Appellate Advocacy Blog

Drafting a Strong Preliminary Statement

            The preliminary statement, or introduction, is among the most critical parts of a brief. Indeed, the preliminary statement affords you the opportunity to concisely and persuasively explain why you should win, and thus make an excellent first impression on the reader. Below are a few tips on how to draft a strong preliminary statement.

1.    Begin with a strong opening sentence that captures the reader’s attention.

            The first sentence in the opening paragraph of your preliminary statement should tell the court precisely and persuasively why you should win. Put differently, it should contain the theme of the case. Doing so will capture the court’s attention and focus the court’s attention immediately on the arguments that you believe support a ruling in your favor.  Be sure, however, not to draft an opening sentence that contains over-the-top language and unnecessary adjectives, that is excessively long, or that contains excess or esoteric words. Keep it simple and to the point. Consider the following examples:

“The defendant subjectively believed that her life was in danger when she used lethal force, and the decision to use such force was objectively reasonable.”

Versus

“This case is about the defense of self-defense, and the defendant should be found by this court to have exercised the defense of self-defense in this case.

            Of course, the first example is not perfect, but you get the point. The second sentence is an unmitigated disaster and will certainly not capture the judge’s attention (in a positive way) or begin your brief persuasively.

 2.    Tell the court what you want.

            In the first paragraph of your preliminary statement, inform the court of the relief that you are seeking. For example, if you are opposing a summary judgment motion, say, “The defendant’s motion for summary judgment should be denied,” or if you are the plaintiff moving for leave to file an emergent appeal, say, “The plaintiff’s motion for leave to file an emergent appeal should be granted.” It sounds simple – and it is – but it's important to let the court know at the outset what relief you are seeking.

 3.    Tell the court why you should get what you want.

            Explain to the court why you should get what you want. One strategy to ensure the effective organization and flow of your preliminary statement is to use the Rule of Two or the Rule of Three roadmap, in which you state concisely the two or three reasons that support ruling in your favor.  Doing so gives the court an outline of the arguments to expect in the brief and allows you to explain why those arguments are meritorious.  Consider the following examples:

 “The plaintiff’s defamation claim should be dismissed because the allegedly defamatory statements: (1) were substantially true; (2) constituted protected opinion; and (3) did not cause the plaintiff’s alleged harm.”

 Versus

“The plaintiff has alleged that the defendant defamed her, but that claim should be dismissed because, as discussed below, several defenses exist that prohibit the plaintiff from recovering damages in this matter.”

             The problem with the second sentence is that it doesn’t say anything, and it gives the court no indication of the arguments that you intend to rely on to support your position.

            Importantly, each paragraph that follows should be dedicated to explaining separately why each of the two or three reasons supports your position. 

4.    Be concise.

            Always be concise and get to the point, using simple language and, as a general matter, never exceeding three pages. As such, avoid, among other things, Latin, legalese, fancy “SAT” words, long sentences, adverbs, adjectives, over-the-top language, and unnecessary repetition. Using such language suggests that you are trying to artificially persuade the court and do not believe in the strength of your arguments. Consider the following examples:

“On December 1, 2022, a blizzard struck Hasbrouck Heights, New Jersey, a town of 15,000 residents, with accumulations of approximately twenty-two inches of snow. The defendant, Mike Smith, owned Mike’s Grocery Store, a popular destination for many Hasbrouck Heights residents. In the aftermath of the blizzard, and for approximately five days, Mike remained open but did not make any effort to clear the snow and ice that had accumulated in the parking lot and walkway. As a result, on December 3, 2022, as Barbara Johnson, an elderly woman and a frequent patron, was walking to the front door, she fell, suffering severe injuries, including a concussion and broken shoulder. Barbara’s injuries were the direct and proximate result of Mike’s negligent conduct and entitle Barbara to damages.”

Versus

“As discussed in more detail infra, on December 1, 2022, a shocking event occurred in Hasbrouck Heights, New Jersey that no one could have ever predicted or imagined. Almost two feet of snow fell and the deleterious effects on the town’s vulnerable residents were incalculable and incomprehensible. However, despite the undeniable dangers that the storm engendered, Barbara Johnson, an elderly and mercurial woman, make the fateful decision to risk her life by venturing to Mike's Grocery Store, where the parking lot was covered in snow and the deleterious conditions unquestionably apparent. Not surprisingly, Barbara fell while endeavoring to enter the store and suffered injuries that any reasonable person would have foreseen. As such, and as described infra, Barbara’s injuries are ipso facto the result of her negligence and the complaint should be dismissed.

            Again, the first example is not perfect, but the point should be obvious. The second example is about as bad as it gets.

5.    In most instances, do not cite cases in the preliminary statement.

            Some may disagree with this point, but in my view, the preliminary statement should provide a concise and compelling overview (and roadmap) of your arguments, including the facts that support granting the relief you seek. Citing cases can disrupt the flow and is arguably unnecessary because the legal argument section is where you will rely on case law to expand upon and further support your position.

       

Should I include a stand-alone “introduction” section in my brief?

I was recently discussing persuasive writing with an appellate attorney, and he mentioned how important he believed the “introduction” section of the brief was.  He wasn’t talking about an introductory paragraph to the argument; he meant an entirely independent, stand-alone section of the brief. 

The idea of an “introduction” (or preliminary statement) section has taken hold over the past few years in the appellate practice world.  It was mentioned on this very blog back in 2019:  https://lawprofessors.typepad.com/appellate_advocacy/2019/12/writing-an-outstanding-appellate-brief.html. But those who support it also recognize that not all appellate courts authorize it.[1]  And that raises several questions.

• What is an “introduction” section?

An introduction section has been described by advocates as “a short and persuasive overview of the case,”[2] or “a concise statement of the issues and arguments that the writer view[s] as most important, as well as the desired outcome.”[3]  

While most appellate courts do not expressly authorize its inclusion in briefs, some do.  Arizona, Illinois, Kentucky, Maine, Minnesota, Utah, and Washington all expressly authorize (or require) an introduction section in their state appellate court rules.[4]  Utah’s rule says that “[t]he introduction should describe the nature and context of the dispute and explain why the party should prevail on appeal,” while the Illinois rule provides a model:  “This action was brought to recover damages occasioned by the alleged negligence of the defendant in driving his automobile. The jury rendered a verdict for the plaintiff upon which the court entered the judgment from which this appeal is taken. No questions are raised on the pleadings.”[5]  But the other state rules provide less guidance, suggesting that the introduction should address the “nature of the case” (Kentucky and Maine) or be “concise” (Washington), while Arizona and Minnesota provide no guidance at all.

With respect to the federal circuits, none address introductions in their local rules, but Westlaw’s Practical Law toolkits suggest that introductions are commonly included by practitioners in the First, Second, Fifth, Eleventh, and Federal Circuits.  These introductions are generally described as “a short preliminary explanation of the facts and procedural history of the case [with an] expla[nation] why the . . . Circuit should grant the appellant relief from the district court’s order or judgment.”[6]

• What are the pros and cons of using an introduction?

As with any persuasive writing, you must first know your audience.  As a law clerk, I’ve seen only a few of these (they are not expressly authorized by my state’s rules), and I was neither put off nor blown away.  For me, it was meh.  But it’s really the judges’ opinions that matter, so I asked the judge I work for if she had noticed them and what she thought.  She also expressed mixed feelings, noting that introductions were helpful only if they were well-written, avoided redundancy, were brief, and acted as a guide for analyzing the claims on appeal.[7]

There are several potential benefits from a well-written introduction section.  You get to frame the case; you get to prime your reader to accept your legal positions or view the facts favorably to your claims;[8] and you can help the court navigate your brief.

But there are risks, as well.  The most obvious is potential redundancy.  Most appellate courts permit or require a summary of the argument section.  According to the federal rules, this section “must contain a succinct, clear, and accurate statement of the arguments made in the body of the brief, and . . . not merely repeat the argument headings.”[9] And, presuming your argument identifies the nature and context of the dispute and explains why your client should prevail, it’s hard to see the distinction between the summary of the argument and an introduction.  As one author put it, “At best, the brief simply contains two summaries of the argument, rather than one.”[10]  And one Florida court noted, “Outlines of substantive arguments are more proper in a brief's summary of argument section.”[11]

An additional (and very real) risk is violating a procedural rule.  Most appellate courts allow for dismissal of appeals in the face of briefing rule violations.  Even in jurisdictions allowing introductions, failing to write them properly (or taking liberties with the opportunity) can land you in a court’s crosshairs.  See, e.g., Yakima Sch. Dist. No. 7 v. Magee, 16 Wash. App. 2d 1079 (Wash. App. Div. 3 2021) (rejecting the appellant’s “preamble” as “a confusing jumble of words” that failed to “help the court or opposing counsel ‘expeditiously review’ the issues in the case”).  Furthermore, in jurisdictions without express rules, it is unclear whether an introduction counts in the page and word limits or whether the failure to include legal or record citations constitutes a violation of other briefing requirements.  And both the Second Circuit and the United States Supreme Court have rules requiring briefs to be free of “irrelevant” or “immaterial” matter.[12]

In short, the inclusion of an optional or unauthorized introduction is a gamble with some significant risk for potentially high reward—but only if it is done well.

• How do I effectively use an introduction?

The first decision is where to put it.  Its name, alone, suggests it should appear near the beginning of the brief, and jurisdictions with express rules generally say it should appear immediately after the table of authorities.[13]  In federal circuits where common practice exists, introductions appear immediately after the table of authorities (First and Second Circuits), after the statement of issues presented (Fifth Circuit), or between the statement of related cases and the jurisdictional statement (Federal Circuit).  Common practice in the Eleventh Circuit appears variable, with some introductions appearing at the very beginning, some after the table of authorities, and some as the first heading in the statement of the case.  (Though it seems odd to include the introduction within the statement of the case, the reason for doing so may be logistical; some appellate judges rely on summaries provided by staff attorneys, and including the introduction in the statement of case increases the likelihood that it will be included in those summaries.  Of course, placing the introduction within the statement of case may also increase the likelihood of a rules violation if the introduction lacks citation or includes argument.)[14]

The next decision is whether to include citations to either the record or legal authority.  In Washington, “[t]he introduction need not contain citations to the record or authority.”[15]  And judges who are open to introductions generally suggest that citations in this section detract from its purpose and effectiveness.  But, as mentioned above, whether you are required to include record citations depends to some degree on location of your introduction, and many appellate courts require citations to the record for every factual assertion in the brief.[16]

Additional considerations are whether introductions are appropriate in every case and, if included, how long they should be.  Considering how judges and law clerks use introductions, they are most effective when included in complex cases and least effective in simpler ones.  And there is universal agreement that they must be brief and concise or risk being ignored.  Thus, one author suggests, “Where introductions are concerned, you should make sure that every single word counts.”[17] 

As for contents, begin by describing the type of case (e.g., premises liability, landlord/tenant dispute, employment discrimination) and then provide a roadmap (as opposed to a summary) for the main arguments.  “This roadmap should say, in basic terms: what happened; what law applies; and what the result should be.”[18]  Here’s an example from a brief in the Eleventh Circuit:

This is a dispute regarding insurance coverage. [Insured] lived at Lakeview apartments. She sued Lakeview after she slipped and fell on a leak when the “air conditioning units” at the apartments stopped working. At issue is whether a Water Related Exclusion, which precludes coverage for bodily injuries arising out of, related to, or in any way involving a discharge or leak from “appliances,” applies to [Insured’s] lawsuit against Lakeview.

[Insurer’s] position is it does not have a duty to defend because [Insured] clearly alleges her bodily injuries arise out of a leak from an appliance, i.e., the air conditioning units. While the word “appliance” is not defined in the Policy, its ordinary meaning is a “device for a particular use or function.” An air conditioning unit meets this definition; simply, it is a device used to heat or cool air. There is no coverage under the terms of the Policy.

The district court disagreed and concluded [Insurer] has a duty to defend because it is not clear whether an HVAC system is an appliance. In the district court's view, an “appliance” means something “that you plug in, like a dishwasher or refrigerator.” The district court appears to have been swayed by Lakeview's expert who opined that the word “appliance” does not mean a building's HVAC system.

