” when the premise of the issue presented “does not hold.” DeVillier v. Texas, 601 U.S. 285, 292-93 (2024).

Even so, the Court granted certiorari, received full briefing, and conducted oral argument earlier this month. When the Court decides to DIG a case, something that happens once or twice a term, it usually does not provide an explanation. The usual assumptions are that the case turned out to be a poor vehicle for resolving the issue, the issue granted turns out not to be the principal basis for the petitioner’s argument in a bait-and-switch stratagem, new developments either in the case or related to the issue changes the need for a decision, or the justices are so divided on what the real issue is that the case no longer looks to them to be what it was when certiorari was granted.

In this case, it seems likely that the arguments about what the Ninth Circuit did or did not decide that were made in the BIO became clearer to the justices and resulted in the DIG. Still, it often seems that a more careful review of the BIO would certainly result in fewer cases that are granted for plenary review only to be rejected without decision through a DIG with the result being the same as it would have been if certiorari had been denied.

How to Persuade Judges When a Constitutional Provision is Ambiguous

The ability to persuade judges—or anyone, for that matter—when a law is ambiguous and open to different interpretations is exceedingly difficult. Yet, it’s a challenge lawyers often face, especially when arguing cases that hinge on interpreting broadly worded constitutional provisions. For instance, in Kennedy v. Louisiana, the U.S. Supreme Court considered whether imposing the death penalty for child rape violated the Eighth Amendment’s prohibition against "cruel and unusual punishment." Reasonable minds could—and did—differ on what constitutes such punishment.

Similarly, in Snyder v. Phelps, the Court examined whether the First Amendment’s protection of free speech allowed individuals to display signs like “Fags Doom Nations” and “Thank God for 9/11” outside a soldier’s funeral, despite the severe emotional distress this caused the bereaved family. Whether the First Amendment shields such offensive speech posed a profound challenge.

In Riley v. California, the Court had to decide whether searching a cell phone without a warrant during an arrest constituted a “reasonable” search under the Fourth Amendment.

And in Roe v. Wade, the Court tackled whether the right to privacy—previously recognized in Griswold v. Connecticut as part of the “liberty” protected by the Fourteenth Amendment’s Due Process Clause—extended to a woman’s right to terminate a pregnancy. This theme of interpreting broad and ambiguous constitutional language also appeared in cases like National Federation of Independent Business v. Sebelius, which questioned whether the Affordable Care Act's individual mandate was constitutional under the Commerce Clause, and Clinton v. New York, which challenged whether the Presentment Clause permitted the president to use a line-item veto.

These examples highlight how the Court has repeatedly interpreted ambiguous constitutional provisions to resolve significant legal issues that affect citizens’ rights and liberties. In these cases, reasonable judges and legal scholars have reached different conclusions. What can a lawyer do to persuade a court to adopt their interpretation? Here are three strategies to maximize the likelihood of success:

 1.    Know your audience and adopt an incremental approach.

When advocating for a particular interpretation of an ambiguous constitutional or statutory provision, it’s essential to understand the judges' ideological leanings and policy preferences. For example, before Dobbs v. Jackson Women’s Health Organization overturned Roe v. Wade, a state law banning abortions after 15 weeks would have faced skepticism from justices who supported Roe, like Justices Sotomayor, and Kagan. Conversely, Justices Alito, Thomas, Gorsuch, Kavanaugh, and Barrett would have been more sympathetic.

Given this landscape, how can you bridge the ideological divide? One effective approach is to emphasize that your interpretation is a modest, incremental departure from existing precedent rather than a radical overhaul. Acknowledge that precedent may not fully support your position but argue that it aligns with the underlying purpose of those prior decisions. This can make your argument more palatable to justices inclined to oppose you while also appealing to those who might favor a more substantial shift in the law.

This incremental strategy can be particularly effective when the court’s ideological balance is against you. While some cases, like Dobbs, show that the Court can make sweeping changes, in many situations, a minor adjustment to the legal landscape is more likely to gain broader acceptance.

 2.    Emphasize pragmatic consequences and underlying purposes.

Judges are not robots; they care about the real-world impact of their decisions. Highlighting the practical implications of a ruling against your position and emphasizing the broader purposes behind constitutional or statutory provisions can be persuasive.

For example, in Riley v. California, the Court had to determine whether the Fourth Amendment allowed warrantless searches of cell phones during arrests. Previous rulings like U.S. v. Robinson and Arizona v. Gant had expanded the scope of searches incident to arrest. However, the lawyers in Riley argued that the original intent of the Fourth Amendment was to protect the most private information of citizens—traditionally found in the home. They drew a parallel between modern cell phones and the private papers the Fourth Amendment was designed to protect, emphasizing that cell phones store extensive personal data, such as photos, emails, and financial records. This argument, grounded in the purpose behind the Fourth Amendment, led the Court to unanimously rule that searching a cell phone without a warrant was unconstitutional.

By framing your argument around the broader purposes and pragmatic outcomes, you increase your chances of persuading judges who are concerned with both the letter and spirit of the law.

 3.    Appeal to common sense and fairness.

Judges, like all of us, value fairness and reasonableness. An argument that aligns with common sense can be highly effective, especially when dealing with controversial issues.

Consider Snyder v. Phelps, where the Court was asked whether the First Amendment protected the hateful speech of the Westboro Baptist Church outside a soldier’s funeral. Despite the repugnant nature of the speech, the Court upheld its protection under the First Amendment, emphasizing the broader principle of a marketplace of ideas where even offensive speech is tolerated. The underlying concern was that restricting such speech could lead to a slippery slope where the government might censor other unpopular opinions, thereby undermining the fundamental right to free speech.

Appealing to common sense and the broader implications of a ruling can help you frame your argument in a way that resonates with judges' innate sense of fairness.

***

In some cases, there may be little you can do to change a judge’s mind, especially if a judge is firmly committed to a particular ideological stance. However, by taking an incremental approach, emphasizing pragmatic considerations, and appealing to common sense, you can maximize your chances of persuading a court to adopt your interpretation.

The “Boneless” Chicken Case

Borrowing a line from Oliver Twist, Justice Brennan once wrote that “[t]o say that ‘the law is an ass, a idiot’ is not to impugn the character of those who must administer it.”[1] Imperfections in the law, he wrote, do not reflect on the judges, but on a system judges are powerless to change when they adhere faithfully to what is required of them. Still, there are times when a fair reading of the law and a judicial decision seem so at odds with each other that one must wonder whether the judges in such a case occupy a universe of their own making. An opinion issued in July by the Ohio Supreme Court seems likely to evoke that type of response. The case has come to be known as the “‘boneless’ chicken” case.

The dispute originally arose when the plaintiff ate his usual order of “boneless” wings at a restaurant he frequented. He suffered serious medical problems when a chicken bone lodged in his throat while eating that meal. Doctors at the emergency room found 5-cm long chicken bone had torn his esophagus and created a bacterial infection along with other medical issues.

A deposition of the restaurant’s cook explained that the wings were made from pre-butterflied, boneless and skinless chicken breasts, which were cut into one-inch chunks before being served to customers. In suing, the plaintiff claimed that the restaurant and its supplier were negligent by serving a boneless wing with a hidden bone in it and no warning of any kind that it may contain a bone.

The trial court initially granted judgment on the pleadings to the defendants, but an intermediate appellate court reversed and remanded the case as plausibly stating a cause of action for negligence. The defendants moved for summary judgment, which the court granted because “common sense dictated that the presence of bone fragments in meat dishes—even dishes advertised as “boneless”—is a natural enough occurrence that a consumer should reasonably expect it and guard against it.”[2] The intermediate appellate court affirmed, holding that “the bone was natural to the boneless wing.”[3]

The Ohio Supreme Court considered the case in light of another it had decided in 1960, where it had applied a reasonable-expectation test to ingesting a foreign substance. Under that test, a court considers what a reasonable consumer would expect to encounter in the food and thus guard against, so that its presence does not impose a duty of care on the supplier when the substance should not be a surprise. That determination, the Court held, is reflected in a companion “foreign-natural” test, which assesses whether the substance in the food was natural to it and thus not a foreign substance. In the 1960 decision, the Court ruled that a piece of oyster shell in or attached to any oyster should be anticipated and not impose a duty on the restaurant.[4]

The Court then found no error in the appellate court’s determination that a chicken bone was natural to chicken meat and thus not an “unnatural or ‘foreign substance.’”[5] That the meal was sold as “boneless” did not change the Court’s conclusion, given that “’everyone … knows that tiny bones may remain in even the best fillets of fish.’”[6] The Court also held that the bone was large enough that, “as a matter of law, he reasonably could have guarded against it.”[7]