Applying the ordinary definition of “appliance” it is clear the Water Related Exclusion applies to the allegations in [Insured’] complaint. Moreover, expert opinion is irrelevant to the duty to defend. See Selective Ins. Co. v. William P. White Racing Stables, 718 Fed. Appx. 864 (11th Cir. 2017). This Court should reverse.[19]

The Takeaways:

• Check your local rules first to see if introductions are authorized, and if so, whether there are any requirements or constraints on usage;
• Use introductions for only complex cases where they can be a helpful guide for your reader;
• Ensure you are complying with other briefing requirements (e.g., record references and word/page limits); and
• Be concise—limit yourself to one page at most.[20]

 

[1] See, e.g., Chris W. Altenbernd, Legalizing the Appellate Introduction, 90 Fla. Bar J. 60 (Sept./Oct. 2016), available at https://www.floridabar.org/the-florida-bar-journal/legalizing-the-appellate-introduction/.

[2] Savannah Blackwell, Legal Writing Tip:  Start Your Brief With a Solid Introduction, available at https://www.sfbar.org/blog/legal-writing-tip-start-your-brief-with-a-solid-introduction/

[3] Lance Curry, No Introduction Needed?  The Effectiveness of Introductions in Appellate Briefs, The Record, Journal of the Appellate Practice Section of the Florida Bar (Winter 2011), available at http://therecord.flabarappellate.org/wp-content/uploads/2018/07/AP-Winter-11.pdf.

[4] See Ariz. R. Civ. App. P. 13(a)(3); Ill. Sup. Ct. R. 341(h)(2); Ky. R. App. P. 32(A)(1); Me. R. App. P. 7A(a)(1)(C); Minn. R. Civ. App. P. 128.02.1(d); Utah R. App. P. 24(a)(4); Wash. R. App. P. 10.3(a)(3). 

[5] According to Illinois law, “The introductory paragraph should not include lengthy recitations of fact and should not contain argument.”  Slater v. Illinois Lab. Rel. Bd., Loc. Panel, 144 N.E.3d 618, 624 (Ill. Ct. App. 1st Dist. 2019).  Thus, it is probably not the kind of introduction most advocates envision.

[6] See, e.g., Fifth Circuit Appellant's Brief, Practical Law Standard Document w-000-5018.

[7] These views have been echoed by other appellate judges, though some believe the introduction (if not expressly authorized by rule) is not only a waste of time but also a violation of appellate briefing rules.  Curry, supra note 3.

[8] Joe Regalia, Eight Easy Strategies to Write Better Introductions, available at https://write.law/blog/eight-simple-strategies-to-write-better-introductions

[9] Fed. R. App. P. 28(a)(7).

[10] Altenbernd, supra note 1.

[11] Florida Second District Court of Appeal, PRACTICE PREFERENCES, pg. 4, available at www.2dca.org.   

[12] 2d Cir. R. 28.1(a); Sup. Ct. R. 24.6.

[13] See Ariz. R. Civ. App. P. 13(a)(3); Ill. Sup. Ct. R. 341(h)(2); Ky. R. App. P. 32(A)(1); Me. R. App. P. 7A(a)(1)(C); Minn. R. Civ. App. P. 128.02.1(d); Utah R. App. P. 24(a)(4); Wash. R. App. P. 10.3(a)(3).  But see Ky. R. App. P. 32(A)(1) (indicating the introduction should be the first section of the brief); Minn. R. Civ. App. P. 128.02.1(d) (indicating the introduction should appear between the facts and the argument sections).

[14] See Curry, supra note 3, pg. 13-14.

[15] Wash. R. App. P. 10.3(a)(3); but see Est. of Gilkey v. Gilkey, 11 Wash. App. 2d 1080 (Wash. App. Div. 1 2020) (unpublished) (stating, “we disregard factual statements not supported by the record in the introduction, just as we disregard them in other parts of a brief”).

[16] E.g., 3d Cir. R. 28.0(c) (“All assertions of fact in briefs must be supported by a specific reference to the record.”); 5th Cir. R. 28.2.2 (“Every assertion in briefs regarding matter in the record must be supported by a reference to the page number of the original record”); 6th Cir. R. 28(a) (“A brief must direct the court to the parts of the record it refers to.”); 9th Cir. R. 28-2.8 (“Every assertion in the briefs regarding matters in the record, except for undisputed facts offered only for general background, shall be supported by a citation to the Excerpts of Record”); 11th Cir. R. 28-1(i) (“In the statement of the case, as in all other sections of the brief, every assertion regarding matter in the record shall be supported by a reference to the record”) (emphasis added); Fed. Cir. R. 28(f) (“Any reference in a brief to the underlying record . . . must be to the corresponding appendix page number(s) assigned to the material”); D.C. Cir. R. 28(b) (“When citing to the record, authorities, or any other material, citations must refer to specific pages of the source”).

[17] Jon Barnes, Intro to Intros: How to Write the Winning Preliminary Statement, 58-APR Ariz. Att’y 28 (April 2022).

[18] Id.

[19] KINSALE INSURANCE COMPANY, Plaintiff-Appellant, v. LAKEVIEW TOWER VENTURE, LP, et. al., Defendant-Appellee., 2023 WL 1778409, at *1-2 (11th Cir. App. Br.).

[20] Federal practice suggests that one-to-two pages is an acceptable length, but some state court rules expressly limit introductions alone, or in combination with other sections, to one page.  See, e.g., Ky. R. App. P. 32(A)(1).

To Burn the Midnight Oil . . . or Not

On Tuesday, the U.S. Court of Appeals for the Third Circuit adopted a rule that requires filings be submitted by 5 pm on the due date, rather than any time before midnight that day as part of an effort to impose better work-life balance on lawyers and their staffs, effective July 1. To help people get used to the new rule, a “grace period” allowing acceptance of filings submitted later in the day will be permitted through the remainder of 2023.

The new L.A.R. 26.1 applies the Clerk’s Office’s closing time to electronic filings. Fed. R. App. P. 26(a)(4)(B) sets the deadline for electronic filings in a court of appeals to be midnight in the court’s time zone on its due date. However, that rule is premised on the condition that no “different time is set by a statute, local rule, or court order.” The Third Circuit is the only circuit to take advantage of that clause to set a uniform 5 pm filing deadline.

In a Public Notice issued May 2, the court explained that the new deadline permits its Helpdesk to assist with last-minute filing problems during regular business hours, the Clerk’s Office to extend deadlines on the due date, and allows judges to receive and review the filings at an earlier hour. The court also expressed concern for pro se filers, who comprise more than half the court’s filers and do not have access to the electronic filing system and thus must file by paper in the clerk’s office. The court stated that a 5 pm deadline equalized the requirements between attorneys and pro se litigants. The rules was also aimed at the “practice by some of unnecessary late-night filings intended to deprive opponents from hours that could be used to consider and formulate responses to such filings,” while saving opposing counsel from checking their email to see if the papers were filed yet. Finally, the court said the rule prevents confusion on when the filing must be made. It noted that about a quarter of all filings come in after business hours.

The rule was promulgated over the opposition of bar groups. The Pennsylvania Bar, for example, argued that the court’s quality-of-life concerns were misplaced because further constraining the time to file “intensifies the existing strain on the well-being of the lawyer,” would alternatively engender more 11th-hour motions to extend the time to file, and, consequently, further burden “scarce judicial resources.” The bar’s letter also noted that the “brunt” of the burden from a shortened deadline would fall on small firms and individual practitioners with more limited resources. Finally, the Pennsylvania Bar asserted that the rule would increase confusion by making the Third Circuit different from each of the other federal circuits, where the same appellate lawyers might practice.

The Third Circuit Bar Association also complained. It noted that the reduced hours took away flexibility needed to address “family care, medical appointments, unforeseen circumstances, and other work obligations” that could crop up. It also asserts that the fairness concerns are overblown and easily addressed on a case-by-case basis.

Forty-three appellate lawyers sent a memorandum that praised the flexibility that a midnight deadline provides, noting that post-COVID that many people work non-regular hours from home, and urged the court to keep the old rule.

None of these pleas were successful. Some of the arguments were or should have been easily dismissed. While uniformity among the circuits is desirable, appellate lawyers, like their trial-level counterparts, should read the local rules. For example, Fed. R. App. P. 32 sets the word count for principal merit briefs at 13,000 words and reply briefs at 6,500 words. The Ninth Circuit, however, its Cir. Rule 32-1 maintains the old rule of 14,000 and 7,000. On the other hand, the idea the public notice advances that a judge was anxiously awaiting the filing to begin diving into the brief that evening seems pretty farfetched for everything but emergency filings, which often have their own specific deadlines.

Others should have been taken more seriously. I look at the issue from the perspective of a solo practitioner with a national practice. In the last several circuit arguments I have made no one came from within that circuit. In arguments in the Seventh and Ninth Circuits, both parties were represented by counsel from Washington, DC. In the Fifth Circuit, my opponent was from New York. The point is that a substantial number of appellate lawyers practice in circuits where they do not reside. If the Ninth Circuit adopted a 5 pm deadline, the time difference from Washington, DC gives me an extra three-hour window. By the same token, the Third Circuit’s new rule would deprive a practitioner from San Francisco of three hours of regular business time due to the time difference.

In a world adjusting to remote work where offices have become less meaningful, the idea that a 5 pm deadline will have meaning for quality-of-life concerns strikes me as fanciful. In all likelihood, it merely shifts the extra hours needed to the days before. As the Supreme Court term started moving toward its last few months, Justice Byron White would tell his clerks that it was time to start burning the midnight oil. What the Third Circuit seems to be saying by its new rule is burn the midnight oil every day up to but not including the due date for a filing.

Legal Communication and Rhetoric: JALWD Turns 20

The journal, Legal Communication and Rhetoric: JALWD, (formerly the Journal of the Association of Legal Writing Directors) will publish its twentieth volume this year. The journal has this mission statement:

The journal is dedicated to encouraging and publishing scholarship (1) focusing on the substance and doctrine of legal writing. Legal writing is broadly defined to include many types of writing in a lawyering setting; (2) grounded in legal doctrine, empirical research, or interdisciplinary theory; and (3) accessible, helpful and interesting to all “do-ers” of legal writing: attorneys, judges, law students, and legal academicians. Published articles are intended to reach all of those audiences.[1]

The journal regularly includes articles that appellate practitioners will found helpful and it publishes articles written by practitioners as well as academics. Here are just a few examples:

• Raffi Melkonian, Thoughts and Worries About Appellate Practice Post-Pandemic, 19 Legal Commc’n & Rhetoric 129 (2022)
• Stephen Boscolo, Using Judicial Motives to Persuade Judges: A Dramatistic Analysis of the Petitioners’ Brief in Lawrence v. Texas, 17 Legal Commc’n & Rhetoric 103 (2020)
• Scott Fraley, A Primer on Essential Classical Rhetoric for Practicing Attorneys, 14 Legal Commc’n & Rhetoric 99 (2017)
• Barbara K. Gotthelf, The Lawyer’s Guide to Um, 11 Legal Commc’n & Rhetoric 1 (2014)
• Stacy Rogers Sharp, Crafting Responses to Counterarguments: Learning from the Swing-Vote Cases, 10 Legal Commc’n & Rhetoric 201 (2013)
• Scott Fraley, A Primer on Essential Classical Rhetoric for Practicing Attorneys, 14 Legal Commc’n & Rhetoric 99 (2017)

You’ll find a complete archive of the journal here Legal Communication & Rhetoric: JALWD

 

[1] https://www.alwd.org/aboutlcr

Imagining the Appeal if the Dominion v. Fox News Case Had Gone to Trial

The highly anticipated trial of Dominion Voting System’s defamation lawsuit against Fox News evaporated on the cusp of trial with a settlement. As a result, we can only speculate about what an appeal might have looked like – but that does not prevent us from engaging in the thought experiment of what might have occurred. Both sides were prepared for an appeal regardless of the trial’s outcome. And the First Amendment implications of the case could well have garnered interest in the U.S. Supreme Court.

At trial, Dominion had two overriding burdens. It had to prove that Fox’s reporting on the voting machine manufacturer was not true and that, in doing so, Fox engaged in actual malice because it knew the claims were false or showed a reckless disregard for the truth. On the first issue, the truth or falsity of the on-air assertions by Fox, the judge had granted summary judgment in Dominion’s favor – Fox could not overcome the evidence that its on-air claims were false. The trial, then, would likely have focused on whether the actual malice standard was met and the resulting damages.

Although a host of issues may have arisen from the conduct of the trial or objections and rulings made during the course of trial, it is not hard to imagine that, if Fox had lost, some of the issues it might have appealed.

First, was the trial court’s decision on summary judgment supported by uncontroverted evidence? A court may only grant summary judgment if no material issues of fact exist, thereby entitling the movant to judgment as a matter of law.[1] The court reviews factual assertions in the light most favorable to the party opposing summary judgment, and any inferences drawn must operate to the benefit of that nonmovant.[2] Moreover, using a burden-shifting standard, the nonmoving party’s evidentiary obligation is triggered only if the moving party’s evidence appears to establish each element of the case.[3] The U.S. Supreme Court has described the burden the nonmovant bears to be to create more than “some metaphysical doubt as to the material facts.”[4]

My purpose in reviewing the applicable standards is not to comb through the evidence proffered in the case to support summary judgment, but to show that the standard, at face value, disfavors summary judgment as long as an operative fact is in real dispute. Even so, an appellate court examines a grant of summary judgment de novo, because the absence of contradictory facts renders the issue a question of law.[5]

Second, one can imagine an appeal focusing on whether the actual-malice standard, deemed protective of the First Amendment rights of the media, was met. Under New York Times v. Sullivan[6] and Curtis Pub. Co. v. Butts,[7] both public officials and public figures seeking to recover compensation for a defamatory falsehood must show that the defamation was the product of actual malice. That standard, as articulated in Butts, tellingly states that it requires “a showing of highly unreasonable conduct constituting an extreme departure from the standards of investigation and reporting ordinarily adhered to by responsible publishers.”[8] The reports on the evidence amply show that Fox’s on-air personalities and owner Rupert Murdoch understood that the claims of election fraud that were common currency on the network were laughably false and suggest that Dominion had the goods to overcome the actual-malice hurdle.

On the other hand, observers have no idea whether Fox had evidence that demonstrated sufficient doubt from reliable quarters that would have chipped away at any finding of malice. Even so, taking a different angle to an appeal, it is fun to imagine counsel for Fox attempting to contrive an argument that the modern standard for investigation and reporting by today’s “responsible publishers” is greatly diminished from when Butts was rendered so that the standard was satisfied in this instance. That Fox itself is heavily responsible for that lowering of standards would not seem to enter into that calculation.

Finally, the most interesting potential issue on appeal could be whether the New York Times test is still valid as a constitutional command. Concurring in a 2019 order that denied certiorari in a defamation case brought by an alleged victim of sexual assault against actor and comedian Bill Cosby, Justice Clarence Thomas solicited an appropriate case to review New York Times v. Sullivan and its progeny, asserting that the standards it set were “policy-driven decisions masquerading as constitutional law” and that providing extra protection for public officials and figures lacked support in the First Amendment’s original understandings.[9] Justice Thomas reiterated this stance in 2021 and 2022, both times dissenting from the denial of cert and suggesting that each petition provided a good vehicle to reevaluate the interplay of the First Amendment and libel law.[10]

In the 2021 case, Justice Thomas was joined in this sentiment, by Justice Neil Gorsuch, who wrote separately. Justice Gorsuch agreed that the First Amendment involved no special solicitude for libel that should affect its treatment in court, but he also suggested that circumstances had changed. He noted that in today’s world, everyone can become a publisher and a public figure in ways unimaginable in 1964.[11] He speculated that the New York Times majority may have believed that the rule they announced “would apply only to a small number of prominent governmental officials whose names were always in the news and whose actions involved the administration of public affairs.”[12] Now, he said, it applies much more widely in a world where expediency is valued over “investigation, fact-checking, or editing.”[13]

Justice Gorsuch’s speculation seems about the New York Times majority’s presumptions seems off the mark. In the original case, plaintiff L.B. Sullivan, a Montgomery, Alabama city commissioner with supervisory authority over the police department sued the Times over its publication of a one-page newspaper advertisement by place by four black clergymen decrying the treatment of nonviolent civil rights demonstrators by “Southern violators.” Though he was not named as one the Southern violators, Sullivan claimed the advertisement defamed him. As required by Alabama law, he wrote the Times and demanded a retraction before suing. Rather than enter a retraction, the Times wrote back, “‘we . . . are somewhat puzzled as to how you think the statements in any way reflect on you.’’’[14] It seems highly unlikely that the majority imagined they were covering a “small number of prominent government officials whose names were always in the news.”

Even so, more potential tests of New York Times are likely coming. A Dominion loss would have opened the door to a challenge in this instance against a conservative media institution, but the idea of a challenge has become a cause for a number of conservative politicians. The markers laid down by members of the Supreme Court remain invitations in an appropriate case, making it likely that a case is coming, even if it will never be Dominion’s lawsuit against Fox.

 

[1] Moore v. Sizemore, 405 A.2d 679, 680 (Del. 1979). Because the trial was to take place in a Delaware state court, Delaware precedent is cited here.

[2] Merrill v. Crothall-Am., Inc., 606 A.2d 96, 99-100 (Del. 1992)

[3] Moore, supra note 1, 405 A.2d at 681.

[4] Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).

[5] Bryant v. Maffucci, 923 F.2d 979, 982 (2d Cir. 1991).

[6] 376 U.S. 254, 279-80 (1964).

[7] 388 U.S. 130, 155 (1967).

[8] Id. at 155.

[9] McKee v. Cosby, 139 S. Ct. 675, 676. 678 (2019) (Thomas, J., concurring in denial of cert.).

[10] Coral Ridge Ministries Media, Inc. v. S. Poverty L. Ctr., 142 S. Ct. 2453, 2455 (2022) (Thomas, J., dissenting from denial of cert.); Berisha v. Lawson, 141 S. Ct. 2424, 2425 (2021) (Thomas, J., dissenting from denial of cert.).

[11] Id. at 2428-29 (Gorsuch, J., dissenting from denial of cert.).

[12] Id. at 2428.

[13] Id.

[14] New York Times, 376 U.S. at 261.

Comments Against Angel Reese Call Us to Check for Bias in Our Writing

As I’ve mentioned before, I was lucky enough to teach a seminar on bias in legal analysis and writing this semester.  Much of the class focused on implicit bias and the way we can use words as lawyers to help find and remove bias.  Occasionally, we encountered bias in court opinions, legal scholarship, and the like that was almost express.  While easier to spot and remove than subtle implicit bias, overt bias also reminds us, as lawyers and legal writers, to scrutinize our own writing. 

One example of clear bias in the media that could help us as legal writers came at the end of the NCAA basketball tournament this year.  Students and I were struck by social media and sportscaster disparate discussion of a strong, powerful player for the University of Iowa and a strong, powerful player for Louisiana State University.  These women, Angel Reese of LSU and Caitlin Clark of Iowa, are incredible competitors who each led their teams to the NCAA championship game.  Along the way to the final game against each other, which LSU won, both played beautifully and both sported almost identical ponytails.  Both also made the same “you can’t see me” taunt to opponents during the tournament by waving their outstretched hands in front of their faces, to show they were too quick for opponents to see and stop.  In response to these taunts, Clark faced praise, including from ESPN and pro wrestler John Cena, who invented the “you can’t see me” taunt, but Reese faced profanities and statements she was “classless.”   

The difference:  Clark is white, while Reese is Black.  Our class had a robust discussion of what the different language used to describe these similar athletes using identical taunts in the same tournament meant to us as legal writers, and the students inspired me to share this incident here.

As Mike Freeman of USA Today explained, “Clark is a skilled trash talker and used the John Cena "you can't see me" taunt multiple times throughout the tournament.” Mike Freeman, Reaction to Angel Reese taunting Caitlin Clark shows the double standard for Black Athletes,  https://www.usatoday.com/story/sports/columnist/mike-freeman/2023/04/03/angel-reeses-taunt-iowas-caitlin-clark-shows-double-standard/11591498002/ (Apr. 3, 2023).  Freeman continued, “[i]n the closing moment of the championship game, Reese did the same taunt and also pointed to her hand, signaling she was getting a championship ring.”  Id.   

Aisha Sultan of the St. Louis Post-Dispatch noted Clark often taunted opponents.  Sultan explained:  the “you can’t see me,” gesture “had been used by Clark toward a Louisville opponent in the Elite Eight” round of the NCAA tournament, and “ESPN even produced a segment hailing Clark as the “Queen of Clapbacks” featuring these moments of taunting by her.” Aisha Sultan, Backlash to Angel Reese raises question: Which athletes get called 'classless'?, https://www.stltoday.com/lifestyles/parenting/aisha-sultan/sultan-backlash-to-angel-reese-raises-question-which-athletes-get-called-classless/article_fa75a30d-67d7-56c1-aac6-ea09c00b638f.html (Apr. 3, 2023).  “The reaction to Reese [using the taunt in the final game], however, included Dave Portnoy, founder of the site Barstool Sports, tweeting that she was a ‘classless piece of (expletive)’ and Keith Olbermann calling her an ‘(expletive) idiot’ on Twitter.”  Id.

Freeman honed in on the use of language here, and his notes are especially helpful to appellate writers as we edit our work.  For example, he described what he called stereotypes of sports as:

When Black players are aggressive, and talk trash, they are thugs and animals.

When white players are aggressive, and talk trash, they are passionate and fiery.

This stereotype goes back decades. Larry Bird was the greatest trash talker of all time but was celebrated for his passion. Tom Brady screamed at teammates and coaches and was viewed as scrappy. John Thompson's Georgetown Hoyas, who played defense with spirit and ferocity, were called thugs. Fight[ing] in hockey is seen as tradition. Fight[ing] in NASCAR is seen as cool and spirited. Fights in NBA games lead to white commentators asking: "Where are the fathers?"

https://www.usatoday.com/story/sports/columnist/mike-freeman/2023/04/03/angel-reeses-taunt-iowas-caitlin-clark-shows-double-standard/11591498002/

What can we learn from this incident to catch less obvious bias in our own writing?  The long answer: my class spent fourteen weeks looking at scholarship on writing and bias to help us start to answer this question, and removing bias takes work and careful attention.  One shorter answer:  many of the rules of good writing, like using active voice and direct sentence structure, help us avoid bias.  Being attentive to our own underlying privilege and bias and asking a trusted colleague to proofread helps too.  There are many thoughtful ideas on addressing bias in our legal publications.  For just a few, consider recent articles, like I Think He’s Nice But He Might Be Mad About Something, 25 U.C. Davis Soc. J. L. Rev. 73, 99 (2021), and older scholarship, like Prof. Lucinda Finley’s Breaking Women’s Silence in Law:  The Dilemma of the Gendered Nature of Legal Reasoning, 64 Notre Dame L. Rev. 886, 886-97, 909 (1989).

I give this example of overt bias in sports discussions not as a suggestion appellate lawyers often show such bias, but as a reminder we all must be as thoughtful as possible in the words we choose.  My students helped me see we should all take the time to edit for bias when we check for clarity and punctuation, and we should mentor new appellate writers to do the same.

When is an appellate decision not precedent?

When is an opinion of an appellate court not precedent? The answer to that question largely depends on the jurisdiction.

In a recent opinion, the North Carolina Supreme Court brought forth another related question: when can the highest appellate court of a jurisdiction decide that an intermediate appellate court's decision is not precedent? The answer to that question also varies from jurisdiction to jurisdiction.

For many years the issue of how to treat "unpublished" opinions--are they precedential or not?--has bounced around in various appellate courts. Before the internet age, unpublished opinions truly were unpublished. After all, the opinions did not appear in the printed reporters and were only available if one went to a clerk's office and asked for a copy. Back then, no one really was citing an unpublished opinion in a brief unless it was for some kind of res judicata purpose--mainly because no one even knew what the opinions said.

At some point, these so-called unpublished opinions began appearing on appellate court websites. And eventually they ended up on Westlaw and Lexis. You can hardly call them unpublished now--not many people reach for a reporter when searching for case law anymore. At most, they may--depending on the jurisdiction--still be considered non-precedential.