Further dismissing the argument that the food was advertised as a “boneless wing,” the Court characterized that representation as “merely a description of  the cooking style.”[8] The Court then adopted a strange analogy, saying that a:

    diner reading “boneless wings” on a menu would no more believe that the restaurant was warranting the absence of bones in the items than believe that the items were made from     chicken wings, just as a person eating “chicken fingers” would know that he had not been served fingers. The food item’s label on the menu described a cooking style; it was not a     guarantee.[9]

The majority also defended against a criticism in the dissent about food advertised as lactose- or gluten-free: the  presence of lactose or gluten in a food that was advertised as lactose-free or gluten-free is not something a consumer would customarily expect and be able to guard against.[10]

As the dissent pointed out, the decision allowing a court to determine as a matter of law what the reasonable diner might expect appears to put “another nail in the coffin of the American jury system.”[11] It further argues that the existence of three dissenting justices demonstrates that a reasonable person could reach a conclusion contrary to the majority’s.[12]

The dissent’s points about the determination falling within the jury’s constitutionally guaranteed prerogative are well taken. The Ohio Constitution guarantees the right to a jury trial as “inviolate.”[13] Even so, one finds it difficult to understand how the sale of  “boneless chicken” does not create an expectation that it is bone-free because it is being sold as devoid of bones. Nor can it be justified as a mere “cooking style,” a terminology that I would associate with Southern, French, Basque, or Chinese cooking as examples. Boneless is not a cooking style. In an era in which public respect for the courts is perilously low, the decision will confound the public and suggest that words do not mean what they say – at least as a matter of law, which is why most commentators have had a bone to pick with the Ohio Supreme Court.

 

[1] In re Sawyer, 360 U.S. 622, 634 (1959).

[2] Berkheimer v. REKM, L.L.C., 2024-Ohio-2787, ¶ 9 (characterizing ruling).

[3] Id. at ¶ 10.

[4] Id. at ¶ 17 (characterizing Allen v. Grafton, 170 Ohio St. 249, 251, 164 N.E.2d 167 (1960)).

[5] Id. at 20 (quoting 2023-Ohio-116, 206 N.E.3d 90, at ¶ 26 (12th Dist.)).

[6] Id. at ¶ 21 (quoting Mathews v. Maysville Seafoods, Inc., 602 N.E.2d 764 (12t Dist. 1991)).

[7] Id. at ¶ 22.

[8] Id. at ¶ 23.

[9] Id.

[10] Id. at ¶ 24.

e[11] Id. at ¶ 27 (Donnelly, J., dissenting).

[12] Id.

[13] Ohio Const. art. I, § 5.

Great Attorneys Have The Intangibles

As a professor and pre-law advisor, countless students express a passion for and commitment to a legal career every semester. In so doing, they always ask the same question: what skills are needed to be a great lawyer? Intelligence, critical thinking, research, and writing skills are essential. However, the intangible skills truly separate a mediocre lawyer from an elite lawyer. And although students certainly need to improve their critical thinking, research, and writing skills, they also need to develop intangible skills. Below is a list of some of the most important intangible skills.

1.    Emotional intelligence and common sense.

Emotional intelligence may matter more than raw intelligence. This refers to a person’s ability to manage their emotions and cope well during times of stress, pressure, and adversity. Emotionally intelligent people are self-aware, thrive under difficult circumstances, empathize with others, overcome challenges, and address interpersonal conflict effectively. Lawyers who lack emotional intelligence and the ability to self-regulate are at high risk for developing depression or struggling with substance abuse – a fact that is well-documented in the legal profession.

Common sense refers to the ability to perceive personal and professional situations accurately to enable you to exercise good judgment and make correct decisions in response to those situations. If you lack common sense, your judgment and ability to navigate complex and difficult situations will be affected.

Simply put, it is not sufficient to have an IQ of 130 or an LSAT score of 170. You have to be “street smart” and have the emotional maturity to deal with and thrive under the adversity that a life in the legal profession engenders.

2.    Hard work, resilience, and perseverance.

Many students lack a true understanding of what it means to work hard, prepare, and persist under difficult circumstances and unexpected challenges. Sometimes, particularly in the legal profession, you have to work day and night – for months and even years – litigating a complex case or preparing for a trial or appellate oral argument. You will be exhausted and struggle to operate at a high level. In these circumstances, elite lawyers persevere, remain resilient, and maintain focus and discipline. Put simply, hard work does not mean working until you get a task right. It means working until you cannot get it wrong. And great lawyers work harder and prepare more than anyone, thus ensuring that they can produce a peerless work product.

Ultimately, although most people can excel when circumstances are ideal, far fewer can excel when life gets difficult, such as when experiencing, for example, the breakup of a marriage, coping with the death of a family member, or struggling with anxiety or depression. Great lawyers can compartmentalize and excel despite these challenges.

3.    Creativity.

Great lawyers think outside of the box. They do not simply make arguments in a formulaic and predictable manner or based solely on precedent. Rather, in appropriate cases, they develop creative and original arguments, present them persuasively, and move the law forward.  For example, in Griswold v. Connecticut and Roe v. Wade, who would have thought that the Fourteenth Amendment’s Due Process Clause, which prohibits the government from depriving citizens of “life, liberty, or property…without due process of law” would include an implicit right to privacy and a right to terminate a pregnancy? Great lawyers made those arguments and the United States Supreme Court agreed that this unenumerated substantive right was encompassed within the “liberty” protected by the Fourteenth Amendment. Additionally, in National Federation of Independent Investors v. Sebelius, who would have thought that the Affordable Care Act’s individual mandate could be interpreted as a tax, as Chief Justice Roberts held, rather than a penalty? Again, great lawyers made those arguments because they were creative and thought outside of the box.

4.    Judgment and strategic thinking.

Elite lawyers exercise great judgment and think strategically to achieve the best result possible for their clients. Good judgment and strategic thinking require the ability to, among other things, make the right decisions based on incomplete facts and data, anticipate an opponent’s arguments, predict what questions a court will ask at oral argument, know what questions to ask during a deposition, and understand how to negotiate a settlement. Good judgment and strategic thinking are a product of common sense, experience, and instinct; lawyers lacking these skills will struggle to achieve positive outcomes for their clients.

5.    Communicate effectively – and listen meaningfully.

Excellent lawyers know how to communicate – and how to listen. Excellent communication skills involve, for example, knowing how to simplify and make understandable complex facts and legal issues, adapting your communication strategy based on the audience to whom you are speaking, providing unfavorable opinions to a client in an empathetic manner, and choosing words that maximize persuasion and credibility.

Great communicators are also great listeners. They know that listening actively enables you to accept feedback constructively, benefit from different perspectives that challenge your opinions, foster strong relationships, facilitate better decision-making, and avoid unnecessary conflicts.

6.    Confidence and humility.

If you want to be a great lawyer, you must have confidence. That means believing in yourself and your ability, and not being intimidated by your adversary or the court. It means trusting in your preparation and having pride in your performance, knowing that if you prepare well, you will excel consistently. If you lack confidence, the court, the adversary, and your client will perceive it immediately and it will undermine the persuasiveness and credibility of your arguments.

Having healthy confidence, however, does not mean being an arrogant, narcissistic jerk. These people, who think that they can do no wrong, and who get offended whenever someone offers constructive feedback or disagrees with their views, are insufferable and never grow as lawyers or people. The best lawyers are confident and humble. They know that they are not right all the time or have the answers to every question. Instead, they listen. They learn. They grow. And they understand that success is so often due to other people who have helped and supported you along the way.

7.    Discipline, focus, and time management.

The best lawyers do not focus on external factors, such as opinions, perceptions, or expectations. Instead, they focus on what they can control and maintain discipline under exceedingly difficult circumstances. They do not get discouraged by a negative ruling, a poor performance, or a challenging workload. They do not get distracted by professional or personal conflicts.

Great lawyers also know how to manage their time. They work efficiently and budget their time to ensure that they can perform consistently at a high level. They do not waste time on needless conversations or meetings, or on tasks that could be delegated to someone else. By doing so, they improve their performance and likelihood of success.

8.    Teamwork.

Excellent lawyers know how to work as part of a team and maximize the contributions of all team members. They know how to lead and how to motivate and inspire a team. They listen to feedback. They delegate. They cooperate. They are humble. They value every member of the team. They offer support, encouragement, and constructive criticism. They understand the strengths and weaknesses of every team member and develop a plan to maximize those strengths. If a lawyer cannot work on a team and effectively navigate group dynamics, it will affect the quality of that lawyer’s representation and the likelihood of achieving success in a given case.  