After much criticism and at least one opinion declaring unconstitutional the practice of considering opinions denominated unpublished as non-precedential, the Federal Rules of Appellate Procedure were amended in 2006 to provide that courts could not prohibit parties from citing unpublished opinions. See Fed. R. App. P. 32.1(a); Anastasoff v. United States, 223 F.3d 898, 901 (8th Cir.), vacated as moot, 235 F.3d 1054 (2000). Even so, the new rule does not tell the courts that unpublished opinions must be considered as precedent or otherwise how to utilize them. See Elizabeth Earle Beske, Rethinking the Nonprecedential Opinion, 65 UCLA L. Rev. 808, 810 (2018).

States also have various rules concerning unpublished opinions. In North Carolina, for instance, a rule provides that the North Carolina Court of Appeals need not publish an opinion if the panel deciding the case believes that "the appeal involves no new legal principles and that an opinion, if published, would have no value as a precedent[.]" N.C. R. App. P. 30(e). The rule further provides that an unpublished opinion "does not constitute controlling authority" and that citation to unpublished decisions is "disfavored." Id. Nevertheless, the rule does permit citation of an unpublished opinion "[i]f a party believes . . . an unpublished opinion has precedential value to a material issue in the case" and there are no published opinions "that would serve as well[.]" Id.

Additionally, some states provide that their supreme court gets the final word on what opinions of the state's intermediate appellate court are published. In California, the California Supreme Court can "depublish" a decision of the California Court of Appeals. Cal. Rules of Court, Rule 8.1125. In Kentucky, the Kentucky Supreme Court decides which opinions of the Kentucky Court of Appeals are published. Ky. Rev. Stat. § 21A.070.

In a recent decision of the North Carolina Supreme Court, the court decided per curiam that discretionary review of a published North Carolina Court of Appeals decision was "improvidently allowed." Mole' v. City of Durham, No. 394PA21, 2023 N.C. LEXIS 274 (Apr. 6, 2023). The court did not issue a merits opinion. That in and of itself is not unusual. But the court's decision also provided that the court of appeals decision, while "left undisturbed," would stand "without precedential value."

A two-justice concurrence in Mole' stated that "unpublishing" the court of appeals decision was nothing new. Indeed, the court had routinely ruled that decisions of the court of appeals were left undisturbed but without precedential value.

Two dissenting justices in Mole' contended that the high court had in the past left decisions of the court of appeals undisturbed but without precedential value only when at least one of the court's seven justices was recused and the vote of the remaining justices were either equally divided or consisted of a majority of justices not equal to at least four.

The average person, of course, will not find this the least bit interesting. But for those of us appellate types, it does lead to some interesting questions that eventually will have to be answered.

First, is this so-called unpublishing a good idea? Some of the criticism of California's rule allowing for "depublishing" is that it reduces transparency and accountability, permitting the higher court to do away with precedent it does not like without specifying its reasons in writing. See Philip L. Dubois, The Negative Side of Judicial Decisions Making: Depublication as a Tool of Judicial Power and Administration on State Courts of Last Resort, 33 Vill. L. Rev. 469, 476-78 (1988). The concurring justices in Mole', on the other hand, believed the result was better than having a fractured and confusing decision from their court.

Should there even be non-precedential opinions of an appellate court? Some of the original reasons for having unpublished opinions, still noted for example in the North Carolina rule, were the cost of publication and need to provide storage space. See N.C. R. App. P. 30(e). Whether those remain concerns or not, some courts and commentators believe there are constitutional problems related to not treating all appellate court decisions as precedent. See Johanna S. Schiavoni, Who's Afraid of Precedent?: The Debate Over the Precedential Value of Unpublished Opinions, 49 UCLA L. Rev. 1859 (2002).

The bottom line is that the days of unpublished opinions being unavailable for citation are long gone. More and more states eventually will have to come to terms with how to treat these opinions (or whether to even have them) and whether any published case should ever be stripped of its precedential value if not reversed by a higher court.

 

Demeanor in the virtual courtroom

The United States Supreme Court provides counsel with a "Guide for Counsel in Cases to be Argued Before the Supreme Court of the United States." In that guide, counsel can learn how they should dress (conservative business dress in traditional dark colors), where they should sit, how they should move to and from those seats, how they should address the justices ("justice," and never "judge"), and so on. Similarly, in moot court, there is a category on most ballots labeled "courtroom demeanor," where fledgling appellate advocates are judged in how they comport themselves in court.

In the trial world, counsel is often reminded that the jury is always watching. Anecdotes abound. One attorney, who represented a car manufacturer at trial, was seen driving a car manufactured by another company. The jury decided he did not believe in his client and penalized him at trial. Another attorney told the jury in voir dire about his wife and family. The jury noted he was not wearing a wedding ring, and decided he was a liar. Eye rolls, sighs, and disrespect shown in a multitude of ways are blamed for countless lost cases.

But for some reason, when appearing virtually, many lawyers forget that demeanor matters. At one recent matter, I saw opposing counsel sighing, rolling eyes, getting up, getting snacks and water, and laughing with staff, all on camera, and all while opposing counsel, witnesses, and even the judge were speaking.

I get it. Having a camera on you for hours desensitizes you to the technology. If you don't have your camera shown, in particular, you can quickly forget that you are seen. But most counsel I know use "gallery view" in their zoom or other virtual software, as do most judges, so that not just the speaker is shown. And just like in the real courtroom, your behavior on that screen matters.

Credibility is the coin of persuasion. Why waste that credibility by acting poorly on screen? And while the behavior I described above was at a hearing, I have seen similar behavior during oral argument, when the justices are going to go back into chambers (virtually, perhaps, or in person), where you should hope they will discuss the merits of your argument, and not the content of your character writ large on their screens.

So please, even when appearing virtually, remember that demeanor matters. And don't forget to wear your conservative business dress in traditional dark colors.

(image credit: Image created in Bing Image Center, Powered by DALL-E AI image generator, using the prompt "attorneys behaving badly at counsel table, in the style of Thomas Nast.")

Why Paul Clement Is So Good

Attorney Paul Clement is among the best attorneys – and oral advocates – in the United States. And for good reason. His oral advocacy skills are second to none. In fact, listening to even one of Paul Clement’s arguments before the United States Supreme Court provides law students and young lawyers with invaluable tips on what it takes to be an outstanding advocate. Below are a few reasons why Paul Clement is among the country’s best lawyers.

1.    Confidence

As Woody Allen said, 90% of life is just showing up. And when you do show up, it’s critical to have confidence. Paul Clement has the confidence (or ‘swagger’) that reflects self-assuredness and conviction in his arguments. Put simply, he owns the courtroom and commands respect.

2.    Preparation

No attorney can outwork Paul Clement. He is so prepared that he never uses notes and can cite the page and line number of, for example, a deposition. In short, Clement knows every detail of his case, including the law that governs its disposition.

3.    Conversational tone

Many lawyers who argue before the United Supreme Court will understandably be nervous and, perhaps, overly formalistic when making their arguments.

Not Paul Clement. When Clement argues before the Supreme Court, he has a conversation with the Court, much like you would have a conversation with one of your friends. As Professor Richard Lazarus of Harvard Law School states, “[h]e’s very smooth. He’s engaging. Formal but not too much so. Extremely credible and straight with the justices. You don’t have the sense that anyone is trying to sell you anything.”[1]

It almost seems that Clement enjoys engaging with the justices, which reflects his confidence and personability.

4.    Integrity and credibility

Paul Clement has integrity. He never misrepresents the law or the facts. He never acts in an arrogant, disrespectful, or dismissive manner. Rather, he presents the law and facts honestly and thoroughly, and explains with persuasiveness why he should win. Doing so reflects his integrity and enhances his credibility with the Court.

As one Supreme Court advocate stated, “[h]e just doesn’t do things that upset people … [t]here’s no edge to him.”[2]

5.    Persuasiveness

Paul Clement is extremely persuasive. Whether it is, for example, his tone, word choice, ability to distinguish precedent, skill at addressing unfavorable facts and crafting a compelling narrative, or using non-verbal techniques, Paul Clement is among the most talented at telling a persuasive story that maximizes his likelihood of success.

6.    Answering judges’ questions directly and effectively

One of the most important aspects of effective appellate advocacy is answering a judge’s questions directly and persuasively, and adjusting your argument based on the concerns that a judge expresses about the merits of your case. Paul Clement is among the best, if not the best, at doing so.  An excellent example is Clement’s argument in Kennedy v. Bremerton School District (21-418_3dq3.pdf (supremecourt.gov)).

Ultimately, Paul Clement’s oral advocacy skills exemplify what it means to be a great lawyer and advocate. Both law students and young law lawyers would benefit from listening to his oral arguments. 

 

[1] Natalie Singer, ‘Defending Unpopular Positions is What Lawyers Do,’ says Paul Clement, ’92 (January 31, 2012), available at: 'Defending unpopular positions is what lawyers do' says Paul Clement '92 - Harvard Law School | Harvard Law School

[2] Jason Zengerle, The Paul Clement Court (March 16, 2012), available at: Why Paul Clement Is the GOP’s Great Hope for This Supreme Court Season -- New York Magazine - Nymag

When an Ethics Code is Not Enough

Revelations that Justice Clarence Thomas and his wife received more than two decades of luxury trips and gifts from a billionaire friend, who has donated significant amounts to conservative political causes, have raised the volume on calls for a set of ethics rules for Supreme Court justices. The largesse that took place over two decades to the Thomases largely went unreported on financial disclosure forms the justice filed because he understood that the rules exempted personal hospitality. While others have interpreted the rules to require disclosure, new rules that went into effect in March have removed any ambiguity – and Justice Thomas has indicated that he would report the trips and gifts in the future.

The new information, the product of a ProPublica investigative report, piles onto other developments that have raised the temperature on the absence of a binding ethics code for Supreme Court justices. These include allegations that Justice Samuel Alito or his wife may have leaked the result in Burwell v. Hobby Lobby Stores, Inc. in 2014 several weeks before it was announced, the leak of the draft opinion in Dobbs v. Jackson Women’s Health Org. last year, and Justice Thomas’s refusal to recuse himself from cases arising from the 2020 presidential election even as his wife was involved in activities to overturn its result.

Federal law already mandates that “[a]ny justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.”[1] That seemingly comprehensive standard also has a largely amorphous quality to it. Still, it is supplemented by a number of specific examples of circumstances that warrant recusal: instances where the justice harbors a “personal bias or prejudice concerning a party” or “personal knowledge of disputed evidentiary facts,” where the justice previously served as a lawyer or practiced with one concerning the matter or was a material witness in the case; where the justice had participated, even to the point of expressing an opinion, in the matter as a government employee; where the justice, a spouse, or child living in the household has a financial or other interest that could be “substantially affected” by the outcome of the of the proceeding.[2]

New rules promulgated by the Judicial Conference and that went into effect in mid-March require federal judges, including Supreme Court justices, to report all travel by private jet and paid-for stays at commercial properties, such as hotels, resorts or hunting lodges.

Still, some members of Congress have pledged to investigate the facts behind the latest revelations and consider imposing an ethics code on the Supreme Court. Senator Sheldon Whitehouse (D-RI) has noted that, out of all federal officials, only Supreme Court justices lack a binding ethics code.

In the absence of a mandatory code, and perhaps to stave off a conflict between branches of government, Chief Justice Roberts has said that the justices voluntarily consult the law applicable to other federal judges in making ethical determinations. From time to time, justices have suggested that the Court might adopt a code of its own, yet mounting pressure has not resulted in a Supreme Court-specific set of rules.

The current financial disclosure requirements applicable to federal judges are subject to review and potential punishment by the chief judge of the respective circuits yet does imbue the Chief Justice with the same authority over the justices. Chief Justice William H. Rehnquist considered that type of discipline or oversight outside of his authority, noticing that recusal was a question that that “each justice must decide” individually under settled practices.[3] In fact, it is often said that the chief justice is merely the first among equals. The chief justice’s dilemma recalls an incident involving Justice James McReynolds, a Woodrow Wilson appointee remembered for racist, misogynistic, and  anti-Jewish outbursts and actions. To assure Justice McReynolds’s on-time arrival on the bench for Court, Chief Justice Charles Evans Hughes sent a messenger with a polite request. The acerbic response from the associate justice: “Tell the Chief Justice that I do not work for him.”

And that highlights the dilemma that any Supreme Court ethics code faces: how can it be enforced? Transparency through disclosure has its benefits, but lifetime tenure provides a significant buffer to any condemnatory reaction from the public, even when the public gives more than fleeting attention to the transgression. However, flaunting disclosure rules or refusing to recuse under the guise of necessity can be harmful to the fair administration of justice. In Caperton v. A. T. Massey Coal Co.,[4] the Court recognized that there are situations, such as one where the financial interest of a political supporter is at stake, that creates a danger of actual bias is so great that the Constitution itself requires recusal.[5]

In Caperton, the failure to recuse required the West Virginia Supreme Court of Appeals to rehear the dispute without the justice who should have recused. If the same situation arose in the U.S. Supreme Court, it would undoubtedly be messier. It would require a decision of the other justices that found a constitutional violation in a colleague’s decision not to recuse. Unless the consequent due-process violation was utterly crystalline, it seems unlikely that the justices would act. That leaves but one other enforcement mechanism: impeachment. And in today’s political environment, the possibility seems theoretical at best. That leaves a new ethics code as largely hortatory, which would still have some value but allow a rogue justice to resist compliance.

 

[1] 28 U.S.C. § 455(a).

[2] Id. at § 455(b).

[3] William Rehnquist, “Let Individual Justice Make Call on Recusal,” Atlanta J.-Const., Jan. 29, 2004, at 15A.

[4] 556 U.S. 868 (2009).

[5] In the new controversy, Justice Thomas’s benefactor, real estate developer Harlan Crow, denied that he had any cases before the Supreme Court or discussed or attempted to influence any case where the justice might have been involved. Still, reports indicate that Crow provided financial support to at least two groups that filed amicus briefs whose views were, unsurprisingly, consistent with the way Justice Thomas voted.

Personal Jurisdiction – Messy Jurisprudence that May Be in Even Greater Flux

            Rex Lee, the late Reagan-era solicitor general and president of  Brigham Young University, once wrote that the Supreme Court’s “net contribution” to a “cohesive body of law” applying the First Amendment’s  Religion Clauses “has been zero” and added that “some would say that it has been less than zero.”[1] Personal jurisdiction, a subject of intense interest in the Court over the past dozen years, has suffered a similar fate with the Court making a hash of it.

            If there is one case lawyers remember from their civil procedure class, it is Int'l Shoe Co. v. Washington,[2] which established that due process only required that a defendant have “certain minimum contacts” of a continuous and systematic nature with a jurisdiction sufficient “that the maintenance of the suit does not offend ‘traditional notions of fair play and substantial justice.’”[3] Int’l Shoe overturned Pennoyer v. Neff,[4] which adhered to a rigid territorial limitation that was somehow derived from the Due Process Clause. With the demise of Pennoyer, states began to enact long-arm statutes that enabled them to exercise authority over out-of-state defendants who had caused injury and damage within the state. About a decade after Int’l Shoe, the Court speculated that the law would continue to expand “the permissible scope of state jurisdiction over foreign corporations and other nonresidents,” because of the “increasing nationalization of commerce” and the ease of “modern transportation and communication” to make it “less burdensome for a party sued to defend himself in a State where he engages in economic activity.”[5]

            Yet, more recently, the Court has adopted a more restrictive approach to personal jurisdiction than Int’l Shoe suggests, even as it continues to identify that opinion as the “canonical decision” on personal jurisdiction.[6] Its recent cases have reduced Int’l Shoe’s flexibility into a set of mechanical, bright-line rules that it often claims divides personal jurisdiction into only two forms: “specific” and “general.”[7]

Specific jurisdiction exists when the activity or occurrence that is the subject of the lawsuit takes place in forum State.[8] A defective product is sold or shipped there. Thus, in Bristol-Myers, the Court permitted California consumers of the allegedly defective drug to sue the out-of-state manufacturer for their injuries, but held that non-California plaintiffs alleging the same injuries could not sue in that state, but had to initiate separate lawsuits in their home states, even if the allegations were identical. Those who also sued the distribution company in California had to split their lawsuits, because the distributor was California-based and subject to general jurisdiction in California. As Justice Sotomayor pointed out in dissent, the decision was a substantial “contraction of specific jurisdiction by holding that a corporation that engages in a nationwide course of conduct cannot be held accountable in a state court by a group of injured people unless all of those people were injured in the forum State.”[9] Moreover, she points out that the consequences of the decision is to prevent plaintiffs from banding together from different states to bring a single action based on a defendant's nationwide course of conduct, unless they sue in the defendant’s home state, where the action would likely have to be subdivided into claims for each plaintiff’s home state.[10] Yet, where the defendants are from different states so that no one state will be able to entertain the mass action, there will have to be a multiplicity of lawsuits,[11] including potentially separate lawsuits against each defendant, creating a potential “empty-chair” defense.  

General jurisdiction provides all-purpose authority over a defendant when it is “essentially at home” in the forum because it is either incorporated or has its headquarters there.[12] Under the general jurisdiction rubric, illogically, a corporation can have a broad corporate campus and substantial operations in a state, but not be subject to general jurisdiction there. Yet, incorporation in, say, Delaware, where its only presence is a post office box, is sufficient to subject the corporation to suit in that state because it is deemed essentially at home even if not actually present there.

Yet, specific and general are not the only types of personal jurisdiction that exist, even though the Court has said as much. For example, the Court has also recognized “tag” jurisdiction, which subjects an individual from outside the state to jurisdiction when served in the state.[13] Although being subject to personal jurisdiction when caught passing through a state could pose a hardship to an individual, no similar concept permits jurisdiction over a corporation that maintains a continuous and substantial presence in the state. A second form of personal jurisdiction is consent jurisdiction, where the defendant either agrees to jurisdiction or does not fight it.[14] The Supreme Court has previously approved state statutes that require registration and consent to personal jurisdiction as the price of doing business in a state.[15] Yet, on November 8 of last year, the Court heard argument on whether the Pennsylvania consent statute it upheld more than a century ago violated due process in Mallory v. Norfolk Southern Ry. Co., No. 21-1168, where a decision is expected by June.

And there are congressional grants of personal jurisdiction as well.[16] Yet, a 12-5 en banc decision by the Fifth Circuit last year, for which certiorari was denied this past week, required the use of Rule 4(k)(2), promulgated as a federal long-arm statute at the suggestion of the U.S. Supreme Court to reach foreign defendants, still had to satisfy the general jurisdiction test, so that it could never be used for foreign or domestic defendants. [17] Foreign defendants cannot be “at home” in the U.S. And, if general jurisdiction applies, Rule 4(k)(2) is unnecessary The decision effectively renders the rule unconstitutional as a matter of due process.

Is there a way out of the current messy jurisprudence that has developed recently? Justice Gorsuch, joined by Justice Thomas, has suggested that the current personal-injury regime is looking “quaint” and “a little battered” “when corporations with global reach often have massive operations spread across multiple States,” rather than one or two homes.[18] He added, “[m]aybe, too, International Shoe just doesn’t work quite as well as it once did.”[19] So, while the past dozen years have seen a revolution in personal jurisdiction as the Court embarked on a more restrict approach, leavened a bit by its 2021 decision in Ford, another potentially abrupt change may be in the making. Indeed, originalist scholars contend that due process puts no limitation on federal personal jurisdiction.[20] If the Court, which has taken an originalist approach to a number of constitutional issues, goes down that path, they could untangle the ball they created for personal jurisdiction. Could they also replace it with nothing?

 

[1] Rex. E. Lee, The Religion Clauses: Problems and Prospects, 1986 B.Y.U. L. Rev. 337, 338 (1986).

[2] 326 U.S. 310 (1945).

[3] Id. at 316.

[4] 95 U.S. 714 (1877).

[5] McGee v. Int’l Life Ins. Co., 355 U.S. 220, 222-23 (1957).

[6] Ford Motor Co. v. Montana Eighth Jud. Dist. Ct., 141 S. Ct. 1017, 1024 (2021).

[7] Bristol-Myers Squibb Co. v. Superior Ct. of California, San Francisco Cnty., 582 U.S. 255, 262 (2017).

[8] Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915, 919 (2011).

[9] Bristol-Myers., 582 U.S. at 269 (Sotomayor, J., dissenting).

[10] Id. at 277 (Sotomayor, J., dissenting).

[11] Id. at 278 (Sotomayor, J., dissenting).

[12] Goodyear, 564 U.S. at 919.

[13] Burnham v. Sup. Ct., 495 U.S. 604, 619 (1990) (plurality op.).

[14] Ins. Corp. of Ireland v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 703 (1982).

[15] See, e.g., Pennsylvania Fire Ins. Co. v. Gold Issue Mining & Milling Co., 243 U.S. 93 (1917); Ex parte Schollenberger, 96 U.S. 369, 376-77 (1877).

[16] See, e.g., D'Arcy v. Ketchum, 52 U.S. (11 How.) 165, 176 (1850).

[17] Douglass v. Nippon Yusen Kabushiki Kaisha, 46 F.4th 226 (5th Cir. 2022), cert. denied, No. 22-562, 2023 WL 2563319 (U.S. Mar. 20, 2023). The author was counsel for Petitioners in the Fifth Circuit and in the Supreme Court.

[18] Ford, 141 S. Ct. 1017, 1034 (2021) (Gorsuch, J., concurring).

[19] Id. at 1038 (Gorsuch, J., concurring).

[20] See, e.g., Max Crema & Lawrence B. Solum, The Original Meaning of “Due Process of Law” in the Fifth Amendment, 108 Va. L. Rev. 447, 467 (2022); Lawrence B. Solum & Max Crema, Originalism and Personal Jurisdiction: Several Questions and a Few Answers, 73 Ala. L. Rev. 483, 524 (2022); and Stephen E. Sachs, The Unlimited Jurisdiction of the Federal Courts, 106 Va. L. Rev. 1703 (2020).

Revisiting George Orwell and Good Writing

This semester, I am lucky enough to be teaching a seminar I designed on bias in legal analysis and writing.  The class has been a delight, and I am impressed every week by my thoughtful and dedicated students. 

In one of our sessions, I proposed using George Orwell’s writing rules, along with his broader concerns with “Doublespeak” and “Big Brother,” to add clarity and remove bias from writing.  Several of my students have included these ideas in the class papers they are drafting, and I hope these tips help you draft as well.

In his pre-1984 essay, Politics and the English Language, Orwell proposed six rules on using English, and he repeated these in later works as well.  Many commentators have discussed using the rules for clarity, but I believe we can also combat bias with these ideas.

Here are Orwell’s rules, as summarized by Judith Fischer in her article Why George Orwell’s Ideas About Language Still Matter for Lawyers, 68 Mont. L. Rev. 129, 135 (2007): 

(i) Never use a metaphor, simile or other figure of speech which you are used to seeing in print.

(ii) Never use a long word where a short one will do.

(iii) If it is possible to cut a word out, always cut it out.

(iv) Never use the passive where you can use the active.

(v) Never use a foreign phrase, a scientific word or a jargon word if you can think of an everyday English equivalent.

(vi) Break any of these rules sooner than say anything outright barbarous.

See also Austin Wayne Schiess, Writing a Brief the George Orwell Way, 14 App. Advoc. 6, 6-6 (2001). 

How can we use these rules in appellate writing?  

1. Avoid Cliches. Fischer notes: “Think out of the box” and “avoid cliches like the plague.” 68 Mont. L. Rev. at 137.  But seriously, some cliches are racist and many are unclear.  Remove them from your writing as much as possible.

2. Prefer Shorter Words. I am old enough to remember when courts imposed motion and brief page limits, long before word limits. I recommend reading your own work as if you have page limits and word limits.  This can help you remove legalese, redundant wording, and unneeded long terms.  In his blog, Demian Farnworth suggests practicing by using only monosyllabic words.  The monosyllabic approach can add many words and decrease clearness, but it is a fun way to practice writing with shorter terms.  See https://copyblogger.com/short-sentences/ (Oct. 19, 2015).