***

Many law schools do not emphasize the development of intangible skills, in part because they are so difficult to teach. However, for aspiring lawyers, the knowledge that intangible skills are critical to success enables them to focus individually and collectively on developing these skills in their professional and personal lives.

A View of the Supreme Court

In this post, I’m going to be a little self-indulgent. This past week saw the publication of a new book that I wrote with my friend, Anthony Champagne, a professor emeritus of political science at the University of Texas at Dallas. Tony and I served together as Supreme Court Fellows in 1990-91 and became lifelong friends. We discovered early on that we each had collected scores of anecdotes about the Supreme Court and its justices. We each deployed these stories in speeches and lectures, finding that audiences loved the tales. Eventually, we resolved to compile the stories in a book.

Last Monday, the book was published. It is called “Supreme Anecdotes: Tales from the Supreme Court.” Part of the reason for its lengthy gestation period is that we resolved to cover every justice to ever have served on the Court. That meant rifling through judicial biographies, law review articles, tributes, and a variety of other sources to cover even justice. Our original publisher became a victim of business failure during the pandemic. Once we found a new publisher, we needed to update our manuscript to cover some new appointees.

We are heartened by the reception the book has had. Dean Erwin Chemerinsky of the Berkeley School of Law said he could not “think of another book on the Supreme Court that I enjoyed reading more or learned more from.” Former Texas chief justice Wallace Jefferson called it a “must read for all who care about the majesty and frailty of the rule of law.”

Political science professor James Riddlesperger, Jr. of Texas Christian University lauded its appreciation of the Court’s history, as well as “a chuckle a page.” Research professor Royce Hanson of the George Washington University Institute of Public Policy enjoyed the peek it gave at the “foibles, follies, and occasional withering wit of the Supremes.” And Alan Morrison, associate dean at George Washington University, wrote that it “gives the reader a very different side of the Justices, including the fact that many of them did not come close to fitting our ideal of members of the Highest Court.

Certainly, the book tells many funny stories about the Court over the years and that is enjoyable in its own right. Still, it also highlights the ways the Court has changed since its early days – and the ways in which it remains very much the same. I hope that readers of this blog find it useful, as well as an enjoyable romp through Supreme Court history.

The Thing About Dicta

Two weeks ago, my post featured a book that detailed procedural differences between the federal circuits. Since then, the Ninth Circuit handed down an en banc opinion in which the concurring opinion highlighted a strange position unique to that court concerning the treatment of dicta. My colleague on this blog, Stephanie Williams, highlighted that concurrence in a post on September 28. She found it a highly useful discussion of dicta and indicated she would be adding it as required reading in her course. I, too, found it interesting, especially against the backdrop of other pronouncements about dicta. Because I took a different approach to thinking about dicta and the Ninth Circuit’s opinion than Stephanie did, I’m going ahead with posting about it as well.

Dicta, as every law student quickly learns, is not precedent, but an aside that the court makes nonetheless even though unnecessary for the disposition of the case. Though it may be cited, its usefulness normally depends on its persuasiveness. Often what emanates from the court as dicta expresses views on issues that the parties neither briefed nor argued. Because it lacks adversarial vetting courts often treat it somewhat gingerly. Its value arises from its ability to shape issues and the law down the road.

In one case, for example, Justice Breyer, writing for the Court, rhetorically asked: “Is the Court having once written dicta calling a tomato a vegetable bound to deny that it is a fruit forever after?”[1] Answering his own question, he wrote, “we are not necessarily bound by dicta should more complete argument demonstrate that the dicta is not correct.”[2] In support, he cited another case that found the Court was “not bound to follow our dicta in a prior case in which the point now at issue was not fully debated.”[3]

More tellingly, the Court, in dictum, once declared, “[d]ictum settles nothing, even in the court that utters it.”[4] Judges have also warned about the misuse of dicta. Justice Frankfurter, in dissent, wrote that something of a “progressive distortion” takes place by which “a hint becomes a suggestion, is loosely turned into dictum and finally elevated to a decision.”[5] The Sixth Circuit’s Judge Kethledge wrote “dictum is usually a bad idea, because judges think differently—more carefully, more focused, more likely to think things through—when our words bring real consequences to the parties before us.”[6]

So what did the Ninth Circuit do that is so different from its sister circuits? In a False Claims Act case, where the Court had previously found that the first plaintiff to file is the only private party that may file a claim because it is “jurisdictional,” an en banc court overruled its earlier “precedent.”[7] The majority noted that the original designation of being first deprived the court of jurisdiction over subsequent plaintiffs with similar claims even though it occurred “without any analysis,” which subsequent decisions accepted without analysis as well.[8] Yielding to the Supreme Court’s criticism of “profligate use of the term ‘jurisdiction,’”[9] and the modern requirement that only Congress through a clear statement can designate a statutory requirement as jurisdictional,[10] the Ninth Circuit deemed it necessary to convene en banc and overrule its earlier panel decision.

The author of the majority opinion also wrote a concurrence, joined by one other member of the court, declaring that this “case demonstrates that our dicta-is-binding rule is burdensome and misguided.”[11] The concurrence by Judge Danielle J. Forrest called the Ninth Circuit’s solitary approach to in-circuit dicta without “legal foundation” and a cause of “unnecessary inefficiency and waste[d] resources,” a reference to the need to overrule it en banc because no panel could do so.[12] She colorfully added, “[w]e stand out like a flamingo in a flock of finches in treating dicta as binding.”[13] Yet, Judge Forrest’s plea to change the circuit’s approach was in a concurrence, suggesting that she could not bring along a majority of her colleagues – yet.

Circuit differences also exist about how to treat Supreme Court dicta, although there exist a number of competing schools of thought. At one extreme stands the Fourth, Sixth, and Tenth Circuits. As an “inferior court,” the Fourth Circuit holds it must treat as authoritative “carefully considered language of the Supreme Court, even if technically dictum.”[14] That stance leaves a little wiggle room if the dicta is not “carefully considered.” The Sixth Circuit more straightforwardly states that “[l]ower courts are obligated to follow Supreme Court dicta.”[15] The Tenth Circuit similarly asserts “this court considers itself bound by Supreme Court dicta almost as firmly as by the Court’s outright holdings.”[16]

On the other hand, the previously on-board Eighth Circuit retreated from the same approach, declaring that it “goes too far.”[17]  Instead, the circuit will “afford deference and respect to Supreme Court dicta, particularly where, as here, it is consistent with longstanding Supreme Court precedent.”[18] Other circuits emphasize deference as well but with a thumb on the scale in favor of following the Supreme Court. The Third Circuit, for example, recognizes that Supreme Court dicta is not binding but strives to give it due weight because it understands that the Court “uses dicta to help control and influence the many issues it cannot decide because of its limited docket.”[19] That seems to credit the Supreme Court with an intent it may not have. The Seventh Circuit subscribes to an even stronger position, warning against “Appellate courts that dismiss these expressions [in dicta] and strike off on their own increase the disparity among tribunals (for other judges are likely to follow the Supreme Court’s marching orders) and frustrate the evenhanded administration of justice by giving litigants an outcome other than the one the Supreme Court would be likely to reach were the case heard there.”[20] That, too, seems to rely on a predictive model that may not obtain, given the Supreme Court’s own statement that “dicta settles nothing.”

Even the Ninth Circuit, despite its in-circuit attitude, applies deference with by providing Supreme Court dicta with a “weight that is greater than ordinary judicial dicta as prophecy of what that Court might hold.”[21] The D.C. Circuit takes a similar stance.[22]

One thing to keep in mind, though. Much of this is just dicta about dicta.

 

[1] Kirtsaeng v. John Wiley & Sons, Inc., 568 U.S. 519, 548 (2013).

[2] Id.

[3] Id.

[4] Jama v. Immigr. & Customs Enf’t, 543 U.S. 335, 352 (2005).

[5] United States v. Rabinowitz, 339 U.S. 56, 75 (1950) (Frankfurter, J., dissenting).

[6] United States v. Burris, 912 F.3d 386, 410 (6th Cir. 2019) (en banc) (Kethledge, J., concurring in the judgment)

[7] Stein v. Kaiser Foundation Health Plan, Inc., 2024 WL 4271950, *2 (9th Cir. Sept. 24, 2024).

[8] Id.

[9] Sebelius v. Auburn Reg’l Med. Ctr., 568 U.S. 145, 153 (2013).

[10] Santos-Zacaria v. Garland, 598 U.S. 411, 416 (2023).

[11] Id. at *3 (Forrest, J., concurring).