3. Be Concise & 5. Avoid Jargon. (I’ve already blogged about Rule 4, Use Active Voice, often.) Use concision as an enemy of bias and obfuscation.  As Justice Ginsburg reminded us, our readers “simply don’t have time to ferret out one bright idea buried in too long a sentence.”  Remarks on Appellate Advocacy, 50 S.C. L. Rev. at 567 (1999).  One way to practice being concise and removing jargon is by reviewing any manual for a small appliance in your home.  Review these manuals for lengthy clauses and odd technical jargon.  My family’s favorite is our toaster manual, which often uses five words where one will do, and adds confusing technical details like “LED light indicator surround ring” for what is in fact the “toasting” light.  Finding these lengthy and confusing terms around the house will help you edit for concision in your briefing.

6. Use Common Sense--Break Any of these Rules If they Reduce Clarity.  Recently, I learned there is reasonable debate about exactly what Winston Churchill said regarding ending a sentence in a preposition. Nonetheless, we know he said something close to:  “This is the sort of English up with which I will not put.”  See https://brians.wsu.edu/2016/11/14/churchill-on-prepositions/.  We can follow our own common sense, like Churchill and Orwell.  As another example, sometimes one longer clause reads better than a series of short, choppy sentences.  Let’s follow rules on clarity above all else.

Are these rules enough?  Orwell did not think so, as evidenced by his concern over “Doublespeak” and obfuscation.  To follow Orwell, therefore, we should make sure our words say what we mean.  While this sounds simple, any experienced appellate writer knows editing takes time and effort.  I hope Orwell’s rules help in this editing task.

More than "Frenemies."

I recently had the honor of running into an old moot court student as opposing appellate counsel. It was in a case where there had been some heated language exchanged by trial counsel over an issue that was of serious concern to our clients. We shook hands, laughed at the irony, and then he said we would just have to be “frenemies.”

I’ve thought a fair bit about that exchange. Not because I don’t know what a frenemy is – I am not yet that old, and I do have access to the urban dictionary in case I need to verify - but because I don’t think that term fits the full relationship of opposing appellate counsel. We should be more than that.

Under the ABA model rules, there are only “shall nots” when it comes to the relationship between counsel. Thus, Rule 3.4, Fairness to Opposing Party & Counsel, provides that an attorney “shall not” unlawfully conceal or obstruct access to evidence, falsify evidence, make frivolous discovery requests or objections, and so on.

The Texas Standards for Appellate Conduct, under which I often operate, are much more aspirational. They provide that counsel will treat opposing counsel with respect, be punctual in communications with counsel, not impute bad motives or make personal attacks against counsel, and will not ascribe to opposing counsel a position they have not actually taken. These standards begin with the idea that “Lawyers bear a responsibility to conduct themselves with dignity towards and respect for each other, for the sake of maintaining the effectiveness and credibility of the system they serve.”

I wish all attorneys subscribed to those standards, but they are, perhaps, particularly well-suited to appellate counsel. We, more than any other lawyer, should be able to focus on the issues. We, more than any other lawyer, should be able to distinguish between attacking an argument and attacking opposing counsel. And we, more than other lawyer, should take that role seriously.

How does that pan out in practice? When we step into a case, we should be able to recognize when these ideals are not being met and we should do our best to fix that. Not only to keep the peace, but because that is how we can best serve our clients, who eventually will have those legal issues determined by an appellate court that has no interest in personal feelings.

So, when we step into a trial court to help with issues we know are going to be on appeal, we should step in with the idea that we aren’t just frenemies with opposing appellate counsel. We are working together to try to get the issues resolved as cleanly as possible, and if necessary, preserved and presented in a way that will help the court, and our clients, focus on the issues that have to be resolved. While we are opposed on the issues, we are allies in a larger sense.

That may sound pollyannish. But the courts of appeal in Texas that have all adopted these standards don’t think so. And I’m willing to bet that most appellate courts in the rest of the country would agree that when we act professionally, and even more, cordially, while still vigorously contesting each other’s arguments, we best serve our clients needs and the needs of the system in which we all work.

(photo credit: Brooklyn Museum - "Vous êtes un jeune homme bien né..." - Honoré Daumier).

 

ChatGPT and Legal Writing

ChatGPT is an artificial intelligence chatbot that can, among other things, compose music, play games, and generate student essays and examination answers. Indeed, ChatGPT has already been studied to assess its efficacy on law school examinations. One study, for example, revealed that ChatGPT passed four law school exams at the University of Minnesota -- earning an average grade of C+ -- and an exam at the University of Pennsylvania’s Wharton School of Business.[1]

The leader of the study examining ChatGPT in the law school performance context stated that “[a]lone, ChatGPT would be a pretty mediocre law student," and emphasized that “the bigger potential for the profession here is that a lawyer could use ChatGPT to produce a rough first draft and just make their practice that much more effective.”[2]

Certainly, in law school and in the legal profession, ChatGPT can have benefits. For example, ChatGPT can enhance efficiency by, for example, producing rough drafts of basic legal documents such as complaints, memorandums, interrogatories, and document requests.  Additionally, ChatGPT can assist individuals who cannot afford legal services in producing competent legal documents.

What ChatGPT cannot do, however, is teach law students how to think, how to write, and how to persuade. That, in a nutshell, is the point – and the problem. Below are two concerns regarding ChatGPT’s effects on law school and the legal profession.

1.    Law students need to learn how to think critically.

Learning how to think critically is among the most important skills needed to be a competent lawyer. And in recent years, many students begin their first year of law school lacking this skill. Thus, during the first year of law school, particularly in doctrinal and legal writing courses, students learn, among other things, how to read cases, understand complex legal concepts, synthesize the law, and apply the law to different fact patterns.

ChatGPT is problematic because, in some contexts, it does the thinking for the students. In so doing, it enables students (to some extent) to avoid the admittedly arduous process of understanding and interpreting complex legal doctrines, and presenting such doctrines (e.g., in a memorandum or a brief) in an understandable, logical, and persuasive manner. Indeed, David Kemp, an adjunct professor at Rutgers Law School, stated that “[i]f you’re asking it to organize several concepts, or are struggling to explain something in a way that’s really understandable, it can help.”[3]

That, again, is the point – and the problem.

Students should not be relying on artificial intelligence to organize complex legal concepts or explain them in a way that readers can understand. They should, through hard work and perseverance, develop critical thinking skills so that they can do it themselves. Otherwise, we are training students to rely not on their minds or their legal training, but on a technology that, at best, produces mediocre results.

Perhaps some would describe this as an “old school” approach to legal education. And they would be right. The quality of law students at many law schools has steadily declined in recent years, and ChatGPT threatens to worsen this problem by doing for law students what they should, after three years of legal training, be able to do for themselves.

2.    Law students need to learn how to write competently and persuasively.

It is no secret that judges and lawyers often criticize law graduates for their poor writing skills.[4] The reasons for this include, but are not limited to, insufficient preparation during students' undergraduate coursework, and insufficient dedication to required legal writing courses in law school.

This fact, however, only underscores the need to train students to think – and write – like lawyers. Students need to learn, for example, how to research the law, how to craft a compelling narrative, how to synthesize legal authority, how to reconcile unfavorable facts and law, and how to draft an organized and well-structured legal argument.

To do so, students need to embrace the writing process, which involves writing, rewriting, and editing. It requires critical thinking. Hard work. Perseverance. And the ability to write effectively and persuasively. ChatGPT is not going to teach students how to do this because, at least to some extent, it will do it for them. That makes the problem worse, not better.

To be sure, ChatGPT may produce the equivalent of a mediocre first draft, which students will then edit and re-edit to improve its quality. But good legal writing is not simply about editing. To be an excellent editor, you must first be an excellent writer and re-writer. That means embracing the writing process and acquiring the skills needed to draft, for example, a persuasive motion or appellate brief. As one professor explains.

Legal writing faculty interviewed by the ABA Journal agree that ChatGPT writing can model good sentence structure and paragraph structure. However, some fear that it could detract from students learning good writing skills. ‘If students do not know how to produce their own well-written analysis, they will not pass the bar exam,’ says April Dawson, a professor and associate dean of technology and innovation at the North Carolina Central University School of Law.’[5]

Professor Dawson may be correct that ChatGPT will reduce bar passage rates. What it will almost certainly do is ensure that students never become excellent persuasive writers. And it will also cause some students to rely on ChatGPT to do the hard work that they should be doing, and that is necessary, to produce quality legal work.  This is the risk that reliance on ChatGPT – particularly for complex legal motions and briefs – engenders.

Ultimately, ChatGPT can certainly have benefits. Among those is increasing efficiency and productivity. But law students still need to have the analytical thinking and writing skills to be able to interpret complex legal texts, draft persuasive legal arguments, and present compelling arguments before a court.  As such, ChatGPT’s benefits must be balanced against the need to train students to think, write, and practice like lawyers.

Perhaps this is an “old school” approach, but that approach has produced extraordinary attorneys who have transformed the law and the legal profession through their advocacy.

Simply put, you cannot replace an intelligent, thinking human being.

 

[1] See Samantha Murphy Kelly, “Chat GPT Passes Exams from Law and Business Schools” (January 26, 2023), available at: ChatGPT passes exams from law and business schools | CNN Business

[2] Reuters, “Chat GPT Passes Law School Exams Despite ‘Mediocre’ Performance” (January 25, 2023) available at: ChatGPT passes law school exams despite 'mediocre' performance | Reuters.

[3] Kelly, supra note 1.

[4] See Ann Nowak, The Struggle with Basic Writing Skills (March 1, 2021), available at: The Struggle with Basic Writing Skills | Published in Legal Writing (legalwritingjournal.org)

[5] Kelly, supra note 1.

Licensing Paid Blogs?

When your appellate practice focuses heavily on constitutional issues, as mine does, it is hard not to look at news stories and imagine the upcoming litigation. I had that reaction when I saw what is only a bill in Florida, but absurdly seeks to license blogs that generate income and mention government officials.

S.B. 1316, introduced by State Sen. Jason Brodeur, seeks to treat bloggers the same way as lobbyists, imposing registration and reporting requirements, although it exempts blogs that appear on a newspaper’s or similar publication’s website. Registration and reporting is required “[i]f a blogger posts to a blog about an elected state officer and receives, or will receive, compensation for that post.” The report must disclose the source and amount of compensation, rounded to the nearest $10.

Presumably, the legislation is being justified on the idea that disclosure can be required “so that the people will be able to evaluate the arguments to which they are being subjected.”[1] Yet, it immediately recalls the early prior restraints that followed registrations of printing presses in the 1600s and licensing of newspapers.

The legislation raises a host of constitutional issues. First, it says nothing about its potential extraterritorial import. Does the sponsor anticipate that a blogger in another state would have to comply with its registration and reporting requirement even though separate and apart from the First Amendment issues such a requirement would violate the Dormant Commerce Clause and due process for its attempt to reach beyond the State of Florida? And, how could it be enforced against an out-of-state blogger? And, if it does not apply, what justification exists for treating an out-of-state blogger differently from one who resides in-state, even though both blogs would be equally available through the Internet.

Still, by exempting newspapers and other publications, the legislation fails to treat all paid publications evenhandedly. The Tenth Circuit found the distinction likely fatal when faced with the same issue at the preliminary-injunction stage. There, Colorado attempted to claim that “a valid distinction exists between corporations that are part of the media industry and other corporations that are not involved in the regular business of imparting news to the public ” in support of a disclosure law that treated mention of a political candidate to constitute electioneering.[2] In fact, the Supreme Court in its controversial Citizens United decision state that “[t]here is no precedent supporting laws that attempt to distinguish between corporations which are deemed to be exempt as media corporations and those which are not. We have consistently rejected the proposition that the institutional press has any constitutional privilege beyond that of other speakers.”[3]

Another distinction in the legislation likely fails to pass constitutional muster: the distinction between paid bloggers and gratis ones. More than three decades ago, the Supreme Court shut down differential treatment of those engaged in expression on public matters based on compensation.[4]

It is difficult to think of a justification for registration and reporting at the mere paid blog mention of a state official. Doing so only facilitates further regulation, scrutiny, or retaliation. If the disclosure has a public purpose, why is that purpose not equally compelling on issues of public concern or non-office holding political candidates? Instead, by tying it to officeholders, the legislation suggests an improper purpose. After all, the First Amendment represents a  “profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.”[5] Thin-skinned politicians need not apply.