[12] Id. (Forrest, J., concurring).

[13] Id. at *6.

[14] Wynne v. Town of Great Falls, 376 F.3d 292, 298 n.3 (4th Cir. 2004).

[15] American Civil Liberties Union of Ky. v. McCreary Cnty., 607 F.3d 439, 447 (6th Cir. 2010).

[16] Gaylor v. United States, 74 F.3d 214, 217 (10th Cir. 1996).

[17] In re Pre-Filled Propane Tank Antitrust Litig., 860 F.3d 1059, 1064 (8th Cir. 2017).

[18] Id.

[19] In re McDonald, 205 F.3d 606, 612–13 (3d Cir. 2000).

[20] United States v. Bloom, 149 F.3d 649, 653 (7th Cir.1998).

[21] United States v. Montero–Camargo, 208 F.3d 1122, 1132 n.17 (9th Cir.2000) (en banc).

[22] Bangor Hydro–Elec.  Co. v. FERC, 78 F.3d 659, 662 (D.C. Cir. 1996).

It's not just Generative AI, it's Stenographers too

Instances of lawyers’ use (or rather misuse) of generative artificial intelligence tools such as Chat-GPT, have resulted in sanctions for violating rules of professional conduct or court rules. These cases generate much publicity—and no doubt embarrassment—for the lawyers involved. But there is nothing new under the sun (or in the practice of law). These cases simply represent recent and high-profile examples of lawyers being sanctioned or castigated for the way that they used the latest technology in their written advocacy.

In a 1902 case, a court noted that the latest technological advances had contributed to the lawyer’s violation of a court rule governing the contents of an appellate brief.[1] There, the court’s rule required each party to “‘briefly state upon his printed points, in a separate form, the leading facts which he deems established, with a reference to the folios where the evidence of such facts may be found.’”[2] The appellant violated the court’s rule by filing a brief that covered 117 printed pages and included lengthy quotations.[3] Lamenting the lawyer’s failure to comply with the court’s rule, the court said,

When every lawyer wrote his points with a pen, there was no occasion for complaint in this regard; but, since the use of stenographers has become general, the evil has grown until it is so serious that repression is necessary. We feel assured that these suggestions will be sufficient, and that we shall not be compelled to make a hard and fast rule upon the subject, and to provide for its violation by an appropriate penalty. We have been led to make these observations, not simply by this case, but by many, of which this is an example.[4]

 

[1] Stevens v. O'Neill, 169 N.Y. 375 (1902).

[2] Id. at 376.

[3] Id. at 376-77.

[4] Id. at 377.

A Primer on Ninth Circuit Binding Dicta: Judge Forrest’s Stein v. Kaiser Concurrence

Early in law school, you probably learned that dicta is non-binding.  Later, you also probably realized that application of this dicta rule, like so many other rules, depends.  For example, our 1L persuasive writing assignment last semester included a case discussing when Supreme Court dicta can be controlling.  Moreover, the Ninth Circuit has sometimes employed a “binding dicta” rule.

This week, Ninth Circuit Judge Danielle Jo Forrest detailed the history of the Ninth Circuit’s “dicta-is-binding rule,” which she called “burdensome and misguided.”  Stein v. Kaiser Fdn. Health Plan, Inc., __ F.4th __, 2024 WL 4271950, slip op. at 9 (9th Cir. 2024)(en banc)(Forrest, J., concurring).  In an opinion tracing the use of dicta from Sir Frances Bacon to today, Judge Forrest, joined by Judge Bumatay, asked the Ninth Circuit to join every other circuit in not using dicta as binding precedent. 

Judge Forrest explained a rule demanding courts follow some dicta “lacks legal foundation,” “causes unnecessary inefficiency,” “wastes resources,” and “is contrary to the common-law tradition of judging, the jurisprudence of the Supreme Court and every other circuit court in the nation, and the Constitution.”  Stein, Slip op. at 9.  According to the concurrence, the Ninth Circuit “stand[s] out like a flamingo in a flock of finches in treating dicta as binding.”  Id. at 16. 

Judge Forrest noted the Ninth Circuit initially took this “flamingo” approach to dicta without briefing or full discussion, stating:  “Irony upon irony, th[e] pronouncement about dicta was, itself, dictum,” as it came in an en banc case concurrence joined by only four total judges.  Id. at 16-17.  Moreover, she explained the authority “cited [in the dicta-rule-creating concurrence] do not support the dicta-is-binding rule.”  Id. at 17-18.  Thus, “the dicta-is-binding rule did not have the numbers to be real law,” yet “it quickly begat progeny.”  Id. at 18. 

Moreover, even if there had been a justification for a binding dicta rule, perhaps “because [the Ninth Circuit] thought the expansion of judicial decision-making authority would be limited” by the rule, in practice “it has not turned out that way.”  Id. at 18-19.  The history and application of the Ninth Circuit’s rule left Judge Forrest to “wonder:  if all the other federal appellate courts can figure out what is and isn’t dicta without destabilizing their law, why can’t we?”  Id. at 19.

As appellate lawyer Cory Webster wisely notes, Judge Forrest’s Stein concurrence could be required reading in a course on the law of judicial precedent.  Cory Webster, LinkedIn, https://www.linkedin.com/feed/update/urn:li:activity:7245432020770693122/.  The opinion is also a very interesting read on dicta, and on persuasive opinion writing.  I will definitely be making the opinion required reading for my class, and I hope you enjoy reading it too.

Different Strokes for Different Courts

In a new book to be published in November, Second Circuit Judge Jon O. Newman and Duke law professor Marin K. Levy detail the many different rules adopted by the federal circuit courts. Written & Unwritten: The Rules, Internal Procedures, and Customs of the United States Courts of Appeals, grew out of Levy’s clerkship experience in the Second Circuit where she wondered whether other circuits used a “non-argument” calendar for a limited range of cases. When she asked the clerk of court that question, she learned that the courts operate in silos and know little about what sister courts do.

At a Constitution Day event sponsored by the Supreme Court Historical Society (September 17), the two coauthors explained that the book reflects an examination of local rules and practices, as well as interviews with chief judges and surveys of court clerks. During their talk, Judge Newman and Professor Levy highlighted three practices from different circuits.

One concerned a situation that often bedevils appellate counsel. You have argued the case or made a motion that is fully briefed, and then you wait and wait for a disposition. Counsel will often sit in frustration at the delay, but rarely attempt to bring the situation to the court’s attention so as not to create a bad impression. In one state court appellate case I argued, I waited more than two years for the court’s opinion, which finally issued the decision earlier this year. When I served on a panel at a conference with another judge from that circuit, I asked whether there was anything I could do to encourage a decision. She told me that there really was nothing to do, although she mentioned a legendary response that had occurred on one occasion: a brave lawyer filed a birthday card on the second anniversary of oral argument. A decision issued soon afterwards. I chose not to follow that approach but received a favorable decision two years and one month after the oral argument.

Many advocates similarly eschew some type of prod to the court. They may file supplemental authority to remind the court that the case is pending, but take no other action. Newman and Levy, though, learned that the Ninth Circuit encourages counsel to contact the clerk over a delayed motion or appeal. The advisory committee note to Circuit Rule 25-2 tells counsel to send a letter to the Clerk. It sets timelines for when a delay is deemed unreasonable: a motion pending more than four months, no notice of oral argument or submission on the briefs within 15 months of the completion of briefing, a merits decision more than nine months after submission, a mandate taking more than 28 days to issue, or a petition for rehearing pending longer than six months. No other federal circuit has made similar provision to address unreasonable delay.

Also unique among the federal circuits is the Federal Circuit instructions on who to refer to the district court in a case. For the past decade, the Federal Circuit has published Internal Operating Procedures that includes Procedure 11, which describes citation rules. Rule 9 of that booklet indicates that it is disrespectful to the originating court for counsel to refer to it as “the court below,” “the lower court,” the lower tribunal,” or “the judge below.” Instead, the court insists that counsel use “district court,” “trial court,” “district judge,” “trial tribunal,” or “court.”

The third unique example the authors discussed was the Second Circuit’s deadline for briefing. Federal Rule of Appellate Procedure 31(a)(1) requires the appellant to file a brief within 40 days after the record is filed. Replies are due within 30 days of that brief, while a reply is due within 21 days as long as it is at least seven days before argument. Rule 31(a)(2) authorizes a court of appeals to shorten the time by local rule or order in a particular case. Yet, the Second Circuit, by local rule, has lengthened the time, requiring the opening brief within 90 days to render unnecessary motions to extend the due date. The parties may confer and set their own times, as long as it does not go beyond 90 days. The court will deny motions to extend beyond that absent “a most extraordinary circumstance.”

A multitude of other differences exist between circuits. For example, in most circuits, you learn of the judges who will serve on your panel 30 days before oral argument. However, in the Fourth and Seventh Circuit, the clerk posts the panel the very morning of argument.

Although it may seem odd that different circuits follow such different rules, it pays for an advocate who argues in more than one circuit to know the differences. Written & Unwritten performs a valuable service for that traveling advocate.

Neurodiversity and Legal Advocacy: Tying it All Together

Tying it all Together

Understanding neurodivergence is important if we are going to succeed as advocates. When we deal with colleagues and clients, when we mentor or teach students and associates, and even as we draft our briefs and make our arguments, we must recognize that we are dealing with people who may process information and think differently than we do. And we should be ok with that.

Even as a neurodivergent person myself, growing up dyslexic, this isn’t always easy for me to do. I fumble a bit even with my own family. 

My daughter (who gave me permission to share) is clearly intelligent. I have always had high expectations for her. When she entered middle school, her grades began to suffer and she was obviously unhappy. I couldn’t understand what had changed, and I made moral judgments about her work ethics. She was underperforming (a classic sign of neurodivergence) and clearly just needed to work harder.

Recently, she was diagnosed with ADD and level 1 autism. And as I dug into the research I’ve shared, I came to understand that her issues weren’t with laziness, but with attention, overstimulation, and organization. And that as these were addressed, and her strengths were recognized and grown, she could thrive.

You, your students, or your associates can too. It starts with awareness. Then we need to take action. But what if we are not given a diagnosis?

Disclosure 

At younger stages, it’s the responsibility of school administrators to make sure children with learning disabilities are assessed and identified, regardless of their desire for confidentiality. At college and in the workplace, it’s completely up to the individual to self-identify. As a result, over 94% of high school students with learning disabilities receive assistance, while just 17% of college students receive access to the same services. 

At work, accommodations are required when disabilities are disclosed. But again, there is a stigma to that disclosure. Studies show that persons with disclosed disabilities tend to make less than those who do not disclose. And by the time attorneys, in particular, enter the workforce, they likely have self-accommodated in many ways, and are hesitant to disclose any disability.

Fortunately, the current model of disclosure and accommodations isn’t the only way to address neurodivergence. We can, instead, modify the environment for students and attorneys alike in ways that work better for everyone using a model known as universal design.

Universal Design for Neurodivergent Success

Universal design started as an architectural concept. What if the physical environment people learned and worked in was more usable for everyone? Then the space would not need to be modified for a particular disability, and all users would find it accessible.

To do so, several objectives must be met:

1. all users must find the product or space useful;
2. the space should be flexible to accommodate differences (i.e., not just right hand desks but rather ambidextrous desks);
3. the facility must be simple and intuitive to use;
4. information must be perceptible to everyone;
5. there should be a high tolerance of error to minimize harm from accidents;
6. using the environment should require low physical effort; and,
7. there should be adequate size and space for all bodies to navigate.

Applying some of the lessons we’ve learned from looking at the strengths and weaknesses of ADD, dyslexia, and autism, there are several universal design considerations to make learning and working more successful. Noise should be reduced. Lighting should not be too harsh. Colors should be muted. Privacy should be given. Hours should be flexible. Working from home should be considered as an option.

Most of these environmental adjustments are good for everyone.  

Over half of high performing employees say their environments are too distracting. These changes largely help to reduce distraction and enhance productivity for everyone.

In academics, the two most common accommodations requested regardless of diagnosis are longer times for testing and a quiet place for that testing. These accommodations are relatively inexpensive, and if applied within the larger classroom setting, there would be no need for many students to self-identify. All would benefit.

Universal design also applies to teaching. Multiple teaching modalities help everyone. While most of us older lawyers learned audibly, through lectures, our new generation of students and associates are much more visual. They have learned to learn on the internet with videos and graphics. So using slides, videos, and electronically accessible information textually helps everyone.

This access to software and internet resources is particularly important for those with disabilities. If your information is accessible on the internet, they can use their own accommodation software, like readers, to better use that information. Allowing access to grammar and spellchecking features is particularly important for those with dyslexia. And scheduling and calendaring software (and training) is useful for everyone, but particularly those with executive function issues.

Finally, these tips from Haley Moss (in her book Great Minds Think Differently: Neurodiversity for Lawyers and Other Professionals (2010)) on managing a neurodiverse practice are useful for any classroom or firm: 

1. Believe when someone tells you something is difficult
2. Be considerate of sensory processing differences
3. Set clear timelines and deadlines and avoid surprises
4. Use different communication methods
5. Check in and encourage feedback, encourage breaks

Closing Thoughts

Hopefully, if you have followed this series of blogs, you have been encouraged to make your office, firm, or classroom more inviting for the neurodiverse. Recognizing that there are strengths alongside weaknesses, that numerous accommodations exist, and that there are strategies for helping the neurodiverse thrive is a big first step. Applying general principles of universal design will help make your practice, office, or classroom more equitable. And as more people become comfortable with disclosing -- perhaps in response to making these changes -- more custom-tailored accommodations can be developed, so that everyone can thrive, no matter how differently they think.

All prior posts with suggested readings:

Neurodiversity and Legal Advocacy - Introduction

Neurodiversity and Legal Advocacy - Dyslexia

Neurodiversity and Legal Advocacy - Autism

Neurodiversity and Legal Advocacy - ADD/ADHD

 

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

Dealing With Difficult Clients

Most attorneys have encountered difficult clients. For example, difficult clients may display narcissistic tendencies (covert and malignant), a sense of entitlement, extreme verbosity (i.e., the “loudmouth”), a need for constant attention, and sheer ignorance of the law while believing that they know more than you. Dealing with difficult clients can be stressful, exasperating, and infuriating.

Below are some tips on how to deal with difficult clients.

    1.    Set boundaries.

Difficult clients will often call you incessantly, demand updates, and make unreasonable demands. Indeed, they often believe that their case is the most important in your firm and that you should prioritize their needs over those of other clients.

Consider the following example:

Client: I called you four times yesterday, and you never got back to me. For the money I am paying you, I deserve to get a callback. And you have not given me an update on our case in over a week, and I feel neglected and disrespected. If you are not interested in representing me, I can find someone better. Plus, I have a new theory of the case that I want you to research immediately. I am going to text and email you as soon as I get home from work, and I need to hear from you.

To deal with these insufferable jerks, you must, at the initial client meeting, set boundaries to ensure that the client does not cause intolerable stress and affect your ability to reach a positive outcome. Setting boundaries includes, but is not limited to, providing an honest assessment of the likely cost of the litigation, explaining that you only answer emails during work hours, that you will respond to phone calls and emails within a specific time (e.g., twenty-four or forty-eight hours), and that you only meet when necessary to discuss case updates. Setting boundaries also requires you to explain what you will not accept, such as daily phone calls or emails, unreasonable demands, or disrespectful behavior.

Additionally, understand that difficult clients often seek little more than attention, relying on you to appease their anxiety and uncertainty about the outcome of their case, which can consume hours of your time. To avoid this, use the “gray rock” technique, which requires you to appear uninterested, non-responsive, or emotionally neutral. Put simply, do not get sucked into the client’s drama. If you do, the client will view you as a source of narcissistic supply, or emotional validation, which will result in the client contacting you incessantly and without regard for your professional or personal space.

        2.    Set realistic expectations.

Always be honest with clients about the merits of their cases and the damages they will recover if a positive outcome is achieved. Never over-promise and make representations that the facts and law do not support. If you do this, you are setting yourself up for failure and a malpractice claim. Of course, difficult clients can often appear so sympathetic or charismatic that you feel tempted to provide more hope to the client than realistic. Never give in to this temptation. It invites disaster.

Consider the following example:

Client: So last month I went to the hospital because I sprained my ankle and was in so much pain. The hospital gave me pain medication and I vomited for three days and felt dizzy the whole time. And they never told me about the side effects of the drug. Then, my third cousin, who just started studying at some law school, said I could sue and get millions because she read a case in her class where some lady got millions because she got burned by McDonald’s coffee that was too hot. I want to sue them for fifty million dollars because of the emotional distress this has caused me.

In this situation, immediately explain that he cannot receive fifty million dollars for such a claim. Be honest. Tell the client that any recovery is unlikely, that if the client prevailed, such recovery would be minimal, and that the cost of litigating it would be far more expensive than the money the client would receive. The client may be disappointed, but your integrity matters far more than the client's disappointment.