S.B. 1316 may never become law. Even if enacted, it seems unlikely to ever take effect.

 

[1] First Nat. Bank of Bos. v. Bellotti, 435 U.S. 765, 792 n.32 (1978).

[2] Citizens United v. Gessler, 773 F.3d 200, 212 (10th Cir. 2014).

[3] Citizens United v. Fed. Election Comm’n, 558 U.S. 310, 352 (2010).

[4] See Meyer v. Grant, 486 U.S. 414, 424 (1988).

[5] New York Times Co. v. Sullivan, 376 U.S. 254, 270 (1964).

The Rhetoric of ChatGPT: What ChatGPT Had to Say About Its Connection to Rhetoric and What We Can Learn from That Response

Thursday’s Rhaw Bar: A Little Bite of All Things Rhetoric and Law—exploring ideas, theories, strategies, techniques, and critiques at the intersection of rhetoric and legal communication.

The Rhetoric of ChatGPT:  What ChatGPT Had to Say About Its Connection to Rhetoric and What We Can Learn from That Response

I’ve been thinking about what ChatGPT might mean for the practice of appellate lawyers and their ability to be persuasive.  So, I typed this as a prompt for ChatGPT:

 I am writing a blog post for an audience of appellate lawyers. What should I tell them about the relationship between rhetoric and ChatGPT?

Here’s what ChatGPT replied:

Rhetoric is the art of using language effectively to persuade or influence an audience. In many ways, ChatGPT can be seen as an extension of this art, as it uses natural language processing to generate persuasive and compelling responses to a wide range of prompts.

One of the key advantages of using ChatGPT for rhetorical purposes is its ability to quickly generate high-quality content in a wide range of styles and formats. This can be particularly useful for appellate lawyers, who need to produce persuasive legal arguments and compelling briefs that are tailored to the specific needs of their clients.

At the same time, it's important to remember that ChatGPT is a machine learning model, and as such, it has limitations. While it can generate persuasive responses based on patterns it has learned from large volumes of text data, it cannot understand the nuances of human emotion, context, or intent in the same way that a human being can.

This means that appellate lawyers who use ChatGPT for rhetorical purposes must be careful to ensure that the responses generated by the model are appropriate and effective for their intended audience. They should also be aware that the use of ChatGPT in legal writing is still a relatively new and evolving area, and that best practices are still being developed.

Overall, ChatGPT can be a valuable tool for appellate lawyers looking to enhance their rhetorical skills and produce high-quality legal content. By using the model in conjunction with their own expertise and insights, lawyers can create persuasive and compelling arguments that effectively convey their clients' positions.

Analyzing ChatGPT’s Response

Not a bad response, generally speaking. But what has ChatGPT revealed about itself?  Here’s a brief analysis of some things we can learn about ChatGPT from this response.

            ChatGPT Might Assume Too Much About the Reader

ChatGPT starts with a correct definition of rhetoric and then asserts that ChatGPT is an extension of rhetoric because it uses natural language processing (NLP). But ChatGPT assumes the reader knows what NLP is.  (And later it assumes that the reader knows what a “language processing model” is.)   If you don’t know (I didn’t) what NLP is, here’s a quick definition sourced from IBM:

NLP combines computational linguistics—rule-based modeling of human language—with statistical, machine learning, and deep learning models. Together, these technologies enable computers to process human language in the form of text or voice data and to ‘understand’ its full meaning, complete with the speaker or writer’s intent and sentiment.

So, one thing we learn about ChatGPT from this passage is that it can wrongly assume a reader’s knowledge, something lawyers know better than to do. While we might think that better engineering of ChatGPT’s prompt would solve the problem, recall that I told ChatGPT the audience for whom I was writing. That specific detail in the prompt did not seem to make a difference in ChatGPT understanding that many members of the intended audience would have limited knowledge of the computer science terms associated with ChatGPT. 

            ChatGPT Thinks of Itself as “Art”

I’m intrigued that ChatGPT chose the term “art” when describing itself as an “extension” of rhetoric.  This characterization seems counterintuitive because ChatGPT is the product of computer, data, and language science.  Yet, ChatGPT suggests that because NLP is a human-like effort to understand the meaning of language (as the definition above reflects), ChatGPT sees itself as an “artistic” endeavor, at least regarding persuasion.  And, at least in some cases, ChatGPT has proven that to be true--there’s something that feels like artistry in ChatGPT’s responses to prompts.  (See, e.g., this poem by ChatGPT and the debate around whether ChatGPT’s poetry is “art.”)

If ChatGPT sees itself as art rather than science, then we should take it at its word and think of it as we do art and artists.  That is, as do artists, ChatGPT brings a particular perspective to its responses.  As such, ChatGPT’s response is a form of art—and only one of many responses available.  Just like painters and sculptors can interpret their objects of study differently, ChatGPT’s interpretation of data in a particular response is one of many.  Thinking of this another way, we might view ChatGPT’s responses to prompts as opinions, subject to issues of perspective, interpretation, accuracy, bias, and incompleteness.

            ChatGPT Speaks Like It Wants to Sell You Something, but Should You Buy It?

Although I asked ChatGPT to describe a relationship between two things, ChatGPT’s response feels more like a sales pitch. It makes grand, authoritative-sounding claims about ChatGPT’s value to the user.  It is confident that it can help lawyers persuade and compel by providing “high-quality content in a wide range of styles and formats.”  ChatGPT reminds us that it has “key advantages,” that it can enhance the lawyer’s persuasive skill, and that it can generate high-quality content that can be tailored to client’s needs.

Why might ChatGPT sound so confident?  Maybe ChatGPT’s confidence comes from the way it generates responses.  ChatGPT generates responses by examining a vast amount of data, looking for the patterns and relationships between words in the sample, and then predicting what response is appropriate for the context.  Perhaps because I told it I was writing a blog post, the texts that ChatGPT accessed for context were blogs, and because many blogs are written in a tone designed to sell something, this caused ChatGPT to adopt the same tone by predicting that I was expecting that tone in the response.

Regardless of the reason, this extra-confident tone of the response should give us a reason to scrutinize ChatGPT’s claims more carefully.  If we read closely, we see that the response doesn’t really explains what “high-quality content” means.  On one hand, commentators point out that ChatGPT cannot tell the difference between true and false information and thus can deliver inaccurate responses.  This aspect of ChatGPT, then, is not “high-quality.”  Moreover, ChatGPT’s ability to sound very confident in its responses can lure readers into believing the responses’ truth.  For lawyers, this inaccurate information expressed in a confident tone is a malpractice minefield.  For example, one would not want to rely at face value on what ChatGPT says about some point of law.  (It’s probably useful to remind those in your office who could use ChatGPT of this important point.)

On the other hand, ChatGPT arguably can offer something of high(er) quality in that it can produce a “wide variety of styles and formats.”  You can prompt ChatGPT to write in a particular style—even your own!  You can request it write content in the style and organization of a brief or a motion, and it will comply.  You can ask it to assist in correcting your grammar.  It’s pretty good at offering examples of different genres, styles, and tones of writing.  This is because it is good at providing an approximation of whatever you’ve asked it to create based upon the patterns it recognizes in the dataset.

But here’s the catch, I think, with using ChatGPT to generate “style and format” content: the user must already understand the style and structure he or she seeks in order to evaluate the quality of ChatGPT’s response.  In other words, if you don’t know already what a case caption for, say, the United States Court of Appeals for the Ninth Circuit looks like, how can you be sure ChatGPT will give you the right format for that caption?  Likewise, if you aren’t sure what a good introduction to an appellate brief looks like, how can you know if ChatGPT has given you a good one in its response?   ChatGPT would be good at giving you examples, but it can’t really tell you which one is “best” in your circumstances.

            ChatGPT Knows Its Rhetorical Limits

Even though ChatGPT is confident in its capabilities, it admits that it has limits.  Specifically, ChatGPT responds that it cannot understand emotion, context, or intent like a human does when crafting responses to persuade. This is a pretty significant admission.  To be limited in these ways is relevant to ChatGPT’s persuasive abilities; understanding emotion, content, and intent are elements of human communication that are central to rhetorical effectiveness.  So, even though ChatGPT sees itself as an “extension” of rhetoric, it is a fairly limited extension.

 ChatGPT reminds us that one of its limitations is that it generates persuasion from finding patterns in large amounts of existing data.  So, that raises the problem of “garbage in,” “garbage out.”  In other words, the quality of ChatGPT’s responses is only as good as the data it can access.  That is, if the dataset has both helpful and unhelpful patterns that inform ChatGPT’s responses, how does one know if what ChatGPT generated is something worth relying on?  The only way to know is to already have the knowledge essential to evaluating the response.

            In the End, ChatGPT is Deferential about Its Writing

ChatGPT says it is the appellate lawyer’s job to ensure what ChatGPT writes is effective for the intended audience.  It talks about itself as a “model” that can help lawyers be persuasive and reminds lawyers that the model should be used in conjunction with lawyers’ expertise and insights.  In other words, ChatGPT does not take the position that it replaces humans in the writing process—particularly where audience analysis and professional expertise is involved.  Here, ChatGPT makes a significant rhetorical move—it reminds you that the technology is only as good as its user and, even after all of its confidence above, disclaims responsibility for the usefulness of its output. Fascinating.

Some Takeaways

ChatGPT notes that it is new enough that “best practices” for using ChatGPT in legal writing are still being developed. I take this as a challenge!  Based upon ChatGPT’s rhetoric (i.e., the way it uses language to talk about itself), I’ll propose some best practices for you:

• Do not be misled by ChatGPT’s confidence. ChatGPT sounds confident and authoritative in its responses, but users should be skeptical about the legitimacy of that confidence.
• Rely on your own expertise, not ChatGPT’s. Appellate lawyers (and staff working for them) need to have an existing knowledge base to evaluate ChatGPT’s responses.  In particular, evaluating the appropriateness of the response for an audience is essential.  As with all aspects of outsourcing judgment in legal practice, outsourcing judgment to ChatGPT is dangerous.  At the very least, for appellate lawyers to use ChatGPT effectively, they will need to become familiar with prompt engineering techniques that make ChatGPT more expert in the field and thus arguably improve ChatGPT’s responses.
• Treat ChatGPT as opinionated, not authoritative. Although ChatGPT is the product of science, ChatGPT should be seen as an artistic process, generating content that is more like opinion than unassailable fact.  Treat ChatGPT as conversation partner, muse, or collaborator than can help you “play” with ideas and text.  (Check out Ian Bogost’s article insightfully concluding that “ChatGPT  . . . doesn’t understand or even compose text. It offers a way to probe text, to play with text, to mold and shape an infinity of prose across a huge variety of domains . . . into structures in which further questions can be asked and, on occasion, answered.)
• Remember that ChatGPT relies on pattern recognition, a limited mode of persuasion. ChatGPT does not have all the rhetorical capabilities of humans but can recognize patterns in data that might have persuasive impact.  Even if that pattern recognition is persuasive, users must remember to look at persuasion from all aspects of the human experience, not just in the ways that ChatGPT looks at it.
• Remember that ChatGPT does not guarantee competent writing, you do. At bottom, ChatGPT does not claim it is superior to you in writing ability but rather it remains deferential to your experience and expertise. It disclaims its ability to effectively write for your “local” audience.  No one—not even a computer—knows your clients, your arguments, and your audience better than you do.  Rely on your own judgment about competent writing.

What are your thoughts?

Kirsten Davis teaches at Stetson University College of Law and in the Tampa Bay region of Florida. She is the Co-Director of the Institute for the Advancement of Legal Communication. The Institute’s mission is to study legal communication issues and provide programming and training that improves legal communication skills. Among other things she’s up to right now, she’s currently working on a writing handbook written specifically for trial lawyers. The views she expresses here are solely her own and not intended to be legal advice. You can reach Dr. Davis at [email protected]

Advice for Law Students on Oral Argument

After judging a regional round of the National Appellate Advocacy Competition this weekend in Los Angeles, it was apparent immediately that the law students participating in this competition demonstrated intelligence, talent, and persuasiveness. Indeed, the participants were quite impressive and showed that the future of the legal profession is bright. Having said that, below are a few tips for law students to help improve their already-impressive appellate advocacy skills.