    3.    Educate clients about the law.

Clients will often think they know more about the law than you. Be sure to explain respectfully that they do not.  State that you have the knowledge and experience to assess the merits of their case and provide a simple but thorough explanation of the relevant legal principles that will govern the issues in the case.

Consider the following example:

Client: I went to Bob’s Pizza Place yesterday and I ate a whole pizza and some pasta because I was so hungry. Before that, for about five days, I had a horrible stomach virus because I ate food at Billy’s Seafood Palace that gave me food poisoning. Then, when I finally felt better, I went to Bob’s and after I ate the pizza and pasta, I got sick again and was vomiting for three days. I missed work and got fired. Then I read an article that said you could sue businesses for negligence when they make mistakes and you are harmed. It is like those tobacco companies who had to pay a lot of money because their cigarettes gave people lung cancer. It is called negligence and I have been researching it and almost feel like a lawyer now.

When a client says something like this, always remain polite and respectful, and show empathy. At the same time, you must explain to the client that a negligence claim will not succeed based on these facts. In so doing, explain the elements of negligence and why, based on the facts, the client's claim does not meet at least one of the elements, particularly causation. If you allow the client to develop a false hope regarding the merits of a case, you are again inviting disaster and a malpractice claim when, inevitably, the case is dismissed.  

    4.    Just say no.

Sometimes, you should turn a difficult client away if they will so be “high maintenance” that the emotional cost of representing them outweighs the benefit of achieving a positive outcome. Be wary, for example, of individuals who display covert or malignant narcissism, are emotionally unstable or severely mentally ill, talk forever and with no focus or restraint, are overly aggressive and demanding, or treat you with disrespect.

Consider the following example:

Client: Now listen. I got money. I got connections. And I had my choice of any lawyer in this state, but I chose you. Do you know what that means? It means you answer the phone whenever I call you. It means you get me results. It means you do what I say. Because you work for me. My last lawyer did not listen to me and I straightened him out, so do not make any mistakes. I mean, I’ve been divorced five times, and now I do not tolerate anyone who does not listen to me.

Just say no.  Run far away – and never look back.

It does not matter how much money these jerks will pay you.  Your happiness, stability, and sanity are far more important than the misery that these people will invariably inflict.

In law and life, you will encounter horrible people. Knowing how to deal with them -- and when to eliminate them from your life – is critical to professional and personal well-being.

How is the presidential race like “a knife fight in a phone booth”?

On September 2, 2024, when describing the stakes of this evening’s presidential debate between Vice President Kamala Harris and former president Donald Trump, Steven Shepard of Politico labeled the race “the equivalent of a knife fight in a phone booth.”[i] 

I’m a big fan of the power of metaphor and analogy in persuasive writing, given their abilities to both readily convey complex information in simpler terms and improve concision.  But this particular comparison doesn’t work for me.  The characteristics of a knife fight in a phone booth are (1) two people in a very small space, (2) mortal danger, and (3) a short duration.  Harris and Trump are not, by any stretch of the imagination, in a confined space together.  While they are competing for the office of president, they are not seeking to physically harm or kill one another in doing so.  And while the timeline for this particular match-up is brief in comparison to prior presidential races given Harris’s late entry, it has still been (and will be) a monthslong endeavor.  So how, exactly, is it like a knife fight in a phone booth?

This is not the first time this metaphor has been used in reference to politics.  It is frequently used to describe the political landscape in San Francisco.[ii]  And it was used by Senator Mitch McConnell to describe congressional races in 2016.[iii]

But this phrase has also been used to describe combat in the Iraq War,[iv] dealing with turbulence when learning to fly an airplane,[v] the speed of a bicycle,[vi] competitive strategy in athletics,[vii] competition for real estate,[viii] the setup and play of various board games,[ix] and paralympic wheelchair fencing.[x]

“Knife Fight in a Phone Booth” is also the title of multiple songs by various artists,[xi] a watercolor painting,[xii] an actual board game,[xiii] and even an IPA craft beer (which was also sold in a pineapple version).[xiv]

It is hard to see a common thread.  I suspect the original meaning had more to do with speed than competition.  According to one website, the full phrase comes from the country expression, “faster than a knife fight in a phone booth.”[xv]  This makes a lot of sense; it’s not difficult to imagine that a knife fight in a phone booth would be over quickly.  But that doesn’t really apply to presidential races, which can feel rather long to the average American.

Another variation of the phrase is used to describe a boxing style—“fighting in a phone booth,” where the boxers stay huddled together without using the entire ring.[xvi]  (This version of the phrase has become an actual Russian sport where two people literally box each other inside the confines of a phone booth.)[xvii]  This knifeless version could figuratively apply to the current presidential race, where the real fight seems confined to a handful of swing states, rather than the country as a whole.  But then why the addition of knives?

I suspect the most likely explanation is that the evolution of language has simply morphed this metaphor into one of limited utility.  It makes sense when describing certain board games characterized by “slim mechanics,” “[p]unishing to even minor mistakes,” “[c]laustrophobic,” and “[o]ver in a flash.”[xviii] And it is an apt comparison to paralympic wheelchair fencing, where the competitors’ wheelchairs are locked on a fixed track so that the competitors’ blades are always within striking distance of one another, taking the footwork element out of the sport.[xix] But I struggle to see the connection to a political race.

Analogies and metaphors work by employing three cognitive science processes:  (1) retrieval (finding something known), (2) mapping (identifying similarities between the known and unknown), and (3) transfer (using knowledge about the known to learn or infer something about the unknown).[xx]  Therefore, analogies work best when they (1) compare the current situation with another situation that is familiar, (2) have some emotional resonance, and (3) are free of unintended associations.[xxi]  And maybe this is where the knife-fight-in-a-phone-booth metaphor breaks down for me.  Knife fights of any kind carry no emotional resonance, and using the phrase in reference to politics seems to encourage political violence, which, for most Americans, is a negative association.  And, if I’m being honest, the visual image of Harris and Trump in a literal knife fight in a phone booth is absurd and fails to convey what I believe was the intended meaning—that Harris and Trump are locked in a high-stakes competition with exceptionally close odds for both candidates. 

The moral of this story is this:  analogies and metaphors are excellent communication tools when used well, but they can be off-putting when used incorrectly or when they contain unintended associations.

 

[i] Steven Shepard, Where the race between Trump and Harris stands on Labor Day, according to our polling expert, Politico (Sept. 2, 2024), available at: https://www.politico.com/news/2024/09/02/trump-harris-polls-2024-00176981 (last accessed Sept. 8, 2024).

[ii] See, e.g., Clara Jeffery, Dianne Feinstein and the Knife Fight in the Phone Booth, Mother Jones (Sept. 29, 2023), available at: https://www.motherjones.com/politics/2023/09/dianne-feinstein-dan-white-harvey-milk/ (last accessed Sept. 8, 2024); Jacob Ganz, A Knife Fight in a Phone Booth: The Saga of the San Francisco Mayor's Race, Davis Political Review (June 1, 2018), available at: https://www.davispoliticalreview.com/article/2018/06/01/a-knife-fight-in-a-phone-booth-the-saga-of-the-san-francisco-mayors-race (last accessed Sept. 8, 2024).

[iii] See https://www.c-span.org/video/?c4622795/sen-mcconnell-senate-races-knife-fight-phone-booth (last accessed Sept. 8, 2024).

[iv] Eric Boehler, Knife fight in a phone booth, Salon (Mar. 29, 2003), available at: https://www.salon.com/2003/03/29/baghdad_7/ (last accessed Sept. 8, 2024); Elliott Ackerman, A Knife Fight in a Phone Booth, The Atlantic (Nov. 7, 2023), available at: https://www.theatlantic.com/ideas/archive/2023/11/al-qaeda-fallujah-hamas-gaza-parallels/675912/ (last accessed Sept. 8, 2024).

[v] Knife Fight in a Phone Booth, Southern California Soaring Academy blog, available at: https://soaringacademy.org/news/knife-fight-in-a-phone-booth (last accessed Sept. 8, 2024).

[vi] Bull Moose Bicycles, Facebook (July 16, 2024), available at: https://www.facebook.com/story.php/?story_fbid=1069208224593423&id=100045127670672&_rdr (last accessed Sept. 8, 2024).

[vii] Jonathan Byrd, It’s a Knife Fight in a Phone Booth, 10/20/Life Blog, available at: https://www.powerrackstrength.com/its-a-knife-fight-in-a-phone-booth/ (last accessed Sept. 8, 2024).

[viii] Marc Stiles, Builder says competition for Seattle-area homesites feels 'like a knife fight in a phone booth', Biz Journals (May 17, 2024), available at: https://www.bizjournals.com/seattle/news/2024/05/17/homesite-competition-akin-knife-fight-phone-booth.html (last accessed Sept. 8, 2024).

[ix] https://boardgamegeek.com/geeklist/192508/a-knife-fight-in-a-phone-booth (last accessed Sept. 8, 2024).

[x] @paralympics, TikTok (Sept. 1, 2024), available at: https://www.tiktok.com/@paralympics/video/7409618665819147552 (last accessed Sept. 8, 2024).

[xi] See, e.g., “Knife Fight in a Phone Booth” by Glassmouth, “a chaotic hardcore/mathcore band from the depths of metropolitan Singapore” (https://www.glassmouthband.com/); “Knife Fight in a Phone Booth” by Bleed the Sky, “a metalcore band that originally formed in 2002 in Orange County, California” (https://genius.com/Bleed-the-sky-knife-fight-in-a-phone-booth-lyrics); and “Knife Fight in a Phone Booth” by Knockout Kid, “an American pop punk band from Chicago, Illinois” (https://en.wikipedia.org/wiki/Knockout_Kid).

[xii] “Knife Fight in a Phone Booth” by South African artist Victoria Verbaan, available at: https://victoriaverbaan.com/products/knife-fight-in-a-phone-booth (last accessed Sept. 8, 2024).  This watercolor image depicts a woman facing up to a sky full of fighter jets.

[xiii] “Knife Fight in a Phone Booth” by Long Games, available at: https://www.pnparcade.com/products/knife-fight-in-a-phone-booth (last accessed Sept. 8, 2024).

[xiv] Knife Fight in a Phone Booth by Tattered Flag Brewery, Middletown, PA (https://untappd.com/b/tattered-flag-brewery-knife-fight-in-a-phone-booth/2502698).  Incidentally, the image represented on this beer was a hops flower flying a fighter jet engaged in aerial combat.  This craft brewery closed permanently on October 1, 2023.

[xv] https://www.just-one-liners.com/faster-than-a-knife-fight-in-a-phone-booth/ (last accessed Sept. 8, 2024).

[xvi] See, e.g., What do they mean when they say two boxers were fighting in a phone booth?, Quora, available at: https://www.quora.com/What-do-they-mean-when-they-say-two-boxers-were-fighting-in-a-phone-booth (last accessed Sept. 8, 2024).

[xvii] https://sidekickboxing.co.uk/what-is-phone-booth-boxing/

[xviii] See boardgamegeek.com, supra note ix.

[xix] See @paralympics, supra note x.

[xx] Jacob M. Carpenter, Persuading with Precedent: Understanding and Improving Analogies in Legal Argument, 44 Cap. U.L. Rev. 461, 465-66 (2016).

[xxi] Bruce Ching, Argument, Analogy, and Audience: Using Persuasive Comparisons While Avoiding Unintended Effects, 7 J. Ass'n Legal Writing Directors 311, 312 (2010).

Credibility as the Coin of the Realm in Appellate Advocacy

Credibility with the Court provides one of the key parts of an appellate presentation, whether written or oral. An advocate who fudges the controlling law or precedent or misrepresents it cannot expect the judges to credit other aspects of the argument. Misrepresentations about the record or the caselaw can effectively sink the most unfailingly accurate presentation of all other issues. Misstating something material to the case can plant a seed that grows into doubt about your honesty, your understanding of the law, and the thoroughness of your research.

Persuasive argument requires credibility. Spinning the facts or law in your client’s favor may require emphasis on particular facts or precedents while labeling the more problematic ones “unavailing,” but that does not authorize you to claim support from record evidence or judicial decisions that do not bolster your case.

When incredulous arguments appear in a brief, the responsive brief will usually point those out. If those arguments materialize in reply, it may occasion a sur-reply to inform the court of the filings departure from fair argument. Or it may provide an opponent with a devastating statement at oral argument from which there is no recovery.

In one case I had, my opponent made a false statement about the record in his opening brief. In my response, I dropped a footnote to rebut it, showing that nothing approximating what he argued was in the record, citing to the part of the joint appendix that would have, but did not, contain the “concession” he claimed. When we got to oral argument, I was shocked to hear my opponent make the claim anew without any acknowledgement of what I had said in my brief. As I began to jot down a note to remember to rebut the statement, Justice Ginsburg interrupted my opponent’s argument to make the point for me. He had no response. After that, what had been a smooth and very professional argument up until that time became disjointed and immeasurably weakened by his misstep. When I stood at the podium, I did not have to say anything about it because a justice’s efforts had done everything I had hoped to accomplish. The result confirmed that impression.

In their book on legal advocacy, Justice Scalia and Bryan Garner emphasize that oral argument requires an advocate to show the court “you are trustworthy, open, and forthright.”[*] If, in posing a question unanticipated in the briefing, you build an answer on a faulty structure that becomes apparent to the Court, either during oral argument or while an opinion is crafted, you will have snatched defeat from the jaws of a possible victory.

 

[*] Antonin Scalia & Bryan A. Garner, Making Your Case: The Art of Persuading Judges 141 (1998).

Citation Overload: Write Smart, Cite Smarter

Citations matter. Love them or hate them: Legal readers want them and, to be fair, they need them. After all, citations are how readers verify what you tell them about the law. But citations are also one of the easiest ways to clutter your writing. So choose your cites with care and make it clear how each supports what you say.

To see why your citation style matters, look at this snippet of legal writing, drowned by cites:

"Defendants contend that the exclusion of evidence relating to the plaintiff's prior legal actions is appropriate pursuant to Rule of Evidence 403, quoting with approval a series of cases that address the question of prejudicial impact versus probative value, including Mercer v. City of Cedar Rapids, 308 F.3d 840, 845 (8th Cir. 2002); Collins v. Kibort,274 F.3d 377, 385 (7th Cir.2001); and Springs v. First Nat'l Bank of Cut Bank, 835 F.2d 1293, 1297 (10th Cir.1988). Further complicating matters, the plaintiff cites to an entirely different set of authorities to counter defendants' argument and to present an antithetical view of the standard for probative value, including Sprint/United Mgmt. Co. v. Mendelsohn, 552 U.S. 379, 384 (2008); Huddleston v. United States, 485 U.S. 681, 688-89 (1988); and L.B. Foster Co. v. America Piles, Inc., 138 F.3d 81, 89-90 (2d Cir.1998). This Court's role is now to untangle the threads of these cases and form a coherent rule to apply here."

Did readers need all these citations? Likely not. Here’s a rewrite without the legalese: 

"Defendants argue for the exclusion of evidence, citing Rule 403 and cases like Mercer v. City of Cedar Rapids, 308 F.3d 840, 845 (8th Cir. 2002). The plaintiff, conversely, offers cases like Sprint/United Mgmt. Co. v. Mendelsohn, 552 U.S. 379, 384 (2008). This Court's role is now to untangle the threads of these cases and form a coherent rule to apply here."

Citations are double-edged. Use them well, and they help. Lean on them too heavily, and your writing loses its voice.

Most importantly, if you cite authority, you should either quote the source or directly paraphrase it. But lawyers constantly drop citations on readers without explaining how those citations support their points. Talk about a credibility killer. If your readers need to go look up a case to figure out how it supports the sentence you’re writing, you’ve likely lost them.

Often the cite’s relationship to your sentence is already clear. As you set up the prep for your rule, you might share general principles that require a quick cite and nothing more. “Plaintiff has the burden here. [cite]” might be an example. But that would still be true only if the case said that in so many words—no inference needed.

In any event, when you start explaining your rule, especially an important one, don’t rely on empty citations. Do the inferential reasoning for your reader and put it on display. Link what matters from the source to your points so obviously that even the busiest readers can’t miss it. 🔗

Say you write this:

"Defendants need not touch the plaintiff’s skin to carry out a battery— touching something laying on the plaintiff’s body is enough. Park v. Hoffman, 324 F.3d 42, 44 (9th Cir. 2018)."

When your reader pulls up page 44 of Park, it should say something like: “A defendant contacts another by touching any item on the plaintiff’s body.” Different words but identical meaning.

If your reader must infer—say, you assume that this was the court’s reasoning based on the facts in the case, or you’re reading between the lines of some language and what the court didn’t say—don’t just cite the case for that general proposition. One option is to explain your inference directly:

"Given that the court in Park addressed a defendant who ripped a plate from the plaintiff’s hand, contact with the plaintiff’s skin is not needed. 324 F.3d 42, 44 (9th Cir. 2018)."

Your citation is not misleading because you’re telling your reader what inferences you relied on. You did the inferential work for them. You could also interpret the rule in your own words then explain the supporting facts or quotes with citations.