1.    Slow down. Once again, slow down. Your goal is to advocate for your client and maximize the persuasive value of your argument. To do so, you need to be authentic and conversational. In so doing, you should change your pace, tone, and inflection to emphasize (and de-emphasize) specific points. When you speak too quickly, you lose credibility and negatively impact the persuasiveness of your argument. And you lose points. So be sure to focus on being yourself, which means being authentic, conversational, and comfortable at the podium.

2.    Don’t be scripted. You should never draft every word of your oral argument. Instead, you should draft an outline of the substantive points that you want to make, and trust yourself to articulate those points effectively and persuasively. When you memorize a script, you appear rehearsed and thus inauthentic.

3.    Watch your conduct at the counsel table. Being professional and respectful is vital to ensuring your credibility with a court. Thus, be sure never to show emotion at the counsel table, either toward your teammates or in response to your adversary’s arguments. The failure to do so is unprofessional and immature – and will cost you points. When a moot court or mock trial team, for example, displays unprofessional conduct at the counsel table, they signal to the judges that they are not a good team.

4.    Be flexible and concede weaknesses in your argument. Every argument has weaknesses, whether on the facts or the law. Denying these weaknesses, particularly in the face of difficult questions from the judges, will affect your credibility and persuasiveness. Thus, be sure to concede weaknesses in your argument, such as by acknowledging unfavorable facts or law, and explain why such weaknesses do not affect the outcome you seek.

5.    Answer the judges’ questions directly and persuasively. The key to an outstanding oral argument is how you respond to the judges’ questions. Those questions tell you precisely what the judges are concerned about or focused on when deciding the merits of your case. As such, you should answer the judges’ questions directly and persuasively, and not offer evasive or non-responsive answers, which will compromise your credibility. In other words, do not view the judges’ questions as an attack on your argument. View them as an opportunity to make your case.

6.    Be willing to adapt and modify your argument (or desired remedy) based on the judges’ questions. Far too often, oralists propose a categorical rule – or seek a particular remedy – and relentlessly advocate for that rule or remedy regardless of the judges’ concerns. That is a mistake. You must demonstrate flexibility – within reason – to ensure that you obtain the best result, even if it is not the perfect result. For example, if you were arguing that Roe v. Wade should be overturned, and a majority of the justices on the United States Supreme Court suggested through their questions that they were unwilling to do so, yet were willing to impose stricter limits on the time within which a woman could seek an abortion, you need to pivot and explain why, in the absence of overturning Roe, such a limit would be warranted. In other words, you must exercise good judgment in the moment and, based on your perception of how the judges might rule, propose alternative remedies that will persuade the judges even if it means not getting everything you want. Remember that the best is often the enemy of the good.

7.    Be prepared. The best advocates are the most prepared. They know the page and line numbers of deposition testimony.   They know precedent by heart and can recite the holdings and dicta in relevant cases without notes or hesitation. Simply put, the best advocates are the most prepared advocates.

8.    Non-verbal conduct is critical to persuasion. It’s not just what you say, but how you say it. When you are making an oral argument, know that your hand gestures, your tone, your cadence, your volume, and your movement all matter tremendously. If, for example, you speak in a monotone voice, it doesn’t matter how persuasive your argument is or how much the law supports your argument. You will lose points and minimize the persuasive value of your argument if your non-verbal conduct (how you say it) is not as powerful as your verbal conduct (what you say).

When Your Opponent’s Brief is a Headscratcher

 “I’m glad you have to write the reply brief, not me.” That’s the whole email I received from a prominent appellate advocate who had written an amicus brief supporting my position after he had read opposing counsel’s brief. The difficulty he alluded to was not because the responsive brief was so stellar that I would be hard pressed to formulate winning counterarguments. Instead, it was because the brief was such a head-scratcher. We weren’t just ships passing in the night; we were sailing in different oceans.

When that’s the case, writing a reply brief can be extraordinarily difficult. It is far easier to argue with an opponent who engages you than one that seems to have dropped in from another case altogether. A well-researched and disciplined brief provides a better foil than one that lacks a theme or anything solid to refute.

More typically in a reply brief, one can argue that one set of precedents is more relevant than another, that key cases were misconstrued by your opponent and the court below, or that the issue presented is one of first impression, requiring a new rule. Yet, when the opposing brief states seemingly valid propositions that relate to the case but not to the issue presented, it is tempting to say that the brief fails in every way to address the appellants’ arguments and that those arguments remain valid and should be adopted by the Court. And, there is certainly good reason to make sure the court understands why the arguments made by your opponent lack relevancy.

Yet, underlying the propositions of law proffered by my opponent were assumptions, sometimes unexpressed, that clarify why that brief provides no useful guidance to a court. In my brief, I labeled them fallacies that constituted an act of misdirection. I ran through six separate fallacies that knocked the legs out from under those arguments – at least, to me, they powerfully served that purpose.

For example, my opponent argued that a rule of civil procedure cannot alter substantive law. We know that that is a correct statement of law. Federal law, 28 U.S.C. § 2072(b), denies civil rules from abridging, enlarging, or modifying any substantive right. Having made the valid point, then opposing counsel did little to connect that to the rule at issue. He asked the court to assume that my argument would make the rule substantive. And, my reply demonstrated that following the proper procedure implements the underlying substantive law, rather than changes it.

Similarly, he recited the holding of a case I cited, as though that holding is the sum total of the analysis, because our case did not fit that holding. Yet, my brief suggested that the type of analysis employed in the case supported the analysis appropriate to the issue. While dicta of the type I relied upon does not formulate binding precedent, it was from the U.S. Supreme Court and therefore takes on a heightened character. As the Sixth Circuit put it recently, “Supreme Court dicta is persuasive and cannot be ignored by lower courts for no good reason.” Cunningham v. Shoop, 23 F.4th 636, 659 (6th Cir.), cert. denied, 143 S. Ct. 37 (2022).

It is also tempting to ignore, for good reason, a brief you believe fails to advance your opponent’s case. Prudence, however, requires that you make clear to the court that your version of the case is the one that it should entertain.

The 2023 Justice Donald L. Corbin Appellate Symposium

On March 30 and 31, the Pulaski County Bar Foundation will be hosting its Annual Justice Donald L. Corbin Appellate Symposium at the University of Arkansas Little Rock Bowen School of Law.  This national symposium honors the late Justice Donald L. Corbin of the Arkansas Supreme and Appellate Courts.  The event offers the chance to discuss and learn about the appellate process from federal and state judges, professors, and experienced practitioners in beautiful Little Rock.  You can tour the Clinton Library too! 

The impressive lineup this year includes many members of the appellate bench:

• A United States Court of Appeals panel discussion with Judge Michael Y. Scudder of the Seventh Circuit, Chief Judge Lavenski R. Smith of the Eight Circuit, and Judge Jane Kelly of the Eight Circuit;
• Judge Morris S. "Buzz" Arnold, United States Court of Appeals for the Eighth Circuit, speaking on ethics;
• A state Supreme Court panel discussion with Justice Courtney R. Hudson of the Arkansas Supreme Court, Justice Holly Kirby of the Tennessee Supreme Court, and  Justice Piper D. Griffin of the Louisiana Supreme Court;
• Justice Annabelle Imber Tuck (Retired), Arkansas Supreme Court, speaking on oral argument; and
• An Arkansas Court of Appeals Panel Discussion with Judges Cindy Thyer, Wendy S. Wood, and Stephanie P. Barrett.

Robert S. Peck, of the Center for Constitutional Litigation, will be speaking on framing issues for appeal, and How Appealing's founder Howard Bashman will present as well, along with several other appellate practitioners and professors. 

You still have time to register, and you can find all of the details here:  https://www.pulaskibarfoundation.com/corbinsymposium.

This year, I am honored to be speaking on appellate brief writing, and I invite you to join us at the beautiful Bowen School of Law for the 2023 Corbin Symposium.  Plus, if you have never been to Little Rock, I highly recommend a visit.  Trust this Chicago gal living in Los Angeles, Little Rock is a charming and welcoming town with big city amenities in a gorgeous part of the country.  See you there!

Appellate Advocacy Blog Weekly Roundup Friday, February 17, 2023

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

US Supreme Court Opinions and News

• Adam Feldman at Empirical SCOTUS posted an historical look at the timing of Supreme Court decisions. The post compares the pacing of this year’s releases to past pacing.
  
  
• On Friday, March 17, the Supreme Court will honor the memory of Justice Ruth Bader Ginsberg. The Court will hold a meeting of the Supreme Court’s Bar, followed by a special sitting of the Court. The bar meeting will be held at 1:45 p.m. in the Upper Great Hall and will feature several notable speakers, including Honorable Elizabeth B. Prelogar, Solicitor General of the United States. The meeting will be live-streamed on the Court’s website: www.supremecourt.gov. See the Supreme Court press release.
  
  
• After the filing of the Solicitor General’s brief announcing that the end of the public health emergency will moot the case, the Supreme Court has cancelled oral argument in the challenge to the Biden administration’s attempts to end Title 42 (see previous coverage from this blog). Title 42 is the pandemic-era immigration measure that has allowed migrants, even those who might otherwise qualify for asylum, to be quickly expelled at the southern border. Last year, when Title 42 was challenged, the Federal District Court set a deadline for the end of the measure, finding that the measure did not advance public health but did endanger immigrants. When the Biden administration did not appeal that ruling, 19 states sought intervention to defend Title 42 and asked to stay the deadline. The Court of Appeals for DC denied the stay finding that the Petitioner States had not timely intervened. On appeal of that decision, the Supreme Court agreed to hear only the question of whether the Petitioner States had properly intervened and granted a stay to maintain the status quo. Oral argument was set for March. The Solicitor General’s brief states that the expected end to the public health emergency will moot the case: “ the end of the public health emergency will (among other consequences) terminate the Title 42 orders and moot [petitioners’ attempt to intervene].” Today, the Petitioner States filed a reply arguing that the end to the public health emergency does not moot the issue presented by the case: whether the petitioner states properly intervened. See reports from CBSNews, Politico, and CNBC.

Appellate Court Opinions and News

• The Third Circuit ruled that Johnson & Johnson was not in financial distress when it filed for bankruptcy, and the court rejected J&J’s attempt to move the close to 40,000 talc lawsuits against it to bankruptcy court. The ruling creates a new financial distress standard and seems to undercut the use of what’s known as the Texas two-step bankruptcy strategy. To avoid much of the financial liability it faces from the talc-cancer suits, J&J employed the Texas two-step: J&J created a subsidiary and transferred liability for the talc-related claims to the subsidiary; then the subsidiary filed for Chapter 11 bankruptcy, claiming insolvency. If permitted, the strategy could have allowed J&J to avoid much of the financial liability it faced from the mass tort talc cases. The court ruled that J&J’s agreement to fund the subsidiary’s liabilities made J&J the subsidiary’s ultimate financial safeguard and that was “not unlike an ATM disguised as a contract.” See a 2022 WBUR discussion of the Texas two-step strategy and see the decision and reports from The Wall Street Journal, Reuters, Bloomberg, and NBCNews.
  
  
• The Fifth Circuit found unconstitutional a decades-old law barring domestic abusers from possessing firearms and ruled that those convicted of domestic abuse have an unrestrainable right to bear arms. The decision stated that the statute contradicts an “historical tradition” allowing access to guns. The court determined that the statute gives too much power to Congress to determine who qualifies as “law-abiding, responsible citizens.” The opinion seems to compare domestic abuse to crimes like speeding, political non-conformity, and failing to recycle. The ruling earned a rebuke from US Attorney General Merrick Garland, who said: “Whether analyzed through the lens of Supreme Court precedent, or of the text, history, and tradition of the Second Amendment, that statute is constitutional. … Accordingly, the department will seek further review of the Fifth Circuit’s contrary decision.” See the ruling and reports from Bloomberg, CNN, and The Hill.

Other News

• The Senate confirmed Cindy Chung for the Pennsylvania federal appeals court; she will be the first Asian American to sit on the Third Circuit. See reports from Reuters and Bloomberg.