"Contact with the plaintiff’s skin is not needed. In Park, the court addressed a defendant who ripped a plate from the plaintiff’s hand. 324 F.3d 42, 44 (9th Cir. 2018). . . ."

Now you made clear where the inference came from. Credibility managed. But when your reader will not instantly know what a case said or why you cited it, explain it. So again, avoid using cites like this:

"The rule of plevin requires courts to inquire further when parties dispute the terms of an agreement. Park v. Hoffman, 654 F.2d 578 (2012)."

Instead, explain the citation’s purpose and operation plainly:

"The rule of plevin requires courts to inquire further when parties dispute the terms of an agreement. Park v. Hoffman, 654 F.2d 578 (2012) (considering a contract dispute and explaining courts cannot stop at plain language when interpreting)."

A Brief Must be Pudding with a Theme

Winston Churchill reputedly would refer to flavorless food as a pudding without a theme. He employed the same critique occasionally to a disorderly piece of legislation.  In 1935, he criticized a proposed statute, called the India Bill, as a “gigantic quilt of jumbled crochet work.” To him, it had no “theme,” “pattern,” “conviction,” “simplicity,” or “courage.”  It was, in his view, “a monstrous monument of shams.”

A legal argument without a theme and the other deficient qualities Churchill scored is equally indigestible. It suggests that the advocate had no plan in attempting to persuade the court and little faith in the arguments mustered. A theme unites disparate aspects of the case into a single consistent narrative that enables the reader to understand and sympathize with the argument. A theme weaves together the facts, law, and sense of justice in the writing behind a single common idea to convey a strong and favorable reaction from those you seek to persuade. It allows you to demonstrate that your proposed rule of law is fairer, less complex, more consistent with precedent, or more workable. It therefore better fits the established norms, modern trends, or recent developments. Although a reading judge may not later remember specific details about the case, a consistent theme creates a lasting impression and enables even a fuzzy recollection of key elements to blaze a familiar-seeming path to your desired result and imbue the apt analogies you invoke to have irresistible force.

Judge Patricia Wald of the U.S. Court of Appeals for the District of Columbia Circuit once advised that brief writers should:

                        Visualize the whole before you begin. What overriding message is the document going to convey? What facts are essential to the argument? How does the argument                                take off from the facts? How do different arguments blend together? Better still, if it’s a brief, visualize the way the judge’s opinion should read if it goes your way. (Too                       many briefs read as if the paralegal summed up all conceivably relevant facts, and then the lawyer took over with the legal arguments, and never the twain doth meet.)

A theme also allows you to praise the insight or demonstrate the error in the lower court’s decision with proper respect. The theme should fit the case naturally, acknowledging its limits and not be the product of a hard sell. Those limits may involve the types of cases it fits or fact patterns that call for different considerations. Those acknowledgments provide welcome credibility to the judicial reader. By tying together loose ends and excluding problematic applications for separate treatment in a logical fashion, the argument will render the judicial enterprise easier and the argument more appealing.

A theme is compelling storytelling. For a divided court that takes markedly different  approaches to issues, it can make all the difference. Take, for example, statutory interpretation. Some judges adhere to the text and do not look beyond it. Others seek to divine congressional intent from legislative history. Yet others focus on practical issues to make legislation workable. Regardless of the judges’ approach, a theme creates an overarching means of fitting each of those forms of guidance into a consistent answer that can yield a favorable result. Do not leave your panel with a flavorless pudding.

Neurodiversity and Legal Advocacy: Autism

Introduction

The final form of neurodiversity I will address individually is autism. Autism is a complex neurological condition that manifests in different ways. It often includes differences in social communication and interaction, sensory processing, intense passions or interests, and repetitive behavior. About 2.2% of American adults are on the autistic spectrum.

Haley Moss is an attorney who was diagnosed with autism as a child. Here is how she describes her experience:

I was a late talker. I did not speak until I was four years old, and the language I did use was echolalic - often repeating words and phrases my parents used originally heard from cartoons or movies. I regularly stim in order to feel less nervous or to feel a form of sensory input, whether it is twirling my hair, fidgeting, or flapping my hands as form of full body joy when I am so excited, I cannot keep it to myself.

My special interests have changed over the years. While everyone has hobbies or topics that they find enjoyable or fascinating, with autism, it is often the depth of the knowledge that separates the interests from neurotypical pleasure. As a little kid, I was once all-knowing about Ancient Egypt before having an all-encompassing knowledge of the Harry Potter books and movies, to an encyclopedic-level knowledge of Lilly Pulitzer prints and patterns. I would go so far as to say that in law and legal practice, having one particular niche area of practice you enjoy is incredibly similar to an autistic special interest (writing and taking about disability law, the Americans with Disability Act [ADA], and neurodiversity, for instance, surely feels that way for me!).

The executive functions prove to be the most difficult for me, along with social interactions. Sometimes I get so engrossed in a task or something I am passionate about that I forget what time it is or what else to prioritize. I make a lot of lists to make sure the most important things get done. Socially, I will miss the sarcastic joke or put forth double the effort into networking and friendships because it can feel unnatural or far more difficult than it may be for a neurotypical person.

Haley Moss, Great Minds Think Differently: Neurodiversity for Lawyers and Other Professionals 16 (2021)

Strengths

As with other types of neurodiversity, a strengths-based approach to autism helps identify how this different way of thinking can strengthen a practice or legal career, and helps educators focus on leveraging those strengths for their students. The following are some of the strengths identified in those with autism.

• Attention to detail
  Autistic people can enter states of tunnel vision or extreme focus, which, coupled with a strong attention to detail, can lead them to excel at detail-oriented work, including document review, spreadsheet analysis, and similar tasks.
  
  
• Memory
  Many people with autism have excellent focused memory systems, leading to expertise in subject areas and strong recall.
  
  
• Problem solving
  According to some studies, autistic people are up to 40% faster at problem solving, and less likely to be swayed by emotional impact when making decisions.
  
  
• Strong work ethic
  Because of strengths in focus and problem solving, many employers say that autistic employees demonstrate a strong work ethic and satisfaction with tasks, including repetitive tasks.

Weaknesses

As with with forms of neurodiversity, there are attendant weaknesses that are common in people with autism. These weaknesses can be managed and accommodated in various ways.

• Social cue interpretation and display
  Autistic people often have a difficulty in reading emotions, and often are perceived to be emotionless or “flat” by neurotypical people. Awareness of this potential difficulty can prevent misunderstanding.
  
  
• Rigid thinking
  Many autistic people do not respond well to change, and this includes thinking outside of one’s own internal system of thought. Preventing last-minute surprises and change can be very helpful to someone with autism in the workplace. Scheduling events and calendaring deadlines with "tickler" dates to avoid surprises can be very helpful.
  
  
• Self stimulation
  Self-stimulation, or stimming, is a coping mechanism by some people with autism, where they engage in some sort of repetitive physical activity to lessen their anxiety. As Haley Moss describes her own hair twirling or hand movements, it is common for those with autism to use physical movement in ways that can seem distracting. While those with autism may be self-accommodating or undergoing behavioral therapy, cutting down the noise and distraction of work environments is also helpful to avoid the stressors that can lead to the behavior.
  
  
• Compulsions and obsessions
  Many autistic people have intense focus, sometimes resulting in an obsession with a particular subject or object. Setting timers or otherwise blocking out time for projects can help cut short focus on one thing when others must be addressed.
  
  
• Sensory overload
  Many autistic people have difficulty filtering out sensory data. As a result, they have to process all of that information, leading to sensory shutdown or meltdowns. Again, a quiet work environment, without harsh lighting or persistent noise, can be very helpful.
  
  
• Executive functioning
  Many autistic people have difficulty in accomplishing complex tasks when given to them as a block. Some may focus on certain details and miss the big picture. Others may have difficulty in organizing thoughts or paying attention to a given task. Assigning projects in steps rather than as an entire finished product can be extremely helpful.

Adaptations and accommodations

My next entry will answer the "so what now?" question some of you may have. You have been introduced to the concept of neurodiversity and you have some familiarity with the strengths-based approach to leveraging and coping with the strengths of weaknesses of dyslexia, ADD, and autism. But not every student or associate will disclose their particular neurodiversity, and many remain undiagnosed. Fortunately, there are best practices to employ in the classroom and workplace to help those with neurodiversity maximize their potential, and those practices are good for those who are neurotypical, as well. More on that next time.

Further Reading:

https://embrace-autism.com

Haley Moss, Great Minds Think Differently: Neurodiversity for Lawyers and Other Professionals (2021)

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